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HomeMy WebLinkAboutItem P05 P5 BOARD OF COUNTY COMMISSIONERS COUNTY of MONROE �� i Mayor Holly Merrill Raschein,District 5 The Florida Keys Mayor Pro Tern James K.Scholl,District 3 Craig Cates,District 1 Michelle Lincoln,District 2 ' David Rice,District 4 Board of County Commissioners Meeting December 11, 2024 Agenda Item Number: P5 2023-3348 BULK ITEM: No DEPARTMENT: County Attorney TIME APPROXIMATE: STAFF CONTACT: Anjelica Harden-Ivanoski N/A AGENDA ITEM WORDING: Approval of settlement agreement in the matter of Peter Henry Poto and Olivia Poto v. Monroe County, Florida, Case No. 22-CA-709-K, and authorization for the County Attorney or designee to sign all necessary documents. ITEM BACKGROUND: This is a Settlement Agreement to resolve a case stemming from a Less Than Fee contact regarding RE 00179990-000000, 22777 Jolly Roger Drive, Cudjoe Key, Florida. PREVIOUS RELEVANT BOCC ACTION: INSURANCE REQUIRED: No CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Approval of Settlement Agreement. DOCUMENTATION: Poto—Settlement Agree ent_Clean_Version_11.15.2024.docx FINANCIAL IMPACT: 4907 SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT(the "Agreement") is entered into on this day of November, 2024 by and between Peter Henry Poto and Olivia Poto (collectively the "Potos") and Monroe County, Florida("Monroe County").' RECITALS WHEREAS, the Potos are the owners of record of that certain real property currently bearing a street address of 22777 Jolly Roger Drive, Cudjoe Key, FL 33042, more particularly legally described as follows: Lots 1 and 2, Block 18, Cutthroat Harbor Estates, according to the plat thereof as recorded in Plat Book 4, Page 165, Public Records of Monroe County, Florida. (hereinafter "the Subject Property", currently bearing Monroe County Property Appraiser's Office property identification number 00179990- 000000). WHEREAS, on September 24,2019, Jane P. Gilbert, as sole trustee of the Jane P. Gilbert Living Trust("Gilbert"), executed and conveyed to Monroe County a Covenant of Unity of Title and Restriction on Future Development and/or Conveyances (hereinafter the "Unity of Title"), recorded on September 27, 2019, at Book 2986, Page 2217, Document Number 2238473, Official Records of Monroe County, pursuant to which Gilbert conveyed to Monroe County the development rights of one of the two lots (above-described Lot 2) comprising the above legally described Subject Property; WHEREAS,the Potos acquired the Subject Property from Gilbert pursuant to that certain trustee's deed recorded on October 2, 2019, at Book 2987, Page 1473, Document Number 2239008, Official Records of Monroe County; WHEREAS, the Potos as, in relevant part, Plaintiffs/Counter-Defendants, and Monroe County as, in relevant part, Defendant/Counter-Plaintiff, are adversely aligned parties in Sixteenth Judicial Circuit Court Case No. 22-CA-709-K, Peter Henry Poto and Olivia Poto v. Monroe County, Florida, a Political Subdivision /Monroe County, Florida v. Peter H. Poto and Olivia Poto (hereinafter referred to as the "Action"); WHEREAS, the Parties desire to compromise and settle all issues and controversies between them including, without limitation, those alleged and/or described in the Action, and, therefore, stipulate and bindingly agree to the below terms of this Agreement; NOW, THEREFORE, in consideration of the recitals set forth above, mutual promises, covenants, and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby expressly acknowledged, and intending to be legally bound hereby, the Parties agree as follows: The Potos and Monroe County shall be variously below collectively referred to as the"Parties". Settlement Agreement—Page 1 4908 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated as if fully set forth herein. 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 parry is under coercion or duress. Neither parry has been forced into this Agreement or threatened in any way. B. Neither parry knows of any fact or circumstance which would cause this Agreement to be void or unenforceable. C. Except as otherwise provided herein, the Parties agree that each shall bear their/its own attorneys' fees, costs and expenses arising out of, in connection with, or related to, this litigation (i.e., the "Action"), whether such fees, costs, or expenses have been incurred prior to the execution of this Agreement or will be incurred after its execution. D. It is understood and agreed that this settlement is the compromise of doubtful and disputed claims. Nothing herein should be construed as an admission of liability on the part of either parry.By entering into this Settlement Agreement the parties intend merely to avoid litigation. 