HomeMy WebLinkAboutBack-Up DocumentSETTLEMENT AND RELEASE AGREEMENT
The Parties to this Settlement and Release Agreement (hereinafter,
"Agreement"), the City of Miami, a municipal corporation of the State of
Florida, whose address is 3500 Pan American Drive, Miami, Florida 33133
(hereinafter, the "City"); the Village of Key Biscayne, a municipal
corporation of the State of Florida, whose address is 88 West McIntyre
Street, Key Biscayne, Florida 33149 (the "Village"); and the National
Marine Manufacturers' Association (the "NMMA") (hereinafter collectively,
the "Parties"), in consideration of the premises and the covenants, conditions
and agreements set forth herein, each intending legally to be bound, enter
into this Agreement and hereby agree as follows:
WHEREAS, the City is the owner of property located at 3501
Rickenbacker Causeway, Miami, Florida which consists of two (2) portions:
the portion encompassing the Commodore Ralph Munroe Marine Stadium
(hereinafter the "Stadium") and the remaining portion of open space
intended to be designed and developed for active and passive recreational
uses, (hereinafter the "Civic Space", and the Stadium and the Civic Space
being hereafter collectively, the "Property"), which portions are shown on
the attached Exhibit A;
WHEREAS, on January 8, 2015, the City adopted Resolution No. 14-
01271, authorizing a revocable license agreement with the NMMA, allowing
NMMA to use the Civic Space and adjoining basin for the purpose of
hosting the Miami International Boat Showrm (hereinafter, the "Boat
Show"), which is currently owned and operated by NMMA;
WHEREAS, in addition to the Boat Show, the City has conducted,
and intends to continue to conduct, Events (as defined below) at the Civic
Space;
WHEREAS, the Village initiated certain litigation in Miami -Dade
County Circuit Court against the City under Case No. 15-2997 CA 09, and
the NMMA under Case No. 15-9160 CA 11, seeking inter alia declaratory
and injunctive relief pertaining to the permitting and staging of the Boat
Show at the Civic Space and the use of the Property (the "Lawsuits");
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WHEREAS, the Parties are informed that NMMA wishes to hold
future Boat Shows at the Civic Space;
WHEREAS, during the pendency of the Lawsuits, the Parties
convened both formal and informal settlement discussions, leading to their
mutual decision to stay proceedings, tolling time -periods and reserving all
rights, while negotiating in detail a comprehensive basis on which to settle
the Lawsuits;
WHEREAS, the Parties have negotiated the bases for settling the
Lawsuits brought by the Village against the City and the NMMA, in
consideration of and in accordance with the terms and conditions set forth
herein, and the Parties have entered into this Agreement to memorialize their
agreements in connection with the foregoing:
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby conclusively acknowledged, each of the Parties, each intending to be
legally bound, agree as follows:
1. Recitals; Incorporation. Each of the Parties acknowledges and
agrees that the introductory background recitals set forth above are true and
correct, are the basis for this Agreement, and are incorporated within and
made a part of the substance of this Agreement.
2. Purposes; General Terms. For the term of this Agreement, the
Parties wish to cooperate in furtherance of the City's conceptual plans to
design and develop the Civic Space as open space intended for active and
passive recreational uses and to manage effectively traffic congestion and
other potentially adverse impacts as may affect Rickenbacker Causeway on
account of Events staged at the Property. In connection therewith, the Parties
have agreed on certain restrictions and procedures for the Boat Show and
other Events so as to manage traffic and other impacts at or affecting the
Property or access to it. In furtherance of such agreements, the Parties
acknowledge, confirm and agree, during the term of this Agreement, as
follows:
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(a) The Village will be notified and given opportunities to
meet with the City and the selected designer to discuss goals in support of
planning work, and to review in advance and comment on the City's design
proposals as they progress and as implementation proceeds. The Parties
acknowledge that the Village's role in park design is advisory; it being
understood that the City retains sole discretion as to design plans for the
Civic Space.
