Agenda 02/12/2013 Item #12B 2/12/2013 12.B.
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AN FOR COLLIER COUNTY, FLORIDA
FRANCIS D. HUSSEY, JR. and MARY P. HUSSEY,
husband and wife; and WINCHESTER LAKES
CORPORATION, a Florida corporation,
Plaintiffs,
v. Case No.: 08-6933-CA
Consolidated with
COLLIER COUNTY, a political subdivision of the Case No.: 08-6988-CA
State of Florida; THE HONORABLE CHARLIE CRIST,
Governor of the State of Florida; and the FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS,
Defendants.
FLORIDA WILDLIFE FEDERATION and
COLLIER COUNTY AUDUBON SOCIETY,INC.
Intervenors.
SEAN HUSSEY, Successor Trustee to JOSE LOMBILLO,
Trustee and EDUARDO PEREIRO, Trustee,
Plaintiffs,
v. Case No.: 08-7025-CA
COLLIER COUNTY, a political subdivision of the
State of Florida; THE HONORABLE CHARLIE CRIST,
Governor of the State of Florida; and the FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS,
Defendants.
FLORIDA WILDLIFE FEDERATION and
COLLIER COUNTY AUDUBON SOCIETY,INC.
Intervenors.
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT is made and entered into this of
February, 2013, by and between Francis D. Hussey, Jr., Mary Pat Hussey, Sean Hussey,
Trustee, Mike Boran, Co-Trustee of the SR 846 Land Trust, Ronald L. Brown, Co-
Trustee of the SR 846 Land Trust, Joseph Bonness, President of Winchester Lakes, Inc.,
Packet Page-1062-
2/12/2013 12.B.
and HHH Investments, L.P. (the "Owner") and Collier County, Florida, a political
subdivision of the State Florida(the"County").
WHEREAS, the Plaintiffs, FRANCIS D. HUSSEY, JR., and MARY P.
HUSSEY, husband and wife, (the "Husseys") are the fee owners of certain real property
within Sections 29 and 32 of the area within Collier County commonly referred to as the
North Belle Meade (the"HHH Ranch"); and
WHEREAS, the Plaintiff, WINCHESTER LAKES CORPORATION
("Winchester Lakes") holds a leasehold interest in the HHH Ranch and holds contractual
rights to subsurface minerals including the underground rock and a contractual right to
share in the proceeds of this action; and
WHEREAS, the Husseys and Winchester Lakes have filed a claim against Collier
County under Florida Statutes § 70.001 (the"Bert Harris Act"), and have also filed claim
challenging the constitutionality of the Rural Fringe Amendments pursuant to Article X
Sec. 6(a)of the Florida Constitution; and
WHEREAS,the parties wish the settle this dispute on the terms and conditions set
forth below.
WITNESSETH:
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good
and valuable consideration exchanged amongst the parties, and in consideration of the
covenants contained herein,the parties agree as follows:
1. Incorporation by reference. All of the above RECITALS are true and
correct and are hereby expressly incorporated herein by reference as if set forth fully
below.
2. Nature of this Settlement. This Settlement Agreement involves an
exchange of development between two large parcels located within the Rural Fringe
Mixed Use District (RFMUD) of Collier County. The first component changes the
designation of 578 acres of that land known as the "Hussey Lands" from Sending to
2
Packet Page -1063-
2/12/2013 12.B.
Receiving Lands. The second component changes the designation of 578 acres of that
land known as the "SR 846 Lands" from Receiving to Sending Lands. By this exchange,
the balance of development rights within the Rural Fringe Mixed Use District remains
substantially the same. Additional considerations are detailed below.
The Hussey Lands
3. The Hussey Lands are graphically depicted in Exhibit A, and comprise a
total of_ acres. These lands are located within the Rural Fringe Mixed Use District
and are all currently designated as Sending Lands. Exhibit A approximately depicts how
the Hussey Lands are to be divided. The 578 acres north of the boundary line will be
changed from Sending to Receiving Lands, and Collier County will amend the Future
Land Use Map designation of these 578 acres accordingly. Exhibit B contains the legal
description of these 578 acres, which shall define and control which lands have been
redesignated as Receiving Lands. The remaining acres of the Hussey Lands will
remain Sending Lands. The early entry TDR bonus density credit shall be extended for
three (3) years for these Sending Lands after approval by the Court of this Agreement, or
such other date as may be extended generally for other RFMUD Sending Lands,
whichever is the later date.
