Agenda 09/09-10/2008 Item #12B
c...-..
/
(,-.
--
EXECUTIVE SUMMAR
N~~Nm_
SEP. 0 S 2%8
Pg I 0+ ~
~8
This item to be heard at 1 :00 p.m_ For the Board of County Commissioners to consider approving a
Settlement Agreement in Bonita Media Enterprises. LLC.. Jl....collier County Code Enforcement
Board. Collier County Board of County Commissioners. Case No: 2:07-cv-411-FtM-29DNF, now
pending in the United States District Court, Middle District of Florida, Fort Myers Division and
Bonita Media Enterprises,.J,.LC.. Brennan. Manna and Diamond (Reg. Agent) v. Board of County
Commissioners. Collier County. Florida. Appeal Case No.: 07-2035-CA, Lower Tribunal CEB No.:
2007-35, now pending in the Twentieth Judicial Circuit in and for Collier County, Florida, in the
Administrative Appeal Division of the Circuit Court and authorize the Chairman to execute the
Settlement Agreement and authorize the appropriate budget amendment.
OBJECTIVE:For the Board of County Commissioners to consider approving a Settlement Agreement
in Bonita Media Enterprises. LLC.. v. Collier County Code Enforcement Board. Collier County Board of
County Commissioners. Case No: 2:07-cv-411-FtM-29DNF, now pending in the United States District
Court, Middle District of Florida, Fort Myers Division and Bonita Media EntMQrises. LLC.. Brennan. Manna
&: Diamond (Reg. Agent) v. Board of County Commissioners. Collier County. Florida. Appeal Case
No.: 07-2035-CA, Lower Tribunal CEB No.: 2007-35, now pending in the Twentieth Judicial Circuit in and
for Collier County, Fiorida, in the Administrative Appeal Division of the Circuit Court and authorize the
Chairman to execute the Settlement Agreement and authorize the appropriate budget amendment.
CONSIDERATIONS:
On June 25, 2007, the Plaintiff filed an Administrative Appeal for the June 4, 2007, rendered Order of the
Code Enforcement Board, requiring the Plaintiff to cease the prohibited conduct or be fined $1,000.00
“per sighting.” On February 29, 2008, the Circuit Court entered an Order Granting
Stipulation to Stay Appeal, pending the Federal Court proceedings. The Plaintiff filed and Amended
Complaint in the United States District Court requesting injunctive and declaratory relief. Essentially, the
Plaintiff alleged the County’s Sign Ordinance was “unconstitutional”. On February
13, 2008, the Trial Court entered an Opinion and Order, and Issued a Preliminary Injunction, finding: (1)
Sections 5.06.06 (U), 5.06.06 (W) and 5.06,06 (X) of the County’s Sign Code are unconstitutional
“content-based” restrictions; and that (2) Sections 5.06.01, 5.06.05, and 5.06.07 of the
County’s Sign Code are also unconstitutional “content-based” restrictions. The
County was prohibited from the enforcement of the Sign Code. The parties have reached an agreement to
settle all pending actions, (attached hereto as Exhibit “A” ;). Plaintiff claims approximately
$450,000 in damages, costs, and attorney fees. Under the terms of this Agreement, the County will pay
the Plaintiff a total sum of $225,000.00 and allow Plaintiff to operate its mobile signs in Collier County for a
period of two years. The Plaintiff wishes to operate its mobile signs for two years from the date of the
settlement. If agreement is reached, in exchange, the Plaintiff agrees to dismiss with prejudice both the
federal and state actions.
FISCAL IMPACT:By entering into this Settlement Agreement, the Board will avoid any additional
litigation expenses, including expert fees and additional attorney fees and costs. A budget amendment is
required to provide sufficient funding for the settlement in the amount of $225,000.00 fromthe
Unincorporated Area General Fund (Fund 111) reserves.
GROWTH MANAGEMENT IMPACT:There is no growth management impact associated with
this Executive Summary.
