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Item K8* ADD —ON BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 6/11/14 - MAR Division: District 3 Bulk Item: Yes X No _ Department: District 3. Commissioner Carruthers Contact Person: Heather Carruthers, 292-3430 AGENDA ITEM WORDING: Consideration of a motion to reconsider the vote approving agenda item I-4 on May 21, 2014 BOCC providing direction regarding a request by the Marine Mammal Conservancy, Inc. (MMC) for a reduction in the outstanding code fines and costs imposed in code cases CE06030008, CE09030107, and CE11060014. ITEM BACKGROUND: At the May 21, 2014 meeting, the Board voted (4-1; Commissioner Kolhage dissenting) to conditionally approve reducing the accrued fines of $582,155.83 to 10% ($58,215) plus costs ($1805) provided that a) the amount ($60,020) is paid within 60 days of the Board's vote and b) that the property remain in its current use as a marine mammal rescue facility. The Board directed legal staff to include a condition in the documents that would cause the full fine to be reinstated if the property ceased to remain in its current use. Subsequent to the meeting, it was learned that the National Marine Fisheries Service (NMFS) had issued a letter dated November 26, 2013, advising that — due to morbillivirus outbreak — it would not authorize rehabilitation of affected species stranded in the Carolinas, Georgia, the east coast of Florida and the entire Florida Keys. Additionally, a mortgage holder of MMC had filed suit the day before the Board's 5/21/14 meeting seeking to foreclose on those mortgages and reclaim the property. PREVIOUS RELEVANT BOCC ACTION. 5/21/14 Board voted to conditionally reduce fine to 10% of accrued amount plus costs. CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: TOTAL COST: N/A INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: N/A COST TO COUNTY: N/A SOURCE OF FUNDS: REVENUE PRODUCING: Yes _ No X AMOUNT PER MONTH Year APPROVED BY: County Atty � OMB/Purchasing Risk Management DOCUMENTATION: Included,� Not Required DISPOSITION: AGENDA ITEM # K-8 ``7 * ADD —ON Revised 2/05 BACK-UP: 1) Agenda Item Summary Only: I-4 BOCC 5/21/14 Note: To review complete back-up see: htti)://fl-monroecounty.civicylus.com/ApendaCenterNiew File/Item/4811?filelD=4699 2) Letter from National Marine Fisheries Service date stamped Nov. 26, 2013 3) Complaint dated May 20, 2014: Robert Denenberg v. Marine Mammal Conservancy, Inc., et aL, Case No. 14-CA-364-P 1) Agenda Item Summary Only: I-4 BOCC 5/21/14 Note: To review complete back-up see: htt p://fl-monroecounty.civiculus.com/AgendaCenterNiewFile/Item/4811?fileID=4699 y BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: May 21, 2014 Division: Growth Management Department: Code Compliance Bulk Item: Yes _ No X Staff Contact: Lisa Granger & Ronda Norman 289-2810 AGENDA ITEM WORDING: Discussion of request by the property owner, Marine Mammal Conservancy Inc.(MMC) for a reduction in the outstanding code fines and costs imposed in code cases CE06030008, CE09030107 and CE11060014. ITEM BACKGROUND: Code case CE0603008 resulted in a finding of violation of MCC 6-4(a)- unsafe electric for having a dangerous electrical panel and unsafe building for using rope as handrails by the Code Compliance Special Magistrate on July 31, 2009. Fines in the amount of $ 250.00 per day were imposed by the Special Magistrate. When compliance was not achieved by the compliance date (10/22/2009) fines in the amount of $2500.00 per day began to accrue. When compliance was finally achieved (04/19/2010) the outstanding fines totaled $ 227,250.00. The outstanding costs are $100.00. Code case CE09030107 resulted in a finding of violations by the Code Compliance Special Magistrate on July 30, 2009 of: MCC 110-140(1)- a building permit is required prior to the installation of wooden shed (Jack's Shed), fences in the water, temporary tents, storage containers and construction trailer; MCC 130-93(a)(7)- accessory uses without a principal structure is not allowed according to Monroe County Code; MCC 6-4(b)- the shed with electrical, a/c and that is being used for habitation has been deemed unsafe by the building official due to lack of permits, approvals and inspections. Fines in the amount of $50.00 on violation of MCC 110-140(1); $50 per day on violation MCC 130-93(a)(7); and $250.00 per day on violation MCC 6-4(b) were imposed by the Special Magistrate. When compliance was not achieved by the compliance date fines in the amount of $250.00 per day began to accrue. When compliance was finally achieved on 04/19/2012, the outstanding fines totaled $ 318,150.00. The outstanding costs are $200.24. Code Case CE11060014 resulted in a finding of violations by the Code Compliance Special Magistrate on November 17, 2011 of MCC 110-140(1)- a building permit is required for the unpermitted installation of electrical outlets and panels, plumbing pipes and connections, lattice work and sign attached to fence. "This is an alleged repeat violation. MCC122-4(b)(3)b-items and use under the elevated structure and within the lattice enclosure must be permitted or removed, household items, couch, exercise equipment, appliances and items not defined in limited storage must be removed; MCC 130-93(a)7- establishing storage or accessory uses including the use of the unpermitted shower facility, storage under the elevated building, storage of abandoned vessels, docking of vessel and storage of miscellaneous items throughout the property requires permits, approvals and inspections; MCC 6-144(7)b- the listed permits are expired and/or open without final inspections: #09302194 - COMMERCIAL MISC. #09302195 - COMMERCIAL STORAGE -TEMP. #09301470 - POOL & SPA MAINT. & REPAIR #07300864 - COMMERICAL MISC. #06303472 - DEMOLITION #05301315 - GAS TANKS #05301214 - ELECTRIC MISC. #96300845 — DEMOLITION; and, MCC 6-27(b)(2)h- the use of the structure without a certificate of occupancy have been deemed unsafe according to the building official. **This is an alleged repeat violation. When compliance was finally achieved the outstanding fines totaled $34,950.00. The outstanding costs are $1,505.59. Enclosed is a letter from Robert Coakley on behalf of MMC and the print out of the e- Gov notes for the code cases. Resolution 148-2008, which is enclosed, states "It is hereby declared to be the policy of the County that