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HomeMy WebLinkAboutSubmittal-City Attorney-Settlement Agreement Rickenbacker MarinaSubmitted into the record 'or item(s) on 0°1113112 SETTLEMENT AGREEMENT AND RELEASE ublic City Clerk This Settlement Agreement and Release (hereinafter "Agreement") is entered into this 22 day of September , 2015, by and between Rickenbacker Marina, Inc., its successors, assigns, trustees, heirs and beneficiaries ("RMI"), and the City of Miami ("City") (hereinafter RMI and City shall be collectively referred to as the "Parties"). I. RECITALS WHEREAS, the City is the owner of that certain waterfront marine facility and submerged lands at Virginia Key, Miami, Florida ("Subject Property"); WHEREAS, Rickenbacker currently leases the Subject Property from the City, pursuant to those Lease Documents executed between the Parties (i.e. - - the original Lease dated July 8, 1977, executed with Rickenbacker's predecessor, Marina Biscayne, Inc.; First Amendment to Lease dated July 1, 2009; Second Amended to Lease dated January 14, 2011; and Third Amendment to Lease dated May 4, 2011) (hereinafter "Lease Documents"); WHEREAS, Rickenbacker performed certain improvements to the Subject Property in or around 2010, including the installation of a walkway along the retaining wall which stabilizes the shoreline at the Subject Property ("Walkway"); however, the Walkway was built five (5) feet wide instead of the eleven (11) foot width originally planned for and permitted; WHEREAS, on or about March 28, 2013, the City declared Rickenbacker in default of the Lease Documents due to the size of the Walkway, which default Rickenbacker has disputed and continues to dispute (hereinafter "Alleged Walkway Default"); WHEREAS, on or about July 18, 2013, the City again declared Rickenbacker in default of the Lease Documents, this time due to Rickenbacker's refusal to remit payment of $2 Million to the City ("Parking Payment") towards the construction of a new parking facility ("New Parking Facility"), after the City's demand pursuant to Paragraph I of the Second Amendment (the "Alleged Parking Payment Default"), which Alleged Parking Payment Default Rickenbacker has disputed and continues to dispute; WHEREAS, on or about June 19, 2013, Rickenbacker initiated a lawsuit against the City in the Circuit Court in and for Miami -Dade County, Florida, styled Rickenbacker Marina, Inc. v. City of Miami, Case No. 2013-021970 CA 40 (the "Lawsuit"), which Lawsuit currently alleges claims for declaratory relief and injunctive relief pertaining to the Alleged Walkway Default and the Alleged Parking Payment Default (hereinafter collectively the "Alleged Defaults") declared by the City against Rickenbacker; WHEREAS, on or about November 15, 2013, the City countersued Rickenbacker (the "Counterclaim") (the Lawsuit and Counterclaim shall hereinafter be referred to as the "Action"), which Counterclaim currently alleges claims for declaratory relief and breach of contract in relation to the Alleged Parking Payment Default; 1 �� \ — ,4ol �� -� lkcke4b>�:ker V '�- 2525 — S�bM t ��'`� � 25 2(0 — S LAbm 4 I — CA 49 A-{foinA4 — 5cz..4.v2fito,14_ QAc b via Submitted into the public record f r item(s) [401 )&t ' i 0 on l g . City Clerk WHEREAS, pursuant to the Lease Doctuments, the term of Rickenbacker's Lease for the Subject Property expires on or about July 7, 2016 ("Lease Expiration Date"); WHEREAS, to avoid the expense, inconvenience, and uncertainties of litigation, the Parties wish to amicably resolve the claims set forth in the Action, and any and all claims which were, could have been, and/or should have been asserted by any Party in the Action; NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, the receipt and sufficiency of which is hereby acknowledged and confessed, the Parties agree to the following terms and conditions in full and complete resolution of the Action styled Rickenbacker Marina, Inc. vs. City of Miami, Miami -Dade Circuit Court case no. 13-021970 CA 01, and all matters related thereto. II. TERMS 1. RecitaIs. The Parties hereby agree and acknowledge that the Recitals set forth above and incorporated herein are true and correct. 