R7O-Execute Settlement Agmt- MB Community Church Inc And S Beach Tristar V CM19r5.20r5
OFFICE OF THE CITY ATTORNEY MEMORANDUM
TO: Mayor Philip Levine and Members of the City Commission
FROM: Raul Aguila, City Attorneyf,. ,L Cy,(-
DATE: March 11,2015
SUBJECT: Settlement Agreement Miami Beach Community Church, lnc. (MBCC)
and South Beach Tristar, LLC (Tristar) v. City Of Miami Beach (City), et al, under
Circuit Court Appellate Case No.: 14-473 AP fiower tribunal case no: HPB SM 14-
003; HPB file no.: 74241.
TITLE: A RESOLUTION OF THE MAYOR AND CIry COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, AUTHORIZING THE CITY MANAGER TO
EXECUTE THE SETTLEMENT AGREEMENT ATTACHED HERETO AS
EXHIBIT A, lN THE MATTER ENTITLED: MIAMI BEACH COMMUNtry
CHURCH, INC. (MBCC) AND SOUTH BEACH TRISTAR, LLC (TRISTAR) V.
crry oF MIAM| BEACH (Clry), ET AL, UNDER CIRCUIT COURT APPELLATE
CASE NO.: CASE NO.: 14-473 AP [LOWER TRIBUNAL CASE NO: HPB SM
14-003; HPB FILE NO:74241.
Background:
Miami Beach Community Church, lnc. (MBCC) is the owner of real property located at
1620 DrexelAvenue, Miami Beach, Florida (the "Property"). South Beach Tristar, LLC
(Tristar), is the contract lessee of the Property pursuant to that certain Ground Lease
Agreement dated May 6, 2014, by and between MBCC and Tristar (the "Ground
Lease").
On or about February 2014 (and as amended on May 7,2014), MBCC and Tristarfiled
a Standard Application Form with the Planning Department of the City seeking a
Certificate of Appropriateness from the Miami Beach Historic Preservation Board
("HPB") for the construction of a new, two-story commercial building designed to co-
exist on the Property with the historically designated Church building. On May 13,
2014, after a properly noticed public hearing, the HPB unanimously granted the
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Agenda ltem
Date598
Certificate of Appropriateness. The HPB's Ordergranting certificate of appropriateness
was rendered on May 20, 2014 (the 'HPB Order Granting Certificate of
Appropriateness").
Thereafter, a few residents, including the Miami Design Preservation League (MDPL),
requested that the City Manager submit a petition for rehearing pursuant to City Code
Section 118-537 and, as a result, the City Manager took the request to the City
Commission. On May 21,2014, the City Commission, after public comment, voted to
have the City Manager file a rehearing request with the HPB. One week later, during a
subsequent City Commission meeting on May 28,2014, after public comment, MBCC
and the City Commission agreed that certain rental payments (2.5 million dollars) by
TriStar would be placed in a trust fund to administer the restoration work to the historic
church building on Miami Beach. Once the City Commission was assured that the
historic structure would be secured, repaired, and maintained, the City Commission
voted to rescind the authorization to the City Manager to submit the petition for
rehearing.
On June 5,2014, pursuant to City Code Section 118-537 , the MDPL filed a Motion for
Rehearing and sought rehearing of the HPB Order Granting Certificate of
Appropriateness. The HPB considered the Motion for Rehearing at a properly noticed
public quasi-judicial hearing on August 12, 2014. The HPB voted four to three against
rehearing and the Orderdenying rehearing was rendered on August 18,2014 (the
"HPB Order Denying Rehearing"). MDPL then sought review of the HPB's Order
Denying Rehearing. Pursuant to City Code Section 118-537(b), the appeal of this
decision was heard by a Special Master. The Special Master, Warren Bittner, after
having reviewed the arguments of the parties, entered a Decision and Order on
October 31,2014, which reversed the August 18th HPB Order Denying Rehearing
("Special Master Decision and Order").
