Frank Ottero & Jeffery Gibbs Settlement AgreementIN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
FRANK OTERO AND
JEFFERY GIBBS,
v.
Plaintiffs,
GENERAL JURISDICTION DIVISION
CASE NO.: 05-17754 CA 30
CITY OF MIAMI BEACH, FLORIDA,
a political subdivision of the State of
Florida, LA GORCE COUNTRY CLUB,
INC., and DM FENCE CORPORATION,
Defendants.
SETTLEMENT AGREEMENT ~,~,~
This Settlement Agreement (Agreement) is entered into this day of _,~~~s[!.~;]p~
"' I~
2009, by and between Plaintiff, Jeffery Gibbs ("Gibbs"),and Defendants, the City of Miami
Beach, Florida (the "City"), La Gorce Country Club, Inc. ("La Gorce") and DM Fence
Corporation (collectively, the "Parties"):
RECITALS
WHEREAS, in 2005, two homeowners with lots abutting La Gorce Country Club filed
a putative class action suit styled Frank Otero and Jeffery Gibbs vs. City of Miami
Beach, La Gorce Country Club, and DM Fence Corp., (the "Lawsuit") seeking various
forms of relief including a declaration of boundary/title as to the twelve (12) City street-ends
(hereafter referred to as the "Street End Parcels")described as "...eight unnamed strips of
land, approximately 20 feet in width across the easterly ends of West 52"d, West 53ra
West 54t", West 56t", West 57t", West 58'", West 59t" and West 60t" Streets, as shown on
plats of said Lake View and La Gorce Golf Subdivisions and four unnamed strips of land,
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approximately 20 feet in width across the westerly ends of West 58th ,West 59th, West 60tH
and West 61St Streets as shown on plat of said Beach View Addition, containing 0.33
acres, more or less", according to deed dated May 2, 1945 in public records of Miami-Dade
County at PB 2509 at page 109; 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, without admitting liability, but in order to avoid the uncertainty and
expense of further litigation, the Parties have agreed to enter into this agreement (the
"Agreement") to settle amongst themselves the claims and disputes that are the subject of
the Lawsuit.
NOW THEREFORE, in consideration of the promises exchanged herein, the Parties
agree as follows:
1. Recitals. The above recitals are true and correct and incorporated herein.
2. Vacation Application. Within fifteen (15) business days from City's execution of the
Agreement, La Gorce will file an application with the City, requesting vacation of West 57tH
Street, easterly of Alton Road as depicted in the subject survey and legal description
attached hereto and made a part hereof as Composite Exhibit "A" (the "Vacation Parcel").
3. Vacation Proceedings. Within sixty (60) business days from La Gorce's filing of a
complete Vacation Application, the City will commence vacation proceedings, consistent
with the City's administrative guidelines and .criteria for vacation of public streets, alleys,
and right of ways, and City Charter and City Code requirements (which require, without
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limitation, that the vacation be approved by 4/7's vote of the City's Planning Board and
5/7ths vote of the City Commission, following a duly noticed public hearing).
4. Waiver of Fees, Bidding, and Appraisal Requirements. In conjunction with the
Vacation Application, the City agrees to waive the application fee and to waive, by 5/7ths
vote of the City Commission, the competitive bidding and appraisal requirements for said
vacation and any other costs and charges to La Gorce in connection with the application.
In the event waiver of the appraisal requirement is not approved, the City will pay the costs
of the appraisal.
5. Utility Easement. If approved by the City Commission, the vacation will be subject to
and contingent upon reservation to City of a perpetual easement for utilities over the
vacated property.
6. Vacation Not Approved. If final City Commission approval of the vacation is not
obtained within 120 days from the commencement of the vacation proceedings, then this
Agreement shall be nullified, unless all parties consent in writing to extending this time
period.
7. Exchange of Deeds Upon Approval of Vacation. If the Vacation Application is
approved by the City Commission then, within two (2) business days from execution (by the
Mayor and City Clerk) of the City's Resolution approving the vacation, the Parties will
execute and deliver the following:
A. City will execute and deliver to La Gorce a certified copy of the City Resolution
approving the vacation and aquit-claim deed for the Vacation Parcel in the form of the
deed attached as Exhibit "B";
B. La Gorce will execute and deliver to City:
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(i) A quit claim deed (in the form of deed attached hereto as "Exhibit C")
conveying eleven of the Street End Parcels located easterly of Alton Road at West 52~d
Street; West 53~d Street; West 54tH Street; West 56tH Street; West 58t" Street; West 59tH
Street; and West 60tH Street, and westerly of La Gorce Drive at West 58tH Street, West 59tH
Street, West 60tH Street; and West 61St Street, as depicted in the surveys attached hereto
and make a part hereof as Composite Exhibit "D"; and
(ii) a perpetual easement for utilities for West 57th Street (as referenced in
Paragraph 5 above) in the form of the easement attached as Composite Exhibit "E".
