EXHIBIT 10.1
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FINAL
2/3/2004
SETTLEMENT AGREEMENT BY AND AMONG ARVIDA/JMB PARTNERS, L.P. AND
LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM NOS. ONE, TWO,
THREE, FOUR, FIVE, SIX, SEVEN AND NINE MAINTENANCE ASSOCIATIONS, INC.
ON BEHALF OF THEMSELVES AND THEIR MEMBERS
TABLE OF CONTENTS
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. Incorporation of Recitals . . . . . . . . . . . . . . . . 1
2. Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
2.1. "Affiliate". . . . . . . . . . . . . . . . . . . . . 1
2.2. "Amended Complaint". . . . . . . . . . . . . . . . . 2
2.3. "Association" and "Associations" . . . . . . . . . . 2
2.4. "Association No. 8". . . . . . . . . . . . . . . . . 2
2.5. "Claims" . . . . . . . . . . . . . . . . . . . . . . 2
2.6. "Class Notice" . . . . . . . . . . . . . . . . . . . 3
2.7. "Closing Date" . . . . . . . . . . . . . . . . . . . 3
2.8. "Condominium Unit" . . . . . . . . . . . . . . . . . 4
2.9. "Court". . . . . . . . . . . . . . . . . . . . . . . 4
2.10."Deficiency Notices" . . . . . . . . . . . . . . . . 4
2.11."Disney" . . . . . . . . . . . . . . . . . . . . . . 4
2.12."Disney Indemnity Units" . . . . . . . . . . . . . . 4
2.13."Effective Final Judgment Date". . . . . . . . . . . 4
2.14."Final Judgment" . . . . . . . . . . . . . . . . . . 4
2.15."Indemnification Agreement" and
"Indemnification Agreements" . . . . . . . . . . . . 5
2.16."Lawsuit". . . . . . . . . . . . . . . . . . . . . . 5
2.17."Mutual General Release" . . . . . . . . . . . . . . 5
2.18."Notice of Settlement" and
"Notices of Settlement". . . . . . . . . . . . . . . 5
2.19."Party" and "Parties". . . . . . . . . . . . . . . . 6
2.20."Person" . . . . . . . . . . . . . . . . . . . . . . 6
2.21."Preliminary Approval Date". . . . . . . . . . . . . 6
2.22."Preliminary Approval Order" . . . . . . . . . . . . 6
2.23."Related Agreement". . . . . . . . . . . . . . . . . 6
2.24."Related Party". . . . . . . . . . . . . . . . . . . 6
2.25."Released Claim" and "Released Claims" . . . . . . . 6
2.26."Remedial Plans" . . . . . . . . . . . . . . . . . . 6
2.27."Settlement" . . . . . . . . . . . . . . . . . . . . 6
2.28."Settlement Amount". . . . . . . . . . . . . . . . . 6
2.29."Settlement Class" . . . . . . . . . . . . . . . . . 6
2.30."Settlement Class Counsel" . . . . . . . . . . . . . 7
2.31."Settlement Class Members" . . . . . . . . . . . . . 7
2.32."Settlement Requirements". . . . . . . . . . . . . . 7
2.33."Subrogation Claim". . . . . . . . . . . . . . . . . 7
2.34."Village Homes". . . . . . . . . . . . . . . . . . . 7
3. Procedures for Approval of Settlement . . . . . . . . . . 7
3.1. Joint Motion For Approval Of The Settlement. . . . . 7
3.2. Class Notice . . . . . . . . . . . . . . . . . . . . 7
3.3. Provisions Of The Preliminary Order. . . . . . . . . 8
3.4. Settlement Class Counsel's Opinion
on the Settlement. . . . . . . . . . . . . . . . . . 8
3.5. Approval Of Final Judgment . . . . . . . . . . . . . 8
3.6. Objections . . . . . . . . . . . . . . . . . . . . . 8
4. Procedure Following Entry of Final Judgment . . . . . . . 9
4.1. List of Owners . . . . . . . . . . . . . . . . . . . 9
4.2. Execution and Exchange of Mutual General Release . . 9
4.3. Delivery of Indemnification Agreements;
Certificates of Insurance. . . . . . . . . . . . . . 9
4.4. Delivery of Notices of Settlement: Recordation . . . 9
4.5. Payment by Arvida/JMB. . . . . . . . . . . . . . . . 9
5. Cooperation Before and After the Closing Date . . . . . . 10
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6. Claims Against Disney and its Affiliates. . . . . . . . . 10
7. Disclosure of Settlement. . . . . . . . . . . . . . . . . 10
8. Meeting on Closing Date . . . . . . . . . . . . . . . . . 10
8.1. Arvida/JMB Obligations on Closing Date . . . . . . . 10
8.2. Obligations of the Settlement Class on Closing Date. 11
9. Settlement Class Members' Representations, Warranties
and Covenants . . . . . . . . . . . . . . . . . . . . . . 12
9.1. Corporate Standing . . . . . . . . . . . . . . . . . 12
9.2. Authority and Enforceability . . . . . . . . . . . . 12
9.3. No Other Claims. . . . . . . . . . . . . . . . . . . 13
9.4. Subrogation. . . . . . . . . . . . . . . . . . . . . 13
9.5. Remediation Schedule . . . . . . . . . . . . . . . . 13
9.6. Insurance. . . . . . . . . . . . . . . . . . . . . . 13
9.7. Accuracy of Lists of Owners. . . . . . . . . . . . . 13
9.8. Covenant to Not Oppose Remedial Plans by
Association No. 8. . . . . . . . . . . . . . . . . . 13
9.9. Bankruptcy of the Associations . . . . . . . . . . . 13
10. Joint Representation, Warranty and Covenant
of the Settlement Class and Settlement Class Counsel
Regarding Attorneys' and Experts' Fees and Expenses . . . 14
11. Settlement Class Counsel's Representation, Warranty
and Covenant Regarding Association No. 8. . . . . . . . . 14
12. Arvida/JMB's Representations. . . . . . . . . . . . . . . 14
12.1.Partnership Standing . . . . . . . . . . . . . . . . 14
12.2.Authority and Enforceability . . . . . . . . . . . . 14
00.0.Xx Other Claims. . . . . . . . . . . . . . . . . . . 14
12.4.Bankruptcy of Arvida/JMB . . . . . . . . . . . . . . 14
00.0.Xxxxxxxxx Ability to Pay Settlement Amount . . . . . 14
13. Accuracy and Survival of Representations, Warranties
and Covenants . . . . . . . . . . . . . . . . . . . . . . 14
14. Governing Laws. . . . . . . . . . . . . . . . . . . . . . 15
15. Retaining Jurisdiction. . . . . . . . . . . . . . . . . . 15
16. Time of Essence . . . . . . . . . . . . . . . . . . . . . 15
17. Assignment of Settlement Agreement and
Related Agreements. . . . . . . . . . . . . . . . . . . . 15
18. Termination . . . . . . . . . . . . . . . . . . . . . . . 15
19. No Admission of Liability . . . . . . . . . . . . . . . . 15
20. Use of the Settlement Agreement . . . . . . . . . . . . . 16
21. Drafting of Agreements. . . . . . . . . . . . . . . . . . 16
22. Entire Agreement. . . . . . . . . . . . . . . . . . . . . 16
23. Independent Judgment. . . . . . . . . . . . . . . . . . . 16
24. Binding Agreement . . . . . . . . . . . . . . . . . . . . 16
25. Headings. . . . . . . . . . . . . . . . . . . . . . . . . 16
26. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 16
27. Counterparts. . . . . . . . . . . . . . . . . . . . . . . 17
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28. Further Assurances. . . . . . . . . . . . . . . . . . . . 17
29. Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . 17
30. Prevailing Party Attorneys' Fees and Costs. . . . . . . . 17
31. Limitation of Liability . . . . . . . . . . . . . . . . . 18
32. Survivability . . . . . . . . . . . . . . . . . . . . . . 18
33. Provisions Severable. . . . . . . . . . . . . . . . . . . 18
34. Certain Rules of Construction . . . . . . . . . . . . . . 18
EXHIBITS
1. Disney Indemnity Units
2. Copy of a Deficiency Notice
3. Form of Final Judgment
4. Form of Indemnification Agreement
5. Form of Mutual General Release
6. Form of Notice of Settlement
7. Form of Preliminary Approval Order
8. Legal Description of "Village Homes" in Miami-Dade County, Florida
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This agreement to settle (including all Exhibits hereto, "Settlement
Agreement") all Claims of the Settlement Class Members (collectively,
hereinafter sometimes referred to as "Plaintiffs") is entered into as of
February 3, 2004 by and among the Plaintiffs and Arvida/JMB Partners, L.P.,
a Delaware limited partnership d/b/a Arvida/JMB Partners, Ltd.
