Agenda 06/27/2023 Item #16K 2 (Mediated Settlement Agreement w/La Minnesota Riviera, LLC & the Riviera Golf Estates HOA of a Bert Harris Claim)16. K.2
06/27/2023
EXECUTIVE SUMMARY
Recommendation to approve and execute a First Amendment to the Mediated Settlement Agreement
between the County, La Minnesota Riviera, LLC, and the Riviera Golf Estates Homeowners Association,
Inc., regarding settlement of a Bert Harris Claim concerning the Riviera Golf Course, in order to extend the
timeframes provided for in the Agreement.
OBJECTIVE: To approve and execute the attached First Amendment to the Mediated Settlement Agreement and
authorize the Chairman to execute the First Amendment on behalf of the Board.
CONSIDERATIONS: On April 25, 2023, the Parties entered into a Mediated Settlement Agreement (the
"Agreement") to resolve a Bert Harris claim filed by La Minnesota against the County regarding the Riviera Golf
Course. The Agreement provides that the County will pay to La Minnesota the sum of $5,800,000 and will create
an Independent Special District (or alternatively, an MSBU or Dependent Special District should the Independent
Special District prove problematic), to both own and ultimately finance the acquisition of the Property.
The Parties require additional time to create the Special District and the County also requires additional time to
complete its Assessment Report. This Amendment extends the timeframes to complete these actions by ninety (90)
days, which would allow the Parties until September 22, 2023, to complete the Assessment Report, create the
Special District and close on the property. All other terms and conditions of the Agreement shall remain unchanged
and in full force and effect.
The Riviera Golf Estates HOA has not yet executed the Amendment as their board has not yet met and is expected
to meet to consider the Amendment on June 27, 2023.
FISCAL IMPACT: There is no fiscal impact associated with this item.
GROWTH MANAGEMENT: None.
LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires a majority vote for
approval. --SAA
RECOMMENDATION: To approve the attached First Amendment to the Mediated Settlement Agreement and
authorize the Chairman to execute the First Amendment on behalf of the Board.
Prepared by: Sally Ashkar, Assistant County Attorney
ATTACHMENT(S)
1. First Amendment (PDF)
2. Mediated Settlement Agreement - La Minnesota (Riviera Golf Estates) 4.25.23 (PDF)
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16. K.2
06/27/2023
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.2
Doe ID: 25762
Item Summary: Recommendation to approve and execute a First Amendment to the Mediated Settlement
Agreement between the County, La Minnesota Riviera, LLC, and the Riviera Golf Estates Homeowners
Association, Inc., regarding settlement of a Bert Harris Claim concerning the Riviera Golf Course, in order to
extend the timeframes provided for in the Agreement.
Meeting Date: 06/27/2023
Prepared by:
Title: Legal Assistant — County Attorney's Office
Name: Wanda Rodriguez
06/06/2023 3:28 PM
Submitted by:
Title: County Attorney — County Attorney's Office
Name: Jeffrey A. Klatzkow
06/06/2023 3:28 PM
Approved By:
Review:
County Attorney's Office Sally Ashkar Additional Reviewer
Office of Management and Budget Wanda Rodriguez Level 3 OMB Gatekeeper Review
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review
County Manager's Office Amy Patterson Level 4 County Manager Review
Board of County Commissioners Geoffrey Willig Meeting Pending
Completed 06/21/2023 2:04 PM
Skipped 06/21/2023 1:52 PM
Completed 06/21/2023 2:16 PM
Completed 06/21/2023 4:00 PM
06/27/2023 9:00 AM
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16. K.2.a
FIRST AMENDMENT TO MEDIATED SETTLEMENT AGREEMENT
FOR
RIVIERA GOLF ESTATES BERT HARRIS CLAIM
THIS AMENDMENT, made and entered into on this day of 2023,
by and between Collier County, a political subdivision of the State of Florida ("Collier County"), La
Minnesota Riviera, LLC, a foreign limited liability company (" La Minnesota"), and Riviera Golf Estates
Homeowners Association, Inc. (" Riviera"), collectively referred to as the "Parties."