the County will accept a minimum of twenty-five percent (25°/o) of accrued fines and costs in settlement of Code Enforcements cases after said fines and costs have been imposed by the special master. The County will not settle any fines or costs prior to compliance." The total outstanding amount of the fines in all 3 of the code cases is $ 580,350. The total outstanding amount of the costs in all 3 of the code cases is $1,805.83. Twenty-five percent of the total fines in all 3 code cases is $145,087.50. Twenty-five percent of the costs is $451.46. PREVIOUS RELEVANT BOCC ACTION: N/A CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval of a reduction of fines to the amount of $145,087.50 pursuant to Resolution 148-2008 but not costs. Costs should be paid in full in the amount of $1,805.83. If the total amount of the reduced fines plus costs ($146,893.33) is not paid within 30 days the amount should revert back to the original amount of fines and costs ($582,155.83). TOTAL COST: INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes_ NoAMOUNT S APPROVED BY: County Atty �q �, OM1V B/Purchasing Risk Management DOCUMENTATION: Included X Not Required aL_ DISPOSITION: AGENDA ITEM # 2) Letter from National Marine Fisheries Service date stamped Nov. 26, 2013 UNITED STATES DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration • NATIONAL MARINE FISHERIES SERVICE southeast Regional Office *PV. `O 263 13th Avenue South St. Petersburg, Florida 33701-5505 http:/Isero.nmfs.noaa.gov NOV 2 6 2013 F/SER32: EF Dear Southeast Region Marine Mammal Stranding Network: Thank. you for your dedicated response to the increase in stranded marine mammals during the bottlenose dolphin Unusual Mortality Event (UME) in the Mid -Atlantic. The National Marine Fisheries Service (NMFS) declared this event a UME in the Northeast Region on August 8, 2013; however, it has since expanded into the Southeast from North Carolina through Florida. The UME has been attributed to a morbillivirus outbreak, with 93% of dolphins tested either suspect or confirmed positive for the virus. Other cetacean species have also stranded within the designated UME area and sampling has confirmed morbillivirus is present in some of these animals. The morbillivirus has been sequenced to confirm that it is cetacean morbillivirus, which affects the lungs, brain, and immune system of cetacean species, causing illness and death. We share your interest in doing what is best for the animals currently being affected by this UME. We have reviewed the Policies and Best Practices for Marine Mammal Stranding Response, Rehabilitation, and Release and have evaluated the risk and concerns associated with rehabilitating any live stranded cetacean found within the UME impacted area. At this time, NMFS Southeast Region will not authorize rehabilitation of any cetacean species stranded in North Carolina, South Carolina, Georgia, or the east coast of Florida through the entire Florida Keys (Atlantic and Gulf coasts) due to the following concerns and potential risks: Morbillivirus is highly contagious and lethal, and has been implicated in the deaths of public display animals at facilities that conducted both public display and stranded animal rehabilitation. While we recognize that the rehabilitation practices followed at several Southeast Region facilities meet or exceed our minimum standards for quarantine and the prevention of disease transmission from stranded marine mammals to public display marine mammals, we feel extreme precautionary measures must be taken when dealing with morbillivirus until we fully understand the potential risks of the virus's transmission from stranded cetaceans to public display animals and can safely mitigate the risks. To date, live dolphins stranding during this UME have shown severe illness including lung, brain, and skin infections. Many dolphins have died on the beach prior to administration of euthanasia, indicating severe debilitation. It is not clear if cetaceans infected with morbillivirus can be successfully rehabilitated, thus, there are ethical issues regarding humane care and treatment that need to be fully evaluated. Some aspects of the care and treatment that would be required for morbillivirus patients would require a research permit due to the extensive medical sampling needed. Little is known about the disease process of morbillivirus in cetaceans, including the duration and pattern of viral shedding, how the virus is transmitted and for how long, and 4=01N if an individual cetacean can become an asymptomatic carrier of the virus. Therefore, it is unclear whether or not a rehabilitated cetacean that may be deemed non -releasable could be placed in a permanent care facility and safely housed with other cetaceans due to the risk of continued infection and intermittent shedding of the virus in the rehabilitated individual. NOAA, the Working Group for Marine Mammal Unusual Mortality Events, and the UME Investigative Team will evaluate new results and information as they are received and continuously re-evaluate whether there are any conditions, rehabilitation practices, or protocols that might enable rehabilitation of UME animals in the future. I will notify you of any changes. Again, we thank you for your exceptional work during this difficult time. Please contact Erin Fougeres, NMFS Southeast Region Marine Mammal Stranding Program Administrator, at erin.fou eg resnnoaa.gov or 727-824-5323, if you have any questions. cc: F/SEC3 — B. Mase-Guthrie F/PR2 — T. Rowles F/NER3 — M. Garron 2 Sincerely, Roy E. Crabtree Ph.D. Regional Administrator 3) Complaint dated May 20, 2014: Robert Denenberg v Marine Mammal Conservancy, Inc., et A Case No. 14-CA-3 64-P IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA ROBERT DENENBERG, CASE NO.: I H C A 3& H P Plaintiff, V. MARINE MAMMAL CONSERVANCY, INC., a Florida non-profit corporation; RICHARD GUDOIAN, JR.; MONROE COUNTY, and UNKNOWN PARTY(S) IN POSSESSION, Defendants. COMPLAINT COMES NOW the Plaintiff, ROBERT DENENBERG ("LENDER"), by and through his undersigned counsel, and files this, his Complaint against the Defendants, MARINE MAMMAL CONSERVANCY, INC. ("BORROWER"), RICHARD GUDOIAN, JR., MONROE COUNTY, and UNKNOWN PARTY(S) IN POSSESSION, and in furtherance thereof says that: GENERAL ALLEGATIONS 1. LENDER is an individual who resides in Palm Beach County, Florida. 