Item S11 S.71
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County of Monroe
�y,4 ' ?, "tr, BOARD OF COUNTY COMMISSIONERS
Mayor Michelle Coldiron,District 2
�1 nff `_ll Mayor Pro Tem David Rice,District 4
-Ile Florida.Keys Craig Cates,District 1
Eddie Martinez,District 3
w Mike Forster,District 5
County Commission Meeting
June 16, 2021
Agenda Item Number: S.11
Agenda Item Summary #3361
BULK ITEM: Yes DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Peter Morris (305) 289-2584
No
AGENDA ITEM WORDING: Approval of a Settlement Agreement in Monroe County v.
Magnolia 101 LLC, Case No. 13-CA-945-P and authorization for the County Attorney to execute on
behalf of the County.
ITEM BACKGROUND: This is a placeholder item. Counsel for the County and the property
owner are still finalizing the details of the proposed settlement agreement.
The underlying code compliance cases involved protracted litigation between Monroe County and
the property owner Magnolia 101, LLC ("Magnolia 101 LLC" or the "property owner"), of which
Brian Lindback is the company's sole officer and managing member. Under the proposed settlement
agreement, Magnolia 101 LLC shall within sixty (60) days of the BOCC's approval of this item
convey by Warranty Deed one parcel of real property owned by it(Square/Parcel 5, Ocean Acres,
according to the plat thereof) over to Monroe County and remit$750,000.000 over to the County, in
exchange for the County's agreement to impose an agreed suspended fine amount of$729,500.00,
enforceable for twenty (20)years, against the property owner and all other property owned by it.
Under the proposed settlement agreement,LU in the event Magnolia 101 LLC fails to timely pay the
$750,000.00 amount mutually agreed to, or fails to timely convey its real property over to the
County as described above, the County shall be immediately entitled to automatic stipulated
monetary payment in the full amount of$1,479,508 and/or automatic foreclosure on all of the
company's property up to that amount in as a stipulated foreclosure judgment credit bid, and (2.) in
the event Magnolia 101 LLC within the next twenty (20)years violates any of the Monroe County
Code provisions which the trial and appellate courts found it responsible, accountable, and liable for,
the County shall be immediately entitled to automatic stipulated monetary payment from the
property owner(or its successor(s)-in-interest) in the agreed suspended fine amount of$729,500.00
and/or to automatically foreclose on all of the company's property up to that amount as a stipulated
foreclosure judgment credit bid.
The property owner's three (3)underlying code compliance cases relate to parcels currently bearing
Parcel ID Nos. 00454520-000000 (CE100700148), 00454220-000000 (CE10070167), and
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00454110-000000 (CE10070169). In those case, Mr. Lindback, on behalf of Magnolia 101 LLC,
entered into stipulation agreements with the County promising to cease his business's violations and
to cure them by a mutually agreed upon date certain. Notwithstanding those agreement, Lindback
continued to violate or left uncured thirteen (13)violations he had earlier admitted to. The County
filed suit to vindicate its code enforcement liens against the owner. Following a trial, Judge Luis
Garcia issued a final judgment in the County's favor on May 17, 2017. The Court granted the
County full foreclosure, money judgment, and permanent injunctive relief against the property
owner. The property owner appealed but the Third District Court of Appeal affirmed Judge Garcia's
ruling.
PREVIOUS RELEVANT BOCC ACTION: N/A
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
Draft Settlement Agreement
FINANCIAL IMPACT:
Effective Date: Upon execution by both parties.
Expiration Date: Twenty (20)years following the Settlement Agreement's effective date.
Total Dollar Value of Contract: $1,479,500.00
Total Cost to County: None
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: N/A If yes, amount:
Grant:
County Match:
Insurance Required: No
Additional Details:
REVIEWED BY:
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Peter Morris Completed 06/08/2021 4:50 PM
Bob Shillinger Completed 06/08/2021 5:58 PM
Purchasing Skipped 06/01/2021 3:52 PM
Budget and Finance Skipped 06/08/2021 6:00 PM
Maria Slavik Skipped 06/01/2021 3:52 PM
Liz Yongue Completed 06/08/2021 6:03 PM
Board of County Commissioners Pending 06/16/2021 9:00 AM
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IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
OF THE STATE OF FLORIDA, IN AND FOR MONROE COUNTY
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA,
a political subdivision of the State of Florida,
Plaintiff, Case No.: 2013-CA-945-P
V.
