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HomeMy WebLinkAbout02/19/2003 Agreement '"" SETTLEMENT AGREEMENT THIS AGREEMENT is made this 19th day of February, 2003, by and between Katherine F. Shadek, individually, on behalf of and as the Personal Representative of Arthur 1. Shadek, or in any capacity whatsoever, and Joseph R. Harrison, m, individually, and as Trustee of the Testamentary Trusts of Joseph R. Harrison, Jr., or in any capacity whatsoever, for themselves, their predecessors, successors, respective heirs, executors, administrators, legatees, assigns, directors, officers, agents, employees, and all natural persons, corporations, firms, organizations, partnerships, associations, and entities claiming by or through them (hereinafter referred to as "ShadekIHarrison"), and Monroe County and the Monroe County Board of County Commissioners, for themselves, their elected and appointed officials, predecessors, successors, directors, officers, agents, employees, and all natural persons, corporations, firms, boards, departments, commissions, councils, committees, and entities claiming by or through them (hereinafter referred to as the "County"), provides for the settlement of all claims, appeals, and causes of action that they have, have had, or may have against each other as of February 19, 2003, including, but not limited to, any liability and all claims, suits, proceedings, and causes of action arising out of the purchase, ownership, use, regulation, and/or disposition of the real property commonly described as "Ocean Forest," more particularly described in Exhibit "A," attached hereto and incorporated herein by this reference. RECITALS WHEREAS, ShadekIHarrison and the County (the "Parties") are parties to litigation now pending in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida, styled Katherine F Shadek and Joseph R. Harrison, III, et al. v. Monroe County Board of County Commissioners, Case No. 95-20398-CA-05; litigation in the United States District Court for the Southern District of Florida, currently on appeal, styled Arthur J. Shadek; Katherine F 1130/20032:51 PM (2K) MIAMI 319076 v7 [6%7807!.DOC) Shadek; and Joseph R Harrison, III, as Personal Representative of Joseph R Harrison, Jr., v. Monroe County Board of County Commissioners; Case No. 92-10026-Civ-King; and an appeal now pending in the United States Court of Appeals for the Eleventh Circuit, styled Arthur J. Shadek; Katherine F Shadek; and Joseph R Harrison, 111, as Personal Representative of Joseph R Harrison, Jr., v. Monroe County Board of County Commissioners; Case No. 95-4947. WHEREAS, the Parties, having proceeded successfully through Court-ordered mediation, desire to settle and compromise any and all judgments, liabilities, causes of actions, suits, as well as any attorney's fees, costs, and expenses (including, but not limited to, fees, costs, and claims under 42 U.S.C. ~ 1983 and 42 U.S.C. ~ 1988) that each party has, has had, or may have against each other as of February 19, 2003, the effective date of this Settlement Agreement (hereinafter referred to as the "Agreement"). NOW, THEREFORE, for and in consideration of the sum of$1O.00, the mutual covenants and agreements set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by each Party, ShadekIHarrison and the County hereby agree as follows: 1. Incorporation of Recitals. The above Recitals are incorporated into and made a part of this Agreement. 2. Payment by the County. The County will pay ShadekIHarrison the sum of Five Million Nine Hundred Thousand Dollars ($5,900,000.00) in three (3) installments as follows: a. The sum of Two Million Five Hundred Thousand Dollars ($2,500,000.00) shall be paid on or before March 14,2003; b. The sum of Two Million Dollars ($2,000,000.00) shall be paid on or before February 16, 2004; and 1130/20032:51 PM (2K) MIAMI 319076 v7 [6%7807!.DOC] -2- c. The sum of One Million Four Hundred Thousand Dollars ($1,400,000.00) shall be paid on or before February 16,2005. Payments by the County shall be made by wire transfer to: Gibraltar Bank 200 South Biscayne Boulevard Suite 2850 Miami, Florida 33131 Routing No: 267090455 Credit to Ocean Forest Account No. 30076714 In the event the orders of dismissal referred to in paragraph 13 have not been entered by March 14,2003, Douglas M. Halsey, attorney for ShadeklHarrison, will hold the County's payment in escrow until the orders have been entered. 