20130605 SM2MIAMI BEACH
City Commission Meeting
SUPPLEMENTAL MATERIAL 2
City Hall, Commission Chambers, 3rd Floor, 1700 Convention Center Drive
June 5, 2013
Mayor Matti Herrera Bower
Vice-Mayor Jonah Wolfson
Commissioner Jorge R. Exposito
Commissioner Michael Gongora
Commissioner Jerry Libbin
Commissioner Edward L. Tobin
Commissioner Deede Weithorn
City Manager Jimmy L. Morales
City Attorney Jose Smith
City Clerk Rafael E. Granado
Visit us at www.miamibeachfl.gov for agendas and video "streaming" of City Commission Meetings.
ATTENTION ALL LOBBYISTS
Chapter 2, Article VII, Division 3 of the City Code of Miami Beach entitled "Lobbyists" requires the
registration of all lobbyists with the City Clerk prior to engaging in any lobbying activity with the City
Commission, any City Board or Committee, or any personnel as defined in the subject Code
sections. Copies of the City Code sections on lobbyists laws are available in the City Clerk's office.
Questions regarding the provisions of the Ordinance should be directed to the Office of the City
Attorney.
SUPPLEMENTAL AGENDA
C4 -Commission Committee Assignments
C4A Referral To The Finance And Citywide Projects Committee -Discussion Regarding The
Proposed Vacation Of The Alley Included In The Amended Plat Of The Aquarium Site
Resubdivision (500 Block Of Alton Road).
(Public Works)
(Memorandum)
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Supplemental Agenda, June 5, 2013
R7 -Resolutions
R7D A Resolution Approving A Settlement Agreement Between Seville Acquisition, LLC, And The City Of
Miami Beach, Concerning The Partial Demolition Of The Boardwalk And The Construction Of A
Beachwalk Behind The Marriott Edition Hotel At 29th Street And Collins Avenue, And Authorizing The
Mayor And City Clerk To Execute The Settlement Agreement, And Authorizing The City Manager And
City Attorney To Take Such Actions As May Be Necessary To Carry Out The Intent Hereof.
(City Attorney's Office)
(Draft Settlement Agreement)
2
~ MIAM!B
COMMISSION MEMORANDUM
TO: Mayor Matti Herrera-Bower and M bers oft e City Commission
FROM: Jimmy L. Morales, City Manager
_..\.----..,
DATE: June 5, 2013
SUBJECT: REFERRAL TO THE FINANCE ND CITYWIDE PROJECTS COMMITTEE -
DISCUSSION REGARDING THE PROPOSED VACATION OF THE ALLEY
INCLUDED IN THE AMENDED PLAT OF THE AQUARIUM SITE RESUBDIVJSION
(600 BLOCK OF ALTON ROAD).
ADMINISTRATION RECOMMENDATION
Refer the item to the Finance and Citywide Projects Committee Meeting.
BACKGROUND
The developer of the Crescent Heights project that is proposed to occupy the entire 500 block of
Alton Road is requesting that the alley in this block be vacated. In exchange for the vacation,
the developer is proposing to make improvements to West Avenue including stormwater and
streetscape improvements.
Upon receipt of this request, the City procured an appraiser to determine the value of this alley
to the developer. The appraiser will deliver its value by June 5, 2013.
CONCLUSION
The Administration recommends that the Mayor and the City Commission refer the matter to the
Finance and Citywide Projects Committee meeting for discussion and further direction.
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m MliAMIBEACH ,.,.
COMMISSION MEMORANDUM
TO: .. bers of the City Commission
FROM:
cc:
DATE:
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING THE SETTLEMENT AGREEMENT BETWEEN
SEVILLE ACQUISITION, LLC, AND THE CITY OF MIAMI BEACH, CONCERNING THE
PARTIAL DEMOLITION OF THE BOARDWALK AND THE CONSTRUCTION OF THE
BEACHWALK BEHIND THE MARRIOTT EDITION HOTEL AT 29TH STREET AND
COLLINS AVENUE, AND AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE THE SETTLEMENT AGREEMENT, AND AUTHORIZING THE CITY
MANAGER AND CITY ATTORNEY TO TAKE SUCH ACTIONS AS MAY BE
NECESSARY TO CARRY OUT THE INTENT HEREOF.
