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Item P11C ounty of M onroe {f `° " rel BOARD OF COUNTY COMMISSIONERS n Mayor David Rice, District 4 The FlOnda Key y m 1 �� Mayor Pro Tem Sylvia J. Murphy, District 5 Danny L. Kolhage, District 1 George Neugent, District 2 Heather Carruthers, District 3 County Commission Meeting June 20, 2018 Agenda Item Number: P.11 Agenda Item Summary #4337 BULK ITEM: No DEPARTMENT: County Attorney's Office TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger (305) 292 -3470 No AGENDA ITEM WORDING: Presentation of a settlement offer in Robert Denenberg v. Marine Mammal Conservancy, Inc., Richard Gudoian, Jr., and Monroe County, CA P 14- 364/18- 10594- LMI ITEM BACKGROUND: The County is the holder of five liens against Marine Mammal Conservancy, Inc., based upon two senior mortgage final judgments ($520,941.83, plus interest) that were purchased from Messrs. Denenberg and Gudoian. In addition, the County has filed a Motion for Judgment to Claim Surplus Proceeds to secure collection of $598,530.17 in fines in connection with three code compliance cases on MMC's property located at 102200 Overseas Highway, Key Largo. MMC now proposes to pay $925,000.00 (100% of the two mortgage final judgments, 67.5% of the fine amount), provided that MMC obtains funding to pay in full by September 30, 2018. MMC would also provide assurances that the property would only be used to further the organization's mission. Upon payment in full, the County would consider all of its claims satisfied, and would agree to consider MMC's TDC funding applications on the same terms and conditions as all other applicants. If the $925,000.00 was not timely paid, the County would have the right to credit bid its full $1,119,472.00 claim at an auction of the MMC property to occur no later than November 30, 2018, with closing no later than December 21, 2018. Under the proposed settlement, payment of the sales agent's commission would be the County's responsibility if it was the winning bidder. If the County rejects the $925,000.00 offer, MMC has represented it would agree to the property being auctioned no later than November 30, 2018, with it retaining the right to object to the County's $598,530.17 in code fines, and that it would agree to have that issue adjudicated prior to the November 30 auction. Under the Rules of Professional Conduct, the County Attorney is obligated to present this offer of settlement to the BOCC for consideration. PREVIOUS RELEVANT BOCC ACTION: On 1/21/15, the Board agreed to purchase the judgments held by Messrs. Denenberg and Gudoian On 7/15/15, the Board rejected an offer by MMC to settle the County's claim for $590,941.20 (100% of the two mortgage final judgments, 11.7% of the fine amount) CONTRACT /AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Approval DOCUMENTATION: FINANCIAL IMPACT: Effective Date: Immediately. Expiration Date: n/a Total Dollar Value of Contract: n/a Total Cost to County: n/a Current Year Portion: Budgeted: Source of Funds: CPI: Indirect Costs: Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: Grant: County Match: Insurance Required: If yes, amount: $925,000 Additional Details: Approximately $500,000 came out 304 funds when County purchased the judgments from the first and second mortgagors. N/A REVIEWED BY: Bob Shillinger Completed 06/05/2018 3:49 PM Bob Shillinger Skipped 06/05/2018 4:53 PM Budget and Finance Completed 06/05/2018 5:11 PM Maria Slavik Completed 06/05/2018 5:53 PM Kathy Peters Completed 06/05/2018 5:55 PM Board of County Commissioners Pending 06/20/2018 9:00 AM SETTLEMENT AGREEMENT This settlement agreement (the "Agreement") is entered into as of June _, 2018, by and between (i) Marine Mammal Conservancy, Inc. ("MMC"), debtor and debtor -in- possession in the chapter 11 bankruptcy case styled In re Marine Mammal Conservancy, Inc., Case No. Case No. 18- 10594 -LMI (the "Bankruptcy Case "); and (ii) and Monroe County (the "County ") (collectively, the "Parties "). The Parties hereby agree as follows: RFi.CTTAT.0 WHEREAS, MMC is a non - profit Florida corporation that has helped ensure the effective response and care for stranded