3. Release of claims and satisfaction. a. The Parties have executed and delivered the Mutual General Release, which is attached hereto as Exhibit "B." b. If ShadekIHarrison, or any attorney or other party on the behalf of ShadekIHarrison, brings judicial or administrative proceedings against the County at any time after the date of the execution of this Agreement, which proceedings relate in any manner to the purchase, ownership, use, regulation, or disposition of the real property commonly described as "Ocean Forest," more particularly described in Exhibit "A," in addition to any other appropriate judicial remedy or sanction otherwise available to the County, the County shall be released from any and all obligations to make payments as set forth in paragraph 2 above. Within five (5) days of initiating any such proceeding as set forth in this paragraph, ShadekIHarrison will pay to the County monies equal in amount to any already paid by the County pursuant to paragraph 2, with interest accruing since the date of original payment by the County. If30/2003 2:51 PM (2K) MIAMI 319076 v7 [6%7807I.DOC] -3- c. If ShadekIHarrison or the County initiates any proceedings of any kind or nature against the State of Florida or the United States (including any board, agency, office, department, officer, agent, or employee created or authorized by the State or the United States) at any time after the date of execution of this Agreement, which proceeding relates in any manner to the purchase, ownership, use, regulation, or disposition of the real property commonly described as "Ocean Forest," more particularly described in Exhibit "A," in addition to any other appropriate judicial remedy or sanction otherwise available: (1) In the case of ShadekIHarrison initiating proceedings against the State of Florida or the United States: (a) the County shall be released from any and all obligations to make payments as set forth in paragraph 2 above; (b) within five (5) days of filing any such proceeding as set forth in this paragraph, ShadekIHarrison will pay to the County monies equal in amount to any already paid by the County pursuant to paragraph 2, with interest from the date of payment; and (c) ShadekIHarrison will indemnify, defend, and hold the County harmless from any third-party or contribution claim which the State of Florida or the United States may bring against the County in any such proceeding. (2) In the case of the County initiating proceedings against the State of Florida or the United States, the County will indemnify, defend, and hold ShadekIHarrison harmless from any third-party or contribution claim which the State of Florida or the United States may bring against ShadeklHarrison in any such proceeding. 4. Voluntary dismissal with prejudice. Within fifteen (15) days after the execution of this Agreement, the Parties shall jointly file: a. The "Notice of Settlement and Joint Motion for Dismissal With Prejudice, Vacation of Liability Order, and to Retain Jurisdiction to Enforce Settlement Agreement," attached hereto as Exhibit "C." The Parties shall simultaneously submit to the Honorable Luis Garcia for execution and filing the proposed "Order Dismissing With Prejudice, Vacating Order, And Retaining Jurisdiction To Enforce Settlement Agreement," attached as Exhibit "D." 1130/20032:51 PM (2K) MIAMI 319076 v7 [6%7807!.DOC] -4- b. The "Joint Motion For Dismissal With Prejudice," attached as Exhibit "E. " The Parties shall take any additional actions that may be necessary to effectuate the dismissal, with prejudice, of the lawsuits and appeals listed in the Recitals of this Settlement Agreement. 5. Court order setting aside and vacating liability order. The Parties acknowledge that a material condition of the execution of this Agreement is the vacation of the Circuit Court's Findings of Fact, Conclusions of Law, and Order dated July 17, 2001. 6. Right to pursue State reimbursement. Nothing in this Agreement or the Mutual General Release shall limit the right of the County to seek reimbursement from the State of Florida based on the principal role of the State of Florida in the adoption of the County regulations and policies that gave rise to the claims and causes of action set forth in the above- listed litigation and appeal, and the purchase of the Ocean Forest property from Shadek/Harrison on May 15, 1990 without securing a general release for the County. 7. Agreement does not constitute admission of liability. The Parties acknowledge and agree that neither the fact of this Settlement Agreement, the Mutual General Release attached as Exhibit "B," nor the exchange of consideration for this Agreement and Mutual General Release is or shall be construed as an admission of any liability by the County, the County expressly denying any and all liability alleged in the above-listed litigation and appeal. The Parties further acknowledge that this Agreement is entered into for the sole purpose of settling the above-listed litigation and appeal, and all other claims, fees, and expenses regarding the purchase, ownership, use, regulation, or disposition of the property known as "Ocean Forest," more particularly described in Exhibit "A." 1/30120032:51 PM (2K) MIAMI 319076 v7 [6% 7807!.DOC] -5- 8. Mutual agreements and understandings. The Parties hereby acknowledge that the following mutual agreements and understandings constitute material inducements to the execution of this Agreement: a. that all above-listed litigation be