8. Relocation of Fence. Within sixty (60) days from City's receipt of the quit claim deed
and easement from La Gorce, the City shall, at its expense, re-situate those portions of La
Gorce's perimeter fence and gates presently located at the Street End Parcels, twenty (20)
feet inward to the golf course boundary line as depicted on the Surveys attached as
Composite Exhibit "D". In addition to relocating the gate at Alton Road's West 54th Street,
the City shall, at its expense, restore the mechanical and electronic functionality of said
gate. City shall be responsible for obtaining the permit for the relocation of the fence and
gates and any associated permit fees or costs, with La Gorce to sign the owner's affidavit
portion of said permit.
9. Landscaping at Street Ends. City and La Gorce have further agreed that in
relocating the fence, the City shall not remove the large ficus tree presently located on the
boundary of the Street End Parcel at West 59tH Street and Alton Road; provided that, in the
future the City reserves the right to remove the tree if it deems such removal necessary in
order to repair the eight (8) inch sewer line running the width of the West 59tH Street End
Parcel. Prior to the relocation of the fence, La Gorce may remove, at its expense, any
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landscaping presently located within any of the Street End Parcels; to that end, the City
shall provide La Gorce with no less than ten (10) days prior written notice of its intent to
commence the relocation work. La Gorce shall have the right and discretion to landscape
its property at the Street Ends on its side of the relocated fence as it may deem appropriate
subject to applicable law.
10. Right of Way. As the Street End Parcels are part of the public right of way, La Gorce
shall have the right of ingress and egress to its property through the fence gates located at
the West 54th Street street end easterly of Alton Road, the West 58th Street street end
easterly of Alton Road, and the street end at West 61St Street westerly of La Gorce Drive,
and owners of lots abutting the Street End Parcels including those at West 53~d Street
easterly of Alton Road and at West 55th Street easterly of Alton Road shall have rights of
ingress and egress from the public right of way to their respective properties.
11. Dismissal of Lawsuit. Within three (3) business days of written acknowledgement
from City of final approval of fence permit work, the Parties shall jointly file a stipulation for
dismissal with prejudice of the Lawsuit, with each Party to bear its own costs and attorneys'
fees.
12. Complaint Procedure. In order to formalize a procedure to address complaints of
abutting homeowners regarding their view of the Golf Course as provided by the January
14, 2004 Settlement Agreement between La Gorce and the City:
A. Any homeowner with a complaint regarding their view of the Golf Course must
first submit such complaint, in writing, to the attention of La Gorce's General Manager. If
not resolved to the homeowner's satisfaction within thirty (30) days from such transmittal,
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the homeowner shall submit the complaint in writing to the City Attorney for investigation
and response within 45 days from the City's receipt of said complaint from homeowner.
B. Except as specifically provided in this Paragraph 12 establishing a procedure for
abutting homeowners to complain of view obstruction, nothing herein shall be construed as
conferring any rights or benefits on the abutting homeowners with regard to the January 14
2004 Settlement Agreement.
13. Mutual Release. The Parties hereby release, acquit and forever discharge each
other, including their respective officers, directors, employees, agents and attorneys, its
heirs, executors, administrators, associates, representatives, successors and assigns, from
any and all past, present and future claims, demands, obligations, damages, costs,
expenses actions, and cause of actions, and whether for compensatory, punitive damages,
or other damages, arising from or relating to the Lawsuit and the entry into this Agreement.
14. Denial Of Liability. It is understood and agreed that the execution of this
Agreement and the consideration therefore, is not an express or implied admission of
misconduct, responsibility, or liability by any of the Parties, and that the Parties expressly
and specifically deny all such claims. This Agreement, and the consideration therefor, is
being entered into and executed to resolve any actual and/or potential disputed claims so
that the Parties may forever avoid the expense, uncertainties and hazards of litigation.
15. Additional Documents. The Parties agree to cooperate fully and execute any and
all supplementary documents and to take all additional actions which may be reasonably
necessary or appropriate to carry out and give full force and effect to the basis and intent of
this Agreement.
