Filing # 38829238 E-Filed 03/09/2016 05:15:47 PM

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
THE JOCKEY CLUB CONDOMINIUM
APARTMENTS, INC. and
JOCKEY CLUB CONDOMINIUM
APARTMENTS, UNIT NO. II, INC.,

CASE NO.:

Plaintiffs,
vs.
APEIRON MIAMI, LLC, and
JOCKEY CLUB III ASSOCIATION, INC.
Defendants.
_____________________________________________/
COMPLAINT FOR DECLARATORY RELIEF AND PERMANENT INJUNCTION
Plaintiffs, THE JOCKEY CLUB CONDOMINIUM APARTMENTS, INC. and JOCKEY
CLUB CONDOMINIUM APARTMENTS, UNIT NO. II, INC., hereby file their Complaint for
Declaratory Relief and Permanent Injunction against Defendants, APEIRON MIAMI, LLC and
JOCKEY CLUB III ASSOCIATION, INC., and in support thereof, state as follows:
INTRODUCTION
1.

This is an action for declaratory and permanent injunctive relief by Buildings I

and II in the Jockey Club to prevent Defendant, APEIRON MIAMI, LLC (APEIRON), from
developing additional residential and/or commercial buildings on Jockey Club Property in
violation of the 1977 Settlement Agreement, restrictive covenants running with the land,
easements running in favor of Plaintiffs, easements potentially acquired through adverse
possession and/or prescription, and otherwise in derogation of the rights of the 259 families who
own condominiums in Buildings I and II.
HELLER WALDMAN P.L.
3250 MARY STREET, SUITE 102 COCONUT GROVE, FLORIDA 33133
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PARTIES, JURISDICTION & VENUE

2.

THE JOCKEY CLUB CONDOMINIUM APARTMENTS, INC. (JOCKEY

CLUB I and/or Building I), is a Florida not-for-profit corporation organized pursuant to

Chapter 718, Florida Statutes, whose members are the 169 families who own condominium units
in Building I, the first building constructed on Jockey Club Property. JOCKEY CLUB I
represents the 169 families in this action pursuant to Fla. R. Civ. P. 1.221.
3.

JOCKEY CLUB CONDOMINIUM APARTMENTS, UNIT NO. II, INC.

(JOCKEY CLUB II and/or Building II), is a Florida not-for-profit corporation organized

pursuant to Chapter 718, Florida Statutes, whose members are the 90 families who own
condominium units in Building II, the second building constructed on Jockey Club Property.
JOCKEY CLUB II represents the 90 families in this action pursuant to Fla. R. Civ. P. 1.221.
4.

Defendant, APEIRON, is a Florida limited liability company located in and doing

business in Miami-Dade County. APEIRON is the fee simple owner of approximately 13 acres
of Common Areas within The Jockey Club.
5.

Defendant, JOCKEY CLUB III ASSOCIATION, INC. (JOCKEY CLUB III

and/or Building III) is a Florida not-for-profit corporation, whose members are the 152 owners
of condominium units in Building III, the third building constructed on Jockey Club Property,
who have been bought off by APEIRON with the promise of $10 million to acquiesce to its
impermissive development plans.
6.

The Jockey Club is located on a 22-acre piece of property in Miami, Florida

(Jockey Club Property). Since its current development was completed in 1982, the Jockey
Club has featured three residential condominium towers, Buildings I, II and III.

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7.

Defendant APEIRON, recent purchasers of the Jockey Club Common Areas

(approximately 13 acres), plans to develop two additional residential buildings on portions of the
Jockey Club Property that would house 240 additional condominium units and 90 hotel rooms.
8.

However, APEIRONs predecessor in interest, Jockey Club, Inc., entered into a

Settlement Agreement with Plaintiff, JOCKEY CLUB II, in 1977 which contained a restriction
against any additional residential development on the Jockey Club Property.
9.

In addition, APEIRONs current development plans (not anywhere near final

approval by Miami-Dade County) call for development of buildings on property owned or

controlled by JOCKEY CLUB I and/or JOCKEY CLUB II and Defendant, JOCKEY CLUB III,
as well as impermissibly encroaching on long-term easements running in favor of Buildings I
and II which may also include easements acquired through adverse possession and/or
prescription.
10.

The Court has jurisdiction over this matter under Section 26.012, Florida

Statutes, to issue injunctive relief, and under Chapter 86, Florida Statutes, inasmuch as
declaratory relief is being sought.
11.

Venue is appropriate in Miami-Dade County pursuant to Chapter 47, Florida

Statutes, because the causes of action accrued in Miami-Dade County and the property at issue is
located in Miami-Dade County.
12.

All conditions precedent to this action have been met, waived, excused or have

occurred and this action was properly commenced.

GENERAL ALLEGATIONS
Historical Background
13.

The development of the Jockey Club Property by Jockey Club, Inc. (hereinafter
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Original Developer) began in 1968 with the construction of JOCKEY CLUB I and was
completed in or around 1982 with the addition of JOCKEY CLUB III. As developed, the Jockey
Club, located on 22-acres along Biscayne Bay, provides a quiet escape from the congested and
hectic mainland nearby.
14.

Building I of the Jockey Club was completed in or around 1968 and JOCKEY

CLUB I was incorporated, to administer and manage JOCKEY CLUB I as established by the
Declaration of Condominium filed in O.R. Book 6152, page 51 of the Public Records of MiamiDade County, Florida. Article I of the Declaration of Condominium included and legally
described lands granted by the Original Developer as a non-exclusive easement for ingress and
egress for the benefit of owners, tenants, and invitees of JOCKEY CLUB I.
15.

Building II of the Jockey Club was completed in or around 1971 and JOCKEY

CLUB II was incorporated, to administer and manage JOCKEY CLUB II as established by the
Declaration of Condominium filed in O.R. Book 7656, page 906 of the Public Records of
Miami-Dade County, Florida. Article I of the Declaration of Condominium included and legally
described lands granted by the Original Developer as a non-exclusive easement for ingress and
egress for the benefit of owners, tenants, and invitees of JOCKEY CLUB II. The Original
Developer also granted JOCKEY CLUB II a non-exclusive easement for ingress and egress over
the easement granted to JOCKEY CLUB I.
1977 Agreement
16.

