Settlement and Release Agreement with 71 Investments, LLC ,20 c- aqi quo
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SETTLEMENT AND RELEASE AGREEMENT BETWEEN
71 INVESTMENTS, LLC AND THE CITY OF MIAMI BEACH, FLORIDA
This Settlem nt and Release Agreement (the "Agreement") is made and entered into
this a I day of Nbe'@_,, 2015, by and between 71 INVESTMENTS, LLC a Florida
Y Y
limited liability company (hereinafter referenced as the "Property Owner"), and the CITY OF
MIAMI BEACH, FLORIDA, a Florida Municipal Corporation (hereinafter referenced as the
"City"). The Property Owner and the City may also be referred to individually as a "Party," and
collectively as the "Parties."
RECITALS
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WHEREAS, the City Manager, pursuant to Sections 102-383 and 14-406(b) of the City
vff of Miami Beach Code, and based upon his conferred duty, power and authority as the City
Manager for the City of Miami Beach, revoked the Certificate of Use, Receipt No. RL-10006655
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of A & S Entertainment, LLC, d/b/a The Office Gentlemen's Club (hereafter"the Tenant").
- WHEREAS, on December 15, 2014, the Special Master entered an Order that required
the Tenant to implement certain remedial measures in order to re-instate the Tenant's
Certificate of Use; and
WHEREAS, the Property Owner was not informed of the activities that transpired at the
Premises, and was not notified of the Tenant's failure to comply with the remedial directives set
Special Master's Order; and
WHEREAS, the Property Owner has agreed to implement certain remedial measures
set forth in the Special Master's Order, as more fully set forth herein, which will protect the
health, safety and welfare of the neighbors; and
WHEREAS, the Property Owner has expressly notified the City that it has not
abandoned, or intended to abandon the use of the Premises that is specifically delineated in
Section 142-303(c); and
WHEREAS, the City and the Property Owner have acknowledged and recognized that
the provisions of Chapter 118 Article IX of the Land Development Regulations will determine
those circumstances in which there is discontinued use (nonconforming use) at the Premises;
and
WHEREAS, the Mayor and City Commission determined it was necessary to amend
Chapter 142 of the Miami Beach Code on December 18, 2014. Ordinance No. 2014-3916
amended Section 142-303, and established additional conditional uses for the North Beach
Neighborhood located north of 65th Street. The Premises is, and would be, subject to the
conditional use criteria set forth in Ordinance 2014-3916, which is hereby incorporated in the
Agreement by reference; and
SETTLEMENT AND RELEASE AGREEMENT BETWEEN
71 INVESTMENTS, LLC AND THE CITY OF MIAMI BEACH,FLORIDA 2
WHEREAS, the Parties desire to settle claims, disputes, past, present, or future
regarding the revocation of the Certification of Use and the applicability of Ordinance No. 2014-
_ 3916 to the Property, regardless of responsibility; 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 Agreement; and
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.
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 enforcement action at the Premises, or the enactment of Resolution
No. 2014-3916, except as set forth herein.
3. Settlement Terms: In consideration for the mutual promises, conditions, and
releases set forth herein, the Parties agree as follows:
(a) The Property Owner hereby affirmatively acknowledges that it will not employ,
hire, contract, or otherwise authorize, permit, condone or allow any person, business
entity, or operations to perform nude or partially nude or authorize, permit or allow any
nude or partially nude performers and/or dancers at the Premises. The Property Owner
will adopt measures to guard against and combat this type of unlawful conduct for any
lease at the Premises, and to recognize, report and terminate such unlawful conduct that
violates Section 142-1271 through 142-1273 and Chapter 6 of the Miami Beach City
Code.
(b) The Property Owner will not allow, permit, condone, excuse, ignore, disregard,
overlook, authorize or tolerate any offenses that are enumerated within the Florida
Comprehensive Drug Abuse and Prevention and Control Act, Chapter 796 or Chapter
800 of the Florida Statutes at the Premises. The Property Owner will require the Leasee
to acknowledge these prohibitions and will ensure compliance of this paragraph, and
that the failure to comply with this provision will result in the termination of the lease
Agreement.
(c) The Parties affirmatively acknowledge that the enactment of Ordinance No.
2014-3916 is legally applicable to the Premises. Irrespective of the applicability of
Ordinance No. 2014-3916 to the Premises, should the Property Owner (or its tenant)
trigger the conditional use criteria set forth in Section 142-303(c), the conditioned use
will be permitted, and will be deemed a nonconforming use of the Premises. The
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SETTLEMENT AND RELEASE AGREEMENT BETWEEN
71 INVESTMENTS, LLC AND THE CITY OF MIAMI BEACH,FLORIDA 3
1 Premises will be permitted to continue utilizing the nonconforming use set forth in
P 9 9
Section 142-303(c), until such time there ceases to exist the nonconforming use as
legally required within Article IX of the Miami Beach Land Development Regulations, and
more specifically identified within Section 118-394, which states:
No building, structure, equipment, fixtures or land, or portion thereof, used
in whole or in part for a nonconforming use which remains idle or unused
for a continuous period of six months, or for 18 months during any three-
year period whether or not the equipment or fixtures are removed, shall
again be used, except in conformity with the regulations of the district in
which such building or land is located.