(b) The Parties agree to meet to explore improving the
Property as part of a park system encompassing Virginia Key and
Rickenbacker Causeway with passive and active recreational amenities,
integrated as part of and compatible with Rickenbacker Causeway's function
both as an essential access link for the Village and as a desirable recreational
venue in its own right.
(c) The City and the NMMA agree to develop and
implement a comprehensive transportation plan for Boat Shows at the
Property during the term of this Agreement that is intended to: (i) minimize
disruptions to regular traffic flows on the Rickenbacker Causeway that may
unreasonably impede traffic to and from the island of Key Biscayne and the
mainland, and (ii) achieve a traffic flow result substantially consistent with
the maintenance of traffic (MOT) plans developed by the City and Miami -
Dade County in collaboration with the Village and the NMMA and
implemented for the 2016 and 2017 Boat Shows;
(d) Working collaboratively with the Village and, as
applicable, Miami -Dade County, the City will from time -to -time during the
term of this Agreement use best efforts to establish general ("Plug and
Play") or other specifically adapted maintenance of traffic (MOT) plans for
Medium, Large, and Major Events at the Property. MOT plans will be
calibrated based on Event parameters to manage traffic flows onto
Rickenbacker Causeway from the mainland, to provide transit alternatives to
limit reliance on private vehicles, to manage within -the -Property and area -
wide parking, imposing strictly enforced parking limits to discourage Event -
oriented vehicular access onto Rickenbacker Causeway, anticipating signage
and public education, and evacuation plans for medical emergencies and
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otherwise. MOTs will anticipate seasonality and other contingencies such as
ordinary regular volume and high-volume traffic on the Causeway, including
high-volume egress due to weather events.
(e) During the term of this Agreement, special events
elsewhere on City -owned property on Virginia Key will be subject to the
MOT requirements as prescribed by the City or County.
(f) Subject to mutually determined needs and due diligence
to confirm suitability of the site, the City and the Village may plan and
cooperate with a view toward establishing a joint venture for a recreational
and ball fields complex at the under -remediation former landfill site.
3. Events.
(a) Events Defined; Categories. "Events" at the Property are
defined as Small Events that require a permit from the City, and Medium,
Large, and Major Events regardless of whether they require a permit from
the City pursuant to Chapter 54 of the City of Miami Code of Ordinances
(2018) in effect as of the date of the execution of this Agreement. There are
four (4) categories of Events as follows:
i. "Small Events,"
ii. "Medium Events,"
iii. "Large Events," and
iv. "Major Events."
Subject to Section 4 below, the staging and frequency of and
attendance at Events at the Property will be as follows:
(b) Small Events. Small Events are Events with attendance
of up to 3,000 persons per day. Subject to Section 4 below, there is no
limitation on the number, duration, or frequency of Small Events in the
Civic Space per year; provided that if there are multiple Events scheduled on
the Property on the same day, the total number of attendees per day will
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determine the type of Event(s) per day for purposes of subsection (c) (iii),
and the overall attendance limits specified herein will apply to the
combination of Events held on the same day or days.
(c) Medium Events and Large Events. Medium Events and
Large Events, as defined below, do not include Major Events as defined in
Section 3 (d) below. Subject to the non -Event period described in Section 4,
there is no limitation on the duration (consecutive number of days) of each
Medium Event or Large Event; provided that if there are multiple Events
scheduled on the Property on the same day, the total number of attendees per
day will determine the type of Event for purposes of subsection (c)(iii), and
the overall attendance limits specified herein will apply to the combination
of Events held on the same day or days. In addition, Eventstar or similar -
type tent structures may be used to an extent up to the same or similar
configuration as those used for the Boat Show for Events within the Property
other than the Boat Show; provided that deployment of such tent structures
shall be limited to the period from November 1 until March 31 each year and
shall be limited to an area not greater than the footprint for the tent structures
used for the Boat Show. The set-up, take-down, and use of tent structures
shall be managed as provided in Section 4.
(i) Medium Events. Medium Events are Events with
attendance between 3,000 and 8,000 persons per day.
(ii) Large Events. Large Events are Events with
attendance between 8,000 and 15,000 persons per day.