2. BORROWER is a Florida not -for -profit corporation with its principal place of business in Monroe County, Florida. 3. Defendant RICHARD GUDOIAN, JR. is an individual who resides in Monroe County, Florida. 4. Defendant MONROE COUNTY is a political subdivision of the State of Florida. 5. Jurisdiction and venue are properly in this Court, as the real property which is the subject of this suit is located in Monroe County, Florida. 5. On March 10, 2009, BORROWER executed a Promissory Note ("the Note") in favor of LENDER in the principal amount of $300,000.00. The Note was amended in April 2012 for the primary purposes of extending the maturity date of the Note to April 2013, and to change the interest rate. A true copy of that Note and the Amendment thereto are attached hereto as Composite Exhibit "A." 6. To secure payment of that Note, on March 10, 2009, BORROWER executed and delivered a first Mortgage to LENDER, a true copy of which is attached hereto as Exhibit "B" ("the Mortgage', on real property located in Monroe County, Florida, the legal description of which is more particularly set forth in the Mortgage. This Mortgage is recorded in the Public Records of Monroe County, Florida as Document Number 1734295, in Official Records Book 2403 at page 2409. 7. BORROWER has defaulted with respect to its obligations under the Note (as amended) and Mortgage, in that BORROWER has failed to pay the debt in full on or before its April 2013 maturity date and has otherwise ceased making any payments at all on the Note, as amended, since March 2014. 8. On April 1, 2014, notice of default and intent to impose interest at the default rate was forwarded by LENDER'S counsel to BORROWER by Federal Express and U.S. Mail. A copy of that Notice is attached hereto as Exhibit 11C " 9. All conditions precedent to the filing of this action have been performed, excused or waived. 10. LENDER has retained the undersigned law firm to represent it in this matter and is obligated to pay the firm a reasonable fee for its services. LENDER is entitled to recover its 2 attorney's fees from the BORROWER according to the terms of the loan documents attached hereto. COUNT I - ACTION ON NOTE 11. Plaintiff realleges and reincorporates the allegations contained in paragraphs 1-10 as if fully set forth herein. 12. This is an action for damages that exceed $15,000.00, exclusive of interest, court costs and attorneys' fees. 13. LENDER owns and holds the Note, as amended. 14. BORROWER has defaulted on the Note, as amended, as detailed above. As a result of the monetary defaults detailed above, LENDER is entitled to recover default interest at the rate set forth therein from the date of default through the date of entry of a final judgment in this case. 15. BORROWER owes LENDER the principal sum of $300,000.00, together .with interest, late charges, attorney's fees and costs of suit, on the Note, as amended. WHEREFORE, Plaintiff demands judgment for damages against BORROWER, together with interest, court costs, attorneys' fees and any other relief that this Court deems just and proper. COUNT II - FORECLOSURE OF FIRST MORTGAGE 16. Plaintiff realleges and reincorporates the allegations contained in paragraphs 1-10 as if fully set forth herein. 17. This is an action to foreclose a mortgage on property located in Monroe County, Florida, which is more particularly described in Exhibit "B" attached hereto. 18. LENDER currently owns and holds the Note, as amended, referred to above, and 3 the Mortgage referred to above. 19. The subject property is currently owned by and in possession of BORROWER. 20. BORROWER has defaulted under the Note, as amended, and Mortgage as detailed above. 21. BORROWER owes LENDER the principal sum of $300,000.00, together with interest, late charges, attorney's fees and costs of suit, on the Note, as amended. 22. Defendant RICHARD GUDOIAN, JR. may claim some interest in the subject property by virtue of that Mortgage Deed recorded in the Public Records of Monroe County, Florida as Document Number 1734296 in Official Records Book 2403 at page 2418; any such interest, however, is subject and inferior to LENDER'S interest in the subject property as described above. 23. Defendant MONROE COUNTY may claim some interest in the subject property by virtue of THOSE Code Enforcement Liens recorded in the Public Records of Monroe County, Florida as Document Numbers 1753540, in Official Records Book 2425 at page 1633, and 1753541, in Official Records Book 2425 at page 1634; any such interest, however, is subject and inferior to LENDER'S interest in the subject property as described above. 24. UNKNOWN PARTY(S) IN POSSESSION may claim some interest in the subject property by virtue of their possession of all or a part of same; any such interest, however, is subject and inferior to LENDER'S interest in the subject property as described herein. WHEREFORE, Plaintiff demands: (a) judgment of foreclosure for the amounts due LENDER under the Mortgage and Note, as amended, referenced herein, including principal, interest, late charges, costs, expenses and attorney's fees, and if such sums are not paid within the time established by this Court, that the subject property be sold to satisfy LENDER's claims; 4. (b) that Defendants, and all persons claiming under, by, through or against them since the filing of Plaintiffs Notice of Lis Pendens, be forever barred and foreclosed to all rights, title and interest in and to the real property; and (c) any other relief that this Court deems just and proper, including but not limited to, if necessary, entry of a deficiency judgment against BORROWER. DATED this 2& day of May, 2014. COHEN, NORRIS, WOLMER, RAY, TELEPMAN & COHEN Attorneys for Plaintiff 712 U.S. Highway One Suite 400 North Palm Beach, FL 33408 Telephone (561) 844-3600 Facsimile (561) 842-4104 Primary Email: jst(a,fcohenlaw.com Secondary Email: smc(@fcohenlaw.com /s/ James S. Telepman, Esquire James S. Telepman, Esq. Florida Bar No. 466786 5 Notice Required by the Fair Debt Collection Practices Act Unless you dispute the validity of this debt or any portion thereof within 30 days after receipt of this notice, the debt will be assumed to be valid. If you notify this office within the 30 day period that the debt or any portion thereof is disputed, we will obtain verification of the debt and a copy of the verification will be mailed to