Agenda 10/11/2011 Item #16K210/11/2011 Item 16.x.2.
EXECUTIVE SUMMARY
Recommendation to approve a settlement agreement in the lawsuit styled Forbis v Collier
County, et uL filed in the Twentieth Judicial Court in and for Collier County, Florida, Case
No. 05- 1618 -CA.
OBJECTIVE: Board of County Commissioners approval of a settlement agreement prior to
trial whereupon the County will maintain beach access for the public on Vanderbilt Beach.
CONSIDERATIONS: Public beach access along Vanderbilt Beach has been an issue of .
contention for over 30 years. A chronology of events outlining the beach access issue is included
in the backup materials. In;short, Conners Vanderbilt Beach Estates was .platted in 1953 and at
frequent intervals (7) along the beachfront lots, the developer platted 10 -foot "Easements for
Public Walkway ". The County and the residents of the area have been in dispute as to what these
10 -foot walkways permit since the 1970's.
In 2005, approximately 18 homeowners in the Vanderbilt Beach area brought suit against the
County asking the Court to declare that three platted walkways across from Bayview Avenue,
Channel Drive and Seabreeze Avenue and a fourth walkway between lots 20 and 21 were "solely
and exclusively intended to provide access to the beach for those persons who owned property in
the subdivision plat ". To bolster their claim, Plaintiffs referenced the "Dedications" portion of
the plat which included public dedications of all streets, roads, drives, avenues and waterways,
but does not reference the platted walkways. In contrast, the County has maintained that the
"public walkways" were for the public at large, not just the neighborhood.
The County has negotiated the attached settlement agreement which calls for the walkways to
remain open and available to the public with the County being able to erect signage directing the
pubic to the walkways. The settlement agreement and the subsequent; conclusion of the
litigation, will bring about an end to decades of dispute at no cost or foregone beach access to the
public or the County.
FISCAL EYWACT: None.
GROWTH MANAGEMENT ]MPACT: There is no growth management impact associated
with this Executive Summary.
LEGAL CONSIDERATIONS: This Executive Summary has been drafted by the County
Attorney's Office and is legally sufficient. A majority vote is required for approval. (STW)
RECOMMENDATION: That the Board of County Commissioners approve the attached
settlement agreement and authorize the Chairman to execute all necessary documents.
Prepared By: Steven T. Williams, Assistant County Attorney
Attachments: Settlement Agreement
Chronology of Events
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.2.
10/11/2011 Item 16.K.2.
Item Summary: Recommendation to approve a settlement agreement in the lawsuit
styled Forbis v. Collier County, et al. filed in the Twentieth Judicial Court in and for Collier
County, Florida, Case No. 05- 1618 -CA.
Meeting Date: 10/11/2011
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
9/22/2011 8:56:08 AM
Approved By
Name: McAlpinGary
Title: Director - Coastal Management Programs,Coastal Zon
Date: 10/4/2011 1:34:57 PM
Name: RamseyMarla
Title: Administrator, Public Services
Date: 10/4/20113:20:29 PM
Name: WilliamsSteven
Title: Assistant County Attorney,County Attorney
Date: 10/5/2011 11:54:13 AM
Name: IsacksonMark
Title: Director -Corp Financial and Mgmt Svs,CMO
Date: 10/5/2011 12:07:08 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 10/5/2011 1:12:31 PM
Name: OchsLeo
Title: County Manager
'~ Date: 10/5/2011 1:19:42 PM
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SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ( "Agreement ") is made and entered into by and
between Charles V. Chaffee and Karen J, Chaffee, Rick Harwick and Kathy Harwick, James H.
Kabcenell and Rhonda A. Kabeenell, Robert F. Fritz, Jr, and Patricia M. Fritz, Nancy Jane Kay,
Trustee of the Nancy Jane Kay Revocable Trust Dated July 14, 1998, Robert A. Burns and
Nancy C. Burns, Glen T. Blaugh and Sandra Blaugh ( "Plaintiffs ") and Collier County, Florida
( "County ") (collectively, "the Parties ") and is effective as of the first date written below.