Attached please find the proposed draft Settlement Agreement to accompany the subject
item in Wednesday's City Commission agenda. The Settlement Agreement provides in
part:
1. For the issuance of permits now for demolition of the boardwalk so as not to delay
Seville's construction of its hotel project, but delays construction of the beachwalk
until December 1, 2013, to give time to pursue Florida Department of Environmental
Protection (FDEP) approval of increased elevation and alternative jogger-friendly
surfaces for the beachwalk (the "Elevated Site Plan").
2. Seville's contractor must certify that construction can be completed by March 31,
2014, or the parties must discuss alternatives to the design.
3. The City agrees to pay the increased costs of permitting and construction to
accommodate the Elevated Site Plan.
4. If the Elevated Site Plan contains design changes that materially affect the Marriott
Edition Hotel project, as defined in the agreement, and the parties do not resolve
these differences, then the Seville can construct the beachwalk according to the
original plan.
5. If disagreements arise from the Settlement Agreement the parties agree to use
mediation, but this cannot extend the agreed timetable.
Please contact me if you need to discuss this further. An attorney-client session during the
Wednesday City Commission meeting has been scheduled to discuss the matter further.
JS/GMH/s
Attachment
F:\ATTO\HELG\LITIGATION\Seville-boardwalk\Memo to Commn resettlement agreement 6-3-13.docx
Agenda Item R 1 D _ .
Date b-$-13 !
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DRAFT 6.3.2013 -vers. 3
DISCLAIMER
(TO BE DELETED UPON ADOPTION
BY CITY COMMISSION)
THIS DRAFT SETTLEMENT AGREEMENT ("DRAFT")
BETWEEN THE CITY OF MIAMI BEACH ("CITY") AND
SEVILLE ACQUISITION, LLC ("SEVILLE") HAS BEEN
PREPARED FOR PURPOSES OF NEGOTIATING AND
COMPLETING A GLOBAL SETTLEMENT TRANSACTION.
THE DRAFT PROVISIONS ARE INTENDED TO BE A PART OF A
DISCUSSION OF OUTSTANDING ISSUES BETWEEN THE CITY
AND SEVILLE. THE INDIVIDUAL PROVISIONS ARE INTENDED
TO BE READ AND UNDERSTOOD AS "IN PARI MATERIA" WITH
EACH AND EVERY OTHER PROVISION OF THE DRAFT.
NO INDIVIDUAL PROVISION IS INTENDED TO REPRESENT A
PROPOSED TERM, FINDING, OR CONDITION OF AN
AGREEMENT, EXCEPT IN THE CONTEXT OF EACH AND
EVERY OTHER PROVISION IN THE DRAFT, AND ONLY IF
INCLUDED IN A WRITTEN AGREEMENT EXECUTED BY BOTH
PARTIES.
MOREOVER, THE DRAFT PROVISIONS HAVE BEEN
PREPARED BY SHUBIN & BASS, P.A., AND DO NOT REPRESENT
OFFICIAL OR UNOFFICIAL POSITIONS OF SEVILLE, OR THE
CITY, ON ANY PARTICULAR SUBJECT UNTIL A FINAL
AGREEMENT IS EXECUTED.
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DRAFT 6.3.2013 -vers. 3
SETTLEMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this_ day of , 2013,
by and between the CITY OF MIAMI BEACH, a Florida municipal corporation
("City") and SEVILLE ACQUISITION, LLC, a Delaware limited liability company
("Seville") (collectively, the "Parties").
