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HomeMy WebLinkAboutExhibitIN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO.:10-40654 CA 05 COLUMBUS PROPERTIES, INC., a foreign corporation d/b/a Columbus Properties of Alaska, Inc. Plaintiff, VS. CITY OF MIAMI for the use and benefit of the Civilian Investigation Panel, Defendant / SETTLEMENT AGREEMENT This Settlement Agreement (the "Settlement Agreement") is made as of the last date of execution signified below between Plaintiff, Columbus Properties, Inc. d/b/a Columbus Properties of Alaska, Inc., Defendant, City of Miami for the use and benefit of the Civilian Investigation Panel, by .and through themselves and/or their undersigned authorized representatives, who hereby enter into this Settlement Agreement under the following circumstances: RECITALS WHEREAS, Columbus Properties, Inc. ("Columbus Properties") owns the premises in PH-1B and PI-I- 1 C of the building known as 155 South Miami Avenue Building, located at 155 South .Miami Avenue, Miami, Florida 33130 (the "Premises"); WHEREAS, on or about March 4, 2003, Columbus Properties' assignor and City of Miami ("City") entered into a written lease agreement (the "Lease") pursuant to which City agreed to lease the Premises from Columbus Properties' assignor for five years; WHEREAS, on or about November 26, 2007, the Lease was amended for the purposes of expanding the definition and area of the original leased premises by adding additional square footage and by extending the lease term to 2013 (the "First Amendment"); WHEREAS, Columbus Properties and City have had a dispute relating to the Premises, the Lease and the First Amendment, which ultimately resulted in the institution of the above -styled action, Columbus Properties, Inc. v. City of Miami, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami -Dade County, Florida, Case No. 10-40654 CA 05 (the "Action"); WHEREAS, the parties have reached an understanding as to a means of resolution of the Action; ,1/4111- 70.-dowp CASE NO.:10-40654 CA 05 WHEREAS, the Parties desire to avoid the expense, inconvenience, and distraction of further litigation, and to settle their claims and differences as set forth below. NOW, THEREFORE, in consideration of the above, Columbus Properties and the City hereby agree as follows: SECTION 1. CONSIDERATION A. In consideration of the foregoing Recitals, and the mutual desire to resolve the issues between the parties, Columbus Properties and the City mutually agree that the following provisions are valid, enforceable, and fully supported by adequate consideration flowing between the parties hereto. B. Within ten (10) days following approval of this Settlement Agreement by the City's Commission, the City shall pay to Columbus Properties the sum of Thirty -Five Thousand and no/100 Dollars ($35,000.00) (the "Initial Settlement Payment"). The Initial Settlement Payment shall be made by way of check and made payable to Columbus Properties, Inc. and sent to the attention of John DiMurro, Columbus Properties, Inc., 217 Broadway, Suite 700, New York, NY 10007. Alternatively, the Initial Settlement Payment may be made by way of wire transfer. Wire transfer information shall be provided upon request. C. After the Initial Settlement Payment, the City shall pay to Columbus Properties four payments of Forty Thousand and no/100 Dollars ($40,000.00) (the "Quarterly Settlement Payments") in accordance with the following schedule: 03/14/2011 - $40,000.00 payable to Columbus Properties ("Quarterly Payment #1") 06/14/2011 - $40,000.00 payable to Columbus Properties ("Quarterly Payment #2") 09/14/2011 - $40,000.00 payable to Columbus Properties ("Quarterly Payment #3") 12/14/2011 - $40,000.00 payable to Columbus Properties ("Quarterly Payment #4") The Quarterly Settlement Payments shall be made by way of check and made payable to Columbus Properties, Inc. and sent to the attention of John DiMurro, Columbus Properties, Inc., 217 Broadway, Suite 700, New York, NY 10007. Alternatively, the Quarterly Settlement Payments may be made by way of wire transfer. Wire transfer information shall be provided upon request. D. The City shall be given a five (5) calendar day grace period (the "grace period") for all payments required hereunder. The City's failure to make any payment required hereunder when due shall constitute a default under this Agreement. In the event of default, Columbus Properties may, without notice or demand, declare all sums due hereunder immediately due and payable and obtain a final judgment against the City in the sum of Two Hundred Thirty Five Thousand and no/100 Dollars ($235,000.00) less all amounts paid to date. Final judgment may be issued, without a motion or a hearing, upon the submission of an affidavit by Columbus Properties or its counsel attesting to the City's default to the Court. Notwithstanding the terms of this Settlement Agreement, Columbus Properties maintains the obligation to attempt to re -let the Premises and will continue in its reasonable efforts to do so. In the event that Columbus Properties is able to obtain a prospective tenant that is suitable to Columbus Properties and re -lets the Premises to said tenant, the City's obligation to make the Quarterly Settlement Payments shall cease and be fully satisfied. 