Item O6C oun t y of Monr
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BOARD OF COUNTY COMMISSIONERS
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Mayor David Rice, District 4
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Mayor Pro Tern Sylvia J. Murphy, District 5
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Danny L. Kolhage, District 1
George Neugent, District 2
Heather Carruthers, District 3
County Commission Meeting
December 13, 2017
Agenda Item Number: 0.6
Agenda Item Summary #3671
BULK ITEM: Yes DEPARTMENT: Project Management / Facilities
TIME APPROXIMATE: STAFF CONTACT: Patricia Eables (305) 292 -3477
N/A
AGENDA ITEM WORDING: Approval of an agreement with Tropical Bay Property Owners
Association, Inc. for payment of annual fees of $125 per lot for maintenance costs related to County
owned lots in the subdivision.
ITEM BACKGROUND: As part of the County's density reduction initiative and conservation
efforts, the County purchased seven (7) lots in the Tropical Bay Subdivision from various owners
and anticipates the purchase of other lots in the future. The Tropical Bay Property Owners'
Association, Inc. maintains vacant lots, does mangrove maintenance, and other vegetative /grounds
and canal banks upkeep and its homeowner members pay association fees. The County is exempt
from becoming a member of the Tropical Bay POA pursuant to Article VII, Section 10 of the Florida
Constitution. The County wants to be a "good neighbor" and have its lots maintained and has agreed
to pay certain associated costs for the maintenance and upkeep of all County -owned lots. The
County has agreed to pay the Tropical Bay POA an annual fee of $125 per lot for these services and
any other related special assessments for the seven (7) lots currently owned and any subsequently
purchased lots.
PREVIOUS RELEVANT BOCC ACTION:
April 12, 2017 BOCC granted approval and authorized execution of Contracts for the purchase of
two (2) lots identified as Block 1, Lot 7 and Block 2, Lot 3 in the Tropical Bay
Second Addition.
May 17, 2017 BOCC granted approval and authorized execution of Contracts for the purchase of
five (5) lots identified as Block 1, Lot 2, Tropical Bay Second Addition and Block
9, Lot 2, Block 10, Lot 8, Block 11, Lot 10 and Block 12, Lot 1, all in the
Tropical Bay Third Addition.
June 15, 2017 BOCC purchased Block 2, Lot 3, Tropical Bay Second addition from Maui
Enterprises, Inc.
June 22, 2017 BOCC purchased Block 1, Lot 7, Tropical Bay Second Addition from Robert
Hook and Teresa Hook.
June 30, 2017 BOCC purchased Block 11, Lot 10, Tropical Bay Third Addition from Richard J.
Johnson.
June 30, 2017 BOCC purchased Block 12, Lot 1, Tropical Bay Third Addition from Richard J.
Johnson.
July 7, 2017 BOCC purchased Block 9, Lot 2, Tropical Bay Third Addition from John Parker.
July 10, 2017 BOCC purchased Block 10, Lot 8, Tropical Bay Third Addition, from Bryan L.
Arndt and Lisa K. Arndt.
July 11, 2017 BOCC purchased Block 1, Lot 2, Tropical Bay Second Addition from Joseph E.
Gleason.
Oct. 18, 2017 BOCC granted approval and authorized execution of a Contract for the purchase
from Bowie, et al. of one lot identified as Block 6, Lot 1, Tropical Bay Third
Addition. (The purchase of this property has not been closed yet.)
CONTRACT /AGREEMENT CHANGES:
New Agreement
STAFF RECOMMENDATION: Approval
DOCUMENTATION:
Tropical Bay Agreement (executed -legal stamped)
FINANCIAL IMPACT:
Effective Date: December 13, 2017
Expiration Date: Continues until lots are sold or transferred
Total Dollar Value of Contract: $875.00 annually ($125 per lot — 7 lots)
Total Cost to County: $875.00 annually
Current Year Portion: $875.00
Budgeted: Yes
Source of Funds: Ad Valorem
CPI: No
Indirect Costs: N/A
Estimated Ongoing Costs Not Included in above dollar amounts: N/A
Revenue Producing: No If yes, amount:
Grant: No
County Match: No
Insurance Required: Properties will be covered under the County general liability policy.
Additional Details: County currently owns seven (7) lots and will pay $125 per lot annually
for maintenance costs. Another lot was approved for purchase on October 18, 2017, but the
closing has not occurred yet.
