Settlement and Release Agreement with CIBO Wine Bar Miami, LLC R9M
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SETTLEMENT AND RELEASE AGREEMENT BETWEEN
CIBO WINE BAR MIAMI,LLC AND THE CITY OF MIAMI BEACH, FLORIDA
This Sittlement and Release Agreement (the "S&R Agreement") is made and entered
into this /0 day of April, 2015, by and between CIBO Wine Bar Miami, LLC, a Florida
limited liability company (hereinafter, "CIBO"), and the CITY OF MIAMI BEACH, FLORIDA,
a Florida Municipal Corporation (hereinafter, the "City"). CIBO and the City may also be
referred to individually as a"Party," and collectively as the "Parties."
RECITALS
WHEREAS, on July 1, 2014, the City issued a "Notice of Conflict with City and State
Law pursuant to Section 8 of the Amended and Restated Ocean Parcel Development Agreement,
dated March 5, 1999" (hereinafter, the "Notice of Conflict") to South Beach'Ocean Parcel, Ltd,
(hereinafter "Developer") and CIBO, the Developer's tenant and operator of CIBO Restaurant
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(the "Restaurant"), located at 200 South Pointe Drive, Miami Beach, Florida; and
WHEREAS,the City provided Developer and CIBO with notice pursuant to Section 8 of
the Amended and Restated Ocean Parcel Development Agreement (the "Development
Agreement"), dated March 5, 1999, of a change in the law which may produce a conflict
between the Development Agreement and City Ordinances, as governed by Section 163.3233
Florida Statutes; and
WHEREAS,the City convened several meetings to negotiate in good faith to reasonably
attempt to modify the Development Agreement to address compliance with the change in law;
and
WHEREAS, the City understands, based on the underlying site plan and building
permits, that Developer is seeking to lease a commercial unit of the underlying project as
identified at Exhibit D to the Agreement; and
WHEREAS, the tenant CIBO proposes to operate the Restaurant, at 200 South Pointe
Drive, with an 176-seat outdoor rooftop café at that location, until 5:00 a.m.; and
WHEREAS, in 2009, the City enacted Ordinance No. 2009-3649, which limits outdoor
seating to 40 persons, and restricts the hours of outside operation of such facilities until 8:00
p.m.; and
WHEREAS, although the Development Agreement provides that the City's 1984 Zoning
Code (the "1984 Code") should apply to the development, Section 8 of the Development
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Agreement, in conjunction with Florida Statutes § 163.3233, delineates the criteria for applying
changes in the law to development agreements; and
WHEREAS, it has been the City's position that the Developer is to ensure that its tenant
CIBO, which seeks to operate the Restaurant's outdoor café until 5:00 a.m., complies with
Ordinance No. 2009-3649; and
WHEREAS, it is the City's position that the 1984 Code itself limits the sale of alcoholic
beverages at outdoor cafes to beer and wine, and to operate such a café, the applicant must apply
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for a Conditional Use Permit under Sections 7 and 29 of the Development Agreement; and
WHEREAS, neither Developer nor CIBO have agreed with the position of the City, or
applied for(or received) a Conditional Use Permit; and
WHEREAS, based upon the foregoing, CIBO entered into a letter proposal for
settlement, attached hereto as Exhibit A, that requires the Parties to execute a formal settlement
agreement, and which this document is the memorialization of all the terms and conditions of the
Parties; and
WHEREAS, the Parties desire to settle claims, disputes, past, present, or future
regarding the Development Agreement and the issued Notice of Conflict, regardless of
responsibility; and
WHEREAS,the six (6)neighboring condominium and homeowner's associations voiced
their concerns over various matters relating to the Development Agreement and have advised the
City and CIBO of certain concerns: Continuum on South Beach Master Association, Inc.;
Continuum South Beach The North Tower Association, Inc.; Continuum on South Beach
Condominium, The South Tower Association, Inc.; South Pointe Towers I Condominium
Association Inc.; Portofino Towers Condominium Association, Inc.; and South Pointe Portofino
Tower Master Association, Inc. (hereinafter, "Six Associations"); and
WHEREAS,the Parties believe it would be in their best interests and the best interests of
the citizens of the City to agree to the provisions of this S&R Agreement.