dismissed with prejudice by the Court with lawful jurisdiction over the case; b. that ShadekIHarrison, or any party representing ShadekIHarrison, is expressly precluded from any further liability, claim, or cause of action against the County that they have, have had, or may have as of February 19, 2003, including, but not limited to, any claim for costs, expenses, and/or attorney's fees (including, but not limited to, any claim under 42 U.S.C. ~ 1988), that are in any way or manner related to Ocean Forest, as described in Exhibit "A;" c. that neither this Agreement, the Mutual General Release attached hereto as Exhibit "B," the payment of consideration by the County, the "Findings of Fact, Conclusions of Law, and Order" entered by the Honorable Luis Garcia on July 17, 2001, nor the Courts' orders dismissing the above-listed cases and appeal, shall be considered relief on the merits, a remedial action, or a change in position by the County to satisfy the demands of ShadekIHarrison; and d. that neither Party is to be considered or construed as a "prevailing party" in any of the above-listed litigation or appeal, under any state or federal law, including, but not limited to, 42 U.S.C. ~ 1988, by the Settlement Agreement or Mutual General Release, both dated February 19, 2003, the payment of consideration by the County, the "Findings of Fact, Conclusions of Law, and Order" entered by the Honorable Luis Garcia on July 17, 2001, and/or the Courts' orders entered to effectuate this Agreement and the Mutual General Release. 1/30/20032:51 PM (2K) MIAMI 319076 v7 [6%7807!.DOC] -6- 9. Execution of documents. ShadeklHarrison and the County agree to and shall cooperate with each other in preparing, executing, and delivering any and all documents that are necessary or required to fulfill or effectuate the terms of this Agreement. 10. Retention of jurisdiction. The Circuit Court of Monroe County, Florida shall be requested to retain jurisdiction for the sole purpose of enforcing the terms of this Settlement Agreement. This Settlement Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida. In the event the County fails to timely make the first payment required under paragraph 2 hereof, ShadekIHarrison shall give the County five (5) days within which to cure the breach by making the scheduled payment due plus $1,000 for each day payment is late, after which ShadekIHarrison may seek immediate enforcement of this Agreement by the Circuit Court, pursuant to Rule 1.73 O( c), Fla.R. Civ.P. In the event the County fails to make in a timely manner the second or third payments required under paragraph 2 hereof, ShadekIHarrison shall serve upon the County Administrator and the County Attorney written Notice of Default by certified mail, return receipt requested, which shall specify that the County has thirty (30) days to cure such default without assessment of any costs, interest, or attorney's fees. If, after thirty (30) days of receipt ofa Notice of Default, payment by the County has not been made in the appropriate amount set forth in paragraph 2 above, ShadekIHarrison may seek enforcement of this Agreement by the Circuit Court, pursuant to Rule 1.730(c), Fla.R.Civ.P. In the event that either Party files suit to enforce this Agreement, the prevailing Party shall be entitled to reasonable attorney's fees and costs at trial and at all levels of appeal incurred in enforcing this Settlement Agreement, in addition to interest on any late payment as provided by statute. 11. No assignment. The Parties covenant and represent that they have not sold, transferred, or assigned their respective claims in the above-listed litigation or appeal nor their lf3012oo3 2:51 PM (2K) MIAMI 319076 v7 [6%7807!.DOC] -7- rights to receive proceeds from the settlement of such claims for the benefit of any creditors or any third Parties. 12. Authority of signatories. The signatories represent and warrant that they have full authority to execute this Agreement on behalf of and to bind their respective Parties. This Settlement Agreement may be executed in multiple counterparts. 13. Dismissals condition prece~ent. The Mutual Release attached as Exhibit "B," and the other undertakings and obligations of the Parties set forth herein shall not become effective until all of the following have occurred: a. the United States Court of Appeals for the Eleventh Circuit enters an order which dismisses with prejudice Case No. 95-4947; and b. the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida enters an order in substantially the same form as the Order attached as Exhibit "D" which: (1) dismisses with prejudice Case No. 95-20398-CA-05; (2) voids, vacates, and sets aside the Liability Order entered by the Court on July 17, 2001; (3) retains the Court's jurisdiction for the sole pUrpose of enforcing the terms of this Agreement; and (4) is otherwise consistent with and effectuates the terms of this Agreement. The Parties will cooperate in taking all actions necessary to effectuate the foregoing. 