The Property Owner acknowledges that there may exist other applicable provision(s) of
the City's Land Development Regulations or General Ordinances that might apply to the
• premises, and which may need to be satisfied before the Property Owner (or its tenant)
commences a business operation that is identified within Section 142-303(c) at the
Premises.
(d) Upon payment of the appropriate fee, and provided there is compliance with
Sections 3. (a), (b) and (c) herein, the City will issue a Certificate of Use for a business
operation identified in Section 142-303(c) to either the Property Owner (or its tenant),
provided the Property Owner certifies in writing that the tenant is not affiliated in any
manner with the former Tenant delineated within the December 15, 2014 Special Master
Order.
4. Releases: In further consideration of the execution of this 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 "Property Owner Releasors" as the case may
be), hereby execute, subject to the conditions and exclusions set forth in this Agreement, the
following Releases:
(a) Property Owner Releasors' Release of City Releasors: Upon execution of this
Settlement, Property Owner Releasors hereby remise, release, acquit, satisfy and
forever discharge the City Releasors, which throughout this 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 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 Property Owner Releasors have held or now
hold, ever had, now have, or which the Property Owner Releasors, hereinafter can, shall
or may have against the City Releasors, for any and all Claims, whether known or
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SETTLEMENT AND RELEASE AGREEMENT BETWEEN
71 INVESTMENTS, LLC AND THE CITY OF MIAMI BEACH,FLORIDA 4
unknown, arising from, pertaining to and/or in any way relating to the underlying matter,
including all legal actions, zoning actions, administrative determinations, etc.
(b) City Releasors' Release of Property Owners Releasors: The City Releasors
hereby remise, release, acquit, satisfy and forever discharge the Property Owners
Releasors, which throughout this 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 Property Owners Releasors,
for any and all Claims, whether known or unknown, arising from, pertaining to and/or in
any way relating to this matter, and more specifically, the claims raised in the disputes
claim.
(c) Parties Agreement not to Pursue: The Parties agree to not instigate, raise, or
pursue any complaint or action concerning any other Party or their past, present, and
future shareholders, directors, officers, employees, principals, agents, servants,
independent contractors, representatives, parent corporations, subsidiary corporations,
predecessors, successors, assigns, attorneys, and insurers, within any Florida State
Jurisdiction or governmental agency which may maintain jurisdiction of these disputed
issues.
5. Binding Effect: Subject to City Commission approval and execution by the
Parties, this 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 Agreement as binding against any Party. If the City Commission does
not issue the approval, the 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 Agreement are disputed claims and that the execution of this Agreement by
the Parties, and the exclusions set forth in this 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 by any trier of
fact or law of any admission or acceptance of liability or admission against interest by the
Parties and it shall not be used against the City Releasors or the Releasors in any attempt to
prove any future liability claims. The Parties understand and agree that no Party admits liability
, 112)
SETTLEMENT AND RELEASE AGREEMENT BETWEEN
71 INVESTMENTS, LLC AND THE CITY OF MIAMI BEACH,FLORIDA 5
of any sort by reason of the above incidents, acts, casualties, events, representations,
omissions, conduct, or interpretation. The Parties also understand and agree that this
Agreement constitutes the good faith compromise of the dispute, and is made in good faith to
terminate any further controversy respecting all claims for damages, causes of action, or
potential liability which could have been ascertained by reasonable diligence which either Party
to this Agreement may have asserted now, or may assert in the future because of any
damages, incidents, acts, casualties, or events, described or alluded to in this Agreement.
7. Attorney's Fees: If any legal action, proceeding, or hearing is brought by the City
Releasors, or the Releasors to resolve a dispute regarding enforcement of the terms of this
Agreement, then the prevailing party as between the City Releasors, and the 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 Agreement to date.
8. Miscellaneous: The Parties further agree as follows:
(a) The Parties acknowledge and agree that this 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 Agreement; (iii) each Party has carefully
reviewed this Agreement and is entering into same freely; and (iv) this
Agreement is entered into in good faith and was not obtained by fraud,
misrepresentation, or deceit. Accordingly, this Agreement shall not be more
strictly construed against any Party.
(b) The Parties hereto understand and agree that this Agreement will not be
binding on the Parties to this Agreement until such time as the City Commission
of the City of Miami Beach has approved same, and the Agreement is fully
executed by the Parties to the Agreement. City Commission approval is a
material condition precedent to the execution and enforceability of this
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 Agreement and to bind the Party on whose behalf he or she has
signed.
