The URL can be used to link to this page

Home My WebLink AboutStipulated final judgementIN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR. MIAMI-DADE COUNTY, FLORIDA CASE NOS.: 04-26596 CA 31 04-26598 CA 31 04-26600 CA 31 (CONSOLIDATED) CITY OF MIAMI, a Florida municipal corporation, PARCELS: 67, 75, 76 Petitioner, v. ERS PROPERTIES, INC., a Florida corporation; CITY OF MIAMI BEACH, a Florida municipal corporation; JOHN SADLER, J.R.; SIGMUND O. SCHICKMAN; SOUTHERN SYNTHETICS, INC., a/k/a COWENS, a/k/a COWENS PLASTICS, and a/k/a DIAMOND ENTERPRISES; MIAMI- DADE COUNTY, et al., Respondents. / STIPULATED FINAL JUDGMENT AS TO RESPONDENTS ERS PROPERTIES, INC. AND SIGMUND O. SCHICKMAN, INDIVIDUALLY This matter came before the Court upon stipulation and joint motion of Petitioner, CITY OF MIAMI ("Petitioner"), and Respondents, ERS PROPERTIES, INC. and SIGMUND O. SCHICKMAN, individually (collectively "Property Owners"), for entry of final judgment vesting fee simple title to Parcels 67, 75, and 76 in Petitioner and awarding full compensation to Property Owners. The Court being fully advised in the premises, it is ORDERED and ADJUDGED that: 1. The Court has jurisdiction over the subject matter and the parties to this cause„ including all persons and entities claiming any equity, lien, title, or other interest in or to Parcels 67, 75, and 76 as described in Exhibit "A" attached hereto. By Order on Motion to Consolidate entered on April 27, 2005 and attached hereto as Exhibit "B," the Court has lawfully consolidated case no. 04-26598 CA 24 (City of Miami v. Sigmund 0. Schickman, et al.) and case no. 04-26600 CA 15 (City of Miami v. ERS Properties, Inc., et al.) with the civil action originally assigned to this Court, case no. 04-26596 CA 31 (City of Miami v. Sigrnund 0. Schickman, et al.). 2. Petitioner has complied with Sections 73.031 and 74.041, Florida Statutes, and has properly served Property Owners with Summons, Petitions in Eminent Domain, Notices of Lis Pendens, and Declarations of Taking and Estimates of Value, the originals of which have been filed by Petitioner with the Clerk of Court. The pleadings in this cause are sufficient and Petitioner is properly exercising its delegated authority for a public purpose. The Declarations of Taking and Estimates of Value filed in this cause were made in good faith and based upon valid appraisals. 3. Upon deposit of the amount specified in Paragraph 5 below, fee simple title to Parcels 67, 75, and 76, described in the Petitions in Eminent Domain and in Exhibit "A" attached hereto, shall vest in the name of Petitioner. Except as specified in Paragraph 6 below, Property Owners shall not retain title or possession, or any easement, license, right, privilege, or other property interest in Parcels 67, 75, and 76 subsequent to Petitioner depositing into the Court Registry the amount specified in Paragraph 5 below. 4. Property Owners, as fee simple owners of Parcels 67, 75, and 76, shall recover the following from Petitioner for the taking of Parcels 67, 75, and 76: (a) as full compensation for property taken as well as any and all other claims for compensation and/or damages with respect to the particular parcels specified herein, the amount 2 of ONE MILLION SIX HUNDRED THIRTY-FOUR THOUSAND DOLLARS AND NO CENTS ($1,634,000.00); and (b) as statutory attorney's fees (based upon a $971,000 monetary benefit achieved) incurred in defending this lawsuit (consolidated case nos. 04-26596 CA 31, 04-26598 CA 24, and 04-26600 CA 15), the amount of TWO HUNDRED SIXTY-TWO THOUSAND SEVEN HUNDRED FIFTY DOLLARS AND NO CENTS ($262,750.00). 5. Accordingly, Petitioner shall deposit the amount of ONE MILLION EIGHT HUNDRED NINETY-SIX THOUSAND SEVEN HUNDRED FIFTY DOLLARS AND NO CENTS ($1,896,750.00) into the Registry of the Clerk of Court within 30 days of this Stipulated Final Judgment being entered. Deposit of the amount set forth in this Paragraph shall be evidenced by the Clerk of Court issuing a receipt which shall be recorded in the public records of Broward County along with a Notice of Deposit executed by Petitioner, 6. Prior to the deposit as set forth in Paragraph 5 above and no later than 20 days after the date that this Stipulated Final Judgment is entered, Petitioner and Property Owners shall execute the Occupancy Agreement attached hereto as Exhibit "C". Continued possession in favor of Property Owners shall not be construed as a "nonmonetary benefit" for the purposes of calculating attorney's fees payable to Property Owners or any other.Respondent under §73.092,, Florida Statutes. 