STIPULATION AND CONSENT AGREEMENT
STATE
OF
FLORIDA
DIVISION
OF ADMINISTRATIVE HEARINGS
OFFICE
OF
FINANCIAL REGULATION,
Petitioner,
vs. DOAH
Case No.: 06-4780
Admin
Proceeding No:
0342-B-9/06
FLORIDA
COMMUNITY BANK,
Respondent.
________________________________________/
THIS
AGREEMENT is made and entered into
by and between the State of Florida, OFFICE OF FINANCIAL REGULATION, hereinafter
referred to as “OFR”, and FLORIDA COMMUNITY BANK, hereinafter referred to as
“FCB”. The OFR and FCB (collectively “Parties”), in consideration of
the mutual covenants contained herein, hereby enter into this Stipulation and
Consent Agreement (“Agreement”) and agree as follows:
1. Pursuant
to sections 655.001 and 655.012, Florida Statutes, the OFR is the state
agency
authorized and charged with the administration and enforcement of the Financial
Institutions Codes, including Chapters 655 and 658, Florida Statutes, as
pertaining to banks, and the rules and regulations promulgated thereunder
as contained in Chapter 69U, Florida Administrative Code.
2. FCB
is a Florida state-chartered bank operating under Charter Number 306, and
therefore a state financial institution, as that term is defined in Section
655.005(1)(p), Florida Statutes, with its principal place of business located
at
0000 Xxxxx 00xx
Xxxxxx, Xxxxxxxxx, Xxxxxxx, 00000.
3. On
or about April 17, 2006, the OFR commenced an examination of the condition
of
FCB pursuant to section 655.045, Florida Statutes. The OFR, based on
its examination of FCB, and other information reported to it, believed that
necessary grounds existed to initiate an administrative cease and desist
proceeding pursuant to Section 655.033, Florida Statutes, against
FCB.
4. On
or about October 18, 2006, the OFR issued an Administrative Complaint and Notice
of Rights (“Complaint”), and subsequently served said Complaint on FCB, as OFR
Administrative Proceeding No. 0342-B-9/06.
5. On
or about November 7, 2006, FCB filed a petition with OFR alleging disputed
issues of material fact and requesting a formal administrative hearing pursuant
to Section 120.57, Florida Statutes, and the above captioned administrative
proceeding was referred to the State of Florida, Division of Administrative
Hearings and assigned Case No. 06-004780.
6. FCB
has represented to OFR that it has taken or will take certain corrective
actions, as set forth below in paragraphs 8 through 36 in this Agreement, to
address concerns and criticisms set forth in OFR’s 2006 Report of Examination
and the Complaint and the OFR has relied upon those representations as
consideration for entering into this Agreement.
7. The
OFR and FCB desire to resolve the issues raised in the
Complaint. FCB stipulates and agrees to the terms herein in
consideration of the OFR’s concluding the administrative action
against FCB.
MANAGEMENT
8. The
Board of Directors of FCB, hereinafter “Board”, will immediately increase its
participation in the affairs of FCB, assuming full responsibility for the
approval of sound policies and objectives, and for the supervision of all of
FCB’s activities, consistent with the role and expertise commonly expected for
directors of banks of comparable size. This participation will
include in-person meetings to be held no less frequently than
monthly. Detailed written minutes of all Board meetings will be
maintained and recorded on a timely basis fully documenting the Board’s review,
discussion, and approval of all agenda items and any other matters discussed
at
the meeting and will include the names of dissenting directors.
9. a.
Within 30 days from the effective date of this agreement, the Board will adopt
procedures to ensure that correspondence from the OFR and the Federal Deposit
Insurance Corporation (“FDIC”) and other significant correspondence addressed to
the Board is promptly answered by or under the authority of the
Board.
b. The
Board has conducted or will cause to be conducted evaluations to assess the
qualifications and performance of all senior managers including all department
heads and executive officers of FCB to determine if each person has the
experience commensurate with his or her duties and responsibilities at
FCB. Management was assessed on its ability to:
(i) Comply
with the requirements of this agreement;
(ii) Operate
FCB in a safe and sound manner; and
(iii) Comply
with applicable laws and regulations.