Hon. Luis M. Garcia
MAGNOLIA 101, LLC, BRIAN
LINDBACK AS OFFICER OF MAGNOLIA
101, LLC, and ATLANTIC TRASH AND
TRANSFER, LLC,
Defendants.
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SETTLEMENT AGREEMENT BETWEEN MONROE COUNTY, FLORIDA, MAGNOLIA
101, LLC, AND BRIAN LINDBACK AS OFFICER OF MAGNOLIA 101, LLC
Plaintiff Monroe County, Florida ("Monroe County" or the "County"), and Defendants E
Magnolia 101, LLC, and Brian Lindback as the sole managing member and officer for
Magnolia 101, LLC ("Magnolia 101 LLC' or "Lindback"), hereafter collectively referred to E
as the "parties", hereby agree to settle the above-captioned litigation as follows: U
1. WHEREAS, Magnolia 101 LLC currently owns those certain below-described E
parcels of real property, and took title to them pursuant to that certain deed
recorded in the Official Records of Monroe County on or about October 28tn E
2005, at Book 2160, Page 1063, Document Number 1547626.
Squares 1, 4, 5 and 20, Ocean Acres, according to the Plat thereof, as
recorded in Plat Book 1, Page 188 of the Public Records of Monroe County,
Florida.
2. WHEREAS, following a non jury trial on February 2, 2017, brought pursuant to
found violations of the Monroe County Codes as memorialized in the Notices of
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Violation and Stipulation Agreements previously issued in and entered into in
those certain Monroe County Code Compliance Department cases identified as
Code Enforcement Case No. CE10070167, Code Enforcement Case No.
CE10070148, and Code Enforcement Case No. CE10070167, the Circuit Court
of the 16t" Judicial Circuit in and for Monroe County, Florida, granted Plaintiff
Monroe County full foreclosure, money judgment, and permanent injunctive relief
as memorialized at Paragraphs 15 through 19 of that certain Order Granting
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Final Judgment in Favor of Plaintiff attached as Exhibit "A." hereto and hereby
incorporated as if fully set forth herein.
3. WHEREAS, true and correct copies of said Notices of Violation and Stipulation
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Agreements referenced above are attached as Exhibit "B." hereto and are
hereby incorporated as if fully set forth herein. E
4. WHEREAS, the Third District Court of Appeal on February 27t" 2019, issued an
Order per curiam affirming, in favor of Plaintiff Monroe County, the above- E
referenced Order Granting Final Judgment in Favor of Plaintiff; a true and correct U
copy of said Order and the Mandate issued thereto is/are attached as Exhibit E
"C." hereto and is/are hereby incorporated as if fully set forth herein.
5. WHEREAS, the parties desire to compromise and settle and hereby stipulate E
and bindingly agree to the following:
NOW, THEREFORE, for good and valuable consideration, the adequacy of
which is hereby expressly acknowledged and attested to by the parties, Lindback
and the County hereby agree as follows:
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Section 1 - Recitals. The foregoing recitals are true and correct and are hereby
incorporated as if fully set forth herein.
Section 2 - Settlement. The parties have entered into this Settlement
Agreement knowingly, freely, and voluntarily, having determined that they have
adequate information upon which to make informed decisions and having decided that it
is in their best interests to amicably resolve this action.
A. Neither party is under coercion or duress. Neither has been forced into this
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Agreement or threatened in any way.
B. Neither party knows of any fact or circumstance which would cause this
Agreement to be void or unenforceable.