marine mammals. As grantee under a Statutory Warranty Deed executed and recorded in 2009 at Book 2403, Page 2403, Document Number 1734293, of the Official Records of Monroe County, MMC historically undertook these efforts on a multi -acre, beach front property that it owns— located at 102200 Overseas Highway, Key Largo, Florida (the "Real Property "). WHEREAS, on March 10, 2009, MMC executed a promissory note (the "First Note ") in favor of Robert Denenberg, an individual who then resided in Palm Beach County, Florida. To secure payment under the First Note, MMC executed a mortgage on the Real Property in favor of Mr. Denenberg (the "First Mortgage "), recorded at Book 2403, Page 2409, Document Number 1734295, of the Official Records of Monroe County. On that same date, MMC executed a promissory note (the "Second Note ") in favor of Richard Gudoian, Jr. in the principal amount of $ 150,000.00 . To secure payment on the Second Note, MMC executed a second mortgage on the Real Property in favor of Mr. Gudoian (the "Second Mortgage "), recorded at Book 2403, Page 2418, Document Number 1734295, of the Official Records of Monroe County. WHEREAS, alleging defaults by MMC under the terms of the First Note, (i) Mr. Denenberg initiated an action (the "Action ") on May 20, 2014 to foreclose the First Mortgage by filing a Complaint in Sixteenth Judicial Circuit, in and for Monroe County; and (ii) Mr. Gudoian filed an Answer and Crossclaim in the Action. As a party - defendant to the Action, the County filed its Answer of Defendant, Monroe County on June 16, 2014. WHEREAS, On November 20, 2014, the state court entered a Final Judgment of Foreclosure in favor of Mr. Denenberg, and against Mr. Gudoian, MMC, and the County. On December 4, 2014, Mr. Gudoian filed an emergency motion to amend the November 20 judgment to include a judgment on Mr. Gudoian's cross - claim. On December 16, 2014, the state court entered an Amended Final Judgment (the "First Amended Judgment"), including the relief sought by Mr. Gudoian in his emergency motion. After a second emergency motion to correct the First Amended Judgment, the state court entered an Order Granting Assented to Emergency Motion for Entry of Second Amended Final Judgment, which resulted in the entry of a Second Amended Final Judgment (the "Second Amended Final Judgment of Foreclosure "). On February 4, 2015, Monroe County executed and received from Mr. Denenberg and Mr. Gudoian two assignments of the Second Amended Final Judgment of Foreclosure (the "Assignments "). 1 of 7 WHEREAS, on January 16, 2018 (the "Petition Date "), MMC filed this voluntary petition for relief under chapter 11 of Bankruptcy Code. To date, no official committee of unsecured creditors has been appointed. WHEREAS, On March 29, 2018, the County filed its Motion to Dismiss, or Alternatively, for Relief from the Automatic Stay [ECF No. 26] (the "Motion to Dismiss "). On April 20, 2018, MMC filed a response to the Motion to Dismiss, filing its Debtor's Response in Opposition to Monroe County's Motion to Dismiss, or Alternatively, for Relief from the Automatic Stay [ECF No. 33] (the "Response "). WHEREAS, on May 1, 2018, the County filed its secured Proof of Claim 1 -1 in the amount of $ 1,119,472.00 (the "County Claim "). According to an "Explanation of Claim" attached as an exhibit to the County Claim, the County Claim is comprised of multiple components. First, the County asserts that it is owed a total of $ 520,941.83 under the Second Amended Final Judgment of Foreclosure (the "Judgment Amount "). Second, the County asserts that it is owed sum of $ 598,530.17 (the "Penalty Amount") pursuant to final administrative orders entered against MMC for alleged county violations. WHEREAS, as summarized in the Response, MMC disputes the validity and amount of the Penalty Amount of the County Claim. WHEREAS, the Parties are willing to enter into this Agreement to resolve the matters settled herein, including the Parties' dispute concerning the County Claim, the Motion to Dismiss, and the Response to, inter alia, avoid the attendant expense, risk, difficulties, delays, and uncertainties of litigation. NOW, THEREFORE, in consideration of the releases and promises set forth below, and other valuable consideration, the sufficiency of which is hereby acknowledged by all Parties, the Parties agree as follows: SETTLEMENT TERMS In consideration of the agreements, promises, and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Recitals The Parties acknowledge and agree that the recitals set forth above are true, are incorporated by reference and are explicitly made part of this Agreement. 