Backup Documents 10/12/2010 Item #16K 2
ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP 16 K 2
TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO
THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE
(Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board Office. The
completed routing slip and original documents are to be forwarded to the Board Office only after the Board has taken action on
the item.)
ROUTING SLIP
Complete routing lines #1 through #4 as appropriate for additional signatures, dates, and/or information needed. If the document is
already complete with the exception of the Chairman's signature, draw a line through routing lines #1 through #4, complete the
checklist, and forward to Ian Mitchell (line #5).
Route to Addressee(s) Office Initials Date
(List in routin2 order)
1.
2.
3.
4.
s. Ian Mitchell, Executive Manager Board of County Commissioners ~ rof \1.,['0
PRIMARY CONTACT INFORMATION
(The primary contact is the holder of the original document pending Bee approval. Normally the primary contact is the person who created/prepared the executive
summary. Primary contact information is needed in the event one of the addressees above, including Ian Mitchell, need to contact staff for additional or missing
information. All original documents needing the Bee Chairman's signature are to be delivered to the Bee office only after the Bee has acted to approve the
item.
Name of Primary Staff
Contact
Agenda Date Item was
A roved b the BCC
Type of Document
Attached
Heidi Ashton-Cicko, Assistant County
Attorne
October 12,2010
Phone Number
Agenda Item Number
Settlement Agreement and Release for
Waterwa s
Number of Original
Documents Attached
INSTRUCTIONS & CHECKLIST
Initial the Yes column or mark "N/A" in the Not Applicable column, whichever is
ro riate.
1. Original document has been signed/initialed for legal sufficiency. (All documents to be
signed by the Chairman, with the exception of most letters, must be reviewed and signed
by the Office of the County Attorney. This includes signature pages from ordinances,
resolutions, etc. signed by the County Attorney's Office and signature pages from
contracts, agreements, etc. that have been fully executed by all parties except the BCC
Chairman and Clerk to the Board and ossibl State Officials.
2. All handwritten strike-through and revisions have been initialed by the County Attorney's
Office and all other arties exce t the BCC Chairman and the Clerk to the Board
3. The Chairman's signature line date has been entered as the date ofBCC approval of the
document or the final ne otiated contract date whichever is a licable.
4. "Sign here" tabs are placed on the appropriate pages indicating where the Chairman's
si and initials are re uired.
5. In most cases (some contracts are an exception), the original document and this routing slip
should be provided to Ian Mitchell in the BCC office within 24 hours ofBCC approval.
Some documents are time sensitive and require forwarding to Tallahassee within a certain
time frame or the BCC's actions are nullified. Be aware of our deadlines!
6. Return full executed co of settlement a ement to Heidi Ashton-Cicko in CAO
ftn[.
I: Forms! County Forms! Bee Forms! Original Documents Routing Slip
WWS Original 9.03.04
252-8400
16K2
1 original
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MEMORANDUM
Date:
October 14, 2010
To:
Heidi Ashton-Cicko
County Attorney's Office
From:
Teresa Polaski, Deputy Clerk
Board Minutes & Records Department
Re:
Settlement Agreement and Release for Waterways
Attached for your records, is a copy as referenced above,
(Item #16K2) adopted by the Board of County Commissioners October 12,2010.
The Minutes and Record's Department will hold the original document in the
Official Record's of the Board.
Thank you.
Attachment
16K 2
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (referred to hereinafter as the "Agreement and
Release") is made and entered into this ~day of O~ ,2010, by and between the
Board of County Commissioners of Collier County, Florida, (hereinafter the "County") and
Waterways of Naples Homeowners Association, Inc., a Florida corporation (hereinafter
"Waterways").
