Item M4
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
February 19, 2003
Division: Growth Management
Bulk Item: Yes
No~
Department: Growth Management
AGENDA ITEM WORDING:
Approval of a Resolution approving the Settlement Agreement, Mutual General Release and Transfer
of Funds to cover costs in the litigation of Shadek, et al. V. Monroe County.
I M BACKGROUND:
In t e 1980's, at the behest of the State of Florida, the County undertook certain regulatory action that
ulti ately resulted in the State purchasing approximately 145 acres in North Key Largo. Subsequent
to th purchase, the owners of the property sued the County on the premise that the property was worth
more than the amount paid by the State. The State fails to obtain general releases at the time of sale.
The cases have proceeded through the federal and state courts with the last action being a
determination by the circuit court that the County had some liability. The next phase was the damages
and trial. There was a court ordered mediation which resulted in the attached settlement. Although
attorneys for the County felt that there was an excellent chance of prevailing upon appeal, the question
at hand was the ultimate potential exposure of the County.
PREVIOUS RELEVANT BOCC ACTION:
The issues involved evolved well prior to the seating of this County Commission. The County
Commission has pursued the appeals and court cases up to this settlement.
CONTRACT/AGREEMENT CHANGES:
~!A
STAFF RECOMMENDATIONS:
Approval.
TOT AI. COST:$5.9 million over three payments
BUDGETED: Yes, with the
passage of the attached Resolution
COST TO COUNTY:$5.9 million over three payments
SOURCE OF FUNDS:
Infrastructure Sales Tax and Fund 148
REVENUE PRODUCING: Yes
No X
AMOUNT PER MONTH
Year
.\PPROVED BY: County Atty ~
DIVISION DIRECTOR APPROVAL:
OMB/Purchasing ~ Risk Management _X_
(
)1 :
- - "- - .\;-.::--;.._--~---
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James L. Roberts
DOCUMENTATION:
Included X
To Follow
Not Required_
DISPOSITION:
AGE"IDA ITEM ~~
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Shadek/Harrison Contract #_
Effective Date: 2/19/03
Expiration Date:
Contract Purpose/Description:
Approval of a Resolution approving the Settlement Agreement, Mutual GenenilRelease
and Transfer of Funds to cover costs in the litigation of Shadek, et al. V. Momoe
County
Contract Manager: Debbie Frederick 4741 Co. Administrator/Stop #1
(Name) (Ext. ) (Department/Stop #)
tar BOCC meeting on 2/19/02 Agenda Deadline:
CONTRACT COSTS
Total Dollar Value of Contract: $ 5.9 Million
Budgeted? Yes~ No D Account Codes:
Grant: S
County Match: $
Current Year Portion: $
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ADDITIONAL COSTS
Estimated Ongoing Costs: $_/yr For:
(:\ot included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.)
CONTRACT REVIEW
Changes ~ Date Out
Date In
Division Director - I .:.~ Ye~D~~~_< :;L.-i/ ..:l3
-i- -' . I -
Risk Management - YesD NoD
O. ~. B.!Purchasi ng - YesD NoD
County i\ttomey - YesD NoD
Comments:
()\l[~ \"\1'111 Rc'\ he,d 22- ill \ICP ::2
AGENDA SUMMARY: Shadek v. Monroe County settlement
The long-pending Shadek litigation, which began in Federal court in 1992 and was later
transferred to State court, has been conditionallyl settled in mediation. Plaintiffs, owners
of the huge "Ocean Forest" tract on North Key Largo, sued Monroe County for the
temporary taking of their property during two successive 1980s moratoria. Plaintiffs
alleged that the County's Major Development moratorium, which was in effect from
February, 1982 until adoption of the State-mandated Comprehensive Plan in September,
1986, followed by nearly 4 years' delay in adopting the Habitat Conservation Plan
(required under the 1986 Comprehensive Plan), deprived them of all economic use of
their property until they sold the property to State of Florida in 1990.
Because Plaintiffs had sold part of the property (Northerly of the State Road, on the
Sound) to the United States in 1985, the Circuit Court dismissed Plaintiffs' takings claim
for that part of the Ocean Forest property. When the State purchased the remainder of
the property (i.e., the ocean-side part, South of the State Road), the State of Florida
neglected to obtain a release from Plaintiffs. That omission enabled Plaintiffs, 2 years
after selling the ocean-side parcel to the State for full value, to sue Monroe County for
imposing State-mandated restrictions on the property.
Aftcr a trial on liability (the amount of damages was deferred for later determination),
Circuit Judge Luis Garcia held that the County's moratoria constituted a temporary
taking. The County's appeal of that ruling was dismissed as premature, forcing the
parties to prepare for jury trial on the damages issue, without the benefit of an appellate
court decision on the takings ruling. Both parties retained experts on the damages issllc.
Plaintiffs' witnesses would testify that the damages sustained as a result of 8 years'
deprivation of use, plus nearly 13 years ofprejudgment interest on that sum, exceeded
fifty million dollars. Although the County's witnesses would have testified that
Pla1l1tiffs' damages were far less than claimed, the lowest verdict that could reasonably
have been anticipated, adding prejudgment interest, costs and attorney's fees, would have
been more than seven million dollars.
Settlement negotiations, culminating in mediation, focused on the risks faced by each
party. Plaintiffs knew that the recent US Supreme Court decision in the Tahoe case2 was
unfavorable to their "categorical" takings claim, and would force them (in the eventual
appeal) to defend the Circuit Court's liability ruling on the more difficult basis of a
traditional "Penn Central" taking. In other words, Plaintiffs were acutely aware that
there \vas a significant possibility of losing the case on appeal. Monroe County risked an
adverse Judgment in an amount that it could not afford to pay. A successful appeal was
not assured, and during the lengthy appellate process (which could go as far as the US
Supreme Court) the County's credit status would be impaired by the existence of a
Judgment that exceeded its resources. Impairment of credit would jeopardize the
County's ability to issue bonds for, ~., sewers and other capital projects.
, CUlldll1011cd only on BOCC approval.
: I,dw('-Sierra Preservalioll Co lIllcil, fllc. \', Tahoe Regional Planning AgencT. 122 S. Ct. 1465 (2002).
As a result of intense mediation efforts by both sides, the County was able to settle its
potential $50 million + exposure for $5,900,000, payable in three annual installments,
without additional interest. The County secured two noteworthy additional benefits.
First, the liability order entered by the Circuit Court will be vacated, thereby eliminating
any potential that it could be cited as precedent by other claimants. Second, the
agreement expressly reserves the County's right to seek reimbursement from the State of
Florida, whose mandate to adopt a Comprehensive Plan under Area of Critical State
Concern legislation, and whose failure to secure a release when it bought the ocean-side
property, exposed the County to this claim.
