HomeMy WebLinkAbout2006-26412 Reso
RESOLUTION NO. 2006-26412
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, APPROVING THE SETTLEMENT
OF CITY CODE COMPLIANCE FINES IN THE AMOUNT OF $518,268
PLUS INTEREST IN THE AMOUNT OF $9,070.66, OWED BY BRILOR,
LLC, D/B/AI AMIKA; SAID SETTLEMENT, IN THE AMOUNT OF
$138,414.40.
WHEREAS, Brilor, LLC, d/b/a Amika, a business located at 1532 Washington
Avenue, has incurred Code Compliance fines relating to illegal placement of flyers and
signs, in the amount $518,268.00, plus interest in the amount of $9,070.66; and
WHEREAS, the City Administration has met with the authorized representatives
of Brilor, LLC and would recommend settlement of the afore stated fines, in the amount
of $138,414,40; and
WHEREAS, the owners of the business have executed a contract for sale of the
business that is expected to close within thirty (30) days following approval of the
proposed settlement; and
WHEREAS, the proceeds of the sale of the business will be used to pay the City
settlement amount, which amount will be paid to the City at closing in exchange for
release of the aforestated fine(s); and
WHEREAS, the City's proposed settlement would also establish conditions for
the business's repayment of other outstanding City fines, bills and taxes.
NOW THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission approve the settlement of City Code Compliance fines in the amount of
$138,414.40.
PASSED AND ADOPTED this 6th
,2006.
ATTEST:
~! rQ;t~
CITY CLERK Robert Parcher
APPROVED AS TO
FORM & LANGUAGE
a FOR EXECUTION
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COMMISSION ITEM SUMMARY
Condensed Title:
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, APPROVING THE SETTLEMENT OF CITY FINES OWED BY BRILOR, LLC D/B/A
AMIKA, IN THE AMOUNT OF $518,268 PLUS INTEREST OF $9,070.66, BE SETTLED FOR
THE AMOUNT OF $138,414.40.
Ke Intended Outcome Su orted:
Ensure compliance with code within a reasonable time frame.
Issue:
Shall the City Commission approve a mitigated settlement payment for certain code fines for Brilor, LLC
d/b/a Amika relatin to handbills?
Item SummarY/Recommendation:
Since 2004, Amika has received multiple violations under the City's existing sign and handbill ordinances.
At present, nineteen code violations for handbills/signs remain either open pending appeal, or have been
closed and fines are owed to the City. The eleven violations under appeal (CE05005757, CE0600239,
CE0600279, CE06001409, CE06001613, CE06001759, CE06002038, CE06003159, CE06003400,
CE06003843, and CE06005058) have a fine value of $197,872. While this is the fine value for these
violations, mitigation of these fines typically occurs at the Special Master hearing. In the past, the special
masters have used their discretion in setting fine levels, with the City recouping a wide range of the fine
amounts due The appeal period for the balance of these violations has been exhausted and a bill has
been issued for the fines due (CE05003113, CE05003123, CE05000617, CE05005602, CE06000727,
CE06004416, CE06005435, and CE06005407). A total of $329,466.66 is owed from these violations. City
staff has worked with this business entity to reach a satisfactory conclusion on this matter, negotiating a
mitigation payment of $ 138,414.40 (approximately 26% of total fines due). Staff believes this mitigated
settlement is fair and equitable, given the nature of the violations (not life/safety). This mitigation payment
is incorporated into an agreement relating to other monies owed to the City by this business. All monies
due shall be paid to the City upon closing of the sale of the business, to occur no later than 45 days after
Commission approval of the mitigation on certain Code fines. The City can and will utilize all available legal
remedies to collect on the payment of monies owed, should the business not meet its obligations under the
neaotiated aareemenl.
