Item T09M
C ounty of f Monroe
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BOARD OF COUNTY COMMISSIONERS
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Mayor George Neugent, District 2
The Florida. Key
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Mayor Pro Tern David Rice, District 4
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Danny L. Kolhage, District I
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
County Commission Meeting
November 14, 2017
Agenda Item Number: T.9
Agenda Item Summary #3539
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Peter Morris (305) 289 -2584
N/A
AGENDA ITEM WORDING: Approval of a settlement agreement in Circuit Court Case No. CA-
M -14 -165 regarding code case nos. CE09040149 and CE10070149 and property located at 69001
Overseas Highway, Long Key, Florida 33001.
ITEM BACKGROUND: The underlying code compliance case involved protracted litigation
between the tenants who were solely responsible for creating the violations, the owner /landlord
whose only role in the violations was the ownership of the property, and the County. The proposed
settlement agreement was reached for the owner /landlord's portion of the fines after court ordered
mediation. The balance of the outstanding fines can still be sought from the tenants /violators.
Under the proposed settlement, David E. DeWitt, sole director and president of the property owner
Zamindari Investments, Inc. ( "Zamindari" or "owner "), would pay the County a total of
$158,573.84, no later than December 14th, 2017, to fully settle this case. If he fails to pay the agreed
upon amount by that date, the fine amount will revert to its original amount ($1,370,931).
After the Special Magistrate's orders in CE09040149 and CE10070149 found the subject Long Key
property's tenant and sole occupant, Aqua Ranch, Inc. ( "Aqua Ranch "), and its corporate officers
Charles Barra and Kristin Kurtz, as having committed multiple violations of the Monroe County
Code, and finding Zamindari jointly- and - severally liable for Aqua Ranch's violations, owner
Zamindari filed an eviction action against tenant Aqua Ranch, after which Aqua Ranch declared
bankruptcy, staying the County's circuit court foreclosure and money judgment action against Aqua
Ranch, and staying Zamindari's action to evict Aqua Ranch from the property, to enter the property
and cure its violations.
As a result of the foregoing bankruptcy, eviction, and foreclosure and money judgment proceedings
in federal and state court, fines ran for approximately 1,064 days, resulting in two liens totaling
$1,370,931, against both Zamindari and Aqua Ranch. After Zamindari successfully evicted Aqua
Ranch, Zamindari cured all of the property's violations in June 2016. On October 11, 2016, the
County obtained a Final Money Judgment of $1,370,931 against tenant - violator Aqua Ranch, Inc.,
and Mr. Barra and Ms. Kurtz in their corporate capacities.
Because LI) 93% of the fines (or $1,274,965.83) occurred while Aqua Ranch was in exclusive
possession of the property, (2,) 7% of the fines (or $95,965.17) occurred while Zamindari was in
exclusive possession of the property, and �D that Zamindari expended over $105,494.41 in legal fees
and construction costs to (A,) evict Aqua Ranch from the property and (B,) cure the property's
numerous violations, the County Attorney's Office recommends accepting Mr. DeWitt's offer, on
behalf of Zamindari, to settle this matter for $158,573.84 (11.5% of total $1,370,931 fine). Because
this amount is below the 25% threshold that the Board has authorized the County Attorney to settle
fines without seeking formal approval, this item is being presented to the BOCC for its
consideration.
PREVIOUS RELEVANT BOCC ACTION:
On March 14, 2014, the BOCC approved to initiate litigation.
CONTRACT /AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Zamindari Settlement
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
REVIEWED BY:
Peter Morris
Bob Shillinger
Kathy Peters
Board of County Commissioners
Completed
Completed
Completed
Pending
10/30/2017 2:37 PM
10/31/2017 10:44 AM
10/31/2017 10:45 AM
11/14/2017 9:00 AM
IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT OF THE
STATE OF FLORIDA, IN AND FOR MONROE COUNTY
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA, a
political subdivision of the State of Florida,
Plaintiff,
Case No. CA -M -14 -165
Hon. Timothy J. Koenig
L.T. Case Numbers CE09040149 &
CE10070149
V.
