Agenda 09/13/2011 Item #16K19/13/2011 Item 16.K.1.
EXECUTIVE SUMMARY
Recommendation to approve a Mediated Settlement Agreement in the lawsuit styled
Berkshire Lakes Master Association, Inc v Wilsox Miller, et al., Case No. 10- 1270 -CA
(Fiscal Impact: None),
OBJECTIVE: That the Board approve a Mediated Settlement Agreement between Berkshire
Lakes Master Association, Inc. and Collier County in the lawsuit styled Berkshire Lakes Master
Association, Inc. v. Wilson Miller, et al., Case No. 10- 1270 -CA.
CONSIDERATIONS: On February 26, 2010, Collier County was sued by Plaintiff, Berkshire
Lakes Master Association, as a party in a civil action lawsuit for damages against general
contractor Wilson Miller and its various subcontractors. This case specifically involves the half -
mile length of Santa Barbara Boulevard which parallels Henley Drive from Devonshire
Boulevard to the 1 -75 overpass. Along this length of roadway, the west side of Santa Barbara
Boulevard abuts the Berkshire Lakes subdivision. The complaint alleged that Wilson Miller
and/or its subcontractors failed to protect the trees and root systems for the trees along that
portion of Berkshire Lakes subdivision and that poor site management caused flooding resulting
in the trees being damaged. In its lawsuit, the Plaintiff is seeking damages for the loss of market
value to any of the trees; past and future damages for the cost of removing any of the trees,
replacing any of the trees,, planning and /or permitting costs for the removal and/or replacement
of any of the trees and cultivation and care associated with any newly planted trees. Plaintiffs
opening demand at mediation exceeded $900,000.
Through negotiations and a mediation held on July 13, 2011, Plaintiff, Berkshire Lakes Master
Association, Inc., and Defendant, Collier County, reached a settlement agreement, the terms of
which are set out in the Mediated Settlement Agreement attached hereto as Exhibit "A In
short, the County has to pay nothing toward settlement and will waive any fees associated with
the removal of the now prohibited trees (not prohibited at the time Berkshire Lakes was
developed) In exchange for the County's fulfillment of the terms of the Mediated Settlement
Agreement, the Plaintiff will dismiss the County from this lawsuit. It is believed that the various
remaining.defendants settled their portions of the case for a collective $95,000.
FISCAL IMPACT: There is no fiscal impact associated with this settlement.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item is legally sufficient for Board action. This item
requires a majority vote. (STW)
RECOMMENDATION: That the Board of County Commissioners approve the Mediated
Settlement Agreement and direct staff to act in accord with the Mediated Settlement Agreement
when and if Berkshire Lakes makes application for tree removal.
PREPARED BY: Steven T. Williams, Assistant County Attorney
�1
Attachment: Mediated Settlement Agreement
Mediator's Report
CP \10- 1270 \2510
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9/13/2011 Item 16.x.1.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.x.1.
Item Summary: Recommendation to approve a Mediated Settlement Agreement in the
lawsuit styled Berkshire Lakes Master Association, Inc. v. Wilson Miller, et al., Case No. 10 -1270-
CA (Fiscal Impact: None).
Meeting Date: 9/13/2011
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
7/25/20112:20:24 PM
Approved By
�., Name: WilliamsSteven
Title: Assistant County Attomey,County Attorney
Date: 7/27/2011 11:23:07 AM
Name: GreenwaldRandy
Title: Management/Budget Analyst,Office of Management & B
Date: 8/15/2011 10:49:14 AM
Name: KlatzkowJeff
Title: County Attorney,
Date: 8/19/20114:30:36 PM
Name: SheffieldMichael
Title: Manager - Business Operations, CMO
Date: 8/22/20119:02:48 AM
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TWENTIETH JUDICIAL CIRCUIT COURT
COLLIER COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
BERKSHIRE LAKES MASTER
ASSOCIATION, INC.,
Plaintiff,
VS.
9/13/2011 Item 16. K.1.
WILSONMILLER, INC.; CONSUL -TECH Case Number: 1.0- 1270 -CA.
DEVELOPMENT SERVICES, INC.; ASTALDI
CONSTRUCTION CORPORATION;
GUSTAFSON CONSTRUCTION
CORPORATION; and COLLIER COUNTY,
Defendants.
MEDIATED SETTLEMENT AGREEMENT
Plaintiff, Berkshire Lakes Master Association, Inc., and Defendant, Collier County, hereby enter
into this binding Mediated Settlement Agreement [hereinafter "Agreement "] which is effective on July
13, 2011. Said Parties agree to the following terms:
1. Collier County, including its applicable departments and /or subdivisions, agrees that
there are no permitting fees required for the removal and replacement of prohibited species, including
eucalyptus trees and other species listed by Collier County.
2. Collier County, including its applicable departments and /or subdivisions, agrees that
Berkshire Lakes Master Association, Inc. may remove its trees along Santa Barbara Boulevard up to the
point of the county's type D buffer minimums. The remaining trees shall be kept reasonably close to the
30' on center requirement. The remaining trees may be replaced with any approved species of tree within
Collier County's current listing. Any replacement trees shall be at least 10' tall with a canopy at least 4'
wide.
3. The fulfillment of any and/or all terms of this Agreement shall be contingent upon
approval by the Board of County Commissioners.
