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HomeMy WebLinkAboutReso 2010-1523 - RESOLUTION NO. 2010-~3 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, RATIFYING THE PARTIAL STIPULATED ORDER OF TAKING WITH TENANTS FOR PROPERTY LOCATED AT 215-255 SUNNY ISLES BOULEVARD; RATIFYING SETTLEMENT AGREEMENT FOR CASE STYLED GOLD CLUB, INC. V. CITY OF SUNNY ISLES BEACH; PROVIDING THE CITY MANAGER AND THE CITY ATTORNEY WITH THE AUTHORITY TO DO ALL THINGS NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, by Resolution No. 2009-1400, adopted on April 16, 2009, the City Commission authorized the use of its eminent domain powers to condemn property located at 215-255 Sunny Isles Boulevard for public purpose, namely for the construction, development and use as a public park, public parking and recreational facilities and public open space; and WHEREAS, the City and the property owners have reached an agreement and entered into a Partial Stipulated Order of Taking to acquire title to property; and WHEREAS, the City and Tenants Gold Club, Inc. ("Beachhouse Cabaret") and LKD, Inc. ("Amazing Flowers") have reached a Partial Stipulated Order of Taking and a settlement Agreement; and WHEREAS, the City Commission wishes to accept the terms and conditions outlined in the proposed Partial Stipulated Order of Taking and the Settlement Agreement. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Ratifying the Partial Stipulated Order of Taking and Settlement Agreement. The Partial Stipulated Order of Taking and Settlement Agreement for Defendants Gold Club ("Beachhouse Cabaret") and LKD, Inc. (Amazing Flowers") for property located at 215-255 Sunny Isles Blvd. attached hereto as Exhibit "A" is hereby ratified. Section 2. Authorization of the City Manager and City Attorney. The City Manager and the City Attorney is hereby authorized to do all things necessary to effectuate same. Section 4. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 28th day of January 2010. ATTEST: Ratifying the Partial Stipulated Order of Taking- 215-255 Sunny Isles Blvd. Page I of2 ~A-~ Jane ~. Hines, CMC, City Clerk Vote: 5-0 Mayor Edelcup Vice Mayor Thaler Commissioner Goodman Commissioner Brezin Commissioner Scholl Ratifying the Partial Stipulated Order of Taking- 215-255 Sunny Isles Blvd. Moved by: C ~ ~~~ ~R~ "2.1 fJ Seconded by: c.o~ GOO];) mt'\-N ~Y es) _JL..cY es) ~(Yes) V(Y es) ~(Y es) _(No) _(No) _(No) _(No) _(No) Page 2 of2 SUNNY ISLES BEACH, a political subdivision of the State of Florida, IN THE CIRCUIT COURT OF THE 11m JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA Petitioner, CASE NO. 09-55633 CA 21 vs. Parcel A MEYER B. MARKS, GOLDA N. MARKS, LINDA J. MARKS, STEPHEN R. MARKS, LEROY WIENER, JACK BURSTINER, MIAMI-DADE COUNTY FLORIDA, W-Z SUNNY ISLES, LLC, a Florida Limited Liability Company, SARITA WIENER, CO- TRUSTEE OF THE LEROY WIENER FAMILY TRUST AND CO-TRUSTEE OF THE LEROY WIENER MARITAL TRUST, AUSTIN A. FRYE, ESQUIRE, CO- TRUSTEE OF TIlE LEROY WIENER FAMILY TRUST AND CO-TRUSTEE OF THE LEROY WIENER MARITAL TRUST, DOUGLAS WIENER, RON WIENER, TAL KIENAN, JEFFREY WIENER, AMAZING FLOWERS MIAMI, THEE DOILHOUSE, BEACH HOUSE CABARET, and CAUSEWAY LUMBER COMPANY, INC., Defendants. / PARTIAL STIPULATED ORDER OF TAKING THIS CAUSE coming on to be heard by the Court, it appearing that proper notice was first given to all the Defendants, and to all persons having or claiming any equity, lien, tide, or other interest in or to the real property described in the Petition, also known as "Parcel A", that the Petitioner would apply to this Court for an Order of Taking of Parcel A and the Court being fully advised in the premises, upon consideration, it is, therefore, ORDERED AND ADJUDGED: 1. Upon the stipulation of the Parties, that the Court has jurisdiction of the subject 1 of 13 FLDOCS 5503460 2 1/23/1012:36 PM - matter and of Petitioner and Defendants, GOLD CLUB, INC. ("Gold Club") and LKD, INC.