WHEREAS, on April 25, 2023, the Parties entered into a Mediated Settlement Agreement
(the "Agreement") to resolve a Bert Harris claim filed by La Minnesota against the County; and
WHEREAS, the Agreement provides that within sixty (60) days of the approval of the
Agreement, Collier County will pay to La Minnesota the full and final settlement amount of
$5,800,000.00 in one lump sum; and
WHEREAS, the Agreement further provides that should an independent special district or
alternative entity fail to be created within sixty (60) days, then the Agreement is null and void; and
WHEREAS, the Parties wish to extend the timeframes provided for in the Agreement for an
additional ninety (90) days.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, it is agreed by the Parties as follows:
1. The timeframes in paragraphs 2 and 10 shall hereby be extended for an additional ninety (90)
days, commencing on June 24, 2023 and ending on September 22, 2023.
2. All other terms and conditions of the Agreement shall remain unchanged and in full force and
effect.
[20-PRC-0450011577792/11
[Signature page to follow]
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IN WITNESS WHEREOF, the parties have executed this First Amendment on the date and
year first written above by an authorized person or agent.
ATTEST:
CRYSTAL KINSEL, Clerk
By:
Deputy Clerk
I
Approved as to form and legality:
.Jeffrey A. Klatzkow
County Attorney
STATE OF /Y 'nylwm-
COUNTY OF_ 0.401k
130ARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By:
Rick LoCastro, CHAIRMAN
LA MINNESOTA RIVIERA, LLC
TITLE: "#JrP-
The foregoing agreement was acknowledged before me by means of VQ physical presence or I I
online notarization this q- day of jkW--, 2023 by J'Dhfi W , as
of La Minnesota Riviera. LI-C. a Minnesota limited liability company, who is
personally known to me or who has produced as identification.
REE��71RD*—f
Nmary (Signatu e of Notary Public)
Mmne,,, -Aa
Aq Pq hwo Id
-FPrint Name of Notary Public)
[20-PRC-04500115777921l Page 2 of 3
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16.K.2.a
RIVIERA GOLF ESTATES HOMEOWNERS
ASSOCIATION, INC.
PRINT:
TITLE:
STATE OF FLORIDA
COUNTY OF
The foregoing agreement was acknowledged before me by means of [ ] physical presence or [ ]
online notarization this day of , 2023 by , as
of Riviera Golf Estates Homeowners Association, Inc., a Florida not -for -profit
corporation, who is [ ] personally known to me or who has [ ] produced as
identification.
(Signature of Notary Public)
(Print Name of Notary Public)
[20-PRC-0450011577792/1] Page 3 of 3
P�
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Mediated Settlement Agreement
This Settlement Agreement ("Agreement") is made between Collier County, a political
subdivision of the State of Florida ("Collier County"), La Minnesota Riviera, LLC, a foreign
limited liability company ("La Minnesota"), and Riviera Golf Estates Homeowners Association,
Inc. ("Riviera") executed by all parties hereto on this 2S4" day of4h?ry 2023.
Apr; (
WHEREAS, La Minnesota is the owner of±94 acres which is zoned Golf Course ("GC") and
consists of a former golf course located at 164 Estelle Drive in Collier County, Florida (the
"Property"); and
WHEREAS, La Minnesota objects to the potential impact of Ordinance 17-10, concerning golf
course conversions, and delivered a written notice of claim ("Claim") pursuant to Section 70.001,
Florida Statutes, the Bert J. Harris Jr., Private Property Rights Act (the "Bert Harris Act"), to
Collier County alleging that the Property has been inordinately burdened by the adoption of said
ordinance; and
WHEREAS, the Bert Harris Act authorizes Collier County to enter into a settlement agreement
to provide relief while protecting the public interest served by the regulations at issue. Riviera
represents area homeowners who rely on portions of the Property which has historically served a
stormwater, recreational, and preservation role to the surrounding community; and
WHEREAS, Riviera is an interested party who has filed a complaint for declaratory judgement
and for injunctive relief against La Minnesota to determine and protect their respective rights in
the Property identified as Case No. 22-CA-1330 (the "Case"), filed in the Circuit Court, Twentieth
Judicial Circuit, in and for Collier County, Florida (the "Court"); and
WHEREAS, the parties hereby desire to avoid the expense, delay, risk, and uncertainty of
litigation, and agree that it is in their respective mutual interests to resolve the Claim in accordance
with the terms set forth herein following mediation proceedings pursuant to the Bert Harris Act.
NOW THEREFORE, in consideration of the promises, covenants and conditions contained
herein, the parties hereto agree as follows:
1. Recitals. The foregoing recitals are true and correct and by this reference are incorporated
as material parts of this Agreement.
