HomeMy WebLinkAboutR-96-0728J-96-1119
10/2/96 RESOLUTION NO. 9 6 '-' 728
A RESOLUTION, WITH ATTACHMENTS, AUTHORIZING
THE CITY ATTORNEY AND THE CITY MANAGER TO
ENTER INTO A STIPULATED SETTLEMENT (WITH
EXHIBITS) WITH OVERTOWN VENTURES, INC., TO
RESOLVE PENDING LITIGATION AND ARBITRATION
PROCEEDINGS, WITHOUT ADMISSION OF LIABILITY,
IN FULL AND COMPLETE SETTLEMENT OF ANY AND
ALL CLAIMS AND DEMANDS ASSERTED AGAINST THE
CITY OF MIAMI, IN CIRCUIT COURT
CASE NO. 94-13825 CA 02, AND AAA ARBITRATION,
CASE NO. 32 115 00122 95 BB.
WHEREAS, Overtown Ventures, 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. 94-13825-CA
02, for damages and specific performance resulting from the City
of Miami's alleged breach of the Lease Agreement (as amended) for i
the Overtown Shopping Center; and }
WHEREAS, the City of Miami, through the City Attorney,
instituted arbitration proceedings against Overtown Ventures, '
Inc., by filing a arbitration demand before the American
Arbitration Association, Arbitration Case No. 32 115 00122 95 BB,
claiming damages and specific performance resulting from alleged
4
breaches of the Lease Agreement (as amended) for the Overtown t
f
Shopping Center; and k
CITY COMMISSION
MEETING OF
OCT 1 0 1996
Resolution No.
96- 728
WHEREAS, Overtown Ventures, Inc., through its attorney,
asserted a counter -demand in said arbitration proceedings against
the City, of Miami, for damages and specific performance resulting
from the City of Miami's alleged breach of the Lease Agreement
(as amended) for the Overtown Shopping Center; and
WHEREAS, the above claim, lawsuit and arbitration proceeding
have been investigated by the Office of Asset Management and said
Office recommends that said claim, lawsuit and arbitration
proceeding be settled by stipulated settlement, in substantially
the form attached hereto;
NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY
OF MIAMI, FLORIDA:
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 and the City Manager are
hereby authorized to enter into a stipulated settlement (with
exhibits) with OVERTOWN VENTURES, INC., in substantially the form
attached hereto, after approval by the City Attorney as to form
and correctness, to fully and completely resolve and settle any
and all claims and demands against the City of Miami, which were
asserted, or could be asserted, in Circuit Court Case
No. 94-13825 CA 2, and American Arbitration Association,
Arbitration Case No. 32 115 00122 95 BB.
Section 3. This Resolution shall become effective
immediately upon its adoption.
1
- 2 - 96- 728
rA
r
IN, THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT, IN AND FOR DADE
COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 94-13825 CA 02
OVERTOWN VENTURES, INC.,
Plaintiff-', STIPULATED SETTLEMENT
AND AGREED ORDER
vs:
CITY OF MIAMI, a political
subdivision of the State of Florida,
Defendant.
STIPULATION
WHEREAS, on September 12, 1988, the Plaintiff, OVERTOWN VENTURES,
INC. (hereinafter "OVERTOWN VENTURES"), and the Defendant, the CITY OF
MIAMI (hereinafter the "CITY"), entered into a LEASE AGREEMENT (hereinafter the
"AGREEMENT") for the operation of a food store facility in the Overtown Shopping
Center, located at 1490 N.W. 3rd Avenue, Miami, Florida, as described in said
AGREEMENT; and
WHEREAS, by mutual consent of the parties, said AGREEMENT was amended
on November 7, 1988 (hereinafter "AMENDMENT NO. V) and on September 14, 1989
(hereinafter "AMENDMENT NO. 2"); and
WHEREAS, on or about July 22, 1994, OVERTOWN VENTURES sued the
CITY by the filing of a COMPLAINT in this Court (amended on April 18th, 1995),
96-- 728
STM%ji,ATED SETTLEMENT
AND AGREED ORDER
CASE NO.: 94-13825 CA 02
claiming a breach of the AGREEMENT (as amended), and seeking the relief of damages
and specific performance (hereinafter the "LITIGATION"); and
WHEREAS, although the CITY has never answered the COMPLAINT or
AMENDED COMPLAINT, it denies the allegations of the COMPLAINT and
AMENDED COMPLAINT; and
WHEREAS, the CITY has given notice to OVERTOWN VENTURES by
NOTICES OF DEFAULT dated October 11, 1994, November 14, 1994, and February 8,
s
1995, claiming breaches of the AGREEMENT (as amended); and
WHEREAS, on April 20, 1995, the CITY filed a DEMAND FOR
ARBITRATION against OVERTOWN VENTURES with the American Arbitration
Association, which is now pending under Case No. 32 115 00122 95 BB (hereinafter the
"ARBITRATION"); and
WHEREAS, the parties, recognizing the uncertainty of litigation and arbitration
proceedings, and without the admission of fault or liability on the part of either party, are
desirous of amicably settling the differences between them in both the LITIGATION and
j
the ARBITRATION, without the necessity of further cost, expense and attorneys fees;
i
NOW THEREFORE, OVERTOWN VENTURES and the CITY, by and through
their respective undersigned attorneys, stipulate to the complete and final settlement of
r
this LITIGATION and the pending ARBITRATION, including the adequacy of i 1
consideration herein, on the following terms:
