Item P07 P7
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE Mayor Craig Cates,District 1
The Florida Keys Mayor Pro Tern Holly Merrill Raschein,District 5
Michelle Lincoln,District 2
James K.Scholl,District 3
m' David Rice,District 4
Board of County Commissioners Meeting
October 18, 2023
Agenda Item Number: P7
2023-1637
BULK ITEM: No DEPARTMENT: County Attorney
TIME APPROXIMATE: STAFF CONTACT: Derek V. Howard
N/A
AGENDA ITEM WORDING: Approval of a Settlement and Release Agreement in Galleon Bay
Corporation v. Monroe County and State of Florida, CA K 02-595.
ITEM BACKGROUND:
The proposed settlement agreement, if approved, would bring an end to over two decades of litigation
by concluding the last remaining issue of attorney's fees and costs. The parties have agreed to settle that
issue where the County would:
(a) Pay Galleon Bay $75,000 in costs (50% of which will be reimbursed by the State of Florida);
(b) Transfer ownership of Lots 1, 2, and 3 to Galleon Bay;
(c) Allow Galleon Bay to consolidate Lot 2 with Lots 1 and 3; and
(d) Issue two (2) ROGO allocations from the administrative relief pool for use on the resulting 2 lots.
Galleon Bay agrees to, inter alia:
(a) Waive its claims for attorneys' fees against the County and the State;
(b) Transfer ownership of Lots 4, 5, 9, 10, 13, and 14 to the County; and
(c) Fully and completed release all past,present, and future claims against the County and the State
arising out of the subject lots except for claims that may arise in the future with respect to Lots 1 and 3
(as aggregated with Lot 2).
By way of additional background, on May 26, 2016, the trial court entered its Final Judgment in favor
of Galleon Bay, which sought compensation for the inverse condemnation of 13 lots on No Name Key.
By satisfaction and operation of judgment, the County currently owns Lots 1, 2, 3, 6, 7, 8, and 11, and
Galleon Bay retains ownership of Lots 4, 5, 9, 10, 13, and 14. The Monroe County Land Authority
already owns Lot 12.
On behalf of the State of Florida, the Department of Commerce has agreed to the terms. The
Department of Commerce is the state land planning agency and the successor to the Department of
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Economic Opportunity (DEO)which succeeded the Department of Community Affairs (DCA). The
terms were previously discussed in a closed session of the BOCC at its July 19, 2023 meeting.
PREVIOUS RELEVANT BOCC ACTION:
The Board held a closed session on July 19, 2023 to discuss the terms.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
2023-09-2023 Settlement(Vivian signed) Pages in Correct order.pdf
FINANCIAL IMPACT:
$75,000.00
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IN THE CIRCUIT COURT OF THE SIXTEEN JUDICIAL CIRCUIT IN
AND FOR MONROE COUNTY, FLORIDA
GALLEON BAY CORPORATION,
a Florida corporation,
Plaintiff,
V. Case No.: 02-CA-595-K
BOARD OF COUNTY COMMISSIONERS
OF MONK COUNTY, FLORIDA,
a political subdivision of the State of Florida,
and
STATE OF FLORIDA,
Defendants.
