Agenda 07/22/2008 Item #16K13Agenda Item No. 16K13
July 22; 2008
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EXECUTIVE SUMMARY
For the Board of County Commissioners to Consider Approving a Settlement Agreement
in Lucky, M.K., Inc. v. Collier County and Jim Coletta, Case No. 07- 0958 -CA, now pending
in the Twentieth Judicial Circuit in and for Collier County, Florida, authorize the
Chairman to execute the Agreement, and approve the necessary budget amendment.
OBJECTIVE: For the Board of County Commissioners to Consider Approving a
Settlement Agreement in Lucky, M.K., Inc. v. Collier County and Jim Coletta Case No. 07-
0958-CA, now pending in the Twentieth Judicial Circuit in and for Collier County, Florida,
authorize the Chairman to execute the Agreement and approve the necessary budget amendment.
CONSIDERATIONS: The Developer of Green Heron filed a lawsuit on March 29, 2007,
for inverse condemnation; damages; and for a writ of mandamus. The developer tried to compel
the issuance of Certificate of Occupancy for several remaining condominiums, that the County
was holding due to unmet requirements in the DRI. The Court ruled the Plaintiff had no "clear
legal right' to have Certificates of Occupancy issued. A dispute regarding the requirements of
the Developer to pay monies over and above initial impact fees and permitting fees in order to
obtain its Certificates of Occupancy and alleged damages remained. In June 18, 2007, the
Developer posted a $434,659.79 Letter of Credit while the parties attempted settlement and
mediation was held in May 7, 2008.
An Agreement has been reached by the Plaintiff and the County (attached hereto as Exhibit "A ").
Under the terms of this Agreement, the Plaintiff will make a cash payment to the County of
$150,000.00. Upon receipt of the payment and execution of the Agreement, the Letter of Credit
will be withdrawn, and the Plaintiff will file a Notice of Voluntary Dismissal With Prejudice,
dismissing the referenced lawsuit.
FISCAL IMPACT: The settlement offer amounts to $150,000.00, which will be revenue
deposited into the Transportation Division. A budget amendment is needed to recognize funds in
the amount of $150,000.00 being received from Developer for their fair share of improvements
associated with the PUD for Green Heron and appropriated within the PUD Monitoring Project
(69124) with in the Transportation Supported Gas Tax Fund.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated
with this Executive Summary.
LEGAL CONSIDERATIONS: Due to the late discovery, the relative equities involved, and
the complexity of the case, the County Attorney Office is recommending approval of this
Settlement Agreement. Both the Office of the County Attorney and Transportation
Administrator opine that settlement in the sum of $150,000.00 is reasonable and cost effective
under all the circumstances.
RECOMMENDATION: That the Board of County Commissioners approve the attached
Settlement Agreement in Lucky, M.K.. Inc. v. Collier County and Jim Coletta Case No, 07-
-- 0958 -CA, now pending in the Twentieth Judicial Circuit in and for Collier County, Florida,
authorize the Chairman to execute the Agreement and approve the necessary budget amendment.
PREPARED BY: Jacqueline Williams Hubbard, Litigation Section Chief
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Agenda Item No. 16K13
July 22, 2008
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COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number: 16K13
Item Summary: For the Board of County Commissioners to Consider Approving a Settlement Agreement in
Lucky, M.K., Inc. v. Collier County and Jim Coletta, Case No 07- 0958 -CA, now pending in
the Twentieth Judicial Circuit in and for Collier County, Florida, and authorize the Chairman
to execute the Agreement.
Meeting Date: 7/22/2008 9:00.00 AM
Prepared By
Jacqueline W. Hubbard
Assistant County Attorney
Date
County Attorney
County Attorney Office
7/9/2008 1:38:59 PM
Approved By
Scott R. Teach
Assistant County Attorney
Date
County Attorney
County Attorney Office
7/9/2008 4:44 PM
Approved By
Community Development &
Joseph K. Schmitt
Environmental Services Administrator
Date
Community Development &
Community Development &
Environmental Services
Environmental Services Admin.