ZAMINDARI INVESTMENTS, INC.;
DAVID E. DeWITT, as officer for Zamindari
Investments, Inc.; DALE STRINGER, as officer
for Zamindari Investments, Inc.; AQUA RANCH,
INC.; CHARLES FRANK BARRA, as officer for
Aqua Ranch, Inc.; and, KRISTIN KURTZ, as
officer for Aqua Ranch, Inc.,
Defendants.
STIPULATION OF SETTLEMENT
The Plaintiff Monroe County Board of County Commissioners (hereinafter "the County ")
and the Defendants Zamindari Investments, Inc., and David E. DeWitt as officer of Zamindari
Investments, Inc. (Zamindari and DeWitt hereinafter referred to as "the Settlement Defendants "),
hereby agree to settle the Circuit Court case of Monroe County v. Aqua Ranch, Inc., et al.,
Circuit Court Case No. CA -M -14 -165, exclusively as against Zamindari Investments, Inc. and
David E. DeWitt as officer of Zamindari Investments, Inc., and not as against Aqua Ranch, Inc.,
and not as against Charles Barra as officer Aqua Ranch, Inc., and not as against Kristin Kurtz as
officer of Aqua Ranch, Inc. (these latter three parties of which shall hereafter be referred to as
"the non - settlement defendants "), as follows:
1. WHEREAS, the Settlement Defendants took title to the property on or about July 3,
2000, pursuant to that certain Warranty Deed recorded at Book 1641, Page 205, of the
Official Records of Monroe County.
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2. WHEREAS, the County initiated this litigation, bearing Circuit Court Case No. CA -M-
14 -165, to enforce unpaid code compliance liens, in Code Compliance Case Nos.
CE09040149 and CE 10070149, against the Defendants and their property located within
Monroe County, legally described as:
A portion of Government Lot 1, in Section 34, Township 64 South, Range 35 East and of
Government Lot 1 in Section 33, Township 64 South, Range 35 East on Long Key, in
Monroe County, Florida, and a portion of Government Lot 1 in Section 34, Township 64
South, Range 35 East on Long Key, Monroe County, Florida, being more particularly
described as:
From the intersection of the northwesterly right -of -way line of State Road No. 5 (U.S.
Highway 1) with the west line of said Government Lot 1, Section 33, Township 64 South,
Range 35 East, thence proceed northeasterly along said northwesterly right -of -way line,
1716.87 feet to the Point of Beginning of the parcel hereinafter described; thence
continue northeasterly along said northwesterly right -of -way line 525 feet; thence
proceed northwesterly at right angles, 825 feet more or less to the mean high tide line of
the Bay of Florida; thence meander said mean high tide line in a westerly direction, 575
feet more or less to a point where said mean high tide line is intersected by a line which
extends northwesterly right -of -way line, from the Point of Beginning; thence proceed
southeasterly along said line, 650 feet more or less to the Point of Beginning.
From the intersection of the northwesterly right -of -way line of State Road No. 5 (U.S.
Highway 1) with the west line of said Government Lot 1, Section 33, Township 64 South,
Range 35 East, thence proceed northeasterly along said northwesterly right -of -way line,
2341.87 feet to the Point of Beginning of the parcel hereinafter described; thence
continue northeasterly along said northwesterly right -of -way line 975 feet; thence
proceed northwesterly at right angles, 655 feet more or less to the mean high tide line of
the Bay of Florida; thence meander said mean high tide line in a westerly direction, 1135
feet more or less to a point where said mean high tide line is intersected by a line which
extends northwesterly at right angles to said northwesterly right -of -way line, from the
Point of Beginning; thence proceed southeasterly along said line, 825 feet more or less to
the Point of Beginning.
Also known as 69001 Overseas Highway, Long Key, Florida 33001, and real property
having Real Estate Number(s) 00098530- 000200 and 00098530- 000700 (hereinafter "the
property ").
