2009-26995 ResoRESOLUTION NO. 2009-26995
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING A
SETTLEMENT AGREEMENT IN FRANK OTERO AND JEFFERY
GIBBS VS. CITY OF MIAMI BEACH. LA GORCE COUNTRY
CLUB, AND DM FENCE CORP., 11TH JUDICIAL CIRCUIT
COURT, CASE NO: 05-17754 CA 30 AND AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE SAID SETTLEMENT
AGREEMENT; AND AUTHORIZING THE APPROPRIATION OF
$18,000 FROM CITY OF MIAMI BEACH FUND ACCOUNT NO.
161 (MID-BEACH QUALITY OF LIFE FUND) TOWARDS FENCE
RELOCATION COSTS.
WHEREAS, in 2005 two owners of lots abutting the La Gorce Country Club filed a
putative class action suit styled Frank Otero and Jefferv Gibbs vs Citv of Miami Beach La
Gorce Countrv Club. and DM Fence Corp , seeking various forms of relief including a
declaration of boundary/title with regard to the street-ends running perpendicular to the
boundaries of the La Gorce Golf Course, said street-ends bordering easterly of Alton Road and
located at West 52"d Street, West 53~d Street, West 54th Street, West 56t" Street, West 57~'
Street, West 58th Street, West 59th Street, and West 60th Street, as well as those street-ends
bordering westerly of La Gorce Drive and located at West 58th Street, West 59th Street, West
60th Street and West 61 St Street; and
WHEREAS, pursuant to court-ordered mediation, on October 13, 2008, the parties and
counsel appeared before Mediator Justice Gerald Kogan to attempt resolution of the issues; and
WHEREAS, a proposed settlement has been reached by the parties which Agreement
(attached hereto as Exhibit "A") provides for the following to occur upon the passage of this
Resolution:
--La Gorce Country Club will file an application for partial vacation of West 57th Street easterly of
Alton Road as described within the Agreement (application fee waived by City), and City will
consider said application pursuant to conditions established in City Charter and Code which
require 4/7ths approval of Planning Board and 5/7ths approval of City Commission, agreeing to
waive appraisal and bidding by 5/7's Commission vote at time of vacation proceedings (or
assume appraisal cost absent a waiver), and further reserving to City a perpetual easement for
utilities, etc,;
--if vacation is approved, City will deliver to La Gorce a quit claim deed for the subject portion of
West 57th Street and the City resolution approving vacation, and La Gorce will deliver to the City
a utility easement over the vacated portion of West 57th Street, as well as a quit claim deed for
eleven of the subject 20 foot strips of land in dispute bordering easterly of Alton Road and
located at West 52"d Street, West 53~d Street, West 54th Street, West 56th Street, West 58~'
Street, West 59th Street, and West 60th Street, and further bordering westerly of La Gorce Drive
and located at West 58th Street, West 59th Street, West 60th Street and West 61 St Street;
--those portions of La Gorce's fence encroaching upon the City right-of-ways will be removed
from the public right-of-ways and resituated by the City (at city expense) to the respective
perimeter portion of the La Gorce's property;
--for purposes of establishing a procedure for any homeowner complaining of view obstruction
by La Gorce, said homeowner shall submit a written complaint to La Gorce and if view dispute
has not been resolved after thirty days from submittal of said complaint, the homeowner may
then submit a written complaint to the City for investigation and response within forty-five days;
and -
--upon accomplishment of above in accordance with time frames more specifically set forth
within the Settlement Agreement, Plaintiff Gibbs will file a dismissal of lawsuit with prejudice, all
parties to assume their own costs and fees.
WHEREAS, the attached Settlement Agreement has been accepted and executed by
Plaintiff Gibbs and by Co-Defendants La Gorce Country Club and DM Fence Corporation.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, that the Settlement Agreement in Frank Otero
and Jefferv Gibbs vs. Citv of Miami Beach La Gorce Country Club and DM Fence Corp (Exh.
"A" attached hereto), is hereby approved and the Mayor and City Clerk are authorized to
execute same; upon the filing of vacation application by La Gorce, same shall be automatically
referred to the Planning Board for review, with subsequent review by City Commission; and $
18,000 is hereby appropriated from City of Miami Beach Fund Account No. 161 (Mid-Beach
Quality of Life Fund) for future payment of resituating those portions of the La Gorce Country
Club's fence bordering the street-ends running perpendicular to the boundaries of the golf
course, said street-ends bordering easterly of Alton Road and located at West 52~d Street, West
53~d Street, West 54`h Street, West 56`h Street, West 58th Street, West 59th Street, and West 60tn
Street, and further bordering westerly of La Gorce Drive and located at West 58`h Street, West
59th Street, West 60th Street and West 61 St Street.