1130120032:51 PM (2K) MIAMI 319076 v7 [6%7807!.DOC] -8- 14. Notice. Any notices required to be given by one Party to the other, according to the terms hereof, shall be sent to: FOR SHADEKlHARRISON: and Douglas M. Halsey White & Case LLP Suite 4900 Wachovia Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2352 Telephone: (305) 371-2700 Facsimile: (305) 358-5744 FOR MONROE COUNTY: John Richard Collins Monroe County Attorney P.O. Box 1026 Key West, Florida 33041 Telephone: (305) 292-3470 Facsimile: (305) 292-3516 with a copy to: Robert H. Freilich Freilich, Leitner & Carlisle 1150 One Main Plaza 4435 Main Street Kansas City, Missouri 64111-1858 Telephone: (816) 561-4414 Facsimile: (816) 561-7931 1130/20032:51 PM (2K) MIAMI 319076 v7 [6%7807!.DOCj -9- MONROE COUNTY BOARD OF COUNTY COMMISSIONERS By:_ (_~ Jam~s L. Roberts, County Administrator ~,(1.Q/1 / 'l<-L~' S'i( ~.4 k.. Katherine F. Shadek, 'in the capacities listed above :::::tft4~ Date: c_ / / c; I (.) 5' \. \',.,.'- \ D.L.. ~4 ~ L~ Joseph R. Harrison, III, in the capacities listed above OQ.- 18 -03 Witne~ ~ ~.:z WItness: ~,,_~ ~ Date: ;2,/7(03 ~ Date: Approved as to form ~~~Attomey Date: e'2.W' 0 ~ The undersigned, as counsel for Plaintiffs, ShadekiHarrison, hereby acknowledges full and complete satisfaction of attorney's fees and costs in the above-listed litigation, and releases and waives any claim against the County for attorney's fees and costs in the above-listed litigation, under state or federal law, including, but not limited to, 42 U.S.C. ~ 1988. WIDTE & CASE LLP Date: '2../1/ /03 1130120032:51 PM (2K) MlAM1319076 v7 [6%7807!.DOC) -10- 1115/2003 12:02 PM (2K) MIAMI 319086 vI [6%7$01!.DOC] Ocean Forest, according to the Plat thereof A subdivision of portions of Sections 9, 10, 15 and 16, Township 60 South, Range 40 East, being more particularly described as follows: GOVERNMENT LOT 1, excepting therefrom the North 190.3 feet of the South 717.3 feet according to Deed thereof, recorded in Deed Book G43, Pages 263 and 264 of the Public Records of Monroe County, Florida and GOVERNMENT LOT 2 and the E. ~ of the S.B. 14, all in Section 9; the N.W. 14 of the S.W. 14 and the S.W. 1f4 of the S.W. 14 and GOVERNMENT LOT 4, all in Section 10; the N. W. 14 of the N. W. 1f4 and GOVERNMENT LOTS 1 and 2, all in Section 15; that part of Section 16, lying North of a line that is 2103.5 feet Northerly of, as measured at right angles, and parallel to the South line of said Section 16; all in Township 60 South, Range 40 East, lying and being in Key Largo, Monroe County, Florida, less State Road S-905 right-of-way; also less the East ~ of the Southeast 1f4 of said Section 9; and less the South ~ of the Southeast 1f4 of the Northeast 14 of the Southeast 14 of Section 9; and less the Southwest 1f4 of the Northeast 14 of the Southeast 1f4 of said Section 9, Township 60 South, Range 40 East. EXHIBIT A MUTUAL GENERAL RELEASE The undersigned Parties hereto, Katherine F. Shadek, individually, on behalf of and as the Personal Representative of Arthur 1. Shadek, or in any capacity whatsoever, and Joseph R Harrison, ill, individually and as Trustee of the Testamentary Trusts of Joseph R. Harrison, Jr., or in any capacity whatsoever, for themselves, their predecessors, successors, respective heirs, executors, administrators, legatees, assigns, directors, officers, agents, employees, and all natural persons, corporations, firms, organizations, partnerships, associations, and entities claiming by or through them, ("ShadekIHarrison") and Monroe County and the Monroe County Board of County Commissioners, for themselves, their elected and appointed officials, predecessors, successors, directors, officers, agents, employees, and all natural persons, corporations, firms, boards, departments, commissions, councils, committees, and entities claiming by or through them (the "County"), for and in consideration of the payment of Five Million Nine Hundred Thousand Dollars ($5,900,000.00) by the County to ShadekIHarrison, in the manner and within the times set forth in the Settlement Agreement dated the 19th day of February, 2003, and the exchange of other good and valuable consideration, the receipt and legal sufficiency of which is acknowledged by each Party, hereby mutually FOREVER RELEASE, REMISE, AND DISCHARGE one another of and from any and all claims, liability, actions, causes of action, suits, appeals, debts, contracts, controversies, compensations, demands, proceedings, counts, dues, accountings, reckonings, damages, interest (including prejudgment and post-judgment interest), attorney's fees, expenses (including, but not limited to, investigative and expert expenses), costs, judgments, and orders, in law or in equity, (specifically including, but not limited to, any and all attorney's fees, expenses, costs, and claims brought under state or federal law, including, but not 1/3012003 3:28 PM (2K) MIAMI 