NOW THEREFORE, in consideration for the exchange of promises contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Parties, the Parties agree as follows:
1. Recitals: The above Recitals are true and correct and are incorporated herein.
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2. Settlement: The Parties hereby settle and compromise all claims of any kind or
nature (including any claims for attorney's fees and costs), relating to, arising out of and/or in
connection with the City's July 1, 2014 Notice of Conflict, except as set forth herein.
3. Settlement Terms: In consideration for the releases executed herein, the Parties
agree as follows:
(a) CIBO's proposed hours of operations for outdoor dining shall be until 11:00 p.m.
Sunday through Wednesday with 30 additional minutes (to 11:30 p.m.) for a cessation of
operations; and until 12:00 a.m. Thursday through Saturday with an 30 additional
minutes (to 12:30 a.m. Friday through Sunday) for cessation of operations; provided,
however, certain conditions are met. The hours of operation shall apply to any outdoor
dining areas, whether on the rooftop or first floor. There shall be no use of the outdoor
dining areas after 11:00 p.m. Sunday through Wednesday, and midnight, Thursday
through Saturday. The last 30 minutes shall only be utilized for staff closing and clean-
up. This limitation would mean total lights out and no persons on the roof after 11:30
p.m. weekdays and 12:30 a.m. on weekends.
(b) The parties agree pursuant to Section 12-5 of the City Code, to eight (8) special
events, per year, three (3) of which may be held during the month of December.
(c) Closure of the first floor outdoor dining area shall be subject to the same hours of
operation as for the rooftop outdoor Restaurant. Any outdoor seating on the first floor
shall be brought into the Restaurant at closing of the interior of the Restaurant, every
evening. Should any person congregate (due to valet, smoking of a cigarette, etc.) along
the first floor outdoor dining area, without the service of any food or drinks from the
Restaurant, after the hours of operation of the outdoor areas, as set forth in subsection
3(a) hereof, then any possible violations of noise ordinance emanating from this first
floor outdoor area will not count to the six (6) listed violations in Paragraph (c), below.
Any violations of the Noise Ordinance, found at Chapter 46, Division 4 of the City's
Code, would be treated as a regular noise complaints and not part of the six (6) possible
violations identified in Paragraph (d). If there is a violation of the hours of operation as
to the service of food or drink at the first floor outdoor dining area, then that violation
would count toward the six (6)violations identified in Paragraph (d).
(d) CIBO agrees to the following "Penalties for Non-Compliance of Rooftop
Operating Hours." The offense schedule would be based upon a revolving two (2) year
"offense" period. In other words, the first offense would trigger the beginning of the two
year period. Once two (2) years have run since the first offense, a new two (2) year
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offense period would begin, and the initial offense occurring after the new period began
would be regarded as a final offense.
PENALTIES FOR NON-COMPLIANCE OF ROOFTOP OPERATING HOURS
Any breach of the roof-top hours of operation by CIBO will be penalized as follows:
1st documented offense reported by the City's Code Enforcement Department- Issuance
of a Warning Letter by a Code Inspector, with a requirement to cure the violation.
2nd documented offense reported by the City's Code Enforcement Department —
Issuance of a citation for a$500.00 fine by a Code Inspector, payable within 30 days.
3rd Documented offense reported by the City Code Enforcement Department — Issuance
of a citation for a$1,000.00 fine, payable within 30 days.
4th Documented offense reported by the City Code Enforcement Department — Issuance
of citation by a Code Inspector providing for the "loss of one special event, of the 8
identified under paragraph (a), of the three (3) possible events proposed for month of
December, for the applicable year."
5th Documented offense reported by the City Code Enforcement Department— Issuance
of a citation by a Code Inspector providing for "Mandatory Closure of outdoor dining
areas for a seven (7) calendar day period".
6th Documented offense reported by the City Code Enforcement Department — Issuance
of a citation by a Code Inspector providing for the "permanent reversion of rooftop hours
from those identified at paragraph (a)to 8:00 p.m., per the current City Code."
