Resolution 124-1995
Planning Department
RESOLUTION NO. 124-1995
A RESOLUTION OF THE MONROE COUNTY BOARD OF
COMMISSIONERS AUTHORIZING THE MAYOR iP_
EXECUTE, ON BEHALF OF MONROE COUNTY, ~_~
SETTLEMENT AGREEMENT BETWEEN THE FLORI~~
DEPARTMENT OF COMMUNITY AFFAIRS, MONRG~
COUNTY AND THE KEY LARGO GROUP, INe.:
SETTLING A NOTICE OF VIOLATION (NOV) F~c
.97 ACRES OF LAND NEAR THE ENTRANCE ~~
THE OCEAN REEF SUBDIVISION. .,
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WHEREAS, Key Largo Group, Inc. is the owner of real proper-
ty described as:
.97 acres of land near the entrance to Ocean Reef sub-
division on South Harbor Drive between State Road 905
and Harbor Golf Course, which comprises a portion of
platted property known as Golf Manor II; also known
as Part of Tract A , Ocean Reef Plat #13, Harbor Course
Section 1; and
ty from Ocean Reef Club, Inc.; and
WHEREAS, Key Largo Group, Inc., acquired the subject proper-
WHEREAS, on May 4, 1993, the Florida Department of Community
Affairs issued a Notice of Violation and Order ("NOV") against
Ocean Reef Club., Inc., alleging certain violations of the Monroe
County Land Development Regulations relating to land clearing of
the approximately .97 acre referenced above, and requiring correc-
tive action as stated in the NOVj and
WHEREAS, DCA is the state land planning agency with the
duty and responsibility of administering and enforcing the provi-
sions of Chapter 380, Florida Statues, The Florida Environmental
Land and Water Management Act of 1972 ("The Act"), and the rules
and regulations promulgated thereunder, which include the Monroe
County Land Development Regulationsj and
WHEREAS, pursuant to Section 380.032 (3), Florida Statutes,
DCA is authorized to enter into agreements with any landowner,
developer, or governmental agency as may be necessary to effectu-
ate the provisions and purposes of The Act or any rules promulgat-
ed thereunderj and
WHEREAS, the parties wish to avoid the expense, uncertainly
and delay of litigation and to resolve the pending proceeding
under the terms and conditions set forth in the Settlement Agree-
ment, and it is in their best interest to do SOj and
WHEREAS, the staff report by Lorenzo Aghemo, Director of
Planning, found that the agreement between the Florida Department
of Community Affairs and Key Largo Group, Inc. complies with
the Monroe County Land Development Regulationsj and
WHEREAS, the Director of
consider the agreement to be
health, safety and welfare; and
Planning and
in the best
the planning
interests of
staff
public
WHEREAS, the staff report by Lorenzo Aghemo, Director of
Planning, recommends approval of the agreement and recommends
that the Board of County Commissioners authorize the Mayor to
execute the agreement between the Florida Department of Community
Affairs and Key Largo Group, Inc.; now therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA THAT:
The Board of Commissioners of Monroe County, Florida, agrees
with the recommendation of the Director of Planning that the
execution of this agreement would be in the best interests of the
citizens of Monroe County; and
This Board hereby adopts the recommendation of the Director
of Planning, his findings of fact and conclusions of law as our
owp; and
Therefore, we hereby authorize the Mayor to execute the agree-
ment between the Florida Department of Community Affairs, Monroe
County and Key Largo Group, Inc., a copy of said agreement is
attached hereto and incorporated by reference; and
Direct the Clerk of the Board is to forward three certified
copies of the executed agreement to the Division of Growth Manage-
ment.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the 18th day of April, A.D., 1995.
Mayor Freeman yes
Mayor Pro Tern London yes
Commissioner Douglass not present
Commissioner Harvey yes
Commissioner Reich yes
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
cS~-F~...,
MAYOR/CHAIRMAN (SEAL)
(SEAL)
BY: ~.udJ~~AA)
DEPUTY CLERK
lit
ATTEST: DANNY L. KOLHAGE, CLERK
Resolution # 1.11/-/995
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
v.
CASE NO. 93-3151
OCEAN REEF CLUB, INC., and
MONROE COUNTY, FLORIDA,
Respondents.