2 CAG/NAR: Doc. No.: 260353 CASE NO.:10-40654 CA 05 E. Following approval of this Settlement Agreement by the City's Commission, Columbus Properties shall recommence paying the parking surcharge in accordance with the terms contained with that certain settlement agreement dated April 1, 2010 and involving the case styled as Columbus Properties, Inc. v. City of Miami, Miami -Dade Case No. 09-01734 CA 24 (the "Parking Surcharge Settlement Agreement"). A true and correct copy of the Parking Surcharge Settlement Agreement is attached hereto as Exhibit "1." F. Upon payment in full of the Initial Settlement Payment and Quarterly Settlement Payments as identified herein, and clearance of all funds, Columbus Properties shall execute and cause to be delivered to the City a joint stipulation for entry of agreed order of dismissal with prejudice of the claims raised in the Action, which stipulation and agreed order shall be in the form attached to this Agreement as Exhibit "2." G. As further consideration for this Settlement Agreement, Columbus Properties and the City and their respective officers, directors, employees and contractors hereby fully, finally and forever release and discharge each other as well as their officers, directors, partners, principals, representatives, agents and employees, of and from all claims, demands, actions, causes of action, suits, damages, losses and expenses, of any and every nature whatsoever that each party can, shall or may have, from the beginning of the world to the date of these presents except for the obligations created by this Settlement Agreement and the Parking Surcharge Settlement Agreement'. In the event of a breach of this Settlement Agreement by either party, the release contained herein shall be rendered null and void as to the breaching party. SECTION 2. REPRESENTATIONS AND WARRANTIES Each party hereby represents and warrants that it is authorized and has full capacity to enter into this Settlement Agreement, that the Settlement Agreement is enforceable against it, upon execution hereof and according to the terms hereof. The parties further represent and warrant that they have read each page of this Settlement Agreement and fully understand them, agree to them and voluntarily sign them. SECTION 3. NO PUBLIC DISCLOSURE The parties agree that except as may be required by law, regulation, judicial or governmental order or subpoena, neither party will make any public statements regarding or otherwise disclose the terms of this Settlement Agreement. SECTION 4. NO ADMISSION OF LIABILITY The parties agree that by entering into this Settlement Agreement, they are not making any admission of liability, and that the entry of the signatories into this Settlement Agreement shall not be construed as an admission of liability on the part of any of the signatories or any parties hereby released. SECTION S. ENFORCEMENT Each party may enforce directly the terms of this Settlement Agreement and may obtain monetary, equitable and injunctive relief as provided herein. The prevailing party under any such litigation shall be entitled to collect reasonable attorney fees and costs incurred in connection with obtaining monetary damages or injunctive relief, or both, in enforcing the terms of this Settlement Agreement. SECTION 6. NEGOTIATIONS The parties hereto mutually acknowledge and agree that this Settlement Agreement and the matters memorialized herein have been negotiated with the assistance of qualified legal counsel at "arms length" and, All parking surcharges required under the Parking Surcharge Agreement prior to the date hereof are included in the instant release. 3 CAG/NAR: Doc. No.: 260353 CASE NO.:10-40654 CA 05 thus, no rule of interpretation or construction which would result in an interpretation or construction in favor of, or to the detriment of, one party over another party shall apply. The parties also agree that this Settlement Agreement was jointly drafted and negotiated by them and can not be construed against any party as the drafter thereof. SECTION 7. ENTIRE UNDERSTANDING This Settlement Agreement sets forth the entire understanding of the parties. There are no contemporaneous oral promises, representations or agreements inducing entry into this Settlement Agreement. SECTION 8. INTERPRETATION Wherever possible, each portion of this Settlement Agreement shall be interpreted in such a manner as to be valid, effective and enforceable under applicable law. If any portion of this Settlement Agreement is held to be invalid by a court of competent jurisdiction, such provision shall be severed herefrom and such invalidity shall not affect any other portion of this Settlement Agreement, the balance of which shall remain in, and have its intended, full force and effect. SECTION 9. NO ORAL MODIFICATIONS No change, modification or waiver of any provision of this Settlement Agreement shall be valid or binding unless it is in writing and signed by all parties to this Settlement. Agreement. This provision cannot be waived by subsequent oral agreement and/or actions or conduct of the parties hereto. SECTION 10. COOPERATION The parties shall cooperate in effectuating the provisions and intent of this Settlement Agreement at all times after the execution and delivery of same, including, without limitation, taking such other actions and entering into such agreements, releases and stipulations as are reasonably necessary or required to carry out the parties' intent and the agreements herein contained. SECTION 11. EXECUTION This Settlement Agreement may be executed in separate counterparts, each of