99-90 RDA
RESOLUTION NO.
99-90
A RESOLUTION OF THE MIAMI BEACH REDEVELOPMENT
AGENCY MODIFYING THE $1.2 MILLION SETTLEMENT
IN MIAMI BEACH REDEVELOPMENT AGENCY vs.
MENDELSON, 11TH CIRCUIT COURT CASE NO.89-
08693, (SAID FIGURE REPRESENTING THE SUBJECT
PROPERTY'S VALUATION, EXCLUDING DEFENDANTS'
REASONABLE ATTORNEY'S FEES AND COSTS) FOR
PURPOSES OF RESOLVING ENVIRONMENTAL ISSUES ON
THE SUBJECT PROPERTY VIA PAYMENT OF $50,000 BY
MEL MENDELSON INTO AN INTEREST BEARING ESCROW
ACCOUNT, WITH SAID $50,000 PLUS INTEREST BEING
RETURNED TO MR. MENDELSON IN THE EVENT NO
REMEDIATION IS NECESSARY, AND PROVIDING THAT
IN THE EVENT REMEDIATION IS REQUIRED, BINDING
ARBITRATION SHALL OCCUR, WITH MR. MENDELSON
BEING RESPONSIBLE FOR REMEDIATION PAYMENT IN
AN AMOUNT NOT TO EXCEED THE AFORESTATED
$50,000, AND PROVIDING THAT AN AGREED ORDER OF
EVICTION WILL BE PROVIDED BY MR. MENDELSON TO
SECURE THAT THE PROPERTY WILL BE VACATED BY NO
LATER THAN NOVEMBER 1, 1991.
WHEREAS, on February 28, 1989, the Miami Beach Redevelopment
Agency filed an eminent domain action styled Miami Beach
Redevelopment AgencY vs. Mendelson. et al., 11th Circuit Court Case
No. 89-08693, which action sought to condemn four parcels of
property in the South pointe area of Miami Beach for the purposes
of reducing blight therein via the construction of residential
townhouses; and
WHEREAS, in its Answer to the Agency's Petition in Eminent
Domain, Defendant/property owners Melvin and Estelle Mendelson
contested the right of the Redevelopment Agency to condemn the
subject properties; and
WHEREAS, on May 24, 1990, Circuit Court Judge Gerald
Wetherington upheld the Redevelopment Agency's right to so condemn;
and
WHEREAS, on October 9, 1990, mediation was held in this
subject litigation, followed by extensive negotiations between the
parties , resulting in a settlement offer of $1. 2 million for
purchase of the subject property, which offer was accepted by the
Miami Beach Redevelopment Agency on October 10, 1990 - this offer
represented settlement of the subject property's valuation,
exclusive of Defendants' reasonable attorney's fees and costs, and
1
further excluded remedial costs for possible contamination of the
soil under the subject lands; and
WHEREAS, at its meeting of November 21, 1990, the Miami Beach
Redevelopment Agency considered Miami Beach city commission
Memorandum No. 616-90 (attached hereto as Exhibit "A"), which
memorandum contained documentation detailing the tentative
resolution of the environmental issue on the Mendelson property
outlined as follows by the Agency's outside counsel Stephen Zack,
Esquire:
1. Mr. Mendelson will pay $50,000 into an interest bearing
account to be held in escrow by Toby Brigham, Esq.
2. In the event no remediation is necessary, the $50,000
plus interest will be returned to Mr. Mendelson.
3. In the event remediation is required, both sides will
present four witnesses, two fact and two expert, for
binding arbitration before John Farrell, in order to
determine the causation of the contamination. If, by way
of example, it is determined that Mr. Mendelson is fifty
percent responsible for the contamination, he will be
required to pay fifty percent of the remediation, but in
no event to exceed $50,000.
In addition, the date of payment will be December 5, 1990, and
post judgment and interest will accrue from that date forward; and
WHEREAS, the terms of settlement modification also establish
that an agreed order of eviction will be provided by Mr. Mendelson
to secure that the subject property will be vacated by no later
than November 1, 1991; and
WHEREAS, in view of the great economical savings that will
result by settling this litigation now, the city Attorney concurs
wi th Attorney Zack' s proposal and recommendation to modify the
existing settlement agreement in the Mendelson lawsuit.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MIAMI BEACH
REDEVELOPMENT AGENCY that the proposal and recommendation of
Attorney Stephen Zack, outside counsel representing the Miami Beach
Redevelopment Agency in Miami Beach Redevelopment AgencY vs.