SETTLEMENT AGREEMENT
'This Agreement is entered into this
day of
1995, between KEY LARGO GROUP, INC., a Florida
corporation (herein "Key Largo Group") ; MONROE COUNTY, FLORIDA; and
the FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS
(herein "the
DepartJlent" or "DCAIt).
WHEREAS, Key Largo Group, Inc., is the fee simple owner of
approxiaately .97 acres of land near the entrance to Ocean Reef
subdivision on South Harbor Drive between State Road 905 and Harbor
Course Golf Course, which comprises a portion of platted property
owned by Key Largo Group and known as Golf Manor II, on Key Largo,
in unincorporated Monroe County, Florida (herein "the subject
property"); and
WHEREAS, Key Largo Group, Inc., acquired the subject property
from Ocean Reef Club, Inc.; and
WHEREAS, on May 4, 1993, the Department issued a Notice of
Violation and Order ("NOV") against Ocean Reef Club, Inc. I alleging
certain violations of the Monroe County land development
regulations relating to land clearing of the approximately .97
acres referenced above, and requiring corrective action as stated
in the NOV; and
WHEREAS, Key Largo Group denies any violation of the Monroe
County land development regulations; and
WHEREAS, most of Monroe County, including the subject
property, is located within the Florida Keys Area of Critical State
Concern, as designated under sections 380.05 and 380.0552, Florida
Statutes; and
WHEREAS, DCA is the state land planning agency with the duty
. and responsibility of administering and enforcing the provisions of
Chapter 380, Florida Statutes, the Florida Environmental Land and
Water Management Act of 1972 ("The Act"), and the rules and
regulations promulgated thereunder, which include the Monroe County
land develop.ent requlations; and
WHEREAS, pursuant to Section 380.032 (3), Florida Statute., DCA
i. authorized to enter into agreements with any landowner,
developer, or governaental agency as may be necessary to effectuate
the provisions and purposes of The Act or any rules promulgated
thereunder; and
WHEREAS, the parties wish to avoid the expense, uncertainty
and delay of litigation and to resolve the pending proceeding under
the terms and conditions set forth herein, and it is in their best
interests to do so; and
WHEREAS, the Department finds that this agreement is necessary
to effectuate the intent and provisions of Chapter 380, Florida
Statutes, and the Monroe County comprehensive plan and land
development regulations adopted pursuant thereto; and
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"WHEREAS, Monroe County joins in this agreement for the purpose
of implementing and enforcing same.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings set forth herein, and in consideration of the benefits
to accrue to the parties to this agreement, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Recitals. All recitals contained above are incorporated
herein and are essential elements hereof.
2. On-Site Restoration. The Owner agrees to on site
restoration equivalent to sixty (60') percent of the acreage of
one-half of Lot 3 and all of Lots 4-8, Golf Manor II, which is the
.97 acre. which is the subject of the Department's pending Notice
of Violation, referred to herein as the "on-site restoration area".
OWner shall plant vegetation on the subject property in the
restoration area depicted on Exhibit A attached hereto and made a
part of this agreement, subject to the follow~ng criteria:
a. Plants shall consist of tropical hardwood hammock
plants native to the Florida Keys, planted on 5-foot centers, one-
third in one-gallon containers, one-third in 3-gallon containers,
and one-third in 10-gallon containers. At least one-third of all
plants shall be 6 feet tall at the time of planting. A minimum of
6 inches of topsoil shall be added around root balls, i.e., the
hole is 12 inches greater in diameter and 6 inches deeper than the
pot.
b. All plants shall be nursery stock.