Subsequent to the October 31, 2014 order a dispute arose between the Parties with
respect to the Special Master Decision and Order and, as a result of that dispute, and
to avoid damage and delay in construction, MBCC and Tristar made a formal request
for relief pursuant to Section 70.51, Fla. Stat. (the "Florida Land Use and Environmental
Dispute Resolution Act" or "FLUEDRA") and filed a Petition for Writ of Certiorari in the
Circuit Court of the Eleventh Judicial Circuit under Case No.: 14-473 AP [Lower
Tribunal Case No: HPB SM 14-003; HPB File No.: 74241to preserve MBCC and
Tristar's legal rights (the "Lawsuit"). Under the FLUEDRA claim MBCC and Tristar
allege a challenge to the City's Special Master process, as well as allege violations of
the Religious Land Use and lnstitutionalized Persons Act of 2000 (.RLUlPA") or the
Florida Religious Freedom Restoration Act of 1998 (FRFRA).
On February 17,2015, in compliance with all notice requirements, and pursuant to the
requirements of Section 50.71, Florida Statutes, the parties held mediation before
Murray Greenberg, the Special Magistrate selected by the Parties (the "special
Magistrate"), in which MBCC, Tristar, the City, and substantially affected parties
provided input to the process. During the February 17 ,2015 settlement conference a
proposal for settlement was presented and the parties agreed to take the proposal to
the City Commission for deliberation. The settlement agreement delineated in the
attached Exhibit A encompasses the substantive discussions from the February 17,
201 5 settlement conference.
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599
The Parties wish to fully, completely, and amicably settle and resolve all potential
claims and issues between them with respect to the Special Master Decision and Order
- with neither admitting liability or waiving a defense or claim - without incurring the
needless costs and expense of litigation and/or further administrative claims and
proceedings under FLUEDRA. The City believes the HPB Special Master exceeded his
authority; and, as the Parties prefer to avoid the uncertainties and expense of the
FLUEDRA proceedings and Lawsuit the parties seek to execute the attached
Settlement Agreement.
Material Terms of the Settlement Agreement:
1. The City agrees that, upon this Agreement becoming effective, it shall adjust,
supersede and annulthe Special Master Decision and Order (dated October 31,2014),
as authorized by S 70.51(17)(a), Fla. Stat.
2. MBCC and Tristar agree to comply with all conditions set forth in the HPB Order
Granting Certificate of Appropriateness.
3. MBCC and Tristar agree that the following shall become conditions of the
Building Permit:
A. Tristar shall, at its sole cost and expense, submit a structural report prior
to submitting or as part of, its Building Permit application, regarding the
structural integrity of the historic church building. lf deemed necessary by the
City's Building Department, at its sole and reasonable discretion, the City may
select and retain an independent consultant, which shall be paid for by Tristar, to
review Tristar's structural report. lf it is determined by the City's Building
Department that it is necessary, based upon the findings set forth in the
foregoing report, the City consultant's report, or other structural investigation by
the City, the City shall include a requirement as part of the Building Permit that
Tristar shall shore and stabilize the historic church building from the beginning of
construction through the issuance of the certificate of occupancy ("CO") for the
new construction, or such other time frame as determined by the City and, in any
event, shall continue restoration planning subject to Historic Preservation Board
and/or Planning Department staff approval.
B. Tristar shall utilize auger piles, or a similar method of construction, that
will have the least impact on the historic church building. Tristar shall utilize
seismic meters during the course of construction, and take steps to ensure that
no adverse impacts will result from the new construction on the church structure.
C. Tristar shall modify the area on the second story of the new construction,
as depicted on the floor plan presented, to further offset the second floor to the
immediate east of the church building by approximately one window bay, subject
to review and approval of Planning Department staff.
D. Upon release to MBCC of the escrow prepaid base rent underthe Ground
Lease with Tristar, and prior to the City's issuance of the Building Permit, the
Church shall immediately set aside $2.5 Million in an escrow account. Such
We ore comrnilled lo providing excellenl public seruice ond sofe\ lo ctli wha live work. ond ploy tn our vibront. tropical historic cammunity
600
escrowed funds shall be used exclusively for the structural protection, repair and
restoration of the historic church building, and shall be subject to the escrow
agreement to be negotiated and executed between the City and MBCC (which
will include audit, reporting, and/or monitoring requirements).
4. Dismissal of Lawsuit and FLUEDRA Proceedings.
5. MBCC and Tristar to execute a General Release as to any and all claims
against the City.
6. MBCC and Tristar to pay all the City's costs - including the cost of the
Special Magistrate, and court reporter and transcription costs.
7. MBCC and Tristar shall indemnify the City against all third-party claims,
with the City's choice of outside counsel.