Mendelson, 11th circuit Court Case No. 89-08693 is hereby accepted,
and modification of the existing settlement agreement in the
2
Mendelson lawsuit is hereby approved per those terms as set forth
within Miami Beach City commission Memorandum No. 616-90, and
attachments thereto.
PASSED and ADOPTED this
21st day of
fbvernber
, 1990.
~~
ATTEST:
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Yo SECRETARY
JKO: 1m
FORM APPROVED
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OFFICE OF THE CITY ATTORNEY
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CITY ATTORNEY
POBOX 0
MIAMI BEACH, FLORIDA 331 19-2032
TELEPHONE (305) 673-7470
TELECOPY (305) 673-7002
LAURENCE FEINGOLD
COMMISSION MEMORANDUM NO. to l/a - q b
DATE: NOVEMBER 20, 1990
TO:
MAYOR ALEX DAOUD
MEMBERS OF THE CITY
CITY MANAGER ROB W.
COMMISSION /2f'\)
PARKINS / ( Y
'--1/--
LAURENCE FEINGOLD, CITY ATTORNEY ~
FROM:
SUBJECT: MIAMI BEACH REDEVELOPMENT AGENCY v. MELVIN M. MENDELSON.
ET AL.
In the above-styled cause, the City Commission previously
approved the settlement amount of $1.2 million for purchasing the
subject property. This settlement did not take into consideration
possible contamination of the soil under the land.
\.
stephen N. Zack, Esq., and I have met with Toby Brigham
several times in conjunction with this matter. As a result of
these meetings, attached you will find the following documentation:
1. Toby Brigham's letter to stephen N. Zack dated
November 9, 1990.
2. Proposed stipulated Final Judgment.
(
3. stephen N. Zack's letter to Laurence Feingold dated
November 19, 1990.
In order to conclude this matter, it is necessary for the
Commission to approve the modification of the existing settlement
as contained in Mr. Zack's letter of November 19, 1990.
LFjks
(a :mendel.ltc)
AGENDA
ITEM
R - \ O-~
\l-LJ-9.0
EXHIBIT "A'
DATE
1700 CONVENTION CENTER DRIVE - FOURTH FLOOR - MIAMI BEACH, FLORIDA 33139
BRIGHAM MOORE GAYLORD WILSON ULMER
SCHUSTER Be SACHS
LAWYERS
A PARTNERSHIP INCLUDING PROFESSIONAL ASSOCIATIONS
333 NORTH NEW RIVER DRIVE EAST
POBT LAUDEBDALE, PLOBIDA 33301-22015
BROWARD (305) 523.5808
DADE 956.9289
FAY. (305) 763-2604
203 SOUTHWEST 13™ STREET
MIAMI. PLOBIDA 33130 - 4219
DADE (305) 858-2400
BROWARD 467.8201
FAX (305) 858-5828
100 WALLACE AVENUE
SABASOT~ PLOB.IDA 34237 - 6028
(813) 365.3800
FAX (813) 952 .1414
III NORTH ORANGE AVENUE
ORLANDO, FLOB.IDA 32801- 2316
(407) 423.2251
FAX (407) 423 -1505
777 SOUTH HARBOUR ISLAND BOULEVARD
TAKPA, FLOBIDA 33602-15701
(813) 229-8811
FAX (813) 222.0389
REPLY TO:
MIAMI
November 9, 1990
VIA u.s. MAIL
COpy HAND DELIVERED
stephen N. Zack, Esq.
Zack,'Hanzman & Ponce
100 SE 2nd street
Centrust Building
Suite #3300
Miami, Florida 33131
RE:
H.B.R.A. vs. MENDELSON
CASE NO. 89-08693 (CA 31)
(
Dear steve:
My letter to you dated October 10th, 1990, set out the price
and terms of the settlement agreement reached as a result of the
mediation process in the above referenced case. The price came to
$1,238.000.00 plus the other terms and conditions specified in my
letter. You spoke to the commission and confirmed the settlement
in all of the particulars except you received my approval to round
the price amount to the sum of $1,200,000.00 which was then
approved by the City Commission and we had a firm settlement and
so advised the Court.
You then wrote to me stating different settlement terms. The
differences were:
1) You did not make it clear that the entire time
of possession was rent free and tax free beyond
the first nine (9) months; and
2) You used language such as "every diligent
effort" as a condition to extending possession
beyond the initial nine (9) months; and
Letter to Stephen N. Zack, Esq.
November 9, 1990
Page 2
3) You excepted any environmental claims for the
cost of remediation property contamination, if
any, from the settlement and required any such
cost to be deducted from the settlement price.