WITNESSETH
WHEREAS, the County and Waterways entered into an agreement dated April 12,2006
where the County agreed to construct a left turn lane into the Waterways project from Oil Well
Road and Waterways agreed to donate to the County certain easements; and
WHEREAS, in accordance with said agreement, Waterways conveyed to the County a
road right-of-way drainage and utility easement which was recorded in OR Book 4017, Page
1527 of the Public Records of Collier County and a slope and utility easement which was
recorded in OR Book 4017, Page 1523 of the Public Records of Collier County (hereinafter
"2006 conveyances"); and
WHEREAS, on or about November 2,2007, Collier County filed suit against Waterways
by Case No. 07 -41 12-CA to acquire additional easements necessary for the construction of the 4-
laning of Oil Well Road (hereinafter "2007 action"); and
WHEREAS, Waterways has alleged various claims against Collier County including
inverse condemnation, trespass and mistake of fact relating to the 2006 conveyances and 2007
action; and
WHEREAS, the County and Waterways, without admitting any liability or fault by either
of them, now seek to resolve the disputes because both the County and Waterways recognize the
costs and uncertainties of litigating these disputes; and
Waterways
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)
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WHEREAS, the County and Waterways intend through this Agreement and Release to
resolve any and all claims that have been asserted or that could have been asserted by either the
County or Waterways up to and through the date of this Agreement and Release.
NOW, THEREFORE, in consideration of the mutual covenants, proDllses and
considerations set forth in this Agreement and Release, the sufficiency of which is hereby
acknowledged, and with the intent to be legally bound, the County and Waterways mutually
agree to the following:
The County and Waterways agree to adopt and incorporate the foregoing recitals,
sometimes referred to as "Whereas clauses" by reference into this Agreement and Release.
2. Within 30 days of approval of this Agreement by the County, the County shall
pay to Waterways the sum of $281,622 for the construction of a privacy wall and replacement
landscaping along the Waterways project adjacent to Oil Well Road. After the privacy wall and
landscaping is installed, any remaining funds may be used for expert fees, attorney fees and
costs.
3. This agreement was approved by the Board of the Waterways of Naples
Homeowners Association, Inc. on September 28,2010.
4. This agreement is subject to approval of the Board of County Commissioners
which approval must occur no later than 60 days from the date of approval by Waterways set
forth in Paragraph 3 or this Agreement and Release shall be null and void.
5. Waterways agrees to convey to the County a right of entry over the north 10 feet
of Waterways' 35-foot platted landscape buffer easement over Tracts C, E, E-l and Tract B
which will allow the County and its contractor entry to the property of Waterways to build,
compact and harmonize the slope of a berm, upon which Waterways will construct an 8-foot
sound wall, consistent with the instructions of Waterways. Those instructions are as follows:
Waterways
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a. The County will grade and compact soil material from existing ground level
which is 19.5' to create a berm, the top of which is at 21' elevation;
b. The flat top of the berm area will be 5' wide to accommodate the construction by
Waterways of the wall foundations;
c. The compaction of the berm should be similar to road subgrade;
d. The slope of the berm on the north (Waterways) side will not exceed 3: l. The
County intends to build the berm with a 3: 1 slope on the south (right-of-way) side of the berm,
and will use its best efforts to construct that side of the berm with a slope not to exceed 3: 1
e. The berm slopes will be sodded to prevent erosion and, notwithstanding the Slope
Table found at Section 4.06.05.1 of the Collier County LDC, the County specifically approves
Waterways to install sod on the north (Waterways) side of the berm slope.
The County shall prepare the necessary documents for such conveyance and shall bear all costs
for the recordation, if any, of such conveyance documents. The County agrees to sod with Bahia
sod that portion of the Waterways property from the privacy wall to the sidewalk. After
installation, Waterways is responsible for maintenance of the sod and the wall, irrigation and all
landscaping installed by Waterways.
6. The County agrees that in accordance with Section 9.03.07 of the LDC, that the
remaining lO-foot landscape buffer is a legally non-conforming landscape buffer under the LDC
and that in the event of damage or destruction of the Waterways project due to a hurricane or
natural disaster, or for any future permit or development order application, the landscape buffer
will only be required to be replaced up to 10 feet.