SETTLEMENT AND RELEASE AGREEMENT
This Settlement. and Release Agreement ("Agreement") is made and entered into by the
Galleon Bay Corporation ("Galleon Bay"), the Board of County Commissioners of Monroe
County, Florida ("Monroe County" or 'VOLInty") and the State of Florida ("State"), coilectively
referred to herein as the "Parties". The intent and purpose of this Agreement is to fully,
completely, and exhaustively settle and satisf" any and all claims for an award of attorricys' fees
and costs against Monroe County and the State of Florida in connection with, under, arising out
of, or in relation to the above-captioned litigation (the "Galleon Bay Litigation") including, but
not limited to, any clairn(s) in connection with, Linder, arising Out of', or related to Galleon Bay's
Motion for Attorneys' Fees as Ordered By the Third District Court of Appeal (filed on March 7,
2014); motion to Tax Costs (filed on August 9, 2016); Motion For Attorneys Fees (filed can
December 14, 2016); and Motion lor Attorneys Fees (filed on December 29, 2016), also
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collectively referred to herein as "Galleon Bay's Fees and Costs Motions." The Parties hereby
agree to the instant Agreement as follows:
L WHEREAS, on May 26, 2016, the trial court entered its Final Judgment in favor
of Galleon Bay; and
2. WHEREAS, as to the subject lots that were found to be permanently taken (Lots 1,
2, 1, 6, 7, 8 and t 1), the Final Judgment ordered Defendants to pay Galleon Bay the total fair
market value of the lots as of July 19, 2001, as found by the jury ($179,500,00), plus simply
statutory interest from July 19, 2001, until payment is made and stated that title to the
permanently taken lots would pass to,the County UPOI) payment; and
3, WHEREAS, the County issued through normal course Rate-Of-Growth-Ordinance
("ROCTO-) allocations to Galleon Bay for the following lots on the dates, indicated: Lot 13
(March 9, 2011), Lot 9 (March 28, 2012), Lot 10 (March 28, 2012), Lot 5 (June 27, 2012), Lot 4
(August 29, 2012), and Lot .14 (August 29,2012);and
4. WHEREAS, the ROGO allocations for Lots 4, 5, 9, 10, 13 and 14 subsequently
expired by operation of law; and
5. WHEREAS, as to the subject lots that were temporarily taken (Lots 4, 5, 9, 10, 13
and 14), the Final Judgment ordered Defendants to pay simply statutory interest on their fair
market value as of July 19,2001, as found by the jury until the date that their takings ended with
the issuance of ROGO allocations plus prejudgment interest; and
6. WHEREAS, the Final Judgment entered judgment for the subject takings in the
total amount of $480,511,60, which includes prejudgment interest up to June 1, 2016 with
statutory interest from June 1, 2016 untiIjudgment is satisfied;and
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7, WHEREAS, the Final Judgment "retain[cd]jurisdiction to conduct a hearing after
the entry of the Imal judgment to determine the amount of fees and costs to be awarded by a
.separate judgment,"and
8. WHEREAS, the Final Judgment was affirmed by the Third District Court of
Appeal ("Third District") on September 12, 2018, and survived another challenge by Galleon
Bay pursuant to their March 19, 2019, motion to declare the Final judgment null and void when
the Third District affirmed this Court's denial of that motion on December 2,2020; and
9. WHEREAS, on September 19, 2019, the County satisfied the award of just
compensation by paying into the Registry of the Court$53 1,390.67, inclusive of interest; and
10. WHEREAS, the State subsequently reimbursed the County for its 50% share of the
takings compensation paid; and
11. WHEREAS, by operation of the Final Judgment, the County currently owns Lots
1, 2, 3, 6, 7, 8 and 11-, and
12. WHEREAS, by operation of the Final Judgment, Gallon Bay CUITently owns Lots
4, 5, 9, 10, 13 and 14; and
13. WHEREAS, the only remaining issue to be settled in the above-captioned
litigation is the amount of fees and costs to, be awarded to Galleon Bay and discovery on that
issue has been ongoing; and
14. WHEREAS, on March 7, 2014, Galleon Bay filed its Motion for Attorneys' Fees
as Ordered By the Third District Court of Appeal seeking an award of attorneys' fees on behalf
of James Mattson; and
15. WHEREAS, Galleon Bay maintains that Mr. Mattson provided 1,200 hours of
legal services and is seeking a billing rate of S600 per hour for a total of$720,,000; and
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16 WHEREAS, on December 14, 2016, Galleon Bay filed its motion seeking an