("Amazing Flowers"), the parties to this Partial Stipulated Order of Taking (hereinafter collected referred to as the 'Tarties"); and 2. That the pleadings in this cause are sufficient; and 3. That Petitioner is properly exercising its delegated authority; and 4. That Parcel A is being acquired for a public purpose, namely for the construction, development and use as a public park, public parking and recreational facilities and public open space; and 5. That the taking of Parcel A is reasonably necessary to serve the public purpose for which said property is being acquired; and 6. That the DecEu:ation of Taking ftled in this cause by the Petitioner for the entry of the Partial Stipulated Order of Taking was made in good faith and was based upon a valid appraisal, pursuant to Chapter 74, Florida Statutes (2009) only; and it is further; ORDERED AND ADJUDGED: 7. The Court finds that Petitioner and Defendant, Gold Club and LKD, Inc., have stipulated and agreed to entry of the Order of Taking as to Parcel A in the instant case upon the following terms and conditions: A. Petitioner and Gold Club agree that, by entering into this Partial Stipulated Order of Taking, Gold Club neither waives or forfeits any lawful right or claim it may have to seek apportionment of the condemnation proceeds in the instant case. B. Petitioner, not later than thirty (30) days following the Court's entry of this Partial Stipulated Order of Taking , shall forward the sum of Two Hundred Thousand and No/l00 Dollars ($200,000.00) ("Cash Payment"), to Defendant, Gold Club, payable to said Defendant's 2 of 13 FLDOCS 5503460 2 1/23/10 12:36 PM counsel of record, John C. Lukacs, P.A., Trust Account. Petitioner's offer of the Cash Payment and Gold Club's acceptance of the same is for the sole and exclusive purpose of inducing each respective party to enter into this Partial Stipulated Order of Taking. The Cash Payment shilll constitute complete and final payment of Defendant, Gold Club's attorneys fees, cost and expenses incu:r:red f:rom the beginning of time up to the date of this executed Partial Stipulated Order of Taking, which Defendant might otherwise be entitled to payment by Petitioner under Chapters 73 and 74, Florida Statutes (2009). Petitioner Cash Payment shilll also constitute complete and final payment to Defendant, Gold Club for any and illl monies Defendant might otherwise be entitled to seek payment f:rom Petitioner pertaining to any relocation benefits p:rovided under applicable law. Defendant, Gold Club understands and agrees that the Cash Payment shilll be construed, interpreted and operate as complete and final payment by Petitioner for illl Gold Club's claims against Petitioner in the instant case, and shilll not hereafter seek or claim right or entitlement to any additional sums or monies, of any nature whatsoever, f:rom Petitioner excepting Gold Club's reasonable attorneys fees and costs which may be incurred after the date of this executed Partial Stipulated Order of Taking for apportionment or in supplemental proceedings, pursuant to applicable Florida law. Petitioner neither waives nor forfeits its right to contest or dispute the reasonable amount of any such claims. c.(i) Extended Possession. Petitioner hereby agrees that Defendant, Gold Club, for a period which shilll not, exceed twenty-four (24) months f:rom the date of Petitioner's deposit of its good faith estimate of value, (hereinafter refe:r:red to as the "Extended Possession Period"), shilll be permitted to remain in possession of its current leased premises located at 255 Sunny Isles Boulevard, Sunny Isle Beach, FL 33160 (''Leased Premises"), which possession shilll include the right of access, use and enjoyment of illl such parking spaces on Parcel A. The Parties further agree 3 of 13 FLDOCS 5503460 2 1/23/1012:36 PM that, subject to the provisions set forth in this Partial Stipulated Order of Taking, Gold Club's possession of the Leased Premises shall be in accordance with the same terms and conditions under that certain Lease Agreement, by and between W-Z Sunny Isles Partnership and The Gold Club, Inc., dated December 20, 2005. Defendant, Gold Club understands and agrees that the permitted use of the Lease Premises during the Extended Possession Period shall only be for the purpose of a Night Club (the "Permitted Current Use"). (1i) Rent and Other Payments. During said Extended Possession Period, Gold Club shall not be obligated to pay rent or applicable sales taxes that may be assessed by the Petitioner. Notwithstanding, the foregoing, Defendant, Gold Club understands and agrees during the Extended Possession Period, it shall be required to pay its pro-rata share of applicable real estate taxes and public liability insurance ($500,000/$1,000,000.00), and utilities, including gas, electricity, water and sewage used on the Leased Premises. (ill) Leased