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c.
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FCB
has or will recruit and hire any additional or replacement personnel
needed to properly staff FCB with qualified experienced officers
sufficient to provide the leadership required to comply with the
business
plan and strategies determined in compliance with paragraph
10.
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10.
The Board will maintain a formal business plan that assesses and identifies
risks and provides sound strategies for managing these risks. The
business plan will identify FCB’s trade area, products, targeted customers, and
provide realistic budgets to support plans, products, and
activities. The business plan will be submitted to OFR for
comment.
BANK
SECRECY ACT (“BSA”)
11. FCB
has taken corrective actions to address the concerns expressed by the OFR in
it’s 2006 Report of Examination including: establishing a Directors’ BSA/AML
committee comprised of outside directors; hiring a full time BSA officer,
purchasing automated BSA compliance software, and; reducing the Bank’s BSA risk
profile. FCB’s Board will oversee FCB’s policies, procedures, and
compliance with federal and state laws and regulations concerning BSA programs
including Anti-Money Laundering (“AML”); Customer Identification Program
(“CIP”), Customer Due Diligence (“CDD”) and Enhanced Due Diligence (“EDD”)
requirements; Office of Foreign Assets Control (“OFAC”) regulations; Suspicious
Activity Report (“SAR”) requirements; the USA PATRIOT Act; and Section 655.50,
Florida Statutes. The Directors’ BSA/AML Committee will require at a
minimum monthly reports from FCB’s management regarding FCB’s compliance with
this agreement. The Directors’ BSA/AML Committee will present a
report regarding FCB’s compliance with this agreement to the Board at a
regularly scheduled meeting on no less than a monthly basis. Such
report will be recorded in appropriate minutes of the Board’s meeting and will
be retained in FCB’s records.
12. At
all times, management of FCB will include a fully qualified, experienced
BSA/AML/OFAC Officer (“BSA Officer”). The BSA Officer will be
employed full time in managing, implementing, coordinating, and monitoring
of
day-to-day BSA program compliance, will have the requisite authority
and Board support to implement the program, and will not be assigned any
supplemental duties. The BSA Officer will have the responsibility and
necessary authority to ensure FCB’s compliance with all BSA programs, rules,
regulations and related matters, including, without limitation, the
identification of unusual or suspicious activity and the timely, accurate and
complete reporting to law enforcement and Supervisory Authorities of unusual
or
suspicious activity or known or suspected criminal activity perpetrated against
or involving FCB. The BSA Officer will submit reports to the
Board, or the Directors’ BSA/AML Committee, on no less than a monthly basis
concerning the status of all material issues relating to BSA compliance, and
the
BSA Officer’s reports will not be subject to approval by FCB’s management before
they are submitted to the Board or Committee. The BSA Officer
will at all times have unhampered access to the Board, and the Directors’
BSA/AML Committee, concerning BSA compliance matters and the Board and the
Directors’ BSA/AML Committee will at all times have unhampered access to the BSA
Officer. . Management will present the compensation and the performance review
of the BSA Officer to the Board of Directors or the Directors’ BSA/AML Committee
for review and approval which will be noted in the Board or Committee
minutes.
13. FCB
has analyzed and assessed FCB’s staffing and will provide an adequate number of
qualified staff to the BSA Department. FCB has evaluated the BSA
Department staff to determine whether they possess the ability, experience,
training, and other necessary qualifications required to perform present and
anticipated duties, including adherence to FCB’s BSA compliance program, federal
and state BSA requirements in laws, rules, and regulations, and FCB’s BSA
policies and procedures.
14. FCB
will maintain a written compliance plan ("Compliance Plan") as required by
the
applicable provisions of the BSA. At a minimum, the Compliance
Plan will include provisions to:
i) establish
a system of internal controls, including policies and procedures to detect
and
monitor all transactions to assure compliance with the BSA;
ii) provide
for independent testing for FCB’s compliance with the BSA;
iii) require
an appropriate training program for FCB to assure that appropriate personnel
are
regularly trained to comply with the BSA;
iv) designate
a senior Bank official responsible for coordinating and monitoring day-to-day
compliance with the BSA.