3. Purchase of Replacement Property. The Parties hereby stipulate that the Potos' title insurer shall purchase and acquire fee simple title to a"Replacement Property"that Monroe County has ex ante indicated meets Monroe County's requirements to be considered sufficient by Monroe County to induce it(the County) to enter into this Settlement Agreement, and, once this Replacement Property is so acquired, the Potos' title insurer shall cause the sellers of that property to execute a recordable general warranty deed conveying this Replacement Property over to the "Monroe County Board of County Commissioners". This Replacement Property is more particularly legally described as follows: Lot 21, Block 4, Breezeswept Beach Estates, according to the plat thereof as recorded in Plat Book 4, Page 143, Public Records of Monroe County. (currently bearing Monroe County Property Appraiser's Office property identification number 00202300-000000). 4. Conveyance of Replacement Property to Monroe County. The Potos' title insurer shall pay the purchase price and cause the sellers to deliver a properly executed recordable general warranty deed conveying unencumbered fee simple title to the Replacement Property over to the "Monroe County Board of County Commissioners". Settlement Agreement—Page 2 4909 5. Owner's Title Policy. Together with this conveyance of unencumbered fee simple title referenced in the preceding paragraph, the Potos' title insurer shall deliver to Monroe County an Owner's Title Policy relative to the Replacement Property in issued by Old Republic National Title Insurance Company the form attached hereto as Exhibit A. The Title Policy shall insure that the Monroe County is vested with fee simple title to the Replacement Property, and that the Replacement Property shall be free and clear of any mortgage(s), lien(s), and any other encumbrances at the time that fee simple title is delivered to Monroe County , unless (A.,) such encumbrance(s) is/are expressly identified as an exception in title commitment provided to Monroe County prior to closing, the form of which is attached hereto as Exhibit B; and Monroe County expressly consents, in writing,to take title to the Replacement Property assuming and subject to the exceptioned encumbrance(s) expressly identified in the title commitment. 6. Release of the Subiect Property from the Unity of Title. In exchange for the conveyance of the Replacement Property over to Monroe County in conformity with the terms of this Agreement, Monroe County agrees to thereafter release the Subject Property from Monroe County's Unity of Title. A copy of the mutually-agreed upon Release of Unity of Title is attached hereto as Exhibit C. Monroe County shall execute and deliver the Release no later than ten (10) days from Monroe County's receipt of this properly executed recordable general warranty deed. 7. Contingency. This Agreement shall be contingent upon the Potos' and/or their title insurer closing on the purchase of the Replacement Property and obtaining recorded fee simple title to the Replacement Property. If for whatever reason, the Potos or their title insurer are not able to after employing good faith efforts, obtain fee simple title to the Replacement Property then the Potos shall give prompt express written notice of the same to Monroe County, and the Parties shall be excused from the obligations contained in this Agreement. In this event this Agreement shall be null and void and of no force or effect, and the Parties shall proceed in the Action, unless the Potos and Monroe County mutually agree in writing to amend this Settlement Agreement to inter alia provide for a new "Replacement Property" to function as a substitute for the current Replacement Property identified above. 