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C. Except as provided herein, the parties agree that each shall bear its own
attorneys' fees, costs and expenses arising out of, in connection with, or E
related to, this litigation, whether such fees, costs, or expenses have been
incurred prior to the execution of this Agreement or will be incurred after its E
execution. U
D. Magnolia 101 LLC warrants and represents that it has not conveyed the E
above-referenced real property(ies) or any interest therein to any person or
entity. E
E. The parties agree that, as a result of the valid and enforceable code
enforcement liens successfully litigated and brought to final judgment by
Plaintiff Monroe County in the foregoing trial and appellate litigation, Magnolia
101 LLC is liable for and legally obligated to pay Monroe County
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$1,479,500.00; this amount shall hereafter be referred to as the "Overall
Amount of Monroe County's Code Enforcement Liens".
The individual breakdown of liability associated with each square/parcel/lot
and Monroe County Code Compliance Department case is as follows-
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CE10070148 (Square 20/Parcel 20/Lot 20): $500,000.00
CE10070167 (Square 4/Parcel 4/Lot 4): $125,000.00
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CE10070169 (Square 1/Parcel 1/Lot 1): $125,000.00
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The foregoing Overall Amount of Monroe County's Code Enforcement Liens
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constitutes a cross-attached lien that exists upon the foregoing
squares/parcels/lots of land and upon any other real or personal property
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owned by Magnolia 101, LLC.
F. Magnolia 101 LLC agrees to, within sixty (60) calendar days of the County's
approval of this Agreement, convey by Warranty Deed the parcel referenced
above as "Square 5,1 Ocean Acres, according to the Plat thereof, as recorded
in Plat Book 1, Page 188 of the Public Records of Monroe County, Florida",
such approval being evidenced in the form of the undersigned Assistant
County Attorney's executed approval of this Agreement and approval and/or
ratifying approval by the County's Board of County Commissioners.
G. Magnolia 101 LLC agrees to submit to Monroe County monetary payment in
the sum of$750,000.00, as follows:
Also known as "Parcel 5, Ocean Acres, according to the Plat thereof, as recorded in Plat Book 1, Page
188 of the Public Records of Monroe County, Florida", and/or"Lot 5, Ocean Acres, according to the Plat
thereof, as recorded in Plat Book 1, Page 188 of the Public Records of Monroe County, Florida".
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Magnolia 101 LLC shall first submit an initial payment of$400,000.00
within ninety (90) calendar days of the County's approval of this
Agreement, such approval being evidenced in the form of the undersigned
Assistant County Attorney's executed approval of this Agreement and
approval and/or ratifying approval by the County's Board of County
Commissioners.
Magnolia 101 LLC shall a second submit payment of$350,000.00 within
one-hundred-and-twenty (120) calendar days from the date it submits the
foregoing initial payment of$400,000.00 to Monroe County.
H. In the event Magnolia 101 LLC does not comply with the obligations
memorialized at foregoing paragraphs "F." through "G.", the parties agree that
Plaintiff Monroe County shall be entitled to stipulated entry, by the Circuit
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Court, of an order of judgment rendered pursuant to paragraph 19 of the
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above-referenced Order Granting Final Judgment in Favor of Plaintiff, in the
sum total of the Overall Amount of Monroe County's Code Enforcement Liens
($1,479,500.00) in favor of the County.
I. The parties agree that the remaining $729,500.00 in lien compensation legally
due to Monroe County (i.e., the remaining uncompensated/unpaid amount of
the Overall Amount of Monroe County's Code Enforcement Liens) shall be
considered conditionally suspended, and shall hereafter be considered a
conditionally enforceable lien running in the County's favor, in accordance
with the following terms:
i. The following terms apply to the following lands and County
permits/approvals:
a. The Magnolia Street, Key Largo, Monroe County, Florida,
right-of-way held by and running in favor of Plaintiff Monroe
County.
