2013-28242 Reso RESOLUTION NO. 2013-28242
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, APPROVING A
SETTLEMENT AGREEMENT BETWEEN SEVILLE
ACQUISITION, LLC, AND THE CITY OF MIAMI BEACH,
CONCERNING THE PARTIAL DEMOLITION OF THE
BOARDWALK AND THE CONSTRUCTION OF A BEACHWALK
BEHIND THE MARRIOTT EDITION HOTEL AT 29TH STREET
AND COLLINS AVENUE, AND AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE THE SETTLEMENT AGREEMENT,
AND AUTHORIZING THE CITY MANAGER AND CITY
ATTORNEY TO TAKE SUCH ACTIONS AS MAY BE
NECESSARY TO CARRY OUT THE INTENT HEREOF.
WHEREAS, replacement of the wooden boardwalk and construction of an
at-grade paver beachwalk east of the Erosion Control Line on the State-owned
beach west of the dune has been a policy of the City for at least the last decade,
an adopted policy of the City's Comprehensive Plan, and of the Atlantic
Greenway Network, and a goal of the Administration and City Land Use Boards
as part of their review of abutting projects; and
WHEREAS, the policy has been predicated upon the notion that the
wooden boardwalk has a limited life span, and that while the State would allow
repairs, it would not allow expansion or replacement, and given the opportunities
provided by private development abutting the boardwalk for its replacement, the
City pursued private participation in the replacement effort; and
WHEREAS, the design and degradation of the boardwalk contributed to
personal injuries to users, and undesirable use by criminals, the homeless and
feral cats; and
WHEREAS, the Seville has proffered the construction of the at-grade
paver beachwalk between 29th and 30th Streets as part of its reconstruction,
renovation and restoration of the historic Seville Hotel at 29th Street and Collins
Avenue; and
WHEREAS, the City has approved such construction through Planning
Board, Historic Preservation Board, and Board of Adjustment orders; and
WHEREAS, the Seville has adopted a construction phasing plan that
requires access through the site where the boardwalk is presently located, and
therefore is concerned about the timing of its commencement of the demolition of
the boardwalk; and
WHEREAS, the City Commission has expressed concerns about the
demolition of the boardwalk, following numerous citizen complaints; and
WHEREAS, the City Commission has requested clarification of the State
policy regarding repair, expansion and replacement of the boardwalk, though
such clarification has resulted in a delay of issuance of approvals to commence
demolition to the Seville; and
WHEREAS, the Seville has also been requested to submit additional
material to supplement its plans for demolition and construction, including an
ADA compliant means of travel ("MOT") to ensure public access between the
boardwalk north and south of the demolition and construction areas, and such
MOT is still in discussion between the Seville and City staff and has either not as
yet been submitted, or if submitted, is under review or has just been approved;
and
WHEREAS, the parties have been drafting and negotiating a Settlement
Agreement to permit the Seville to proceed with the demolition of the boardwalk
to accomplish its phasing plan, but to allow time to investigate alternatives for
construction of the beachwalk to be pursued so that solutions to the concerns
and complaints discussed above can be explored, and have presented that
Settlement Agreement to the City Commission for consideration; and
WHEREAS, this settlement, without admitting liability, allows the parties to
protect their respective interests and concerns while moving forward based on
the expectations and needs of all persons and entities concerned; 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 the Settlement Agreement,
subject to such further minor modifications as may be necessary for the best
interests of the City that are 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.
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 Seville
Acquisition, LLC, 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 Attorney to take such further
actions as may be necessary to accomplish the intent hereof.
PASSED and ADOPTED this 5-& day of D14n , 2013.
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yZ
ATTEST:
AYOR
CITY CLERK
APPROVED AS TO
FORM AND LANGUAGE
& R EXECUTION
°P rig 1,77
orney Date
INCORP ORATED:
T:\AGENDA\2013Uune 5\Seville Settlement Agreement reso.docx
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SETTLEMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this �day of Tyz, 2013,
by and between the CITY OF MIAMI BEACH, a Florida municipal corporation
("City") and SEVILLE ACQUISITION, LLC, a Delaware limited liability company
("Seville") (collectively, the "Parties").
RECITALS
WHEREAS, the City is a municipal corporation organized and existing under the
laws of the State of Florida with all powers granted to it by its Charter, the Florida
Constitution, and general law;
WHEREAS, Seville is a Delaware limited liability company that is authorized to
conduct business in Florida and is the'owner of real property more particularly described
in Exhibit "A" and approximately located at 2901 Collins Avenue in Miami Beach,
Florida (the "Property");
WHEREAS, Seville has pursued the redevelopment of the Property since 2010,
beginning construction in September 2011 (the "Seville Redevelopment");
WHEREAS, Seville obtained all of the required development approvals from the
City in 2011 for the Seville Redevelopment, which development approvals specifically
contemplated and conditioned approval of the Seville Redevelopment on the demolition
of the existing boardwalk and the construction of a new beach walk (at Seville's sole cost
and expense) per the City's request and pursuant to Policy 5.1 of the Recreation and
Open Space Element of the City's 2025 Comprehensive Plan;
WHEREAS, to sequence the remaining construction of the Seville
Redevelopment, to minimize delays, and to complete the Seville Redevelopment pursuant
to the City-approved design, Seville has requested a permit on or before June 1, 2013 for
the demolition of the existing boardwalk located between the Property and the beach and
the construction of a new paved beach walk (the "Beach Walk Permit");
WHEREAS, Seville submitted its application for the Beach Walk Permit on
November 7, 2012, however, in April 2013, on May 6, 2013, on May 9, 2013, and again
on May 20, 2013 the City advised Seville that it had temporarily suspended all beach
walk permitting while it reevaluated its beach walk policy and, as such, it could not yet
issue the Beach Walk Permit to Seville;
WHEREAS, a dispute has arisen between the City and Seville with respect to the
Beach Walk Permit, and as a result of that dispute, and to avoid damage and delay in
construction, Seville filed that certain lawsuit styled as Seville Acquisition, LLC v. City
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of Miami Beach, Miami-Dade County Circuit Court Case No. 13-1739-CA-31 (the
"Lawsuit"), seeking a writ mandating the City to immediately issue the Beach Walk
Permit;
WHEREAS, both Seville and the City wish to fully, completely, and amicably
settle and resolve all potential claims between them with respect to the Beach Walk
Permit—with neither admitting liability or waiving a defense or claim—without incurring
the needless costs and expense of litigation and/or administrative claims and proceedings;
WHEREAS, both Seville and the City represent and warrant that they have the
authority necessary to enter into this Agreement and do so in accordance with all
necessary procedures; and
WHEREAS, both Seville and the City prefer to avoid the uncertainties and
expense of the Lawsuit and instead desire to set forth in this Agreement, without
establishing precedent, the terms and conditions of the settlement of the Lawsuit, in
exchange for the consideration described herein.
NOW THEREFORE, in consideration of the mutual covenants entered into
between Seville and the City, and in consideration of the benefits to accrue to each, the
receipt and sufficiency of which is hereby acknowledged, it is agreed as follows:
AGREEMENT
1. Recitals. The above recitals are true and correct and are incorporated
herein. All Exhibits to this Agreement are hereby deemed a part hereof.
2. Statement of Intent. It is the intent of Seville and the City that this
Agreement shall resolve all disputes regarding the issuance of the Beach Walk Permit.
3. No Admission of Liability. The City and Seville acknowledge that they
are entering into this Agreement to promote remedial measures between the two entities
which have shared an otherwise professional and productive working relationship and to
avoid the cost and other consequences to the Parties of the Lawsuit, and for the other
considerations herein set forth. In making this Agreement, neither the City nor Seville
admit liability, negligence, or responsibility in any matter related to or arising from the
Beach Walk Permit dispute at issue in the Lawsuit.
4. Effective Date. This Agreement shall become effective only when all of
the following have occurred: (i) it is signed by the authorized agent of each Party; and (ii)
it is approved by the City in accordance with applicable law and the City adopts the
Resolution in the form substantially attached as Exhibit "B" (collectively, the "Effective
Date").
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5. Dismissal of Lawsuit. On the first business day after the issuance of the
Beach Walk Permit pursuant to Section 6 of this Agreement, Seville shall file a Notice of
Voluntary Dismissal Without Prejudice of the Lawsuit, in the form substantially attached
as Exhibit "C."
6. Beach Walk Permit and Demolition. On the first business day following
the Effective Date, the City shall issue the Beach Walk Permit authorizing: (i) the
demolition of the existing boardwalk; and (ii) the construction of the new at-grade paved
beach walk, per Seville's November 7, 2012 application, provided that construction of a
new at-grade paved beach walk will not begin before December 1, 2013 (the
"Construction Commencement Date").
7. MOT Plan. Seville agrees to work with the City, using its reasonable
efforts, to amend its means of travel plan (the "MOT Plan"), which provides an alternate
route for boardwalk pedestrians to use during and after the demolition of the existing
boardwalk, and before the construction of the new beach walk is complete, to be ADA
compliant.
8. Elevated Site Plan.
A. The City shall have the right (and Seville shall reasonably
cooperate with the City's efforts at no additional cost to Seville) to work
with the State of Florida Department of Environmental Protection ("DEP")
to develop alternative site plans for the proposed beach walk to be elevated
approximately one (1) to two (2) feet in certain portions to allow views of
the ocean so long as the elevation of the beach walk does not materially
impact any other aspect of the Seville Redevelopment (the "Elevated Site
Plan"). Impact on the access and egress points to and from the Property,
the addition of guard rails/railings on or along the beachwalk necessitated
by the elevation of the beach walk, overburdening the Property with run-off
due to the grading for the Elevated Site Plan, a delay in completing the
Seville Redevelopment (including if the completion date for the
improvements contemplated by the Elevated Site Plan is estimated to be
after March 31, 2014), and impact on the safety or security of the Property
shall all be deemed to materially impact the Seville Redevelopment.
B. If the City obtains all necessary permits and approvals from
DEP, the City, and any other agency with jurisdiction over the Elevated
Site Plan for the construction of the Elevated Site Plan by the Construction
Commencement Date, the City shall issue a permit for the construction of
the Elevated Site Plan on or before the Construction Commencement Date
and Seville agrees to construct the Elevated Site Plan so long as the costs
associated with the Elevated Site Plan do not exceed the cost of the at-grade
paved beach walk authorized by the Beach Walk Permit (issued pursuant to
Section 6 of this Agreement) or the City has provided the funds for the
additional costs.
C. If the City does not obtain all of the necessary permits and
approvals from DEP, the City, and any other agency with jurisdiction over
the Elevated Site Plan for the construction of the Elevated Site Plan, or has
not provided the funds for the additional costs as described in Section 8(B)
by the Construction Commencement Date, Seville shall have the right to
continence construction of the at-grade paved beach walk authorized by the
Beach Walk Permit (issued pursuant to Section 6 of this Agreement).
D. The costs associated with the construction of the Elevated
Site Plan shall be mutually agreed upon by the Parties. The Parties agree to
explore reasonable alternatives in order to mutually agree upon these costs.
If the City funds such additional costs, such work shall be performed by
Seville's general contractor or its subcontractors as per the agreed upon
plan. If the Parties, acting in good faith, are unable to mutually agree upon
these costs by the Construction Commencement Date Seville shall have the
right to commence construction of the at-grade paved beach walk
authorized by the Beach Walk Permit (issued pursuant to Section 6 of this
Agreement).
