Bradenton Beach pier eviction looms; city ponders next step

It’s a three-legged approach Bradenton Beach commissioners hope will be the foundation for a successful restaurant on the Historic Bridge Street Pier.

While the eviction lawsuit against Roland Pena, owner of Cast-n-Cage Restaurant, moves through 12th Judicial Circuit Court, commissioners told city staff to generate a new request for proposal and a new pier lease agreement.

While city employees are prohibited from soliciting vendors, the third leg is for staff to create a marketing plan to generate interest among restaurateurs.

The sooner the better, commissioners said March 19. Pena was paying the city more than $7,000 a month before defaulting. His lease included the restaurant, bait shop and the harbormaster office.

Commissioners anticipate a favorable ruling from Judge Charles Sniffen in the eviction case, which likely will go to court soon. Either city attorney Ricinda Perry or Fred E. Moore of the Bradenton-based Blalock Walters law firm will represent the city.

Meanwhile, commissioners want to have the RFP and lease agreement ready if Sniffen evicts Pena. They voted unanimously to authorize Perry to prepare an RFP and a draft concessionaire agreement.

Those documents will be modeled after similar ones used by Manatee County for its beach concessions. Mayor Bill Shearon said he and Police Chief Sam Speciale, who heads the pier team committee, already spent “a lot of time and effort” adapting the county documents.

They said they could also get ideas from a similar lease the city of Venice has with a concessionaire for Sharky’s on the Pier restaurant.

Commissioner Jan Vosburgh and Vice Mayor Jack Clarke initially spoke favorably of using the existing RFP and lease as models for the next concessionaire. But they ultimately agreed to use the adapted county documents.

Clarke said his biggest concern is how to get more than two offers, which the city received in 2013 when Pena signed on. Shearon said the county received bids from only three companies for one of its concessions. He’s already heard from five people asking questions about the pier property.

“You’re going to have some very qualified bidders,” Shearon told commissioners. “It’s not going to be mom and pop, who want to open up a restaurant.”

 

Global settlement update

      On March 23, commissioners, the mayor and other parties to the four ongoing lawsuits against the city had received review copies of at least one segment of the settlement agreement.

Perry reviewed the draft and planned to forward it to the other attorneys involved in the case.

It appeared everyone involved had received email copies of the document by March 23.

Perry had said she was reluctant to communicate directly with plaintiffs until she received written permission from their attorney, Ralf Brookes of Cape Coral, who did not attend either the March 13 special meeting or the March 19 commission meeting.

The settlement document is included with this story, and future documents will be posted as they become available.

 

SETTLEMENT AGREEMENT #1

This Settlement Agreement (“Settlement Agreement #1”) is entered into as of the _____ day of March, 2015, by and Jo Ann Meilner (“Meilner”), Tjet Martin (“Martin”) William Shearon (“Shearon”), City of Bradenton Beach (“City”), City of Bradenton Beach Community Redevelopment Agency (“CRA”) and  ELRA, Inc. (“ELRA”).  Hereafter, Meilner, Martin, Shearon, City, CRA and ELRA are collectively referred to as the “Parties”.

RECITALS

            WHEREAS, a dispute arose between the Parties which resulted  in the filing of a lawsuit in the Circuit Court of the Twelfth Judicial Circuit in and for Manatee County, Florida, Case No.: 2012-CA-3736 (the “Lawsuit”);

WHEREAS, the Parties have engaged in extensive negotiations relating to the Lawsuit in which the Parties have been represented by counsel of their choice;

WHEREAS, the Parties desire to settle and finally resolve the Lawsuit;

WHERAS, the resolution of the Lawsuit is part of the proposed global settlement of four (4) pending lawsuits relating to the City of Bradenton Beach (the “Global Settlement”); and

WHEREAS, the Parties do not admit any liability or wrongdoing in connection with the settlement of the Lawsuit.

NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, and for other good and valuable consideration, the receipt and adequacy of which is acknowledged, the Parties agree as follows:

 

 

AGREEMENT

1. Recitals.  The above recitals are true and correct and are incorporated herein.
2. Incorporation.  This Settlement Agreement #1 incorporates the provisions of Settlement Agreement #2, Settlement Agreement #3 and Settlement Agreement #4.  Specifically, but without limitation, this Settlement Agreement #1 incorporates the “Contingency Events” as that term is described therein.  It is the intention of the Parties that the Global Settlement, including Settlement Agreement #1, Settlement Agreement #2, Settlement Agreement #3 and Settlement #4 shall be either completely effective – or completely void; in other words, it is the intention of the Parties to have all of the settlement agreements binding or none at all.
3. Intent.  It is the intent of the Parties that the City property involved in the lawsuit will be utilized for emergency access, recreation and/or open space with no hardscape elements (e.g., parking, sidewalks, pavers, wheel stops etc.);  the ELRA property shall be utilized for accessory commercial uses, including parking for ELRA.  The City property is to be utilized for the benefit of the public; conversely, the ELRA property shall remain as private property of ELRA, and will not be utilized for public benefit.
4. Contingency/Legally Binding The Parties agree to cause the following actions/events to occur:

(a)          LTA will certify complete the FDEP MEP1070 Permit (the “Permit”) with the installation of 16’ wide concrete driveway apron – shown as two-way ingress/egress and without installation of pavers for handicap access.  5 wheel stops will be placed in City Lot for 5 sand parking spaces.  Public works shall replace heavy duty bollards and rope along Gulf Drive Right of way, either side of sidewalk; reset the park bench and trash receptacle along the southern beach access; and shall install heavy duty bollards and rope along property line between ELRA and City lots.  Exhibit A is a copy of the anticipated revised site plan;

 

(b)          The joint development agreement (“JDA”) between the City, CRA and ELRA shall be amended consistent with this Settlement Agreement #1 including, without limitation, amendment to the site plan (See Exhibit A), deletion of the easement, elimination of the use of the City property for parking[RP1] ;

 

(c)          The comprehensive plan for the City shall be amended such that it allows specifically for the use described herein and in the JDA.  The amendment to the comprehensive plan shall only affect the ELRA property;

 

(d)          Following approval of the small scale comprehensive plan/rezone and amended site plan for ELRA, City Public Works Department shall remove the 5 wheel stops and relocate the park bench and trash receptacle to the interior of the City property and install educational signage and landscaping and additional ropes/bollards as needed to delineate pathway(s).

The items (a) – (d) above are hereafter referred to as the “Development Contingencies”).  Moreover, this Settlement Agreement #1 is expressly contingent upon the performance of the contingency events in Settlement Agreement #4 ( “Forfeiture Contingencies”). The Development Contingencies and the Forfeiture Contingencies are hereafter referred to as the Contingency Events.  Following the performance of the Contingency Events by the respective parties, this Settlement Agreement #1 shall become legally binding and effective.

1. Failure of Performance.  In the event, the Parties fail to cause the occurrence of the Development Contingencies within one hundred eighty (180) days from the full execution of this agreement, then the Parties agree to implement and complete the original site plan as depicted on Exhibit B.  See Exhibit B.
2. Dismissal.  Within forty five (45) days from the performance of the Contingency Events and provided there has been no challenge (e.g., lawsuit) with respect to the Contingency Events, the Parties agree to jointly dismiss the Lawsuit.  The agreed form for the joint voluntary dismissal is attached as Exhibit “C.”  Any successful challenge to any Contingency Event or Development Contingency shall result in the rights and obligations reverting back to those rights and obligations set forth under the original site plan, joint development agreement, and development order.  See Composite Exhibit “D.”
3. Limited Release.  Provided that the Contingency Events all occur – and the Lawsuit is dismissed according to the preceding paragraph – City, CRA and ELRA each release each other for any breach of the JDA occurring prior to the effective date of this Settlement Agreement #1.
4. Abatement/Termination.  Within ten (10) days from the full execution of this Settlement Agreement #1, the Parties agree to jointly request that the Court abate the Lawsuit for one hundred eighty (180) days to allow for the occurrence of the Contingency Events.  If the Contingency Events have not occurred within abatement period, then this Agreement may be terminated either party by giving thirty (30) days notice.
5. Entire Agreement.  This Settlement Agreement #1 constitutes the entire agreement between the Parties.  This Agreement may not be modified except in writing signed by all parties.
6. Further Assurance.  The Parties agree to take all actions and execute all documents reasonably necessary in good faith to effectuate the intent of the Parties.
7. Successors/Assigns.  This Settlement Agreement #1 shall be binding on the successors and assigns of the Parties.
8. Electronic Execution.  Electronic execution of this Settlement Agreement #1 shall be binding on the Parties and shall be deemed the same as an original for purposes of enforcement.
9. Counterparts.  This Settlement Agreement #1 may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
10. Choice of Law.  This Settlement Agreement #1 is to be interpreted under the laws of Florida; venue and jurisdiction to be in Manatee County, Florida.
11. Voluntary Act.  Each Party acknowledges it has entered into this Settlement Agreement #1 of its own free will, based upon its own independent business judgment and advice of counsel of its choice, and without reliance on any representations of, or inducements from, any other person or party.
12. Full Authority.  Each of the Parties to this Settlement Agreement #1 hereby represents and warrants it has full authority and power to execute, deliver and perform this Agreement and consummate all of the transactions contemplated hereunder.

WHEREFORE, the Parties have set their hands and seals to this Settlement Agreement #1 as of the date set forth.

 

[SIGNATURE PAGE(S) TO FOLLOW]

 

JO ANN MEILNER   ______________________________   Dated:  _______________________     TJET MARTIN   ______________________________   Dated:  _______________________	CITY OF BRADENTON BEACH     By:  ______________________________   __________________________________ (Print Name above)   Its:  ______________________________ (Print Title above)   Dated:  ___________________________
WILLIAM SHEARON   _______________________________   Dated:  _________________________     COMMUNITY REDEVELOPMENT AGENCY   By:  ______________________________   __________________________________ (Print Name above)   Its:  ______________________________ (Print Title above)   Dated:  ___________________________	ELRA, INC.   By:  ______________________________   __________________________________ (Print Name above)   Its:  ______________________________ (Print Title above)   Dated:  ___________________________