You had raised the environmental issue and obtained a Court
Order for inspection before the mediation and settlement of this
case. No actual contamination was known to us at the mediation
conference. In fact our preliminary report from studies made
before any joint investigation was ordered by the Court showed us
that no contamination was existent due to any operation on the
property by Mendelson.
Before we had a chance to discuss these differences in our
letters, we were informed by Missimer and Associates that the test
core borings which had been made jointly with Wingertner showed old
contamination in the soil but not in the water. This contamination
was at all three well sites being in stronger concentration at the
North well site. To us this indicates past contamination from
outside our North property line where the City Police maintenance
garage was for many decades. This scenario also fits the
description of the old pollution which the test analysis indicated.
I called you and John Lukacs to seek a meeting to work out the
matter in the least damaging way that would proceed with the
settlement ~s explained in my letter of October 10th, 1990, which
I and my clients understood settled all claims between the parties
including any environmental problem or cost of clean-up, if any.
You were not available and John Lukacs was not prepared to meet
without first speaking with Larry Feingold and others at the city.
John Lukacs and I spoke the next day and he proposed that the
settlement proceed with the understanding that Mendelson would
subsequently contribute to the cost of clean-up, if any, to the
extent that Mendelson was ultimately found responsible for in law
and fact not to exceed $50,000. John Lukacs asked me to see if
Mendelson would so agree. I later confirmed that Mendelson would
agree.
You and I met upon your return to the city and went over the
differences in our respective letters. I told you of the dealings
I had had with John Lukacs concerning the environmental issue. You
were agreeable to my letter of October 10th, 1990, at the rounded
1.2 million dollar price except for the environmental point and
said you would submit the Lukacs proposal, to which my clients had
agreed, to the city and let me know.
until today I heard nothing from you. When I called yesterday
Bertha Claire Lee told me that the City had ordered more testing
BRIGHAM MOORE GAYLORD WILSON ULMER SCHUSTER & SACHS
Letter to Stephen N. Zack, Esq.
November 9, 1990
Page 3
to find out what the source of the pollution was, which might take
months. For this reason, she said that the city was seeking a
thirty (30) month extension from Cobb Partners for delivery of the
property.
Today you asked that Mendelson simply agree to deduct $50,000
or some other sum from the settlement amount and be done with it.
I responded that the settlement in our view was a very great
compromise on our part and was understood by us not to be subject
to any deduction whatsoever for environmental problems or
otherwise. I further said that Mendelson was not the source of the
contamination, but rather, it was the city Police vehicle
maintenance garage on City property North of the Mendelson
property. Therefore, ultimately it was the city's responsibility
to pay for the clean-up.
More than that, however, the real compelling common sense
answer is that the contamination found doesn't harm a thing. There
is no aquifer there. No wildlife or any living species is at all
threatened. There is absolutely no need to perform any remedial
activity. Further, the surrounding lands and water very probably
have the same level of the same contaminant. I expect that by
working together we could receive a clearance from the appropriate
agency and no action would be necessary.
All of this being our understanding and belief, you can
appreciate why my clients will proceed as Mr. Lukacs suggested but
will not agree to a deduction from the settlement on any other
basis. They believed the settlement to be net to them and if the
environmental remediation cost is to be deducted from the work of
the property taken by the City, then the compensation paid for it
can not be compromised at the 1.2 million dollar price and terms
already agreed in what we understood our settlement to be. They
would not have relinquished their appellate rights and agreed to
the price and terms as they did, if, for a moment, they had thought
that any cost of environmental clean-up could come out of the
settlement.
In an attempt to resolve the matter expeditiously and fairly,
however, they will agree to the Lukacs proposal as I have told you.
Accordingly, I have prepared a stipulated Final Judgment which I
ask that you review and agree to sign as soon as we give you the
particular figures to place in the blank lines (the reason for
which I will explain later).
If the City insists on a $50,000 payment from Mendelson
whether or not Mendelson is ultimately responsible for any clean-
up cost, then the only other suggestion I have is that the city
BRIGHAM MOORE GAYLORD WILSON ULMER SCHUSTER & SACHS
Letter to stephen N. Zack, Esq.
November 9, 1990
Page 4
enter into a consent order for costs and attorney's fees at the
limit of $250,000 for costs and $250,000 for fees and pay those
without further court proceedings less a deduction of $50,000.
I can demonstrate to your satisfaction that the owners' costs
and fees reasonably exceed those limits imposed by the settlement
terms.
If this suggestion helps conclude the matter let me know that
the city will do so on this basis and I will seek to secure my
clients' approval of that arrangement.