Monroe County engaged the national land-use law firm of Freilich, Leitner & Carlisle to
assist in the defense of the Shadek case. The firm has special expertise in the evolving
area of temporary takings law, and drafted the US Supreme Court amicus brief of the
American Planning Association in the Tahoe case. Robert Freilich of that firm
recommends that Monroe County approve this settlement, for the reasons expressed
above. He has agreed to assist the County in pursuing its reimbursement claim with the
State of Florida, and in updating the Comprehensive Plan by improving the County's
ability to manage growth and reducing its exposure to liability claims.
Settlement Agreement
Sources of payment
Total by
FY 03 FY 04 FY 05 Source
One Cent Infrastructure Sales Tax Fund 1 $1,000,000 $1,000,000 $1,000,000 $3,000,000
General Purpose MSTU-Fund Balance Stabilization $600,000 $0 $0 ~ $600,000
General Purpose MSTU-2010 Comp Plan $200,000 $0 $0 $200,000
General Purpose MSTU-Contingency $700,000 $0 $0 $700,000
General Purpose MSTU-Unbudqeted Fund Balance iQ $1 ,000.000 $400,000 $1 .400,000
Subtotal General Purpose MSTU2 $1,500,000 $1,000,000 $400,000 $2,900,000
Total by year $2,500,000 $2,000,000 $1,400,000 $5,900,000
1) Use of one cent infrastructure sales tax funds will cause the delay or reduction of some projects in the
capital plan.
2) Use of General Purpose MSTU funds may have an impact on future millage rates.
Office of Management & Budget
FEB ~2-03 lq q~ ~~UM:MUN~U~ ~UUN1I M~~I Urr&~~ &U;~Vw~w~~~aD
RESOLUTION -2003
A RESOLUTION OF THE MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS (DOCC) APPROVING THE SETTLEMENT
AGREEMENT AND MUTUAL GENERAL RELEASE DATED
FEBRUARY 19, 2003 IN THE LITIGATION OF SHADEK, ET AL. V.
MONROE COUNTY (FLORIDA CIRCUIT COURT CASE NO. 95-20398-
CA-OS; U.S. DISTRICT COURT CASE NO. 92-10026.ClV-KING; U.S.
cmcurr COURT OF APPEALS CASE NO. 95-4947) AND
AUTHORIZING THE COUNTY ADMNISTRATOR TO EXECUTE AND
DELIVER THE SETTLEMENT AGREEMENT AND MUTU^L.
RELEASE. -
WHEREAS, the County is a party in litigation in the Circuit Court of the Sixteenth
JudicIal Circuit In and for Monro!: County, Florida, (Case No, 95-20398-CA-05); in the United
States District Court for the Southern District of Florida (Case No. 92-10026-Civ-King); and an
appeal in the United States Court of Appeals for the Eleventh Circuit, (Case No. 95-4947); and,
WHEREAS, the Parties to said litigation desire to settle all claims, causes of action, and
appeals in accordance with the Settlement Agreement and Mutual General Release dated
February 19,2003.
BE IT RESOL VED BY THE BOARD OF COUNTY COMMISSIONERS,
MONROE COUNTY, FLORIDA THAT:
The Senlement Agreement dated February 19. 2003, is hereby approved and the
County Administrator is hereby authorized to execute and deliver the Settlement
Agreement on behalf of the aocc.
2. The Mutual General Release dated February 19, 2003, is hereby approved and
the County Administrator is hereby authorized to execute and deliver the Mutual
General Release on behalf of the aocc.
3. The BOCC approves the transfers of amounts previously set-up in the Monroe
County budget for fiscal year 2003 for the purposes of this Resolution, as set
forth in the attached Resolution,
PASSED AND ADOPTED by the Board of County Commissioners, Monroe County,
Florida at a regular meeting of said Board held on the 19th day of February, 2003.
Mayor Dixie Spehar
Mayor Pro Tern Murray Nelson
Commissioner Charles McCoy
Commissioner George Neugent
Commissioner David Rice
(SEAL)
Attest. Danny L. Kolhage, Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
By:
Dixie Spehar, Mayor/Chairperson
Deputy Clerk
Pase I of2
FiY
V.N~Et. ;ZT~N
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doc~S6~19j'lOJ5~ 008
Resolution No.
- 2003
A RESOLUTION CONCERNING THE TRANSFER OF FUNDS
\VHEREAS, it is necessary for the Board of County Commissioners of Monroe County,
Florida. to make budgeted transfers in the Monroe County Budget for the Fiscal Year
2003. therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COM~IISSIONERS OF
MONROE COUNTY, FLORIDA, that there shall be transfers of amounts previously
set up in the Monroe County Budget for the Fiscal Year 2003 as, hereinafter set forth to
and from the following accounts:
Fund #304-0ne Cent Infrastructure Sales Tax
From: 304-5900-85532-590990 Other Uses
Cost Center # 85532 - Reserves 304
For the Amount: 51,000,000.00
To: 304-5150-51002-530490 Miscellaneous
Cost Center #51002 - Settlement Agreement 304
Fund #148 - General Purpose MSTU
From: 148-5900-85525-590990 Other Uses
Cost Center # 85525 - Reserves 148
For the Amount: 5700,000.00
To: 148-5150-51003-530490 Miscellaneous
Cost Center #51003-Settlement Agreement 148
From: 148-5150 -51001-560640 Capital Outlay - Equipment
Cost Center # 51001- Fund Balance Stabilization
For the Amount: 5600,000.00
To: 148-5150-51003-530490 Miscellaneous
Cost Center #51003 - Settlement Agreement 148
From: 148-5150-51000-530340 Contractual Services
Cost Center # 51000-2010 Comp Plan
For the Amount: 5200,000.00
To: 148-5150-51003-530490 Miscellaneous
Cost Center #51003 - Settlement Agreement 148
BE IT FURTHER RESOLVED BY SAID BOARD, that the Clerk of said Board, upon
receipt of the above. is hereby authorized and directed to make the necessary changes of
said items, as set forth above.
Shadek,doc 21512003 Page 1
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting of said Board held on the 19th day of February AD 2003.
Mayor Spehar
Mayor Pro Tern Nelson
Commissioner McCoy
Commissioner Neugent
Commissioner Rice
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
Mayor/Chairman
(Seal)
Attest: DANNY L. KOLHAGE, Clerk
Shadd:..doc 25/2003 Page 2
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SETTLEMENTAGREE~NT
TInS AGREE.t\fENT ~ made this 19th day of FebrulUY. 2003, by and between
Katherine F. Sbadek, individually, on behalf of and as the Persow Representative of Arthur 1.