E. If Seville's general contractor determines that the completion
date for the improvements contemplated by the Elevated Site Plan is
estimated to be after March 31, 2014, the Parties agree to explore
reasonable alternatives before the Construction Commencement Date to
complete such improvements by March 31, 2014 (subject to the materiality
standard in Section 8(A) of this Agreement).
F. If the City and Seville agree that a final permit from DEP, the
City, and any other agency with jurisdiction over the Elevated Site Plan, is
imminent, a one-time extension of the Construction Commencement Date
of no more than seven (7) days will not be unreasonably withheld by either
Party.
9. Beach Walk Surface.
A. Seville shall work with the City and DEP to explore and for
the City to obtain approval from DEP (to the extent reasonably possible) of
an alternative surface and/or coating for the beach walk which provides a
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"jogging-friendly" surface that mitigates the impact on an average jogger's
body (i.e., their joints) while jogging on the beach walk.
B. Seville shall have the right to construct the beach walk with
the previously approved surface and shall be released from its obligations
to explore and seek approval for the alternative surface if: (i) Seville and
the City do not obtain approval for an alternative "jogging-friendly" surface
by the Construction Commencement Date; and (ii) Seville's costs to design,
obtain, install and maintain the alternative surface or coating exceeds such
costs for the previously approved beach walk surface and the City has not
provided the funds for these additional costs.
10. Default.
A. The occurrence of any of the following shall constitute an
event of default ("Event of Default") under this Agreement:
(i) The City's failure to issue the Beach Walk
Permit pursuant to Section 6 of this Agreement ("Default A");
(ii) The City's imposition of any material condition
to the Beach Walk Permit that materially frustrates the ability
to develop the Property as contemplated herein, or delays or
increases the costs of the Seville Redevelopment ("Default
B"
(iii) The City's revocation of the Beach Walk Permit
or any other similar action which impedes the ability to
perform the work approved by the Beach Walk Permit or
otherwise contemplated herein ("Default C");
(iv) A third-parry challenge regarding the issuance
of the Beach Walk Permit pursuant to Section 6 of this
Agreement which impedes the ability to perform the work
approved by the Beach Walk Permit. For purposes of this
section, a "challenge" shall be broadly construed to include
any administrative, judicial, quasi-judicial, legislative, or
other like petitioning activity directed at any aspect of the
City's issuance of the Beach Walk Permit ("Default D").
B. If and when Seville determines pursuant to the terms of this
Agreement that an Event of Default has occurred, Seville possesses the
following remedies:
(i) If and when Seville determines that Default A,
B, or C has occurred, Seville may, at its sole and absolute
discretion, terminate this Agreement, and the Parties agree
that the releases contained in Sections 17(A) and 17(B) are
void. Seville shall be entitled to prosecute and/or defend its
right to the Beach Walk Permit.
(ii) If and when Seville determines that Default D
has occurred' -(a)-Seville may, - at its sole and- absolute
discretion, terminate its obligations pursuant to Sections 8 and
9 of this Agreement, without regard to the pendency of
litigation or any expenditure of money by the City for such;
(b) Seville shall be entitled to prosecute and/or defend its
right to the Beach Walk Permit; and (c) the City shall actively
and individually defend the issuance of the Beach Walk
Permit.
C. The remedies provided in Section 10(B) are cumulative and
not exclusive of any other rights or remedies that may be available to the
parties, whether provided by law, equity, statute, or otherwise.
D. In the event Seville exercises its right, pursuant to Section
10(B), to terminate its obligations under all or part of this Agreement, each
Party shall bear its own costs and attorneys' fees associated with that
termination, and shall be released from any liability associated therewith.
11. Construction. The language used in this Agreement will be deemed to be
the language chosen by all of the Parties to express their mutual intent, and no rule of
strict construction shall be applied against any Party. Any reference to any federal, state,
local or foreign statute or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise.
12. Expenses. Except as otherwise specified, each of the Parties will bear its
own costs and expenses (including legal fees and expenses) incurred in connection with
the negotiation and consummation of this Agreement and the transactions contemplated
hereby.
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13. No Third Party Beneficiaries. Unless expressly stated herein to the
contrary, nothing in this Agreement, whether express or implied, is intended to confer
any rights or remedies under or by reason of this Agreement on any persons other than
the Parties hereto and their respective administrators, executors, other legal
representatives, heirs, successors, officers, directors, owners, and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligation or liability of
any third persons to any Party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any Party to this Agreement.
14. Joint Defense. In the event that a challenge is brought to the Beach Walk
Permit or this Agreement (both collectively, the "Approvals"), or a challenge is brought
to any necessary and implementing action required by the Approvals, the City and Seville
"each agree-individually -to use their best efforts to actively defend--any -and all-such
challenges. For purposes of this paragraph, a challenge shall be broadly construed to
include any administrative, judicial, quasi-judicial, legislative, or other action that
impedes the ability to promptly perform the work approved by the Beach Walk Permit. It
is expressly recognized that the duty to defend required by this paragraph shall survive
Seville's exercise of its termination rights pursuant to Section 10(B).
15. Relationship of the Parties. The Parties hereto acknowledge that they are
separate and independent entities and nothing herein shall be deemed to create a joint
venture, association, partnership, agency or employment relationship between the two.
Neither party shall have the power to act in the name of, on behalf of, or incur obligations
binding upon the other Parry. Neither Party shall acquire an interest in the business or
operations of the other by virtue of this Agreement. Furthermore, neither Party endorses
or warrants the activities of the other or their business, business practices, projects,
products, services, or other activities.
16. Consideration. The City and Seville agree that the consideration to them
set forth herein constitutes adequate and ample consideration for the rights and claims
they are waiving under this Agreement, and for the obligations imposed upon them by
virtue of this Agreement.
17. Release and Waiver of Claims.
A. In exchange for the consideration described in this
Agreement, Seville, its agents, representatives, officers, directors,
employees, attorneys, affiliates, parents, subsidiaries, successors, and
assigns, irrevocably, knowingly, and voluntarily releases, waives, and
forever discharges any and all claims, demands, actions, or causes of action,
of any kind whatsoever, known or unknown, foreseen or unforeseen,
foreseeable or unforeseeable, and any consequences thereof, which it has or
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may have against the City from the beginning of the world until the
Effective Date of this Agreement, in connection with the issuance of the
Beach Walk Permit as alleged or that could have been alleged in the
Lawsuit.
B. In exchange for the consideration described in this
Agreement, the City irrevocably, knowingly, and voluntarily releases,
waives, and forever discharges any and all claims, demands, actions, or
causes of action, of any kind whatsoever, known or unknown, foreseen or
unforeseen, foreseeable or unforeseeable, and any consequences thereof,
which it has or may have against Seville, its agents, representatives,
officers, directors, employees, attorneys, affiliates, parents, subsidiaries,
successors,-and-assigns;-from the beginning-of-the world until the Effective -
Date of this Agreement, in connection with the issuance of the Beach Walk
Permit as alleged or that could have been alleged in the Lawsuit.
C. The mutual releases stated in sections 17(A) and 17(B) above
do not release the Parties from their obligations under this Agreement.
D. EACH PARTY ACKNOWLEDGES, AGREES, AND
UNDERSTANDS THAT THIS RELEASE IS A FULL AND FINAL
BAR TO ANY AND ALL CLAIMS IN CONNECTION WITH THE
ISSUANCE OF THE BEACH WALK PERMIT THAT THEY HAD,
HAVE, OR MAY IN THE FUTURE HAVE AGAINST EACH
OTHER THROUGH THE EFFECTIVE DATE OF THIS
AGREEMENT.
EACH PARTY HAS CONSULTED WITH AND HAS BEEN
ADVISED BY AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT.
18. Enforcement of Settlement Agreement. None of the Parties herein are
releasing their right to bring an action to enforce the terms of this Agreement. If any
legal action or other proceeding is brought for the enforcement of this Agreement or
because of any alleged dispute, breach, default or misrepresentation in connection with
any provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees, court costs and all expenses incurred in that action or
proceeding, even if not taxable as court costs (including, without limitation, such fees,
costs and expenses incident to appeals), in addition to any other relief to which such party
may be entitled.
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19. Conflicts and Amendment of Prior Approvals. In the event of conflicts
between the terms of this Agreement, and/or a previously imposed condition of
development approval, the provisions of this Agreement shall control. With respect to
the design and construction of the beach walk addressed herein, the City's staff has
determined that the following approvals are consistent with the terms of this Agreement,
including without limitation, Sections 7, 8, and 9 herein: (A) June 14, 2011 Historic
Preservation Board Order, File No. 7249; (B) June 28, 2011 Planning Board Order, File
No. 2013; (C) September 9, 2011 Board of Adjustment Order, File No. 3515; and (D)
September 13, 2011 Historic Preservation Board Order, File No. 7249.
20. Severability. If any provision of this Agreement may be construed in two
or more ways, one of which would render the provision invalid or otherwise voidable or
unenforceable-and--another--of-which-would-render the-provision valid-and-enforceable,
such provision shall have the meaning which renders it valid and enforceable. If any
provision hereunder shall be held unenforceable by a court of competent jurisdiction,
then the remaining provisions of this Agreement shall continue in full force and effect
without being impaired in any way.
21. Survival. All covenants, agreements, representations and warranties made
herein or otherwise made in writing by any party pursuant hereto shall survive the
execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby.
22. Waivers. The failure or delay of any Party at any time to require
performance by another Party of any provision of this Agreement shall not affect the right
of such Party to require performance of that provision or any other provision hereunder.
Any waiver by any Party of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach of such provision, a waiver
of the provision itself or a waiver of any other right or remedy under this Agreement.
Notice to or demand on any Party in any circumstance shall not, of itself, constitute any
other or further notice or demand in similar or other circumstances. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
23. Complete Agreement. This Agreement, and all the terms and provisions
contained herein, including without limitation the Exhibits hereto, constitute the full and
complete agreement between the Parties hereto to the Effective Date with respect to the
matters expressly set forth herein, and supersede and control over any and all prior
agreements, understandings, representations, correspondence and statements, whether
written or oral. Any provision of this Agreement shall be read and applied in pari
materia with all other provisions hereof.
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24. Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed, other than by a writing signed by both Parties, making
specific reference to this Agreement.
25. Captions. The section headings and captions of this Agreement are for
convenience and reference only and in no way define, limit, or describe the scope or
intent of this Agreement or any part thereof, or in any way affect this Agreement or
construe any article, section, subsection, paragraph or provision hereof.
26. Holidays. It is hereby agreed and declared that whenever a notice or
performance under the terms of this Agreement is to be made or given on a Saturday or
Sunday or on a legal holiday observed by the City, it shall be postponed to the next
following business day.
27. Public Purpose. The City and Seville acknowledge and agree that this
Agreement satisfies, fulfills, and is pursuant to and for a public and municipal purpose,
and is in the public interest, and is a proper exercise of the City's power and authority.
28. Notices. The Parties designate the following persons as representatives to
receive any notices with regard to this Agreement:
For the City: Jimmy L. Morales
City of Miami Beach, City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
With a copy to: Jose Smith, Esq.
