Item Q8 Q.8
Coty f � ,�� ,' BOARD OF COUNTY COMMISSIONERS
�� Mayor David Rice,District 4
The Florida Keys � Mayor Pro Tem Craig Cates,District I
y Michelle Coldiron,District 2
James K.Scholl,District 3
Ij Holly Merrill Raschein,District 5
County Commission Meeting
August 17, 2022
Agenda Item Number: Q.8
Agenda Item Summary #10934
BULK ITEM: No DEPARTMENT: County Attorney's Office
TIME APPROXIMATE: STAFF CONTACT: Peter Morris (305) 289-2584
N/A
AGENDA ITEM WORDING: Discussion and Direction, as Required by Section 15. of the Unity
of Title on 22777 Jolly Roger Drive, Cudjoe Key, on a Request from Olivia and Peter Poto for the
Release of Said Unity of Title Acquired Through the Less-Than-Fee Program.
ITEM BACKGROUND: In 2019, Ms. Jane Gilbert sold one (1)transferrable development right to
the County under the Less than Fee (LTF)program. She owned two adjacent lots, one with a house
and the other with a swimming pool on it. Ms. Gilbert submitted her The Less Than Fee application
on February 20, 2019. The Board approved the purchase on September 18, 2019 and that transaction
closed on September 27, 2019. As part of the LTF transaction, a unity of title for the two lots was
filed in the official land records. Three days later, Ms. Gilbert sold that property to Olivia and Peter
Poto.
The Potos recently sued Ms. Gilbert and others, claiming that they did not know about the Less than
Fee transaction and would not have closed on the transaction had they known that they could not
build a second house on the lot with the swimming pool. The Potos have also sued the closing agent
and the title insurance company. That suit was dismissed without prejudice on February 4, 2022 so
the parties could engage in mediation per the underlying contract. On Marcy 11, 2022, the parties
held a mediation session before the Hon. Sandra Taylor and agreed to recess and reconvene at a later
date.
The Potos' request for release of the unity of title, as framed, is contrary to the interests of the
County and the State. The BOCC established the LTF program as one of several strategies for
retiring development rights. The BOCC initiated these programs in contemplation of the County
potentially reaching build-out in anticipation of the State of Florida stopping the issuance of
additional Rate of Growth Ordinance (ROGO) allocations beyond that which is authorized under
current law. Each building right retired is potentially one less property rights claim that the State and
County may have to defend in the future.
A simple refund of the transaction costs would add to, not subtract from, the overall residential
density potential for the County. Moreover, real estate values have increased so the Potos simply
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refunding the funds the County paid her in exchange for the development rights would not likely be
sufficient to close another LTF transaction.
However, if at least one parry to the dispute would retire a substantially equivalent development
right from a different parcel of land at no cost to the County in exchange for a release of the unity of
title for the Potos' property, that transaction would satisfy the County's interests and should resolve
the Potos' claim. In order to avoid the costs of litigation, the title insurance company or other
interested parry or parties may find it in its/their best interest(s)to purchase a lot with an equivalent
development right and donate it to the County or the Land Authority.
The Potos are required under Section 15 of the Unity of Title to first request for the BOCC to release
the subject Unity of Title, as a presuit condition to filing a court claim against the County seeking its
release.
PREVIOUS RELEVANT BOCC ACTION:
On 2/16/22, the Board voted (Coldiron/Raschein)to deny the former property owner's (Ms. Connie
Gilbert) request to rescind the transaction and restore the transferrable development right(TDR)that
had been retired as contrary to the County's interest. (Item H7).
On 9/18/19, the Board approved the contract for the purchase of a Less Than Fee
interest from Ms. Gilbert (Item T6).
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Denial as requested.
DOCUMENTATION:
Covenant of Unity of Title and Restriction on Future Development of Lot 2, Jolly Roger Drive,
Cudj oe Key
MCPA Aerial of Lots 1 and 2, Jolly Roger Drive, Cudjoe Key
Correspondence from Carlos Lerman, Esq., Counsel to Potos
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
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Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
N/A
REVIEWED BY:
Peter Morris Completed 08/02/2022 2:23 PM
Bob Shillinger Completed 08/02/2022 4:06 PM
Purchasing Skipped 08/02/2022 4:05 PM
Budget and Finance Skipped 08/02/2022 4:06 PM
Brian Bradley Skipped 08/02/2022 4:06 PM
Lindsey Ballard Completed 08/02/2022 4:21 PM
Board of County Commissioners Pending 08/17/2022 9:00 AM
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Doc#2238473 Bk#2986 Pg#2217 Recorded 9/27/2019 at 3:14 PM Pages 12
Filed and Recorded in Official Records of MONROE COUNTY KEVIN MADOK
REC: $103.50
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Prepared by/Return to:
Adele V.Stones,Esq.
