STIPULATION OF RECITALS FOR CIVIL CASE NUMBER 87-1810-CV-T-10B
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FRED A. THOMAS,
plaintiff,
Case No. 87-1810-Civ-T-10B
v.
CITY OF CLEARWATER,
ANDREW B. ONUFER, and
DAVID CHRISTIANSEN,
Defendants.
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STIPULATION
RECITALS
WHEREAS, plaintiff is the owner of the home that is situated
on the real property described as follows (the "premises"):
730 El Dorado Avenue, Clearwater, Florida, we
have Section 5, Township 29, Range 15, Sub-
division 54666, Block 002, Lot 0080. The
legal description for this property reads:
Mandalay Subdivision, Block 2, Lot 8, and RIP
rights; and
WHEREAS, the parties hereto are plaintiff and Defendants,
respectively, in this Court in an action entitled as shown above
in the caption of this document; and
WHEREAS, the parties desire to reach some accord and narrow
the issues in the pending lawsuit between the parties hereto; and
WHEREAS, the parties have, through their respective counsel,
met and conferred respecting their differences and the issues ul-
timately to be determined in this lawsuit;
NOW, THEREFORE, the parties hereto agree to and do enter
into the following Stipulation, to-wit:
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STIPULATION
COME NOW the parties hereto and stipulate and agree as
follows:
1. The Defendants jointly and severally agree:
(a) Pending a final judicial determination of the
issues in this lawsuit;
(i) Plaintiff may resume and complete construc-
tion of the renovations to the Premises that are contemplated by
the building plans and specifications that Plaintiff submitted to
the City of Clearwater Building Department on or about November
25, 1987 (the "Renovations"), without any delay or other action
of any kind whatsoever by Plaintiff or Defendants;
(ii) Plaintiff may occupy the Premises upon com-
pletion of the Renovations without the issuance of a certificate
of occupancy or any other action of any kind whatsoever by
Plaintiff or Defendants; and
(iii) Defendants shall not, and Defendants shall
not permit any of their officials, servants, employees, and
agents to, enforce as to the Premises any flood protection pro-
vi s ions f rom any source wha tsoeve r, including , but not 1 imi ted
to, Chapter 146 of the Clearwater Land Development Code (the
"Code"), Section 161.54, Florida Statutes, 44 C.F.R. Parts 50 et
~, or enforce as to the Premises any building codes, including
Chapters 138, 139, 140, and 146 of the Code, the Southern
Building Code, the Pinellas County Construction Licensing Board,
and Chapter 161, Florida Statutes, or otherwise interfere with
Plaintiff in resuming construction of the Renovations, completing
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construction of the Renovations, or occupying the Premises upon
completion of the Renovations;
(b) Except as otherwise provided in paragraph l(a)
above, the city of Clearwater ("City") reserves all of its rights
to seek, following completion of the Renovations or occupancy of
the Premises (whichever occurs first), through procedures avail-
able to it in this Court or any other court having jurisdiction
of this matter and the parties hereto, the Plaintiff's compliance
with all applicable building codes, including Chapters 138, 139,
140, and 146 of the Code, the Southern Building Code, the
Pinellas County Construction Licensing Board, and Chapter 161,
Florida Statutes (1985, 1986); and
(c) Defendants expressly waive any ~laim, defense, or
right to assert that Plaintiff's covenants set forth in para-
graphs 2(f) and 2(g) below affect or prejudice in any manner
whatsoever Plaintiff's right to recover from the City, attorneys'
fees pursuant to 42 U.S.C. ~ 1983 in a reasonable amount as may
be awarded by a court of competent jurisdiction or to assert any
other constitutional challenge other than pursuant to 42 U.S.C.