(iii) Limits. The number of Medium Events and Large
Events, as defined herein, is limited to a maximum of Medium Events and
Large Events in the Property per year as determined in accordance with the
following schedule, but in no case shall the total number of Medium Events
and Large Events exceed fifteen (15) per year:
k,
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14
15
2
13
15
3
12
15
4
11
15
5
10
15
6
8
14
7
6
13
8
4
12
9
3
12
10
2
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(d) Major Events. Major Events are Events utilizing the
same or similar scope and usage of the Property as the Boat Show, generally
as conducted in 2016 and 2017. There can be only one (1) Major Event per
year on the Property. Provided that the Boat Show continues to be the one
(1) Major Event per year on the Property, the Boat Show will occur on the
Property and adjoining basin for five (5) days over Presidents Day weekend,
with adequate time for set up and tear down. Any other Major Event, if
applicable, may be scheduled to occur only during a period in which the
Miami Open Tennis Tournament or another Large or Medium Event on the
Property is not occurring. In accordance with this Agreement, the Parties
will not consent to a change to the date of the Miami Open Tennis
Tournament to President's Day Weekend, so long as the Boat Show
continues to occur at that time as the one (1) Major Event per year on the
Property. If the Miami Open Tennis Tournament moves from Crandon Park
and another comparable event takes its place, the Parties agree to negotiate a
black -out date accordingly; provided, however, that no black -out date will
apply to the five (5) days over Presidents Day weekend, so long as the Boat
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Show continues to be the one (1) Major Event per year on the Property.
Subject to Section 4 below, the staging of any Major Event will be limited to
the duration of the Boat Show, including set-up and take-down. The Major
Event can consist of the Boat Show or another comparable Major Event.
(e) Event Producer(s). Event Producer shall mean the person
or entity that is responsible for, inter alia, organization and promotion of the
Event(s), obtaining any required special event permit pursuant to Chapter 54
of the City Code and implementing the MOT plans for each Event, and
payment of any and all expenses for the Event(s).
(f) General Limitations. The City will take steps consistent
with its regular Event -permitting and management procedures and standards
to require Event Producers to comply with permit requirements and
provisions of the City Code governing use of public spaces. The City will
require Event Producers to plan, manage and control Events, so that Events
are contained and controlled within the venue footprint designated for the
Event, and that traffic control is managed consistent with Section 8 of this
Agreement.
4. Non -Event Period. The Property will have at least 213 days per
year without any Events (the "Non -Event Period"). For purposes of clarity,
apart from park rules and City Code provisions governing access to and use
of City parks generally, and other applicable laws, there are no other
limitations on any other gatherings, groups, or attendance by members of the
public at the Property that do not require a special event permit pursuant to
Chapter 54 of the City Code during this 213 -day Non -Event Period. The
213 -day Non -Event Period does not have to be in consecutive days, but is a
total number of non-event days per year. Active "Set-up" and "Take-down"
for Events before and after Events must occur during time periods specified
for Events; it being agreed that active Set -Up and Take -Down shall not
occur during the Non -Event Period. The presence of tents on the Property
during the Non -Event Period is permitted and does not impact the
calculation of the Non -Event Period, so long as that presence is neither
permanent nor intended to serve as a venue for activities that are not within
the scope of Events provided for herein, and so long as the presence of tents
does not prevent use of or access to the Property by the general public for
active and passive recreational purposes that would be otherwise available
on the Property. Parking of vehicles in the Civic Space unrelated to Events
occurring at the Property is permitted in the 213 -day Non -Event Period;
provided that parking will be constrained to the parking area designated
within the Civic Space for such purpose (estimated to encompass
approximately 2,500 vehicles), and that such parking will not adversely
affect regular Civic Space uses during the Non -Event Period.