("Arvida/JMB") (together, the Settlement Class Members and Arvida/JMB are
referred to herein as "the Parties" or individually as a "Party"), and is
binding upon the Parties upon execution. Capitalized terms used in this
Settlement Agreement but not otherwise defined have the definitions given
or referred to in paragraph 2.
RECITALS
WHEREAS, the Settlement Class Members and Lakes of the Meadow Village
Homes Condominium No. Eight Maintenance Association, Inc. ("Association
No. 8") have filed an Amended Complaint (the "Amended Complaint") in the
Lawsuit pursuant to Fla. R. Civ. P. 1.221 and Fla. Stat. 718.111(3) against
Arvida/JMB and Disney alleging damages as a result of certain alleged
construction defects in the Village Homes;
WHEREAS, Arvida/JMB has denied and continues to deny any liability to
the Settlement Class Members and Association No. 8 and, further, has
represented that Arvida/JMB has made and will continue to pursue Claims
against Disney and one or more of its Affiliates with respect to Settlement
Class Members' Condominium Units in the Village Homes for which
construction was commenced before September 10, 1987 and that were sold on
or after that date;
WHEREAS, the Settlement Class Members have represented that they will
continue to pursue their Claims against Disney;
WHEREAS, Arvida/JMB and the Settlement Class Members now wish to
settle and release their differences and Claims on the terms and conditions
set forth herein without any Party admitting or denying liability to the
other; and
WHEREAS, the Parties do not intend to do anything herein that would
jeopardize any Party's Claims with respect to Disney and its Affiliates.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, the Parties agree as follows:
AGREEMENT
1. INCORPORATION OF RECITALS
The foregoing recitals are true and correct and made part of this
Settlement Agreement.
2. DEFINITIONS
For purposes of this Settlement Agreement, the following terms have
the meanings specified or referred to in this paragraph 2:
2.1. "AFFILIATE". "Affiliate" of a specified Person means (i)
a past, present or future director, trustee, officer, employee,
member, partner, shareholder or subsidiary of the specified Person;
(ii) a Person which (either directly or indirectly, through one or
more intermediaries) controls, is under common control with or is
controlled by, the specified Person; (iii) any Person that, directly
or indirectly, has a substantial beneficial interest in the specified
Person or in which the specified Person has a substantial beneficial
interest; (iv) any Person that is a past, present or future director,
trustee, officer, employee, member, partner, shareholder or
subsidiary of any of the foregoing; (v) any insurer of the specified
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Person, and/or (vi) any relative or spouse of the specified Person.
For the purposes of this definition and the definition of "Related
Party", "control" of a specified Person (including the correlative
terms "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of the specified Person,
whether through ownership of voting securities, the ability to
appoint one or more of an entity's trustees, directors or persons in
a similar capacity, by contract or otherwise. Notwithstanding
anything to the contrary contained herein or in any Related
Agreement, Disney and its Affiliates shall not be deemed to be
"Affiliates" of Arvida/JMB and its Affiliates, and vice versa.
2.2. "AMENDED COMPLAINT". "Amended Complaint" has the meaning
ascribed to that term in the Recitals to this Settlement Agreement.
2.3. "ASSOCIATION" AND "ASSOCIATIONS". "Association" or
"Associations" means any one or all of Lakes of the Meadow Village
Homes Condominium No. One Maintenance Association, Inc.; Lakes of the
Meadow Village Homes Condominium No. Two Maintenance Association,
Inc.; Lakes of the Meadow Village Homes Condominium No. Three
Maintenance Association, Inc.; Lakes of the Meadow Village Homes
Condominium No. Four Maintenance Association, Inc.; Lakes of the
Meadow Village Homes Condominium No. Five Maintenance Association,
Inc.; Lakes of the Meadow Village Homes Condominium No. Six
Maintenance Association, Inc.; Lakes of the Meadow Village Homes
Condominium No. Seven Maintenance Association, Inc.; and Lakes of the
Meadow Village Homes Condominium No. Nine Maintenance Association,
Inc. Any particular Association is herein referred to as
"Association No. ___ ," so that, by way of example, Lakes of the
Meadow Village Homes Condominium No. 9 Maintenance Association, Inc.,
is referred to herein as "Association No. 9."
2.4. "ASSOCIATION NO. 8". "Association No. 8" has the meaning
ascribed to that term in the Recitals to this Settlement Agreement.
Association No. 8 is not a party to this Settlement Agreement.
2.5. "CLAIMS". "Claims" means (a) all manner of action and
actions, cause and causes of action, (b) claims, liabilities or
obligations of every kind and nature, in law or equity, by statute or
otherwise, suits, debts, dues, sums of money, accounts, indemnities,
guarantees, warranties, reckonings, bonds, bills, covenants,
contracts, controversies, agreements and promises, and (c) damages
(including, without limitation, damages to wood accessories,
trimmings and treatments, porches, columns, railings, stairs, facia
boards, trusses, walls, tiles, carpets, lamps, personal belongings,
roofs and other areas of the Condominium Units in the Village Homes),
judgments, executions, losses, costs or expenses of every kind and
nature (including, without limitation, costs to remediate, replace or
complete, storage and handling expenses, alternative living expenses,
expenses for loss of use or enjoyment or for inconvenience, loss of
value and loss of financing or refinancing opportunity), compensation
and rights of subrogation, contribution, indemnification or
reimbursement, now accrued or hereafter to accrue (whether known or
unknown, anticipated or unanticipated, suspected or unsuspected,
direct, indirect, consequential, fixed, vested or contingent,
asserted or unasserted), which a Party had, now has, or may in the
future have arising out of or relating to the following: (i) any of
the subject matters of the Lawsuit (including, without limitation,
the design and/or construction of the Condominium Units in the
Village Homes, including latent defects or other damage of every kind
and nature to such Condominium Units arising out of the actions or
omissions of Arvida/JMB, its Affiliates or any architects, engineers
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or subcontractors engaged at any time by or on behalf of Arvida/JMB
or any of its Affiliates); (ii) any order or action of the Miami-Dade
County, Florida Unsafe Structures Board and/or any authority with
jurisdiction to review orders or actions of that Board with respect
to any of the Settlement Class Members' property or the Village
Homes, or any action or order of any other governing body with
jurisdiction over such property or the Village Homes, whether any
such order or action has already been issued or undertaken or occurs
in the future; (iii) any remediation, alteration or construction
related or design-related activities undertaken in regard to the
Condominium Units in the Village Homes, whether undertaken by or on
behalf of Arvida/JMB, any of its Affiliates, any architects,
engineers or subcontractors engaged at any time by or on behalf of
Arvida/JMB or any of its Affiliates, or by any of the Settlement
Class Members or any other Person, and whether already undertaken or
occurring in the future; (iv) the failure of any Settlement Class
Members or any other condominium association or condominium owners in
the Village Homes to undertake appropriate and/or timely remediation
or alterations to cure all construction and design defects of every
kind and nature (including, without limitation, latent defects) of,
and all other damage to, their Condominium Units in the Village
Homes; or (v) the past, present or future governance, operation,
maintenance or administration of any of the Associations, any other
Village Homes condominium association, or any of their respective
affairs or property, including, without limitation, the application
of the settlement payment made by Arvida/JMB to the Settlement Class
pursuant to this Settlement Agreement; provided, however, that the
Claims of a Party do not include the obligations and duties of any
other Party under this Settlement Agreement, the Mutual General
Release or any other Related Agreement. Without limiting the
generality of the foregoing, the "Claims" of a Party or Parties
include claims or demands for consequential damages, special damages,
punitive damages, prejudgment interest, attorneys' fees and expenses,
experts' fees and expenses, consulting fees and expenses, any losses,
costs, expenses, fines or other obligations assessed or imposed
against any Settlement Class Member pursuant to an order of any
governmental authority with jurisdiction over his or her property or
the Village Homes, or arising out of the actions or failure to act by
any Settlement Class Members, or any other Village Homes condominium
association or condominium owner or any other Person, with respect to
an order of any governmental authority pertaining to their property
or the Village Homes (including, without limitation, any action or
failure to act in response to the Deficiency Notices concerning any
Condominium Units in the Village Homes). Further, and without
limiting the generality of the foregoing, (x) the Settlement Class
Members acknowledge and agree that the Claims of the Settlement Class
Members and their Related Parties include any and all claims,
demands, causes of action, damages and other rights or remedies that
any of them has asserted or could have asserted against Arvida/JMB or
any of its Affiliates in the Lawsuit (including, without limitation,
that Arvida/JMB or any of its Affiliates is a "successor developer"
to Disney or any of its Affiliates); and (y) Arvida/JMB acknowledges
and agrees that the Claims of Arvida/JMB and its Affiliates include
any and all claims, demands, causes of action, damages and other
rights or remedies that Arvida/JMB or any of its Affiliates has
asserted or could have asserted against any of the Settlement Class
Members or any of their Related Parties in the Lawsuit.