~ 1983, or to assert any other claim that does not seek monetary
relief;
(d) Defendants Onufer and Christiansen release and
forever discharge Plaintiff and Plaintiff's wife, Joy Thomas,
from all actions, claims, damages, liabilities, obligations, or
other action of any nature or character whatsoever, known or
unknown, asserted or unasserted, that Onufer and Christiansen,
jointly and severally, had or may have had against Thomas or
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Thomas's wife at the time of execution of this Stipulation,
including, but not limited to, all claims that could have been
advanced by Onufe rand Chr i s ti ansen in conne cti on wi th thi s
action; and the City releases and forever discharges Plaintiff
and Plaintiff's wife, Joy Thomas, from all actions., claims,
damages, liabilities, obligations, or other action of any nature
or character whatsoever, known or unknown, asserted or
unasserted, that the City has or may have had against Thomas or
Thomas's wife at the time of execution of this Stipulation,
including, but not limited to, all claims that could have been
advanced by the City in connection with this action, except that
the City expressly reserves the right to seek Plaintiff's com-
pl i ance wi th all appl i cable bui lding codes, inc 1 uding Chapte r s
138, 139, 140, and 146 of the Code, the Southern Building Code,
the P inellas County Cons tructi on Li cens i ng Boa rd, and Chapte r
161, Florida Statutes (1985, 1986); and
(e) City represents and warrants to Plaintiff that its
execution, delivery, and performance of this Stipulation have
been duly author i zed by all requi site acti ons 0 f the City
Commission of the City, and, when executed by all the parties
hereto, this Stipulation will constitute a valid and binding
obligation of the City.
2. Plaintiff agrees:
(a) To provide City within 30 days of the date of exe-
cution hereof all detailed construction plans within Plaintiff's
possession which have been prepared for the Premises for the past
three years;
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(b) To provide City within 30 days of the date of the
execution hereof detailed copies within Plaintiff's possession of
all contracts, invoices, and any other documentation of costs
incurred for labor and materials for construction on the Premises
during the past three years;
(c) To provide City within 45 days of the date of the
execution hereof a certificate showing the elevation of the
ground floor and of the lowest supporting member of the porch of
the Premises that is certified by a licensed surveyor;
(d) To provide City within 30 days of the date of exe-
cution hereof all site drawings prepared for the Pre~ises during
the past three years that are within the Plaintiff's possession;
(e) To provide City within 30 days of the date of exe-
cution hereof all plans within the Plaintiff's possession that
show any work proposed for and actually engaged in on the
Premises during the past three years;
( f) To di smi s s the present acti on as agains t both
Onufer and Christiansen and to covenant not to sue Onufer or
Christiansen in their personal capacities for any constitutional
deprivation, breach of contract, tort or other offense of any de-
nomination whatsoever arising from or connected with the facts
and claims alleged in the Complaint in this action or any other
related facts or claims. Notwithstanding the foregoing, plain-
tiff expressly reserves the right to recover from the City, pur-
suant to 42 U.S.C ~ 1983 for civil rights violations based on the
actions or conduct of Onufer, Christiansen, or the City, attor-
neys' fees and expenses in a reasonable amount as may be awarded
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by a court. Also, Plaintiff expressly reserves the right to as-
sert any constitutional challenge other than civil rights viola-
tions pursuant to 42 U.S.C. ~ 1983, or to assert any other claim
that does not seek monetary damages;
(g) To waive the right to recover from the City
pursuant to 42 U.S.C. ~ 1983, actual, compensatory, and punitive
damages for civil rights violations that occurred prior to the
date of this Stipulation, except that Plaintiff expressly re-
serves the right to assert against the City civil rights viola-
tions pursuant to 42 U.S.C. S 1983 for the purpose of recovering
from the City attorneys' fees and expenses in a reasonable amount
as may be awarded by a court, and except that the foregoing limi-
tation of damages does not affect in any way whatsoever any other
right or remedy of Plaintiff, including, but not limited to, the
constitutional challenges asserted by Plaintiff in Counts I
through VII of the Complaint in this action;
(h) To permit City, its employees and agents, to in-
spect and photograph the Premises, within 24 hours following the
date of execution hereof and also within 24 hours after he noti-
fies the City of the completion of construction of the Renovation
and before occupancy of the premises;
(i) To withdraw his Motion for Preliminary Injunction;
and
(j) To assume all risks and liabilities related to the
Premises, and to defend, indemnify, and hold harmless the City,
its officials, agents, and employees from and against any and all
loss and liability for damages to Plaintiff, or his family,
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agents, servants, contractors, or invitees, or any of their res-
pective property, that arise out of Plaintiff's construction ac-
tivities with respect to the Premises or the condition of the
Premises at the time of Plaintiff's occupancy thereof. Nothing
in this subparagraph shall be construed to mean that Plaintiff
indemnifies or holds harmless the City, its officials, agents,
and employees from and against any loss or liability that plain-
tiff himself may establish against the City in connection with
this or any related action.
