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SANDRA D AND JAMES E WINKELMANN KARLEEN F. DE BLAKER, CLERK OF COURT PMUAS COUNTV, FLORIDA ... .ro', ...., t,l,",' ,',' -) t.J:: ~ IQ..Q:2>~ This Instrument Prepared By' ry:, ,~~,n ,-' -.''' . Ct( .~\~,n ._.-._.._.__ _ .. .-;C:~'--- '''C5,-OO - R MOHIP & BURNETT, P.A. ::"'C>12S :J4~O'1l~ 215 Verne Street, Suite B I') " j"r ._____._.____~.__ ._.. Tampa, Florida 33606 ',c, _____.'.._ 5C174629 12-27-2001 14:13:15 51 DED-CITV OF Clli OOX)()() OOC STAMP - DR219 JTF 3 S609 .00 ~/:.'-~ ..--------- fJi:; --- PF'J +--r-tf4n Property Appraiser's TCTAL 1.(La....:W- v - ~ ' , ... . /1-2.. q-h-S..~!I/-:, '9llt(((. (f ,., ParcelIdentlflcation No.. I - < U \J 0 1-45 1 B2S OE:C-27-200 1 2: 20p PINE:LLRS co BK 11753 PO 1B1~ 11111111111111111111111111111111111111111111111111 TOT It: Cl(CI( AMT. TENImD: CfW: BY -is-- DEPUTY llERK $609 .00 S609.oo $.00 Grantee's Taxpayer Identification No.: WARRANTY DEED THIS INDENTURE, made this ;7 day of ....~c'...."'~(t2000, between Sandra D. Winkelmann and James E. Winkelmann, husband and wife, whose mailing address is 835 Lancaster Pike Quarryville, PA 17566-9737 (collectively, "Grantor") and the City of "clearwater, a Florida municipal corporation whose mailing address is 112 South Osceola 'Q-J Avenue, Clearwater, Florida 33756-5103 ("Grantee"). WITNESSETH, that said Grantor, for and in consideration of the sum of Ten Dollars ($10.00) in hand paid by the Grantee and other valuable considerations, the receipt whereof is acknowledged, hereby grants, bargains, sells and conveys to the said Grantee, forever, the following described land located in Pinellas County, Florida (the "Property"), to-wit: Lot 5, SPENCER HEIGHTS, according to the map or plat thereof as recorded in Plat Book 66, page 102, of the public records of Pinellas County, Florida. together with all tenements, herediments, and appurtenances thereto, subject to: (i) all existing easements, covenants, conditions, restrictions, or rights-of-way affecting the Property; (ii) any new easements, covenants, conditions, restrictions, or rights-of-way affecting the Property; (iii) all applicable zoning and land-use regulations affecting the Property; (iv) all survey matters affecting the Property; (v) all real estate taxes and other governmental assessments in any way affecting the Property, not yet due and payable; and (vi) any and all encumbrances and/or other matters of record. TO HA VE AND TO HOLD the Property with appurtenances, unto the said Grantee, its successors, heirs, personal representatives and assigns, forever. AND SAID GRANTOR does hereby fully warrant the title to the Property and will defend the same against the lawful claims of any person whomsoever. I ). (1/ (1) _u_, ~~ ~IN~LLRS COUNTY rLR Orr ,R~C ,8K 1175:3 ~C3 1E3 1:3 IN WITNESS WHEREOF, Grantor has executed this instrument the day and year above. SIGNED, SEALED, AND DELIVERED IN THE PRESENCE OF: ~- (signature of witness ) -;;:;4 ~ ~ ,Ie?" .-<#' (print of type name of witn~ss #1) t1X"~ t3~ (s{gnature of witness #2) }/'n ( ~ 'RrnW'l (print of type name of witness #2) - //J?~#f~4 (signature of witness '#1) 7nq #/ ~~/ne~ (print of type name of witne~ #1) ~~ (signature of witness #2) Vt'nc'- t3roWV\ (print of type name of witness #2) cd ~;;:J ~ ,I / .-; ~d1A (]. ~~~ Sandra D. Winkelmann 2 ...~' ~ .. .. ~IN~LLRS COUNTY rLR Orr,~~C.eK 11?53 ~~ 1814 STATE OF PENN~YL V ANIA COUNTY OF ~",y~~-? The foregoing instrument was acknowledged before me this 2- day of ..hi: ~.K~ 2000, by James E. Winkelmann, who P<1 is personally known to me or [ ] has produced as identification. Notarial Se,,: Richard H. Ww c,';'; ;"'n[,,\ Public Drumore TVIV '", , ". it;' County MyCcmm!ssl.r" "'" ,)&',29, 2004 _., _.,._k_ __.. ...~ Member. PennSV,V[,''Hi'',;,,;c;c)1ic.n 01 Notaries Notary Official's Seal: STATEOFPE~AN~ COUNTY OF ~ ~ , The foregoing instrument was acknowledged before me this 1 day of ~t?,p~4 2000, by Sandra D. Winkelmann, who ~ is personally known to me or [ ] has produced as identification. Notarial Seal . lichard H. Wenger. Notary:>ubhc ')rumore 1Wp., Ldncaster County ~commission Exp.res Jan. 29. 