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HomeMy WebLinkAboutR-96-0076Wil J-96-90 1/10/96 RESOLUTION NO. 9 6 - 76 I A RESOLUTION, WITH ATTACHMENT(S), AUTHORIZING THE CITY ATTORNEY TO ENTER INTO A STIPULATED SETTLEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH CELEBRATION EXCURSIONS OF MIAMI, INC., TO RESOLVE PENDING LITIGATION PROCEEDINGS, WITHOUT ADMISSION OF LIABILITY, IN FULL AND COMPLETE SETTLEMENT OF ANY AND ALL CLAIMS AND DEMANDS AGAINST THE CITY OF MIAMI, IN CIRCUIT COURT CASE NO. 95-02485 CA 13. WHEREAS, Celebration Excursions of Miami, Inc., through its attorney, filed a claim and lawsuit against the City of Miami, in the Circuit Court of the 11th Judicial Circuit, Case No. 95-02485-CA 13, for a writ of mandamus to force the City to issue it a Mooring and Dockage Agreement for dockage space along the "South Quayside Wall" within Miamarina, declaratory judgment, and damages for alleged conspiracy with Rouse -Miami, Inc.; and WHEREAS, the above claim and lawsuit have been investigated by the Department of Conferences and Conventions, and said Department recommends that said claim and lawsuit be settled by #, stipulated settlement, in substantially the form attached hereto, granting Celebration Cruises a three (3) year Mooring and Dockage j Agreement for a slip along the "South Quayside Wall' Miamarina, with certain conditions; i at 1 f NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY ATTACHMENT (S){ I CONTAINED :CITY CO.M USSION MEETING OF JA N 2 5 1936 4 Resolution No. + 96- 76 Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The City Attorney is hereby authorized to enter into a Stipulated Settlement, in substantially the attached form, with CELEBRATION EXCURSIONS OF MIAMI, INC., to fully and completely resolve pending litigation proceedings, without admission of liability in full and complete settlement of any and all claims and demands against the City of Miami, which were asserted, or could be asserted, in Circuit Court Case No. 95-02485 CA 13. Section 3. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 25th da of January 1996 i t i ATTEST: WALTER J. , CITY CLERK RISK MANAGEMENT REVIEW: FRI K . ROLLASON, DEPUTY CHIEF CHIEF OF RISK MANAGEMENT PREPARED AND PPROVED BY: N F564/ BITTNER TANT CITY ATTORNEY WB/BSS - 2 - a S PHEN P. CLAR , MAYOR APPROVED AS TO FORM AND CORRECTNESS: A. QU J ; III CITY ATTO ,Y 96- 76 0 IN THE CIRCUIT COURT OF THE IITH JUDICIAL CIRCUIT, IN AND FOR DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 95-02485 CA 13 CELEBRATION EXCURSIONS OF MIAMI, INC., a Florida Corporation, Petitioner, STIPULATED SETTLEMENT AND AGREED ORDER vs. THE CITY OF MIAMI, a municipal corporation, ROUSE-MIAMI, INC., a Florida corporation, and PIER 5 BOATMEN'S ASSOCIATION, INC., a Florida corporation, MGA ENTER- TAINMENT, INC., a Florida corporation, THE SCHOONER HERITAGE OF MIAMI, INC., a Florida corporation, ISLAND QUEEN SIGHTSEEING TOURS, INC., a Florida corporation, and BAYSIDE CRUISES, INC., a Florida corporation, as their interests may appear, Respondents. STIPULATION WHEREAS, the parties, recognizing the uncertainty of litigation proceedings, and without the admission of fault or liability on the part of any party hereto, are desirous of amicably settling the differences between them, without the necessity of further cost, expense and attorneys fees; NOW THEREFORE, Petitioner, CELEBRATION EXCURSIONS OF MIAMI, INC. ("hereinafter "CELEBRATION'), and the Respondents, the CITY OF MIAMI 96- 76 S'►._ JLATED SETTLEMENT AND AGREED ORDER CASE NO.: 95-02485 CA 13 ("CITY"), and ROUSE-MIAMI, INC. ("ROUSE"), by and through their respective undersigned _attorneys, stipulate to the complete and final settlement of this litigation, including the adequacy of consideration herein, on the following terms: 1. The "date" of this STIPULATED SETTLEMENT shall be the date it is approved and entered as an Order by the Court. 2. A South Quaywall finger pier (hereinafter "finger pier") may be constructed by CELEBRATION at the CITY's Miamarina in accordance with a design approved and signed off by the CITY's Public Works Department, as depicted in the sketch attached hereto as EXHIBIT "A', at the location shown on the Site Plan attached hereto as EXHIBIT "B", which construction shall not delay the site plan approval(s) already in place for the Miamarina Redevelopment (as defined infra). 