Oropeza Stones Cardenas
221 Simonton Street
Key West,FL 33040 0
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----------------------------- Space Above This Line For Recording----------------------------
COVENANT OF UNITY OF TITLE AND RESTRICTION ON FUTURE
DEVELOPMENT AND/OR CONVEYANCES
THIS UNITY OF TITLE SHALL ICE INCORPORATED IN WHOLE AND
REFERENCED BY OFFICIAL RECORD BOOK AND PACE NUMBER AND
DOCUMENT NUMBER ON ALL TRANSFERS OF THE BELOW DESCRIBED Ci
REAL PROPERTY. 0
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WHEREAS, this Unity of Title is granted thisZ bay of September 2019, by Jane P. Gilbert, as sole Trustee, of
the JANE P. GILBERT LIVING TRUST under trust dated November 13, 1997 (hereinafter "Grantor(s)"), whose
address is 22777 Jolly Roger Drive, Summerland Key, FL 33042 to Monroe County, a political subdivision of the
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State of Florida(hereinafter"Grantee"),whose address is 1100 Simonton Street,Key West,Florida 33040;and 0
WHEREAS, the undersigned Grantor(s), is/are the sole fee simple title owner(s) of the certain below-described
real property (hereinafter "Primary Parcel") that is currently developed with a residential dwelling unit and is
located in Monroe County,Florida,having a legal description as follows and which is shown on attached Exhibit"
A,"which is hereby incorporated as if fully stated herein:
Parcel Address: 22777 JOLLY ROGER Dr,CUDJOE KEY,FL 33042 9=
Pareel(s)/Lot(s): Lot 1 Block: 18 0
Subdivision: Cutthroat Harbor Estates
Key: Cudioe Key Plat Book: 4 Page: 165
Real Estate Number(s): 00179990-000000
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WHEREAS, the undersigned Grantor(s), is/are the sole fee simple title owner(s) of the certain below-described
real property(hereinafter"Secondary Parcel")that is not currently developed with a residential dwelling unit or any
other habitable space and is located in Monroe County,Florida, having a legal description as follows and which is M
shown on attached Exhibit"B,"which is hereby incorporated as if fully stated herein:
Parcel Address: Lot 2 JOLLY ROGER Dr,CUDJOE KEY,FL 33042 -
Parcel(s)/Lot(s): Lot 2 Block: 18
Subdivision: Cutthroat Harbor Estates
Key: Cudioe Key Plat Book: 4 Page: 165
Real Estate Number(s): 00179990-000000 -
WHEREAS, Grantee is a general purpose political subdivision of the State of Florida and is authorized to regulate
and control the use of real property through the Monroe County Comprehensive Plan and the Monroe County
Code(s)to protect the public health,safety,and welfare; and
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WHEREAS, the Primary Parcel and Secondary Parcel are subject to the jurisdiction and requirements of the ;
Monroe County Comprehensive Plan and the Monroe County Code(s);and
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WHEREAS, this Unity of Title is located on the Primary Parcel and Secondary Parcel (hereinafter collectively
"Unified Parcel");and A
WHEREAS, Grantor(s) hereby attest(s) his/her/its/their recognition that this Unity of Title does not allow the
Unified Parcel to be divided into separate parcels;and
WHEREAS, Grantor(s) hereby attest(s) his/her/its/their recognition that the Unified Parcel shall hereafter
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exclusively be considered as one(1)parcel of land,and that no portion of said parcel of land may hereafter be sold,
transferred,devised,or assigned separately,except in its entirety as one(1)parcel of land;and
WHEREAS, Grantor(s) hereby attest(s) his/her/its/their recognition that in granting this Unity of Title, Grantor
acknowledges and accepts the condition hereafter limiting development to a single principal use (residential)
structure on the Unified Parcel;and
WHEREAS, the consent of all mortgagee(s) and holder(s) of any all other encumbrance(s) of or otherwise upon
the Unified Parcel is attached as Exhibit(s) "A" and `B:" If no such consent is attached hereto, the undersigned 0
Grantor (s), hereby attest(s) to Grantee that no such mortgage(s) and that no such other encumbrance(s) exist(s);
and
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WHEREAS, this Unity of Title is granted in consideration of payment in the amount of THIRTY THOUSAND -
DOLLARS($30,000.00)by Grantee to Grantor;and
WHEREAS, the undersigned Grantor(s) and Grantee hereby attest that such County payment in consideration E
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was/were given pursuant to this Unity of Title,and that this Unity of Title,together with its restrictions,conditions, 2
and limitations on future residential structure development are supported by good and valuable consideration;and y
WHEREAS, this Unity of Title does not discharge, exempt, waive, or otherwise release the undersigned
Grantor(s), tenant(s) thereto, the personal representative(s), heir(s), assign(s), and successor(s) in title of the
undersigned Grantor(s), or tenant(s) thereto, from their duty to obtain required federal, state, County, and local
approval(s) for any future construction of accessory structures or establishment of uses upon the Unified Parcel; C
and 0
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NOW, THEREFORE, as an inducement to Grantee for and in consideration of Grantee's payment of good and y
adequate consideration, the adequacy, sufficiency, and receipt of which are hereby expressly acknowledged and
attested to, the undersigned Grantor(s)hereby grants, creates, and establishes a Covenant of Unity of Title for and U)
in favor of Grantee upon the above legally described Unified Parcel which shall run with the land and be binding
upon the undersigned Grantor(s), and tenant(s) thereto, and shall remain in full force and effect forever, and
Grantor(s)declare(s)and grant(s)as follows:
1) Recitals.The foregoing recitals are true and correct and are hereby incorporated as if fully stated herein.