4. Within 180 days following the effective date of this Settlement
Agreement, the Husseys shall deed to the County one hundred and eighty (180) feet of
right-of-way for the future Wilson Boulevard Extension (Blackburn Road) along the
southern property line of the HHH Ranch. The dedicated land is depicted on Exhibit C,
and comprises approximately 22.318 acres. The Owner will receive $55,795 in road
impact fee credits for this dedication, valued at $2,500 per acre. These road impact
credits shall inure to the benefit of the Hussey Lands, and will run in perpetuity. No
further consideration will be due to the Husseys for this dedication, irrespective of
whether the Impact Fee Credits are or can be utilized in whole or in part. The right of
way and stormwater parcels will be transferred to the County in fee simple, by statutory
warranty deed, subject to easements and reservations of record. The County shall be
responsible for paying the costs of any title work and searches, and the Husseys shall be
responsible for all costs incurred in promptly removing or curing all liens, encumbrances
or deficiencies revealed in any title work, following which the Husseys will provide the
3
Packet Page-1064-
2/12/2013 12.B.
Office of the County Attorney with an executed deed, suitable for recording. Upon
receipt, the County at its cost will record the deed in the Public Records of the County.
The Husseys will be permitted access onto the future Wilson Boulevard Extension for
residential and agricultural uses, with at least two tie-in locations that permit left turns in.
The Husseys may be permitted access onto the future Wilson Boulevard Extension for
the hauling of excavated materials, which access will be subject to the conditions of any
excavation permits or conditional use that may be obtained. The Husseys' entitlements to
density and TDRs shall include the area dedicated to the County identified in Exhibit C.
5. The HHH Ranch lands shall be subject to the Preservation and Native
Vegetation Retention Standards within CCME Policies 6.1.2 and 6.1.5 based upon the
existing native vegetation as depicted by a FLUCCS Map, which Map shall be prepared
by the Husseys, subject to approval by the County. This Map is to be prepared and
presented to the County for review within 180 days of the effective date of this
Agreement. The parties will cooperate with one another to ensure a mutually agreeable
FLUCCS Map.
The SR 846 Lands
6. The SR 846 Lands are graphically depicted in Exhibit D, and comprise a
total of 2,576 acres. These lands are located within the Rural Fringe Mixed Use District
and are currently designated as Receiving Lands. As detailed below, 578 acres of the SR
846 Lands will be converted from Receiving to Sending Lands, in order to mirror the 578
acres of Hussey Lands being converted from Sending to Receiving Lands. The
remaining 1,998 acres shall remain designated as Receiving Lands. Exhibit E sets forth
the Legal Description of the SR 846 Lands.
7. Exhibit D approximately depicts the SR 846 Lands to be divided into
Sending and Receiving Lands. The 578 acres which are denoted by the appropriate hash
mark will be changed from Receiving Lands to Sending Lands, and Collier County will
amend the Future Land Use Map designation of these 578 acres accordingly. There is
presently no Legal Description for these proposed Receiving and Sending Lands. At the
time the SR 846 Lands are developed, or when TDR rights are severed, the owner of the
SR 846 Lands may make minor changes to the depicted areas, and at such time a Legal
Description defining the 578 acre Sending tract and the 1,998 acres of Receiving tract(s)
4
Packet Page -1065-
2/12/2013 12.B.
shall be prepared and forwarded to the County. The County Manager or his designee is
authorized to administratively determine whether the changes to the depicted areas
constitute a minor change,with any objection subject to a de novo review by the Board of
County Commissioners. Any major changes to the depicted areas must be approved by
majority vote of the Board of County Commissioners.
8. The SR 846 Lands may be developed in accordance with the provisions
herein or the RFMU District generally as may be amended (or a combination thereof on
separate parcels). One road may be provided in the Sending Lands to facilitate a
connection to Immokalee Road. Through use of Planned Unit Development (PUD)
zoning and utilization of TDR Credits, a density of up to two and a half(2 'h) units per
gross acre and/or commercial uses may be approved on the Receiving Lands. PUD
zoning shall be discretionary with the Board, and not be as of right, and the County
Manager or his designee may require a market study be included within any PUD
application involving commercial uses. The early entry TDR bonus density credit shall
be extended for three (3) years for the Sending Lands after approval by the Court of this
Agreement or such other date as may be extended generally for other RFMUD Sending
Lands whichever is the later date. A Conditional Use for earthmining and extraction was
previously approved for this property (Resolution No. 2012-15), a portion of which is
changed from Receiving to Sending Lands by this Agreement. Earthmining and
extraction are no longer permitted on these Sending Lands and no amendment of the
Conditional Use approval is necessary to enforce this prohibition on earthmining and
extractions on these Sending Lands.
