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BCC Minutes 06/24/2008 Closed Session (#12A-Lucky, M.K., Inc.) MINUTES Lucky, M . K. Inc . June 24 , 2008 tee.-1%44140.e..ft. ireloy IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY.FLORIDA CIVIL ACTION, LUCKY M.K.,INC.,a Florida Corporation, Petitioner, vs. Case No.07-0958CA COLLIER COUNTY,a Political Subdivision of `"m� II the State of Florida,and JIM COLETTA,in His ti, Capacity of Chairman of Collier County Board r. Of County Commissioners, s Respondents. / ca r , ORDER GRANTING MOTION TO DISMISS, THIS CAUSE comes before the Court on Petitioner's"Notice of Voluntary Dismissal with Prejudice,"filed August 28,2008. Accordingly,it is hereby, ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is DISMISSED with prejudice. DO AND ORDERED in Chambers at Naples,Collier County,Florida,this /10 day of I. ,2008. • thia A.Ellis ircuit Judge certificate of Service I HEREBY CERTIFY that a true and correct copy of the foregoing order has been furnished to Mark A. Slack,Esquire,Attorney for Petitioner,Paulich,Slack&Wolff,P.A.,5147 Castello Drive,Naples,FL 34103; Jacqueline W.Hubbard,Esquire,Office of the County Attorney,Harmon Turner Building,3301 East Tamiarai Trail,Naples,FL 34112; Court Administration(X),3301 E.Tamiami Trail,Naples,Florida 34112; this day of ,2008, Dwight E.Brock Clerk of Court By; Deputy Clerk June 24, 2008 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, June 24, 2008 CLOSED SESSION Item #12A - Lucky M.K., Inc. LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special district as has been created according to law and having conducted business herein, met on this date at 12:00 p.m., in CLOSED SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Tom Henning Donna Fiala Jim Coletta Fred Coyle Frank Halas ALSO PRESENT: Jim Mudd, County Manager Jeffrey A. Klatzkow, County Attorney Jacqueline Hubbard, Assistant County Attorney Page 1 — Item #12A (Lucky, M.K. Inc.) June 24, 2008 CHAIRMAN HENNING: We're going to go to item 12A and 12B, and I think Jacqueline is going to lead us off. Item #12A THE BOARD IN EXECUTIVE SESSION WILL DISCUSS: SETTLEMENT NEGOTIATIONS AND STRATEGY RELATED TO LITIGATION EXPENDITURES IN THE PENDING LITIGATION CASES OF LUCKY, M.K., INC. V. COLLIER COUNTY, ET AL., CASE NO. 07-0958-CA, NOW PENDING IN THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA — CLOSED SESSION MS. HUBBARD: Okay. For the record, Jacqueline Hubbard, Assistant County Attorney, and present is Jeff Klatzkow, County Attorney, and all five commissioners, and County Manager Jim Mudd. We're here to talk about a settlement offer that has been made in the Green Heron lawsuit of$150,000 in cash. In exchange their lawsuit would be dismissed. And, essentially, that will be the end of this matter. We have a lawsuit in which a developer came to the board -- came to the county to receive a Certificate of Occupancy on what turned out to be about the last 18 units of a fairly substantial development. Someone on county staff was quick enough to notice that the development had not complied with all of the development order. The development order, however, was quite old, and quite a few CO's have been issued through the years. This was a subsequent developer, so there was some equities in his favor. Nonetheless, he filed a motion -- he filed a complaint asking for damages, asking that the Court issue a Writ of Mandamus to compel the county to turn over those CO's because the county Page 2 — Item #12A (Lucky, M.K. Inc.) June 24, 2008 refused to do so when it discovered that these developer commitments had not been completed. I filed a motion to dismiss the writ mainly because it's not the kind of case where a writ should issue. And after that was filed with the Memorandum of Law, the developer contacted us, and we sat down to try to settle the matter. We were unable really to reach a settlement; however, we reached what I would call a tentative settlement in which the clock was running. And so we agreed that if they posted a letter of credit, we would continue to engage in settlement discussions for a period of 24 months, which we've done, and we haven't really been able to reach anything until very recently, which prompted the closed session here today. And essentially we have alleged that through the years our -- the developer owes us about $695,000 in improvements that we feel the developer was committed to make. I'd like to bear in mind that at the time these commitments were made, the cost of these improvements has increased substantially. We relied upon the methodology that was used by the developer's engineer, and we haven't really proved up these issues to my satisfaction. MR. KLATZKOW: Yeah, but there's another issue that they've been paying us impact fees over the years. MS. HUBBARD: Yes. They've paid over a million. MR. KLATZKOW: This developer's pre-impact fee fee era. We got into an agreement way back when to -- they would do improvements to Santa Barbara and Davis Boulevard, but over the years, they've been paying impact fees, you know, some of which money's been going to these roads anyway. So the development does have some equities involved