SETTLEMENT AGREEMENT AND MUTUAL RELEASE
This Settlement Agreement and Mutual Release (“Agreement”) is made and executed by
and between the CITY OF TREASURE ISLAND, FLORIDA (“CITY”), and TAHITIAN
TREASURE ISLAND, LLC., PAGE TERRACE MOTEL, INC., CAIDAN ENTERPRISES,
LLC., DAVID KING, ARTHUR CZYSZCZON, and KEVIN MCINERNEY (collectively,
“PLAINTIFFS”) who agree as follows:
-RECITALSWHEREAS, PLAINTIFFS have sued the CITY via a lawsuit titled Tahitian Treasure
Island, LLC, et al., v. City of Treasure Island, Florida, which is pending in the Circuit Court of
the Sixth Judicial Circuit, in and for Pinellas County, Florida, case no. 13-011287-CI-19.
PLAINTIFFS also initialed related administrative proceedings under Chapter 120, Fla. Stat.,
before the Florida Department of Environmental Protection (“DEP”) and the Division of
Administrative Hearings, which have been dismissed; and
WHEREAS, among other matters at issue in the lawsuit, are special events held by the
City on property seaward of the Treasure Island Central Beach Trail (“Trail”) in Treasure Island,
Florida, such as “Bands on the Sands” on Memorial Day weekend, July 4th Fireworks, and
“Sanding Ovations Master Sand Sculpturing Competition in November.” In particular, at issue
is vehicle parking on land within the City’s jurisdiction, at or near the beach, associated with
events. Further, from time to time the City permits other special events on its property seaward
of the Trail that are conducted by non-profit organizations and others for fund raising purposes
such as American Cancer Society’s Relay for Life, Surfers for Autism, or American Legion Car
Show; and
WHEREAS, PLAINTIFFS claim Treasure Island Ordinance 03-03 and § 58-38 of the
Treasure Island Code of Ordinance are invalid and violate § 161.58, Fla. Stat., assert claims
under the Florida Environmental Protection Act, and claim the CITY is violating a court decree
from 1966. The CITY fully and unequivocally denies all claims asserted by PLAINTIFFS; and
WHEREAS, Bona fide disputes and controversies exist as to the issues noted above,
and by reason of such disputes and controversies the CITY and PLAINTIFFS desire to settle the
above lawsuit and their disputes, and have reached a settlement as provided herein.
NOW THEREFORE, for and in consideration of mutual benefits and the public interest
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
-TERMS AND CONDITIONS1.
Recitals; Term of the Agreement
The foregoing recitations are true and correct and are hereby incorporated herein by
reference. This Agreement shall continue in effect from the Effective Date, unless terminated as
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provided below in Paragraph 6 or 10. The Effective Date shall be after all PLAINTIFFS and a
duly authorized representative of the CITY, per Resolution, sign this Agreement.
2.
Special Event Area Exhibit.
A. Attached to this Agreement is Exhibit 1, which is incorporated herein by reference,
and which depicts the special event area on property within the City’s jurisdiction
(“special event(s)” or “event(s)”), and designates how each portion of the event area
will be used pursuant to this Agreement.
B. From time to time, the uses within the special event area may be transposed from one
portion to another; however, the special events and associated activities shall be
contained within the overall area depicted.
3.
Consideration and release provided by the CITY
A.
B.
Parking on Property in the City. The CITY may permit vehicular parking by
the general public on land within the City’s jurisdiction, as depicted in Exhibit 1,
for up to four (4) City sponsored special events per year. This Agreement in no
way precludes the CITY from allowing driving and/or parking of vehicles on such
lands for other reasons, including driving and/or parking by:
i.
CITY employees or representatives (e.g., police department, sanitation);
ii.
Employees or representatives of other governmental entities or regulatory
authorities (e.g., sea turtle surveyors, DEP representatives);
iii.
Limited, special beach access requests as may be received by the CITY
(e.g., request by the Make-A-Wish Foundation to drive handicap children
to the shoreline);
iv.
Vendors, concessionaires, or licensees who enter into vendor, concession,
or license agreements with the CITY not directly associated with events
(e.g., cabana or umbrellas rentals, beach water slide); or
v.
Vendors, concessionaires, or licensees for events, as provided in
Paragraph 3.B.
vi.
As otherwise allowed by State law or court order.
As to Events. All references to parking in this sub-section refer to parking in the
event area as depicted in Exhibit 1.
i.
The City will not hold special events nor allow special events by others
between January 1, and April 30, of each year that include general public
parking. However, vendor loading and unloading will be permitted for
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special events during this timeframe and vendor, participant, and
handicapped parking may be permitted only in the area designated for
such parking at the south end of the event area depicted in Exhibit 1.
ii.
The City shall not permit a carnival at any time of the year.
iii.
The CITY may hold up to four (4) special events a year between May 1st
and December 31st that include general public parking and vendor, band,
and handicapped parking in the special event areas depicted in Exhibit 1,
as well as associated ingress and egress. Beverage and food dispensing
trucks may be parked and utilized within the event area depicted in Exhibit
1.
iv.