Several years later, when construction of Building III was proposed, Original

Developer and JOCKEY CLUB II entered into an Agreement on August 4, 1977 (1977
Agreement).
17.

Pursuant to the 1977 Agreement, JOCKEY CLUB II agreed not to stand in the
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way of construction of Phase III as long as it conformed to certain terms and conditions as set
forth in the 1977 Agreement. See 2, 3 of 1977 Agreement as recorded in OR Book 10352 at
page 747, which is attached hereto as Exhibit A.
18.

In exchange for JOCKEY CLUB IIs agreement not to protest the possible

construction of Phase III as proposed at the time, Original Developer agreed to the following:
In consideration of the execution of this agreement, Club [Developer] does herein
agree that it will not at any time in the future seek additional permission for the
construction of additional living units on any of the real property presently embodied
within the lands described on Exhibit A1, including any additional real property that
might be added to said lands by filling in any of the contiguous bay bottom areas.
See Exhibit A, 4 (emphasis added).
19.

The 1977 Agreement is a restrictive covenant running with the land, binding on

all successors and assigns of the then owners of the Jockey Club Property.

As such, it states at

paragraph 12:
This agreement shall be binding upon the successors and assigns of the parties
hereto.
See Exhibit A, 12.
20.

APEIRON is a successor in interest to the Original Developer, Jockey Club, Inc.,

signatory on the 1977 Agreement.

21.

On April 5, 1979, a copy of the 1977 Agreement executed by all parties was

recorded at O.R. Book 10352 at Page 747 of the Public Records of Miami-Dade County.
22.

Pursuant to the express terms of Paragraphs 4 and 12 of the 1977 Agreement,

which have never been released, waived, modified, or abrogated as to the portions of land upon

Exhibit A does not appear to have been recorded as part of the 1977 Agreement. However, it
is not debatable that Exhibit A referenced in Paragraph 4 of the 1977 Agreement applied to the
entirety of the 22-acre Jockey Club Property.
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which APEIRON seeks to develop, Original Developer and its successors and assigns, which
include APEIRON, are prevented from any further residential development of the Jockey Club
Property without approval and permission of JOCKEY CLUB II. No such permission has been
or will be granted.
23.

Subsequently, after significant litigation, Building III of the Jockey Club was

completed in or around 1982 and JOCKEY CLUB III was incorporated, which administers and
manages JOCKEY CLUB III as established by the Declaration of Condominium filed in O.R.
Book 11355, page 1369 of the Public Records of Miami-Dade County, Florida.
1995 Agreement
24.

On or about January 9, 1995, the Original Developer, Jockey Club, Inc., entered

into an agreement with JOCKEY CLUB I, JOCKEY CLUB II, and JOCKEY CLUB III (1995
Agreement).
25.

The 1995 Agreement is a covenant running with the land, binding on all

successors and assigns of the then owners of the Jockey Club Property. As such, it states as
follows:
Whereas, the covenants, restrictions, easements, conditions set forth herein shall
run with the title to the Common Areas, hereinafter defined, and shall be binding
upon the parties and all persons having any right, title or interest in the Common
Areas, or in any part thereof, their heirs, successor and assigns; and shall inure to
the benefit of the parties hereto, their members, unit owners, owners, successors
and assigns, and may be enforced by the parties hereto, their successors or assigns
singularly or collectively.
See Exhibit B-1, page 2.
26.

Moreover, like the 1977 Agreement, the 1995 Agreement is also binding upon

successors and assigns and states as follows at Article XIII(7)(a):

This Agreement will be binding upon the successors and assigns of the parties
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hereto.
See Exhibit B-1, Article XIII(7)(a).
27.

APEIRON is a successor in interest to Jockey Club, Inc., a signatory to the 1995

Agreement.
28.

The 1995 Agreement was executed and recorded at O.R. Book 16725, at Page

1850 of the Public Records of Miami-Dade County, Florida, to meet the requirements provided
by Florida law for the granting of an easement.
29.

Pursuant to Article III of the 1995 Agreement, Original Developer granted in

favor of all three Buildings the following: (a) a nonexclusive right to use and a non-exclusive
easement of enjoyment in and to the Common Areas and Common Services, and (b) an easement
of ingress, egress and access to and from the Common Areas and the improvements located
thereon. See Article III of 1995 Agreement as recorded in OR Book 16725 at page 1859, which
is attached hereto as Exhibit B-1.
30.

Article II(1) defines Common Areas, in part, as follows:

the Common Areas shall include all the areas and facilities which currently
exist and constitute the Jockey Club Complex and facilities including by way of
example and not by way of limitation, all existing tennis courts, the spa facility,
the tennis pro shop its toilets, bath, sauna and locker facilities, the three (3)
existing swimming pools, landscape areas, common walkways, etc., together with
such other appurtenances and improvements which may be added on the Common
Areas from time to time
See Exhibit B-1, Article II(1).
31.

Moreover, Article XII of the 1995 Agreement grants JOCKEY CLUB I, JOCKEY

CLUB II, and JOCKEY CLUB III easements over the Pool Areas and Common Areas on the
Jockey Club Property for a period of ninety-nine (99) years. See Exhibit B-1, Article XII. The
Easement Agreement was executed and subsequently recorded on March 24, 1995 at O.R. Book
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16725 at Page 1808 of the Public Records of Miami-Dade County, a copy of which is attached as
Exhibit B-2.
32.

Pursuant to the Easement Agreement made part of the 1995 Agreement, the

easements created and granted in favor of Building I and Building II were covenants running
with the land, binding on all successors and assigns of the then owners of the Jockey Club
Property. As such, it states as follows:
BINDING EFFECT. This agreement and the easements herein granted shall
constitute covenants running with the land and shall be at all times binding upon
the parties hereto and their respective grantees, successors and assigns unless and
until sooner terminated as herein provided.
See Exhibit B-2, at 7.
33.