Recommendation:
Approval of the settlement agreement attached to the Resolution as Exhibit A.
Thereafter, MBCC and Tristar shall dismiss its petition for certiorari with prejudice.
Tristar shall be required to indemnify the City against all third party causes of action.
We ore commilled lo providing excellent publb service ond sofe\ lo oll who Lve. work ond ploy in our vibronl, tropicol, hisloric cammuntty
601
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE CITY
MANAGER TO EXECUTE THE SETTLEMENT AGREEMENT
ATTACHED HERETO AS EXHIBIT A, IN THE MATTER ENTITLED:
MIAMI BEACH COMMUNITY CHURCH, INC. (MBCC) AND SOATH
BEACH TRISTAR, LLC (TRISTAR) V. CITY OF MIAMI BEACH (CITY),
ET AL, UNDER CIRCUIT COURT APPELLATE CASE NO.: CASE NO.:
14-473 AP [LOWER TRIBUNAL CASE NO: HPB SM 14-003; HPB FILE
NO.:74241.
WHEREAS, Miami Beach Community Church, Inc. (MBCC) is the owner of real
property located at 1620 Drexel Avenue, Miami Beach, Florida (the "Property"); and
WHEREAS, South Beach Tristar, LLC (Tristar), is the contract lessee of the Property
pursuant to that certain Ground Lease Agreement dated May 6, 2014, by and between MBCC
and Tristar (the "Ground Lease"); and
WHEREAS, on or about February 2014 (and as amended on May 7,2014), MBCC and
Tristar filed a Standard Application Form with the Planning Department of the City seeking a
Certificate of Appropriateness from the Miami Beach Historic Preservation Board ("HPB") for
the construction of a new, two-story commercial building designed to co-exist on the Property
with the historically designated Church building; and
WHEREAS, on May 13, 2014, after a properly noticed public hearing, the HPB
unanimously granted the Certificate of Appropriateness. The HPB's Order Granting Certificate
of Appropriateness was rendered on May 20,2014 (the "HPB Order Granting Certificate of
Appropriateness"); and
WHEREAS, a few residents, including the Miami Design Preservation League (MDPL),
requested that the City Manager submit a petition for rehearing pursuant to City Code Section
ll8-537 and, as a result, the City Manager took the request to the City Commission; and
WHEREAS' on May 21,2014, the City Commission, after public comment, voted to
have the City Manager file a rehearing request with the HPB; and
WHEREAS, one week later, during a subsequent City Commission meeting on May 28,
2014, after public comment, MBCC and the City Commission agreed that certain rental
payments by TriStar would be placed in a trust fund ($2.5 million dollars) to administer the
restoration work to the historic church building on Miami Beach; and
602
WHEREAS, once the City Commission was assured that the historic structure would be
secured, repaired, and maintained, the City Commission voted to rescind the authorizationto the
City Manager to submit the petition for rehearing; and
WHEREAS, on June 5,2014, pursuant to City Code Section 118-537, the MDPL filed a
Motion for Rehearing and sought rehearing of the HPB Order Granting Certificate of
Appropriateness. The HPB considered the Motion for Rehearing at a properly noticed public
quasi-judicial hearing on August 12,2014. The HPB voted four to three against rehearing and
the Order denying rehearing was rendered on August 18, 2014 (the "HPB Order Denying
Rehearing"); and
WHEREAS, MDPL then sought review of the HPB's Order Denying Rehearing.
Pursuant to City Code Section 118-537(b), the appeal of this decision was heard by a Special
Master. The Special Master, Warren Bittner, after having reviewed the arguments of the parties,
entered a Decision and Order on October 31,2014, which reversed the August 1Sth HPB Order
Denying Rehearing ("Special Master Decision and Order"); and
WHEREAS, a dispute has arisen between the Parties with respect to the Special Master
Decision and Order and, as a result of that dispute, and to avoid damage and delay in
construction, MBCC and Tristar made a formal request for relief pursuant to Section 70.51, Fla.