2004 Member, PennsYI~ania ASSOCiation ot Notanes ~ Print or Type Notary's N State of Pennsylvania Notary Official's Seal: N r~"-' 3 MUTUAL RELEASE AND SETTLEMENT AGREEMENT THIS MUTUAL RELEASE AND SETILEMENT AGREEMENT, is made this _ day of November, 2000, by the City of Clearwater, a Florida municipal corporation (the "City"), Richard J. Baier, individually ("Baier"), Sandra D. Winkelmann and James E. Winkelmann, individually (the "Winkelmanns"), and Clearwater Charter Yacht, Inc., a Florida corporation ("Clearwater Yacht"). Backl:round A. The Winkelmanns and Clearwater Yacht are plaintiffs in a lawsuit styled Sandra D. Winkelmann and James E. Winkelmann, and Cleanvater Charter Yacht, a Florida corporation, v. City of Cleanvater, a Florida municipality, and Richard J. Baier, individually (Case No. 98-7138-CI-ll) that was filed by them against the City on October 21, 1997 (the "Lawsuit"). The B . The Winkelmanns and Clearwater Yacht are sometimes referred to herein collectively as "Plaintiffs." C. Baier was added as a party defendant when the Winkelmanns and Clearwater Yacht filed their Third Amended Complaint on April 11 , 2000. D. The City and Baier are sometimes referred to herein collectively as "Defendants." E. The Winkelmanns own the real estate and improvements located at 601-603 Spencer A venue, Clearwater, Florida (the "Winkelmann Property"). F. Clearwater Yacht owns the real estate and improvements located at 601-603 Spencer A venue, Clearwater, Florida (the "Clearwater Yacht Property"). G . The Winkelmann Property and the Clearwater Yacht Property are sometimes referred to herein collectively as the "Properties." H. The Lawsuit pertains to the Plaintiffs' allegations that the City has taken actions which have rendered the Properties uninhabitable. I. Defendants and Plaintiffs desire to resolve all disputes between them, and mutually release each other from all claims, relating to the Lawsuit. J. Defendants and Plaintiffs have agreed that it is in their best interests to settle the various disputes between them relating to the Lawsuit. K. Defendants and Plaintiffs have arrived at a mutually acceptable settlement agreement. This mutual release and settlement agreement (the "Settlement Agreement") is being entered into in order to memorialize in writing the terms and conditions of that settlement agreement. L. Defendants and Plaintiffs are sometimes referred to herein collectively as the "Parties. " NOW THEREFORE, in consideration of the mutual covenants contained in this Settlement Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Defendants and Plaintiffs agree as follows: Mutual Release and Settlement Agreement Winkelmann et al. vs. City of Clearwater et al. November, 2000 Page 2 of 11 A2reement 1. Back2round. The Background described above IS true and correct and IS hereby incorporated into this Settlement Agreement. 2. Settlement Payment. The City hereby agrees to pay Plaintiffs, by money order, certified funds or official bank check, a settlement payment (the "Settlement Payment") equal to Three Hundred Thousand and NollOO Dollars ($300,000.00). The Settlement Payment shall be payable and delivered to "Mohip & Burnett, P.A., Trust Account." Provided that all of the terms and conditions of this Settlement Agreement have been met and/or satisfied, there shall be no restriction on Plaintiffs' counsel, Mohip & Burnett, P.A., in disbursing the Settlement Payment pursuant to Plaintiffs' instructions. 3. Conveyance of Title to the Properties. The Settlement Payment to the Plaintiffs is being made in exchange for the conveyance of title to the Properties from Plaintiffs to the City. The City is acquiring the Properties in order to undertake and complete a municipal public works project relating to improvements to its stormwater drainage system. Therefore, simultaneous with receipt by Plaintiffs of the Settlement Payment, and prior and as a precondition to disbursement of the Settlement Payment by Mohip & Burnett, P.A., Plaintiffs will convey title to the Properties to the City by general warranty deed. 4. No Admissions. Nothing in this Settlement Agreement shall operate, or be construed, as an indication, inference, presumption, admission, or as evidence relative to any issue of liability on the part of any party to this Settlement Agreement. Each party expressly denies any and all liability to the other parties to this Settlement Agreement. 