HomeMy WebLinkAboutCity of Tamarac Resolution R-97-094Temp. Reso. # 7861 1
April 22, 1997
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-97---"
A RESOLUTION OF THE CITY COMMISSION
OF THE CITY OF TAMARAC, FLORIDA,
AUTHORIZING THE SETTLEMENT OF THE
JEFFREY L. BERKOWITZ V. CITY OF TAMARAC
CLAIM, CASE NO.92-1077 IN THE AMOUNT OF
$3,100,000 PROVIDING FOR CONFLICTS;
PROVIDING FOR SEVERABILITY; AND
PROVIDING FOR AN EFFECTIVE, DATE.
WHEREAS, Mr. Berkowitz filed suit against the City and a verdict was rendered in
favor of the Plaintiff; and
WHEREAS, the City is facing a potential judgement of $3.8 million - $4.2 million
dollars; and
WHEREAS, the City Manager, City Attorney and Special Counsel, have met numerous
times with Mr. Berkowitz and his attorneys to discuss settlement of this matter; and
WHEREAS; after negotiations, the City and Mr. Berkowitz have reached a settlement
agreement in the amount of $3,100,000 plus the escrowed funds currently held by Greenberg,
Traurig, et al, in full and final settlement of all claims against the City of Tamarac including
interest, attorneys' fees and costs (attached hereto as Exhibit "A"); and
WHEREAS, Mr. Berkowitz will deliver to the City of Tamarac a Quit Claim Deed to the
remaining portion of the Phase I property free and clear of all liens and encumbrances; and
WHEREAS, the settlement requires a $1.25 million dollar payment within 15 days of
City Commission approval; and
Temp. Reso. # 7861 2
April 22, 1997
WHEREAS, available funds exist in the Insurance Fund budget for said purpose; and
WHEREAS, it is the recommendation of the City Manager, City Attorney and Special
Counsel to authorize settlement of the Jeffrey L. Berkowitz v. City of Tamarac claim in the
amount of $3,100,000; and
WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in the
best interests of the citizens and residents of the City of Tamarac to settle the Jeffrey L.
Berkowitz claim.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA:
SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and
confirmed as being true and correct and are hereby made a specific part of this Resolution.
E TION 2: In accordance with the settlement agreement (attached hereto as
Exhibit "A"), the City Commission hereby authorizes settlement of the Jeffrey L. Berkowitz v.
City of Tamarac claim, Case No. 92-1077 in the amount of $3,100,000 plus the escrowed
funds currently held by Greenberg Traurig, et al, in full and final settlement of all claims
against the City of Tamarac including interest, attorneys' fees and costs.
SECTION 3 In accordance with the settlement agreement Mr. Berkowitz will
deliver to the City a Quit Claim Deed to the portion of Phase I property free and clear of all
liens and encumbrances.
SECTION 4: Budgetary transfers amounting to $1,250,000 from Insurance Fund
accounts entitled "Property Liability Insurance Claims", "Resources Available - Net Ending",
"Insurance Fund Contingency" and Workers' Compensation Claims" are hereby correct
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Temp. Reso. # 7861 3
April 22, 1997
accounting purposes.
SECTION 5: All resolutions or parts of resolutions in conflict herewith are
hereby repealed to the extent of such conflict.
SECTION 6: If any clause, section, other part or application of this Resolution
is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or
application, it shall not affect the validity of the remaining portions or applications of this
Resolution.
SECTION 7: This Resolution shall become effective immediately upon its
passage and adoption.
PASSED, ADOPTED AND APPROVED this 30
ATTEST:
-� .
I HEREBY CERTIFY that I
have approved this
LUTION as P form.
-MI ICHELL S. KRAF
CITY ATTORNEY
(c:\wpdata\reso7861 \.sms)
day of /9 he / L , 1997.
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JOE SCHREIBER
MAYOR
RECORQ OF
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JEFFREY L. BERKOWITZ, Trustee
under unrecorded Declaration of
Trust dated as of July 1, 1989,
Plaintiff,
LTA
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR BROWARD
COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.92-17077 (1 2�
THE CITY OF TAMARAC, a Florida
municipal corporation, and GREENBERG,
TRAURIG, HOFFMAN, LIPOFF, ROSEN &
QUENTEL, P.A., a Florida professional
association, as escrow agent,
Defendants.
