Agenda 05/10/2016 Item #16K 15/10/2016 16.K.1.
/� EXECUTIVE SUMMARY
Recommendation to approve a Joint Motion and Final Judgment in the amount of
$455,000.00 for total compensation owed for the taking of Parcels 119FEE and 119TCE in
the case styled Collier County v RTG, LLC, et al., Case No. 13 -CA -259 required for the
construction of improvements to the intersection of US41 and Collier Boulevard, Project
No. 60116. (Fiscal Impact: $ 339,800.00)
OBJECTIVE: To settle full compensation owed for the taking of Parcels I I9FEE and 119TCE,
which was required for the construction of at -grade improvements to the intersection of US -41
and Collier Boulevard, Project No. 60116 (hereinafter referred to as the "Project").
CONSIDERATIONS: Parcel 119FEE is a taking of right -of way in fee simple, containing
4,241 square feet, more or less, from a 1.74 acre parent tract owned by ABC Liquors, Inc
("ABC"). Parcel 119TCE is a 1,911 square foot temporary construction easement taken from the
same parent tract. See the attached location map for reference.
On March 26, 2013, an Order of Taking was entered with the Circuit Court in favor of Collier
County; and shortly thereafter a good faith estimate of value in the amount of $115,200 was
deposited into the Court Registry, securing title and possession of the right-of-way for the
County.
ABC countered with a claim for full compensation in the amount of $1,550,900, including
$1,395,000 in severance damages. Its severance damage claim was based in large part on its
contention that the County had taken enough property at the intersection to someday build a
grade -separated overpass which they contended would diminish their access and exposure to
motorists.
Then, on September 22, 2014, in an effort to settle the case, the County extended to ABC an
Offer of Judgment in the amount of $250,001. ABC rejected the Offer of Judgment and again
pressed for additional compensation stemming from the construction of an overpass at the
intersection. Thereafter, on August 10, 2015, a hearing was held on a Motion in Limine filed by
the County to exclude as "speculative" any testimony by ABC's experts at any jury trial related
to "overpass damages." Collier County received a favorable ruling from the judge at that
hearing. As a compromise, ABC dropped this claim as part of the settlement, preserving the
right to bring a future claim with respect to an overpass, if and when built.
Later, through continued negotiations by the representatives of the parties, a settlement proposal
was agreed to by ABC which would compensate them in the amount of $455,000 including all
expert costs and attorney fees. If this settlement is approved by the Board, the County will be
required to pay an additional $339,800.00 to ABC in this case.
The County Attorney's Office and staff recommend approval of this item since a better result is
not expected from a jury trial which could easily result in a burden of several hundred thousand
dollars in costs for which the County would be statutorily responsible. Upon approval, the
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County Attorney's Office will file the attached Joint Motion for Final Judgment with the Circuit
Court.
GROWTH MANAGEMENT IMPACT: None.
FISCAL IMPACT: Funds in the amount of $339,800.00 will be paid from gas taxes and/or
impact fees from the US -41 / Collier Boulevard Intersection Improvement Project #60116. The
primary funding source for the acquisition of right-of-way is impact fees. Should impact fees not
be sufficient within a particular project, the secondary funding source will be gas taxes.
LEGAL CONSIDERATIONS: This item has been approved as to form and legality and
requires a majority vote for Board approval. — ERP
RECOMMENDATION: To approve the attached Joint Motion for Final Judgment and
authorize the payment of funds as stated herein.
Prepared By: Emily R. Pepin, Assistant County Attorney and Kevin Hendricks, Right -of -Way
Acquisition Manager
Attachments: (1) Proposed Joint Motion for Final Judgment
(2) Aerial of Parcels 119FEE and 119TCE
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16. K. 16. K. 1.
Item Summary: Recommendation to approve a Joint Motion and Final Judgment in the
amount of $455,000 for total compensation owed for the taking of Parcels 119FEE and 119TCE
in the case styled Collier County v. RTG, LLC, et al., Case No. 13 -CA -259 required for the
construction of improvements to the intersection of US -41 and Collier Boulevard, Project No.
60116. (Fiscal Impact: $ 339,800)
Meeting Date: 5/10/2016
Prepared By
Name: AllenDebbie
Title: Legal Office Administrator, CAO Office Administration
4/28/2016 3:14:11 PM
Submitted by
Title: Assistant County Attorney, CAO Litigation
Name: PepinEmily
4/28/2016 3:14:12 PM
Approved By
Name: AhmadJay
Title: Division Director - Transportation Eng, Transportation Engineering & Construction Management
Date: 4/29/2016 7:14:24 AM
Name: HendricksKevin
Title: Manager - Right of Way, Transportation Engineering & Construction Management
Date: 5/2/2016 9:27:51 AM
Name: MarcellaJeanne
Title: Executive Secretary, Transportation Administration
Date: 5/2/2016 9:31:08 AM
Name: PepinEmily
Title: Assistant County Attorney, CAO Litigation
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Date: 5/2/2016 9:32:08 AM
Name: KlatzkowJeff
Title: County Attorney,
Date: 5/2/2016 9:51:48 AM
Name: UsherSusan
5/10/2016 16.K.1.
