Settlement Agreement 06/20/2018
DATE:
July 3, 2018
TO:
Kathy Peters, CP
County Attorney’s Office
FROM:
Pamela G. Hancock, D.C.
th
SUBJECT:
June 20 BOCC Meeting
Attached is an electronic copy of Item P11, Settlement Agreement in the matter of Robert
Denenberg v. Marine Mammal Conservancy, Inc., Richard Gudoian, Jr., and Monroe County, CA
P 14-364/18-10594-LMI, for your handling.
Should you have any questions, please feel free to contact me at ext. 3130. Thank you.
cc: Finance
File
•
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:
RECITALS
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 ").
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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 Relieffrom 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 Relieffrom 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
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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.
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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.
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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
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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 gdmits: A °'
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'.' Constructisn of Agreement. This Agreement is the product of negotiations
between th 'arties;'arid 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.
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MARINE MAMMAL CONSERVANCY, MONROE COUNTY, FLORIDA
INC.
By: %� / By: ___ I__
Printed Name: Coo ee/' Printed Name:
Mayor David P. Rice
Title: e,ae..7� -44, ulllw, K' ??'
/ p Date: Z° 2011
Date: • 6 (a - -- /er /
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