3. If the finger pier is constructed, CELEBRATION shall directly contract with, and be solely responsible for the payment of the work by a licensed, bonded and insured marine contractor (hereinafter "marine contractor") for the construction of the finger pier. The marine contractor shall waive in writing any rights to a mechanic's or construction lien under Chapter 713 Fla. Stat., or otherwise prior to the commencement of any work. 4. All improvements constructed within the Miamarina shall immediately become the property of the CITY. 5. In the construction of the proposed new finger pier, the CITY shall allow CELEBRATION to use and to relocate the two (2) pilings furthest from the quay wall, located on the East side of the West Viewing Pavilion, which presently exist in the dock -2- 96- 76 S...?ULATED SETTLEMENT AND AGREED ORDER CASE NO.: 45-02485 CA 13 slips adjacent to the new proposed finger pier, and CELEBRATION may use pilings, if any, presently in storage on land at Miamarina, or, if none, CELEBRATION may purchase new pilings. 6. The CITY shall sign -off, as owner, on any permit applications required for construction of said finger pier, but shall have no other duties or obligations with respect to CELEBRATION's obligations to obtain permits prior to the commencement of construction. However, the CITY shall not cause any unreasonable delay in the signing of said permit applications. The finger pier shall not be used until all inspections required by the South Florida Building Code, or otherwise required by law, have been passed. Any water and electric services, including the cost of connection, and costs to bring service to the finger pier, will be paid for by CELEBRATION. 7. The CITY and ROUSE shall allow the marine contractor access to Miamarina and/or Bayside common areas (to the extent necessary) for the purpose of construction of the finger pier. 8. The marine contractor shall have in force and effect at all times during construction comprehensive general liability and property damage insurance in an amount not less than one million dollars ($1,000,000.00) per occurrence, and shall name the "City of Miami" and "Rouse -Miami, Inc." as additional insureds with a waiver of subrogation. Prior to the commencement of any work, a certificate of insurance shall be provided to the CITY and ROUSE. 9. To allow for the safe maneuvering aif the CELEBRATION vessel(s) into and out of its berth at the new finger pier, the CITY shall not initially construct the r Sl1 JLATED SETTLEMENT AND AGREED ORDER CASE NO.: 95-02485 CA 13 planned East-West floating dock (located nearest to the South Quaywall at Miamarina) in such a manna r that it extends Westerly beyond the Eastern side of the Celebration berth located on the East side of the new finger pier. However, after the expiration of the guaranteed term as defined in paragraph 10, and as modified in paragraph 11, CELEBRATION may, within ninety (90) days send a request in writing to the CITY asking that it decide, within ninety (90) days of the CITY's receipt of the request, for justifiable business purposes, whether or not the CITY intends to: (a) extend the length of the East-West floating dock (hereinafter "floating dock") in a Westerly direction, which will require the removal of the new finger pier; or (b) replace the East-West floating dock with a permanent East-West dock (hereinafter "permanent dock"), which will also require the removal of the new finger pier. In the event the CITY's decides that it intends to extend the floating dock or replace the floating dock with a permanent dock, the CITY shall give notice to CELEBRATION of its decision, and the CITY agrees to provide at least fourteen (14) days advance notice (hereinafter the "grace period") to CELEBRATION prior to the time CELEBRATION is requested to vacate the finger pier, and at that time the CITY will offer CELEBRATION a comparable commercial slip if one exists and is available. In the event