RECITALS
WHEREAS, the City is a municipal corporation organized and existing under the
laws of the State of Florida with all powers granted to it by its Charter, the Florida
Constitution, and general law;
WHEREAS, Seville is a Delaware limited liability company that is authorized to
conduct business in Florida and is the owner of real property more particularly described
in Exhibit "A" and approximately located at 2901 Collins Avenue in Miami Beach,
Florida (the "Property");
WHEREAS, Seville has pursued the redevelopment of the Property since 2010,
beginning construction in September 2011 (the "Seville Redevelopment");
WHEREAS, Seville obtained all of the required development approvals from the
City in 2011 for the Seville Redevelopment, which development approvals specifically
contemplated and conditioned approval of the Seville Redevelopment on the demolition
of the existing boardwalk and the construction of a new beach walk (at Seville's sole cost
and expense) per the City's request and pursuant to Policy 5.1 of the Recreation and
Open Space Element of the City's 2025 Comprehensive Plan;
WHEREAS, to sequence the remaining construction of the Seville
Redevelopment, to minimize delays, and to complete the Seville Redevelopment pursuant
to the City-approved design, Seville has requested a permit on or before June 1, 2013 for
the demolition of the existing boardwalk located between the Property and the beach and
the construction of a new paved beach walk (the "Beach Walk Permit");
WHEREAS, Seville submitted its application for the Beach Walk Permit on
November 7, 2012, however, in April 2013, on May 6, 2013, on May 9, 2013, and again
on May 20, 2013 the City advised Seville that it had temporarily suspended all beach
walk permitting while it reevaluated its beach walk policy and, as such, it could not yet
issue the Beach Walk Permit to Seville;
WHEREAS, a dispute has arisen between the City and Seville with respect to the
Beach Walk Permit, and as a result of that dispute, and to avoid damage and delay in
construction, Seville filed that certain lawsuit styled as Seville Acquisition, LLC v. City
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DRAFT 6.3.2013 -vers. 3
of Miami Beach, Miami-Dade County Circuit Court Case No. 13-17539-CA-31 (the
"Lawsuit"), seeking a writ mandating the City to immediately issue the Beach Walk
Permit;
WHEREAS, both Seville and the City wish to fully, completely, and amicably
settle and resolve all potential claims between them with respect to the Beach Walk
Permit -with neither admitting liability or waiving a defense or claim -without incurring
the needless costs and expense of litigation and/or administrative claims and proceedings;
WHEREAS, both Seville and the City represent and warrant that they have the
authority necessary to enter into this Agreement and do so in accordance with all
necessary procedures; and
WHEREAS, both Seville and the City prefer to avoid the uncertainties and
expense of the Lawsuit and instead desire to set forth in this Agreement, without
establishing precedent, the terms and conditions of the settlement of the Lawsuit, m
exchange for the consideration described herein.
NOW THEREFORE, in consideration of the mutual covenants entered into
between Seville and the City, and in consideration of the benefits to accrue to each, the
receipt and sufficiency of which is hereby acknowledged, it is agreed as follows:
AGREEMENT
1. Recitals. The above recitals are true and correct and are incorporated
herein. All Exhibits to this Agreement are hereby deemed a part hereof.
2. Statement of Intent. It is the intent of Seville and the City that this
Agreement shall resolve all disputes regarding the issuance of the Beach Walk Permit.
3. No Admission of Liability. The City and Seville acknowledge that they
are entering into this Agreement to promote remedial measures between the two entities
which have shared an otherwise professional and productive working relationship and to
avoid the cost and other consequences to the Parties of the Lawsuit, and for the other
considerations herein set forth. In making this Agreement, neither the City nor Seville
admit liability, negligence, or responsibility in any matter related to or arising from the
Beach Walk Permit dispute at issue in the Lawsuit.
4. Effective Date. This Agreement shall become effective only when all of
the following have occurred: (i) it is signed by the authorized agent of each Party; and (ii)
it is approved by the City in accordance with applicable law and the City adopts the
Resolution in the form substantially attached as Exhibit "B" (collectively, the "Effective
Date").
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DRAFT 6.3.2013 -vers. 3
5. Dismissal of Lawsuit. On the first business day after the issuance of the
Beach Walk Permit pursuant to Section 6 of this Agreement, Seville shall file a Notice of
Voluntary Dismissal Without Prejudice of the Lawsuit, in the form substantially attached
as Exhibit "C."
6. Beach Walk Permit and Demolition. On the first business day following
the Effective Date, the City shall issue the Beach Walk Permit authorizing: (i) the
demolition of the existing boardwalk; and (ii) the construction of the new at-grade paved
beach walk, per Seville's November 7, 2012 application, provided that construction of a
new at-grade paved beach walk will not begin before December 1, 2013 (the
"Construction Commencement Date").
7. MOT Plan. Seville agrees to work with the City, using its reasonable
efforts, to amend its means of travel plan (the "MOT Plan"), which provides an alternate
route for boardwalk pedestrians to use during and after the demolition of the existing
boardwalk, and before the construction of the new beach walk is complete, to be ADA
compliant.
