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HomeMy WebLinkAboutExhibitSETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT is entered into between the City of Miami, a municipal corporation (the "City"), and Gayety Theatres Incorporated, a Florida corporation ("Gayety"), effective February 1, 2006, WHEREAS, the City and Gayety are parties to a lawsuit entitled City of Miami v. Gayety Theatres, Inc., Case No, 05-05813-CA-30 in the Eleventh Judicial Circuit Court in and for Miami -Dade County, Florida (the "Trial Court Case"); WHEREAS, on December 7, 2005, the City obtained a Final Summary Judgment as to the Complaint and Count I of the Amended Counterclaims (the "Judgment"), and in accordance with the Judgment, Gayety may file a second amended counterclaim; WHEREAS, on December 28, 2005, Gayety filed a notice of appeal of the Judgment (the "Appeal"); WHEREAS, Gayety has also appealed an order of the City Corte Enforcement Board relating to the real property which is the subject of the Trial Court Case (the "Property"); and WHEREAS, on January 9, 2006, the Appellate Division of the Eleventh Judicial Circuit Court in and for Miami -Dade County, Florida, Case No. 05-424 AP, affirmed such order of the City Code Enforcement Board (the "Appellate Division Case") and on January 25, 2006 determined Gayety's motion for rehearing to be moot; NOW, THEREFORE, in consideration of the mutual covenants and promises herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: mjs:Document 33708 1. The above recitals are true and correct and are incorporated by reference herein. 2. The parties hereby fully and finally settle the Trial Court Case, the Appeal, the Appellate Division Case, the non-payment by Gayety of the City's parking surcharge for the Property, and any and all matters relating thereto (collectively "All Disputes"). 3. Gayety will pay the City in payment of the City's parking surcharge on the Property for all periods through and including February 15, 2006, the total sum of three hundred thousand dollars ($300,000.00) ("Settlement Sum") as follows: (a) one hundred fifty thousand ($150,000) upon execution and delivery of the Settlement Agreement by the parties; and (b) one hundred fifty thousand ($150,000) during the next twelve (12) months, payable in 12 equal installments of $12,500 per month beginning on March 1, 2006 and continuing through and including February 1, 2007. 4. Gayety will immediately apply for a Certificate of Use for public parking at the Property. The City Zoning Department will expeditiously inspect the Property and determine what needs to be done to the parking area, if anything, to make it code compliant for public parking. Before using any portion of the Property for public parking, Gayety agrees to make such improvements, if any, to the Property required for compliance with the City's Zoning Code for public parking. Notwithstanding the foregoing, the City agrees that for purposes of this Settlement Agreement only, any legally authorized previous use of the Property as a restaurant (including liquor sales), theater, boutique, adult entertainment/dance, immigration photo shop, and related parking shall not be considered to have been discontinued within the meaning of City Zoning mjs:Document 33708 Code § 1104.6 due to any actual or constructive discontinuance of use resulting from the non-payment of the City's parking surcharge prior to the payment date set forth in Section 3 of this Settlement Agreement, provided, however, that Gayety and its successors, assigns, .and/or tenants must actually apply for and obtain any and all certificates of use and occupational licenses that are otherwise required by the City in connection with any such uses. 5. Upon execution and delivery of this Settlement Agreement by the parties, the City shall release its "hold" on the ability of Gayety to obtain a Certificate of Use and occupational license for the Property, which the City has imposed due to Gayety's non- payment of the City's parking surcharge on the Property. Upon Gayety's compliance with the City's Zoning Code and Gayety's payment of any application fee, the City will issue a Certificate of Use and occupational license to Gayety for public parking on the Property. 6. Immediately upon the execution and delivery of the Settlement Agreement by the parties, Gayety agrees to comply or to require any tenant of Gayety to comply with the City's ordinance and regulations which impose the City's parking surcharge with respect to the Property, or any amendment thereto (the "Surcharge Ordinance") so long as the ordinance and regulations remain in effect and, as of February 15, 2006, shall collect or shall require any tenant of gayety to collect from its customers and remit to the City the City's parking surcharge for any and all vehicles that pay for parking on the Property, regardless of whether the paying customer actually attends the theater on the Property. Gayety also agrees that the City's parking surcharge shall be paid on the gross amount of mjs:flocument 33708 the parking charge to the extent required by the Ordinance without reduction for any credit or rebate provided by Gayety (or any tenant of Gayety) to customers of the theater. 7. Gayety agrees to file, or to require any tenant of Gayety to file, the City's monthly surcharge reports and otherwise make its records, or to require any tenant of Gayety to make its records available to the City for purposes of verifying the accuracy of its monthly reports in accordance with the Surcharge Ordinance. 8. Gayety shall dismiss the Appeal with prejudice within five days of the execution and delivery of this Settlement Agreement by the parties. The City agrees that the cash bond posted by Gayety as the Civil Supersedeas Bond shall be returned to Gayety. The City will execute and file whatever motion, agreed order, or other document is necessary to effectuate the return of the bond to Gayety. 9. Gayety shall return that certain check for $735 ("Check"), sent by the City to Gayety's counsel during the course of the Trial Court Case under the Court's order imposing sanctions. The Check has been sent by Gayety to the City's counsel, receipt of which is hereby acknowledged. 10. The City and Gayety will enter into a stipulation for settlement of the Trial Court Case in the form attached hereto as Exhibit "A", and will submit an agreed order to the trial court in the form attached hereto as Exhibit "B" (the "Agreed Order") dismissing all claims and counterclaims, but allowing the trial court to retain jurisdiction to enforce this Settlement Agreement. 11. Upon full payment of the Settlement Sum, the City will file with the Court and will record in the public records of Miami -Dade County, Florida, a Satisfaction of mjs:Document 33708 Judgment and any and all other documents or pleadings necessary to release the City's Judgment lien on the Property. 12. The parties agree that this Settlement Agreement contains all of the terms and conditions of their settlement and fully and finally resolves All Disputes. 13. Both the City and Gayety acknowledge that they have had the opportunity to consult with their respective counsel prior to the execution of this Settlement Agreement. 14. Each person executing and delivering this Settlement Agreement on behalf of the party represents and warrants that he or she has been duly authorized to sign and deliver this Settlement Agreement on behalf of the party. 15. This Settlement Agreement is subject to the approval of the City of Miami Commission prior to execution. 16. In the event that any litigation is required to enforce the terms of this Settlement Agreement, the prevailing party shall be entitled to reasonable attorneys' fees at the trial and appellate level. DATED: CITY OF MIAMI GAYETY THEATRES INCORPORATED By By Joe Arriola, City Manager Linda Rivera Griffith, President mjs:Document 33708 (4) Approved as to form and correctness: By Jorge L. Fernandez, City Attorney mjs:Document 33708 (2)