7. The parties agree that the stacking distance of 70 feet complies with the County
Ordinance requirements. In the event of damage or destruction of the Waterways project due to
hurricane or natural disaster, the stacking distance from Oil Well Road will only be required to
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16K2
be replaced to 70 feet. The throat length was approved by the Transportation Administrator in
accordance with Section m.c.6.c(3) of Ordinance 2009-19, since the throat length was a pre-
existing condition which was reduced by the 2006 conveyances and the reduced throat length
does not jeopardize the health, safety and welfare of the traveling public. Pursuant to the
County's ROW Permitting and Inspection Handbook [Section m.c.6.c(3)], the Transportation
Administrator or his designee has the authority to modify the turn around requirement. The
County's Transportation Administrator recognizes that in the pre-acquisition condition, no turn
around was provided or required at the time Waterways was developed, and is therefore,
recognized as a legal non-conforming situation. The Transportation Administrator hereby
approves that no turn around or compliance with throat length shall be required for the Oil Well
Road entrance for any future permit or development order applications by the Waterways HOA.
8. The County agrees that an 8-foot privacy wall to be constructed by Waterways
adjacent to Oil Well Road along the project's frontage, shall be treated as a sound wall
constructed at the direction of the County and is exempt from the 6-foot wall requirement in
accordance with Section 5.03.02.I.l.a. of the LDC.
9. The County hereby approves a non-undulating wall adjacent to Oil Well Road
along the project's frontage. Waterways may install a straight line wall with straight line
plantings.
10. Waterways agrees that the slope and utilities easement conveyed to the County on
April 7, 2006 as recorded in OR Book 4017, Page 1523 and the slope and utility easements
obtained by Order of Taking on January 9, 2008 includes the right of the County to permit the
water and sewer pipes and other improvements of Orange Tree Utility Company, its successors
and assigns, within its easements.
Waterways
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Page 4 of 8
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11. The County hereby acknowledges and confmns in writing that the fee simple
acquisition (2006 conveyance) and the fee simple taking (2007 action) do not trigger a PUD
substantial change amendment.
12. The County agrees that in accordance with Section 9.03.07 of the LDC, the
landscape buffer along Oil Well Road shall be allowed to have palm trees at the rate of 70% of
the required canopy tree plantings, at the canopy equivalent of three sable palms to one canopy
tree. The Board approves these plantings to match the palm tree coverage of 60% which existed
before the County's expansion of Oil Well Road. Because of the proximity of the trees to public
water and sewer facilities and the FPL power lines, the remaining 30% of the tree plantings shall
not be large canopy trees, but shall consist of medium to small trees, as set forth on the Collier
County Native Plant list attached and incorporated herein as Exhibit "1".
13. The County hereby agrees to allow Waterways (and its employees, contractors or
agents) to install and maintain irrigation lines in the County's right-of-way along Oil Well Road
upon approval of a right-of-way permit to provide irrigation to the plants and sod between the
sidewalk and the privacy wall to be constructed on Waterways' property. The County further
agrees to issue all necessary permits for such installation and maintenance of the irrigation lines
after a complete and sufficient application for the permits is filed with the County.
14. Pursuant to Section 4.06.02.C of the LDC, Waterways may install the required
hedge on the road right-of-way side of the wall and install only palm trees on the road right-of-
way side of the wall in lieu of the required trees pursuant to 4.06.02.CA.c, along with the hedge
provided the root system of the trees does not interfere or impede in any way the function of the
underground utilities whether public or private located in the easements acquired by the County
by the 2006 conveyances or the 2007 action. Further, the County agrees that in accordance with
Waterways
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Section 9.03.07 of the LDC, that the Waterways landscape plan along Oil Well Road is not
required to meet Section 4.06.05 D. 3. related to required tree species mix.
15. The County agrees that Waterways is not required to install an approved root
barrier system pursuant to Section 4.06.05.H.2.a of the LDC for plantings along the wall, since
no large canopy trees will be planted closer than 10 feet to a sidewalk or underground utilities.
16. Waterways will work with the property owners in Lots 6, 7, 13, 14, 15, 19,20 and
21 and request a letter of no objection to the construction of the 8-foot privacy wall. The letter of
no objection shall be in such form as prepared by the County and agreed to by Waterways.