2.6. "CLASS NOTICE". "Class Notice" has the meaning ascribed
to that term in paragraph 3.1.
2.7. "CLOSING DATE". "Closing Date" means the fourth business
day after the Effective Final Judgment Date or such other date as
Arvida/JMB and Settlement Class Counsel on behalf of the Settlement
Class may mutually agree.
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2.8. "CONDOMINIUM UNIT". "Condominium Unit" means the
portions of the Village Homes that are subject to individual
ownership, whether or not contiguous, and all improvements thereon
and all easements and rights appurtenant thereto intended for use in
connection with the Condominium Unit, including all interests of the
owner in the common elements appurtenant to the owner's Condominium
Unit. "Condominium Unit" has the same meaning that the term
"Condominium Parcel" has in the Florida Condominium Act, Fla. Stat.
Ch. 718.
2.9. "COURT". "Court" means the Circuit Court of the
11th Judicial Circuit in and for Miami-Dade County, Florida with
jurisdiction over the parties to the Lawsuit.
2.10. "DEFICIENCY NOTICES". "Deficiency Notices" means the
notices issued to the Settlement Class Members on or about February
27, 2002 by the Miami-Dade County Unsafe Structures Board informing
them that certain structural defects appeared in the common elements
of their Condominium Units and that these defects had to be
remediated or the units would be ordered demolished. A copy of a
Deficiency Notice is attached as Exhibit 2.
2.11. "DISNEY". "Disney" means any or all of Xxxx Disney World
Company, Xxxx Disney World Company d/b/a ARDC Corporation and The
Xxxx Disney Company (n/k/a Disney Enterprises, Inc.).
2.12. "DISNEY INDEMNITY UNITS". "Disney Indemnity Units" means
those Condominium Units that were designed and built in whole or in
part by one or more of the Affiliates of Disney and that were
originally sold by Arvida/JMB after September 9, 1987. The Disney
Indemnity Units are identified in Exhibit 1.
2.13. "EFFECTIVE FINAL JUDGMENT DATE". "Effective Final
Judgment Date" means the first business day after all of the
following conditions or events have been met or have occurred:
2.13.1. The Final Judgment has been entered by the Court
in the Lawsuit and not subsequently modified or vacated;
2.13.2. The time has expired in which to seek review by
appeal of the Final Judgment without any review or appeal
having been taken therefrom pursuant to Fla. R. App. P. 9.100
or otherwise; or, if review or appeal is taken, then such
review or appeal shall have been finally determined (subject to
no right to further review or appeal) by the highest court
before which the review or appeal is sought and allowed, and
the review or appeal shall have been resolved in such manner as
to permit the consummation of the Settlement to be effected by
this Settlement Agreement in accordance with all of its terms
and provisions without modification in any material respect
unless approved by the Parties; and
2.13.3. The Settlement Requirements have been met.
2.14. "FINAL JUDGMENT". "Final Judgment" means the Court's
final, appealable order in the Lawsuit with a separate final Order of
Dismissal with Prejudice, substantially in the form attached hereto
as Exhibit 3, acceptable to each of Arvida/JMB's counsel and
Settlement Class Counsel and which:
2.14.1. Grants final approval of the Settlement as fair,
reasonable, and adequate, and in the best interest of the
Settlement Class as a whole and each of its Members;
2.14.2. Orders the Parties to carry out or complete, as
the case may be, the provisions of the Settlement;
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2.14.3. Dismisses in its entirety and with prejudice the
Claims of all Settlement Class Members against Arvida/JMB and
its Affiliates only, without costs to or against any other
Party except as otherwise provided herein;
2.14.4. Adjudges that the Settlement Class Members shall
be deemed conclusively to have settled, discharged, dismissed
and released all Released Claims as against Arvida/JMB and its
Affiliates only and to have covenanted not to file suit against
Arvida/JMB or any of its Affiliates only with respect to any of
the Released Claims;
2.14.5. Bars and permanently enjoins each Settlement
Class Member from prosecuting any action in state or federal
court or any administrative proceeding or otherwise against
Arvida/JMB or any of its Affiliates only with respect to any of
the Released Claims, and bars and permanently enjoins
Arvida/JMB from prosecuting any action in state or federal
court or any administrative proceeding or otherwise against any
Settlement Class Member or any of his or her Related Parties
(but not from defending against any Claim brought by any
Settlement Class Member or any of his or her Related Parties)
with respect to any of the Released Claims;
2.14.6. Orders that all causes of action in the Lawsuit
of any Person who the Court has found to have timely and
effectively opted out of the Settlement Class with Court
approval shall be severed and tried separately from the
proceedings that are contemplated to occur in the Lawsuit after
the Final Judgment is entered, with the Court retaining
jurisdiction to try any such severed causes of action;
2.14.7. Reserves for the Court continuing and exclusive
jurisdiction over implementation of the Settlement and over its
enforcement, construction and interpretation; and
2.14.8. Determines the Final Judgment to be a final
order.
2.15. "INDEMNIFICATION AGREEMENT" AND "INDEMNIFICATION
AGREEMENTS". "Indemnification Agreement" or "Indemnification
Agreements" means any or all of the agreements for the
indemnification of Arvida/JMB and its Affiliates by each of the
Associations, on behalf of itself and its members, in accordance with
paragraph 4.3 and substantially in the form of Exhibit 4.
2.16. "LAWSUIT". "Lawsuit" means that certain lawsuit styled
LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM NOS. ONE, TWO, THREE,
FOUR, FIVE, SIX, SEVEN, EIGHT AND NINE MAINTENANCE ASSOCIATION, INC.,
including all members thereof, Plaintiffs, vs. ARVIDA/JMB PARTNERS,
L.P., a Delaware limited partnership, and XXXX DISNEY WORLD COMPANY,
a Delaware corporation, Defendants, CASE NO. 95-23003-CA-08, pending
in the Circuit Court of the 11th Judicial Circuit in and for
Miami-Dade County, Florida, referred to in the Recitals of this
Settlement Agreement and currently prosecuted by and on behalf of the
Settlement Class Members against Arvida/JMB and Disney.
2.17. "MUTUAL GENERAL RELEASE". "Mutual General Release" means
the release of Claims to be executed and delivered in accordance with
paragraph 4.2 and substantially in the form of Exhibit 5.
2.18. "NOTICE OF SETTLEMENT" and "NOTICES OF SETTLEMENT".
"Notice of Settlement" or "Notices of Settlement" means any or all of
the notices of the terms of the Settlement in recordable form, to be
executed and delivered by each of the Associations in accordance with
paragraph 4.4 and substantially in the form of Exhibit 6.
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2.19. "PARTY" AND "PARTIES". "Party" or "Parties" has the
meaning ascribed to that term in the introduction to this Settlement
Agreement.
2.20. "PERSON". "Person" means any natural person, any legal
entity such as a corporation, association, partnership, trust or any
other type of legal entity, a governmental office or agency or a
division, department, board, bureau, or other sub-part of a
governmental office or agency.
2.21. "PRELIMINARY APPROVAL DATE". "Preliminary Approval Date"
means the first business day after the Preliminary Approval Order has
been entered in the Lawsuit by the Court.
2.22. "PRELIMINARY APPROVAL ORDER". "Preliminary Approval
Order" means the order to be entered in the Lawsuit by the Court
substantially in the form of Exhibit 7 hereto.
2.23. "RELATED AGREEMENT". "Related Agreement" means any
agreement or instrument executed in connection with this Settlement
Agreement, including, without limitation, the Mutual General Release,
the Indemnification Agreements, the Notices of Settlement and the
Final Judgment.
2.24. "RELATED PARTY". "Related Party" of a Settlement Class
Member means (i) a past or present director, officer, employee or
member of an Association; (ii) a predecessor-in-interest or
predecessor-in-title (in the case of a Settlement Class Member who is
an owner of a Condominium Unit in the Village Homes); (iii) a Person
which (either directly or indirectly, through one or more
intermediaries) controls, is under common control with or is
controlled by, the Settlement Class Member; (iv) any insurer of the
Settlement Class Member; or (v) any relative or spouse of the
Settlement Class Member. Notwithstanding anything to the contrary
contained herein or in any Related Agreement, Disney and its
Affiliates shall not be deemed to be "Related Parties" of any
Settlement Class Members.