5. Release. The Parties agree, to release each other as follows: (a) Release of the City and Baier by Plaintiffs. Plaintiffs and their heirs, executors, administrators, successors in interest and/or assigns, hereby fully release, settle and discharge any and all claims, demands, actions, agreements, damages, liabilities and/or obligations, at law and in equity, known or unknown, direct or derivative, whether arising by claim, counterclaim, or cross-claim, that relate in any way to the Lawsuit. This release by Plaintiffs pertains to the City and Baier. Notwithstanding this Settlement Agreement or any of the provisions set forth herein, Plaintiffs do not release (i) the City, its officers, directors and employees; or (ii) Baier, or any of their successors in interest and/or assigns, from any claims arising from a breach of this Settlement Agreement or from any claims arising after the execution of this Settlement Agreement. (b) Release of the Plaintiffs by the City and Baier. The City, its officers, directors and employees, and Baier, together with their successors in interest and/or assigns, hereby fully release, settle and discharge any and all claims, demands, actions, agreements, damages, liabilities and/or obligations of any nature whatsoever, at law and in equity, known or unknown, direct or derivative, whether arising by claim, counterclaim, or cross-claim, that relate in any way to the Lawsuit. Notwithstanding this Settlement Agreement or any of the provisions set forth herein, the City and Baier do not release Plaintiffs or their heirs, executors, administrators, successors in interest and/or assigns from any claims arising from a breach of this Settlement Agreement or from any claims arising after the execution of this Settlement Agreement. Mutual Release and Settlement Agreement Winkelmann et al. vs. City of Clearwater et al. November, 2000 Page 3 of 11 6. Assumption of Risk. Waiver and Estoppel. Defendants and Plaintiffs acknowledge and agree that the releases included in this Settlement Agreement are complete releases as to any and all claims herein. Defendants and Plaintiffs agree also that they have executed this Settlement Agreement as an accord and satisfaction, settlement and compromise of matters involving disputed issues of law and fact, and that they have knowingly, willingly and expressly assumed the risk that actual facts relevant to this dispute may be different from their understanding of the facts upon which their decision to enter into this Settlement Agreement is based. Defendants and Plaintiffs waive all rights relating to any misunderstanding with respect to the facts. Additionally, Defendants and Plaintiffs acknowledge, agree, represent, warrant and covenant that they have not been pressured, coerced, compelled, or otherwise forced into entering into this Settlement Agreement. 7. Dismissal. Within ten days from the Closing Date, Plaintiffs will dismiss the Lawsuit, with prejudice. 8. Closine Date. The City shall pay the Settlement Payment to Plaintiffs, and Plaintiffs shall convey title to the Properties to the City, on or before December 11, 2000, or such other date as is mutually agreed to by the Parties (the "Closing Date"). In no event shall the Closing Date be later than December 18, 2000. Except as otherwise expressly set forth herein, this Settlement Agreement shall become effective, and Defendants and Plaintiffs shall be bound hereby, only upon payment of the Settlement Payment by the City to Plaintiffs, and conveyance of title to the Properties by Plaintiffs to the City. 9. Closine Costs. The City shall pay any and all closing costs associated with conveyance of title to the Properties by Plaintiffs to the City. Such costs shall include, without limitation, all state documentary stamp taxes, all recording fees, and all charges and fees relating to title and survey. 10. Conveyance Document. The Properties shall be conveyed to the City by general deed, subject to: (i) all existing easements, covenants, conditions, restrictions, or rights-of-way affecting the Properties; (ii) any new easements, covenants, conditions, restrictions, or rights-of-way affecting the Properties; (iii) all applicable zoning and land- use regulations affecting the Properties; (iv) all survey matters affecting the Properties; (v) all real estate taxes and other governmental assessments in any way affecting the Properties, not yet due and payable; and (vi) any and all encumbrances and/or other matters of record not specifically objected to in writing by the City prior to the Closing Date. The Properties shall be conveyed "AS IS" with respect to the physical condition of the Properties. 