2009-27193 ResoRESOLUTION NO. 2009-27193
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE
TERM SHEET BETWEEN MCZ/CENTRUM FLAMINGO II, LLC,
MCZ/CENTRUM FLAMINGO III, LLC, MORTON TOWERS
APARTMENTS, L.P., AND THE CITY OF MIAMI BEACH, AND
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A
SETTLEMENT AGREEMENT BASED UPON THE TERM SHEET
IN A FORM ACCEPTABLE TO THE CITY MANAGER AND CITY
ATTORNEY, AND AUTHORIZING THE CITY MANAGER AND
CITY ATTORNEY TO TAKE SUCH ACTIONS AS MAY BE
NECESSARY TO CARRY OUT THE INTENT HEREOF.
WHEREAS, on November 4, 1997 the Miami Beach Design Review Board
("DRB") considered an application for renovation of and new construction on the
Morton Towers property at 1500 and 1536 Bay Road "(Property"); and
WHEREAS, as part of the approval of such application the DRB imposed
a condition which provided: "A baywalk extension from the south side of the
property north into the future park area shall be provided" (the "baywalk
condition"); and
WHEREAS, the current owners of the Property ("Owners") filed suit on
July 31, 2008 challenging the baywalk condition in a case styled
MCZ/CENTRUM FLAMINGO II, LLC, a Delaware limited liability corporation,
MCZ/CENTRUM FLAMINGO III, LLC, a Delaware limited liability corporation,
and MORTON TOWERS APARTMENTS, L.P., a Delaware Limited Partnership,
Plaintiffs, v. CITY OF MIAMI BEACH, a Florida municipal corporation, Defendant,
Case No. 08-22419-CIV-ALTONAGA/BROWN, United States District Court,
Southern District of Florida (the "Lawsuit"); and
WHEREAS, the Lawsuit contained three counts: Count 1 for Declaratory
Relief, sought a declaration by the Court that the baywalk condition does not
require the Owners to grant public access to the baywalk. Count II, pled in the
alternative, sought a finding that, if the baywalk condition does compel public
access, such a condition amounted to an illegal taking under the Florida
Constitution and the Fifth Amendment to the United States Constitution, and was
therefore void. Count III, was also pled in the alternative, stating that, should the
Court find the baywalk condition does require public access to the baywalk on
the Property, and is constitutionally permissible, then Count III sought
compensation for the alleged taking in accordance with state and federal
constitutional law; and
WHEREAS, the Lawsuit was originally filed in State court, the City
removed it to the U.S. District Court, and filed a Motion to Dismiss the Complaint,
which the Court denied; and
WHEREAS, the District Court Judge set the case for trial on the two-week
trial calendar commencing August 31, 2009, and imposed a rigorous schedule for
discovery and pre-trial motions; and
WHEREAS, the parties engaged in extensive discovery and pre-trial
preparations; and prior to trial after various Court rulings, have resolved to settle
this matter upon terms acceptable to them; and
WHEREAS, on August 18, 2009, the parties agreed to a Term Sheet, and
announced to the District Court Judge that they had reached a tentative
settlement, subject to City Commission approval; and
WHEREAS, the parties have been drafting and negotiating a Settlement
Agreement based upon the Term Sheet, and have presented that Settlement
Agreement to the City Commission for consideration; and
WHEREAS, the settlement resolves this dispute on terms that are in the
best interests of the City, since the baywalk condition was intended to provide
public access to the baywalk on the Property, for reasons involving loss of view
corridors to Biscayne Bay, and mitigate traffic impacts the redevelopment of the
Property would cause; and
WHEREAS, this settlement therefore accomplishes the purposes initially
sought, while protecting the City from the uncertainty of litigation and litigation
expenses; and
WHEREAS, for the foregoing reasons, among others, the City Attorney
and City Manager recommend that the City Commission approve the settlement,
authorizing the Mayor and City Clerk to execute a Settlement Agreement based
upon the Term Sheet in a form acceptable to the City Manager and the City
Attorney, and to authorize the City Manager and the City Attorney to take such
further actions as may be necessary to accomplish the intent hereof, subject to
the appropriation of funding and related matters as remains in the discretion of
the City Commission.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND
CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the
Mayor and City Commission approve the Settlement Agreement with
MCZ/CENTRUM FLAMINGO II, LLC, MCZ/CENTRUM FLAMINGO III, LLC,
MORTON TOWERS APARTMENTS, L.P.,, and authorizing the Mayor and City
Clerk to execute the Settlement Agreement in such final form as the City
Manager and City Attorney approve, and authorizing the City Manager and City
2
Attorney to take such further actions as may be necessary to accomplish the
intent hereof, subject to the appropriation of funding and related matters as
remains in the discretion of the City Commission.