15.
FCB will maintain BSA policies to provide for adequate Board and Management
oversight of BSA compliance, adequate monitoring of high-risk accounts, and
adequate BSA training for bank personnel. FCB will maintain
procedures to ensure that the internal controls related to monitoring, detecting
and reporting suspicious activity with regard to high-risk accounts are
adequate. FCB will maintain sound internal routine and control
procedures to assure ongoing compliance with the BSA.
16.
FCB has reviewed all currency transactions exceeding $2,500, and all wire
transactions, for the calendar year 2006 to date, to determine if unusual
activity has been conducted, and, if necessary, has filed the appropriate
Currency Transaction Reports (“CTRs”) and Suspicious Activity Reports
(“SARs”). In addition, the BSA Officer has contacted the appropriate
Supervisory Authorities regarding the refiling of any inaccurate or incomplete
SARs and CTRs, and has provided any requested written material to complete
the
file information on any inaccurate or incomplete SARs and CTRs. FCB
agrees that its BSA department will examine and analyze the review of currency
transactions exceeding $2,500 and wire transactions for all accounts designated
as high risk in accordance with FFIEC guidelines that was performed for the
calendar year 2005 and take such action as is necessary to ensure that FCB
is in
compliance with BSA rules and regulations with respect to those transactions
for
the year 2005. Documentation supporting the determinations will be retained
in
FCB’s records for such period of time as may be required by any applicable rules
or regulations.
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17.
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a.
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FCB
will maintain proper monitoring and reporting procedures for CTRs
and
SARs.
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b. FCB
will maintain an enhanced system of internal routine and controls to ensure
compliance with the BSA Rules including, but not limited to, the monitoring
of
high-risk and suspicious activities for all types of accounts, products,
services, and geographic areas. At a minimum, such internal routine
and controls will include:
(i) regular
periodic comparison of actual Money Service Business (“MSB”) activity in each
MSB account against expected or anticipated activity;
(ii) routine
and/or automated procedures and systems for documenting variances between
anticipated and actual MSB activity;
(iii) reporting
such variances to FCB management and filing SARs, as appropriate;
(iv) risk
based procedures requiring regular review and monitoring of activity that is
conducted through the MSB account.
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18.
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FCB’s
BSA Officer has reviewed all high-risk accounts and high-risk transactions
including, but not limited to, FCB’s currency transaction reports, cash
purchases of monetary instruments, wire transfer activity, and foreign
exchange services from January 1, 2006 to the present, and taken
appropriate action according to applicable rules and
regulations.
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19.
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FCB
will maintain a program to detect missing documents for customers’
accounts that should have been obtained when or shortly after the
accounts
were opened, with such documents including verifications of sources
of
funds used to open accounts. Furthermore, FCB will maintain
procedures in place to ensure that FCB obtains current versions of
documents it has identified as missing or stale dated, with these
procedures specifying time limits for customers to respond to FCB’s
document requests and actions to be taken if such requests are not
honored
promptly.
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20.
FCB will maintain a written customer due diligence program (“CDD Program”) which
specifies meaningful activity thresholds to be used in identifying high risk
accounts and customers. At a minimum, the CDD Program will provide
for a risk focused assessment of the customer base of the Bank to determine
the
appropriate level of Enhanced Due Diligence necessary for those categories
of
customers that FCB has reason to believe pose a heightened risk of illicit
activities at FCB.
a. The
CDD
Program will provide for, at a minimum:
(i) time
limits for FCB personnel to respond to account activity exceptions;
(ii) time
limits for determining if exceptions require a SAR, and;
(iii) identification
of customers requiring site visitations and frequency of
visitations.
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b.
