Resolution 2021-31680R E S O L U T IO N NO . 2021-31680
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND
AUTHORIZING THE MAYOR, PLANNING DIRECTOR, AND CITY
CLERK TO EXECUTE, IN A FORM APPROVED BY THE CITY
ATTORNEY, THE SETTLEMENT AGREEMENT BETWEEN
OCEAN TERRACE HOLDINGS, LLC; 7450 OCEAN TERRACE,
LLC; 7436 OCEAN TERRACE, LLC; 7420 OCEAN TERRACE
INVESTMENT, LLC; 7410 OCEAN TERRACE LLC; 7400 OCEAN
TERRACE, LLC; 7409 COLLINS AVE INVESTMENT, LLC; 7421
COLLINS AVE INVESTMENT, LLC; 7433 COLLINS AVE
INVESTMENT, LLC; 7439 COLLINS AVE INVESTMENT LLC;
AND 7441 COLLINS AVE INVESTMENT, LLC (COLLECTIVELY,
"OCEAN TERRACE"); AND THE CITY OF MIAMI BEACH,
FLORIDA, AND THOMAS R. MOONEY, IN HIS OFFICIAL
CAPACITY AS PLANNING DIRECTOR FOR THE CITY OF MIAMI
BEACH, FLORIDA, IN ORDER TO SETTLE THE DISPUTE
UNDERLYING FLORIDA ELEVENTH JUDICIAL CIRCUIT
COURT CASE NO. 2020-17802-CA-43; AND AUTHORIZING THE
CITY MANAGER, PLANNING DIRECTOR, AND CITY
ATTORNEY TO TAKE ALL NECESSARY STEPS AND EXECUTE
ALL DOCUMENTS NECESSARY TO IMPLEMENT THE TERMS
OF THE SETTLEMENT AGREEMENT.
WHEREAS, on August 20, 2020, Ocean Terrace Holdings, LLC, and its related entities
("Ocean Terrace"), filed a complaint in Circuit Court against the City of Miami Beach and Thomas
R. Mooney, in his official capacity as the City's Planning Director, relating to the Floor Area Ratio
calculations for Ocean Terrace's proposed development generally located along Ocean Terrace
and Collins Avenue, between 74th Street and 75th Street (the "Project") (Eleventh Judicial Circuit
Court Case No. 2020-17802 CA 43) (altogether, the "Litigation"); and
WHEREAS, the complaint includes four counts: (1) declaratory and injunctive relief, (2)
specific performance, (3) breach of contract under the Development Agreement between Ocean
Terrace and the City, and (4) an equal protection claim under the Florida Constitution; and
WHEREAS, following multiple mediation sessions, and attorney-client sessions on
February 24, 2021 and March 17, 2021, the attached Settlement Agreement was negotiated and
drafted for approval by the City Commission.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve
and authorize the Mayor, Planning Director, and City Clerk to execute, in a form approved by the
City Attorney, the Settlement Agreement between Ocean Terrace Holdings, LLC; 7450 Ocean
Terrace, LLC; 7436 Ocean Terrace, LLC; 7420 Ocean Terrace Investment, LLC; 7410 Ocean
Terrace LLC; 7400 Ocean Terrace, LLC; 7409 Collins Ave Investment, LLC; 7421 Collins Ave
Investment, LLC; 7433 Collins Ave Investment, LLC; 7439 Collins Ave Investment, LLC; and 7441
Collins Ave Investment, LLC (collectively, "Ocean Terrace"); and the City of Miami Beach, Florida,
and Thomas R. Mooney, in his official capacity as Planning Director for the City of Miami Beach,
Florida, in order to settle the dispute underlying Florida Eleventh Judicial Circuit Court Case No.
2020-17802-CA-43; and authorizing the City Manager, Planning Director, and City Attorney to
take all necessary steps and execute all documents necessary to implement the terms of the
Settlement Agreement.
PAssED and ADOPTED the .27 _aay or_ hpril , 2021.
ATTEST:
Dan Gelber, Mayor
APPROVEDASTOFORMAND
LANGUAGE AND FOR EXECUTION
City Attorney ()K
2
Resoluti on s-CZ y
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Rafael Paz, Acting City Attorney
DATE: April 29, 2021
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE
MAYOR, PLANNING DIRECTOR, AND CITY CLERK TO EXECUTE, IN A
FORM APPROVED BY THE CITY ATTORNEY, THE SETTLEMENT
AGREEMENT BETWEEN OCEAN TERRACE HOLDINGS, LLC; 7450
OCEAN TERRACE, LLC; 7436 OCEAN TERRACE, LLC; 7420 OCEAN
TERRACE INVESTMENT, LLC; 7410 OCEAN TERRACE LLC; 7400 OCEAN
TERRACE, LLC; 7409 COLLINS AVE INVESTMENT, LLC; 7421 COLLINS
AVE INVESTMENT, LLC; 7433 COLLINS AVE INVESTMENT, LLC; 7439
COLLINS AVE INVESTMENT LLC; AND 7441 COLLINS AVE INVESTMENT,
LLC (COLLECTIVELY, "OCEAN TERRACE"); AND THE CITY OF MIAMI
BEACH, FLORIDA, AND THOMAS R. MOONEY, IN HIS OFFICIAL
CAPACITY AS PLANNING DIRECTOR FOR THE CITY OF MIAMI BEACH,
FLORIDA, IN ORDER TO SETTLE THE DISPUTE UNDERLYING FLORIDA
ELEVENTH JUDICIAL CIRCUIT COURT CASE NO. 2020-17802-CA-43; AND
AUTHORIZING THE CITY MANAGER, PLANNING DIRECTOR, AND CITY
ATTORNEY TO TAKE ALL NECESSARY STEPS AND EXECUTE ALL
DOCUMENTS NECESSARY TO IMPLEMENT THE TERMS OF THE
SETTLEMENT AGREEMENT.