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2) Restriction on Development. Notwithstanding the general permitted density of one (1) residential dwelling
unit allocation per platted parcel,this Unity of Title:
A. restricts development on the Unified Parcel to one residential dwelling unit; 0
B. prohibits new accessory structures providing habitable space on the Unified Parcel; and
C. does not prohibit accessory uses and non-habitable accessory structures on the Unified Parcel. 0
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3) Prohibition of Parcel Division. This Unity of Title prohibits the Unified Parcel from being divided into U)
separate parcels, subdivided,re-subdivided,platted,re-platted,or conveyed as separate parcels or transferred as
separate parcels regardless of whether owned by single or multiple owners. A
4) Restriction on Conveyance. The Unified Parcel shall hereafter exclusively be considered as one (1) parcel of
land, and that no portion of said parcel of land may hereafter be sold, transferred, devised, or assigned
separately,except in its entirety as one(1)parcel of land.
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5) Monroe County Property Appraiser Records. Simultaneously with execution of this covenant of Unity of
Title, Grantor shall make application with the Monroe County Property Appraiser to combine the Primary U
Parcel and Secondary Parcel under this Unity of Title as a single real estate parcel for tax roll purposes. y
6) No Conflicts. The undersigned Grantor(s) hereby covenant(s) with Grantee that Grantor(s) is/are lawfully
seized of the Unified Parcel in fee simple free and clear of all encumbrances that are inconsistent with the terms
of and exhibits attached to this Unity of Title, and fully attest(s), warrant(s), and defend(s) the title to and 0
interest in the Unity of Title hereby conveyed against the lawful claims of all persons whomsoever.
7) Perpetual Duration. This Unity of Title is intended to benefit,run with the land in favor of,and shall inure to
Grantee,Monroe County,Florida. Ci
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8) Binding Effect. The undersigned Grantor(s), and the personal representative(s), heir(s), assign(s), and
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successor(s) in title of the undersigned Grantor(s), shall pay all taxes, assessments, fees, and charges of 0
whatever description levied upon or assessed by competent authority on the Unified Parcel therein before
delinquency, shall keep such levies and assessments current, and shall not allow any lien(s) on the Unified E
Parcel superior to this Unity of Title. In the event of failure to so disallow such lien(s), to extinguish such CL
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lien(s),and/or to obtain subordination of such lien(s)to this Unity of Title,in addition to any other remedy,the
damage(s) and/or debt(s) owed to Grantee shall constitute a lien against the Unified Parcel which shall
automatically relate back to the recording date of this Unity of Title.
9) Construction and Interpretation. The construction and interpretation of such, and all other,Monroe County
Comprehensive Plan provision(s) and Monroe County Code(s) provision(s) shall be construed in favor of
Grantee and such construction and interpretation shall be entitled to great weight on trial and on appeal. 9=
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10)Recordation,Amendment,Modification,or Release. 0
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A. The undersigned Grantor(s)hereby agree to the recording of the Unity of Title together with all appropriate
and required Joinder(s) with the Clerk of the Circuit Court of Monroe County and agree to the re-recording
of said documents at any time Grantee may require to preserve its(Grantee's)rights.