City of Miami Beach, City Attorney
1700 Convention Center Drive, Fourth Floor
Miami Beach, Florida 33139
For Seville: Seville Acquisition, LLC
c/o Marriott International, Inc.
10400 Fernwood Road
Bethesda, Maryland 20817
Attn: Regina A. Nelson, Dept. 52/923
With a copy to: John K. Shubin, Esq.
Shubin & Bass, P.A.
46 S.W. First Street, Third Floor
Miami, Florida 33130
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With a copy to: Michael Larkin, Esq.
Bercow, Radell & Fernandez, P.A.
Wachovia Financial Center
200 S. Biscayne Boulevard, Suite 850
Miami, Florida 33131
29. Successors in Interest. The obligations and benefits of this Agreement
shall inure to all successors in interest to the Parties to this Agreement.
30. Further Assurances.
A. The Parties agree to execute and deliver from time to time
such documents, and to perform all actions which may be necessary to
effectively and completely carry out the intended effect of this Agreement,
including but not limited to, defending the Agreement from legal or
administrative challenges.
B. The City agrees, from the Effective Date of this Agreement,
that nothing contained herein or in the Lawsuit shall be the basis for future
downgrading or disadvantage of Seville as an applicant or petitioner of
government redress.
31. Exhibits. Each Exhibit referred to and attached to this Agreement is an
essential part of this Agreement. The Exhibits and any amendments or revisions thereto,
even if not physically attached hereto, shall be treated as if they are part of this
Agreement and incorporated herein.
32. Technical Amendments. In the event that due to minor inaccuracies
contained herein or any Exhibit attached hereto or any other agreement contemplated
hereby, or due to changes resulting from technical matters arising during the term of this
Agreement, the Parties agree that amendments to this Agreement required due to such
inaccuracies, unforeseen events or circumstances which do not change the substance of
the Agreement, or prejudice either Party, may be made and incorporated herein.
33. Execution. The execution, delivery, and performance of this Agreement
have been duly and validly authorized by all necessary corporate representatives of
Seville and all necessary officials of the City. This Agreement constitutes, and when
executed and delivered will constitute, a valid and binding obligation of the Parties
enforceable in accordance with the terms set forth herein. The Parties agree that this
Agreement may be executed in counterpart originals with the same force and affect as if
fully and simultaneously executed as a single original document. A facsimile or
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electronic copy of this Agreement and any signatures thereon shall be considered for all
purposes as originals.
34. Florida Law. This Agreement shall be governed by, construed, and
enforced in accordance with, the laws of the State of Florida. Either of the Parties hereto
may enforce the terms of this Agreement in Miami-Dade County Circuit Court.
35. Time is of the Essence. Time is of the essence for each and every
provision of this Agreement.
36. Preservation of Rights. The City and Seville further acknowledge and
agree that certain provisions of this Agreement will require the City and/or its boards,
departments or agencies, acting in their government capacities, to consider governmental
action as set forth herein. The City and Seville acknowledge and agree that all such
actions undertaken by the City shall be undertaken in strict accordance with established
requirements of the general laws of the State of Florida and City ordinances or
regulations. Nothing in this Agreement or in the City's and Seville's acts or omissions in
connection herewith shall be deemed in any manner to waive, limit, impair, or otherwise
affect the authority of the City in the discharge of its police power or governmental
power expressly including the land use and zoning power.
37. Mediation.
A. Notwithstanding anything to the contrary herein, no civil
action with respect to any dispute, disagreement, claim or controversy
arising out of or relating to any provision of this Agreement (the "Dispute")
may be commenced until the matter has been submitted to JAMS, or its
successor, for non-binding mediation (the "Mediation"). Either Party may
commence the Mediation by providing to JAMS and the other Party a
written request for the Mediation, setting forth the subject of the Dispute
and the relief requested immediately after the occurrence of the Dispute.
The particular mediator selected shall,be subject to agreement between the
Parties. The Mediation shall occur within 10 days of the Dispute, unless
otherwise agreed by the Parties. The Parties agree to share equally in the
costs of the mediation. Either Parry may seek equitable relief prior to the
Mediation to preserve the status quo pending the completion of the
Mediation.
B. The Mediation shall not extend the deadlines in Sections 6, 8,
and 9 of this Agreement as related to the Construction Commencement
Date. To illustrate the purpose of this section, if mediation is commenced
pursuant to this Section regarding any of the obligations contained in
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Sections 6, 8, and/or 9, including without limitation, the Elevated Site Plan,
the permitting of the Elevated Site Plan, the costs associated with the
Elevated Site Plan, the estimated completion date for the improvements
contemplated by the Elevated Site plan, the alternate beach walk surface,
the permitting of the alternate beach walk surface, and/or the costs
associated with the alternate beach walk surface, and the Mediation has not
occurred or has not resolved the Dispute by the Construction
Commencement Date, Seville shall retain its rights to proceed as provided
for in paragraphs 6, 8, and 9.
[Balance of Page Intentionally Left Blank— Signature Page(s) to Follow]
13
IN WITNESS THEREOF, the Parties hereto have caused the execution of this
Agreement by their duly authorized officials as of the day and year first written above.
Signed, sealed and delivered in the presence of:
CITY OF MIAMI BEA(;H
By:
Mai errera ower
Mayor
STATE OF FLORIDA )
) SS
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of Ty e ,
2013, by MATTI HERRERA BOWER, the MAYOR of the CITY OF MIAMI
BEACH, who is ✓personally known to me, or who has produced
as identification.
Notary Seal
Notarj Public, State of Florida
Print Name: RciFc4z( E. (Tr�K4C�v
My Commission Expires: 9
Q�Y AV Notary Public State of Florida
`,, Rafael E Granado
/_ Nj+ My Commission D091 8782
\`Q0 4 9�na r�Q Expires 09116120,3
ATTEST: INCORP��CRATED' ROVED AS TO FORM AND
•. l�;,, :'� A E & FOR CUTION
By: C 126' y.
Rafa 1 E. Granado S ith, - sq.
City Clerk City-Atto ey G'�"
14
Witness: SEVILLE ACQUISITION, LLC
By: Courtyard Management Corporation,
its sole member
Print Name:
By:
Timothy J. Grisius
Vice President
STATE OF MARYLAND )
) SS
COUNTY OF MONTGOMERY )- -The foregoing instrument was acknowledged before me this day of ,
2013, by TIMOTHY J. GRISIUS, the VICE PRESIDENT of COURTYARD
MANAGEMENT CORPORATION, the sole member of SEVILLE ACQUISITION,
LLC, a Maryland limited liability company, who is personally known to me, or who
has produced , as identification.
Notary Seal
Notary Public, State of Maryland
Print Name:
My Commission Expires:
15
SCHEDULE OF EXHIBITS
Exhibit A: Property Legal Description
Exhibit B: Resolution Adopting Agreement
Exhibit C: Notice of Voluntary Dismissal Without Prejudice
16
Exhibit
��
i
LEGAi,DESCttmam
AI of Bbdt 14 together wo alky tivnv8h"W Mod 11 tart r&V fmm the North Una of sand Block 11 to
tha Nattbtrty line of MWW Bead,odra;ALA
A catala tract or pang of land NMV SoUW of and edge ft to Lot 1 of MM 11,as s�mm tort U Plat
of THE OCEW FROMr PROPERTY OF THE MIAM MkcH immOV84W COMPANY,tecoeded bt Plat- -
Saok 5,at Pape 7 and 8,of ttw Pubk Aeeard;of MW"_Dada Coatdy,Florida,more partrcdarly -
desatad m falaR%to we
Bali+(P.0.8.)at the Sovlhrvtt"tarns of said rot 3;tltetico In a Southerly dkedton�
dhWm In*Of ON tat 1 e+dended to the bWomfim rd f N Beetle D%W than In asoutt ft
,
Isot v*V Use turves of said Pdnrd k&ch Ddm Ia a pobt an said Ddm sdtldt mMmo=a&M
Pm ffd WM dra Sari,*Ire of lot 5,Blatt B,atmry M to ft aforetmrd Plat the t ga=of sold Ikw
Ran the Sod wV Irre of said lot 5 bdn➢ttalau*W by dte mog kkrh*Pe1tR of said lot 5:ft we in
Um Al Otean,sald�fhtaerewo M Bank ME Page�of the Pubk Rem-&of t d43ade
Cwad7,FAft;Ilsatca trot HoAlterly afortp the I a&-lmd!rat" to*d One of the Aftwo Oatten to
Bte Staudt 6te of SIM lot 1;thmm Wa lb*aksg tha Soudt One of card lot 1 to the Point d aa*mb p
[PAIL),,
AO a®rdltrg W Um Plat cf Vm OCM4 Rant Pttipenty of Tba ftW Beach Uttprwa+ttartl�n11idY,
recorded In Flat Book 5,at Pages 7 and 8,of the PL*k Records of Warm-Dade Candy,Fonda;
Uacid P =te U PwUm of cWd PwW 1,W t has bean be>amfas sold and cm myed by
PROPSU S,M,unm the Oty of MhM 88adt,a Fmtda rtaaddpal fhe
sari Puba1 beGtD dmotxd as M_c .
A poMm of our tartakt Pacd of rand hOng kW" and W*ft Lot 4 Bbdt Lt,of THE OCEAN
FRONT FROp�M OF THE MIAM 854Gi WPROVDa T O�AHy',as shown rn the arnpnded CEA
re®rlad ks Pkt Book 5,at Page 7 tstd 8,d the PUMc Rmm*of KwnFaada Ca mty,Fiorkla;
sad Podion bet q bounded as k1mv
a ba�remmenllormd OCEAsN Pli�OtYaT r the totter tiorytefy Pand of tot 6, a,d
PROPERTY OF THE mWu ge CH IMppZVEKW
P21001 to d the xMWW IY Eno $Bocstded an the tvwdwiy side by a am p"M to and 35 et
Nw Sounded b the W 1' Sounded an the Fad"stile by Ste Aft&
od)ol"cW rat 1,Bradt il�, by Wesdsdy Ihfs of fha said Patin,d land lytrtg 5ovllrety of and
Book28077/Page4228 CFN 420120275390 Page 8 of 12
i
PARCBS:(VAGITED RIGfff-O WAY)
Tha Rlpt¢of Way, Alr Rlghtr m w ttm Wm tnp desafbad p:operLy,asttu„endng at a trantaf
pWw 30 Net vat]ml from+7.0 elavatAm USED.By Datum.