All citations for documented offenses may be appealed to the Special Master pursuant to
the requirements of Chapter 30, City of Miami Beach Code of Ordinances. Any citation
that is dismissed or voided by the Special Master shall not be considered a "valid
citation" that may be considered towards the foregoing "Penalties for Non-Compliance of
Rooftop Operating Hours," and any subsequent citation shall vert to an earlier type
documented offense if the appeal is sustained.
(e) CIBO's Landlord placed the current cut out for the CIBO valet station in a
location which must be modified. The existing cut out fronting South Pointe Drive is for
two (2) cars at a location of approximately 10 feet from the intersection stop sign. See
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attached Exhibit "A" Existing Cut Out Fronting South Pointe Drive. The City at its
expense, will repair and restore the curb-cut area closest to the stop sign that
currently is marked with a yellow "Do Not Park" sign, and attached as Exhibit "B"..
The cut-out area will be restored to its original configuration as previously authorized
under the Master Permit plan initially submitted by CIBO. The City shall
restore the cut-out within two years of execution of this S&R
Agreement. CIBO will not request nor will the City grant a valet stand or bagged
parking space area for valet within 30 feet of the intersection stop sign along South
Pointe Drive ("preclusion area"). In order to accommodate the heavy valet usage
CIBO will be provided by the City up to five (5) additional bagged parking spaces
parallel to South Pointe Drive for CIBO's valet operator to provide additional space
for queuing and to avoid illegal blockage of South Pointe Drive beyond the identified
30 foot preclusion area.
(f) The City shall verify that the Valet Parking locations and number of reserved
parking spaces held per contract between CIBO and its valet service company satisfies
the City's valet parking requirements. The City will review the valet plan with the
community presidents of the Six Associations, along with the submitted traffic
flow plan. The City will review the plan to ensure that U-Turns are not utilized by the
valet company at the stop sign intersection in front of the Continuum, and to
preclude the valet service company from traversing to the valet car storage facility
reserved for the Restaurant valet patrons. An improperly designed valet plan will
create a traffic problem for the citizens of our community. Given the requirement to
have up to 14 valet drivers on busy days at the Restaurant, per CIBO's submitted traffic
plan, the Parties understand and agree that the City may require a new valet plan that
can adequately and comprehensively address the issues required to avoid
congestion or blockage of South Pointe Drive. CIBO shall provide the Valet
Parking Plan to the City within 30 days of execution of this S&R Agreement. The
City shall have 30 days to review the plans and provide any comments necessary to
ensure that the Parking Plan adequately and comprehensively addresses the traffic
concerns to the area.
_ (g) CIBO is reliant upon the use of valet services for its clients' parking needs. To
ensure the safety of the community and the City's residents, including the many
pedestrians, families and children who traffic this area as an entrance into and out of their
homes and the adjacent South Pointe Park and Sunrise Plaza Beach Promenade, CIBO
will submit to the City a new Traffic Plan to be reviewed by the City to determine if
the new plan is sufficient. CIBO shall submit the new Traffic Plan within 60 days of
execution of the S&R Agreement. The plan will be shared with the Six
Condominium Associations adjacent to the Restaurant. City Administration will assist
CIBO in resolving the remaining Valet and Traffic Plan related issues, and timely work
on ensuring the change in location of the valet ramp and bagging of the applicable
meters. The City will be responsible for restoring the curb cut identified above at
subsection (e).
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(h) CIBO agrees that no truck larger than a five (5) ton truck, comparable to a
Federal Express or UPS van, shall be allowed up the entrance driveway across the
Continuum's private access on the Ocean Extension area. All CIBO deliveries via
any trucks over five (5) tons shall be from the bagged parking spaces in front of
CIBO parallel to South Pointe Drive. CIBO shall adhere to the restrictions on the
hours and location of all waste and recycling removal, which shall be along the street
of South Pointe Drive. The location of all solid waste and recycling removal may be
modified by the City Administration, at the City's sole discretion.