STIPULATION
Plaintiff JEFFREY L. BERKOWITZ, Trustee under unrecorded Declaration of
Trust dated as of July 1, 19-89 ("BERKOWITZ") and Defendant THE CITY OF TAMARAC, a
Florida municipal corporation ("TAMARAC"), show onto the Court that they have amicably
settled and resolved the matters in dispute between them as follows:
1. BERKOWITZ agrees to accept the total sum of $3,100,000, plus the
escrowed funds currently held by GREENBERG, TRAURIG, HOFFMAN, LIPOFF, ROSEN &
QUENTEL, P.A. ("GREENBERG, TRAURIG"), in full and final settlement of all claims against
TAMARAC, including post judgment interest, attorneys' fees and costs.
2. TAMARAC shall pay to BERKOWITZ the sum of $3,100,000, as
:EXHIBIT
•
•
follows:
On May 15, 1997
On October 10, 1997
On October 10, 1998
CASE NO. 92-17077 (12)
$1,250,000
1,000,000
850,000
3. On May 1, 1997, TAMARAC shall authorize GREENBERG, TRAURIG
to release to BERKOWITZ all sums then held in escrow in this matter, by duly executing and
sending, via facsimile and U.S. Mail, a letter substantially in the form attached hereto as Exhibit
"A". There shall be no grace period as to this particular obligation. If TAMARAC fails to
timely send the letter, TAMARAC shall be in default under this Stipulation.
4. This debt may be prepaid in whole or in part at any time without penalty.
5. BERKOWITZ will waive the balance owed pursuant to the Final
Judgment entered in this cause on March 5, 1997 provided TAMARAC timely makes all
payments as set forth in paragraphs 2 and 3 above.
6. It is understood that all payments due to BERKOWITZ under this
agreement shall be made by check or wired funds payable to Adorno & Zeder, P.A. Trust
Account. Wire information will be made available on request. Any payments made by check
after the first installment shall be delivered by overnight mail or hand -delivery to Julie Feigeles,
Esq., Adorno & Zeder, P.A., 2601 S. Bayshore Drive, Suite 1600, Miami, FL 33133.
7. A closing shall be held on or before May 15, 1997 at the offices of Adorno
& Zeder, P.A., at which time TAMARAC shall deliver the first payment due hereunder, and
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F - 5 --/ 'ry
CASE NO. 92-17077 (12)
BERKOWITZ shall deliver a Quit Claim Deed to the remaining portion of the Phase I property,
legally described as:
Lots 6 through 14, Block 8, "LYONS COMMERCIAL SUBDIVISION"
according to the Plat thereof, recorded in Plat Book 69, Page 42, of the
Public Records of Bro�vard County, Florida,
(hereinafter referred to as "the Property") free and clear of all liens and encumbrances other than
liens filed by TAMARAC, and the Barnett Bank mortgage as later discussed herein. The Deed
shall be substantially in the form attached hereto as Exhibit `B". Any real estate taxes due on the
property for the years prior to 1997 shall be paid within three (3) business days of the closing by
Adorno & Zeder, P.A. from the first installment payment, and will be paid prior to any
disbursement to BERKOWITZ.
At the closing referred to in the preceding paragraph, BERKOWITZ,
through his counsel, shall deliver to Johnson, Anselmo, Murdoch, Burke & George a Satisfaction
of Judgment in the form attached hereto as Exhibit "C". The Satisfaction of Judgment shall be
held in escrow by Johnson, Anselmo until the final installment due hereunder is delivered and
the funds clear. In the event of a default by TAMARAC hereunder, the Satisfaction of Judgment
shall become invalid and shall not be used or relied on for any purpose. Johnson, Anselmo shall
not deliver the Satisfaction of Judgment to or for the benefit of TAMARAC and the Satisfaction
shall not be recorded in the public records until clearance of the final payment due under this
Stipulation.
9. TAMARAC is aware that there is a mortgage on the Property in favor of
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CASE NO.92-17077 (12)
Barnett Bank in the approximate principal amount of $495,000). BERKOWITZ shall not
increase the amount of the Barnett Bank mortgage from the date of execution of this Stipulation.