Please let me know right away on this because the time for
payment specified in our settlement was November 12th, 1990 and
there is insufficient reason to believe that any contamination
clean-up cost properly and ultimately belongs to my clients. We
expect interest to be paid on our settlement amount after November
12th, 1990, until payment.
There is no doubt, as you said, that the expense of finding
out the answers to the environmental responsibility will exceed the
cost involved and that the costs of litigating this eminent domain
action will be even more expensive. However, we feel that the City
is obliged to'pay such costs under the law, and the city may do so
out of tax increment financing under the community redevelopment
law. The tax ~ncrement will go on for decades - even centuries.
The same law that allows the City to take my clients' property
against their will also allows the City to pay for all of these
expenses from tax revenues generated by the private redevelopment
who wanted my client's property for their own profit. Mendelson
doesn't participate in all of that. Let the city proceed as it did
on adjacent properties and complete its settlement without further
deduction for environmental contamination which in all probability
does not require clean-up and if it does is probably the City's
responsibility in the last analysis.
This letter is intended to let you know our thinking as I have
expressed it to you in aid of concluding this case. Any
suggestions you may have to that end please let me know.
sincerely,
~
TOBY PRINCE BRIGHAM
BRIGHAM, MOORE, GAYLORD, WILSON,
ULMER, SCHUSTER & SACHS
BRIGHAM MOORE GAYLORD WILSON ULMER SCHUSTER Be SACHS
Letter to stephen N. Zack, Esq.
November 9, 1990
Page 5
NOTE: Enclosed please find a copy of the Missimer Report we
received and I shall look forward to receiving the Wingertner
reports that you have been given by noon Monday as we agreed.
In addition, I have enclosed a copy of our letter to you dated
October lOth, 1990, and a copy of your letter to me dated October
15th, 1990, for your convenience.
TPB/gfg
enclosures
F:\TEMP\GINGER\TB110990.LET
BRIGHAM MOORE GAYLORD WILSON ULMER SCHUSTER & SACHS
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT,
IN AND FOR DADE COUNTY, FLORIDA
MIAMI BEACH REDEVELOPMENT )
AGENCY, )
Petitioner, )
)
vs. )
)
MELVIN MENDELSON AND ESTELLE )
MENDELSON, his wife, MENDEL- )
SONS' INC., BARNETT BANK OF )
SOUTH FLORIDA AND STEPHEN )
CLARK, MAYOR, DADE COUNTY )
)
Defendants. )
)
GENERAL JURISDICTION DIVISION
CASE NO. 89-08693 (CA 31)
STIPULATED FINAL JUDGMENT
THIS CAUSE came before the Court on the Joint Motion set
forth below and the Court being otherwise fully advised in the
premises, it is,
ORDE~ED and ADJUDGED as follows:
1. The Defendants, MELVIN MENDELSON and ESTELLE
MENDELSON, his wife, FRED A. MENDELSON, PAUL MENDELSON, G. DONALD
MENDELSON, ANNE MENDELSON and MENDELSONS' INC.
(hereinafter
collectively referred to as "Defendants"), do have and recover of
and from the Petitioner, MIAMI BEACH REDEVELOPMENT AGENCY, the sum
of one million two hundred thousand dollars and no cents
($1,200,000.00) as full compensation for the taking of the property
which is the subj ect of this cause (hereinafter referred to as
"subject property"), exclusive of attorney's fees and costs.
2. with the exception of attorney's fees and costs to
be awarded according to the law in this cause and post judgment
interest, if any; the said full compensation includes all claims
CASE NO. 89-08693 (CA 31)
(12%) per annum until paid. The Order of this Court dated May
24,1990 is hereby ratified and confirmed; and the fee simple
absolute estate in the subject property, as described in the
Petition, shall vest in the Petitioner upon said deposit.
4. The Defendants shall retain possession of the
subject property, rent free and tax free, for a period of nine (9)
months, measured from the date the Petitioner deposits the
aforesaid sum, during which time they shall exercise reasonable
diligence to accomplish the construction of a new building
elsewhere and the relocation of their meat packing and distribution
business therein. If the Defendants reasonably need more time
within which to accomplish said relocation, they shall have up to
an additional three (3) month period of rent free, tax free
possession of the subject property by providing Petitioner with
written notice of their election to remain in possession of the
subject property, prior to the expiration of the initial nine (9)
month term. In no event shall the Defendants remain in possession
of the subject property for a period in excess of one (1) year,
measured from the date the Petitioner deposits the aforesaid sum.