you. (We will suspend collection efforts until we have provided this information to you.) Upon your written request within the 30 day period, we will provide you with the name and address of the original creditor, if different from the current creditor. This is an attempt to collect a debt and any information will be used for the purpose. Special Notice to Borrowers who have been discharged in bankruptcy: If your debt has been discharged by a Bankmptcy Court, this firm and its client are NOT attempting to collect a debt from you. We are only attempting to enforce our client's rights in the mortgaged property. Those rights are created by the mortgage. THE TAX HAS BEEN PAID AND THE PROPER DOCUMENTARY STAMPS HAVE BEEN AFFIXED TO THE MORTGAGE AND SECURITY AGREEMENT SECURING THIS PROMISSORY NOTE. PROMISSORY NOTE $300,000.000 Key Largo, Florida March 10,.2009 FORVALUE RECEIVED,theundersigned ('Waken"), jointlyand severallypromises topayto the order ofRou�r=DENENBERG, his heirs, beneficiaries or -its successors, endorsees or assigns (the "Holder"), at the followin6.g address 150 Monte Carlo Drive, Palm Beach Gardens, FL 33418, or at sack other place as the Holder may designate in writing, the principal sum of THmm HUNDRED TkousA" AND No/100 DOLLARS ($300,000.00) ("Principal'I together with interest our the Principal from the date of this Note, based on a 360-day year, until paid, at the rate of Five percent (501a) per affium payable as follows: Commencing onMay 1, 2009 and on the first day of each•and every month thereafter until Maturity, Maker shall make monthlypayments of interest only in the amount of One Thousand Two Hundred Fifty and No/100 Dollars ($1,250.00). All payments shall be applied first to accrued but unpaid interest and then to unpaid principal: (the "Mari ePPPr�"al, together with accruedbutunpaid interest, shall be dbe and payable onMarch 10, 2012 The Principal may be prepaid in whole, or in part, at any time without penalty. This Note is secured by a mortgage of even date herewith and is to be construed and enforced according to the laws of the State of Florida; upon the failure of the Maker hereof to pay any sum required to be paid bythe terms of this Note or thb mortgage, - - dywhen they severally become due, or upon the breach of any stipulation, agreement or covenant of Note or ofthe mortgage, orin case the Maker should become insolvent, or apply to the Bankruptcy Court for any relief allowed -debtors under any of the provisions of the Federal o; State Bankruptcy Laws, or proceedings be instituted against said Maker to put it ininvolunterybankruptcy, or arrangement, or corporate reorganizationproceedings lmdertheBankruptcy Act, or in the case of the existence of any event of default, the entire sums ofprincipal and interest remaining unpaid shall;-uponthirty(30) days writhmnoticebecome due andpayable. Although Makerhasathirty(30) day grace period before the Holder chooses to accelerate this note, the Maker will pay a late charge to the HolderiftheHolderhas notreceivedthe full amount ofanymonthlypaymentbythe end of 15 calendar days after the date it is due. The amount of the late charge will be fifteen percent (1501s) of the ovenine payment Maker will pay the late .charge promptly but only once for each late payment. Nothing herein contained nor in any instrument or transaction related hereto shall be construed or so operate as to require Maker or any person liable for the payment oftbis Note to pay interest in an amount or at a rate greater than the maximum allowed by applicable laws in effect from time to time. Should any interest or other charges in the nature of the interest paid by Maket or any parties liable for the payment of this Note result in the computation or earning of interdst in excess of the maximum rate of interest allowed - by applicable law in effect from time to time, then any and all such excess shall be and the same is hereby waived by the Holder, and all such excess received shall automatically be credited against and in reduction of the Principal, and any portion of said excess which exceeds the Principal shall be paid by the Holder to Maker or any parties liable for the payment of this Note, it being the intent of the parties hereto that under no circumstances shall Maker or any parties liable for payment hereunder be required to pay interest in excess of the maximum rate allowed by applicable law in effect from time to time. Maker, further agrees, to pay all costs of collection, including a reasonable attorneys fee, including attorneys fee in event of appeal, in case the Principal or any payment of the Principal or any interest thereon E7( WIT: a �v is not paid at the respective maturity.thereof, or in case it becomes necessaryto protect the security thereof, whether suit be brought or not. If an Event of Default occurs, the Principal shall bear interest from and after the date of the Event of Default at the rate of twelve percent (120/6) per annum. Eich To or endorser or any person, firm or corporation become liable under this Note hereby consents to any extensions or renewals of this Note or anypart thereof, without notice, and agrees that they will remain liable under this Note during any extensions or renewals thereof, ffitil the debts represented hereby are paid in full. This Note' may not be changed orally, but only by an agreement in writing, signed • by the party against whom enforcement of any waiver, change, modification or discharge is sought Marine Mammal Conservancy, Inc., a Florida not -for - profit corporation j-- By: Robert G. Comb) W:1733311NOTM514-300,000 Dcnwbm0.OUB(MO V41:14) AMENDM—NT TO PROIkIISSORV NOTIR THIS AMENDMENT TO PROMISSORY NOTE dated as of April 2012 ("Amendment'), is made by and between M4,ARINE AL4hn CONSERVANCY, INC., a Florida not fur Profit corporation (the "Maker") and ROBERT DENENBERG (the `°Lender"). RECITALS: A. Lender has made a loan to Maker (the Moan,,), currently evidenced by a Promissory Note dated March 10, 2009 in the original principal amount of $300,000.00, (the `T1oWl. given by Maker in favor of Lender A. Lender and Maker desire to amend the Note to extend the Maturity Date and amend the interest rain in accordance With the terms and conditions hereof. C. Any capitalized term used but not otherwise defined in this Amendment shall have the meaning given to such term in the Note. NOW, THEREFORF, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. Maker and Lender hereby agree as foI lows: 1. A mendmerrt.to Note. The Note is hereby amended by: (a) redefining "Maturity Date-, as April30, 2013; (b) redefining the interest rate as seven per cent (70%) per annum, interest only, and (c) requiring continued monthly payments of interest only in the arnount of $1,750.00 on the fast day of each month from May 2012 through April 20I3. 