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In
addition to the criteria set forth for the CDD Program, EDD will
include
the following procedures:
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(i) determine
the appropriate documentation necessary to confirm the identity and business
activity of the customer;
(ii) understand
the normal and expected transactions of the customer, and;
(iii) reasonably
ensure the identification and timely, accurate, and complete reporting of known
or suspected criminal activity against or involving FCB to law enforcement
and
OFR, as required by Section 655.50, Florida Statutes, and the suspicious
activity reporting provisions of 12 C.F.R. Part 353.
21.
FCB will maintain Wire Transfer Policies that among other things
will:
(i) specify
procedures for international wire transfers;
(ii) require
formal reconcilements of daily international wire transfers, with record
retention requirements specified;
(iii) detail
who may authorize wire transfers and in what amounts, with wire transfers
exceeding a specified amount requiring authorizations by more than one person,
and;
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(iv)
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specify
reports to be made to the Board about wire transfer activity and
the
frequency of the reports.
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22.
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a.
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FCB’s
management has, in the six months prior to the effective date of
this
agreement, identified FCB staff positions and personnel whose duties,
assignments, and responsibilities call for knowledge of the BSA programs
and compliance requirements, as identified in paragraphs 11 through
21 of
this Agreement, and related issues including, but not limited to,
directors, executive officers, department heads, supervisors, loan
officers, loan operations staff, new account clerks, personal bankers,
tellers, bookkeepers, couriers, proof operators, information technology
staff, and wire transfer staff.
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b.
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FCB
will maintain a suitable training program to ensure that all appropriate
FCB personnel including, without limitation, tellers, customer service
representatives, lending officers, private and personal banking officers,
the Board of Directors collectively and individually, and all customer
contact personnel are trained in all appropriate aspects of regulatory
and
internal policies and procedures related to the BSA Rules and FCB’s BSA
Policies and Procedures. FCB will maintain a plan to implement
and document such training. The training program will include a
general BSA compliance program component for all personnel and specific
BSA compliance program components tailored to the needs of specific
positions, departments, and personnel. The training program
will include both initial and periodic refresher training, will specify
the responsible officer or employee for dissemination of BSA program
changes, and will detail the timing and methodology for the dissemination
and training requirements of such BSA program changes. The
training program will require documentation of scheduled training
and
attendance and timely re-scheduling of any missed
training.
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23. FCB
will maintain its internal and external audit programs to assure that the BSA
program requirements identified in paragraphs 11 through 22 of this Agreement
are independently tested at least once each calendar year. Exceptions
identified in these annual tests will be reported to the Board, or the
Directors’ BSA/AML Committee established by FCB as noted in paragraph
11 of this Agreement, corrected in a timely manner, and noted in the Board
and
Directors’ BSA/AML Committee minutes.
24.
FCB will maintain procedures to assure future compliance with all applicable
Florida and federal laws, rules, regulations, and statements of
policy.
LENDING
AND CREDIT ADMINISTRATION
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25.
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a. FCB
will maintain a Directors’ Loan Committee. At all times, the
majority of the membership of the Directors’ Loan Committee will be
comprised of outside directors. The Directors’ Loan Committee
will oversee FCB’s policies, procedures, and compliance with state and
federal laws and regulations concerning lending activities at
FCB. The Directors’ Loan Committee will require at least
monthly reports from FCB’s management regarding FCB’s compliance with this
agreement. The Directors’ Loan Committee will present a report
regarding FCB’s compliance with this Agreement to the entire Board at each
of its regularly scheduled meetings. Such report will be
recorded in appropriate minutes of the Board’s meeting and will be
retained in FCB’s records.
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b.
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The
Directors’ Loan Committee will propose appropriate lending authority,
scope, and limits for all loan officers, including FCB’s
chairman/CEO/president and the Area Presidents. All loans,
which when aggregated with other extensions of credit to any one
person
and his or her related interests, exceed 15 percent of the capital
accounts of FCB must be presented to the full Board, or the Directors’
Loan Committee, for approval as required by Section 658.48(3), Florida
Statutes. Complete written minutes of the discussion, vote, and
approval of such loans will be
maintained.
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26.
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a.
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Within
90 days from the effective date of this Agreement, FCB’s Directors will
receive training in the review and underwriting of commercial real
estate
loans so that the Board will have increased ability to make informed
decisions about FCB’s lines of
business.
