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SETTLEMENT AGREEMENT BETWEEN CITY OF MIAMI BEACH. FLORIDA
AND CARLO GAMBINO, AS OWNER OF THE RESIDENTIAL PROPERTY
LOCATED AT 5600 LA GORCE DRIVE, FOR REMOVAL OF
ENCROACHMENTS OVER PORTIONS OF A CITY RIGHT-OF-WAY (ROW),
CITY EASEMENT, AND ON THE LA GORCE GOLF COURSE
This Settlement Agreement (Agreement) is entered into this ~~ day of April ,
2008 (Effective Date), by and between the City of Miami Beach, Florida, a municipal
corporation (City), and Carlo Gambino, an individual and owner of the residential
property located at 5600 La Gorce Drive, Miami Beach, Florida (the Property).
RECITALS
WHEREAS, Mr. Carlo Gambino (hereinafter referred to as Owner/Applicant) is
the fee simple owner of the Property; and
WHEREAS, on or about .tune 1, 2005, Owner/Applicant purchased an easement
from the La Gorce County Club, Inc., for a portion of Country Club owned property
located immediately adjacent to the Property; on October 31, 2005, Owner/Applicant
and La Gorce Country Club, Inc. executed an Amended and Restated Easement
Agreement, correcting the legal description of the easement area as originally described
in the June 1, 2005, easement (hereinafter, the Amended and Restated Easement
Agreement between OwnerlApplicant and La Gorce Country Club, Inc. is referred to as
the La Gorce Easement and is attached and incorporated as Exhibit "A" hereto); and
WHEREAS, the City has a dedicated public utility easement granted by the La
Gorce Country Club, which also runs adjacent to the rear of the Property (the City Utility
Easement); a specific dedication in the City Utility Easement grants the City a perpetual
casement and right-of--way to lay, install, and maintain underground utilities; and
WHEREAS, the City also owns a public right-of--way (ROW) to the south of the
Property (the 56'h Street Street End); and
WHEREAS, on or about January 27, 2006, Owner/Applicant applied for and was
granted a City building permit (Master Permit No. B0601693) for the construction of a
rear yard swimming pool and concrete deck; and
WHEREAS, between ,Lune 30, 2006, and July 12, 2006, the City became aware
that a portion of Owner/Applicant's pool and concrete deck encroached over the City
Utility Easement, and that portions of landscaping, decorative wrought iron fencing, and
an underground 600 gallon tank (related to the pool), also installed by OwnerlApplicant,
encroached upon portions of the _56`x' Street Street F,nd (hereinafter, the pool and deck,
those encroaching portions of landscaping and fencing, and the underground tank may
also collectively be referred to as the Encroachments); and
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WHEREAS, on or about July 12, 2006, the City issued a Stop Work Order on the
pool and deck, which Order is attached and incorporated as Exhibit `B" hereto; a
violation was also issued by the City's Building Department on the Stop Work Order on
July 12, 2006 (Violation #: BV06000429); and
WHEREAS, construction of the pool and deck was completed, but has not
received a final inspection or Certificate of Completion; and
WHEREAS, on or about May 11, 2007, Owner/Applicant initiated the process
for application for a Revocable Permit, pursuant to Sections 82-91 through 82-95 of the
Miami Beach City Code, to be allowed to maintain the pool and deck encroaching over a
portion of the City Utility Easement; and
WHEREAS, at its regular meeting on February 13, 2008, the Mayor and City
Commission, following a duly noticed public hearing, considered Owner/Applicant's
request for Revocable Permit; the City Commission deferred final action on the Permit
request pending a referral of the item to the City's Land Use and Development
Committee meeting (specifically, to address the issue of that portion of the pool and deck
constructed on the La Gorce Easement, which structures are not in compliance with
permissible uses in a GC (Golf Course) District, pursuant to the City's current Land
Development Regulations ;and
WHEREAS, at the Land Use and Development Committee Meeting on March
l 0, 2008, Owner/Applicant's counsel advised the Committee of Owner/Applicant's intent
to remove the Encroachments, and also proposed a time schedule for removal of same;
the Committee recommended approval of Owner/Applicant's proposed removal
schedule, and instructed the City Administration and City Attorney's Office to prepare
the necessary agreement(s) memorializing same; and
WHEREAS, accordingly, the City and Owner/Applicant have negotiated the
following Settlement Agreement.
