HomeMy Public PortalAbout21-9852 Agreement w/B & G Holdings, Inc and B & GSponsored by: City Manager
RESOLUTION NO. 21-9852
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF OPA-LOCKA, FLORIDA, AUTHORIZING THE
CITY MANAGER TO EXECUTE A SETTLEMENT
AGREEMENT WITH B & G OPA HOLDINGS, INC. AND
B & G OPA LAND HOLDINGS, LLC; AUTHORIZING
THE CITY MANAGER TO TAKE NECESSARY ACTION;
PROVIDING FOR AN EFFECTIVE DATE
WHEREAS, on or about January 18, 2018, and establishment known as "Klub 24"
operated a full service restaurant and lounge (i.e. an alcoholic beverage establishment)
offering dance entertainment by fully nude performers twenty-four hours a day; and
WHEREAS, the City of Opa-Locka ("City") regulates alcoholic beverage
establishments and sexually oriented business through its Zoning Code and Code of
Ordinances; and
WHEREAS, at all relevant times, City believed, in good faith, that Klub 24 had not
secured the necessary zoning and licensing approvals to operate a sexually oriented
business with alcohol service at its present location; and
WHEREAS, acting on that good faith belief, the City ordered the closure of the
Klub 24 business and the revocation of Klub 24's licenses and permits; and
WHEREAS, Klub 24 filed a lawsuit in the United States District Court for the
Southern District of Florida, B & G Opa Holdings, Inc., v. City of Opa Locka and Newall J.
Daughtrey, Case CASE NO:1:18-cv-23269-DPG, which raised a number of constitutional
and state law challenges to Opa Locka's zoning code and the procedures by which the
City shut down the Klub 24 business and revoked its licenses; and
WHEREAS, Klub 24 also asserted a damages claim against the City which at this
time it contends amounts to some $5 million for lost profits and carrying costs; and
WHEREAS, the District Court entered an Order on summary judgment on
September 30, 2020, that determined, inter alia, that the City had not provided sufficient
sites for sexually oriented businesses; that its special exception process was
unconstitutional as applied to sexually oriented businesses; that there were potentially
unconstitutional provisions in the City's sign code; that the definition of "Adult Business"
in the Opa-Locka Zoning Code is neither vague nor overbroad; and that the definitions
in Chapter 4, Article II relative to nudity in alcoholic beverage establishments are likewise
constitutional; and
Resolution No. 21-9852
WHEREAS, certain other of Klub 24's claims were left unresolved including the
crucial question of whether Klub 24 was entitled to recover any damages against Opa
Locka; and
WHEREAS, during the course of this litigation Opa-Locka has taken certain
legislative steps to address some of the claims asserted by Klub 24 in this litigation; and
WHEREAS, the Parties have participated in mediation to resolve all of their
disputes; and
WHEREAS, the parties acknowledge that litigation is uncertain while settlement
of disputes creates certainty for both parties while avoiding the significant burden and
expense of litigation; and
WHEREAS, the City Commission finds that it is in the best interest of the City to
resolve the case without giving up, reducing, or admitting liability or receding from its
previous position(s); and
WHEREAS, the City Commission finds it is the best interest of the City and its
residents to grant the City Manager authorization to execute the Settlement Agreement
attached hereto as Exhibit "A".
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF OPA-LOCKA, FLORIDA, THAT:
Section 1. Adoption of Representations. The foregoing "Whereas" clauses are
hereby ratified and confirmed as being true and the same are hereby made a specific part
of this Resolution.
Section 2. Approval of Settlement Agreement.
The City Commission of the City of Opa-Locka hereby authorizes the City Manager to
execute the settlement agreement the City with B & G Opa Land Holdings and B & G
Opa Holdings, Inc., referred to jointly and individually as "Klub 24, and more specifically
with said agreement attached hereto as Exhibit "A". Further, authorizing the City
Manager to take all necessary action consistent with this Resolution.
Section 3. Effective Date. This Resolution shall be effective immediately upon
adoption hereof and approval by the Governor of the State of Florida or his designee.
PASSED and ADOPTED this 24th day of March 2021.