319047 v7 [6%6fU7!.DOC] EXHffiIT B limited to, 42 U. S. C. ~ 1983 and/or 42 U. S. C. ~ 1988) of every and any kind or nature which the County and ShadeklHarrison had, have, or may have, whether known or unknown, against each other as of February 19, 2003 including, but not limited to, any claims, liability, actions, causes of action, suits, appeals, debts, contacts, controversies, compensations, demands, proceedings, counts, dues, accountings, reckonings, damages, interest (including prejudgment and post- judgment interest), attorney's fees, expenses (including, but not limited to, investigative and expert expenses), costs, judgments, and orders, in law or in equity, (specifically including, but not limited to, any and all attorney's fees, expenses, costs, and claims brought under state or federal law, including, but not limited to, 42 U.S.c. ~ 1983 and/or 42 U.S.c. ~ 1988) of every and any kind or nature, arising out of, or in any manner relating or collateral to, any of the claims that were raised or could have been raised in the litigation in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida, styled Katherine F. Shadek and Joseph R. Harrison, III, et al v. the Monroe County Board of County Commissioners, Case No. 95-20398- CA-05; the litigation in the United States District Court for the Southern District of Florida, styled Arthur J. Shadek; Katherine F. Shadek; and Joseph R. Harrison, III, as Personal Representative of Joseph R. Harrison, Jr., v. Monroe County Board of County Commissioners; Case No. 92-10026-Civ-King; and the appeal in the United States Court of Appeals for the Eleventh Circuit, styled Arthur J. Shadek; Katherine F. Shadek; and Joseph R. Harrison, Ill, as Personal Representative of Joseph R. Harrison, Jr., v. Monroe County Board of County Commissioners; Case No. 95-4947; or in any way related or collateral to the purchase, ownership, use, regulation, or disposition of the real property commonly described as "Ocean Forest," more particularly described in Exhibit "A" attached hereto and incorporated by this reference. 1130120033:28 PM (2K) MIAMI 319047 v7 [6%6f07!.DOC] 2 ShadeklHarrison and the County (the "Parties") further understand that this Mutual General Release is made and accepted in full compromise, settlement, accord and satisfaction of any and all manner of actions, causes of action, suits, proceedings, claims, costs, expenses, counts, debts, dues, accountings, reckonings, liability and demands of every kind and nature whether known or unknown, including all consequences thereof which may hereafter develop, whether anticipated or not, as well as those already developed or now apparent, which the Parties have or could or might have against each other as of February 19,2003, including, but not limited to, those in any way growing out of, or connected with, or which may hereafter in any way grow out of or be connected with the purchase, ownership, use, regulation, or disposition of the real property commonly described as "Ocean Forest," more particularly described in "Exhibit A" attached hereto and incorporated herein by this reference. The Parties hereby expressly release each other from any and all claims for costs, expenses, or attorney's fees, whether under state or federal law. In executing this Mutual General Release the Parties understand that the terms hereof are contractual and not a mere recital, and warrant that no promise or agreement not herein expressed has been made, that this Mutual General Release is not executed in reliance upon any statement or representation made by the Party or Parties hereby released or said Parties' attorneys, agents, employees, or representatives. ShadeklHarrison warrant that they have not sold, transferred, or assigned any claim, action, cause of action, debt, expense, contract, controversy, agreement, promise, damages, interest, attorney's fees, investigative expenses, costs, judgments, and orders, in law or in equity, which ShadeklHarrison had, have, or may have, against the County arising out of, or in any manner relating to the subjects of this Mutual General Release. 1/30/20033:28 PM (2K) MIAMI 319047 v7 [6%6f07!.DOC] 3 This Mutual General Release shall not operate as a release of any duty or obligation incurred or to be incurred by either Party under the terms and conditions of the Settlement Agreement between them dated February 19,2003. Without in any way limiting the foregoing, it is agreed and understood that this Mutual General Release shall be and is binding upon and inure to the benefit of the Parties, including their heirs, executors, administrators, personal representatives, predecessors, successors, legatees, assigns and the Parties' directors, officers, agents, employees, elected and appointed officials, and representatives. It is further agreed and understood by the Parties that the aforesaid consideration, previously acknowledged, is the sole consideration for this Mutual General Release