SUPPORTING SURVEY DATA
nia
Applicab le Area
Not Applicable
ls this a "R esi dents Right
to Know" item, pursuant to
City Code Section 2-142
No
Strategi c Con necti on
Non-Applicable
Does this item utilize G.O,
Bond Funds?
No
Page 312 of 538
Legislative Tracking
Office of the City Attorney
ATTA CHM ENTS:;
Description
Memorandum
Resolution
Agreement
Page 313 of 538
MIAMI BEACH
City of Miami bea ch , 170O Convention Center Drive, Miami Beach, Florida 33139, wwww.miamibeachfl.gov
CO MMISSION MEM ORANDUM
TO: Mayor Dan Gelber
Members of the City Commission
CC: Raul J. Aguila, Interim City Manager
Rafael E. Granado, City Clerk
FROM: Rafael A. Paz, Acting City Attorney~
DATE: April 21, 2021
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR,
PLANNING DIRECTOR, AND CITY CLERK TO EXECUTE, IN A FORM
APPROVED BY THE CITY ATTORNEY, THE SETTLEMENT AGREEMENT
BETWEEN OCEAN TERRACE HOLDINGS, LLC; 7450 OCEAN TERRACE,
LLC; 7436 OCEAN TERRACE, LLC; 7420 OCEAN TERRACE INVESTMENT,
LLC; 7410 OCEAN TERRACE LLC; 7400 OCEAN TERRACE, LLC; 7409
COLLINS AVE INVESTMENT, LLC; 7421 COLLINS AVE INVESTMENT, LLC;
7433 COLLINS AVE INVESTMENT, LLC; 7439 COLLINS AVE INVESTMENT
LLC; AND 7441 COLLINS AVE INVESTMENT, LLC (COLLECTIVELY, "OCEAN
TERRACE"); AND THE CITY OF MIAMI BEACH, FLORIDA, AND THOMAS R.
MOONEY, IN HIS OFFICIAL CAPACITY AS PLANNING DIRECTOR FOR THE
CITY OF MIAMI BEACH, FLORIDA, IN ORDER TO SETTLE THE DISPUTE
UNDERLYING FLORIDA ELEVENTH JUDICIAL CIRCUIT COURT CASE NO.
2020-17802-CA-43; AND AUTHORIZING THE CITY MANAGER, PLA NNING
DIRECTOR, AND CITY ATTORNEY TO TAKE ALL NECESSARY STEPS AND
EXECUTE ALL DOCUMENTS NECESSARY TO IMPLEMENT THE TERMS OF
THE SETT LEMENT AGREEMENT.
I. Background
On August 20, 2020, Ocean Terrace Holdings, LLC, and its related entities ("Ocean Terrace"),
filed a complaint in Circuit Court against the City of Miami Beach and Thomas R. Mooney, in his
official capacity as the City's Planning Director, relating to the Floor Area Ratio calculations for
Ocean Terrace's proposed development generally located along Ocean Terrace and Collins
Avenue, between 74th Street and 75th Street (the "Project") (Eleventh Judicial Circuit Court Case
No. 2020-17802 CA 43) (altogether, the "Litigation").
The complaint includes four counts: (1) declaratory and injunctive relief, (2) specific performance,
(3) breach of contract under the Development Agreement between Ocean Terrace and the City,
and (4) an equal protection claim under the Florida Constitution. In the Litigation, Ocean Terrace
sought damages against the City in the amount of approximately $800,000 per month, plus
interest and attorneys' fees, arising from the claimed breach of the Development Agreement.
Page 314 of 538
Commission Memorandum
A pr i 2 1 , 2 0 2 1
P a g e 2
C o u n s e l fo r th e C ity a n d Ocean Terrace agreed, at the commencement of the Litigation, to
c o n d u c t lim ite d d is c o v e ry a n d fi le cro ss -m o ti o n s fo r su m m a ry ju d g m e n t o n a n e x p e d ite d b a s is o n
C o u n t (1 ). T h e C ity a d d itio n a lly m o v e d fo r s u m m a ry ju d g m e n t o n C o u n t (4 ). F o ll o w in g a n
e x te n s iv e h e a rin g o n th e cro s s-m o tio n s fo r s u m m a ry ju d g m e n t, th e C o u rt o rd e re d th e p a rt ie s to
m e d ia tio n .
II . Settlement Proposal
Following multiple mediation sessions, and attorney-client sessions on February 24, 2021 and
March 17, 2021, the attached Settlement Agreement has been negotiated and drafted for
approval by the City Commission. The major terms are as follows:
1. Voluntary contribution. Ocean Terrace will make a $3,000,000 contribution to the City
on the following terms:
• The first payment of $1,000,000 shall occur within 10 days of the execution of the
Settlement Agreement;
• The second payment of $1,000,000 shall occur on or before September 1, 2021; and
• The third payment of $1,000,000 shall be contributed towards the construction of the
72nd Street Community Complex (a/k/a the North Beach Aquatic Center) and paid on
the earlier of (a) the execution of the design-build agreement for the 72nd Street
Community Complex, or (b) April 1, 2022. In the event the City does not proceed with
the 72nd Street Community Complex on or before January 1, 2024, the City will have
the sole discretion to use the $1,000,000 for another project in North Beach.
