3rd Amendment 05/16/2006 (Conch Contrada)
DANNY L. KOLHAGE
CLERK OF THE CIRCUIT COURT
DATE:
June 22, 2006
TO:
Suzanne Hutton
County Attorney
ATTN:
FROM:
Kathy Peters
Executive Assistant
Pamela G. Hanc~
Deputy Clerk
At the May 16, 2006, Board of County Commissioner's meeting the Board granted
approval and authorized execution of Second (Osborne) and Third (Conch Contrada) Amended
Settlement Agreements in Richard M. Osborne & Conch Contrada LC v. Monroe County & Joe
Paskalik, CA K 01-108.
Enclosed are two duplicate originals of the above-mentioned for your handling. Should
you have any questions please do not hesitate to contact this office.
cc: Finance
File'!
IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL
CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA
RICHARD M. OSBORNE, as Trustee;
and CONCH CONTRADA, L.C., a
Florida Limited Liability Company,
PlaintifflPetitioners,
Case No. CA-K-01-108
v.
MONROE COUNTY, a political
subdivision of the State of Florida;
and JOSEPH PASKALIK, in his official
capacity as Building Official,
DefendantlRespondents
I
THIRD AMENDED SETTLEMENT AGREEMENT AS TO CONCH CONTRADA. L.C
Plaintiff CONCH CONTRADA, L.C., a Florida Limited Liability Company ("Conch
Contrada"), and Defendants, MONROE COUNTY, a political subdivision of the State of Florida
("Monroe County"), and JOSEPH P ASKALIK, in his official capacity as Building Official
("Paskalik"), (collectively, the "Parties"), previously resolved their differences which gave rise to
the above-styled action, wherein the parties agreed to settle the matter between them upon the
terms and conditions recited in paragraphs 2, 3, and 5 in the Settlement Agreement dated July 17,
2002, hereinafter "Original Settlement Agreement," attached hereto as Exhibit "A". The
Settlement Agreement was previously amended to provide for a change in the conditional use and
to extend the time period for building permit application and construction of the approved
conditional use.
I. The parties agree to amend the (second) Amended Settlement Agreement as
follows:
a. Paragraph 5 is amended to now read:
Conch Contrada agrees to submit an application for Amended Conditional
Use Order that reflects the intended change in use, should Conch Contrada
decide to develop the subject property with an alternative use(s). Upon
approval of the Amended Conditional Use Order by the Planning Director,
and in accordance with the development orders referred to in Paragraph 2
of the Original Settlement Agreement, Monroe County agrees to process
promptly upon submittal the application for building permit by Conch
Contrada or its assigns for construction of one 7,500 square foot
restaurant, or as an alternative, a 7,500 square foot medium-intensity,
mixed use, retail and/or office/professional use facility in ROGO Year 15
(July 14, 2006 - July 13, 2007).
2. The parties further agreed that no provision in this agreement shall exempt Plaintiff
Conch Contrada LC from any requirements imposed by statute and/or ordinance to
connect to a central sewage system when one becomes "available" as that term is
defined by statute and/or ordinance.
3. Plaintiff Conch Contrada, in cooperation with Monroe County, will prepare and
submit to the Court pleadings or notice required to address the Amended
Settlement Agreement. Conch Contrada shall pay any costs incurred as a result of
filing this Second Amended Settlement Agreement and any associated pleadings or
notices with the exception that each party shall bear its own attorney's fees.
4. All parties acknowledge that the original agreement was entered into for the
purpose of settling pending litigation and that this Second Amended Settlement
Agreement does not constitute an admission or evidence that any actions of
Monroe County or its employees that Plaintiffs Complain of were unlawful,
unconstitutional or deprived Plaintiffs or any others of any rights or property.
5. All other terms ofthe Settlement Agreement dated July 17, 2002, and the (first)
Amended Settlement agreement which was approved by the Board on or about
May 21,2003, and the Second Amended Settlement Agreement which was
approved by the Board on or about January 19, 2005, especially as it pertains to
Conch Contrada, L.C., shall remain in full force and effect.
6. This Amended Agreement shall not be valid and binding upon the parties until
approved by the Court and incorporated into a Third Amended Final Judgment
entered by the Court in these proceedings.
7.
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Until this Third Amended Settlement Agreement has been approved b~ ~urt~
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pursuant to the preceding paragraph, the Original Settlement Agreeme~ ~ ~
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Judgment previously entered, and any subsequent approved amendm~l!I ;Q1'o;
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modifications shall remain in full force and effect.