Slwiek, or in lUly capacity whauoever. and J osepb It. HarrisoD, IU, individually. and &.$
Trustee of the TestamentarY Trusts of Joseph R Harrison, Jr., or in any capacity whatsoever, tor
themselves, their predecessors. SU(;CCS50rs, respective heirs, executors. administrators. legatees,
assigns, directors, officers. agents, employees, and all natural perIDDS, COrporatioDS, firms,
organi2Jl.tions, partne:rships. associations. and entities clAiming by or through them (hereinafter
referred to as "ShadeklHmison"), and Monroe COUllty and the Monroe: COUDty Board of
CDUDty CommLuiooen, for themselves, their elected and appointed officials, predecessors,
successors, directors, officers, agents, employees, aDd all natural persons, corporations, firms.
boards, departme.nts, commissions, councils. committees, and entities claiming by or througb
them ('b.ereinafter refared to as r.Ju, "County"), provides for the settlement of all claims, appeals,
and causes of <:.~ ::OD thAt they have, have had, or may have aga.imt. cadI other as ofFebrullf}' 19,
2003, including, but not limited to, any liability and all claims, roits, pro~dings, 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 partieularly described in Exhibit "A,"
attached hereto and incorporated herein by this reference
RECITALS
WHEREAS, ShadeklHarrison and the County (the "Partics") are parties to litigation now
pending in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida.,
styled Katherine F. ShadeJc and Joseph R. Harrison, Ill. 61 ai. v. MONoe County Board of
County COT7fmJS91aners, Calle No. 9S-20398--CA-OS, litigation ill the United States District Court
for the SoUthern. District of Florida, CUJreIIt1y on appeal, styled Arthur J ShadeJc; Katherine F.
i/'N'.t.ilJ ~'JJ I'M QJC
~ 11711,. "'ID7Sll71.Doq
PAGE
1/5
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PAGE 2/5
Shadd; and Joseph R. Harrison, III as Personal ReprUUlfalive of J~ph R Harrison, Jr., v.
Monroe County Board o/County Commissioners; Case No. 92-1002~iv-King; awl an appeal
now pending in the United States Court of Appea1~ {or the Flevemh CiraUlo styled Art"'" J.
Shadek: Kath~rlne F. Shadelr; and Joseph R HarriSDn, 0/, as Personal R..pnsellla1i1Je 01 JOJeph
R Harrison, Jr., v. Monroe Cmmty.Board oj Cormry Comllli.monus; Case No. 954947.
WHEREAS, the Parties, baving proceeded .uccessfully througb Cowt-ordered
mediation, desire to settle and compromise any and all judgm..enu, liabilities, causes of actio~
suits, as well as any attomey's fees, costs, iUI.d ~cnses (including. but DOt limited to, fees, costs,
and claims under 42 V.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 effcc;tjve date of this Settlement AarcemeDt
(h.ereiwu1er referred to as the" Agreement").
NOW, THEREFORE, for and in comideration of the sum 0[$10.00, the mutual
covenams and agreemc::rt.s set forth in this Agreement. and other good and valuable
coDSideration, the receipt and sufficiency of which is adwowledged by each Pany,
Shade.kiHani:JOD and the County herPhy agree AS, follows:
1. Incorporation of Ruitals, The above Recitals are incorporated into and made a
part of tills Agreement.
2.. Payment by the County. The County will pay ShadeklHarrison the IWI1 of Five
Million Nine Hundred Thousand Dollars ($5,900,000.00) in three (3) installments as follows:
'1. The sum of Two Million Five Hundred Thousand Dollars (S2,SOO,OOO.OO)
shall be paid on or berore March 14, 2003;,
b, The sum of Two Million Dollars ($2.,000,000,00) shall be paid OD or
berore February Ie, 2004; and
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c. Tbe sum of One Million Four Hundred Thousand Dollars (Sl.400,OOO.00)
shall be paid on or before FeblUacy 16,2005.
Payments by the County shall be made by wn transfer to:
Gibraltar Bank
200 South Biscayne Boulevard
Suite 2850
Miami, Florida 33131
Routing No: 267090455
Credit to Ocean Po rest
Account No. 30076714
In the event the orders of d.ismiSliial referred to in paragraph 13 have not been entered by March
14,2003, Douglas M, Halsey, attorney for SbadeklH.arrison, will hold the County's payment In
escrow until the orders have been entered.
3. R.eJeue of cWm' aDd lIatisfadioa.
a. The Partics have executed and delivered the Mutual General Release,
which is a.ttached bereto as Exhibit "B.'.
b. IfShadeklHarrisoD, or AI.ly attorney or other party on the behalf of
Shade.1c./H.a.rri30Il, brings judicial or administrative proceeding$ against the County at a."y
time after the date ofthc execution of this Agreement, which proce.eding& relate in lUly
manner to the purchase, ownership, use, regulation, or disposition of the real property
commonly described Wi "Ocean Po rest, " more plU1icularly described in Exhibit "A," in
addition to any other appropriate judicial remedy or sanction otherwi5e available to the
County, the Cowny shaH be released from any and all obligations to make payments as
set fOM in paragraph 2 above. Within five (5) dAYS of initiating any such proceeding as
set forth in this paragraph, Shadek:.lHa.rrisan will pay to the County monies equal in
amount 10 any already paid by the County pursuant to paragraph Z, with interest accruing
since the date of original payment by the COWlty.
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c. If Shadek/HaJrison or the Couaty initiates any proceedings of any kind or
nature against the State of Florida or the United States (meJudiDg any board, agency,
office; department. officer, agent, or employee created or authorized by thc State or the
United States) at any time after the date of =.ecutiOD ofthii Agrccmem. wIDch
proceeding relates in any mlU111et' to the purcbaae, ownership, use, regutatiOD, or
disposition oCthe real property commonly described as "Ocean Forcst," DIOIC particularly
described in Exhibit II A, " in additiou to any other appropriate judicial remedy or sanction
otherwise available:
( 1 ) In t11e case of SbadeklHarriJon initiatiDg proceedings l13ainit the State of
Florida or th2 United Sraca: (i) the CQW1ty .hall be released from any and
all obligations to make paymcutS as set forth in paragraph 2 above; (b)
within five (5) days offiling any such pro"~lng as set forth in this
paragIllph, ShadeklHmisan 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 (e) ShadeklHarrison will
indemnify, defen~ ancl hold the County humlesl from any third~party or
contribution claim which the State Df Florida or the United States may
bring against the County in my such prDceedizij:.
! I
(2) In the case of the County initiating proceedings apinst the State of Florida
or the United State&, the COUDly will indemnify, defend, aDd hold
SbadekIRarrison harmless from auy third-party or conaibution claim
which the State ofPloridA or the United States may bring against
Shadek/Harrison in any such p~;D~.
