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HomeMy Public PortalAbout22-9999 - settlement agreement Raul Fernandez, DJ Opportunities, et al vs Miami-Dade County and City of Opa-lockaSponsored by: City Attorney RESOLUTION NO. 22-9999 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF OPA-LOCKA, FLORIDA, APPROVING A SETTLEMENT AGREEMENT IN THE CASE OF RAUL FERNANDEZ, DJ OPPORTUNITIES, ET AL V. MIAMI-DADE COUNTY AND CITY OF OPA-LOCKA; PROVIDING FOR INCORPORATION OF RECITALS; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on December 7, 2019, Plaintiffs, Raul Fernandez; DJ Opportunities, Inc.; a Florida Profit Corporation; 3125 Apartments, LLC; David Fernandez; and 13240 Port Said Road, LLC, initiated a lawsuit in the Circuit Court for Eleventh Judicial Circuit in and for Miami -Dade County, Florida, through which Plaintiffs sought recovery of damages for Breach of Contract and Injunctive Relief that allegedly arising out of the City's billing for water service, as well as the City's alleged intent to terminate Plaintiffs' water service for non-payment (hereinafter, the "Lawsuit"); and WHEREAS, the parties have agreed to settle all issues involved with the Lawsuit; and WHEREAS, neither party admits liability in this matter, however, in an effort to resolve the pending controversy, all parties desire to amicably and expeditiously resolve all claims and avoid continued litigation; and WHEREAS, Miami -Dade County Attorney's Office also intends to take this same matter before the County Commission for full settlement of all claims; and WHEREAS, the City Commission hereby accepts the recommendation of the City Attorney's Office to settle this matter consistent with the Agreement, set forth as Exhibit "A"; and WHEREAS, the parties desire to enter into a Settlement Agreement with the intended purpose of resolving all claims as set forth in Exhibit "A" with City receiving funds from Plaintiff. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF OPA LOCKA, FLORIDA: SECTION 1. RECITALS ADOPTED. The recitals to the preamble herein are incorporated by reference. Resolution No. 22-9999 SECTION 2. AUTHORIZATION The City Commission of the City of Opa-Locka hereby approves the settlement agreement between the Plaintiffs: Raul Fernandez; DJ Opportunities, Inc.; a Florida Profit Corporation; 3125 Apartments, LLC; David Fernandez; and 13240 Port Said Road, LLC, and the City of Opa-Locka, consistent with the Agreement attached hereto as Exhibit "A"; and further authorizes the City Manager to take all necessary action consistent with this Resolution. SECTION 3. SCRIVENER'S ERRORS. Sections of this Resolution may be renumbered or re -lettered and corrections of typographical errors which do not affect the intent may be authorized by the City Manager and with subsequent approval by the City Attorney, without need of public hearing, by filing a corrected copy of same with the City Clerk. SECTION 4. EFFECTIVE DATE. This Resolution shall be effective immediately upon adoption hereof and approval by the Governor of the State of Florida or Governor's designee. PASSED and ADOPTED this 22nd day of June, 2022. ATTEST: Jo a Flores, City Clerk APPROVED AS TO FORM AND LEGAL SUF CIENCY: Burn.. de - Norris- eeks, P.A. City ` ttorney Veronica Williams, Mayor Resolution No. 22-9999 Moved by: Commissioner Bass Seconded by: Vice Mayor Taylor VOTE: 5-0 Commissioner Dominguez YES Commissioner Bass YES Commissioner Davis YES Commissioner Taylor YES Mayor Williams YES SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release is entered into this As day of /4 , 2022, by and between RAUL FERNANDEZ; DJ OPPORTUNITIES, INC.; 3125 APA TMENTS, LLC; DAVID FERNANDEZ; and 13240 PORT SAID ROAD, LLC (collectively, "PLAINTIFFS"); the CITY OF OPA-LOCKA, a Florida Municipal Corporation (the "City"); and MIAMI-DADE COUNTY, a political subdivision of the State of Florida (the "County") (collectively, with the City, "DEFENDANTS", and with PLAINTIFFS, collectively, the "Parties". WHEREAS, PLAINTIFFS initiated a lawsuit in the Circuit Court for Eleventh Judicial Circuit in and for Miami -Dade County, Florida. Case No.: 2019 -35518 -CA -01, through which Plaintiffs sought recovery of damages for Breach of Contract and Injunctive Relief that allegedly arose out of the City's provision of, and billing for, water service to Plaintiffs as well as the City's alleged intent to terminate Plaintiffs' water service for non-payment (hereinafter, the "Lawsuit"); and WHEREAS, Plaintiffs' latest version of the Complaint —the Third Amended Complaint —also alleges that the County has breached an unspecified contractual obligation to the Plaintiffs and should also in some unspecific way be held responsible for damages; and WHEREAS, the Parties want to avoid the associated