Advisory Board Recommendation:
IN/A
Financial Information:
Source of Amount Account Approved
Funds: 1
I I 2
OSPI Total
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
I
Si n-Offs:
Department Director
Assistant City Manager
HM '(Iju,-'o)\,.:}{5) )<fl,
City Manager
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MIAMIBEACH
AGENDA ITEM ~
DATE 1.;1-{, -pc,
lD
MIAMI BEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO:
Mayor David Dermer and Members of the City Commission
FROM:
Jorge M. Gonzalez, City Manager J ____ ~
December 6, 2006 U
DATE:
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING THE SETTLEMENT OF CITY FINES
OWED BY BRILOR, LLC D/B/A AMIKA, IN THE AMOUNT OF $518,268 PLUS
INTEREST OF $9,070.66, BE SETTLED FOR THE AMOUNT OF $138,414.40.
ADMINISTRATION RECOMMENDATION
SUBJECT:
Adopt the Resolution.
ANALYSIS
Brilor, LLC d/b/a Amika is the operator of a nightclub, located at 1532 Washington Avenue.
They are not the property owners. The business is currently under contract for sale and the
location is undergoing renovations to reopen as a nightclub under the new ownership.
Since 2004, Amika has received multiple violations under the City's existing sign and
handbill ordinances. At present, nineteen code violations for handbills/signs remain either
open pending appeal, or have been closed and fines are owed to the City.
The eleven code violations for handbillslflyers under appeal (CE05005757, CE0600239,
CE0600279, CE06001409, CE06001613, CE06001759, CE06002038, CE06003159,
CE06003400, CE06003843, and CE06005058) have a fine value of $197,872. While this is
the fine value for these violations, mitigation of these fines typically occurs at the Special
Master hearing. In the past, the special masters have used their discretion in setting fine
levels, with the City recouping an inconsistent percentage of the fine amounts due.
The appeal period for the balance of the code violations for handbillslflyers has been
exhausted and a bill has been issued for the fines due (CE05003113, CE05003123,
CE05000617, CE05005602, CE06000727, CE06004416, CE06005435, and CE06005407).
A total of $329,466.66 is owed from these violations.
In May of this year, Amika and the City agreed to a repayment plan for outstanding Resort
Taxes, as well as negotiated a mitigated payment for the handbill/sign code violations under
appeal. At that time, Amika also agreed to pay the City 100% of all amounts due for other
violations (fire violations and other code violations) where the cases were "closed." The
payment of total amounts due, including the mitigated payment, was contingent on the sale
of the business within a specified period oftime, in the early summer. Although Amika made
payment to the City in the amount of $110,000 against their resort taxes due, a closing on
the sale of the business did not occur and payment of the balance of the monies due was
not made. A lien has been filed against the principals for the outstanding resort taxes, as
well as for the outstanding code and fire fines.
Amika approached the City again in the late summer with an interest in negotiating a new
agreement to resolve all of the outstanding monies owed. Attached, please find an
agreement that stipulates payment of 100% of all resort taxes (and interest) due to the City
up to the end of the fiscal year (approximately $59,142.20, pending filing of remaining resort
taxes); payment of 100% of Code and fire violations issued prior to May, 2006 ($34,047.69);
and a mitigated payment for the handbill/sign violations under appeal, as well as three
handbill/flyer violations that occurred/were billed subsequent to May 2006. The mitigated
amount for these code fines, as previously referenced, is $138,414.40. This mitigated fine
amount represents 26% of the total fines, and includes Brilor, LLC, d/b/a Amika's agreement
to withdraw any pending appeals.
In total, Amika will pay the City approximately $231 ,604.29 to resolve all outstanding debts
(final amounts pending the filing of resort taxes for the period of July through September).
Such payment will be required within seven (7) days after closing of the business sale, and
such sale of the business must occur no later than forty-five days following Commission
approval of the mitigated Code fines, as provided in the agreement between Amika and the
City, attached for your reference.