3. Defendants and Plaintiff all understand and agree:
(a) Defendants' agreements with Plaintiff under this
Stipulation are independent of any agreement or obligation of
Plaintiff to Defendants (including any agreement or obligation of
Plaintiff under this Stipulation) and are not subject to any de-
fense based on any claim Defendants might have against Plaintiff;
(b) The letter agreement dated November 9, 1987, be-
tween the City and Plaintiff is rescinded by this Stipulation;
(c) City and Plaintiff expressly reserve their res-
pective rights, claims, and defenses in connection with this
action, unless otherwise expressly provided in this Stipulation.
Nothing in this Stipulation shall be construed to waive any
right, claim or defense of either the City or Plaintiff in this
action, unless otherwise expressly provided in this Stipulation;
(d) This Stipulation will be filed with this Court,
and the parties shall jointly seek, within ten (10) days after
execution hereof, approval by this Court of this Stipulation in
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the form of an order, but lack of such an order 'shall not in any
manner affect the enforceability of this Stipulation;
(e) This Stipulation is also binding on the Plain-
tiff's wife, Joy Thomas, who is not a party to this action; and
,
(f) If any obligation of the Defendants as set forth
in paragraphs 1 or 3 of this Stipulation is held, for any reason
whatsoever, to be unenforceable, invalid, or void by this Court
or any other tribunal having jurisdiction of this matter and the
parties hereto, Plaintiff automatically and immediately will re-
acquire all rights, claims, and defenses relinquished or affected
. pursuant to paragraphs 1, 2 and :3.
If any obligation of the
Plaintiff as set forth in paragraphs 2 or 3 of this Stipulation
is held, for any reason whatsoever, to be unenforceable, invalid,
or void by this Court or any other tribunal having jurisdiction
of this matter and the parties hereto, Defendant automatically
and immediately will reacquire all rights, claims, and defenses
relinquished or affected pursuant to paragraphs 1, 2 and 3 above;
and
4. Except as provided in paragraphs 3(a) and 3(f) above,
the City's and Plaintiff's respective remedies for violation of
any of the foregoing covenants are as follows:
(a) If Plaintiff violates any of the covenants set
forth in paragraphs 2(a), 2(b), 2(c), 2(d), 2(e), or 2(h) above,
the City, upon the filing of any affidavit of noncompliance with
this Court, shall be entitled to automatic entry by this Court of
an injunctive order pursuant to Rule 37 (a), Federal Rules of
Civil Procedure, compelling Plaintiff to comply with the covenant
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set forth in the applicable paragraph and awarding to the City
the reasonable legal fees, costs, and expenses incurred by it in
obtaining the order, without posting of a bond, proof of monetary
damage or an inadequate remedy at law, or compliance with any of
the other legal requirements of Rule 4.05(b)(4), Rules of the
United States District Court for the Middle District of Florida;
(b) If Plaintiff violates any of the covenants set
forth in paragraphs 2(f), 2(g), 2(i) or 2(j), the City, upon the
filing of an affidavit of noncompliance with this Court, shall be
entitled to automatic entry by this Court of an injunctive order
compelling Plaintiff to comply with the covenant set forth in the
applicable paragraph and awarding to the Ci ty the reasonable
legal fees, costs, and expenses incurred by it in obtaining the
order, without posting of a bond, proof of monetary damage or an
inadequa te remedy at law, 0 r compl i ance wi th any of the othe r
legal requirements of Rule 4.05(b)(4), Rules of the United states
District Court for the Middle District of Florida; and
(c) If any of the Defendants breach their covenants in
paragraphs 1, 2, or 3 above, Plaintiff, upon the filing of an af-
fidavit of noncompliance with this Court, shall be entitled to
automatic entry by this Court of an order granting an injunction
or compelling specific performance and awarding to Plaintiff the
reasonable legal fees, costs, and expenses incurred by him in
obtaining the order, without posting of a bond, proof of monetary
damage or an inadequate remedy at law, or compliance with any of
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the other legal requirements of Rule 4.05(b)(4), Rules of the
united states District Court for the Middle District of Florida.
DATED:
January 16 , 1988.
STATE OF FLORIDA
COUNTY OF PINELLAS
Sworn to and
January, 1988.