WHEREAS, Plaintiffs filed Case No. 05- 1618 -CA pending in the Circuit Court of
Collier County, Florida in which Collier County, Florida is named as defendant (the
"Litigation "); and
WHEREAS, Plaintiffs filed this action against County regarding the allowable uses of
three beach access walkways along Gulf Shore Drive; and
WHEREAS, the Parties desire to settle and resolve all claims at issue in the Litigation
(the "Released Claims "), in order to avoid further expense and distraction; and,
WHEREAS, the Parties have consulted with their respective legal counsel regarding
their rights and desire to resolve and settle the Released Claims by way of this Agreement, which
constitutes a compromise by the Parties for the complete and final civil settlement of the
Released Claims as between them.
NOW, THEREFORE, in consideration of the promises and the mutual covenants and
undertakings contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the Parties, the Parties agree to the following
terms and conditions as full and complete settlement of this action:
1. This Settlement Agreement applies to the three beach access walkways on Gulf Shore
Drive located across from Channel Drive between 10315 Gulfshore Drive and 10341
Gulfshore Drive ( "Channel Walkway "), Seabreeze Avenue between 10217 Gulfshore
Drive and 10173 Gulfshore Drive ( "Seabreeze Walkway ") and Bayview Avenue
between 10073 Gulfshore Drive and 10047 Gulfshore Drive (` Bayview Walkway ",
collectively, the "Walkways" and each a "Walkway ")
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2. The County will maintain the Channel Walkway and the Seabreeze Walkway in their
natural state in the future.
3. The County will be permitted to repair and maintain the existing boardwalk within
the Bayview Walkway. The existing boardwalk improvements may also be replaced
within the same footprint. In all other respects, the County will maintain the Bayview
Walkway in its natural state.
4. The County may place bike racks at each Walkway.
5. Except for the boardwalk in the Bayview Walkway and bike racks at each Walkway,
the County will make no improvements to the Walkways whatsoever, including,
without limitation, the addition of trash cans or toilet facilities. The County may
place small signs at each Walkway reminding users to take all trash with them.
6. The County may install signs on poles in the road right -of -way at each Walkway.
The signs will read "Beach Access" and include the County logo. The signs will be
the same as, and installed concurrently with, signs at all other beach access points
along Gulf Shore Drive, but they will be no larger than 26" wide and 30" tall and will
be installed at the minimum height allowed under existing codes. The County will
not use pavement markings at any of the three Walkways. The installation of any
sign shall not create for the County any express or implied rights or obligations, not
already set forth in this Agreement.
7. The County shall not conduct any shuttle or drop -off program at any of the
Walkways.
8. The Plaintiffs do not object to people using the Walkways for non - commercial
recreational purposes However, County agrees that its own use of any of the
Walkways will be solely for beach access by emergency personnel, sea turtle
monitoring and to conduct beach maintenance.
9. The County will not discriminate in any manner with respect to beach maintenance
along Vanderbilt Beach, including, without limitation, near the Walkways.
10. Upon executing this Settlement Agreement, Plaintiffs hereby release and forever
discharge County, its employees, agents, successors and assigns from any and all
claims and/or causes of action that were asserted, or could have been asserted, in the
above - captioned action. County likewise releases Plaintiffs, their attorneys and their
heirs, successors and assigns in the same manner as described herein.
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11. The Parties agree to file with the Court a Stipulation for Dismissal of this action with
prejudice,. and to allow the Court to retain jurisdiction to enforce this Settlement
Agreement. The Stipulation for Dismissal With Prejudice shall be filed within three
(3) days after the Parties have executed this Stipulation.
12. The Parties agree, warrant, and represent that they have carefully read the contents of
this Settlement Agreement; that they do so with full knowledge of any rights which
they may have; that they have received independent legal advice from their respective
attorneys with respect to the matters set forth in this Settlement Agreement; and that
they freely have signed this Settlement Agreement without reliance upon any
agreement, promise, statement or representation by or on behalf of the Parties or their
respective attorn eys, except as set forth in this Settlement Agreement. Each person
executing this Settlement Agreement has been authorized to sign on behalf of its
respective party and to bind that party.
13. This Settlement Agreement constitutes the entire agreement between the Parties with
respect to the subject matter hereof and supersedes all prior and contemporaneous
oral and written agreements and discussions. Any modification, alteration, or
amendment to this Settlement Agreement is void and of no force or effect unless it is
in writing and signed by all the Parties.