LEGAL CONSIDERATIONS :Because the Federal Court previously had entered an injunction
against the County, the relative equities involved, the complexity of the case, and the time and likely
expense involved in defense, the County Attorney’s Office is recommending appro
Settlement Agreement. The Sign Code is not currently being enforced and has not yet been rewritten but
County staff is in the process of doing so; therefore, the two year issue is not as important as it might first
appear. However, if the settlement offer is rejected, the County Attorney's Office is prepared to defend the
actions taken by the County subsequent to the Court's ruling. Mediation has been continued until a
decision has been reached by the Board.
i~-'~.,,-~-=,-. -
N~.~E~~'~M~
\'-., ,.~ ~. ,',
;)tt' ,; , "'ii'';
\, v Luu;,;
Pg '2. D+-
RECOMMENDA TION:That the Board of County Commissioners approve the attached Settiement
Agreement in Bonita Media Enterprises. LLG... v. Collier Coun1Y...Code Enforcement Board. Collier County
Board of CQunty Commission_er.s, Case No: 2:07-cv-411-FtM-29DNF, now pending in the United States
District Court, Middle District of Florida, Fort Myers Division and Bonita Media Enterprises, LLC.. Brennan,
Manna & Diamond (Reg. A.9WJl..~Jl.oard of COlJillY..Commissioners, Collier County, Floriili!., Appeal
Case No.: 07-2035-CA, Lower Tribunal CEB No.: 2007-35, now pending in the Twentieth Judicial Circuit in
and for Collier County, Fiorida, in the Administrative Appeal Division of the Circuit Court and authorize the
Chairman to execute the Settlement Agreement and authorize the appropriate budget amendment.
Prepared By:
Department
County Attorney
Date
8/22/2008 3:42:49 PM
Approved By:
Department
Approval
Date
County
Manager's Office Approved
8/26/2008 5:32 PM
ATTACHMENTS:
Name:
QSQJJit9._Medl~LS_eltlerJlEWl
AgJJ~em~nL:,pmPQ$~.d,pdf
Description:
Type:
Bonita Media proposed settlement agreement
Backup Material
-'AGE~i~M~-'
Noo___
SEP (j::J 2~
Pg 3 ~T-6.
SETTLEMENT AGREEMENT
Plaintiff, BONITA MEDIA ENTERPRISES, LLC, (herein referred to as "BME") on the
one hand, and Defendants, COLLIER COUNTY CODE ENFORCEMENT BOARD, COLLIER
COUNTY, a political subdivision of the State of Florida, and the COLLIER COUNTY BOARD
OF COUNTY COMMISSIONERS (herein together referred to as "COLLIER COUNTY"), on
the other hand, hereby stipulate to the settlement of the lawsuits styled Bonita Media Enterprises.
LLC. v. Collier County. et_ aI., Case No_: 2:07-cv-411-FtM-29DNF filed in the V,S. District
Court for the Middle District of Florida, Fort Myers Division, and the pending State Appeal
styled Bonita Media Enterprises. LLC.. Brennan. Manna & Diamond (Reg. Agent) v. Board of
County Commissioners. Collier County. Florida, Case No. Appeal No.: 07-2035-CA, L.T. CEB
No; 2007-35 filed in the Collier County Circuit Court for the Twentieth Judicial Circuit
(hereafter both lawsuits shall be referred to as "the pending lawsuits"), on the tenns and
! --
conditions expressed below:
RECITALS
WHEREAS, a dispute has arisen between the parties relating to the operation of BME's
mobile sign vehicles in Collier County, such that BME has filed the above referenced pending
lawsuits for the purpose of challenging the validity of the Collier County's Sign Code and
challenging the "Findings of Fact, Conclusions of Law and Order of the Board" of the Code
Enforcement Board for Collier County Order dated June 4, 2007, with each of the pending
lawsuits being opposed by Collier County; and
WHEREAS, subject to the Collier County Board of County Commissioners' approval of
this Settlement Agreement (hereafter referred to as the "Agreement"), the parties have resolved
their disputes and desire to set forth their settlement by this Agreement.