and said payment is for the sole purpose of settling any and all claims by and between the Parties, and is not to be construed as an admission of liability, all liability being expressly denied by both Parties, or relief on the merits of any claims raised in the above-listed litigation or appeal. The Parties stipulate and agree that neither ShadekIHarrison nor the County shall be construed or considered a "prevailing party" in any or all of the above-listed litigation or the appeal under any State or Federal law, including, but not limited to, 42 D.S.C. ~1988, by the Settlement Agreement dated February 19, 2003, this Mutual General Release, the payment of consideration by the County, and/or the "Findings of Fact, Conclusions of Law, and Order," entered by the Sixteenth Judicial Circuit in and for Monroe County, Florida, (Case No. 95- 20398-CA-05), dated July 17,2001. The County Administrator, on behalf of the Monroe County Board of County Commissioners, acknowledges that he has read, understood, and signed this Mutual General 1I30f2003 3:28 PM (2K) MIAMI 319047 v7 [6%6f07!.DOC] 4 Release after being duly advised by the County Attorney and authorized by the Monroe County Board of County Commissioners. Shadek/Harrison, by their duly authorized representatives, acknowledge that they have read, understood, and signed this Mutual General Release of their own free will, agreeing to the terms set forth. This Mutual General Release may be executed in multiple counterparts. In witness whereof, the County and Shadek/Harrison have caused this Mutual General Release to be executed on the date(s) set forth below. MONROE COUNTY BOARD OF COUNTY COMMISSIONERS By -::.../~ ~ James L. Roberts, County Administrator J(l[ Ifwt Uu:_ '1: 5[0 de k Katherine F. Shadek, in the capacities listed above Date: ":). - ~ - 0:::1 /.h-:;.-",- - -~- f: J ... Hr'll.t?~. ~ ~-AdA) !f$~1:~\'~p~fi~\~-; r !,' "../.' '1' \' I '4 ..1/ '~;' r Atte:e [).J ". ~~y:l7Kolhage, County Clerk ~'--:::;::1 ~<k' .,~,;;;:;t Date:'- 0 :;; - I Ji-{) 3 Witness: Witness' Date: '2 / / v ).;:> .3 a~/Z ~~ Joseph R. Harrison, III, in the capacities listed above Witness: ./)~ E. f)t/-- Witness: ~)AMIJ ~ Date: fJ/7/0,3 Approved as to form <1U~.c- ' ~ Richard Collins, County Attorney Date: 02~\O~ 113012003 3:28 PM (2K) M1AM1319047v7 [6%6f07LDOC] 5 Ocean Forest, according to the Plat thereof: A subdivision of portions of Sections 9, 10, 15 and 16, Township 60 South, Range 40 East, being more particularly described as follows: GOVERNMENT LOT 1, excepting therefrom the North 190.3 feet of the South 717.3 feet according to Deed thereof, recorded in Deed Book G43, Pages 263 and 264 of the Public Records of Monroe County, Florida and GOVERNMENT LOT 2 and the E. ~ of the S.E. Y'4, all in Section 9; the N.W. Y'4 of the S.W. Y'4 and the S.W. Y'4 of the S.W. Y'4 and GOVERNMENT LOT 4, all in Section 10; the N.W. Y'4 of the N.W. Y'4 and GOVERNMENT LOTS 1 and 2, all in Section 15; that part of Section 16, lying North of a line that is 2103.5 feet Northerly of, as measured at right angles, and parallel to the South line of said Section 16; all in Township 60 South, Range 40 East, lying and being in Key Largo, Monroe County, Florida, less State Road S-905 right-of-way; also less the East ~ of the Southeast Y'4 of said Section 9; and less the South ~ of the Southeast Y'4 of the Northeast Y'4 of the Southeast Y'4 of Section 9; and less the Southwest Y'4 of the Northeast Y'4ofthe Southeast Y'4 of said Section 9, Township 60 South, Range 40 East. EXHIDIT A 111512003 12:02 PM (2K) MIAMI 319086 v I [6%7$0 I !.DOC) IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 95-20398-CA-05 KATHERINE F. SHADEK; individually and on behalf of the Personal Representatives of ARTHUR J. SHADEK; and JOSEPH R HARRISON, III as Trustee of the Testamentary Trusts of JOSEPH R HARRISON, JR., Plaintiffs, v. MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant. / NOTICE OF SETTLEMENT AND JOINT MOTION FOR DISMISSAL WITH PREJUDICE, VACATION OF LIABILITY ORDER, AND TO RETAIN JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT Katherine F. Shadek and Joseph R Harrison, III, et aI. and the Monroe County Board of County Commissioners advise the Court that the controversy before the Court has been settled by the parties pursuant to the terms of a Settlement Agreement following mediation of the case. The Parties hereby acknowledge that the following mutual agreements and understandings constitute material inducements to the execution of the Settlement Agreement and Mutual General Release, both dated February 19, 2003: a. that this case be dismissed with prejudice; b. that Plaintiffs, or any party representing Plaintiffs, are expressly precluded from any further liability, claim or cause of action against the County, including any action for costs, expenses, and/or attorney's fees, under any state or federal law, including, but not 1/3012003 10:26AM (2K) MIAMI 319014 v6 [6%5$06!.DOC] EXHmIT