11. Entire Understandine. This Settlement Agreement contains the entire understanding between the Parties with respect to the matters addressed herein. This Settlement Agreement may not be changed orally. This Settlement Agreement may only be changed in writing signed by the party against whom enforcement of any waiver, change, modification, extension, or discharge is sought. This Settlement Agreement supersedes, in all respects, all written or oral understandings and agreements previously existing betweenithe Parties in connection with the dispute relating to the Lawsuit. 12. Damaees. The Parties acknowledge that the performance of their respective obligations under this Settlement Agreement is essential to the consummation of the agreement between the Parties. Each party hereto further acknowledges that it is possible Mutual Release and Settlement Agreement Winkelmann et al. vs. City of Clearwater et al. November, 2000 Page 4 of 11 that neither party will have an adequate remedy at law if the other party fails to perform its obligations under this Settlement Agreement. In the event that either party fails to perform its obligations hereunder, each party shall have the right, in addition to any other rights or remedies it may have, to compel specific performance of this Settlement Agreement. 13. Expenses. Each of the Parties to this Settlement Agreement shall pay its own expenses in connection with arriving at and entering into this Settlement Agreement, including fees and expenses of its counsel. 14. Jurisdiction and Venue. The Parties agree that jurisdiction and venue for any action arising out of or related to this Settlement Agreement shall lie exclusively in Circuit or District Courts of Pinellas County, Florida. 15. Governin2 Law. This Settlement Agreement shall be performed exclusively in the State of Florida. The validity, construction, and enforcement of, and the remedies under, this Settlement Agreement shall be governed in accordance with the laws of the State of Florida. 16. Successors and Assi2ns. The rights and obligations of the Parties under this Settlement Agreement shall inure to the benefit of, and be binding and enforceable upon, the respective successors, assigns, and transferees of the Parties. 17. Authority. Each party hereto warrants and represents to the other parties that it has full and complete authority to enter into this Settlement Agreement, and that no further actions or approvals by such party are required as a precondition to entering into, or fulfilling all of the obligations, set forth herein. 18. Survivability of Representations. Warranties. Etc. Defendants and Plaintiffs covenant and agree that the representations, warranties, covenants, statements and agreements contained in this Settlement Agreement shall survive the Closing Date. 19. Attorneys' Fees. In the event of arbitration or litigation relating to this Settlement Agreement, the prevailing party shall be entitled to recover from the other party all reasonable costs and expenses of such arbitration or litigation, including reasonable attorneys' fees and costs of appeal. The term "attorneys' fees" shall include, but not be limited to, fees for collection, pretrial services, trials, appeals, bankruptcy, or other legal proceedings. 20. Mediation. In the event of any dispute arising under this Settlement Agreement, the Defendants and Plaintiffs agree that, as a precondition to initiating arbitration or litigation, the Parties will schedule and attend mediation. Each of the Parties to this Settlement Agreement will make a good-faith effort to resolve the dispute at such mediation. Each party must be represented at the mediation by a representative with authority to agree to, and enter into, a binding settlement agreement in connection with the dispute. The mediator will be a person or firm with mediation experience mutually agreed to by the Parties. The mediation will take place in either Pinellas or Hillsborough County, Florida, as determined by the agreement of the Parties, and at a time and place agreed to by the Parties. Each party shall pay its proportional share of the costs of any such mediation. The time period for accomplishing mediation will commence when one party makes written demand upon the other parties for mediation. The mediation will occur within twenty (20) days following the date of such demand or as soon thereafter as the Parties and the Mutual Release and Settlement Agreement Winkelmann et al. vs. City of Clearwater et al. November, 2000 Page 5 of 11 mediator can schedule such mediation. If the Parties cannot agree on a mediator within five (5) days after written demand for mediation, then within five (5) days thereafter the Plaintiffs and Defendants shall each designate a mediator, and the two (2) mediators so designated shall designate a third mediator. The third mediator so designated shall mediate the dispute. 