5. The Defendants shall have the right without charge
to retain any and all items of personal property, machinery and
equipment in or on the subject property which they may choose to
remove.
3
CASE NO. 89-08693 (CA 31)
and causes of action which the Defendants have, if any, against the
Petitioner arising from the taking in this cause and may not be
reduced by any claim or charge of the Petitioner arising from the
taking in this cause. The Petitioner will pay all expenses of
investigation and remediation or other disposition as to
environmental contamination, if any, found on or in the subject
property. In the event contamination, if any, on or in the subject
property was caused by the Defendants, they shall pay up to fifty
thousand ($50,000) dollars toward any cost of remediation of such
contamination actually incurred and spent by the Petitioner. Both
the Petitioner and the Defendants may investigate the cause of
contamination, if any, and will each fully cooperate with the other
in whatever investigation is reasonably required. Further, the
Petitioner shall provide the Defendants with all data, analysis and
reports, if any, relating to the existence and source of any
contamination on or in the property located within Blocks 78 and
80 of Ocean Beach Addition No. 3 as soon as the information becomes
available to the Petitioner. The provisions of this paragraph
limit the liability of the Defendants and do not constitute any
admission on the part of the Defendants as to the cause of such
contamination, if any.
3. Petitioner shall deposit the sum of one million two
hundred thousand dollars and no cents ($1,200,000.00) into the
Registry of this Court no later than November 12th, 1990, after
which time interest shall accrue at the rate of twelve percent
2
CASE NO. 89-08693 (CA 31)
6. From the funds to be deposited by the Petitioner,
the Clerk of this Court shall forthwith pay to Dade County Tax
Collector the sum of
($ ) as and for the 1990 prorated real estate taxes on the
subject property.
7. From the funds to be deposited by the Petitioner,
the Clerk of this Court shall forthwith pay to ROY M. HARTMAN, as
attorney for BARNETT BANK OF SOUTH FLORIDA, N.A., the sum of one
thousand six hundred twenty-five dollars and no cents ($1,625.00),
pursuant to the mortgage recorded on May 22, 1986 in Official
Records Book 12898, at Page 1445, of the Public Records of Dade
County, Florida, representing a full payment for all attorney's
fees and costs incurred on behalf of BARNETT BANK OF SOUTH FLORIDA,
N.A. Upon payment of the sum of one thousand six hundred twenty-
five dollars and no cents ($1,625.00) to ROY M. HARTMAN, the afore-
mentioned mortgage shall be fully satisfied.
8. The Clerk of this Court shall pay the remaining sum
of , ($ ) , to the
Defendants, MELVIN MENDELSON and ESTELLE MENDELSON, his wife, FRED
A. MENDELSON, PAUL MENDELSON, G. DONALD MENDELSON, ANNE MENDELSON
and MENDELSONS', INC., in full payment of this Final Judgment
(exclusi ve of costs and attorney's fees and post-judgment interest)
by issuing checks to the Defendants in the following amounts:
4
CASE NO. 89-08693 (CA 31)
MELVIN MENDELSON and ESTELLE MENDELSON $
FRED A. MENDELSON $
PAUL MENDELSON $
G. DONALD MENDELSON $
ANNE MENDELSON $
9. The Court reserves jurisdiction to enforce the
provisions of this Final Judgment and to tax against the Petitioner
the Defendants' reasonable attorney's fees and costs incurred in
the result of the taking, as well as interest if due under the
terms of this Final Judgment.
DONE and ORDERED in Chambers, at Miami, Dade county,
Florida this day of 1990.
- CIRCUIT JUDGE -
Copies furnished to:
All interested parties.
5
CASE NO. 89-08693 (CA 31)
JOINT MOTION FOR ENTRY OF
STIPULATED FINAL JUDGMENT
Petitioner, MIAMI BEACH REDEVELOPMENT AGENCY, and
Defendants, MELVIN MENDELSON and ESTELLE MENDELSON, his wife, FRED
A. MENDELSON, PAUL MENDELSON, G. DONALD MENDELSON, ANNE MENDELSON
and MENDELSON'S INC., by and through their respective undersigned
attorneys hereby move the Court for entry of the above stipulated
Final Judgment. As grounds for this motion, the parties state that
they have amicably resolved this action on the terms set forth
above in the stipulated Final Judgment.