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b. The areas of land delineated as the following-named rights-
of-way on the plat of Ocean Acres, according to the Plat
thereof, as recorded in Plat Book 1, Page 188 of the Public
Records of Monroe County, Florida: Magnoglia [sic] Street;
Hibiscus Street; Poinsetta Ave.; Bougainvilla Ave.; and
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County Road(s).2
c. The square/parcel/lot currently bearing Property
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Identification Number 00454520-000000 and presently
having a street address of 215 Magnolia Street, Key Largo,
Monroe County, Florida. A true and correct copy of the
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Monroe County Property Appraiser's Office's property record
card for this parcel is attached as Exhibit "E." hereto and is E
hereby incorporated as if fully stated herein.
d. The square/parcel/lot currently bearing Property E
Identification Number 00454220-000000 and presently U
having a street address of 235 Magnolia Street, Key Largo, E
Monroe County, Florida. A true and correct copy of the
Monroe County Property Appraiser's Office's property record E
card for this parcel is attached as Exhibit "F." hereto and is
hereby incorporated as if fully stated herein.
e. The square/parcel/lot currently bearing Property
Identification Number 00454110-000000. A true and correct
2 Said plat book page and said rights-of-way are attached as Exhibit "D." hereto and are hereby
incorporated as if fully stated herein.
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copy of the Monroe County Property Appraiser's Office's
property record card for this parcel is attached as Exhibit
"G." hereto and is hereby incorporated as if fully stated
herein.
f. The square/parcel/lot currently bearing Property
Identification Number 00454230-000000. A true and correct
copy of the Monroe County Property Appraiser's Office's
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property record card for this parcel is attached as Exhibit
"H." hereto and is hereby incorporated as if fully stated
herein.
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g. The square/parcel/lot owned by Monroe County currently
bearing Property Identification Number 00454510-000000. A E
true and correct copy of the Monroe County Property
Appraiser's Office's property record card for this parcel is E
attached as Exhibit "I." hereto and is hereby incorporated U
as if fully stated herein. E
h. The following squares/parcels/lots bearing the following
Property Identification Numbers (the Monroe County E
Property Appraiser's Office's Property Records Cards for
each such land is attached as composite Exhibit "J." hereto
and are hereby incorporated as if fully stated herein:
i. The square/parcel/lot currently bearing Property
Identification Number 00454120-000000.
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ii. The square/parcel/lot currently bearing Property
Identification Number 00454130-000000.
iii. The square/parcel/lot currently bearing Property
Identification Number 00454170-000000.
iv. The square/parcel/lot currently bearing Property
Identification Number 00454160-000000.
v. The square/parcel/lot currently bearing Property
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Identification Number 00454150-000000.
vi. The square/parcel/lot currently bearing Property
Identification Number 00454140-000000.
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vii. The square/parcel/lot currently bearing Property
Identification Number 00454240-000000.
viii. The square/parcel/lot currently bearing Property
Identification Number 00454250-000000. E
ix. The square/parcel/lot currently bearing Property U
Identification Number 00454260-000000. E
x. The square/parcel/lot currently bearing Property
Identification Number 00454270-000000. E
xi. The square/parcel/lot currently bearing Property
Identification Number 00454540-000000.
xii. The square/parcel/lot currently bearing Property
Identification Number 00454550-000000.
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xiii. The square/parcel/lot currently bearing Property
Identification Number 00454320-000000.
The square/parcel/lot currently bearing Property
Identification Number 00454330-000000.
ii. Magnolia 101 LLC shall not commit, re-commit, engage in, cause,
allow, countenance, or let there be a violation of any of the
violations of the Monroe County Code(s) established in the
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attached Notices of Violation and perfected in favor of Monroe
County following the parties' trial and appellate litigation. This
includes the obligation to comply with all conditions and
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requirements of associated with all County permit(s) and
approval(s) issued in connection with Squares/Parcels/Lots 1, 4, E
2
and 20.
iii. Magnolia 101 LLC, Atlantic Trash & Transfer LLC, Brian Lindback E
in his personal as well as in any official capacity, and all agents U
thereof, are required to maintain strict compliance with any and all E
County restoration permits issued in connection with
Squares/Parcels/Lots 1, 4, and/or 20. E
iv. Magnolia 101 LLC, Atlantic Trash & Transfer LLC, Brian Lindback
in his personal as well as in any official capacity, and all agents
thereof, are required to maintain strict compliance with any and all
County conditional use permit approval(s) issued in connection with
Squares/Parcels/Lots 1, 4, and/or 20.