Title: Management/Budget Analyst, Senior, Office of Management & Budget
Date: 5/2/2016 1:39:02 PM
Name: CasalanguidaNick
Title: Deputy County Manager, County Managers Office
Date: 5/2/2016 2:57:39 PM
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
COLLIER COUNTY, FLORIDA, a political
subdivision of the state of Florida,
Petitioner,
RTG, LLC, a Nebraska limited liability
company; et al.,
Respondents.
Case No.: 13 -CA -259
PARCELS: - 119FEE and 119TCE
PETITIONER COLLIER COUNTY AND RESPONDENT ABC LIQUOR, INC.'S JOINT
MOTION FOR ENTRY OF STIPULATED FINAL JUDGMENT
COMES NOW, Petitioner, COLLIER COUNTY, FLORIDA, and Respondent, ABC
LIQUORS, INC., by and through their undersigned counsel, and hereby respectfully move for
entry of the Stipulated Final Judgment as to Parcels 119FEE and' 19 E, attached hereto as
Exhibit "I'>
CRAIG B. WILLIS, ESQUIRE A. Tl RT .RD AN, ESQUIFE
Florida Bar No. 257656 tt Iorida No. 434 0 94
Fixel & Willis Fishback, omim nett, Ardaman,
211 S. Gadsden Street Ahlers, Langley & Gellert' LLP
Tallahassee, FL 32301 1947 Lee Road
Telephone: (850) 681-1800 Winter Park, FL 32789-1834
ewillis@fixelwillis.eom Telephone: (407) 425-2786
ecrossley@fixelwillis.com ardaman@fishbacklaw.com
CO -COUNSEL FOR PETITIONER erconley@fishbacklaw.com
michellel@fishbacklaw.com
COUNSEL FOR RESPONDENT
ABC LIQUORS, INC.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the Joint Motion for Stipulated
Final Judgment was electronically filed with the Florida Courts E -Filing Portal which will send a
notice of electronic filing to the following: Counsel for Respondent ABC LIQUORS, A. Kurt
Ardaman, Esq., Fishback, Dominick, Bennett, Ardaman, Ahlers, Langley & Geller, LLP,
ardaman@fishbacklaw.com; crconley@fishbacklaw.com; michellel@fishbacklaw.com; Counsel
for Respondent RTG, LLC, D. Tobyn DeYoung, Esq., tobyn@deyoungfirm.com;
grace@deyoungfmn.com and service@deyoungfirm.com; Counsel for Respondent HOLIDAY
CVS, LLC, Mark Buell, Esq., buell@belawtampa.com; mallory@belawtampa.com and
faircloth@belawtampa.com; Counsel for COLLIER COUNTY TAX COLLECTOR, Charles PT
Phoenix, Esq., cptp@rhodestucker.com and kv@rhodestucker.com; and Co -Counsel for
Petitioner COLLIER COUNTY, Emily R. Pepin, Esq., County Attorney's Office,
emilypepin@colliergov.net; jenniferbelpedio@colliergov.net; nancybradley@colliergov.net; on
this day of , 2016.
CRAIG B. WILLIS
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Exhibit "1" to Joint Motion for Stipulated Final Judgment
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
COLLIER COUNTY, FLORIDA, a
political subdivision of the State of Florida,
Petitioner,
V.
RTG, LLC, a Nebraska limited liability
company; et al.,
Respondents.