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b.
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In
funding the Bank’s assets, including loans, FCB agrees to adhere to
tolerance limits for the use of non core funds as established within
FCB’s
Funds Management (A/L Management) Policy dated June,
2006.
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c. FCB
will maintain its credit and lending policies and practices in effect
as
of March, 2007, and establish, improve and implement procedures to
adequately identify, measure, monitor, and control credit risk within
FCB.
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d.
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Within
60 days of the commencement of employment of a Chief Credit Officer
as
identified in paragraph 28, the Board will analyze and assess FCB’s
staffing needs to provide an adequate number of qualified staff to
the
credit underwriting, credit administration, and loan review
functions. The credit staff will be evaluated to determine
whether they possess the ability, experience, training, and other
necessary qualifications required to perform present and anticipated
duties, including adherence to federal and state requirements in
laws,
rules, and regulations, FCB’s credit policies and procedures, and the
provisions of this agreement.
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e.
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Within
60 days of the commencement of employment of a Chief Credit Officer,
FCB’s
management will establish a credit department to ensure sound credit
underwriting practices and FCB’s management will separate the credit
underwriting function from the credit production function
for loans after receiving appropriate recommendations from the
Chief Credit Officer as to the criteria for such
separation.
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f.
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FCB
will maintain a viable program to identify, measure, and monitor
credit
concentrations based upon loan/collateral type, geographic location,
and
other common factors as may be relevant to properly identify and
manage
risk within FCB’s loan portfolio.
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g.
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FCB
will maintain a viable system to monitor and manage loans that have
loan-to-value ratios in excess of regulatory
guidelines.
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27. The
Audit Committee of the Board will ensure that the independent loan review
function will adequately identify deteriorated and deteriorating loans, along
with credit underwriting and documentation deficiencies. This loan
review function will be performed by a consultant, or qualified employee whose
job duties do not include loan origination, who independently reports directly
to the Audit Committee. All Loan reviews performed pursuant to this
paragraph will be audited annually in accordance with the procedures set forth
in Rule 69U-120.045, Florida Administrative Code.
28. Chief
Credit Officer
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a.
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At
all times, the management of FCB will include a fully qualified,
experienced Chief Credit Officer who is independent of loan production.
The Chief Credit Officer will be employed full time in managing,
implementing, coordinating, and monitoring of the approved loan policies,
day-to-day loan review, and the quality assessment program, and will
not
be assigned any supplemental
duties.
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b.
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Within
60 days from the effective date of this Agreement, FCB will submit
a
qualified candidate for the Chief Credit Officer position to the
OFR The proposed Chief Credit Officer will have
demonstrated recent and successful experience in credit administration
involving Financial Institutional programs similar in size and complexity
to those approved for FCB by its Board. FCB and OFR agree to
comply with the procedures set forth in paragraph 37 of this Agreement
as
to the notification, interim employment and disapproval of the
proposed Chief Credit Officer.
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c.
The Chief Credit Officer will present a full report concerning the status of
all
material issues relating to the condition of FCB’s loan portfolio, credit
administration and loan underwriting practices to the Board, or the Directors’
Loan Committee, on no less than a monthly basis. The Chief Credit
Officer’s reports to the Board, or the Directors’ Loan Committee, will not be
subject to approval by FCB’s management before they are presented to
the Board or Committee. The Chief Credit Officer will at all times
have unhampered access to the Board and the Directors’ Loan Committee concerning
lending and credit policies or issues, and the Board and the Committee will
at
all times have unhampered access to the Chief Credit Officer. Management will
present the compensation and the performance review of the Chief Credit Officer
to the Board of Directors or the Directors’ Loan Committee for review and
approval which will be noted in the Board or Committee minutes.
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OTHER
MATTERS
29. Within
15 days from the date of this agreement, FCB’s Board will establish a Directors’
Asset Liability Committee, the majority of which will be comprised of outside
directors, to:
a. establish
FCB’s tolerance for liquidity risk;
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b.