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V. Magnolia 101 LLC, Atlantic Trash & Transfer LLC, Brian Lindback
in his personal as well as in any official capacity, and all agents
thereof, are strictly prohibited from parking or storing vehicles
(tractor trailer trucks or otherwise) overnight on any of the rights-of-
way identified in this Agreement.
vi. Magnolia 101 LLC, Atlantic Trash & Transfer LLC, Brian Lindback
in his personal as well as in any official capacity, and all agents
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thereof, are required to maintain strict compliance with any and all
conservation easement agreements approved by the County which
relate to Squares/Parcels/Lots 1, 4, and/or 20.
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vii. Magnolia 101 LLC, Atlantic Trash & Transfer LLC, Brian Lindback
in his personal as well as in any official capacity, and all agents E
thereof, are required to maintain strict compliance with any and all
County fencing, buffer-yard, open space ratio, buffer yard(s), E
stormwater retention requirements, intensity, density, and use U
requirements which relate to Squares/Parcels/Lots 1, 4, and 20. E
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viii. Magnolia 101 LLC, Atlantic Trash & Transfer LLC, Brian Lindback
in his personal as well as in any official capacity, and all agents E
thereof, are required to maintain strict compliance with any and all
County land use district and future land use map category
requirements associated with Squares/Parcels/Lots 1, 4, and 20.
ix. Atlantic Trash & Transfer LLC shall not commit, re-commit, engage
in, cause, allow, countenance, or let there be a violation of any of
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the violations of the Monroe County Code(s) violations established
in the attached Notices of Violation and perfected in favor of
Monroe County following the parties' trial and appellate litigation.
This includes the obligation to comply with all conditions and
requirements of associated with all County permit(s) and
approval(s), and conservation easement(s), issued in connection
with Squares/Parcels/Lots 1, 4, and 20.
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X. Brian Lindback shall not, in either a personal capacity, or in an
official capacity on behalf of any business organization, commercial
entity, or legal person in which he has an interest or serves in any
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capacity, commit, re-commit, engage in, cause, allow,
countenance, or let there be a violation of any of the violations of E
the Monroe County Code(s) violations established in the attached
Notices of Violation and perfected in favor of Monroe County E
following the parties' trial and appellate litigation. This includes the U
obligation to comply with all conditions and requirements of E
associated with all County permit(s) and approval(s), and
conservation easement(s), issued in connection with E
Squares/Parcels/Lots 1, 4, and 20.
xi. Magnolia 101 LLC, Atlantic Trash & Transfer LLC, Lindback in all
official capacities and in his personal capacity, and any and all
successors-in-interest and/or successors-in-title, shall not
authorize, cause, allow, countenance, or let there be a violation of
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any of the violation(s) by any tenant(s), agent(s), invitee(s), or
licensee(s), of the Monroe County Code(s) violations established in
the attached Notices of Violation and perfected in favor of Monroe
County following the parties' trial and appellate litigation. This
includes the obligation to comply with all conditions and
requirements of associated with all County permit(s) and
approval(s), and conservation easement(s), issued in connection
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with Squares/Parcels/Lots 1, 4, and 20.
xii. The violations referenced in romanettes "ii." through "xi." above are
mutually understood by the parties to prohibit the production of
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mulch, the storage of mulch, or the storage of vegetative debris.
xiii. The violations referenced in romanettes "ii." through "A." above are E
mutually understood by the parties to prohibit the crushing,
pulverization, jack-hammering, and any and all forms, kinds, or E
types of separating, crushing, or pulverizing rock, cement, concrete, U
stone, building materials, construction debris, or similar matter, on E
any and all of the parcels referenced in this Agreement — this
includes, but is not limited to, such activity(ies) for the purpose of E
separating rebar— and it is further mutually understood by the
parties that such activity(ies) constitute a proscribed heavy
industrial use as defined by the following definitional provisions of
the Monroe County Land Development Code:
Heavy industrial use. See "Industrial use, heavy."
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Industrial use, heavy means an industrial use with greater than
average impacts on the environment and community and that is
characterized by significant impacts on adjacent uses in terms
of noise, hazards, emissions and/or odors, including but not
limited to junkyards, salvage yards, solid waste disposal
facilities/waste transfer stations, bulk petroleum storage,
permanent concrete manufacturing facilities/concrete batch
plants and resource extraction.