4. In exchange for the foregoing promises, Berkshire Lakes Master Association, Inc. will
file a notice with this Court to drop Collier County as a party under Florida Rule of Civil
Procedure 1.250(b), which shall have the effect of dismissing Collier County with prejudice from
this lawsuit. The notice shall be filed with the Court within fourteen (14) days after Berkshire
Lakes Master Association, Inc. receives signed, written confi_rniation from an authorized county
attorney that the proper governing body within Collier County's government has ratified this
Agreement.
Exhibit A
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9/13/2011 Item 16.x.1.
5. Each party shall bear its own attorney's fees and costs.
6. This Agreement contains all of the settlement terms. There are no settlement terms
between Berkshire Lakes Master Association,, Inc. and Collier County which are not contained herein.
SO AGREED:
Py6bert Luparello, as the resident of Berk-shire Lakes Master Association, Inc.
\1 `\u441Irrlrn,,z
Robert Luparello, who has produced a Florida drivers licensig�lidt�$l frgn, appeared and
signed this Settlement Agreement in Lee County, Florida without an °- �0`�1y
No Fry Public, State of Florida'''
Au
pF .
SO AGREED: 4Lz� i -J Al -
Steven T. Williams, as the Authorized Representative of Collier County, Florida
who has produced a Florida driver's license as identification,
appeared and signed this Settlement Agreement in Lee County, Florida without an oath on July 13, 2011.
/ ► l� `�� N1. MC111/��
N tary Public, State of Florida X9.20,,
sir � � e..n ��'• =*
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9/13/2011 Item 16.K.1.
The Twentieth Judicial Circuit Court in and for Collier County Florida
BERKSIRRE LAKES MASTER
ASSOCIATION, INC.,
Plaintiff,
vs. CASE NO: 10- 1270 -CA
WILSONMILLER, INC.; CONSUL -TECH
CONSTRUCTION MANAGEMENT, INC.;
ASTALDI CONSTRUCTION CORPORA'T'ION;
GUSTAFSON CONSTRUCTION
CORPORATION; and COLLIER COUNTY,
Defendants.
CONFIDENTIALITY AGREEMENT
The parties and all participants in the mediation conducted in the above - styled matter
before Certified Circuit Court Mediator Robin Doyle on Wednesday, July 13, 2011, agree that
the mediation shall comply in all respects with the requirements of a court- ordered mediation.,
whether or not an order of the court was actually rendered, with all matters, proceedings,
communications or other actions taken in the mediation and all statements used in the mediation
(and any continuation of the mediation on a later date) to be maintained in confidence and in all
respects in accord with the requirements of the Florida Statutes and Florida and Federal Court
rules with disclosure only as required or permitted by law.
DATED.�;uly, 13, 2011
U. as �-� !Ge �i 11)t&r
iB rkshire Lakes Master Association, Inc., Theodore E. Karatinos, Attorney for
lt� Ltxl
Wilson iller, Inc.
Consul -Tech Con `ruction Mama ement, Inc
Berkshire Lakes
-- 1
Michael J. Corso, Attorney for Wilson
Mille
�f
Stcven P. Befera, Atto cy for Consui-
Tech
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Asti Constr'ti` n orpoiration
Gustafson Construction Corporation
Collier Cop, ty
9/13/2011 Item 16.K.1.
t ('Ab �Ld
Steven C rman, Attorney for Astaldi
Johnson, Attorney for
Construction
k- :7
R
Steven T. Williams, Attorney for Collier
County
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V (Y z/t/-
9/13/2011 Item 16. K.1.
The Twentieth Judicial Circuit Court in and for Collier County Florida C
G 7
BERKSHIRE LAKES MASTER NO J m
ASSOCIATION, INC.,''
0
Plaintiff,
rn
VS. CASE NO: 10- 1270 -CA N�
WILSONMILLER, INC.; CONSUL -TECH
CONSTRUCTION MANAGEMENT, INC.;
ASTALDI CONSTRUCTION CORPORATION;
GUSTAFSON CONSTRUCTION
CORPORATION; and COLLIER COUNTY,
Defendants.
MEDIATOR'S REPORT
Robin Doyle, the undersigned Mediator from Doyle Conflict Resolution, Inc., reports to this
Honorable Court on the Mediation held in this cause:
1. The Mediation was held on Wednesday, July 13, 2011
/�. 2. All parties were present at the mediation as required by the Court.
3. At the conclusion of mediation, the parties entered into agreements for settlement of all issues in
the litigation and dismissal of the action with prejudice.
4. Settlement between Plaintiff and Collier County is subject to aFproval of the Board of County
Commissioners.
5. Counsel for the parties will file all papers necessary for dismissal of this action.
Dated: July 18, 2011
Resolution, Inc.,
Robin Dcfyle, Ce fied Circuit Mediator
Mediator Num r 12540CR
9132 Strada Plko6, Suite 401
Naples, FL 34108
239 -212 -0033 phone
239 - 263 -6104 fax
Copies furnished to:
Theodore E. Karatinos, Esq. ✓Steven T. Williams, Esq.
Michael J. Corso, .Esq. Steven P. Befera, Esq.
Steve W. Corman, Esq. Jeffrey W. Johnson, Esq.
Exhibit B
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