here. MS. HUBBARD: Right. On the second page you see where the calculations regarding the impact fees are located. Page 3 — Item #12A (Lucky, M.K. Inc.) June 24, 2008 In any event -- in any event, the developer has made an argument basically that, you know, we should have caught this sooner. You let all these other units close. We gave COs to over 500 units prior to these remaining ones. And now he's the last developer in the chain of developers and you want to hold him responsible for everything that wasn't done in the prior years. We thought that the developer does have some equities there. We did not hold the prior developer's feet to the fire, and we are getting to the end of the development. In any event, the settlement is, they will pay to the county $150,000 in cash to terminate the whole dispute. We've discussed this at length with the transportation staff. They believe that that's a reasonable settlement. I think they were of the opinion that they were not expecting really to recover -- MR. KLATZKOW: Anything. MS. HUBBARD: -- any cash at all. So this was a found money for them. So if you approve the settlement, what you are doing is accepting the $150,000 which would go into the transportation division, and we will not have to litigate a case that, although ultimately I think tilts in the county's favor in terms of prevailing, I think it would be an extremely complex matter to litigate and would probably take up a lot of our time and take a lot of time to complete. MR. KLATZKOW: Well, you've got a collection issue, too. Even if we prevailed in this case, two, three years from now, I don't know that we can collect on the money since the development's all closed out and gone. This is cash in hand. MS. HUBBARD: So that's why our recommendation is to accept the settlement. MR. MUDD: And I can confirm Jackie's statement that transportation staff says $150,000 is probably better than we'll ever do in a court of law. Well, I can't say about the court of law. But it's -- Page 4 — Item #12A (Lucky, M.K. Inc.) June 24, 2008 because it's so old and had multiple owners, that the $150,000 offer seems to be reasonable. CHAIRMAN HENNING: Is there any questions? Commissioner Coyle? COMMISSIONER COYLE: Did we fail in any way to collect things, to hold people accountable? MR. KLATZKOW: No. The problem was, we weren't really doing the road widenings all those years. So you've got a development that committed to help us with the road widening projects. The road widenings never happened, so I don't think this was a failure of our staff. The problem was a timing problem. COMMISSIONER COYLE: So had we insisted that it be been done back then, it would have been done at a lot cheaper cost and the developer wouldn't have had to pay? MR. KLATZKOW: But it was a proportional share cost though. We would have had to -- we didn't need the road then, so there was no point to widen the road and spend the monies then. MR. MUDD: I will tell you, Commissioner, that there's an ongoing staff effort -- and I mean, our PUD system that we have -- and we've also got Nick involved with Lauren Beir (phonetic), and we're basically in the process of automating all the commitments on every PUD so that we don't lose any visual on any commitment that we have, because there are 300-plus PUDs, all have commitments. Some of them are multiples. So not only are we putting it so that we've got it in a spreadsheet, but we also have the background. So it's GIS map and it's -- and we've got the intersection -- plus you have DCAs that have nothing to do with the PUD that all have -- we've integrated all that stuff so we don't lose sight of it. MR. KLATZKOW: You're got DRIs up there. MR. MUDD: Absolutely. CHAIRMAN HENNING: Okay. Well, this is a -- this is a DRI. Page 5 — Item #12A (Lucky, M.K. Inc.) June 24, 2008 There was multiple developers who developed it out, and this is the last parcel that's going to be developed, which is developed. Okay. MS. HUBBARD: Yes. COMMISSIONER FIALA: What's the name of the development? MS. HUBBARD: Green Heron. COMMISSIONER HALAS: Green Heron. Remember we had many times in the PUD monitoring, this particular development was always coming before us because they didn't meet their commitments with the residents; remember that? COMMISSIONER FIALA: Yeah. COMMISSIONER HALAS: And that's when we really got after setting up some kind of a monitoring system for all the PUDs and DRIs in the county. COMMISSIONER FIALA: Oh, yeah. COMMISSIONER HALAS: Okay. COMMISSIONER FIALA: I remember that, yes. CHAIRMAN HENNING: Okay. Well, if there's no further questions, we're going to close the shade session and then we're going to be out at one o'clock and continue this item in the public's -- public eye. MS. HUBBARD: Thank you very much. MR. KLATZKOW: So it's the will of the board to take the settlement? MS. HUBBARD: No, no. We do that in open court. CHAIRMAN HENNING: We're going to do that in the open. MS. HUBBARD: We're going to do that in open court. Can't vote in here. (The closed session concluded at 12:18 p.m.) ***** TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICES, INC., BY TERRI LEWIS. Page 6 — Item #12A (Lucky, M.K. Inc.)