award of attorneys' fees on behalf of Andrew M. 'robin, Esq.;and
IT WHEREAS, Galleon Bay rnaintains that Mr. Tobin provided 992 hours of services
and is seeking a billing rate of at least$600 per hour for a total of$595,200;and
I& WHEREAS, on December 29, 2016, Galleon Bay filed its Motion for Attorneys'
Fees on belialf of Paul Golis;and
19, WHEREAS, Galleon Bay maintains that Mr. Golis provided 85.4 hours of legal
services and is seeking a billing rate of at least $600 per hour for a total of$62,460; and
20, WHEREAS, Galleon Bay maintains that the total amount of attorneys' fees,
incurred fior which ail award of fees is sought pursuant to its above-referenced Fees Motions is
S1,377,660;and
21. WHEREAS, it is Defendants' position contested by Galleon Bay that Defendants
preserved their statutory right to limit Galleon Bay's attorneys' fee award(s) to the percentage of
benefits achieved schedule in Fla. Stat. § 73.092(l) by making prior written offers and the
benefits achieved was zero ($0); and
22. WHEREAS, Galleon Bay filed its Motion to Tax Costs on August 9, 2016,
seeking to recover $189,986.57 in costs and Defendants are contesting many of the costs that
Galleon Bay is seeking to recover; and
23. WHEREAS, the Parties seek to avoid the time, expenses and uncertainty of further
litigating the remaining fees and costs issue(s) and desire to close and move on 1rorn the above-
captioned litigation once and for all; and
24. WHEREAS, Defendants agree to pay, and Galleon Bay agrees to accept, $75,000
in full settlement of its Motion to Tax Costs; and
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25. WHEREAS, Galleon Bay has no pending applications for ROGO allocations or
other development approvals as to the lots that it currently owns (Lots 4, 5, 9, 1 O, 13 and 14),-
and
26, WHEREAS, Galleon Bay recognizes that the limited number of ROGO allocations
that remain available in Monroe County is constrained by the hurricane: evacuation clearance
time requirements of Fla. Star. § 380.0552(9)(a)(2,), and further limited by the Habitat
Conservation Plan ("FICl?") and Incidental Take Permit (117') that applies to the: Big Pine
Key/No Name Key Planning sub-area, and the time, and expense in applying for and competing
for such ROGO allocations; and
27. WHEREAS, Galleon Bay recognizes that Lots 1, 2 and 3 currently owned by the
County are prime lots because they are waterfront, closer to the existing No Name Drive
providing for easier access, and closer to that certain property currently hearing Monroe County
Property Appraiser ("MCPA") property identification nurnber ("PIN") 00319492-004500,
currently owned by Galleon Bay, that may provide open water access„ and
28. WHEREAS, Defendants seek to concentrate any potential development of the
SUbjQd lots around existing development and infrastructure: to limit, adverse impacts on habitat,
and to conserve in perpetuity Lots 4, 5, 6, 7, 8, 9, 10, 11, 13 and 14; and
29. WHEREAS, Galleon Bay seeks to acquire Lots 1, 2 and 3 along with two (2)
ROGO allocations from the County for purposes of developtnent or marketing the lots for sale
by tgj transferring title to Lots 4, 5, 9, 10, 13 and 14 to Monroe County and � waiving its
claim(s) for attorneys' fees against the County and State; and
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30. WHEREAS, Galleon Bay agrees that the development right(s) for Lot 2 shall be
retired,but seeks to aggregate part of Lot 2 with Lot I and the remaining part of Lot 2 with Lot 3
to enlarge the buildable areas of Lots I and 3; and
31. WHEREAS, the County agrees to award Galleon Bay two (2) ROGO allocation's
fi,oni administrative relief for Lots I and 3, retire the development right(s) for Lot 2, and allow
part of Lot 2 to be aggregated with Lot I and the remaining part of Lot 2 with Lot 3; and
32. WHEREAS, the Parties agree that Galleon Bay has the right to build onesingle-
family residence on both Lots I and 3 (as aggregated with Lot 2) with the option of conducting
commercial fishing uses therewith, and that the development and use of Lots I and 3 shall
comply and be consistent with all applicable requirements of the Monroe County Land
Development Code and Monroc County Comprehensive Plan, including but not limited to all
opcn-spacc and setback TeCILlirements; and
33. WHEREAS, Galleon Bay agrees to fully and completely release Monroe County
and the State of Florida from, in law and equity, any past, present, and future claims, suits,
causes-of-action, demands, theories of compensation, and liabilities relating to, in connection