Cwwnaxa(P.O.C.)at ere NWhvcslrefp area of Sat 4,Elodc IL,arc OCEAN ReQNT PROPERTY OF
lQN4I BEAN IPiIPRRfJVE94E?ET COMPAJiy,A StEDtVi1,10N,recorded M Plat Baatc 5,at Pope 7 or the
Putt Renard!d"Wit-Dada f curdy,Fba4 end,tat S.19 degrees 57 tr W.,W xq the eastay Nne
�+>,dsa�tht Westerly tkx cf said Bkx t 11,a diatasscn at Y8.4D tam a point of- -
_ _ (J' -) _ cav%haft a radios d i6.00 feet,said p*t.&mrvattae -
herdu terde�t 71 m_=n�11 Ord this� a�nln¢(P rc o d that part d
dong the tfortN*bne of 29th StmM tltrouph a antral angle or L20 44'�the arc a dWa r>ovf
33.72 fiat to a point d rem=m mtum(P.R.G)Of a dradar cA-j%=cam 44'19;e d�of
a fa&n n 190.00 Feel,the fdto*g throe(3)aaw=are elm,g the E4arnlerty ine�2ft S�D
d 99 degrees 01 W a rd� of 1TL82 g e ads Of alai orvR tl*ough a a al enpb
snare NOtaast aly,and havfeg a radius d 6,00 ft�r ^mod a(PAW Of R deader curve
a+r+e„auough a cchbW angle d 46 So'#r Y aht of the an:OPsaJd
rb9+�s�'04',a di�tl2 of 59.58 Rat b e print d revtrea
,cwutore(P.A G)d a drt ulw pave,fStTfaYe
mn So then ,.ly along Cte arc td said aevq,ltvun o � d li degrees t0'15 t d
18.698 roe!to the interjecoon Of fha Eesb*Ine Of Mbmf Basch Ddv%as sefd Dd„e b referenmd on on
of 11 Aeaxdst Plat;thenra run M 70 degrees g2'4l'W,,fl wo rafd 29th M"bd,a dAsna,
poW on the e>arttx(rorxgW of s dipJter trmc t Mf�a danker of 100.00 feet end
ft oerea of sad chLi r boors NN.47besdq film 3, aed�110(the Maine ed rfed yam,
No+drarsrarlY.Jrortfnorfy,NOrthwesteny �d��a9'w.IFam ttds fat ergalbed pate;the=
drarler tree!and a W y afaap the wasirr boudery of sale
b^9 tha arc of a d=br cwm to lha left tWng a radYm ae 9?.CO feet and a cm,b
angle d 202 dapreee 32'41 fW 176,.75 fcac to the hermcbm of yte�:e y da afon=W 29m
5bW4 do=run AL 70 degrees OX 49'W.!long said motathse,a dtsbnat Of 25.29 rat to the
"19Md "flan of lbe p ie=Vn So SffOWU y of Me WaftV line d tha of 9d Mod*14 @nets nm N.
t9 depress ST 11'E along mid Seuthedy pro)cite a distance of 99.70 feet to lha Pafntof Bmh*lg
PARCEL 5:(Cff=L IR TRACn
Meta ofd Bounds Desalptlon of Pardon d ChUlar Cava Tract bepveea 18oda B and 11,and East of
Cd1u venue;dw m on the AMENDED MAP DF TW OCEAN FRONT PROPERTY OF THE MW4f OEACH
IM�� PJ�,rKMM d b Plat Odds 5,Papa 7 and B,of fha Padre Re cards of Mkw&oade
ty g pa adady desalted as fbbor
Book28077/Page4229 CFN#20120275390 Page 9 of 12
i
CmrsrmD*W(P=)of fha Pdm Of aereeae(P-C)d e drtWr fates,self'PL'bdnp 70M feet
NortlOtlr from the SouUrtfy cmar of Lo 6,biotic 8,IStiMM FLAP 13F THE OMAN FRMtr
MPM.13F TM MAl41 BEAW IMPffi]9i9 B f rdF4PAMirt Then tun h a Norlhaty dredfoo atmhg
the EnWV Una Of tbfle Avarw,a endad Nw t dy,a dam of 1WOO feat m a print do the
cmbWO e d 5th great(raw 24tt Strom,adatded them®rut In ert Eaaterl f d6ed1 dn otorg a
be d 90 deplees 43 tm fl0t alndp the Car I Ikm(Jf 29th Sbect e)derdW EahA*,a dtlbe df
129.00 feet m 01e Paint df 13"ka lro9(FDJL)of the Trod of Land twain do=med;udd Pd m of
Boom"(PMA)bw*Via miler of a dude 1W,aO Meth dtamals The p-Um of said drde hamin
desk by duds of deader sammb aid detr respa*a middle=Snob=is as kneww
From said darter of 10000 tout dn:k,nm At an t?aderly dredlon almg Um oer*rbw of 29d19mL,
- - - - prodlhaed F�herty,a dlrtashoa d 40.72 fart to a print en tlm trdde mige of a os+Qera omb p'or O+a __ --- - - — - - - -
psm>o%d 5*dna1p M the anw to of 24dt 3test is named b1 be bue Ent and West);dwrwe
n1n sloop ft arc d a drmdc saprAnt hWM for as Warm q a dend dlo wm of 15.86 test and
middy orhitnsm to tl1e Idt a said dhdrd,of 060 faB f�dnp df add dmrd bsw"514MU4•W;
dhatcs nut,along the arc or a drndar shh�hett,bwinp 0tr f>s ekntelfU,a dltbtd ddarloe of�.®�
and a eddde odaam Le the left d said dwrd,or 4.40 feet,bm"s®!d chord bemg 5 T3M 3'W;
dw=nm dorg the arc of it drmbr mgmad,hhwlg fa as etaesh M a chord dstenos df 3668 feed
aid a edddta cull ate to the left of tatd dwd of 170 fae6 baerfnp d mW card berg s 68.1240'W;
Ow m nm along ft M c(a dnIhr 100=4 herlrq fdr b deaneM a Chord dtst rim of 3735 feet
and a mdda adt„'sts to the Wt at sold dhmd,0 WS feat besrbg of said Word bang N V,38Z r W;
lfteloe 1181 elorlp the aft d P drnAer f�laenti wed fbrftdeamMa dtard dft bnm d 37.gg feet
and a midde cnft to to the 1*ad PM du rd of 3.75 feet kMfV of said dud bring N 22'3090'W,
the Narlherly ad of=51 dwd be6tg cm Om m ttafoe d 29tr Sleet.eamded FssMff,and 4430 fees
ON west of Ole cots of add drdder On=nm W&G the aft of a dmdw sanest,Wrg for Lh
demesnes a dead d1stwu of 37..02 feet end a ands cm*m a ba Me loft of std dtad,of 430 feet
bm"d old dod bdng N 26'40'20.6'P,Manctrun along the i m er a drnis for
As dune ts,a dtdrd d fo
df 34.74 foe and a middle admMe m the left or mid dead,d IOW reef,
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danetts,a dead dW=m or WS feed and a n*k%ardheta to on Idt d said lard,d 3.62&&,
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drd=tn tm ft fat ef said dhmd,d3SB hat Waft cFuWdmwdbehgS 194648.0'E E
I
Book28077/Page4230 CFN#20120275390 Page 10 of 12 '
Exhibit "B"
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, APPROVING A
SETTLEMENT AGREEMENT BETWEEN SEVILLE
ACQUISITION, LLC, AND THE CITY OF MIAMI BEACH,
CONCERNING THE PARTIAL DEMOLITION OF THE
BOARDWALK AND THE CONSTRUCTION OF A BEACHWALK
BEHIND THE MARRIOTT EDITION HOTEL AT 29TH STREET
AND COLLINS AVENUE, AND AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE THE SETTLEMENT AGREEMENT,
AND AUTHORIZING THE CITY MANAGER AND CITY
ATTORNEY TO TAKE SUCH ACTIONS AS MAY BE
NECESSARY TO CARRY OUT TFiE INTENT HEREOF.
WHEREAS, replacement of the wooden boardwalk and construction of an
at-grade paver beachwalk east of the Erosion Control Line on the State-owned
beach west of the dune has been a policy of the City for at least the last decade,
an adopted policy of the City's Comprehensive Plan, and of the Atlantic
Greenway Network, and a goal of the Administration and City Land Use Boards
as part of their review of abutting projects; and
WHEREAS, the policy has been predicated upon the notion that the
wooden boardwalk has a limited life span, and that while the State would allow
repairs, it would not allow expansion or replacement, and given the opportunities
provided by private development abutting the boardwalk for its replacement, the
City pursued private participation in the replacement effort; and
WHEREAS, the design and degradation of the boardwalk contributed to
personal injuries to users, and undesirable use by criminals, the homeless and
feral cats; and
WHEREAS, the Seville has proffered the construction of the at-grade
paver beachwalk between 29th and 30th Streets as part of its reconstruction,
renovation and restoration of the historic Seville Hotel at 29th Street and Collins
Avenue; and
WHEREAS, the City has approved such construction through Planning
Board, Historic Preservation Board, and Board of Adjustment orders; and
WHEREAS, the Seville has adopted a construction phasing plan that
requires access through the site where the boardwalk is presently located, and
therefore is concerned about the timing of its commencement of the demolition of
the boardwalk; and
WHEREAS, the City Commission has expressed concerns about the
demolition of the boardwalk, following numerous citizen complaints; and
WHEREAS, the City Commission has requested clarification of the State
policy regarding repair, expansion and replacement of the boardwalk, though
such clarification has resulted in a delay of issuance of approvals to commence
demolition to the Seville; and
WHEREAS, the Seville has also been requested to submit additional
material to supplement its plans for demolition and construction, including an
ADA compliant'means of travel ("MOT") to ensure public access between the
boardwalk north and south of the demolition and construction areas, and such
MOT is still in discussion between the Seville and City staff and has either not as
yet been submitted, or if submitted, is under review or has just been approved;
and
WHEREAS, the parties have been drafting and negotiating a Settlement
Agreement to permit the Seville to proceed with the demolition of the boardwalk
to accomplish its phasing plan, but to allow time to investigate alternatives for
construction of the beachwalk to be pursued so that solutions to the concerns
and complaints discussed above can be explored, and have presented that
Settlement Agreement to the City Commission for consideration; and
WHEREAS, this settlement, without admitting liability, allows the parties to
protect their respective interests and concerns while moving forward based on
the expectations and needs of all persons and entities concerned; 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 the Settlement Agreement,
subject to such further minor modifications as may be necessary for the best
interests of the City that are 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 Seville
Acquisition, LLC, 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 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.
2
PASSED and ADOPTED this day of , 2013.
ATTEST:
MAYOR
CITY CLERK
APPROVED AS TO
FORM AND LANGUAGE
& FOR EXECUTION
City Attorney Date
T:\AGENDA\2013\June aSeville Settlement Agreement reso.docx
3
_ E hobi t X «C„
IN THE CIRCUIT COURT OF THE
11 TH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DARE COUNTY, FLORIDA-
CIRCUIT CIVIL DIVISION
CASE NO. 13-17539 CA 31
SEVILLE ACQUISITION, LLC,
a Delaware limited liability company,
Plaintiff,
vs.
CITY OF MIAMI BEACH, a Florida
municipal corporation,
Defendant.
NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE
OF SEVILLE ACQUISITION,LLC'S
EMERGENCY COMPLAINT FOR WRIT OF MANDAMUS
Plaintiff Seville Acquisition, LLC, by and through undersigned counsel and
pursuant to Rule 1.420 of the Florida Rules of Civil Procedure, hereby files this Notice of
Voluntary Dismissal Without Prejudice, voluntarily dismissing its Emergency Complaint
ShubinBass
for Writ of Mandamus in the above-styled action without prejudice. Each party shall
bear their own attorneys' fees and costs.
Respectfully Submitted,
SHUBIN&BASS, P.A.