5. Non -Waiver of Rights. For the term of this Agreement, as set
forth in section 10, this Agreement constitutes a binding and enforceable
contract between the Parties, and sets forth established and ongoing
covenants and conditions affecting the Property. However, neither the fact
that this Agreement was entered into, nor the terms and conditions of this
Agreement, shall give rise to admissions or waivers on the part of either
Party. The Parties agree that this Agreement shall not be used in any legal
proceeding as evidence or argument that either the City or the Village
waived or waives any rights they may have or have had or may have in the
future with regard to the use of the Property, except for the expressed terms
and conditions of this Agreement. Except as necessary to enforce the terms
and conditions of this Agreement, the Parties specifically agree that this
Agreement shall not be used by any Party as evidence or argument that the
Village or any of its citizens have standing to assert any claim against the
City on account of the use of the Civic Space. The Village reserves rights as
to claims of standing and, with respect to claims or causes of action arising
after the date hereof, the Village does not waive rights, claims or legal
theories as may exist under deed restrictions pertaining to lands comprising
the Civic Space, or under the Virginia Key Master Plan, or under law.
6. Cooperation.
(a) The City agrees to publish a Calendar of Events,
consistent with this Agreement and the Non -Event Period, showing Events
scheduled to take place in the Civic Space and elsewhere at the Property or
other areas administered by the City, and indicating the nature and duration
of the Events. The City will, to the extent feasible, provide advance
notification to the Village of the set-up and take-down days, which are
identified as Small, Medium, Large or Major Events, and the City will
confirm that MOT plans (if applicable) have been developed and
disseminated to the Event Sponsor and the City and Village police
departments.
(b) The City agrees to provide the Village with advance
notification, as feasible, of tentatively scheduled Events and changes in the
published Calendar of Events. The Village and the City agree that advance
notification of tentatively scheduled Events will be subject to confidentiality
as allowed by law
(c) The City will make its best efforts to coordinate Large
Events or Major Events so that none scheduled by the City occur at the same
time as the Miami Open or other events with attendance of more than 8,000
persons per day scheduled by others (not by the City) on Virginia Key, in
Crandon Park or in the Village or Bill Baggs State Park.
(d) The Village will make its best efforts to coordinate
Village -sponsored events with attendance of more than 8,000 persons per
day so that none scheduled by the Village occur at the same time as other
Large Events or Major Events scheduled by the City or by others (not the
City and not the Village) and occurring on Virginia Key or Key Biscayne.
7. Black Out Dates. The City agrees that no Medium Event,
Large Event, or Major Event will be scheduled during the Miami Open;
however, the Parties agree that Small Events may occur during the Miami
Open.
8. Maintenance of Traffic Plans. Among planning, permitting and
staging requirements for Medium, Large and Major Events, all such Events
will be conditioned upon an MOT review and assessment, taking into
account projected traffic and parking impacts, and transit and MOT needs
consistent with this Agreement, based on the size, nature and duration of the
planned Event, so as to manage and mitigate possible adverse traffic impacts
on Rickenbacker Causeway. The City and Event Sponsor will consult with
the Village in identifying MOT plans as reasonably determined to be
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necessary for each Event, reasonably in advance and in any case prior to
issuing an Event permit, and the City and Event Sponsor will reasonably
consult with the Village in implementing approved MOT plans to effectuate
Event management in a manner consistent with the purposes of this
Agreement. Such MOT review and assessment will include advance
coordination with Miami -Dade County as required to develop and effectuate
an MOT plan suitable for the Event. The entire cost of each MOT will be the
responsibility of the Event Sponsor(s) unless it is an event for which fees are
waived (in which event, absent an interlocal or similar arrangement to the
contrary, the City will bear the cost of the MOT). If applicable based on
intergovernmental support for approved MOT plans, reimbursable expenses
for the City and Village (and Miami -Dade County, if applicable) will be part
of the Event Sponsor's MOT financial undertaking.