Legal Matters
9. Non-admission of liability. It is understood and agreed that this
Settlement Agreement is the compromise of disputed claims, and that nothing contained
herein shall be construed as an admission of liability, fault or responsibility as to any
claims or allegations on the part of any party,which liability is expressly denied.
10. Mutual General Release. Each of the parties signing below, on behalf of
themselves, their former and present employees, agents, officers, directors, servants,
5
Packet Page -1066-
2/12/2013 12.B.
Agok
representatives, insurers, assigns and predecessors and successors in interest, hereby
releases and forever discharges each and every other party signing below, together with
their former and present employees, agents, officers, directors, servants, representatives,
insurers, assigns, and predecessors and successors in interest, from any and all claims of
whatever nature or description, which relate to, arise from, or could have been alleged, in
the above captioned lawsuits.
11. Voluntary Execution. This Agreement contains the entire agreement
between the parties hereto regarding the resolution of their disputes. The parties
acknowledge that this Agreement is freely and voluntarily executed after they have been
apprised of all relevant information concerning the Agreement and that they have had the
opportunity to consult with and receive the advice of counsel in entering into this
Agreement. In executing this Agreement, the parties acknowledge that they have not
relied on any inducements, promises, or representations other than those contained
herein. This Agreement is the product of mutual negotiation and no doubtful or
ambiguous provision that may exist in this Agreement is to be construed against any of
the parties based upon a claim that one of the parties drafted the Agreement, or that the
language of the Agreement was intended to favor one of the parties.
12. Governing law. This Agreement shall be deemed to have been made and
to be performed, and shall be interpreted, construed and enforced, in accordance with the
laws of the State of Florida.
13. Multiple Counterparts. This Agreement may be executed by the parties
in identical counterparts,which,taken together, shall constitute a complete original.
14. Modifications. This Agreement cannot be amended, modified or
amplified except by agreement and written document, which is signed by all parties
hereto. No oral statement made by any person shall operate to modify this Agreement in
any manner or otherwise affect its terms and provisions.
15. Severability. In the event that any term or provision of this Agreement is
deemed unenforceable or unlawful for any reason, the remainder of the Agreement shall
be deemed enforceable and in effect.
16. Enforceability and Adoption. This Agreement is effective upon the date
it is approved by the Board of County Commissioners of Collier County, Florida. This
Agreement is subject to approval by the Court. Upon approval by the Court and the
Aft
6
Packet Page-1067-
2/12/2013 12.B.
expiration of the time within which for any third parties to appeal, or the upholding of
this settlement with finality, if so appealed, this action will be dismissed with prejudice.
17. Non-waiver. The failure of either party to enforce at any time any of the
provisions of this Agreement shall not constitute a waiver of any such provisions.
18. Authority to Bind. The signatories hereto each warrant and represent that
they have the requisite authority to enter into this Agreement on behalf of the respective
party.
Remainder of Page Intentionally Left Blank.
Signature Pages and Exhibits to Follow.
7
Packet Page -1068-
2/12/2013 12.B.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their appropriate officials, as of the date first above written.
Attest: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA
By: By:
,Deputy Clerk GEORGIA A. HILLER,ESQ.
CHAIRWOMAN
Mary Pat Hussey Francis D. Hussey, Jr.
Sean Hussey,Trustee Michael J. Boran, Co-Trustee
SR 846 Land Trust
Ronald L. Brown,Co-Trustee Winchester Lakes,Inc.
SR 846 Land Trust Joseph Bonness, President
HHH Investments, LP
By: HHH Investments Corp. I., GP
Francis D. Hussey, Jr.,President
Asolok
8
Packet Page -1069-
2/12/2013 12.B.
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
February, 2013, by Mary Pat Hussey, who is personally known to me or who has
produced as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
February, 2013, by Francis D. Hussey, Jr., who is personally known to me or who
has produced as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
February, 2013,by Sean Hussey, as Trustee,who is personally known to me or who
has produced as identification.
Notary Public
Print Name:
My Commission Expires:
9
Packet Page -1070-
2/12/2013 12.B.
STATE OF FLORIDA
COUNTY OF COLLIER
oosk
The foregoing instrument was acknowledged before me this day of
February, 2013, by Michael J. Boran,as Co-Trustee of the SR 846 Land T rust, on behalf
of such trust,who is personally known to me or who has produced
as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
February, 2013,by Ronald L. Brown, as Co-Trustee of the SR 846 Land Trust,on behalf
of such trust,who is personally known to me or who has produced
as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
February,2013, by Joseph Bonness, as President of Winchester Lakes, Inc., a Florida
corporation, on behalf of such corporation, who is personally known to me or who
has produced as identification.
Notary Public
Print Name:
My Commission Expires:
10
Packet Page -1071-
2/12/2013 12.B.
