Loading...
HomeMy WebLinkAboutExhibitSETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (the "Agreement") is made and entered into this day of , 2023, by and between the CITY OF MIAMI, FLORIDA (hereinafter, "CITY"), a Florida municipal corporation, and 1000 BRICKELL, LTD., (hereinafter, "1000 BRICKELL"),a Florida limited partnership. WITNESSETH: WHEREAS, the CITY and 1000 BRICKELL are litigants in a matter styled as City of Miami v. 1000 Brickell, Ltd., Case No. 3D22-1897, which is presently on appeal in the Third District Court of Appeal of the State of Florida (hereinafter, the "Reverter Litigation"); and WHEREAS, the City Commission via the unanimous adoption of Resolution No. 23-0229 on May 11, 2023 (the "Resolution"), directed the City Attorney's Office to: (i) abandon all appeals in the above - captioned litigation; and (ii) negotiate an indemnification agreement in favor of the City related to the settlement of the pending Reverter Litigation; and (iii) that each party will bear their own attorney's fees and costs; and WHEREAS, through the adoption of the Resolution, the City Commission further directed the City Manager to: (i) process such Future Land Use Map (FLUM) amendment and rezoning to restore the FLUM and zoning designations of the parcels identified via Folio Nos. 01-0207-020-1070 (the "Northern Parcel") and 01-0207-030-1011 (the "Southern Parcel"), as the same are legally described in Exhibit "A," to Restricted Commercial and "T6-48b-O, Urban Core Transect Zone - Open; and (ii) negotiate and execute a license agreement by and between the CITY and 1000 BRICKELL for use of the Northern Parcel as a privately -owned, public park for a limited term; and WHEREAS, the parties wish to memorialize the settlement consistent with the terms outlined in the Resolution and the terms set forth herein. NOW, THEREFORE, in consideration of the covenants contained herein, and the performance thereof, the parties do hereby agree as follows: 1.0 RECITALS. The foregoing recitals are true and correct and are incorporated herein by reference. All exhibits to the Agreement are hereby deemed a part hereof. 2.0 REVERTER LITIGATION. With regard to the Reverter Litigation, the CITY and 1000 BRICKELL agree as follows: 2.1 City Appeal(s): The CITY hereby agrees to enter a notice of voluntary dismissal with prejudice of its pending appeal in the Reverter Litigation (hereinafter, the "Notice"). A copy of the form of the Notice agreed to by the parties is attached hereto as Exhibit "C." The CITY shall file the Notice with the Third District Court of Appeal for the State of Florida within three (3) business days of the execution of this Agreement and the License Agreement, as defined herein, whichever comes later. C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx 2.2 Reverter Litigation Costs: The CITY and 1000 BRICKELL hereby agree to enter a joint motion to vacate the award of costs entered in favor of 1000 BRICKELL and submit a proposed order to the Court (the "Order"). A copy of the agreed upon form of the Order is attached hereto as Exhibit "C." The Order shall be filed on the same day as the CITY files the Notice. 3.0 INDEMNIFICATION. 1000 BRICKELL agrees to indemnify, defend (at its own cost and expense), and hold harmless the CITY, its respective officers, officials, and employees, in their individual or official capacity (hereinafter collectively referred to as the "Indemnitees") from and against any and all claims, liabilities, damages, suits, and causes of action of any nature arising out of, resulting from, related to, stemming from, or in connection with, directly or indirectly, this Agreement (collectively, "Covered Claims"). 1000 BRICKELL shall protect, indemnify, defend (at its own cost and expense), and hold the CITY harmless and pay all of the CITY's reasonable costs and reasonable attorney's fees incurred by the CITY in connection with any Covered Claims up to an aggregate amount of Five Hundred Thousand Dollars and 00/100 ($750,000.00) (the "Indemnity Cap"). The City shall be solely responsible for any amounts (including all costs, attorney's fees, damages, and any other expenses of any type) in connection with any Covered Claims that exceed the Indemnity Cap and will not look to 1000 BRICKELL to pay, compensate, or reimburse the City for any amount beyond the Indemnity Cap. The City's agreement to the Indemnity Cap is a material inducement for 1000 BRICKELL to enter into this Agreement. In the event of any action arising out of, resulting from, or in connection with, directly or indirectly, this Agreement, the City shall have the sole right to select its counsel. At its sole discretion, the City may participate in the defense of any action, but such participation shall not relieve 1000 BRICKELL of any obligation of this Section. The City retains the right to make all decisions with respect to its representations in any legal proceeding, including its inherent right to settle litigation. 