Case No.: 13 -CA -259
PARCELS: 119FEE and 119TCE
STIPULATED FINAL JUDGMENT
THIS CAUSE having come before the Court upon the Joint Motion made by Petitioner,
COLLIER COUNTY, FLORIDA, and Respondent, ABC LIQUORS, INC., by and through their
undersigned counsel, for entry of a Stipulated Final Judgment as to Parcels 119FEE and
119TCE, for Project No. 60116, and it appearing to the Court that the parties are authorized to
make such Motion, the Court finding that the compensation to be paid by Petitioner is the full
compensation due to Respondent, ABC LIQUORS, INC., and the Court being otherwise fully
advised in the premises thereof, it is thereupon
ORDERED AND ADJUDGED that Respondent, ABC LIQUORS, INC., has and
recovers from Petitioner, COLLIER COUNTY, FLORIDA, the total sum of FOUR HUNDRED
FIFTY-FIVE THOUSAND AND NO1100 DOLLARS ($455,000.00) for Parcels 119FEE and
119TCE, as full payment for the property interest talcen and for damages resulting to the
remainder, and for all other damages,
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statutory interest, attorneys' fees, and expert fees and costs in connection with said parcels; it is
further
ORDERED that Petitioner COLLIER COUNTY, FLORIDA is entitled to a credit of
ONE HUNDRED FIFTEEN THOUSAND TWO HUNDRED AND NO/100 DOLLARS
($115,200.00) previously deposited into the Court Registry; it is further
ORDERED that within thirty (30) days of entry of this Stipulated Final Judgment,
Petitioner shall pay the total sum of THREE HUNDRED THIRTY-NINE THOUSAND
EIGHT HUNDRED AND NO/100 DOLLARS ($339,800.00) to the Fishback, Dominick,
Bennett, Ardaman, Ahlers, Langley & Geller LLP Trust Account, c/o A. Kurt Ardaman, 1947
Lee Road, Winter Park, FL 32789-1834; it is further
ORDERED that this Order disposes of all claims arising out of the taking of Parcels
119FEE and I I9TCE, and that have or could have been asserted in this cause, except as provided
herein; it is further
ORDERED that Respondent, ABC LIQUORS, INC.'s claim for damages resulting from
a grade separated overpass of C.R. 951 over U.S. 41 is preserved until such time as the
Petitioner, COLLIER COUNTY, FLORIDA, its contractors, privies, employees, partners, or
agents commences construction of the overpass, if at all. This Stipulated Final Judgment is
based upon the construction plans for the current construction project and the actual construction
of the intersection at grade completed as of April 2016. Petitioner's right to the foregoing claim
against the Petitioner, COLLIER COUNTY, FLORIDA for a grade separated overpass, shall
only be available to the owner of the remainder of the Parcels 119FEE and 119TCE and its
successors and assigns. Such claim may be retained by Respondent, ABC LIQUORS, INC. in
the event Respondent, ABC LIQUORS, INC. conveys its remainder property to a successor or
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assign and the claim will have ripened if and when construction of an overpass project
commences. Central and Southern Florida Flood Control Dist. v. Wye River Farms, 297 So.2d
323 (Fla. 4th DCA 1974). In accordance herewith, the Parties agree that if the Petitioner, its
contractors, privies, employees, partners, or agents commence construction of a grade separated
overpass of C.R 951 over U.S. 41, the taking of the Parcels 119FEE and 119TCE shall be
considered to be taken contemporaneously on the date of commencement of construction of the
overpass. Notwithstanding any previous evidentiary rulings issued in this proceeding, which
rulings shall have no prejudicial, preclusive or persuasive effect on Respondent's claims
preserved under this paragraph, Respondent has the right to make any and all legal and equitable
arguments relating to any and all claims preserved under this paragraph, including without
limitation, arguments relating to the integral and inseparable rule. Any claims under this
paragraph may be brought upon or after the commencement of construction of a grade separated
overpass; it is finther
ORDERED that the fee simple and temporary construction easement interests to Parcels
119FEE and 119TCE, being fully described in Exhibit "A" attached hereto and incorporated
herein, which vested in Petitioner pursuant to the Order of Taking dated March 26, 2013, and the
b
deposit of money heretofore made, are approved, ratified, and confirmed; it is further
ORDERED that the Notice of Lis Pendens filed in the above -styled cause and recorded in
Official Record Book 4879, Page 3609 of the Public Records of Collier County, Florida be
dismissed as to Parcels 119FEE and 119TCE; it is further
ORDERED that the Court reserves jurisdiction to enforce the terms of this Stipulated
Final Judgment; it is further
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ORDERED that this Stipulated Final Judgment is to be recorded in the Official Records
of Collier County, Florida.
DONE AND ORDERED in Chambers at Naples, Collier County, Florida, this
day of , 2016.
THE HONORABLE JAMES R. SHENKO
CIRCUIT COURT JUDGE
conformed copies to:
Craig Willis, Esq.; Co -Counsel for Petitioner, cwillis@fixelwillis.com
Emily R. Pepin, Esq., Co -Counsel for Petitioner, emilypepin@colliergov.net
A. Kurt Ardaman, Esq., Counsel for Respondent ABC Liquors, Inc., ardaman@fishbacklaw.com
Kevin Hendricks, Transportation ROW Acquisition Manager, kevinhendricks@colliergov.net
Clerk's Office, Accounting
13-4259-CAl1576
U:\IFB\CUENTS\ABCICOLL[LR COUNTY,#158 COLUPR BLVD, ADV. A6-23252\SFTTLEMENTVOINT MOTION AND SFJ RF V CLEAN 4-1-16.D0CX
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