2010-27496 Reso1
RESOLUTION NO. ~ 2010-27496
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING
A SETTLEMENT AGREEMENT BETWEEN K.T.K.L.
CORPORATION AND THE CITY OF MIAMI BEACH, AND
AUTHORIZING THE MAYOR AND CITY MANAGER TO
EXECUTE THE ATTACHED SETTLEMENT AGREEMENT
IN A FORM ACCEPTABLE TO THE CITY ATTORNEY AND
CITY MANAGER, AND FURTHER AUTHORIZING THE
CITY ATTORNEY AND CITY MANAGER TO TAKE SUCH
FURTHER ACTIONS AS MAY BE NECESSARY TO
ACCOMPLISH THE INTENT THEREOF.
WHEREAS, in November,1993, K.T.K.L. Corporation ("KTKL") as Seller, and the City of
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Miami Beach ("City") as Buyer, entered into a Purchase and Sale Agreement ("Contract") for a
property ("Property") located at 1027 Collins Avenue, Miami Beach, Florida; and
WHEREAS, pursuant to the Contract, the City was required to begin construction of a
parking garage within eighteen (18) months; and
WHEREAS, the Contract also provided that if construction of the garage was not
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commenced within eighteen (18) months, the City was required to offer the Property to KTKL for
$428,000.00; and ~ ~I
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WHEREAS, construction of the garage did not begin within the eighteen (18) month period;
and
WHEREAS, in 1997, KTKL filed suit against the City in a case styled K.T.K.L. Corporation
v. The City of Miami Beach, Case No. 97-2687 CA 03, in the Circuit Court of the 11th Judicial
Circuit in and for Miami-Dade County, Florida (the "Lawsuit"); and '; i
WHEREAS, in 1999, KTKL and the City (the "Parties") executed a memorandum
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agreement (the "Memorandum Agreement") to resolve the issues raised in the Lawsuit; and i,
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WHEREAS, on July 21, 1999, Resolution 99-23266 was adopted by the Mayor and City
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Commission of the City of Miami Beach, Florida, approving the Memorandum Agreement between
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KTKL and the City; and
WHEREAS, a dispute arose as to the interpretation of paragraph 6 of the Memorandum
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Agreement and the calculation of the annual payment that the City was required to make ;to KTKL;
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and ~ ~
WHEREAS, in January, 2007, KTKL filed a motion to enforce the Memorandum
Agreement (the "Motion") wherein KTKL claimed that it had not been paid the correct amount for
years 2002, 2003, 2004, 2005, and 2006 pursuant to paragraph 6 of the Memorandum Agreement;
and
WHEREAS, the Parties have reached a tentative settlement, subject to City Commission
approval; and
WHEREAS, the Parties have negotiated a Settlement Agreement ("Settlement Agreement"),
attached hereto and incorporated herein by reference, which, inter alia, clarifies the Memorandum
Agreement and replaces paragraph 6 thereof; and
WHEREAS, approval of the proposed Settlement Agreement is in the best interest of the
City in that it avoids further costs and risks of litigation, and protects the City from future litigation
and expense; and
WHEREAS, for the foregoing reasons, among others, the City Attorney recommends that the
City Commission approve the Settlement Agreement, authorize the Mayor and City Manager to
execute the Settlement Agreement in a form acceptable to the City Attorney and City Manager, and
authorize the City Manager and the City Attorney to take such further actions as may be necessary to
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accomplish the intent thereof.
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 hereby approve the attached Settlement Agreement between K.T.K.L. Corporation and
the City of Miami Beach and authorize the Mayor and City Manager to execute the Settlement
Agreement in a form acceptable to the City Attorney and City Manager, and further authorizing the
City Attorney and City Manager to take such further actions as may be necessary to accomplish the
intent thereof.
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PASSED and ADOPTED this ~~ day of S~l'TEIYI BE/2 , 2010.
ATTEST:
~'` ~~~_
_ CITY CLERK
F:\atto\$ALL\ROTH\Resolution KTKL.doc
AYOR
APPROVED AS TO
FORM & LANGUAGE
FOR CUTION
~ ~ -~
rney
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1N THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 97-2687 CA {03}
ANTHONY KARPAW[CH, KENT
KARPAWICH, AND LISA KARPAWICH,
as assignee for K.T.K. L. CORPORATION, a
dissolved Florida Corporation,
Plaintiff,
vs.
THE CITY OF MIAMI BEACH, a
Municipal corporation,
Defendant.