2. Settlement Amount, Collier County will pay to La Minnesota the full and final settlement
amount of $5,800,000.00 in one lump sum. The aforesaid payment shall be paid within
sixty (60) days of the approval of this Agreement by the Board of County Commissioners
of Collier County (which approval process is described below), which time may be
extended by the parties. Each party shall bear their own attorneys' fees and costs.
3. Settlement Payment(s). The aforesaid payment will each be made by check payable to "La
Minnesota Riviera, LLC" which shall be delivered to Richard D. Yovanovich, counsel for
La Minnesota, by or before the date indicated in Paragraph 2 above. The payment shall be
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subject to clearing in the ordinary course and held in escrow in the recipient's trust account
on behalf of La Minnesota until the conveyance of the Property as described in Paragraph
4 below. Collier County will be responsible for all closing costs including any current year
ad valorem and non -ad valorem taxes as may be due. This notwithstanding, La Minnesota
shall be responsible for documentary stamp taxes due. Collier County will stay all pending
code enforcement actions on the Property until closing. Closing shall be conditioned upon
creation of the ISD or alternative entity as described in Paragraph 5 below.
4. Conveyance. Within 14 days of Mr. Yovanovich' s receipt and clearance of the settlement
check described in Paragraph 2 above, La Minnesota will execute a general warranty deed
to Collier County, or if requested by Collier County, to the as yet to be named Independent
Special District ("ISD") or alternative entity as provided herein free and clear of all
mortgages, liens, or other monetary encumbrances.
Independent Special District. It is the intent of Collier County to establish, as provided by
Florida law, an ISD to finance both the initial acquisition of the Property and effectuate the
public benefits derived from its public ownership, including, but not limited to: stormwater
management, floodplain maintenance, water quality, passive and active recreation, and the
preservation of open space and wildlife habitat, and such uses as may be incorporated into
an eventual enabling ordinance. Collier County shall establish the ISD by local ordinance
prior to the payment of the settlement amount in Paragraph 2 above. The ISD boundaries
shall initially include the Property as well as the Riviera subdivision but may be expanded
by Collier County in relationship to any shared public benefit derived from the Property or
its improvements by surrounding properties. Collier County reserves the right to utilize a
different mechanism, such as an MSBU or a Dependent Special District, should the ISD
model prove problematic, or as an interim vehicle, as the boundaries of the contemplated
ISD will be unknown until a Benefit/Assessment Report is completed by Collier County.
County Relationship to the ISD. It is understood by the parties that Collier County will
finance the initial acquisition, studies, and maintenance of the Property. The unnamed ISD
or alternative entity will ultimately reimburse Collier County for the cost of acquiring the
Property, including incurred closing costs and current year ad valorem and non -ad valorem
taxes fronted by the County. The ISD shall ultimately be responsible for future
maintenance and improvement of the Property. It is further understood that Collier County
will reserve the right to seek additional funding and partnerships in furtherance of the goals
of the ISD to reduce the ultimate costs of the acquisition or improvement of the Property.
7. County License. Upon execution of this Agreement by all parties, La Minnesota hereby
grants a license to Collier County to enter upon the Property for the purposes of conducting
preliminary grounds and stormwater maintenance, at Collier County's sole cost, to address
the present condition of the Property heading into the local rainy season. Collier County
will indemnify and defend La Minnesota from any claims arising from Collier County's
use under the license. Notwithstanding the foregoing, nothing in this Agreement shall be
deemed a waiver of sovereign immunity or limit of liability of Collier County, including
their respective supervisors, commissioners, officers, agents, or employees, beyond any
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statutory limited waiver of immunity or limits of liability in Section 768.28, Florida
Statutes.
Tolling and Release of Claim. Upon acceptance of this Agreement by Collier County, La
Minnesota and Collier County agree that further action under the Bert Harris Act will be
abated and any time periods tolled until the payment of settlement amount and conveyance
of the Property as provided in Paragraphs 2, 3, and 4 above. Upon Mr. Yovanovich's
receipt of the aforementioned payment, La Minnesota will withdraw the Claim and agrees
that it will not seek further administrative or judicial review of the Claim. The parties shall
bear their own attorneys' fees and costs associated with the Claim.
9. Stipulation for Dismissal by Riviera. Counsel for Riviera shall prepare and deliver to Mr.
Yovanovich a stipulation for dismissal with prejudice of the Case with a proposed order on
the stipulation, which shall provide that any existing actions against La Minnesota or the
Property are dismissed with prejudice, with all parties to bear their own attorneys' fees and
costs. Within 14 days of Mr. Yovanovich' s receipt of the settlement check and conveyance
of the Property described in Paragraphs 2 and 4 above, Riviera and La Minnesota shall
execute the stipulation of dismissal with prejudice and file the sarne with the Court with
the request that the Court enter the order of dismissal with prejudice.