2. 910.nfinnation. Maker ratifies, reaffirms and confirms that a]l of the terms and provisions Of the Note, prior to the date hereof and as amended hereby, and all of the other loan documents associated with the Note are and shall continue to be in full force and effect and valid and enforceable in actordance with its beans. 3. Representations and Warranties. Maker represents and warrants t°' and a Lender that this Amendment has been duly authorized by all necessaryparMaker, has vita, been duly executed by ;Maker and constitutes the valid and binding obligation of Maker, enforeeab e against Maker in accordance with the terns hereof. 4. Coucrteroarts. This Amendment may be executed in any number of counterparts and by the different parties on separate counterparts. Each such counterpart shall be deemed to be an original, but all such counterparts taken together shall together constitute one and the same agreement. 5. Bffective Date. The effective date for the ameadmeats caaMbu d is this Amendment shall be as oftho date of this Amendment first abave written. writfea. VVTIIVESS the die Owcation and ddh my ofthis Note as of the date andyear fast above Maker: Madge Meramd Camservanw, hm•. Leader: a Fladda not for profit ccnporat%a By: / Robert O. Stevens, President Robert Denenberg 2 S . ' e 5. EfFective Date. The effcctive date for the amendments contained in this Amendment steal I be as of the date of -this Amendment first above written. written. WITNESS the due execution and delivery of this Note as of the date and year first above Maker, Marine Mammal Conservancy, Inc., Lender a Florida not far profit corporation By. Robert O. Stevens, President 2 This instrument prepared by: Doan 1734295 03/13/2009 3:54PM Richard A. Wood,Esq. Filed 3 Recorded In Official Records of Fowler White Burnett, P.A. MONROE COUNTY DANNY L . KOLHAGE Espirito Santo Plaza 1395 Brickell Avenue Fourteenth Floor 03/13/2009 3:54PM Miami, Florida 33131 INTANGIBLE TAX CL: TRINA $600.00 MORTGAGE DOC STAMP CL: TRINA$1,050.00 DocN 1734295 BkN 2403 PgN 2409 THMISA BALLOONMORTGAGE AND THE FINAL PRINCIPAL PAYMENT OR THE PRINCIPAL BALANCEDUE UPONMAT UA TYIS ,$300,000.00, TOGETHER WITHACCR UED INTEREST, IFANY, AND ALL ADVANCEMENTS MADE BY THE MORTGAGEE UNDER THE TERMS OF THIS MORTGAGE. MORTGAGE DEED Executed this Id day of March, 2009, by and between MARINE MAMMAL CONSERVANCY, INC., A FLORIDA NOT-FOR-PROFTr CORPORATION, whose post office address is P.O. Box 1625, Key Largo, FL 33 03 7 hereinafter called the "Mortgagor", and ROBERT DENENBERG, whose post office address is 150 Monte Carlo Drive, Palm Beach Gardens, FL 33418, hereinafter called the "Mortgagee"; WITNESSETH, That for divers good and valuable considerations, and also in consideration of the aggregate sum named in the promissory note executed by Mortgagor in favor of Mortgagee of even date herewith, hereinafter described, the said Mortgagor does grant, bargain, sell, alien, remise, release, convey and confum unto the said Mortgagee, the following described land, situate, lying and being in the County of Monroe, State of Florida, to -wit: See Exhibit "A" Attached hereto and made a part hereof.) (the "Mortgaged Property"). THIS IS A PURCHASE MONEY FIRST MORTGAGE. Together with all the tenements, hereditaments and appurtenances, with every privilege, right, title, interest and estate, reversion, remainder and easement thereto belonging or in any wise appertaining: To Have and to Hold the same in fee simple forever. And said Mortgagor covenants that he is indefeasibly seized of said land in fee simple; that he has full power and lawful right to convey said land in fee simple as aforesaid; that it shall be lawful for said Mortgagee at all times to peaceably and quietly enter upon, hold, occupy and enjoy said land; that said land is free from all encumbrances; that he will make such further assurances to perfect the fee simple EXHIBIT DocN 1734295 Bkp 2403 PSH 2410 title to said land in said Mortgagee, as may reasonably be required; and he hereby feilly warrants the title to said land and will defend the same against the lawful claims of all persons whomsoever. Provided Always, that if said Mortgagor shall pay unto the Mortgagee that certain promissory note, of which the following in words and figures is a true copy, to -wit: (See Exhibit 93" attached hereto and inade apart hereof.) and shall perform, comply with and abide by each and every the stipulations, agreements, conditions and covenants of said promissory not* and of this deed, then this deed and the estate hereby created shall cease and be null and void. And the said Mortgagor hereby covenants and agrees as follows: 1. To pay all and singular the principal and interest and other sums of money Payable by virtue of said Fu nissory note and this deed, or either, promptly on the days respectively the same severally come due. 2. To pay all and singular assessments, levies, Liabilities, obligations and encumbrances of every nature on said described property each and every, and if the same be not promptly paid prior to the date on which they become delinquent, the said Mortgagee may, at any time, pay the same without waiving or affeeiing the option to foreclose our any righthereunder, and every payment so made shall bear interest from date thereof at the rate of ltwelve percent (12%) per anmmm. 