Settlement Agreement between The City of Miami Beach and TCH 500 Alton, LLC. 2-052-0- 311 so
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS
This Settlement Agreement and Release of All Claims(the"Settlement Agreement")is made
and entered into this 17 thday of March ,2020,by TCH 500 Alton,LLC,a Delaware limited
liability company ("Developer"), and the City of Miami Beach, a Florida municipal corporation
(the"City") (each, a"Party" and collectively, the"Parties").
The Parties agree and stipulate to the following:
RECITALS
1. City and 500 ALTON ROAD VENTURES, LLC, a Delaware limited liability company, 1220
SIXTH, LLC, a Delaware limited liability company, SOUTH BEACH HEIGHTS I, LLC, a
Delaware limited liability company, and KGM EQUITIES, LLC, a Delaware limited liability
company entered into that certain Development Agreement, dated as of January 9, 2019,
pursuant to Sections 163.3220-163.3243, Florida Statutes (the "Florida Local Government
Development Agreement Act") and Section 118-4 of the City's Code (the "Development
Agreement"), which Development Agreement is recorded in Official Records Book 31323,
Page 2781 in and of the Public Records of Miami-Dade County, Florida, as assigned to TCH
500 Alton, LLC, pursuant to that certain Assignment and Assumption of Development
Agreement dated as of September 27, 2019 and recorded in Official Records Book 31627,
Pages 1177-1182 in and of the Public Records of Miami-Dade County, Florida.
2. The Development Agreement provides, among other terms, the City's and Developer's
respective responsibilities and agreement to coordinate and cooperate in the planning,
scheduling and approval of the design,development and construction of a mixed use residential
and commercial project(the"Project") on the Development Site(as that term is defined in the
Development Agreement), and a 3.0 acre public park to be conveyed to the City (the "Park
Project");
3. On July 17, 2019, the Mayor and City Commission of the City approved a First Amendment
to the Development Agreement,delineating the terms and conditions for Developer to develop,
permit, design and construct a pedestrian bridge over and across 5th Street and West Avenue,
to connect the Baywalks south of 5th Street with the Development Site (the "First
Amendment"), which First Amendment was dated as of December 18, 2019;
4. On November 1, 2019, the City's Board of Adjustment heard an appeal filed by Developer,
and voted to reverse an administration determination of the Planning Director
("Determination"), with respect to the inclusion of the following building elements in floor
area calculations for the Project in accordance with the City Code: (1) voids to accommodate
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elevator shafts; (2)voids to accommodate mechanical/ventilation/trash shafts; and(3)voids to
accommodate stairwells, including voids to accommodate stairwells within accessory garages
(the "BOA Appeal"). On or about December 3, 2019, the City appealed the Board of
Adjustment ruling reversing the Planning Director's Determination to the Eleventh Judicial
Court in and for Miami-Dade County, and filed a Writ for Petition of Certiorari in Case No.
19-323 AP-01 (the"Action").
5. The Parties desire to resolve their dispute relating to the BOA Appeal and the Action, and
desire to amend the Development Agreement and First Amendment thereto,to accomplish the
terms and conditions outlined herein.
6. In Resolution No. 2020-31180, the Mayor and City Commission approved the Second
Amendment and this Settlement Agreement, following two (2)duly noticed public hearings in
compliance with Section 163.3225 of the"Act,"having determined that it is in the City's best
interest to address the issues covered by the Development Agreement, as amended, in a
comprehensive manner.
7. In Ordinance No. 2020-4332, the Mayor and City Commission enacted an amendment to the
City's Land Development Regulations, clarifying the areas of a building that count toward the
maximum floor area limitations and reaffirming the City's longstanding application of the
definition of floor area as including (1) voids to accommodate elevator shafts; (2) voids to
accommodate mechanical/ventilation/trash shafts; and (3) voids to accommodate stairwells,
including voids to accommodate stairwells within accessory garages (the "Clarifying LDR
Amendment").
8. The Clarifying LDR Amendment contained an applicability clause to effectuate the settlement
of the BOA Appeal and the Action, by providing that the foregoing "shall not apply to the
development site that is the subject of an appeal granted by the Board of Adjustment prior to
the effective date of this Ordinance that(i)authorized the exclusion from floor area calculations
of voids in elevator shafts,mechanical/ventilation/trash shafts, and stairwells; and(2) does not
result in a change to the height or floor plate of the residential tower of the proposed
development."