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Light industrial use. See "Industrial use, light."
Industrial use, light means a use devoted to the manufacture,
warehousing, assembly, packaging, processing, fabrication
indoor and outdoor storage, or distribution of goods and
materials whether new or used and/or the substantial
refinishing, repair and/or rebuilding of vehicles or vessels.
xiv. Magnolia 101 LLC shall be required to immediately comply with
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any and all cease-and-desist orders issued by Plaintiff Monroe
County in connection with, arising out of, or relating to any violation E
of the foregoing terms enumerated at romanettes "ii." through "xiii."
above.
xv. Any violation of the foregoing terms enumerated at romanettes "ii." U
through "xiii." above requires Monroe County to provide written E
notice to Magnolia 101 LLC by hand-delivery or via, at the County's
election, either regular, certified, or registered mail, postmarked to E
the following address:
Magnolia 101 LLC
C/O Brian Lindback
195 N. Airport Road
Tavernier, FL 33070
xvi. Any violation cited or referenced within such written notice shall
grant a 30-day cure period, unless the violation at issue involves
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unauthorized landclearing of any land or right of way referenced at
romanette (i.)(a.)-(h.)(xiv.) above; the County may elect to provide
no time to cure such unauthorized landclearing.
xvii. If such non-landclearing violation is not cured within the 30-day
cure period provided, the County shall be entitled to, and Magnolia
101 LLC shall not oppose or challenge, entry, by the Circuit Court,
of an order of judgment in the sum total of the County's
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conditionally enforceable lien in the amount of$729,500.00, upon
the following condition:
a. Monroe County prevails at a hearing brought before the
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Code Compliance Special Magistrate regarding such
violation(s). In the event Monroe County prevails at such E
administrative hearing, Magnolia 101 LLC agrees to waive
its appellate rights, agrees not to attack such ruling by E
independent action (declaratory or otherwise), and stipulates U
that, in the event a bankruptcy proceeding is thereafter E
initiated, that it waives any automatic stay which may
otherwise be applicable. E
xviii. In the event of such unauthorized landclearing, the County shall be
entitled to, and Magnolia 101 LLC shall not oppose or challenge,
entry, by the Circuit Court, of an order of judgment in the sum total
of the County's conditionally enforceable lien in the amount of
$729,500.00, upon the following condition:
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a. Monroe County prevails at a hearing brought before the
Code Compliance Special Magistrate regarding such
violation(s). In the event Monroe County prevails at such
administrative hearing, Magnolia 101 LLC agrees to waive
its appellate rights, agrees not to attack such ruling by
independent action (declaratory or otherwise), and stipulates
that, in the event a bankruptcy proceeding is thereafter
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initiated, that it waives any automatic stay which may
otherwise be applicable.
xix. If a written notice as described at romanette "xv." is provided,
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whether involving unauthorized Iandclearing or a non-Iandclearing
violation, the violation(s) referenced therein is/are cured, and the E
County subsequently issues a second written notice citing or
referencing a violation for which a previous written notice was E
provided, then, as with a Iandclearing violation, the County may U
elect to provide no time to cure such repeated violation. In such E
event, the County shall be entitled to, and Magnolia 101 LLC shall
not oppose or challenge, entry, by the Circuit Court, of an order of E
judgment in the sum total of the County's conditionally enforceable
lien in the amount of$729,500.00, upon the following condition:
a. Monroe County prevails at a hearing brought before the
Code Compliance Special Magistrate regarding such
violation(s). In the event Monroe County prevails at such
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administrative hearing, Magnolia 101 LLC agrees to waive
its appellate rights, agrees not to attack such ruling by
independent action (declaratory or otherwise), and stipulates
that, in the event a bankruptcy proceeding is thereafter
initiated, that it waives any automatic stay which may
otherwise be applicable.