Stat. (the "Florida Land Use and Environmental Dispute Resolution Act" or "FLUEDRA") and
filed a Petition for Writ of Certiorari in the Circuit Court of the Eleventh Judicial Circuit under
Case No.: 14-473 AP [Lower Tribunal Case No: HPB SM 14-003; HPB File No.: 7424] to
preserve MBCC and Tristar's legal rights (the "Lawsuit"); and
WHEREAS, under the FLUEDRA claim MBCC and Tristar allege a challenge to the
City's Special Master process, as well as allege violations of the Religious Land Use and
Institutionalized Persons Act of 2000 ("RLUIPA") or the Florida Religious Freedom Restoration
Act of 1998 (FRFRA); and
WHEREAS, on February 17,2015, in compliance with all notice requirements, and
pursuant to the requirements of Section 50.71, Florida Statutes, the parties held mediation before
Murray Greenberg, the Special Magistrate selected by the Parties (the "special Magistrate"), in
which MBCC, Tristar, the City, and substantially affected parties provided input to the process;
and
WHEREAS, during the settlement conference a proposal for settlement was presented
and the parties agreed to take the proposal to the City Commission for deliberation; and
WHEREAS, the settlement agreement delineated herein encompasses the substantive
discussions from the February 17,2015 settlement conference; and
603
WHEREAS, the Parties wish to fully, completely, and amicably settle and resolve all
potential claims and issues between them with respect to the Special Master Decision and Order
- with neither admitting liability or waiving a defense or claim - without incurring the needless
costs and expense of litigation and/or further administrative claims and proceedings under
FLUEDRA; and
WHEREAS, as the City believes the HPB Special Master exceeded his authority; and, as
the Parties prefer to avoid the uncertainties and expense of the FLUEDRA proceedings and
Lawsuit the parties seek to execute the attached Settlement Agreement.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA to authorize the City
Manager to execute the settlement agreement attached hereto as Exhibit A, in the matter entitled:
Miami Beach Community Church, Inc. (MBCC) and South Beach Tristar, LLC Qristar) v. City
Of Miami Beach (City), et al, under Circuit Court Appellate Case No.: 14-473 AP [ower tribunal
case no: HPB SM 14-003; HPB file no;74241.
PASSED AND ADOPTED this
ATTEST:
Rafael E. Granado, City Clerk
Philip Levine, Mayor
day of 2015.
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
W r''1,.j
"* anun. r;!r$ Doie
F:\ATTO\BOUE\Community Church 1620 Drexel Ave\resolution accepting settlement 2-26-2015 final.docx
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FINAL DRAFT 2.25.2015
DISCLAIMER
(TO BE DELETED UPON ADOPTTON
BY CrTY COMMTSSTOT{)
THIS DRAFT SETTLEMENT AGREEMENT ("DRAFT')
BETWEEN THE CITY OF MIAMI BEACH (*CITY') AND MIAMI
BEACH COMMUNITY CHURCH, INC. ("MBCC") AND SOUTH
BEACH TRISTAR, LLC ("TRISTAR") HAS BEEN PREPARE,D
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,
MBCC AND TRISTAR. 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 REPRBSENT A
PROPOSED TERM, FINDING, OR CONDITTON OF At[
AGREEMENT, EXCEPT IN THE CONTEXT OF EACH AND
EVERY OTHER PROVISION IN THB DRAFT, AND ONLY IF
INCLUDED IN A WRITTEN AGREEMENT EXECUTED BY THE
PARTIES.
MOREOVER, THE DRAFT PROVISIONS HAVE BEEN
PREPARED BY SHUBIN & BASS, P.A., AND DO NOT REPRESENT
OFFICIAL OR UNOFFICIAL POSITIONS OF MBCC, TRISTAR,
OR THE CITY, ON ANY PARTICULAR SUBJECT UNTIL A FINAL
AGREEMENT IS EXBCUTED.