2.25. "RELEASED CLAIM" and "RELEASED CLAIMS". "Released Claim"
or "Released Claims" means any or all Claims to be released pursuant
to the Mutual General Release.
2.26. "REMEDIAL PLANS". "Remedial Plans" has the meaning
ascribed to such term in paragraph 9.8.
2.27. "SETTLEMENT". "Settlement" means the transactions and
resulting legal positions and rights to be effectuated by virtue of
this Settlement Agreement and the Related Agreements.
2.28. "SETTLEMENT AMOUNT". "Settlement Amount" means the
amount to be paid by Arvida/JMB under paragraph 4.5 of this
Settlement Agreement (i.e., $5.5 million).
2.29. "SETTLEMENT CLASS". "Settlement Class" means Lakes of
the Meadow Village Homes Condominium No. One Maintenance Association,
Inc., Lakes of the Meadow Village Homes Condominium No. Two
Maintenance Association, Inc., Lakes of the Meadow Village Homes
Condominium No. Three Maintenance Association, Inc., Lakes of the
Meadow Village Homes Condominium No. Four Maintenance Association,
Inc., Lakes of the Meadow Village Homes Condominium No. Five
Maintenance Association, Inc., Lakes of the Meadow Village Homes
Condominium No. Six Maintenance Association, Inc., Lakes of the
Meadow Village Homes Condominium No. Seven Maintenance Association,
Inc., and Lakes of the Meadow Village Homes Condominium No. Nine
Maintenance Association, Inc., each a Florida corporation not for
profit, on behalf of themselves and their members, other than any
Person who has filed a timely and effective election to be excluded
from the Settlement Class and who the Court has excluded from the
Settlement Class.
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2.30. "SETTLEMENT CLASS COUNSEL". "Settlement Class Counsel"
means the law offices of Xxxxx Xxxxxx LLP.
2.31. "SETTLEMENT CLASS MEMBERS". "Settlement Class Members"
means the Persons included within the definition of Settlement Class.
2.32. "SETTLEMENT REQUIREMENTS". "Settlement Requirements"
means all the following conditions and all the following events:
2.32.1. All Parties and their counsel have executed this
Settlement Agreement;
2.32.2. The Court has entered the Preliminary Approval
Order, not subsequently modified or vacated, preliminarily
approving the Settlement and the method of providing notice to
the Settlement Class;
2.32.3. The Court has entered the Final Judgment, not
subsequently modified or vacated, approving the Settlement;
2.32.4. None of the Associations has timely and
effectively opted out of the Settlement Class; provided that
Arvida/JMB may waive this requirement in its sole and absolute
discretion and may go forward with and enforce this Settlement
Agreement notwithstanding the fact that one or more
Associations have timely and effectively opted out of the
Settlement Class and notwithstanding that the Court has
determined such Association(s) is (are) excluded from the
Settlement Class.
2.32.5. This Settlement Agreement has not been
terminated in accordance with paragraph 18.
2.33. "SUBROGATION CLAIM". "Subrogation Claim" has the meaning
ascribed to that term in paragraph 9.4.
2.34. "VILLAGE HOMES". "Village Homes" means the four-plex
condominium buildings, their common elements and the Condominium
Units therein, the legal descriptions of which are contained in
Exhibit 8.
3. PROCEDURES FOR APPROVAL OF SETTLEMENT. The Parties agree that,
subject to the terms and conditions of this Settlement Agreement, they will
use reasonable efforts to obtain final approval of the terms of the
Settlement by the Court and by all of the Settlement Class Members and to
effectuate the transactions contemplated by this Settlement Agreement. To
that end:
3.1. JOINT MOTION FOR APPROVAL OF THE SETTLEMENT. Promptly
upon full execution of this Settlement Agreement by the Parties and
their counsel, the Parties will jointly move the Court for entry of
the Preliminary Approval Order, approving a form of Notice of
Proposed Class Settlement ("Class Notice"), and setting a date for
the filing of objections, the procedure and date by which to file
exclusions from the Settlement Class, and the date for the hearing of
a motion for final approval of the Settlement.
3.2. CLASS NOTICE. The Class Notice will be given to
Settlement Class Members in the form of and at such time, places and
manner as are directed by the Court in the Preliminary Approval
Order. The Settlement Class shall be solely responsible for, and
bear all the costs associated with, mailing or publishing the Class
Notice to all Settlement Class Members. Arvida/JMB's counsel shall
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be entitled to review and approve the form and content of the Class
Notice if it differs in any material respect from the form of Class
Notice attached as an exhibit to the Preliminary Approval Order,
which is attached hereto as Exhibit 7. Settlement Class Counsel
shall provide to Arvida/JMB's counsel a list of Settlement Class
Members to whom the Class Notice has been sent and their addresses
promptly after mailing of the Class Notice, and such list may only be
used by Arvida/JMB for purposes consistent with the Settlement.
3.3. PROVISIONS OF THE PRELIMINARY ORDER. The Parties agree
that the Preliminary Approval Order shall be substantially in the
form of Exhibit 7 and shall include provisional approval of the terms
of the Settlement. The Parties further agree that the Preliminary
Approval Order shall: (a) preliminarily enjoin each Settlement
Class Member from prosecuting any action in state or federal court or
otherwise against Arvida/JMB and its Affiliates with respect to any
provisionally Released Claim; and (b) preliminarily enjoin Arvida/JMB
from prosecuting any action in state or federal court or otherwise
against Settlement Class Members with respect to any provisionally
Released Claim (but Arvida/JMB may defend against any Released
Claim). In the event that this Settlement Agreement is terminated in
accordance with paragraph 18, the foregoing injunctions shall be
automatically lifted.
3.4. SETTLEMENT CLASS COUNSEL'S OPINION ON THE SETTLEMENT.
Promptly after the Preliminary Approval Date (but in any event prior
to any hearing in regard to the Final Judgment), Settlement Class
Counsel will deliver to Arvida/JMB its written opinion to the effect
that Settlement Class Counsel has concluded, based on its
investigation, discovery in this matter and its consultations with
expert structural engineers, costing experts and county officials and
taking into account the general risks, uncertainties and costs
attending prosecution of the Claims asserted in the Amended
Complaint, further delay in recovery of funds to remediate, the
substantive benefits to be received from the Settlement, the
continued pressure from Miami-Dade County, Florida to remediate or
demolish Condominium Units in the Village Homes and in consideration
of all of the other circumstances, that in their professional opinion
the terms of the Settlement are fair, reasonable and adequate and
that the Settlement on the terms provided for in this Settlement
Agreement and the Related Agreements is in the best interest of the
Settlement Class as a whole and each of the Settlement Class Members
individually.
3.5. APPROVAL OF FINAL JUDGMENT. Within a reasonable time
following entry of the Preliminary Approval Order, counsel for the
Parties shall jointly seek final approval of the Settlement before
the Court and defend the Settlement in the event Settlement
Class Members or other Persons contest the terms of the Settlement.
To that end, Settlement Class Counsel will draft any motions,
memoranda, or briefs necessary to obtain final approval of the
Settlement before the Court and any appellate courts, as the case may
be; provided, however, that counsel for Arvida/JMB shall have the
right to review and comment on any motions, memoranda or briefs prior
to their filing, and Settlement Class Counsel, subject to its
professional judgment, shall make reasonable efforts to address or
incorporate comments made by counsel for Arvida/JMB. The Settlement
Class will pay for any expense reasonably necessary in order to
obtain final approval of the Settlement. In addition, counsel for
Arvida/JMB may, at Arvida/JMB's expense, file with the Court and any
appellate court such motions, memoranda, briefs and evidence in
support of final approval of the Settlement as Arvida/JMB deems
appropriate.
3.6. OBJECTIONS. Any Settlement Class Member may timely
object to any term or terms of the Settlement, subject to such terms
and conditions for making any such objections as the Court may
impose.
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4. PROCEDURE FOLLOWING ENTRY OF FINAL JUDGMENT.
4.1. LIST OF OWNERS. On or as soon as practicable (but in no
event later than thirty (30) days) after the Closing Date,
Association No. 6, Association No. 7 and Association No. 9 shall
provide to Arvida/JMB lists of the names and addresses of all Persons
owning legal title to the Condominium Units listed on Exhibit 1 as of
the Closing Date, each such list to be certified to be true and
correct by the corporate secretary of the Association in whose
condominium such Condominium Units are located. By way of example,
for any Condominium Unit located in the condominium of Association
No. 9 in which legal title is held in joint tenancy, the name and
address of each joint tenant owner of such Condominium Unit shall be
included in a list of owners of the Condominium Units in the
Association No. 9 condominium, and such list shall be certified as
true and correct by the corporate secretary of Association No. 9.