with, or arising out of the subject lots, including but not limited to inverse condemnation, Bert I
Harris Act ("Harris Act"), Florida Land Use and Environmental Dispute Resolution Act
("FLUEDRA"), federal and/or state civil rights, and other theories of"relief, except that as to Lots
I and 3 (as aggregated with Lot 2), Galleon Bay is not releasing the County or State from future
claims, suits, causes-of-action, demands, theories ofcompensation, and liabilities that may arise
after this Agreement; and
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34, WHEREAS, Galleon Bay agrees to fully and completely release Monroe County
and the State of Florida from any past, present, or future claims or entitlements to attorneys' fees
or costs in the above-captioned matter; and
35. WHEREAS, Galleon Bay agrees to hold harmless Monroe County and the State of
Florida as to any claims against them for attorneys' fees or costs in connection with the above-
captioned matter asserted by Tobin, Mattson, Golis, or their appraiser, Bob Gallaher, or any
other natural or legal Persons, and
36. WHEREAS, Galleon Bay agrees to indemnify Monroe County and the State of
Florida as to any claims against them for attorneys' fees or costs in connection with the above-
captioned matter asserted by their attorneys, j'obin, Mattson, Golis, Gallaher, or any other
natural or legal persons; and
NOW, THEREFORE, for good and valuable consideration, the adequacy of which is
hereby expressly acknowledged and attested to by the Parties, and in consideration of the
foregoing premises and provisions, which constitute material requirements of this Agreement
and not mere hortatory or precatory recitals, and of mutual agreements, covenants, and pronlises
as set forth herent, and for other good, adequate, and sufficient consideration described herein,
tile receipt and sufficiency of which are hereby acknowledged and attested to by the Parties, the
Parties hereto agree and stipulate to settle and bindingly agree as Billows:
Section 1. The foregoing paragraphs are true and correct and are hereby incorporated as
if fully set forth herein.
Section 2. — Settlement. No party is under coercion or distress or has been forced or
threatened into this Agreement in any way, Tile Parties have entered into this Agreement
knowingly, freely, and voluntarily, having determined that they have adequate
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information upon which to make informed decisions and having decided that it is in their
best interests to amicably resolve and conclude this litigation.
Section 3.—Payment of Costs.The Parties agree that the exhaustive amount of litigation
costs that the County and State shall pay Galleon Bay in full and complete satisfaction of
Galleon Bay's claim(s) for costs in the above-captioned matter is $75,000.00. Payment
shall be made within ninety (90) calendar days of the date that this Agreement has been
accepted by this Court. Payment shall be made directly to Bob Gallaher. Upon the
payment of$75,000.00 as set forth above, Galleon Bay shall in an executed recordable
written instrument release the County and the State of Florida from, in law and equity,
any and all past, present, and future claims, suits, causes-of-action, entitlements, and
liabilities in connection with, under, arising out of, or relating to trial related costs and
costs of any kind.
Section 4. —Waiver of Attorneys' Fees and Other Claims. Galleon Bay releases and
waives any and all claims for an attorneys' fees award in the above-captioned litigation as
stated in its Fees Motions or otherwise, and to hold harmless and indemnify Monroe
County and the State of Florida as to,in law and equity,any claims,actions,proceedings,
causes-of-action, and suits against them for attorneys' fees in connection with, under,
arising out of,or relating to the above-captioned matter asserted by Tobin,Mattson,Golis
or any other attorneys.
Section 5. Galleon Bay further fully and completely releases Monroe County and the
State of Florida from, in law and equity, any past, present and future inverse
condemnation, Harris Act, FLUEDRA, federal and/or civil rights, and other theories of
relief and/or compensatory claims in connection with, under, arising out of,or relating to
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the subject lots, except that as to Lots 1 and 3 (as aggregated with Lot 2), Galleon Bay is
not releasing the County or State from future claims, suits, causes-of-action, demands,
theories of compensation,and liabilities that may arise after this Agreement.