expense and uncertainty of litigation, and, therefore, desire to amicably resolve their dispute and settle all of their respective claims. NOW, THEREFORE, in consideration of the foregoing recitals and following premises, terms and conditions and for other good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, the Parties agree as follows: Raul Fernandez, et al v. City of Opa-locka, et al Case No.: 2019 -35518 -CA -01 Page 2 TERMS AND CONDITIONS 1. Incorporation of Recitals. The Parties agree that the above recitals are true and correct and that those recitals are incorporated by reference and form a part of this Agreement. Effective Date. The Effective Date of this Agreement shall be the sooner of: (a) the date of the expiration of the County Mayor's veto period after the approval of this Agreement by the Board of County Commissioners of Miami -Dade County (the "BCC") without the County Mayor vetoing the BCC's resolution approving same, or (b) the date on which the County Mayor approves the BCC -approved resolution authorizing the execution of this Agreement, as set forth in Section 3 of this Agreement, or (c) the date on which the BCC overrides a County Mayor veto of this Agreement. 3. City and County Approval Processes. The Parties acknowledge that before the City or County may settle any claims or enter into any binding contractual obligations pursuant to this Agreement, the City and the County must obtain the approval of their respective Boards and the subsequent assent of, as applicable, the City Mayor or the County Mayor (or, if the County Mayor vetoes any legislation approving this Agreement, an override of the County Mayor's veto by the BCC). a. BCC Approval. The Parties acknowledge that County Resolution No. 130-06 requires that all non -County parties must execute this Agreement before the Agreement may be placed on the BCC's agenda. Accordingly, Plaintiffs and the City agree to execute this Agreement before the County and as a precondition of the presentation of this Agreement to the County Mayor/designee and the BCC. After such execution. Plaintiffs and the City agree that neither may withdraw from or modify the terms of its settlement, as presented in this Agreement except as provided in Paragraph 3(c) below. Raul Fernandez, et al v. City of Opa-locka, et al Case No.: 2019 -35518 -CA -01 Page 3 b. The Parties' Obligations Before BCC Approval. None of the Parties shall be required to file any document compromising any claims they may have against the other Parties and shall not have to release the other Parties until the Effective Date. c. Consequence Upon Failure to Obtain BCC Approval. If the BCC does not approve this Agreement or override a County Mayor veto of this Agreement, and after all opportunities for BCC reconsideration have passed, the Parties shall return to the status quo existing before the Parties' preparation of this Agreement, and the fact that the County, the City and Plaintiffs sought to negotiate a resolution to their dispute, including any supporting documents necessary to present this Agreement to the BCC, shall be inadmissible for all reasons and shall not prejudice any of their pre-existing rights and remedies with respect to each other or any other person or entity. 4. Agreement to Settle: No Admission of Liability. Subject to the terms and conditions of this Agreement, the Parties hereby agree that the terms of this Agreement, the payment of any monies, or any other action of forbearance taken pursuant to this Agreement shall in no way constitute, nor be construed as, an admission of liability or acknowledgment of the validity of any allegation, finding or conclusion, by the Parties, or their respective agents, but rather are made as a contractual settlement by way of compromise for the purpose of settling the claims, controversies, and differences addressed herein and to avoid the expense and uncertainty of litigation. Moreover, this Agreement shall not be admissible in any proceeding for any purpose, except for the purpose of establishing a claim of default or violation of the provisions contained herein. a. Payment Terms. Upon receipt of this signed Settlement Agreement and Release, PLAINTIFFS shall pay unto DEFENDANT CITY OF OPA-LOCKA the total sum of k?( Raul Fernandez, et al v. City of Opa-locka, et al Case No.: 2019 -35518 -CA -01 Page 4 S100,000.00 USD (One Hundred Thousand Dollars and 00/100 Cents) and the DEFENDANTS shall release all liens imposed by the City and/or County for non-payment of water bills prior to May 15, 2022, on the properties whose water accounts are the subject of the Lawsuit (the "Properties") in full and complete settlement of all matters in dispute in the Lawsuit. b. Payment Method. Plaintiffs shall pay the sum due above to the City by cashier's check to the order of City of Opa-Locka, sent by overnight courier to Burnadette Norris -Weeks P.A., 401 NW 7t" avenue, Fort Lauderdale, FL 33311. 