STATE OF FLORIDA
COUNTY OF PINELLAS
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RWA~FLOiIDA \
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iiX-dCity Manager /
subscribed before me on this _if dClY of
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Notary Public ~. 80..1.1:. ( f Rorida
Notlry ~ ~ute 0
Co mm i s s ion Ex pi res My uauniuion Expfti June \3, 1938
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Sworn to and subscribed before me on this
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o~aryPubii(, State of Fiorida
My CommiS$ion Expires July 22, ]'1S8
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Approved as to form
and correctn
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STATE OF FLORIDA
COUNTY OF PINELLAS
Swo rn to and subsc r ibed be fo re me on thi s
January, 1988.
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Notary{lPubl-ic (1 Notary Public, State of Florida
. My Commissj~n Expires July L.J., 19s.a
Co mm i s s ion Ex p 1 res ""-- i9!>d., rhru Tro~ lOIn' In......,. In<.
Attest:
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STATE OF FLORIDA
COUNTY OF PINELLAS
Sworn to and subscribed before me on this /9cL- day of
January, 1988. ~
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No ta ry ?,ubl\i_c t/ . 1''''UIJ l"Ublit, ~tate of Florida
. My Commimon Expi1e~ July 12, ]9&8
C ommi s s ion Exp 1 res _ ~~d.d Tluu Tro~ fain -In,urao<<, 1.<.
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LEO W. SCHRADE
Assistant City
P. O. Box 4728
Clearwater, Florida 33518
(813) 462-6760
ATTORNEY FOR DEFENDANT,
CITY OF CLEARWATER
,
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STATE OF FLORIDA
COUNTY OF PINELLAS
Sworn to and subscribed before me on this
January, 1988.
led day of
Commission
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PLAINTIFF
STATE OF FLORIDA
COUNTY OF PINELLAS
Sworn to and subscribed before me on this c2.:2/d day of
January, 1988.
/'lJ. Ch?:'~/77 CdL~? h~,,-c
Notary Publit _~
NOTARY PUBLiC STATE or FLOHI~A
. t<!Y CO~~ISSION (:<? ~AY 13.1966
Commission Explr~ND~RU G::mI.L INS. ~~.
JOY THO~ ~ ----
STATE OF FLORIDA
COUNTY OF PINELLAS
Sworn to and subscribed before me on this ila.ff'...(day of
January, 1988.
77J C?Z^"CC-.#~ 7:& A~t!/::gA..,.
Nota ry Pub 1 i ~ l..lT I.RY PUBLIC $TA TE 0F HO'::';'
~v COMMiSSION EXP. MAY 13,,9S8
Commission ExpiresoN~ED THU GEIi~RAL INS. ut;c.
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HOO
P. O. Box 33
Tampa, Florida 33601
(813) 229-3333
ATTORNEY FOR PLAINTIFF
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
Sworn to and subscribed before me on this
January, 1988.
/9'1//
day of
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Notary(}'ublic .
'. Notary Public. State Of Florida At Large
.. . My Commiulon Expires June 17, 1989
C omml S S 1 0 n Ex p 1 res Bonlloo By WECO In"''''''' CoGilIn, gf ~
(J/rv-d2;A~/ 2. O~
ANDREW B. ONUFER, DEFENDANT
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STATE OF FLORIDA
COUNTY OF PINELLAS
Sworn to and subscribed before
January, 1988.
me
on
this __/611 day of
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Notary Public
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DAVID CHRISTIANSEN, DEFENDANT
STATE OF FLORIDA
COUNTY OF PINELLAS
Sworn to and subscribed before me on this
January, 1988.
/8/1,
day of
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.. /j, 1ft "~ald.'/
ANTHONY P. GRANESE, ESQ.
1012 Drew/Street
Clearwater, Florida 34615
(813) 446-4121
ATTORNEY FOR DEFENDANTS,
ANDREW B. ONUFER and
DAVID CHRISTIANSEN
STATE OF FLORIDA
COUNTY OF PINELLAS
Sworn to and subscribed before me on this
January, 1988.
/:f',/-A day of
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Notary Public
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N;I'ary ?~~;~~, St~:~: cI ;';.:rida
My Comm:~~:::n E,:;:;c. i~CI;'. 24, 1991
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