Section 6. Galleon Bay acknowledges and attests that it approves and executes this
Agreement after consultation with, and upon the advice of, counsel. Galleon Bay
acknowledges and attests that its counsel, in the course of said consultation and
representation, adequately and sufficiently apprised it of the legal effect(s) of the
satisfaction,release and waiver of known and unknown or unsuspected claims,causes-of-
action, demands, and liabilities as to Monroe County and the State of Florida. Having
been so apprised,Galleon Bay nevertheless elects to and does assume all risks for claims,
actions, proceedings, causes-of-action, demands, and suits (collectively "claims") as to
Monroe County and the State of Florida heretofore or hereafter arising, known or
unknown, relating to the subject matters contained herein, and Galleon Bay expressly
includes within the scope of this Agreement all such claims as to Monroe County and the
State of Florida, and expressly waives any right it may have to dispute the scope of this
Agreement on the basis of any statutory, constitutional, or common law grounds
addressing the issue of the release of unknown or unsuspected claims as to Monroe
County and the State of Florida.
Section 7. — Conveyance and Transfer of Title to Lots. Within ninety (90) calendar
days of the date that this Agreement has been accepted by the Court,Galleon Bay and the
County shall execute documents transferring title of Lots 1, 2 and 3 from the County to
Galleon Bay,and documents transferring title of Lots 4, 5, 9, 10, 13 and 14 from Galleon
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Bay to the County. The County shall be responsible for preparing the documents
effectuating the transfers of title.
Section 8. — Aggregation of Lot 2 With Lots I and 3. The Parties agree that the
development rights for Lot 2 are retired. The County and State agree to allow Galleon
Bay to aggregate part of Lot 2 with Lot 1 for the purpose of development, and agree to
allow Galleon Bay to aggregate the remaining part of Lot 2 with Lot 3 for the purpose of
development. Said lot aggregations shall be legally effectuated by lot aggregation
restrictive covenant(s) pre-approved by the Senior Director of the Monroe County
Planning & Environmental Resources Department that Galleon Bay has executed and
which the County has accepted by reciprocal execution. Said mutually executed lot
aggregative restrictive covenant(s) shall be promptly recorded in the Official Records of
Monroe County,Florida.
Section 9.—Issuance of Allocations for Lots 1 and 3. The County shall issue a ROGO
allocation for Lots 1 and 3 within sixty (60) calendar days from the date that Galleon
Bay's building permits are approved for the lots. Galleon Bay must apply for building
permits for Lots 1 and 3 within five (5) years of the date that the court accepts this
Agreement.
Section 10.—Environmental Mitigation. Due to Galleon Bay's conveyance of Lots 4,
5,9, 10, 13 and 14 to the County under this agreement,any additional mitigation fees that
would be required under Land Development Code Section 118-8 for the clearing of
plants or trees on Lots 1 and 3 (as aggregated with Lot 2) shall not be required for the
lots.
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Section 11. — No Admission of Liability. It is understood and agreed that this
Agreement,any consideration(s)given or accepted in connection with it,arising out of it,
or related to it, and the promises and covenants made in it, are all made, given, and
accepted specifically in settlement and compromise of past, present, and future disputed
claims and are not an admission of liability by any party. Neither the execution nor
performance of this Agreement, or any of its terms or provisions, will be deemed a
presumption, statement, liability, fault, or legal concession or admission of any fact, or
wrongdoing of any kind by either Galleon Bay, Monroe County, or the State of Florida,
and neither this Agreement nor any of its terms or provisions can be used in any legal or
equitable action or proceeding, other than to enforce the provisions of this Agreement.
The decision to settle a case may reflect the economic practicalities pertaining to the
cost(s)of litigation.
Section 12.—Integration. This Agreement represents the entire agreement between the
Parties. Any representation or understanding of any kind preceding the written final
approval of this Agreement not specifically and expressly memorialized in writing herein
is not binding. Any oral or written promises or assurances not contained in this
Agreement are waived, abandoned,withdrawn, and without legal effect. This Agreement
supersedes all prior communications,discussions,agreements,or understandings between
the Parties. This Agreement is entered into without reliance upon any statement or
representation of any party hereby released except for those contained in this written
Agreement. The Parties acknowledge that no other party, or agent, or attorney of any
other party, has made any promise, representation, or warranty whatsoever, express or
implied, not contained in writing herein concerning the subject matter hereof, to induce
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a(ny) party to execute this Agreement, and the Parties acknowledge they have not
executed this Agreement in reliance upon any such promise, representation, or warranty
not contained in writing herein.