B. No amendment or modification to this Unity of Title is effective unless agreed to in writing by both
Grantee and the undersigned Grantor(s) and filed, together with all appropriate and required Joinder(s), _
with the Clerk of Circuit Court of Monroe County for recording in the Official Records of Monroe County,
Florida. 0
C. This Unity of Title may not be rescinded,voided,or released unless and until the Monroe County Board of
County Commissioners (hereinafter "BOCC") approves such rescission, voidance, or release by BOCC 4-
Resolution.
11) Subsequent Reference Requirement.
A. The undersigned Grantor(s), tenant(s) thereto, the personal representative(s), heir(s), assign(s), and U
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successor(s)in title of the undersigned Grantor(s),and tenant(s)thereto,hereby agree(s)to and shall submit
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a copy of this filed and recorded Unity of Title together with (simultaneously in date and time with) all U)
future development applications relating to the Unified Parcel. Such submission by the undersigned
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Grantor(s),tenant(s)thereto,the personal representative(s),heir(s), assign(s),and successor(s)in title of the
undersigned Grantor(s), and tenant(s) thereto, shall be to the agency(ies), department(s), and office(s) in
receipt of or otherwise receiving such development application(s). This requirement is non-exclusive to
Monroe County agencies, departments, and offices, and is to be construed as inclusive of all reviewing
federal, state, Monroe County, and local agencies, departments, and offices in receipt of or otherwise
receiving such development application(s), such that the undersigned Grantor(s), tenant(s) thereto, the .0
personal representative(s), heir(s), assign(s), and successor(s) in title of the undersigned Grantor(s), and
tenant(s)thereto,must so simultaneously furnish a copy of this filed and recorded Unity of Title to any and
all federal and state,Monroe County,and local agencies,departments,and offices in receipt of or otherwise y
receiving such development application(s).
B. The undersigned Grantor(s), tenant(s), thereto, the personal representative(s), heir(s), assign(s), and
successor(s) in title of the undersigned Grantor(s), and tenant(s) hereto, shall reference this Unity of Title 0
and all previously executed and recorded restrictions in any future instrument conveying title to or an >%
interest in the Unified Parcel,including the recording book and page number(s)and document number(s)of
this Unity of Title and all previously executed and recorded restrictions.
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12)Joint-and-Several Liability. If the undersigned Grantor(s), tenant(s) thereto, the personal representative(s), 0
heir(s), assign(s), and successor(s) in title of the undersigned Grantor(s), tenant(s), thereto, or any other non- -
County natural person(s) or legal person(s)are party(ies)to any suit, action, or proceeding, in law or in equity,
initiated, cross-initiated, counter-initiated, or filed by the County to enforce any provision(s), restriction(s), or
term(s)contained herein,and consist(s)of more than one person(s)or entity(ies),such person(s)and entity(ies)
shall be jointly and severally liable. 0
13) Non-Assignability.This Unity of Title shall not be assignable by the undersigned Grantor(s),tenant(s),thereto,
the personal representative(s),heir(s),assign(s),or successor(s)in title of the undersigned Grantor(s),tenant(s),
thereto, or any other non-County party with title to or an interest in the Unified Parcel,unless such assignment
is first approved by Monroe County BOCC Resolution.
14) Notice and Service of Process. C
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A. Notice—To Grantee.All notices; consents,approvals,or other communications to Grantee hereunder shall E
be in writing and shall be deemed properly served if sent by U.S. Postal Service Certified Mail, return 2
receipt requested,in the following for,and address:
Monroe County Planning&Environmental Resources Department
Attn: Senior Director
Subject:Unity of Title
2798 Overseas Highway
Marathon,FL 33050 4-
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And with a copy to:
Monroe County Attorney's Office -
Subject:Unity of Title
1111 12"Street,Suite 408 �
Key West,FL 33040
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15) Dispute Resolution — Meet-and-Confer Prerequisite. The undersigned Grantor(s), tenant(s) thereto, the U
personal representative(s), heir(s), assign(s), or successor(s) in the title of the undersigned Grantor(s), and
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tenant(s)thereto, hereby agree(s)that as a first condition precedent to his/her/its/their initiation of litigation or U)
adversarial administrative proceedings against the County in the form of a suit or action arising out of, related
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to, or in connection with this Unity of Title, shall first, prior to the initiation of such suit or action, attempt to
resolve their dispute(s) and disagreement(s) by a meet-and-confer session between himself/herself/themselves
and Monroe County Planning&Environmental Resources Department staff and counsel of the Monroe County
Planning&Environmental Resources Department. If no resolution can'be agreed upon within thirty(30) days
after occurrence of the aforesaid meet-and-confer session, such issue(s) shall next as a second condition
precedent to the initiation of such suit or action, be discussed at a public meeting of the Monroe County BOCC 0
occurring in the same geographic sub-area as the geographic location of such Unity of Title(i.e.,Upper Keys—
Key Largo,Middle Keys—Marathon,Lower Keys—Key West). The undersigned Grantor(s),tenant(s)thereto,
the personal representative(s), heir(s), assign(s), or successor(s) in title of the undersigned Grantor(s), and y
tenant(s)thereto,hereby agree(s)that in the event he/she/it/they so initiate such suit or action without satisfying
both of these conditions precedent to their initiation or litigation or adversarial administrative proceedings
against the County, that the County shall automatically be entitled to an Order granting Grantee's Motion to �y
Dismiss and Florida Statute Sec. 57.105 (2015) Motion for Sanctions and Attorney's Fee (or, at Grantee's 0
election (if applicable), their Florida statutory equivalent(s), Federal equivalent(s), or non-Florida legal
equivalent(s)).
