Agenda 12/02/2008 Item #16K 3
Agenda Item No. 16K3
December 2, 2008
Page 1 of?
EXECUTIVE SUMMARY
Recommendation to approve settlement in the lawsuit entitled Collier County v. Naples
Sunrise, Inc., Case No. 08-2803-SC, filed in County Court Small Claims in and for Collier
County, Florida, to Recover Damages in the Amount of $1,102.03.
OBJECTIVE: For the Board of COWlty Commissioners to approve settlement,
whereupon the County will accept $1,]02.03 as fuil settlement in the lawsuit entitled Collier
County v, Naples Sunrise, lnc" Case No, 08-2803-SC for the recovcry of damages, costs, and
administrative fees incurred by the County,
CONSIDERATIONS: Naples Sunrise lnc, caused underground sprinklers to be instailed
at and around III Palm Drive. Due to the leakage of one or more of the sprinkler heads, the
subsoil under the County's sidewalk was eroded and caused the sidewalk to cave in, thereby
creating a hazard to the general public. The COWlty was required to repair the sidewalk and
incurred costs of$I,102.03,
FISCAL IMPACT: The settlement offer amoWlts to $1,102.03, which will be revenue
deposited into the Risk Managemcnt Propcrty & Casualty Fund,
-
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated
with this item,
LEGAL CONSIDERATIONS: Both the County Attorney and Risk Management Director.
opine that settlement in the sum of $1, 102,03 as full payment for the recovcry of damages, costs,
and administrative fees is reasonable. This item is not quasi judicial, and as such ex parte
disclosure is not required, This item requires majority vote only. Approved: WEM- ACA
RECOMMENDATION: That the Board of County Commissioners approve settlement in the
amount of $1,102,03 and authorize the Chairman of the Board of County Commissioners to
execute all necessary documents,
PREPARED BY:
William E, Mountford, Esq., Assistant County Attorney.
_.
Item Number:
Item Summary:
Meeting Date:
Page I of I
Agenda Item No. 16K3
December 2, 2008
Page 2 of 7
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
16K3
Recommendation to approve settlement in the lawsuit entitled Collier County v Naples
Sunrise, Inc" Case No, 08-2803-SC, filed in County Court Small Claims in and for Collier
County, Florida, to Recover Damages in the Amount of $1 10203
12/2/2008 90000 AM
Prepared By
William Mountford
County Attorney
Assistant County Attorney
Date
County Attorney Office
11/13/20084:22:36 PM
A pproved By
Jeffrey A. Walker, CPCU,
ARM
Administrative Services
Risk Management Director
Date
Risk Management
11/14/20087:54AM
Approved By
William Mountford
County Attorney
Assistant County Attorney
Date
County Attorney Office
11/14/200810:26 AM
Approved By
Jeff Klatzkow
County Attorney
Assistant County Attorney
Date
County Attorney Office
11/17/20084:56 PM
Approved By
OMS Coordinator
County Manager's Office
OMS Coordinator
Date
Office of Management & Budget
11/18/20088:35 AM
Approved By
John A. Yonkosky
County Manager's Office
Director of the Office of Management
Date
Office of Management & Budget
11/18/20088:49 AM
Approved By
Leo E Ochs, Jr.
Board of County
Commissioners
Deputy County Manager
Date
County Manager's Office
11/18/20081:44 PM
file://C:IAgendaTestIExDortl117-December%202.%202008116.%20CONSENT%20AGEN.., 11/25/2008
Agenda Item No. 16K3
December 2, 2008
Page 3 of 7
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
, 2008 by and between CDllier County, a political subdivision
of the State of Florida, (hereinafter referred to as the "County") and Naples Sunrise Inc"
(hereinafter referred to as "Defendant"),
WIT N E SSE T H:
WHEREAS, County filed a lawsuit against the Defendant in the County Small
Claims Court in and for Collier County, Florida, styled Cottier County, a political
subdivision of the State of Florida v. Naples Sunrise, Inc., Case No. 08-2803-SC
CA (hereinafter referred to as the "Lawsuit"); and,
WHEREAS, County and the Defendant, without either of them 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, to the incidents described or
allegations made in the Statement Claim filed in the Lawsuit; and,
WHEREAS, County and the Defendant 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.
Agenda Item No, 16K3
December 2, 2008
Page 4 of 7
NOW, THEREFORE, in consideration of the mutual covenants, promises and
consideratioo set forth in this Agreement and Release, and with the intent to be legally
bound, County and the Defendant agree as follows:
1, County and the Defendant adopt and incorporate the foregoing recitals,
sometimes referred to as 'Whereas Clauses", by reference into this Agreement and
Release.
2, 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 One Thousand One Hundred Two and 03/100 Dollars
($1,102,03) and other valuable consideration, the receipt and adequacy of which is
hereby acknowledged by County, County agrees to dismiss the Lawsuit with prejudice,
3. In consideration of the resolution of the Lawsuit, and for other good and
valuable consideration, the receipt and adequacy of which is hereby acknowledged,
County, on behalf of itself, as well as on behalf of its attorneys, agents, representatives,
insurers, heirs, successors and assigns, hereby expressly releases and forever
discharges the Defendant, 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 it has
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 tD or made in the Statement of Claim in the Lawsuit.
2
Agenda Item No. 16K3
December 2. 2008
Page 5 of 7
4. Notwithstanding anything that may be to the contrary in Paragraph 3 of
this Agreement and Release, County and the Defendant 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,
5. County and the Defendant acknowledge and agree that this Agreement
and Release is intended tD and shall be binding upon their respective owners,
principals. officials, officers, employees, ex-employees, agents, attomeys,
representatives, insurers, successors, assigns, spouses, heirs and affiliates.
6. County and the Defendant 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 Df any
kind, whether of fault, liability, or of a particular policy or procedure, on the part of either
County or the Defendant.
7, County and the Defendant 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,
8. 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.
3
Agenda Item No. 16K3
December 2, 2008
Page 6 of 7
9. In the event of an alleged breach of this Agreement and Release, County
and the Defendant agree that all underlying causes of action or claims of County have
been extinguished by this Agreement and Release and that the sole remedy for breach
of this Agreement and Release shall be for specific performance of its terms and
conditions or any damages arising from the breach, In this regard, County and the
Defendant further agree that the sole venue for any such action shall be in the
Twentieth Judicial County Court in and for Collier County, Florida in Naples, Florida,
10, This Agreement and Release shall be governed by the laws of the State of
Florida,
IN WITNESS WHEREOF, County and the County have signed and sealed
this Agreement and Release as set forth below,
Date:
Date:
ATTEST:
DWIGHT E. BROCK, Clerk
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
Deputy Clerk
By:
Tom Henning, Chairman
Date:
NAPLES SUNRISE, INC.
Signature
Print Name
4
Agenda Item No. 16K3
December 2, 2008
Page? of?
STATE OF
COUNTY OF
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN NAPLES SUNRISE,
INC. AND COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by
representative of Defendant, Naples Sunrise,
Inc., before me on this day of ,2008,
Personally Known
or
Produced Identification
Signature of Notary Public
Commissioned Name of Notary Public
(Please print, type or stamp)
My Commission expires:
Type of Identification Produced
Approved as to form and
legal sufficiency:
tWE-1J1
William E. Mountford
Assistant County Attorney
08-2803-5=
5