which shall be deemed an original document. A counterpart of this Settlement Agreement transmitted by a party hereto to the other party by facsimile transmission and bearing the signature of such party shall be deemed an original hereof and may be relied upon by the recipient as duly executed and effective notwithstanding the fact that the recipient did not receive an original copy of the transmitter's signature. SECTION 12. NOT EVIDENTIARY This Settlement Agreement, as well as any writings prepared in connection herewith, whether copies or originals and whether executed or not, shall not be introduced or admissible into evidence or otherwise used in any court, arbitration or other proceedings for any purpose, except as necessary to enforce the provisions of this Settlement Agreement. SECTION 13. NOTICE All notices required hereunder shall be in writing and shall be (as elected by the person giving the notice): (i) delivered by messenger or national overnight courier service; (ii) mailed by first-class, postage prepaid, registered or certified mail; or (iii) sent by facsimile or electronic mail to the following addresses (or such other address as may be provided from time to time in writing): 4 CAO/NAR: Doc. No.: 260353 CASE NO.:10-40654 CA 05 Columbus Properties, Inc. c/o Neal I. Sklar, Esq./Warren E. Friedman, Esq. Pecker & Abramson One S.E. Third Avenue, Suite 3100 Miami, Florida 33131 Facsimile (305) 375-0328 Email: nsklar@Decklaw.com / wfriedmanna,pecklaw.com City of Miami c/o Christopher Green, Esq./Sacha Reyes, Esq. 444 SW 2" Avenue Miami, Florida 33130 Facsimile 305-416-1801 Email: ChristopherG®miamigov.com / nreves(a%miamigov.com Notice shall be deemed delivered and received: (i) on the date delivered if by personal delivery; (ii) if by facsimile or email, on the date of transmission (if a business day) or the next business day, if otherwise, or (iii) on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authorities as not deliverable, as the case may be, if mailed. SECTION 14. COSTS Each of the parties hereto agrees to bear all of its own costs, including attorneys' fees, incurred in connection with the negotiation and drafting of this Settlement Agreement and the Action. SECTION 15. VENUE AND JURY TRIAL WAIVER With respect to all provisions of this Settlement Agreement, venue and jurisdiction for any enforcement action hereunder, or any action to interpret this Settlement Agreement, shall lie exclusively in the state courts sitting in Miami -Dade County, Florida. The prevailing party under any such litigation shall be entitled to collect reasonable attorney's fees and costs incurred in enforcing the terms of this Settlement Agreement. The parties hereto do expressly waive any right to a trial by jury and understand and agree this waiver is valid, enforceable, and is supported by valuable consideration between the parties, it being a material inducement to the parties in entering into this Settlement Agreement. SECTION 16. GOVERNING LAW This Settlement Agreement shall be deemed to have been executed and delivered within the State of Florida, and the rights and obligations of the parties hereunder shall be construed and enforced in accordance with, and governed by, the laws of' the State of Florida, and where applicable, federal law, without regard to the conflicts of law principles thereof. SECTION 17. BINDING EFFECT. This Settlement Agreement shall be binding upon the Parties hereto, their heirs, successors and assigns. SECTION 18. DRAFTING. Each of the parties hereto agree that this Settlement Agreement was jointly negotiated and drafted by the parties and should not be construed by a court of law against any party as the drafter thereof. 5 CAG/NAR: Doc. No.: 260353 CASE NO.:10-40654 CA 05 SECTION 19. CONSTRUCTION In giving meaning to this Settlement Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and the use of any gender shall be held to include every other and all genders. SECTION 20. HEADINGS Each of the parties hereto agree that the section headings contained herein are included for convenience only and are not to be deemed part of this Settlement Agreement. SECTION 21. INCORPORATION BY REFERENCE All of the exhibits attached to this Agreement are incorporated herein and made a part hereof. SECTION 22. EFFECT OF THIS AGREEMENT The rights and obligations of Columbus Properties and the City under the Lease and First Amendment and Florida law remain in full force and effect except as modified and/or released in this Agreement. Should any conflicts between the Lease and First Amendment and this Settlement Agreement exist, this Settlement Agreement shall take priority. SECTION 23. INCORPORATION OF RECITALS The recitals set forth above constitute an integral part of this Settlement Agreement and are incorporated herein by this reference with the same force and effect as if set forth herein as agreements of the parties. [SIGNATURE PAGE FOLLOWS] 6 CAG/NAR: Doc. No.: 260353 CASE NO.:10-40654 CA 05 IN WITNESS WHEREOF, the parties have caused this Settlement Agreement, consisting of _ pages, to be executed as of the dates noted below: ATTEST: CITY OF MIAMI By: By: Priscilla A.Thompson, City Clerk Tony E. Crapp, Jr., City Manager Date: Date: ATTEST: COLUMBUS PROPERTIES, INC. d/b/a COLUMBUS PROPERTIES OF ALASKA, INC. By: Print Name: Print Name: Corporate Secretary Title: Date: APPROVED AS TO FORM AND CORRECTNESS: Julie O. Bru City Attomey CAGMAR: Doc. No.: 260353 7