7. Upon execution of the Occupancy Agreement as described in Paragraph 6 above, Property Owners shall be entitled to continued occupancy of Parcels 67, 75, and 76 and all improvements thereon until November 15, 2005, after which date Petitioner shall be entitled to possession of Parcels 67, 75, and 76 and all improvements thereon. Property Owners shall deliver, via personal delivery or U.S. Mail, all keys to any improvements upon Parcel 67, 75, and 3 76 to; Madeline Valdes, Property Manager, Department of Economic Development, City of Miami, 444 S.W. 2nd Ave., 3rd Floor, Miami, FL 33130, no later than the deadline for continued possession established pursuant to the terms of the Occupancy Agreement. 8. Without further Court order, the Clerk of the Circuit Court shall issue no earlier. than November 16, 2005, a writ of possession to remove Property Owners and any and all occupants who remain in possession of Parcels 67, 75, and 76 and any improvements thereon. 9. Upon entry of this Stipulated Final Judgment, any and all claims by Property Owners for compensation, attorney's fees, and all other damages of any nature whatsoever (with the exception of reasonable expert witness fees and litigation costs as described in Paragraph 10 below), shall be resolved with respect to the parcels specified herein. 10. The Court retains jurisdiction of this case and the parties to this cause in order to: (a) apportion the amount payable to all Respondents named as parties and all other individuals and/or entities that may hold an interest in Parcels 67, 75, , and 76; (b) award reasonable expert witness fees and litigation costs incurred in defense of the proceedings; and (c) enforce the terms of this Stipulated Final Judgment with regard to possession of the property at issue. DONE AND ORDERED this Miami -Dade County, Florida. copies: all counsel and parties on attached service list day of , 2005, at Miami, 4 Circuit Judge JOINT MOTION FOR ENTRY OF THE ABOVE STIPULATED FINAL JUDGMENT Petitioner, CITY OF MIAMI, and Respondents, ERS PROPERTIES, INC, and SIGMUND O. SCHICKMAN, in his individual capacity, jointly move for entry of the above Stipulated Final Judgment. Weiss Serota Helfinan Pastoriza Cole & Boniske, P.A. Counsel for Petitioner 3107 Stirling Road, Suite 300 Fort Lauderdale, FL 33312 Telephone: (954) 763-4242 Telecopier: (954) 764-7770 By: Mitchell J. Burnstein Fla. Bar No. 813249 Steven E. Taylor Fla. Bar No. 147990 5 ERS Properties, Inc. By: As: SIGMUND O. SCHICKMAN, individually By: Sigmund O. Schickman Brigham Moore, LLP Counsel for Property Owners 203 S.W. 13th Street Miami, FL 33130 Telephone: (305) 858-2400 Telecopier: (305) 858-5828 By: Mark A. Tobin Fla. Bar No. 777498 Patrick T. DiPietro Fla. Bar. No. 0612049 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U,S , Mail this day of , 2005 to all parties on the service list attached hereto. WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.A. Counsel for Petitioner 3107 Stirling Road, Suite 300 Fort Lauderdale, FL 33312 Telephone: (954) 763-4242 Telecopier: (954) 764-7770 By: Mitchell J. Burnstein Fla. Bar No. 813249 Steven E. Taylor Fla. Bar No. 147990 6 SERVICE LIST Case No. 04-26596 CA 31 Case No. 04-26598 CA 31 Case No. 04-26600 CA 31 (Consolidated) (City of Miami v. ERS Properties, Inc., et al.) PARCELS 67175, 76 Mitchell J. Burnstein, Esq. Steven E. Taylor, Esq. Weiss Serota Helfrnan Pastoriza Cole & Boniske, P.A. 3107 Stirling Road, Suite 300 Fort Lauderdale, FL 33312 Counsel for Petitioner City of Miami Mark A. Tobin, Esq. Patrick T. DiPietro, Esq. Brigham Moore, LLP 203 S.W. 13'h Street Miami, FL 33130 Counsellor Respondents ERS Properties, Inc., Sigmund Q. Schickman, Southern Synthetics, Inc., a/k/a Cowens, a/k/a Cowens Plastics, and a/k/a Diamond Enterprises Thomas Goldstein, Esq. Robert A. Ginsburg, County Attorney Stephen P. Clark Center, Suite 2810 111 N.W. First Street Miami, FL 33128-1993 Counsel for Respondent Miami Dade County EXHIBIT "A" LEGAL DESCRIPTION OF PARCEL 67 Lots 