On May 22, 1995, an amendment to the 1995 Agreement was executed and

subsequently recorded at O.R. Book 16794 at Page 1221 of the Public Records of Miami-Dade
County, Florida (the 1995 Amendment). The 1995 Amendment modified Article XII(2) of the
1995 Agreement by changing the last two sentences of Paragraph 2 to read:
Provided, however, that on January 8, 2005, at Clubs option, exercised by written
notice to Phase(s) I, II and III, not later than ninety (90) days subsequent to
January 8, 2005, Club shall have the right to eliminate from this grant, license and
easement, the tennis courts and spa facility, and the parcel of land referred to in
Article X, paragraph number 8[.] The provisions hereof shall be self-operative
without the requirement of any further writing (except as provided in this
paragraph), it being expressed and acknowledged intent of the Club that by
execution of this Agreement the license, easement, rights and privileges herein
extended severally and jointly to each Phase are fully and completely vested and
established and further that the provision of this paragraph shall expressly survive
any termination of this Agreement.
A copy of the 1995 Amendment is attached as Exhibit B-3.
34.

The Jockey Club Owner did not provide timely written notice as required in the

above paragraph in order to eliminate any of rights and privileges that had previously vested.
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Therefore the rights to the existing tennis courts expressly included as part of the Common
Area granted in the 1995Agreement are vested for the full 99-year lease term. Among other
flaws, APEIRONS proposal, as depicted in the Zoning Hearing Application, would replace a
portion of the existing tennis courts with their development violating JOCKEY CLUB I and
JOCKEY CLUB IIs vested rights.
35.

In addition, the 1995 Agreement references the 1977 Agreement and states that,

except as modified, the 1977 Agreement shall remain unaffected by this [1995] Agreement and
shall remain in full force and effect and shall to the extent provided by their terms survive any
termination or expiration of this Agreement. See Exhibit B-1, Article X(1).
36.

Paragraph 4 of the 1977 Agreement has never been modified as to the portions of

the Jockey Club Property that APEIRON seeks to develop.2

37.

Article X(6) of the 1995 Agreement references the possibility of a 50-room hotel

facility being built in the future on Jockey Club Property, requiring the agreement of JOCKEY
CLUB I, JOCKEY CLUB II, and JOCKEY CLUB III. See Exhibit B-1, Article X(6).
38.

Buildings I and II do not support the development of a hotel of any size on the

Jockey Club Property.

39.

There is no reference to future development of residential buildings on Jockey

Club Property in the 1995 Agreement. See Exhibit B-1, generally.

40.

Buildings I and II do not support the development of any residential buildings on

the Jockey Club Property.

Paragraph 3 of the 1977 Agreement was removed as part of a settlement agreement in 1980
regarding the construction of Phase III.
2

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Apeirons Purchase of the Common Areas and Proposed Development Plans

41.

In or around July 2014, APEIRON purchased the Common Areas of the Jockey

Club Property from Jockey Segal, LLC, a successor in interest to the Original Developer.
42.

APEIRON was on notice of the restrictive covenants and easements running with

the land, embodied in the 1977 Agreement and 1995 Agreement, both recorded documents, as
set forth above.
43.

Following its purchase, and notwithstanding the agreements of record and the

distinct prohibitions contained therein, APEIRON has moved forward with the initial stages of
its plans to construct two new residential buildings on Jockey Club Property.
44.

On August 14, 2015, APEIRON, through counsel, submitted a Letter of Intent and

a Zoning Hearing Application to Miami-Dade County Department of Regulatory and Economic

Resources.
45.

In APEIRONs letter of intent, APEIRON references development of two

residential buildings that house 240 condominium units and 90 hotel rooms as depicted on a site
plan prepared by ADD Inc./Stantec dated August 5, 2015. A copy of the August 14, 2015 Letter
of Intent is attached as Exhibit C.
46.

APEIRONs letter of intent and Zoning Hearing Application (Zoning

Application) seek modification of Resolution No. 4-ZAB-12-79 and the site plan prepared by
Gee Martinez Architects and Stuart Cohen dated September 5, 1978, which depict the existing
Jockey Club Community that consists of only three condominium buildings. See Exhibit C and
Zoning Hearing Application attached as Exhibit D.
47.

APEIRONs letter of intent acknowledges that its request will require extensive

staff research and analysis to identify the legal and procedural requisites, including necessary
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joinders See Exhibit C.

48.

APEIRON has taken the erroneous position that only JOCKEY CLUB III needs

to join in its application.

49.

However, JOCKEY CLUB I and JOCKEY CLUB II represent the majority of

residents who are directly impacted by the Zoning Application and proposed site plan.
50.

Because the property described in APEIRONs Zoning Application and proposed

site plan, attached as Exhibit D, includes property owned or controlled by JOCKEY CLUB I and
JOCKEY CLUB II, as well as property burdened by easements and restrictions running in favor
of JOCKEY CLUB I and JOCKEY CLUB II, their joinder is required if APEIRON is to move
forward under its current plan.
51.

Without JOCKEY CLUB I and JOCKEY CLUB IIs consent to include these

properties and easements in its proposed plan, which does not exist, and without any authority to
improve them, APEIRON must remove these portions of the Jockey Club Property from its
proposed development plan.
52.

APEIRONs proposed plan also includes residential development in areas where

the proposed uses or development are prohibited by the 1977 Agreement.

53.

In addition to the above, JOCKEY CLUB I and JOCKEY CLUB II may have also

acquired certain property rights through adverse possession and/or prescription for portions of
the Jockey Club Property APEIRON wishes to develop including, but not limited to, property
used for access and/or parking.
54.

Buildings I and II and its residents will also be irreparably injured by any further

development on the Jockey Club Property as any additional development will result in, among
other things, excess density, traffic, construction, reduced parking, hindered access to their
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homes, and an overall disruption to their quality of life, which each unit owner bargained for
when it purchased their respective units.
55.