8. General Release. Except for the obligations of the Parties memorialized in this Settlement Agreement, the Parties, and their heirs, executors, administrators, conservators, trustees, beneficiaries, agents, legal representatives, successors, transferees, and assigns hereby remise, release, and forever discharge each other, their attorneys, employees, agents, insurers, heirs, executors, administrators, conservators, trustees, beneficiaries, legal representatives, successors, transferees, and assigns of and from any and all accrued and unaccrued claims (including,but not limited to, claims for costs, attorneys' fees, injunctive relief, statutory damages, punitive damages, restitution, interest, penalties, fees, and any other form of relief), damages, demands, suits, debts, actions, or causes of action of any kind, whether known or unknown, suspected or unsuspected, in both law and in equity, that the Parties ever had or may now or hereafter own, hold, have, or claim to have by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this Agreement, exclusively arising from, or relating to,the matter raised in the Action, including,but not limited to any and all claims, costs, fees, damages,relief,penalties, and transactions, in both law and in equity,that are,were, or could have been, alleged and/or by the Parties to the Action. Nothing in this release shall operate to release other parties (other than the Potos and Monroe County)to the transaction wherein the Potos Settlement Agreement—Page 3 4910 purchased the Subject Property from Gilbert. Neither parry hereby releases Gilbert or the real estate agents and brokers involved in the purchase and sale between the Potos and Gilbert. 9. Specific Release. With the exception of the Release of The Unity of Title which restores the Subject Property to the status quo prior to the recording of the Unity of Title, nothing contained herein shall operate to grant or enhance any rights and entitlements in favor of the Potos and the Subject Property, including any building permit allocations or proceedings, or any right or entitlement arising from any federal, state, or local law, pursuant to, or under the Monroe County Rate of Growth Ordinance ("ROGO"), Monroe County Code(s), Monroe County Comprehensive Plan, Florida Building Code, Florida Statutes, Florida Administrative Code, United States Code, United States Statutes at Large, Florida Constitution, Constitution of the United States, Keys Workforce Housing Initiative, Live Local Act, Bert J. Harris J. Harris Jr. Private Property Rights Protection Act, Florida Land Use and Environmental Dispute Resolution Act, 42 U.S.C. Section 1983, and/or for inverse condemnation that could have been brought with the filing of the instant litigation. This release does not limit the rights of the Potos, or their successors or assigns, as provided by law by virtue of transfer of title. It is the intent of the Parties that any existing rights or entitlements in favor of the Potos and the Subject Property are not forfeited or waived. 10. Continuing Jurisdiction. The Circuit Court of the 16'h Judicial Circuit in and for Monroe County, Florida, shall retain jurisdiction of the case identified herein as the "Action" for the sole purpose of enforcing the terms of this Settlement Agreement. 11. Good Faith. These settlement negotiations have been undertaken by the Parties in good faith. 12. Choice of Law; Governing Law; Venue. This Agreement is not subject to arbitration and shall be governed by, and construed and enforced in accordance with, the laws of the state of Florida, and venue for all claims, controversies, or disputes relating to this Agreement shall remain in the Circuit Court for the 16'h Judicial Circuit in and for Monroe County, Florida. 13. Authority. Each party to this Agreement represents and warrants to the other that the execution, delivery, and performance of this Agreement has been duly authorized by all necessary corporate and other organizational action, as required. 14. Inconsistency, Partial Invalidity, Severability, and Survival of Provisions. If any term and/or provision of this Agreement, or any portion(s) thereof, is/are in any way invalidated by any administrative hearing officer or court of competent jurisdiction, such invalidation shall neither limit nor impair the validity or operation of any other provision or term, or remaining portion(s)thereof. All such other term(s) and/or provision(s), or portion(s)thereof, shall continue unimpaired in full force and effect. 15. Integration. This Agreement constitutes the entire Agreement and any representation or understanding of any kind preceding the date of the Parties' written final approval of this Agreement not specifically and expressly memorialized herein is not binding on other of the Parties except to the extent that it has been specifically and expressly memorialized in this Agreement. Settlement Agreement—Page 4 4911 16. Amendment or Modification. No amendment or modification to this Agreement is effective unless each signatory party to this Agreement agrees, consents, and joins in writing thereto. 