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La Gorce Settlement AgreementMITCHELL A. DIERMAN NINA L. BON~SKE JAMIIE ALAN COLE IEDWARD G. GUEDIES STIEPHIEN J. HELFMAN THOMAS J. ANSGROe LILLIAN ARANGO DE LA HOZe ALISON $. BIELER MICHELLE B UCKALIEW MITCHIELL J. BURNSTEIN WEISS SEttOTA HELFMAN P~STOI~IZ,& GI_IEDES COLE /3c BOI',IISIrE, P.A. ATTORNEYS AT LAW 2665 SOUTH BAYSHORE: DRIVE: SUITE MIAMI, FLORIDA 33133 TELEPHONE 30S-~S4-0800 eOF COUNSEL January 23, 2004 VIVIAN DE LAS CUIEVA~DIAZ $TEPHANIE DEUTSCHe JENNIFIER A. GOLOBERG DOUGLAS R. GONZALE~ CHRISTOPHER F. KURTZ HARRIET R. LEWISe PETER A. LICHTMAN VIA HAND DELIVERY Gary M. Held, Esq. First Assistant City Attomey City of Miami Beach 1700 Convention Center Dr., 4th Floor Miami Beach, FL 33139 Re: La Gorce Country Club ("La Oorce") v. City of Miami Beach ("City") Dear Gary: Enclosures are the three original Settlement Agreements which I have initialed and signed. Please forward me a conformed copy when all signatures are obtained. JHS:jju 797.001 Enclosures ce: Mr. Roberto Sanchez Edward G. Guedes, Esq. ly, H. Serota SETTLEMENT AGREEMENT BETWEEN LA GORCE COUNTRY CLUB~ INC. AND THE CITY OF MIAMI BEACH This Agreement is entered into by and between La ~orce Country Club, Inc. ("La Gorce") and the City of Miami Beach, Florida ("City"), this ! 9rt~ay of January, 2004. WHEREAS, La Gorce has instituted a lawsuit against the City styled La Gorce Country Club, Inc. v. City of Miami Beach, Florida, Case No. 03-12377 CA 30 ("Lawsuit"), in which La Gorce alleges that the fencing and landscaping restrictions contained in City Ordinance No. 2002-3367, now codified at section 142-395(3) of the City Code ("Restrictions"), are unconstitutional; and WHEREAS, the trial court on September 10, 2003, entered final judgment in favor of La Gorce and against the City in connection with the Lawsuit, finding the Restrictions to be unconstitutional ("Final Judgment"); and WHEREAS, the trial court has also entered an order awarding entitlement to attorney's fees and costs to La Gorce in an amount to be detemfined at a subsequent evidentiary hearing ("Fee Order"); and WHEREAS, La Gorce has petitioned the trial court for an award of attorney's fees totaling $123,906.50 and costs totaling $4,395.19; and WHEREAS, the City has appealed the Final Judgment to the Third District Court of Appeal in City of Miami Beach, Florida v. La Gorce Country Club, Inc., Case No. 3D03-2442 ("Appeal"); and WHEREAS, La Gorce has also filed two Petitions for Writs of Certiorari from the Restrictions, in La Gorce Country Club, Inc., v. City of Miami Beach, Florida, Case No. 02-210 AP, Appellate Division of the Circuit Court, and Case No. 3D03-1314, Third District Court of Appeal ("Certiorari cases"); and WHEREAS, in both Certiorari cases, the Courts have denied La Gorce's Petitions; and WHEREAS, both parties desire to resolve both the Lawsuit and the Appeal without the need for incumng additional liability and/or litigation expense; NOW, THEREFORE, in consideration of the promises exchanged herein and other valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. The foregoing recitations are incorporated herein by reference and are acknowledged to be tree and correct. 2. The parties will submit a joint motion to stay the Appeal, to relinquish jurisdiction to the trial court, and to temporarily suspend the automatic stay imposed as a result of the Appeal, in order for the parties to implement this settlement agreement. Moreover, the parties will submit a joint motion to the trial court to stay the detemfination of the amount of fees and costs to be awarded to La Gorce. 3. La Gorce will submit an application for a permit to construct a four-foot high, metal picket or similar type fence ("Fence") on, along or within its property line bordering the La Gorce golf course ("Pemdt Application"), which application the City will expeditiously and in good faith process and evaluate under the City Code provisions as they existed immediately preceding the enactment of the Restrictions (attached hereto as Exhibit "A"), as if the Restrictions had never been enacted. The City will grant or deny the Permit Application no later than thirty (30) days from submittal of a complete application. If the parties are unable to reach an agreement as to the design of the Fence, the parties agree that the design of the fence currently in place along the southern boundary of the La Gorce golf course (along 51 st Terrace) is acceptable. La Gorce and the City may modify the nature of the Fence to the extent such modification is consistent with applicable City regulations. La Gorce will prospectively when installing and maintaining hedges and other landscaping, excluding trees, provide a view of the golf course from abutting residential properties. 