(i) During the early stage of construction of the building containing the
Restaurant, the South Pointe/Portofino Association's long white fence, which
divides the Continuum Parcel from Portofino and South Pointe Towers, was
damaged and left in a non-vertical position by the Restaurant project's General
Contractor. See attached Exhibit "C". CIBO agrees to provide a proper repair of the
damaged fence at its expense. The fence shall be repaired within 90 days of
execution of this S&R Agreement.
(j) CIBO agrees to remove the bench (s) closest to the street from the plans and the
City will install a rail to replace it. See attached Exhibit "D". CIBO agrees to remove the
bench within 90 days of execution of this S&R Agreement. The City shall install the rail
within 180 days of execution of this Agreement.
(k) The Developer/CIBO has installed large A/C units, which are visible from the
street level. CIBO will install a proper and approved enclosure around the entire area of
the A/C units with a rear access gate. This requirement is supported by City Code and is
also a requirement of the Agreement. CIBO, prior to obtaining a Certificate of
Occupancy, shall properly screen the rooftop A/C units. Screening of the A/C unit is a
requirement of the City's Code pursuant to Ordinance No. 2009-3649.
4. Releases: In further consideration of the execution of this S&R Agreement, the
Parties for themselves and their respective parent companies, subsidiaries, divisions, affiliates,
unit owners, insurers, officers, directors, agents, employees, subcontractors, representatives,
successors and assigns (the "City Releasors" or "CIBO Releasors" as the case may be), hereby
execute, subject to the conditions and exclusions set forth in this S&R Agreement, the following
Releases:
(a) CIBO Releasors' Release of City Releasors: Upon execution of this Settlement,
CIBO Releasors hereby remise, release, acquit, satisfy and forever discharge the City Releasors,
which throughout this S&R Agreement includes, but is not limited to, its affiliates,
Commissioners, insurers, sureties, directors, officers, employees, agents and attorneys, together
with its heirs, executors, administrators, associates, representatives, successors and assigns, of
and from any and all manner of past, present and future claims, actions, suits, debts, dues, sums
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of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, obligations, damages, judgments, costs, expenses,
causes of action, executions, claims, liabilities, and demands whatsoever, in law or in equity,
whether for compensatory, punitive, or other damages (collectively referred to in this Paragraph
as the "Claims"), which the CIBO Releasors have held or now hold, ever had, now have, or
which the CIBO Releasors, hereinafter can, shall or may have against the City Releasors, for any
and all Claims, whether known or unknown, arising from, pertaining to and/or in any way
relating to the underlying matter, including all building permit actions, zoning actions,
administrative determinations, etc.
(b) City Releasors' Release of CIBO Releasors: The City Releasors hereby remise,
release, acquit, satisfy and forever discharge the CIBO Releasors, which throughout this S&R
Agreement includes, but is not limited to, its affiliates, insurers, sureties, directors, officers,
employees, agents and attorneys, together with its heirs, executors, administrators, associates,
representatives, successors and assigns, of and from any and all manner of past, present and
future claims, actions, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills,
specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses,
obligations, damages, judgments, costs, expenses, causes of action, executions, claims and
liabilities, and demands whatsoever, in law or in equity, whether for compensatory, punitive, or
other damages (collectively referred to in this Paragraph as the "Claims"), which the City
Releasors have held or now hold, ever had, now have, or which the City Releasors, hereinafter
can, shall or may have against the CIBO Releasors, for any and all Claims, whether known or
unknown, arising from, pertaining to and/or in any way relating to the hours of operation, and
more specifically, the claims raised in the Notice of Conflict.
5. Binding Effect: Subject to City Commission approval and execution by the
Parties, this S&R Agreement shall be binding upon the Parties and their respective successors
and assigns. However, execution and notarization by all Parties shall be a condition precedent to
the effectiveness of this S&R Agreement as binding against any Party. If the City Commission
does not issue the approval, the S&R Agreement shall be null and void and of no force and
effect.
