Agenda 05/24/2016 Item #16K 4 5/24/2016 16.K.4.
EXECUTIVE SUMMARY
Recommendation to approve a settlement with Pinegate 135, LLC in the amount of
$35,000.00 for all attorney's fees and experts' fees for the taking of Parcels 150FEE, 150SE
and 150TCE in the case styled Collier County v. LDJ Associates, LLC, et al., Case No. 13-
CA-1238 required as part of the widening of Collier Boulevard from Green Boulevard to
Golden Gate Boulevard, Project No. 68056. (Fiscal Impact: $35,000.00).
OBJECTIVE: To settle all attorney's fees and experts' fees due Pinegate 135, LLC for the
taking of Parcel 150FEE, 150SE and 150TCE required as part of the widening of Collier
Boulevard from Green Boulevard to Golden Gate Boulevard, Project No. 68056, herein after
referred to as the"Project."
CONSIDERATIONS: On September 9, 2013, Collier County condemned Parcels 150FEE,
150SE and 150TCE as part of the Project and specifically to complete a"jug-handle" access road
for safer ingress and egress to and from Collier Boulevard for those properties located at the
northwest corner of Pine Ridge Road and Collier Boulevard. Please refer to the attached aerial
of the subject area. Pinegate Shopping Plaza, owned by Pinegate 135, LLC at the time of the
taking, enjoys access to and from Collier Boulevard over the gas station property on the corner
of Pine Ridge and Collier by virtue of an Amendment to Declaration of Easements and
Restrictions filed in the public records at OR Book 2801, Page 1601.
Because the holder of an easement is the owner of a real property interest, if a condemning
authority takes real property encumbered by the easement, the holder of the easement has a
constitutional right to be compensated for the taking of that real property. On October 28, 2014,
the Board approved an offer of judgment in the amount of $40,001.00, as well as statutory
attorney's fees, to compensate Pinegate for their interest in the easement taken for the jug handle
access road and Pinegate accepted the County's offer. On September 28, 2015, the parties filed
an final judgment paying over the $40,001.00 and $13,201.33 in statutory attorney's fees for the
benefit provided to their client (33% of the benefit). However, Pinegate also claimed
approximately$23,000.00 in experts' fees, as well as a claim for attorney's fees in the amount of
$90,000.00 for a non-monetary benefit to its client which is authorized by Section 73.092(1)(b),
Florida Statutes. A "non-monetary benefit" is awarded where the attorney for the property
owner can prove that they were successful in achieving some benefit for the client, such as a
change in construction plans or a variance, which simultaneously achieves a reduction in
damages to the property to be paid over by the condemning authority.
In the present case,the attorney for Pinegate claimed that he was successful in restoring access to
the jug handle access road by getting the gas station property to record a Supplemental
Declaration of Easements to clarify the rights to the new access point. They claimed that this
cured a large severance damage claim since this access point would have been severed without
the clarification of rights. While County staff did not agree that the access to the jug handle
access road was ever impaired, the interpretation of the Easement rights would require a lengthy
evidentiary hearing risking additional experts' costs and potentially supplemental attorney's fees,
if Pinegate was successful in its claim. Through negotiations, the parties agreed to a settlement
figure of$35,000.00 for all attorney's fees for non-monetary benefits earned and experts' fees.
[13-1238-CA/1257739/1]
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5/24/2016 16.K.4.
The County Attorney's Office and staff recommend this settlement since a better result is not
guaranteed at a hearing and would potentially accrue additional expert costs and attorney's fees
in the process. If this settlement is approved by the Board today, the attached Joint Motion for
Agreed Order will be filed with the Circuit Court.
GROWTH MANAGEMENT IMPACT: None.
FISCAL IMPACT: Funds in the amount of$35,000.00 are available from Impact Fees.
LEGAL CONSIDERATIONS: This item has been prepared by the County Attorney's office,
is approved as to form and legality, and requires a majority vote for Board approval.—ERP
RECOMMENDATION: To approve a settlement with Pinegate 135, LLC in the amount of
$35,000.00 for all attorney's fees and experts' fees for the taking of Parcels 150FEE, 150SE and
150TCE in the case styled Collier County v. LDJ Associates, LLC, et al., Case No. 13-CA-1238
required as part of the widening of Collier Boulevard from Green Boulevard to Golden Gate
Boulevard, Project No. 68056.
PREPARED BY: Emily Pepin
ATTACHMENTS: Proposed Settlement(by an Agreed Order); Aerial Overview of the Parcel
[13-1238-CA/1257739/1]
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5/24/2016 16.K.4.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.4.
Item Summary: Recommendation to approve a settlement with Pinegate 135, LLC in the
amount of$35,000 for all attorney's fees and experts'fees for the taking of Parcels 150FEE,
150SE and 150TCE in the case styled Collier County v. LDJ Associates, LLC, et al., Case No. 13-CA-
1238 required as part of the widening of Collier Boulevard from Green Boulevard to Golden
Gate Boulevard, Project No. 68056. (Fiscal Impact: $35,000).