1. The above recitals are incorporated herein by reference.
WB
-2- !
96- 728
r
.�
STII•uLATED SETTLEMENT
AND AGREED ORDER
CASE NO.: 94-13825 CA 02
2. The "date" of this STIPULATED SETTLEM -k shall be the date it is
approved and entered as an Order by the Court.
3. Upon approval of this STIPULATED SETTLEMENT by the Court, the
claims and causes of action asserted, or which could be asserted, by either party in this
LITIGATION and in the pending ARBITRATION are hereby dismissed with prejudice
and without costs, and are forever barred.
4. This STIPULATED SETTLEMENT shall be contingent upon the
execution by each party of AMENDMENT NO. 3 of the LEASE attached hereto as
EXFIIBIT A, which amendment, if not fully executed by both parties within sixty -(60)
days of the date this STIPULATED SETTLEMENT is signed by the attorney for each
parties (whichever is later), shall cause this STIPULATED SETTLEMENT to become
null, void and of no force and effect, and the parties shall continue with the LITIGATION
and the ARBITRATION as if there had been no settlement. This STIPULATED
SETTLEMENT shall not be submitted to the Court for entry until and unless
AMENDMENT NO. 3 is executed by both parties.
5. Within thirty (30) days of the date of this STIPULATED SETTLEMENT,
the CITY will retain an expert contractor or engineer, at its sole expense, to determine if
the grease trap was properly designed and/or installed. The report of the expert shall be
binding on the parties. If the expert determines that the problem is being caused by
defective design or installation of the grease trap, the CITY, at its sole expense, will
promptly have it repaired to the satisfaction of the expert. However, if the problem is
being caused by OVERTOWN VENTURES' insufficient maintenance of the grease trap
epV v l� WB
J
1.
i
t
i
i
i
i
-3- 96- 728
j
I '
1 STL SLATED SETTLEMENT
+ AND AGREED ORDER
CASE NO.: 94-13825 CA 02
or its plumbing system, the CITY will not be responsible for' any repairs thereof, and
OVERTOWN VENTURES will be solely responsible for and be required to make all
necessary repairs or maintenance.
6. Within ten (10) days of the date of this STIPULATED SETTLEMENT,
the CITY will notify the American Arbitration Association to voluntarily dismiss with
prejudice the pending ARBITRATION.
7. The CITY waives any claim it has against OVERTOWN VENTURES for:
(a) past due rent; and (b) past due water and sewer bills in the amount of $16,006.78 as
described in the CITY's Demand for Arbitration, dated April 20, 1995. The CITY hereby
assigns its rights, if any, against any other third parties, for the aforementioned water and
sewer bills, to OVERTOWN VENTURES.
8. OVERTOWN VENTURES shall reimburse the CITY for $41,486.06,
representing the CITY's payment of the FP&L bill for electricity at the Supermarket.
Beginning on the rent commencement date, the minimum monthly payment to satisfy this t
amount will be $203.36. However, after the 10th year, interest will accrue at the rate of
l
6% on the outstanding balance, if any. The CITY hereby assigns its rights, if any, against
,
any other third parties, for the aforementioned FP&L bill, to OVERTOWN VENTURES.
9. The CITY hereby gives its consent to the following subleases (which
OVERTOWN VENTURES shall provide to the CITY within ten (10) days of the date of
this Stipulation): (1) the flower business being operated in the rear (non-public areas) of
FACILITY #1; (2) the African Boutique; (3) Corcel Corporation's import/export business
r
F '
being operated in the rear (non-public area) of FACILITY #1, adjacent to the interior
WD
-4-
r
STi . LATED SETTLEMENT
AND AGREED ORDER
CASE NO.: 94-13825 CA 02
entrance to FACILITY #2; and (4) a law office in FACILITY'k. To the extent that the
uses involved in these subleases are inconsistent
with the permitted uses stated in the
AGREEMENT and amendments thereto,
the CITY is waiving said use restrictions for
these subleases only and no others.
