Agreement and release between YACHT CLUB, THE MARINA, THE CITY 2CIq -3azos
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is made and entered into, this
day of , 2020, by and among the Yacht Club at Portofino Condominium
Association, Inc. (hereinafter called the "Yacht Club"), Miami Beach Marina Associates, Ltd.
(the "Marina"), the-City of Miami Beach, a municipal corporation of the State of Florida (the
"City"), and the Miami Beach Redevelopment Agency, a Florida public agency organized and
existing pursuant to the Community Redevelopment Act of 1969 (Chapter 163, Part III, Florida
Statutes, as amended) (the "RDA" or "Agency") (collectively, the City and Agency are
hereinafter referred to as "Tenant"). Based upon the mutual considerations stated below and
other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties
agree as follows:
RECITALS
WHEREAS, the Yacht Club at Portofino Condominium is a condominium located at 90
Alton Rd, Miami Beach, FL 33139 and developed by Yacht Club at Portofino, LTD., as
evidenced in the Declaration Condominium, recorded in Official Records Book 18784 at Page
2578 of the Public Records of Miami-Dade County, Florida;
WHEREAS, on or about November 30, 1998, the Yacht Club at Portofino, LTD. and
Tenant entered into a lease (the "Yacht Club Lease") for the leasing of parking spaces, laundry,
lavatory and shower facilities, a trash room and a maintenance room, all located within the"City
Unit", as set forth in thee Yacht Club Lease and intended for use by third party beneficiary,
Marina;
WHEREAS, the Yacht Club at Portofino Condominium Association was formed
pursuant to the Yacht Club at Portofino Condominium Association Declaration of
Condominium, and the Yacht Club at Portofino Condominium Association is the successor in
interest to the Yacht Club at Portofino, LTD.;
WHEREAS, the Yacht Club filed a lawsuit for damages and eviction under the Yacht
Club Lease against the City, the RDA and the Marina, in Case Nos. 2017-18335 CA 05, in the
Eleventh Judicial Circuit in and for Miami-Dade County (the"Lawsuit");
WHEREAS, the City and the RDA filed a counterclaim in the Lawsuit seeking
declaratory action pursuant to the Declaratory Judgment Act, 86.111, Fla. Stat.;
WHEREAS in addition to the Lawsuit above on April 24, 2019 the Yacht Club issued
three invoices to the City of Miami Beach related to the Marina: (1) invoice #Suntex-001 for
$37,398.59 in utility charges for utility reimbursements for 2017, 2018 & January through June
2019; (2) #Suntex-002 for $215,087.60 in utility charges incurred between 10 years and 14.5
years as outlined within said invoice; and (3) Invoice#Suntex-004 in the amount of$6,091.82 in
utility charges for utility reimbursements for October, November and December 2019
(collectively referred to as "Utility Invoices");
WHEREAS, the City, RDA, Yacht Club and the Marina (collectively, the "Parties")
desire to resolve and settle any and all claims which were, or could have been, asserted in the
Lawsuit and Utility Invoices, with the intention that this Agreement shall be fully binding upon
the Parties, and the Tenant and Yacht Club also seek to amend the Yacht Club Lease to more
clearly define the Tenant's payment obligations moving forward and to avoid future disputes;
WHEREAS, the Parties believe it would be in their best interests to agree to the
provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, undertakings and
representations contained in this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the Parties, and with the intent to
be legally bound, the Parties agree as follows:
1. Recitals Incorporated. The above Recitals to this Agreement are incorporated
into and shall constitute a part of this Agreement.
2. Settlement. The Parties hereby settle and compromise all claims of any kind or
nature (including any claims for attorney's fees and costs) which the Parties had or may have
relating to or arising out of the Lawsuit and the Utility Invoices, including any and all claims
arising out of or related to the Yacht Club Lease, prior to the execution of this Agreement.