2. Motion to Dismiss The Parties agree that the pending evidentiary hearing scheduled for August 9, 2018, on the Motion to Dismiss shall be cancelled. The Parties further agree that MMC's obligation to file a plan of reorganization on or before June 15, 2018, shall be continued, generally, and that MMC may elect not to file a plan of reorganization in this case in part based upon the agreements set forth herein. 3. Sale of Assets Unless MMC otherwise satisfies and pays in full the allowed 2of7 amount of the County Claim as provided herein, MMC shall conduct a public bankruptcy auction (the "Sale ") of the Real Property, pursuant to 11 U.S.C. § 363, on or before November 30, 2018, with a closing on the sale to occur on or before December 21, 2018 (the "Closing "). MMC agrees that the County: (i) is a qualified bidder to participate in the Sale; (ii) has a secured claim against the Real Property for the allowed amount of the County Claim; and (iii) shall be entitled to use the allowed amount of the County Claim as credit at Closing in the event that the County is the winning bidder at the Sale; provided that, in the event that the County is the successful bidder at the Sale, the County agrees to pay a cash commission to MMC's real estate broker at Closing in an amount of five (5 %) percent of its winning bid. 4. Determination of the Allowed Amount of the County Claim MMC stipulates that (i) as of the Petition Date the Judgment Amount of the County Claim totaled $520,941.83, (ii) it does not object to the Judgment Amount of the County Claim, and (iii) the Judgment Amount of the County Claim shall constitute an allowed amount of the County Claim. In connection with the Sale described above, the County may seek to include in the allowed amount of the County Claim additional sums that have accrued on the Judgment Amount after the Petition Date. As generally set forth in the Response, MMC disputes the Penalty Amount of the County Claim. Pursuant to the terms of this Agreement, MMC offers to compromise the Penalty Amount of the County Claim for the sum of $ 404,058.17 (the "Compromised Penalty Amount "). 5. Approval of County Commission Subject to the provisions in paragraph 6 below, counsel to the County, Bob Shillinger, will recommend that the County Commission accept the Compromised Penalty Amount of the County Claim at a meeting to be held on June 20, 2018 (the "Commission Meeting "). Mr. Shillinger makes no representations or warranties as to the outcome of the County Commission's consideration of the Compromised Penalty Amount and MMC acknowledges that the County Commission may decide to reject the Compromised Penalty Amount and such rejection shall not constitute a breach of this Agreement. 6. Payment of Stipulated Claim Upon Approval If the County Commission accepts the Compromised Penalty Amount of the County Claim at the Commission Meeting, then MMC shall pay the County a sum equal to the Compromised Penalty Amount plus the Judgment Amount (together totaling $925,000.00) in immediately available funds, on or before Friday, September 28, 2018. Upon MMC's payment of the $ 925,000 to the County on or before Friday, September 28, 2018, the County Claim shall be deemed to be satisfied in full and the County shall not be entitled to any other distributions from MMC or MMC's bankruptcy estate based on the County Claim. In such event, MMC may cancel the Sale described in paragraph 3 above. MMC represents and warrants to the County that MMC shall not assign, transfer, or otherwise divest itself of its right to pay the discounted amount to any party for any purpose other than for the purpose of fulfillment of MMC's charitable mission, as described in the recitals above and in the pleadings filed in the Bankruptcy Case. In the event that the County Commission approves the Compromised Penalty Amount at the Commission Meeting, but, thereafter, MMC fails to pay the $ 925,000 to the County, in immediately available funds, on or before Friday, September 28, 2018, then in such event: (i) the full Penalty Amount of the County Claim (i.e. $ 598,530.17 ) shall constitute part of the allowed amount of the County Claim; and (ii) MMC shall not object to the Penalty Amount of the County Claim. 