4. VoJuntary dismjl.5a1 witb prejudice. Within fifteen (IS) days after the
execution of this Agreement, the Parties shall jointly f1Ie;
a. The "Notice of Settlement and Joint Motion for Dismiual With Prejudice.
Va.c.ation of Liability Order, and to ~ajn Jurisdiction to Enforce Settlement
AgJl:!ement," attaehed hereto AS Exhibit "'C." The Parties shaH simultaneouli1y submit to
the Honorable Luis Garcia for execution and fiLiDg the proposed "Order Dismi5aing With
Prejudice. Vaca.ting Order, And Retaining Jurisdiction To Enforce Settlement
Agreement, .. a1U1eh=i as Exhibit "D."
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b. The "1oint Motion For Di,missaJ With Prejudice," attached ~ Exbibit
(CE. J1
The Parties shall take any additiozW 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 letting aside and vacating liability order. The Parties
acknowledge that a material condition of the execution of tbis Agreement is the vacation of the
Circuit Court's Pindings ofFIlct, Conclusjons of Law, and Order dated July 17, 2001.
6. Ri&ht to pursue State reimbUrledlent. Nothing in this Agree.met or the
Mutual General Release &hall limit the right of the County to seek reimbursement from the State
of Florida based OIl the principal role of the State of Florida in the adoption ofthc County
regulations and policies that gave rise to the claims and causes of lWtion Bet forth in the above.
listed litigation and appeal, and the purchase of the Ocean Forest property from ShadeklHanison
on May] 5, 1990 without securing a gCleral rcleiie for the Cowny.
7. Agreement does not eoDltttute Ildmission ofUabiJity. The Parties aclcJowledge
and agree that neither the fact of this Settlement Agre8r:nent, the Mutual General Release
atuched a.s Exhibit '"B," nor the ach&nge of consi deration for this Agreement and Mutual
Genclral Release is or shall be construed as an admission of any liability by the CoUllty, the
COunty expressly denying any and all liability alleged in the above-lisred litigation and appeal
The Parties fiuthc:r acknowledge tht this Agreement is entered into for the sole puIpose of
settling the above-listed litigation and appeal, and all other cla.i1118. fcea, and expenses reguding
the purchase, ownership, use, regulation, or disposition of the property known as "Ocean Forest,"
more particularly described in Exhibit "A"
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8. Mutual agreements aad uadentandJllgJ. The Pllrties hereby acknowledge that
the following mutual ~cments and uDderstandinas constitute material inducements to the
cxeeution of this Agreement:
a, that aU abov~li5ted litigation be dismissed with pmjudicc by the Court
with lawful jurisdiction over the case;
b. that sbadck/H.arrison. or any party I'l'lprfl~til'le ShadeklHanison, is
expressly precluded from any further liability, daim, or cause ofadian against the
County that they have, have had, or may have as ofFebmaty 19, 2000, iDcl.udiDg. but not
limited to, any claim for costs, expenses. andJor attomey's feel (includiDg, but not limited
to, any claim uuw 42 U.S.C. 9 1988), that are in any way or manner related to Ocean
Forest, as described in Exhibit "A;"
c. that nei.thl!lf this Agreement" tbe Mutual Gmeral Release atta.cl1ed hereto SA
Exhibit "B," t:bt payment of comideration by the County, the "ITmdinga of Fact.
Conclusions ofLa.w, and Ordef' entered by the Honorable Luis Gareia on July 17. 2001,
nor the Courts' orders dis.missing the above-listed cues and appeal, &hall be considered
relief on the mmts, a remedial action, or a change .in position by the County to satisfy the
demands of ShadeklHatrison, lIod
d. that neither Party is to be considered or constlUed as a "prevailing party"
in any of the abov~listCd litigation or appeal, UDder my state orfi:dcrallaw, including,
but not limited to, 42 U. s. C. ~ 198&. by tPe Settlement Agreemem. or Mutual General
Release, both dated February 19, 2003, the payment of coD&ideration by the County. the
"Findings ofFa.ct, Conclusion$ of Law. and Order" ad..l::r:cd by the: Honorable Lui6 Garcia
on July 17,2001, andIorthe Courts' orders entered to effectuate this Agrc:emeat aDd the
Mutual General Relea~e.
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9. Executioll of documents. SlwIeklHarrison and the County agree to and shall
cooperate with each other in preparing, executing, and delivering any aDd all doaunenta that arc
~C$sary or required to fulfill or effectuate the terms of this Agreement.
10. Reteutioo 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, Tbia Settlement Aareement shall be glMllDcd by, and construed IWi enforced in
n.coordance with, the laws of the State ofFtorida~ In the event the County fails to timely make
the first payment required under paragraph 2 hereo~ Shadt:kIHamson shall give the COUD1y five
(S) days within which to cure the breach by making the scheduled payment due plus $1.000 for
each day payment is late, after which ShadekJHarrison may seck immediate enforcement of this
Agreement by the Circuit Court, pursuant to Rule 1,730(c). FIa.R.Civ.P. In rhe event the County
fails to make in a timely manner the second or third payments required undu paragraph 2 hereof,
Shadek/Hal'rison shall serve upon the County Administrator and the County Anomey written
Notic~ of Default by certified mail. return r'eeeipt requeated, which shill specify that the County
has thirty (30) days to c.ure such default without assessment of any com. interest, or attorney's
fees. It; after thirty (30) days of receipt of a Notice of Default, payment by the County has not
been made in the a.ppropriate amount set forth in paragraph 2 above, Sb.adek:JHarrison may seek
enforcement of this Agreement by the Circuit CoWl, pursuant to Rule 1.730(c), Fla.R.Civ.P. In
the event tI1at either party files suit to enforce this Agreement, the prevailing Party sball be
entitled to reasonable attorney's fees and costs at trial and at aU levels of appw incwrcd in
enforcing this Settlement AgreetTl~nt, in addition to interest on any late payment as provided by
statute,
11. No assignment. The P3rties covenant and represent that they have not sold,
transferred, or a.s~igned their respective claims in the above-listed litigation or appeal cor their
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rights to receive proceeds from tba settlement of such claim. (Of the benefit of any creditors or
OIly third Parties,
12. Authority of .igaatories. The signatoriea; represent aDd wammt that they have
full authority to execute this Agreement OD behalf of and to bind their respective Panies. This
Settlement Agreement may be ClteCUted in multiple coUDterpartB.