4.0 follows: RELEASE_ Except for the Parties' obligations under this Agreement, the Parties agree as 1000 BRICKELL hereby releases, acquits, and forever discharges the City, including all officers, officials, and employees, from any and all manner of actions, causes of action, suits, debts, dues, sums of money, accounts, bonds, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims for principal, interest, attorneys' fees, costs, direct and consequential damages, and special and punitive damages, judgments, executions, claims, and demands whatsoever, in law or in equity, which 1000 BRICKELL ever had, now has, or may have against the City from the beginning of time to the present, relating to the subjects of the Reverter Litigation. This Release, however, shall not affect the rights and obligations of the Parties set forth in this Agreement, nor shall it preclude 1000 BRICKELL from asserting any action, causes of action, or claim related to the City's redesignation of the Property from "Restricted Commercial" with an "Urban Central Business District Overlay" and "T6-48b-O,' Urban Core Transect Zone," to "Public Parks & Recreation" and "CS," Civic Space, via the adoption of Ordinance No. 131715 that 1000 BRICKELL ever had, now has, or may have against the City from the beginning of time to the present (collectively, the "Land Use Claims"). The City further waives any potential defenses to the Land Use Claims based on the statute of limitations, laches, or the like and further reserves its rights to assert any other defenses. C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx 5.0 LAND USE APPLICATIONS. Within sixty (60) days of the execution of this Agreement, the City Manager, either directly or through his staff, shall present to the CITY's Planning, Zoning & Appeals Board (PZAB) such applications as may be necessary to seek change the Future Land Use Map (FLUM) and zoning designations of both the Northern Parcel and Southern Parcel from their present designations to FLUM and zoning designations which are consistent with those of other privately -owned parcels within the immediate area (hereinafter, the "Applications"). The City Manager shall use his best efforts to ensure that the Applications are presented for initial action and consideration by the City Commission at its regularly scheduled Planning & Zoning meeting held in November of 2023. The CITY shall bear all the costs and expenses related to the preparation, processing, notice, and advertising of the Applications necessary to satisfy the requirements of all applicable state and local regulations. Nothing herein guarantees any particular outcome on the Applications before the City Commission and the approval of this Agreement is not intended to, and will not, imply or require any specific recommendation by staff regarding the Applications, nor any outcome before the City Commission upon the hearing of the same. 6.0 NORTHERN PARCEL USE. Within ten (10) days of the execution of this Agreement, 1000 BRICKELL shall present to the CITY for its review and comment a draft license or management agreement (the "License Agreement") authorizing the CITY's use of the Northern Parcel as a park for the minimum term of eighteen (18) months, subject to such termination rights reserved by 1000 Brickell, with such term commencing as of the date the execution of the License Agreement by the parties. 7.0 MISCELLANEOUS. 7.1 Further Assurances. The parties hereby agree to do all acts and things reasonably necessary from time to time, whether prior to, on and after the execution of this Agreement, to effectuate the terms of the Agreement, to carry out the intentions and purposes of the Agreement more effectively and completely without further consideration. Such acts and things include but are not limited to taking all reasonably required action necessary to execute and deliver such further and other documents, certificates, amendments, and other written instruments which may be reasonably necessary to effectuate the intent and purpose hereof and to carry out all transaction contemplated by the Agreement. 7.2 Cooperation, Consents, Approvals. The parties shall cooperate fully with each other and their respective counsel in connection with any actions reasonably necessary to be taken as part of their respective obligations in connection with this Agreement and any action authorized hereunder. In any instance under the terms of this Agreement in which the consent or approval of a party hereto to any proposed action is required, such consent or approval shall be requested in writing and shall not be unreasonably withheld or delayed unless otherwise set forth herein. 