Agenda 10/28/2014 Item #16K610/28/2014 16.K.6.
Executive Summary
Recommendation to authorize the County Attorney's Office to make an Offer of Judgment to
Party Defendant, Pinegate 135, LLC, in the amount of $40,001 to settle any and all
apportionment claims related to the taking of Parcels 150FEE, 150SE and 150TCE in the
lawsuit styled Collier County v. LDJ Associates, Ltd., et al., Case No. 13 -CA -1238 (Collier
Boulevard Expansion Project No. 68056 from Green Boulevard to Golden Gate Boulevard).
Fiscal Impact: $40,001.00 plus attorney fees as may be awarded by the court in accordance
with Section 73.092(2).
OBJECTIVE: Approve and authorize the making of an Offer of Judgment pursuant to Section
73.032, Fla. Stat., to party defendant, Pinegate 135, LLC, in the amount of $40,001, as full
compensation, excepting attorney's fees and costs, for the taking of its ownership interest in Parcels
150FEE, 150SE and 150TCE taken by Collier County in the eminent domain lawsuit styled Collier
County v. LDJ Associates, Ltd., et al., Case No. 13 -CA -1238, Collier Boulevard Intersection
Improvement Project No. 68056).
CONSIDERATIONS: At a mediation held September 01, 2014, the parties (Collier County and
Pinegate 135, LLC) were unable to agree on a settlement as to the value of Pinegate's interest in
Parcels 150FEE, 150SE and 150TCE taken by Collier County from the neighboring property owner,
LDJ Associates, Ltd., and across which Pinegate 135, LLC held an access easement by virtue of the
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 interest. This right to
compensation is not necessarily limited to an apportionment of the award of the proceeds awarded
to the owner of the encumbered property for the taking by the condemning authority. The easement
holder has the right to claim even that an apportionment of ALL of the proceeds to the owner of the
encumbered fee taken by the condemning authority, does not fully compensate the easement holder
for the loss occasioned by the taking. The easement holder may petition the court to empanel a jury
to determine the full compensation to which the easement holder is entitled. It is an extremely
unusual circumstance; but such is the case at hand.
The County Attorney, along with staff from the Growth Management Division, is hoping that the
proposed offer of judgment will motivate the easement holder to settle all claims for full
compensation (including all claims of damages of every kind) and to abstain from petitioning the
court to set the issue for a jury trial. As with the matter of full compensation to a property for the
taking of all or a portion of the property, should the issue be set for trial as to the full compensation
for the easement holder, the condemning authority would be responsible for all expert witness costs
and attorney fees incurred by the defendant; and of course, for every expert witness hired by the
property owner or easement holder, the County must retain a rebuttal witness as well. That is one
of the primary reasons that eminent domain jury trials in the State of Florida are so costly for
condemning authorities.
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It is estimated that a jury trial on this issue would cost Collier County no less than $150,000, even if
the easement holder received an award of zero from the jury.
LEGAL CONSIDERATIONS:
The County Attorney's Office has reviewed all considerations in making this Offer of Judgment and
has calculated in good faith this offer of full compensation for the property interests taken. This
Offer of Judgment is reasonable, has been approved as to form and legality and requires a majority
vote for Board approval. - ERP
FISCAL IMPACT: Funds in the total amount of $40,001 will come from Gas Taxes and /or
Impact Fees. The County currently maintains Collier Boulevard, so incremental maintenance costs
ultimately related to the improvements will be minimal compared to the overall benefits of the
project. Additional right -of -way acquisitions are required which will add acreage to the mowing and
garbage removal maintenance at approximately $3,000 per year. Replacement of swales with closed
drainage (piping) has a useful life of approximately fifty years with recurring costs of periodic
inspections and system cleaning on a three to five year basis at an estimated cost of $5,000 per
cycle. New roadway construction has a maintenance curve of approximately 5 to 7 years before any
incremental costs are required for repairs or replacement.
GROWTH MANAGEMENT IMPACT: Consistent with Collier County Growth Management
Plan.
RECOMMENDATION: That the Board of County Commissioners authorize the terms of the
Offer of Judgment and authorize its service on the easement holder and the expenditure of funds as
stated, if accepted.
PREPARED BY: Kevin Hendricks, Right -of -Way Acquisition Manager, TECM, and
Emily R. Pepin, Assistant County Attorney, Office of the County Attorney
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10/28/2014 16.K.6.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.6.
Item Summary: Recommendation to authorize the County Attorney's Office to make an
Offer of Judgment to Party Defendant, Pinegate 135, LLC, in the amount of $40,001 to settle
any and all apportionment claims related to the taking of Parcels 150FEE, 150SE and 150TCE in
the lawsuit styled Collier County v. LDJ Associates, Ltd., et al., Case No. 13 -CA -1238 (Collier
Boulevard Expansion Project No. 68056 from Green Boulevard to Golden Gate Boulevard).
Fiscal Impact: $40,001 plus attorney fees as may be awarded by the court in accordance with
Section 73.092(2).
Meeting Date: 10/28/2014
Prepared By
Approved By
Name: HendricksKevin
Title: Manager - Right of Way, Transportation Engineering & Construction Management
Date: 10/17/2014 10:53:14 AM
Name: AhmadJay
Title: Director - Transportation Engineering, Transportation Engineering & Construction Management
Date: 10/17/2014 2:11:19 PM
Name: ShueGene
Title: Director - Operations Support, Transportation Administration
Date: 10/20/2014 1:48:33 PM
Name: KearnsAllison
Title: Manager Financial & Operational Support, Transportation Administration
Date: 10/20/2014 3:58:00 PM
Name: TaylorLisa
Title: Management/Budget Analyst, Transportation Administration
Date: 10/21/2014 1:16:59 PM
Name: MarcellaJeanne
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10/28/2014 16.K.6.
Title: Executive Secretary, Transportation Planning
Date: 10/21 /2014 1 :22:27 PM
Name: PepinEmily
Title: Assistant County Attorney, CAO Litigation
Date: 10/21/2014 1:25:59 PM
Name: UsherSusan
Title: Management/Budget Analyst, Senior, Office of Management & Budget
Date: 10/21/2014 2:07:19 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 10/21/2014 3:13:44 PM
Name: OchsLeo
Title: County Manager, County Managers Office
Date: 10/21/2014 3:28:53 PM
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