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c. A plant list identifying the types of plants to be
utilized for restoration is attached as Exhibit B and incorporated
herein. The plant list may be modified, without modifying this
Agreement, with the written consent of the Department, if any
particular species is not available at the time initial planting
actually occurs.
d. A minimum of fifteen (15) different plant species
from Exhibit B shall be utilized for on-site restoration. Of those
15 species, seven (7) percent shall be torchwood, or wild lime if
torchwood is not available at the time of planting. A maximum of
seven (7%) percent of the total number of plants utilized in the
on-site restoration area shall be of anyone species. Plant
species shall be randomly scattered throughout the on-site
restoration area to avoid isolated pockets of a sinqle plant
species.
e. The restoration area shall be contiguous and
connected to prevent biofraq,mentation.
f. The planted area will be mulched to two inches with
native mulch to keep down exotic plant infiltration.
g. All tailings from holes drilled for the plants will
be removed and placed on the scarified area of the property to
further hold down exotic plant infiltration.
h. Any exotic plants which are on the subject property
or which appear on the property will be continuously removed.
i. Any non-native plants which are in the on-site
restoration area or which appear in the on-site restoration area
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will' be continuously removed.
j. The Owner guarantees a survival rate for the new
plants of eighty (80t) percent for three (3) years from the time of
initial planting. Dead or dying plants shall be replaced as
necessary to ensure the eighty percent (80') survival at the end of
the third year after the initial planting. Replacement plants
shall be of similar size as the species replaced.
k. The initial planting shall occur on or before August
31, 1996.
1. The Owner shall notify the Department when initial
planting begins, and shall notify the Department that the initial
planting has been completed within five (5) working days (Monday-
Friday) after completion of the work. Notice shall ~e in writing,
by mail or telefax, directed to either the Depa~t.s
Headquarters (to Growth Management Administrator, Region 11,
Deparbaent of Community Affairs, 2740 centerview Drive,
Tallahassee, FL 32399-2100, Fax: 904/488-3309) or the Department's
Field Office (to Administrator, Department of Community Affairs
Field Office, Marathon Regional Service Center, 2796 Oversea.
Highway, Suite 212, Marathon, FL 33050, Fax: 305/289-2442).
3. Restoration Guarantee for On-site Restoration.
a. wi thin fourteen (14) days after the date of this
agreement, a restoration guarantee in the amount of Nineteen
Thousand Four Hundred Five Dollars ($19,405.00) to cover the cost
of on-site restoration shall be provided in the form of a deposit
made with Monroe County. The deposit shall be in a form and manner
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~cc.ptabl. to the parties hereto and shall be placed in an
interest-bearing account.
b. After the restoration work has been completed by the
OWner and after the Department determines that the restoration work
is consistent wi th this agreement, the restoration guarantee,
including accrued interest, shall be released to the Owner. with
the concurrence of the Department after an inspection of the site,
the restoration guarantee may be periodically drawn down as
restoration work is completed.
c. On or after September 1, 1996, if the County or the
Department determines that the OWner has failed to perform the on-
site restoration work according to the terms of this agreement, the
County or the Department shall issue written notice to the owner
that a default in the terms of this aqre.ment has occurred., and
shall provide the Owner thirty (30) days from the date of the
notice to cure the default by performing the on-site restoration
required under this agreement. Notice under this section shall be
provided by way of hand delivery, registered or certified mail,
express mail or delivery service, or telefax to Key Largo Group,
Inc., in care of Mr. Christopher B. Hewett, 2600 Douglas Road,
suite 900, Coral Gables, Florida, 33134 (Telephone: 305-567-1904;
Fax: 305-567-1469), or such other individual/entity or address as
the Owner shall hereafter designate in writing. If the default is
not cured by the Owner within said 30-day period, the funds on
deposit with the County plus accrued interest thereon shall be
deemed forfei ted to the County. Thereafter, the County is
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~uthoriz.d to use the forfeited funds for the specific purpose of
accomplishing the restoration required under this agreement.
Surplus funds, if any, shall remain the property of Monroe County
for use on other restoration projects as the County, in its sole
discretion, shall deem appropriate.
4. Off-site Mitiaation: DeDosit With Florida Kevs Native
Nurserv.
In consideration of the Department's agreement that
planting on site may be delayed up to August 31, 1996, the owner
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aqrees to additional off-site mitigation in the form of a donation
to Monroe County in the amount of Ten Thousand One Hundred Seventy-
Five Dollars ($10,175.00).
This sum represents approximately
double the current cost of plant material for restoring/mitigating
forty (40') Percent of one half of Lot 3 and all of Lots 4-8 of
Golf Manor II. The funds are to be deposited to the account of
MDnroe County at the Florida Keys Native Nursery. These funds may
be expended by Monroe County as it deems appropriate for any bona
fide restoration project by Monroe County or the Monroe County Land
Authority on land in the Upper Keys.