10,11 & 12 ofBlock 12, Second Corrected Plat of Pierce's Subdivision of Lemon City, according to the map or plat thereof, as recorded in Plat Book 2 at Page 21 of the Public Records of Miami -Dade County, Florida. Street address: 212 NE 59th Terrace Miami, F133138 LEGAL DESCRIPTION OF PARCEL 75 Lot 17 of Block 12, Second Corrected Plat of Pierce's Subdivision of Lemon City, according to the map or plat thereof, as recorded in Plat Book 2 at Page 21 of the Public Records of Miami -Dade County, Florida. Street address: 211 NE 59th Street Miami, F133138 LEGAL DESCRIPTION OF PARCEL 76 Lot 18 of Block 12, Second Corrected Plat of Pierce's Subdivision of Lemon City, according to the map or plat thereof, as recorded in Plat Book 2 at Page 21 of the Public Records of Miami -Dade County, Florida. Street address: 215 NE 59th Street Miami, F133138 i EXHIBIT ,I All -5- IN THE CIRCUIT COURT OF THE 11m JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA CASE NO. 04-26600 CA 31 CITY OF MIAMI, a Florida municipal corporation, Petitioner, Parcel 67 Vs. ERS PROPERTIES, INC., a Florida corporation; CITY OF MIAMI BEACH, a Florida municipal corporation; JOHN SADLER, JR.; and MIAMI-DADE COUNTY., et al., Respondents. CITY OF MIAMI, a Florida municipal corporation, Petitioner, V5. SIGMUND 0. SCHICKMAN and MIAMI-DADE COUNTY, et al. Defendants, / IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA CASE NO. 04-26598 CA31 Parcel 75 EXHIBIT IN THE CIRCUIT COURT OF THE 11' JUDICIAL CIRCUIT IN AND FOR MIAMI- DADE COUNTY, FLORIDA CASE NO. 04-26596 CA 31 CITY OF MIAMI, a Florida municipal corporation, Petitioner, Parcel 76 vs. SIGMUND O. SCHICKMAN and MIAMI-DADE COUNTY, et al. Defendants. ORDER ON MOTION TO CONSOLIDATE THIS CAUSE came before the Court on April 27, 2005, upon the Motion to Consolidate of Defendant -Owner, ERS Properties, Inc., in the above -styled causes. The Court having heard argument of counsel and being otherwise advised in the premises, it is ORDERED AND ADJUDGED as follows: - C4:101 I Io'M 04i —24 0 •31 am"( 4`4 r 9 ( Q.rc G "15 GVi A.A dI L"'* o4- Z.6 5'96 1 DONE AND ORDERED in Chambers, at Miami, Miami -Dade County, Florida, this day of April, 2005. Copies Furnished To: See Attached Mailing List CIRCUIT COURT JUDGE CeoSD COW IspR 21 2445 PETER R. LOP UDCIS CIRCUIT COURT y City of Miami v. ERS Properties, Inc. Case No. 04 26600 CA 31 Service List Mitchell J. Bornstein., Esq. Weiss Serota Helfman Pastoriza Guedes & Boniske, P.A. 3107 Stirling Road, Suite 300 Ft. Lauderdale, Florida 33312 Mark A. Tobin, Esq. Patrick T. DiPietro, Esq. Attorneys for Defendant, ERS Properties, Inc.. Brigham Moore, LLP 203 Southwest 13th Street Miami, Florida 33130 Mitchell J. Bornstein, Esq. Steven E. Taylor, Esq. Weiss Serota Helfman Pastoriza Guedes Cole & Boniske, P.A. 3107 Stirling Road, Suite 300 Ft. Lauderdale, Florida 33312 Carlos Alvarez, Mayor Miami -Dade County Board of County Commissioners 111 N.W. 1st Street, Suite 2910 Miami, Florida 33128 Thomas Goldstein, Esq. Cole Assistant County Attorney. Miami -Dade County Stephen P. Clark Center, Suite 2810 111 Northwest First Street Miami; Florida 33128-1993 John D. Sadler, Jr. Address Unknown City of Miami v. Sigmund 0. Schickman Case No. 04-26598 CA 31 Service List Mark A. Tobin, Esq. Patrick T. DiPietro, Esq. Attorneys for Defendant, ERS Properties, Inc. Brigham Moore, LLP 203 Southwest 13th Street Miami, Florida 33130 City of Miami v. Sigmund O. Schicknian Case No. 04-26596-CA 31 Service List Mitchell J. Bornstein, Esq. Weiss Serota Helfrnan Pastoriza Guedes Cole & Boniske, P.A. 3107 Stirling Road, Suite 300 Ft. Lauderdale, Florida 33312 Mark A. Tobin, Esq. Patrick T. DiPietro, Esq. Attorneys for Defendant, ERS Properties, Inc. Brigham Moore, LLP 203 Southwest 13th Street Miami, Florida 33130 Carlos Alvarez; Mayor Miami -Dade County Board of County Commissioners I11 N.W. lth Street, Suite 2910 Miami, Florida 33128 OCCUPANCY AGREEMENT THIS OCCUPANCY AGREEMENT ("Agreement") is made and entered into this day of , 2005, by and between ERS Properties, Inc., a Florida for -profit corporation, and Sigmund O. Schickman, an individual, as condemnees ("Condemnees"), and the City of Miami, a municipal corporation of the State of Florida, as condemnor ("Cj") (collectively, the "Parties"). WITNES SETH: WHEREAS, pursuant to its authority under Chapters 73 and 166, Florida Statutes, the City filed a petition in eminent domain to acquire the real property described in Exhibit "A" attached hereto ("Properties"); and WHEREAS, pursuant to its authority under Chapter 74, Florida Statutes, the -City petitioned the Circuit Court of the Eleventh Judicial Circuit in case nos. 04-26596, 04-26598, and 04-26600 for entry of an Order of Taking to acquire title to the Properties in advance of final judgment; and WHEREAS, on May 16, 2005, as a result of mediation, the Parties executed a. Memorandum of Settlement, attached hereto as Exhibit "B", to acquire title to the Properties in connection with development of Little Haiti Park; and WHEREAS, the Memorandum of Settlement provides a period of extended possession in favor of Condemnees and requires the Parties to execute an occupancy agreement in a form to be approved by the Parties; and WHEREAS, the Parties' agreement to a period of extended possession permits Condemnees to continue operating and conducting those activities, subject to the terms of this Agreement, in the same manner as they did prior to acquisition of the Properties by the City through entry of a stipulated final judgment; and WHEREAS, the City Commission, by Resolution No. , adopted on , 2005, approved and authorized the City Manager to execute this Agreement, under the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the terms dictated by the Memorandum of Settlement, the City and Condemnees hereby agree as follows: 1. The City hereby grants to Condemnees the right to occupy the Properties from the date of their acquisition pursuant to a deposit into the court registry under the terms of a stipulated final judgment through and including November 15, 2005 at 5:00 p.m. ("Occupancy Period"). The Occupancy Period shall not be extended. No rent shall be due and payable from Condemnees during the Occupancy Period. EXHIBIT tfcTT -1- 2, Condemnees shall: (i) vacate the Properties no later than November 15, 2005 at 5:00 p.m.; (ii) leave the Properties in the same condition (subject to ordinary wear) in which they existed on the date of their acquisition; and (iii) remove all personal property, fixtures, and special purpose systems not acquired by the City. If Condemnees fail to remove all personal property, fixtures, and special purpose systems by the conclusion ofthe Occupancy Period, the City shall not be responsible for the loss or destruction of such personal property, fixtures, and special purpose systems, 3. Condemnees shall maintain, at their sole cost and expense, public liability insurance of at least $1,000,000 general aggregate limit and hazard insurance coverage for the duration of the Occupancy Period. 4. Condemnees shall provide the City, immediately upon entry of this Agreement, with a Certificate of Insurance naming the City as an additional insured, and evidencing the public liability insurance coverage and hazard insurance coverage as required in Paragraph 3 above. Such Certificate shall provide for a 30-day written notice to the City in the event of cancellation or material change of said coverage. The insurance policy shall be written on an occurrence basis and shall include the broad form comprehensive general liability endorsement or equivalent. 5. Condemnees shall occupy the Properties in "As Is" condition and at their own risk. The "As Is" condition shall be ascertained by inspection of the Properties conducted by the City, before the execution ofthe Agreement. Condemnees hereby agree not to conduct any demolition or renovation activities on the Properties during the Occupancy Period. Condemnees shall be solely responsible for maintenance and repair of the Properties during the Occupancy Period. 6. Condemnees may not transfer, convey, substitute, or assign any rights under this Agreement or sublease all or any part of the Properties. 