3. WHEREAS, the liens imposed secured collective daily fines of $350.00 per day, for two
violations, fines of which commenced on September 1, 2009, secured collective daily
fines of $2,000 per day, for eight violations, fines of which commenced on January 13,
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2011, and continued until the property was brought into compliance on or about June 20,
2016, and further secured the County's administrative and legal costs in the above - styled
code compliance cases. Said liens were recorded W on August 4, 2009, at Book 2425,
Page 1694, and at Book 2663, Page 856, of the Official Records of Monroe County, and
on February 8, 2011, at Book 2503, Page 1774, of the Official Records of Monroe
County.
4. WHEREAS, the Settlement Defendants and the non - settlement defendants entered into a
commercial lease of the subject property with a term of June 20, 2009, to November 1,
2014.
5. WHEREAS, at all times relevant, the non - settlement defendants were the tenants and
exclusive occupants of the property and directly caused all of the code compliance
violations in this action to occur.
6. WHEREAS, following the County's commencement of this action, the Settlement
Defendants filed against the non - settlement defendants a Notice to Vacate the subject
property on or about January 31, 2014, and initiated an eviction action against the non-
settlement defendants on or about March 26, 2014.
7. WHEREAS, on July 9, 2014, non - settlement defendant Charles Barra filed a Suggestion
stion
of Bankruptcy in the United States Bankruptcy Court for the Southern District of Florida,
after which this action and the Settlement Defendants' eviction action were stayed by
virtue of the federal bankruptcy laws' automatic stay provision(s).
8. WHEREAS, Judge A. Jay Cristol of the United States Bankruptcy Court for the
Southern District of Florida entered an Order dismissing non - settlement defendant
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Charles Barra's Chapter 13 bankruptcy case on or about February 3, 2015, after which
said automatic bankruptcy stay was vacated.
9. WHEREAS, the Settlement Defendants thereafter obtained an Order Directing
Execution on Writ of Possession of the subject property on or about March 12, 2015, and
after re- possessing the property, proceeded to correct the numerous violations never
cured by the non - settlement defendants, and corrected said violations on or about June
20, 2016.
10. WHEREAS, the County prevailed on its Motion for Summary Judgment against this
action's defendants not parties to this settlement, Aqua Ranch, Inc., Charles Barra as
officer of Aqua Ranch, Inc., and Kristin Kurtz as officer of Aqua Ranch, Inc. (these three
specifically identified latter parties hereafter referred to as "the non - settlement
defendants "), and obtained a Final Money Judgment of Code Enforcement Lien for the
full amount of the above - identified liens against said non - settlement defendants on
October 11, 2016, which was recorded (1) on October 18, 2016, at Document Number
2095741, Book 2820, Page 1816, of the Official Records of Monroe County, (2) on
December 15, 2016, at Book 30347, Pages 2810 -2815, of the Official Records of Miami -
Dade County, (3) on November 23, 2016, at Instrument Number 114060204 of the
Official Records of Broward County, (4) on December 14, 2016, at Book 28766, Pages
1983 -1988, of the Official Records of Palm Beach County, and JQ on April 4, 2017, as a
Florida Department of State - Division of Corporations Judgment Lien Certificate bearing
assigned file number J 17000186512.
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11. WHEREAS, the County and the Settlement Defendants, having proceeded successfully
through court- ordered mediation, and desire to settle and compromise and hereby
stipulate and agree to the following:
NOW, THEREFORE, for good and valuable consideration, the adequacy of which is
hereby expressly acknowledged and attested to by the undersigned parties, the County and the
Settlement Defendants hereby agree as follows:
Section 1- Recitals. The foregoing recitals are true and correct and are hereby incorporated
as if fully set forth herein.
Section 2 - Compromise and Settlement. The parties have entered into this agreement
knowingly, freely, and voluntarily, having determined that they have adequate information upon
which to make informed decisions and having decided that it is in their best interests to amicably
resolve this action.
A. Neither party is under coercion or duress. Neither has been forced into this
agreement or threatened in any way.
B. Neither party knows of any fact or circumstance, which would cause this
agreement to be void or unenforceable.
C. The County's liens against the property (including the County's costs), as of
November 1, 2017, are $1,370,931; the Settlement Defendant(s) admit, agree, and
attest that they are jointly- and - severally liable for the full amount of said liens.