14. If any provision of this Settlement Agreement is found to be invalid by a Court of
competent jurisdiction, such shall not affect the validity of any other provisions of
this Settlement Agreement.
15. The Parties acknowledge that each party has participated in the preparation of this
Settlement Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed in its
interpretation.
16. This Settlement Agreement shall bind and inure to the benefit of the Parties hereto,
their successors and assigns and their respective agents, servants, and employees.
17. This Settlement Agreement supersedes all prior understandings, representations and
negotiations between the Parties, and may be modified or amended only by a writing
executed by all of the signatories hereto.
18. The laws of the State of Florida shall govern this Settlement Agreement.
19, The Parties agree that they will each bear their own attorney's fees and costs incurred
in connection with the Litigation.
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20. In the event of any breach of any representation, warranty, covenant, or provision in
this Settlement Agreement by any party and such breach continues for more than ten
(10) days after written notice from the non - breaching party to the breaching party,
then, at the non - breaching party's option, the non- breaching party may pursue such
remedies as may be available at law or in equity to protect and enforce its rights
under this Settlement Agreement. In connection with any litigation, including
appellate proceedings, arising out of this Settlement Agreement, the prevailing party
or parties shall be entitled to recover reasonable attorney fees and costs from the non -
prevailing party or parties.
21. This Settlement Agreement can be executed in any number of counterparts, each of
which shall be taken to be one and the same instrument, for the same effect as if all
Parties hereto had signed the same signature page.
r.
Date: 2 1 z
L?
RICK HARWICK
Date:
JAMES H. KABCENELL
Date:
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KARYSN 1. CHAFFEE
Date: i Z9
KATHY HARWICK
Date:
RHONDA A. KABCENELL
Date:
10/11/2011 Item 16.K.2.
20. In the event of any breach of any representation, warranty, covenant, or provision in
this Settlement Agreement by any party and such breach continues for more than ten
(10) days after written notice from the non - breaching party to the breaching party,
then, at the non - breaching party's option, the non- breaching party may pursue such
remedies as may be available at law or in equity to protect and enforce its rights
under this Settlement Agreement. In connection with any litigation, including
appellate proceedings, arising out of this Settlement Agreement, the prevailing party
or parties shall be entitled to recover reasonable attorney fees and costs from the non-
prevailing party or parties.
21. This Settlement Agreement can be executed in any number of counterparts, each of
which shall be taken to be one and the same instrument, for the same effect as if all
Parties hereto had signed the same signature page.
CHARLES V. CHAFFEE
Date;
RICK HARWICK
JAMES ES H, KABC1.,+,1•.4LL
Date:
-4-
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KAREN 1. CHAFFEE
Date:
,R�l0u ' L
RHONDA A. KABCENELL
Date;
10/11/2011 Item 16.K.2.
20. In the event of any breach of any representation, warranty, covenant, or provision in
this Settlement Agreement by any party and such breach continues for more than ten
(10) days after written notice from the non - breaching party to the breaching parry,
then, at the non - breaching party's option, the non - breaching party may pursue such
remedies as may be available at law or in equity to protect and enforce its rights
under this Settlement Agreement. In connection with any litigation, including
appellate proceedings, arising out of this Settlement Agreement, the prevailing party
or parties shall be entitled to recover reasonable attorney fees and costs from the non -
prevailing party or parties.
21. This Settlement Agreement can be executed in any number of counterparts, each of
which shall be taken to be one and the same instrument, for the same effect as if all
Parties hereto had signed the same signature page.
CHARLES V. CHAFFEE
Date:
RICK HARWICK
Date:
JAMES H. KABCENELL
-4-
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KAREN J. CHAFFEE
Date:
KATHY HARWICK
Date:
RHONDA A. KABCENELL
/- - — ►'
2
Date:
ROBERT F. P RITZ, JR.
Date:
NANCY JANE KAY
Date:
NANCY C. BURNS
Date: 9 13 � f I
SANDRA BLAUCH
Date:
-5-
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PATRICIA M. FRITZ
Date:
ROBERT A. BURNS
Date: ! 1l
GLEN T. BLAUCH
Date:
ROBERT F. FRITZ, JR.