6. No Admission of Liability: It is understood and agreed that the claims which are
the subject of this S&R Agreement are disputed claims and that the execution of this S&R
Agreement by the Parties, and the exclusions set forth in this S&R Agreement, are not intended
to, and shall not in any way, constitute or be deemed an express or implied admission or
acceptance of any negligence, misconduct, responsibility or liability by the Parties or an
admission against interest by the Parties, and that the Parties expressly and specifically deny all
such claims. Such consideration is being given to reduce the expense, uncertainties and hazards
of litigation and to mitigate damages to each of the Parties. There shall not be any implication
37421942.2
by any trier of fact or law of any admission or acceptance of liability or admission against
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interest by the Parties and it shall not be used against the City Releasors or the CIBO Releasors
in any attempt to prove any future liability claims.
7. Attorney's Fees: If any legal action, proceeding, or hearing is brought by the City
Releasors, or the CIBO Releasors to resolve a dispute regarding enforcement of the terms of this
S&R Agreement, then the prevailing party as between the City Releasors, and the CIBO
Releasors shall be entitled to recover reasonable attorney's fees and court costs incurred. The
Parties shall bear their own fees and costs relating to the negotiation and execution of this S&R
Agreement to date.
8. Miscellaneous: The Parties further agree as follows:
(a) The Parties acknowledge and agree that this S&R Agreement is fully and
adequately supported by consideration and is fair and reasonable. The Parties
further acknowledge and agree that: (i) each Party has had the opportunity to
consult with, and has in fact consulted with, such professionals, experts and legal
counsel of its choice as such Party may have desired with respect to all matters
settled and resolved herein; (ii) each Party has participated fully in the negotiation
and preparation of this S&R Agreement; (iii) each Party has carefully reviewed
this S&R Agreement and is entering into same freely; and (iv) this S&R
Agreement is entered into in good faith and was not obtained by fraud,
misrepresentation, or deceit. Accordingly, this S&R Agreement shall not be more
strictly construed against any Party.
(b) The Parties hereto understand and agree that this S&R Agreement will not
be binding on the Parties to this S&R Agreement until such time as the City
Commission of the City of Miami Beach has approved same, and the S&R
Agreement is fully executed by the Parties to the S&R Agreement. City
Commission approval is a material condition precedent to the execution and
enforceability of this S&R Agreement, without which the City does not agree to,
and is not subject to, the terms and conditions contained herein.
(c) Each of the signatories hereto represents that he or she has authority to
execute this S&R Agreement and to bind the Party on whose behalf he or she has
signed.
(d) This S&R Agreement is being consummated in the State of Florida, and
the performance by the Parties hereto is in the State of Florida. This S&R
Agreement shall be construed and governed in accordance with the laws of the
37421942.2
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State of Florida and the sole and exclusive venue for any lawsuit relating to this
S&R Agreement is Miami-Dade County, Florida. The Parties expressly agree to
waive trial by jury in any action to enforce this S&R Agreement.
(e) Before resorting to litigation, the parties agree to use commercially
reasonable, good faith efforts to resolve disputes without litigation as hereinafter
provided. In the event of a dispute which the parties cannot resolve directly
between themselves within ten (10) days, the parties agree to submit to non-
binding mediation for up to a period of thirty (30) days after either party sends
written notice to the other party demanding mediation (but no longer unless the
parties mutually agree) to resolve the dispute using an independent, trained
mediator ag reed to by both parties. If the dispute remains unresolved after such
thirty (30) day period or if the parties cannot agree upon a mediator within fifteen
(15) days after the demand for mediation, either party may proceed to commence
litigation. The parties shall equally split the cost of the mediator.
(f) In construing this S&R Agreement, the singular shall be held to include
the plural, the plural shall be held to include the singular, the use of any gender
shall be held to include every other and all genders, and captions and paragraph
headings shall be disregarded.
(g) Any exhibits attached to this S&R Agreement are incorporated in, and
made a part of,this S&R Agreement.
(h) Time is of the essence in the performance of this S&R Agreement.
