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Agenda 12/11/2012 Item #16K212/11/2012 Item 16.x.2. EXECUTIVE SUMMARY Recommendation to approve a Mediated Settlement Agreement prior to trial in the lawsuit entitled Vernon H. Young and Jeanne M. Young v Collier County and Wyndemere Homeowners Association, filed in the Twentieth Judicial Circuit in and for Collier County, Florida (Case No. 11- 834 -CA) which settlement includes relocation of certain utilities and landscaping on Mrs. Young's property, accept a Utility Easement from Mrs. Young, and payment of $10,000, and authorize the Chairman to execute the Settlement Agreement and Release, the Mediation Agreement, and for the Board to accept the Utility Easement. Total fiscal impact not to exceed $50,000. OBJECTIVE: Recommendation to approve the mediated settlement in the lawsuit entitled Vernon H. Young and Jeanne M. Young v. Collier County and Wyndemere Homeowners Association and authorize the Chairman to execute the Settlement Agreement and Release, the Mediation Agreement, and for the Board to accept the Utility Easement. CONSIDERATIONS: On June 24, 2008, Agenda Item IOG, the Board of County Commissioners (Board) adopted the 2008 Water Master Plan Update that identified the requirement for rehabilitating pump stations. The proposed action is consistent with the 2008 Wastewater Master Plan Update, Project 73972, " Wyndemere Collection System Rehabilitation," Section 8, Table 8 -2, page 3 of 5, line 103. The action is also consistent with the 2010 Wastewater CIP October 5, 2010 Update, Project 70046, "Lift Station/Sub- Master Pump Station Technical Support," page 2 of 4, line 66, as identified in the 2011 User Fee Rate Study. In 2009, Collier County and the Collier County Water Sewer District (CCWSD) completed a sewer system upgrade in the Wyndemere Community to bring the sewer system into compliance with Collier County's Utility Standards Manual by adding more reliable dedicated telemetry and supervisory control and data acquisition (SCADA) at each pump station. The upgrade was necessary to prevent frequent pump clogs causing back -ups and creating problems, such as leaks, potential property damage to customer's homes, and potential regulatory non - compliance liability issues. As part of the upgrade, a junction box, control panel, and telemetry antenna were installed (and landscaped) in the right -of -way in front of the Young's private residence. Collier County has a specific utility easement within this right -of -way. As a result of the installations, Dr. and Mrs. Young filed a lawsuit against Collier County and the Wyndemere Homeowners Association demanding a permanent injunction against the County and alleging damages for a private nuisance. The Wyndemere Homeowners Association settled prior to the Court Ordered Mediation. The parties engaged in Court Ordered Mediation on October 30, 2012. The parties agreed to relocate the utilities, specifically the control panel and telemetry antenna, and landscaping to a location on the Young's private property. The junction box will remain in its original location in the right -of -way based on best engineering practice. In addition to relocating the utilities and landscaping, the County has agreed to settle this case for $10,000.00, and Mrs. Young has agreed to provide the County an easement on her property to relocate the utilities. Each party will bear its own attorneys fees and costs. This recommendation is based on the potential costs associated with trying this case (and perhaps filing an appeal) which costs would include the County retaining expert witnesses. Accepting /-� this settlement will conclude this case. Upon final installation of the utilities and landscaping, the parties will file a voluntary notice of dismissal with prejudice. Packet Page -4323- 12/11/2012 Item 16.x.2. FISCAL MACT: The estimated cost for the design, construction dated services, and landscaping is approximately $40,000, and funds are available in Fund 414, Project Number 70046. In addition, the County has agreed to pay Mrs. Young $10,000.00 to settle this dispute and Mrs. Young will convey a new larger Utility Easement on her private property. Funds are n budgeted and available in Fund 516- 121650, Property & Casualty Insurance Fund in the amount of $10,000. The total fiscal impact is approximately $50,000.00. GROWTH MANAGEMENT IMPACT: There is no Growth Management Impact associated with this Executive Summary. LEGAL