7.3 Successors and Assigns. All the terms and provisions of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties and their respective administrators, executors, legal representatives, heirs, successors and permitted assigns, whether so expressed or not. C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx 7.4 Indulgences not Waivers. No indulgences extended by any party hereto to any other party shall be construed as a waiver of any breach on the part of such other party, nor shall any waiver of one breach be construed as a waiver of any rights or remedies with respect to any subsequent breach. 7.5 Amendments. The provisions of this Agreement may not be amended, supplemented, waived or changed, other than by a writing signed by the party against whom enforcement of any such amendment, supplement, waiver or change is sought and making specific reference to this Agreement. 7.6 Construction. The language of this Agreement will be deemed to be the language chosen by all the parties to express their mutual intent, and no rule of strict construction shall be applied against any party. 7.7 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Confirmation of execution by electronic transmission of a facsimile signature page shall be binding upon any party so confirming. 7.8 Headings. The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of the Agreement and shall not limit or otherwise affect in any way the meaning or interpretation of this Agreement. 7.9 Notices. All notices, requests consents and other communications required or permitted under this Agreement shall be in writing (including electronic transmission) and shall be (as elected by such person giving notice) hand delivered by messenger or courier service (including overnight mail service), electronically transmitted, or mailed by registered or certified mail (postage prepaid), return receipt requested addressed to: C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx 1000 BRICKELL, LTD. 1000 Brickell, Ltd. Attn: W. Allen Morris, President Hammond Venture, Inc. 121 Alhambra Plaza, Ste. 1600 Coral Gables, Florida 33134 Phone: (305) 443-1000 E-mail: WAM@allenmorris.com CITY OF MIAMI Mr. Arthur Noriega, City Manager City of Miami 3500 Pan American Drive, 2nd Floor Miami, FL 33133 Phone: (305) 250-5400 E-mail: anoreiga@miamigov.com With a copy to: Mr. Javier E. Fernandez, Esq. SMGQ Law 1200 Brickell Avenue, Ste. 950 Miami, FL 33131 Phone: (305) 377-1000 E-mail: TFernandez@smgqlaw.com Additional copy to: Mr. Scott D. Kravetz, Esq. Duane Morris LLP 201 S. Biscayne Blvd., Ste. 3400 Miami, FL 33131 Phone: (305) 960-2240 E-mail: SDKravetz@duanemorris.com With a copy to: Mrs. Victoria Mendez, Esq. City Attorney Office of the City Attorney 444 S.W. 2nd Avenue, 9th Floor Miami, FL 33130 Phone: (305) 416-1832 E-mail: vmendez@miamigov.com Each notice shall be deemed delivered (a) on the date delivered, if by personal delivery or courier; (b) on the date of transmission with confirmation of receipt, if by electronic transmission; and (c) on the date three (3) business days following the deposit of the notice in a U.S. Mail depository, properly addressed and with necessary postage. 7.10 Relationship of the Parties. The parties hereto acknowledge that they are separate and independent entities and nothing contained herein shall be deemed to create a joint venture, association, partnership, agency or employment relationship between the two. Neither party shall have the power to act in the name of, on behalf of, or incur obligations binding upon the other party. Neither party shall acquire an interest in the business or operations of the other by virtue of this Agreement. Furthermore, neither party endorses or warrants the activities of the other or their business, business practices, projects, products, services or other activities. 7.11 Severability. In the case any one or more of the provisions contained in this Agreement or any application thereof shall be deemed invalid, illegal or unenforceable in any respect, such C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx affected provisions shall be construed and deemed rewritten so as to be enforceable to the maximum extent permitted by law, thereby implementing to the maximum extent possible, the intent of the parties hereto, and the validity, legality and enforceability of the remaining provisions contained in this Agreement shall not in any way be affected or impaired thereby. 7.12 Survival. All covenants, agreements, representations and warranties made herein or otherwise made in writing by any party pursuant hereto shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. 