71912006 6:15 PM
Approved By
Norm E. Feder, AICP
Transportation Division Administrator
Date
Transportation Services
Transportation Services Admin.
7/1012008 7 :26 AM
Approved By
Nick Casalanguida
MPO Director
Date
Transportation Services
Transportation Planning
7110/2008 8:55 AM
Approved By
Sharon Newman
Accounting Supervisor
Date
Transportation Services
Transportation Services Admin
7/10/2008 9:39 AM
Approved By
OMB Coordinator
OMB Coordinator
Date
County Manager's Office
Office of Management & Budget
7110,2008 10:22 AM
Approved By
John A. Yonkosky
Director of the Office of Management
Date
County Manager's Office
Office of Management & Budget
7110/2008 11:10 AM
Approved By
James V. Mudd
County Manager
Date
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Agenda Item No. 16K13
July 22. 2008
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Board of County
Commissioners County Manager's Office 711012008 11:36 AM
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Agenda Item No. 16K13
July 22, 2008
Page 4 of 8
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 Plaintiff, Lucky M.K., Inc. a Florida corporation, (hereinafter referred to as
"M.K. ") and Collier County, a political subdivision of the State of Florida, and JIM COLETTA, in
his capacity of Chairman of Collier County Board of County Commissioners (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 Lucky M.K., Inc. a Florida
corporation, v. Collier County, a political subdivision of the State of Florida, and JIM COLETTA,
in his capacity of Chairman of Collier County Board of County Commissioners, Case No. 07-0958 -
CA (hereinafter referred to as the "Lawsuit")-, and,
WHEREAS, Plaintiff and the County, 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 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.
Agenda Ilem No. 16K13
July 22, 2008
Page 5 of 8
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:
1. Plaintiff and the County 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 - Hundred Fifty Thousand Dollars ($150,000.00) payable to the Board of County
Commissioners, within thirty (30) days from the date of this agreement.
3. The Board of County Commissioners' agree to release the "Irrevocable Standby
Letter of Credit No. 07 -10" in the sum of $434,659.79. Upon submitting the Release of Letter of
Credit to Orion Bank, Orion Bank will, as a condition of the Release, issue a draft payable to The
Board of County Commissioners in the amount of One - Hundred and Fifty Thousand Dollars
($150,000.00).
4. The Plaintiff agrees to dismiss the Lawsuit with prejudice upon the issuance of the
Release of Letter of Credit by the County and the payment of One - Hundred and Fifty Thousand
Dollars ($150,000.00) to the County.
5. 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
itself, as well as on behalf of 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,
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Agenda Item No. 16K13
July 22, 2008
Page 6 of 8
expenses and obligations of any kind or nature whatsoever that he 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 to or made in the Complaint
in the Lawsuit.
6. Notwithstanding anything that may be to the contrary in Paragraph 5 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.
7. 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.
8. 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.
9. 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.
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Agenda Item No. 16K13
July 22. 2008
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10. 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.
11. In the event of an alleged breach of this Agreement and Release, Plaintiff and the
County agree that all underlying causes of action or claims of Plaintiff 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, 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.
12. 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: Date:
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, Clerk OF COLLIER COUNTY, FLORIDA
By: By:
Deputy Clerk TOM HENNING, Chairman
Date:
LUCKY M.K., INC.:
Witnesses:
(Signature)
(Print)
4
C
(Signature)
(Print)
Date:
Approved as to form and legal sufficiency:
Mark Slack, Esquire
STATE OF
COUNTY OF
(CORPORATE SEAL)
Agenda Item No. 16K13
July 22, 2008
Page 8 of 8
THIS SETTLEMENT AGREEMENT AND RELEASE BETWEEN PLAINTIFF AND
COLLIER COUNTY, FLORIDA WAS SWORN TO and subscribed by
representative of LUCKY M.K., INC., before me on
this day of 2008.
Signature of Notary Public
Commissioned Name of Notary Public
(Please print, type or stamp)
My Commission expires:
Approved as to form and
legal sufficiency:
Jacqueline Williams Hubbard
Litigation Section Chief
07/0959- CA/1724
5
Personally Known
or
Produced Identification
Type of Identification Produced