Resolution No. 21-9852
Matthew A. Pigatt, Mayor
ATTEST:
oa3 a Flores, City Clerk
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY:
aid
Burnadette Norr
roK
eeks, P.A.
Moved by: Commissioner Burke
Seconded by: Commissioner Davis
VOTE: 4-0
Commissioner Burke YES
Commissioner Davis YES
Commissioner Taylor NOT PRESENT
Vice -Mayor Williams YES
Mayor Pigatt YES
City of Opa-locka
Agenda Cover Memo
Department
Director:
Department
Director
Signature:
City
Manager:
John E. Pate
CM Signature:
Commission
Meeting
Date:
03/24/2021
Item Type:
(EnterX in box)
Resolution
Or nance
Other
X
Fiscal
Impact:
(Enter X in box)
Yes
No
Ordinance Reading.
(Enter X in box)
18t Reading
2nd Reading
X
Public Hearing:
(Enter X in box)
Yes
No
Yes
No
X
X
Funding
Source:
(Enter Fund & Dept)
Ex:
Advertising Requirement:
(EnterX in box)
Yes
No
X
Contract/P.O.
Required:
(Enter X in box)
Yes
No
RFP/RFQ/Bid#:
X
Strategic
Plan Related
(EnterX in box)
Yes
No
Strategic Plan Priority
Enhance Organizational
Bus. & Economic Dev
Public Safety
Quality of Education
Qual. of Life & City Image
Communcation
Area:
Strategic Plan Obj./Strategy:
(list the specific objective/strategy this
item will address)
X
mi
NI
MI
MI
•
Sponsor
Name
City Manager
Department:
City Manager
Short Title:
A resolution authorizing the City Manager to execute a settlement agreement with B & G Holdings, Inc. and B
& G Opa Land Holdings, LLC.
Staff Summary:
B & G Opa Holdings, Inc. and B&G Opa Land Holdings, L.L.C. v. City of Opa-locks, Florida, and Newall J.
Daughtrey
Case No.: 1:18-cv-23269-DPG
A mediation took place between the parties to the subject lawsuit on Thursday, December 10, 2020. Settlement
is being recommended in this case by the City Manager as in the best interest of the City of Opa-Locka. The
resolution before the City Commission would authorize the City Manager to execute a Settlement Agreement
to fully resolve all issues pertaining to the pending lawsuit. Further, the resolution would also authorize the
City Manager to take other action necessary to achieve settlement pursuant to the agreement terms.
By way of background, Plaintiff, B&G Opa Holdings, LLC, owns and previously operated "Klub 24," a restaurant
and lounge that served alcohol and featured nude dancing 24 -hours a day. It also owns the associated business
licenses. Plaintiff, B&G Opa Land Holdings, LLC. owns the building and real property where Klub 24 is located.
Klub 24 is located in the City of Opa-locka's 1-2 industrial district. Beginning in 2015 (before leasing, and later
purchasing, the property for Klub 24), B&G's representatives met with City officials to discuss applicable
zoning restrictions and the necessary applications to open a proposed adult "strip club."
At that time, Section 22-81 of the City's Land Development Code (the "Code") permitted adult businesses in
the City's I-2 zoning area, so long as the City granted a special exception. It also permitted adult businesses in
the City's I-3 zoning area, subject to requirements that they be located at prescribed distances from places of
worship, schools, parks etc. The special exception process is set out in Section 22-60 of the Code. A special
exception would be granted if recommended by the City's Planning Council and approved by the City
Commission. The criteria identified in the Code for determining whether to grant the special exception was
determined by the Eleventh Circuit to be unconstitutional. The process is in the process of being brought to
the City Commission for repeal.
On April 13, 2018, the City Manager issued a letter that ordered B&G to cease and desist all operations until a
business license was properly obtained. On the same day, law enforcement officers served the cease and desist
order on B&G and directed them to close Klub 24. B&G complied, and Klub 24 has remained closed. Three days
after closure of Klub 24, B&G filed a lawsuit against the City for declaratory and injunctive relief, in the Circuit
Court for Miami -Dade County (Case No. 2018 -011909 -CA -01). That lawsuit was dismissed for lack of
prosecution on September 3, 2020.