2. Settlement Terms. A. Rickenbacker shall pay to the City a total of $750,000.00, in the following manner: i. A lump sum payment of $500,000.00 shall be deposited in escrow by Rickenbacker to the law firm of Haber & Slade, P.A.'s escrow account (hereinafter "HSPA Escrow Account" and "HSPA Escrow Funds") within seven (7) days of execution of this Agreement by Rickenbacker, and HSPA shall release said HSPA Escrow Funds to the City within ten (10) days of both the execution of this Agreement by City and approval of the City Commission as described at Paragraph 2(D) below; ii. Installment payments of $25,000.00 per month to the City for ten (10) months, with each installment payment to be made on the first of each month, and with the first of the ten (10) installment payments to be made on the first of the month immediately following the month in which Rickenbacker makes the lump sum payment described at Paragraph 2(A)(i) above; iii. All payments contemplated herein shall be made via check from Rickenbacker to the HSPA Escrow Funds, which can be paid via wire transfer or check; and iv. Regardless of any contrary term contained in the Lease Documents, Rickenbacker may become a holdover tenant at will after the Lease Expiration Date on a month to month basis to the extent permitted by law (hereinafter "Holdover Tenant"), pursuant to the same monthly rental terms (monthly rent and percentage rent) as are contained in the Lease Documents (i.e.—no double rent, simply continuation of the same rental amounts which Rickenbacker has Submitted into the public record for item(s) .�1 I0 on 091J 3118 City Clerk been paying) (hereinafter "Holdover Rent"), which holdover tenancy, so long as it is permitted by law, shall continue until the successful bidder/new tenant takes possession of the Subject Property, after any and all objections to the Bid and award, including appeals, have been fully and finally resolved (hereinafter the "Holdover Tenancy Period"); B. As of the date of execution of this Agreement by the Parties and approval of the City Commission as described at Paragraph 2(D) below, all claims of default by the City under the Lease Documents, including the Alleged Defaults, shall be considered vacated, removed and of no further force and effect, with such removal of claims of default to further include the following terms and conditions: i. Removal/release of any and all issues relating to the Walkway width, including finalization and close out of the pennit(s) related to the Walkway and a retraction of the Notice of Default issued by the City in relation to the Walkway; ii. Retraction by the City of its $2 Million demand for the Parking Payment and the Notice of Default in relation to same; iii. Waiver/release by the City of any and all past and/or currently existing alleged or non -alleged defaults of the Lease Documents, except that the City does not release or waive any ongoing obligations under the Lease Documents or the law subsequent to the date of this Agreement, including but not limited to environmental contamination and/or the obligations of RMI to deliver the premises in good and usable condition under Paragraph 17 of the Lease, as amended; however, the City is not currently aware of any violations by RMI of its obligations under the Lease Documents at this time, other than those alleged defaults specifically referenced herein; iv. Rickenbacker shall be considered a tenant in good standing under the Lease Documents, and nothing contained in the Lawsuit or this Agreement, once executed and approved by the City Commission and signed by the City shall be a bar or prohibition on Tenant or representatives of Tenant from submitting bids on future contracts .with the City nor shall Tenant be considered to owe any monies to the City other than those amounts required by this Agreement, and shall not be considered "non -responsible" under City Code Section 18-95 so long as Rickenbacker is in compliance with the terms of its payments under this Agreement and its other ongoing obligations under the Lease Documents; C. All Parties involved in the Action shall bear their own costs and attorneys' fees incurred in connection with any matter relating to this Action; D. The City shall present the tenns of this Agreement to the City Commission for approval at the first City Commission meeting taking place in September, 2015. Should the City fail to submit this Agreement for Commission approval before the date that bids are due pursuant to the RFP, or should the City Commission fail to approve this Agreement in Submitted into the record for i em(s) on04i1r311? ublic AJQI01 City CIerk its substantial form (minor changes/revisions excluded), this Agreement shall be considered null and void, and HSPA shall be entitled to release the HSPA Escrow Funds (i.e. - - the $500,000.00) back to Rickenbacker; E. Within ten (10) days of receipt of the initial lump sum payment made by Rickenbacker pursuant to Paragraph 2(A)(ii) above, the Parties' counsels shall jointly execute and file a Stipulation for Dismissal of All Claims in this Action with Prejudice ("Stipulation"), pursuant to which Stipulation the Court will retain jurisdiction to enforce the terns of this Settlement Agreement; and F. While this Agreement is pending approval by the City Commission, the Parties shall execute and file a Joint Motion for Stay of all Discovery with the Court in the Action and seek to obtain an Order granting same. In addition, Rickenbacker shall file a Notice of Cancellation of the Depositions currently scheduled for August and September 2015, including but not limited to all current and former City employees previously scheduled for deposition, and Commissioner Marc Sarnoff. 3. Breach of Agreement. In the event that either of the Parties fails to fulfill its obligations as stated in this Agreement, that Party shall be in Default. As a result of a Default by either Party under this Agreement, the other Party shall be entitled to pursue any and all recovery efforts, which shall include but not be limited to the filing of a Motion to Enforce Settlement Agreement and/or Motion for Default of Settlement Agreement with the Court, upon the expiration of a five (5) day grace period with notice via e-mail to the Parties through their respective counsel(s) as set forth below in Paragraph 8. 4. Mutual Releases. Upon execution of this Agreement by the Parties and approval of this Agreement by the City Commission, the following shall be effective: A. City's Release to Rickenbacker. Except for the rights, duties and obligations of the Rickenbacker created under this Agreement, the City, for itself and its predecessors, agents, attorneys, directors, officers, members, employees, affiliates, successors, assigns, trustees, bankruptcy trustees, personal representatives, beneficiaries, devisees, and legatees (hereinafter collectively referred to as the "City Releasors"), hereby releases and forever discharges Rickenbacker and each of its respective subsidiaries, predecessors, agents, managers, attorneys, directors, officers, employees, affiliates, successors, assigns, trustees, bankruptcy trustees, personal representatives, beneficiaries, devisees, and legatees (hereinafter referred to as the "Rickenbacker Releasees"), whether past, present or future, jointly and severally, of and from any and all debts, claims, potential claims, demands, actions, causes of action, potential causes of action, rights, obligations, damages, attorney's fees, costs, and liabilities of any and every kind or nature whatsoever, in law or in equity, past, present, or future, known or unknown, direct or indirect, asserted or unasserted, fixed or contingent, whether contemplated or not, whether based on a tort, contract, contribution, indemnification, or any other type of recovery, and whether for compensatory, consequential, incidental, statutory, punitive, or other damages, which the City Releasors have, may have or had related to, arising out of, or in connection with the Action, past or present asserted or 4 Submitted into the public . / record for item(s) f Q..9 ,�lno't a on OS 1131 City Clerk unasserted breaches of the Lease Documents, Walkway, and/or Parking Payment including, without limitation, any matter that was raised, could have been, or should have been raised by the City Releasors in this Action, whether known or unknown, occurring prior to and up until the date of the execution of this Agreement, provided, however, that this Release by the City Releasors does not release any ongoing obligations of Rickenbacker contained in the Lease Documents. B. Rickenbacker's Release to City. Except for the rights, duties and obligations of the City created under this Agreement, Rickenbacker, for itself and its predecessors, agents, attorneys, directors, officers, members, employees, affiliates, successors, assigns, trustees, bankruptcy trustees, personal representatives, beneficiaries, devisees, and legatees (hereinafter collectively referred to as the "Rickenbacker Releasors") hereby releases and forever discharges the City and each