4.2. EXECUTION AND EXCHANGE OF MUTUAL GENERAL RELEASE. In
accordance with paragraph 8.2, on the Closing Date, each of the
Associations, on behalf of itself and its members and the respective
Related Parties of each such Association and its members, and
Arvida/JMB, on behalf of itself and its Affiliates, will execute and
deliver to each other the Mutual General Release substantially in
the form of Exhibit 5.
4.3. DELIVERY OF INDEMNIFICATION AGREEMENTS; CERTIFICATES OF
INSURANCE. On the Closing Date, and simultaneously with the exchange
of the Mutual General Release, each of the Associations, on behalf of
itself and its members, and Arvida/JMB will execute and deliver to
each other an Indemnification Agreement substantially in the form of
Exhibit 4. In addition, on the Closing Date, each of the
Associations will deliver to Arvida/JMB one or more certificates of
insurance evidencing the comprehensive general liability insurance
coverage referred to in paragraph 9.6.
4.4. DELIVERY OF NOTICES OF SETTLEMENT: RECORDATION. On the
Closing Date, and simultaneously with the exchange of the Mutual
General Release, each of the Associations will execute and deliver to
Arvida/JMB such number of originals of a Notice of Settlement
substantially in the form of Exhibit 6 for such Association as
Arvida/JMB may reasonably request. Arvida/JMB shall cause the Notices
of Settlement to be recorded as to the Associations in the public
records of Miami-Dade County, Florida. Arvida/JMB will bear all
such recording fees. Each Settlement Class Member and Settlement
Class Counsel will cooperate fully with Arvida/JMB in recording such
documents.
4.5. PAYMENT BY ARVIDA/JMB. In accordance with paragraph 8.1,
Arvida/JMB will pay by wire transfer on the Closing Date to
Settlement Class Counsel for the benefit of the Settlement Class
Members and for distribution in accordance with agreements between
Settlement Class Counsel and the Settlement Class Members the sum of
five million five hundred thousand dollars ($5.5 million). The
Settlement Class represents that the Settlement Amount shall be
allocated as follows: $100,000 for the remediation of each
Condominium Unit listed on Exhibit 1 and related fees and costs and
$100,000 (collectively) for Association Nos. 1 through 5. Arvida/JMB
shall have no duty to any Settlement Class Member or to any other
Person to ensure or oversee any application of such funds.
9
5. COOPERATION BEFORE AND AFTER THE CLOSING DATE. Settlement
Class Members and Arvida/JMB agree to cooperate at their own expense, and
to cause their respective counsel to cooperate, after the date hereof in
order to effect the transactions contemplated by this Settlement Agreement.
In addition, after the Closing Date upon a Party's reasonable request and
at the requesting Party's expense, the Settlement Class and Arvida/JMB
agree to make available to each other (i) their respective experts and
consultants engaged in connection with the Lawsuit with respect to any
inspection, previously done, of any Disney Indemnity Units, (ii) evidence
and experts' reports concerning the Disney Indemnity Units for the
requesting Party's use, and (iii) the Disney Indemnity Units for inspection
upon reasonable prior notice in connection with the prosecution and/or
defense of their Claims or any other rights or remedies against Disney
and/or any of its Affiliates.
6. CLAIMS AGAINST DISNEY AND ITS AFFILIATES. To the extent that
the Parties have Claims or any other rights or remedies against Disney or
any of its Affiliates, it is the Parties' intent that nothing in this
Settlement Agreement, the Mutual General Release or any other Related
Agreement shall release, alter, hinder, abrogate or otherwise affect, and
all Parties hereby reserve, the Parties' rights to pursue such Claims and
other rights and remedies (including without limitation any causes of
action for indemnification or contribution) against Disney or any of its
Affiliates.
7. DISCLOSURE OF SETTLEMENT. Until the Closing Date, the Parties
will not discuss or disseminate any information regarding this Settlement
Agreement or the transactions contemplated by this Settlement Agreement to
any members of the media or the press, except for the information (if any)
contained in a press release that has been mutually approved by Settlement
Class Counsel and Arvida/JMB. Settlement Class Counsel may, however,
discuss this Settlement Agreement prior to the Closing Date with Settlement
Class Members and in either settlement discussions or mediation with Disney
and/or any of its Affiliates. Arvida/JMB may disclose prior to the Closing
Date such terms and conditions of this Settlement Agreement as it
determines may be required by applicable laws, rules and regulations or by
its partnership agreement or other legal instruments by which it is bound
and in either settlement discussions or mediation with Disney and/or any of
its Affiliates.
8. MEETING ON CLOSING DATE. The Parties and their counsel will
meet on the Closing Date at Xxxxxxxxx, Xxxx & Xxxxxxxx, PA's offices in
Miami, Florida to deliver or to exchange all the following:
8.1. ARVIDA/JMB OBLIGATIONS ON CLOSING DATE. Subject to the
satisfaction or occurrence (or waiver by Arvida/JMB) of all
Settlement Requirements, the performance or fulfillment of all
covenants and agreements specified by this Settlement Agreement to be
undertaken by the Settlement Class Members on or before the Closing
Date, including without limitation the deliveries to be made by the
Settlement Class Members pursuant to paragraph 8.2, and the delivery
by Settlement Class Counsel of the opinion set forth in paragraph
3.4, on the Closing Date Arvida/JMB will:
8.1.1. Pay to Settlement Class Counsel, for the benefit
of the Settlement Class Members, in immediately available funds
via wire transfer to a designated account the Settlement
Amount.
8.1.2. Deliver to each of the Associations a
counterpart original of the Mutual General Release executed by
Arvida/JMB, as set forth in Paragraph 4.2.
8.1.3. Deliver to each of the Associations a
counterpart original of an Indemnification Agreement executed
by Arvida/JMB, as set forth in paragraph 4.3.
10
8.1.4. Deliver to the Associations Certificates of Good
Standing for Arvida/JMB from the Secretary of State of the
States of Delaware and Florida, a copy of the Certificate of
Limited Partnership and the Partnership Agreement of
Arvida/JMB, certified by an officer of the general partner of
Arvida/JMB, corporate resolutions of the general partner of
Arvida/JMB, certified as true and correct and in full force and
effect (without modification, amendment or supplement) by the
secretary or assistant secretary of the general partner of
Arvida/JMB, authorizing or approving the execution, delivery
and performance of the Settlement Agreement and each Related
Agreement to be executed and delivered by Arvida/JMB and a
certificate of incumbency from the secretary or assistant
secretary of the general partner of Arvida/JMB for the officers
of such general partner.
8.2. OBLIGATIONS OF THE SETTLEMENT CLASS ON CLOSING DATE.
Subject to the satisfaction or occurrence (or waiver by Arvida/JMB)
of all Settlement Requirements and the performance or fulfillment of
all covenants and agreements specified by this Settlement Agreement
to be undertaken by Arvida/JMB on or before the Closing Date,
including without limitation the payment or delivery to be made by
Arvida/JMB pursuant to paragraph 8.1, on the Closing Date the
Settlement Class Members will:
8.2.1. Deliver to Arvida/JMB a counterpart original of
the Mutual General Release executed by each of the
Associations, as set forth in paragraph 4.2.
8.2.2. Deliver to Arvida/JMB counterpart originals of
the Indemnification Agreements executed by the Associations, as
set forth in paragraph 4.3.
8.2.3. Deliver to Arvida/JMB originals of the Notices
of Settlement executed by the Associations, as set forth in
paragraph 4.4.
8.2.4. Either (i) deliver to Arvida/JMB lists of the
names and addresses of all Persons owning legal title to each
Condominium Unit listed on Exhibit 1 as of the Closing Date and
certified by the appropriate corporate secretary, as set forth
in paragraph 4.1 or (ii) advise Arvida/JMB in writing on the
Closing Date of the date (not later than thirty (30) days after
the Closing Date) on which any such list will be delivered to
Arvida/JMB.
8.2.5. Deliver to Arvida/JMB written opinions of
Settlement Class Counsel to the effect that (i) each of this
Settlement Agreement and the Mutual General Release has been
duly authorized and validly executed by each of the
Associations, on behalf of itself and its members; and (ii)
each Indemnification Agreement and each Notice of Settlement
has been duly authorized and validly executed by Association
No. 1, Association No. 2, Association No. 3, Association No. 4,
Association No. 5, Association No. 6, Association No. 7 or
Association No. 9, as the case may be, on behalf of itself and
its members.