16. Entire Agreement and Successors in Interest. This Settlement Agreement
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contains the entire agreement between the Parties. This Agreement replaces any prior or
contemporaneous written or oral representation or understanding about the settlement of
the Lawsuit. This Agreement may not be changed except in writing signed by the Parties
or their respective attorneys. This Agreement shall be binding on and shall inure to the
benefit of the successors and assigns, if any, of each Party.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. The venue for any legal proceeding of
any nature brought by either Party against the other to enforce any right or obligation under
this Agreement, or arising out of any matter pertaining to the Agreement, shall be in Miami-
Dade County, Florida.
18. Counterparts. This Agreement may be executed in counterparts, with one
executed original delivered to each Party
19. Authority/Execution by Parties. The persons signing below on behalf of La Gorce,
the City, Gibbs and DM Fence have been duly authorized to execute and enter into this
Settlement Agreement.
20. Preservation of Prior Settlement. This Agreement shall not affect the validity or
enforceability of the above-referenced January 14, 2004 Settlement Agreement between
the City and La Gorce.
21. No Third Party Beneficiaries. Nothing herein shall be construed as intending to
confer any rights or benefits on third parties.
22. Warranties and Representations. The Parties warrant to each other that they
have read this Settlement Agreement and that they understand that this Agreement is a full
and final release of all claims by and between the Parties and the each has been
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represented by counsel before signing this Agreement.
In Witness Whereof, the Parties have caused this Agreement to be executed and
effective as of the day and year first written above.
Agreed and accepted as this 28 ~=day of January , 2009.
l
M yor Matti H. ower Robert Parcher, City Clerk
City of Miami Beach City of Miami Beach
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The foregoing instrument was acknowledged before me this 28th day of
January ,2009 by Matti H. Bower aS Mayor Of
City of Miami Beach who is personally known to me •~or--wt~~--f~~s--p~rodtreed
-------------------(fie .. .6R.)
Name:
(Print N me):
Notary Public -State of Florida
Mir Commis i Aires: May 3, 2011
;;~r'.y~, ~ KEFlRY HERNANDEZ
~'~'~ MY COMMISSION N DD 626373
A' ,~; EXPIRES: May 3, 2011
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Agreed to and accepted as of this f ~ day of /C<nu~t!' 2009.
._ The foregoing instrument was acknowledged before me this ~~day of
Jo-nuar 200 by Jeffery Gibbs_ as of
who is personally known to me or who has produced
(type of identification.)
Name:
(Print Name): ~ '
Notary Public -State of lorida
My Commission Expires: e 4 /a,,
---
_ ~~;,A~ P;; .,,~ V. ROSELYN SAVINON
B`~: Notary Public • State of Florida
•= My Comm. Expires Oec 9, 2012
'•~, ~' Commission N OD 844501
y~' ~~~~ t• •`'• Bonded TArouph Nalionai tl0tsry Assn.
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COUNTY OF MIAMI-DADE
Agreed to and accepted as of this
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
SS
~-~+~day of January, 2009.
La Gorce Co ntry Club, Inc.
President, Scott D. Copeland
_}-~`
The foregoing instrument was acknowledged before me this day of January,
2009, by Scott D. Copeland as President of La Gorce Country Club, Inc., who is personally
known to me.
`,.;~PRY'P~e,, Yssa Mccrea
:'•~~ :Commission #DDg1}4782
~~ :~~ Expires. JUNE 26, 2009
Name: ~
(Print Name):
Notary Public
My Commiss
tate{of Florida
Expires: (~ I2a ~~~
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-' j GC.
La Gore ountry CIS
Secretary, Brian J. McDonough
STATE OF FLORIDA )
SS
COUNTY OF MIAMI-DADE )
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The foregoing instrument was acknowledged before me this ~ day of January,
2009, Brian J. McDonough as Secretary of La Gorce Country Club, Inc., who is personally
known to me.
Name: C~ Ll ~f.~,1~(~"?ti-J
(Print Name): /
Notary Public -State of Florida
My Commission Expires:
~v ny„ ~;~lic State o' Florida
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Agreed to and accepted as of this Z~r day of January, 2009.
DM Fe c Corp.
President, David Meza
STATE OF FLORIDA )
SS
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 2 (~ day of January,
2009, David Meza as President of DM Fence Corp., who is personally known to me or who
has produced {~.[~t,-~-,v1ZU~~~6)•~'3KD (type of identification.)
ospav v~B JESSICA R. STAMM ~ Name:
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* * MYCOMMISSIONMDD5s33s5 (Print Name): t ~~
EXPIRES: September 24, 2010 Nota Public -State of Florida
~f,TFOF F~~~\oP bonded Thru Budget Notary Services ry
My Commission Expires: ~~2y~ ~~ v
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EXHIBITS TO SETTLEMENT AGREEMENT
(to be provided under separate cover)