3. Settlement Terms. In consideration for the releases executed herein, the Parties
agree as follows:
a. Past Capital Repair Expenses: The Tenant shall pay the Yacht Club the total sum
of five hundred thousand dollars ($500,000.00) to the Yacht Club within sixty (60) days after
execution of this Agreement.
b. Past Operating Expenses: The City and the RDA shall pay to the Yacht Club the
total sum of nine thousand one hundred forty four dollars and forty seven cents ($9,144.47) to
Yacht Club within thirty(30) days after execution of this Agreement.
c. Reconciliation for October 1, 2018 through December 31, 2019 (15 Months) and
January 1, 2020: The Tenant shall pay the Yacht Club, within ninety (90) days of the execution
of this Agreement, the total sum of Sixty Three thousand Five Hundred Seventy Two and fifty
cents ($63,572.50) to reconcile all amounts due from the City and the RDA under the Yacht Club
Lease for the period through December 31,2019.'
d. Amendment of Yacht Club Lease: Concurrently with the execution of this
Agreement by the Parties, the Tenant and Yacht Club shall execute the First Amendment to the
Yacht Club Lease attached hereto as Exhibit"A" ("Yacht Club Amendment"). The Tenant shall
pay the Yacht Club the first quarterly installment for the 2020 year as set forth in the attached
The$63,572.50 payment represents 15 months of the annual rent payment of$50,858.00 agreed upon in the Yacht
Club Amendment attached hereto as Exhibit"A".
Yacht Club Amendment, in the amount of Twelve Thousand Seven Hundred Seventy dollars and
Forty-Five Cents ($12,770.45), within forty-five (45) days from the date of execution of the
Settlement Agreement.
e. Utility Invoices: The Marina paid_invoice #Suntex-001 for $37,398.59 directly to
Yacht Club on June 25, 2019. The Marina shall pay to the Yacht Club the total sum of One
Hundred Six Thousand Ninety One Dollars and Eighty-Two Cents ($106,091.82) to the Yacht
Club within fifteen (15) days after the execution of this Settlement Agreement for the above
referenced Utility Invoices in full and final settlement of any and all claims related to the Utility
Invoices incurred at the City Unit up through and including December 31, 2019.. Except for the
foregoing the Yacht Club shall not seek any additional sums related to such past due utility
expenses from the City or the RDA or the Marina.
The Marina has no obligation to make any payments set forth in Sections 3 a, b, c
and d to either the City or the Yacht Club.
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 hereby execute, subject to the conditions and exclusions set forth in this
Agreement, the following Releases:
a. The City and RDA's Release: Except as specifically provided herein, the City and
RDA do hereby remise, release, acquit, satisfy, and forever discharge the Yacht Club from any
and all manner of claims, action and actions, cause and causes of action, suits, debts, dues, sums
of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, evictions, damages, judgments, executions, claims,
liabilities, and demands whatsoever, in law or in equity(collectively referred to in this Paragraph
as "Claims"), which the City and RDA have held or now hold, ever had, now have, or which the
City and RDA, hereinafter can, shall or may have, against the Yacht Club, for any and all claims,
whether known or unknown, whether they were or could have been asserted in the Lawsuit and
Utility Invoices, as well as all Crossclaims, Counterclaims and any and all other causes of action
at law and equity through the date of this Agreement. The City and RDA understand and
expressly agree that this Agreement extends to all claims of every nature and kind, known or
unknown, patent or latent, suspected or unsuspected, past, present, or future, arising from or
attributable to any past actions or omissions of Yacht Club whether set forth in any pleadings or
charge referred to herein or not, whether they were brought or could have been brought in the
Lawsuit and Utility Invoices and that any and all rights granted to the City and RDA under any
state law or federal law or regulation limiting the general nature of this Release are hereby
expressly waived. Notwithstanding any other language in this Release, the City and RDA are not
releasing the Yacht Claim from any manner of claims related to the newly formed obligations of
the Parties as set forth in the First Amendment to Yacht Club Lease as attached hereto.