2. Resolution of the Floor Area Disputa. Based on the unique factual, procedural and
temporal circumstances surrounding the execution of the Development Agreement, the
City will exercise its discretion vested in it to settle litigation to avoid the risks, costs, and
uncertainties attendant thereto. To implement the settlement, Ocean Terrace shall
proceed to develop the Project while excluding from the calculation of floor area the
following building elements: (1) voids in floors to accommodate elevator shafts; (2) voids
in floors to accommodate mechanical/ventilation/trash shafts; and (3) enclosed stairwells,
including enclosed stairwells within accessory garages.
3. Waiver of Certain Force Majeure Events. Ocean Terrace will waive Force Majeure
Events and Economic Force Majeure for any delay that has taken place up to the Effective
Date of the Settlement Agreement relating solely to the novel coronavirus pandemic. In
addition, Ocean Terrace agrees to waive Force Majeure Events and Economic Force
Majeure for Phase 1 of the Park/Streetscape Improvements relating to all future delays
relating solely to the novel coronavirus pandemic, except for certain delays caused by
government agencies (including the City).
4. Expedited Schedule for Park/Streetscape Improvements.
• Ocean Terrace will:
a. obtain Historic Preservation Board ("HPB") approval of the Park/Streetscape
Improvements on or before September 30, 2021;
Page 315 of 538
Commission Memorandum
April 21, 2021
Page 3
b. submit construction drawings by February 1, 2022, or within four months of
HPB approval, whichever occurs later;
c. obtain a full building permit for the Park/Streetscape Improvements by
September 1, 2022, or within seven months of submission of construction
drawings, whichever occurs later; and
d. commence construction within 60 days after obtaining a full building permit for
the Park/Streetscape Improvements.
• The City and Ocean Terrace have agreed that any failure by Ocean Terrace to meet
the above construction deadlines shall trigger the parties' rights and remedies under
the Development Agreement relating to developer defaults, notices, cure periods, and
enforcement of performance. This includes the City's ability, following the expiration of
any cure periods, to draw funds in accordance with the Development Agreement to
complete the then-remaining work for the design and construction of Phase 1 of the
Park/Streetscape Improvements.
5. Other Terms. The Settlement Agreement also provides for
• A Joint Stipulation for Dismissal of the Litigation with Prejudice;
• Mutual releases;
• Prevailing party attorneys' fees and costs in any litigation relating to the Settlement
Agreement;
• Ocean Terrace's agreement to indemnify and hold the City harmless from any
challenge to the Settlement Agreement or any City approvals pertaining to the
Project's floor area;
• The parties' agreement to cooperate in the defense of any such challenge; and
• Ocean Terrace's acknowledgement that the City has made no representations or
warranties with regard to the Settlement Agreement and the resolution of the disputed
floor area issues.
Ill. Analysis
The Development Agreement operates for its term to vest Ocean Terrace in the right to develop
in accordance with the "City's Laws and Requirements governing the development of the
Development Site as they exist as of the Execution Date." (S e e DA 28.) The Development
Agreement also provides "that in no event shall the City apply any subsequently adopted law or
policies in a manner that requires any alterations or modifications to the project" or that "renders
the Project or the Park/Streetscape Improvements 'nonconforming.'" (See id.) The City adopted
Ordinance 2020-4332 (the Clarifying Ordinance") to conclusively resolve the manner and method
of calculating the floor area of certain building elements: stairwells, elevator shafts, and
mechanical chutes and chases (the "Elements"). The City Commission adopted the Clarifying
Ordinance after the execution of the Development Agreement. In the Litigation, the parties
vigorously dispute whether the Clarifying Ordinance represents a subsequent change in law
prohibited by the Development Agreement or whether it represents a statement of what the law
is, was, and always has been. If approved by the Commission, the Settlement Agreement
represents the parties' decision to settle this dispute to avoid litigation with neither side conceding
their respective positions.
P age 316 of 538
C om m ission M em orandum
April 21, 2021
P age4
T he C ity C harter at Section 1.03(c) provides that the "floor area ratio of any property ... within
the City of M iam i Beach shall not be increased by zoning, transfer, or any other means .. . unless
any such increase in zoned floor area ratio fo r any such property shall first be approved by a vote
of the electors of the City of Miam i Beach." How ever, Section 163.3167(8)a)-(c), Fl orida Statutes,
explicitly prohibits a referendum on any developm ent order. Consequently, Florida law appears
to prohibit the C ity fr om ca lling a referendum on a developm ent order that would perm it O ce an
Terra ce to exclude the Elem ents from the FA R calculations fo r the Project.
IV. Conclusion
If the City C om m ission approves the attached Settlement Agreem ent as drafted, O cean Terrace
shall file the Joint Stipulation for Dism issal with Prejudice within 7 days of the execution of the
S ettlem ent Agreem ent, and the Li tigation will be dism issed.
Page 317 of 538
SETTLEMENT AGREEME NT
THIS SETTLEMENT AGRE EMENT (this "Agreement") is made and entered into on
this __ day of April, 2021 (the "Effective Date") by and among OCEAN TERRACE
HOLDINGS, LLC, a foreign limited liability company, 7450 OCEAN TERRACE, LLC, a Florida
limited liability company, 7436 OCEAN TERRACE, LLC, a foreign limited liability company,
7420 OCEAN TERRA CE INVESTMENT, LLC, a Florida limited liability company, 7410
OCEAN TERRA CE LLC, a foreign limited liability company, 7400 OCEAN TERRACE, LLC, a
Florida limited liability company, 7409 COLLINS AVE INVESTMENT, LLC, a Florida limited
liability company, 7421 COLLINS AVE INVESTMENT, LLC, a Florida limited liability
company, 7433 COLLINS AVE INVESTMENT, LLC, a Florida limited liability company, 7439
COLLINS A VE INVESTMENT LLC, a Florida limited liability company, 7441 COLLINS A VE
INVESTMENT, LLC, a foreign limited liability company (collectively, "OCEAN TERRACE"),
the CITY OF MIAMI BEACH, a Florida municipal corporation (the "CITY"), and THOMAS R.