Waterways shall forward to the County copies of all letters of no objection within 14 days of
receiving such letter.
17. Waterways agrees to use the money paid by the County in accordance with this
Agreement to build a privacy wall and provide a screening effect from Oil Well Road after
talking with and considering (without being bound by) the desires of the property owners of Lots
6, 7, 13, 14, 15, 19,20 and 21.
18. There is no further compensation to be paid by the County including additional
attorney fees, expert fees or costs.
19. Waterways agrees that this settles all claims of Waterways of any nature that it
may have against the County in connection with the 2006 conveyances and the construction of
the 4-laning of Oil Well Road, except that it is subject to approval of the Mediated Settlement
Agreement for Parcels l00FEE, l00SUE, 10 1 FEE and 101 SUE in the 2007 action.
20. Except for any claim to enforce the terms and conditions of this Agreement and
Release, Waterways shall and hereby does fully and finally and unconditionally release, acquit,
remise, satisfy and forever discharge the County, its elected officials, officers, employees, former
employees, attorneys, agents, representatives, predecessors, successors, insurers, sureties and
Waterways
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16K 2
assigns from any and all matter of action or actions, cause or causes of action, suits, debts, dues,
sums of money, accounts, reckonings, covenants, charges, damages, obligations, liabilities,
contracts, promises, judgments, executions, claims, complaints, legal or equitable, whether
known or unknown, which Waterways has asserted or could have asserted against the County
relating to or arising from the 2006 conveyances and the 2007 action.
21. For its part, the County shall and hereby does fully and finally and
unconditionally release, acquit, remise, satisfy and forever discharge Waterways from any claim,
cause or causes of action relating or referring in any way to the 2006 conveyances.
22. This Agreement and Release shall be governed by the laws of the State of Florida.
23. 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.
24. This Agreement and Release is freely and voluntarily executed by the County and
Waterways after they have been apprised of all relevant information concerning this Agreement
and Release and after they have received advice of their respective counsel. In executing this
Agreement and Release, the County and Waterways do not rely on any inducements, promises,
or representations other than the promises or representations set forth in this Agreement and
Release.
25. The effective date of this Agreement and Release shall be the date upon which it
is approved by the Board of County Commissioners of Collier County, Florida.
Waterways
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Page 7 of 8
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IN WITNESS WHEREOF, the County and Waterways have executed this Agreement
and Release as evidenced in the following signature blocks:
~~ . ..-~ !~ ,- r _,.
A~:." ,;.,~
DWIGirr-E. BROC&, CLERK
-.~~~
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_t....~~_. it
BOARD OF COMMISSIONERS OF
COLLIER COUNTY, FLORIDA
'1d-WC+
FRED W. COYLE, Chairman
BY:
C1:lP4L
Signature
<;;i:elHlb p UI1/It~;lP/
ltl~>~. dL
W A TERW A YS OF NAPLES HOMEOWNERS
ASSOCIA nON, INe.
Signature
!to il t51j C I/L 7/:/{'
Print Name
1!~~
BY[ , / - " ,~
ITS: 1/ f/ cL !d;4~//~
Approved as to legal form
and s fficiency:
CN>7-4112\3221
AC1rrvE:VVOIISS/135S64:3102352_1
9121/10
Item' ~
Agenda /0'12)'0
Date ~
Waterways
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Page 8 of 8
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Collier County Native Plant List
I Plant {;oasf8rLOne IMIO LOne In.aDO L..ODe
ITrees-Lal'2e
Bald Cypress ( Taxodium disticuum) X X X
Fiddlewood Citarexylum fruitcosum) X X
Gumbo lImbo (Bursera simaruba) X
HackberrY (Celtis laeviaata) X X X
Jamaica Dogwood (Piscidia piscipula) X
LaUrel Oak (Quercus laurifolia) X X X
Live Oak (Quercus virginianna) X X X
, (Swietenia mahoRoni) X X
Mastic (Mastichodendron foetidlssimum) X X
Native Fig (Ficus aurea) X
Paradise tree (Simarouba glauca) :x
Red Maole (Acer l11brum) X X X
Royal Palm (Roystonea elata) X X
Coccoloba uvifera) ~ X
Slash Pine (Pinus elliottii) X X X
Sweet Gum lLiquidambar s . uaT X X X
Sycamore (Platanue occidentalis) X X X
West Indian Laurel",""uy lPrunUS myrtifolia.) X
Wild Tamarind (Lysiloma latisiliquum) X X
Willow Bustic (Dipholis salicifolia) X X
Win21eaf SoaDberrv (Sapindus saoonaria) X X
ITrees- Medium to Small ...
