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RESOLUTION 91-20233 RESOLUTION NO. 91-20233 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH APPROVING A SETTLEMENT WITH AT&T COMMUNICATIONS OF THE SOUTHERN STATES, INC. AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A SETTLEMENT AGREEMENT, SETTLING AT&T COMMUNICATIONS OF THE SOUTHERN STATES, INC. V. CITY OF MIAMI BEACH, CASE NO. 90-55849, IN THE ELEVENTH JUDICIAL CIRCUIT COURT. WHEREAS, in AT&T Communications of the Southern States, Inc. v. City of Miami Beach, case No. 90-55849 in the Eleventh Judicial Circuit Court, AT&T made a claim against the City in the amount of $128, 417 . 44 for overpaid Public Utility Tax during the period of December 1987 through May 1988 ; and WHEREAS, the City has negotiated a Settlement Agreement with AT&T to settle the claim for 62 . 4% of the $128, 417 . 44 , or $80, 132 . 48, plus interest at 8 1/2% per annum from February 1 to October 15, 1991, with the entire principal settlement amount plus accrued interest, for a total of $84, 958. 00, payable on or before October 15, 1991; and WHEREAS, the City Attorney and the City Manager have recommended the settlement. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Settlement with AT&T is hereby approved and the Mayor and City Clerk are hereby authorized to execute the Settlement Agreement, a copy of which is attached hereto. PASSED and ADOPTED this 23rd day of January , 1991. ATTEST: City Clerk yor PNB: lm FORM APPROVED LEGAL DEPT. By Date -4/2- SETTLEMENT AGREEMENT AGREEMENT, dated this 25th day of February, 1991, by and between AT&T Communications of the Southern States, Inc. (hereinafter referred to as "AT&T") and the City of Miami Beach ("Miami Beach") , as follows: WHEREAS, the parties to this Settlement Agreement are parties in a civil action styled AT&T Communications of the Southern States, Inc. v. City of Miami Beach, Case No. 90- 55849 currently pending before the Florida Circuit Court of the Eleventh Judicial Circuit (the "Civil Action") ; and WHEREAS, the parties hereto wish and are mutually willing to enter into this Settlement Agreement for the purpose of settling the differences between them in the Civil Action and all claims therein, in order to avoid the further risk, inconvenience and expense associated with their respective prosecution and defense of the Civil Action; NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. payment by Miami Beach. In total satisfaction of all claims asserted or that could be asserted by AT&T in the Civil Action, Miami Beach hereby agrees to pay the sum of $84, 958 . 00 to AT&T, such payment to be made by wire transfer on or before October 15, 1991. - 2 - 2 . Most Favored Nation Status. In the event that AT&T should agree, after the date of this Settlement Agreement, to accept payment from any other Florida municipality of an amount which is a smaller percentage than the percentage of its claim in the Civil Action accepted from Miami Beach, then AT&T agrees to refund to Miami Beach, at the time of its acceptance of such smaller percentage payment, the amount of money necessary to render the two percentages to be the same. "Percentage" for the purposes of this paragraph shall be a fraction, the numerator of which shall be the amount of the payment accepted by AT&T and the denominator of which shall be the total amount of the overpayment claim (excluding interest, costs, or fees) asserted by AT&T on grounds similar or related to those asserted in the Civil Action. In the case of a subsequent payment or payments to be made over a period of time, the applicable percentages shall be determined at present value, employing a discount rate of eight and one-half percent (8 1/2%) . The adjustment provided for by this paragraph shall not apply to any amounts awarded by judgment or in the event of any final determination of entitlement or lack of entitlement on the part of AT&T in any judicial proceeding. 3. Audit. Miami Beach reserves the right, within the time permitted by law and at its own expense, to audit AT&T' s public service tax returns and supporting documentation for the period covered by the Civil Action and assess any amounts determined to be due as a result of such audit. - 3 - 4. Dismissal of the Civil Action. Upon execution of this Settlement Agreement and payment by Miami Beach, the parties will cause to be filed with the Circuit Court a Stipulation of Dismissal of the Civil Action, on the merits and with prejudice. 5. Costs. Each party shall bear its own costs and attorneys ' fees. 6. Entire Agreement. This Settlement Agreement constitutes the entire agreement of the parties. This Settlement Agreement may not be modified or amended or any term or provision hereof waived or discharged except in writing signed by the party against whom such amendment, modification, waiver or discharge is sought to be enforced. 7. Assignability. Neither of the parties hereto may transfer, assign or otherwise alienate any of its obligations under this Settlement Agreement except upon the express written consent of the other party. Neither of the parties to this Settlement Agreement may transfer, assign or otherwise alienate the rights conferred upon it by virtue of this Settlement Agreement. 8. Full Power and Authority. Each of the parties to this Settlement Agreement hereby warrants and covenants that it has full right and authority to dispose of all claims asserted in the Civil Action, and that it has not previously transferred, assigned or otherwise alienated any of such rights. Each of the parties hereby warrants and covenants - 4 - that the person or persons executing this Settlement Agreement on its behalf is duly authorized and empowered to do so. 9. Counterparts. This Settlement Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 10. Governing Law. This Settlement Agreement shall be interpreted and enforced in accordance with the law of the State of Florida. CITY OF/M/ EA• ' LOR BY: L ./ MAYOR ATTEST: Try- , CITY CLERK SEAL APPROVED AS TO FORM AND LEGALITY FOR THE USE AND RELIANCE OF THE CITY OF MIAMI BEACH, FLORIDA ONLY. -7zY z , 19 9/. taer CITY ATTORNEY MIAMI BEACH, FLORIDA AT&T COMMUNICATIONS OF THE SOUTHERN STA ES, INC. BY: - 44gEe--C TITLE: / Tax Director (CORPORATE SEAL) ORIGINAL RESOLUTION NO. 91-20233 Approving a settlement with AT&T Communications of the Southern States, Inc. and authorizing the Mayor and City Clerk to execute a settlement agreement, settling AT&T Communications of the Southern States, Inc. V. City of Miami Beach, Case No. 90-55849, in the Eleventh Judicial Circuit Court.