MOONEY, in his official capacity as Planning Director for the City of Miami Beach, Florida (the
"PLANNING DIRECTOR"). OCEAN TERRACE, the CITY, and the PLANNING DIRECTOR
are collectively referred to herein as the "PARTIES" and are sometimes individually referred to as
a "PARTY."
WITNESS ETH
WH EREAS, OCEAN TERRACE and the CITY are parties to that certain Development
Agreement dated July 31, 2019 (the "Development Agreement") for the construction of a mixed-
use project on the property located on the city block along Ocean Terrace and Collins A venue
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betw een 74th Street and 75th Street in the North Beach district of Miami Beach, Florida (the
"Project");
WHEREAS, OCEAN TERRA CE brought an action against the CITY and PLANN ING
DI RECTOR in the Circuit Court for the 11 Judicial Circuit in an d for Miami-Dade County,
Florida, Case No. 2020-17802-CA-43 (the "Litigation");
WHEREAS, all PARTIES desire to settle all claims which were asserted in the Litigation
or which could have been asserted in the Litigation;
WHEREAS, the PARTIE S wish to memorialize their settlement agreem ent in this
document; and,
WHEREAS, the PARTIES agree to seek the Court's approval of this settlement and to
obtain a Court order approving it and retaining jurisdiction to enforce its terms.
WHEREFORE, in consideration of the foregoing, and for other good and valuable
consideration contained herein, the sufficiency of which is hereby ackn owledged, the PARTIES
hereto covenant and agree as follows:
l. Recitals. The above-recitals are true and correct and are incorporated into this
Agreement. For convenience only, defined terms used in this Agreement shall be assigned the
same meaning as they are defined in the City Code and the Development Agreement, depending
on the context and unless otherw ise provided herein.
2. Parties. Th e PARTIES have settled and resolved all claims which were asserted
or which could have been asserted in the T ,itigation upon the terms and conditions set forth herein.
3. Contribution. OCEAN TERRA CE will make a monetary contribution in the total
sum of Three Million Dollars and 00/100 cents ($3,000,000) to the CIT Y. The payment of this
contribution shall occur as follows:
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a. The fi rst payment in the sum of $1,000,0 00 shall occur within 1 O days of the full
execution of this Agreement.
b. The second payment in the amount of $1,000,000 shall occur on or before
September I, 2021.
c. The third payment in the amount of $1,000,000 shall be contributed towards the
72nd Street Comm unity Complex (a/k/a the North Beach Aquatic Center) and paid
at the earlier of: (a) the execution of the contract for the design-build of the 72nd
Street Community Complex, or (b) April 1, 2022. However, in the event the CITY
does not proce ed with the 72nd Street Community Complex on or before January
l, 2024, the CITY will have the right/sole discretion to use the $1 million
contribution for another North Beach project, and will communicate the project and
use of those funds with OCEAN TERRA CE at the time that the CITY elects to use
the contribution for another North Beach project.
d. All payments will be made by wire transfer to the trust account of Shubin & Bass,
P.A. in accordance with the instructions attached as E xhibit A .
e. R em edies io the E vent of N on-P aym ent of A ny M onetary C ontributions Set
Forth H erein. Failure to make any of the foregoing payments shall be deemed to
be a material breach of this Agreement. In such event of non-payment, the CITY
shall have the right to withh old the temporary certificate of occupancy or certificate
of occupancy for the Project or any part thereof in the CITY's sole discretion -
until the overdue payment is made.
4. A m icable R esoluti on of the Floor A rea D ispute. To amicably resolve the
PARTIES' dispute about the manner and method of calculating floor area in light of the unique
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factual, procedural and temporal circumstances surrounding the execution of the Development
Agreement (as well as its text), the CITY agrees to exercise its discretionary authority to settle the
Litigation in order to avoid the cost, risk, time, and expense of litigation, to allow OCEAN
TERRACE to exclude from the calculation of floor area the following building elements within
the Project that is the subject of the Development Agreement: (1) voids in floors to accommodate
elevator shafts; (2) voids in floors to accommodate mechanical/ventilation/trash shafts; and (3)
enclosed stairwells, including enclosed stairwells within accessory garages (collectively, (1)-(3),
the "Elements"). For clarity, the Project's FAR shall be calculated in accordance with the
calculations contained within the Plans submitted by OCEAN TERRACE to the City's Historic
Preservation Board ("HPB") on December 16, 2019. The resolution described in the immediately
preceding sentence is without prejudice to OCEAN TERRACE'S ability to increase the Project's
FAR pursuant to any voter approved amendment to either the definition of "floor area" or the list
of exclusions from the definition of "floor area," as set forth in the City Code. U pon receipt of the
Contribution referenced in paragraph 3(a) above, the CITY shall deliver to OCEAN TERRACE
an estoppel letter in the form attached hereto as Exhibit B (the "FAR Estoppel Letter") and shall
issue such additional letters in similar form as reasonably requested by OCEAN TERRACE, its
affiliates and subsidiaries, joint venture partners, partners and their successors, assigns and
Lenders.
s. W aiver of Certain Force M ajeure Events. OCEAN TERRACE agrees to waive
Force Majeure Events and Economic Force Majeure for any delay that has taken place up to the
Effective Date of this Agreement relating solely to the novel coronavirus pandemic. In addition,
OCEAN TERRA CE agrees to waive Force Majeure Events and Economic Force Majeure for
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Phase 1 of the Park/Streetscape Improvements relating to all future delays relating solely to the
novel coro navirus pandemic, with the following exceptions:
a. No waiver for any delays caused by any governmental agency (including the CITY,
County, State, or federal government) being unable or unwilling to inspect work or
process perm its; and
b. No waiver for any delays caused by any government-mandated stoppage or
suspension of construction related activity.