8. Elevated Site Plan.
A. The City shall have the right (and Seville shall reasonably
cooperate with the City's efforts at no additional cost to Seville) to work
with the State of Florida Department of Environmental Protection ("DEP")
to develop alternative site plans for the proposed beach walk to be elevated
approximately one (1) to two (2) feet in certain portions to allow views of
the ocean so long as the elevation of the beach walk does not materially
impact any other aspect of the Seville Redevelopment (the "Elevated Site
Plan"). Impact on the access and egress points to and from the Property,
the addition of guard rails/railings on or along the beachwalk necessitated
by the elevation of the beach walk, overburdening the Property with run-off
due to the grading for the Elevated Site Plan, a delay in completing the
Seville Redevelopment (including if the completion date for the
improvements contemplated by the Elevated Site Plan is estimated to be
after March 31, 20 14 ), and impact on the safety or security of the Property
shall all be deemed to materially impact the Seville Redevelopment.
B. If the City obtains all necessary permits and approvals from
DEP, the City, and any other agency with jurisdiction over the Elevated
Site Plan for the construction of the Elevated Site Plan by the Construction
Commencement Date, the City shall issue a permit for the construction of
the Elevated Site Plan on or before the Construction Commencement Date
and Seville agrees to construct the Elevated Site Plan so long as the costs
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DRAFT 6.3.2013 -vers. 3
associated with the Elevated Site Plan do not exceed the cost of the at-grade
paved beach walk authorized by the Beach Walk Permit (issued pursuant to
Section 6 of this Agreement) or the City has provided the funds for the
additional costs.
C. If the City does not obtain all of the necessary permits and
approvals from DEP, the City, and any other agency with jurisdiction over
the Elevated Site Plan for the construction of the Elevated Site Plan, or has
not provided the funds for the additional costs as described in Section 8(B)
by the Construction Commencement Date, Seville shall have the right to
commence construction of the at-grade paved beach walk authorized by the
Beach Walk Permit (issued pursuant to Section 6 of this Agreement).
D. The costs associated with the construction of the Elevated
Site Plan shall be mutually agreed upon by the Parties. The Parties agree to
explore reasonable alternatives in order to mutually agree upon these costs.
If the City funds such additional costs, such work shall be performed by
Seville's general contractor or its subcontractors as per the agreed upon
plan. If the Parties, acting in good faith, are unable to mutually agree upon
these costs by the Construction Commencement Date Seville shall have the
right to commence construction of the at-grade paved beach walk
authorized by the Beach Walk Permit (issued pursuant to Section 6 of this
Agreement).
E. If Seville's general contractor determines that the completion
date for the improvements contemplated by the Elevated Site Plan is
estimated to be after March 31, 2014, the Parties agree to explore
reasonable alternatives before the Construction Commencement Date to
complete such improvements by March 31, 20 14 (subject to the materiality
standard in Section 8(A) of this Agreement).
F. If the City and Seville agree that a final permit from DEP, the
City, and any other agency with jurisdiction over the Elevated Site Plan, is
imminent, a one-time extension of the Construction Commencement Date
of no more than seven (7) days will not be unreasonably withheld by either
Party.
9. Beach Walk Surface.
A. Seville shall work with the City and DEP to explore and for
the City to obtain approval from DEP (to the extent reasonably possible) of
an alternative surface and/or coating for the beach walk which provides a
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DRAFT 6.3.2013 -vers. 3
'Jogging-friendly" surface that mitigates the impact on an average jogger's
body (i.e., their joints) while jogging on the beach walk.
B. Seville shall have the right to construct the beach walk with
the previously approved surface and shall be released from its obligations
to explore and seek approval for the alternative surface if: (i) Seville and
the City do not obtain approval for an alternative "jogging-friendly" surface
by the Construction Commencement Date; and (ii) Seville's costs to design,
obtain, install and maintain the alternative surface or coating exceeds such
costs for the previously approved beach walk surface and the City has not
provided the funds for these additional costs.