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16) Limitation of Liability. C
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A. In the event of any litigation concerning the conditions,provisions,revisions,or terms of the Unity of Title,
Grantee,the undersigned Grantor(s),tenant(s)thereto,the personal representative(s),heir(s), assign(s),and
successor(s) in the title of the undersigned Grantor(s), and tenant(s) thereto, hereby agree to expressly
waive and shall be treated as having expressly waived their right to a jury trial.
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B. The undersigned Grantor(s), tenant(s) thereto, the personal representative(s), heir(s), assign(s), or
successor(s) in title of the undersigned Grantor(s), and tenant(s)thereto, hereby agree(s)that no charge(s)
or claim(s)shall be made by it for any delay(s)or the effective date of this Unity of Title.
C. No Waiver. Grantee shall not be deemed to have waived any rights under this Unity of Title unless such
waiver has been given,within this instrument,both expressly and specifically.
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D. No Personal Liability. The County expressly reserves and in no way shall be deemed to have waived for 9=
itself or for its officer(s), employee(s), or agent(s), any sovereign, governmental, and any other similar E
defense, immunity, exemption, or protection against any suit, cause-of-action, demand, or liability. U
Further, no covenant, provision, or term of this Unity of Title shall be deemed to be a covenant or
agreement of any officer, employee, or agent of the County in his or her individual capacity,and no officer,
employee, or agent of the County shall be liable personally in this Unity of Title or be subject to any
personal liability or accountability by reason of the execution of this Unity of Title.
E. Non-Reliance by Third-Parties. No person(s)or entity(ies)shall be entitled to rely upon the terms,or any
of them, of this Unity of Title to enforce or attempt to enforce any third-party claim(s) or entitlement(s)to ,-
or benefit(s)of any service(s),term(s),or programs)contemplated hereunder. 0
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17) Enforcement,
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A. Default Notice. Tn the event of breach or violation of the restrictions or terms hereof by Grantor(s),
tenant(s)thereto,the personal representative(s),heir(s), assign(s),or successor(s)in title of the undersigned
Grantor(s), or tenant(s)thereto, Grantee shall provide written"Notice of Default"or"Notice of Violation"
to such breach(es) or violation(s) within thirty (30) days of receiving notice of such breach(es) or 0
violation(s). U
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B. Grantor(s)Breach or Violation. U)
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1. Uncured breach(es) or violation(s), by the undersigned Grantor(s), tenant(s) thereto, the personal A
representative(s), heir(s), assign(s), or successor(s) in title of the undersigned Grantor(s), or tenant(s) a
thereto, of the terns of and restrictions imposed by this Unity of Title shall, without any additional >%
notice beyond this Unity of Title's recordation, entitle Grantee to immediately suspend and/or rescind,
without liability to Grantee, development applications, pending permits, approvals, and inspections,
and issued development order(s)contingent upon the effectiveness of this Unity of Title and Grantor(s) 0
compliance thereto, the compliance of tenant(s) thereto, the compliance of the personal
representative(s), heir(s), assign(s), or successor(s) in title of the undersigned Grantor(s) thereto, and U
the compliance of tenant(s)thereto, with the terms of this Unity of Title, applied for or those permits, y
approvals, and/or inspections necessary to cure such breach(es) or violation(s). Such uncured
breach(es) or violation(s) shall be presumed to constitute breach(es) or violation(s) that is/are
irreparable or irreversible in nature.