Meeting Date: 5/24/2016
Prepared By
Name: BrockMaryJo
Title: Executive Secretary to County Manager, County Managers Office
5/18/2016 4:40:16 PM
Submitted by
Title: Executive Secretary to County Manager, County Managers Office
Name: BrockMaryJo
5/18/2016 4:40:17 PM
Approved By
Name: KlatzkowJeff
Title: County Attorney,
Date: 5/18/2016 5:03:24 PM
Name: CasalanguidaNick
Title:Deputy County Manager, County Managers Office
Date: 5/18/2016 5:14:41 PM
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY,FLORIDA
CIVIL ACTION
COLLIER COUNTY, a political subdivision
of the State of Florida,
Petitioner, Case No.: 13-CA-1238
vs. Parcel Nos.: 150FEE, 150SE,.
150TCE
LDJ ASSOCIATES, LTD., ET AL.,
Respondents.
JOINT MOTION FOR AGREED ORDER ON ATTORNEY'S FEES AND EXPERT
FEES
Petitioner, COLLIER COUNTY, FLORIDA, together with Respondent, PINEGATE
135, LLC, by and through their undersigned counsel, hereby respectfully move for entry of the
attached Order for Attorney's Fees and Expert Fees attached hereto as Exhibit"1".
Dated: L ,r 6 Dated:
MARK A. T*BIN,ESQ IRE EMILY R. PENN, ESQUIRE
Florida Bar 1 o. 777498 Florida Bar No. 92956
Akerman LLP ASSISTANT COUNTY ATTORNEY
1 SE 3rd Avenue, Floor 25 Harmon Turner Building
Miami, Florida 33131-1700 3299 East Tamiami Trail-Ste. 800
(305) 982-5588 -Telephone Naples,Florida 34112
(305) 374-5095 - Facsimile (239) 252-8400 -Telephone
ATTORNEY FOR RESPONDENT (239)252-6300 - Facsimile
ATTORNEY FOR PETITIONER
COLLIER COUNTY
[13-1238-CA/1257616/1]
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Joint Motion for
Agreed Order for Attorney's Fees and Expert Fees was filed with the Clerk of Court, using the
Florida Courts E-Filing Portal, and that a true and correct copy was furnished via electronic mail
to all parties listed on the attached Service List as indicated on this day of
, 2015.
BY:
EMILY R. PEPIN, ESQUIRE
SERVICE LIST
Case No.: 13-CA-1238
Parcels 150FEE/150SE/150TCE
Pinegate 135, LLC Craig B. Willis, Esquire
do Mark A. Tobin, Esquire Fixel&Willis
Andrew M. Shapiro,Esquire 211 South Gadsden Street
Akerman LLP Tallahassee,Florida 32301
One Southeast Third Avenue,25th Fl. (850) 681-1800
Miami, FL 33131 cwillis@fixelwillis.com
(via electronic mail) ccrossley@fixelwillis.com
mark.tobin@akerman.com
andrew.shapiro@akennan.com
kate.quelch@akerman.com
dorothy.matheis@akerman.com
[13-1238-CA/1257616/1]
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IN THE CIRCUIT COURT OF THE TWENTIETH
JUDICIAL CIRCUITIN AND FOR
COLLIER COUNTY,FLORIDA
CIVIL ACTION
COLLIER COUNTY, a political subdivision
of the State of Florida,
Petitioner, Case No.: 13-CA-1238
vs. Parcel Nos.: 150FEE, 150SE,
150TCE
LDJ ASSOCIATES, LTD.,ET AL.,
Respondents.
AGREED ORDER ON ATTORNEY'S FEES AND EXPERT FEES
THIS CAUSE having come before the Court upon Joint Motion made by Petitioner,
COLLIER COUNTY, FLORIDA, by and through its undersigned counsel, and Respondent,
PINEGATE 135, LLC, by and through their undersigned counsel, for entry of an Agreed Order
as to attorney's fees and expert fees due Respondent and it appearing to the Court that the parties
are authorized to make such Motion, and the Court being otherwise fully advised in the premises
thereof,it is thereupon ORDERED AND ADJUDGED that:
1. Respondent, PINEGATE 135, LLC, have and recover from Petitioner, COLLIER
COUNTY, FLORIDA, the total sum of Thirty-Five Thousand and No/100 Dollars
($35,000.00), as full and final payment of all attorney's fees, including all fees for
nonmonetary benefits achieved for Respondent, all supplemental attorney's fees and
any and all other attorney's fees that have or could have been claimed in this case, as
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[13-1238-CA/1257616/1]
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well as all expert fees and costs in connection with the taking of Parcels 150FEE,
150SE, and 150TCE.
2. Within twenty (20) days hereof, Petitioner shall pay the total sum of Thirty-Five
Thousand and No/100 Dollars ($35,000.00) to Akerman, LLP Trust Account do
Mark A. Tobin, Esq. Akerman LLP, 1 SE 3rd Avenue, Floor 25 Miami, Florida
33131-1700, in additional funds over the amount previously deposited into the Court
Registry.
3. This Order disposes of all claims arising out of the taking of Parcels 150FEE, 150SE
and 150TCE that have or could have been asserted in this cause.
4. The Court reserves jurisdiction to enforce the terms of this Agreed Order.
DONE AND ORDERED in Chambers at Naples, Collier County, Florida,this
day of , 20 .
HONORABLE JUDGE SHENKO
CIRCUIT COURT JUDGE
conformed copies to:
Craig B. Willis,Esquire
Mark A. Tobin Esquire
Emily R. Pepin,Esquire
Kevin Hendricks,Transportation ROW Acquisition Manager
Clerk's Office,Accounting
13-1238-CA/1557
[13-1238-CA/1257616/1] ' f (el
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