CONCLUSION
City staff has worked with this business entity to reach a satisfactory conclusion on this
matter. The mitigation payment of $ 138,414.40 is fair and equitable, given the nature of the
violations (not life/safety). The City can and will utilize all available legal remedies to collect
on the payment of monies owed, should the business not meet its obligations under the
negotiated agreement. It is recommended that the Mayor and City Commission approve the
settlement of those certain city fines owed by Brilor, LLC d/b/a Amika, as previously defined,
in the mitigated amount of 138,414.40.
Attachments
JMG/HMF
T:\AGENDA\2006\dec0606\consent\1532_Wash_Ave_Settlement_mem1.doc
SETTLEMENT AGREEMENT
This Settlement Agreement and Release ("Agreement") is made and entered into
this _ day of December, 2006 by and between the CITY OF MIAMI BEACH, a
municipal corporation (hereinafter "MIAMI BEACH") and BRILOR, LLC, a Florida
limited liability corporation d/b/a AMIKA d/b/a AMIKA LOFT LOUNGE AND
DISCOTHEQUE (hereinafter "AMIKA"), collectively referred to as "THE PARTIES."
RECITALS
A. As of December 6, 2006, Brilor, LLC d/b/a Amika d/b/a Amika Loft
Lounge and Discotheque owes MIAMI BEACH the sum of $595,077.13,
plus 100% of the additional amounts due for delinquent Resort Tax returns
that are to be filed for July, August, September, October, and November,
2006 is the total amount due and owing MIAMI BEACH in delinquent
Resort Taxes, interest and fines, Code Enforcement, Building, Sanitation
and other municipal fines, fees and/or liens, including fire code violations,
for the operation of its business located at 1532 Washington Avenue,
Miami Beach, Florida.
B. AMIKA may review the final. accounting of all monies owed to MIAMI
BEACH and submit any errors in calculation to MIAMI BEACH, which,
in its sole discretion, may change the amount due and owing.
C. MIAMI BEACH and AMIKA have reached an understanding that
AMIKA is unable to pay the amounts owed in full, and that both parties
will benefit by this agreement by allowing MIAMI BEACH to recover
some of the debt it is owed.
D. AMIKA currently has an agreement for the sale of its assets, a copy of
which is attached hereto. The closing of said sale shall generate the funds
from which AMIKA will pay off its debt to MIAMI BEACH as herein
agreed. AMIKA and the Buyer of its assets intend to close the sale ofthe
assets within thirty (30) days of approval of this agreement by the City of
Miami Beach City Commission. If for an unforeseeable reason the closing
of said transaction needs to be extended for a period not to exceed fifteen
(15) additional days, AMIKA and the Buyer shall submit to MIAMI
BEACH, three (3) days prior to the expiration of the thirty (30) day
period, an affidavit outlining why the closing needed to be extended, and
reaffirming that when said issues are resolved the closing will occur.
E. AMIKA and MIAMI BEACH agree that AMIKA shall pay 100% of its
debt for Utility Bills, $9,188.09; Fire Violations, $1,500.00; City Bills,
CB65930, CB65931 ,CB00250, CB85866, CB0000658, CB0000962,
CBOOOI030, CB00001660, CB00002925, and CB00002952, totaling
$23,359.60; and delinquent Resort Tax through July, 2006 in the amount
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of$27,205.93, plus 100% of the additional amounts due for July, August,
September, October, and November, 2006, said amount to be determined
when AMIKA files its delinquent Resort Tax Return on Monday,
December 4, 2006.
AMIKA and MIAMI BEACH agree that AMIKA shall be responsible for
paying 30% of the debt owed on City Bills CB00003332, CB00003434,
and CB00003729, totaling $98,840.00; and 20% for Code Compliance
Cases, CE05005757, CE06000239, CE06000279, CE06001409,
CE06001613, CE06001759, CE06002035, CE06003159, CE06003400,
CE06003843, CE06005058, totaling $39,574.40.
This brings the agreed total due and owing MIAMI BEACH, pursuant to
the other terms of this agreement, to $199,668.02, plus 100% of the
additional Resort Tax as recited herein.