8.2.6. Deliver to Arvida/JMB the certificate or
certificates of insurance for each Association evidencing the
comprehensive general liability insurance coverage referred to
in paragraph 9.6, as set forth in paragraph 4.3.
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8.2.7. Deliver to Arvida/JMB such certificates and
other documents (including, without limitation, copies of the
declaration of condominium, the articles of incorporation or
charter and the by-laws for each of the Associations, certified
as true and correct by the Secretary of State of the State of
Florida or by the corporate secretary of each such Association;
a Certificate of Good Standing for each Association from the
Secretary of State of the State of Florida; copies of corporate
resolutions of each Association, certified as true and correct
and in full force and effect (without modification, amendment
or supplement) by the corporate secretary of each such
Association, specifically approving and authorizing the
execution, delivery and performance by such Association, on
behalf of itself and its members, of this Settlement Agreement
and each Related Agreement to which such Association is a
party; a certificate of incumbency from the corporate secretary
of each Association for the officers of such Association and
copies of minutes of meetings for each Association's board of
directors and/or members, certified by the corporate secretary
of such Association) as Arvida/JMB may reasonably request to
demonstrate that each of the Associations is duly organized and
in good standing under the laws of the State of Florida, that
each Association has approved the Settlement Agreement and each
Related Agreement to which it is a party and that each
Association and its members have otherwise taken all action
required to be performed by it or them under the Settlement
Agreement or any Related Agreement on or before the Closing
Date.
9. SETTLEMENT CLASS MEMBERS' REPRESENTATIONS, WARRANTIES AND
COVENANTS. The Settlement Class Members represent and warrant or covenant,
as the case may be, to Arvida/JMB as follows:
9.1. CORPORATE STANDING. Each of the Associations is a duly
organized, validly existing, Florida corporation not for profit, in
good standing under the laws of the State of Florida.
9.2. AUTHORITY AND ENFORCEABILITY. Each of the Associations
has all requisite right, power, and authority under its
organizational documents and applicable laws to execute and deliver
this Settlement Agreement, the Mutual General Release and the
Indemnification Agreement to which it is to be a party and to
consummate the transactions contemplated hereby and thereby, and each
of this Settlement Agreement, the Mutual General Release and the
Indemnification Agreements, when executed and delivered by the
Associations, will constitute the legal, valid and binding
obligations of Settlement Class Members, enforceable in accordance
with its terms, subject to bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to limitations on the
availability of equitable remedies.
9.3. NO OTHER CLAIMS. Except for the obligations and
undertakings of Arvida/JMB set forth in this Settlement Agreement and
the Related Agreements, none of the Settlement Class Members has any
Claim (as defined in paragraph 2.5) against Arvida/JMB or any of its
Affiliates that will not be released pursuant to the terms of the
Mutual General Release.
12
9.4. SUBROGATION. None of the Settlement Class Members or any
of their Related Parties has previously made a claim against any
insurance company for any of their Claims against Arvida/JMB or any
of its Affiliates (or, if any such claim has been made, the
Settlement Class Members will cause such insurance company to waive
any and all such claims, including, without limitation, rights of
subrogation, against Arvida/JMB and its Affiliates, prior to the
Closing Date), nor is any Settlement Class Member aware of any
circumstances that would give rise to any insurance company having
cause to make a subrogation claim (a "Subrogation Claim") against
Arvida/JMB or any of its Affiliates in connection with any of the
matters contemplated by this Settlement Agreement.
9.5. REMEDIATION SCHEDULE. The Settlement Class will
undertake and complete all necessary remediation of their Condominium
Units and other property in a timely manner under the circumstances
as determined by the appropriate governmental authorities and in
consultation with them; PROVIDED, HOWEVER, that Arvida/JMB shall have
no duty to any Person to enforce the provisions of this paragraph
9.5.
9.6. INSURANCE. Each Association will maintain, for at least
a period of 20 months from the Closing Date, comprehensive general
liability insurance with liability coverage limits at reasonable and
customary levels in light of the current status of the Condominium
Units included in the Association's condominium and the anticipated
remediation to such Condominium Units. Each Association will provide
to Arvida/JMB on the Closing Date a certificate or certificates of
insurance that demonstrate such comprehensive general liability
insurance coverage. In addition, each Association will maintain,
during the remediation of the Condominium Units in the Association's
condominium, builders' all risk insurance naming Arvida/JMB as an
additional insured with coverage limits at reasonable and customary
levels in light of the remediation undertaken for such Condominium
Units. In no event shall Arvida/JMB have any duty to any Person to
enforce the provisions of this paragraph 9.6.
9.7. ACCURACY OF LISTS OF OWNERS. Each list of owners of the
Condominium Units listed on Exhibit 1 provided to Arvida/JMB by
Association No. 6, Association No. 7 and Association No. 9 in
accordance with paragraph 4.1 is true and correct as of the Closing
Date.
9.8. COVENANT TO NOT OPPOSE REMEDIAL PLANS AND REMEDIATION BY
ASSOCIATION NO. 8. None of the Associations will undertake any
action to interfere with the remedial actions, plans and activities
(collectively, the "Remedial Plans") of Association No. 8 and its
members to address the Deficiency Notices and related matters with
regard to the remediation of the Condominium Units in the condominium
of Association No. 8, nor will any of the Associations cause the
Lakes of the Meadow Village Homes Master Maintenance Association (or
any other association or any committee in the Village Homes with
authority to review or otherwise pass upon the Remedial Plans) to
reject the Remedial Plans, including, the use of shotcrete as part of
such Remedial Plans, provided that the Remedial Plans are consistent
with plans approved by the Department of Building and Zoning of
Miami-Dade County, Florida. Nothing herein shall constitute an
admission of any of the Parties that the Lakes of the Meadow Village
Homes Master Maintenance Association (or any other association or
committee in the Village Homes) has any authority to reject the
Remedial Plans.
9.9. BANKRUPTCY OF THE ASSOCIATIONS. None of the Associations
is contemplating seeking protection from creditors under the United
States Bankruptcy Code or taking advantage of insolvency or other
laws affecting the rights of creditors generally.
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10. JOINT REPRESENTATION, WARRANTY AND COVENANT OF THE SETTLEMENT
CLASS AND SETTLEMENT CLASS COUNSEL REGARDING ATTORNEYS' AND EXPERTS' FEES
AND EXPENSES. The Settlement Class Members and Settlement Class Counsel
represent, warrant and covenant to Arvida/JMB that the Settlement Amount
will be the sole source of any attorneys', experts' and consultants' fees,
costs and expenses owed to any of them by Arvida/JMB or its Affiliates, and
neither the Settlement Class Members nor Settlement Class Counsel will seek
in the future any such fees, costs or expenses in connection with the
Lawsuit from Arvida/JMB or any other Person with respect to any Condominium
Units sold by Arvida/JMB or its Affiliates identified on Exhibit 1.
11. SETTLEMENT CLASS COUNSEL'S REPRESENTATION, WARRANTY AND
COVENANT REGARDING ASSOCIATION NO. 8. Settlement Class Counsel represents,
warrants and covenants to Arvida/JMB that it currently does not, and in the
future will not, represent any Person with respect to a matter or interest
adverse to Association No. 8's efforts to obtain any necessary approvals
for, and to effect the implementation of, the Remedial Plans.
12. ARVIDA/JMB'S REPRESENTATIONS. Arvida/JMB represents and
warrants to the Settlement Class as follows:
12.1. PARTNERSHIP STANDING. Arvida/JMB is a duly organized,
validly existing Delaware limited partnership in good standing under
the laws of the State of Delaware and authorized to do business in
the State of Florida.
12.2. AUTHORITY AND ENFORCEABILITY. Arvida/JMB has all
requisite right, power and authority under its organizational
documents and applicable laws to execute and deliver this Settlement
Agreement, the Mutual General Release and the Indemnification
Agreements and to consummate the transactions contemplated hereby and
thereby by and through its general partner, Arvida/JMB Managers,
Inc., and each of this Settlement Agreement, the Mutual General
Release and the Indemnification Agreements, when executed and
delivered by or on behalf of Arvida/JMB, will constitute the legal,
valid and binding obligation of Arvida/JMB, enforceable in accordance
with its terms, subject to bankruptcy, insolvency and other laws
affecting creditors' rights generally and to limitations on the
availability of equitable remedies.