1
Notwithstanding anything herein to the contrary, TAMARAC agrees that the mortgage may
remain an encumbrance on the property until the October 10, 1997 installment payment is made,
and for ten working days thereafter in order to deliver payment and obtain a Satisfaction of
Mortgage. TAMARAC acknowledges that BERKOWITZ has agreed to pay Barnett Bank in full
no later than October 10, 1997 and, therefore, agrees to timely make this payment in order to
comply with Barnett Bank's requirements. If the Barnett Bank mortgage is paid from the
October 10, 1997 installment by Adorno & Zeder, P.A., then Adorrio & Zeder, P.A. shall not
release the balance of the October 10, 1997 payment to BERKOWITZ until the Satisfaction of
Mortgage is executed by Barnett Bank. TAMARAC shall not assume responsibility for the debt
or for payment of same other than as set forth herein. If requested by BERKOWITZ prior to
delivery of the October 10, 1997 payment, TAMARAC agrees to make a direct payment to
Barnett Bank out of and as.part of the October 10, 1997 installment. Any payment made to
Barnett Bank pursuant to this paragraph shall reduce, on a dollar for dollar basis, any payment
due to BERKOWITZ hereunder.
10. In the event all or a portion of the Property is sold by TAMARAC before
October 10, 1998, the date the last installment payment is due hereunder, TAMARAC agrees that
all net proceeds from the sale(s), up to the amount of the remaining balance due to
BERKOWITZ, shall be paid to BERKOWITZ at the closing on such sale(s). Any such sums
CASE NO.92-17077 (12)
paid to BERKOWITZ pursuant to this paragraph will be applied first to a reduction of the
October 10, 1998 payment, and then to the amount owed for October,10, 1997, if any.
. 11.
11. In the event a payment due pursuant to Paragraph 2 above is not received
on time, Michael Burke, Esq. and Mitchell Kraft, Esq. or the then City Attorney for TAMARAC
shall be provided written notice and 15 days to cure. Unless TAMARAC can conclusively
establish that payment was timely made and was not received by Adorno & Zeder due to no fault
of TAMARAC, BERKOWITZ shall be entitled to interest on the delinquent payment at the rate
of ten percent (10%) per year for every day the payment is late. Notice shall be sent via
facsimile and mail and the 15 days shall run from the date of the facsimile transmission. If
payment is not r cee ived by Adorno & Zeder, P.A. within the 15 day cure period, including
interest on the late payment as set forth herein, then this shall constitute a default and
BERKOWITZ shall be entitled to the entire amount due pursuant to the Final Judgment entered
in this cause on March 5, 1997, plus attorneys' fees and costs to be awarded by the Court, plus
post judgment interest, less any amounts paid pursuant to this Stipulation. A hearing shall be set
and noticed on the amount of attorneys' fees and costs. BERKOWITZ may schedule the hearing
for the 16th day after the late payment was originally due or any time thereafter.
12. On the filing of this original executed Stipulation and execution of an
Order of Dismissal by the Court, in the form attached hereto as Exhibit "D", TAMARAC's
pending post trial motions shall be deemed withdrawn, without further motion, pleading or order.
13. BERKOWITZ shall submit the original executed Stipulation to the Court
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R-99-9q
CASE NO.92-17077 (12)
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for approval and for entry of an order dismissing the cause with prejudice, with retention of
jurisdiction to enforce this agreement, and to award interest, attorneys' fees and costs in the event
of default as set forth herein.
DATED this _ day of April, 1997.
Signed, sealed and delivered
in the presence of:
City Manager
City Clerk
M :111MV491 .11-4
JOHNSON, ANSELMO, MURDOCH,
BURKE & GEORGE
Michael Burke
790 East Broward Boulevard
Suite 400
Post Office Box 030220
Ft. Lauderdale, FL 33303-0220
(954) 463-0100
0 Attorneys for TAMARAC
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By:
f AYOR
ADORNO & ZEDER, P.A.
Julie Feigeles
2601 South Bayshore Drive
Suite 1600
Miami, FL 33133
(305) 860-7067
Attorneys for BERKOWITZ
•
CASE NO. 92-17077 (12)
EXHIBIT "A"
May 1, 1997
Via U.S. Mail and facsimile 305-5 7 9-0717
Steven E. Goldman
Greenberg Traurig et al.