21. Counterparts and Facsimiles. This Settlement Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original instrument, but all such counterparts together shall constitute one and the same instrument. A facsimile copy of this Settlement Agreement and any signatures hereon shall be considered for all purposes as an original. 22. Headings. Descriptive headings are for convenience only and shall not control or affect the meaning of construction of any provision of this Settlement Agreement. 23. Interpretation. Whenever the context hereof shall so require, the singular shall include the plural, the male gender shall include the female gender and neuter and vice versa. This Settlement Agreement and any related instruments shall not be construed more strictly against any party regardless of who was more responsible for its preparation, it being recognized that this Settlement Agreement and any related instruments are the product of extensive negotiations between the Parties hereto and that all parties have contributed substantially and materially to the final preparation of this Settlement Agreement and all related instruments. 24. No Waiver. The waiver by any party to this Settlement Agreement of a breach of any of the provisions herein shall not operate or be construed as a waiver of any subsequent breach. 25. Conditions Precedent to Settlement Agreement. Except as is expressly set forth in paragraph 26 below, this Settlement Agreement shall not be effective until it is properly executed by each party, the City has delivered the Settlement Payment to Mohip & Burnett, P.A., and Plaintiffs have conveyed title to the Properties to the City. 26. Specific Performance. In the event that Plaintiffs are ready and able to convey title to the Properties to the City on the Closing Date in accordance with the terms and conditions set forth this Settlement Agreement, and the City fails or refuses to pay the Settlement Payment to Mohip & Burnett, P.A., as required herein, then Plaintiffs shall be entitled to bypass the mediation requirement set forth above and seek specific performance in court immediately. Conversely, in the event that the City delivers the Settlement Payment to Mohip & Burnett, P.A., on the Closing Date in accordance with the terms and conditions set forth this Settlement Agreement, and the Winkelmanns and/or Clearwater Yacht fail or refuse to convey title to the Properties to the City, as required herein, then the City shall be entitled to bypass the mediation requirement set forth above and seek specific performance in court immediately. 27. Notices. Any notice or other communication given to any party hereto relating in any way to this Settlement Agreement shall be sufficient if in writing, and if hand- delivered, sent by FedEx or comparable overnight carrier, or sent by registered or certified mail, return receipt requested, to the intended party at the address set forth below, or at such other address as a party may designate in writing in accordance with the provisions of this paragraph. Mutual Release and Settlement Agreement Winkelmann et al. vs. City of Clearwater et al. November, 2000 Page 6 of 11 If to the City: Paul Richard Hull Assistant City Attorney City of Clearwater City Attorney's Office 112 South Osceola Avenue Clearwater, FL 33756-5103 If to Baier: Richard J. Baier, P.E. Director, Transportation & Environmental Services City of Alexandria 301 King Street City Hall Room4100 Alexandria, VA 22314 If to the Winkelmanns: Sandra D. and James E. Winkelmann 835 Lancaster Pike Quarryville, PA 17566-9737 If to Clearwater Yacht: Frank J. Moynahan President Clearwater Charter Yacht, Inc. 430 Larboard Way Island Estates Clearwater, FL 33767-2153 28. Binding Effect. This Settlement Agreement shall be binding upon the Parties hereto and their respective heirs, devisees, legal representatives, personal representatives, successors in interest and/or assigns. 