3, To • pay all. and singular the costs, charges and expenses, including lawyers fees, reasonably incurred or paid by said Mortgagee because of the failure as the part of the said Mortgagor to perform; comply with and abide by each and every the stipulations, agreements, conditi,oms and covenants of said promissory note and this deed, or either, and every such payment shall bear interest from date thereof at the rate of twelve percent (12%) per aumum 4. To keep the Mortgage Property insured in a sum not less than the ONz M WON ADD N0/100 DOLLARS ($1,000,000.00) and payable to said Mortgagee and/or to name the Mortgagee/Holder as- a loss payee an any existing flood and hazard insurance, and in the event any sum of money becomes payable under such policies or policy, the Mortgageo shall have the• option to receive and apply the same to the cadent and on account of the indebtedness hereby secured or to permit the Mortgagor to receive and use it, or any part thereof; fqr other proposes, without thereby waiving or impairing any equity lien or right under or by virtue of this mortgage, and may place and pay for such insurance or any part thereof without waiving or affecting the option to foreclose or any right hereunder, and each and every such payment shall bear interest from date at the rate of twelve petmnt (12%) per annum. M©rtgager shall fiaaish proof of insurance coverage at least ten (10) days from the date of approval by the insurer or from endorsement by the insurer. Tn the event of loss, Mortgagor shall give prompt notice to the insurance carrier and to the Mortgagee. Mortgagor will keep the Mortgaged Property insured against loss or damage by fire and flood in amounts required by Mortgagee, not exceeding in the aggregate one hundred percent (100% ) of the full useable value of the mortgaged properly and shall pay the premiums for such insurance as same become due'and payable. Sums paid to Mortgagee by an insurer may be retained and applied by Mortgagee toward Payment of the debt in such priority and proportions as Mortgagee in his discretion shall deem proper or, at the discretion of Mortgagee, the same be paid, either in Whole or in DacR 1734295 Bktt 2403 Pgp 2411 Pam to Mortgagor for such proposes as Mortgagee shall designate. If Mortgagee shall receive and return such insurance money, the lien of this mortgage shall be reduced only by the amount thereof received after expenses of collection and retained by Mortgagee and actually applied by Mortgagee in reduction of the debt 5. . To permit, commit, or suffer no waste, impairment of deterioration of said property or any part thereof. 6. To perform, comply with and abide by each and every the stipulations, agreements, conditions and covenants in said promissory note and in this deed set forth. 7. To perform, comply with and abide by zoning and governmental rules and regulatiobs. 8. Mortgagor shall not sell or otherwise transfer all or any past of the property or any interest in the property without Mortgagee's prior written consent, which consent may be withheld for any or no reason. As used in this paragraph 8, "interest in the property" means any legal or beneficial interest in the property, including; but not limited to, those beneficial interests transferred in a bond for deed, contract for deed, installment sales coutraet.or escrow agreement, the intent of which is the transfer of title by Mortgagor at a future data to a purchaser: 9. If any of said sums of money herein referred to be not promptly and fully paid within thirty (30) days next after the same severally become due and payable, or if the agreements, conditions and covenants of said promissory note and this deed or either, are not duly performed, complied with and abided by, or in case the Mortgagor should become insolvent, or apply to the Bankruptcy Court for any relief allowed debtors under any of the provisions of the Federal or State Bankruptcy Laws, or proceedings be instituted against said Mortgagor to pat him in involuntary bankruptcy, or arrangement, or corporate reorganization proceedings under the Banla uptcy Act, or is the case of the existence of any event of default, or in the event of any representation or warranty made by the Mortgagor is found to be incorrect, or in the event Mortgagor fans to obtain Mortgagee's written consent when wed hereunder, the said aggregate sum mentioned in said promissory note shall become due and payable forthwith or thereafter at the option of the Mortgagee, as fully and completely as if originally stipulated to be paid on such day, anything in said promissory note or herein to the contrary notwithstanding. if said sums are not paid by the Mortgagor; the Mortgagee may foreclose by judicial proceedings or pursue other legal remedies to collect such sum. In addition, the Mortgagor will pay a late charge to the holder if the holder has not received the fall amount of any monthly payment by the and of fifteen (15) calendar days after the date it is due. The amount of the charge will be fifteen percent (15%) ofthe overdue payment of principal and interest 10. Mortgagor may prepay this obligation at any time in whole or in part without penalty. 11. Should the Mortgaged Property, or any part thereof or interest therein, be taken or damaged by reason of any public use or improvement or condemnation proceeding, or in any other manner ("Condemnation's er should Mortgagor or any of the Makers receive any notice or other information regarding such Condemnation, Mortgagor shall give prompt written notice thereof to Mortgagee. Mortgagee shall be entitled to all compensation, awards and other payments or relief granted in connection with such Condemnation to the extent of the debt secured by this mortgage, and shall be entitled, at his option, to appear in his own name in any action or proceeding relating thereto. In the event of such an appearance, Mortgagor agrees to pay reasngable attorney's fees incurred by Mortgagee. All Doch 1734295 Bkq 2403 Pgq 2412 compensation, awards, damages, rights of action and proceeds awarded to Mortgagor (the "Proceeds") are hereby assigned to Mortgagee to the extent of said debt, and Mortgagor agrees to execute such further assignments of the Proceeds as Mortgagee may require. 12. In case of proceedings by or against Mortgagor in insolvency or bankruptcy or any proceedings for reorganization or involving the liquidation of its assets, then and in such cases, Mortgagee/Holder shall be entitled to file a proof of claim and to prove the amount of principal and interest due upon the Note to the fall amount thereof, and all other payments, charges, and costs, including attorneys' fees, due under the Note or this Mortgage. 