46 S.W. First Street
Third Floor
Miami, Florida 33130
Tel.: (305) 381-6060
Fax: (305) 381-9457
j shubin(a-),shubinbass.com
dfalce(-),shubinbass.com
eservice_,shubinbass.com
By:
John K. Shubin
Fla. Bar No. 771899
Deana D. Falce
Fla. Bar No. 84154
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this _ day of 2013, a true and correct
copy of the foregoing was served via electronic mail to:
Jose Smith, Esq.
Gary M. Held, Esq.
City of Miami Beach
Office of the City Attorney
1700 Convention Center Drive
Fourth Floor
Miami Beach, Florida 33139
Tel.: (305) 673-7470
i osesmith(a,miamibeachfl.gov
gar h (a,miamibeachfl.gov
Attorney
2
ShubinBass
MIAMIBEACH
COMMISSION MEMORANDUM
TO: Mayor Mattie Herrera Bower and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
Jose Smith, City Attorney
DATE: June 5, 2013
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING THE SETTLEMENT AGREEMENT BETWEEN
SEVILLE ACQUISITION, LLC, AND THE CITY OF MIAMI BEACH, CONCERNING THE
PARTIAL DEMOLITION OF THE BOARDWALK AND THE CONSTRUCTION OF THE
BEACHWALK BEHIND THE MARRIOTT EDITION HOTEL AT 29TH STREET AND
COLLINS AVENUE, AND AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE THE SETTLEMENT AGREEMENT, 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 Manager and City Attorney recommend the adoption of the resolution approving the
settlement agreement.
BACKGROUND
During the Dr. Stanley Sutnick Citizen's Forum, at the February 6, 2013 Commission meeting, a
motion was made and approved by acclamation giving the Administration direction that future
segments of the beachwalk should be elevated in order to have an ocean view. Following this
motion the City Commission referred discussion of boardwalk matters to the Land Use and
Development Committee.
Additionally, on October 9, 2012, the Historic Preservation Board passed a resolution encouraging
the Commission to consider the retention of the elevated wooden boardwalk and for the City to
engage the State in exploring the possibility of developing a process to allow the approval of the
elevated boardwalk structures.
At the April 23, 2013, Land Use and Development Committee meeting, a. discussion of the
Boardwalk issue was held. A motion was adopted indicating that there was a consensus reached
on keeping the existing, raised boardwalk, and that priority is to be given to completing the
beachwalk link between 46thand 64th Streets, and then study the potential of adding a bike path at
grade, adjacent to the existing raised boardwalk. The Administration was directed to evaluate
existing projects that contemplate the removal of portions of the boardwalk, and report back to the
LUDC on progress.
At the May 8th Commission meeting, during the Dr. Stanley Sutnick Citizen's Forum,
representatives from the Seville Marriott project at 291h Street and Collins Avenue appeared and
spoke to the Commission about their impending development and the difficulty of changing course
with the treatment of the rear of their property if they were required to retain the Boardwalk after
Agenda Item W-7 D
Date 6-S-l3
Memo to Commission—Resolution Adopting Settlement Agreement- Seville v. CMB
June 5, 2013
Page 2 of 5
designing their project to interface with a grade level beachwalk. The City Commission set a
special meeting for May 20, 2013 to discuss the matter further.
HISTORY
The wooden boardwalk was built in the mid-1980's and extended from the south end of Collins
Park at 21s' Street to the north end of Indian Beach Park at 47th Street. The boardwalk is an
elevated wooden structure that lies on state lands but is owned and maintained by the City. The
boardwalk is 12 feet wide and is dedicated solely to pedestrian use and for safety does not allow
for use by bicyclists.
The City of Miami Beach is developing a series of bicycle/pedestrian/greenway projects called the
Atlantic Greenway Network (AGN). The AGN will consist of two main trail systems: the beachwalk,
which extends in a north/south direction between the erosion control line and the dune system, and
the neighborhood trails, which extends in all directions through the south, middle, and north beach
neighborhoods. The existing boardwalk is not part of the AGN because its current width does not
allow for safe bicycle and pedestrian joint use. However, the beachwalk projects consist of on-
grade, ADA accessible pathways that support bicycle use and other recreational activities that are
in line with the goals of the AGN.
Past& Current Projects
In 2009, during the development of the W-Hotel, the boardwalk fronting this property was removed
and replaced with pavers from 21 st Street to 23d Street. The developer designed, constructed, and
partially funded 885 feet of beachwalk east of the W-Hotel and Collins Park and on the 22nd Street-
end. The total project cost was $1,107,225. The developer's construction cost was $582,225 plus
another $275,000 in Right-of-Way fees that the City applied to the project. The City contributed the
remaining $250,000 toward the project.
In October 2012, the City began the removal of the existing elevated boardwalk and replacement
with approximately 950 feet of an on-grade paver pathway from the south property line of the Eden
Roc Hotel (approximately 45th Street) to the north terminus of the wooden boardwalk at
approximately 47th Street. Construction is anticipated to be complete June 2013. Eden Roc
funded the permitting and design of the beachwalk. The total construction cost for this project is
$1,063,550, which is funded through $704,000 from a Florida Department of Transportation grant
and $359,550 from the City.
Committed Private Development Projects
The Planning Department, as part of the development review process, has accepted voluntary
proffers from a number of upland properties that are adjacent to the boardwalk for them to assist in
the development of segments of a public beachwalk. The Fontainebleau, Ocean Grand Hotel,
Versailles Project, Saxony Project, Seville Project, and the Perry Hotel have all committed or are in
negotiations with the City to construct or fund the construction of a beachwalk for the public benefit.
On May 20, 2013 the City Commission voted to allow the Perry Hotel to remove the boardwalk
behind that property (23`d — 24th Street). The Saxony Hotel Project is currently under construction
and we have reached out to their representatives.
Comprehensive Plan
The 2025 Miami Beach Comprehensive Plan was adopted by the City Commission on April 13,
2011 and became effective July 1, 2011. Pursuant to the policy adopted by the City Commission
as part of the 2025 Miami Beach Comprehensive Plan, the Administration has continued to
implement the beachwalk and baywalk projects in order to further the City's vision of a continuous
on-grade recreational path running north/south along the coast linking the City's South, Middle, and
Memo to Commission—Resolution Adopting Settlement Agreement- Seville v. CMB
June 5, 2013
Page 3 of 5
North Beach Neighborhoods. As recently as December 2012, for example the City Commission
approved a deal with the developer of the Saxony Hotel site to replace the Boardwalk from 32nd
I
Street to 36"' Street.
Beachfront Management Plan &Atlantic Greenway Network
The City's Beachfront Management Plan with the State of Florida also lists the development of the
AGN as a management activity that enhances the natural resource value and/or public recreation
value for which the lands were acquired. The Beachfront Management Plan states that the AGN
serves to help conserve the dune ecosystem and provide significant economic and social benefit
by creating a continuous coastal network for alternative transportation and community
enhancement.
This vision was also documented in the City's Atlantic Greenway Network Master Plan adopted by
City Commission on October 17, 2007. As such, it has been the City's policy that as oceanfront
properties redevelop the Planning Department, as part of the development approval process,
negotiates with private property owners to remove the elevated structure where one exists and to
construct an on-grade beachwalk that can safely accommodate bicyclists and pedestrians.
Reversing this policy would mean the City would incur the full costs of the Beachwalk at some
future date if the Boardwalk were destroyed by storm or decay.
The City has already made a substantial investment in the development of the AGN. Florida
Department of Transportation (FDOT) funds are available for alternative transportation facilities
that improve mobility. To date, the City has obtained more than $6,000,000 in funding from FDOT
to design and construct the coastal portion of the AGN. These funds are contingent upon
establishing an alternative transportation corridor that is accessible by non-motorized vehicles
(bikes, skate boards, roller blades, etc) as well as pedestrians.
Other Considerations
Although statements have been made that the State required removal of the Boardwalk, the reality
is that there were a series of policy considerations that informed the City's policy. First, residents
had expressed security concerns. Individuals often loiter beneath the elevated boardwalk.
Homeless encampments can often go undetected for long periods of time. Secondly, there were
health issues. Large number of feral cats living under the boardwalk can lead to unsanitary
conditions that cause a public health concern. Third, there were safety issues with a degrading
wooden Boardwalk. Loose planks have lead to injuries and liability for the City. Fourth, the wooden
boardwalk does not provide connectivity for bicycles. Finally, the cost of repairing and maintaining
the wooden boardwalk far exceeds such costs for the beachwalk.
Permitting Requirements
All construction that occurs east of the Coastal Construction Control Line (CCCL) requires a
permit from the Florida Department of Environmental Protection (FDEP). The CCCL Permitting
Program goal is to protect the coastal system from improperly sited and designed structures which
can destabilize or destroy the beach and dune system. These standards may be more stringent
than those already applied in the rest of the coastal building zone because of the greater forces
expected to occur in the more seaward zone of the beach during a storm event.
During the CCCL permit application process, FDEP reviews a project's construction plans to
determine if the proposed design is a major or minor structure. No major structures can be
constructed east of the Erosion Control Line (ECL). In addition, during the permitting process
FDEP will request that the footprint of any structure (beachwalk or boardwalk) be within a given set
back from the ECL. Until plans are presented to FDEP they will not make a formal determination if
Memo to Commission—Resolution Adopting Settlement Agreement- Seville v. CMB
June 5, 2013
Page 4 of 5
a structure is considered major or minor. The City has not presented FDEP with a plan to permit
any new boardwalk structures, thus at this time we do not have precedent on if a new or larger
boardwalk structure could be permitted. DEP has informally indicated however, that any widening
of the Boardwalk could not push eastward. Clearly, there are serious physical restrictions on any
widening.
Potential Options
On February 6, 2012, Commission directed Administration that future segments of the beachwalk
should be elevated in order to have an ocean view. On May 20, 2013 the City Commission held a
Special Meeting to discuss the Boardwalk/Beachwalk issue. At the meeting Staff identified four
potential alternatives for the boardwalk, including the option ultimately approved by Commission to
apply to DEP for construction of a raised beachwalk.
Note that the general figure that has been quoted for removal of the boardwalk and construction of
the at-grade beachwalk is approximately$1,000 per linear foot of beachwalk.
A group of residents that support the Boardwalk have come forward and suggested that the portion
of the Boardwalk behind the Seville be replaced by an at grade wooden walk. Several issues are
posed by this approach. It does not address the lack of view objections that were raised.
Significant maintenance and replacement costs will result from at grade wood in a Beach
environment. Warping and separation of the wood can also create ADA compliance issues as well
as challenge bikers and strollers. Use of a high grade composite wood will not be as soft a
substance for walkers.
PLANNING ANALYSIS
As mentioned above, several development projects have been approved with requirements for
removal of portions of the existing boardwalk and its replacement with an at-grade beachwalk. The
pending status of these projects is given below.