NOW,THEREFORE,based on the above and in consideration of mutual covenants and other
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties
agree to the following:
1. The foregoing recitals are true and correct and are incorporated herein by reference.
2. Exclusion of Certain Elements from Calculation of Floor Area for the Project. Subject to the
terms and conditions of the Second Amendment to Development Agreement, and in
accordance with the Clarifying LDR Amendment, the Parties agree that the Developer will
have the right to exclude(1) voids to accommodate elevator shafts; (2)voids to accommodate
mechanical/ventilation/trash shafts; and (3) voids to accommodate stairwells, including voids
to accommodate stairwells within accessory garages from the calculation of floor area for the
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Project, provided that the foregoing does not result in a change to the height or floor plate of
the residential tower for the Project.
3. Release by the Developer. Except for performance required under the Settlement Agreement
and the Second Amendment,the Developer,on behalf of itself and each of its members (direct
and indirect), principals, affiliates, subsidiaries, directors, officers, managers, employees,
attorneys, successors and assigns (collectively, the "Developer Parties"), hereby forever
releases and discharges the City, including without limitation any agency or regulatory body
of the City, and its elected officials, employees, agents and representatives (collectively, the
"City Parties"), from each and every right,claim, debt, cause of action,demand, suit,liability,
or right of action of any nature whatsoever,whether asserted or unasserted,known or unknown,
relating to or arising from the subject matter of the BOA Appeal and the Action or the
Allegations of the BOA Appeal and the Action, and all facts or alleged evidence that were or
could have been brought in those proceedings by the City or the Developer, and the
interpretation of the City's Land Development Regulations to exclude the (1) voids to
accommodate elevator shafts; (2) voids to accommodate mechanical/ventilation/trash shafts;
and (3) voids to accommodate stairwells, including voids to accommodate stairwells within
accessory garages (collectively, (1)-(3), the"Elements") from the calculation of floor area.
4. Release by the City. Except for performance required under the Development Agreement, as
amended, and this Settlement Agreement and in conjunction with and subject to the dismissal
of the BOA Appeal and the Action in accordance with Section 6 hereof,the City hereby forever
releases and discharges the Developer from each and every right, claim, debt, cause of action,
demand, suit, liability, or right of action of any nature whatsoever, whether asserted or
unasserted,known or unknown, involving,relating to or arising from the subject matter of the
BOA Appeal and the Action or the allegations of the BOA Appeal and the Action, and all facts
or alleged evidence that were or could have been brought in those proceedings by the City or
the Developer, and the interpretation of the City's Land Development Regulations to exclude
the Elements from the calculation of floor area for the Project.
5. Covenant Not to Sue. Developer,on behalf of itself and each of its members and David Martin
(individually) and Russell Galbut (individually) and each owner of any of the Identified
Properties (as hereinafter defined) in which either or both of David Martin or Russell Galbut
has any direct or indirect ownership interest(collectively, the"Developer Covenant Parties"),
hereby unconditionally covenants and agrees that neither Developer nor any of the Developer
Covenant Parties will: (a) seek to exclude the Elements from the calculation of floor area for
any of the Identified Properties based on the Board of Adjustment's November 1, 2019
interpretation excluding the Elements from the calculation of floor area; or(b) commence any
action, suit or proceeding against the City (including, without limitation, any agency or
regulatory body of the City) seeking to exclude the Elements from the calculation of floor area
for 1212 Lincoln Road and 100 Lincoln Road (the"Identified Properties").
6. Indemnity. In the event the owner of 1501 Collins Avenue commences any action, suit or
proceeding seeking to exclude the Elements (or any portion thereof) from the calculation of
floor area for any proposed development of 1501 Collins Avenue (the"1501 Collins Claim")
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and/or the owner of 7145 Carlyle Avenue commences any action, suit or proceeding seeking
to exclude the Elements (or any portion thereof) from the calculation of floor area for any
proposed development of 7145 Carlyle Avenue (the "7145 Carlyle Claim"), Developer shall
indemnify, defend (with legal counsel reasonably acceptable to the City) and hold the City
harmless from and against such claims, demands, causes of action, suits, proceedings, losses,
damages, liabilities, liens, judgments, fees, costs, expenses and other charges (including,
without limitation, reasonable attorneys' fees and costs through all trial, appellate and post
judgment levels and proceedings) related to either or both of the 1501 Collins Claim and the