13. DumissalJ conditioa precedeat The Mutual Release attached as Exhibit"B, n .
and the other undertakings and obligatioJ1S of the Parties set forth bc:rcin &ball not become
effective until all of the following have OCCWTed:
I. the United States Court of Appell, for the Eleveath Circuit enters aD order
which dismisses with prejudice Case No, 95-4947; and
b the Circuit CoWl of the Sixteenth Judicial Cireuit 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~A-OS;
(2) voids, vacates, md sets asido,the Liability OrdCl' CZlwcd by the
Court on July J7, 2001;
(3) retains the Cowt's juriadiction for the sale purpose of enforcing the
terms of this Agreement; and
(4) is othcwi.se consistent with and effectuates the terms of this
Agreement.
The Parties will cooperate in taking all actions necessary to eff'ectuare!he foregoing.
:.Il:r..c::g;:oUrw{"".J(j
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-8-
FEB-04-03 16,22 r~UM'MUN~U~ ~UUNIY HIIY U~~I~~ IU'~~b~~~J~IO
14. Notice. Any notices required to be given by one pany to the other, aecordinS to
the terms hereof, shall be ~ to:
FOR SHAOEKIHARlUSON:
Douglas M Halsey
White & Cue LLP
Suite 4900
Wachovia Flnancial Center
200 South Biscayn.e Boulevard.
Miami) Florida 33131-2j52
Telephone: (305) 371-2100
Fau;simlle: (305) 358-S744
and
FOR MONROE COUNTY:
J obn Richard Collins
Monroe County AttDmey
P.O. Box 1026
Key West, Plorida 33041
Telephone: (305) 292~3470
Facs.i.miJ.e: (305) 292-3516
with a copy to:
Robert H. Freilich
Freilich, Lcsituer & Carlisle
11 so One Main Plaza
4435 MaiD Street
Kanus City, Missouri 64111-1858
Telephone: (816) 56J-4414
Faciimile: (816) 56J-7931
1/)II2D1I 1.41 "" (!IC)
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MONROE COUNTY BOARD
OF COUNTY COMMISSIONERS
By:
James L. Robens, Cowity Administrator Katherine F. Shadek. ia. the
I capacities lilted above
Witness:
Date:
Witness:
Date:
Attest:
Danny L. Kohage, Cotmty Clerk
Joseph ll. Harrison, m. in the
r.apacities listed above
Witness:
Date:
Witnt3s:
Date:
Approved as to form
John Richard Collin", County Attorney
Date:
The undersigned, a:l counsel for Plaintiffs. Shadek/H.vrisoJ1, bl:rcby acIcDow1edps full 8.Dd
complete satisfAction of attorney's fees and costs in tho above-listed litigation, and releases and
waiVCII any claim agaimlt the County for anomey's fees and costs in the above-li&1:ed litigation,
under state or federal law, including, but not limited to. 42 U.S.C. ~ 1988.
WHITE & CASE LLP
Date:
By:
Douglas M. Halsey
l~IU~~~n((W
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Ocean Forest, acc:ordmg to the Plat thereof:
A subdivi&ion of portions of SectioDa9, 10, 15 and 16, Township
60 South. llaDgc 40 East, being more particulaJly described as
fallows:
GOVBRNMENT LOT I, excepting therefrom tho Nortb 190.3 feet
oftbe South 717,3 feet ~ to Deed tbereoi recorded in
Peed Book 643, Pagcs 263 and 264 of the Public Records of
Mcmroe Cowlty, Florida and GOVERNMENT LOT 2 IIld the E. 'h
of the S.B. ~. all in Section 9; the N.W. ~ oftbe S.W. ~ aad the
S.W. ~ of the S.W. 'A md GOVERNMENT LOT 4, all in Section
10; the N.W. ~ofthc N.W, ~ and GOVER4'lMENT LOTS 1 and
2, aD in Section IS; that pan of Section 16, lying North of a line
that is 2103.S feet Northerly of. as measured at right angles. and
parallel to the South liw: of said Section 16; aU in Township 60
South. Range 40 East, lying and. being in Key Largo, MolU'oe
County, Florida, less State Road 5-905 right-of-way; also less the
Ea&t Y.l of the Southeast 'A of said Section 9;- and less the South ~
ofthc Southcait ~ of the NortbeaBt,~ of the Southeast ~ of
Section 9; and less tlu: Southwest 1,4 of the Northeast Y. of the
Soutbeaat ~ of said Section 9, ToWllSlUp 60 South. Range 40 E.ut.
EXHIBIT A
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-~---.._- ---..-- ..-.... ...... ..-- "-'~"'w4:.~~~wIC
r-M~.I:;. :c/"q
IN THE CIRCUIT COURT OF THE
SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR. MONROE COUNTY,
FLORIDA
GENERAL 1URJSDICTION DMSION
CASE NO. 9S-20398-CA-OS
KAniElUNE F. SHADEK; individually and
OIl behalf of the PcnJonal Representatives of
ARTHUR. J. SHADER; BUd
JOSEPH R. HAlUUSON, m as Trustee of the
Testamentary Trusts of JOSEPH R. HARRISON, JR..
Plaintiffs,
v.
MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS,
Defendant.
/
NonCE OF SEITLEMENT AND
JOINT MOTION FOR DISMISSAL WITH PREJUDICE,
VACATION OF LIABn.ITY ORDER, AND
TO RETAIN JURlSDlcnON TO ENFORCE SE'ITLEMENT AGREEMENT
Katherine F. Shadek and Joseph R. Harrison, III, et aJ. 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 followiog 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 cULted FebIUiI)' 19.2003:
a. that this case be di&missed with prejudice;
b. that Plaintiffs. or any party representing Plaintiffs, are expre.Wy precluded from
any funher liability, claim or cause of action against the County, including any lK:tion for
costs, l:XpeD&eS, and/or attorney's feell, under any state or fcdc:ra11aw, including, but not
1_lla~_cu:)
_ JIUI~ "'{6%jut! COCl
. .,-.-..-,. -_... _, ......-w,
1"tU'. c:.rp r, ':l'C::7
limited to. 42 U.S.C. f 1988, that are in anyway oTmIDDS'related orcoUatera1 to the
property that is the subject of this Jitiption;
c. that neither the Settlement Agreement, the Mutual General Release, both dated
FebnJary 19, 2003, the payment of cooaid.eration by the County, the ~ndings of Fact,
Conclusion:! of Law, and Order," entered bythia Court on July 17.2001, nor the order
requested pursuant to Ibis motion, sball be considered relief on tbe merits, a remedial
action, or a change in position by the County to satisfy the demaDds of Plaintiffs for
purposes of any state or federal law, including but act 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, iDcluding but not limited to, 42 U.S.C. ~ 1988,
by the Settlement Ajreement or Mutual Oe:aeral Release, both dated rebruary 19. 2003,
the payment of oonsideration by the County, the "FiDdings of Pact, Conclusions of Law,
and Order," entered by this Court on July 17,2001, or the orderreque5ted punwmt to thU
motion; and
e, that payments made by the County to Plaintiffs pursuant to the terms of the
Settlement Agreement shall be by wire tlIDif.. u described thetein.