Yes
12/13/17 001 -20501 • FACILITIES MAINTENANCE $875.00
Annual fees of $125 per County owned lot
REVIEWED BY:
Bob Shillinger
Completed
11/28/2017 3:05 PM
Kevin Wilson
Completed
11/28/2017 3:56 PM
William DeSantis
Completed
11/28/2017 4:33 PM
Patricia Eables
Completed
11/28/2017 4:52 PM
Budget and Finance
Completed
11/28/2017 4:58 PM
Maria Slavik
Completed
11/28/2017 5:11 PM
Kathy Peters
Completed
11/28/2017 5:52 PM
Board of County Commissioners
Pending
12/13/2017 9:00 AM
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AGREEMENT
This AGREEMENT is made and entered into this 13th day of December, 2017, by and
between MONROE COUNTY, FLORIDA, a political subdivision of the State of Florida,
hereinafter "COUNTY," and TROPICAL BAY PROPERTY OWNERS ASSOCIATION,
INC., a Florida not for profit corporation, hereinafter "TROPICAL BAY" or "TROPICAL BAY
POA," for upkeep and maintenance fees of certain lots in the Tropical Bay Subdivision identified
herein.
WITNESSETH:
WHEREAS, Tropical Bay Subdivision in Big Pine Key, Florida, is a duly recorded
subdivision as recorded in Plat Book 4, Page 102 [First Addition]; Plat Book 5, Page 73 [Second
Addition]; and Plat Book 5, Page 81 [Third Addition] of the Public Records of Monroe County,
Florida; and
WHEREAS, County, as part of its density reduction initiative and conservation efforts,
is purchasing identified properties in Monroe County to protect property rights, to reduce
density, and to reduce the County's potential liability for takings suits; and
WHEREAS, County has identified certain lots located in the Tropical Bay Subdivision
which qualify for this purpose and has initiated the purchase of seven such lots and anticipates
the potential purchase of additional lots in the future; and
WHEREAS, the Board of County Commissioners at its April 12, 2017, meeting
approved the purchase of two (2) lots identified as 30360 Harding Road, Big Pine Key, Florida,
and Block 1, Lot 7, Tropical Bay Second Addition, Big Pine Key, Florida. At its May 17, 2017,
meeting, the Board approved the purchase of five (5) lots identified as Block 1, Lot 2, Tropical
Bay Second Addition; Block 9, Lot 2, Tropical Bay Third Addition; Block 14, Lot S, Tropical
Bay Third Addition; Block 11, Lot 10, Tropical Bay Third Addition and Block 12, Lot 1,
Tropical Bay Third Addition, all in Big Pine Key, Florida; and
WHEREAS, property owners of the Tropical Bay Subdivision, First Addition, Second
Addition and Third Addition, formed a property owners association and incorporated as the
Tropical Bay Property Owners Association, Inc. on May 25, 1971; and
WHEREAS, Tropical Bay recorded an Amended Deed Restriction for Tropical Bay
Subdivision, First Addition, Second Addition, and Third Addition, in the Official Records of
Monroe County, Florida, in Book 1454 at Page 1 on June 26, 1997, which imposes certain
restrictions upon each and every lot, parcel, or part of said land, and said Declaration constitutes
covenants to run with the land; and
WHEREAS, all property owners within the Tropical Bay Subdivision are all members of
the Tropical Bay POA; and
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WHEREAS, the Amended Reed Restriction sets forth certain use restrictions,
membership and association voting rights, annual and special assessments and enforcement
rights for the benefit of the Association and its members;
WHEREAS, County, however, is exempt from becoming a member of the Tropical Bay
POA, pursuant to Article VII, Section 10 of the Florida Constitution, and is also immune from
any restrictive covenants; and
WHEREAS, County wants to properly maintain its lots and provide for mowing of the
vacant lots, mangrove maintenance, and any and all other vegetative or grounds or canal banks
upkeep and maintenance even though it will not be a member of the Tropical Bay POA; and
WHEREAS, while the County will not be a member of the Tropical Bay POA, it is the
intention of the parties hereto that the County shall have any and all other rights and benefits
conveyed to any other property owner as a member of the Tropical Bay POA, including use of
any shared common area; and
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein and for other good and valuable consideration, the COUNTY and TROPICAL
BAY agree as follows:
1. PURPOSE, The purpose of this Agreement is to establish the County's intent to
participate in the services provided by the Tropical Bay POA for the mowing and maintenance of
its vacant lots, mangroves, and canal banks, and to authorize payment of any costs incurred by
the Tropical Bay POA in providing such services.