10. Default.
A. The occurrence of any of the following shall constitute an
event of default ("Event of Default") under this Agreement:
(i) The City's failure to issue the Beach Walk
Permit pursuant to Section 6 of this Agreement ("Default A");
(ii) The City's imposition of any material condition
to the Beach Walk Permit that materially frustrates the ability
to develop the Property as contemplated herein, or delays or
increases the costs of the Seville Redevelopment ("Default
B");
(iii) The City's revocation of the Beach Walk Permit
or any other similar action which impedes the ability to
perform the work approved by the Beach Walk Permit or
otherwise contemplated herein ("Default C");
(iv) A third-party challenge regarding the issuance
of the Beach Walk Permit pursuant to Section 6 of this
Agreement which impedes the ability to perform the work
approved by the Beach Walk Permit. For purposes of this
section, a "challenge" shall be broadly construed to include
any administrative, judicial, quasi-judicial, legislative, or
other like petitioning activity directed at any aspect of the
City's issuance of the Beach Walk Permit ("Default D").
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B. If and when Seville determines pursuant to the terms of this
Agreement that an Event of Default has occurred, Seville possesses the
following remedies:
(i) If and when Seville determines that Default A,
B, or C has occurred, Seville may, at its sole and absolute
discretion, terminate this Agreement. Seville shall be entitled
to defend its right to the Beach Walk Permit.
(ii) If and when Seville determines that Default D
has occurred: (a) Seville may, at its sole and absolute
discretion, terminate its obligations pursuant to Sections 8 and
9 of this Agreement, without regard to the pendency of
litigation or any expenditure of money by the City for such;
(b) Seville shall be entitled to defend its right to the Beach
Walk Permit; and (c) the City shall actively and individually
defend the issuance of the Beach Walk Permit.
C. The remedies provided in Section 10(B) are cumulative and
not exclusive of any other rights or remedies that may be available to the
parties, whether provided by law, equity, statute, or otherwise.
D. In the event Seville exercises its right, pursuant to Section
10(B), to terminate its obligations under all or part of this Agreement, each
Party shall bear its own costs and attorneys' fees associated with that
termination, and shall be released from any liability associated therewith.
11. Construction. The language used in this Agreement will be deemed to be
the language chosen by all of the Parties to express their mutual intent, and no rule of
strict construction shall be applied against any Party. Any reference to any federal, state,
local or foreign statute or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise.
12. Expenses. Except as otherwise specified, each of the Parties will bear its
own costs and expenses (including legal fees and expenses) incurred in connection with
the negotiation and consummation of this Agreement and the transactions contemplated
hereby.
13. No Third Partv Beneficiaries. Unless expressly stated herein to the
contrary, nothing in this Agreement, whether express or implied, is intended to confer
any rights or remedies under or by reason of this Agreement on any persons other than
the Parties hereto and their respective administrators, executors, other legal
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representatives, heirs, successors, officers, directors, owners, and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligation or liability of
any third persons to any Party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over or against any Party to this Agreement.
14. Joint Defense. In the event that a challenge is brought to the Beach Walk
Permit or this Agreement (both collectively, the "Approvals"), or a challenge is brought
to any necessary and implementing action required by the Approvals, the City and Seville
each agree individually to use their best efforts to actively defend any and all such
challenges. For purposes of this paragraph, a challenge shall be broadly construed to
include any administrative, judicial, quasi-judicial, legislative, or other action that
impedes the ability to promptly perform the work approved by the Beach Walk Permit. It
is expressly recognized that the duty to defend required by this paragraph shall survive
Seville's exercise of its termination rights pursuant to Section 1 O(B).
15. Relationship of the Parties. The Parties hereto acknowledge that they are
separate and independent entities and nothing herein shall be deemed to create a joint
venture, association, partnership, agency or employment relationship between the two.
Neither party shall have the power to act in the name of, on behalf of, or incur obligations
binding upon the other Party. Neither Party shall acquire an interest in the business or
operations of the other by virtue of this Agreement. Furthermore, neither Party endorses
or warrants the activities of the other or their business, business practices, projects,
products, services, or other activities.
16. Consideration. The City and Seville agree that the consideration to them
set forth herein constitutes adequate and ample consideration for the rights and claims
they are waiving under this Agreement, and for the obligations imposed upon them by
virtue of this Agreement.