This action was filed in federal court on August 10, 2018. B&G seeks declaratory and injunctive relief, and
damages, for the City's alleged violations of B&G's rights under the First Amendment and Due Process Clause
of the United States Constitution. The City's motion to dismiss was granted, in part.
Plaintiffs' prior demand for settlement was significant. After much discussion and negotiation by Attorneys,
City staff and the Plaintiffs, a proposed settlement agreement where the major terms would provide: 1) City
would agree to pay Plaintiffs $150,000 to resolve all claims-- including attorney's fees and costs. This amount
would be paid by the League of Cities under the City's insurance; 2) The City Manager would recommend to
the City Commission approval of a variance or other appropriate authority to allow Plaintiffs to operate an
adult club featuring alcohol and nude dancing 24 hours per day at the current location; 3) Off -Duty City of Opa-
locka police will be required for security detail at the club. There are other terms provided within the
agreement.
Financial Impact
The City will pay a $25,000 deductible under the City's insurance coverage...
Account
Description
Available
Expense
Remaining Balance
84-513452
Deductible
$125,000
$25,000
$100,000
Proposed Action:
Staff recommends the approval of this settlement request to avoid any additional litigation against the City.
Attachment:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
B & G OPA HOLDINGS, INC., a )
Florida Profit Corporation and B & G OPA )
LAND HOLDINGS, LLC, a Florida )
Limited Liability Company, d/b/a KLUB 24, )
)
Plaintiffs, )
vs. )
)
CITY OF OPA LOCKA, FLORIDA, )
a Political Subdivision of the State of Florida )
and NEWALL J. DAUGHTREY, )
an individual in his official capacity, )
)
Defendants. )
CASE NO: 1:18-cv-23269-DPG
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("Agreement") is entered into this day of
March, 2021, by and between B & G OPA HOLDINGS, INC. and B & G OPA LAND
HOLDINGS, LLC (referred to jointly and individually as "Klub 24") and the CITY OF OPA
LOCKA, FLORIDA ("Opa Locka" or "the City"). All the foregoing sometimes referred to as the
"Parties".
WHEREAS, on or about January 18, 2018, Klub 24 opened and operated a full service
restaurant and lounge (i.e. an alcoholic beverage establishment) offering dance entertainment by
fully nude performers twenty-four hours a day; and
WHEREAS, Opa Locka regulates alcoholic beverage establishments and sexually
oriented business through its Zoning Code and Code of Ordinances; and
WHEREAS, Opa Locka believed in good faith that Klub 24 had not secured the necessary
zoning and licensing approvals to operate a sexually oriented business with alcohol service at
its present location; and,
WHEREAS, acting on that good faith belief, the City ordered the closure of the Klub 24
business and the revocation of Klub 24's licenses and permits; and
WHEREAS, Klub 24 filed a Federal lawsuit which raised a number of constitutional and
state law challenges to Opa Locka's zoning code and the procedures by which the City shuttered
the Klub 24 business and revoked its licenses; and
WHEREAS, Klub 24 also asserted a damages claim against the City which at this time it
contends amounts to some $5 million for lost profits and carrying costs; and
WHEREAS, the District Court entered an Order on summary judgment on September 30,
2020, that determined, inter alia, that the City had not provided sufficient sites for sexually
oriented businesses; that its special exception process was unconstitutional as applied to sexually
oriented businesses; that there were potentially unconstitutional provisions in the City's sign code;
that the definition of "Adult Business" in the Opa-Locka Zoning Code is neither vague nor
overbroad; and that the definitions in Chapter 4, Article II relative to nudity in alcoholic beverage
establishments are likewise constitutional; and
WHEREAS, certain other of Klub 24's claims were left unresolved including the crucial
question of whether Klub 24 was entitled to recover any damages against Opa Locka; and
WHEREAS, during the course of this litigation Opa Locka has taken certain legislative
steps to address some of the claims asserted by Klub 24 in this litigation; and
WHEREAS, the Parties have participated in mediation to resolve all of their disputes; and
Page 2 of 14
WHEREAS, the parties acknowledge that litigation is uncertain while settlement of
disputes creates certainty for both parties while avoiding the significant burden and expense of
litigation; and
WHEREAS, all parties wish to resolve the case without giving up, reducing, or admitting
their own claims or defenses, or receding from their positions;
NOW THEREFORE, the parties agree and contract as follows:
1. The parties agree that the relief afforded by this Agreement shall not be construed
as a concession by the City of Opa Locka that it violated any of Plaintiffs' constitutional rights or
committed any act of wrongdoing, it being acknowledged that the City of Opa Locka specifically
denies any such violations or wrongful acts.