17. Binding on Successors,Assigns and Others. This Agreement and the covenants and conditions contained herein will apply to, be binding upon, and inure to the heirs, executors, administrators, conservators, trustees, beneficiaries, agents, legal representatives, successors, transferees, and assigns of the Parties hereto including, but not limited to, any subsequent committee, bankruptcy trustee,plan administrator, or liquidating trustee. 18. Interpretation and Construction. This Agreement is the product of collaboration between the Parties. The Parties acknowledge that each has been given an opportunity to independently review this Agreement with legal counsel, has agreed to the particular language of the provisions hereof and has fully participated in the drafting of this Agreement. In the event of any ambiguity in or dispute regarding the interpretation of any provision of this Agreement, such dispute shall not be resolved by any rule of construction providing for interpretation against the party who causes the ambiguity or against the drafter. All Parties hereto expressly agree that in the event of ambiguity or dispute regarding the interpretation of this Agreement, the Agreement will be interpreted as if each party hereto participated in the drafting hereof. 19. Captions and Paragraph Headings. Captions and paragraph headings, where used herein,are inserted for convenience only and are not intended to descriptively limit the scope and intent of the particular paragraph or text to which they refer. 20. Non-Reliance by Third-Parties to Enforce Third-Party Claims or Benefits. No non-signatory natural or legal person(s) shall be entitled to rely upon or utilize any term or provision of this Agreement to enforce or attempt to enforce any third-party claim(s) or entitlement(s)to or benefit(s) from any term or provision hereunder. 21. Advice of Counsel. The Parties acknowledge that they have been(or have had the opportunity to be) represented by counsel of their own choice in the negotiations leading up to the execution of this Agreement and that they have read this Agreement and have had the opportunity to receive an explanation from legal counsel regarding the legal nature and effect of this Agreement, and each Party understands the terms and provisions of this Agreement and its nature and effect. Each Party further represents that they are entering into this Agreement freely and voluntarily, relying solely upon the advice of their own counsel if applicable, and not relying on representation of any other Party or of counsel for any other Party. 22. Attorneys' Fees and Costs. If a signatory party to this Agreement brings an adversarial administrative proceeding or judicial action to enforce a right to relief afforded to it under this Settlement Agreement, and prevails in such adversarial administrative proceeding or judicial action, the prevailing signatory party to this Agreement may be entitled to reasonable attorneys' fees and/or costs to be paid by the losing signatory party to this Agreement as fixed by the administrative hearing officer or court of competent jurisdiction. Settlement Agreement—Page 5 4912 23. Counterparts and Facsimiles. This Agreement may be executed in multiple counterparts, each of which will be deemed an original Agreement, and all of which will constitute one agreement. Any signature in counterpart provided via facsimile and or electronic mail with a PDF attachment of this Agreement will be deemed an original signature. 24. Duty to Cooperate. The Parties will execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate the purpose and provisions of this Agreement. 25. Non-Assignability. This Settlement Agreement may not be assigned by one signatory party to this Agreement unless such assignment is first approved in writing by the other signatory party to this Agreement. 