17. Release and Waiver of Claims.
A. In exchange for the consideration described in this
Agreement, Seville, its agents, representatives, officers, directors,
employees, attorneys, affiliates, parents, subsidiaries, successors, and
assigns, irrevocably, knowingly, and voluntarily releases, waives, and
forever discharges any and all claims, demands, actions, or causes of action,
of any kind whatsoever, known or unknown, foreseen or unforeseen,
foreseeable or unforeseeable, and any consequences thereof, which it has or
may have against the City from the beginning of the world until the
Effective Date of this Agreement, in connection with the issuance of the
Beach Walk Permit as alleged or that could have been alleged in the
Lawsuit.
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B. In exchange for the consideration described in this
Agreement, the City irrevocably, knowingly, and voluntarily releases,
waives, and forever discharges any and all claims, demands, actions, or
causes of action, of any kind whatsoever, known or unknown, foreseen or
unforeseen, foreseeable or unforeseeable, and any consequences thereof,
which it has or may have against Seville, its agents, representatives,
officers, directors, employees, attorneys, affiliates, parents, subsidiaries,
successors, and assigns, from the beginning of the world until the Effective
Date of this Agreement, in connection with the issuance of the Beach Walk
Permit as alleged or that could have been alleged in the Lawsuit.
C. The mutual releases stated in sections 17(A) and 17(B) above
do not release the Parties from their obligations under this Agreement.
D. EACH PARTY ACKNOWLEDGES, AGREES, AND
UNDERSTANDS THAT THIS RELEASE IS A FULL AND FINAL
BAR TO ANY AND ALL CLAIMS IN CONNECTION WITH THE
ISSUANCE OF THE BEACH WALK PERMIT THAT THEY HAD,
HAVE, OR MAY IN THE FUTURE HAVE AGAINST EACH
OTHER THROUGH THE EFFECTIVE DATE OF THIS
AGREEMENT.
EACH PARTY HAS CONSULTED WITH AND HAS BEEN
ADVISED BY AN ATTORNEY PRIOR TO SIGNING THIS
AGREEMENT.
18. Enforcement of Settlement Agreement. None of the Parties herein are
releasing their right to bring an action to enforce the terms of this Agreement. If any
legal action or other proceeding is brought for the enforcement of this Agreement or
because of any alleged dispute, breach, default or misrepresentation in connection with
any provisions of this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees, court costs and all expenses incurred in that action or
proceeding, even if not taxable as court costs (including, without limitation, such fees,
costs and expenses incident to appeals), in addition to any other relief to which such party
may be entitled.
19. Conflicts and Amendment of Prior Approvals. In the event of conflicts
between the terms of this Agreement, and/or a previously imposed condition of
development approval, the provisions of this Agreement shall control. With respect to
the design and construction of the beach walk addressed herein, the City's staff has
determined that the following approvals are consistent with the terms of this Agreement,
including without limitation, Sections 7, 8, and 9 herein: (A) June 14, 2011 Historic
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Preservation Board Order, File No. 7249; (B) June 28, 2011 Planning Board Order, File
No. 2013; (C) September 9, 2011 Board of Adjustment Order, File No. 3515; and (D)
September 13, 2011 Historic Preservation Board Order, File No. 7249.
20. Severability. If any provision of this Agreement may be construed in two
or more ways, one of which would render the provision invalid or otherwise voidable or
unenforceable and another of which would render the provision valid and enforceable,
such provision shall have the meaning which renders it valid and enforceable. If any
provision hereunder shall be held unenforceable by a court of competent jurisdiction,
then the remaining provisions of this Agreement shall continue in full force and effect
without being impaired in any way.
21. Survival. All covenants, agreements, representations and warranties made
herein or otherwise made in writing by any party pursuant hereto shall survive the
execution and delivery of this Agreement and the consummation of the transactions
contemplated hereby.
22. Waivers. The failure or delay of any Party at any time to require
performance by another Party of any provision of this Agreement shall not affect the right
of such Party to require performance of that provision or any other provision hereunder.
Any waiver by any Party of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach of such provision, a waiver
of the provision itself or a waiver of any other right or remedy under this Agreement.