(d) This Agreement is being consummated in the State of Florida, and the
performance by the Parties hereto is in the State of Florida. This Agreement
shall be construed and governed in accordance with the laws of the State of
Florida and the sole and exclusive venue for any lawsuit relating to this
SETTLEMENT AND RELEASE AGREEMENT BETWEEN
71 INVESTMENTS,LLC AND THE CITY OF MIAMI BEACH,FLORIDA 6
Agreement is Miami-Dade County, Florida. In the event that an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed as if
crafted jointly by each of the Parties hereto and no presumptions or burdens of
proof shall arise favoring any party by virtue of the authorship of any of the
provisions of the Agreement. The Parties expressly agree to waive trial by jury in
any action to enforce this 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 agreed 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 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 references to documents, orders or ordinances identified within to
this Agreement are incorporated in, and made a part of, this Agreement.
(h) The Parties warrant and represent that they have not sold, assigned,
transferred, conveyed, or otherwise disposed of any of the claims, demands,
obligations, or causes of action referred to in this Agreement. Further, the
Parties recognize that this matter is solely unique to the circumstances arising
from and referenced in the Lawsuit, and the Plaintiffs shall not assign, transfer,
convey, or otherwise dispose of their obligations under this Agreement.
(i) The Parties declare and represent that they were not induced to enter into
this Agreement by any representations respecting the nature and extent of any
damages, legal liability, or financial responsibility made by any Party or their
representatives.
9. Entire Agreement: This 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 Agreement replaces any prior or contemporaneous written or
oral representation or understanding about the terms of this Agreement. All prior discussions,
negotiations, letters, demands and writings of any kind are fully merged into this Agreement and
SETTLEMENT AND RELEASE AGREEMENT BETWEEN
71 INVESTMENTS, LLC AND THE CITY OF MIAMI BEACH,FLORIDA 7
are to be construed to be of no further force or effect, it being the intention of the Parties that
this Agreement shall serve as the sole and entire expression of their agreement and
understanding. This 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 Agreement may only be modified in writing signed
by the Parties. No waiver or modification of the Agreement or of any covenant, condition or
limitation contained herein, shall be valid unless in writing and signed by all Parties to the
Agreement, or their authorized counsel. If the City or Property Owner excuses or condones any
breach or default by the other Party of any obligation under this 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 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 Agreement may be signed and submitted via
facsimile or electronic mail.
12. Severability: If any provision of this Agreement is held or rendered illegal or
unenforceable, it shall be considered separate and severable from this Agreement and the
remaining provisions of this 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 Agreement.
13. Captions; References: The captions of this Agreement are for the purpose of
convenience of reference only and in no way define, limit or describe the scope or intent of the
Agreement or in any way affect the terms and conditions of this Agreement. All references in
the Agreement to the terms "herein," "hereunder," "hereof" and words of similar import shall
refer to this 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 Agreement is intended or should
be construed to confer upon or give any person or entity, other than the City and Property
Owner, any rights or remedies under, or by reason of, this Agreement.
[Remainder of page intentionally left blank.]
SETTLEMENT AND RELEASE AGREEMENT BETWEEN
71 INVESTMENTS, LLC AND THE CITY OF MIAMI BEACH,FLORIDA 8
IN WITNESS WHEREOF, the Parties have set their hands and seals on the day and
date first written above:
71 INVESTMENTS, LLC, a Florida limited
liability co pany
,r4 ,ttie
By: y
Title: 90v001/4-1)(> 1 0 V )C -
. joy Icahn
'�•` '..:� FX?rR.c. bt�6SDh
STATE OF FLORIDA �'.ckaFO�f cto eAar.
COUNTY OF MIAMI-DADE
The foregoin instrument was 1acknowledged before me this 11 day of -0
2014, by ,ovJ ►� , o I� Ana of 71 Invest,'-nts, LLC,
y � � �
who is(personally known o me (type of
identification).
1i
Name: �,
(Print Name) r' . r —
^ coa wssroa i nFIN011
• EXPIRES:October 1,as
www.Amokyounter Notary Public— State of Florida
My Commission Expires: 10-
SETTLEMENT AND RELEASE AGREEMENT BETWEEN
71 INVESTMENTS,LLC AND THE CITY OF MIAMI BEACH,FLORIDA 9
THE CITY OF MIAM BEACH, FLORIDA, a
political b-division y�f the State of Florida
,
By: �'' �._ _
Name:Jai immv o ales
Title: C Man •er
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
Jt�-
The foregoing instrument was acknowledged before me this 1Z day ofd
201E by Jimmy_Morales as City Manager of C �IIIAMi EACH, FLORIDA, a political sub-
division of the State of Florida, who is ersonally kno51 to me or who has produced
(type of identification).
// i
Name�f'S
(Print Name) fl N S i L 0-6)
Notary Public—State of Florida
My Commission Expires: CS- Q lgolg
ATTEST:
4:F Y'' FERNANDA SILVA
7.,, MY COMMISSION tI FF 155332
11 Li 4-d EXPIRES:August 27,2018
'''''.^�?e.- __5/11.. 1/ : Ate Bonded Thru Notary Public Underwriters
City Clerk &-'1414,
Approved as to form and I gg --�'=-�'1�i•
•execution
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