xx. The parties mutually agree that any judgment obtained by Monroe
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County in connection with romanettes "xvii." through "xix." above
may be enforceable by foreclosure, money judgment, or any
combination thereof, and that any such judgment may be assigned
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by the County.
xxi. The parties further mutually agree that Monroe County shall be, E
without prejudice to the County's rights to proceed before the
Special Magistrate as set forth at romanettes "xvii." through "xix." E
above, entitled to additionally enforce a violation of any term of this U
Agreement by filing an action for temporary and/or permanent
injunctive relief, including but not limited to failure to abide by a
cease-and-desist order issued by Monroe County. E
xxii. In the event the County does not prevail in an action or proceeding
to enforce its rights under romanettes "xvii." through "xx." above,
the County will not be precluded, by reason of the doctrine of
administrative finality, res judicata, collateral estoppel, or otherwise,
from seeking to enforce another violation of a term of this
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Agreement at another future date/time; furthermore, in the event
the County does not prevail in an action or proceeding to enforce its
rights under this Agreement, the fact that the County did not prevail
shall not function as a waiver or extinguishment of any right granted
to the County under this Agreement, and shall never be treated as
extinguishing any right of the County under this Agreement.
xxiii. Provided that compliance with all conditions herein is achieved in
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accordance with these terms and there are no new or renewed
code enforcement cases against the defendants in the above-
captioned action or involving the properties referenced herein, this
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conditionally enforceable lien in the amount of$729,500.00 shall be
waived and released by the County after twenty (20) years' E
passage following the legal effective date of this Agreement.
xxiv. The staff of the Monroe County Building Department, the Monroe E
County Planning & Environmental Resources Department, the U
Monroe County Code Compliance Department, are authorized to E
issue a written notice in accordance with romanette "xv." above, on
the condition that the Monroe County Attorney's Office has E
approved such written notice to be issued.
xxv. The staff of the Monroe County Public Works Department (including
but not limited to the staff of the Monroe County Roads and Bridges
Department, the staff of the Monroe County Facilities Maintenance
Department, and the staff of the Monroe County Engineering
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Department) at Plaintiff Monroe County's Public Works Department
building located on Magnolia Street, Key Largo, Florida, are
authorized to issue verbal and/or written cease-and-desist orders
requiring cessation of any activity or act, whether undertaken or
ongoing, which violates a term of this Agreement. A hard copy of
this Agreement may be furnished at the same time such verbal or
written cease-and-desist order is issued. This legal agreement
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requires all recipients of any verbal or written cease-and-desist
order to immediately comply with such order to cease-and-desist
issued by Monroe County Public Works staff.
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xxvi. The County's Code Compliance Department, Planning &
Environmental Resources Department, and Building Department E
staff shall, without liability to the County, have site access to
Squares/Parcels/Lots 1, 4, and 20, for the purpose of inspection to E
monitor and ensure compliance with the terms of this Agreement. A U
hard copy of this Agreement may be furnished at the same time of
such site access.
xxvii. Failure of Magnolia 101 LLC to comply with or perform any act E
required by this Agreement shall not impair this Agreement's
validity or its terms or provisions, or limit their enforceability in any
way.
xxviii. Enforcement of the terms or provisions of this Agreement is at the
discretion of Monroe County. The County's exercise or enforcement
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of any of its rights or remedies enumerated herein shall not be
subject to claims or defenses of estoppel or laches, and the
County's delay or failure to enforce or omission in the exercise of
any term or provision contained herein, however long continued,
shall not be deemed a waiver or estoppel of the right to do so
thereafter as to any breach, condition, or violation, and no County
waiver of a breach, condition, provision, or term hereof shall be
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construed to be a waiver of any succeeding breach of the same
breach, condition, provision, or term.
Section 3 - Duty to Cooperate. There is imposed upon Magnolia 101 LLC and
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Lindback in his personal and in all corporate capacities, an express duty to cooperate
with Monroe County in its actions undertaken to assure their compliance with this E
Agreement.