Notice to or demand on any Party in any circumstance shall not, of itself, constitute any
other or further notice or demand in similar or other circumstances. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
23. Complete Agreement. This Agreement, and all the terms and provisions
contained herein, including without limitation the Exhibits hereto, constitute the full and
complete agreement between the Parties hereto to the Effective Date with respect to the
matters expressly set forth herein, and supersede and control over any and all prior
agreements, understandings, representations, correspondence and statements, whether
written or oral. Any provision of this Agreement shall be read and applied in pari
materia with all other provisions hereof.
24. Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed, other than by a writing signed by both Parties, making
specific reference to this Agreement.
25. Captions. The section headings and captions of this Agreement are for
convenience and reference only and in no way define, limit, or describe the scope or
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intent of this Agreement or any part thereof, or in any way affect this Agreement or
construe any article, section, subsection, paragraph or provision hereof.
26. Holidays. It is hereby agreed and declared that whenever a notice or
performance under the terms of this Agreement is to be made or given on a Saturday or
Sunday or on a legal holiday observed by the City, it shall be postponed to the next
following business day.
27. Public Purpose. The City and Seville acknowledge and agree that this
Agreement satisfies, fulfills, and is pursuant to and for a public and municipal purpose,
and is in the public interest, and is a proper exercise of the City's power and authority.
28. Notices. The Parties designate the following persons as representatives to
receive any notices with regard to this Agreement:
For the City:
With a copy to:
For Seville:
With a copy to:
With a copy to:
Jimmy L. Morales
City of Miami Beach, City Manager
1700 Convention Center Drive
Miami Beach, Florida 33139
Jose Smith, Esq.
City of Miami Beach, City Attorney
1700 Convention Center Drive, Fourth Floor
Miami Beach, Florida 33139
Seville Acquisition, LLC
c/o Marriott International, Inc.
10400 Fernwood Road
Bethesda, Maryland 20817
Attn: Regina A. Nelson, Dept. 52/923
John K. Shubin, Esq.
Shubin & Bass, P .A.
46 S.W. First Street, Third Floor
Miami, Florida 33130
Michael Larkin, Esq.
Bercow, Radell & Fernandez, P.A.
Wachovia Financial Center
200 S. Biscayne Boulevard, Suite 850
Miami, Florida 33131
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29. Successors in Interest. The obligations and benefits of this Agreement
shall inure to all successors in inter~st to the Parties to this Agreement.
30. Further Assurances.
A. The Parties agree to execute and deliver from time to time
such documents, and to perform all actions which may be necessary to
effectively and completely carry out the intended effect of this Agreement,
including but not limited to, defending the Agreement from legal or
administrative challenges.
B. The City agrees, from the Effective Date of this Agreement,
that nothing contained herein or in the Lawsuit shall be the basis for future
downgrading or disadvantage of Seville as an applicant or petitioner of
government redress.
31. Exhibits. Each Exhibit referred to and attached to this Agreement is an
essential part of this Agreement. The Exhibits and any amendments or revisions thereto,
even if not physically attached hereto, shall be treated as if they are part of this
Agreement and incorporated herein.
32. Technical Amendments. In the event that due to minor inaccuracies
contained herein or any Exhibit attached hereto or any other agreement contemplated
hereby, or due to changes resulting from technical matters arising during the term of this
Agreement, the Parties agree that amendments to this Agreement required due to such
inaccuracies, unforeseen events or circumstances which do not change the substance of
the Agreement, or prejudice either Party, may be made and incorporated herein.
33. Execution. The execution, delivery, and performance of this Agreement
have been duly and validly authorized by all necessary corporate representatives of
Seville and all necessary officials of the City. This Agreement constitutes, and when
executed and delivered will constitute, a valid and binding obligation of the Parties
enforceable in accordance with the terms set forth herein. The Parties agree that this
Agreement may be executed in counterpart originals with the same force and affect as if
fully and simultaneously executed as a single original document. A facsimile or
electronic copy of this Agreement and any signatures thereon shall be considered for all
purposes as originals.
34. Florida Law. This Agreement shall be governed by, construed, and
enforced in accordance with, the laws of the State of Florida. Either of the Parties hereto
may enforce the terms of this Agreement in Miami-Dade County Circuit Court.
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DRAFT 6.3.2013 -vers. 3
35. Time is of the Essence. Time is of the essence for each and every
provision of this Agreement.