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SETTLEMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this day of
, 2015, by and between the CITY OF MIAMI BEACH, a Florida
municipal corporation ("City"), MIAMI BEACH COMMUNITY CHURCH, INC
(.'MBCC"), and SOUTH BEACH TRISTAR, LLC ("Tristar") (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; and
WHEREAS, MBCC is the owner of real property located at 1620 Drexel Avenue,
Miami Beach, Florida (the "Property"); and
WHEREAS, Tristar is the contract lessee of the Property pursuant to that certain
Ground Lease Agreement dated May 6, 2014, by and between MBCC and Tristar (the
"Ground Lease"); and
WHERBAS, on or about February 2014 (and as amended on May 7, 2014),
MBCC and Tristar filed a Standard Application Form with the Planning Department of
the City seeking a Certificate of Appropriateness from the Miami Beach Historic
Preservation Board ("HPB") for the construction of a new, two-story commercial
building designed to co-exist on the Property with the historically designated Church
building; and
WHEREAS, on May 13, 2014, after a properly noticed public hearing, the HPB
unanimously granted the Certificate of Appropriateness. The HPB's Order granting
certificate of appropriateness was rendered on May 20,2014 (the "HPB Order Granting
Certificate of Appropriateness"); and
WHEREAS, a few residents, including the Miami Design Preservation League
(:MDPL:), requested that the City Manager submit a petition for rehearing pursuant to
City Code Section I l8-537 and, as a result, the City Manager took the request to the City
Commission; and
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FINAL DRAFT 2.25.2015
WHEREAS, on May 21,2014, the City Commission, after public comment, voted
to have the City Manager file a rehearing request with the HPB-; and
WHEREAS, one week later, during a subsequent City Commission meeting on
May 28, 2014, after public comment, MBCC and the City Commission agreed that
certain rental payments by Tristar would be placed in a trust fund to administer the
restoration work to the historic church building on Miami Beach; and
WHEREAS, once the City Commission was assured that the historic structure
would be secured, repaired, and maintained, the City Commission voted to rescind the
authoization to the City Manager to submit the petition for rehearing; and
WHEREAS, on June 5, 2014, pursuant to City Code Section ll8-537, MDPL
filed a Motion for Rehearing and sought rehearing of the HPB Order Granting Certificate
of Appropriateness. The HPB considered the Motion for Rehearing at a properly noticed
public quasi-judicial hearing on August 12,2014. The HPB voted four to three against
rehearing and the Order denying rehearing was rendered on August 18,2014 (the "HPB
Order Denying Rehearing"); and
WHEREAS, MDPL then sought review of the HPB's Order Denying Rehearing.
Pursuant to City Code Section 118-537(b), the appeal of this decision was heard by a
Special Master. The Special Master, Warren Bittner, after having reviewed the
arguments of the parties, entered a Decision and Order on October 31, 2014, which
reversed the August l8th HPB Order Denying Rehearing ("Special Master Decision and
Order"); and
WHEREAS, a dispute has arisen between the Parties with respect to the Special
Master Decision and Order and, as a result of that dispute, and to avoid damage and delay
in construction, MBCC and Tristar made a formal request for relief pursuant to Section
70.51, Fla. Stat. (the "Florida Land Use and Environmental Dispute Resolution Act" or
"FLUEDRA") and filed a Petition for Writ of Certiorari in the Circuit Court of the
Eleventh Judicial Circuit under Case No.: 14-473 AP [Lower Tribunal Case No: HPSM
14-003; HPB File No.: 74241 to preserve MBCC and Tristar's legal rights (the
"Lawsuit"); and
WHEREAS, under the FLUEDRA claim MBCC and Tristar allege a challenge to
the City's Special Master process, as well as allege violations of the Religious Land Use
and Institutionalized Persons Act of 2000 ("RLUIPA") or the Florida Religious Freedom
Confidential Settlement Draft
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Tristar
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FINAL DRAFT 2.25.2015
Restoration Act of 1998 (FRFRA), and the parties desire to resolve all possible claims,
past, present or future; and
WHEREAS, on February 17, 2015, in compliance with all notice requirements,
and pursuant to the requirements of Section 50.71, Florida Statutes, the parties held
mediation before Murray Greenberg, the Special Magistrate selected by the Parties (the
"Special Magistrate"), in which MBCC, Tristar, the City, and substantially affected
parties provided input to the process; and
WHEREAS, during the settlement
presented and the parties agreed to take
deliberation; and
conference a proposal for settlement was
the proposal to the City Commission for
WHEREAS, the settlement agreement delineated herein encompasses the
substantive discussions from the February 17,2015 settlement conference; and
WHEREAS, the Parties wish to fully, completely, and amicably settle and resolve
all potential claims and issues between them with respect to the Special Master Decision
and Order - with neither admitting liability or waiving a defense or claim - without
' incurring the needless costs and expense of litigation and/or further administrative claims
and proceedings under FLUEDRA; and
WHEREAS, the Parties prefer to avoid the uncertainties and expense of the
FLUEDRA proceedings and Lawsuit and instead desire to set forth in this Agreement,
without establishing precedent, the terms and conditions of the settlement of the dispute
and the Lawsuit, in exchange for the consideration described herein; and
WHEREAS, the Parties represent and warrant that they have the authority
necessary to enter into this Agreement and do so in accordance with all necessary
procedures; and
NOW THBREFORE, in consideration of the mutual covenants entered into
between the Parties, 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 aparthereof.