1
I
EXHIBIT
A
N~~~~l!;
Pg 0~ ~~0
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable consideration, the mutual terms, covenants and conditions set forth herein, it
is agreed as follows:
I. The parties adopt and affirm the recitals set forth above as true and correct and as if
repeated verbatim.
2. The terms and conditions of this Agreement are subject to and conditioned upon the
approval of this Agreement by the Collier County Board of County Commissioners' (hereafter
"the BOCC") at their September 9, 2008, public meeting, Once such approval is obtained at said
meeting, this Agreement shall be binding between all parties and the effective date of the parties
entering into this Agreement shall be the date such approval is obtained. If such approval is not
obtained as noted herein, then this Agreement shall be null and void and the pending lawsuits
shall remain in full force and effect. Counsel for Collier County agrees to recommend the terms
and conditions of this Agreement in good faith to the BOCC in their closed session to be
scheduled to take place as part of the September 9, 2008 BOCC public meeting agenda. Subject
to the conditions set forth in this Agreement, the parties agree as follows:
(a) COLLIER COUNTY shall pay BME the total sum of $225,000.00 within
sixty (60) days of entering into this Agreement. Said check shall be made payable to "Brennan
Manna & Diamond, P.L. Trust Account" who shall hold said funds in trust pending completion
of the terms and conditions of this Agreement. Said funds shall be held in trust, and not released,
by Brennan, Manna & Diamond, P.L. until the completion of BME' s obligations concerning the
dismissal of the pending lawsuits under the terms and conditions of this Agreement, at which
time, said funds shall be released by BME's counsel, Brennan, Manna & Diamond, P.L.
2
Mut::I\IDA. tTEr\f~'
No --tL....~ .. ..
Pg SE~~:f- 2~
(b) Subject to the approva1(s) as noted above by the BOCC, and upon receipt
of the cleared funds totaling $225,000.00, BME shall dismiss both pending actions, with
prejudice, and each party shall bear their own attorney's fees and costs.
(c) The parties agree that BME shall be permitted to operate its vehicles,
including the operation of its mobile signs with copy changes, within Collier County, Florida, for
a period of two (2) years from the date the parties enter into this Agreement, after which time,
BME shall be subject to any lawful changes, regulations or prohibitions enacted by Collier
County in connection with Collier County's amendment to the Land Development Code or a
adoption of a Sign Code. In the event there are no changes or amendments to the sign code
and/or other restrictions passed which affect or otherwise limit BME's ability to operate its
mobile sign vehicles, BME shall be permitted to continue operating its mobile sign vehicles in
Collier County. The June 4, 2007 order issued by the Code Enforcement Board for Collier
County against BME shall be null and void, To the extent Collier County government does not
have jurisdiction over certain incorporated areas within Collier County, it makes no
representations.
3 _ Effective and conditioned upon (I) the BOCC approval noted above, and (2) the
receipt of cleared funds from or on behalf of COLLIER COUNTY totaling $225,000.00, all
parties, as well as on behalf of their attorneys, agents, representatives, insurers, heirs, successors,
and assigns, hereby remise, release, acquit, satisfy, and forever discharge each other of and from
any and all causes of actions, costs, attorney's fees, expenses and obligations of any kind or
nature whatsoever that they have asserted or could have asserted in the pending lawsuits or that
arise from or relate or refer in any way, whether directly or indirectly, any manner of action and
actions, cause and causes of action, suits, debts, dues, sums of money, accountings, reckonings,
3
i N~~~~r-:t~;;y~ .... .1
SEF I. '.,.,
Pg t.e.. b fJ~
bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances,
trespasses, damages, judgments, executions, and claims and demands whatsoever, in law or in
equity, which either party ever had, now has, or which any personal representative, successor,
heir, or assign of either party shall, or may have, against the other party, for, upon, or by reason
of any matter, cause, or thing whatsoever, from the beginning of the world to the date of this
instrument, whether due or not, direct or contingent, liquidated or unliquidated, latent or patent,
know or unknown, arising from, relating to or in any way in connection with the following:
(a) Those pending lawsuits styled Bonita Media Enterorises. LLC. v. Collier
Countv. et. at., Case No. 2:07-cv-411-FtM-29DNF, and the appeal styled Bonita Media
Enterorises. LLC.. Brennan. Manna & Diamond (Reg. Agent) v. Board of Countv
Commissioners. Collier County. Florida, Case No. Appeal No.: 07-2035-CA, L.T. CEB No:
2007-35, and all claims and allegations referenced therein.