Premises "As Is" Condition. Defendant, Gold Club hereby accepts the Leased Premises in the condition they are in at the beginning of the Extended Possession Period and agrees to maintain said Lease Premises in the same condition, order and repair, excepting only reasonable wear and costs arising from the use of the Lease Premises for the Permitted Use. (tv) Surrender of Lease Premises. Defendant, Gold Club further understands and agrees that immediately upon the expiration of the Extended Possession Period, and absent the prior written consent of Petitioner, it shall forthwith, without notice or other action of Petitioner or court order, peaceably surrender complete possession of the Lease Premises to Petitioner. . (v) Prohibition on Assignment. Subletting or Pledging. Defendant, Gold Club hereby understands and agrees that it shall not assign, transfer, pledge, sublet or otherwise encumber the Leased Premises during the Extended Possession Period without the express written consent of 4 of 13 FLDOCS 5503460 2 1/23/10 12:36 PM Petitioner, which consent shall be at Petitioner sole and exclusive discretion. (vi) Time is of Essence. Time is of the essence in the performance of all the terms and conditions set forth herein. (vii) Liability and Indemnification. Petitioner shall not be liable to Gold Club or its employees, agents, patrons or visitors, or to any other person whomsoever, for any injury to person or damage to property on or about the Lease Premises, resulting from and/or caused in part . or whole by Gold Club's negligence or misconduct or by the negligence or misconduct of its agents, servants or employees or any other person entering upon the Lease Premises, or caused by the buildings and improvements located on the Lease Premises becoming out of repair, or caused by leakage of gas, oil, water or steam or by electricity emanating from the Leased Premises, or due to the existence of mold or mildew, or due to any cause whatsoever other than the intentional acts of Petitioner. Gold Club hereby covenant and agree that it will at all times indemnify and hold safe and harmless the Building, Petitioner, Petitioner's agents and employees from any loss, liability, claims, suits, costs, expenses, including without limitation, attorney's fees and damages, both real and alleged, arising out of any such damage or injury but only to the extent caused by the negligence or misconduct of Gold Club, its agents, employees or invitees; except injury to persons or damage to property to the extent of the negligence or intentional acts of Petitioner, its agents, employees or contractors. Petitioner will indemnify and hold harmless Gold Club, its agents and employees from any loss, liability, claims, costs, suits, expenses, including reasonable attorneys' fees, arising out of the negligence or misconduct of Petitioner, its employees agents, contractors or employees; and it is, D. Defendant, Gold Club hereby stipulate that upon Petitioner's deposit of its good faith estimate of value of Seven Million Seven Hundred Thousand and No/I00 Dollars 5 of 13 FLDOCS 5503460 2 1/23/1012;36 PM ($7,700,000.00) into the Court Registry, the making of said deposit ("Deposit") and the Certificate of the Clerk of the Circuit Court that said sum has been deposited, fee simple title and interest to Parcel A, as described in the Amended Petition in Eminent Domain shall be vested in the Petitioner; and, it is ORDERED AND ADJUDGED: 8. (i) Extended Poss~ssion. Based upon the stipulation and agreement of LKD, Inc. for entry of the Order of Taking as to Parcel A in the instant case, Petitioner hereby agrees that Defendant, LKD, Inc., for a period which shall not, exceed twenty-four (24) months from the date of Petitioner's deposit of its good faith estimate of value, (hereinafter referred to as the "Extended Possession Period"), shall be permitted to remain in possession of its current leased premises located at 227-229 Sunny Isles Boulevard, Sunny Isle Beach, FL 33160 ("Leased Premises"), which possession shall include the right of access, use and enjoyment of all such parking spaces on Parcel A. The Parties further agree that, subject to the provisions set forth in this Partial Stipulated Order of Taking, LKD, Inc.'s possession of the Leased Premises shall be in accordance with the same terms and conditions under that most recent Lease Agreement, by and between