Respectfully submitted,
Zack, Hanzman & Ponce
Attorneys for Petitioner
100 SE 2nd street
Centrust Building
Suite #3300
Miami, Florida 33131
Telephone: (305) 539-8400
Brigham, Moore, Gaylord, wilson,
Ulmer, Schuster & Sachs
Attorneys for Defendants,
MENDELSONS
203 SW 13th Street
Miami, Florida 33130
Telephone: (305) 858-2400
By:
By:
STEPHEN N. ZACK
Florida Bar No. 145215
TOBY PRINCE BRIGHAM
Florida Bar No. 008767
MENDELSON'S INC.
833 First Street
Miami Beach, Florida
33139
By:
MELVIN MENDELSON
MELVIN MENDELSON
ESTELLE MENDELSON
FRED A. MENDELSON
G. DONALD MENDELSON
PAUL MENDELSON
ANNE MENDELSON
ZACR, HANZMAN & PONCE
A PROFESSIONAL ASSOCIATION
ATTORNEYS AND COUNSELLORS AT LAW
ONE CENTRUST FINANCIAL CENTER
SUITE 3300
100 SOUTHEAST SECOND STREET
POST OFFICE BOX 0196!58
MIAMI. FLORIDA. 331.01-96~8
PAUL. M. eUNOI!:.
MICHAEL E. CRIOEN
DEBRA WEISS GOODSTONE
MICHAEL A. HANZMAN
BERTHA CLAIRE L.EE
S. DANIEL PONCE:
STE.PHE.N N. ZACK
130!51" 539-8400
FACSIMILE 130!5J !539-1307
November 19, 1990
Larry Feingold, City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami, Florida 33139
Re: Miami Beach Redevelopment Agency vs.
Melvin and Estelle Mendelson, et al.
Dear Larry:
We have tentatively agreed to resolve the environmental issue
on the Mendelson property as follows:
1. Mr. Mendelson will pay $50,000 into an interest bearing
account to be held in escrow by Toby Brigham, Esquire.
2. In the event no remediation is necessary, the $50,000 plus
interest will be returned to Mr. Mendelson.
3. In the event remediation is required, both sides will
present :our witnesses, two fact and two expert, for binding
arbitration before John Farrell, in order to determine the
causation of the contamination. If, by way of example, it is
determined that Mr. Mendelson is 50% responsible for the
contamination, he would be required to pay 50% of the remediation,
but in no event to exceed $50,000.
In addition, the date of payment will be December 5, 1990, and
post judgment interest will accrue from that date forward.
Finally, an agreed order of eviction will be provided by Mr.
Mendelson to secure that the property will be vacated no later than
December 5, 1991.
The only CAVEAT that must be recognized by the City Commission
with regard to the settlement of this issue, is that the cost of
remediation is totally unknown at this time and may greatly exceed
the $50,000 set forth herein. At this time, because of the
experts' reports and need for additional study, not even a
guesstimate would be appropriate or possible. This unknown
November 19, 1990
Page - 2
contingency could be any amount.of money and will not be known in
all likelihood for 3-6 months.
I f we do not settle this matter at this time, we must
immediately proceed with litigation in order to comply with the
various time tables we are under.
If you or any of your Commissioners have any questions, please
do not hesitate to contact me.:
yours,
SNZ/hc
ZACR. HANZMAN & PONCE
A PROFESSIONAL ASSOCIATION
MIAMI BEACH REDEVELOPMENT
AGENCY,
Petitioner,
vs.
MELVIN MENDELSON AND ESTELLE
MENDELSON, his wife, MENDEL-
SONS' INC., BARNETT BANK OF
SOUTH FLORIDA & STEPHEN
CLARK, MAYOR, DADE COUNTY,
Defendants.
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT,
IN AND FOR DADE COUNTY, FLORIDA
)
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GENERAL JURISDICTION DIVISION
CASE NO. 89-08693 (CA 31)
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STIPULATED FINAL JUDGMENT
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THIS CAUSE came before the Court on the Joint Motion set
forth below and the Court being otherwise fully advised in the
premises, it is,
ORDERED and ADJUDGED as follows:
1. The Defendants, MELVIN MENDELSON and ESTELLE
MENDELSON, his wife, FRED A. MENDELSON, PAUL MENDELSON, G. DONALD
(hereinafter
MENDELSON, ANNE MENDELSON and MENDELSONS' INC.
collectively referred to as "Defendants"), do have and recover of
and from the Petitioner, MIAMI BEACH REDEVELOPMENT AGENCY, the sum
of one million two hundred thousand dollars and no cents
($1,200,000.00) as full compensation for the taking of the property
which is the subject of this cause including all personal property,
machinery and equipment in or on the premises thereof (hereinafter
referred to as "subject property"), exclusive of attorney's fees
and costs.
