98-22992 RESO
RESOLUTION NO.
98-22992
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, AUTHORIZING THE CITY ATTORNEY TO ENTER INTO A
FOURTH AMENDMENT TO SETTLEMENT AGREEMENT IN CITIZENS FOR
GREENSPACE. INC. AND MICHAEL KINERK VS. THE CITY OF MIAMI BEACH.
SEYMOUR GELBER. NEISEN O. KASDIN. SY EISENBERG. SUSAN F. GOTTLIEB.
DAVID T. PEARLSON. MARTIN SHAPIRO. NANCY LIEBMAN. ABE RESNICK. THE
GREATER MIAMI HEBREW ACADEMY AND DAUGHTERS OF ISRAEL. INC. U.S.
DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA, CASE NO. 92-1594-CIV-
GRAHAM, TO EXTEND THE EFFECTIVE DATE OF THE SETTLEMENT AGREEMENT
THROUGH AND INCLUDING JUNE 30, 1999 AND AUTHORIZING THE CITY
ATTORNEY TO ENTER INTO AN AGREEMENT REGARDING THE PAYMENT OF
PLAINTIFFS' ATTORNEYS' FEES PROVIDED FOR IN THE SETTLEMENT
AGREEMENT.
WHEREAS, on October 17, 1995, a Settlement Agreement was entered into between all
parties in Citizens for Greenspace. Inc. and Michael Kinerk vs. the City of Miami Beach. Seymour
Gelber. Neisen O. Kasdin. Sy Eisenberg. Susan F. Gottlieb. David T. Pearlson. Martin Shapiro.
Nancy Liebman. Abe Resnick. the Greater Miami Hebrew Academy and Daughters ofIsrael. Inc.
which was filed in the u.S. District Court for the Southern District of Florida, Case No. 92-1594-
CIV -GRAHAM; and
WHEREAS, in order to effectuate the terms of the Settlement Agreement, the parties have
entered into three amendments to the Settlement Agreement extending the Effective Date of the
Settlement Agreement through and including December 31, 1998; and
WHEREAS, as additional time is needed for the parties to comply with the terms of the
Settlement Agreement, it is deemed necessary to enter into a Fourth Amendment to the Settlement
Agreement (which is attached hereto as Exhibit A and incorporated herein by reference) to extend
the Effective Date of Settlement Agreement through and including June 30, 1999; and
WHEREAS, paragraph 9 of the Settlement Agreement executed on October 17, 1995
provided for the payment of sixty thousand dollars ($60,000) to the trust account of the plaintiffs'
counsel (Holland & Knight) "within ten (10) days after the Effective Date" of the Agreement; and
WHEREAS, in view of the several extensions to the Effective Date, Holland & Knight has
requested that the $60,000, plus interest, be paid to it by December 31, 1998, provided that said
amount will be repaid to the City if the conditions precedent to the Effective Date have not occurred
on or before June 30, 1999, or such other date as the parties have agreed to in writing as set forth in
the letter agreement attached hereto as Exhibit B and incorporated herein by reference.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the City Attorney is
authorized to enter into a Fourth Amendment to the Settlement Agreement attached hereto as Exhibit
A and to enter into the letter agreement attached hereto as Exhibit B in order to accomplish the
above-stated purposes.
DONE AND ORDERED this 16th day of December , 1998.
A~~ B(U~
CITY CL RK
m~
MAYOR
A:\ORENSPAC.RES
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APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
~ii:
ItA "'3
Date
FOURTH AMENDMENT TO SETTLEMENT AGREEMENT
This Fourth Amendment to Settlement Agreement ("Third Amendment") is made
this November 16, 1998 among Citizens for Greenspace, Inc. and Michael Kinerk
(collectively "Plaintiffs"), the City of Miami Beach, Seymour Gelber, Neisen O. Kasdin,
Sy Eisenberg, Susan F. Gottlieb, David T. Pearlson, Martin Shapiro, Nancy Liebman,
Abe Resnick (collectively "Municipal Defendants"), and Greater Miami Hebrew
Academy and Daughters of Israel, Inc., (collectively "Private Defendants") as represented
by counsel.
WHEREAS, the parties entered into a Settlement Agreement dated as of October
17, 1995 (the "Settlement Agreement") as amended by First Amendment to Settlement
Agreement dated December 31, 1996 (the "First Amendment") and Second Amendment
to Settlement Agreement dated December 18, 1997 (the "Second Amendment") and
Third Amendment to Settlement Agreement dated June 9, 1998 (the "Third
Amendment") (collectively the "Amendments"); and
WHEREAS, the parties desire to modify the Settlement Agreement pursuant to
the terms of this Fourth Amendment as set forth below.
NOW, THEREFORE, for good and valuable consideration, the parties agree as
follows:
1. In all places where the words "December 31, 1996" appear in the original
version of paragraph 22(f) of the Settlement Agreement, those words are
hereby amended to read "June 30, 1999". Thus, if the Effective Date does not
occur on or before June 30, 1999 (unless extended by mutual consent of all the
parties or their respective counselor unless waived by the Hebrew Academy
as provided in the second sentence of paragraph 22(f)), then the Settlement
Agreement and any incorporated releases pursuant to paragraph 14 of the
Settlement Agreement are void and unenforceable, and the parties agree to
submit to the Court a Joint Motion to Set Action for Trial, the form of which
is attached as Exhibit"L" to the First Amendment.
2. This Fourth Amendment may be executed in counterpart copies and the fact of
execution may be via telecopy.
3. Except as specifically set forth herein, the Settlement Agreement remains in
full force and effect and unchanged.
EXHIBIT A
IN WITNESS WHEREOF, the parties have executed this agreement as of the
date first above written.