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establish
and approve policies and procedures related to liquidity
management;
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c.
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regularly
review FCB’s liquidity position and monitor internal and external factors
that could have a bearing on
liquidity;
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d.
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determine
management goals regarding asset and liability mix,
and;
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e.
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ensure
that senior management takes the necessary steps to monitor and control
liquidity risk.
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The
Directors’ A/L Committee will meet monthly and will provide a report to the full
Board quarterly at a regularly scheduled meeting. Such report will be
recorded in appropriate minutes of the Board’s meeting and will be retained in
FCB’s records.
30. FCB
will adhere to its Funds Management (A/L Management) Policy dated June 2006,
including all parameters and tolerance limits established within said
policy. FCB agrees not to revise said policy without the prior
written approval of OFR. FCB’s liquidity program will be reviewed by the
Asset Liability Committee and submitted to the entire Board of Directors for
review and approval.
31. Within
90 days from the effective date of this Agreement, FCB’s Board will develop a
comprehensive written management succession plan and provide a copy of the
plan
to the OFR.
32. FCB
will at all times until the termination of this Agreement, maintain its status
as a well capitalized institution as that term is defined in 12 C.F.R. Part
325. The level of Tier 1 capital, Tier 1 risk based capital, and
total risk based capital to be maintained shall be in addition to a fully funded
Allowance for Loan and Lease Losses (“ALLL”), the adequacy of which shall be
satisfactory to OFR as determined during subsequent examinations and/or
visitations. An increase in Tier 1 capital to meet the requirements
of this paragraph may not be accomplished through a deduction from FCB’s ALLL
without the prior written authorization of OFR.
33. The
Board and management shall develop and implement management information systems
and a reporting program that provide the Board of Directors with sufficient
information to adequately assess the risks in BSA/AML activities, problem loan
resolutions, and wholesale funding levels.
34. All
plans, policies, and procedures required by this Agreement shall be reviewed
by
the Board at least annually for their effectiveness and revised and/or amended
if appropriate.
35. Within
30 days of the calendar quarter ending June 30, 2007, and then within 30 days
from the end of each subsequent calendar quarter, FCB shall furnish written
progress reports to OFR detailing the form and manner of all actions taken
to
comply with this Agreement and the results thereof. The requirements
for progress reports shall continue unless modified or terminated in writing
by
OFR. All progress reports and other written responses to this
Agreement shall be reviewed by the Board and be made a part of the minutes
of
the appropriate Board meeting.
36.
With
regard to the representations made by FCB to OFR in paragraphs 9, 10,
11, 14, 15, 16, 17, 18, 19, 20, 21, 22, 26and 30, FCB represents to OFR that
it
has: i) established and will maintain the various plans, policies, procedures
and programs noted; ii) conducted, and will conduct further reviews of certain
defined currency and wire transactions, and; iii) provided, and will provide
in
the future, training to designated FCB personnel. With regard to the
representations FCB has made to OFR regarding corrective actions FCB implemented
before the effective date of this Agreement, FCB agrees to provide current
documentation to OFR for verification purposes within 30 days after the
effective date of this Agreement. With regard to the representations
FCB has made to OFR regarding corrective actions that FCB has agreed to
implement after the effective date of this Agreement, FCB agrees to implement
all corrective actions in a timely manner and agrees to provide documentation
to
OFR for verification purposes no more than 30 days after the corrective action
was taken or implemented. OFR will evaluate the documentation and
materials submitted by FCB for comment purposes. FCB agrees to
present any comments made by OFR to FCB’s entire Board of Directors at the next
scheduled meeting following the receipt of said comments for review and action
as the Board deems prudent.
comment
purposes. FCB agrees to present any comments made by OFR to FCB’s
entire Board of Directors at the next scheduled meeting following the receipt
of
said comments for review and action as the Board deems prudent.
37.