owner(s) of Parcel A and LKD, Inc,. Defendant, LKD, Inc. understands and agrees that the permitted use of the Lease Premises during the Extended Possession Period shall only be for the purpose of a retail florist and flower sales (the "Permitted Current Use") (ii) Rent and Other Payments. During said Extended Possession Period, LKD, Inc. shall not be obligated to pay rent or applicable sales taxes that may be assessed by the Petitioner. Notwithstanding, the foregoing, Defendant, LKD, Inc.. understands and agrees during the Extended Possession Period, it shall be required to pay its pro-rata share of applicable real estate taxes and public liability insurance ($500,000/$1,000,000.00), and utilities, including gas, electricity, 6 of 13 FLDOCS 5503460 2 1/23/1 0 12:36 PM water and sewage used on the Leased Premises. (ill) Leased Premises "As Is" Condition. Defendant, LKD, Inc., hereby accepts the Leased Premises in the condition they are in at the beginning of the Extended Possession Period and agrees to maintain said Lease Premises in the same condition, order and repair:, excepting only reasonable wear and costs arising from the use of the Lease Premises for the Permitted Use. ~v) Surrender of Lease Premises. Defendant, LKD, Inc., further understands and agrees that immediately upon the expiration of the Extended Possession Period, and absent the prior written consent of Petitioner, it shall forthwith, without notice or other action of Petitioner or court order, peaceably surrender complete possession of the Lease Premises to Petitioner. (v) Prohibition on Assignment. Subletting or Pledging. Defendant, LKD, Inc., hereby understands and agrees that it shall not assign, transfer, pledge, sublet or otherwise encumber the Leased Premises during the Extended Possession Period without the express written consent of Petitioner, which consent shall be at Petitioner's sole and exclusive discretion. (vi) Time is of Essence. Time is of the essence in the performance of all the terms and conditions set forth herein. (vii) Liability and Indemnification. Petitioner shall not be liable to LKD, Inc., or its employees, agents, patrons or visitors, or to any other person whomsoever, for any injury to person or damage to property on or about the Lease Premises, resulting from and/or caused in part or whole by LKD, Inc.'s negligence or misconduct or by the negligence or misconduct of its agents, servants or employees or any other person entering upon the Lease Premises, or caused by the buildings and improvements located on the Lease Premises becoming out of repair:, or caused by leakage of gas, oil, water or steam or by electricity emanating from the Leased Premises, or due to the existence of mold or mildew, or due to any cause whatsoever other than the intentional acts of 7 of 13 FLDOCS 5503460 2 1/23/1012:36 PM Petitioner. LKD, Inc., hereby covenant and agree that it will at all times indemnify and hold safe and harmless the Building, Petitioner, Petitioner's agents and employees from any loss, liability, claims, suits, costs, expenses, including without limitation, attorney's fees and damages, both real and alleged, arising out of any such damage or injury but only to the extent caused by the negligence or misconduct of LKD, Inc., its agents, employees or invitees; except injury to persons or damage to property to the extent of the negligence or intentional acts of Petitioner, its agents, employees or contractors. Petitioner will indemnify and hold harmless LKD, Inc., its agents and employees from any loss, liability, claims, costs, suits, expenses, including reasonable attorneys' fees, arising out of the negligence or misconduct of Petitioner, its employees agents, contractors or employees; and it is, 9. Defendant, LKD, Inc., understands and agrees that Petitioner consent to the extended possession of the Lease Premises shall be construed, interpreted and operate as complete and final settlement of any and all LKD, Inc.'s, claims that it might have against Petitioner in the instant case, and shall not hereafter seek or claim right or entitlement to any additional consideration, or monies, of any nature whatsoever, from Petitioner in the instant case, excepting Gold Club's reasonable attorneys fees and costswhich may be incurred after the date of this executed Partial Stipulated Order of Taking for apportionment or in supplemental proceedings, pursuant to applicable Florida law. Petitioner neither waives nor forfeits its right to contest or dispute the reasonable amount of any such claims. 