(h) Any and all rights or claims arIS10g from, relating to, or 10 any way
connected with (1) the pending lawsuits including, without limitation, all allegations made, or
which could be made, in such lawsuits, and (2) any and all actions or inactions of the parties
relating in any way to the pending lawsuits, and (3) any and all rights or claims asserted or that
could have been asserted in the pending lawsuits, less and excepting the obligations,
responsibilities and covenants set forth herein. The parties warrant that each hold all claims
released hereby and that they have not assigned any right, claim or cause of action against each
other herein released.
4. Notwithstanding anything that may be to the contrary in Paragraph 3 of this
Agreement, BME and COLLIER COUNTY agree that either of them (as well as any other
4
NAGE. N.Jf~~.~--
0,_ .. I
I-~-... -
Pg ~_ ~i
persons or entities intended to be bound) shall, in the event of any breach, retain the right to
enforce the terms and conditions of this Agreement.
5. The parties shall immediately cause their counsel to jointly advise the Courts in
j-~~:';::~~.,
each of the pending lawsuits that the parties have agreed to a settlement of their disputes subject
to BOCC approval on September 9, 2008, and the parties agree to stay mediation, all discovery
and all litigation until such BOCC approval is obtained on September 9, 2008. In the event such
approval is obtained, then the parties agree that this Agreement shall be binding, payment shall
be made to BME as agreed above, all litigation shall cease and the pending lawsuits shall be
dismissed with prejudice by BME as noted above. In the event BOCC approval is not obtained,
then this Agreement in its entirety shall be null and void and have no legal effect between the
parties, and the parties agree that litigation shall recommence without delay or other limitation.
6. The parties have not been influenced in any manner or to any extent in entering
this Agreement by any representations or statements of the other party, or by any person or
persons representing the other party.
7. The parties have had benefit of counsel, of their own attorney, and fully
understand the terms of this Agreement; and are making full and final settlement of all claims, as
previously described.
8, This Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, their respective owners, elected officers, officers, directors, partners, employees, ex-
employees, agents, successors, heirs, affiliates, attorneys, representatives, and assigns.
9, All parties hereto understand and agree that there are no oral or other agreements,
arrangements, representations, or understanding between them relative to the matters covered by
this Agreement. This Agreement constitutes the only understanding by which the relationships
5
of the parties with each other as to the matters contained herein are to be
- ~~~~;M~--I
Pg SEP () ~~;,g
modification of this Agreement shall be binding unless in writing and executed by all parties_
10. To the extent applicable, and except as otherwise agreed in this Agreement, each
of the parties hereto acknowledges, represents and warrants that this Agreement has been duly
authorized and approved by the proper representatives of said party and the undersigned officer
or agent of such party has full power and authority to execute this Agreement on behalf of such
party. Further, each of the parties hereto acknowledges, represents and warrants that there have
been no prior assignments of any of the rights being released hereunder.
II. This Agreement is intended to compromise and settle the disputed claims among
and between the parties and in no way constitutes an admission by any party of liability for any
of the claims or matters released hereby.
12. In the event of any litigation arising from this Agreement, the prevailing party
shall be entitled to its costs and reasonable attorneys' fees from the non-prevailing party,
including appellate proceedings.
. 13. This Agreement may be signed in counterparts and shall be binding.
14, In the event of an alleged breach of this Agreement, BME and COLLIER
COUNTY agree that all underlying causes of action or claims of BME have been extinguished
by this Agreement and that the sole remedies for breach of this Agreement shall be for specific
performance of its terms and conditions or any damages arising from the breach.
15. This Agreement shall be governed by the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have executed the Settlement Agreement this
day of
,2008.
6