CONSIDERATIONS: This Settlement Agreement has been reviewed and approved by the Public Utilities Division, Risk Management Department, and Co Attorney's Office. There would be significant costs associated with trying this case inclu Ing retaining expert witnesses, and there is potential exposure associated with trying any cas% This settlement is reasonable based on the totality of the circumstances. This item requires majority vote and is legally sufficient for Board action. - CMG RECOMMENDATION: Recommendation to approve a Mediated Settlement Agreement prior to trial in the lawsuit entitled Vernon H. Young and Jeanne M. Young v. Collier County and Wyndemere Homeowners Association, filed in the Twentieth Judicial Circuit in and for Collier County, Florida (Case No. 11- 834 -CA) which settlement includes relocation of certain utilities and landscaping on Mrs. Young's property, accept a Utility Easement from Mrs. Young, and payment of $10,000, and authorize the Chairman to execute the Settlement Agreement and Release, the Mediation Agreement, and for the Board to accept the Utility Easement. Prepared by: Colleen M. Greene, Assistant County Attorney Attachments: Settlement Agreement and Release with Attachments Utility Easement Packet Page -4324- 12/11/2012 Item 16.K.2. COLLIER COUNTY Board of County Commissioners Item Number: 16.K.2. Item Summary: Recommendation to approve a Mediated Settlement Agreement prior to trial in the lawsuit entitled Vernon H. Young and Jeanne M. Young v. Collier County and Wyndemere Homeowners Association, filed in the Twentieth Judicial Circuit in and for Collier County, Florida (Case No. 11- 834 -CA) which settlement includes relocation of certain utilities and landscaping on Mrs. Young's property, accept a Utility Easement from Mrs. Young, and payment of $10,000, and authorize the Chairman to execute the Settlement Agreement and Release, the Mediation Agreement, and for the Board to accept the Utility Easement. Total fiscal impact not to exceed $50,000. Meeting Date: 12/11/2012 Prepared By Name: CrotteauKathynell Title: Legal Secretary,County Attorney 11/29/2012 4:35:48 PM Approved By Name: WalkerJeff Title: Director - Risk Management,Risk Management Date: 11/30/2012 7:55:36 AM Name: ChmelikTom Title: Director, Public Utilities Engineering Date: 11/30/2012 4:59:12 PM Name: YilmazGeorge Title: Administrator, Public Utilities Date: 12/2/2012 6:36:53 PM Name: GreeneColleen Title: Assistant County Attorney,County Attorney Date: 12/3/2012 9:50:59 AM Name: GreenwaldRandy Packet Page -4325- Title: Management/Budget Analyst,Office of Management & B Date: 12/3/2012 10:19:47 AM Name: KlatzkowJeff Title: County Attorney Date: 12/4/2012 8:54:52 AM Name: OchsLeo Title: County Manager Date: 12/4/2012 11:30:13 AM Packet Page -4326- 12/11/2012 Item 16.K.2. 12/11/2012 Item 16.K.2. � SETTLEMENT AGREEMENT AND MUTUAL RELEASE THIS SETTLEMENT AGREEMENT AND MUTUAL RELEASE (hereinafter referred to as the "Agreement and Release ") is entered into and made on this day of December, 2012 by and between JEANNE M. YOUNG (hereinafter referred to as "Plaintiff') and Board of County Commissioners for Collier County (hereinafter referred to as the "County "). WITNESSETH: WHEREAS, Plaintiff filed a lawsuit against the County in the Circuit Court for the Twentieth Judicial Circuit in and for Collier County, Florida, styled VERNON H. YOUNG and JEANNE M. YOUNG v. COLLIER COUNTY, FLORIDA, et al.; Case No. 11- 834 -CA (hereinafter referred to as the "Lawsuit "); and WHEREAS, Plaintiff and the County, without either party admitting any liability or fault, desire to settle the Lawsuit and any and all disputes that arise from, relate or refer in any way, whether directly or indirectly, known or unknown, to the incidents described or allegations made in the Complaint filed in the Lawsuit; and WHEREAS, Plaintiff and the County desire to reduce their settlement to a writing so that it shall be binding upon them as well as their respective owners, principals, elected officials, officers, employees, ex- employees, agents, attorneys, representatives, insurers, spouses, successors, assigns, heirs and affiliates. NOW, THEREFORE, in consideration of the mutual covenants, promises and consideration set forth in this Agreement and Release, and with the intent to be legally bound, Plaintiff and the County agree as follows: Page l of 4 Packet Page -4327- 12/11/2012 Item 16.K.2. 