SETTLEMENT AGREEMENT
In consideration of the promises, covenants and conditions contained herein,
ANTHONY KARPAWICH, KENT KARPAWICH, AND L15A KARPAWICH, as assignees
for K.'l'.K.L. CORPORATION, (collectively, "KTKL"} a dissolved Florida Corporation, and
THI/ C[TY OF MIAMI BEACH ("CITY") al,~rce as follows:
1. Baek~round. On or about July 10, 1999, KTKL and the City executed a
memorandum agreement in which the parties settled the instant litigation ("the Memorandum
Agreement"). On June 29, 2007, KTKL filed a motion to enforce the Memorandum Agreement.
The motion claimed that KTKL had not been paid amounts due for the years 2002, 2003, 2004,
2005, and 2006 under paragraph G of the Memorandum Agrreemcnt. Pursuant to negotiations
between KTKL and the City, the issues raised in KTKL's motion to enforce have been amicably
resolved.
2. Amounts claimed through December 31, 2008. KTKL and the City ace that
the City shall pay to KTKL, the sum of five hundred ninety five thousand dollars ($595,OU0) in
full satisfhction of all amounts claimed as due and owing under the above referenced
Memorandum Agreement through December 31, 2408, including attorneys fees, costs and
prejudgment interest thraugh the execution of this settlement agreement.
3. Additional terms:
a) KTKL and the City agree to be bound by the terms set forth in this agreement subject
anly to the approval of the Miami Beach City Commission. Bath sides agree that this settlement
a~eement will be scheduled on the Comrnissian's agenda far a hearing scheduled for
September 15, 2010, and that the City Attorney, Jose Smith, will recommend acceptance ofthis
settlement agreement to the Commission. The payment of five hundred ninety f ve thousand
dollars ($595,000) shall be made within twenty (20) days of the execution of the Resolution
authorizing this settlement and shall be made payable to Ellsworth Law Firm, P.A., Trust
Account in trust for Anthany Karpawich, Kent Karpawich, and Lisa Karpawich. KTKL shall
withdraw its motion to enforce within five (5) days of receipt of the money.
b) KTKL and the City agree that the evidentiary hearing presently scheduled before the
Honorable Magistrate Judge Elizabeth Schwabadissen on September 8, 2010, shall be
cantinued until October 20, 2010, and heard at that time only if the Commission rejects the
terms of this settlement agreement or if the City has not paid the amount owed pursuant to
Section 3a of this settlement a~eement.
c) KTKL and the City agree that if the Commission rejects this agreement, KTKL will be
free to pursue its full claim for damages, attorney fees, costs, and prejudg~ncnt interest - as
provided by the Memorandum Agreement -through the conclusion of this litigation.
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d) Sean Ellsworth, counsel for KTKL, will submit an affidavit in support of KTKL's claim
for attorneys fees and costs through August 6, 2010. The affidavit will identify the total
amount of attorney's fees to date, the lawyers involved, and their respective hourly rates.
e) KTKL and the City agree to waive any right to appeal any aspect of the withdrawn
motion to enforce.
4. Future payments: KTKL and the City agree to delete Para~aph (of the
Memorandum Agreement and replace it with the following provision:
a) Beginning with calendar year 2009, and continuing thereafter through October 31, 2032,
the City shall pay to KTKL. the fxed sum of ninety thousand dollars ($90,000) per calendar
year {and a pro rated amount for the final year). The payments will increase at a rate of 3% per
year through October 31, 2032, and are set forth on the attached amortization schedule. KTKL
acknowledges receipt of the City's payments of $28,000 in 2009, and $14,000 in 2010, and
agrees that these amounts will be set off against the amount due in 2009, reducing the amount
due for 2009 to $x8,000, which amount will also he paid within twenty (20) days of the
execution of the Resolution authorizing this settlement.
b) The City will pay KTKL $92,700 for the calendar year 2010 on January 10, 2011, or the
next business day should January 10 fall on a Saturday, Sunday or holiday. Thereafter,
payments consistent with the attached amortization schedule will be made on January 10 for
every calendar year through 2032.
5. Alternative Dispute Resolution. KTKL and the City agree that before either
side moves to enforce the terms of this settlement a~neement, the party moving to enforce shall
first serve a Notice of Intent to Move to Enforce on the opposing party. Within thirty (30) days
of service of the Notice on the opposing party, the parties will jointly select a certified
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mediator, schedule and conduct a mediation to try to resolve the dispute. The cost of the
mediator will be shared equally by the parties. The parties may, by stipulation extend the time
necessary to conduct the mediation.