JOCKEY CLUB I and JOCKEY CLUB II have advised the County of their

concern regarding APEIRONs Zoning Application and proposed site plan. A copy of a letter
from Tony Recio, Esq. of Weiss Serota Helfman Cole & Bierman, PL to Nathan Kogon dated
February 1, 2016 is attached as Exhibit E.
56.

In order to purchase JOCKEY CLUB IIIs complicity in this illegal and improper

development scheme, APEIRON and JOCKEY CLUB III have entered into an agreement
whereby APEIRON will pay JOCKEY CLUB III approximately $10 million for their support of
its current plan. A copy of an October 26, 2015 letter from the President of JOCKEY CLUB III
to owners of Building III, along with proposed Deal Points, is attached as Exhibit F.
57.

APEIRON has reached out to JOCKEY CLUB I and JOCKEY CLUB II in a

similar fashion to buy their support, but such offers have been soundly rejected.
58.

For example, on January 8, 2016, APEIRON sent a letter directly to owners in

Building I in an effort to force their hand in accepting APEIRONs one and only proposal. By
the very nature of APEIRONs letter, APEIRON recognizes it needs property controlled by
JOCKEY CLUB I, as well as their support, before it can move forward with its proposed plan.
A copy of the January 8, 2016 letter is attached as Exhibit G.
59.

Buildings I and II have employed the undersigned counsel to represent them in

these proceedings and have agreed to pay their reasonable fees and costs incurred.
60.

Buildings I and II are entitled to their reasonable attorneys fees and costs

pursuant to Paragraph 6 of the 1977 Agreement and Article XIII(7)(c) of the 1995 Agreement.

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COUNT I: DECLARATORY RELIEF

61.

Buildings I and II re-allege and incorporate paragraphs 1-60 above as if fully set

forth herein.
62.

Buildings I and II seek declaratory relief pursuant to Chapter 86, Florida Statutes.

63.

The 1977 Agreement, the 1995 Agreement, and the Easement Agreement are

covenants running with the land.

64.

Buildings I and II are uncertain about the nature of the unit owners rights, with

respect to the proposed development by APEIRON on their properties as well as easements

running in their favor and easements potentially acquired through adverse possession and/or
prescription.
65.

Buildings I and II contend, but APEIRON denies, that APEIRON is prohibited

from any further residential development on Jockey Club Property, including the property it
purchased in 2014, including but not limited to the current plan it has filed with Miami-Dade
County.
66.

Buildings I and II contend, but APEIRON denies, that this obligation arises from

the express terms of Paragraphs 4 and 12 of the 1977 Agreement, which have never been
released, waived, modified, or abrogated.
67.

Buildings I and II contend, but APEIRON denies, that APEIRON must obtain the

consent and approval of JOCKEY CLUB I and JOCKEY CLUB II before it can move forward
with its Zoning Application and proposed site plan.
68.

Buildings I and II contend, but APEIRON denies, that this obligation arises from

the fact that APEIRONs proposed site plan includes development on property controlled by
JOCKEY CLUB I and JOCKEY CLUB II, property burdened by easements and restrictions
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running in favor of JOCKEY CLUB I and JOCKEY CLUB II, and property potentially acquired
by JOCKEY CLUB I and JOCKEY CLUB II through adverse possession and/or prescription.
69.

APEIRON contends, but Buildings I and II deny, that its Zoning Application and

proposed site plan only requires the joinder and consent of JOCKEY CLUB III.
70.

As a result of APEIRONs contentions, it plans to build two new residential

buildings in contravention of the terms of the 1977 Agreement and the property rights of
JOCKEY CLUB I and JOCKEY CLUB II.
71.

There is a bona fide, actual, present and practical need for a declaration from the

Court.
WHEREFORE, Buildings I and II respectfully request that the Court declare the rights
and obligations of the parties, as follows:
a. that the 1977 Agreement, the 1995 Agreement, and the Easement Agreement
are covenants running with the land which are binding on APEIRON;
b. that the 1977 Agreement prohibits the development of any future residential
buildings on property owned by APEIRON without Plaintiffs consent and
permission, which has not been given;
c. that APEIRONs proposed site plan includes development on property
controlled by JOCKEY CLUB I and JOCKEY CLUB II, property burdened
by easements and restrictions running in favor of JOCKEY CLUB I and
JOCKEY CLUB II, and property potentially acquired by JOCKEY CLUB I
and JOCKEY CLUB II through adverse possession and/or prescription;
d. that APEIRONs proposed site plan requires the joinder and consent of
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JOCKEY CLUB I and JOCKEY CLUB II;

e. that short of any such joinder and consent of JOCKEY CLUB I and JOCKEY
CLUB II, the current development plan of APEIRON may not proceed
forward;
f. that the Court afford supplemental injunctive relief as is necessary and proper
to accomplish the foregoing, and finally,
g. award Plaintiffs their reasonable attorneys fees and costs pursuant to
Paragraph 6 of the 1977 Agreement and Article XIII(7)(c) of the 1995
Agreement.
COUNT II: PERMANENT INJUNCTION
72.

Buildings I and II re-allege and incorporate paragraphs 1 through 60 as if fully set

forth herein.
73.

This is an action for permanent injunctive relief to enforce the restrictive

covenants and easements that run with the land set forth in Article I of each of the Declarations
of Condominium for JOCKEY CLUB I and JOCKEY CLUB II, the 1977 Agreement, the 1995
Agreement, and in the Easement Agreement, as well as any property rights acquired by JOCKEY
CLUB I and JOCKEY CLUB II through adverse possession and/or prescription.
74.

APEIRON had notice of the restrictive covenants and easements and are subject

to them.
75.

The restrictive covenant contained in the 1977 Agreement prohibits any further

residential development on Jockey Club Property without the consent of JOCKEY CLUB II.
76.

APEIRONs proposed site plan constitutes a breach of the restrictive covenant

contained in the 1977 Agreement.

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77.