13. No delay or omission of Mortgagee or of any Holder of the Note to exercise any right, power or remedy accruing upon any default shall exhaust or impair any such right; power or remedy or shall be construed to be a waiver of any such default, or acquiescence therein; and every right, power and remedy given by this Mortgage to Mortgagee may be exercised from time to time and as often as may be deemed expedient by Mortgagee. No consent or waiver, expressed or implied, by Mortgagee to or of any breach or default by Mortgagor in the performance of the obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of the same or any other obligations of Mortgagor hereunder. Fail= on the part of Mortgagee to complain of any act or failure to act or to declare an event of default, irrespective of how long such failure continues, shall not constitute a waiver by Mortgagee of his rights hereunder or impair any rights, powers or remedies consequent on any breach or default by Mortgagor. If Mortgagee (1) grants forbearance or an extension of time for the payment of any sums secured hereby; (t) takes other or additional securityfor the payment of any sums secured hereby, (iir') waives or does not exercise any aright granted .herein or in the Note; any such act or omission shall not release, discharge, modify, change or affect the anginal liability under the Note, this Mortgage or any other obligation of Mortgagor, or any maker, co-signer, endorser, surety or guarantor, nor shah arty act or omission preclude Mart�gea from exercising any ngbt, power or privilege herein granted or intended to be granted in the event of any default then made or of any subsequent default; nor, except as .otherwise expressly provided in an instrument or instruments executed by Mortgagee shall the lien of this Mortgage be altered thereby. It Is Mutually Agreed, by and between the parties hereto, that the time of payment shall be an essential part of this contract; and that all covenants and agreements herein contained shall extend to and be obligatory upon the successors, heirs, executors, administrators and assign of the respective parties. IN WPPNESS WHEREOF, the said Mortgagor has hereunto set his hand and seal the day and year first above written.. {Sigurtures appear on following page] DocN 1734295 BkN 2403 PSN 2413 7WSISABALLOONMORTGAGEAND 7HEM9 PRINCIPAL PAYMENT OR THE PRINCIPAL BALANCE DUE UPONIIMATURITYM $300,000.00, TOGETHER MMACCRUED INTEREST, MANY, AND ALL ADYANCEUM 3MADE BY THE MORTGAGEE MWER THE TERMS OFTIIISMORTGAGE �I'Le'IjARTHE MAmmL CONSERVANCY, INC., A FLORIDA OT-FOWPROFIT CORPORATION , t i Robert G. Lingenfet*, Jfr., Yrestdm vV Name d&w. P.O. Box 1625, Key Largo, FL 33037 STATE OF FLORIDA ) ) ss: COUNTY OF KEY LARGO ) The foregoing instrument was acknowledged before me this IL day of 4-r2409 by Robert G. Lmgenfelser, Jr., President, of MARINE MAMMAL CONSERVANCY, INCe, A F PMA NOT - FOR -PROFIT CORPORATION, on behalf of the corporation, a who is personally lmown to me or tawho has produced FL Q C - as identification. My Commission Expires: S - 3-s - E i?--;�- Public A OF FLORMA Prwitlr®te:. 1 <<a 64A5PI '-- - 1AYNEJOHNSON MY COMMISSION #DD431725 EXPIRES: MAY 22.2009 I®b]yp��neepooDmmbmsoe�{3nosas•to-si} 0F1 8ended through t st Slate lmumnce Docq 1734295 Bko 2403 Pg# 2414 El1MIT "A" LEGAL DESCRIPTION OF PROPERTY South 200' of Lot 6, South 200' of Lots 7 and 8, lying North and West of a line parallel to and 120' measured at right angles to the center line of U S Highway #1 in Section 22, Township 61 South, Range 39 East, as shown on the P.R. Jenkins Plat and recorded in the Public Records of Monroe County, Florida, in Plat Book 1, page 68, together with the adjacent submerged land owned by sellers. LESS: Begin at the point of intersection of the Northwesterly right-of-way line of U S Highway #1 with the South line of Lot 7. MODEL LAND COMPANY PLAT, according to the plat thereof, recorded in Plat Book 1 at page 68 of the Public Records of Monroe County, Florida, said point being 120.00' Northwesterly of, as measured at right angles to, the centerline of said U S Highway #1; thence run on an assumed bearing North 89°57'44" East, for 274.55 feet, thence run North 0°02'16" E for 175.00 feet; thence run South 89°57'44" East for 407.94' to the Northwesterly right-of-way line of said U S Highway #1; thence run Southwesterly along said Northwesterly right-of-way line of U S Highway #1, for 220.04' to the Point of Beginning, all in Section 22, Township 61 South, range 39 East, Key Largo, Monroe County, Florida. ALSO: A parcel of submerged land in Tarpon Basin in Section 22, Township 61 South, Range 39 East, Key Largo, Monroe County, Florida, more particularly described as follows: From the intersection of the Northwesterly right-of-way line of State Road No. 5 (U S Highway #1) with the South line of Lot 7 in Section 22, Township 61 South, Range 39 East, as per Model Land Company Plat recorded in Plat Book 1, page 68, Public Records of Monroe County, Florida, run North 89*56 minutes West on the South line of said Lot 7 and the South Line of Lot 6 of said plat a distance of 870 feet, more or less, to the mean high tide line on the shore of Tarpon basin at the Northeast comer of a tract heretofore conveyed to Schmitt by Trustees of Internal Improvement Fund Deed No. 22199 and the Point of Beginning of the parcel hereinafter described; thence continue North 89 degrees 56 minutes West, a distance of 105 feet to the Northwest comer of tract conveyed by Trustees Internal Improvement Fund Deed No. 22199; thence North 2 degrees 49 minutes West, a distance of 200.2 feet; thence South 89 degrees 56 minutes East, a distance of 150 feet to. the said mean high tide at a point which is 200 feet North of the South line of said Lot 6; thence Southerly meandering said mean high -tide line, a distance of 207 feet, more or less, to the Point of Beginning, containing 0.56 acres, more or less, and lying and being in the County of Monroe, in said State of Florida. ERSIBIT `B" Doep 1734295 PROMISSORY NOTE Bkq 2403 P90 2415 THE TAX HAS BEEN PAID AND THE PROPER DOCUMENTARY STAMPS HAVE BEEN AFFIXED TO THE MORTGAGE AND SECURITY AGREEMEN'Y' SECURING THIS PROMISSORY NOTE. PROMISSORY NOTE $300,000.000 DacN 1734295 Key Largo Florida Bkp 2403 Pg9 2416 March 2009 FOR VALUE RECEIVED, the undersigned ("Maker"), jointly and severallypromises to payto the Order OfROBERT DENENBERG, his heirs, beneficiaries or its successors, endorsees or assigns (the "Holder"). at the following address 150 Monte Carlo Drive, Palm Beach Gardens, FL 33418, or at such other place as the Holder may designate in writing, the principal sum of TBIm= HvNDRED THousmm