b. The Yacht Club Release: Except as specifically provided herein, the Yacht Club
does hereby remise, release, acquit, satisfy, and forever discharge the Marina, RDA and City
from any and all manner of claims, action and actions, cause and causes of action, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, evictions, damages, judgments,
executions, claims, liabilities, and demands whatsoever, in law or in equity (collectively referred
to in this Paragraph as "Claims"), which the Yacht Club has held or now hold, ever had, now
have, or which the Yacht Club, hereinafter can, shall or may have, against the Marina, RDA or
City for any and all claims, whether known or unknown, whether they were or could have been
asserted in the Lawsuit and Utility Invoices, as well as all Crossclaims, Counterclaims and any
and all other causes of action at law and equity through the date of this Agreement. The Yacht
Club understands and expressly agrees that this Agreement extends to all claims of every nature
and kind, known or unknown, patent or latent, suspected or unsuspected, past, present, or future,
arising from or attributable to any past actions or omissions of Marina, RDA or City whether set
forth in any pleadings or charge referred to herein or not, whether they were brought or could
have been brought in the Lawsuit and Utility Invoices and that any and all rights granted to the
Yacht Club under any state law or federal law or regulation limiting the general nature of this
Release are hereby expressly waived. Notwithstanding any other language in this Release, the
Yacht Club is not releasing the Marina, RDA or City from any manner of claims related to the
newly formed obligations of the Parties as set forth in the Amendment to Yacht Club Lease as
attached hereto.
c. The Marina Release: Except as specifically provided herein, the Marina does
hereby remise, release, acquit, satisfy, and forever discharge the City, RDA, and Yacht Club
from any and all manner of claims, action and actions, cause and causes of action, suits, debts,
dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, evictions, damages, judgments,
executions, claims, liabilities, and demands whatsoever, in law or in equity (collectively referred
to in this Paragraph as "Claims"), which the Marina has held or now hold, ever had,now have, or
which the Marina, hereinafter can, shall or may have, against the City, RDA, and Yacht Club for
any and all claims, whether known or unknown, whether they were or could have been asserted
in the Lawsuit and Utility Invoices, as well as all Crossclaims, Counterclaims and any and all
other causes of action at law and equity through the date of this Agreement. The Marina
understands and expressly agree that this Agreement extends to all claims of every nature and
kind, known or unknown, patent or latent, suspected or unsuspected, past, present, or future,
arising from or attributable to any past actions or omissions of City, RDA, and Yacht Club
whether set forth in any pleadings or charge referred to herein or not, whether they were brought
or could have been brought in the Lawsuit and Utility Invoices and that any and all rights granted
to the Marina under any state law or federal law or regulation limiting the general nature of this
Release are hereby expressly waived. Notwithstanding any other language in this Release,
Marina is not releasing the City, RDA, and Yacht Club from any manner of claims related to the
newly formed obligations of the Parties as set forth in the First Amendment to Yacht Club Lease
as attached hereto. This release excludes claims that the Marina may have as it relates to lease
executed between the City and the Murano Grande at Portofino Master Association Inc. or the
Murano Grande Condominium Association Inc. or the Icon Condominium Association Inc. This
release excludes claims that the Marina may have as it relates lease to leases and any
amendments to leases executed between the City and the Murano Grande at Portofino Master
Association Inc. or the Murano Grande Condominium Association Inc. or the Icon
Condominium Association Inc."
5. Settlement Accord and Satisfaction. This Agreement is intended to and does
settle and resolve all claims known or unknown, arising from, relating to, and in connection with
the Lawsuit, and constitutes a full and complete accord and satisfaction between and among the
Parties.
6. i)'ismissal. The Yacht Club shall dismiss, with prejudice, all claims in the
Lawsuit, and City and RDA shall dismiss, with prejudice, all counterclaims claims in the
Lawsuit, with each party to bear its own attorney's fees and costs, within ten (10) days of the
receipt of this fully executed Agreement, the tender and clearance of the settlement funds, and
execution of the First Amendment to Yacht Club Lease, as set forth in Paragraph 3(a)-(c).
7. No Admission of Liability.The Parties acknowledge and agree that the claims in
this Lawsuit and Utility Invoices are disputed claims and that the execution of this Agreement by
the Parties, and the foregoing exclusions from the settlement set forth in this Agreement, are not
intended to and shall not in any way constitute or be deemed an admission or acceptance of any
liability byt the Parties or an admission against interest by 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.
8. Binding Effect. This Agreement shall be binding upon the Parties, and their
respective successors and assigns.