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2. In the event of any suit, action, or proceeding, in law or in equity, by the County to enforce the
restrictions or terms contained herein,if the County prevails in any such suit,action, or proceeding, on
trial or appeal, the County shall be entitled to reasonable attorney's fees, including trial, appellate,
bankruptcy,and post judgement costs and collection proceedings for the maintenance or defense of any C
such suit, action, or proceeding, to be paid by the losing party(ies) as fixed by the court. Any 0
judgement so rendered in favor of the County in connection with any suit,action, or proceeding arising ,-
out of,related to, or in connection with this Unity if Title,shall bear interest at the highest rate allowed 0
by law. The County may recover reasonable legal and professional fees attributable to the preparation,
administration, and enforcement of such suit, action, or proceeding, from any person(s) and/or E
entity(ies)from or whom a demand or enforcement request is made,regardless of actual initiation of a C
suit, action, or proceeding. These remedies are in addition to any other remedy,fine,or penalty which
may be applicable under,including,but not limited to,Chapters 162.373, and 403,Florida Statutes,and
any other action at law or in equity. Grantee hereby agrees and the undersigned Grantor(s), tenant(s)
thereto, the personal representative(s), heir(s), assign(s), and successor(s) in title of the undersigned
Grantor(s),and tenant(s)thereto,hereby agree that suits,actions,and proceedings arising out of,related
to, or in connection with this Unity of Title shall be in accordance with the Florida Rules of Civil
Procedure. 0
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3. Cumulative Remedies. In the event of any breach or violation of the restrictions or terms contained 0
herein, Grantee shall,without liability to Grantee, have the right to proceed at law or in equity as may U
be necessary to enforce compliance with the restrictions or terms hereof, to enjoin activities,
construction,maintenance,practices,repairs,and uses inconsistent with the restrictions or terms hereof,
and to otherwise prevent the breach or violation of any of them, to collect damages, and both
authorized and entitled to enforce this Unity of Title by emergency, preliminary, and permanent
injunction, including by ex parte motion and action for such injunction(s), it being hereby expressly
and specifically agreed that Grantee has no adequate remedy at law, or such other legal method as
Grantee deems appropriate, All rights and remedies accruing to the County shall be assignable in -
whole or in part and be cumulative;that is,the County may pursue such rights and remedies as the law
and this Unity of Title afford it in whatever order the County desires and the law permits. The
County's resort to any one law(s)and/or remedy(ies) in advance of any other shall not result in waiver
or compromise of any other law(s) and/or remedy(ies). The undersigned Grantor(s),tenant(s)thereto, -
the personal representative(s), heir(s), assign(s), or successor(s) in title of the undersigned Grantor(s),
and tenant(s) thereto, hereby agree(s) to and shall pay for all costs associated with Grantee's
enforcement action(s).
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4. Failure of the undersigned Grantor(s), tenant(s) thereto, the personal representative(s), heir(s), U
assign(s), or successor(s) in title of the undersigned Grantor(s), or tenant(s)thereto, to comply with or
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perform any act required by or under this Unity of Title shall not impair the validity of this Unity of U)
Title or the conditions, provisions, reservations, restrictions, rights, or terms hereof or limit their
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enforceability in any way,
5. Enforcement of the conditions, provisions, restrictions, and terms of this Unity of Title shall be at the
discretion of the Grantee, Grantee's delay or failure to enforce or omission in the exercise of any
condition, provision, reservation, restriction, right, or term contained herein, however long continued,
shall not be deemed a waiver or estoppel of the right to do so thereafter as to any violation or breach. 0
No Grantee waiver of a breach of any of the condition(s), provision(s), reservation(s), restriction(s),
right(s), or term(s) hereof, shall be construed to be a waiver of any succeeding breach of the same
condition(s),provision(s),reservation(s),restriction(s),right(s),or term(s)hereof. y
18) Miscellaneous.
A. Duty to Cooperate. Where required under this Unity of Title or related agreement(s), the undersigned 0
Grantor(s),tenant(s)thereto,the personal representative(s),heir(s),assign(s),and successor(s)in title of the
undersigned Grantor(s), and tenant(s) thereto, shall, to ensure the implementation of the government
purpose furthered by this Unity of Title, cooperate with Grantee's reasonable requests submitted to
Grantor(s), tenant(s) thereto, Grantor's personal representative(s), heir(s), assign(s), and successor(s) in Ci
title,and tenant(s)thereto,regarding the terms and conditions contained herein. 0
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19) Inconsistency, Partial Invalidity, Severability, and Survival of Provisions. If any condition, provision, 0
reservation,restriction,right,or term of this Unity of Title,or any portion(s)thereof,is/are held to be invalid or
unenforceable in or by any administrative hearing officer or court of competent jurisdiction, the invalidity or E
unenforceability of such condition, provision, reservation, restriction, right, term, or any portion(s) thereof, CL
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shall neither limit nor impair the operation, enforceability, or validity of any other condition, provision,
reservation, restriction,right,term, or any remaining portion(s)thereof. All such other conditions,provisions,
reservation,restrictions, rights,terms, and remaining portion(s) thereof shall continue unimpaired in full force
and effect.