Black Ironwood (KruR;iodendron ferreum) . . 'X X
Bloll ira discolor} X
Cabba2e Palm (Sabal Palmetto) · .X X X
Dahoon Holly (llex cassinc) X' X X
East Palatka Holly ( Ilex attenuata) X X X
Flonda Elm rrTImus amcricana) X, X X
Geiger Tree Cordia sebestena) X
[Magnolia (lJ 'IIGnolia ora) X X X
MilkbBrk (Dr rpetes diversifolia) X
Pi200n Plum Coccoloba diversifoliaT X
Satin Leaf (C uysophyllum olivifonne) X
Scrub Hickory (Carya tloridana) X X X
IScrub Live Oak (Quercus geminata) X X X
Simpson Stooocr lMvrcianthes X X X
Soldierwood (Colubrina elliptical X
!Shurbs-;. Lal"2e ( 'B' ButTers)
Bahama S~ngback (Bourreria ovata) X
Black Ironwood (Krugiodendron fmeum) X X
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Buttonwood (Conocarpus erectus) X
Catclaw (Pithecellobium unguis-cati) X X
Cmnamon Bark (Canella winterana) X
Crabwood (Ateramnus lucidus) X X
Darling Plum Rcynosia septentriolalis) X
Florida Pivet (Forestiera se2l'e2ata) X X ?
Golden Dewdrop (Duranta repens) X X
Jamaica Caper (Capparis cynophallophora) X X
Maiden Bush (Savia bahamenis) X
Mvrsine floridana) X X ?
Pigeon Plum (Coccoloba diversifolia) X
Paurotis Palm (Acoelorrhanhe wrlKhtii) X X
Red Berry Stopper (Euaenia confusa) X
: (Coccoloba uvifera) X X
Wild Lime (Zanthoxylum tagara) X X
Simpson Sto....- \lnJ....~anthes ) X X X
Spicewood (Calyptranthes sPP.) X
Walters Viburnum (Viburnum obovatum) X X X
Wax. Myrtle (Myrica cerifera ...... X X X
Yellow Elder ITecoma stans X X ?
IShrubs- Medium to Sma)
rUBY ~ \Sorlana maritime) X
Blackhead (Pithecellobium guadaupense) X
CQCO Plum (Cbrysobalanus icaco) X
Cordia (Cordia globosa) X
Firebush 1ia patens) X X
Florida Pivet (Forestiera tal X X ?
Golden Dewdrop (Duranta repens) X X
Jamaica Caper (Capparis cynophallophora) . . X. X
. ......1._ Fern (Acrosticbam dan~eaefolium) X X
Maiden Bush (Savia bahamenis) X
Mvrsine floridana) X X ?
NecklaccPod Sophora tomentosa) X
Saw Palmetto Serenoa X X X
Sea Oxeye Daisy (Bonichia trutescens) X
Seven Year Apple (Casasia clusntolia) X
Silver Saw Palmetto (Serenoa repens 'Cinerea') X X X
Spicewood (Calyptranthes SPP.) X
White Indigo Berry (Randia aculeate) X X
Wild Coffee (Psychotrta nervosa) X
l
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... Cabbage palms must be used in groupings of 3 to count towards a single canopy tree.
Palms can only be used for up to 30010 of the required number of canopy trees.
.. Not a good buffer shrub - becomes leggy over time.
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