5. Plaintiffs' Release. Upon release of and in consideration of the releases of lien referenced above, PLAINTIFFS, and their subsidiaries, affiliates, successors and assigns hereby release, acquit, satisfy, and forever discharge the DEFENDANTS, and their officials, employees, attorneys and representatives, from any and all actions and causes of actions, damages, judgments, claims, counterclaims and demands whatsoever, liquidated or un- liquidated, contingent or fixed, known or unknown, determined or undetermined, at law or in equity which they now have or may have from the beginning of time to the date of these presents and/or that otherwise could have been brought against the DEFENDANTS in the Lawsuit. 6. City's and County's Releases. As part and parcel of this Settlement and Release Agreement and in consideration of the settlement sum to be paid to the City, DEFENDANTS do hereby release, acquit and discharge, and by these present have hereby released, acquitted and forever discharged, PLAINTIFFS, along with their subsidiaries, affiliates, successors and assigns from any and all claims, causes of action, rights of action, damages, accounts and/or reckonings, of whatever name or nature, including, but not limited to, any and all actions for damages sounding or arising in tort, in contract, or by statute, and any and all other claims, actions and/or causes of action which were alleged in, or which could have been alleged by Raul Fernandez, et al v. City of Opa-locka, et al Case No.: 2019 -35518 -CA -01 Page 5 DEFENDANTS, as a counterclaim in the Lawsuit and/or pertaining to or arising out of or relating to the Lawsuit provided that PLAINTIFFS are not released from paying any water bills for the Properties identified in the Lawsuit, and any other properties they own within the City or County, as of May 15, 2022 and going forward. 7. Dismissal of the Lawsuit. Within ten (10) days of the Effective Date of this Agreement, Plaintiffs' counsel shall file a Notice of Voluntary Dismissal with prejudice in the Lawsuit. Each Party agrees to bear its own attorneys' fees and costs. 8. Florida Law Applies; Exclusive Venue. This Agreement shall be construed under the laws of the State of Florida without regard to its choice of law provisions. Venue for any dispute arising out of this Agreement shall lie exclusively with Judges in Section 44 of the Complex Business Litigation Division in the Eleventh Judicial Circuit in and for Miami -Dade County. 9. Entire Agreement: Modification. This Agreement together with all documents required to be executed hereunder constitutes the entire agreement and understanding between the Parties to this Agreement with respect to the subject matter of this Agreement. No supplement, modification, or amendment to this Agreement shall be binding unless it is duly executed in writing by all Parties. 10. Rule of Construction: Opportunity to Review. The Parties represent and agree that they have participated equally in the negotiation of the terms and provisions set forth in this Agreement and that no presumptions or inference shall apply against any Party hereto as to its construction. The Parties declare that: (a) they have completely read the terms of this Agreement, (b) they have discussed the terms of the Agreement with legal counsel of their Raul Fernandez, et al v. City of Opa-locka, et al Case No.: 2019 -35518 -CA -01 Page 6 choice, and (c) they fully understand and voluntarily accept the terms for the purpose of making a full and final compromise, adjustment and settlement of claims. 11. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, representatives, agents, attorneys, officers, directors, predecessors, affiliates, parents, subsidiaries, successors or assigns in connection with any legal action arising out of the Agreement. 12. Authority to Execute and Bind. By executing this Agreement, the undersigned warrant and represent that they are authorized to enter into this Agreement and empowered to bind their respective Parties to these terms and, where applicable, their parents, affiliates, subsidiaries, successors, assignees and related entities. Further, the Parties represent that they have not assigned any of their respective rights or claims that are the subject of this Agreement to any third party. 13. Captions. The captions or headings in this Agreement are for convenience only and in no way define, limit, or describe the scope or intent of any provisions of this Agreement. 