D. The Settlement Defendants forever waive, and release, remise, and discharge the
County from, whether brought or issued under state or federal law, any and all
accountings, actions, appeals, causes -of- action, claims, contracts, compensations,
controversies, costs, counts, damages, debts, defenses, demands, interest
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(including pre judgment and post judgment interest), judgments, liability,
proceedings, reckonings, suits, attorney's fees, expenses (including, but not
limited to, administrative, investigative, and/or expert expenses), and orders in
law or in equity, of every 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 16th Judicial Circuit in and for Monroe
County, Florida, styled Monroe County Board of County Commissioners v. Aqua
Ranch, Inc., et al., Case No. CA -M -14 -165, or in any way arising out of, in
connection with, related to, or collateral to Code Compliance Case Nos.
CE09040149 and CE 10070149.
E. The Settlement Defendants warrant that they have not assigned, sold, or
transferred any liability or action, agreement, cause -of- action, claim, contract(s),
controversy(ies), costs, damage(s), expense(s), promise(s), attorney's fees,
administrative expenses, judgment(s), and/or order(s), in law or in equity, which
the Settlement Defendant(s) had, have, or may have, against the County arising
out of, in connection with, related to, or in any manner collateral to the subjects of
this Settlement Agreement and its underlying administrative and circuit court
litigation.
F. It is agreed and understood that this Settlement Agreement shall be and is forever
binding upon the County and the Settlement Defendants, including the latter
parties' assigns, beneficiaries, heirs, and /or successors -in -title and/or successors -
in- interest.
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G. The parties agree to that the Settlement Defendants shall fully pay an amended
fine $158,573.84, within thirty (30) days of the County's written approval of this
agreement, in the form of the Mayor's executed approval of this Settlement
Agreement
H. Except as may otherwise be specifically stated herein, this is the entire agreement
between the parties to this date. There are no promises or understandings except
as set out herein. Any prior understandings not memorialized in this agreement
are repudiated.
I. After the Settlement Defendants have fully paid the amended fine due as set forth
in foregoing Paragraph G. ($158,573.84), the County agrees to W Issue to the
Settlement Defendant(s) a Release regarding the code compliance liens subject to
this circuit court action, said Release of which shall be exclusive to the Settlement
Defendants Zamindari Investments, Inc.. and David E. DeWitt as officer of
Zamindari Investments, Inc., but which shall in no way affect or otherwise have
any legal effect upon the active, live, enforceable, and executable Final Money
Judgment of Code Enforcement Lien that the County has obtained against the
non - settlement defendants Aqua Ranch, Inc., Charles Barra as officer of Aqua
Ranch, Inc., and Kristin Kurtz as officer of Aqua Ranch, Inc.; and (2) Submit an
Agreed Order of Voluntary Dismissal with Prejudice voluntarily dismissing this
action against the Settlement Defendants and authorizing judicial closure of said
case as against the Settlement Defendants.
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J. Neither the property, nor any portion thereof, or any interest in the property, may
be sold, transferred, or otherwise alienated or encumbered unless and until the
Settlement Defendant(s) have paid the settlement amount of $158,573.84 in full.
Section 3 - Continuing Jurisdiction. The parties shall jointly request that the Circuit
Court shall retain jurisdiction of this action for the sole purpose of enforcing the terms of this
Settlement Agreement
Section 4 - Governing Law and Venue. This Settlement Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of Florida, and venue
for all claims, controversies, or disputes relating to this Settlement Agreement shall remain in the
Circuit Court of the 16th Judicial Circuit in and for Monroe County, Florida.
Section 5 - Construction of Agreement. This Settlement Agreement shall be construed
against the party whom first executes this Agreement, being it that under this Agreement the first
party to execute this Agreement shall be interpreted to mean that said party in fact and in law
constitutes the drafter and the preparer of this Agreement.