6. Releases. Except f'or the obligations of this Agreement, which are not hereby
released and which shall survive the execution hereof, KTKL, Kent Karpawich, Lisa
Karpawich, and Anthony Karpawich, for themselves and for their respective successors and
assigns, hereby remise, release, acquit, waive, satisfy and forever discharge the City,: its
officers, directors, shareholders, members, employees, agents, servants, representatives and
insurers, and the respective personal representatives, heirs, successors and assigns of all of
them, of and from all, and all manner of action and actions, cause and causes of action, suits,
debts, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, a~eements, promises, guarantees, warranties {whether express or implied, and
whether based on statute, common law or otherwise}, third-party claims, bad faith claims,
variances, trespasses, damages, judgments, executions, claims and demands whatsoever, which
either has or may have against the other, whether arising in tort, by contract, by virtue of
statute, or otherwise, and whether in Iaw or in equity, regardless of whether the same are
known or unknown, suspected or unsuspected, patent or latent, or have yet accrued or snot
accrued, provided the same arise from Paragraph 6 of the Memorandum Agreement as
originally drafited or amounts due under this Settlcinent Agreement through and including
December 31, 2008.
7. Notices. Notices to be given pursuant to this Agreement must be in writing, and
shall be deemed delivered if delivered by hand-delivery, U.S. Mail, or by overnight delivery.
Such notices shall be delivered to the following addresses, which any party may change, by
giving notice to the other parties by the means set forth herein.
[f to KTKL, such notices shall be sent to:
Sean. M. Ellsworth, Esq.
1501 Collins Avenue, Suite 208
Miami Beach, FL 33139
and
Kent Karpawich
34 West San Marino Drive
Miami Beach, FL 33139
]f to the City:
Jorge M. Gonzalez
City Manager, City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
and
Jose Smith
City Attorney
Office of the City Attorney
1700 Convention Center Drive
Miami Beach, FL 33139
8) Due Dates Falling on Weekends or Holidays. In the event that the date of any
acT required to be performed by this AI,-rccmcnt {including, but not limited to, the payment of
any money) falls on a weekend or a federal holiday, then the same shall not be required to be
perfi~nned until the next business day thereaf}cr. ~
9) Modification of Agreement. This Agreement may not be amended or modified
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cxccpt by written instrument signcci by all of the parties hereto, and the parties ab~rcc that ;this
provision may not be waived cxccpt in writing.
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10) Seyet°ability. If any provision of this Agreement shall be held by' a court of
competent jurisdiction to be illegal, invalid or unenforceable for any reason, whether on its face
or as appliod, the remaining provisions shall remain in full force and effeot.
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11) reservation of Jurisdiction. The parties shall request the Court to retain
jurisdiction to enforcre the terms of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on this ~ day
of September, 2010.
B Y:
ANTHO A
B Y: ~
KEN ~ 1!~ 1AWI Hl ~
BY
L RPAWI
r
BY:
FOR: K.T.~K~.L.~C~O ~~O/JRATIO
gy_ S ~~ y V ~
Sean M, Ellsworth, Esq.
Attorney for Plaintiffs
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1N WITNESS WHEREOF, the parties have executed this Agreement on this ~~day
of September, 2010.
CITY OF MIAMI BEACH
Y~
CITY ATTORNEY
t?977O272 v I
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KTKL/City of Miami Beach Settlement Agreement
Payment Schedule
Year Amount Due Due Date
2009 48,000.00
2010 92,700.00 Janua 10, 20t 1
201 l 95,48 I.00 Janua ] 0, 2012
2(}12 98,345.43 Janua 10, 2013
2013 101,295.79 Janua 10, 2014
2014 104,334.(17 January 10, 2015
2015 107,464.71 Janua 10, 20 l (~
2016 110,688.65 January 10, 2017
2017 114,0093 i Janua 10, 2018
2018 l 17,429.59 Janua 10, 2019
2019 [20,952.47 Januar 10, 2020
2020 [ 24,581.05 Januar 10, 202I
2021 128,318.48 Januar 10, 2022
2()22 132,1Ei8.U3 January 10, 2023
2023 l3(i, ] 33.08 Janua 1 U, 2024
2024 140,217.07 Janua 10, 2025
2025 144,423.58 Janua J 0, 2026
2026 148,756.29 Janua 1 U, 2027
2027 153,218.98 January 10, 2028
2U28 157,815.54 Janua 10, 2029
2029 162,550.01 .lanuar 1 U, 2030
2U3U 167,426.5 t January 10, 2031
2031 172,449.31 Janua 10, 2032
2032 148,018.99 Januar 10, 2033
R9 -New Business and Commission Requests
R9G .Discussion About A Proposed Settlement Agreement Regarding K.T.K.L Corporation,
Vs. City Of Miami Beach, In The Eleventh Judicial Circuit Of Florida, General
Jurisdiction, Case No.: 97-2687 CA 03.
(City Attorney's Office)
Agenda Item ~°~ G-
Date q-IS-l~