PASSED and ADOPTED this 28th day of January , 200
ATTEST: ,
Ma t' errera B er ~
~~ Mayor
Robert Parcher
City Clerk
APPROVED AS T4
FORM & LANGUAGE
& FOR EXECUTION
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' Attorney ate
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F:\atto\OLIJ\RESOS\LaGorce Country Club.doc
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OFFICE OF THE CITY ATfORNEY
JOSE SMITH, CITY ATfORNEY
COMMISSION MEMORANDUM
TO: MAYOR MATTI HERRERA BOWER
MEMBERS OF THE CITY COMMISSION
CITY MANAGER JORGE GON EZ
FROM: JOSE SMITH
CITY ATTORNE f
DATE: January 28, 2009
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, ACCEPTING A SETTLEMENT AGREEMENT IN FRANK OTERO
AND JEFFERY GIBBS VS. CITY OF MIAMI BEACH LA GORCE COUNTRY CLUB
AND DM FENCE CORP., 11TH JUDICIAL CIRCUIT COURT, CASE NO: 05-17754 CA
30 AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE SAID
SETTLEMENT AGREEMENT; AND AUTHORIZING THE APPROPRIATION OF
$18,000 FROM CITY OF MIAMI BEACH FUND ACCOUNT NO. 161 (MID-BEACH
QUALITY OF LIFE FUND) TOWARDS FENCE RELOCATION COSTS.
The attached Resolution is submitted for consideration by the Mayor and City
Commission for approval. At issue is a Settlement Agreement between Frank Otero and Jeffery
Gibbs (homeowners abutting the LaGorce Country Club property) and the City of Miami Beach,
LaGorce Country Club and DM Fence Corporation. The proposed Settlement stems from
issues raised by these homeowners in the above-referenced 2005 litigation in which they sought
relief against the City and LaGorce, primarily concerning a declaration of boundary/title with
regard to the street-ends running perpendicular to the boundaries of the LaGorce Golf Course,
said street-ends bordering easterly of Alton Road and located at West 52"d Street, West 53`d
Street, West 54th Street, West 56th Street, West 57t" Street, West 58th Street, West 59th Street,
and West 60th Street, as well as those street-ends bordering westerly of LaGorce Drive and
located at West 58t" Street, West 59th Street, West 60th Street and West 61 St Street.
The parties attended Court-ordered mediation on October 13, 2008, at which proceeding
a tentative settlement was reached, as embodied in the attached Settlement Agreement (Exhibit
"A" to attached Resolution). The terms of the Agreement are outlined as follows:
Upon the City Commission's approval of the Settlement Agreement, LaGorce will file an
application for partial vacation of West 57th Street easterly of Alton Road as described
within the Agreement (application fee waived by City). The City will consider the
application pursuant to conditions established in the City Charter and Code, agreeing to
waive appraisal and bidding (by 5/7's Commission vote) at time of vacation proceedings
(or assume appraisal cost absent a waiver), and further reserving to City a perpetual
easement for utilities, etc.;
Agenda Item ?C.
Date ( Z~S-p~
if a vacation is approved, the City will deliver to LaGorce a quit claim deed for the subject
portion of West 57th Street and the City resolution approving vacation, and LaGorce will
deliver to the City a utility easement over the vacated portion of West 57th Street, as well
as a quit claim deed for eleven of the 20 foot strips of land in dispute bordering easterly
of Alton Road and located at West 52"d Street, West 53`d Street, West 54th Street, West
56th Street, West 58th Street, West 59th Street, and West 60th Street, and further
borderinq~ westerly of LaGorce Drive and located at West 58th Street, West 59th Street,
West 60t Street and West 61 St Street;
those portions of La Gorce's fence encroaching upon the City right-of-ways will be
removed from the public right-of-ways and resituated by the City (at city expense)' to the
respective perimeter portion of LaGorce's property;
~ for purposes of establishing a procedure for any homeowner complaining of view
obstruction by LaGorce, the homeowner may submit a written complaint to LaGorce and
if the dispute is not resolved after thirty days, the homeowner may then submit a written
complaint to the City for investigation and response within forty-five days; and
upon accomplishment of above in accordance with time frames set forth in the
Settlement Agreement, Plaintiff Gibbs shall file a dismissal of the lawsuit with prejudice,
all parties to assume their own costs and fees.
Approval of the Settlement Agreement will result in a final resolution of the long-standing
and costly litigation between the City, LaGorce and surrounding homeowners
concerning ownership of the street-end properties (City will obtain clear title) and the
rights of homeowners concerning views of the Country Club's golf course (procedure for
view complaints established in Agreement). Further, if approved by the City Commission,
the Settlement Agreement establishes a condition subsequent involving the Country Club's
request for vacation of a portion of West 57th Street, easterly of Alton Road -- applicable
conditions established by City Charter and Code will require 4/7ths approval of Planning Board
and 5/7ths approval of City Commission at a public hearing. Assuming the vacation is
approved, the City will then relocate the fences bordering the street-ends, ensuring surrounding
homeowners greater access and views to their private properties.
All private parties have signed the Settlement Agreement.
In light of the public interest served thereby, I recommended that the Mayor and City
Commission approve the attached Resolution authorizing the Mayor and City Clerk to execute
this Settlement Agreement.
F:\atto\OLIJ\CMEMO\Otero-Gibbs -- Accepting Settlement Agreement 2.doc
1 Fence relocation cost of $18,000 to be appropriated from CMB Fund No. 161 (Mid-Beach Quality of Life Fund).
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