The City may permit any number of special events within the event area
depicted on Exhibit 1 provided no general public parking is permitted.
However, parking for vendors, participants, and handicapped parking may
be permitted in the southerly area shown on Exhibit 1. Beverage and food
dispensing trucks may be permitted by the City within the event area.
v.
Any number of special events conducted by a non-profit, not-for-profit, or
other entity for fund raising purposes for a recognized charity or
community service organization (i.e., Boys and Girls Club, All Children’s
Hospital), may be allowed by the City provided general public parking is
not permitted. However, parking for vendors, participants, and
handicapped parking may be permitted in the southerly area shown on
Exhibit 1. Beverage and food trucks may be permitted by the City within
the event area.
vi.
Parking will not be allowed behind the Thunderbird Resort, contingent
upon the City obtaining a permit from the Florida DEP to install a utility
box to accommodate the power needs of vendors and others. If such a
permit is not granted then parking will be limited to a total of 6 days per
year behind the Thunderbird resort.
C.
The CITY waives any claim it may have to recover its attorneys’ fees or costs as
to the above lawsuit, and any associated claims, which may exist as of the Effective Date. This
provision shall survive any termination of this Agreement.
4.
Consideration and release provided by PLAINTIFFS
A.
In consideration of the sum of Ten Dollars ($10.00) and other good and valuable
consideration, receipt of which is hereby acknowledged, PLAINTIFFS
completely and unequivocally release, acquit, and discharge the CITY, any office
or department of the CITY, any and all insurers of the CITY including but not
limited to Preferred Governmental Insurance Trust and Summit Risk Services,
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and any and all officials, officers, employees, agents, and attorneys of the CITY
or such entities, whether acting in individual or official capacities (collectively
“Releasees”), from any and all claims, allegations, assertions, and causes of action
of any kind, whether for money damages, attorneys’ fees, declaratory relief,
injunctive relief, mandamus relief, nominal relief, or other relief, which are
known or unknown, foreseen or unforeseen, matured or unmatured, fixed or
contingent, liquidated or unliquidated, which concern, arise from, or relate to any
special event and any associated conduct of Releasees, and which concern, arise
from, or relate to driving and/or parking on land located within the CITY’s
jurisdiction, for purposes other than events, which exist or may exist as of the
Effective Date of this Agreement, and which exist or may exist through the term
of this Agreement, including but not limited to claims: asserted in the above
lawsuit and administrative proceedings; asserted under any provision of the
United States Constitution or any federal statute; asserted under the Florida
Constitution or any Florida statutes; which seek to recover attorneys’ fees; which
seek to recover damages of any kind in any amount; involving allegations of
environmental harm caused by events; involving alleged environmental harm
caused by any vehicular traffic or parking associated or not with such events;
asserted under any state or federal public record law or open government law; as
to any actions of the CITY relative to events; as to Ordinance 03-03, § 58-48 of
the Code of Ordinance, or any provision of Chapter 58 of the Code of Ordinances
relative to land within the CITY’s jurisdiction described above, and events held
thereon; asserted under Chapter 161, Fla. Stat.; asserted under Chapter 403, Fla.
Stat.; asserted as to any state or federal permits issued to the CITY or any other
entity relative to events, including the initiation of administrative proceedings
under Chapter 120, Fla. Stat.
5.
B.
The release, acquittal, and discharge provided above shall apply prospectively for
the term of this Agreement, as to any events or other associated actions of
Releasees which occur after the execution of this Agreement, for so long as the
CITY complies with the conditions stated in herein.
C.
Upon execution of this Agreement by a duly authorized representative of the City
Commission, PLAINTIFFS shall file a Notice of Voluntary Dismissal with
Prejudice in the above action as to all counts and claims, and all defendants.
D.
The PLAINTIFFS waive any claim they may have to recover their attorneys’ fees
or costs as to the above lawsuit, and any associated claims, which may exist as of
the Effective Date. This provision shall survive any termination of this
Agreement.
Commission action required to finalize Agreement
PLAINTIFFS recognize and acknowledge this Agreement shall be deemed fully executed
and enforceable only upon being signed by a duly authorized representative of the City
Commission and as authorized by Resolution.
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6.
Changes in the law or future litigation
Should the Florida Legislature repeal §161.58, F.S., amend §161.58, F.S., in a manner
which permits vehicular traffic on or near beach areas in the CITY regardless of the prior
passage of any ordinance under §161.58, F.S. or pass a law which provides §161.58, F.S, does
not apply to the CITY or otherwise allows vehicular traffic on or near beaches in the CITY
notwithstanding §161.58, F.S., or should a court of competent jurisdiction over the CITY
invalidate or strike §161.58, F.S., or construe it or the CITY’s ordinances in a manner which
permits vehicular traffic on beach areas in the CITY regardless of the prior passage of any
ordinance under §161.58, F.S., or determine events are not occurring on the statutory beach as
defined in §161.054, F.S., the CITY may, at its option, cancel this Agreement via written notice
to PLAINTIFFS. Upon such cancellation, the CITY and PLAINTIFFS shall be relieved of all
remaining or continuing obligations under this Agreement except as to attorneys’ fees as
provided above. Nothing in this Agreement shall be construed to bar the CITY from requesting
or supporting that the Florida Legislature amend or repeal §161.58, F.S., or pass a law which
would apply to the City relative to vehicular traffic on or near beach areas in the CITY.