AND No/100 DOLLARS ($300,000.00) ("Principal") together with interest on the Principal from the date of this Note, based on a 360-day year, until, paid, at the rate of Five percent (5%) per annum payable as follows: Commencing on May 1, 2009 and on the fast day of each and every month thereafter until Maturity, Maker shall make monthly payments of interest only in the amount of One Thousand Two Hundred Fifty and No/100 Dollars ($1,250.00). All payments shall be applied first to accrued but unpaid interest and then to unpaid principal - The Principal, together with accruedbut unpaid interest, shallbe due and payable on March 10, 2012 (the "Maturity Date"). The Principal may be prepaid in whole, or in part, at any time without penalty. This Note is secured by a mortgage of even date herewith and is to be construed and enforced according to the laws of the State of Florida; upon the failum of the Maker hereof to pay any sum required to be paidbythe term of this Note or the mortgage, promptly whenthey severellybecome due, orupon the breach ofany stipuMon, agreement or covenant ofthis Note orofthe mortgage, Orin case the Maker should become insolvent, or apply to the Bankruptcy Court for any relief allowed debtars under any of the provisions of the Federal or State Bankruptcy Laws, or proceedings be instituted against said Makoer to put it in involuntary bankruptcy, or arrangement, or corporate reorganisation proceedings under the Baakmiptcy Act, or in the case of the existence of any event of default, the entire sum ofprmcipal and interest remaining unpaid shall, upon thirty (30) days written notice become due andpayable. Although Makerhas a thirty(30) day grace period before the Holder chooses to accelerate this note, the Maker will pay a late charge to the Holder ifthe Holder has not received the full amount of anymonthlypayment by the end of 15 calendar days after the date it is due. The amount of the late charge will be fifteen percent (15%) of the overdue payment Maker will pay the late charge promptly but only once for each late payment. Nothing herein contained nor in any instrument or transaction related hereto shall be construed or so operate as to require Maker or any person liable for the payment ofthis Note to pay interest in an amount or at a rate greater than the maximum allowed by applicable laws in effect from time to time. Should any interest or other charges in the nature of the interest paid byMaker or anyparties liable for the payment of this Note result in the computation or eaming of interest in excess of the maximum rate of interest allowed by applicable law in effect from time to time, then any and all such excess shall be and the same is hereby waived by the Holder, and all such excess received shall automatically be credited against and in redaction of the Principal, and any portion of said excess which exceeds the Principal shall be paid by the Holder to Maker or any parties liable for the payment of this Note, it being the intent of the parties hereto that under no circumstances shall Maker or any parties liable for payment hereunder be required to pay interest in excess of the maxinnrm rate allowed by applicable law in effect from time to time. Maker, further agrees, to pay all costs of collection, includwga reasonable attomey's fee, including attorney's fee in event of appeal, in case the Principal or any payment ofthe Principal or any interest thereon /jM is not paid at the respective maturity thereof, or in case it becomes necessary to protect the security thereof, whether suit be brought or not If an Event of Default occurs, the Principal shall bear interest from and after the date of the Event of Default at the rate of twelve percent (12%) per annum. Each maker or endorser or any person, film or corporation become liable under this Note hereby consents to any extensions or renewals of this Note or any part thereof, without notice, and agrees that they will remain liable under this Note during any extensions or renewals thereof, until the debts represented hereby are paid in full. This Note may not be changed orally, but only by an agreement in writing, signed by the party against whom enforcement of any waiver, change, modification or discharge is sought Marine Mammal Conservancy, Inc., a Florida not -for - profit corporation d /2n By: Comb] Wi73331WOTM514-300,000 DmmbamOW3110J9-11:14] 2 Docp 1734295 Bkq 2403 PqN 2417 MONROE COUNTY OFFICIAL RECORDS % N ,T*c OHEN o P, P, i s W6 L M E Y T 'E L E P)Vt A N C 0 H E. IN '0, R, 8,., Y S 'A"T." L­ 2014' 'jERKPWFM DAi.419L eMud FR�D AM, RAO* --PriaPedirii]Express l)elive7rv, 6, 'a U Vz 9. Mdd beltvLOU to: - icite3,FatY Mammal c dvserva0y, inc. r%e Ma RQ: Bbx.. 16-25 Ivey 1:afgo, VL`3303KeU3367. .,w IL IMOF DEFAIMT k� NOT @UGtMvw_vL P-k* L"Afti from.Rbb'dit-Dendnbo�j to M M tym A. dO...b - -Iiseiya#q�, . ... ... Migh 10, 2009. .. ngjn. 0.0 go Prin" 3 -L, dpal $ Phis �ea io� the g. abb, vp 'Jffi . lqa� 1-Please b0,,�MVlscd.�at tfie.110@0 Wpieslanfly in -default For: o' I cep eia. Alp'• 40 10. ija�: - -.' — ... on payment o , % Rdt beet teiid.diricL ildtPr-est P, 4* •YMegts'h4vz ceds PO4-nuturi 6d, thr,49% on6*,.­* :leaving --y-2014.. g been ma&jn ��Uar --Pkaso be, i0ge 'joilik;: ]S& Denenberg -hereby -4ecd'- cr #Mt in light bfthe f6ie the ere amount of unpaid a— MiP -POO' 000--ft, to be r due an ovnng:.PWffi PTIAr unpaid intep�st at the -note SQ.. tlie eid'bif A`j�, or $5,2k06 is.,A .clue and` t:ommenr.!i�g on May 3; 2014 - intefest shall" begin to accrue at the stated default rate Qf 12%. Demand is her6y.zia�-a ' that t P e# of 05,25b.00'b`e th*ade days dajiPi:Of geWn6a9Upon & 00�!tftb-2I4. Upoir6wivViiddb"G� of the ieq!** ed 1jayniett. the 11iiwpgp: .d;ie sattsfiecl ,. ,*$*'. -WiR ggist f6oiaguest - of .w and the 6fg'majPtoiisory.Not-' b6r6fibned' 'e*ei .timely P"-dat is not iorha g, IhOn-we. wM-- mafter co Y.thdme Monroe CQintY CITquIt CbW-geelcingto. oi6cicsehAidd*ftgage; toget ior. wi 9 6Hef,%i#cIudiAg but .Aqt limited to'the re f qov�ry. �f all ;tG6 ees and `costs:Wc�.r� d4hulf hiterest thr ddte of. j u pugh dgjfient,. and if :qca�l qnpy judgment against yoiir have any�estons;•pIf *'Rilbasi feel -fiie to contact •me* Very. truly yours, 'S, am.1b $lep an man cc e4t i. .,A. P RSO OF PROFESS0 N.AV. A SS 0 AT 1*0 N S 7T2-U_:9.�R:IdVI0WY ONE & $UfTE 400 **P.O. 664 1.3146':-'_ NORf14"PALM BEACH. kORIDA. 33A04-71"AN