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2. Statement of Intent. It is the intent of the Parties that this Agreement shall
resolve all disputes regarding the issuance of the Special Master Decision and Order.
3. No Admission of Liabilitv. 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 MBCC or Tristar Releasors in any attempt to prove any
future liability claims. In making this Agreement, neither the City, nor MBCC, nor
Tristar admit liability, negligence, or responsibility in any matter related to or arising
from the dispute at issue in the Lawsuit, this FLUEDRA proceeding, or any other
possible action based thereon.
4. Effective Date. This Agreement shall become effective only when all of
the following have occurred: (i) it is approved by the City Commission via an enabling
resolution at a public meeting; and (ii)- it is signed by the authorized agent of each Party.
5. Adiustment of the Special Master Decision and Order. The City agrees
that, upon this Agreement becoming effective, it shall adjust, supersede and annul the
Special Master Decision and Order (dated October 31, 2014), as authonzed by $
7 0.51(17)(a), Fla. Stat.
6. Compliance with HPB Order Granting Certificate of Appropriateness:
Buildine Permit. MBCC and Tristar agree to comply with all conditions set forth in the
HPB Order Granting Certificate of Appropriateness. The City acknowledges that MBCC
and Tristar may proceed to seek a full building permit ("the "Building Permit") based on
the HPB Order Granting Certificate of Appropriateness,- as well as the conditions in
Section 6 below.
7. Voluntary Proffer. MBCC and Tristar agree that the following shall
become conditions of the Building Permit:
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Tristar shall, at its sole cost and expense, submit a structural report prior
to submitting or as part of, its Building Permit application, regarding the
structural integrity of the historic church building. If deemed necessary
by the City's Building Department, at its sole and reasonable discretion,
the City may select and retain an independent consultant, which shall be
paid for by Tristar, to review Tristar's structural report. If it is
determined by the City's Building Department that it is necessary, based
upon the findings set forth in the foregoing report, the City consultant's
report, or other structural investigation by the City, the City shall
include a requirement as part of the Building Permit that Tristar shall
shore and stabilize the historic church building from the beginning of
construction through the issuance of the certificate of occupancy
("CO") for the new construction, or such other time frame as
determined by the City and, in any event, shall continue restoration
planning subject to Historic Preservation Board and/or Planning
Department staff approval.
Tristar shall utilize auger piles, or a similar method of construction, that
will have the least impact on the historic church building. Tristar shall
utilize seismic meters during the course of construction, and take steps
to ensure that no adverse impacts will result from the new construction
on the church structure.
C. Tristar shall modify the area on the second story of the new
construction, as depicted on the floor plan presented, to further offset
the second floor to the immediate east of the church building by
approximately one window bay, subject to review and approval of
Planning Department staff.
D. Upon release to MBCC of the escrow prepaid base rent under the
Ground Lease with Tristar, and prior to the City's issuance of the
Building Permit, the Church shall immediately set aside $2.5 Million in
an escrow account. Such escrowed funds shall be used exclusively for
the structural protection, repair and restoration of the historic church
building, and shall be subject to the escrow agreement to be negotiated
and executed between the City and MBCC (which will include audit,
reporting, and/or monitoring requirements).
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8. Dismissal of Lawsuit and FLUEDRA Proceedinss. The Lawsuit will be
stayed until the issuance of the Building Permit ("the date of issuance of the Building
Permit shall also be referred to herein as the Effective Date"). On the first business day
after the Effective Date, MBCC and Tristar shall file a Notice of Voluntary Dismissal
Without Prejudice of the Lawsuit, in the form substantially attached as Exhibit "A." The
Parties shall also take the appropriate steps to dismiss the FLUEDRA proceedings, and
issue a general release of claims to the City, through the Effective Date.
9. 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.
10. Expenses. Tristar shall cover the City's expense for the Special
Magistrate, court reporters and transcription, associated with the attorney-clienVshade
sessions held relating to the underlying litigation. 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.
I 1. No Third Partv Beneficiaries. Nothing in this Agreement, whether
express or implied, is intended to confer any rights or remedies under or by reason of this
Agreement on afiy persons other than the Parties hereto and their respective
administrators, executors, other legal 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.