The Settlement Agreement, which was approved by Plaintiffs and the Monroe County
Board of County Commissioners on February 19, 2003, is attached hereto u &hibit "A"
Pursuant to the Settlement Agreement and in accordance with Rule 1. 73O(c), Florida Rules of
Civil Procedure, the Parties respectfully request this Court to: (1) di.mias tIll5 case with prejudice
with each Party to b"lU' its own attorney's fees, expeasea. and court Q)IQ (including but not
limited to any fees, expenses, and/or costs under 42 U.S.C. t 198:3 and/or 42 V.S.C. ~ 1988);
(2) void, Set aside, and vacate the Court's Order of July 17. 2001; and (3) retain jurisdic;tion for
IIlIll1W I C ~. ,u.t 010
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2
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t'"'M\.t1:. ~/'f
the sole purpose of enforcing the tcnns of the Settlement Agreement. including scheduled
payments as jet forth tb~.
lWpec<fulIy iitted this _ d.y oiPebruuy, 2003.
WFnTE & CASE LLP i
Attorneys for Plaintiff's
First UDion Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131.2352
Telepbone: (305) 371-2700
Facsimile: (305) 358.5744
By:
MORGAN & HENDRICK
Karen K. Cabanas
Florida Bar No. 0136964
Hugh 1. Morgan
Florida Bar No, 1 J2.362
Attorney& for Defendant
3 ] 7 Whitehead Street
Key West. Ploridl\ 33040
Telephone: (305) 296-5676
fa.c!limile: (305) 296-4331
Douglas M. Halsey
Florida Bar No, 288586
T. Neal McAliley
Florida Bar No, 172091
FREILICH, LEITNER & CARUSLE
Robert H. Fn:ilich, Leitner & Carlisle
Florida Bar No. 0482927
E Tyson Smith, Jr.
Florida Bar No. 0422088
11 SO One Main Plaza
4435 Main Street
Kanw City, M15S0W'i 64J t l~1858
Telephone: (816) 561-4414
Facsimile: (816) 561-7931
By:
~" IO~IAW('!J:l
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3
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PAGE
1/5
MUTUAL GENERAL RELEASE
The undersigned Parties hereto, Katherine F. SIDdell. iadividuaJly. an bdJalf of and as
the Pcrsoual Representative of Anhw- J. Sbadek, or in any capacity whatsoever, and Joseph R.
I
Harrison, m. individually and 18 Trustee of thel TestJImpnt,,'Y Tmsts of Joseph II Harrisaa, Jr.,
or in any capacity whatsoever, for themselves, tbeir predeceuors, successors, rospedive heir..
exec.utors, administrators. legatees, usigns, directors. officers. agcots. employees, and allnatulal
persons, corporatiODS, firms, organizations, partnerships, lS$OciatioDS, aDd cotitics daim.iug by or
through them. ("SbadeklHa.rri800") and Monroe COUDty and the MOllroe COUDty Board of
County Commissioners, for themselves, their e1~cted and appointed officials, prcdea3SQf3.
successors, directOrs, officers, asent&, employees. and all natural persODS, cotpOraUOIll, firms,
boards, departments, commission,. councils, commineel. and entities claiming by or through
thc.'t1 (the "County"). for and in tOollderation ofthc payment of Five Million Nine Hundred
Thousand Dollars ($5,900,000.00) by the CounlY to ShacleklHaaiscm, .in lbc JDlDDer and within
the times set forth in the Settlement Agreement dllted tbe 19th day ofFebnwy, 2003, md the
ccchange of other good and val\J4ble consideration. tbe receipt and 1epl suffici.ency ofwbich is
ackDowledged by each Party, hereby mutuaUy
FOREVER RELEASE, REMISE, AND DISCHARGE
ODe another of and from any and all claims, liabililY, actions, cauees of actio~ suits, appeals,
debts, contracts, controversies, compensations, demands, proc-rtil'llP'. counta, duca, acc:ouutings,
reckonings, dlUI1a8es, interest (InCluding prejudgZn~t ud polt-judgmem imereat), auomey's
fees, expenses (including, but not limited toJ inv~sti8ative and expen apeDses), cosu.
judgments, and orders, in Jawor in equity, (specifically includiDg. but DOt Iimitcd to. any and all
attorney's fees, expenses, cost&, aDd claims brOUght UDder aWe or fodenllaw, incIudiog, but not
1I31l111:l!l I'~ I'M 0..:0
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l"Al>l:.
'2./ b
limited to. 42 U.S.c. 9 1983 and/or 42 U.S.C.~ 1988) of every and any kind oroature which the
COWlty and Shadck:lHarrison bad. hav~ or may have., whether Imowu or unlalown, against cacl1
other 88 of February 19, 2003 including, but not limited to, any claims, liability, actioDB. causes
of action, suits, appeals, debts, contacts. controvcrlies, compensations. demands. proceedings.
counu., dues. acccuntings, reckonings, damages, 'interest (inehldinS prejudgment wi post--
judgment jnterest), attorney's f'ccs, expenses (including. but not limited to, investigative and
expert cxpeases), COltS, judgmema, aDd orders, in law or in equity, (specifically including. but
Qot limited to, any and all attorney's fees, expenses, costs, and claims brought under stale or
fl:dcr3.llaw, iDcluding, but not limited to, 42 U.S.C. ~ 1983 and/or 42 U.S.C. 9 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
Iudicial Circuit in and for Monroe County, Florida, styled Kotherine F Shadelc and J~ph R.
Harrison, Ill, et a1 \I. ths Monroe County Board of County Commissioners, Case No. 95-20398-
CA-OS; the litigation in the United Stales District Court for the Southern District ofPlorida,
8tyled Arthur J. Shodek,' Katherine F. ShtvkKj arlC/ Joseph R Htll'rison. fll, as Personal
Reprt!Sf!ntative of Joseph R. Harri3On, Jr., v. Monroe CounJy Board ofCormty Commissioners;
CUe No. 9~lO026.Cjv-KiDg; and the appeaJ in the United States Court of Appeals for the
Eleventh Cireujt, styled ArthIlT J. ShadeJe; KalJJerme F Shod4k; and Joseph R. Harrison, Ill. as
Pers01f1Jl Reprefintati'\N! of Joseph R. Harrison, Jr., v. Mo~ County Board of COlUlty
Commissioners: CAse No. 9:5-4947; or in any way related or collateral to the purcbue,
OWIlt:rship, U9~ regulation, or disposition of the real property commonly dcsc.ribed as "Ocean
Forest, n more particularly desaibed in Exhibit "An attached hereto and incorpontted by this
refereuce.