2. PREMISES. On June 15, 2017, County purchased from Maui Enterprises, Inc.,
a Florida corporation, for density reduction purposes that certain lot identified as Block 2, Lot 3,
Tropical Bay, Second Addition (PB 5 -73) with Parcel Identification Number 00313300- 000000,
known as 30360 Harding Road, Big Pine Key, Florida 33043 (hereinafter "Lot 3 "). On June 22,
2017, County purchased from Robert Allen Hook and Teresa Mosbaugh Hook, for density
reduction purposes that certain lot identified as Block 1, Lot 7, Tropical Bay, Second Addition
(P13 5 -73), with Parcel Identification number 00313240- 40000x, known as vacant land, Prince
Road, Big Pine Key, Florida 33043, (hereinafter "Lot 7 ").
On June 30, 2017, County purchased from Richard J. Johnson, for density reduction
purposes that certain lot identified as Block 11, Lot 10, Tropical Bay, Third Addition (PB5 -81),
with Parcel Identification number 00314220 - 000000, known as vacant land, Hawk Lane, Big
Pine Key, Florida 33443, (hereinafter "Lot 10 "). On June 30, 2017, County purchased from
Richard J. Johnson, for density reduction purposes that certain lot identified as Block 12, Lot 1,
Tropical Bay, Third Addition (PB5-81), with Parcel Identification number 00314250 - 00000,
known as vacant land, Egret Lane, Big Pine Key, Florida 33043, (hereinafter "Lot 1 ").
On July 7, 2017, County purchased from John Parker, for density reduction purposes that
certain lot identified as Block 9, Lot 2, Tropical Bay, Third Addition (PB5-81), with Parcel
Identification number 00313960 - 000000, known as vacant land, Warbler Lane, Big Pine Key,
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Florida 33043, (hereinafter "Lot 213' Addn. "). On July 10, 2017, County purchased from Bryan
L. Arndt and Lisa K. Arndt, for density reduction purposes that certain lot identified as Block 10,
Lot 8, Tropical Bay, Third Addition (PB5 -81), with Parcel Identification number 00314120-
000000, known as vacant land, Eagle Lane, Big Pine Key, Florida 33043, (hereinafter "Lot 8 ").
On July 11, 2017, County purchased from Joseph E. Gleason, for density reduction purposes that
certain lot identified as Block 1, Lot 2, Tropical Bay, Second Addition (PB5-73), with Parcel
Identification number 00313190-000000, known as vacant land, Prince Road, Big Pine Key,
Florida 33043, (hereinafter "Lot 212 " Addn. ").
3. TERM OF AGREEMENT. This Agreement shall commence on December I3,
2017, and any rights or obligations associated with Lots 3, 7, 10, 1, 2/3 Addn., 8, and 212
Addn. identified herein and currently owned by the County and any other lots subsequently
purchased by the County shall terminate upon the sale or transfer by the County of any herein
identified lots or those subsequently purchased, unless terminated earlier under paragraph S of
this Agreement.
4. FEES. In return for having Tropical Bay POA include Lots 3, 7, 10, 1, 213`
Addn., 8, and 212" Addn. currently owned by the County and any subsequently purchased lots in
its yard, mangroves, canal banks, and vegetative maintenance program, County shall make an
annual payments of One Hundred Twenty -five and 001100 ($125.04) Dollars per lot to the
Tropical Bay POA since the County will not be a member of the Association for the upkeep of
such lots. The initial payment for the lot maintenance fees shall be due and payable upon
receipt of a notice from the Tropical Bay POA identifying each lot. Payment thereafter shall be
made on or before the 3 l st day of December in each succeeding year as long as the County still
owns each lot. The notice for maintenance fees shall be directed to Monroe County, Attention:
Facilities Maintenance Department, 1100 Simonton Street, Room 2 -205, Key West, Florida
33040. Payments shall be made payable to the Tropical Bay POA and directed to Tropical Bay
POA at P. O. Box 430522, Big Pine Key, Florida 33043.
The County shall not be responsible for payment of any other annual or special
assessments established by the Tropical Bay POA, unless said special assessment would relate to
the yard, mangroves, canal, or vegetative maintenance program. In only such event, shall the
County pay a special assessment of the Tropical Bay POA.