NOW, THEREFORE, in consideration of the promises set forth herein and other
good and valuable consideration, receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. The foregoing Recitals are true and correct and incorporated herein by
reference.
2. The City and Owner/Applicant hereby agree to the following time
schedule for removal of the Encroachments:
a. Within thirty (30) days from the Effective Date of this Agreement,
Owner/Applicant shall remove all above-ground encroachments on
the 56'x' Street Street L'nd, consisting of landscaping and decorative
wrought iron fencing.
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b. Within five (5) months (but no later than 150 days) from the
Effective Date of this Agreement, Owner/Applicant shall have
made application to the City's Building Department for a
Demolition Permit for (i) removal of the 600 gallon underground
tank encroaching within the 56`" Street Street End, as well as for
(ii) removal of the swimming pool and concrete deck encroaching
over portions of the City Easement and La Gorce Easement,
respectively.
c. Owner/Applicant must, at a minimum, demonstrate compliance
with subsection 2(b} of this Agreement by obtaining a Permit
Process Number (issued by the City's Building Department) for
demolition of the pool, deck, and underground tank.
d. Upon issuance of a Demolition Permit by the City's Building
Department, Owner/Applicant shall proceed with demolition and
removal of the tank, pool, and deck (which shall also include
without limitation, removal of any associated underground piping,
plumbing, and electrical components related to same), and shall
continuously and diligently prosecute said demolition and removal.
All demolition and removal shall be completed and ready for
inspection by the City (as provided in Sections 3 and 4 below) on
or before March 16, 2009.
3. "I'he City, through its Public Works, Planning and Zoning, and Building
Departments, shall, at all times during the term of this Agreement, have the right to enter
upon the Property for the purpose ol~ conducting any on-site inspections relative to the
removal of the Encroachments, or for such other purposes as may be required under this
Agreement, including, without limitation, to assure that OwnerlApplicant is prosecuting
the work and, as said portions of the work are completed pursuant to the time schedule(s)
in Section 2 above, to certify that Owner/Applicant's demolition and removal of the
Encroachments has been completed in accordance with the terms of this Agreement
(and/or such other conditions [if any imposed upon Owner/Applicant pursuant to the
Demolition Permit). For purposes of this Section 3 and Section 4, the term "Property"
shall also include the 56`" Street Street E;nd, the City Easement, and the La Gorce
Easement.
4. Upon Owner/Applicant's satisfaction and/or completion of each condition,
within the time schedule provided, as referenced in Section 2 above, Owner/Applicant
shall provide City with written notice certifying that Owner/Applicant has satisfied
and/or complied with the particular condition. Owner/Applicant's written notice to City
must be provided on or prior to each scheduled completion date (as referenced in Section
2). [lpon receipt of Owner/Applicant's written notice, the City, through the City
Departments referenced in Section 3 above, shall certify satisfaction and/or completion of
the particular condition and, for conditions related to the actual removal and/or
demolition of the Encroachments, conduct an on-site inspection of the Property.
Following such inspections, the City shall either (i) certify that Owner/Applicant has
complied and satisfied that particular condition of the Agreement (to which
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Owner/Applicant has provided notice thereof) or, (ii) in the event that the City determines
that Owner/Applicant has not complied, the City shall, within three (3) business days of
its inspection, provide Owner/Applicant with written notice outlining any item(s) pending
completion, and/or other deficiencies, and the time for completion of same. If Applicant
fails to correct and/or otherwise cure any and all such deficiencies, as specified in the
City's notice, by the completion date referenced in said notice, the City may declare this
Agreement in default, pursuant to Section 6 hereof.