1221 Brickell Avenue
Miami, FL 33131-3260
Re: Jeffrey L. Berkowitz v. City of Tamarac
Dear Mr. Goldman:
This letter shall be considered authorization for Greenberg, Traurig, Hoffman,
Lipoff, Rosen & Quentel, P.A. as escrow agent to immediately release to Adorno & Zeder, P.A.
Trust Account for disbursement to Jeffrey Berkowitz all sums currently held in escrow in this
matter. Please forward payment to Julie Feigeles, Esq., Adorno & Zeder, P.A., 2601 S. Bayshore
Drive, Suite 1600, Miami, FL 33133.
The City of Tamarac hereby expressly relinquishes any and all rights to the
escrow account and releases Greenberg, Traurig, et al from all liability or responsibility in this
matter.
You may rely on the facsimile of this executed letter.
Yours truly,
7
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JEFFREY L. BERKOWITZ, Trustee
under unrecorded Declaration of
Trust dated as of July 1,1989,
Plaintiff,
V.
CASE NO. 92-17077 (12)
EXHIBIT "C"
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR BROW, ARD
COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.92-17077 (12)
THE CITY OF TAMARAC, a Florida
municipal corporation, and GREENBERG,
TRAURIG, HOFFMAN, LIPOFF, ROSEN &
QUENTEL, P.A., a Florida professional
association, as escrow agent,
Defendants.
I
KNOW ALL MEN BY THESE PRESENTS that JEFFREY L. BERKOWITZ,
Trustee under unrecorded Declaration of Trust dated as of July 1, 1989, Plaintiff in the above -
styled cause, wherein a Final Judgment Against Defendant THE CITY OF TAMARAC, a
Florida municipal corporation, was rendered on the Sth day of March, 1997 in the above -named
Court, said Judgment being duly recorded in Official Records Book at Page
0
CASE NO.92-17077 (12)
of the Public Records of Broward County, Florida, does hereby acknowledge full
payment and satisfaction of the Judgment and does hereby direct the Clerk of this Court to
satisfy, cancel and discharge said Judgment of record.
JEFFREY L. BERKOWITZ
STATE OF FLORIDA )
) ss:
COUNTY OF DADE )
The foregoing instrument was acknowledged before me this day of May,
1997, by Jeffrey L. Berkowitz, who is personally known to me or who has produced her Florida
driver's license as identification.
•
Notary Public
Printed Name:
My Commission Expires:
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R-97-vy
CASE NO. 92-17077 (12)
EXHIB T.�, "D"
ti
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT-IN",AND FOR BROWARD
COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 92-17077 (12)
JEFFREY L. BERKOWITZ, Trustee
under unrecorded Declaration of
Trust dated as of July 1, 1989,
Plaintiff,
V.
THE CITY OF TAMARAC, a Florida
municipal corporation, and GREENBERG,
TRAURIG, HOFFMAN, LIPOFF, ROSEN &
QUENTEL, P.A., a Florida professional
association, as escrow agent,
Defendants.
ORDER OF DISMISSAL
THIS CAUSE having come before the Court on the Stipulation of the parties
dated April 30, 1997, and the Court having reviewed the Stipulation and being otherwise fully
advised in the premises, it is
ORDERED AND ADJUDGED:
1. The Stipulation is approved and accepted, and the parties are ordered to
comply with the Stipulation.
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CASE NO.92-17077 (12)
2. The post trial motions filed by Defendant THE CITY OF TAMARAC are
deemed to have been withdrawn by Defendant.
3. On payment of the sums held in its escrow account, Defendant
GREENBERG, TRAURIG, HOFFMAN, LIPOFF, ROSEN & QUENTEL, P.A., a Florida
professional association, as escrow agent, shall be released of all responsibility and liability in
this matter.
4. This cause is dismissed with prejudice. The Court expressly retains
jurisdiction to reopen the file in order to enforce the terms of the Stipulation, and to award post -
judgment interest, attorneys' fees and costs in accordance with the Stipulation.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida this day of May, 1997.
JOHN A. MILLER
CIRCUIT COURT JUDGE
Copies furnished to:
Julie Feigeles
Michael Burke
Alan Ruf
Steven Goldman
1F/L.ORDD.R/91316/10495.001 I I