PASSED and ADOPTED this 9th day of September , 2009.
r
ATTEST:
MAYOR
f~ ~~ Matti Herrera Bower
a ~~
CITY CLERK
Robert Parcher
APPROVED AS TO
FORM AND LANGUAGE
& FOR EXECUTION
,-~
R 4 0Q
ty Attorney Date
T:\AGENDA\2009\September 9\Regular\Flamingo Settlement Agreement res.doc
3
m MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, vaww.miamibeachfl.gov
COMMISSION MEMORANDUM
To: Mayor Matti Herrera Bower and Memb s of the City Commission
FROM: Jose Smith, City Attorney
Jorge M. Gonzalez, City a ~~
DATE: September 9, 2009
SuB~ECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE TERM
SHEET BETWEEN MCZ/CENTRUM FLAMINGO II, LLC,
MCZ/CENTRUM FLAMINGO III, LLC, MORTON TOWERS
APARTMENTS, L.P., AND THE CITY OF MIAMI BEACH, AND
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A
SETTLEMENT AGREEMENT BASED UPON THE TERM SHEET
IN A FORM ACCEPTABLE TO THE CITY MANAGER AND CITY
ATTORNEY, AND AUTHORIZING THE CITY MANAGER AND
CITY ATTORNEY TO TAKE SUCH ACTIONS AS MAY BE
NECESSARY TO CARRY OUT THE INTENT HEREOF.
RECOMMENDATION
The City Attorney and City Manager recommend that the City Commission adopt
the resolution.
BACKGROUND
On November 4, 1997 the Miami Beach Design Review Board ("DRB") considered
an application for renovation of and new construction on the Morton Towers
property at 1500 and 1536 Bay Road "(Property"). As part of the approval process,
the DRB imposed a condition that: "A baywalk extension, from the south side of the
property north into the future park area, shall be required" (the "baywalk condition").
The current owners of the Property ("Owners") filed suit on July 31, 2008
challenging the baywalk condition in a case styled MCZ/CENTRUM FLAMINGO II,
LLC, a Delaware limited liability corporation, MCZ/CENTRUM FLAMINGO III, LLC, a
Delaware limited liability corporation, and MORTON TOWERS APARTMENTS,
L.P., a Delaware Limited Partnership, Plaintiffs, v. CITY OF MIAMI BEACH, a
Florida municipal corporation, Defendant, Case No. 08-22419-CIV-
ALTONAGA/BROWN, United States District Court, Southern District of Florida (the
"Lawsuit").
The Lawsuit contained three counts: Count 1 for Declaratory Relief, sought a
declaration by the Court that the baywalk condition does not require the Owners to
grant public access to the baywalk. Count II, sought a finding that, if the baywalk
condition does compel public access, such a condition was an illegal taking under
Agenda Item (~~ E-f
Date 9-~-09
City Commission Memorandum
Resolution Approving Settlement Agreement - MCZ Centrum, etc., et al. v. City of Miami Beach
September 9, 2009
Pape 2 of 2
the Florida Constitution and the Fifth Amendment to the United States Constitution.
Count III, stated that, should the Court find the baywalk condition does require
public access to the baywalk on the Property, and is constitutionally permissible,
then Count I I I sought compensation for the alleged taking in accordance with state
and federal constitutional law.
The Lawsuit was originally filed in State court, and the City removed it to the U.S.
District Court. The City filed a Motion to Dismiss the Complaint, which the Court
denied. The District Court Judge then set the case for trial on the two-week trial
calendar commencing August 31, 2009, and imposed a rigorous schedule for
discovery and pre-trial motions. The parties engaged in extensive discovery and
hearings; and prior to trial after several Court rulings, have agreed to settle this
matter.
On August 18, 2009, the parties agreed to a Term Sheet, and announced to the
District Court Judge that they had reached a tentative settlement, .subject to City
Commission approval. The parties are in the process of drafting a Settlement
Agreement based upon the Term Sheet.
The settlement will resolve this dispute on terms that are in the best interests of the
City, since the baywalk condition was intended to provide public access to the
baywalk on the Property, for reasons involving loss of view corridors to Biscayne
Bay, and mitigation of traffic impacts the redevelopment of the Property would
cause. This settlement therefore accomplishes the purposes initially sought, while
protecting the City from further litigation and litigation expenses in this matter.
For the foregoing reasons, among others, the City Attorney and City Manager
recommend that the City Commission approve the settlement, authorizing the
Mayor and City Clerk to execute a Settlement Agreement based upon the Term
Sheet in a form acceptable to the City Manager and the City Attorney, and to
authorize the City Manager and the City Attorney to take such further actions as
may be necessary to accomplish the intent hereof.
CONCLUSION
The City Attorney and City Manager recommend that the City Commission adopt
the resolution.
JS/JMG/TH/GMH
T:WGENDA\2009\September 9\Regular\Flamingo Settlement Memo 09092009.doc