Section 13. — Modification in Writing. This Agreement embodies all the settlement
agreements of the Parties and may be amended, modified, altered, or changed only by a
verified written instrument executed by all the Parties wherein specific reference is made
to this Agreement.
Section 14. — Governing Law. This Agreement is not subject to arbitration. This
Agreement was negotiated and executed in the State of Florida and shall be construed and
enforced in accordance with the laws of the State of Florida, without regard to conflicts
of laws principles.
Section 15. — Venue. Venue for all claims, controversies, disputes, actions, and
proceedings in connection with,arising out of,or related to this Agreement shall be in the
Circuit Court of the Sixteenth Judicial Circuit Court of Florida, in and for Monroe
County,Florida.
Section 16.—Successors and Assigns. Except as may be otherwise set forth herein, the
Parties to this Agreement agree and covenant that this Agreement is binding on the
Parties, and their subsidiaries,representatives, and successors in-interest and successors-
in-title,and all other natural or legal persons with whom any of the Parties have been,are
now, or may hereafter be affiliated or connected to. Galleon Bay does hereby covenant,
warrant,and represent that it has not conveyed or assigned,in whole or in part,any right,
claim, interest, or cause of action to any other natural or legal person or party which
might be asserted in the future against Monroe County or the State of Florida.
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Section 17. — Construction of Terms. As used in this Agreement, the singular shall
include the plural, the plural shall include the singular, and the use of any gender shall
include all genders as the context may admit or require. The language of all parts of this
Agreement shall be construed as a whole and according to its plain meaning.
Section 18. — Interpretation of Settlement and Release Agreement. In the event of
litigation between the Parties,this Agreement shall not be strictly interpreted or construed
against any party due to that party having prepared this Agreement,as it is acknowledged
that all Parties participated in the negotiation and preparation of this Agreement and have
been adequately and sufficiently represented by experienced counsel.
Section 19.—Severability and Survival of Provisions.Any provision of this Agreement
declared illegal or unenforceable by any court of competent jurisdiction or administrative
hearing officer that cannot be modified to be legal and enforceable will immediately
become null and void, leaving the remainder of this Agreement in full force and effect. If
any provision or term of this Agreement, or any portion(s) thereof, is/are in any way
invalidated or held invalid or unenforceable by any court of competent jurisdiction or
administrative hearing officer, it 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),
term(s),and portion(s)thereof shall continue unimpaired in full force and effect.
Section 20. — Section Headings. Captions and section and paragraph headings, where
used herein, are inserted for convenience only and for the sole purpose of convenience
and ready reference of the Parties. They do not purport to, and shall not be deemed to,
define, limit, or extend the scope or intent of the sections and paragraphs to which they
may pertain.
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Section 21.—Execution in Counterparts.Agreement may be executed in counterparts,
each of which will be deemed an original, and all of which together will constitute a
single document. Execution of facsimile copies, scanned copies, and other reproductions
will be acceptable as counterparts.
Section 22.—Multiple Originals.Multiple copies of this Agreement may be executed by
the Parties hereto,each of which shall be deemed to be an original.
Section 23.—Authority to Enter Into Agreement.By their signatures, the undersigned
warrant and represent they are authorized to enter into this Agreement on behalf of their
respective parties and to bind their respective parties to the terms of this Agreement.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the date
first written below:
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY,FLORIDA
1100 Simonton Street
Key West,FL 33040
Craig Cates
MONROE COUNTY MAYOR
Date:
STATE OF FLORIDA
Department of Commerce
107 East Madison Street
Tallahassee,Florida 323994120
Adam Callaway
Chief of Staff
GALLEON BAY CORPORATION
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\ h
Vivienn
President
Date: J °1
BROOKE SIERRA PACE
Notary Public-State of Florida
Commission#HH 435477
My Commission Expires
August 20,2027
S le rra
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