10. Nullification, Should the ISD or alternative entity fail to be created within sixty (60) days,
or as otherwise extended by the Parties, this Agreement shall become null and void. Should
the Collier County Board of County Commissioners fail to approve this Agreement and/or
creation of the ISD or alternative entity, this Agreement shall becorne null and void.
11. Additional Releases. Except for the obligations of this Agreement, which are not hereby
released and which shall survive the execution hereof, Collier County, La Minnesota, and
Riviera, for themselves and for their respective successors and assigns, hereby remise,
release, acquit, waive, satisfy, and forever discharge one another and one another's
respective officers, directors, shareholders, members, employees, agents, representatives
and insurers, and the respective personal representatives, heirs, successors and assigns of
all of them, of and from all, and all manner of action and actions, cause and causes of
action, suits, covenants, contracts, controversies, agreements, promises, guarantees,
warranties (whether express or implied, and whether based on statute, cornmon law or
otherwise), third -party claims, bad faith claims, variances, trespasses, damages, judgments,
executions, claims and demands whatsoever, which either has or may have against the
other, whether arising in tort, by contract, by virtue of statute, or otherwise, and whether in
law or in equity, regardless of whether the same are known or unknown, suspected or
unsuspected, patent or latent defects, or have yet accrued or not accrued, having to do with
or otherwise relating to the Property having arisen prior to the date of this Agreement.
12. Due Dates Falling on Weekends or Holidays. In the event that the date of any act required
to be performed by this Agreement (including, but not limited to, the payment of any
money) falls on a weekend or a federal holiday, then the sarne shall not be required to be
performed until the next business day thereafter.
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13. Entire Agreement. This Agreement sets forth the entire understanding of the parties and no
verbal or written warranties or representations have been made or have been relied upon
which do not appear in writing within this Agreement. Any reliance on verbal or other
representations which do not appear within this Agreement shall be deemed unjustifiable
reliance. Each party hereto is represented by that party's own counsel (or has had the
opportunity to confer with counsel of their own choosing) and has had the benefit of (or
the opportunity to have the benefit of) such counsel's advice in reviewing, commenting
upon, and modifying this Agreement.
14. Modification of Agreement. This Agreement may not be amended or modified except by
written instrument signed by all of the parties hereto, and the parties agree that this
provision may not be waived except in writing.
15. Waiver. The rights of the parties under this Agreement are to be considered cumulative,
and the failure on the part of any party to exercise or enforce properly or promptly any
rights arising out of this Agreement shall not operate to forfeit or serve as a waiver of any
of those or other rights. The waiver by one party of the performance of any covenant or
condition herein shall not invalidate this Agreement, nor shall it be considered to be a
waiver by such party of any other covenant or condition herein. The waiver by any party
of the time for performing any act shall not constitute a waiver of the time for performing
any other act or an identical act required to be performed at a later time.
16. Mediator As Scrivener; Interpretation. The mediator has provided the initial draft of this
Agreement to the parties and their counsel as a draft for their consideration. The mediator
has done so as an accommodation to assist the parties in memorializing their agreement
and has not done so in order to render any legal advice. The parties and their counsel have
been free to add to, delete from, and to otherwise change the initial draft as they have seen
fit. Any changes made to the initial draft of this Agreement have been at the request of one
or more of the parties to this Agreement (or their counsel) and represent the
memorialization of their intent. The parties hereto acknowledge and agree that the mediator
has not provided them with any legal advice (either during the course of the mediation or
in connection with the negotiation and preparation of this Agreement), and that they have
obtained (or have had the opportunity to obtain) their own independent legal advice prior
to executing this Agreement. The parties hereto agree that in the event of any dispute as to
the precise meaning of any term or provision contained herein, the principle of construction
and interpretation that written documents are to be construed against the party preparing
the same shall not be applicable. Wherever used herein, the singular shall include the plural,
the plural shall include the singular, and pronouns shall be read as masculine, feminine or
neuter, all as the context requires.
17. Confidentiality. Pursuant to Mediation Confidentiality and Privilege Act contained in
Chapter 44, Florida Statutes, all parties to the mediation and mediation participants as
described therein shall maintain the confidentiality of the mediation proceedings and all
settlement communications derived therefrom except as necessary to effectuate the terms
of this Agreement or as provided by the aforementioned Act.