6. Schedule for the Park/Streetscape Improvements. OCEAN TERRA CE shall
adhere to the following development schedule with respect to the Park/Streetscape Improvements.
This schedule shall control over any prior schedule contemplated by the PARTIES:
a. OCEAN TERRA CE shall submit a legally sufficient and complete application for
HPB approval of the Park/Streetscape Improvements that complies in good faith
with applicable CIT Y codes and regu lations. Such application shall be submitted
within such time to reasonably enable OCEAN TERRA CE to obtain HPB approval
on or before September 30, 2021.
b. OCEAN TERRA CE shall complete and submit construction drawings in
approvable form into the permit workflow no later than February 1, 2022, or within
four months of HPB approval, whichever occurs later.
c. OCEAN TERRA CE shall obtain a Full Building Permit for the Park/Streetscape
Improvements no later than September 1, 2022, or within seven months of
submission of construction drawings, whichever occurs later.
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d. OCEAN TERRA CE shall commence construction and begin mobilization within
60 days after obtaining a Full Building Permit for the Park/Streetscape
Impro vements.
e. The CITY shall exercise good faith/diligent efforts to expedite the review of the
Park/Streetscape Impro vements and building perm it application. In addition, the
CITY shall ensure the prompt processing of plans.
f. OCEAN TERRA CE shall use good faith and diligent efforts to expeditiously
address and respond to all perm it comments.
g. The failure by OCEAN TERRA CE to commence construction in accordance with
subparagraph 6( d) shall constitute a default under this Agreement and shall trigger
the PARTIE S' rights and remedies under the Development Agreement relating to
developer defaults, notices, cure periods, and enforcement of performance,
7.
including but not limited to the CITY'S ability - following the expiration of all
applicable cure periods- to draw funds in accordance with the provisions of
paragraph 5(d) of the Development Agreement to complete the then-remaining
work for the design and construction of Phase 1 of the Park/Streetscape
Improvements.
Settlement and Dismissal of Lawsuit. Within 7 days of approval and full
execution of this Agreement, OCEAN TERRA CE shall file the Joint Stipulation for Dismissal
with Prejudice, requesting the Court to enter an Agreed Final Order dismissing the Litigation with
prejudice with a reserv ation of jurisdiction to enforce the PARTIES' Settlement Agreement
stipulating that all PARTIES shall bear their own attorneys' fees and costs, attached hereto as
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Exhibit C. Should the Court refu se to enter the Agreed Final Order (as described herein), OCEAN
TERRA CE shall pro mptly file a Notice of Voluntary Dismissal W ith Prejudice of the Litigation.
8. Release by OCEAN TERRACE. Except for perform ance required under this
Agreement and the Development Agreement, OCEAN TERRA CE, on behalf of itself and each of
its members (direct and indirect), principals, affiliates, subsidiaries, directors, officers, managers,
employees, attorn eys, successors and assigns, hereby forever releases and discharges the CITY,
including without limitation any agency or regulatory body of the CITY, and its elected officials,
employees, agents and representatives, from each and every right, claim, debt, cause of action,
demand, suit, liability, or right of action of any nature whatsoever (including without limitation
attorneys' fees and costs), whether asserted or unasserted, kn own or unkn own, relating to or arising
from the subject matter of the Litigation or the allegations of the Litigation, and all facts or alleged
evidence that were or could have been brought in those proceedings by the CITY or OCEAN
TERRA CE, and the interpretation of the City's Land Development Regulations to exclude the
Elements from the calculation of floor area.
9. Release by the CITY. Except for performance required under the Development
Agreement and this Agreement and in conjunction with and subject to the dismissal of the
Litigation in accordance with Section 7 hereof, the CITY hereby forever releases and discharges
OCEAN TERRA CE from each and every right, claim, debt, cause of action, demand, suit, liability,
or right of action of any nature whatsoever (including without limitation attorneys' fees and costs),
whether asserted or unasserted, kn own or unknown, involving, relating to or arising from the
subject matter of the Litigation or the allegations of the Litigation, and all facts or alleged evidence
that were or could have been bro ught in those proceedings by the CITY or OCEAN TERRA CE,
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a n d t h e in t e rp r e t a t i o n o f th e C it y 's L a n d D e v e lo p m e n t R e g u la t io n s to e x cl u d e th e E le m e n t s fr o m
t h e c a lc u la t io n o f fl o o r a r e a fo r th e P ro j e c t.
10. M iscell aneous. This Agreement may be executed in one or more counterparts, or
by the PARTIES in separate counterparts, each of which when so executed shall be deemed an
original. This Agreement shall be governed by the laws of the State of Florida. If any provision of
this Agreement is deemed invalid or unenforceable, the validity or enforceability of the other
provisions of this Agreement shall not be affected. The failure of a PARTY to require performance
of any provision of this Agreement shall in no manner affect the PARTY's right at a later time to
enforce such provision.
11. Entire A greem ent. This Agreement and the Development Agreement, and all
documents executed by the PARTIES in connection with the Project, represents and contains the
entire agreement and understanding among the PARTIES hereto with respect to all issues raised
or that could have been raised regarding the subject matter of this Agreement. Each of the
PARTIES acknowledges and agrees that there are no oral communications or understandings
contrary, different, in addition to, or that in any way restrict those identified agreements.