5. Clusterina of Homesites. A maximum of eight (8) single-
family homes may be built at Golf Manor II, clustereu according to
the site location for the housepads attached as Exhibit A.
However, building permits for those homes shall not be sought by
the owner or issued by Monroe County until on-site restoration
planting, excluding the construction zone referenced in Section
below 6, has been completed.
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6. Construction Zone: Restoration: ODen SDace Require.ent.
a. Hammock Area. The parties agree that the vegetation
previously existing on one-half of Lot 3 and all of Lots 4-8, Golf
Manor II, consisted of moderate quality low tropical hardwood
hammock, and that the open space requirement is sixty percent
(60%). The Owner acknowledges that the footprints of the housepads
on said property depicted on Exhibi t A incorporate a 10-foot
construction zone which, after construction, will be replanted to
increase the amount of open space on each lot so that a maximum of
5 feet clearance between the wall of the house and the edge of
restored hammock exists. The replanted construction zone shall be
considered to be part of the on-site restoration area subject to
all requirements of Section 2 of this agreement except for
subsection 2 .k.. certificates of occupancy shall not be issued
-until replanting in the construction zone has been co.pleted and
inspected by Monroe County and DCA biologists. After replanting of
the on-site restoration area under this agreement, including the
construction zones, no additional clearing of the lots may occur
and the midstory and understory native vegetation shall be totally
preserved. No non-native plants may be installed in the on-site
restoration area.
b. Disturbed Area. The parties acknowledge that, prior
to the violation alleged in the Department's NOV, Lots 1 and 2 and
one-half of Lot 3 of Golf Manor II were lawfully cleared, that the
resulting habitat designation is "disturbed," and that accordingly
a twenty percent (20t) open space ratio is applicable to Lots 1 and
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2 and one-half of Lot 3.
7. Access to ProDertv bv Monroe County and the Department.
The Owner hereby authorizes any Monroe County Growth Management
Division employee and any Department of Community Affairs employee
to enter onto the subject property at reasonable times and under
reasonable conditions during the regular work week, Monday through
Friday, between the hours of 8:30 a.m. and 5:00 p.m., for the
purpose of inspecting Golf Manor II for compliance with the terms
of this Agreement, or to perform the restoration work provided in
section 2.c. above. Authorization to enter onto Golf Manor II for
the purposes set out in this Agreement shall not be dee.ed
authorization to enter onto or inspect any other portion of Ocean
Reef or Harbor Course subdivisions.
8. Further Proceedinqs. Within five (S) calendar days after
execution of this Agreement, the Department shall file a notice of
voluntary dismissal of this proceeding and, on return of the c..e
materials from the Division of Administrative Hearings, shall
promptly enter a final order of dismissal which incorporates the
terms of this Agreement.
9. Caveat. The parties acknowledge their disagreement over
whether a violation of the Monroe County land development
regulations has occurred, as alleged in the Department's Notice of
violation against Ocean Reef Club, Inc., and have entered into this
Settlement Agreement solely in the spir it of compromise. This
Agreement shall not be deemed to constitute a waiver of any party's
position with regard to the alleged actions by the Owner or the
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proper interpretation and implementation of the provisions of
Chapter 380, Florida statutes, and the Monroe County comprehensive
plan and land development regulations. This Agreement shall not be
given precedential effect with regard to any other development
undertaken in Monroe County.
10. ScoDe of Authoritv. This Agreement affects the rights
and obligations of the parties under provisions of Chapter 380,
Florida Statutes, relating to development in areas of critical
state concern. It is not intended to influence or determine the
authority or decisions of any other state or local government or
agency, or of the federal government or any federal agency, in
i8suance of any other permits or approvals that might be required
by federal law, state law or local ordinance for any develop-.nt
authorized by this Agreement.
11. DuDlicate Oriainals. This Agreement may be executed in
any nuaber of originals, all of which evidence one aqreeaent, and
only one of which need be produced for any purpose.
12. Bindina Effect. This Agreement is intended to and shall
create a covenant running with the land, and shall be binding on
the parties, their heirs, successors and assigns.