10. Petitioner and LKD, Inc., Club agree that, by entering into this Partial Stipulated Order of Talcing, LKD, Inc. neither waives nor forfeits any lawful right or claim it may have to seek apportionment of the condemnation proceeds in the instant case. ORDERED AND ADJUDGED: 8 of 13 FLDOCS 5503460 2 1/23/1012:36 PM ;oj 11. That Parcel A shall be deemed to be condemned and taken for the use of the Petitioner, and the right to full compensation for the same shall be vested in the persons lawfully entided thereunto, such compensation to be ascertained and awarded in this cause as established by judgment herein after trial by jury or stipulated final judgment of the parties; and 12. That upon the Clerk of the Court's certified receipt of the Deposit, as set forth in Paragraph 7(D) of this Order, and without further notice or action of the Parties or Order of this Court, Petitioner shall be entided to complete and quiet possession of Parcel A, subject only to Gold Club's and LKD, lnc.'s right to remain in possession of the Lease Premises during the Extended Possession Period, as described above in this Partial Stipulated Order of Taking; 13. That, by further stipulation of the parties, this Order shall not be used by any party, including any consultant, lay person or expert witness, agent, employee or representative of said party, in any trial, proceeding, hearing or any in other manner whatsoever, except in a proceeding to enforce any term or condition of this Partial Stipulated Order of Taking; and 14. The Court shall retain jurisdiction of the parties and the subject matter of this Partial Stipulated Order of Taking for purposes of adjudicating any dispute between the parties concerning its enforcement or interpretation or effectuation. The transcript of the hearing held on January' 21, 2010 before this Court in the instant case is attached hereto and incorporated herein. ~ DONE AND ORDERED in Chambers this )-) day of January, 2010, A.D., in the State of Florida, County of .Miami-Dade. /~ ~J.12 The Honorable William Thomas, Circuit Court Judge Copies to: All other parties on attached Service List 9 of 13 FLDOCS 5503460 2 1/23/1012:36 PM JOINT MOTION The parties, by and through their undersigned counsel, respectfully move for entry of the Si alloway, Esquire Attorney for Petitioner City of Sunny Isles Beach Shutts & Bowen LLP 200 East Broward Boulevard Suite 2100 Fort Lauderdale, FL 33301 JOh~~~ Attorney for Defendant, Gold Club, Inc, and LKD, Inc. 201 Sevilla Avenue, Suite, 305 Coral Gables, FL 33134 Phone: (305) 445-4425 Fax: (305) 445-2210 Date: /.25-/0 Date: I 12.5"" / 2IJ) 1) WE HEREBY CERTIFY that a true and correct copy of the foregoing has been served by U.S. Mail to the parties shown on the attached Service List tbis'ZSfl. day of January 2010. n~ -=- ~ ~y '~euu~ne< 10 of 13 FLDOCS 5503460 2 1/23/1012:36 PM - EXHIBIT "A" Parcel "A" LEGAL DESCRIPTION Lots 5, 6, and 6-A of the Second REVISED PLAT OF BELLA VISTA SUBDIVISION, according to the Plat thereof, recorded in the Plat Book 50; at Page 76 of the Public Records for Miami-Dade County, Florida, situated at 215-255 Sunny Isles Boulevard, Sunny Isles Beach, Miami-Dade County, Florida 33160. 11 of 13 FLDOCS 5503460 2 1/23/1012:36 PM SERVICE LIST Sunny Isles Beach v. Meyer B. Marks et al. -Case No.: 09-55633 CA 21 Hans Ottinot, Esquire City Attorney City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, FL 33160 Phone: (305) 792-1702 Fa.x: (305) 792-1562 Brian P. Patchen, Esquire Law Office of Brian P. Patchen, P A Attorney for Defendants, Jack Burstiner, BURCO, Inc., Sarita Wiener, Co Trustee of the Leroy Wiener Family Trust & Co-Trustee of the Leroy Wiener Marital Trust; Austin A. Frye, Esquire, Co Trustee of the Leroy Wiener Family Trust & Co-Trustee ofthe Leroy Wiener Marital Trust 1000 Brickell Avenue, Suite 1112 Miami, FL 33131 Phone: (305) 372-1112 Fax: (305) 372-3691 John C. Lukacs, Esquire John C. Lukacs, P .A. Attorney for Defendants The Gold Club, Inc., d/b/a Thee Dollhouse and/or the Beach House Cabaret; and Defendant Amazing Flowers Miami 201 Sevilla Avenue, Suite 305 Coral Gables, FL 33146 Phone: (305) 445-4425 Fax: (305) 445-2210 Tal Kienan Klausner 3 Herzlia Pituach 46683 Israel Jeffrey R. Eisensmith, Esq. Attorney for Causeway Lumber