9. Dismissal of Litigation and Releases. Within ten (10) days of
the Parties' execution of this Agreement, the Parties shall file a joint
stipulation of dismissal, without prejudice, of the litigation styled Village of
Key Biscayne v. City of Miami and National Marine Manufacturers
Association, Miami -Dade County Circuit Court, Case No. 15-2997 CA 09,
in its entirety against all parties and intervenors with all parties to the
litigation bearing their own costs and attorneys' fees. The Village also
agrees to voluntarily dismiss without prejudice the following litigation cases
in their entirety against all parties and intervenors with all parties to the
litigation bearing their own costs and attorneys' fees:
(a) Village of Key Biscayne v. Miami -Dade County, Miami -
Dade County Circuit Court, Case No. 16-3899 CA 02; and
(b) Village of Key Biscayne v. National Marine
Manufacturers Association, Miami -Dade County Circuit Court, Case No.
15-9160 CA 11.
The dismissal of the Lawsuits without prejudice is intended to result
in a resolution of the Lawsuits, consistent with this Agreement; provided
that in effectuating such dismissal, the Parties retain and reserve all claims,
rights, objections, and legal theories as were asserted or could have been
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asserted by any Party in the Lawsuits as they relate to future events, use, and
development of the Property. Subject to the foregoing reservation and
consistent with the non -waiver provisions set forth in Section 5, in
consideration of this Agreement and conditioned upon its performance, the
respective Parties each hereby absolutely and irrevocably release, waive,
acquit, remise, satisfy, and discharge each other and their respective elected
officials, officers, administrators, employees, agents, servants, consultants,
committees, representatives, and members thereof, whether public
employees or private citizens, and their respective agencies,
instrumentalities, heirs, executors, administrators, personal representatives,
successors, and assigns ("Released Parties"), of and from, any and all causes
of action, actions, suits, obligations, liabilities, debts, dues, sums of money,
costs, losses, penalties, fines, expenses (including attorney's fees), damages,
judgments, claims, liens, and demands whatsoever, whether arising from law
or in equity, which the Parties, respectively, or any of their respective legal
or equitable successors or assigns, now has, whether asserted or un -asserted,
arising from the beginning of time to the date of this Agreement, against the
Released Parties or any of them by reason of any matters, claims or
assertions pleaded in the Lawsuits; provided that such releases do not apply
to the terms and conditions of this Agreement or the Parties' rights to
enforce this Agreement, or to claims or objections related to future events,
use or development of the Property.
Notwithstanding the foregoing, the Village agrees that it shall not file
any lawsuit or bring any claim with respect to Eventsor use of the Property
for Events or with respect to the renovation or rehabilitation of the Stadium
during the term of this agreement, as described in Section 10 of this
Agreement, except for the following:
(a) to enforce the terms of this Agreement;
(b)if another Major Event is substituted for the Boat Show during the
term of this Agreement, to challenge the substitute Major Event for
the Boat Show;
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(c) If during the term of this Agreement the City decides to develop or
use the Property other than as contemplated in this Agreement, to
challenge the new development scheme or use of the Property.
10. Term of Agreement; Survival. The entirety of this Agreement
shall sunset and expire at the earlier of four (4) years from the date of the
execution of this Agreement; or at the time the Marine Stadium is renovated
and such renovation is determined to be finally completed by the issuance of
all required government permits including but not limited to a temporary
certificate of occupancy or a Certificate of Occupancy; provided that the
City and Village agree to meet and review whether it is mutually desirable to
execute an extension, amendment, or replacement of theAgreement; subject
to approval by their respective legislative bodies. None of the provisions of
this Agreement are enforceable after its expiration.
11. Severability. If a court of competent jurisdictions determines
finally that any provision of this Agreement is unenforceable or invalid, such
determination shall not affect the enforceability or validity of any other
provision of this Agreement or of the Agreement as a whole excluding the
element determined to be unenforceable or invalid, and the element
determined to be unenforceable or invalid shall be construed in a manner so
as to be deemed enforceable and valid as practicable so as to maintain
consistency with the purposes, intent and effect of this Agreement as a
whole. Any such determination that the application of any provision of this
Agreement to any person or circumstance is illegal or unenforceable shall
not affect the enforceability or validity of such provision as it may apply to
any other persons or circumstances.