12.3. NO OTHER CLAIMS. Except for the obligations and
undertakings of Settlement Class Members set forth in this Settlement
Agreement and the Related Agreements, Arvida/JMB does not have any
Claim (as defined in paragraph 2.5) against any Settlement
Class Members that will not be released pursuant to the terms of the
Mutual General Release.
12.4. BANKRUPTCY OF ARVIDA/JMB. Arvida/JMB is not
contemplating seeking protection from creditors under the United
States Bankruptcy Code or taking advantage of insolvency or other
laws affecting the rights of creditors generally.
12.5. FINANCIAL ABILITY TO PAY SETTLEMENT AMOUNT. Arvida/JMB
has sufficient available funds to pay the Settlement Amount as
contemplated herein.
13. ACCURACY AND SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS. The Settlement Class Members represent and warrant to
Arvida/JMB that each of the representations and warranties contained in
paragraph 9 is true and correct in all material respects on the date hereof
and will be true and correct in all material respects on the Closing Date.
It shall be a condition precedent to Arvida/JMB's performance of its
obligations under paragraph 8.1 that the representations and warranties
contained in paragraph 9 are true and correct in all material respects on
the Closing Date. Arvida/JMB represents and warrants to the Settlement
Class Members that each of the representations and warranties contained in
paragraph 12 is true and correct in all material respects on the date
hereof and will be true and correct in all material respects on the Closing
14
Date. It shall be a condition precedent to the Settlement Class Members'
performance of their obligations under paragraph 8.2 that the
representations and warranties contained in paragraph 12 are true and
correct in all material respects on the Closing Date. Each of the
representations, warranties and covenants contained in this Settlement
Agreement shall survive the closing of the transactions set forth in this
Settlement Agreement and the Related Agreements.
14. GOVERNING LAWS. The Parties agree that this Settlement
Agreement shall be governed by and be construed in accordance with the
internal laws of the State of Florida.
15. RETAINING JURISDICTION. The Parties agree that the Court shall
retain jurisdiction to implement, construe, interpret and enforce the
Settlement and all transactions contemplated by it.
16. TIME OF ESSENCE. Time is of the essence in this Settlement
Agreement and all of its terms and conditions.
17. ASSIGNMENT OF SETTLEMENT AGREEMENT AND RELATED AGREEMENTS.
Arvida/JMB's rights and obligations under this Settlement Agreement and
each Related Agreement may be assigned or delegated to another Person, but
such assignment or delegation shall not relieve Arvida/JMB of its
obligations under this Settlement Agreement and the Related Agreements,
except as provided in the following sentence. Arvida/JMB's rights and
obligations under this Settlement Agreement and each Related Agreement
shall be automatically assigned or delegated to any Person who acquires all
or substantially all of the assets and liabilities of Arvida/JMB (whether
by merger, by contract or otherwise), and thereafter Arvida/JMB shall have
no rights or obligations under this Settlement Agreement or any Related
Agreement. No Association may assign or delegate any rights or obligations
(whether on behalf of itself or any of its members) under this Settlement
Agreement or any Related Agreement without the prior written consent of
Arvida/JMB, and any purported assignment or delegation of any such rights
or obligations without the prior written consent of Arvida/JMB shall be
null and void and of no force or effect.
18. TERMINATION. This Settlement Agreement may be terminated prior
to the Court's entry of the Final Judgment upon written notice: (a) by
either the Settlement Class acting through Settlement Class Counsel, on the
one hand, or Arvida/JMB, on the other hand, if the other party has
committed a material breach of this Settlement Agreement, and such breach
remains uncured for ten (10) business days after written notice to such
party; (b) by either the Settlement Class acting through Settlement Class
Counsel or Arvida/JMB if the Court, through an order, ruling or otherwise,
effects a material change in the terms and provisions of this Settlement
Agreement, the Preliminary Approval Order, the Final Judgment (including
the Final Order of Dismissal with Prejudice), or any other Related
Agreement; (c) by either the Settlement Class acting through Settlement
Class Counsel or Arvida/JMB, in its sole and absolute discretion, if the
owners of more than three (3) Condominium Units listed on Exhibit 1 file
timely and effective exclusions from the Settlement Class and the Court
determines that such owners are excluded from the Settlement Class; (d) by
Arvida/JMB, in its sole and absolute discretion, if any Association files a
timely and effective exclusion from the Settlement Class and the Court
determines that such Association is excluded from the Settlement Class; or
(e) by either the Settlement Class acting through Settlement Class Counsel
or Arvida/JMB, in its sole and absolute discretion, at any time after
May 1, 2004, if the Court has not entered the Final Judgment on or before
such date. Upon any such termination, this Settlement Agreement shall be
void and have no further force or effect, and the Parties shall immediately
return to their respective positions prior to the execution by the Parties
of this Settlement Agreement, and thereafter this Settlement Agreement
shall have no effect on their respective various rights, Claims and
defenses.
19. NO ADMISSION OF LIABILITY. Except in connection with an action
or proceeding to enforce or give effect to the terms and provisions hereof
or any Related Agreement, neither this Settlement Agreement, any document
15
referred to herein, any document prepared in connection herewith, nor any
action taken to effect the Settlement is, or may be construed as, or may be
used as or offered as, evidence of, or an admission or concession by or
against any Party, its Related Parties or Affiliates on any point of fact
or law raised in the Lawsuit or otherwise, or of any alleged error, fault,
wrongdoing or liability whatsoever.
20. USE OF THE SETTLEMENT AGREEMENT. Notwithstanding any other
provision hereof, Arvida/JMB may file this Settlement Agreement, the Mutual
General Release, the Indemnification Agreements and/or any other Related
Agreement (including the Final Judgment) in (i) any action that may be
brought against it or any of its Affiliates that asserts any of the
Released Claims in order to support a defense or claim based on principles
of res judicata, collateral estoppel, accord and satisfaction, release,
good faith settlement, judgment bar or reduction or any other theory of
claim preclusion or issues preclusion or similar defense, (ii) any action
that may be brought by it or its Affiliates to assert a claim or right
hereunder or thereunder, or (iii) any action involving Disney or any of its
Affiliates.
21. DRAFTING OF AGREEMENTS. This Settlement Agreement and each
Related Agreement were drafted by all the Parties and their counsel with
each having an equal right to review, comment, and draft specific
provisions. Accordingly, in the event of any dispute or suit related to
the interpretation of this Settlement Agreement, any Related Agreement or
any of their respective terms, no provision hereof or thereof will be
construed against another Party as the draftsman of such agreement.
22. ENTIRE AGREEMENT. This Settlement Agreement, along with the
Related Agreements (including the Final Judgment) and any other instruments
or documents contemplated hereby or thereby, constitutes the entire
agreement of the Parties with respect to the Settlement of the Lawsuit, and
supersedes all of their prior agreements and understandings in respect of
the Settlement. This Settlement Agreement may not be modified or amended
except by an instrument in writing signed by each of the Associations on
behalf of the Settlement Class Members and Arvida/JMB and approved by the
Court.
23. INDEPENDENT JUDGMENT. The Parties have executed this
Settlement Agreement upon their independent judgment and upon the advice of
their counsel without any warranties and representations, express or
implied, of any kind or nature from each other except as otherwise
specifically set forth in this Settlement Agreement. The Parties
acknowledge that this Settlement Agreement and each Related Agreement, as
well as the transactions contemplated hereby and thereby, were negotiated
at arms' length with each Party having its own counsel and exercising its
individual and independent judgment.
24. BINDING AGREEMENT. This Settlement Agreement shall be binding
upon and inure to the benefit of the Parties hereto, their successors and
permitted assigns.
25. HEADINGS. All headings used in this Settlement Agreement are
for convenience and reference purposes only and shall not be considered as
part of this Settlement Agreement, nor shall they be deemed to limit or
otherwise affect any of the terms or provisions hereof.
26. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given (a) when delivered in
person, or (b) when a facsimile is sent by telecopier (with receipt
confirmed), or (c) when sent by first class certified or registered mail,
postage prepaid, return receipt requested, or (d) on receipt after being
sent by overnight delivery; provided that in each case they are addressed
as follows:
16
IF TO ARVIDA/JMB: Arvida/JMB, Partners, L.P.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxx, Esq.
with a copy to:
Xxxx Xxxx Xxxxxxxx, Esq.
Xxxxxxxxx, Xxxx & Xxxxxxxx,
Professional Association
Brickell Bayview Center
Suite 3000
00 Xxxxxxxxx 0xx Xxxxxx
Xxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Xxxx X. Xxxxxx, Esq.