3 of 7 7. Event of No Approval If the County Commission rejects the Compromised Penalty Amount at the Commission Meeting, then the Parties agree to the following process to resolve MMC's disputes concerning the Penalty Amount of the County Claim prior to the Sale: (a) MMC shall file an objection to the Penalty Amount of the County Claim on or before July 31, 2018 (the "Objection "); (b) The County will respond to such objection on or before the fourteenth (14th) day after the date MMC files the Objection; (c) MMC may file a reply to the County's response on or before the seventh (7 day after the date the County files its response; and (d) The Parties will request an evidentiary hearing to resolve the Objection so that the bankruptcy court may finally determine the allowed amount of the County Claim prior to the Sale so that the County can participate as a qualified bidder at the Sale. For avoidance of doubt, in the event that the County Commission rejects the proposed settlement, and the Court adjudicates the Objection as provided in this paragraph 7 so as to finally establish the allowed amount of the County Claim prior to the Sale, MMC shall have the right to satisfy the allowed amount of the County Claim, in immediately available cash, at any time prior to the Sale, and upon such satisfaction, MMC shall have the right to cancel the Sale. 8. Time is of the Essence The parties hereby agree that time is of the essence with respect to performance of each of the Parties obligations under this Agreement. 9. Funding for Capital Projects Upon MMC's payment of the allowed amount of the County Claim, as provided for herein, MMC will be eligible to apply for funding through Monroe County's Tourist Development Council for capital projects and events that are eligible for such funding and the County Commission shall consider MMC's applications on the same terms and conditions as all other applicants 10. Mutual General Release and Waiver of Parties Exclusive of the obligations, requirements, and duties expressly set forth in this Agreement, the MMC and the County, for themselves, their agents, officers, directors, legal representatives, subsidiaries, affiliates, successors, heirs, and assigns, fully and unconditionally waive, release, remise, and forever discharge each other from all known and unknown claims or causes of action, suits, debts, sums of money, accounts, covenants, bonds, obligations set forth in contracts, controversies, obligations set forth in agreements, promises, damages, expenses (including attorneys' fees and costs), claims and demands whatsoever, both in law and in equity ever had, now has, or may have against each other by reason of any matter, cause or thing whatsoever, from the beginning of time to the date of this Agreement; provided, however, that this release shall not constitute nor be deemed to constitute a release or waiver of any of the rights obtained by, or any of the obligations imposed upon, the Parties pursuant to this Agreement. 11. Commercially Reasonable Efforts The Parties and their counsel shall use commercially reasonable efforts to effectuate this Agreement. 4 of 7 12. Jurisdiction The Parties expressly agree that the Court in which the Bankruptcy Case was filed shall retain exclusive jurisdiction for the purposes of enforcing the terms of this Agreement. The Parties hereby consent to the Bankruptcy Court's entry of a final order with respect to any such dispute. 13. Good Faith These settlement negotiations have been undertaken by the Parties in good faith and for settlement purposes only, and neither this Agreement nor any evidence of negotiations hereunder, shall be offered or received in evidence in any action or proceeding for any purpose, other than in an action or proceeding to enforce this Agreement. 