7. Condemnees hereby agree to release, indemnify and hold harmless the City, its officers, employees, representatives, agents, successors and assigns, from any and all liability, claims, demands, actions, judgments, damages, costs and expenses of any nature whatsoever in any way arising from the Properties or out of the Condemnees' occupancy of the Properties during the Occupancy Period including, but not limited to, any and all claims made by third parties. This agreement, release, indemnification and hold -harmless does not apply to any liabilities, claims, demands, actions, judgments, damages, costs and expenses of any nature whatsoever arising from the willful acts or gross negligence the City, its officers, employees, representatives, agents, successors and assigns with respect to the Properties, if any were to arise, including, but not limited to, any and all claims made by third parties. Notwithstanding the foregoing, Condemnees hereby agree to occupy the Properties in "As Is" condition at their own risk, and hereby acknowledge that the City shall make no repairs to the Properties during the Occupancy Period. This paragraph shall survive the termination of the Occupancy Period. 8. The City and/or its consultants may inspect the interior and exterior of the Properties -2- upon reasonable notice to Condemnees at all reasonable hours to ensure compliance with this Agreement. The City and/or its consultants, upon reasonable notice and without substantial interference to Condemnees, may conduct inspections that may include, but are not limited to, surveys, soil borings, percolation, engineering studies, environmental tests and studies, and other tests that the City and/or its consultants consider necessary for the future development of the Properties, provided that such inspections and testing do not materially impact the Properties or materially impact Condemnees' use and enjoyment of the Properties. 9. This Occupancy Agreement shall not create any additional rights or interests in the Properties other than those specified herein. . 10. This Agreement shall not be assigned by Condemnees, in whole or in part, without the prior written consent of the City, which may be withheld or conditioned in the City's sole discretion. 11. All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier: To City: Laura Bilberry, Acting Director Department of Economic Development 444 S.W. 2nd Avenue, 3rd Floor Miami, Florida 33130 To Counsel: Jorge L. Fernandez, City Attorney City of Miami 444 S.W. 2nd Avenue, Suite 945 Miami, Florida 33130 To Condemnees: ERS Properties, Inc. and Sigmund O. Schickman c/o Mark A. Tobin, Esq. Patrick T. DiPietro, Esq. 203 S.W. 13th St. Miami, FL 33130 Mitchell J. Burnstein Weiss Serota Helfinan Pastoriza Guedes Cole & Boniske, P.A. 3107 Stirling Road, Suite 300 Ft. Lauderdale, F133312 12. Condemnees understand that the public shall have access, at all reasonable -3- times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agree to allow access by the City and the public to all documents subject to disclosure Under applicable law. 13. This instrument and its attachments constitute the sole and only agreement of the Parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 14. This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement on this day of 2005. ATTEST: ERS Properties, Inc., a for -profit corporation By: By: Print Name: Print Name: Sigmund 0. Schickman Title: Corporate Secretary Title: President ATTEST: By: Priscilla A. Thompson, City Clerk Approved As To Form And Correctness: By: Jorge L. Fernandez City Attorney Individually, By: Print Name:, Sigmund 0. Schickman CITY OF MIAMI, a municipal corporation By: Joe Arriola,City Manager Approved As To Insurance Requirements: By: Dania Carrillo Risk Management -4- EXHIBIT "A" LEGAL DESCRIPTION OF PARCEL 67 Lots 10,11 & 12 of Block 12, Second Corrected Plat ofPierce's Subdivision of Lemon City, according to the map or plat thereof, as recorded in Plat Book 2 at Page 21 of the Public Records of Miami -Dade County, Florida. Street address: 212 NE 59« Terrace Miami, F133138 LEGAL DESCRIPTION OF PARCEL 75 Lot 17 of Block 12, Second Corrected Plat of Pierce's Subdivision of Lemon City, according to the map or plat thereof, as recorded in Plat Book 2 at Page 21 of the Public Records of Miami -Dade County, Florida. Street address: 211 NE 59th Street Miami, F133138 LEGAL DESCRIPTION OF PARCEL 76 Lot 18 of Block 12, Second Corrected Plat of Pierce's Subdivision of Lemon City, according to the map or plat thereof, as recorded in Plat Book 2 at Page 21 of the Public Records of Miami -Dade County, Florida. Street address: 215 NE 59th Street Miami, F133138 -5-