FOR PLAINTIFFS:
By:
FOR MUNICIPAL DEFENDANTS:
BY:~~
Murray D in, Esq.
FOR PRIVATE DEFENDANTS:
By: ~crge; r
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
City Attorney Date
2
Law Offices
HOLLAND & KNIGHT LLP
Atlanta
Boca Raton
Boston
Fort Lauderdale
Jacksonville
Lakeland
Melbourne
Mexico City
Miami
701 Brickell Avenue, Suite 3000
PO. Box 015441 (ZIP 33101-5441)
Miami, Florida 33131
305-374-8500
FAX 305-789-7799
http://www.hklaw.com
December 3, 1998
Tracy Nichols
305-789-7717
Internet Address:
tnichols@hklaw.com
Debora J. Turner
First Assistant City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
David Berger, Esq.
Strategica Group
1221 Brickell Avenue
Suite 2600
Miami, FL 33131
Re: Citizens for Greensoace. Inc., et al. v. City of Miami Beach. et al.
Counsel:
New York
Northern Virginia
Orlando
San Francisco
SI. Petersburg
Tallahassee
Tampa
Washington, D.C.
West Palm Beach
This is an amendment to the Settlement Agreement in this case regarding the timing
of the payment of attorneys' fees to Holland & Knight LLP. By signing below, you agree
as counsel and on behalf of your clients to the terms and conditions in this letter.
Pursuant to paragraph 9 of the Settlement Agreement, the City of Miami Beach
placed $60,000.00 in an interest bearing escrow account for the payment of Plaintiffs'
attorneys' fees. The fees and accumulated interest were payable within 10 days of the
Effective Date of the Settlement Agreement which was originally set as on or before
December 31, 1996 and later extended by mutual written consent of the parties several
times, with the latest extension to be until June 30, 1999.
In light of the several extensions of the Effective Date, the City of Miami Beach
agrees to pay the $60,000.00 plus accumulated interest to Holland & Knight LLP no later
than December 31, 1998 provided, however, that Holland & Knight LLP agrees to repay
that same amount to the City of Miami Beach if the conditions precedent to the Effective
Date (set forth in paragraph 22(0) have not occurred on or before June 30, 1999 or such
EXHIBIT B
Debora J. Turner
David Berger, Esq.
December 3, 1998
Page 2
other date as the parties have agreed to in writing. This Letter Agreement shall not
otherwise modify any of the other obligations of any other party to the Settlement Agreement
and its amendments.
Agreed to:
,
,
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"
Plaintiffs , )
by Holland. & Knight LLP
Tracy A. Nichols, Esq.
Agreed to:
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The Municipal Defendants
by Debora J. Turner, Esq.
Agreed to:
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y
Private Defendants
by David Berger, Esq.
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
MIA4-680482
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CIty Attorney
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Date
OFFICE OF THE CITY ATTORNEY
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MURRAY H. DUBBIN
City Attorney
Telephone:
Telecopy:
(305) 673-7470
(305) 673-7002
COMMISSION MEMORANDUM NO. B 3$ B5?
Mayor Neisen O. Kasdin and
Members of the City Commission
I
Murray H. Dubbin .\\\lV
City Attorney Ni ~
SUBJECT: CITIZENS FOR GREENSP ACE. INC.. ET AL v. CITY OF MIAMI BEACH.
ET AL, U.S. DISTRICT COURT, SO. DISTRICT OF FLORIDA, CASE NO.
92-1594-CIV-GRAHAM / EXTENSION OF SETTLEMENT AGREEMENT
AND PAYMENT OF ATTORNEYS FEES FROM ESCROW ACCOUNT.
TO:
DATE: December 16, 1998
FROM:
On October 17, 1995, the parties in the above referenced litigation entered into a Settlement
Agreement which provided for, inter alia, various Zoning Ordinance and Comprehensive Plan
amendments in order to effectuate the terms thereof. Three amendments to the Settlement
Agreement have previously been entered into which extended the Effective Date of the Settlement
Agreement until and including December 31, 1998. In order to comply with the terms of the
Settlement Agreement, a fourth amendment to the Settlement Agreement extending the Effective
Date to June 30, 1999 is required.
Attached _hereto, please find a Fourth Amendment to Settlement Agreement which has
already been executed by counsel for all other parties in this case. It is recommended that the City
Commission authorize the City Attorney to execute the Fourth Amendment to Settlement Agreement
in order that the parties will have sufficient time to satisfy the terms of the Settlement Agreement.
In addition, paragraph 9 of the Settlement Agreement executed on October 17, 1995 provided
for the payment of sixty thousand dollars ($60,000) to the trust account of the plaintiffs' counsel
(Holland & Knight) "within ten (10) days after the Effective Date" of the Agreement. In view of the
several extensions to the Effective Date, Holland & Knight has requested that the $60,000, plus
interest, be paid to it by December 31, 1998, provided that said amount will be repaid to the City if
the conditions precedent to the Effective Date have not occurred on or before June 30, 1999, or such
other date as the parties have agreed to in writing. If the City Commission approves the request of
Holland & Knight, it is requested that the City Attorney's Office be authorized to execute the
Agenda Item ~
1700 Convention Center Drive -- Fourth Floor -- Miami Bell Date l 2. _ \ 10"''1 ~
other date as the parties have agreed to in writing. If the City Commission approves the request of
Holland & Knight, it is requested that the City Attorney's Office be authorized to execute the
attached letter agreement concerning same.
JUThfg
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Office of the City Attorney -- 1700 Convention Center Dri\e -- Fourth Floor -- 'Yliami Beach. FL 33139