14. No Admission of Liability Each Party enters into this Agreement without admitting any liability or conceding any allegations unless expressly admitted or conceded in this Agreement. This Agreement and its provisions shall not be offered or received in evidence in any action or proceeding as an admission or concession of liability or wrongdoing of any nature on the part of any Party except that it may be offered and received in evidence solely to enforce the terms of this Agreement. 15. Entirety of Agreement This Agreement, including any exhibits, annexes and /or schedules hereto, constitutes the entire agreement between the Parties concerning the subject matter of this Agreement and supersedes all prior negotiations, agreements and understandings, whether written or oral, between and among the Parties concerning the subject matter of this Agreement. Each of the Parties hereto acknowledges that it is executing this Agreement without reliance on any representations, warranties or commitments other than those representations, warranties and commitments expressly set forth in this Agreement. 16. Amendments or Modifications No amendment, change or modification of any of the terms, provisions or conditions of this Agreement shall be effective unless made in writing and signed by the party against whom such amendment, change or modification is sought to be enforced. Waiver of any provision of this Agreement shall not be deemed a waiver of future compliance therewith and such provisions shall remain in full force and effect. 17. Fees and Expenses of the Agreement Each party shall be responsible for its own fees, including attorney fees, and expenses in connection with the Settlement described in this Agreement. 18. Divisions and Headings The division of this Agreement into sections and subsections and the use of captions and headings in connection therewith are solely for convenience and shall have no legal effect in construing the provisions of this Agreement. 19. Choice of Law The validity, construction, and enforceability of this Agreement shall be governed and controlled by the application of the laws of the State of Florida. 20. Severability of Provisions If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement shall not be impaired thereby. 21. Bankruptcy Court Approval Bankruptcy Court approval may be required for portions of this Agreement, such as the release contained in paragraph 10 above. In the event that 5 of 7 the Bankruptcy Court does not approve portions of this Agreement, those portions that do not require Bankruptcy Court approval shall remain in full force and effect. 22. Breach of this Agreement If any Party breaches this Agreement by failing to fulfill any of their respective obligations, the non - breaching Party will have the right to sue the breaching Party for damages incurred as a result of a breach of this Agreement. In any action relating to any breach of this Agreement, the Agreement may be asserted both as a defense and as a counterclaim or cross - claim. 23. Expenses for Enforcement To the extent allowed by the documents and applicable law, if any action or proceeding is brought to enforce or interpret this Agreement, the prevailing party, in addition to all other legal or equitable remedies possessed, shall be entitled to be reimbursed for all costs and expenses, including reasonable attorneys' fees incurred by reason of such action or proceeding. 24. Successors and Assigns This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors, assigns, heirs, devisees, executors, administrators, affiliates, representatives, assigns, officers, agents, and employees wherever the context requires, or admits. 25. Construction of Agreement This Agreement is the product of negotiations between the Parties, and the enforcement or interpretation of this Agreement is to be interpreted in a neutral manner; and any presumption with regard to interpretation for or against any Party by reason of that Party (or its counsel) having drafted or caused to be drafted this Agreement or any portion of this Agreement, shall not be effective in regard to the interpretation of this Agreement. 