29. Time of Essence. All times and dates in this Settlement Agreement shall be of the essence. 30. Severability. If any part of this Settlement Agreement is determined to be illegal or unenforceable, all other parts of this Settlement Agreement shall be given effect separately and shall not be affected. The undersigned being duly authorized to execute this instrument, have carefully read the foregoing Settlement Agreement, fully understand it, have received the extensive advice of counsel regarding this matter, and have knowingly and voluntarily entered into this Settlement Agreement intending to be legally bound hereby. Mutual Release and Settlement Agreement Winkelmann et al. vs. City of Clearwater et al. November, 2000 Page 7 of 11 IN WITNESS WHEREOF, the Parties have executed this Mutual Release and Settlement Agreement this day of November, 2000. (print of type name of wi ess # 1) ~~ !3~~ (sigrl'ature of witness #2) v,." ( .( 8r6Wo"\ (print of type name of witness #2) "THE WINKELMANNS" ~~O. L-0~ Sandra D. Winkelmann, individually pe~~",JI''' Date: l'b: 1.r 7, 2000 /? d' ;:c>-,~ <'. (print of type name of witn %~L3~ (signature of witness #2) 0'''' ( ~ 13J-ow,^ (print of type name of witness #2) "THE WINKELMANNS" STATEOFPENN~V~ COUNTY OF ..,c#?J/~ -? .Pe~~#Ik The foregoing instrument was acknowledged befqre me this ~ day of ~"'lIlbt,f, 2000, by James E. Winkelmann, who ~ is personally IsD9'wn to me or [ ] has produced ~ . entificati . /. No:al.a' Seal Richard H. Wengtl:, N~'lary Public Drumore Twp., Lancaster County (, ' ''''',."ission Expires Jan, 29 :)004 Memt;~, ~,~,,"''''ia Association ot Notaries Notary Official's Seal: I Mutual Release and Settlement Agreement Winkelmann et al. vs. City of Clearwater et al. November, 2000 Page 8 of 11 STATEOFPE~ANIAA' COUNTY OF ~/h - . ~ PeczPA!~t4'17 The foregoing instrument was acknowledged before me thIS day Of~JA il~er, 2000, by Sandra D. Winkelmann, who rt(f is person y kn~ to me or [ ] has produced / as id ntification Notarial Seal Richard I-i, Wenger, Notary Public Drumore i'"I, :'''caster County My Commlsslol l ,', ..l~n. 29, 2004 Member, PennsylVania ASscclat.'on ot Notaries Notary Official's Seal: I Mutual Release and Settlement Agreement Winkelmann et al. vs. City of Clearwater et al. November, 2000 Page 9 of 11 Clearwater Charter Yacht, a Florida corporation (signature of witness #1) By: Frank Moynahan As its: President (print of type name of witness #1) Date: November ,2000 (signature of witness #2) "CLEARWATER YACHT" (print of type name of witness #2) STATE OF FLORIDA COUNTY OF PINELLAS The foregoing instrument was acknowledged before me this _ day of November, 2000, by Frank Moynahan, as president and on behalf of the Clearwater Charter Yacht, Inc., a Florida corporation. He [ ] is personally known to me or [ ] has produced as identification. Notary Official's Seal: Notary Signature Print or Type Notary's Name State of Florida Mutual Release and Settlement Agreement Winkelmann et al. vs. City of Clearwater et al. November, 2000 Page 10 of 11 Richard J. Baier, individually (signature of witness #1) (print of type name of witness #1) Date: November ,2000 (signature of witness #2) (print of type name of witness #2) "BAIER" STATE OF VIRGINIA COUNTY OF The foregoing instrument was acknowledged before me this _ day of November, 2000, by Richard J. Baier, who [ ] is personally known to me or [ ] has produced as identification. Notary Official's Seal: Notary Signature Print or Type Notary's Name State of Virginia ~ Mutual Release and Settlement Agreement Winkelmann et al. vs. City of Clearwater et al. November, 2000 Page 11 of 11 WITNESSES: (signature of witness #1) (print of type name of witness #1) (signature of witness #2) (print of type name of witness #2) STATE OF FLORIDA COUNTY OF PINELLAS City of Clearwater, a Florida municipality By: (print or type name) As its: (print of type title) Date: November ,2000 "THE CITY" The foregoing instrument was acknowledged before me this _ day of November, 2000, by , as and on behalf of the City of Clearwater, a Florida municipality. He/She [ ] is personally known to me or [ ] has produced as identification. Notary Official's Seal: Notary Signature Print or Type Notary's Name State of Florida