CASE NO. 89-08693 (CA 31)
2. with the exception of attorney's fees and costs to
be awarded according to law in this cause and post judgment
interest, if any; the said full compensation includes all claims
and causes of action which the Defendants have, if any, against
the Petitioner arising from the taking in this cause. Except for
the provisions of this paragraph, the amount of full compensation
herein awarded shall not be reduced by any claim or charge of the
Petitioner arising from the taking in this cause. The Petitioner
will pay all expenses of investigation and remediation or other
disposition as to environmental contamination, if any, found on or
in the subj ect property. From the funds to be depos i ted by
Petitioner, fifty thousand dollars ($50,000) shall be placed in an
interest-bearing escrow account with citiBank of Miami by BRIGHAM,
MOORE, GAYLORD, WILSON, ULMER, SCHUSTER & SACHS for contamination
remediation reimbursement to the Petitioner if required under the
terms of this judgment. In the event that Petitioner is not
required to remediate any contamination on the subject property or
if it is determined that the Defendants are not the source of the
contamination, then the funds held in escrow, together with accrued
interest, shall be forthwith paid to the Defendants without need
for further Order of this Court. In the event that the Defendants
were the source of any contamination found on or in the subject
property, the Petitioner shall be reimbursed from the funds held
in escrow for the costs of remediating the contamination of which
2
CASE NO. 89-08693 (CA 31)
the Defendants were the source, within the boundaries of the
Defendants' property, actually incurred and spent by providing
proof of payment to counsel for the Defendants; in no event shall
the Defendants be required to pay more than fifty thousand dollars
($50,000.00) for contamination remediation. If the parties are
unable to agree on source of contamination on the subject property,
the issues shall be submitted to arbitration and determined by
General Master John R. Farrell or, in the event of his
unavailability, another person agreed to by the parties or
appointed by the Court. At said arbitration, the parties shall be
limited to two (2) expert witnesses and two (2) fact witnesses.
Both the Petitioner and the Defendants may investigate, at their
own expense, the cause of contamination and will each fully
cooperate with the other in whatever investigation is reasonably
required. Further, the Petitioner shall provide the Defendants
with all data, analysis and reports, if any, relating to the
existence and source of any contamination on or in the property
located within Blocks 78 and 80 of Ocean Beach Addition No. 3 as
soon as the information becomes available to the Petitioner. The
provisions of this paragraph limit the liability of the Defendants
to fifty thousand dollars ($50,000.00) and do not constitute any
admission on the part of Defendants as to the existence or cause
of such contamination or as to the need for any remediation.
3. Petitioner shall deposit the sum of one million two
3
CASE NO. 89-08693 (CA 31)
hundred thousand dollars and no cents ($1,200,000.00) into the
Registry of this Court no later than December 3, 1990. In the
event Petitioner fails to deposit the afore-said sum by December
3, 1990, this proceeding shall be null and void and stand
dismissed, with this Court reserving jurisdiction to tax
Defendants' reasonable attorneys' fee and costs incurred in this
case. The Order of this Court dated May 24, 1990 is hereby
ratified and confirmed; and the fee simple absolute estate in the
subject property as described in the Petition, including all
personal property, machinery and equipment in and on the premises
shall vest in the Petitioner upon said deposit.
4. The Defendants shall retain possession of the
subject property, rent free and tax free, for a period of nine (9)
months, measured from the date the Petitioner deposits the
aforesaid sum, during which time they shall exercise reasonable
diligence to accomplish the construction of a new building
elsewhere and the relocation of their meat packing and distribution
business therein. If the Defendants reasonably need more time
within which to accomplish said relocation, they shall have up to
November 1st, 1991 as an additional period of rent free, tax free
possession of the subject property by providing Petitioner with
written notice of their election to remain in possession of the
subject property, prior to the expiration of the initial nine (9)
month term. Once their new replacement building is ready for
4
CASE NO. 89-08693 (CA 31)
occupancy and as soon as the relocation may be completed using
reasonable diligence, the Defendants will surrender possession of
the property to the Petitioner notwithstanding that more time may
be provided by this judgment for Defendants to remain in possession
of the subject property. In no event, for any reason known or
unknown at this time, shall the Defendants remain in possession of
the subject property beyond November 1st, 1991. The Defendants
agree to an immediate eviction and waive all of their rights,
remedies and defenses including notice if they remain on the
property beyond the period of time ending on November 1st, 1991.
The Court hereby orders the Defendants to surrender possession of
the subject property on November 1st, 1991, if not surrendered
prior thereto. This order may be presented to any sheriff to
proceed with eviction without further notice to Defendants.