1. In consideration of the resolution of all disputes or claims arising from or referring or relating in any way, whether directly or indirectly, to the Lawsuit, and for and in consideration of the sum of Ten Thousand Dollars and 00/100 ($10,000.00) and relocation of the County utilities located at 399 Edgemere Way North, Naples, Florida, as specifically memorialized in the Mediation Agreement and its attachments, and other valuable consideration, the receipt and adequacy of which is hereby acknowledged by Plaintiff, Plaintiff agrees to dismiss the Lawsuit with prejudice. 2. In consideration of the resolution of the Lawsuit, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Plaintiff, on behalf of themselves, their attorneys, agents, representatives, insurers, heirs, successors and assigns, hereby expressly releases and forever discharges the County, as well as its elected officials, officers, employees, ex- employees, agents, attorneys, representatives, successors, assigns, insurers and affiliates from any and all claims, demands, causes of actions, damages, costs, attorney's fees, expenses and obligations of any kind or nature whatsoever that they have asserted or could have asserted in the Lawsuit or that arise from or relate or refer in any way, whether directly or indirectly, to the Lawsuit or any incident, event or allegation referred to or made in the complaint in the Lawsuit. 3. Notwithstanding anything that may be to the contrary in Paragraph 3 of this Agreement and Release, Plaintiff and the County agree that either of them (as well as any other 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 and Release. Page 2 of 4 Packet Page -4328- 12/11/2012 Item 16.K.2. ^ 4. Plaintiff and the County acknowledge and agree that this Agreement and Release is intended to and shall be binding upon their respective owners, principals, officials, officers, employees, ex- employees, agents, attorneys, representatives, insurers, successors, assigns, spouses, heirs, and affiliates. 5. Plaintiff and the County recognize and acknowledge that this Agreement and Release memorializes and states a settlement of disputed claims and nothing in this Agreement and Release shall be construed to be an admission of any kind, whether of fault, liability, or of a particular policy or procedure, on the part of either Plaintiff or the County. 6. Plaintiff and the County acknowledge and agree that this Agreement and Release is the product of mutual negotiation and no doubtful or ambiguous language or provision in this Agreement and Release is to be construed against any party based upon a claim that the party drafted the ambiguous provision or language or that the party was intended to be benefited by the ambiguous provision or language. 7. This Agreement and Release may be amended only by a written instrument specifically referring to this Agreement and Release and executed with the same formalities as this Agreement and Release. 8. In this regard, Plaintiff and the County further agree that the sole venue for any such action shall be in the Twentieth Judicial Circuit in and for Collier County, Florida in Naples, Florida any action to avoid, interpret or enforce this Agreement shall entitle the prevailing party to all reasonable attorneys fees and costs in any forum until resolved. Page 3 of 4 Packet Page -4329- 12/11/2012 Item 16.K.2. 9. This Agreement and Release shall be governed by the laws of the State of Florida. IN WITNESS WHEREOF, Plaintiff, and the County have signed and sealed this Agreement and Release as set forth below. Date: ATTEST: DWIGHT E. BROCK, Clerk Deputy Clerk Approved as to form and regal sufficiency: peen M. Greene Assistant County Attorney STATE OF _ COUNTY OF BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA By: Chairman 92 JEANNE M. YOUNG, Plaintiff THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF AND COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by JEANNE M. YOUNG, before me on this day of , 2012• Signature of Notary Public Commissioned Name of Notary Public (Please print, type or stamp) My Commission expires: Personally Known or Produced Identification Type of Identification Produced Pace 4 of A Packet Page -4330- 12/11/2012 Item 16.K.2. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION VERNON H. YOUNG and JEANNE M. YOUNG, Plaintiffs, vs. Case No. 11 -834 CA COLLIER COUNTY, FLORIDA A POLITICIAL SUBDIVISON OF THE STATE OF FLORIDA BY AND THROUGH THE COUNTY COMMISSIONERS AND WYNDEMERE HOME OWNERS ASSOCIATION, INC. Defendants, MEDIATION AGREEMENT This SETTLEMENT AGREEMENT was dictated on the 30th day of October, 2012, in the presence of the following: Jeanne Young Greg Young John F. Hooley, Esq. Colleen Greene, Esq Tom Chemlik, Director of Engineering, Public Utilities Jeff Walker, Director of Risk Management George Yilmaz, Admin. Public Utilities Kevin Noell, Esq, WHEREAS, this Mediation Agreement resolves and settles that certain lawsuit filed by JEANNE M. YOUNG, as Plaintiff against COLLIER COUNTY, as Defendant, which lawsuit is currently pending in the Circuit Court of Collier County; WHEREAS, this Mediation Agreement and actual work is contingent upon the approval from the Board of County Commissioners; and NOW THEREFORE, in consideration of the foregoing recitals and the following mutual promises (the receipt and sufficiency of such consideration being acknowledged by the parties), the parties agree as follows: 1. Defendant, COLLIER COUNTY agrees to move the equipment boxes so that they are placed perpendicular to the right -of -way behind the FPL electrical transformer box in accordance with the design attached as Exhibit "A ". Page 1 of 4 Packet Page -4331- 12/11/2012 Item 16.K.2. 2. A junction box will be required to be placed at the present location of the equipment boxes, which should be no taller than three (3) feet. 3. The equipment boxes will be lowered in height by approximately eighteen (18) inches to take advantage of the space cleared by the junction box when such boxes are moved to the new location. 4. The relocation of the antenna shall be adjacent to the relocated equipment and will be attached thereto as close to the eastern property boundary as possible. 5. The County has examined its options and determined that it will not need a tripod type of antenna. The County will be able to effect the same type of data transmission with a single pole antenna that will be approximately the same height but consist of a single vertical member. 6. The County requires a specific utility easement within the present utility easement that will be drafted by the County and reviewed by Counsel for Plaintiff as well as an additional utility easement over the property owned by Plaintiff consisting of a square of five (5) feet by five (5) feet directly behind the new installation of equipment boxes. 7. The installation will be substantially in accordance with Exhibit "A" attached to this agreement showing the square of five (5) feet by five (5) feet. 8. The entire placement will be re- landscaped by the County. The landscape maintenance will be the responsibility of homeowner or Homeowners' Association. 9. The new landscaping in the right -of -way shall not exceed three (3) feet in height to facilitate the safe exit of the driveway at 399 Edgemere Way. 10. The County has agreed to pay Plaintiff, JEANNE M. YOUNG, $10,000.00 within ten (10) days of the approval of this Settlement Agreement by the Board of County Commissioners. 11. The County cannot effect the repositioning of equipment or landscaping until this Agreement, the plans, and the proposals for work are presented to, and approved by, the Board of County Commissioners. The next Commission meeting that would allow staff to fully document the work will occur on December 11, 2012. Page 2 of 4 Packet Page -4332- 12/11/2012 Item 16.K.2. 12. The County anticipates that, barring extraordinary circumstances, the reinstallation of the equipment shall occur within 90 days of Board approval of the bids and agrees to complete the work earlier if possible. 13. The parties agree to abate the action until such time as this Mediation Agreement has been fully performed and Plaintiff shall file a Dismissal upon relocation of the equipment and payment of the settlement amount. 14. The parties will stipulate to dismiss this action with prejudice when the settlement is fully satisfied. 15. Each Party shall bear its own attorneys fees, costs and expenses except for those specifically set forth herein. 16. The County agrees to provide notification to the Plaintiff of the expected date of the construction. 