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BOARD OF CO
OMMISSI0NERS
Charles McCoy, May
Monroe County
MONROE COUNTY BLDG. OFFICIAL
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EXHIBIT "A"
IN THE CIRCUIT COURT OF TIlE SIXTEENTH JUDICIAL
CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA
RICHARD M. OSBORNE, as Trustee;
and CONCH CONTRADA. L.e., a
Florida Limited Liability Company,
Plaintiffs! Petitioners,
Case No. CAK-01-108
v.
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MONROE COUNTY, a political
subdivision ohhe State of Florida;
and JOSEPH PASKALIK, in his official
capacity as Building Official,
Defendant! Respondents.
SETTLEMENT AGREEMENT
I'lainlifls RICHARD M. OSBORNE, as Trustee ("Osborne"), and CONCH
CONTRAOA. L.C., a Florida Limited Liability Company ("Conch Contrada"). and
Defendants, MONROE COUNTY, a political subdivision of the State of Florida
("Monroe County"), and JOSEPII PASKALlK, in his official capacity as Building
Otlicial ("Paskalik"), having amicably resolved their differences which gave risc to this
action, hereby ligrec 10 seule this matter between them upon the following terms and
condilions:
I. As to Oshorne, Monroe COWlty agrees: a) that a Major Conditional Use to
construct a 35.200 sq. ft. mini-storage warehouse has been approved, with conditions, by
Monroe County Planning Commission on January 27, 1997, under Resolution No. 1'3.97,
recorded at O. R. Book 1446, pages 2205 - 2207; b) that a variance with regard to off-
street parking, reducing the number of required parking spaces from 3.0 to 2.5 pcr 1,000
EXHIBIT
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sq. ft. of Hoor area for the proposed mini-storage warehouse was granted by the Monroe
County Planning Commission on January 17, 1997, under Resolution No. P2-97: and, e)
that both development orders are presently valid and in full force and effect.
2. As to Conch Contrada, L.C., Monroe County agrees: a) that a Minor
Conditional Use Development Order No. 5-99 to construct one 7,500 square toot
restaurant, to relocate an existing sewage treatment facility, and to locate a shared
driveway, was approved, with conditions, by the Planning Director of Monroe County on
^ugust 4, 2000, recorded in OR Book 1654, pages 1591-1595; and, b) that this
development order is presently valid and in full force and effect.
3.
Notwithstanding anything in any of the development orders referred to in
. .
paragraphs
or 2, above (and, specifically Condition No. I in Conditional Use
Development Order No. 5-99), or any other provision of the Comprehensive Plan or
Ordinances of Monroe County, no building pennit shall be denied to either Osborne or
Conch Contrada, L.e.. on the basis of Monroe County's regulations relating to non-
residential rate of growth or the adoption (or lack of adoption) of a nooresidential permit
allocation system or its equivalent, including, but not limited to, the regulations set forth
in Monroe County Comprehensive Plan Policies 101.3.1 through 101.3.5, and Monroe
County Ordinance No. 032-2001.
4. In accordance with the development orders referred to in paragraph I,
above, Monroe County agrees to process promptly upon submittal Osborne's application
for huilding permit for construction of a 35,200 sq. fl. mini-storage warehouse in ROGO
Year 12 (.July 14,2003, through July 13,20(4).
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5. In accordance with the development ordcr referrcd to in paragraph 2,
ahove, Monroe County agrees to process promptly upon submittal Conch Contrada's
application for building permit for construction of one 7,500 square foot restaurant, to
relocate an existing sewage treatment facility, and to locate a shared driveway, in ROGO
Year II (July 14,2002, through July 13,2003).
6. Exccpt as expressly provided herein, Osborne and Conch Contrada, L.C.,
Monroe County and Paskalik, waive any claim that cach asserted or was capable of
asserting in this cause and each shall bear its 0\',11 attorney's fees and costs of this
proceeding. In particular, and without limitation, Osborne and Conch Contrada, L.C., on
bchalf of themselves, their members, beneficiaries and any others claiming by or through
them, waive all claims for damages and compensation for denial of due process and
invcrsc condemnation (also referred to as regulatory or temporary taking) arising from
the County's actions and regulations prior to the date of this Settlemcnt Agreement.
7. The Plaintiffs Osborne and Conch Contrada, L.C. will prepare and submit
to the Court a "Notice of Voluntary Dismissal With Prejudicc" of their prcsent claims
against the Defendants.
8. All parties acknowledge that this agreement is entered into for the purpose
of settling pending litigation and does not constitute an admission or evidence that any
actions of Monroe County or its employees that Plaintiffs complain of were unlawful,
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unconstitutional or deprived PlaintitIs or any others of any rights 0
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(Print Name of Witness)
Charles' onny"
Monroe County
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Appr~ to legal sufficiency
By: ~
Mark S. Ulmer, Esq.
Special CoW1Sel to M:>nroe County
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<~Joseph Paskalik, as Building OtTIcial
For Monroe County
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