JOCKEY CLUB II has a clear legal right to enforce the restrictive covenant

because they are a party to the 1977 Agreement. As a successor in interest to the Original
Developer, APEIRON is bound by the terms of the 1977 Agreement.
78.

Further, Paragraph 7 of the 1977 Agreement provides as follows:

Club [APEIRON] agrees that there shall be no limitation in the type of legal
action or remedies available to Condominium [JOCKEY CLUB II] in the event
Club should breach this agreement. By way of illustration and not limitation,
Condominium shall be entitled to seek injunctive relief (where deemed
appropriate by the Court) as well as damages occasioned by any breach.
See Exhibit A, 7.
79.

Should APEIRON proceed with residential development on Jockey Club

Property, JOCKEY CLUB I and JOCKEY CLUB II will suffer irreparable injury.
80.

Furthermore, APEIRONs proposed site plan includes development on property

controlled by Buildings I and II.

81.

Finally, APEIRONs proposed site plan includes development on property

burdened by easements running in favor of Buildings I and II, which includes, but is not limited
to, the following:
a. a nonexclusive right to use and a non-exclusive easement of enjoyment in and to
the Common Areas;
b. an easement of ingress, egress and access to and from the Common Areas and the
improvements located thereon;
c. a perpetual non-exclusive easement in, on, over, under, across and through the
Pool Easement Area; and
d. any other easement acquired through adverse possession and/or prescription
including, but not limited to, property used for access and/or parking.
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82.

Buildings I and II have a clear legal right to enforce the easements arising from

Article I of each buildings Declaration of Condominium, and because they are parties to the
1995 Agreement and the Easement Agreement, which preserved the easements for the future. As
a successor in interest to the Original Developer, APEIRON, is bound by the terms of the 1995
Agreement and the Easement Agreement.
83.

APEIRONs proposed plan depicts improvement on the property controlled by

Buildings I and II as well as the property burdened by easements running in favor of Buildings I
and II inconsistent with their established uses, ownership, and restrictions of record.
84.

Should APEIRON proceed with residential development on these properties,

JOCKEY CLUB I and JOCKEY CLUB II will suffer irreparable injury.

85.

Further residential development by APEIRON on Jockey Club Property, as well

as property controlled by Buildings I and II and burdened by easements running in favor of

Buildings I and II (either acquired through the 1995 Agreement, the Easement Agreement, or by
way of adverse possession and/or prescription), will greatly diminish the quality of life for the
owners in Buildings I and II, and it will deprive them of their established rights, many of which
are the consequence of prior arms-length compromise and agreements negotiated and executed in
good faith.
86.

Buildings I and II have no adequate legal remedy and injunctive relief is

appropriate.
WHEREFORE, JOCKEY CLUB I and JOCKEY CLUB II request that the Court:
(a) grant permanent injunctive relief by issuing an order preventing APEIRON from
developing additional residential buildings on the Jockey Club Property without the permission
of Buildings I and II;
17
HELLER WALDMAN P.L.
3250 MARY STREET, SUITE 102 COCONUT GROVE, FLORIDA 33133
{00194437.DOCX }

(b) require APEIRON, to the extent that they can develop anything on the Jockey Club
Property, to make sure that the development is not on property controlled by Buildings I and II
and/or burdened by easements running in their favor;
(c) awarding Buildings I and II their reasonable attorneys fees and costs pursuant to
Paragraph 6 of the 1977 Agreement and Article XIII(7)(c) of the 1995 Agreement;
(d) and for such further relief the Court deems proper.
Signed on this 9th day of March, 2016.
Respectfully Submitted,
HELLER WALDMAN, P.L.
3250 Mary Street, Suite 102
Coconut Grove, Florida 33133
Telephone: (305) 448-4144

WEISS SEROTA HELFMAN COLE &

BIERMAN, P.L.
2525 Ponce de Leon Boulevard, Suite 700
Coral Gables, Florida 33134
Telephone: (305) 854-0800

By:

By:

/s/Glen H. Waldman
Glen H. Waldman, Esq.
Fla. Bar No. 618624
Jeffrey R. Lam, Esq.
Fla. Bar No. 41323
liteservice@hellerwaldman.com
Co-Counsel for Plaintiffs

/s/ Stephen Helfman

Stephen Helfman, Esq.
Fla. Bar No. 357601
shelfman@wsh-law.com
Alejandro Uribe Sevilla-Sacasa, Esq.
Fla. Bar No. 105616
auribe@wsh-law.com
Co-Counsel for Plaintiffs

18
HELLER WALDMAN P.L.
3250 MARY STREET, SUITE 102 COCONUT GROVE, FLORIDA 33133
{00194437.DOCX }

Exhibit A

Exhibit B-1

Exhibit B-2

Exhibit B-3

Exhibit C

Exhibit D

Exhibit E

JOCKEY CLUB III ASSOCIATI10N, INC.

11111 Biscayne Blvd. Phase HI
Miami} FL 33181
Oct ber 26, 2015

Dear Fellow Unit Owners,

As many of you know, after a year and half of negotiations with APeiro~ Development,
the Board presented at its October 13,2015 meeting (the draft minutes of which are
attached hereto) a proposed agreement with Apeiron. In exchange for our
Association's support for their application to the Zoning Board for a modification of
the original Jockey Club site plan to permit development of two new 120 unit
condominium buildings plus a 4 star, 90 room hotel, marina and other ancillary
facilities, Apeiron will pay Jockey Club III ("JCIII") $10,000,000 plus other substantial
benefits. The monies are earned at the end of the appeal period for the zoning
approvals and are paid out as noted on the attached Bullet Point presentation.
During the administration of our previous Board President, Marilyn Burns, the Board
was authorized to negotiate a deal with Apeiron, provided that Apeiron agreed to
cover all our legal and other costs associated with the negotiations. Aperion
understood that to be successful in gaining our support, they needed the approval of
75% of our unit owners.
Apeiron has been paying our costs and legal expenses for our attorneys. We hired
Tom Robertson of the law firm of Bercow, Radell & Fernandez who specialize in land
use and zoning issues and our real estate and Association attorney Barry Blaxberg to
handle the transaction. We needed to make sure that JCIII Unit owners' rights are
protected. Aperion and their lawyers could not move forward with any development
without our consent to modify the Jockey Club site plan, because of a Declaration of
Restrictive Covenants. Negotiations were at times very difficult over the last year and
half but we are pleased to say that the result is a mutually beneficial Agreement which
has been finalized and executed. The developer has placed a required $3,000,000
cash deposit in escrow pending the outcome of our unit owner vote. Your Board feels
that there are compelling reasons for our Association to support Apeiron's proposed
development.