F. AMIKA specifically waives any right to appeal or otherwise contest the
taxes, fines, and fees, including the Code Compliance cases listed in
paragraph "E" herein, incurred as of the date of this Agreement or the
right of MIAMI BEACH in the event ofa default ofthis Agreement by
AMIKA to immediately close the business located at 1532 Washington
Avenue, in forum, whether administrative or judicial. However, while
AMIKA may be subject to a suspension of its business license due by the
Fire Department, MIAMI BEACH warrants that it will not seek such
additional enforcement at this time against AMIKA or the purchaser of the
business at any time, unless there is a default of any provision herein.
G. AMIKA specifically represents that its counsel, Louis J. Terminello, Esq.
of the law offices of Terminello & Terminello, P.A., has fully authority to
enter into this Agreement on its behalf.
NOW THEREFORE, in consideration of the promises set forth herein
and other good and valuable consideration, receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
I.
RECITALS
I. The foregoing Recitals are true and correct and incorporated herein by reference.
II.
PAYMENT
2. AMIKA and MIAMI BEACH hereby agree that as and for full payment of the
monies owed as recited herein, MIAMI BEACH shall accept and AMIKA shall
cause to be paid to MIAMI BEACH, the sum of $199,668.02, plus 100% of the
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additional Resort Tax as recited herein. Said payment shall be made within the
seven days of the date of closing on the sale of the subject business, payable by
cashier's check or check from an attorney's trust account and delivered to the City
Attorney's Office.
III.
SUBMITTALS
3. AMIKA has provided to MIAMI BEACH a fully executed, notarized or otherwise
legally sufficient copy of the purchase contract for the business located at 1532
Washington Avenue. Said contract specifies a closing date no later than 45 days
from the date of the execution of said contract.
IV.
DEFAULT
4. A default or failure to fulfill any obligation listed herein by AMIKA will subject
the business located at 1532 Washington Avenue to immediate closure by MIAMI
BEACH as well as the imposition of any applicable civil or criminal penalties. In
addition, if the sale of the business does not occur within 45 days from the date of
the Commission approval of this Agreement, as referenced in paragraph D infra,
this Settlement Agreement is deemed null and void, and MIAMI BEACH may
demand full payment for all monies owed and avail itself of all legal remedies for
collection thereof.
V.
ADDITIONAL DOCUMENTS
5. The PARTIES agree to cooperate fully and execute any and all supplementary
documents and take all additional actions which may be necessary or appropriate
to give full force and effect to the basis and intent of this Settlement Agreement.
VI.
ENTIRE AGREEMENT AND SUCCESSORS IN INTEREST
6. This Settlement Agreement contains the entire Agreement between the parties.
This Agreement replaces any prior or contemporaneous written or oral
representation or understanding about the settlement. This Agreement may not be
changed except in writing signed by the Parties, or their respective attorneys. This
Agreement shall be binding on all and shall inure to the benefit of the respective
successors and assigns, if any, of each party.
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VII.
GOVERNING LAW
7. This Settlement Agreement is being consummated in the State of Florida and the
performance by the Parties hereto is in the State of Florida. This Agreement shall
be governed by and construed in accordance with the laws of the State of Florida.
The venue for any legal proceeding of any nature brought by either party against
the other to enforce any right or obligation under this Agreement, or rising out of
any matter pertaining to this Agreement shall be in Miami-Dade County, Florida.
8. The Parties warrant to each other that they have read this Settlement Agreement
and that each has been represented by counsel before signing this Settlement
Agreement.
IN WITNESS WHEREOF, the Parties have set their hands and seals on the day
and date first written above.
BRILOR, LLC d/b/a AMIKA LOFT LOUNGE
Larissa C. Percy, Its Manager
Attest:
CITY OF MIAMI BEACH
ROBERT PARCHER
City Clerk
JORGE M. GONZALEZ
City Manager
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