2301 Collins Avenue, Perry/One Hotel Imminent Permit approval pending City
2901 Collins Avenue, Seville/Edition Hotel Imminent Permit approval pending City
3301 Collins Avenue, Saxony Hotel Imminent Permit approval pending City
3425 Collins Avenue, Versailles Hotel Imminent Permit approval pending City
3651 Collins Avenue, Ocean Grande Monetary amount to beachwalk only.
4101 Collins Avenue, Crown Not started; may be modified.
4441 Collins Avenue, Fontainebleau Hotel Boardwalk exists, not yet permitted for demo.
4585 Collins Avenue, Eden Roc Hotel Boardwalk demo'd; beachwalk being installed
As was presented at the May 20, 2013 meeting, staff believes we need to take a holistic approach
to this issue, not piecemeal. Towards that end, we reiterate the proposal presented last time:
From 24th Street (starting just north of the Gansevoort/Perry, at Riviera Tower Condo)to 29th Street
(just south of the Seville, ending at the Triton Towers Condo) the City could keep the wooden
boardwalk if desired, and still maintain connectivity, as there is roadway, Miami Beach Drive, which
is parallel and contiguous to this section of Boardwalk. Bicycle traffic (Atlantic Greenway Network)
could be fairly easily routed from the end of the paved beachwalk at 24th Street over to Miami
Beach Drive. The wooden boardwalk can be retained between 24th and 29th- This area is
overwhelmingly Condo apartments, and the City would be able to accommodate some of the
residents in this area that like the wooden Boardwalk. It would be a five block stretch of
undisturbed elevated wooden boardwalk that they can walk on, see the ocean, etc.
Memo to Commission—Resolution Adopting Settlement Agreement-Seville v. CMB
June 5, 2013
Page 5 of 5
For those projects from 29th Street (Seville) north to 36th Street (the Versailles project), it must be
noted that staff is greatly concerned about the legal situation the City may find itself in if the
policies governing the Beachwalk project are suddenly reversed. The Seville, Saxony and
Versailles projects are all pending approval for their projects in the very near future, and will be
delayed significantly if plans need to be revised to reverse policy and scrap the installation of a
beachwalk and the retention of the boardwalk. Staff recommends allowing the beachwalk to
proceed in this stretch, in order to avoid the prospect of litigation with these pending projects, and
with the knowledge that this area is primarily hotels and not residential apartments.
North of 36th Street, the Ocean Grande project has proffered a monetary contribution to the
Beachwalk project, but no construction is required. Farther north, the Fontainebleau has also
proffered a monetary contribution, but no action on this proffer is imminent. In contrast, the Eden
Roc has already commenced the demolition of the Boardwalk behind their property and the parking
lot to the north. The proposal, therefore, would be to retain the Boardwalk from 36`h Street to 47
Street for the foreseeable future.
This plan may require additional modifications; however, Planning Department staff believes that it
represents a fair compromise. It would permit the group of residents between 24th and 29th to
have their existing wooden boardwalk remain, it would maintain the bicycle connectivity required to
implement the City's long term mobility vision, it would permit the hotel projects to move forward
without requiring major redesigns or sparking litigation, it keeps at least fairly large segments of
each facility without piecemealing it too much, and it would permit us the time to design a more
raised beachwalk that could accommodate walking and biking with a view of the ocean, if possible.
THE SETTLEMENT AGREEMENT
The Agreement between the Seville and the City allows the Seville to proceed to partially demolish
the boardwalk, between 29th and 30th Streets, based upon their need to continue construction in
the rear of their property, as contemplated by their phasing plan. As a precondition of the permit,
they have agreed to provide an ADA compliant MOT from the time of demolition until the
beachwalk construction is completed rejoining the north-south boardwalk-beachwalk connection.
The Seville has agreed to address the issues of concern raised to the City Commission by users of
the boardwalk, namely to maintain a view to the ocean, and to attempt to provide a more user
friendly surface, by submitting amended applications to the Florida Department of Environmental
Protection ("DEP"). The applications would seek to raise the elevation of this segment of the
beachwalk approximately one to two feet, to provide a view to the ocean, and to have the DEP
consider alternate surfaces for the beachwalk, including wood and a jogger friendly surface. The
Seville proposes that it pursue the alternate permitting until December 1, 2013, and accounting for
a one week grace period for imminent action by the DEP, after which it would be allowed to
construct the beachwalk according to its present proposed plans.
CONCLUSION
The City Manager and City Attorney recommend the adoption of the resolution approving
the settlement agreement.
JLM/JS/kMH/RGL
T:WGENDA\2013\June 5\Seville settlement agreement memo 6-5-13.docx
® MIAMBEACH
COMMISSION MEMORANDUM
TO: Mayor Mattie Herrera er and M . bers of the City Commission
FROM: Jose Smith, City orney tl
CC: Jimmy L. Moral Ci y ana e
DATE: June 3, 2013
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING THE SETTLEMENT AGREEMENT BETWEEN
SEVILLE ACQUISITION, LLC, AND THE CITY OF MIAMI BEACH, CONCERNING THE
PARTIAL DEMOLITION OF THE BOARDWALK AND THE CONSTRUCTION OF THE
BEACHWALK BEHIND THE MARRIOTT EDITION HOTEL AT 29TH STREET AND
COLLINS AVENUE, AND AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE THE SETTLEMENT AGREEMENT, AND AUTHORIZING THE CITY
MANAGER AND CITY ATTORNEY TO TAKE SUCH ACTIONS AS MAY BE
NECESSARY TO CARRY OUT THE INTENT HEREOF.
Attached please find the proposed draft Settlement Agreement to accompany the subject
item in Wednesday's City Commission agenda. The Settlement Agreement provides in
part:
1. For the issuance of permits now for demolition of the boardwalk so as not to delay
Seville's construction of its hotel project, but delays construction of the beachwalk
until December 1, 2013, to give time to pursue Florida Department of Environmental
Protection (FDEP) approval of increased elevation and alternative jogger-friendly
surfaces for the beachwalk (the "Elevated Site Plan").
2. Seville's contractor must certify that construction can be completed by March 31,
2014, or the parties must discuss alternatives to the design.
3. The City agrees to pay the increased costs of permitting and construction to
accommodate the Elevated Site Plan.
4. If the Elevated Site Plan contains design changes that materially affect the Marriott
Edition Hotel project, as defined in the agreement, and the parties do not resolve
these differences, then the Seville can construct the beachwalk according to the
original plan.
5. If disagreements arise from the Settlement Agreement the parties agree to use
mediation, but this cannot extend the agreed timetable.
Please contact me if you need to discuss this further. An attorney-client session during the
Wednesday City Commission meeting has been scheduled to discuss the matter further.
JS/GMH/s
Attachment
F:1ATTMHELG\LITIGATIOMSeville-boardwalk\Memo to Commn re settlement agreement 6-3-13.docx
Agenda Item R7
Date 6-S 13
DRAFT 6.3.2013 — vers. 3
DISCLAIMER
(TO BE DELETED UPONADOPTION
BY CITY COMMISSION)
THIS DRAFT SETTLEMENT AGREEMENT ("DRAFT")
BETWEEN THE CITY OF MIAMI BEACH ("CITY") AND
SEVILLE ACQUISITION, LLC ("SEVILLE") HAS BEEN
PREPARED FOR PURPOSES OF NEGOTIATING AND
COMPLETING A GLOBAL SETTLEMENT TRANSACTION.
THE DRAFT PROVISIONS ARE INTENDED TO BE A PART OF A
DISCUSSION OF OUTSTANDING ISSUES BETWEEN THE CITY
AND SEVILLE. THE INDIVIDUAL PROVISIONS ARE INTENDED
TO BE READ AND UNDERSTOOD AS "IN PART MATERIA" WITH
EACH AND EVERY OTHER PROVISION OF THE DRAFT.
NO INDIVIDUAL PROVISION IS INTENDED TO REPRESENT A
PROPOSED TERM, FINDING, OR CONDITION OF AN
AGREEMENT, EXCEPT IN THE CONTEXT OF EACH AND
EVERY OTHER PROVISION IN THE DRAFT, AND ONLY IF
INCLUDED IN A WRITTEN AGREEMENT EXECUTED BY BOTH
PARTIES.
MOREOVER, THE DRAFT PROVISIONS HAVE BEEN
PREPARED BY SHUBIN & BASS, P.A., AND DO NOT REPRESENT
OFFICIAL OR UNOFFICIAL POSITIONS OF SEVILLE, OR THE
CITY, ON ANY PARTICULAR SUBJECT UNTIL A FINAL
AGREEMENT IS EXECUTED.
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DRAFT 6.3.2013 — vers. 3
SETTLEMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this day of , 2013,
by and between the CITY OF MIAMI BEACH, a Florida municipal corporation
("City") and SEVILLE ACQUISITION, LLC, a Delaware limited liability company
("Seville") (collectively, the "Parties").
RECITALS
WHEREAS, the City is a municipal corporation organized and existing under the
laws of the State of Florida with all powers granted to it by its Charter, the Florida
Constitution, and general law;
WHEREAS, Seville is a Delaware limited liability company that is authorized to
conduct business in Florida and is the owner of real property more particularly described
in Exhibit "A" and approximately located at 2901 Collins Avenue in Miami Beach,
Florida (the "Property");
WHEREAS, Seville has pursued the redevelopment of the Property since 2010,
beginning construction in September 2011 (the "Seville Redevelopment");
WHEREAS, Seville obtained all of the required development approvals from the
City in 2011 for the Seville Redevelopment, which development approvals specifically
contemplated and conditioned approval of the Seville Redevelopment on the demolition
of the existing boardwalk and the construction of a new beach walk (at Seville's sole cost
and expense) per the City's request and pursuant to Policy 5.1 of the Recreation and
Open Space Element of the City's 2025 Comprehensive Plan;
WHEREAS, to sequence the remaining construction of the Seville
Redevelopment, to minimize delays, and to complete the Seville Redevelopment pursuant
to the City-approved design, Seville has requested a permit on or before June 1, 2013 for
the demolition of the existing boardwalk located between the Property and the beach and
the construction of a new paved beach walk (the "Beach Walk Permit");
WHEREAS, Seville submitted its application for the Beach Walk Permit on
November 7, 2012, however, in April 2013, on May 6, 2013, on May 9, 2013, and again
on May 20, 2013 the City advised Seville that it had temporarily suspended all beach
walk permitting while it reevaluated its beach walk policy and, as such, it could not yet
issue the Beach Walk Permit to Seville;
WHEREAS, a dispute has arisen between the City and.Seville with respect to the
Beach Walk Permit, and as a result of that dispute, and to avoid damage and delay in
construction, Seville filed that certain lawsuit styled as Seville Acquisition, LLC v. City
2
DRAFT 6.3.2013 — vers. 3
of Miami Beach, Miami-Dade County Circuit Court Case No. 13-17539-CA-31 (the
"Lawsuit"), seeking a writ mandating the City to immediately issue the Beach Walk
Permit;
WHEREAS, both Seville and the City wish to fully, completely, and amicably
settle and resolve all potential claims between them with respect to the Beach Walk
Permit—with neither admitting liability or waiving a defense or claim —without incurring
the needless costs and expense of litigation and/or administrative claims and proceedings;
WHEREAS, both Seville and the City represent and warrant that they have the
authority necessary to enter into this Agreement and do so in accordance with all
necessary procedures; and
WHEREAS, both Seville and the City prefer to avoid the uncertainties and
expense of the Lawsuit and instead desire to set forth in this Agreement, without
establishing precedent, the terms and conditions of the settlement of the Lawsuit, in
exchange for the consideration described herein.
NOW THEREFORE, in consideration of the mutual covenants entered into
between Seville and the City, and in consideration of the benefits to accrue to each, the
receipt and sufficiency of which is hereby acknowledged, it is agreed as follows:
AGREEMENT
1. Recitals. The above recitals are true and correct and are incorporated
herein. All Exhibits to this Agreement are hereby deemed a part hereof.