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18. Conversion -Donation. The parties hereto acknowledge that the agreed upon settlement
payment is not the result of an arms -length transaction nor does it necessarily reflect the
fair market value of the Property, but was reached in effort to resolve the Claim. La
Minnesota has an appraised valuation of $20,760,000.00 for the Property. Part of the
consideration for the settlement payment is a partial bargain sale to a charitable
organization under 26 U.S.C. §170 and 26 U.S.C. §1011, and additionally reflects the
potential involuntary conversion of portions of the Property and an exchange pursuant to
26 U.S.C. § 1033, which is hereby acknowledged by the parties.
19. Cooperation. The parties hereto agree to cooperate fully in the execution of any documents
or performance in any way which may be reasonably necessary to carry out the purposes
of this Agreement and to effectuate the intent of the parties hereto.
20. No Admission of Liability. By this settlement, no party admits any liability, but rather the
parties have agreed to this settlement as a compromise of disputed claims in the interests
of avoiding the costs and uncertainty of continued litigation.
21. Time is of the Essence. Time is of the essence of this Agreement.
22. Headings. The headings used in this Agreement are for convenience and reference only
and in no way define, describe, extend, or limit the scope or intent of this Agreement or the
intent of any provision in it.
23. Severability. If any provision of this Agreement shall be held by a court of competent
jurisdiction to be illegal, invalid or unenforceable for any reason, whether on its face or as
applied, the remaining provisions shall remain in full force and effect.
24. Benefit and Binding Effect. This Agreement shall inure to the benefit of and be binding
upon the parties, their heirs, successors, and assigns. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The individuals signing below on
behalf of entities represent and warrant that they have the full authority to bind their
respective entities to all of the provisions hereof. Signatures by facsimile transmission or
other electronic transmission of this Agreement shall be acceptable and binding upon the
parties. A copy hereof shall be as binding as the executed original.
25. Governing Law, Venue, Jurisdiction. This Agreement shall be governed by, construed, and
interpreted under the laws of the State of Florida. The venue and jurisdiction of any dispute
relating to this Agreement shall be construed in accordance with the laws of the State of
Florida, and for purposes of this Agreement, venue and jurisdiction for any litigation shall
lie exclusively in the Circuit Court in and for Collier County, Florida, and the parties waive
any objection to said venue or jurisdiction, and any trial shall be a bench trial and not a jury
trial.
26. Attorneys' Fees. In any litigation arising out of or relating to this Agreement, or to the
interpretation or enforcement hereof, the prevailing party(ies) shall be entitled to recover
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16. K.2.b
the prevailing party's(ies') reasonable attorneys' fees and costs frorn the non -prevailing
party(ies) at the trial and at all appellate levels.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first stated
above.
\ 0"
ATTLST:
CRYSTAL KINStL,'<. erk
STATE OF FLORIDA
COUNTY OF
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
By:
Rick LoCastro, CHAIRMAN
LA MINN :0,
Tt
I A, LC
BY:
PRINT:
TITLE:
The foregoing agreement was acknowledged before me by means of rvf physical prese ce
or [ ] online notarization this _t+^day of —�n 1 , 2023 by ,nnt'.th D. fir' as
f La Minnesota Riviera, LLC, a Minnesota limited liability company,
who is [ p®r onally known to me or who has Vproduced Dyiytes Ucense as identification.
DIANNAQUINTANIttA a a'� 2 /I�� Ll /e �4ani
(Signature of Notary ublic)
MY COMMISSION # FGi 145010
EXPIRES. September 13. 2025 BMW Thru Notxy Public Urld rwrkerE ho o- 1 f a �VY����f
(Print Name of Not ry Public)
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16. K.2.b
RIVIERA GOLF ESTATES HOMEOWNERS
ASSOCIATION, INC.
BY: t
PRINT: �f/ i �. F1 /Z//
TITLE:
STATE OF FLORIDA
COUNTY OF
The foregoing agreement as acknowledged before me by means of [Wphysical presence
or[ ] online notarization this day of 2023 by
L of Rivi olf Estat s Homeowners Association, Inc., a Florida not -for -
profit corporation, who is [ W personally known to me or who has [ ] Produced
as identification. �--�
=10/04/2024
State o! Flonaasser
ion HH 044222
/2024
of Notary Public)
��CM— 4 U 5 iUY
(Print Name of Notary Public)
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