5. OBLIGATIONS OF COUNTY: County covenants and agrees to=
a. Provide timely payment of the annual fee assessed by Tropical Bay POA for the care
and maintenance of all Lots currently owned by the County or subsequently
purchased;
b. Provide timely payment of any special assessment of the Association if related to the
mowing services or mangroves, canal banks, and other vegetative maintenance and
upkeep program for all Lots currently owned by the County or subsequently
purchased; and
c. Prevent any unauthorized use of any Lots currently owned by the County or
subsequently purchased which would create a nuisance or violate the Amended Deed
Restriction for Tropical Bay Subdivision.
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6, OBLIGATIONS OF TROPICAL BAY. Tropical Bay covenants and agrees to:
a. Provide all mowing services and mangroves, canal banks, and other vegetative
maintenance and upkeep services in accordance with the maintenance schedule
Tropical Bay provides similarly situated lots for all Lots currently owned by the
County or subsequently purchased; and
b. Provide notice to the County of any illegal dumping, debris accumulation, trespassing
activity, or other unauthorized use of any Lot currently owned by the County or
subsequently purchased, which is noted by any Association member.
7. NOTICE. Any notice required or permitted under this Agreement shall be in
writing and hand - delivered, delivered by a courier service with overnight delivery and signed
receipt, or mailed, postage pre -paid, by certified mail, return receipt requested, to the other party
as follows:
For the County: County Administrator
Monroe County
1100 Simonton Street
Room 2 -205
Key West, Florida 33040
and
County Attorney
1111 12st Street
Suite 408
Key West, Florida 33040
For Tropical Bay: Tropical Bay Property Owners Association, Inc.
P. O. Box 430522
Big Pine Key, Florida 33043
Attention: President
8. CANCELLATION/TERMINATION. Either party may give notice to the other
party of a breach of the terms of this Agreement. If the noticed breach is not cured within thirty
(30) days of receipt of the notice, the non - breaching party may terminate the Agreement
effective fifteen calendar days after notice that the breach has not been cured and notice of the
termination. Either party may cancel this agreement without cause by providing at least one
hundred eighty (180) days written notice to the other party. All contractual obligations of either
party remain in full force up to the effective date of termination. Both parties shall remain liable
after termination of this Agreement for all obligations, including but not limited to, any
outstanding payments, through the effective date of termination.
9. HOLD HARMLESSANDEMNIFICATION. Tropical Bay hereby agrees to
indemnify and hold harmless the Monroe County Board of County Commissioners, and any of
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its officers and employees from and against any and all claims, liabilities, litigation, causes of
action, damages, costs, expenses (including but not limited to fees and expenses arising from any
factual investigation, discovery or preparation For litigation), and the payment of any and all of
the foregoing or any demands, settlements or judgments arising directly or indirectly under this
agreement. Tropical Bay shall immediately give notice to the County of any suit, claim, or
action made against the County that is related to the activity under this agreement, and will
cooperate with the County in the investigation arising as a result of any suit, action or claim
related to this agreement.
10. NON - DISCRIMINATION. The parties agree that there will be no discrimination
against any person, and it is expressly understood that upon a determination by a court of
competent jurisdiction that discrimination has occurred, this Agreement automatically terminates
without any further action on the part of any party, effective the date of the court order. The
parties agree to comply with all Federal and Florida statutes, and all local ordinances, as
applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VII of
the Civil Rights Act of 1964 (PL 88 -352), which prohibit discrimination in employment on the
basis of race, color, religion, sex, and national origin; 2) Title IX of the Education Amendment of
1972, as amended (20 USC §§ 1681 -1683, and 1685- 1686), which prohibits discrimination on
the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC § 794),
which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of
1975, as amended (42 USC §§ 6101 - 6107), which prohibits discrimination on the basis of age; 5)
The Drug Abuse Office and Treatment Act of 1972 (PL 92 -255), as amended, relating to
nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and
Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91 -616), as amended,
relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health
Service Act of 1912, §§ 523 and 527 (42 USC §§ 690dd -3 and 290ee -3), as amended, relating to
confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of
1968 (42 USC §§ 3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or
financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC §§ 1201), as
amended from time to time, relating to nondiscrimination in employment on the basis of
disability; 10) Monroe County Code Chapter 14, Article II, which prohibits discrimination on the
basis of race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or
expression, familial status or age; and 11) any other nondiscrimination provisions in any federal
or state statutes which may apply to the parties to, or the subject matter of, this Agreement.