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
February, 2013, by Francis D. Hussey, Jr., President of HHH Investments Corp. I, a
Delaware corporation, authorized to do business in the state of Florida, which is the
General Partner of HHH Investments L.P., a Delaware limited partnership authorized to
do business in the state of Florida, on behalf of such limited partnership, who is
personally known to me or who has produced
as identification.
Notary Public
Print Name:
My Commission Expires:
Approved as to form
and legal sufficiency:
Jeffrey A. Klatzkow
County Attorney
11
Packet Page-1072-
/1 PI fl I'2 1') D
2/12/2013 12.B.
Exhibit C
PROJECT NO. Florida Rock Haul Road I Wilson Boulevard Extension
PROJECT PARCEL NO. 118FEE
FOLIO NOS. 00342040003&00341960003
LEGAL DESCRIPTION &SKETCH
(NOT A SURVEY)
THE NORTH 180 FEET OF THE SOUTH 280 FEET OF
SECTION 32, TOWNSHIP 49 SOUTH, RANGE 27 EAST,
COLLIER COUNTY, FLORIDA.
(CONTAINING 22.318 ACRES, MORE OR LESS)
•
SECTION 32
•
•
•
•
•
INTERSTATE 1-75 RIGHT-OF-WAY(100 FEET NORTH OF THE SOUTH SECTION LINE)
5,401 d-PEE I
•
SKETCH NOT TO SCALE
Collier Canty Growth Management Division-Transpptation Engineering Department 02/06/t3 238 PM
Packet Page -1075-
Exhibit D 2/12/2013 12.B.
KAI i HU 1 Ce W
,
_
Z
i 68TH AVE NE__
27 26 i 25 30
1
wi ,TURKEY DR
68TH AVE NE
11131XXXXIIIIh%°:11411r _ ,64TH AVE NE
2ND AVE NE
3 4
1 I 1 I I IN, y 6601143A1VE NE__
T47 A
k\sL A A 58TH AVE NE T47
T48 ilirrogr 55TH AVE NTE48
il IPPrh/r/r0f7r 1 6
3
x 52ND AVE NE
.4 4/
t
I I
: W li W W W 48TH AVE NE
I 10 47TH AVE NE 11 7 4f3 41) Z 12 to 7
x- c
- 45TH AVE NE
1
f . li
I 1.502112
0
I P
ED S.R. 646 LAND TRUST
I Nom
i SENDING s PIKIPEIITY 110010ARY FSC*I WILIIISI•141LLER
I . mama Na SUSS STATE PLLM
194-44,001 iukttO to-444
I , RECEIVING o ioso Arno moo
Pow
I 011.1411 04"
V.V. 30/12
111,10.010110, 010It PASARF,„1.1,A
i Sit 846 SUBDISTRICT MAP A.W. V1/12
Prit..;;:es;
-_
GACDES Planning Services\Comprehensive\David\Bert Hams claim-Hussey\1-17-13 settlement offer
Packet Page -1076-
2/12/2013 12.B.
EXHIBIT "E"
•
LEGAL DESCRIPTION SR 846 LANDS
ALL OF SECTION 35 AND 36 IN TOWNSHIP 47 SOUTH,
RANGE 27 EAST AND ALL OF SECTIONS 1 AND 2 IN
TOWNSHIP 48 SOUTH, RANGE 27 EAST, LESS ROAD
RIGHT-OF-WAY FOR COUNTY ROAD 846 (IMMOKALEE
ROAD), COLLIER COUNTY, FLORIDA.
Packet Page-1077-
2/12/2013 12.B.
COLLIER COUNTY
Board of County Commissioners
Item Number: 12.12.B.
Item Summary: 1:00 P.M. Time Certain Return from Closed Session. For the Board of
County Commissioners to provide direction to the County Attorney regarding settlement
negotiations and litigation expenditures in the pending cases of: Francis D. Hussey,Jr., et al. v.
Collier County, et al., Second District Court of Appeal Case No. 2D11-1224; and Sean Hussey, et
al. v. Collier County, et al., Second District Court of Appeal Case No. 2D11-1223.
Meeting Date: 2/12/2013
Prepared By
Name: CrotteauKathynell
Title:Legal Secretary,County Attorney
1/22/2013 10:25:13 AM
Approved By
Name: GreenwaldRandy
Title:Management/Budget Analyst,Office of Management&B
Date: 1/22/2013 4:53:57 PM
Name: KlatzkowJeff
Title:County Attorney
Date:2/4/2013 4:21:40 PM
Name: OchsLeo
Title: County Manager
Date: 2/5/2013 9:16:08 AM
Packet Page -1078-