12. Indemnification of City. In the event that a third party challenge is
brought against the HPB Order Granting Certificate of Appropriateness, the FLUEDRA
proceedings, or this Agreement, or a challenge is brought to any necessary and
implementing action, or work or services, required and/or approved by the HPB Order
Granting Certificate of Appropriateness, the FLUEDRA proceedings, or this Agreement
(collectively, the "Challenges"), Tristar shall indemnify, defend, and hold the City, its
officers, employees, and agents, harmless from any and all costs, liabilities, claims,
losses, and damages (including without limitation, any reasonable attorneys' fees)-,
whether a lawsuit is instituted or not, relating to, resulting from, arising out of, or
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incurred in connection with any such Challenges (collectively, the "Claims"). For
purposes of this Section 12, a "Challenge" shall be broadly construed to not only include
a lawsuit, but shall also include any administrative, quasi-judicial, legislative, or other
action andlor proceeding that impedes the validity of the HPB Order Granting Certificate
of Appropriateness, the FLUEDRA proceedings, or this Agreement, or that impedes the
ability to promptly perform any necessary and implementing action, or work or services,
required andlor approved by the HPB Order Granting Certificate of Appropriateness, the
FLUEDRA proceedings, or this Agreement.
As part of the indemnification provided to City pursuant to this Section 12, Tristar
shall defend any and all Claims asserted against the City, its officers, employees, or
agents. Tristar shall be entitled to select counsel, which shall be mutually agreed upon
between them and further subject to approval of the City Attorney, prior to being
retained, such approval not to be unreasonably withheld, conditioned or delayed. The
duty to defend, as set forth in this paragraph, shall be severable and independent from the
indemnity obligations imposed by this Section 12, to the extent that if any provisions of
this Section are deemed invalid and/or unenforceable, this duty to defend shall remain in
fuIl force and effect.
The provisions of this Section 12 are intended to survive termination and/or
expiration of this Agreement.
13. 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 Parties.
None of the Parties shall have the power to act in the name of, on behalf of, or incur
obligations binding upon any 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.
14. Consideration. The Parties 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.
15. Release and Waiver of Claims. The following Releases shall be delivered
on the first business day after the Effective Date, and the Releases set forth in this Section
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are not effective until the Effective Date. 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 "MBCC or Tristar Releasors" as the case may be), hereby execute, subject to the
conditions and exclusions set forth in this Agreement, the following Releases:
A. Upon the Effective Date, MBCC and Tristar Releasors hereby
remise, release, acquit, satisfy and forever discharge the City Releasors, which
throughout this settlement 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 MBCC
or Tristar's Releasors have held or now hold, ever had, now have, or which the
MBCC or Tristar Releasors, hereinafter can, shall or may have against the City
Releasors, for any and all Claims, whether known or unknown, arising from,
pertaining to and/or in any way relating to the underlying matter, for actions that
have occurred up to and including the Effective Date, including all building permit
actions, zoning actions, administrative determinations, litigation, etc.
B. In exchange for the consideration described in this Agreement,
MBCC, 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, in connection with the issuance of
the Special Master Decision and Order.
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C. In exchange for the consideration described in this Agreement,
Tristar, 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, in connection with the issuance of
the Special Master Decision and Order.
D. 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
MBCC or Tristar, their agents, representatives, officers, directors, employees,
attorneys, affiliates, parents, subsidiaries, successors, and assigns, from the
beginning of the world until the Effective Date, in connection with the issuance of
the Special Master Decision and Order.
E. The mutual releases stated in this Section 15 above do not release
the Parties from their obligations under this Agreement.
F. 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 SPECIAL MASTER DECISION AND ORDER 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.
16. 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
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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. Neither party shall be entitled to prejudgment interest. The City shall be
entitled to hire special litigation counsel, and as a prevailing party be entitled to seek the
attorneys' fees associated therewith at that outside counsel's prevailingrate.
17. 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.
18. Severabilitv. 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.
19. 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 consurlmation of the transactions
contemplated hereby.
20. 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 fuither 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.
21. 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, corespondence and statements, whether
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written or oral. Any provision of this Agreement shall be read and applied in
materia with all other provisions hereof.