9. Attorney's Fees. If any legal action, proceeding, arbitration or hearing is brought
by the any of the Parties to resolve a dispute regarding payment or other obligation of this
Agreement, as provided in this Agreement, then the prevailing party as between the Parties 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 Lawsuit to date.
10. 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; and (iii) each Party has carefully reviewed this Agreement
and is entering into same freely. 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 and, as to the RDA, the Chairman and members of the RDA, has approved same, and the
Agreement is fully executed by the Parties to the Agreement. City Commission and RDA board
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 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 Agreement is
Miami-Dade County, Florida. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY 1N ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT.
e. 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.
f. All of the exhibits attached to this Agreement are incorporated in, and made a part
of, this Agreement.
11. Entire Agreement. This Agreement, together with any documents referenced
herein, constitute the full and entire agreement and understanding between the parties with
respect to the subject matter hereof, and there are no agreements, representations or warranties
except as specifically set forth herein. All prior discussions, negotiations, letters, demands and
writings of any kind are fully merged into this Agreement and 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 may not be
amended or modified except by an instrument in writing signed by the party against whom
enforcement of such amendment or modification is sought. This Agreement may be signed via
facsimile in one or more counterparts, each of which shall be deemed an original, and all
counterparts so executed shall constitute one agreement binding on the parties, notwithstanding
that all of the Parties are not signatories to the same counterpart.
12. Modification/Waiver. This Agreement may only be modified in writing signed
by both 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 any Party excuses or condones any breach or default
by another 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.
13. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which together represent one instrument.
14. 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.
15. 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.
16. Third Parties. Nothing expressed or implied in this Agreement is intended or
should be construed to confer upon or give any person or entity, other than the Parties, any rights
or remedies under or by reason of this Agreement.
SIGNATURES TO FOLLOW
THE CITY OF MI BEACH APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
By:
Mayor Dan Gelber h z' -zAiD
THE CITY OF MIAMI BEACH City Atto v; �"ey1/)2nate
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
STATE OF FLORIDA )
) SS:
COUNTY OF MIAMI-DADE )
The foregoing intro ent as acknowledged before me by means of physical presence or( )
online notarization,this a� g oL& O ,by Dan/GM,as Mayor of the City of Miami Beach,who
is personally known to me or has produced as identification, named in the
foregoing General Release and Waiver, and that he acknowledges executing the same freely and
voluntarily. )0
WITNE S my hand and official seal in the County and State last aforementioned thisof day of
1. - ,2020.
a h
My Commission Expires: � � �'v �/ ,_/./1
.L,
. otary Public, :tater Flirida_
I ;��'IV Ve GUADALUPE C RAMOS 1
THE CITY OF MIAMI BEACH , r° `�•`� Notary Public-State of Florida
� Commission#FF 992352
B � 4 !dI I '•% -o•-- :`, My Comm.Expires Sep 8,2020
Y 7-2/ *3,/,..,.... z- r L.. Bonded through National Notary Assn. 1
Rafael Granado � ;.�.} •• .., ,` ,
City Clerk /-•..L; .' . 't t,p;.1
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THE CITY OF MIAMI BEACH —`9'`' -�¢' - \.
to •�;-r- a r-'�" :v.:;,,K.=-.� - i
ti,s -
1700 Convention Center Drive, 4t -F1oo�u r r:,J :,,`
Miami Beach, Florida 33139 :i,a. 1�l'4A.i 1- '_ ikr i`
STATE OF FLORIDA ) ✓ •••„•\ h i '"
n k'''ly/J,.
COUNTY OF MIAMI-DADE ) rF
The foregoing instrumentwas acknowledged before me by means of NC) physical presence or( )
online notarization,this 3/3 Zo ZO ,by Rafael Granado,as the City Clerk for the City of Miami
Beach,who is personally kn w to me or has produced Al./ as identification,named
in the foregoing General Release and Waiver, and that he acknowledges executing the same freely and
voluntarily.
WITNESS my hand and official seal in the County and State last aforementioned this '3 day of
/1Aacch ,2020.