Exhibit F

What are these compelling reasons to vote for the agreement an

development?

the planned

The attached Bullet Point Presentation prepared by our Attorne

outlines the
benefits and monetary compensation our Building will receive. We rge each unit
owner to review this attachment and feel free to contact me at 305- 02-9557, any
Member of the Board or our Manager Juan Aluma with any questions ny unit owner
might have.
Understand that there are two site plans presented. The only diff rence in them
relates to Apeiron's location of a parking facility near the Jockey Club Building 1.
Apeiron had to present alternatives in case they cannot make a deal with Building 1,
but it should not change the location of the new building that Apeiron will construct
in that location, and your vote would be to approve either alternative plan. We do not
control which plan Apeiron will be able to conclude, though either one should be
acceptable. Both site plan alternatives are available for your review at the Jockey Club
III website and are displayed in our lobby.
Except as may be required by governmental agencies, no fuh:her material
modification of these proposed Site Plans are permitted except fdr reduction of
density (the number of units built), without the approval of our Board./ The developer
will post the remaining $7,000,000 with a letter of credit within 30 days of the public
hearing.
In meeting with some long-term residents, I have often heard 'We have been down
this road before with potential developers and nothing ever occurs." These concerns
did not fall on deaf ears. We felt that our Building should be compensated for our
agreement to support the Developer's project whether the project proceeded or not.
We focused instead on being compensated not based on the success of the overall
project but rather on whether or not Apeiron was successful in gaining zoning board
approval whether or not the project was ever built while also restricting any future
changes and maintaining our rights as modified.
In addition to the monetary payment proposed under the Agreement with Apeiron
our Association will benefit by Apeiron taking on the obligation to redesign,
reconstruct and maintain the top floor of our garage as shown on the site plans. The
two tennis courts on top of the garage will remain for the exclusive use for JCIII
residents.

We also negotiated benefits for getting the minimum of '7S% vote from our unit
owners and our support of Apeiron's governmental approvals, re ardless of the
outcome of approval or denial by the Zoning Board of the proposed de lopment. The
benefits include:
1) Repair of the seawall in front of the JCIIIpool within 12 month, by Apeiron.
2) Provide JCIII a permanent and exclusive use right and easeme t to Jockey III
pool and Jacuzzi area. Currently JCIIIonly has an easement on he Jacuzzi.
3) No development to occur in the future above the [Cll! garage. Apeiron owns
the air rights)
4) Pay for all expenses incurred by Jockey III for all related Ap iron legal and
consultant work.
S) Agree to a Shared Facilities agreement, assuring JCIII that JCIII sts associated
with maintaining what is commonly referred to as th Maintenance
Association for the property Apeiron owns will not increase more than 2% of
the 2015 costs currently being expended.
These benefits put our Association in a better position financially and rotect us from
unwanted, potential development above our garage, and stand alone s good reasons
to vote in favor of this Agreement, even if the money and the project never
materializes.
No one can predict what will happen at the Zoning Board meeting. However, if
Aperion is successful with JCIIIsupport in their governmental approval request, then
JCIII has earned $10,000,000 payable as noted on the Bullet Point Presentation
enclosure and will be relieved of various expenditures that will be forthcoming with
the sea wall, garage and future Maintenance Association costs.
The $10,000,000.00 settlement award will be fully secured by $3,000,000 dollars put
into escrow upon execution of this Agreement. Then within 30 days of the final
Apeiron Site Plan Approval, Apeiron will procure a non-revocable letter of credit in
favor of JCIII in favor of JCIII as security for the payment of the remaining
$7,000,000.00 dollars.
Other benefits of the development include moving the entrance gate further east,
security fencing around the entire property, providing an exit gate at the end of our
property into 111 Street as well as another entrance and exit along 111 into Phase II
of the developers plans, and the upgrade and renovation of the sewer lift stations,
driveways, entrance, landscaping of the shared facilities, dog walks and park, trees
and bamboo screening on the south side of our building, an upgrade of the children's
playing area and rule and regulations to protect our building from nuisance and noise
from the hotel and marina.

With these funds our Association would potentially be able to avoid special
assessments, loans or other fundraising sources to pay the necessary deferred
maintenance costs necessary to maintain the interior and exterior M the building,
including those items required to meet Code for the 40th year building recertification.
A majority of required improvements and modifications to our bu
require a 75% vote of the unit owners for building upgrades whic
hurricane windows and balcony enhancements, refurbishing the lobb
security system improvements, gym and pool upgrades. These proje
that would be presented to unit owners for consideration and approv

Iding will also

could include
and hallways,
ts are all items
I,in the future.

The Board has been working on an overall master plan for building improvements
and budget projections to outline such projects and their potential costs breaking
them down between "Building Needs" and "Desires". We tell you this, so you are in a
better position to evaluate the value of a deal with Apeiron.
Most importantly a ballot to register your vote in favor or opposition will be
sent to you during the week of October 26. We request completed ballots be
submitted to the Association office with your vote by the proposed November
16 meeting. All Members of the Board as well as our Manager are eager to
answer any of your questions. Mycell phone number is 305-302-9557. Please
vote as this is very important for the future of our buinding and lin my opinion
for the Jockey Club as a whole. Don't forget to submit your voting certificates
too, ifyou have not filed them with the Association, so we can be sure about who
is authorized to vote your ballot.