26. Representations and Warranties Except as otherwise set forth herein, each Party executing this Agreement represents and warrants that he or she is duly authorized to execute this Agreement, has all requisite power, authority, and approval required to enter into, execute, and deliver this Agreement. 27. Counterparts This Agreement may be executed in any number of counterparts, each of which shall be an original and enforceable against any party who signed it, but all of which together shall constitute one and the same document. A facsimile or scan of a signed copy of the Agreement shall serve as an original executed copy for all purposes. 28. Agreement to Further Cooperate Each Party represents that they will cooperate with each other to fulfill the terms and conditions of this Agreement. The Parties agree to take such additional action, including the execution and delivery of any additional documents, necessary or desirable in the reasonable opinion of any other party to effectuate the provisions and spirit of this Agreement. 29. Non - Reliance by Third - Parties No legal or natural person has any right or entitlement to rely upon the terms of this Agreement, or any part of them, to enforce or attempt to enforce any third -party claims or benefits under this agreement. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date appearing on the first page of this Agreement. 6of7 MARINE MAMMAL CONSERVANCY, INC. By: Printed Name: Title: Date: By: Printed Name: Mayor David P. Rice Date: 7of7 Inr • sioriaa Heys am nrida for 39 Yea F a • rd DOLPHINS PLUS HISTORY INNOVATIONS &ACCOMPLISHMENTS Member of the Florida Keys Business Community for - 39 Years Established 1 st NMFS Authorized MM Response in FLA Keys - 31 Years Established First Dolphin Interaction Programs in the World Established First Dolphin Therapy Programs in the World Authorized by numerous State & Federal Agencies NOAA /NMFS - USDA /APHIS Rescued 688 Marine Mammals / Released ( -10 % +) Published 70+ Peer - Reviewed Scientific Publications Prestigious Numerous Awards and Global Recognition Employ Hundreds of Staff - Maintain (22) Captive Born Dolphins - (3) Facilities Provide Numerous Educational Opportunities + University Affiliations WWW.DPMMR.ORG MISSION - PROTECT WILD DOLPHINS CONSERVATION - EDUCATION - RESEARCH WWW.DPMMR.ORG IMPORTANCE OF AN INDICATOR SPECIES © S.D. McCulloch SENTINELS OF OCEAN &HUMAN HEALTH WWW.DPMMR.ORG RAPID RESCUE RESPONSE J v WWW.DPMMR.ORG n A l ow 4 ;. t�i�r . A REHA- OSTICS CARE �)0111 7 N, SWIM � f yF, • e 1 'T All. t N ADVANGEL N M I ERIN ARY QIA� :,-- . 11 li 1 77, LINKS TO HUMAN AND OCEAN HEALTH WWW.DPMMR.ORG , Ty RESEARCH - LOGISTICS - RELE � f WWW.DPMMR.ORG PQN§ERuATION - INTERVENTIONS l" 0 l4ftw do WWW.DPMMR.ORG MASS STRANDING RESPONSE WWW.DPMMR.ORG LARGE WHALE STRANDING RESPONSE MR- $t wt r 1 4L CL. w a � L s f , iTITIMUTA � a 1 � I MA I Mel Z e FOR Em i� S*Wt— 1- W-Ju- WO ❑ go wo a r * / *- w rl ilea" Wv?s 12 flood f3 eonA.�aOU� 311!6+9 tem.$ 1n*. 7469 63600 31166{0 275M hp1,y ♦ A 6l 0n. o 9000000096 004000 6rs... d 525731 7761{9D llysw7mm 4"Oft. d 0 coomt ow I rms, : i 0 c,00=,% I !.J— j ow 0000"i ?a w= OCODDOWDO we mmv- 0 owmr.� B 000 6J.05— d 01406— .3 f • 6 IL id • FA 5 43090" .0 Vt 1h T,aCkrV —.Iylt 11 _ .14 . _j* ........ 11. ........ if. AE 'A ii d SIMI zx"w ilea" Wv?s 12 flood solm 1 311!6+9 7469 63600 31166{0 275M hp1,y 5242!00011696 3lymso"7 0n. ify"MAM" 6rs... d 525731 7761{9D llysw7mm 4"Oft. d !sAmzwl rms, pJ em." -d OIMSd !.J— j • FA craww" lk A 4A rA tj r PERMITS - GRANTS - FUNDING NMFS SA Stranding Response Permit NMFS Public Display Permit USDA/ APHIS Permit NMFS Population & Ecology Permit NFWF GEBF Grant $500K Keys Community / Fundraising Philanthropic Giving DPMMR WWW.DPMMR.ORG THREATS FACING WILD DOLPHINS Water Pollution Noise Pollution Loss of Habitat Natural Disasters Oil I Chemical Spills Climate Change Contaminant Entanglement Boat Hits Disease WWW.DPMMR.ORG e SOLUTION - FLA KEYS BASED ICS UNIT AND STATEWIDE MOBILE EDUCATION CENTER WWW.DPMMR.ORG I 8