Additionally, nothing in this Agreement shall be construed to bar the CITY, if sued or named as
a respondent in a judicial or administrative proceedings, from asserting any and all defenses and
counter/cross claims as may be available to the CITY in defense of its activities, its ordinances,
or its Code of Ordinance, including the assertion of any and all defenses and counter/cross claims
as to §161.58, F.S. PLAINTIFFS recognize and acknowledge that, pursuant to their release,
acquittal, and discharge provided in Paragraph 4.A., and Paragraph 4.B., they are barred from
intervening in, or supporting, any such litigation or proceedings initiated by third parties against
the CITY.
7.
No admissions.
The consideration contemplated herein is exchanged to resolve potential, doubtful, and
disputed claims, and to avoid the expense of litigation, and shall not be construed as an
admission as to any disputed factual or legal contention. The parties recognize and acknowledge
the above consideration is voluntary.
8.
No recovery of attorneys’ fees for future litigation over this Agreement
PLAINTIFFS and the CITY agree that should any party hereto initiate litigation over this
Agreement or any provision contained herein, including a claim that any party has breached this
Agreement, there shall be no right to recover attorneys’ fees by any party to such litigation,
regardless of the nature of the claims asserted, whether claims are asserted under laws or statutes
which may provide for the recovery of attorneys’ fees, or the result of the litigation.
9.
Applicable law
This Agreement shall be construed and interpreted in accordance with Florida law,
without regard to otherwise applicable principles of conflict of law, and venue shall lie
exclusively in Pinellas County, Florida.
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10.
Successors in interest
This Agreement shall be binding upon PLAINTIFFS and their heirs, issues, assigns,
successors, officers, directors, agents, and employees, and shall be binding upon, and inure to the
benefit of the CITY, and its heirs, issues, assigns, successors, officers, directors, agents, and
employees. This Agreement is not assignable, does not run with the land and shall be
automatically extinguished upon 2 or more of the Plaintiffs selling all or part of their respective
businesses and/or real property as identified in the lawsuit.
11.
Additional documents
PLAINTIFFS and the CITY agree to cooperate and execute any supplemental documents
and to take all additional actions which may be necessary or appropriate to give full force and
effect to the settlement reached. PLAINTIFFS recognize the City Commission may pass future
resolutions and/or ordinances to give full force and effect to this Agreement.
12.
Demonstrative maps
PLAINTIFFS and the CITY recognize that any demonstrative maps attached hereto as
exhibits are demonstrative in nature, and are not intended to establish any precise, exact
boundaries for, or metes and bounds of, the event and parking areas, and parking paths, which
must be utilized by the CITY for events. PLAINTIFFS and the CITY recognize the CITY may
from time to time, and from one event to the next, provide for minor shifts in the exact location
and size of the event and parking areas, and minor changes in the route followed by any vehicle
parking paths. However, the CITY intends to follow the general outline of the event and parking
areas, and parking paths, provided on the demonstrative maps to the extent practicable.
13.
Execution by each plaintiff required
PLAINTIFFS recognize and acknowledge the CITY Mayor and City Manager are not
obligated to take any actions under this Agreement until each of the PLAINTIFFS has signed
this Agreement.
***BY SIGNING BELOW, THE PARTIES HERETO AGREE TO BE BOUND BY
THE TERMS AND CONDITIONS OF THIS SETTLEMENT AGREEMENT***
MAYOR, CITY OF TREASURE ISLAND, FLORIDA
/s/
______________________________
Date: ________ , 2014
_____________________ (print name)
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APPROVED AS TO FORM AND CONTENT:
_______________________________
City Attorney
Date: ___________, 2014
ATTEST:
By: ____________________
City Clerk
Date: ____________, 2014
TAHITIAN TREASURE ISLAND, LLC
/s/
______________________________
Date: ________ , 2014
_____________________ (print name)
_____________________ (title / office)
PAGE TERRACE MOTEL, INC.
/s/
______________________________
Date: ________ , 2014
_____________________ (print name)
_____________________ (title / office)
Signing for
CAIDAN ENTERPRISES, LLC
/s/
______________________________
Date: ________ , 2014
_____________________ (print name)
_____________________ (title / office)
DAVID KING
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/s/
______________________________
Date: ________ , 2014
ARTHUR CZYSZCZON
/s/
______________________________
Date: ________ , 2014
KEVIN MCINERNEY
/s/
______________________________
Date: ________ , 2014
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