7.13 Attorney's Fees. Each party shall bear their own attorney's fees and costs in connection with this Agreement. [SIGNATURE PAGES TO FOLLOW] C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx WITNESSES: Print Name: Print Name: STATE OF FLORIDA ) ) ss: COUNTY OF MIAMI-DADE ) 1000 BRICKELL 1000 BRICKELL, LTD., a Florida limited Partnership By: W. Allen Morris, President, Hammond Venture, Inc., as General Partner Date: The foregoing instrument was acknowledged before me this day of , 2023, by W. Allen Morris, President of Hammond Venture, Inc., as General Partner of 1000 Brickell, Ltd., who is personally known to me or has produced as identification. Notary Public My Commission Expires: Print Name C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx CITY CITY OF MIAMI, FLORIDA, a Florida municipal corporation By: ATTEST: By: Todd B. Hannon City Clerk APPROVED AS TO LEGAL FORM & CORRECTNESS: By: Victoria Mendez, Esq. City Attorney Arthur Noriega City Manager C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx EXHIBIT "A" LEGAL DESCRIPTION OF NORTHERN PARCEL AND SOUTHERN PARCEL Northern Parcel A portion of Lots 7 and 8 , Block 72 South, CITY OF MIAMI, according to the plat thereof recorded in Plat Book "B at Page 41 of the Public Records of Dade County, Florida, being particularly described as: Begin at the Southeast corner of said Lot 7; then run Northeasterly along the Southeasterly boundary of said Lot 7 and 8 a distance of 103.66 feet to the most Easterly corner of said Lot 8; thence run Westerly along the North boundary of Lot 8 a distance of 103.51 feet to a point; said point being 109.56 feet East of the West boundary of said Block 72 South; thence run Southerly over and across said Lots 7 and 8 along a line parallel to the West boundary of said Block 72 South a distance of 100.09 feet to the point of intersection with the South boundary of said Lot 7; thence run Easterly along the South boundary of said Lot 7 a distance of 76.28 to the Point of Beginning, containing an area of 9,000 square feet, more or less. Also known as Folio No. 01-0207-020-1070. Southern Parcel Lot 1, Block 73, SOUTH CITY OF MIAMI, according to the plat thereof recorded in Plat Book "B" at Page 41 of the Public Records of Dade County, Florida. LESS AND EXCEPTING THEREFROM the South 14 feet and the West 84.14 feet thereof. Containing an area of 3,000 square feet, more or less. Also known as Folio No. 01-0207-030-1011. C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx EXHIBIT "B" NOTICE OF VOLUNTARY DISMISSAL C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx IN THE THIRD DISTRICT COURT OF APPEAL STATE OF FLORIDA CASE NO.: 3D22-1897 L.T. NO.: 14-11755 CITY OF MIAMI, Appellant, v. 1000 BRICKELL, LTD., Appellee. APPELLANT'S NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE Appellant City of Miami, pursuant to Florida Rule of Appellate Procedure 9.350(b), hereby files this Notice of Voluntary Dismissal with Prejudice, dismissing the instant appeal with prejudice, with all parties to bear their own fees and costs. Respectfully submitted, VICTORIA MENDEZ, City Attorney ERIC J. EVES, Assistant City Attorney C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx Attorneys for Appellant 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130-1910 Phone: (305) 416-1800 Primary Email: eeves@miamigov.com Secondary Email: csantos@miamigov.com By: /s/ Eric J. Eves Eric J. Eves Florida Bar No. 91053 C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this day of May, 2023, a true and correct copy of the foregoing was sent by electronic mail to the persons set out in the Service List below and the original has been filed electronically with the Clerk of this Court via Florida's E-Filing Portal. By: / s / Eric J. Eves Eric J. Eves SERVICE LIST Scott D. Kravetz, Esq. sdkravetz@duanemorris .com Richard D. Shane, Esq. rdshane@duanemorris .com DUANE MORRIS LLP 201 South Biscayne Boulevard Suite 3400 Miami, Florida 33131 Counsel for Appellee 1000 Brickell, Ltd. C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx EXHIBIT "C" ORDER TO VACATE AWARD OF COSTS C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx 1000 BRICKELL, LTD F/K/A 1000 BRICKELL, INC., et al., Plaintiffs, vs. CITY OF MIAMI, Defendant. IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO.: 14-11755 CA (23) AGREED ORDER VACATING COSTS JUDGMENT Pursuant to the agreement of the parties, it is hereby ORDERED AND ADJUDGED: The Order on Plaintiff 1000 Brickell, Ltd.'s Motion to Tax Costs entered on March 17, 2023 and Final (Costs) Judgment entered on March 28, 2023 are VACATED. The parties have agreed to bear their own costs. DONE AND ORDERED in Chambers, Dade County, Florida this day of May 2023. THE HONORABLE BARBARA ARECES CIRCUIT COURT JUDGE Copies furnished to: All Counsel of Record C:\Users\rdshane\Desktop\1000 Brickell Ltd - Settlement Agreement (COA Revision) with (JEF Edits Comments) (RDS comments).docx