5. The Petitioner may proceed with whatever action, if
any, is required by the Department of Environmental Regulation of
the State of Florida and other proper authority to remedy or clean
up environmental contamination, if any, on or in the subject
property during the time that the Defendants are in possession
thereof as provided in this judgment provided that such action is
external to any building improvement on the subject property and
does not interrupt or interfere with the business operations and
activities of the Defendants. Should there be any disagreement as
to whether or not such actions do interrupt or interfere as
5
CASE NO. 89-08693 (CA 31)
aforesaid, no action shall be pursued until notice and hearing
before the court and the court directs what action, if any, may be
taken.
6. Upon deposit of the aforesaid funds, the Petitioner
shall have title to the real and personal property which were the
subject of this cause. The Defendants shall have the right without
charge to retain any and all items of personal property, machinery
and equipment in or on the subject property which they may choose
to remove at their own expense. As to any items which Defendants
move, the Petitioner hereby relinquishes all right, title and
interest, as of and after the date of removal.
7. From the funds to be deposited by the Petitioner,
the Clerk of this Court shall forthwith pay to BRIGHAM, MOORE,
GAYLORD, WILSON, ULMER, SCHUSTER & SACHS, the sum of fifty thousand
dollars ($50,000.00) to be placed in an interest-bearing escrow
account with citiBank of Miami in accordance with the terms of this
Judgment.
8. The Clerk of this Court shall pay the remaining sum
of one million one hundred fifty thousand dollars and no cents
($1,150,000.00) to the Defendants, MELVIN MENDELSON and ESTELLE
MENDELSON, his wife, FRED A. MENDELSON, PAUL MENDELSON, G. DONALD
MENDELSON, ANNE MENDELSON and MENDELSONS', INC., in full payment
of this Final Judgment (exclusive of costs and attorney's fees and
post-judgment interest) by issuing checks to the Defendants in the
6
CASE NO. 89-08693 (CA 31)
following amounts:
PAUL MENDELSON
$ 738,400.00
$ 135,240.00
$ 135,240.00
$ 135,240.00
$ 5,880.00
MELVIN MENDELSON and ESTELLE MENDELSON
FRED A. MENDELSON
G. DONALD MENDELSON
ANNE MENDELSON
8. The Court reserves jurisdiction to enforce the
provisions of this Final Judgment and to tax against the Petitioner
the Defendants' reasonable attorney's fees and costs incurred, as
well as interest if due under the terms of this Final Judgment.
DONE and ORDERED in Chambers, at Miami, Dade County,
Florida this ~day Of~/~~990.
RICHARD S. FULLER
- CIRCUIT JUDGE -
Copies furnished to:
All interested parties.
7
CASE NO. 89-08693 (CA 31)
JOINT MOTION FOR ENTRY OF
STIPULATED FINAL JUDGMENT
Petitioner, MIAMI BEACH REDEVELOPMENT AGENCY, and
Defendants, MELVIN MENDELSON and ESTELLE MENDELSON, his wife, FRED
A. MENDELSON, PAUL MENDELSON, G. DONALD MENDELSON, ANNE MENDELSON
and MENDELSONS' INC., by and through their respective undersigned
attorneys, hereby move the Court for entry of the above stipulated
Final Judgment. As grounds for this Motion, the parties state that
they have amicably resolved this action on the terms set forth
above in the stipulated Final Judgment.
Respectfully submitted,
Zack, Hanzman & Ponce
Attorneys for Petitioner
100 S.E. 2nd Street
suite #3300
Miami, Florida 33131
Telephone: (305) 539-8400
Hornsby, Sacher, Zelman
& Stanton, P.A.
Attorneys for BARNETT BANK
1110 Brickell Ave., Penthouse
Miami, Florida 33131
Telephone: (305) 371-8484
---:7,~
By: I~ //lv'- i i C<..Av*JYU~"-"'"
ROY M.' HARTMAN
Florida Bar No. 319902
Brigham, Moore, Gaylord, Wilson,
Ulmer, Schuster & Sachs
Attorneys for Defendants,
MENDELSONS
203 S.W. 13th Street
Miami, Florida 33130
Telephone: (305) 858-2400
::1
Dade County Attorney
Attorneys for DADE COUNTY
Metro-Dade Center, suite #2810
111 N.W. First Street
Miami, Florida 33128-1993
Telephone: (305) 375-5151
//p WI) q:! .-
By :~!tcJ;/7t'0-/\7!{jg--2--Cb-
:~OMAS GOLDSTEIN
Florida Bar No. 180724