Xxxxxxx Coie LLC
000 Xxxxx Xxxxxxxx Xxxxxx
00xx xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
IF TO ANY SETTLEMENT
CLASS MEMBERS: x/x Xxxxxxx Xxxx, Xxx.
Xxxxx Xxxxxx LLP
000 Xxxxx Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxx Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Any Party may change its address for sending notices by
providing written notice of such change in accordance with this paragraph.
27. COUNTERPARTS. This Settlement Agreement may be executed in
counterparts and shall constitute an agreement binding on all the Parties
hereto notwithstanding that all Parties are not signatories to the original
or the same counterpart. Facsimile signature pages may be transmitted by
telecopier, and when received shall have the same force and effect as if
executed as an original.
28. FURTHER ASSURANCES. Each Party agrees to execute and deliver
to another Party such further agreements, instruments or other documents
and to do such other acts, in each case as the other Party may reasonably
request, in order to permit the recordation of the Notices of Settlement in
the public records of Miami-Dade County, Florida or to carry out the
purposes or intentions of this Settlement Agreement or any Related
Agreement.
29. WAIVER. The waiver by one Party of any breach of this
Settlement Agreement by any other Party shall not be deemed a waiver of any
prior or subsequent breach of this Settlement Agreement.
30. PREVAILING PARTY ATTORNEYS' FEES AND COSTS. In the event any
legal action or proceeding is undertaken to interpret any of the terms of
this Settlement Agreement or any Related Agreement or as a result of an
alleged breach of this Settlement Agreement or any Related Agreement, the
17
prevailing party shall be entitled to recover all reasonable costs and
expenses of said proceeding or action, including reasonable attorneys' fees
and expenses.
31. LIMITATION OF LIABILITY. Notwithstanding anything to the
contrary in this Settlement Agreement or any Related Agreement, no present
or future constituent partner in or agent of Arvida/JMB, nor any
shareholder, officer, director, member, employee, trustee, beneficiary or
agent of any corporation, trust or other entity that is or becomes a
constituent partner in Arvida/JMB, shall be personally liable, directly or
indirectly, under or in connection with this Settlement Agreement, or any
agreement, instrument, certificate or other document securing or otherwise
executed in connection with this Settlement Agreement (including any
Related Agreement), or any amendments or modifications to any of the
foregoing made at any time or times; and all Settlement Class Members and
each of their respective successors and permitted assigns hereby waive any
such personal liability. For purposes of this Settlement Agreement, and
any such agreements, instruments, certificates and other documents, and any
such amendments or modifications, neither the negative capital account of
any constituent partner in Arvida/JMB, nor any obligation of any
constituent partner in Arvida/JMB to restore a negative capital account or
to contribute capital to Arvida/JMB or to any other constituent partner in
Arvida/JMB, shall at any time be deemed to be the property or an asset of
Arvida/JMB or any such other constituent partner (and neither the
Settlement Class Members nor any of their respective successors or
permitted assigns shall have any right to collect, enforce or proceed
against or with respect to any such negative capital account or partner's
obligation to restore or contribute). As used in this paragraph, a
"constituent partner" in Arvida/JMB shall mean any direct partner in
Arvida/JMB and any Person that is a partner or member in any partnership or
limited liability company that directly or indirectly through one or more
other partnerships or limited liability companies is a partner in
Arvida/JMB.
32. SURVIVABILITY. The rights and obligations of the Parties in
this Settlement Agreement and each Related Agreement shall survive the
Effective Final Judgment Date and the Closing Date.
33. PROVISIONS SEVERABLE. The terms and provisions of this
Settlement Agreement are severable. In the event that any term or
provision of this Settlement Agreement is determined by an appropriate
judicial authority to be illegal, invalid or otherwise unenforceable, such
term or provision shall be given its nearest legal meaning or be construed
as deleted as such authority determines, and the remainder of this
Settlement Agreement shall be construed to be in full force and effect.
34. CERTAIN RULES OF CONSTRUCTION. Unless the context otherwise
indicates, the following rules shall apply in construing the provisions of
this Settlement Agreement:
(i) Terms that connote or imply gender shall be construed to
apply to all genders.
(ii) References to paragraphs or Exhibits refer to the
numbered paragraphs of, or the Exhibits attached to, this Settlement
Agreement, and references to any numbered paragraph herein (e.g.,
paragraph 8.2) include all numbered paragraphs included as sub-parts
(e.g., paragraphs 8.2.1, 8.2.2, etc.) of such numbered paragraph.
(iii) Terms such as "herein," "hereof," "hereto," "hereunder"
and words of similar import refer to this Settlement Agreement.
(iv) The term "including" connotes "including without
limitation."
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS HEREOF, the Parties have executed and delivered this
Settlement Agreement on the date set forth above.
SETTLEMENT CLASS:
LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM
NO. ONE MAINTENANCE ASSOCIATION, INC.,
a Florida corporation not for profit,
on its behalf and on behalf of its members.
Witness: Ed Cambugliano By: /s/ Xxxxxx Xxxxxxx
-------------- ------------------------------
Name: Xxxxxx Xxxxxxx
------------------------------
Title: Pres. & Mediation Rep.
------------------------------
LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM
NO. TWO MAINTENANCE ASSOCIATION, INC.,
a Florida corporation not for profit,
on its behalf and on behalf of its members.
Witness: Ed Cambugliano By: /s/ Xxxxxxxx Xxxxxxx
-------------- ------------------------------
Name: Xxxxxxxx Xxxxxxx
------------------------------
Title: Pres. & Mediation Rep.
------------------------------
LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM
NO. THREE MAINTENANCE ASSOCIATION, INC.,
a Florida corporation not for profit,
on its behalf and on behalf of its members.
Witness: Ed Cambugliano By: /s/ Xxxxxx Xxxxxx
-------------- ------------------------------
Name: Xxxxxx Xxxxxx
------------------------------
Title: Vice President/Pres.
------------------------------
LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM
NO. FOUR MAINTENANCE ASSOCIATION, INC.,
a Florida corporation not for profit,
on its behalf and on behalf of its members.
Witness: Ed Cambugliano By: /s/ Catalina Guidren Y Xxxxxxxx
-------------- -------------------------------
Name: Catalina Guidren Y Xxxxxxxx
-------------------------------
Title: President
-------------------------------
LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM
NO. FIVE MAINTENANCE ASSOCIATION, INC.,
a Florida corporation not for profit,
on its behalf and on behalf of its members.
Witness: Ed Cambugliano By: /s/ Xxxxxxxx Xxxxx
-------------- ------------------------------
Name: Xxxxxxxx Xxxxx
------------------------------
Title: Mediation Rep.
------------------------------
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LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM
NO. SIX MAINTENANCE ASSOCIATION, INC.,
a Florida corporation not for profit,
on its behalf and on behalf of its members.
Witness: Xxxxx Xxxxxx By: /s/ Xxxxxxx Xxxxxx
-------------- ------------------------------
Name: Xxxxxxx Xxxxxx
------------------------------
Title: Mediation Representative
------------------------------
LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM
NO. SEVEN MAINTENANCE ASSOCIATION, INC.,
a Florida corporation not for profit,
on its behalf and on behalf of its members.
Witness: Ed Cambugliano By: /s/ Xxxxx Xxxxxx
-------------- ------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: President & Med. Rep
------------------------------
LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM
NO. NINE MAINTENANCE ASSOCIATION, INC.,
a Florida corporation not for profit,
on its behalf and on behalf of its members.
Witness: Ed Cambugliano By: /s/ Xxxxxxx Xxxxxxxxx
-------------- ------------------------------
Name: Xxxxxxx Xxxxxxxxx
------------------------------
Title: President and Mediation Rep.
------------------------------
20
SETTLEMENT CLASS COUNSEL:
Xxxxx Xxxxxx LLP
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx, Esq.
Its: Partner
Execution by Settlement Class Counsel
also evidences its agreement with the
provisions of paragraphs 3.4, 10 and
11 in this Settlement Agreement.
21
ARVIDA/JMB:
ARVIDA/JMB PARTNERS, L.P., a Delaware
limited partnership d/b/a Arvida/JMB
Partners, Ltd., by and through its general
partner, ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxx
------------------------------
Xxxx Xxxxxxx
Its: President
ARVIDA/JMB'S COUNSEL:
XXXXXXXXX, XXXX & XXXXXXXX,
PROFESSIONAL ASSOCIATION
By: /s/ Xxxx Xxxx Xxxxxxxx
------------------------------
Xxxx Xxxx Xxxxxxxx
Its: Partner
XXXXXXX COIE LLC
By: /s/ Xxxx X. Xxxxxx
------------------------------
Xxxx X. Xxxxxx
Its: Partner
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