of its respective subsidiaries, predecessors, agents, attorneys, directors, officers, employees, affiliates, successors, assigns, trustees, bankruptcy trustees, personal representatives, beneficiaries, devisees, and legatees (hereinafter referred to as the "City Releasees") whether past, present or future, jointly and severally, of and from any and all debts, claims, potential claims, demands, actions, causes of action, potential causes of action, rights, obligations, damages, attorney's fees, costs, and liabilities of any and every kind or nature whatsoever, in law or in equity, past, present, or future, known or unknown, direct or indirect, asserted or unasserted, fixed or contingent, whether contemplated or not, whether based on a tort, contract, contribution, indemnification, or any other type of recovery, and whether for compensatory, consequential, incidental, statutory, punitive, or other damages, which the Rickenbacker Releasors have, may have or had related to, arising out of, or in connection with the Action, past or present asserted or unasserted breaches of the Lease Documents, and/or any alleged wrongful acts or conduct of the City including, without limitation, any matter that was raised, could have been, or should have been raised by the Rickenbacker Releasors in this Action, whether known or unknown, occurring prior to and up until the date of the execution of this Agreement; provided, however, that this Release by the Rickenbacker Releasors does not release any ongoing obligations of the City contained in the Lease Documents. 5. No Admission of Liability. Each Party expressly recognizes that this Agreement shall not in any way be construed as an admission by any Party hereto of any unlawful or wrongful acts or omissions whatsoever with respect to the Action. This Agreement shall not be admissible in any proceeding as evidence of any admission by any Party hereto of any violation of any law or regulation or wrongful act or omission. This Agreement may, however, be introduced as evidence in any proceeding to enforce this Agreement. 6. Non -Assignability or Transferability Of Claims. Each Party hereby warrants, declares, and represents that no part of any asserted or assertable claims has been assigned or transferred, and that each Party has full, exclusive, and unencumbered right, title, and interest in and to such asserted or assertable claims. 7. Governing Law and Venue Selection. This Agreement shall be governed by the laws of the State of Florida should it become necessary for any party hereto to engage in litigation to 5 Submitted into the public record or ' em(s) Yj �Lt�dE on I City Clerk enforce the terms of this Agreement. The Parties acknowledge that this Agreement is being entered into in Miami -Dade County, Florida and that the jurisdiction to enforce the terms of this Agreement shall exist in Circuit Court in Miami -Dade County, Florida. The Parties choose as their venue on any such action/litigation the State of Florida Circuit Court, in and for the Eleventh Judicial Circuit, Miami -Dade County. 8. Notices. Except where this Agreement expressly provides otherwise, all notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given (a) on the earlier of the date received or three business days after delivery, if sent by registered or certified mail (return receipt requested); (b) when delivered, if delivered personally; (c) on the next business day, if sent by overnight mail or overnight courier; (d) on the same day, if sent via e-mail. If any party is represented by counsel (whether or not named in this Agreement), any notice given by such counsel for such party shall be fully effective as if given by such party. Any notice shall be given to the recipient at these addresses (or at such other addresses as shall be specified by written notice given in accordance with this provision): To Rickenbacker: To City of Miami: Rickenbacker Marina, Inc. c/o Aabad Melwani 3301 Rickenbacker Cswy. Key Biscayne, FL 33149 E-mail: am@rnimarina.com With a copy to: David B. Haber, Esq. Haber Slade, P.A. 201 S. Biscayne Blvd., Suite 1205 Miami, FL 33131 E-mail: dhaber@dhaberlaw.com Daniel J. Alfonso City Manager Miami Riverside Center 444 SW 2" d Avenue, 10a' Floor Miami, FL 33130 With a copy to: Victoria Mendez, Esq. City Attorney Miami Riverside Center 444 S.W. 2nd Avenue, Suite 945 Miami, FL 33130 E-mail: VMendez@miamigov.com 6 Submitted into the ublic