36. Preservation of Rights. The City and Seville further acknowledge and
agree that certain provisions of this Agreement will require the City and/or its boards,
departments or agencies, acting in their government capacities, to consider governmental
action as set forth herein. The City and Seville acknowledge and agree that all such
actions undertaken by the City shall be undertaken in strict accordance with established
requirements of the general laws of the State of Florida and City ordinances or
regulations. Nothing in this Agreement or in the City's and Seville's acts or omissions in
connection herewith shall be deemed in any manner to waive, limit, impair, or otherwise
affect the authority of the City in the discharge of its police power or governmental
power expressly including the land use and zoning power.
3 7. Mediation.
A. Notwithstanding anything to the contrary herein, no civil
action with respect to any dispute, disagreement, claim or controversy
arising out of or relating to any provision of this Agreement (the "Dispute")
may be commenced until the matter has been submitted to JAMS, or its
successor, for non-binding mediation (the "Mediation"). Either Party may
commence the Mediation by providing to JAMS and the other Party a
written request for the Mediation, setting forth the subject of the Dispute
and the relief requested immediately after the occurrence of the Dispute.
The particular mediator selected shall be subject to agreement between the
Parties. The Mediation shall occur within 10 days of the Dispute, unless
otherwise agreed by the Parties. The Parties agree to share equally in the
costs of the mediation. Either Party may seek equitable relief prior to the
Mediation to preserve the status quo pending the completion of the
Mediation.
B. The Mediation shall not extend the deadlines in Sections 6, 8,
and 9 of this Agreement as related to the Construction Commencement
Date. To illustrate the purpose of this section, if mediation is commenced
pursuant to this Section regarding any of the obligations contained in
Sections 6, 8, and/or 9, including without limitation, the Elevated Site Plan,
the permitting of the Elevated Site Plan, the costs associated with the
Elevated Site Plan, the estimated completion date for the improvements
contemplated by the Elevated Site plan, the alternate beach walk surface,
the permitting of the alternate beach walk surface, and/or the costs
associated with the alternate beach walk surface, and the Mediation has not
occurred or has not resolved the Dispute by the Construction
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DRAFT 6.3.2013 -vers. 3
Commencement Date, Seville shall retain its rights to proceed as provided
for in paragraphs 6, 8, and 9.
[Balance of Page Intentionally Left Blank-Signature Page(s) to Follow]
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DRAFT 6.3.2013 -vers. 3
IN WITNESS THEREOF, the Parties hereto have caused the execution of this
Agreement by their duly authorized officials as of the day and year first written above.
Signed, sealed and delivered in the presence of:
STATE OF FLORIDA )
) ss
COUNTY OF MIAMI-DADE)
CITY OF MIAMI BEACH
By: ____________________ _
Matti Herrera Bower
Mayor
The foregoing instrument was acknowledged before me this _ day of __ _
2013, by MATTI HERRERA BOWER, the MAYOR of the CITY OF MIAMI
BEACH, who is _ personally known to me, or who has produced
, as identification. -----------------
Notary Seal
ATTEST:
By: ____________________ _
Rafael E. Granado
City Clerk
15
Notary Public, State of Florida
Print Name: ----------
My Commission Expires: ___ _
APPROVED AS TO FORM AND
LANGUAGE & FOR EXECUTION
By: ____________________ _
Jose Smith, Esq.
City Attorney
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Witness:
Print Name: --------
STATE OF MARYLAND )
) ss
COUNTY OF MONTGOMERY)
DRAFT 6.3.2013 -vers. 3
SEVILLE ACQUISITION, LLC
By: Courtyard Management Corporation,
its sole member
By: __________ _
Timothy J. Grisius
Vice President
The foregoing instrument was acknowledged before me this _ day of __ _
2013, by TIMOTHY J. GRISIUS, the VICE PRESIDENT of COURTYARD
MANAGEMENT CORPORATION, the sole member of SEVILLE ACQUISITION,
LLC, a Maryland limited liability company, who is _personally known to me, or who
has produced , as identification.
Notary Seal
16
Notary Public, State of Maryland
Print Name: --------
My Commission Expires: ___ _
21
Exhibit A:
Exhibit B:
Exhibit C:
DRAFT 6.3.2013 -vers. 3
SCHEDULE OF EXHIBITS
Property Legal Description
Resolution Adopting Agreement
Notice of Voluntary Dismissal Without Prejudice
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