Company Jeffrey R. Eisensmith, P.A. 5561 N. University Drive Coral Springs, FL 33067 Phone: (954) 523-7601 FLDOCS 5503460 2 1/23/1012:36 PM Debra Herman, Esquire Assistant County Attorney Miami-Dade County Stephen P. Clark Center 111 Northwest 1st Street, Suite 2810 Miami, FL 33128 Phone: (305) 375-5151 Fax: (305) 375-5634 J. Wiley Hicks, Esquire Attorney for Defendants Linda J. Marks and Stephen R. Marks Hicks & Schreiber, P.A. 890 South Dixie Highway Coral Gables, FL 33146 Phone: (305) 661-6688 Fax: (305) 663-0219 S. William Moore, Esquire Brigham Moore, LLP Attorney for Defendant Douglas A. Wiener 3277 Fruitville Road, Unit E Sarasota, FL 34237 Phone: (941) 365-3800 Fax: (941) 952-1414 Jeffrey Wiener 415 West 56th Street, #5 New York, NY 10019 12 of 13 THIS PAGE INTENTIONALLY BLANK 13 of 13 FLDOCS 5503460 2 112311012:36 PM - SETTLEMENT AGREEMENT -:rt.- SETTLEMENT AGREEMENT ("Agreement") made as ofthis2~ day of January, 2010 by and between GOLD CLUB, INC. ("Gold Club"), a Florida Corporation, and CITY OF SUNNY ISLES BEACH ("City"), A Florida Municipal Corporation. RECITALS WHEREAS, Plaintiff, Gold Club and Defendant, Sunny Isles Beach are parties to that certain lawsuit styled The Gold Club, Inc., v. City of Sunny Isles Beach, pending in the Circuit Court of Eleventh Judicial Circuit In and For Miami-Dade County, Florida, General Jurisdiction Division, Civil Case No.: 09-47597 CA 24 ("the Lawsuit"); and WHEREAS, Gold Club and the City desire to amicably resolve the dispute between them, including, but not limited to, the subject matter of the Lawsuit, and to obviate the necessity of incurring additional attorneys' fees and costs therein; AGREEMENT NOW, THEREFORE, in consideration of the mutual promises set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. The above recitals are true and correct. 2. It is expressly understood and agreed that this Agreement is in settlement of disputed claims, and that no party hereto admits or concede liability, damages or any wrongdoing whatsoever. 3. Plaintiff, Gold Club and Defendant, City of Sunny Isles Beach agree that in full satisfaction of all the claims, allegations, :::slo:fa:tions, or defenses tha~~;.e ~r that ~ could have been made by each of them against the other in the Lawsuit, from the beginning of time to the date hereof, excepting as provided for in Paragraphs 5 and 10 of this Settlement Agreement, the Defendant City of Sunny Isles Beach, shall pay the total sum of Three Hundred Thousand and No/100 Dollars ($300,000.00), to Plaintiff, Gold Club, payable to Plaintiff's counsel of record, John C. Lukacs, P .A. Trust Account, not later than thirty (30) days from the date of the execution of this Settlement Agreement, such payment to be held by Plaintiff's counsel of record and shall not be disbursed until such time as the City shall receive the Order dismissing the Lawsuit, as referred to and described in Paragraph 9 of this Settlement Agreement; 4. The City agrees that it shall grant and convey to Gold Club 20,000 umts Transferable Development Rights with a lifespan of 15 years effective as of the date of execution of this Settlement Agreement ("TDRs); 5. The Gold Club and City agree that, by entering into this Settlement Agreement, Gold Club neither waives or forfeits any lawful right or claim it may have to seek apportionment of the condemnation proceeds in that certain eminent domain proceeding styled, City of Sunny Isles Beach v. Leroy Wiener, et al., Case No.: 09-55633 CA 21. 6. The City further agrees that it will grant and award Habour Construction, Inc. ("Harbour Construction") a contract providing for demolition services and appurtenant work ("Demolition Contract") to be performed by Harbour Construction in connection with the needed demolition of those certain properties, acquired by the City, and whose street address~ Q;1\,te ~ . .. o..~ IS 1 s,,~ ~$k.:s ~" lIsted as.215-255 Sunny Isles Boulevard, Sunny Isles Beach, Florida 33160, Gold Club Q"t\&l 2. " S~""''"Y ~'..,) ~"~\c.,,,~. ~ i't~" 'l:o..'\rS ~._~ ,'"'- Z:J) 40. understands and agrees, that the City's award of the Demolition Contract to Harbour Construction shall be conditioned upon the City's receipt of a market based bid from Harbour Page 2 of9 ~ [#2J. ..... Construction and the execution of the Demolition Contract, which document shall be executed subsequent to the parties execution of this Settlement Agreement. 