record fpr item(s) � ( 10 on 04i I !3) I . City Clerk 9. Miscellaneous. The Parties further agree as follows: a. No waiver of any breach or default hereunder shall be considered valid unless in writing and signed by the party giving such waiver, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature. b. Each Party hereto shall cooperate, shall take such further action and shall execute and deliver such further documents as may be reasonably requested by any other party in order to carry out the provisions and purposes of this Agreement. c. This Agreement may be executed in one or more counterparts, all of which taken together shall be deemed one original. d. In the event any terms or provision of this Agreement be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed as such deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect. 10. Knowing and Voluntary. The Parties acknowledge and represent that they have carefully read and fully understand all of the provisions, terms and conditions of this Agreement and have reviewed this Agreement with their respective counsel. The Parties further acknowledge and represent that they have entered into this Agreement freely, knowingly and without coercion and based on their own judgment. 11. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties, their personal representatives, successors, and assigns. 12. Interpretation. The Parties hereby acknowledge and agree that: (a) in the negotiation and drafting of this Agreement, they have each had the opportunity to consult with counsel of their choice; (b) each of their counsels has had an opportunity to contribute to the negotiation and drafting of this Agreement; and (c) the principle of construing a document most strictly against its drafter shall not apply with respect to the interpretation of this Agreement 13. Entire Agreement. This Agreement constitutes the complete understanding between the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and arrangements, both oral and written, between the Parties with respect to such subject matter. This Agreement may not be modified in any way unless by written instrument signed by each of the Parties. 14. WAIVER OF JURY TRIAL. AS A MATERIAL TERM OF THIS AGREEMENT, EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY Submitted into the blic rr record or item(s) H O on 0c)) I l City Clerk OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THIS WAIVER OF JURY TRIAL SHALL BE BINDING ON THE PARTIES' PERMITTED SUCCESSORS AND ASSIGNS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVER; (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER; AND (C) IT MAKES SUCH WAIVER VOLUNTARILY. 15. No Disability. Each Party fully declares that as signatory to this Agreement, he or she does not suffer from any mental or physical disability which would disable him or her from executing this Agreement and that he or she has had the benefit of advice from his or her counsel. 16. Authority to Execute. The Parties represent and warrant that the individuals executing this Agreement on each Party's behalf have the full authority to do so. [SIGNATURE PAGES TO FOLLOW] Submitted into the public ' record �j°,r i em(s) ly 4 10 N on 04)1 PS11 City Clerk Acknowledged, agreed, and accepted this /5 day of �ldr, 2015: RICKENBACKER MARIN INC. By: Title: gdwi- k/.47/- STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing i strument 'as acknowledged before me, this 20 /S, by did/ Aff01/ , as au Rickenbacker Marina, Inc., who has produced who did take an oath. A. A..—i ♦ti�,pY AV¢,,, JAVIER ARRITOLA �+� 1 % Notary Public . State of Florida MyCommission # FF 197132 Comm. Expires May 23, 2019 R^, ned through National Notary Assn.' /3 of 5e/04 /1, • , entative of fication, and ATTEST: By: Clerk Approved as to Form and Correctness: ity Attorney STATE OF FLORIDA COUNTY OF MIAMI-DADE Submitted into the public record or item(s) d (Le- on O°l l l City Cl CITY OF MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA By: The foregoing instrument was acknowledged before me this .612)-6w4 bfr , 2015, by AzAie 1 .) j41 foAS0 , as City Manager, and ILA hvto,\ day of , as City Clerk, of City of Miami, a Florida municipal corporation. They are personally known to me or have produced as identification and did/did not take an oath. Notary print name 10 OFEUA E. PERQ ii MY C,OMMISSION 1 FF 900503 EXPIRES*. August 2 R 11‘d, 9ondedThruNct�Public Underwrite Serial Number