C fr limited to, 42 U.S.C. ~ 1988, that are in any way or manner related or collateral to the property that is the subject of this litigation; c. that neither the Settlement Agreement, the Mutual General Release, both dated February 19, 2003, the payment of consideration by the County, the "Findings of Fact, Conclusions of Law, and Order," entered by this Court on July 17, 2001, nor the order requested pursuant to this motion, shall be considered relief on the merits, a remedial action, or a change in position by the County to satisfy the demands of Plaintiffs for purposes of any state or federal law, including but not limited to, 42 U.S.C. ~ 1988. d. that neither Plaintiffs nor the County is to be construed as a "prevailing party" in this case, under any state or federal law, including but not limited to, 42 V.S.C. ~ 1988, by the Settlement Agreement or Mutual General Release, both dated February 19, 2003, the payment of consideration by the County, the "Findings of Fact, Conclusions of Law, and Order," entered by this Court on July 17, 2001, or the order requested pursuant to this motion; and e. that payments made by the County to Plaintiffs pursuant to the terms of the Settlement Agreement shall be by wire transfer as described therein. The Settlement Agreement, which was approved by Plaintiffs and the Monroe County Board of County Commissioners on February 19, 2003, is attached hereto as Exhibit "A." Pursuant to the Settlement Agreement and in accordance with Rule 1.730(c), Florida Rules of Civil Procedure, the Parties respectfully request this Court to: (1) dismiss this case with prejudice with each Party to bear its own attorney's fees, expenses, and court costs (including but not limited to any fees, expenses, and/or costs under 42 U.s.C. ~ 1983 and/or 42 U.S.C. ~ 1988); (2) void, set aside, and vacate the Court's Order of July 17, 2001; and (3) retain jurisdiction for 11301200310:26AM (2K) MIAMI 319014 v6 [6%5S06!.DOC) 2 " the sole purpose of enforcing the terms of the Settlement Agreement, including scheduled payments as set forth therein. Respectfully submitted this _ day of February, 2003. wmTE & CASE LLP Attorneys for Plaintiffs First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2352 Telephone: (305) 371-2700 Facsimile: (305) 358-5744 By ~~(&e~ Florida Bar No. 288586 T. Neal McAliley Florida Bar No. 172091 If3012003 10:26 AM (2K) MIAMI 319014 v6 [6%5$06!.DOC] MORGAN & HENDRICK Karen K. Cabanas Florida Bar No. 0136964 Hugh J. Morgan Florida Bar No. 112362 Attorneys for Defendant 317 Whitehead Street Key West, Florida 33040 Telephone: (305) 296-5676 Facsimile: (305) 296-4331 FREILICH, LEITNER & CARLISLE Robert H. Freilich, Leitner & Carlisle Florida Bar No. 0482927 E. Tyson Smith, Jr. Florida Bar No. 0422088 1150 One Main Plaza 4435 Main Street Kansas City, Missouri 64111-1858 Telephone: (816) 561-4414 ~ 3 """"") ~ IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION CASE NO. 95-20398-CA-05 KATHERINE F. SHADEK; individually and on behalf of the Personal Representatives of ARTHUR 1. SHADEK; and JOSEPH R. HARRISON, ITI as Trustee of the Testamentary Trusts of JOSEPH R. HARRISON, JR., Plaintiffs, v. MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant. / ORDER DISMISSING CASE WITH PREJUDICE, VACATING ORDER, AND RETAINING JURISDICTION TO ENFORCE SETTLEMENT AGREEMENT THIS CAUSE having come before the Court on the Parties' ''Notice of Settlement and Joint Motion for Dismissal With Prejudice, Vacation of Liability Order, and to Retain Jurisdiction to Enforce Settlement Agreement," and the Court having reviewed: (1) the Mediator's Report of January 8, 2003; (2) the Settlement Agreement and Mutual General Release entered into between the Parties dated February 19,2003; and (3) the Resolution of the Monroe County Board of County Commissioners dated February 19, 2003 approving the Settlement Agreement and Mutual General Release, it is hereby: ORDERED and ADJUDGED, 1. The above-styled action be and the same is hereby dismissed with prejudice, with each Party to bear it own attorney's fees, expenses, and court costs 1/3012003 2:52 PM (2K) MIAMI 319019 v7 [6%5n07!.DOC] EXHmIT D 18' (including but not limited to any expenses, fees and/or costs under 42 US.C. 9 1983 and/or 42 US.C. 9 1988); 2. The Court's Order oOuly 17,2001 entitled "Findings of Fact, Conclusions of Law, and Order," be and the same is hereby voided, vacated, and set aside. It shall have no further precedential or preclusive force or effect (res iudicata, collateral estoppel, or other preclusion) against the County, including any board, department, officer, or employee thereof, in this case or in any other judicial or administrative proceeding within the State of Florida. 3. The Court shall retain jurisdiction for the sole purpose of enforcing the terms of the Settlement Agreement, dated February 19, 2003, including the terms of payment, and for entry of such orders as may be necessary or reasonably required in the performance of the Settlement Agreement, in accordance with Rule 1.730(c) of the Florida Rules of Civil Procedure. 