During the term of this Agreement, FCB shall notify OFR in writing in compliance
with the procedures set forth in Rule 69U-100.03852, Florida Administrative
Code, when it proposes to add any individual to the Board or employ any
individual as an executive officer, as the term is defined in Sections
655.005(1)(f), Florida Statutes, including, but not limited to, the president,
chief executive officer, BSA officer, chief lending officer, chief financial
officer, chief credit officer, and chief operations officer. Such
notification must be received before employment is intended to be
effective. OFR agrees that it will respond within 10
business days of receipt of a properly completed form OFR U-10 to any request
for an interim appointment of an executive officer or Director candidate
submitted to the OFR pursuant to Rule 69U-100.03852,
Florida Administrative Code.
38.
Upon
the presentation of a reasonable request, OFR may in its discretion consent
to a reasonable extension of any period of time within
which FCB or its Board or Management are required to perform any
action pursuant to this Agreement, but such consent shall not be unreasonably
withheld..
39. Each
party shall, upon the request of the other, execute, acknowledge and deliver
any
and all documents or instruments as may be necessary to enable the other party
to effectuate the intent, purposes and provisions of this
Agreement.
40. Each
party acknowledges that they have been advised to seek independent legal counsel
and that they had an opportunity to consult with an attorney as to their rights
and obligations prior to signing this Agreement and each party is acting freely
and voluntarily, intending to be bound by it. Each understands and
agrees that this Agreement constitutes the entire contract of the
parties. It supersedes any prior understanding or agreements between
them upon the subjects covered in this Agreement. There are no
representations other than those set forth herein.
41. Each
party shall be solely and independently responsible for the attorneys’ fees and
costs it has incurred in Administrative Proceeding No. 0342-B-9/06, Division
of
Administrative Hearings Case No. 06-004780 and will not seek any contribution
from the other party towards said fees and costs.
42. The
failure of either party at any time to require performance by the other of
any
of the terms, provisions or conditions hereof shall in no way effect that
party’s rights thereafter to enforce same, nor shall the waiver by either party
of any breach at any time of any of the terms, provisions or conditions hereof
affect that party’s rights thereafter to enforce same, nor shall the waiver by
either party of any breach at any time of any of the terms, provisions, or
conditions hereof, be taken or held to be a waiver of any succeeding breach
of
any such term, provision, or condition hereof or as a waiver of the term,
provision, or condition itself.
43. All
provisions of this Agreement shall be binding upon the parties and their
respective personal or legal representatives. No modification, waiver
or relinquishment shall be deemed to have been made by either of the parties
unless same is done in writing by the party so affected.
44. This
Agreement shall be submitted into evidence in any administrative proceeding
or
legal action in which any of the issues raised in the Administrative Complaint
issued by OFR on October 18, 2006, are in controversy as the full and final
agreement of the parties concerning the resolution of said issues and shall
be
applicable to any and all other questions, rights, obligations, benefits or
privileges of the parties.
45a. The
Parties agree that upon full execution of this Agreement, this Agreement shall
constitute a voluntary notice of withdrawal of FCB’s petition for formal hearing
in DOAH Case No. 06-004780. Furthermore, FCB agrees to the OFR’s
filing of an Agreed Motion To Relinquish Jurisdiction to the OFR, pursuant
to
Rule 28-106.204, Florida Administrative Code, and to the entry of a Final Order
concluding the administrative proceeding and incorporating this
Agreement by reference ; a copy of the proposed Final Order is attached hereto
as Exhibit “1”.
b. Within
thirty (30) days after entry of an Order Relinquishing Jurisdiction by the
Administrative Law Judge, the OFR’s Final Order adopting this Agreement, subject
to the Commissioner’s final approval, will be entered.
c. The
parties agree that the Final Order will remain effective and enforceable as
a
written agreement pursuant to Section 655.041, Florida Statutes, or as an
“order” pursuant to Section 120.52, Florida Statutes, and shall constitute final
agency action by the OFR, for which the OFR may seek enforcement pursuant to
Chapters 120, 655, and 658, Florida Statutes.
46.