I
My Commission Expires: r' k
NotaPublic, State of Florida
0.11 v4 , PATRICK D.CAMM
'' , , %% MY COMMISSION#GG 209247
' EXPIRES:April 19,2022
-"47,f°;� Bonded ThreNotaryPublic Underwriters
MIAMI BEAC . ' IEVELOPMENT AGENCY
By: . L
Mayer Dan Gelber
Chairman
Miami Beach Redevelopment•Agency APPROVED AS TO
1700 Convention Center Drive,4th Floor FORM R EXECUTION
& FOR EXECUTION
Miami Beach, Florida 33139
ZAtkv: -
STATE OF FLORIDA ) RDA Counsel Date
SS:
COUNTY OF MIAMI-DADE )
The foregoing instru-n t wa acknowledged before me by means of physical presence or( )
online notarization, this A S/ , by Dan Gelber, as the Chairman of the Miami
Redevelopment Agency, who is personally known to me or has produced /L1/49- as
identification, named in the foregoing General Release and Waiver, and that he acknowledges executing
the same freely and voluntarily. ]
WITNE S my hand and official seal in the County and State last aforementioned this� �' day of
U 2020.
My Commission Expires: 9,g ,e• ',tv / :4
Notary Pu n, ic,State of Florida
PVB,, GUADALUPE C RAMOS
Notary Public-State of Florida
MIAMI BEACH REDEVELOPME AGENCY • :•E Commission#FF 992352
a
;"�: My Comm.Expires Sep 8,2020
By: �� 3/3/zdzo Bonded through National Notary Assn.
Rafael Granado
Secretary
Miami Beach Redevelopment Agency
1700 Convention Center Drive, 4th Floor
Miami Beach, Florida 33139
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of(7()physical presence or( )
online notarization, this 0, , by Rafael Granado, as Secretary of the Miami Beach
Redevelopment Agency, who is ersonally known to me or has produced /✓/1 as
identification, named in the foregoing General Release and Waiver, and that he acknowledges executing
the same freely and voluntarily.
WITNESS my hand and official seal in the County and State last aforementioned this 3 day of
AActrc e ,2020.
My Commission Expires:
Nota Public, State of Florida
410k, PATRICK D.CAMM
MY COMMISSION#GG 209247
+: "" E�(pIRES:ThruNot Ap
ril 19 2022
Bonded
ary Public Uncle Wflters
'•.NOF F;..•
YACHT CLUB CONDOMINIUM ASSOCIATION, INC.
By:
NAME
TITLE
ADDRESS
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of( ) physical presence or( )
online notarization, this , by , as of the Yacht Club
at Portofino Condominium Association, Inc., who is personally known to me or has produced
as identification, named in the foregoing General Release and Waiver, and that
he acknowledges executing the same freely and voluntarily.
WITNESS my hand and official seal in the County and State last aforementioned this day of
,2020.
My Commission Expires:
Notary Public, State of Florida
YACHT CLUB CONDOMINIUM ASSOCIATION, INC.
By:
NAME
TITLE
ADDRESS
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of( ) physical presence or( )
online notarization, this , by , as of the Yacht Club
at Portofino Condominium Association, Inc., who is personally known to me or has produced
as identification,named in the foregoing General Release and Waiver, and that
he acknowledges executing the same freely and voluntarily.
WITNESS my hand and official seal in the County and State last aforementioned this day of
,2020.
My Commission Expires:
•
Notary Public, State of Florida
MIAMI BEACH MARINA ASSOCIATES, LTD.
By:
NAME
TITLE
ADDRESS
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me by means of( ) physical presence or( )
online notarization, this , by , as of Miami Beach
Marina Associates, Ltd., who is personally known to me or has produced as
identification, named in the foregoing General Release and Waiver, and that he acknowledges executing
the same freely and voluntarily.
WITNESS my hand and official seal in the County and State last aforementioned this day of
, 2020.
My Commission Expires:
Notary Public, State of Florida
FIRST AMENDMENT TO LEASE AGREEMENT BETWEEN
YACHT CLUB AT PORTOFINO CONDOMINIUM ASSOCIATION, INC.,
THE CITY OF MIAMI BEACH, FLORIDA,AND
MIAMI BEACH REDEVELOPMENT AGENCY,
FOR THE OCCUPANCY OF THE "CITY UNIT"
LOCATED AT THE YACHT CLUB AT PORTOFINO CONDOMINIUM