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Agenda 05/13/2013 Item #16A245/14/2013 16.A.24. EXECUTIVE SUMMARY Recommendation to ratify and approve a stipulated Final Judgment as to the interest of Carrabba's Italian Grill, LLC, in Parcel 113FEE and Parcel 113TCE as part of the US -41 / Collier Boulevard Intersection Improvement project (Project No. 60116) Fiscal Impact: $5,214. OBJECTIVE: To settle the lawsuit styled Collier County v. New Plan Florida Holdings, LLC, et al, as to the interest of Carrabba's Italian Grill, LLC, in Parcel 113FEE and 113TCE and eliminate exposure to further costs arising out of extended litigation. CONSIDERATIONS: The above - referenced parcels were taken by Collier County for the purpose of constructing at -grade improvements to the intersection of US -41 and Collier Boulevard. Carrabba's Italian Grill, LLC, is the holder of a reciprocal access easement over the New Plan Florida Holdings, LLC, shopping center property. As such they had to be served as a party defendant in the eminent domain lawsuit styled Collier County v. New Plan Florida Holdings, LLC, and were therefore entitled to hire counsel, and expert witnesses for the purpose of exercising their right to make an apportionment claim on the proceeds from the County's deposit. Carrabba's has agreed to resolve their entitlement to apportionment for the total sum of $5,000 inclusive of all attorney fees and expert witness costs. FISCAL IMPACT: Additional expenditures include $5,000 to defendant's attorney's trust account, $44 in recording fees and $170 Clerk's Service Fee. Funds in the amount of $5,214 are available in the project. Source of funds are impact fees. There are no on -going maintenance or repair costs associated with the acquisition of right -of -way for the project. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with the approval of this agenda item. LEGAL CONSIDERATIONS: This item is legally sufficient for Board action and requires a majority vote for approval. JW RECOMMENDATION: That the Board of County Commissioners of Collier County, Florida, approve entry of the attached Stipulated Final Judgment with the Circuit Court. Prepared by: Kevin Hendricks, Right -of -Way Acquisition Manager Attachments: Stipulated Final Judgment with legal description attached thereto Packet Page -1357- 5/14/2013 16.A.24. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.A.16.A.24. Item Summary: Recommendation to ratify and approve a stipulated Final Judgment as to the interest of Carrabba's Italian Grill, LLC, in Parcel 113FEE and Parcel 113TCE as part of the US -41 / Collier Boulevard Intersection Improvement project (Project No. 60116) Fiscal Impact: $5,214. Meeting Date: 5/14/2013 Prepared By Name: HendricksKevin Title: Manager - Right of Way,Transportation Engineering 4/2/2013 11:41:18 AM Approved By Name: AhmadJay Title: Director - Transportation Engineering,Transportation Engineering & Construction Management Date: 4/17/2013 2:48:34 PM Name: LynchDiane Title: Administrative Assistant Date: 4/18/2013 12:53:18 PM Name: KeamsAllison Date: 4/19/2013 8:11:29 AM Name: KearnsAllison Date: 4/19/2013 8:41:24 AM Name: ShueGene Date: 4/19/2013 2:28:25 PM Name: MarcellaJeanne Title: Executive Secretary,Transportation Planning Date: 4/24/2013 8:14:05 AM Name: WrightJeff Packet Page -1358- Title: Assistant County Attomey,County Attorney Date: 4/24/2013 8:44:19 AM Name: KlatzkowJeff Title: County Attorney Date: 4/24/2013 3:54:19 PM Name: UsherSusan Title: Management/Budget Analyst, Senior,Office of Manage Date: 5/2/2013 12:29:06 PM Name: OchsLeo Title: County Manager Date: 5/2/2013 4:45:11 PM Packet Page -1359- 5/14/2013 16.A.24. 