FCB
knowingly and voluntarily waives:
a. Any
right to receipt of Notice of Rights or any other notice required pursuant
to
Chapter 120, Florida Statutes;
b. Any
notice required pursuant to Chapters 655 or 658, Florida Statutes;
c. Any
right to an administrative hearing or issuance of a recommended order provided
by Chapters 120, 655, or 658, Florida Statutes, or Chapters 28 or 69 of the
Florida Administrative Code;
d. Any
requirement that the OFR’s Final Order contain stated Findings of Fact and
Conclusions of Law or a Notice of Rights;
e. Any
right to contest the validity of any term, condition, obligation, or duty
created hereby in any judicial or administrative forum; and
f. Any
and all objections to or challenges in any judicial proceeding or forum,
including but not limited to, appeal pursuant to section 120.68, Florida
Statutes, any aspect, provision, or requirement concerning the content,
issuance, procedure, or timeliness of the Final Order adopting this Agreement
or
the final order relating to DOAH Case No. 06-004780.
47. The
parties agree to discuss and evaluate FCB’s compliance with the terms of this
Agreement on at least an annual basis, with such evaluation beginning upon
the
completion of OFR’s next scheduled examination of FCB and transmittal
of the Report of Examination to FCB. In connection with each
evaluation, OFR will determine whether or not FCB has substantially
complied with this Agreement. At such time that the OFR determines that FCB
has
substantially complied with all of the provisions of this Agreement, OFR agrees
that it will release FCB from the Final Order which incorporates this Agreement
by reference. Any determination made by OFR pursuant to this
paragraph shall not be considered final agency action, and any release of FCB
from the Final Order shall not release or waive FCB’s ongoing obligation to
comply with all state or federal statutes and regulations governing financial
institutions.
48. This
Agreement is being entered into without prejudice to the rights of the OFR
to
take any future action concerning FCB including its directors, officers,
employees, as the OFR deems necessary and appropriate to insure compliance
with
the terms of the Final Order and this Agreement, any other Order entered
concerning FCB, or to prevent any violation of laws, regulations, or rules
relating to financial institutions.
49. The
invalidity of any clause contained herein shall not affect the enforceability
of
the remainder of this Agreement.
50 . This
Agreement shall be interpreted and governed by the laws of the State of Florida
and, if applicable, the United States of America.
WHEREFORE,
and it is resolved that, in consideration of the foregoing, the Office of
Financial Regulation and Florida Community Bank hereby execute this Agreement
and consent to its terms, this 25th day of May, 2007.
STATE
OF
FLORIDA, OFFICE
OF FLORIDA
COMMUNITY BANK
FINANCIAL
REGULATION IMMOKALEE,
FLORIDA
BY: _/s/
Xxxxx X. Charity
____________ BY: /s/
Xxxxxxxx X. Xxxxxxxx________
Xxxxx
X. Xxxxxxx,
Director Xxxxxxxx
X. Xxxxxxxx, as a Director
Division
of Financial Institutions
/s/
Xxxxxxx X.
Xxxxxxxx__________
Xxxxxxx
X. Xxxxxxxx, as a
Director
/s/
Xxxxx X.
Xxxxxx______________
Xxxxx
X. Xxxxxx, Xx., as a
Director
/s/
Xxx
X.
Xxxxxx_________________
Xxx
X. Xxxxxx, as a
Director
/s/
Xxxxx X.
X’Xxxxx____________
Xxxxx
X. X’Xxxxx, as a
Director
/s/
Xxxxxxx X.
Xxxxx_____________
Xxxxxxx
X. Xxxxx, as a
Director
/s/
Xxxxxxx X.
Xxxxxxxxx_________
Xxxxxxx
X. Xxxxxxxxx, as a
Director
/s/
Xxxxxx X.
Xxxxxxxx__________
Xxxxxx
X. Xxxxxxxx, as a
Director
I,
Xxxxxxxx X. Xxxxx, Corporate Secretary of the Florida Community Bank, Immokalee,
Florida, hereby certify that the foregoing Stipulation and Consent Agreement
was
duly enacted by the Board of Directors of Florida Community Bank, this 22nd
day
of May, 2007.
BY: /s/
Xxxxxxxx X.
Xxxxx___________________
Corporate
Secretary