2. The intention of the Parties and the essence of this Agreement is that Klub 24 will
receive from the City all of the City -issued permits, licenses and approvals necessary for Klub 24
to operate a sexually oriented business allowing dancing and entertainment by totally nude
performers, with complete alcohol service (under a 4 -COP license, SRX license or equivalent),
twenty-four (24) hours per day, every day, at their present location: 3699 NW 135th Street, Opa-
Locka, Miami -Dade County, Florida (the "subject property").
3. Contingent upon approval by the City Commission, and as more specifically
addressed below, the City of Opa Locka agrees to take the following actions to resolve this
litigation:
A. Pay the sum of ONE HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS
($150,000.00) to Klub 24;
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B. Grant a licensing variance which permits Klub 24 and its designees to operate a
sexually oriented business at its present location featuring the sale of food and alcohol in
conjunction with fully nude dance entertainment twenty-four hours per day;
C. Issue a final Certificate of Occupancy to Klub 24;
D. Issue a Business Tax Receipt for the current year to Klub 24; with BTRs in
subsequent years being issued as a matter of course so long as Klub 24 is in substantial compliance
with this Agreement; and
E. Approve the existing sign structure and "close out" any issues pertaining to sign
permits.
F. Upon the City's approval of the variance referenced in this agreement, Klub 24's
nonconforming use of the subject property may be continued subject to the following conditions
and requirements:
(i) Expansion. Klub 24's nonconforming use of the subject property shall not be
expanded into any other portion of the property.
(ii) Parking. Klub 24 shall not reduce its on -site parking below 70 spaces as further
addressed in paragraph 4 below.
(iii) Change. The nonconforming use of the subject property may be changed only to a
conforming use except as provided. The parties understand that a temporary closure or
discontinuance of the use for less than 180 days shall not result in the loss of vested rights or
require reversion to a conforming use. (See, §22-11-A, Opa-Locka Zoning Code). If Klub 24's
nonconforming use of the subject property is changed to a conforming use, it may thereafter be
changed only to another conforming use.
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(iv) Discontinuance. If the nonconforming use of the subject property is discontinued,
the subject property shall not be returned to a nonconforming use. The nonconforming use shall
be considered to be discontinued when the subject property has been devoted to another use or if
the subject property is vacant for a period of 180 calendar days (See, §22-11-A, Opa-Locka Zoning
Code).
4. PARKING. Klub 24 has submitted a revised site plan which shows on -site parking
for approximately eighty (80) vehicles with minimum parking for seventy (70) vehicles. The City
accepts this site plan -and acknowledges that parking for 70 vehicles is complies with the City's
Codes subject to the following covenants and standards:
A. Klub 24 shall provide parking for a minimum of seventy (70) vehicles. The City
acknowledges that "stacked" valet parking will be utilized to accommodate the 70 vehicles in the
available parking spots and approves of that plan. The City also acknowledges that the adjoining
printing business may utilize interior parking for its employees.
B. Klub 24 shall provide valet parking and will designate such valet parking areas with
signage.
C. Klub 24 shall not make use of any adjoining space for any purpose other than
parking or storage. Klub 24 shall also not expand the size of its existing customer service area.
E. Special Event Parking. If Klub 24 conducts a special event, that is an event that
advertises a specific performer, performers, or features advertising for a specific event (i.e. Holiday
parties, sporting events, etc.) , it shall make all efforts to enter parking agreement(s) with nearby
property owners to provide additional parking to accommodate the potential needs. Klub 24
understands and shall inform patrons that, if they park illegally, they are subject to fines and cars
being towed.