5. Upon Owner/Applicant's satisfaction of all conditions in Section 2,
including, without limitation, satisfactory completion of removal of the Encroachments
(in accordance with the respective time periods set forth in this Agreement}, and
following final inspection and sign-off by the City, the City shall:
a) As to the removal of the landscaping and wrought iron fence over
the 56`" Street Street End, the City's Pubic Works Department shall
provide Owner/Applicant with a written notice of completion.
b) As to the removal of the pool, deck, and underground tank, the
City and Owner/Applicant shall schedule a final inspection with
the City's Building Department and, in the event of approval
following said final inspection, an Affidavit of Compliance shall
be issued by the Building Department.
c) "I~hose violations and citations issued to Owner/Applicant (and
against the Property) related to the Stop Work Order on the pool
and deck, as set forth in Exhibit "C" hereto (and collectively
referred to as the Violations) will, following satisfaction of
subsection 5(a) and (b) above, be closed for compliance, and any
fines and/or fees assessed in connection therewith shall be
d1sn11SSed.
6. If the OwnerlApplicant shall fail to fulfill in a timely manner, or otherwise
violate any of the conditions, covenants, agreements, or stipulations material to this
Agreement, the City shall thereupon have the right to terminate this Agreement for cause.
Prior to exercising its option to terminate for cause, the City shall notify the
Owner/Applicant of its violation of the particular term(s) of the Agreement and shall
grant Owner/Applicant seven (7) days to cure such default. I1' such default remains
uncured after seven (7) days, the City, without further notice to Owner/Applicant, may
terminate this Agreement, and the City shall be fully discharged from any and all
liabilities, duties, and terms arising out of or by virtue of this Agreement.
Notwithstanding the above, the Owner/Applicant shall not be relieved of
liability to the City for damages sustained by the City by any breach of the Agreement by
the Owner/Applicant, or for removal (or non-removal) of the Encroachments. The City,
at its sole option and discretion, shall be entitled to bring any and all legal/equitable
actions that it deems to be in its best interest in order to enforce the City's right and
remedies against the Owner/Applicant, including, without limitation, for removal of the
Encroachments. "I'he City shall be entitled to recover all costs of such actions, including
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reasonable attorneys' fees. To the extent allowed by law, the defaulting party waives its
right to jury trial and its right to bring permissive counter claims against the City in any
such action.
In addition to the aforestated City remedies, in the event that
Owner/Applicant shall fail to achieve satisfactory completion for removal of the
Encroachments, within the respective time periods set forth in Section 2 of the
Agreement, or otherwise fails to comply with any of the other milestones in Section 2
(within the respective time period(s)), the Violations shall continue to run, and the City
shall have the right to assess additional tines, fees, and/or penalties with respect to same.
The next Progress Report on the Violations are scheduled to be heard by
the City's Special Master on July 31, 2008, at which time this Settlement Agreement and,
in particular, the schedule for compliance by Owner/Applicant for removal of the pool,
deck, and tank encroachments, shall be entered into and incorporated into the case history
pertaining to said Violations. At such time, the City shall also request that the Special
Master case be stayed pending and/or otherwise subject to Owner/Applicant's
compliance with the Settlement Agreement.
7. Notices. All notices and communications in writing required or
permitted hereunder may be delivered personally to the representatives of the
Owner/Applicant and the City listed below or may be mailed by registered mail,
postage prepaid (or airmailed if addressed to an address outside of the city of dispatch).