2. Statement of Intent. It is the intent of Seville and the City that this
Agreement shall resolve all disputes regarding the issuance of the Beach Walk Permit.
3. No Admission of Liability. The City and Seville acknowledge that they
are entering into this Agreement to promote remedial measures between the two entities
which have shared an otherwise professional and productive working relationship and to
avoid the cost and other consequences to the Parties of the Lawsuit, and for the other
considerations herein set forth. In making this Agreement, neither the City nor Seville
admit liability, negligence, or responsibility in any matter related to or arising from the
Beach Walk Permit dispute at issue in the Lawsuit.
4. Effective Date. This Agreement shall become effective only when all of
the following have occurred: (i) it is signed by the authorized agent of each Party; and (ii)
it is approved by the City in accordance with applicable law and the City adopts the
Resolution in the form substantially attached as Exhibit "B" (collectively, the "Effective
Date").
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DRAFT 6.3.2013 — vers. 3
5. Dismissal of Lawsuit. On the first business day after the issuance of the
Beach Walk Permit pursuant to Section 6 of this Agreement, Seville shall file a Notice of
Voluntary Dismissal Without Prejudice of the Lawsuit, in the form substantially attached
as Exhibit "C."
6. Beach Walk Permit and Demolition. On the first business day following
the Effective Date, the City shall issue the Beach Walk Permit authorizing: (i) the
demolition of the existing boardwalk; and (ii) the construction of the new at-grade paved
beach walk, per Seville's November 7, 2012 application, provided that construction of a
new at-grade paved beach walk will not begin before December 1, 2013 (the
"Construction Commencement Date").
7. MOT Plan. Seville agrees to work with the City, using its reasonable
efforts, to amend its means of travel plan (the "MOT Plan"), which provides an alternate
route for boardwalk pedestrians to use during and after the demolition of the existing
boardwalk, and before the construction of the new beach walk is complete, to be ADA
compliant.
8. Elevated Site Plan.
A. The City shall have the right (and Seville shall reasonably
cooperate with the City's efforts at no additional cost to Seville) to work
with the State of Florida Department of Environmental Protection ("DEP")
to develop alternative site plans for the proposed beach walk to be elevated
approximately one (1) to two (2) feet in certain portions to allow views of
the ocean so long as the elevation of the beach walk does not materially
impact any other aspect of the Seville Redevelopment (the "Elevated Site
Plan"). Impact on the access and egress points to and from the Property,
the addition of guard rails/railings on or along the beachwalk necessitated
by the elevation of the beach walk, overburdening the Property with run-off
due to the grading for the Elevated Site Plan, a delay in completing the
Seville Redevelopment (including if the completion date for the
improvements contemplated by the Elevated Site Plan is estimated to be
after March 31, 2014), and impact on the safety or security of the Property
shall all be deemed to materially impact the Seville Redevelopment.
B. If the City obtains all necessary permits and approvals from
DEP, the City, and any other agency with jurisdiction over the Elevated
Site Plan for the construction of the Elevated Site Plan by the Construction
Commencement Date, the City shall issue a permit for the construction of
the Elevated Site Plan on or before the Construction Commencement Date
and Seville agrees to construct the Elevated Site Plan so long as the costs
4
DRAFT 6.3.2013 — vers. 3
associated with the Elevated Site Plan do not exceed the cost of the at-grade
paved beach walk authorized by the Beach Walk Permit (issued pursuant to
Section 6 of this Agreement) or the City has provided the funds for the
additional costs.
C. If the City does not obtain all of the necessary permits and
approvals from DEP, the City, and any other agency with jurisdiction over
the Elevated Site Plan for the construction of the Elevated Site Plan, or has
not provided the funds for the additional costs as described in Section 8(B)
by the Construction Commencement Date, Seville shall have the right to
commence construction of the at-grade paved beach walk authorized by the
Beach Walk Permit (issued pursuant to Section 6 of this Agreement).
D. The costs associated with the construction of the Elevated
Site Plan shall be mutually agreed upon by the Parties. The Parties agree to
explore reasonable alternatives in order to mutually agree upon these costs.
If the City funds such additional costs, such work shall be performed by
Seville's general contractor or its subcontractors as per the agreed upon
plan. If the Parties, acting in good faith, are unable to mutually agree upon
these costs by the Construction Commencement Date Seville shall have the
right to commence construction of the at-grade paved beach walk
authorized by the Beach Walk Permit (issued pursuant to ,Section 6 of this
Agreement).
E. If Seville's general contractor determines that the completion
date for the improvements contemplated by the Elevated Site Plan is
estimated to be after March 31, 2014, the Parties agree to explore
reasonable alternatives before the Construction Commencement Date to
complete such improvements by March 31, 2014 (subject to the materiality
standard in Section 8(A) of this Agreement).
F. If the City and Seville agree that a final permit from DEP, the
City, and any other agency with jurisdiction over the Elevated Site Plan, is
imminent, a one-time extension of the Construction Commencement Date
of no more than seven (7) days will not be unreasonably withheld by either
Party.
9. Beach Walk Surface.
A. Seville shall work with the City and DEP to explore and for
the City to obtain approval from DEP (to the extent reasonably possible) of
an alternative surface and/or coating for the beach walk which provides a
5
DRAFT 6.3.2013 — vers. 3
"jogging-friendly" surface that mitigates the impact on an average jogger's
body (i.e., their joints) while jogging on the beach walk.
B. Seville shall have the right to construct the beach walk with
the previously approved surface and shall be released from its obligations
to explore and seek approval for the alternative surface if. (i) Seville and
the City do not obtain approval for an alternative "jogging-friendly" surface
by the Construction Commencement Date; and (ii) Seville's costs to design,
obtain, install and maintain the alternative surface or coating exceeds such
costs for the previously approved beach walk surface and the City has not
provided the funds for these additional costs.
10. Default.
A. The occurrence of any of the following shall constitute an
event of default ("Event of Default") under this Agreement:
(i) The City's failure to issue the Beach Walk
Permit pursuant to Section 6 of this Agreement ("Default A");
(ii) The City's imposition of any material condition
to the Beach Walk Permit that materially frustrates the ability
to develop the Property as contemplated herein, or delays or
increases the costs of the Seville Redevelopment ("Default
B"
(iii) The City's revocation of the Beach Walk Permit
or any other similar action which impedes the ability to
perform the work approved by the Beach Walk Permit or
otherwise contemplated herein ("Default C");
(iv) A third-party challenge regarding the issuance
of the Beach Walk Permit pursuant to Section 6 of this
Agreement which impedes the ability to perform the work
approved by the Beach Walk Permit. For purposes of this
section, a "challenge" shall be broadly construed to include
any administrative, judicial, quasi-judicial, legislative, or
other like petitioning activity directed at any aspect of the
City's issuance of the Beach Walk Permit ("Default D").
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DRAFT 6.3.2013 — vers. 3
B. If and when Seville determines pursuant to the terms of this
Agreement that an Event of Default has occurred, Seville possesses the
following remedies:
(i) If and when Seville determines that Default A,
B, or C has occurred, Seville may, at its sole and absolute
discretion, terminate this Agreement. Seville shall be entitled
to defend its right to the Beach Walk Permit.
(ii) If and when Seville determines that Default D
has occurred: (a) Seville may, at its sole and absolute
discretion, terminate its obligations pursuant to Sections 8 and
9 of this Agreement, without regard to the pendency of
litigation or any expenditure of money by the City for such;
(b) Seville shall be entitled to defend its right to the Beach
Walk Permit; and (c) the City shall actively and individually
defend the issuance of the Beach Walk Permit.
C. The remedies provided in Section 10(B) are cumulative and
not exclusive of any other rights or remedies that may be available to the
parties, whether provided by law, equity, statute, or otherwise.
D. In the event Seville exercises its right, pursuant to Section
10(B), to terminate its obligations under all or part of this Agreement, each
Party shall bear its own costs and attorneys' fees associated with that
termination, and shall be released from any liability associated therewith.
11. Construction. The language used in this Agreement will be deemed to be
the language chosen by all of the Parties to express their mutual intent, and no rule of
strict construction shall be applied against any Party. Any reference to any federal, state,
local or foreign statute or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise.
12. Expenses. Except as otherwise specified, each of the Parties will bear its
own costs and expenses (including legal fees and expenses) incurred in connection with
the negotiation and consummation of this Agreement and the transactions contemplated
hereby.
13. No Third Party Beneficiaries. Unless expressly stated herein to the
contrary, nothing in this Agreement, whether express or implied, is intended to confer
any rights or remedies under or by reason of this Agreement on any persons other than
the Parties hereto and their respective administrators, executors, other legal
7
DRAFT 6.3.2013 — vers. 3
representatives, heirs, successors, officers, directors, owners, and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligation or liability of
any third persons to any Party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any Party to this Agreement.
14. Joint Defense. In the event that a challenge is brought to the Beach Walk
Permit or this Agreement (both collectively, the "Approvals"), or a challenge is brought
to any necessary and implementing action required by the Approvals, the City and Seville
each agree individually to use their best efforts to actively defend any and all such
challenges. For purposes of this paragraph, a challenge shall be broadly construed to
include any administrative, judicial, quasi-judicial, legislative, or other action that
impedes the ability to promptly perform the work approved by the Beach Walk Permit. It
is expressly recognized that the duty to defend required by this paragraph shall survive
Seville's exercise of its termination rights pursuant to Section 10(B).
15. Relationship of the Parties. The Parties hereto acknowledge that they are
separate and independent entities and nothing herein shall be deemed to create a joint
venture, association, partnership, agency or employment relationship between the two.
Neither party shall have the power to act in the name of, on behalf of, or incur obligations
binding upon the other Party. Neither Party shall acquire an interest in the business or
operations of the other by virtue of this Agreement. Furthermore, neither Party endorses
or warrants the activities of the other or their business, business practices, projects,
products, services, or other activities.
16. Consideration. The City and Seville agree that the consideration to them
set forth herein constitutes adequate and ample consideration for the rights and claims
they are waiving under this Agreement, and for the obligations imposed upon them by
virtue of this Agreement.
17. Release and Waiver of Claims.
A. In exchange for the consideration described in this
Agreement, Seville, its agents, representatives, officers, directors,
employees, attorneys, affiliates, parents, subsidiaries, successors, and
assigns, irrevocably, knowingly, and voluntarily releases, waives, and
forever discharges any and all claims, demands, actions, or causes of action,
of any kind whatsoever, known or unknown, foreseen or unforeseen,
foreseeable or unforeseeable, and any consequences thereof, which it has or
may have against the City from the beginning of the world until the
Effective Date of this Agreement, in connection with the issuance of the
Beach Walk Permit as alleged or that could have been alleged in the
Lawsuit.
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DRAFT 6.3.2013 — vers. 3
B. In exchange for the consideration described in this
Agreement, the City irrevocably, knowingly, and voluntarily releases,
waives, and forever discharges any and all claims, demands, actions, or
causes of action, of any kind whatsoever, known or unknown, foreseen or
unforeseen, foreseeable or unforeseeable, and any consequences thereof,
which it has or may have against Seville, its agents, representatives,
officers, directors, employees, attorneys, affiliates, parents, subsidiaries,
successors, and assigns, from the beginning of the world until the Effective
Date of this Agreement, in connection with the issuance of the Beach Walk
Permit as alleged or that could have been alleged in the Lawsuit.