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5. The parties acknowledge and agree that all of the forgoing obligations shall be
contingent upon approval of this Agreement by the City Commission and approval of the
Agreement by the Financial Emergency Oversight Board. If the City Commission fails to approve
this Settlement Agreement before March 24, 2021, this Agreement shall lapse and each party shall
have all of their rights and claims which existed prior to the negotiation of this Settlement
Agreement. Subsequent to the City Commission's approval, the City shall obtain the approval
Financial Emergency Oversight Board with diligence.
6. Within ten (10) days of the execution of this Agreement by Klub 24's
representatives, the City Attorney for the City of Opa Locka shall submit this Agreement to the
City Commission. The City Commission shall promptly seek and secure the approval of this
Agreement by the Financial Emergency Oversight Board. The parties' rights and obligations under
this Agreement are contingent upon the approval of this Agreement required for Klub 24 to
operate. The City Commission shall advertise and conduct the public meeting(s) necessary to
fulfill its obligations under this Agreement no later than March 24, 2021. Should the City
Commission fail to approve this Agreement by March 24, 2021, this Agreement shall lapse and
each party shall have all of their rights and claims which existed prior to the negotiation of this
Settlement Agreement.
7. The parties acknowledge and agree that the City Commission reserves the right to
amend or reject this proposed Agreement. In the event that the City Commission makes changes
to this Agreement, the parties shall consult in good faith as to whether those changes are
substantive in nature or change the spirit or intent of the proposed settlement. If Klub 24, in its
sole discretion, determines that such changes are material or adverse to its interests, this Settlement
Agreement shall not take effect, the above -captioned cause shall not be dismissed, and the parties
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shall retain all of the rights, claims and defenses that existed prior to the negotiation of this
Settlement Agreement.
8. The City reserves all rights of sovereign immunity under Florida and Federal law
and Opa Locka does not by this Settlement Agreement waive its sovereign immunity generally or
to any extent beyond its express obligations to perform as set forth in this Settlement Agreement.
9. PAYMENT. Within thirty (30) days of approval of this Agreement and approval
by the City Commission, Opa Locka will pay the sum of ONE HUNDRED FIFTY THOUSAND
AND 00/100 DOLLARS ($150,000.00) to Klub 24 c/o "Benjamin, Aaronson & Patanzo, P.A.
Trust Account" at 1700 East Las Olas Blvd., Suite 202, Ft. Lauderdale, Florida 33301. Opa Locka
may issue a single W-9 listing B & G OPA HOLDINGS, INC., as the payee; any further allocation
of the payment between the two Plaintiffs shall be as they determine and Opa Locka shall have no
responsibility for same.
10. LICENSING The Opa-Locka City Commission shall issue a license which
specifically authorizes Klub 24's business operations at their property, to -wit: 3699 NW 135th
Street, Opa-Locka, Miami -Dade County, Florida.
The license shall specifically grant and approve the following rights to Klub 24:
A. The right to sell alcoholic beverages (subject only to state licensing requirements);
B. The right to operate a restaurant (subject only to state and County licensing
requirements, health inspections, and fire inspections);
C. The right to provide fully nude dance entertainment by live performers;
D. The right to operate for twenty-four hours per day every day.
The license shall not include any conditions or additional requirements which would
prevent Klub 24 from operating a sexually oriented business under the format described above. In
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addition, Klub 24 shall not be required to obtain a special exception, since the United States District
Court has determined that the City's special exception process is unconstitutional.
It is understood and agreed that the City has sufficient information based on the current
applications, permits, site plans, and data available to it to approve and grant the license under the
Opa-Locka code.
The City represents that it is not presently aware of any facts which would cause it to deny
a license to Klub 24. However, the forgoing representation shall not prevent the City from denying
the variance or reject this Settlement Agreement in the public interest.
The license shall be approved or rejected no later than March 24, 2021.