4. The City will evaluate the Permit Application solely under the criteria as described in paragraph 3, above, and other applicable review criteria, but will be under no obligation to approve the Permit Application if the criteria have not been met. In the event the City denies the Permit Application for any reason, La Gorce retains the right, in its sole discretion, to withdraw the Permit Application, in which case this Agreement terminates immediately and neither party shall have further obligations to the other hereunder. 5. If, and only if, the Permit Application is granted by the City, then the parties further agree as follows: ao La Gorce will waive any entitlement to attorney's fees and costs, and any other damages or claims, in connection with the Lawsuit, including, but not limited to, any claims as to the validity or constitutionality of this Agreement, and will release the City from any such obligation and claims. The City will dismiss the Appeal with prejudice and refrain from further challenging the efficacy of the Final Judgment. The parties will bear their own costs and attorney's fees incurred in counection with the Lawsuit and the Appeal. do La Gome will have a continuing vested right to construct and relocate the Fence within its property, and a responsibility to maintain, repair or replace the Fence as the need arises, subject solely to compliance with the City Code provisions under which the Permit Application was originally evaluated and approved and this Agreement. In the event the issuance of the Permit is challenged or appealed, the City agrees to defend in good faith the propriety of the issuance of the Pemfit, and La Gome agrees to join in such defense. The City acknowledges that La Gorce has expended and will continue to expend considerable financial resources in constructing, maintaining, repairing and possibly replacing the Fence, as well as making improvements based upon the existence of the Fence. As a result, the City recognizes that La Gorce could not recoup its investment associated with the Fence in less than 25 years from the date of this Agreement. In the event any provision of this subparagraph should be determined to be unenforceable by a court of competent jurisdiction, such provision shall be severed from the Agreement and all remaining provisions shall remain in effect and enforceable as between the parties. Notwithstanding any other provision of this Agreement, nothing herein shall be construed as intending to confer any rights or benefits on third parties. 6. The parties will submit a joint motion asking the trial court to retain jurisdiction over the Lawsuit for purposes of enforcing the terms of this Agreement. 7. In the event it becomes necessary for either party to seek enforcement of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees and costs incurred in connection with the enforcement efforts. 8. The parties acknowledge that they have both actively and equally participated in the drafting and execution of this Agreement, and have had ample opportunity to discuss and evaluate the same with legal counsel. 9. This Agreement constitutes the entirety of the understanding between the parties with respect to the matters referenced herein and supersedes any prior understanding or agreement which may have existed, whether verbal or in writing. The Agreement may not be amended except upon the written consent and agreement of both parties. 10. Each party represents that the persons signing this Agreement on its behalf are duly authorized to enter into this Agreement. CIT~ Attest: ACH~ Dermer City Clerk FLORIDA ! LA GORCE COUNTRY ?UB, INC. Dated: Dated: Secretary APPROVED AS TO FORM AND LANGUAGE AND FOR EXECUTION: CORPORATE SEAL ~ountry Club, Inc. FSattoXHELG',LITIGATl\LaGorce\Settlement\Settlement Agreement for Commission 120303.doc