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t""''''''\.M.c.
J/ '"
ShadeklHanison and me County (the "Parties") fimber underNDd that this Mutual
General Release is made and accepted in fUll compromi.le. sea1emem., aecard and sati&f.action of
any and III manner of actioQS) CWSe! of action, suits, proceedings. claims, co5tS, expenses,
counts, debts, duos, a.ccowrtings, reckon;ng~ li~i1ity and demands of every kind and uatute
whether known or unknown. including aU consequeocc.s thereof which may hereafter develop,
whether ant.icipatcd or not, aa well as those already developed or now appal'Cl1t, .h the Parties
have or could or might have against eacb other as ofFebrulUJ 19, 2003, including, but DOt
limited to, those in any way growing out ot: or connected with. or which may hereafter in any
way grow out of or be connected with the purchase., ownenhip, use, regulatioD, or disposition of
the real property commonly described as "Ocean Forest." more particularly desaibed in "Exhibit
A" attaebed hereto and incorporated herein by this refereace.
The Parties hereby cxprc8sly release each other from any and all elaim5 for COsts,
expenses, or attomay' ~ fees, whether under &tate or federal law.
In ~ecutiJ1g this Mutual General Release the Parties UDderstand that the tmms hereof are
contractual and not a mere recital, and warrant that DO promise or agreemeat not herein
expressed has been mad~ that this Mutual General Release is not executed in reliance upon any
sw.ernent or representation made by the Party or Parties hereby released or said Patties'
attorneys, agents, employee5, or representatives.
SbadekJHanison WImUlt that they have not sold. transferred, c,r asaigucd any claim,
action, cause of action, debt, expense, contnu;t. OODtrovcrsy. agrccmeut, promise, damagos.
interest, attorney's tees, investigative expenses. costs, judgmwl, aDd orders. in law or in equity,
which Sh.a.de.klHarri.son had, have, or may have, against the County ari&ing aut ot:; or in any
manner relating to the subjects of this Mutual General Release.
1h~Q31;41'M(0l0
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3
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This Mutual Genccal Release shall not operate as a ~ of any duty or obligation
mCUITed or to be incurrcd by eit1u:r PIIIty undID' the tcnns and conditions of the Settleme.nt
A8reement berween them dated February 19, 2003.
Without in any way limiting the foregoiD& it is agreed and undc:rat:ood that this Mutual
General Release shall be and 1S binding upon and iDure to the benefit of the Partics, iDcludiDS
i ,
their heirs, exeaJtors, admiDistraton, personal representatives~ predecessors, successors.
legatees, assigns and the Parties' directors, offieers, agentl, employees, elec;tcd and appointed
oftici.ili, and representatives.
It is further agreed and understood by the Parties that the aforellaid consideration,
previously acknowledged, .is the sole consideration for this Mutual Genera! R.elease and said
payment ii for the soJe purpose of settling any and all claims by and between the Parties. and is
not to be construed as an admission of liability, ~ liability being expressly denied by both
Parties, at reUef on the merits of iWy claims raised in the above-listed litigation or appeal.
The Parties stipulate and agree that neither SbadekJHarri8011 nor the County shall be
coDStnJed or considered a "preniling party" in any or all oftbe above-listed litigation or ths
appeal UDder any State or Fcdcra1law, including. but not limited to, 42 U.S.C. ~I988, by the
Settlement Agreement dated February 19,2003, this Mutual General Re1ea..s~ the payment of
consideration by the County, andlorthe "Findiags of Fact. Conclusions of Law, and Order,"
entered by the Sixteenth Judicial Circuit in and for Monroe County, Florida, (Case No. 95-
20398-CA-OS), dated July 17,2001.
The County Administrator, on behalf of the Monroe County Board of County
Commissioners, a.clmowledges that he has read, understoo~ and signed this Mutual General
1II~I'aPMCIl
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4
.......Mu.c. ""t/::J
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Release after being duly advised by the County Attorney &ad authori2ed by the Monroe County
Board of County Commissionen.
Sba.deklHarriSOI1, by their duly authorized representatives, acknowledge that they have
read, understood, and signed this Mutual Genen.l Release of their own free will. agreeing to the
terms set forth.
This Mutual General Release may be sxecuted in multiple QOuaterpaI1S.
In witness whereof: the County and ShadeklHaaison have caused this Mutual GeueraJ
Release to be executed on the date(s) set fonh below,
MONROE COUNTY BOARD
OF COUNTY COMMISSIONERS
By
James L Roberts, CoWlty .Atfmini~trator
Katherine F. Shad~ in the
capac:itics li&ted above
Date:
Witness;
Witness:
Date:
Attest:
Dl1I1IlY L. Kolbage, County Clerk
Joseph R Harrison, m. in the
capacities liated .~
Date:
Witness:
Witness:
Date: :
Approved as to form
John Richard Collins. County Attorney
Date:
II1lVZl1l1l'~ nc (3J
ltIAWl UflWl "'lft<.4lO7:.Doc1
5
~~~-~~-~~ Jb;~' rKU";MUAKU~ ~VUI'~. M~~. urra~~ .U.~U~'~'~~a_
UNJTED STATES COUR.T OF APPEALS
FOR THE ELEVENTH CIR.CUtT
CASE NO. 95-4947
ARTHUR J. SHADEl{,
KATHERINE F. SHADFJ{,
and JOSEPH R. HARRISON, m,
as P8l'Ional Representative of
JOSEPH R. HAlUUSON, JR.,
Plaintiffs! Appellants,
v.
MONROE COUNTY BOARD OF COUNTY
COMMISSIONEAS,
Defendant! Appellee.
I
JOINT MOTION POR.
DISMISSAL WITH PRE.JUDICE
-.---
AppdJauu' ud Appell~IS Certifaeate of Interested PenolU
Pursuant to Rule 26.1, Federal Rules of Appellate Procedw-e, AppeUant& and Appellee
provide the following list of interested persODS:
1. Catbmine Harrison Balesua
2, Karen K. CablUW
3. Robert H Freilich
4. The Honorable Iudge Luis Garcia
s. Douglas M. HaJaey
6. James Harrison
7, Joseph R. Hamson, ill
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8. James T. H4!lDdrick
9. The Honorable 1udge James Lawrence King
10. T. Neal McAJi1ey
11. Commissioner Charles "Sonnyll McCoy
12. Hugh Morgan
13, Mayor Pre TemMurray Nelson
14. Commissioner George NeuSeut
15. Commillllioner David P. Rice
16. James L. Roberts, County Administrator
17. Katherine F. Shadek
18. E. Tyson Smith, Ir.
19. Mayor Dixie Spehar
-
Joiat Motion for Dismillal With Prejudice
In accordance with Rule 42, Federal Rules of Appellate Procedure, AppeJJants and
Appellee hereby jointly move to dismiss this appeal with prejudice. The parties have settled the
controversy between them, induding this and the related case styled ~jlthP.rine P. Shadek. et a1.