7145 Carlyle Claim,up to the aggregate maximum not-to-exceed amount of$300,000.
7. Dismissal of the BOA Appeal and the Action. In conjunction with the completion of this
Settlement Agreement, within five (5) days after the City and Developer have executed the
Second Amendment and this Settlement Agreement, the City and Developer shall, along with
counsel, execute a stipulation for dismissal with prejudice of the BOA Appeal and the Action,
along with any other pleadings which may be required to effectuate the dismissal with
prejudice of the BOA Appeal and the Action, inclusive of all claims asserted therein, and
without recovery of attorneys' fees or costs, except as expressly provided in the Second
Amendment.
8. Predecessors, Successors, and Assigns. All persons or business entities granting releases
hereby include any assignee, predecessor in interest, or successor in interest of the respective
grantor. All persons or business entities released hereby include any predecessor in liability or
successor in liability for the released liability.
9. Representations and Warranties. It is acknowledged that Developer and City have read this
Settlement Agreement and have consulted with their respective legal counsel, or knowingly
chose not to consult legal counsel, before executing same; the Parties have relied upon their
own judgment and/or that of their respective legal counsel in executing this Settlement
Agreement and have not relied on or been induced by any representation, statement or act by
any other Party except for the recitals contained herein, which each Party acknowledges and
agrees are specific representations by such Party; each Party enters into the Settlement
Agreement voluntarily,with full knowledge of its significance; and the Settlement Agreement
is in all respects complete and final. The Parties warrant and represent that(a) each is the sole
owner of the Parties'respective rights and claims against any of the other parties, and they have
not assigned, transferred, or conveyed any rights or claims they may have against any of the
other parties to any other person or entity; and (b) each of the parties has full power and
authority to enter into an perform this Settlement Agreement without the consent of or duty to
notify any other person, entity, or regulatory authority. Developer, on behalf of itself and each
of the.Developer Parties, covenants and agrees that it will not take or permit any of the
Developer Parties to take any action to intentionally frustrate the purpose of this Settlement
Agreement. City, on behalf of itself and each of the City Parties, covenants and agrees that it
will not take or permit any of the City Parties to take any action to intentionally frustrate the
purpose of this Settlement Agreement.
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10. Legal Fees and Costs. Each of the Parties shall pay its own respective costs and attorneys' fees
incurred with respect to the BOA Appeal and the Action and this Settlement Agreement,except
as provided in the Second Amendment.
11. Entire Settlement Agreement.This Settlement Agreement constitutes the entire settlement with
respect to the subject matter addressed herein and supersedes any prior written and/or verbal
agreements between the Parties.
12. Amendments. This Settlement Agreement may not be orally modified. This Settlement
Agreement may only be modified in a writing signed by all of the Parties.
13. Preparation of Settlement Agreement and Construction. This Settlement Agreement has been
prepared jointly by each of the Parties, with a full opportunity for the Parties to negotiate its
terms. Accordingly, any rule of law or legal decision that would require interpretation of any
ambiguities in this Settlement Agreement against the Party that has drafted it is not applicable
and is hereby waived.
14. Waiver and Modification. The failure of the Parties to insist, in any one or more instances,
upon the strict performance of any of the covenants of this Settlement Agreement, or to
exercise any option herein contained, shall not be construed as a waiver, or a relinquishment
for the future of such covenant or option,but shall continue and remain in full force and effect.
15. Further Necessary Actions. To the extent that any document is required to be executed by any
party to effectuate the purposes of this Settlement Agreement, the party will execute and
deliver such document to the requesting party.
16. Counterparts. This Settlement Agreement may be executed in any number of counterparts,
each of which shall be deemed an original,but all of which together shall constitute one in the
same instrument. A copy of this Settlement Agreement transmitted by facsimile shall be
deemed an original.
17. Binding Agreement. This Settlement Agreement is binding on the Parties hereto and the
Parties agree to execute any and all documents necessary and consistent with applicable law,
to ratify, confirm, and perform the terms and provisions of this Settlement Agreement. The
terms of this Settlement Agreement shall be binding on and inure to the benefit of the Parties,
their legal representatives, members, constituents, successors, assigns, subsidiaries and
affiliates, and shall supersede all prior discussions, negotiations and agreements among the
Parties, concerning the terms of this Settlement Agreement.
