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Agenda 10/14/2008 Item #16K 1A' c �nda Item No. 15K1 October 14, 2008 Page 1 of 11 EXECUTIVE SUMMARY Recommendation to approve a Settlement Agreement and Release in the lawsuit styled Casimir Bator v. Collier Count),, Case No. 07- 0065 -CA. (Fiscal Impact 820,491.00) OBJECTIVE: That the Board of County Commissioners approve the Settlement Agreement and Release for payment of full compensation and settlement for any and all claims, causes of action, property rights, damages and costs or attorney's fees in the lawsuit styled Casimir Bator v. Collier Countv. Case No. 07- 0065 -CA. CONSIDERATIONS: Mr. Bator filed an action against the County in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida, styled Casimir Bator and Deborah Bator v. Collier County Board of County Commissioners, Case No. 07 -0065. Mr. Bator asserted claims for trespass, nuisance and ejectment against the County and alleged various acts and omissions in the Lawsuit. Bator also alleged occasional flooding, creation of an eyesore and inability to fully utilize his proposed guest house due to the wellhead regulations in conjunction with the nearby septic system. Prior to settlement, Bator's attorney was going to seek amendment to plead inverse condemnation. The County has acknowledged that it encroached upon Mr. Bator's land in the construction of a well site located within public right - of -way, which encroachment has been surveyed and confirmed, and that during construction vegetation was damaged by the contractor. Staff has been in negotiations with Mr. Bator since 2003 and settlement has been reached. Both staff and the County Attorney opine that settlement is reasonable under the circumstances, especially in light of increased costs if this matter proceeded to trial. If approved, the County will pay the following costs: • Compensation: $17,491.00 • Legal Fees: 53.000.00 TOTAL S20,491.00 Attached is the Settlement Agreement and Release. FISCAL IMPACT: Funds in the amount of $20,491.00 are available in the FY 2009 adopted budget. Source of funds is Water Administration 408 - 210125. GROWTH MANAGEMENT IMPACT: None. RECOMMENDATION: That the Board of County Commissioners: 1. Approve the Settlement Agreement and Release; and 2. Approve the expenditure of funds as stated. PREPARED BY: William E. Mountford, Assistant County Attorney 07-0065-CA !34 —vida `��m Plo. 16�—1 Ilc,,,:)ber 14, ?n ..3 P & 2 D f " 1 lla-ye I of I A, 7,enda Item No. 16KI 0 c to h -,e, r 14. 20 8 Page 3 of 11 COLLIER COUNTY N 5OARD OF --OUNTY 0010MISSF- E RS Item Number: 16K1 Item Summary: Recommendation to approve a Settlement Agreement and Release in the lawsuit styled Casimir Bator v. Collier County, Case No. 07-0065-CA (F!s-,al Impact $20,491,00) Meeting Date: 10J14!2098 9100.00 AM Prepared By William Mountford Assistant County Attorney Date County Attorney County Attorney Office 9/2612008 11:17:39 AM Approved By William Moun"ford Assistant County Attorney Da-e County Attorney Cou;fty Attorney Office 912612:008 11 :5 6 AM Approved By Pamela Libby Wat: -r Op�,-atitms Manager DFte Public Utilities Water 9!21"2008 2:47 P[V1 Approved By Paul WiattaUSCII D i r o r Public UtiRies "'Vat-r 3 7:-3 kJ 1A Approved By Jeff Ktalzkovv County Attorney Offi7'_ 2. 2 Approved By OV1,13 Coordirici,or County Wmaq:.-r's '-f Approved By John A. Yonkc3ky County Ullar-ac.-i!r's 0"ice Approved By James V. Mudd C 7, % n iy 0-oa M-1 of '-Oury C,' wx L I ri'l V Ml E i-, J- I" S (D Commissioners fi1e://C:\AL,cndaTest\,EXD0rt\ I 14-Oclober'Vo20 I 4.'Yo'-02008\1 6.%2000NSENT(1/020AGEND... 10118/2008 Acenda 4teiri No. i M (Dct::ber 14, 21003 Page 4 of ,1 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release ( "Agreement and Release ") is entered into and made on this day of 2008, by and between Casimir Bator and Deborah Bator (hereinafter "BATOR") and Board of County Commissioners of Collier County, Florida, as Governing Body of Collier County, and ex- Officio Governing Board of the Collier County Water -Sewer District (the "County "). WITNESSETH: WHEREAS, BATOR filed an action against the County in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida, and that action is styled Casimir Bator and Deborah Bator v. Collier County Board of County Commissioners, Case No. 07 -0065 (hereafter referred to as the "Lawsuit "); WHEREAS, BATOR has asserted claims for trespass, nuisance and ejectment against the County and has alleged various acts and omissions in the Lawsuit; WHEREAS, the County has acknowledged that it encroached upon BATOR's land in the construction of a well site located within public right -of -way, which encroachment has been surveyed and confirmed, and that during construction some vegetation was damaged by the contractor; and WHEREAS, the County without admitting any liability or fault as to the other allegations nevertheless recognizes the cost and uncertainties of litigation and now desires to fully and finally resolve any and all claims, known or unknown, asserted or that could have been ua err, J:�, per 14 r3 .0 o. 1 asserted by BATOR in the Lawsuit, including but not limited to all claims for damages, inverse condemnation, equitable relief, attorney's fees, costs, or expenses of any kind whatsoever; and WHEREAS, BATOR and the County desire to reduce their settlement of the Lawsuit and all other claims that could have been asserted in the Lawsuit or that relate in any way to or arise directly or indirectly from the events or conduct referred in the complaint filed in the Lawsuit to a writing so that it may be binding upon both parties. NOW, THEREFORE, in consideration of the mutual covenants, promises and considerations set forth in this Agreement and Release, the sufficiency of which is hereby acknowledged, and with the intent to be legally bound, BATOR and the County mutually agree to the following: BATOR and the County agree to adopt and incorporate the foregoing recitals, sometimes referred to as "Whereas Clauses ", by reference into this Agreement and Release. ?. Within thirty (30) days of the Effective Date of this Agreement and Release, BATOR will convey a perpetual utility, access and maintenance easement under. over, upon and across iiicir property measuring five feet by forty feet and more particularly described in Exhibit "A." attached hereto and incorporated herein (which conveyance and delivery will be called the Closing.) This Easement will be granted in the form attached as Exhibit A, and will provide County with permanent rights to access, operate and maintain the well adjacent to and within the easement area, without interference from BATOR or any subsequent owner. 3. At Closing the County will pay to BATOR, as full and final compensation and settiemeent 151—Ir any and all claims, causes of action, property rights, damages, hosts or attot.mLey's fees the total sum of Twenty Thousand Four Hundred Ninety One and No /100 Dollars ,r �ida heir) No. 15K1 October 14, 2008 Page 6 of 11 ($20,491.00), made payable as follows: Felden and Felden, P.A Trust Account, c/o Christian B. Felden, Esquire, 1100 Fifth Avenue S., Suite 201, Naples, FL 34102. 4. Except for any claim to enforce the terms and conditions of this Agreement and Release, BATOR, on behalf of themselves, their heirs and assigns, shall and hereby does fully, finally and unconditionally release, acquit, remise, satisfy and forever discharge the County, its predecessors, successors, heirs, assigns, employees, former employees, elected officials, officers, directors, owners, agents, representatives, attorneys, insurers, sureties and affiliates from any and all manner of action or actions, cause or causes of action, suits, debts, dues, sums of money, reckonings, accounts, covenants, charges, damages, obligations, liabilities, contracts, promises, judgments, executions, claims, complaints, whether legal or equitable and whether known or unknown which BATOR has or could have asserted in the Lawsuit, or which BATOR now has or may have against the County, whether legal or equitable and whether known or unknown, arising out of or relating in any way to the claims or allegations made in the Lawsuit, or that could have been made in the Lawsuit. 5. BATOR and the County agree that immediately upon execution of this Agreement and Release by the parties, BATOR shall file a Notice of Voluntary Dismissal With Prejudice of the Lawsuit. 