12. Notices. All notices, requests, demands, and other
communications to be delivered under this Agreement shall be in writing
and shall be deemed to have been given when delivered and received to the
following addresses and by electronic mail:
a. If to the Village: John C. Gilbert
Village Manager
Village of Key Biscayne
88 West McIntyre Street
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0
c
Key Biscayne, Florida 33149
jgilbert@keybiscayne.fl.gov
With a copy to: John K. Shubin, Esq.
Ian E. DeMello, Esq.
Shubin & Bass, P.A.
46 SW 1 st Street
Miami, FL 33130
j shubin@shuinbass.com
idemello@shubinbass.com
If to the City: Emilio T. Gonzalez, Ph.D.
City Manager
City of Miami
444 SW 2nd Avenue, 9t' Floor
Miami, Florida 33130
etgonzalez@miamigov.com
With a copy to: Victoria M6ndez
City Attorney
City of Miami
444 S.W. 2nd Avenue, 9t' Floor
Miami, Florida 33130
vmendez@miamigov.com
If to the NMMA: National Marine Manufacturers
Association
231 S. LaSalle St., Suite #2050
Chicago, IL 60604
Attn: Ben Wold, Executive Vice
President
Craig Boskey, Senior Vice President,
& CFO
With a copy to: Alan T. Dimond, Esq.
Timothy A. Kolaya, Esq.
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Greenberg Traurig, P.A.
333 S.E. 2nd Avenue, Suite 4400
Miami, Florida 33131
dimonda@gtlaw.com
kolayat@gtlaw.com
or to such other address(es) and electronic mail address(es) as the
Parties shall have last designated by written notice.
13. Non -Performance and Remedies. Each of the Parties
acknowledges that, in the event of a breach of this Agreement, the Village
and City agree that they will be entitled to injunctive or other equitable
relief, including specific performance, to enforce the terms and conditions of
this Agreement. In the event of a claimed breach or non-performance
hereunder, the non -breaching Party will provide the Party said to be in
breach with written notice specifying the nature of the claimed breach,
whereupon (absent imminent harm to the noticing Party) the noticed Party
will have ten days to rectify the claimed breach, failing which the noticing
Party may pursue remedies hereunder. Notwithstanding the foregoing, the
non -breaching Party reserves the right to seek immediate relief if a claimed
breach or non-performance of this Agreement is likely to cause imminent
harm or is not reasonably susceptible to cure. The Parties agree that
monetary damages, and attorney's fees and costs, are not recoverable in any
action or proceeding for enforcement of this Agreement or any action or
proceeding related to the enforcement or enforceability of this Agreement;
the Parties agree to bear their own attorney's fees and costs.
14. Non -Assignment. This Agreement may not be assigned or
delegated by the Parties.
15. Entire Agreement; Amendments. This Agreement constitutes
the entire agreement among the Parties regarding the subject matter hereof
and may not be amended or modified except in writing signed by each of the
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Parties by their respective duly authorized representatives after approval by
their respective legislative bodies.
16. Interpretation. This Agreement is a joint product of the
respective Parties and may not be more strictly construed against any Party.
The Parties acknowledge, agree and stipulate that all of the above terms and
conditions have been freely bargained for, and each Party is foregoing
certain rights and assuming duties and obligations which but for this
Agreement, would not have been released or assumed. Accordingly, the
Parties agree that this Agreement is fully and adequately supported by
reasonable and adequate consideration and that the Parties have had an
opportunity to consult with and have in fact consulted with attorneys and
experts of their respective choices and have had the opportunity to discuss
this matter and the matters which are the subject hereof, with counsel of
their respective choices.
17. Authorization. Each signatory hereto represents that he/she is
authorized by the entity on behalf of which he/she is acting to enter into this
Agreement and the covenants contained herein and to bind the entity which
each represents.
18. Third Party Beneficiaries. There are no express or implied
third -party beneficiaries under this Agreement.
19. No Partnership. This Agreement does not create a partnership
or joint venture between the Parties. The City and Village remain
independent public agencies. Each Party will bear its own costs incurred in
negotiating and finalizing this Agreement.
IN WITNESS WHEREOF, the Parties by their duly authorized
representatives have executed and sealed this Settlement and Release
Agreement entered into this day of 12018.
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