12. N oti ces. All notices provided pursuant to this Agreement shall be in writing and
sent to:
a. City Manager with a copy to the City Attorney and Jeffrey S. Bass, Esq. at
jbass@shubinbass.com; and
b. Sandor Scher at sscher@clarocorp.com with a copy to Joseph L. Rebak, Esq. at
ioseph.rebak@akerman.com.
13. A tt orneys' F ees. In any litigation arising out of or relating to this Agreement,
including but not limited to any claims seeking to enforce any term of this Agreement, the
prevailing PARTY in any such proceeding shall be entitled to collect from the non-prevailing
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PA RTY all of its reasonable attorn eys' fe es, para legals' fees, costs, and expert fe es, including any
attorn eys' fe es and costs on appeal and any attorn eys' fe es and costs associated with proving the
reasonableness of a claim fo r attorn eys' fe es.
14. Waiver of Jury Trial. EA CH PA RTY HERE BY KNO W IN G LY ,
VOLUN TA RILY AN D IN TEN TI ON A LLY IRR EVO CA BLY W A IV ES (TO THE EXTEN T
PERM IT TED BY APPLI CA BLE LAW ) AN Y RIGHT IT M A Y HA VE TO A TRIAL BY JU RY
OF ANY DISPU T E ARISIN G UN D ER OR RE LA TIN G TO TH IS AGRE EM EN T OR
OT HERW ISE A RISIN G OUT OF TH E RE LA TI ON SH IP BETW EEN THE PA RTI ES AND
A GREES THA T AN Y SU CH DISPU TE SH AL L BE TRIE D BEFO RE A JU DG E SITTIN G
W ITH OUT A JU RY.
15. Legal Counsel. Each PARTY represents and warrants that they have been fu lly
represented by counsel thr oughout all stages of the negotiation leading up to this Agreement and
all PA RTI ES are authorized to sign the Agreem ent on behalf of the entity in which they are
associated.
16. Joint Defense Agreement. OCEA N TERRA CE and the CIT Y shall jointly defend
any challenge to this Agreem ent and OCEA N TERRA CE shall fu lly indemnify and hold the CIT Y
harm less in conn ection with any such challenge to the Agreem ent or any claim s challenging any
appro vals (including, without lim itation, any adm inistrative appro vals, building permits, or any
decisions by the City 's Planning Board, Historic Preserv ation Board, or Board of Adjustment) that
m ay be pro vided by the CIT Y pertaining to the floor area for the Project, or otherw ise challenging
the applicability of any law or ordinance to this Agreement (including, without lim itation, the City
Charter) (in each instance as it relates solely to the Project, including any related appeals, a
"L awsuit). OCEAN TERRA CE shall fu rther indemn ify and hold the CIT Y harm less from and
57349289;1
Page 9 of 15
Page 328 of 538
against all actual damages, losses, liabilities, fees, costs and expenses (including reasonable
attorneys' fees, costs and expenses) of any and every kind arising out of or relating to any such
Lawsuit. For the avoidance of doubt, the CITY and OCEAN TERRA CE shall each possess the
right to retain independent counsel to separately defend the Agreement and to control the manner
and method of their individual defense. The CITY agrees to reasonably cooperate with OCEAN
TERRA CE in connection with the defense of any such Lawsuit in order to minimize the attorneys'
fees, costs and potential exposure associated with defending the Lawsuit. This paragraph shall
survive the expiration or termination of this Agreement.
17. No City Warranty or Representation. The CITY has not made, does not make
and will not make, and OCEAN TERRA CE has not relied upon, any representation or warranty,
express or implied, as to any requirement under any law or ordinance including, without limitation,
the City Charter, City Code, and Florida Statutes, relating to this Agreement and the resolution of
the disputed floor area issues or the implementation of any settlement of disputed floor area issues,
through any approval provided by the CITY for the Project. OCEAN TERRA CE expressly
assumes all risks with respect to any of the foregoing matters. In furtherance of the foregoing,
OCEAN TERRA CE hereby waives any claim as to the enforceability of this Agreement.
In witness thereof, the parties have executed this Agreement as effective as of the date and
year fir st written above.