Section 4 - Inconsistency, Partial Invalidity, Severability, and Survival of E
Provisions. If any provision or term, or any portion(s) thereof, is/are in any way U
invalidated by any administrative hearing officer or court of competent jurisdiction, such E
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invalidation shall neither limit nor impair the validity or operation of any other provision
or term, or remaining portion(s) thereof. All such other provision(s) and term(s), or E
portion(s) thereof, shall continue unimpaired in full force and effect.
Section 5 -Venue and Construction/Interpretation. Exclusive venue under
this Agreement is the 16t" Judicial Circuit in and for Monroe County, Florida. This
Agreement is necessary for the health, safety, and welfare of the residents of and
visitors to the county. This Agreement and its construction are governed by the Monroe
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County Comprehensive Plan and the Monroe County Codes and shall be liberally
construed in favor of Monroe County, and such construction and interpretation shall be
entitled to great weight in adversarial administrative proceedings, at trial, in bankruptcy,
and on appeal. To the extent of any conflict between this Agreement and any other
Monroe County ordinances, regulations, or approvals, and to the extent of any conflict
within any parts within this Agreement, the more restrictive is deemed to be controlling.
Section 6 - Continuing Jurisdiction; Choice of Law. The parties mutually
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agree that the 16t" Judicial Circuit in and for Monroe County, Florida, shall retain
jurisdiction of the above-captioned case, in accordance with the terms of this
Agreement. This Agreement is not subject to arbitration.
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Section 7 - Binding Effect. It is agreed and understood that this Agreement
shall be and is binding upon the parties hereto, including their successors-in-interest. E
Section 8 - Integration. This Agreement constitutes the entire Agremeeet and
any representation or understanding of any kind preceding the date of the parties' E
written final approval of this Agreement not specifically and expressly memorialized U
herein is not binding on either of the parties except to the extent that it has been E
specifically and expressly memorialized in this Agreement.
Section 9 - Non-Reliance by Third-Parties. No non-signatory person(s) or E
entity(ies) shall be entitled to rely upon any conditions, provisions, or terms of this
Agreement to enforce or attempt to enforce any third-party claim(s) or entitlement(s) to
or benefit(s) from any conditions, provisions, or terms hereunder.
Section 10 - Execution in Counterparts. The parties acknowledge and agree
that this Agreement may be executed in one or more counterparts, each counterpart
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shall be considered an original portion of this Agreement, and all which constitute a
single instrument.
Section 11 - Effective Date. Once fully and finally executed by Magnolia 101
LLC and the County, this Agreement shall be considered legally effective and binding.
Section 12 - Exhibits/Scrivener's Errors/Performance Bond Requirement.
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The Monroe County Board of County Commissioners authorizes the Monroe County
Attorney and counsel representing the Monroe County Attorney's Office in this matter to
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insert all exhibits referenced herein, to correct any scrivener's errors within this
Agreement, and to revise this Agreement to add a condition of a performance bond,
prior to written execution of this Agreement on the County's behalf as approved
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authorized by the Board of County Commissioners following a duly noticed meeting of
the Monroe County Board of County Commissioners at which this Settlement E
Agreement is considered.
WITNESSESS TO ALL: APPROVED BY: E
Witness No. 1 (Print Name) Brian Lindback (Signature)
in his capacity as managing member E
and officer of Magnolia 101, LLC
Witness No. 1 (Signature)
Witness No. 2 (Print Name)
Witness No. 2 (Signature)
STATE OF FLORIDA COUNTY OF MONROE
The foregoing Settlement Agreement, was acknowledged and attested before me this
day of 2021, Brian Lindback as managing member and officer
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of Magnolia 101, LLC, who is personally known to me or produced
as proof of identification and did take an oath.
Notary Public (Print Name)
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Notary Public Seal Notary Public (Signature)
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ON BEHALF OF PLAINTIFF MONROE COUNTY, FLORIDA:
Peter H. Morris Date
Assistant Monroe County Attorney
FBN: 104101
Morris-Peter _ r u - v .
Monroe County Attorney's Office
1111 12th Street, Suite 408 ;
Key West, FL 33040
Telephone: 305-292-3470
Telefax: 305-292-3516
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MONROE Col , ATTORNEY
APP TO FORM
AS I TANT CO U N ATTORNEY
6/8/21
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