that CELEBRATION fails to remove its vessel from the finger pier within twenty-four (24) hours after the expiration of the grace period: (a) CELEBRATION shall cease doing any business or operating its vessel within Miamarina; (b) CELEBRATION shall pay the CITY liquidated damages in the amount of $750.00 per day for each day CELEBRATION's vessel remains at the finger pier; and (c) the CITY may physically remove CELEBRATION's vessel(s) from the Miamarina, at the sole cost -4- 96- 76 S , _ ULATED SETTLEMENT AND AGREED ORDER CASE NO.: 95-02485 CA 13 and expense of CELEBRATION. All liquidated damages called for herein shall be immediately. -reduced to final judgment by the Court after notice and a hearing. In the event the CITY clearly and affirmatively decides not to exercise its right to extend the floating dock, or install a permanent dock, and gives notice to CELEBRATION of this decision within said ninety (90) day decision period, this paragraph of this agreement shall terminate and be of no further force or effect as to any party, at which time CELEBRATION's dockage relationship with the CITY shall thereafter be governed solely by the Mooring and Dockage Agreement then in effect until the expiration thereof, and thereafter as it may be renewed or reissued from time to time. In the event, CELEBRATION does not request a decision of the CITY, the CITY may nevertheless make the decision at any time after the expiration of the guaranteed term. 10. The CITY shall enter into a Mooring and Dockage Agreement (hereinafter "M&D Agreement") with CELEBRATION for the berth on the East side of the finger pier. The M&D Agreement shall not be assigned or subleased. The maximum number of vessels which may use the berth shall be two (2). A second vessel may not use the berth unless it already has a separate Mooring and Dockage Agreement with the CITY, which is not otherwise in default, and is paying dockage fees to the CITY for a second berth. Both vessels shall be owned (or leased and operated) by CELEBRATION. The M&D Agreement shall be for a term of one year and shall be reissued for at least an additional two years, for a total guaranteed term of three (3) years (hereinafter the "guaranteed term"). The form of the M&D Agreement shall be,the same form currently used for other Ivessels at Miamarina at the time it is issued or reissued. The dockage rate shall be 96- 76 r f i i 0 S1 u ULATED SETTLEMENT AND AGREED ORDER CASE NO.: 95-02485 CA 13 adjustable unilaterally by the CITY, but at all times equivalent to the dockage rate charged at Miamarina to other vessels of like size and operation, i.e., commercial tour vessels, and which vessels are not otherwise governed by the PIER 5 BOATMEN'S ASSOCIATION SETTLEMENT AGREEMENT (which has a separate fee schedule). 11. CELEBRATION recognizes and understands that its use of the finger pier shall be interrupted by construction of new docks and improvements at M[iamarina (hereinafter "Miamarina Redevelopment"). The necessity for the interruption, and the length of the interruption, shall be in the sole judgment of the CITY (upon notification from the contractor), who shall use its best efforts to minimize the interruption. During the interruption, the CITY agrees that CELEBRATION may operate its vessel from another berth at Miamarina, either inside or on the outside wall under a separate and temporary Mooring and Dockage Agreement (hereinafter "the alternative berth"), if an alternative berth is available in the sole discretion of the CITY, or CELEBRATION may reject the alternative berth and not operate at Miamarina during the period when the finger pier is unavailable. During the time CELEBRATION's use of the finger pier is interrupted and unavailable during construction activities, the M&D Agreement, including the obligation to pay dockage fees and the running of the guaranteed term, shall be suspended. Accordingly, CELEBRATION agrees to vacate the finger pier when notified by the CITY that work shall commence on construction of the Miamarina Redevelopment. In addition, CELEBRATION agrees to cause so much of the finger pier to be removed as is required by the CITY and its contractor in their sole ,discretion during construction of the Miamarina Redevelopment. Upon the completion of construction, CELEBRATION may -6- J6- 76 S'...