C. The mutual releases stated in sections 17(A) and 17(B) above
do not release the Parties from their obligations under this Agreement.
D. EACH PARTY ACKNOWLEDGES, AGREES, AND
UNDERSTANDS THAT THIS RELEASE IS A FULL AND FINAL
BAR TO ANY AND ALL CLAIMS IN CONNECTION WITH THE
ISSUANCE OF THE BEACH WALK PERMIT THAT THEY HAD,
HAVE, OR MAY IN THE FUTURE HAVE AGAINST EACH
OTHER THROUGH THE EFFECTIVE DATE OF THIS
AGREEMENT.
EACH PARTY HAS CONSULTED WITH AND HAS BEEN
ADVISED BY AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT.
18. Enforcement of Settlement Agreement. None of the Parties herein are
releasing their right to bring an action to enforce the terms of this Agreement. If any
legal action or other proceeding is brought for the enforcement of this Agreement or
because of any alleged dispute, breach, default or misrepresentation in connection with
any provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees, court costs and all expenses incurred in that action or
proceeding, even if not taxable as court costs (including, without limitation, such fees,
costs and expenses incident to appeals), in addition to any other relief to which such party
may be entitled.
19. Conflicts and Amendment of Prior Approvals. In the event of conflicts
between the terms of this Agreement, and/or a previously imposed condition of
development approval, the provisions of this Agreement shall control. With respect to
the design and construction of the beach walk addressed herein, the City's staff has
determined that the following approvals are consistent with the terms of this Agreement,
including without limitation, Sections 7, 8, and 9 herein: (A) June 14, 2011 Historic
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DRAFT 6.3.2013 — vers. 3
Preservation Board Order, File No. 7249; (B) June 28, 2011 Planning Board Order, File
No. 2013; (C) September 9, 2011 Board of Adjustment Order, File No. 3515; and (D)
September 13, 2011 Historic Preservation Board Order, File No. 7249.
20. Severability. If any provision of this Agreement may be construed in two
or more ways, one of which would render the provision invalid or otherwise voidable or
unenforceable and another of which would render the provision valid and enforceable,
such provision shall have the meaning which renders it valid and enforceable. If any
provision hereunder shall be held unenforceable by a court of competent jurisdiction,
then the remaining provisions of this Agreement shall continue in full force and effect
without being impaired in any way.
21. Survival. All covenants, agreements, representations and warranties made
herein or otherwise made in writing by any party pursuant hereto shall survive the
execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby.
22. Waivers. The failure or delay of any Parry at any time to require
performance by another Party of any provision of this Agreement shall not affect the right
of such Party to require performance of that provision or any other provision hereunder.
Any waiver by any Party of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach of such provision, a waiver
of the provision itself or a waiver of any other right or remedy under this Agreement.
Notice to or demand on any Party in any circumstance shall not, of itself, constitute any
other or further notice or demand in similar or other circumstances. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
23. Complete Agreement. This Agreement, and all the terms and provisions
contained herein, including without limitation the Exhibits hereto, constitute the full and
complete agreement between the Parties hereto to the Effective Date with respect to the
matters expressly set forth herein, and supersede and control over any and all prior
agreements, understandings, representations, correspondence and statements, whether
written or oral. Any provision of this Agreement shall be read and applied in pari
materia with all other provisions hereof.
24. Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed, other than by a writing signed by both Parties, making
specific reference to this Agreement.
25. Captions. The section headings and captions of this Agreement are for
convenience and reference only and in no way define, limit, or describe the scope or
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DRAFT 6.3.2013 — vers. 3
intent of this Agreement or any part thereof, or in any way affect this Agreement or
construe any article, section, subsection, paragraph or provision hereof.
26. Holidays. It is hereby agreed and declared that whenever a notice or
performance under the terms of this Agreement is to be made or given on a Saturday or
Sunday or on a legal holiday observed by the City, it shall be postponed to the next
following business day.
27. Public Purpose. The City and Seville acknowledge and agree that this
Agreement satisfies, fulfills, and is pursuant to and for a public and municipal purpose,
and is in the public interest, and is a proper exercise of the City's power and authority.
28. Notices. The Parties designate the following persons as representatives to
receive any notices with regard to this Agreement:
For the City: Jimmy L. Morales
City of Miami Beach, City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
With a copy to: Jose Smith, Esq.
City of Miami Beach, City Attorney
1700 Convention Center Drive, Fourth Floor
Miami Beach, Florida 33139
For Seville: Seville Acquisition, LLC
c/o Marriott International, Inc.
10400 Fernwood Road
Bethesda, Maryland 20817
Attn: Regina A. Nelson, Dept. 52/923
With a copy to: John K. Shubin, Esq.
Shubin & Bass, P.A.
46 S.W. First Street, Third Floor
Miami, Florida 33130
With a copy to: Michael Larkin, Esq.
Bercow, Radell & Fernandez, P.A.
Wachovia Financial Center
200 S. Biscayne Boulevard, Suite 850
Miami, Florida 33131
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DRAFT 6.3.2013 — vers. 3
29. Successors in Interest. The obligations and benefits of this Agreement
shall inure to all successors in interest to the Parties to this Agreement.
30. Further Assurances.
A. The Parties agree to execute and deliver from time to time
such documents, and to perform all actions which may be necessary to
effectively and completely carry out the intended effect of this Agreement,
including but not limited to, defending the Agreement from legal or
administrative challenges.
B. The City agrees, from the Effective Date of this Agreement,
that nothing contained herein or in the Lawsuit shall be the basis for future
downgrading or disadvantage of Seville as an applicant or petitioner of
government redress.
31. Exhibits. Each Exhibit referred to and attached to this Agreement is an
essential part of this Agreement. The Exhibits and any amendments or revisions thereto,
even if not physically attached hereto, shall be treated as if they are part of this
Agreement and incorporated herein.
32. Technical Amendments. In the event that due to minor inaccuracies
contained herein or any Exhibit attached hereto or any other agreement contemplated
hereby, or due to changes resulting from technical matters arising during the term of this
Agreement, the Parties agree that amendments to this Agreement required due to such
inaccuracies, unforeseen events or circumstances which do not change the substance of
the Agreement, or prejudice either Party, may be made and incorporated herein.
33. Execution. The execution, delivery, and performance of this Agreement
have been duly and validly authorized by all necessary corporate representatives of
Seville and all necessary officials of the City. This Agreement constitutes, and when
executed and delivered will constitute, a valid and binding obligation of the Parties
enforceable in accordance with the terms set forth herein. The Parties agree that this
Agreement may be executed in counterpart originals with the same force and affect as if
fully and simultaneously executed as a single original document. A facsimile or
electronic copy of this Agreement and any signatures thereon shall be considered for all
purposes as originals.
34. Florida Law. This Agreement shall be governed by, construed, and
enforced in accordance with, the laws of the State of Florida. Either of the Parties hereto
may enforce the terms of this Agreement in Miami-Dade County Circuit Court.
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DRAFT 6.3.2013 — vers. 3
35. Time is of the Essence. Time is of the essence for each and every
provision of this Agreement.
36. Preservation of Rights. The City and Seville further acknowledge and
agree that certain provisions of this Agreement will require the City and/or its boards,
departments or agencies, acting in their government capacities, to consider governmental
action as set forth herein. The City and Seville acknowledge and agree that all such
actions undertaken by the City shall be undertaken in strict accordance with established
requirements of the general laws of the State of Florida and City ordinances or
regulations. Nothing in this Agreement or in the City's and Seville's acts or omissions in
connection herewith shall be deemed in any manner to waive, limit, impair, or otherwise
affect the authority of the City in the discharge of its police power or governmental
power expressly including the land use and zoning power.
37. Mediation.
A. Notwithstanding anything to the contrary herein, no civil
action with respect to any dispute, disagreement, claim or controversy
arising out of or relating to any provision of this Agreement (the "Dispute")
may be commenced until the matter has been submitted to JAMS, or its
successor, for non-binding mediation (the "Mediation"). Either Party may
commence the Mediation by providing to JAMS and the other Party a
written request for the Mediation, setting forth the subject of the Dispute
and the relief requested immediately after the occurrence of the Dispute.
The particular mediator selected shall be subject to agreement between the
Parties. The Mediation shall occur within 10 days of the Dispute, unless
otherwise agreed by the Parties. The Parties agree to share equally in the
costs of the mediation. Either Party may seek equitable relief prior to the
Mediation to preserve the status quo pending the completion of the
Mediation.
B. The Mediation shall not extend the deadlines in Sections 6, 8,
and 9 of this Agreement as related to the Construction Commencement
Date. To illustrate the purpose of this section, if mediation is commenced
pursuant to this Section regarding any of the obligations contained in
Sections 6, 8, and/or 9, including without limitation, the Elevated Site Plan,
the permitting of the Elevated Site Plan, the costs associated with the
Elevated Site Plan, the estimated completion date for the improvements
contemplated by the Elevated Site plan, the alternate beach walk surface,
the permitting of the alternate beach walk surface, and/or the costs
associated with the alternate beach walk surface, and the Mediation has not
occurred or has not resolved the Dispute by the Construction
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DRAFT 6.3.2013 — vers. 3
Commencement Date, Seville shall retain its rights to proceed as provided
for in paragraphs 6, 8, and 9.
[Balance of Page Intentionally Left dank— Signature Page(s) to Follow]
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DRAFT 6°3°2013 — verse 3
IN WITNESS THEREOF, the Parties hereto have caused the execution of this
Agreement by their duly authorized officials as of the day and year first written above.
Signed, sealed and delivered in the presence o£
CITY OF MIAMI BEACH
By:
Matti Herrera Bower
Mayor
STATE OF FLORIDA )
) SS
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this day of ,
2013, by MATTI HERRERA BOWER, the MAYOR of the CITY OF MIAMI
BEACH, who is personally known to me, or who has produced
as identification.
Notary Seal
Notary Public, State of Florida
Print Name:
My Commission Expires:
ATTEST: APPROVED AS TO FORM AND
LANGUAGE & FOR EXECUTION
By: By:
Rafael E. Granado Jose Smith, Esq.
City Clerk City Attorney
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DRAFT 6.3.2013 — vers. 3
Witness: SEVILLE ACQUISITION, LLC
By: Courtyard Management Corporation,
its sole member
Print Name:
By:
Timothy J. Grisius
Vice President
STATE OF MARYLAND )
) SS
COUNTY OF MONTGOMERY )
The foregoing instrument was acknowledged before me this day of ,
2013, by TIMOTHY J. GRISIUS, the VICE PRESIDENT of COURTYARD
MANAGEMENT CORPORATION, the sole member of SEVILLE ACQUISITION,
LLC, a Maryland limited liability company, who is personally known to me, or who
has produced , as identification.
Notary Seal
Notary Public, State of Maryland
Print Name:
My Commission Expires:
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DRAFT 6.3.2013 — vers. 3
SCHEDULE OF EXHIBITS
Exhibit A: Property Legal Description
Exhibit B: Resolution Adopting Agreement
Exhibit C: Notice of Voluntary Dismissal Without Prejudice
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