[Signature Pages Follow}
573492 89;1
Page 10 of 15
Page 329 of 538
CITY OF M IAM I BEACH, a Florida municipal corporation
By: _
Name: DAN GELBER
Title: Mayor
Date: _
THOMA S R. M OONEY, in his official capacity as Planning Director of the City of Miami
Beach, Florida
By: _
Name: THOMAS R. MOONEY
Title: Planning Director for the City of Miami Beach, Florida
Date: -------------
7450 OCEAN TERRA CE LLC, a Delaware limited liability company
By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, its sole
member
By: _
Name: SANDOR SCHER
Title: Manager
Date: -------------
57349289; I
Page 11 of 15
Page 330 of 538
7436 OCEAN TERRA CE LLC, a Delaware limited liability company
By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, its sole
member
By: _
Name: SANDOR SCHER
Title: Manager
Date: -------------
7420 OCEAN TERRA CE INVE STMENT, LLC, a Florida limited liability company
By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, its sole
member
By: _
Name: SANDOR SCHER
Title: Manager
Date:
t
7410 OCEAN TERRA CE LLC, a Delaware limited liability company
By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, its sole
member
By: _
Name: SANDOR SCHER
Title: Manager
Date: _
57349289; I
Page 12 of 15
Page 331 of 538
7400 OCEAN TERRA CE, LLC, a Florida limited liability company
By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, its sole
member
By: _
Name: SANDOR SCHER
Title: Manager
Date: -------------
7409 COLLINS A VE INVESTMENT, LLC, a Florida limited liability company
By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, its sole
member
By: _
Name: SANDOR SCHER
Title: Manager
[)[Ç,
7421 COLLINS AVE INVESTMENT, LLC, a Florida limited liability company
By: OCEAN TERRACE HOLDINGS, LLC, a Delaware limited liability company, its sole
member
By: _
Name: SANDOR SCHER
Title: Manager
Date: _
573492 89;1
Page 13 of 15
Page 332 of 538
7433 COLLINS AVE INVESTMENT, LLC, a Florida limited liability company
By: OCEAN TERRA CE HOLDINGS, LLC, a Delaware limited liability company, its sole
member
By:-'-·-------------
Name: SANDOR SCHER
Title: Manager
Date: _
7439 COLLINS AVE INVESTMENT, LLC, a Florida limited liability company
By: OCEAN TERRA CE HOLDINGS, LLC, a Delaware limited liability company, its sole
member
By: _
Name: SANDOR SCHE R
Title: Manager
[)9[{},
7441 COLLINS A VE INVESTMENT, LLC, a Delaware limited liability company
By: OCEAN TERRA CE HOLDINGS, LLC, a Delaware limited liability company, its sole
member
By: _
Name: SANDOR SCHER
Title: Manager
Date: _
5734 9289 ;1
Page 14 of 15
Page 333 of 538
OCEAN TERRA CE HOLDINGS, LLC, a Delaware limited liability company
By: _
Name: SANDOR SCHER
Title: Manager
[pp9%,
57349289; 1
Page 15 of 15
Page 334 of 538
E xhib it A
[Trust Account Wire Instructions to be Inserted]
Page 335 of 538
E x h ib it B
Page 336 of 538
FAR ESTOPPEL LETTER
To Ocean Terrace Holdings LLC, its affi liates and subsidiaries, joint ventu re partners,
part ners (collectively, "O TH") and their successors, assigns and Lenders.
Reference is m ade to: (i) the constru ction of a mixed-use project on the pro perty located
on the city block along Ocean Terrace and Collins Avenue betw een 74th Street and 75th Street in
the North Beach district of M iam i Beach, Fl orida (the "Project"); (ii) the Development Agreement
by and betw een 0TH and the City of Miami Beach ("City "), dated Ju ly 31, 2019 (the
"Develop m ent Agreem en t"); an d (iii) the Settlement Agreement in Eleventh Judicial Circuit Court
case number 2020-17802-CA -43, by and betw een 0TH , the City , and Thom as R. M ooney, in his
offi cial capacity as Planning Director, dated A pril_, 2021 (the "Settlem ent Agreem ent").
This letter constitutes confirm ation by the City that by operation of the Settlement
Agreement and the Development Agreem ent the Project's FAR was calculated in accordance w ith
the calculations contained w ithin the Plans subm itted by 0TH to the City 's Historic Preserv ation
Board ("HPB ") on December 16, 2019. This letter constitutes fu rther confirm ation that by
operation of the Settlem ent Agreement and the Development Agreem ent, the FAR calculations fo r
the Project, as it m ay be m odified, shall constitute legal confo rm ing FA R fo r the Project.
Consequently, such FA R m ay be rebuilt in the event of damage and destru ction. Further, the
confirm ations contained within this paragra ph are without prejudice to the ability to increase the
Project's FA R pursuant to any voter appro ved amendm ent to either the definition of "floor area"
or the list of exclusions from the definition of "floor ar ea," a s set fo rth in the City Code, subsequent
to December 16, 2019.
578 117 08;1
Page 337 of 538
E x h ib it C
Page 338 of 538
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUN TY, FLORIDA
CIRCUIT CIVIL DIVISION
Complex Business Litigation Section
CASE NO. 20-17802 CA 43
OCEAN TERRA CE HOLDINGS, LLC, a
Foreign Limited Liability Company, et al.,
Plaintiffs,
vs.
CITY OF MIAMI BEACH, a Florida Municipal
Corp oration; and THOMAS R. MOONEY, in
his official capacity as the Planning Director for
the City of Miami Beach, Florida,
Defendants.
_______________ !
JOINT STIPULATION FOR DISMISSAL WITH PREJUDICE
Plaintiffs Ocean Terrace Holdings, LLC, 7450 Ocean Terrace, LLC, 7436 Ocean Terrace,
LLC, 7420 Ocean Terrace Investment, LLC, 741 O Ocean Terrace LLC, 7400 Ocean Terrace, LLC,
7409 Collins Ave Investment, LLC, 7421 Collins Ave Investment, LLC, 7433 Collins Ave
Investment, LLC, 7439 Collins Ave Investment, LLC, and 7441 Collins Ave Investment, LLC
(collectively, "Plaintiffs") and Defendants City of Miami Beach (the "City") and Thomas R.
Mooney (the "Planning Director") (collectively, "Defendants") (all collectively, the "Parties"), by
and through their respective counsel and pursuant to Rule 1.420(a)(l )(B) of the Florida Rules of
Civil Procedure, hereby stipulate and agree as follows:
1. Plaintiffs no longer wish to pursue their claims under the pending Complaint filed
with this Court on August 20, 2020 (the "Compl aint").
Page 339 of 538
2 . T h e P a rt ie s e n te re d in to a S e tt le m e n t A g re e m e n t o n Ap ri l , 2 0 2 1 reso lv in g all
cl a im s th a t h a v e b e e n b ro u g h t b y P la in tiffs in th is la w s u it (th e "S e tt le m e n t A g re e m e n t"). A co p y
o f th e S e tt le m e n t A g re e m e n t is a tt a c h e d h e re to a s Exhibit 1.