9. Entire Agreement: This S&R Agreement, together with any documents
referenced herein, constitutes the full and entire agreement and understanding between the
Parties as related to the Project, and there are no agreements, representations or warranties except
as specifically set forth herein. This S&R Agreement replaces any prior or contemporaneous
written or oral representation or understanding about the terms of this S&R Agreement. All prior
discussions, negotiations, letters, demands and writings of any kind are fully merged into this
S&R Agreement and are to be construed to be of no further force or effect, it being the intention
of the Parties that this S&R Agreement shall serve as the sole and entire expression of their
agreement and understanding. This S&R Agreement shall be binding on, and shall inure to the
benefit of, the respective successors and assigns, if any, of each Party.
10. Modification;No Waiver: This S&R Agreement may only be modified in writing
signed by the Parties. No waiver or modification of the S&R Agreement or of any covenant,
condition or limitation contained herein, shall be valid unless in writing and signed by all Parties
37421942.2
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to the S&R Agreement, or their authorized counsel. If the City or CIBO excuses or condones
any breach or default by the other Party of any obligation under this S&R Agreement, this shall
not be a waiver of such obligation with respect to any continuing obligation or subsequent breach
or default and no such waiver shall be implied.
11. Counterparts: This S&R Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which together represent one
instrument binding on the Parties, notwithstanding that all of the Parties are not signatories to the
same counterpart. The Parties further agree that this S&R Agreement may be signed and
submitted via facsimile or electronic mail.
12. Severability: If any provision of this S&R Agreement is held or rendered illegal
or unenforceable, it shall be considered separate and severable from this S&R Agreement and the
remaining provisions of this S&R Agreement shall remain in full force and effect and bind the
Parties as though the illegal or unenforceable provision had never been included in the S&R
Agreement.
13. Captions; References: The captions of this S&R Agreement are for the purpose
of convenience of reference only and in no way define, limit or describe the scope or intent of
the S&R Agreement or in any way affect the terms and conditions of this S&R Agreement. All
references in the S&R Agreement to the terms "herein," "hereunder," "hereof' and words of
similar import shall refer to this S&R Agreement, as distinguished from the Paragraph, Section
and/or Subsection within which such term is located.
14. Third Parties: Nothing express or implied in this S&R Agreement is intended or
should be construed to confer upon or give any person or entity, other than the City and CIBO,
any rights or remedies under, or by reason of, this S&R Agreement.
IN WITNESS WHEREOF, the Parties have set their hands and seals on the day and date
first written above:
[Remainder of page intentionally left blank.]
37421942.2
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CIBO W • E B• R IAMI, LLC, a
Florida li' to• li. ,i company
By:
Y
Print ame: Ye/14%/e < /7064-44'c N c r Donato, President
i6t)Ph
Print Name: - retjA Vas
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this l O day of £ 2t I ,
_41.14:by Nicola Di Donato, President of CIBO Wine Bar Miami, LLC, who is personally known
to me or who has produced OvrkrierDri (type of identification).
1) CeJi5C
Name• ati44*-
(Print Name)DI i®rA.14 Q/ ISO
Notary Public–State of Florida
My Commission Expires: q--1819
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1 : r 1\ Notary Public•State of Florida
My Comm.Expires Sep 18.2018
Commission•FF 125324
%'fi'° Bonded limos*Mond Nogry Assn.
37421942.2
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THE CITY OF MI,,! I BEACH,
FLORIDA, a political s -division of the
State of Flo, da
a ,i La,,,,,,,,„) • , , ef - By:
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Print Name: 4i-T1f Efi 6A-CCCJ< Name: L • 4
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Title: 1 (t4 . 1A.rJot
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STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this [i'day of r, 1 ,
;ail, by J I v vi 0ia k Ct Mat of CITY OF MIAMI BEACH, FLORIDA, a
political sub-division of the State Florida, who i e ersonally known o me or who has
produced (type of identification).
\ xi_..„\.,
Name: I '!
(Print Name) __
9 ,, NAIM E INE00
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Notary Public ! ;) :"."':«°•a aeprem 26,201
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Approved as to form and language an. or
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City Attorney Pr Date
irk Exhibit"A"
37421942.2