20) Captions and Paragraph Headings. Captions and paragraph headings, where used herein, are inserted for LL
convenience only and are not intended to descriptively limit the scope and intent of the paragraph or text to 9=
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which they refer. 9=
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21)No Encumbrances. The undersigned grantor(s), tenant(s) thereto, the personal representative(s), heir(s),
assign(s), and successor(s) in title of the undersigned Grantor(s), and tenant(s) thereto, represent(s) and
warrant(s)that,to his/her/its/their knowledge,there are no superior encumbrances or material claims,cause-of-
action, or other proceedings pending or threatened in respect to the ownership, operation, or environmental
condition(s) of the above legally described property that may, shall, or will diminish, extinguish, interrupt, or
subordinate the effectiveness or operation of this Unity of Title's provision(s), restriction(s), right(s), and
term(s)running in perpetuity in favor of Grantee,Monroe County,Florida.
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22) Governing LawsNenue. This Unity of Title is and the construction and enforcement of the restrictions,terms, 0
and obligations established therefrom are governed by the Monroe County Comprehensive Plan and the
Monroe County Code(s), and shall be liberally construed and enforced in favor of the grant to effectuate the
public purpose of this Unity of Title and the policy(ies) and purpose(s) of the Monroe County Comprehensive -
Plan and the Monroe County Code(s). Exclusive venue for any dispute arising from or under,relating to, or in
connection with this Unity of Title shall be in the Sixteenth Judicial Circuit in and for Monroe County,Florida.
23) Authority to Attest. Each party to this Unity of Title represents and warrants to the other that the execution, >
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delivery, and performance of this Unity of Title has been duly authorized by all necessary corporate and other t)
organizational action,as required.
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24)Integration/Merger. This Covenant of Unity of Title constitutes the entire Covenant of Unity of Title and any U)
representation or understanding of any kind preceding the date of this Unity of Title's execution or recordation
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is not binding on the Grantee or the undersigned Grantor(s) except to the extent it has been incorporated into
this Unity of Title. .,
25) Effective Date. This Unity of Title will become effective upon recordation in the Official Records of Monroe
County,Florida.
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TO HAVE AND HOLD UNTO GRANTEE FOREVER.
EXECUTED ON THIS day of September 2019.
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WITNESSES TO ALL: GRANTOR(S)
JANE P.GILBERT LIVING TRUST
under trust dated November 13,1997
C( 1 Jane P.Gilbert,as sole Trustee
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First Witness(Print Name) Grantor No. 1 (Print Name)
P, -'
AM Witness(Signature) GraYltorNo. 1 (Signature) C
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22777 Jolly Roger Drive
Cudjoe Key,FL 33042
(Complete Mailing Address above) a
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STATE OF+444RA&A/A0� Ix-
COUNTY OF OF ,icoJf. y
The foregoing instrument,Monroe County Covenant of Unity of Title,was acknowledged before
me this.agday of September 2019,by Jane P. Gilbert,as sole Trustee of the Jane P.Gilbert Living Trust
under trust dated November 13,1997,who are personally known tome or produced .Qf i✓j Li eaxi lX—as
proof of identification and did take an oath. Adele K.Simpson
Notary Public,State of Maine
My Commission Expires January 5,2024 4-
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Notary Public(Print Name and Notary No.)
[NOTARY SEAL] /
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Notary Public(Signature)
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MONROE COUNTY, FLORIDA ACCEPTANCE OF UNITY OF TITLE
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In Witness Whereof,Grantee accepts the Covenant of Unity of Title granted above and executes this instrument
the date set forth below.
GRANTEE:
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Monroe County,Florida:
Emily Schemper U
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First Witness(Print Name) Senior Director,Monroe County Planning and
Environmental Resources Department(Print Name)
First itness tgnature) Senior Director,Monroe County Planning and
Environmental Resources Department(Signature)
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Second Witness(Print Name) Date(Print) O
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Secon a 'ignature) O
STATE OF FLORIDA
COUNTY OF MONROE
Before me,the undersigned authority, personally appeared Emily Schemper,on this Z'Jday of a
September 2019,whp is personally known to me or produced O
as proof of identification. a
Sworn and subscribed to before me this day of September 2019.
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V ft; SARA LOPEZ
MY COMMISSION#GG102753 Notary Public(Print Name and Notary No.)