Warm Regards on behalf of The Board of Directors,

Spottswood Dudley,
President
Jockey Club III Association, Inc.

DEAL POINTS: JOCKEY CLUB m ASSOCIATION, INC. ("JOCkly III") AND

APEmON MIAMI, LLC ("APEmON")
UNCONDITIONAL

OBLIGATIONS OF APEIRON:

Repair seawall by pool within 12 months

Provide permanent exclusive use rights and easement for Jockey III p 01

No development above Jockey III garage structure

Jockey III legal fees and costs paid for all Apeiron related work

CONTINGENT OBLIGATION (contingent on County approval of new site

$10,000,000 payable to Jockey III with: (a) $3,000,000 in escro upon signing; (b)
$7,000,000 Letter of Credit 30 days prior to zoning hearing to approve site plan with
$3,000,000 paid to Jockey III Site Plan approval; (c) $3,000,000 paid on closing for sale
of first new condo unit or 36 months after Site Plan approval, whichever is first; (d)
$4,000,000 paid on filing of notice of commencement of construe .on of second new
building, or 48 months after Site Plan approval, whichever is first and whether or not
development ever built

No future site plan changes without Jockey ill approval

Due On Sale: If foreclosure, deed in lieu or sale of any part of Apeiron property occurs,
total remaining unpaid sum is payable

New construction (buildings, hotel) to be bonded jobs

Hotel to be minimum 4-star

Condominium units to be sold at no less than $350 per square foot; one year lease
minimum; no right of owner to lease 1st year. Jockey ITI gets 10 day advance notice for
"friends and family" sales

Marine rules to establish "first class marina", controls noise and nuisances; Jockey III unit
owner access to lease boat slips

Jockey lIT garage - existing top floor structural failures - reconstruction at Apeiron
expense, with gardens, walkways, seating areas; Apeiron maintains it; rebuilt tennis courts
for exclusive Jockey ill use

Apeiron, with recorded covenants ultimately to operate gatehouse, roadways, Shared

Facilities and Jockey III expense obligations capped at 2015 guaranteed levels

60014IIBB/aa/2615-1

Controlled exit onto III Street for Jockey III is planned if County app oval

Dog parks and dog walks - expanded, dedicated use

Green vinyl fence on perimeter of entire property

Upgrade and renovate all sewer lift stations, landscaping and irrigatio

Children's playground to have rubber chips

South side trees replaced

$5,000 per month cleaning expense allowance paid to Jockey III d

they provide a car cover and HV AC filters

Liability Insurance required at all times

. g construction and

In addition to County approval, agreement must be approved by 75% of Jock y III unit owners.

60014/IBB/aa/26IS-1

APEIRON
January 8, 2016

Dear Jockey Club I Unit Owner,

My name is Muayad Abbas and I am a principal and founding partner with Apeiron
Holdings, LLC. I am sending you this letter to introduce both myself and our company,
which in 2014 acquired the common area and marina at the Jockey Club with the full intent
of developing and improving the property. By way of this letter, I also wish to present you
with our vision for Apeiron at the Jockey Club and the benefits that the project will bring to
the broader Jockey Club community, as well as to your building. First, though, I'd like to
tell you about our team, which brings an incredible depth of experience and a lengthy track
record of successful developments to our planned work at the Jockey Club.
The Apeiron Team
My primary partners in the Apeiron development are Horst Schulze and Michael Miner,
world-renowned hospitality and development icons who through decades of hard work
and innovation have earned their place at the top of their professional fields. Horst
Schulze is an ideal partner for Apeiron at the Jockey Club and has dedicated nearly his
entire life to luxury hospitality. In fact, he was a co-founder of the world-renowned RitzCarlton Group and also served as its President. Most recently, he founded and currently
leads the Capella Hotel Group, which consists of ultra-luxury hotel properties from
Singapore to Mexico.

Like Horst, Michael Bedner is also an ideal partner, as he brings an unmatched level of
experience and professional credentials to Apeiron at the Jockey Club. Michael is former
Chairman of Hirsch Bedner I HBA International, which is now the world's largest
hospitality design firm. Michael co-founded the firm back in 1965 and grew it from a small,
California-based design shop into a global powerhouse with offices from London to Hong
Kong and a portfolio of premier hospitality clients spanning every region of the globe. The
interior design expertise that Michael has honed over the past half-century will no doubt
make its mark on Apeiron at the Jockey Club.
My own professional work is centered on real estate development, with additional
experience in planning and architecture. Before founding Urbanis Advisors, a real estate
development-focused consultancy, I served as Vice President of Related International, the
Related Group's international arm. In that capacity, I led the company's operations in
Panama, Colombia and Argentina, and guided the development of mixed-use projects
valued at more than $750 million. I have also done extensive private development work in
the Middle East, and gained valuable experience in architecture and town planning with
Duany Plater-Zyberk. Beyond these professional pursuits, I am proud to serve as an adjunct
professor at the University of Miami.
Together, Horst, Michael and I are confident that we will deliver a wonderful, first-class
addition to the Jockey Club property that you call home.

wwwapeironliving.com

tel. 305-746-4003 fax 305-503-9335 350 Lincoln Road, 2nd Floor, Miami Beach, Florida 33139