Until changed by notice in writing, all such notices and communications
shall be addressed as follows:
OWNER/APPLICANT: Carlo Gambino
5600 La Gorce Drive
Miami Beach , FL 331
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CITY: City of Miami Beach
Public Works Department
Attn: Fred Beckmann. Director
1700 Convention Center Drive
Miami Beach, Florida 33139
(305) 673-7080
With copies to: City of Miami Beach
Planning Department
Attn: Jorge Gomez, Director
1700 Convention Center Drive
Miami Beach, Florida 33139
(305) 673-7550
City of Miami Beach
Building Department
Attn: Thomas Velazquez
1700 Convention Center Drive
Miami Beach, Florida 33139
(305) 673-7610
Notices hereunder shall be effective:
If delivered personally, on delivery; if mailed to an address in the City of dispatch, on the
day following the date mailed; and if mailed to an address outside the city of dispatch on
the seventh day following the date mailed.
8. This Settlement Agreement contains the entire Agreement between the
parties. This Agreement replaces any prior or contemporaneous written or oral
representation or understanding about the settlement. Phis Agreement may not be
amended, modified, and/or released, except in writing signed by the parties. Should this
Agreement be so modified, amended, and/or released, the City Manager shall be
authorized to execute any such written instrument(s) effectuating and acknowledging
same on behalf of the City. This Agreement shall be binding on and shall inure to the
benefit of the respective successors and assigns, if any, of each party.
9. This Agreement is being consummated in the State of Florida and the
performance by the parties hereto is in the State of Florida. 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 oI~ any matter
pertaining to this Agreement, shall be in Miami-Dade County, Florida.
10. The parties warrant to each other that they have read and understand this
Settlement Agreement, and that each has been represented by counsel before signing this
Agreement.
11. This Agreement shall be recorded in the public records of Miami-Dade
County, Florida.
12. This Agreement shall commence, following execution by the parties, upon
the Effective Date, and shall remain in full force and effect until Owner/Applicant's
satisfactory completion and removal of all Encroachments, or April l6, 2009, whichever
is earlier.
REMAINDER OF PAGE LEF"I• INTENTIONALLY BLANK)
IN Wl'1'NI:SS WHEREOF, the parties have set their hands and seals on the day
and date first written above.
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CITY OF MIAMI BEACH, FLORIDA,
a municipal corporation
ATTEST:
~~
B :~~~'
Y
Citv Clerk
STATE OF FLORIDA
COON"I~Y OF MIAMI-DADS
By• -
Mayor
The f regoing instrument was acknowledged before me this ~~ Ada of
Y
y ' , 2008, by Matti Herrera Bower, as Mayor, and Robert Parcher,
as Cit Clerk, of the CITY OF MIAMI BEACI-I, FLORIDA, a municipal corporation of
the State of Florida, on behalf of such municipal corporation. They are personally known
to me
r----,
Notary P bhc, ~ to at Large
rint Na e
My .
~;;~~ i ICEFtR HERNANDQ
:,; ;;. MY COMMISSION # DD 626373
a•. ~a ° EXPIRES: May 3 2011
"''•'},",PF 1~0?•~ Bonded Thru Notary Pu6Nc Underwriters
APPROVED AS TO
FORM.& LANGUAGE
ts~ F~ EXECUTION
~~
1._..~a~T F•~~E
CARLO GAMBINO, an individual and
owner of the property at 5600 La Gorce Drive
Witnesses:
Signature Signatur
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Print Na e Print Name
Name
STATE OF FLORIDA )
COUNTY OF MIAMI-DADS )
The ,foregoing instrument was acknowledged before me this ~5 day of
~~~ ~L 2008, by Carlo Gambino, an individual and owner of the
property at 5600 L,a Gorce Drive. He/she is ersonall known to or has produced
as identification.
State of Florida at Large
~.
Print Name
My Commission Expires: / ~ /IO/(?1
s~a~nuapuN~19ndNelo ni ~`~
N Ul Gap~o!~ ;a ~Ic "•,•
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CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO: Robert Parcher
City Clerk
FROM: Raul J. Aguila
Deputy City Attorney
SUBJECT: Canyon Ranch Settlement Agreement (Carlo Gambino)
DATE: May 5, 2008
Attached please find an original recorded copy of the above-referenced Agreement.
Should you have any questions or comments regarding the above, please do not
hesitate to contact me.
RJAIed