10. The Court shall retain jurisdiction of this cause to enforce the terms of this
STIPULATED SETTLEMENT.
DATED: 00 �l
DATED: a 0
DE LA CRUZ & CUTLER, P.A.
A. QUINN JONES, III, City Attorney
H. JEFFREY CUTLER, ESQ.
WARREN BITTNER, Asst. City Atty.
Attorney for OVERTOWN VENTURES
Attorney for CITY OF MIAMI
241 Sevilla Avenue, Ste. 805
DuPont Plaza Center, Suite 300
Coral Gables, FL 33134
300 Biscayne Blvd. Way
Tel: (305) 446-0100
Miami, FL 33131
Fax: 305) 445-7750
Tel: (305) 579-6700
Fax: (305) 579-33 9-
By:
By:
IJ. F Y CUTLER, ESQ.
W N BITTNER
Fla. Bar No. 268933
sistant City Attorney
Fla. Bar No. 370959
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 each party shall bear their
own costs and attorneys fees. All claims asserted herein by OVERTOWN VENTURES,
-5-
i
i.
t
S
i
i
i
t
t
j
STII ,ATED SETTLEMENT
AND AGREED ORDER
CASE NO.: 94-13825 CA 02
INC., or which could have been asserted herein by OVERTO" VENTURES, INC., up
to the date of this STIPULATED SETTLEMENT, or which could have been asserted by
the CITY OF MIAMI by counterclaim, up to the date of this STIPULATED
SETTLEMENT, are forever barred.
3. The Court takes judicial notice of the claims asserted by the CITY OF
MIAMI in the ARBITRATION. All claims asserted by the CITY OF MIAMI in said
ARBITRATION, or which could have been asserted therein by the CITY OF MIAMI, up
to the date of this STIPULATED SETTLEMENT, or which could have been asserted by
OVERTOWN VENTURES, INC., by counter -demand in arbitration, up to the date of this
STIPULATED SETTLEMENT, are hereby forever barred.
4. This Court shall retain jurisdiction to enforce the terms of this
STIPULATED SETTLEAIENT.
DONE AND ORDERED at Miami, Florida, this day of October, 1996.
i
t
Honorable Mayor and Members
TO : of the City Commission DATE : FILE
Resolution Authorizing Execution of
SUBJECTStipulated Settlement with Overtown
f kti
Ventures - Case No. 94-13825 CA 02
FROM. A. Llln n , REFERENCES:
City Atto n City Commission Agenda
ENCLOSURES: October 10, 1996
RECOMMENDATION:
Attached is a proposed Resolution authorizing the City Attorney and the City
Manager to enter into a Stipulated Settlement (with exhibits) with Overtown
Ventures, Inc., in substantially the form attached thereto, to resolve a lawsuit filed
by Overtown Ventures, Inc., seeking damages and specific performance to force the
City to comply with its Lease Agreement (as amended) for the Overtown Shopping
Center, pending in the Circuit Court, Case No. 94-13825 CA 02, and arbitration
proceedings instituted by the City of Miami concerning the same Lease Agreement
(as amended). The Stipulated Settlement was negotiated by the Law Department
and the Office of Asset Management with Ricardo Corona, the President of
Overtown Ventures, Inc., and is recommended for approval by the Law Department.
f
f
{
}
I�
i
r
t
CITY OF MIAMI, FLORIDA
INTER -OFFICE MEMORANDUM44
Honorable Mayor and Members
j TO of the City Commission DATE : SEP 3 0 1996 FILE
Resolution Authorizing Execution of
sue,Ecr Stipulated Settlement with Overtown
Ventures - Case No. 94-13825 CA 02
FROM ; A. uln n ,III REFERENCES :
City Atto n City Commission Agenda
ENCLOSURES: October 10, 1996
I
I
i
RECOMMENDATION:
� Attached is a proposed Resolution authorizing the City Attorney and the City
Manager to enter into a Stipulated Settlement (with exhibits) with Overtown
Ventures, Inc., in substantially the form attached thereto, to resolve a lawsuit filed
by Overtown Ventures, Inc., seeking damages and specific performance to force the
City to comply with its Lease Agreement (as amended) for the Overtown Shopping
Center, pending in the Circuit Court, Case No. 94-13825 CA 02, and arbitration
proceedings instituted by the City of Miami concerning the same Lease Agreement
(as amended). The Stipulated Settlement was negotiated by the Law Department
and the Office of Asset Management with Ricardo Corona, the President of
Overtown Ventures, Inc., and is recommended for approval by the Law Department.
i
1
i
f
I
i
96- 728 1