11. CERTIFICATE OF USE. The City acknowledges that Klub 24 was issued a
"temporary certificate of occupancy" at the time it initially opened in 2018. Not later than five (5)
business days after the approval of this Agreement by the City Commission, Opa Locka shall issue
a Final Certificate of Use (alternatively referred to as a Certificate of Occupancy) allowing Klub
24 to operate as a sexually oriented business under the format contemplated in paragraphs 2 and
9, provided that all other necessary State and County requirements have been met.
12. BUSINESS TAX RECEIPT. Upon payment of the appropriate tax by Klub 24,
the City shall issue an "occupational license" (also referred to under state law as a "business tax
receipt") for 2021 to B & G OPA HOLDINGS, INC.
13. LANDSCAPING. The City acknowledges that the current landscaping meets all
code requirements and that no changes to landscaping will be required as a condition for the
variance or the issuance of the Final Certificate of Occupancy. Klub 24 will not make any
substantial change in landscaping without submitting a new landscaping plan to the City.
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14. SIGNAGE. The City acknowledges and agrees that Klub 24's existing sign is a
lawful, nonconforming sign and will be regulated consistently with other lawful, nonconforming
signs in the community. Klub 24 will not be required to apply for any sign permits in order to use
and maintain its existing signage.
15. OPEN PERMITS. The City represents that, with the exception of third -party
issues pertaining to fire codes (regulated by the MDFRD) and potable water / grease trap (regulated
by DERM), the City is unaware of any open or unaddressed issues with respect to building permits
or other permits within its control, including any issues associated with Klub 24's signs. The City
will treat all of those issues as resolved and will not withhold any permits currently issued or which
are required in order to reopen and operate the Klub 24 business.
16. FIRE SAFETY ISSUES. The City acknowledges that it plays no role with respect
to the citations issued by the Miami -Dade Fire Rescue Department to Klub 24 having to do with
"sprinkling" and other fire safety issues. The City acknowledges that the variance, certificate of
occupancy and other permits required for Klub 24 to do business are not dependent upon any
inspection or approval by MDFRD. The City further acknowledges that it will take no action to
prevent Klub 24 from opening and operating notwithstanding the MDFRD citations. Nothing
herein shall affect Klub 24's obligation to comply with fire safety regulations or limit the authority
to MDFRD to address any outstanding fire safety citations.
17. DERM APPROVAL. Klub 24 represents that it has applied for approval to the
Miami -Dade Department of Environmental Resources Management ("DERM") for final approval
of its potable water supply and its grease trap. The City acknowledges that it plays no role with
respect to DERM approval of the potable water supply and the grease trap. The City acknowledges
that the variance, certificate of occupancy and other permits required for Klub 24 to do business
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are not dependent upon any inspection or approval by DERM. The City further acknowledges that
it will take no action to prevent Klub 24 from opening and operating notwithstanding the pending
application for DERM approval. Nothing herein shall affect Klub 24's obligation to obtain DERM
approval of its potable water supply and grease trap or limit the authority to DRM to regulate and
enforce its rules relative to same.
18. The City shall cooperate with Klub 24 in securing any permits, licenses or
approvals that may be required by other government agencies or regulatory bodies. Following
issuance of a certificate of use to Klub 24, the City and its servants, agents and employees, shall
certify in writing, upon request, that Klub 24 is entitled to operate a sexually oriented business
under the format described in paragraphs 2 and 9 of this Agreement at the subject property.
19. Klub 24 shall contract with off -duty Opa Locka law enforcement officers to provide
security at its business. The City will make its officers available to contract with Klub 24 to the
same degree and on the same terms afforded all other businesses within the City.
20. Klub 24 shall be entitled to no relief under the above -captioned Federal proceeding
other than those rights and benefits afforded by this Agreement. Klub 24 hereby acknowledges
that the stated consideration set forth in this Agreement is full compensation for and on account of
any and all injuries and damages of any kind whatsoever which it claimed or alleged were sustained
or could have claimed or alleged to have been sustained, including attorney's fees and costs.