17. Upon completion of the installation in conformity with this Agreement, Jeanne M. Young agrees to dismiss her lawsuit with prejudice. n This Agreement is in full force and effect under the laws of the State of Florida and cannot be modified except by writing, signed by all parties. In the event any party to this Agreement seeks to have it enforced, interpreted or avoided, the prevailing party in any such action shall be entitled to all reasonable attorney fees, costs and expenses. All parties have full authority to bind and execute this Mediation Agreement. Signature page to follow Page 3 of 4 Packet Page -4333- Date: ATTEST: DWIGHT E. BROCK, Clerk 12/11/2012 Item 16.x.2. BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA By; Deputy Clerk , Chairman Approved as to form and By: legal sufficiency: JEANNE M. YOUNG, Plaintiff Ileen M. Greene Assistant County Attorney STATE OF COUNTY OF THIS MEDIATION AGREEMENT WAS SWORN TO and subscribed by JEANNE M. YOUNG, before me on this day of , 2012• Personally Known Signature of Notary Public or Produced Identification Commissioned Name of Notary Public (Please print, type or stamp) My Commission expires: Type of Identification Produced Page 4 of 4 Packet Page -4334- W D 0 CL J_ D CO V) �L 0 CC u.. Co C r-i ul 0— 12/11/2012 Item 16.K.2. 4:51 8970T �4• H20 f �FL20 AD 4t w or PUMP SrA'i'IOdI 7 tfl.018 � WHHOl.E �a- EXHIBIT "A" Packet Page -4335- cc wi i N e-1 O N v O V H z 0 F- Q 0 J J W LL J Q D CL LLJ u z 0 U Co 0 0 CL Z w z Q_ 2 w ~ V) z� Ll3 W < -j % z Q � z 0 C) ,p x J N7, . 4 12/11 /2012 Item 16.K.2. ''4-Z 04p EXHIBIT "A" Packet Page -4336- CW W1 ELK TRMSF N ei O N Ln Q1 .G E CJ O Z I- v LA PROJECT: WYNDEMERE P5 110.0113 FOLIO No.: 68390400006 TJTILITY EASEMENT 12/11/2012 Item 16.K.2. THIS EASEMENT, made and entered into this day of , 2012, by JEANNE M. YOUNG, the unremarried spouse of Vernon H. Young, whose mailing address is 399 Edgemere Way North, Naples, Florida 34105- 7148, (hereinafter referred to as "Grantor"), to the BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AS THE GOVERNING BODY OF COLLIER COUNTY AND AS EX- OFFICIO THE GOVERNING BOARD OF THE COLLIER COUNTY WATER -SEWER DISTRICT, its successors and assigns, whose mailing address is 3335 Tamiami Trail East, Suite 101, Naples, Florida 34112, (hereinafter referred to as "Grantee "). (Wherever used herein the terms "Grantor" and "Grantee" include all the parties to this instrument and their respective heirs, legal representatives, successors or assigns.) WITNESSETH: Grantor, for and in consideration of TEN DOLLARS ($10.00) and other valuable consideration paid by the Grantee, the receipt and sufficiency of which is hereby acknowledged, hereby conveys, grants, bargains and sells unto the Grantee, its successors and assigns, a perpetual, non- exclusive easement for all wastewater utility facilities and access purposes, over, under, upon, and across the following described lands located in Collier County, Florida, to wit: See attached Exhibit "A" which is incorporated herein by reference. Subject to easements, restrictions, and reservations of record. THIS IS NOT HOMESTEAD PROPERTY. TO HAVE AND TO HOLD the same unto the Grantee together with the right to enter upon said land, excavate, and place or remove materials, including, but not limited to wastewater lines and pipes, electrical panels, telemetry tower, and other equipment or improvements appurtenant thereto or thereunder for the purpose of constructing, operating, and maintaining wastewater utility facilities thereon. The easement granted herein shall constitute easements running with the land and shall burden the lands described above. vs Packet Page -4337- 12/11/2012 Item 16.K.2. PROJECT: WYNDEMERE PS 110.01B FOLIO No.: 68390400006 IN WITNESS WHEREOF, the Grantor has caused these presents to be executed the date and year first above written. JEANNE. M. YOUNG, the unremarried spouse of Vernon H. Young M Witness (Signature) Name: Name: (Print or Type) Witness (Signature) Name: (Print or Type) STATE OF FLORIDA COUNTY OF COLLIER Title: (Print or Type) The foregoing Utility Easement was acknowledged before me this day of , 2012 by Jeanne M. Young, the unremarried spouse of Vernon H. Young, who —is[ I personally known to me, or who has produced as identification. WITNESS my hand and official seal this day of 2012. (affix notarial seal) (Signature of Notary Public) (Print Name of Notary Public) NOTARY PUBLIC Serial]Com mission #:(if any) My Commission Expires: — Approve-,4, aS 1C, jNrerl Sufficiency Co.1ri4y AUOMW Packet Page -4338- (0*) E E XHIBIT-A- Page / of I-- 12/11/2012 Item 16.K.2. W V- C\l Iru z 0 Ly . 20 -0 z w o- 0 VfJ X Z>- >. Lu '61W a: -a on -C Z, U*l 81 �7- '52 Z, zb 0 U- a C) D w a) 6 0 :M 4;� C) 0 w 2 U) z > Lu LU ui 4n w CL S! uj s u'-, G. LLJ N . 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