Section 6 - Default. In the event the Settlement Defendants fail to timely pay the full
amount of $158,573.84, within thirty (30) days of the County's written approval of this
agreement (as set forth above), the County shall give the Settlement Defendants five (5) days
within which to cure such breach of this Settlement Agreement by making the scheduled
remaining payment due plus $1,000 for each day payment is late, after which the County may
seek immediate enforcement of this Settlement Agreement by the Circuit Court. If such default is
not cured after said five (5) day period, the fine amount shall revert to the full amount of
$1,370,931. In the event the County is required to initiate legal proceedings to enforce the terms
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of this Settlement Agreement if the County prevails, the County shall be entitled to, in addition,
an award of reasonable attorneys' fees and costs of suit.
Section 7 - Warranty of Authority to Execute. The signatories represent and warrant
that they have full authority to execute this Settlement Agreement on behalf of and to bind their
respective parties.
Section 8 - Agreement to Cooperate. The parties will cooperate in taking all necessary
corporate and organizational action necessary to effectuate this Agreement.
Section 9 - Captions and Paragraph Headings Captions and paragraph headings,
where used herein, are inserted for convenience only and are not intended to descriptively limit
the scope and intent of the particular paragraph or text to which they refer.
Section 10 - Inconsistency, Partial Invalidity, Severability, and Survival of
Provisions If any condition, provision, reservation, restriction, right, or term of this Settlement
Agreement, or any portion(s) thereof, is /are held to be invalid or unenforceable by any
administrative hearing officer or by a court of competent jurisdiction, the invalidity or
unenforceability of such condition, provision, reservation, restriction, right, or term, or any
portion(s) thereof, shall neither limit nor impair the operation, enforceability, or validity of any
other condition, provision, reservation, restriction, right, term, or any remaining portion(s)
thereof. All such other conditions, provisions, reservations. restrictions, rights, terms, and
remaining portion(s) thereof shall continue unimpaired in full force and effect.
Section 11 - Condition Precedent to County Approval. The Settlement Defendants
understand and agree that the County shall not be understood to have, or be otherwise treated as.
having approved or ratified this Agreement until this Agreement has been submitted for
consideration and approved by the Board of County Commissioners (hereinafter "BOCC ") as a
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duly- noticed Monroe County BOCC meeting agenda item. If not so approved, then this
Agreement shall be considered immediately null and void.
Section 12 - Integration and Effective Date. This Settlement Agreement constitutes the
entire Settlement Agreement and any representation or understanding of any kind preceding the
date of the County's written execution of this Agreement is not binding on either of the
undersigned parties except to the extent that it has been incorporated into this Settlement
Agreement.
Section 13 - Non - Reliance by Third - Parties No person(s) or entity(ies) shall be
entitled to rely upon the conditions, provisions, or terms of this Settlement Agreement to enforce
or to attempt to enforce any third -party claim(s) or entitlement(s) to or benefit(s) from any
conditions, provisions, or terms hereunder, as to Code Compliance Case Nos. CE09040149,
CE 10070149, Circuit Court Case No. CA -M -14 -165, as precedent to their own Code
Compliance Case(s) and /or Circuit Court case(s), or otherwise.
PASSED AND ADOPTED BY THE BOARD OF COUNTY
COMMISSIONERS of Monroe County, Florida, at a regular meeting held on the
14` of November, 2017.
Mayor George Neugent
Mayor Pro Tem David Rice
Commissioner Heather Carruthers
Commissioner Danny Kolhage
Commissioner Sylvia Murphy
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,
FLORIDA:
:•
Mayor George Neugent
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM
r
PETER MORRIS
ASSISTANT COUN ATTORNEY
Date:
(SEAL)
ATTEST: KEVIN MADOK, CLERK
DEPUTY CLERK
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WITNESSESS TO ALL:
Witness No. 1 (Print Name)
Witness No. 1 (Signature)
Witness No. 2 (Print Name)
Witness No. 2 (Signature)
STATE OF
COUNTY OF
PASSED AND APPROVED BY
ZAMINDARI INVESTMENTS, INC.:
David E. DeWitt (Signature)
The foregoing Stipukition of Setticni, nt, was acknowledged and attested before me this
day of , 2017, by David E. DeWitt who is /are personally known to me or
produced as proof of identification and did take an oath.
Notary Public (Print Name)
Notary Public Seal
Notary Public (Signature)
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