Date:
NANCY JANE KAY
�j
V
Date:
NANCY C. BURNS
Date:
SANDRA BLAUCH
Date:
-5-
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PATRICIA M. FRITZ
Date:
ROBERT A. BURNS
Date:
GLEN T. BLAUCH
Date:
ROBERT F. FRITZ, JR.
Date:
NANCY JANE KAY
Date:
Date:
SANDRA
BLAUCH
Date: 2 9'
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PATRICIA M. FRITZ
Date:
ROBERT A. BURNS
Date:
sue:
Date: g�°�9— //
10/11/2011 Item 16.K.2.
DATED this day of )2011.
ATTEST BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, CLERK COLLIER COUNTY, FLORIDA
By: By:
Deputy Clerk FRED W. COYLE, Chairman
Approved as to form
and legal sufficiency:
Steven T. Williams
Assistant County Attorney -t I zzIt,
s rj
CP \05- 1618\2290
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CHRONOLOGY OF EVENTS
1. 1/6/1953: Conner's Vanderbilt Beach Estates plat approved.
2. 8/1 8/1953: Plat of Re- subdivision of part of Unit No. 1, Conner's Vanderbilt Beach
Estates approved.
3. 1/5/1954: Plat of Unit 2, Conner Vanderbilt Beach Estates approved.
.4. 2/2/1954: Plat of Re- subdivision of Part of Unit 1, Conner's Vanderbilt Beach Estates
approved.
5. 4/27/1976: BCC adopts Beach Access Ordinance No. 76 -20 requiring public beach
access easements every Yz mile in Vanderbilt Beach area;
6. 5/19/1976: Philip Francouer, Jr. of La Playa, sends a letter to Dale Cuningham, County
Manager, requesting removal of 100' access on their property.
7. 6/8/1976; BCC directs staff to draft resolution re waiver of requirements of Beach
Access Ordinance for La Playa.
8. 6/22/1976: Per resolution recorded in OR 654 PG 1876, BCC grants Francouer's petition
for the waiving of Beach Access No. 48- 25 -29B as provided in Section Four,
Paragraph 7 of Ordinance No. 76 -20.
9. 8/3/1976: BCC resolves to discontinue action re paving of beach walks in Vanderbilt
Beach area.
10. 8/25/1978: Commissioner Wimer comments during meeting that "the aforementioned
beach access" is to be a footpath, primarily for the residents in the area.
11.4/2/1979: Commissioner Russ Wimer sends memo to Neno J. Spagna, Director,
Planning Department, asking him to verify point where 10 ft. beach access is to be
placed by Fran Weber (Petition V- 78 -22 -C, per minutes dated 8/15/78).
12.4/6/1979: Mary W. Morgan replies to said memo on behalf of Dr. Spagna.
13. 7/10/1980: Commissioner John A. Pistor sends memorandum to County Manager,
William Norman, re meeting with Naples Park Voters League on 7/9/1980 regarding
beach access parking, waiver granted to La Playa and another complaint.
14. 7/19/1980: Bill ? sends memo to Terry Virta, Administrator of Community Development
attaching copy memorandum dated 7/10/1980.
15. 8/6/1980: Rollie R. Rice, Director, Parks and Recreation, sends Memorandum to County
Manager, C. W. Norman, recommending that all beach accesses be recognized by
signs and maintained.
16. 8/25/1980: Terry Virta, Administrator of Community Development, send memo to
Board of County Commissioners re status of beach access points.
17. 8/27/1980: Rollie R. Rice, Director Parks and Recreation, sends memorandum to C. W.
Norman, County Manager, with details of proposed beach access improvements,
annual maintenance cost, and annual material cost.
18. July, 1982: Collier County Planning Department completes Beach Access Study.
19. 3/23/1983: Bill ? sends memo to Don Norton re county park beach access rights —
writing not clearly legible and my copy cut off.
20. 3/3/1980: Rollie R. Rice, Director Parks and Recreation, send memorandum to Don
Norton, Public Service Administrator the beach park south of Ramada.
21.4/711983: Rice send memorandum to Engineering Department requesting that Vanderbilt
�-� Beach Walkways be surveyed and staked out.