•ULATED SETTLEMENT AND AGREED ORDER CASE NO.: 95-02455 CA 13 rebuild the finger pier at its sole cost and expense under the same terms and conditions as listed in paragraphs 2 through 8 above. The CITY agrees to provide at least fourteen (14) days advance notice (hereinafter the "grace period") to CELEBRATION to vacate the finger pier and/or remove same. In the event that CELEBRATION fails to remove its vessel and/or the finger pier within twenty-four (24) hours after the expiration of the grace period: (a) CELEBRATION shall cease doing any business or operating its vessel within Miamarina; (b) CELEBRATION shall be prohibited from accessing the landside of the Miamarina and/or Bayside property adjacent to the Miamarina from the finger pier, which the CITY shall be free to physically block; (c) CELEBRATION shall pay the CITY liquidated damages in the amount of $5,000.00 per day for each day CELEBRATION's vessel remains at the finger pier and/or the finger pier is not removed; and (d) after the accrual of 10 days of liquidated damages, the CITY may physically remove CELEBRATION's vessel and/or the finger pier from the Miamarina, at the sole cost and expense of CELEBRATION (which cost and expense shall be immediately taxed by the Court and reduced to final judgment after hearing), without the CITY incurring any civil liability therefore, even if it is alleged that the CITY was negligent. All liquidated damages called for herein shall be immediately reduced to final judgment by the Court after notice and a hearing. Until paid, the liquidated damages accrued as provided herein shall constitute a maritime lien against the CELEBRATION's vessel, the M/V CELEBRATION. 12. The CITY agrees to use its best good faith efforts to plan the Miamarina Redevelopment to minimize the time the finger pier cannot be used by CELEBRATION -7- 96- 76 1i S'i OLATED SETTLEMENT AND AGREED ORDER CASE NO.: 95-02485 CA 13 due to construction of the Miamarina Redevelopment. However, the CITY's good faith in this regard -shall not be subject to Court review, challenge by CELEBRATION, or litigation whatsoever. Likewise, CELEBRATION agrees not to interfere in any way whatsoever with either the planning, actual construction, or the financing of the Miamarina Redevelopment. 13. Upon approval of this STIPULATED SETTLEMENT by the Court, the claims and causes of action asserted, or which could be asserted, by CELEBRATION in this litigation against any of the parties to this litigation are hereby dismissed with prejudice and without costs, and are forever barred. 14. CELEBRATION, the CITY and ROUSE acknowledge that there are no third party beneficiaries to this agreement. 15. CELEBRATION further acknowledges that the CITY, in the future, may impose a cap on the number of commercial tour vessels in Miamarina, but that while CELEBRATION has in effect a Mooring and Dockage Agreement for a slip within 1'vliamarina, CELEBRATION shall be grandfathered. 16. All notices or other communications which shall or may be given pursuant to this STIPULATED SETTLEMENT shall be in writing and shall be delivered by personal service, or by certified mail (return receipt requested) addressed to the other party at the address indicated herein or as the same may be changed from time to time by notice given to the other party. Such notice shall be deemed given on the day on which personally served, or, if by certified mail, on the :third day after posting or the date of actual receipt, whichever is earlier: 96- 76 S'i .. ULATED SETTLEMENT AND AGREED ORDER CASE NO.: 95-02485 CA 13 TO THE CITY: Marinas Manager The City of Miami Dinner Key Marina 3400 Pan American Drive Miami, FL 33133 TO CELEBRATION: Celebration Excursions of Miami, Inc. Attn: Michael A. Dudik 3239 W. Trade Ave. #9 Miami, FL 33133 ' TO ROUSE: c/o The Rouse Company 10275 Little Patuxent Parkway Columbia, Maryland 21044 Attn: General Counsel 17. In the event that it is deemed necessary for any party hereto to file a motion to enforce the terms of this STIPULATED SETTLEMENT, then the prevailing party shall be entitled to reasonable attorney's fees. 18. A waiver of the breach of any of the terms of this STIPULATED SETTLEMENT shall not be construed to be a waiver of any other term or any succeeding breach. 