Exhibit G

Project Partners
In order to accomplish our goal, Apeiron has assembled a group of world-class
professionals to ensure that every facet of our project is done to the highest standards and
reflects positively on the entire Jockey Club community. After all, it is in our best interest to
be good neighbors to you and all Jockey Club residents, and that's precisely what we
endeavor to do.
Our project team features renowned Spanish architect Rafael Moneo, who has earned
international acclaim for his building designs, which include cathedrals, high-rises,
museums and prominent government buildings across the globe. Moneo's work is so well
regarded that it earned him one of architecture's highest honors, the Pritzker Prize, which is
often referred to as the Nobel Prize of architecture. We're honored that he will be bringing
his high-caliber design sense to Apeiron at the Jockey Club.
Laurie Olin, one of America's foremost landscape architects, is also part of our team and
will help to beautify the green spaces in and around Apeiron at the Jockey Club. Along with
leading his own award-winning landscape architecture firm, he serves as Practice Professor
of Landscape Architecture at the University of Pennsylvania and previously chaired
Harvard University's landscape architecture program.
On the construction side, John Moriarty & Associates, one of the most respected
construction firms on the U.S. East Coast, will help make our vision a reality with their
proven approach to building. Moriarty is currently concluding the successful construction
of the $1 billion Brickell City Center project.
Lastly, the Apeiron team has already begun to secure financing for the project, partnering
with viable, respected lending partners. In mid-December, Toronto-based mortgage lender
Romspen committed $21 million in financing for pre-construction work on the project.
Romspen Investment Corporation manages one of the largest non-bank commercial lending
platforms in Canada. The company oversees a real estate mortgage portfolio exceeding $1.5
billion in value and has a 49-year track record of smart lending.
Community Enhancements
Our team's shared vision for Apeiron at the Jockey Club includes a complete upgrade of the
property's common areas, beginning at the entrance along Biscayne Boulevard and
extending back to the marina on Biscayne Bay. Planned improvements to the Jockey Club
grounds to be enjoyed by all Jockey Club residents include:

new tennis courts

walking paths
gardens
a dog park
a promenade along the Bay
and a new playground

Again, we intend to be good neighbors and are working hard to ensure that we keep that
promise.
Project Details
The new Apeiron at the Jockey Club development will consist of two primary structures
(see attached rendering). The first is a tower that will house 120 condominium residences

and a 90-room hotel that will also service the residences. I'm pleased to inform you that
this tower will also include a restaurant, bar, spa, and other services that will be
available for use by you and all Jockey Club residents.
Apeiron's business model centers on a holistic approach to luxury concierge living which
encompasses residences that are serviced by a 5-star hotel. The results of this model are
dynamic, inspired, community-rich, mixed-use developments that integrate arts and culture,
world-class cuisine and unparalleled service, together with superb amenities to ensure
maximum health, wellness and youth preservation. Our primary markets typically include
affluent +55-year-old empty nesters that want to downsize from their large homes into
spacious 2-3 bedroom state-of-the-art residences.
Jockey Club I Offer
In our efforts to be open and share our project plans with all Jockey Club residents, the
Apeiron team has conducted numerous meetings with HOA leadership from all three Jockey
Club buildings in fact, we have made changes to our plans to accommodate their wishes.
As you may know, following extensive meetings with Jockey Club III, a mutually
beneficial agreement has been reached. Unfortunately, and for reasons we don't understand,
your board at Jockey Club I has declined our repeated requests to sit down and discuss the
best way to move forward in a way that will benefit your building and our project.
Last year, we prepared an offer to Jockey Club I that we subsequently shared with your
board on three separate occasions: August 21st, September 10th and November 30th. To our
disappointment, we have not been able to present that offer directly to you, the Jockey Club
I unit owners, as is our desire. What's equally puzzling for us is that, like Jockey Club I, we
have been working diligently to resolve the ongoing matter of the parking lot. But rather
than handling this issue in a coordinated manner with Jockey Club I as we would like to do,
your board has not responded to our many requests to sit down and work together to
overcome this ongoing problem.
Therefore, and following multiple failed attempts to arrange a meeting with your board
president, Pedro Crescente, and the members of the board, and in the spirit of transparency
and in good faith, we have determined that it is best to reach out directly to you, the unit
owner, to ensure that you are aware of our plans. We have absolutely zero interest in
intimidating our neighbors or threatening your quality of life. On the contrary, and rather
than paying attorneys to litigate a solution, our interest is in expending our resources to
improve the property.
While our offer to Jockey Club I was declined by the board, there will still be significant
benefits to you, primarily the savings in monthly maintenance costs that will be realized
once we assume control of the common area or the savings that will be realized once fees
are divided among five buildings (including the two Apeiron buildings), rather than the
current three Jockey Club buildings. Additionally, we are going to take other measures to
ensure that construction impacts are mitigated and that a high quality of development is
delivered. The enclosed summary outlines those benefits in detail.
We are planning a "meet and greet" for you and all Jockey Club I unit owners to fully and
transparently address any questions you may have. All three project principals Horst,
Michael and myself will be in attendance and further information on the meeting will be
sent shortly under separate cover. We hope that this gathering will allay any concerns that
you might have.

It is important to inform you that we have already obtained approvals from Jockey Club
III's board and more than 80% of their unit owners to release the current restrictive
covenant, which will allow us to develop the Apeiron project. Once again, our sincere hope
is to work collaboratively with Jockey Club I and to the benefit of both parties.
In closing, I'd like to reiterate the entire Apeiron team's commitment to delivering a firstclass project, to being good neighbors and to improving the broader Jockey Club property. I
am available to answer any questions that you may have and look forward to meeting you in
person. We are very excited about the Apeiron development and look forward to bringing
the Jockey Club back to its glory days.
Sincerely yours,

Muaya9bbas

Outline of Benefits to Jockey I

than the one that is
Apeiron will construct a new swimming pool that is as big or larger
currently used by your building, updated with the latest equipment and technology, and
provide an exclusive use easement for Jockey I.
operation,
Apeiron will provide a Construction Management Plan that addresses hours of
ingress/egress, staging, phasing, and other matters related to construction. Such Plan will
include:
Provision at no cost to Jockey Club I owners of air conditioning filters, vehicle
protective covers, etc. to minimize any adverse impacts of construction
Provision for unfettered access for your residents by having construction vehicles
access the property through the Lear property located to the north.
Provision for a time frame for the restoration of utilities or any other services which
may be interrupted during construction
Apeiron will enter into a shared facilities agreement with Jockey I to define the extent of
amenities and maintenance fees that Jockey I should be paying for. Maintenance fees
shall be capped at their current 2015 amounts, to be adjusted and reduced, if applicable
by the scope of the shared facilities and by increased revenues from ownership of new
units.