14. Severability. The Parties have attempted to create an Agreement that is lawful and enforceable in all respects. The validity of this Agreement shall not be affected by any subsequent changes in federal, state or County law, whether through legislation or judicial interpretation, which create, eliminate, or change the rights and obligations of the Parties. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this Agreement is held to be invalid, void, or unenforceable, the balance of the provisions shall, nevertheless, remain in full force and effect and shall in no way be affected, impaired, or invalidated. 15. Counterparts; Electronic Signatures. The Parties agree that this Agreement, Raul Fernandez, et al v. City of Opa-locka, et al Case No.: 2019 -35518 -CA -01 Page 7 and any and all other documents in connection with this Agreement, may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same Agreement. This Agreement may be executed as facsimile, email, or electronic originals, and each copy of this Agreement bearing the facsimile, email, or electronic transmitted signature of any Party's authorized representative shall be deemed to be an original. (Remainder of Page Left Blank Intentionally) Cx Raul Fernandez, et al v. City of Opa-locka, et al Case No.: 2019 -35518 -CA -01 Page 8 N WITNESS WHEREOF, the Parties have executed this Agreement and Mutual Releases by their duly authorized representatives as of the date of year appearing by their respective signatures. A 1lbST: MIAMI-DADE COUNTY, FLORIDA BY ITS BOARD OF COUNTY COMMISSIONERS By: By: Harvey Ruvin Clerk of the Board ATTEST: B Daniella Levine Cava County Mayor CITY OF OPA LOCKA, FLORIDA BY ITS BOARD OF CITY COMMI . S-I'ONE By: City Ma':r (SIGNATURES CONTINUE ON NEXT PAGES) IN THE PRESENCE OF 9 Raul Fernandez, et al v. City of Opa-locka, et al Case No.: 2019 -35518 -CA -01 Page 9 WITNESS tc, 11 'j)(1 I rcn-e r RA PLA STATE OF FLORIDA COUNTY OF 44.' (�,Acicr- Before me, the undersigned authority, this ° day of M :A , 2022 personally appeared RAUL FERNANDEZ, who, after being duly sworn, d .posed and stated that he has read the above and foregoing Settlement Agreement and Release and that he knows and appreciates the contents thereof, and has executed same of his own free act and deed. personally Known Produced as identification IN THE PRESENCE OF: STATE OF FLORIDA COUNTY OF MIAMI-DADE I I Before me, the undersigned authority, this am -, of m^ , 2022 personally appeared RAUL FERNANDEZ, ON BEHALF OF DJ OPPORTUNITIES, INC., who, after being duly sworn, deposed and stated that he has read the above and foregoing Settlement Agreement and Release, and that he knows and appreciates the contents thereof, and has executed same of his own free act and deed. .. WALTER A. ANON = ':,,; MY COMMISSION # HH 0242' o EXPIRES: August 5, 20 F`:••` Bonded Thru Notary Public Unde NDEZ, ON BEHALF OF TIES, INC., PLAINTIFF F;ersonally K wn /Produced L-- , as identification i WALTER A. ANON MY COMMISSION # HH 024220 EXPIRES: August 5, 2024 . F Of Fes.• '' Bonded Thru Notary Public Underwriters Raul Fernandez, et al v. City of Opa-locka, et al Case No.: 2019 -35518 -CA -01 Page 10 IN THE PRESENCE OF: STA 1E, OF FLORIDA COUNTY OF MIAMI-DADE Before me, the undersigned authority, this day of , 2022 personally appeared DAVID FERNANDEZ, who, after being duly sworn, de sed and stated that he has read the above and foregoing Settlement Agreement and Releas , and t hat he knows and appreciates the contents thereof, and has executed same of his own free act and deed. ,Personally Known ✓ Produced VI) L- as identification IN THE PRESENCE OF: 125 APARTMENTS, LLC, 'AINT 'F STATE OF FLORIDA COUNTY OF MIAMI-DADE Bore me, the undersigned authority, this day of W , 2022 personally appearedT'???, ON BEHALF OF 3125 APARTMENTS, LLC, w , after being duly sworn, deposed and stated that he has read the above and foregoing Settlement Agreement and Release, and that he knows and appreciates the contents thereof, and has executed same of his own free act and deed. rsonally Known Produced b L— - as identification " 'L WALTER A. ANON F?, K�!;: MY COMMISSION it HH 024220 •.�� . EXPIRES:August 5, 2024 • 'fF;?;;F;r°c' Bonded Thru Notary Public Underwriters cx Raul Fernandez, et al v. City of Opa-locka, et al Case No.: 2019 -35518 -CA -01 Page 11 IN THE PRESENCE OF: f�lYl�Q� farWITI SS STATE OF FLORIDA COUNTY OF M1AMI-DADE Before me, the undersigned authority, this A day of , 2022 personally appeared??, ON BEHALF OF 13240 Port Said Road, LLC, ho, after being duly sworn, deposed and stated that he has read the above and foregoing Settlement Agreement and Release, and that he knows and appreciates the contents thereof, and has executed same of his own free act and deed. ersonally Known Produced 1-- - as identification Approved for Legal Sufficiency: Assistant County Attorney WALTER A. ANON �• MY COMMISSION # HH 024220 EXPIRES: August 5, 2024 ,f•Rt. Bonded Thru Notary Public Underwriters