?Cfff S September 07 2021
Notary Public(Signature) 4-
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Lot 1, Block 18 CUTTHROAT HARBOR ESTATES, according to the Plat
Thereof as Recorded in Plat Book 4, at Page 165, of the Public
Records of Monroe County, Florida.
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Exhibit°B" U)
Lot 2, Block 18 CUTTHROAT HARBOR ESTATES, according to the Plat
Thereof as Recorded in Plat Book 4, at Page 165, of the Public
Records of Monroe County, Florida.
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LAW OFFICES
LERMAN&WHITEBOOK,P.A.
2611 HOLLYWOOD BOULEVARD
HOLLYWOOD,FLORIDA 33020
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CARLOS D.LERMAN �`
MYRIAM K.LOUIS U
JODI W.LERMAN ai
SETH BENES TELEPHONE:DADE (305)539-0011
BROWARD:(954)922-2811
DANIEL S.WHITEBOOK,OF COUNSEL FACSIMILE:(954)922-2841
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April 26, 2022 21
Via FEDEX and Certified Mail
Monroe County Planning &
Environmental Resources `N
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Development '
2798 Overseas Highway
Marathon, FL
Attn: Senior Director 6
RE: Notice of Demand to Meet and Confer Pursuant to Paragraph 15
of the Covenant of Unity of Title and Restriction on Future g
Development and/or Conveyances dated September 27,2019 for the
property located at 22777 Jolly Roger Drive,Summerland Key,FL
33042 a/k/a Lots 1 and 2,Block 18, Cutthroat Harbor Estates,Plat
Book 4,Page 165 of the Public Records ofMonroe County Florida.
Real Estate No. 00179990-000000. 0
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Dear Sir or Madam: as
The undersigned is counsel for Olivia Poto and Peter Henry Poto, the owners of the above- 0
referenced real property ("Property"). My clients purchased the Property on September 30, 2019 C:
from Jane Gilbert,("Seller"). Three days prior to the closing of my clients'purchase of the Property, W
the Seller entered into a Covenant of Unity of Title and Restriction on Future Development and/or E
Conveyances (the "Unity Of Title ") and recorded this encumbrance against the Property. At the
time of my clients'closing,my clients were unaware that the Seller and the County had executed and
recorded the Unity of Title. While prior to my clients' purchase of the Property, my clients were U)
advised that the Seller was participating in the Less-Than-Fee-Program,my clients were not advised
that the Seller and County in fact had completed the process. Rather, my clients were advised that
they had the option to proceed with the program after the closing,if they elected to do so. My clients L-
had planned on abandoning the Seller's application.
A review of the County's records reveals that prior to the execution and recording of the
Unity of Title, the County was aware that the Property was under contract for sale, and that the U)
County made no effort to communicate with the proposed buyers, who were contract vendees, and '
the owners of a beneficial interest in the Property pending closing. What is equally concerning, is U
that prior to my clients'closing,the County and the Seller were scrambling to meet various deadlines
so that the closing on the Unity of Title could occur prior to my clients' closing. Emails among the
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Monroe County Planning and
Environmental Resources Department
May 3, 2002
Page 2
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County's records confirm this fact and further confirm that the Seller advised the County that if it
could meet her September 30, 2019 deadline, she would agree to accept less than 50% of the value
of the rights she was retiring in favor of the County. Again the County was aware that the Seller was W
under contract to sell and allowed the Seller to dispose of the valuable rights land use rights that %
were appurtenant to the Property at a fire sale without attempting in any manner to contact my
clients. Since the County was, at a minimum, on inquiry notice of my clients'beneficial interest in
the Property,the County was not a bonafide purchaser of the rights it attempted to acquire by virtue N
of the Unity of Title. As a result my clients are entitled to a rescission or vacation of the Unity of 2
Title,or alternatively to specific performance of a conveyance of the rights my clients were acquiring
under their contract, which included the rights purportedly given away by the Seller to the County.
Pursuant to Paragraph 15 of the Unity of Title,please consider this notice a demand to meet
and confer regarding the matters referenced in this correspondence, which meet and confer is a
condition precedent to initiation of an action against the County. If the meet and confer does not g
result in a resolution of this matter, my clients will seek to have the matter discussed at a public U)
meeting of the Monroe County BOCC,to satisfy the second condition precedent to filing suit as set
forth in Paragraph 15 of the Unity of Title. a
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Please contact the undersigned so that we may schedule the meet and confer concerning the 0
referenced issues promptly. 0
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Very truly yours, U)
Carlos D. Lerman
cc: Client E
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Monroe County Attorney's Office (via FEDEX and Certified Mail) L-
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