21. DISMISSAL. Upon approval of this Agreement, payment of the specified sum,
granting of the required variance, and issuance of the Final Certificate of Occupancy by the City,
Klub 24 shall execute and file a motion to dismiss the above -captioned case with prejudice. The
motion shall specify that each party shall bear its own attorney's fees and costs in this litigation.
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22. RELEASE. Contingent only upon approval of this Agreement, payment of the
specified sum and issuance of the Final Certificate of Occupancy by the City, Klub 24 hereby
waives and releases Opa Locka, its agencies, boards, departments, authorities, employees,
attorneys, representatives, and agents, from any claims, demands, damages, lawsuits, obligations,
promises, administrative actions, charges, and causes of action, in law or in equity, of any kind
whatsoever, relating to or arising out of the Complaint filed herein. This Waiver and Release
covers any causes of action or claims under The Civil Rights Act of 1991; Section 1981 and 1983
of the Civil Rights Act of 1866, as amended; claims under the Constitutions of the United States
and Florida, and claims under any other federal or state law or municipal ordinance, including any
lawsuits founded in tort (including negligence), contract (oral, written or implied), or any other
common law or equitable basis of action.
23. The City represents and warrants that it has no claims for damages or other relief,
in law or in equity, against the Plaintiffs, or either of them, which could have been asserted as a
compulsory or permissive counterclaim in the above -captioned action. To the extent any such
claim may exist, the City, by this Agreement, releases, abandons and waives all such claims.
24. In the event of a legal action or other proceeding arising under this Settlement
Agreement or any Consent Order, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and costs, whether incurred before suit, during suit, or at the appellate level. The
prevailing party shall also be entitled to recover any attorneys' fees and costs incurred in litigating
the entitlement to attorneys' fees and costs, as well as in determining or quantifying the amount of
attorneys' fees and costs due to it.
25. In the event of a legal action or other proceeding arising under this Settlement
Agreement, venue for such proceeding shall be the Circuit Court in and for Miami -Dade County,
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Florida, or if Federal jurisdiction exists, in the United States District Court for the Southern District
of Florida.
26. All parties have been represented by counsel and have voluntarily entered into this
Agreement with full knowledge of their rights and obligations herein. The undersigned
representatives of the respective parties hereby represent and warrant that each representative has
the authority to execute this Agreement, and bind their respective entities to the terms and
conditions of this Agreement. The normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the interpretation of this
Agreement or of any amendments or exhibits to this Agreement.
27. No terms of this Settlement Agreement are severable. The Parties acknowledge all
terms herein are material terms and the invalidation of one or more terms would necessarily affect
this entire Settlement Agreement.
28. Faxed or electronically scanned copies of the Parties' signatures on this Agreement
shall be considered the equivalent of an original "ink" signature for all purposes and shall bind the
person or entity executing the Agreement.
29. This Agreement shall constitute the sole and entire agreement of the parties and
neither party shall rely on any oral or written representations other than those set forth in this
Agreement. The covenants herein contained shall bind and the benefits and advantages herein
agreed to shall inure to the parties' respective heirs, executors, administrators, successors, and
assigns. There are no third party beneficiaries to this Agreement.
- SIGNATURES ON FOLLOWING PAGES -
Page 12 of 14
FOR THE PLAINTIFFS:
DATED: , 2021.
B & G OPA HOLDINGS, INC. B & G OPA LAND HOLDINGS, LLC
BY: BY:
GREGG BERGER, President GREGG BERGER, Manager
FOR THE DEFENDANT:
DATED: March , 2021.
CITY OF OPA-LOCKA, FLORIDA
JOHN E. PATE, City Manager
APPROVED AS TO FORM:
lete/ei Ecy Fox
BURNADETTE N S -WEE S, Esquire
Florida Bar 949930
Law Office of Burnadette Norris -Weeks PA
401 N.W. 7th Avenue
Fort Lauderdale, FL 33311-8134
(954) 768-9770
bnorris@apnwplaw.com
City Attorney for the City of Opa Locka
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APPROVED BY THE CITY COUNCIL on: , 2021.
MATTHEW PIGATT, Mayor
ATTEST:
JOANNA FLORES, City Clerk
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