v. Monroe CoW1t\1 .BQ3(d of Countv Commissioners. Case No. 9S-20398-CA-OS, in the Circuit
Coun of the Sixteenth Judicial Circuit in and for Monroe County, Florida. Neither Appellants
nor Appellee is to be considered or constrUed as a prevailing party in this case. 1.JDder any SWe
or Federal law, including, but not limited to, 42 US.C. ~ 19&8, by the S8Ulemeat Agreement or
Mutual General Release, both dated February 19, 2003, the payment of c:.ousidc:mtion by
Appellee, the "Findings of Fact, COllchJSions qf Law, and Order," CD1ered by the Sixteenth
VWlAQ I :~u.. C',S)
WIAWlIIft22 u6 (61_. DOC1
--. -... ..........., .....----..----......-- ---..... .--....... -.... .-- .-....-...&.-&........-
Judicial Circuit in and for Monroe County, Florida, (Case No. 9S-20398~CAr(5). dated July 17,
2001, or the order requested by tbi. motion.
Furtherm.are, Appcltaata and Appellee have agreed that ea.cb side shall be fcspousible for
its respective fees. costs, and expenses (including, but not limited to, any and an costS, attomey's
fees, or claims under 42 U.S.C. ~ 1983 and/or 42 U.S,C. ~ 1988). Appellants l='eb~ expressly
waive any claim to attorney's fees, expert fees. coats. or expenses wuier any and aU state or
federal laws. including. but not limited to, 42 use. fi 1988, and therefore requClt the Court to
enter an order granting this Motion for Voluntary Dismissal with Prejudice.
Respectfully submitted this _ day ofFebnwy, 2003.
WHITE &: CASE LLP
Attorneys for PlaiDtUfa
First Union Financial Ccnt.c:r
200 South Biscayne Boulevard
Miami, Florida 33131-2352
Telephone: (305) 371-2700
Facsimile: (305) 358-5744
By:
Dougl85 M. Halsey
Florida Bm: No. 288586
T. Neal McAliley
FlO1ida Bar No. 172091
MORGAN & HENDRICK
Karen K. Cabanas
Florida Bar No. 0136964
Hugh J. ,Morgan
Florida Bar No. 112362
Attomeys for Defendant
317 Whitehead Street
Key West, Florida 33040
Telephone: (305) 296.5676
F~simile: (305) 296-4331
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, Missomi 64111-1858
Telephone: (816) 561-4414
Facsimile: (816) 561-7931
By:
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IN THE CIRCUIT COURT OF mE
SIXTEEN'IH JUDICIAL CIRCUIT
IN AND POR MONROE COUNTY,
FLORIDA
GENERAL JUlUSDICll0N
DMSlON
CASE NO, 9S-2039S-CA-OS
KATHERlNE F. SHADEl{; individually and
OD behalf of the Personal Representative. of
ARTHURJ. SHADEK; and
JOSEPH R. HARRISON, m a6i TNStIe of the
Teswnemlll)' Trusts of JOSEPH R. HARRISON, JIl,
Plaimiffs,
v.
MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS,
Dtfendant.
I
ORDER DISMISSING CASE WITH PREJUDICE, VACATING ORDER, AND
UTAlNING JURISDICTION TO ~N'ORCE SEntIMENT AGREEMENT
TInS CAUSE having come before the Court on the Parties' '~otice ofSetc1emcnt
and Ioint Motion for Dismissal With Prejudice, Vacation of Liability Order, and to
Retain Jurisdiction to Eaforcc Settlement Agreement," IIld the Court having reviewed:
(1) the Mediator's Repon ofIanuary 8, 2003; (2) the Settlement AgrCP.l1lP.nl aDd Mutual
General Release entered into between the Parties datcdFcbnwy 19, 2003~ aDd (3) the
Resolution of the Monroe County Board of County Commissioners dated February 19,
2.003 approving the Settlement Agreement and Mutual General ReJease, it is hereby:
ORDERED and ADJUDGED,
1. The above-styled action be and the same is hereby diimiised with
prejudice, with each PIJ'ty to bear it own attorney's fees, expense&. and court costs
'lll1lClO)~ p,. (21;)
WIAMI Jl90lh7t6'UltO'/I.DOc:j
"'M~&;" ., ~
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(including but not limited to any expIDICI, fee. andlor costs under 42 U.S. C. ~ 1983
andlor 42 U.S.C. ~ 1988);
2. The Court's Order of July 11,2001 eaIitJed "Pindings of Fact,
Conclusions of Law, and Order, to be and the same is hereby voided. vacated, and !tet
I
aside. It shall have no fuIthcr preCMfP.fJtj~ or preclusive force or effect (s judicata.
collateral estoppel, or other predusion) agaizist the County, including any board,
department. officer, or employee thereof. in this cue or in any other judicial or
administrative procec:ding within the State of Plorida.
3. The Court shall retain jurisdiction for the sole pwpose ofenfol"cing dIe
te1ms of the Settlement Agreement, dated February 19. 2003, including the terms of
payment, and for entry of such orders as may be nccessary or I'Q$Onably required in the
performance oftJ1e Settlement Agreemeut, in accordance with Rule 1.730(c) OfUll:
Florida Rules of Civil Proccdmc
4. Neither the p1aintiffs nor the County shall be construed or considered a
pmtailing party in this litigation, under any State or Fcdcra11aw, including, but not
limited to, 42 V.S.C. ~1988, by the Settlement Agreement dated February 19, 2003, the
Mutual General Release, dated Febn.Jary 19, 2003. the payment of cOI15idcration by the
County, and/or the "Findings of Fact, Conclusions ofLa.w, and Order, l'l entered by the
Sixteenth Judicial Circuit in and for Monroe County, Florida, (Cue No. 9S-20398-CA.
OS), dated July 17. 2001.
S. As1y and all causes of action aga.inJt the Caumy regarding the subject
properties, including any claims PlaintitTs may have agaiu.&t the County for a1torney's
l1li_ ua N(lIQ
WIAMJ JltIllt Y71~.lXX:1
2
rMU.I::o ~'w
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fees, expert fees. costs, and/or Rpenaea. under any and aU llta1e and federal laws,
COpies funU5hed to:
Raben H. Freilich
E. Tyson Smith, Jr.
Karen K. Cab~
Douglas M. Halsey
The Honorable Luis M. Garcia
Circuit Coun Judge
:n;t~UIPW~
ICIAMI mOlh? 1~.DDCI
3