11. NON-WAIVER- Any waiver or any breach of any covenants herein contained to
be kept or performed by either party shall not be deemed or considered to be a continuing waiver
and shall not operate to bar or prevent either party from exercising any of its remedies under this
Agreement, at law or in equity for any succeeding breach, either of the same condition or
covenants or otherwise.
12. BINDING EFFECT. The terms, conditions, and provisions of this Agreement
shall bind and inure to the benefit of the COUNTY and TROPICAL BAY POA and their
respective legal representatives, successors, and assigns.
13. AUTHORITY. Each party represents and warrants to the other that the
execution, delivery and performance of this Agreement have been duly authorized by all
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necessary County and corporate action, as required by law and does not contravene any Article
of Incorporation or By -Laws. This Agreement constitutes a legally valid and binding obligation,
enforceable against the parties in accordance with its terms and conditions.
14. AMENDMENTS AND MODIFICATIONS. Any party may request changes to
this Agreement at any time by written notice to the other parties to this agreement as designated
herein. Such changes as are mutually agreed upon by and between the parties shall be
incorporated in written amendments to this Amendment executed in the same manner as the
original Agreement approval.
15. NO PERSONAL LIABILITY. No covenant or agreement contained herein shall
be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe
County in his or her individual capacity, and no member, officer, agent or employee of Monroe
County shall be liable personally on this Agreement or be subject to any personal liability or
accountability by reason of the execution of this Agreement.
15. CONSENT TO .JURISDICTION. This Agreement shall be construed by and
governed under the laws of the State of Florida and venue for any action arising under this
Agreement shall be in Monroe County, Florida. This Agreement is not subject to arbitration.
17. NONASSIGNABILITY. This agreement shall not be assignable by either party
unless such assignment is first approved by all parties.
18. SURVIVAL OF PROVISIONS. Any terms or conditions of this Agreement that
require acts beyond the date of the term of this Agreement, shall survive termination of the
Agreement, shall remain in full force and effect unless and until the terms and conditions are
completed and shall be fully enforceable by any party to this Agreement.
19. ENTIRE AGREEMENT. This writing contains the entire agreement of the
parties and supersedes any prior oral or written representations. No representations were made
or relied upon by any party, other than those that are expressly set forth herein.
20. SEVERABILITY. If any term or provision of this Agreement shall to any extent
be held to be illegal, invalid, or unenforceable, the remaining provisions shall not be affected
thereby, and each remaining term and provision of this Agreement shall be valid and be
enforceable to the fullest extent permitted by law.
21. ATTORNEY'S FEES AND WAIVER OF JURY TRIAL. In the event of any
litigation arising out of this Agreement, the prevailing party shall be entitled to recover its
attorneys' fees and costs, including the fees and expenses of any paralegals, law clerks and legal
assistants, and including fees and expenses charged for representation at both the trial and
appellate levels.
In the event of any litigation arising out of this Agreement, each party hereby knowingly,
irrevocably, voluntarily and intentionally waives its right to trial by jury.
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22. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
number of counterparts, each of which shall be regarded as an original, all of which
together shall constitute one and the same instrument and any of the panics hereto may execute
this Agreement by signing any such counterpart.
23. SECTION HEADINGS. Section headings have been inserted in this Agreement
as a matter of convenience of reference only, and it is agreed that such section headings are not a
part of this Agreement and will not be used in interpretation of any provision of this Agreement.
24. MUTUAL REVIEW. This Agreement has been carefully reviewed by COUNTY
and TROPICAL BAY therefore; this Agreement is not to be construed against either party on the
basis of authorship.
25, ANNUAL APPROPRIATION. The County's performance and obligation to pay
under this Agreement is contingent upon an annual appropriation by the Board of County
Commissioners, In the event that the County Funds on which this Agreement is dependent are
withdrawn, this Agreement is terminated and the County has no further obligation under the
terms of this Agreement to the TROPICAL BAY POA beyond that already incurred by the
termination date.
TN WITNESS WHEREOF, each party hereto has caused this Agreement to be executed
by its duly authorized representative on the day and date first written above.
(SEAL) BOARD OF COUNTY COMMISSIONERS
Attest: KEVIN MADOK, CLERK OF MONROE COUNTY, FLORIDA
BY:
Deputy Clerk
WITNESSES:
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Witness Signature
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Mayor /Chairperson
TROPICAL BAY PROPERTY WNERS
ASSOCIATION, INC.
BY:
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