19. The provisions of this STIPULATED SETTLEMENT contain the entire understanding of the parties hereto concerning the subject matter hereof. No modifications, amendment, changes, releases, discharges or waivers of any of the j provisions hereof shall be of any force and effect unless signed in writing by all of the parties hereto. 20. This STIPULATED SETTLEMENT shall be contingent upon the approval of this agreement by Resolution of the City of Miami, City Commission, within sixty (60) days of the date this STIPULATED SETTLEMENT is signed by the attorney for each 1 1 -9- ! 9676 S, _ ULATED SETTLEMENT AND AGREED ORDER CASE NO.: 95-02485 CA 13 party (whichever is latest), failure of which shall cause this STIPULATED SETTLEMENT to become null, void and of no force and effect, and the parties shall continue with this litigation as if there had been no settlement. This STIPULATED SETTLEMENT shall not be submitted to the Court for entry until and unless this agreement is approved by Resolution of the City Commission. /ll 21. The Court shall retain jurisdiction of this cause to enforce the terms of this STIPULATED SETTLEMENT, DATED: DATED: { LAW OFFICES JOHN H. THOMAS, P.A. A. QUINN JONES, III, City Attorney JOHN H. THOMAS, ESQ. WARREN BITTNER, Asst. City Atty. Attorney for CELEBRATION Attorney for CITY OF MIAMI 3037 S.W. 4th Ave. DuPont Plaza Center, Suite 300 Miami, FL 33129 300 Biscayne Blvd. Way Tel: (305) 858-2122 Miami, FL 33131 Fax: (305) 858-0948 Tel: (305) 579-6700 Fax: (305) 579-3399 By: JOHN H. THOMAS, ESQ. Fla. Bar No. LAUREL M. ISICOFF, ESQ. LAW OFFICES OF KOZYAK TROPIN & THROCKMORTON, P.A. Attorneys for ROUSE- MIAMI, INC. 2800 First Union Financial Center 200 South Biscayne Blvd Lo -10- WARREN BITTNER Assistant City Attorney Fla. Bar No. 370959 J6- 76 S1 _ JLATED SETTLEMENT AND AGREED ORDER CASE NO.: 95-02485 CA 13 Miami, FL 33131-2335 Tel: (305) 372-1800 Fax: (305) By: LAUREL M. ISICOFF, ESQ. Fla. Bar No. AGREED ORDER THE COURT, having considered the above STIPULATED SETTLEMENT, and being otherwise fully advised in the premises, it is ORDERED AND ADJUDGED that: 1. The foregoing STIPULATED SETTLEMENT is hereby approved. 2. This case is hereby dismissed with prejudice and without costs as to all parties. All claims asserted herein by CELEBRATION EXCURSIONS OF NHAMI, INC., or which could have been asserted herein by CELEBRATION EXCURSIONS OF I j NUAMI, INC., against any party to this litigation, up to the date of this STIPULATED i SETTLEMENT are forever barred. 3. This Court shall retain jurisdiction to enforce the terms of this i STIPULATED SETTLEMENT. i DONE AND ORDERED at Miami, Florida, this day of June, 1995. copies furnished to: John H. Thomas, Esq. Warren Bittner, Asst. City Attorney Laurel M. Isicoff, Esq. CIRCUIT COURT JUDGE -11- 96- 76 I CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM 70 A J-96-90 TO Honorable Mayor and Members DATE January 11, 1996 FILE : LT-933044 of the City Commission SUBJECT : Resolution Authorizing Execution of Stipulated Settlement with Celebration A. Q ' Jone, , III Case No.: 94-2436 CA 32 FROM City Atto REFERENCES: City Commission Agenda ENCLOSURES: January 25, 1996 Q) Attached is a proposed Resolution authorizing the City Attorney to enter into a Stipulated Settlement with Celebration Excursions of Miami, Inc., in substantially the form attached thereto, to resolve a lawsuit filed by Celebration seeking a writ of mandamus to force the City to issue it a Mooring and Dockage Agreement for dockage space along the "South Quayside Wall" within Miamarina, declaratory judgment, and damages for alleged conspiracy with Rouse -Miami, Inc. (Bayside), pending in the Circuit Court, Case No. 95-02485 CA 13. The Stipulated Settlement was negotiated directly by the Department of Conferences and Conventions with Celebration Excursions of Miami, Inc., and is recommended by that Department. W052:WB:BSS i i i • c } 96-- 76 ,. i