3. Plaintiffs have agreed to voluntarily dismiss, with prejudice, all claims that have
been brought by Plaintiffs in this lawsuit and release Defendants from any and all claims that could
have been brought or otherwise present in this lawsuit, and/or in connection with the interpretation
of the City's Land Development Regulations to exclude the Building Elements (as defined in the
Complaint) from the calculation of floor area, including any claims for damages, interest,
attorneys' fees and costs.
4. The Parties hereby stipulate that this entire action, including all claims and potential
counterclaims, shall be dismissed with prejudice, subject to the terms of the Settlement Agreement,
with each party to bear its own respective costs, expenses, and attorneys' fees, and with the Court
retaining jurisdiction to enforce the terms of the Settlement Agreement.
WHEREFORE, the Parties respectfully request that the Court enter an Order adopting and
approving this Joint Stipulation for Dismissal with Prejudice in the form attached hereto as Exhibit
2.
2
Page 340 of 538
R e s p e c tfu ll y s u b m itt e d ,
AKE RMAN LLP
Three Brickell City Centre
98 Southeast Seventh Street, Suite 1100
Miami, Florida 33131
Tel: (305) 374-5600/Fax: (305) 374-5095
By: Isl Joseph L. Rebak _
JOSEPH L. REBAK, ESQ.
Fla. Bar No. 308668
joseph.rebak@akerman.com
LORA YNE PEREZ, ESQ.
Fla. Bar No. 082465
Lorayne.perez@akerman.com
wend y.gonzalez@akerman.com
nancy.perez@akerman.com
SHUBIN & BASS, P.A.
46 SW l st Street
3" Floor
Miami, Florida 33130
Tel: (305) 381-6060/Fax: (305) 381-9457
By: Isl Jeffrey S. Bass
JEFFREY S. BASS, ESQ.
Fla. Bar No. 962279
ibass@shubinbass.com
DEANA D. FALCE, ESQ.
Fla. Bar No. 084154
dfalce@shubinbass.com
evaughan@shubinbass.com
eservice@shubinbass.com
Attorneys for Plaintiffs Attorneys for Defendants
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on this day of April 2021, a true and correct copy of the
foregoing was served via electronic mail to:
Jeffrey S. Bass, Esq.
Deana D. Falce, Esq.
SHUBIN & BASS, P.A.
46 SW 1 Street
Third Floor
Miami, Florida 33130
Tel.: (305) 381-6060
jbass@shubinbass.com
dfalce@shubinbass.com
evaughan@shubinbass.com
eservice@shuhinbass.com
Rafael A. Paz, Esq.
Nicholas Kallergis, Esq.
CITY OF MIAMI BEACH
ATTORNEY'S OFFICE
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
Tel: (305) 673-7470
rafaelpaz@miamibeachfl.gov
nickkallergis@miamibeachfl.gov
sandraperez@miamibeachfl.gov
Counsel for Defendants Counsel for Defendants
Attorney
3
Page 341 of 538
Exh ibit 1
[Settlement Agreement to be Inserted]
1
Page 342 of 538
Exhib it 2
Page 343 of 538
IN THE CIRCU IT CO URT OF TH E
ELEVEN TH JUD ICIA L CI RCUIT IN AN D
FOR M IA M I-D A D E CO UN TY, FLO RID A
CIRCU IT CIV IL DIV ISIO N
Complex Business Litigation Section
CA SE NO . 20-17802 CA 43
OCEAN TERRA CE HO LDIN G S, LLC, a
Foreign Lim ited Liability Com pany, et al.,
Plaintiffs,
vs.
CIT Y OF M IA M I B EA CH , a Florida M unicipal
Corp ora tion; and THO M A S R. M O ON EY , in
his offi cial capacity as the Planning Di rector fo r
the C ity of M iami Beach, Florida,
Defendants.
------------------'/
AGREED FINAL ORD ER APPROVING
JOINT STIPULATION FOR DISMISSAL WITH PREJUDICE
THIS CAUSE, having come befo re the Court upon agreement of the parties, and that
ce rtain Jo int Stipulation fo r Dism issal w ith Prejudice (the "Stipulation") entered into betw een
Plaintiffs O cean Terra ce Holdings, LLC, 7450 Ocean Terrace, LLC, 7436 Ocean Terrace, LLC,
7420 Oce an Terrace Investm ent, LLC, 7410 Ocean Terrace LLC, 7400 Ocean Terrace, LLC, 7409
Collins Ave Investm ent, LLC, 7421 Collins Ave Investment, LLC, 7433 Collins Ave Investment,
L L C, 7439 Collins Ave Investm ent, LLC, and 7441 Collins Ave Investment, LLC (collectively,
"Plaintiffs") and Defendants City of M iam i Beach (the "City ") and Thom as R. M ooney (the
"Planning D irector") ( collectively, "D efendants") (all collectively, the "Parties"), on April _,
20 21, and the Court having reviewed the Stipulation and the record, and being otherw ise duly
advised in the prem ises, it is hereby
Page 344 of 538
O RD E RE D AN D AD JUDG ED that the Stipulation is hereby approved, ratified, and
adopted by the Court. This entire action, including all claims and potential counterclaims, is hereby
dismissed with prejudice, subject to the term s of the Settlement Agreement entered into by the
Parties on April_, 2021 ("Settlement Agreement"), with each party to bear its own respective
costs, expenses and attorneys' fees, with the Court retaining jurisdiction to enforce the terms of
the Settlement Agreement and the Stipulation.
DONE AN D O RD ERE D in Chambers in Miami-Dade County, Florida, on this day
of , 2021. ------
The Honorable Michael Hanzman
Circuit Court Judge
Copies furnished to: All Counsel of Record
2
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