18. Jurisdiction and Choice of Law. This Settlement Agreement shall be construed, enforced and
interpreted in accordance with the laws of the State of Florida. By this Settlement Agreement,
Developer and City submit to the jurisdiction of the Circuit Court of the Eleventh Judicial
Circuit in and for Miami-Dade County, Florida for any action to enforce or interpret this
Settlement Agreement.
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19. Severability. In the event any provision, term or condition of this Settlement Agreement, on
behalf of either Party hereto shall be inapplicable, invalid, illegal or unenforceable in any
respect, the remainder of this Settlement Agreement and application of such provisions, terms
or conditions shall not be effected thereby, and shall be enforced to the fullest extent permitted
by law.
20. City's Sovereign Immunity. Nothing contained in this Settlement Agreement is intended to,
or shall be construed as, a waiver of the City's sovereign immunity as provided under the laws
of the State of Florida.
21. No Third-Party Beneficiaries. The Parties expressly acknowledge that it is not their intent to
create or confer any rights or obligations in or upon any third person or entity under this
Settlement Agreement. None of the Parties intend to directly or substantially benefit a third
party by this Settlement Agreement. The Parties agree that there are no third party beneficiaries
to this Settlement Agreement and that no third party shall be entitled to assert a claim against
any of the Parties based upon this Settlement Agreement. Nothing herein shall be construed
as consent by an agency or political subdivision of the State of Florida to be sued by third
parties in any manner arising out of this Settlement Agreement, or other obligations, whether
known or unknown to the Parties.
The Parties approve the above terms and voluntarily enter into this Settlement Agreement to
settle the BOA Appeal and the Action between them as provided herein, and as of the date first
entered above.
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,
IN WITNESS WHEREOF, the Parties have set their hands and seals on the day and date
first written above:
WITNESSES TCH 500 ALTON, LLC, a Delaware limited liability •
company
d' ----. By: T 500 ALTON MEMBE', LLC, a Florida
limited Iia_' •.• c. p•••y,a manager
P 'nt Name: r��cnrstZ Wiao .,i/BA,6-6
By: J d
Day.•`M. 'n, . M. .:ger
Print Name: /) 'i C I'A f') lo,U.SO
By: PARK ON FIFTH, LLC, a Florida limited
liability com'any, a manager
Pm e: a...; c\ Tc e c e le..... By: / �/
� /�ael Sheitelman,Vice President
Print Name: pot s A 4.C2Sh
STATE OF FLORIDA )
)ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me, by means of physical presence or 0
online notarization,this ins
of March, 2020, by DAVID MARTIN, as a Manager of T 500 ALTON
MEMBER, LLC, a Florida limited liability company, a manager of TCH 500 ALTON, LLC, a Delaware
limited liability company, on behalf of said company. He is .- sonally known to me or produced valid
Florida driver's licenses as identification. e�. _
Public, State of Florida
My commission e:11:;:;_:--• -- GRAVER Print Name: i ' 61 LLU.tJ
,,�,,,, DENISE 849973
�'` '': MY COMMISSION#".2--G'22749:1"112°24-
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STATE OF FL• 4, �,,, �______uNolary_,
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COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me, by means of physical presence or ❑
online notarization, this c; day of March, 2020,by MICHAEL SHEITELMAN, as a Vice President of
PARK ON FIFTH, LLC, a Florida limited liability company, a manager of TCH 500 ALTON, LLC, a
Delaware limited liability company,on behalf of said company. He is pers o..ly known to me or produced
valid Florida driver's licenses as identification. ,, •
Notary Public, '.tate of Florida
1kI - Print Name: Ct.i2-+--a„._ 12_42_01, ✓vim
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THE CITY OF MIAMI BEACH,
FLORIDA, a political sub-division of the
State of Florida
By: (6... ,-_, --Z.— ................_
Name: Dan Gelber
Title: Mayor
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me, by means of J"physical
presence or ❑ online notarization, this jpl4 day of Feb(wiry, 2020, by Dan Gelber, as Mayor of
CITY OF MIAMI BEACH, FLORIDA, a municipal corpo/ation of the State of Florida, who is
personally known to m: or who has produced (type of
identification).
Name: A,,„,,,, Y70-2 /,
(Print N. r M , )rates
Notary Pu. is–State of Florida
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