7. The City and Gold Club further acknowledge and agree that, in connection with the Lawsuit, Gold Club shall amend its First Amended Complaint, without objection of the City, to delete and/or drop its current count alleging a governmental taking. 8. The City and Gold Club agree that each shall be responsible for payment of their own respective attorneys fees, costs and expenses incurred in connection with the Lawsuit. 9. No later, than two (2) business days after Gold Club's counsel of record's receipt of the funds described in Paragraph 3 of this Settlement Agreement, Plaintiff, Gold Club shall forwith and without further notice file and serve its Notice of Voluntary Dismissal of Second Amended Complaint With Prejudice ("Voluntary Dismissal of Complaint"). Gold Club shall furnish a true and correct copy of such Voluntary Dismissal of Second Amended Complaint to the City via facsimile immediately upon the filing thereof with the Court and thereafter by U.S. Mail. Upon providing the City, via facsimile, with a true and correct copy of an Order dismissing the Lawsuit as set forth herein, Plaintiff, Gold Club's counsel of record may disburse the settlement funds, but no sooner. Plaintiff shall also immediately serve the City with said Order via U.S. mail. 10. Gold Club and City agree that by entering into this Settlement Agreement each fully releases the other from and of any and all claims arising out of, related to, and/or connected with the Lawsuit that each rnay have against the other, whether or not raised in the Lawsuit, whether known or unknown, and whether contingent or not, excepting that nothing in this Settlement Agreement shall be construed or interpreted as a waiver or forfeiture, by Gold Club, Page 3 of9 ~ ~ of any lawful right or claim it may have to seek apportionment of the condemnation proceeds in that certain eminent domain proceeding styled, City o/Sunny Isles Beach v. Leroy Wiener, et al., Case No.: 09-55633 CA 21. The provisions of this paragraph shall inure to the benefit of the parties, their employees, officers, directors, attorneys, shareholders, parents, affiliates, subsidiaries, successors, and any other related persons and/or entities. The parties hereto represent and warrant that they have not assigned any of the claims that are released pursuant to this paragraph. 11. The parties hereto agree that each shall be responsible for their own attorneys' fees and costs incurred in connection with the Lawsuit and this Settlement Agreement. 12. In the event of any litigation to enforce the terms or conditions of this Settlement Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, including appellate fees, in addition to any other relief to which such party may be entitled. 13. This Settlement Agreement shall not be filed in any action or proceeding, including mediation and arbitration, with any court, individual or agency unless necessary to enforce its terms and it ~hall otherwise remain forever confidential, to the extent permitted by law. 14. Each person whose signature is affixed hereto in a representative capacity represents and warrants that she/he is authorized and empowered to execute this Settlement Agreement on behalf of, and to bind, the person or entity on whose behalf his or her signature is affixed. 15. This Settlement Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which, when taken together, shall constitute but one and the same instrument. It is further expressly agreed that facsimile and portable document format ("pdf") signatures shall be considered originals for Page 4 of9 ~ .T.{iij) ~- 0/ the purpose of this Settlement Agreement. Plaintiff shall deliver to the City a signed copy of this Settlement Agreement not later than Monday, January 25, 2010. 16. This Settlement Agreement has been negotiated at arms-length between persons knowledgeable in the matters dealt with herein. In addition, each party has been represented by experienced and knowledgeable legal counsel. Accordingly, the parties hereto agree that any rule of law, legal decisions, or common law principles of similar effect, that would require interpretation of any ambiguities in this Settlement Agreement against the party that drafted this Settlement Agreement is of no application and is hereby expressly waived. The provisions of this Settlement Agreement shall be interpreted in a reasonable manner to effect the intentions of the parties hereto. 