4. Neither the Plaintiffs nor the County shall be construed or considered a prevailing party in this litigation, under any State or Federal law, including, but not limited to, 42 US.C. 91988, by the Settlement Agreement dated February 19,2003, the Mutual General Release, dated February 19,2003, the payment of consideration by the County, and/or the "Findings of Fact, Conclusions of Law, and Order," entered by the Sixteenth Judicial Circuit in and for Monroe County, Florida, (Case No. 95-20398-CA- 05), dated July 17, 2001. 5. Any and all causes of action against the County regarding the subject properties, including any claims Plaintiffs may have against the County for attorney's 1/30120032:52 PM (2K) MIAMI 319019 v7 [6%5n07!.DOC] 2 ,;-- fees, expert fees, costs, and/or expenses, under any and all state and federal laws, including 42 V.S.C. ~ 1988, are hereby dismissed with prejudice. 6. The payments made by the County pursuant to the Settlement Agreement dated February 19,2003 shall be made by wire transfer. DONE AND ORDERED in Chambers at Plantation Key, Monroe County, Florida, this _ day of February, 2003. The Honorable Luis M. Garcia Circuit Court Judge Copies furnished to: Robert H. Freilich E. Tyson Smith, Jr. Karen K. Cabanas Douglas M. Halsey 1130120032:52 PM (2K) MIAMI 319019 v7 [6%5n07LDOC] 3 tr UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CASE NO. 95-4947 ARTHUR 1. SHADEK, KATHERINE F. SHADEK, and JOSEPH R. HARRISON, III, as Personal Representative of JOSEPH R. HARRISON, JR., Plaintiffs/Appellants, v. MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, Defendant! Appellee. / JOINT MOTION FOR DISMISSAL WITH PREJUDICE Appellants' and Appellee's Certificate of Interested Persons Pursuant to Rule 26.1, Federal Rules of Appellate Procedure, Appellants and Appellee provide the following list of interested persons: 1. Catherine Harrison Balestra 2. Karen K. Cabanas 3. Robert H. Freilich 4. The Honorable Judge Luis Garcia 5. Douglas M. Halsey 6. James Harrison 7. Joseph R. Harrison, III EXHffiIT E 1/24/200312:50 PM (2K) MIAMI 318622 v6 [61"/om06!.DOC] If 8. James T. Hendrick 9. The Honorable Judge James Lawrence King 10. T. Neal McAli1ey 11. Commissioner Charles "Sonny" McCoy 12. Hugh Morgan 13. Mayor Pro Tem Murray Nelson 14. Commissioner George Neugent 15. Commissioner David P. Rice 16. James L. Roberts, County Administrator 17. Katherine F. Shadek 18. E. Tyson Smith, Jr. 19. Mayor Dixie Spehar -- ---~------ Joint Motion for Dismissal With Prejudice In accordance with Rule 42, Federal Rules of Appellate Procedure, Appellants and Appellee hereby jointly move to dismiss this appeal with prejudice. The parties have settled the controversy berween them, including this and the related case styled Katherine F. Shadek. et al. v. Monroe County Board of County Commissioners, Case No. 9S-20398-CA-OS, in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida. Neither Appellants nor Appellee is to be coosidered or construed as a prevailing party in this case, under any State or Federal law, including, but not limited to, 42 U.S.C. S 1988, by the Settlement Agreement or Mutual General Release, both dated Febroary 19, 2003, the payment of consideration by Appellee, the "Findings of Fact, Conclusions of Law, and Order," entered by the Sixteenth 1/241200312:50 PM (2K) MlAM1318622 v6 [61%m06!.DOCl Judicial Circuit in and for Monroe County, Florida, (Case No. 9S-20398-CA-OS), dated July 17, 2001, or the order requested by this motion. Furthermore, Appellants and Appellee have agreed that each side shall be responsible for its respective fees, costs, and expenses (including, but not limited to, any and all costs, attorney's fees, or claims under 42 U.S.C. ~ 1983 andlor 42 U.S.C. ~ 1988). Appellants hereby expressly waive any claim to attorney's fees, expert fees, costs, or expenses under any and all state or federal laws, including, but not limited to, 42 U.S.C. ~ 1988, and therefore request the Court to enter an order granting this Motion for Voluntary Dismissal with Prejudice. Respectfully submitted this _ day of February, 2003. By:~/h~ ~ Do glas M. Halsey Florida Bar No. 288586 T. Neal McAliley Florida Bar No. 172091 MORGAN & HENDRICK Karen K. Cabanas Florida Bar No. 0136964 Hugh 1. Morgan Florida Bar No. 112362 Attorneys for Defendant 317 Whitehead Street Key West, Florida 33040 Telephone: (305) 296-5676 Facsimile: (305) 296-4331 WHITE & CASE LLP Attorneys for Plaintiffs First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2352 Telephone: (305) 371-2700 Facsimile: (305) 358-5744 FREILICH, LEITNER & CARLISLE Robert H. Freilich Florida Bar No. 0482927 E. Tyson Smith, Jr. Florida Bar No. 0422088 1150 One Main plaza 4435 Main Street Kansas City, Missouri 64111-1858 Telephone: (816) 561-4414 ~6~ , - -, 1/24/2003 12:50 PM (2K) MIAMI 318622 v6 [61%m06LDOC]