26. Miscellaneous.A signatory party to this Settlement Agreement's non-enforcement of a right afforded to it under this Settlement Agreement shall be at the discretion of that signatory party, and a signatory party's delay or failure to enforce a right afforded to it under this Settlement Agreement, however long continued, shall not be deemed a waiver or estoppel of its right to do so thereafter as to any violation or breach hereof. Failure of a signatory party to this Settlement Agreement to enforce a right afforded to it under this Settlement Agreement shall not impair the validity of this Settlement Agreement or the provisions or terms hereof or limit its/their enforceability in any way. 27. Stipulation of Dismissal With Prejudice. Within ten (10) days of(A.) Monroe County's receipt of the above-referenced Opinion of Title together with the above-referenced properly executed recordable general warranty deed conveying this Replacement Property over to the "Monroe County Board of County Commissioners" and CU. Monroe County having recorded the Release of the Unity of Title, the Parties agree to submit to the Court a Stipulation for the Dismissal With Prejudice of the Action in the form attached hereto as Exhibit D. EACH PARTY SIGNING THIS AGREEMENT REPRESENTS THAT THEY HAVE READ THE AGREEMENT, FULLY UNDERSTAND THE AGREEMENT, AND INTEND TO BE BOUND BY THE AGREEMENT. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be signed by their duly authorized representatives as of the date stated. This Agreement shall not be binding on any of the Parties until signed by all Parties. Monroe County Peter Henry Poto By: By: Name: Date: Title: Olivia Poto Date: By: Settlement Agreement—Page 6 4913 Date: Settlement Agreement—Page 7 4914 EXHIBIT 66 Settlement Agreement—Page 8 4915 EXHIBIT 66 Settlement Agreement—Page 9 4916 EXHIBIT 66 Settlement Agreement—Page 10 4917 Prepared by and Return to: Carlos D.Lerman,Esquire LERMAN&WHITEBOOK,P.A. 2611 Hollywood Blvd. Hollywood,FL 33020 RELEASE OF PROPERTY FROM UNITY OF TITLE WHEREAS, MONROE COUNTY, FLORIDA a political subdivision of The State of Florida is the Grantee of that certain Covenant Of Unity of Title And Restriction on Future Development and/or Conveyances dated September 27, 2019 ("Unity of Title"), recorded on September 27, 2019, in Official Records Book 2986,Page 2217 of the Official Records of Monroe County, Florida; AND WHEREAS, MONROE COUNTY, has agreed to release the real property hereinafter described from the Unity of Title and operation thereof. NOW THEREFORE, in consideration of these premises and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, Monroe County does hereby remise, release, quit-claim, exonerate and discharge from the operation of said Unity of Title, that certain real property, more particularly described as follows: Lots 1 and 2, Block 18, Cutthroat Harbor Estates, according to the plat thereof as recorded in Plat Book 4, Page 165, Public Records of Monroe County, Florida. Street Address of 22777 Jolly Roger Drive, Cudjoe Key, FL 33042 Which property is exonerated and discharged of and from the Unity of Title and every part thereof. IN WITNESS WHEREOF, EDGEFIELD HOLDINGS, LLC has hereunto set its hand and seal this day of 2024. Signed sealed and delivered in MONROE COUNTY, FLORIDA the presence of: BY: Printed Name: Title: Settlement Agreement—Page 11 4918 EXHIBIT 66 Settlement Agreement—Page 12 4919 IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY,FLORIDA CASE NO. CASE NO.2022-CA-709-K PETER HENRY POTO AND OLIVIA POTO, Plaintiffs, vs. MONROE COUNTY,FLORIDA,A POLITICAL SUBDIVISION, Defendant. JOINT STIPULATION FOR DISMISSAL WITH PREJUDICE Plaintiffs, PETER HENRY POTO AND OLIVIA POTO, and Defendant, MONROE COUNTY, having amicably resolved this matter,hereby stipulate to the dismissal with prejudice of all claims with prejudice,each party to bear their own fees and costs.The parties stipulate that Court shall retain jurisdiction of this case in order to enforce the terms of the Settlement Agreement. MONROE COUNTY ATTORNEY'S OFFICE LERMAN &WHITEBOOK,P.A. Counsel for Defendant Counsel for Plaintiffs 1111 12'Street, Suite 408 2611 Hollywood Boulevard Key West, Florida 33040 Hollywood, Florida 33020 By:/s/Anielica Harden-Ivanoski By:/s/Mario M. Ruiz Anjelica Harden-Ivanoski, Esquire Carlos D. Lerman, Esquire Florida Bar No. Florida Bar No. 768448 Mario M. Ruiz, Esquire Florida Bar No. 894590 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by the Court's E- Portal Automatic E-Mail Service on this day of August 2024,to counsel of record. LERMAN&WHITEBOOK,P.A. 2611 Hollywood Boulevard Hollywood,Florida 33020 Telephone: (954)922-2811 Facsimile: (954)922-2841 By:/s/Mario M. Ruiz Carlos D.Lerman,Esquire Florida Bar No. 768448 (.a;il;I�rS(ca lwla��p:�C:al.xofll, Mario Ruiz,Esquire Florida Bar No. 0894590 air io.(lijwlamfla:�xolll Settlement Agreement—Page 13 4920