17. The parties hereto agree and consent that the Court in which the Lawsuit is currently pending shall retain jurisdiction to enforce the terms of this Settlement Agreement in accordance with Florida law and further agree that venue for any such enforcement action shall lie solely in Miami-Dade County, Florida. 18. The parties hereto further agree that if any provisions, terms, clauses, waivers and releases of claims and rights contained in this Settlement Agreement are declared illegal, unenforceable, or ineffective in a legal forum of competent jurisdiction, such provisions, terms, clauses, waivers and releases of claims or rights shall be modified, if possible, in order to achieve, to the extent possible, the intentions of the parties, and, to the extent possible, such provisions, terms, clauses, waivers and releases of claims and rights shall be deemed severable, such that all other provisions, terms, clauses, waivers and releases of claims and rights contained in this Settlement Agreernent shall remain valid and binding upon all parties hereto. Page 5 of9 ~ 19. The parties hereto further agree that this Settlement Agreement is contingent upon the Court's execution and entry of that certain Partial Stipulated Order of Taking, between and by Gold Club, Inc., and the City, in that certain eminent domain proceeding styled, City of Sunny Isles Beach v. Leroy Wiener, et aI., Case No.: 09-55633 CA 21. This Settlement Agreement may not be altered, amended, modified, superseded, canceled or terminated except by an express written agreement duly executed by all the parties hereto which makes specific reference to this Settlement Agreement. 20. Each notice or other communication required to be sent by any party to any other party shall be in writing, shall be sent either by messenger, first-class mail return receipt requested, or by facsimile transmission; shall be effective when received; and, shall be sent as follows If to PLAINTIFF: GOLD CLUB, INe. C/O John C. Lukacs, Esquire 201 Sevilla Avenue, Suite, 305 Phone: (305) 445-4425 Fax: (305) 445-2210 If to the DEFENDANT: CITY OF SUNNY ISLES BEACH Hans Ottinot, City Attorney 18070 Collins Avenue Sunny Isles Beach, FL 33160 Telephone: (305) 792-1702 Facsimile: (305) 792-1562 or to such other person(s) and address(es) as the parties may hereafter designate in writing. Page 6 of9 21. This Settlement Agreement contains the entire agreement between the parties hereto relating to the transactions contemplated hereby, and all prior or contemporaneous agreements, understandings, representations and settlements between the parties, whether oral or written, are hereby cancelled and repudiated in their entirety. mm-----LAST ITEM/TWO (2) SIGNATURE PAGES FOLLOWm-m------- Page 7 of9 J>~- ~ , Date: \\M \ \() \ \ WITNESSES: Printed Name Street Address City, State. Zip Code Printed Name Street Address City, State Zip Code -, ~~ ~\~ Y~m~~ G D CLUB, INC., ~:\b~ Signature Signature Page 8 of9 "hf. .q!f;- Date: WITNESSES: Printed Name Street Address City, State Zip Code Printed Name Street Address City, State Zip Code ,FTLDOCS 5503464 4 :1/23/10 05:34 PM zl';} 4kl~ ITY OF SUNNY IS-LES BE / 1t1~/ Signature Signature Y;T. o;kl Page 9 of9 Date: WITNESSES: Printed Name Street Address City, State Zip Code Printed Name Street Address City, State Zip Code , ... GOLD CLUB, INC., Signature Signature Page 8 of9 ..~.@/9 V~l . - City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 Ci(y Commission Norman S. Edelcup, M'!}or Lewis J. Thaler, Vice At'!}or Roslyn Brezin, Commi""ioner Gerry Goodman, Commi""ioner George "Bud" Scholl, Commir.rioner (305) 947-0606 City Hall (305) 949-3113 Pax (305) 947-2150 Building Department (305) 947-5107 Fax Rick Conner, City Manager Hans Ottinot, City Allomey Jane A. Hines, City Clerk MEMORANDUM TO: The Honorable City Commission FROM: Hans Ottinot, City Attorney ~ DATE: January 28, 2009 RE: Partial Stipulated Order of Taking RECOMMENDATION: This Resolution is presented for your consideration. REASONS: The City filed an eminent domain action to acquire the property located at 215-255 Sunny Isles Boulevard. The City has reached a settlement with the tenants The Gold Club, Inc. ("Beachhouse Cabaret") and LKD, Inc. ("Amazing Flowers"). The terms of the settlement were previously disclosed to members of the City Commission. / Attachment Agenda Item Abh-DN; ,OG Date 1- 2 'g - I ()