22. Amendments. The provisions of this Agreement may not be amended,
supplemented, waived or changed, other than by a writing signed by the Parties, making
specific reference to this Agreement.
23. 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
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.
24. 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.
25. Public Purpose. The Parties 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.
26. Notices. The Parties designate the following persons as representatives to
receive any notices with regard to this Agreement:
For the City:Jimmy L. Morales
City Manager, City of Miami Beach,
1700 Convention Center Drive
Miami Beach, Florida 33139
Raul J. Aguila, Esq.
City Attorney, City of Miami Beach,
1700 Convention Center Drive, Fourth Floor
Miami Beach, Florida 33139
Stephen T. Maher, Esq. and Roland A. Gallor, Esq.
Shutts & Bowen LLP
1500 Miami Center
201 South Biscalme Boulevard
Miami, FL 33131
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With a copy to:
For MBCC:
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For Tristar:John K. Shubin, Esq.
Shubin & Bass, P.A.
46 S"W. First Street, Third Floor
Miami, Florida 33130
And
Michael W. Larkin, Esq.
Bercow, Radell & Fernandez,P.A.
Wachovia Financial Center
200 S. Biscayne Boulevard, Suite 850
Miami, Florida 33131
27. Successors in Interest. The obligations and benefits of this Agreement
shall inure to all successors in interest to the Parties to this Agreement.
28. Further Assurances. 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 carly out the intended effect of this Agreement, including but not limited
to, Tristar's agreement to defend the Agreement from legal or administrative challenges,
as set forth in Section 12, hereof.
29. 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.
30. 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 maffers 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 any of the Parties, may be made and incorporated herein.
31. Bxecution. The execution, delivery, and perfofinance of this Agreement
have been duly and validly authorized by all necessary representatives of MBCC and
Tristar, and all necessary officials of the City. This Agreement constitutes, and when
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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.
32. 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. The
Parties expressly agree to waive trial by jury in any action to enforce this Agreement.
33. Time is of the Essence. Time is of the essence for each and every
provision of this Agreement.
34. Preservation of Rights. The Parties further acknowledge and agree that
certain provisions of this Agreement will require the City and/or its boards, departments
or agencies, acting in their govemment capacities, to consider goveflrmental action as set
forth herein. The Parties 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 Parties' 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 govefirmental power expressly including the land use and
zoning power.
35.Mediation.
A. 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
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mediator within fifteen (15) days after the demand for mediation,
either party may proceed to coilrmence litigation. The parties
shall equally split the cost of the mediator.
36. 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.
IN WITNESS THEREOF, the Parties hereto have caused the execution of this
Agreement by their duly authoized officials as of the day and year first written above.
Signed, sealed and delivered in the presence of:
CITY OF MIAMI BEACH
By:
Phillip Levine
Mayor
ATTEST:
By:
Rafael E. Granado
City C1erk
STATE OF FLORIDA )
)SS
coLrNTY OF MrAMr-DADE )
The foregoing instrument was acknowledged before me this day of
, 2015, by Philip Levine, the MAYOR of the CITY OF MIAMI
BEACH, who is personally known to ffie, or who has produced
as identification.
Notary Seal
Notary Public, State of Florida
Print Name:
My Commission Expires:
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APPROVED AS TO FORM AND
LANGUAGE & FOR EXECUTION
,r,',-R,J-0s,?- rar$
Raul J. Aguila, Esq.
City Attorney
Attest:Miami Beach Community Church, Inc.
By:By:
Print Name:Title:
Print Name:
STATE OF FLORIDA )
)SS
couNTY oF MrAMI-DADE )
The foregoing instrument was acknowledged before me this _ day of _,
I zot5, by , the of the Miami Beach
Community Church, Inc., who is _ personally known to me, or who has
produced as identification.
Notary Seal
Notary Public, State of Florida
Print Name:
My Commission Expires:
th Beach Tristar, LLC
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Attest:
By:-
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Title: Managing Partner
Print Name:
STATE OF FLORIDA )
)SS
couNTY oF MrAMr-DADE )
The foregoing instrument was acknowledged before me this day of _,
I zors, uy , the Managing Partner of South Beach Tristar,
LLC, who is personally known to ffie, or who has produced
as identification.
Notary Seal
Notary Public, State of Florida
Print Name:
My Commission Expires:
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Exhibit A:
I exniui++-
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SCHEDULE OF EXHIBITS
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