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22.4/11/1983: Handwritten notes — author unknown.
23.4/11/1983: C. William Norton, County Manager, send memorandum to Don Norton,
Public Services Administrator, confirming direction of BCC on 4/5/1983 to provide
report and recommendation on proposed improvements to five Vanderbilt Beach
Accesses.
24.4/13/1983: E. Glenn Tucker of Rhodes & Tucker sends letters to Mr. C. C. "Red"
Holland and to Mr. Frederick Voss, County Commissioners, requesting that contents
of enclosed earlier correspondence be considered when making decision concerning
beach access points.
25.4/14/1983: Charles M. Morris, Vice President of Westinghouse Communities of Naples,
Inc. (Pelican Bay), sends letter to Don Norton, Public Services Administrator,
attaching concession agreement.
26.4/15/1983: P. K. Hannan, Public Works Administrator, sends letter to James Cook,
Deputy Director of Park Operations, Department of Natural Resources, requesting 10
ft. easement and enquiring re plans for public parking.
27.4/19/1983: E. Glenn Tucker sends Bruce Anderson, Assistant County Attorney, a copy
of the Deed of Restrictions pertaining to Vanderbilt Beach.
28.4/25/1983: E. Glenn Tucker sends letter to Frederick Voss, County Commissioner, re
meeting on 4/22/1983 with Rollie Rice, Don Norton, Bruce Anderson, and Evelyn
Lawmaster, President of the Vanderbilt Beach Property Owners Association.
29.4/29/1983: Article appears in Naples Daily News re beach access dispute.
30.7/7/1983: E. Glenn Tucker of Rhodes and Tucker sends letter to Mary Frances Kruse,
Chairman of BCC, requesting that pursuit of issue re the three beach access
easements opposite Seabreeze Avenue, Channel Drive, and Bay View Drive be
discontinued.
31.7/15/1983: C. William Norman, County Manager, sends letter to E. Glenn Tucker
advising that presentation to be made at BCC meeting of 8/2/1983, not 7/19/1983 as
requested.
32. 7/15/1983: C. William Norman sends memorandum to Don Norton re beach access
issue, advising that County Attorney Burt Saunders is working on a legal opinion
regarding the three beach access easements, requesting that Saunders be provided
with additional information, and requesting that Public Works Division assist in
studying potential for parking improvements.
33. 7/20/1983: Don Norton sends memo to Bill Norman suggesting general meeting with
Saunders, Rice and Knute Hartman.
34. 7/28/1983: C. Faulkner, Real Property Manager, sends memo to P. Knute Hartman,
Public Works Administrator, regarding five proposed parking parcels.
35. 8/2/1983: BCC hears presentation by E. Glenn Tucker on beach access at Vanderbilt
Beach, specifically relating to the three easements. No action taken.
36. 1/1/1984: Burt L. Saunders sends memorandum to Lee Layne, Zoning Director,
attaching copy letter from Robert T. Fleming of Fleming, Messman & O'Connor,
requesting investigation of construction adjacent to Vanderbilt Club.
37. 6/11/1984: T. E. Kuck, Acting Public Works Administrator, sends memorandum to
Donald B. Lusk, County Manager, re construction of a fence on Ramada Inn
property, and advising that three other beach access points are being reviewed by
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'~ County Attorney to determine whether public may use them or whether they are
reserved for exclusive use by owners of property in Vanderbilt Beach.
38.2/1 7/1989: Robert L. Wilson sends letter to George Archibald of Transportation
Department recording statements made by Archibald at meeting on 2/16/1989
regarding beach accesses along Vanderbilt Beach, and making recommendations.
39. 8/23/1989: Report appears in Naples Banner on pledge by Collier County officials to
upgrade public facilities at four beach accesses on Gulf Shore Drive.
40. 8/9/1994: There are three executive summaries in the file, dealing with petitions
requesting variance from the coastal construction setback line to allow for
construction of wooden handicapped ramps for beach access between Lots 32 and 33,
Lots 20 and 21, Block A, Unit 1, Conner's Vanderbilt Beach, and at Lot 1, Block A,
Unit 2 of Baker Carroll Point on Vanderbilt Beach.
05- 1618- CA/235
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