6. BATOR and the County agree that this Agreement and Release constitutes the entire agreement between BATOR and the County and that there are no other agreements, oral or written, between them relating in any way to any subject of this Agreement and Release. In this regard, BATOR and the County agree that this Agreement and Release is the product of mutual negotiation and no doubtful or ambiguous term or provision hereof is to be construed more strictly against the party that drafted/physically prepared the Agreement and Release. BATOR EK1 F= 7,�Df11 and the County further agree that this Agreement and Release supersedes and replaces all prior agreements and understandings with respect to the subject matter of this Agreement and Release. 7. In the event of an alleged breach of this Agreement and Release, BATOR and the County hereby agree that the claims asserted or that could have been asserted in the Lawsuit are hereby extinguished and that the sole remedy for breach of this Agreement and Release shall be for specific performance of its terms and conditions. In this regard, BATOR and the County further agree that the sole venue for any such action for specific performance shall be in the Twentieth Judicial Circuit in and for Collier County, Florida in Naples, Florida. 8. BATOR and the County agree that this Agreement and Release shall be governed by the laws of the State of Florida. 9. This Agreement and Release shall be binding upon the predecessors, successors, transferees, affiliates, heirs, and assigns of BATOR and the County. 10. The effective date of this Agreement and Release shall be the date it is executed by the Chainnan of the Board of County Commissioners of Collier County, Florida as appears below. IN WITNESS WHEREOF, CASIMIR BATOR and DEBORAH BATOR and the BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, as Governing Body of Collier County and Ex- Officio Governing Board of the Collier County Water -Sewer District, have entered into this Agreement and Release on the day and year first above written. Item No. 15K1 October 14. 2003 Page 3 of 11 BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, as governing body of Collier County and ex- Officio Governing Board of the COLLIER COUNTY WATER SEWER DISTRICT ATTEST: DWIGHT E. BROCK, Clerk Deputy Clerk Date: DATE: TOM HENNING, Chairman CASIMIR BATOR DATE: DEBORAH BATOR Approved as to form and legal sufficiency: William E. Mountford Assistant County Attorney / vA t 07- 0153 -CAM26 «u :Y Nc. 16K1 PROJECT: GG Wellfield Reliability Improvements Ocich­r 14, Kii08 FOLIO: 37549680006 1' -,wA 0, of 11 UTILITY EASEMENT THIS EASEMENT, made and entered into this day of , 2008, by CASIMIR S. BATOR AND DEBORAH BATOR, HUSBAND AND WIFE, as Grantors, 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, 3301 East Tamiami Trail, Naples, Florida 34112, its successors and assigns, as Grantee. (Wherever used herein the terms "Grantors" and "Grantee" include all the parties to this instrument and their respective heirs, legal representatives, successors or assigns.) WITNESSETH: Grantors, 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 utility, access and maintenance purposes, on 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 HOMESTEAD Property TO HAVE AND TO HOLD the same unto the Grantee together with the right to enter upon said land, for purpose of accessing, operating and maintaining the well site and associated water lines, pipes, telemetry, fencing and other equipment or improvements appurtenant thereto or thereunder. Grantors and Grantee are used for singular or plural, as the context requires. The easement granted herein shall constitute easements running with the land and shall burden the lands described above. IN WITNESS WHEREOF, the Cantors have caused these presents to be executed the date and year first above written. WITNESSES (Signature) (Print Name) (Signature) (Print Name) STATE OF COUNTY OF By Casimir S. Bator By: Deborah Bator 991 Wilson Blvd. North Naples, FL 34120 The foregoing Utility Easement was acknowledged before me this day of 2008 by Casimir Bator and Deborah Bator, who are personally known to me or who have produced as identification. (affix notarial seal) (Signature of Notary Public) (Print Name of Nntary Pi hlic_1 NOTARY PUBLIC Serial /Commission #:(if any) EXHIBIT r wn. Y O �ycz 0� Fu "� V W Z Wo f�^^ W V o W E-'+ O p •-� Cp I I 4 l I I f I I I I I I I I 1 I I I I i I E I I I ! I I I I 1 1 ! 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