13. Recordation of Aareement. within ten (10) calendar days
after execution of this Agreement, the Owner shall record this
Agreement in the Public Records of Monroe County, Florida, and
shall promptly provide proof of recordation to Monroe County and
the Department, including the official records book and page where
this Agreement is recorded. Proof of recordation shall be
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.furnished by hand delivery or u.s. Mail, postage prepaid, to Monroe
County by directing same to Lorenzo Aghemo, Planning Director,
Monroe County Growth Management Division, Marathon Regional Service
Center, 2798 Overseas Highway, suite 400, Marathon, FL 33050, and
to the Department by directing same to Mike McDaniel, Growth
Management Administrator, Region 11, Department of Community
Affairs, 2740 Centerview Drive, Tallahassee, FL 32399-2100.
14. Release: Costs and Attornev's Fees. The parties hereto
release each other party from any and all claims of whatever nature
which arise or may arise out of the issuance of the Notice of
violation referred to in this Agreement. Each party shall bear its
own costs and attorney's fees incurred in this proceeding.
lS. Entiretv of Aareementl Amendment. This Agre~t
consti tutes the entire agreement of the parties. Except as
provided in section 2.b. above, this Agreement may be modified or
_ndad only by a separate writing entered into between the parti_
hereto and recorded in the public records of Monroe county as
provided in paragraph 13 above.
16. Enforcement. This Agreement may be enforced by any party
and by Monroe County as provided in Chapter 380, Florida Statutes,
or as otherwise allowed by law.
17. Date of Aareement. The date of this agreement is the
date the last party signs and acknowledges this agr&ement.
IN WITNESS WHEREOF, the parties have executed this Agreement
by their duly authorized undersigned representatives on the dates
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and year below written.
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Date ' ,
KEY LARGO GROUP, INC.
a Florida corporation
~~~~~
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this
_~__~~~~~~a~_~Elt__~~~~________~_~_~~5: :~
of Key Largo Group, Inc., who 18 personally
known to me or who preayeed
as--iden-eiflwClLlun, and who dE! (did not) take an oath.
I\)~ A IY\.
Name (typed, pr1nt
Serial Number, if any
My commission expi~
.JI.
,.~
MONROE COUNTY, FLORIDA
ANCREA M CVR
My COMo'...... CC4G&M81
E... a.p... ,_
6c.>ndltd ~ NFNU
000-224-8388
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By
SHIRLEY FREEMAN, Mayor
ATTEST:
By
If
Danny L. Kohlage, Clerk
Deputy Clerk
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this
12
day of , 1995, by SHIRLEY FREEMAN,
as Mayor of Monroe County, who is personally known to me, and who
did take an oath.
Notary Public
Name (typed, printed or stamped)
serial Number, if any
My commission expires:
DEPARTMENT OF COMMUNITY AFFAIRS,
An Agency of the state of Florida
By
CHARLES PATTISON
Director, Division of Resource
Planning and Management
Date
STATE OF FLORIDA
COUNTY OF LEON
The foregoing instrument was acknowledged before me this
day of , 1995, by CHARLES PATTISON, as Director,
Department of Community Affairs Division of Resource Planning and
Management, who is personally known to me and who did not take an
oath.
Notary Public
Name (typed, printed or stamped)
Commission Number
My commission expires:
13
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EXHIBIT B
PLANT LIST
scecies
cinnacord
Marlberry
Simpson stopper
Lignum Vitae
Soldierwood
Mahogany
Pigeon Plum
Red stopper (only as replacement for dead or dying plants in 2nd or
3rd years)
Inkwood
Wild Coffee only as replacement for dead or dying plants in 2nd
or 3rd years)
Mastic
Paradise Tree
Torchwood; Wild Lime if Torchwood Not Available (add after 2nd year
only)
Crabwood
Thatch Palm
Piddlewood
Coffee Colubrina
satinleaf
Willow ustic
Spicewood (only as replacement for dead or dying plants in 2nd
or 3rd years)
White Ironwood
Soapberry
Wild Tamarind
Gumbo Limbo
Blolly
Jamaican Dogwood
Black Ironwood
Lancewood
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