5/14/2013 16.A.24. 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, VS. NEW PLAN FLORIDA HOLDINGS, LLC, a Delaware limited liability company; BANK OF AMERICA, N.A., a national association; FLORIDA POWER AND LIGHT COMPANY; SOUTHERN MANAGEMENT CORPORATION, a Florida corporation, and dba Burger King; SUNTRUST BANK, a Georgia Banking corporation; MAR INVESTMENTS, LLC, a Florida limited liability company; COMMERCIAL PROPERTIES SOUTHWEST, INC., a Florida corporation; ESPROP, LLC, a Florida limited liability company; SHAWN M. SLATTERY, P.A. dba Vision One; BIO- MEDICAL APPLICATIONS OF FLORIDA, INC., a Delaware corporation dba Fresenius Medical Care and BMA South Collier Dialysis; MARILYN A. WARE, M.D., P.A., a Florida professional association; THEYYAR RAJAN DDS, P.A., a Florida professional association dba Cosmetic & General Dentistry; THEYYAR RAJAN DDS, P.A., a Florida professional association dba Apneanix; THEYYAR RAJAN DDS, P.A., a Florida professional association dba Dental Dynamix; FOODPROS INTERNATIONAL INC., a Florida corporation dba Sapphire Dry Cleaners; PATRICIA M. DILLON dba Maneland Barber & Beauty Salon; ISAURA WHITE; UT THI NGUYEN dba Lovely Nails; CELLDISTRIBUTIONS CORP., a Florida corporation; FDG COMMUNICATION AND SERVICES LLC, an inactive Florida limited liability company; DOLLAR TREE STORES, INC., a Virginia corporation; GOODWILL INDUSTRIES OF SOUTHWEST FLORIDA, Inc., a Florida corporation; PUBLIX SUPER MARKETS INC., a Florida corporation; R &J Case No.: 13 -CA -238 Parcels: 113FEE,113TCE STIPULATED FINAL JUDGMENT AS TO THE INTEREST OF CARRABBA'S ITALIAN GRILL, LLC. IN PARCELS 113FEE, 113TCE Page 1 of 5 Packet Page -1360- 5/14/2013 16.A.24. HOLDINGS OF NAPLES, INC., a Florida corporation dba Jack's Golf Shack; YANG'S CHINA BUFFET, INC., a Florida corporation; ADAMS & O'REILLY, INC., a Florida corporation dba McDonalds #13139; REGIONS BANK, an Alabama corporation; CARRABBA'S ITALIAN GRILL, LLC, a Florida limited liability company; EXXONMOBIL OIL CORPORATION, a New York corporation fka Mobil Oil Corporation; 6859 COLLIER BOULEVARD, LLC, a Florida limited liability company, BEAUMARIS, LLC, a Florida limited liability company; ENCORE NATIONAL BANK, a national association; LELY COMMUNITY DEVELOPMENT DISTRICT; BARRON COLLIER RESOURCES, LLLP, a Florida limited liability limited partnership; COLLIER LAND AND CATTLE CORPORATION, a Florida corporation; LARRY H. RAY, as Collier County Tax Collector, and the unknown spouses of the above, if any, and their heirs, devisees, assignees, grantees, creditors, lessees, executors, administrators, mortgagees, judgment creditors, trustees, lienholders, persons in possession, and any and all other persons having or claiming to have any right, title or interest by, through, under or against the above -named defendants, or otherwise claiming any right, title, or interest in the real property described in this action, Respondents. STIPULATED FINAL JUDGMENT AS TO THE INTEREST OF CARRABBA'S ITALIAN GRILL, LLC. IN PARCELS 113FEE 113TCE THIS CAUSE came before the Court upon the Joint Motion for Entry of Final Judgment as to Parcels 113FEE and 113TCE ( "Joint Motion ") filed by Petitioner, COLLIER COUNTY, FLORIDA ( "PETITIONER "), and Defendant, CARRABBA'S ITALIAN GRILL, LLC, a Florida limited liability company, ( "RESPONDENT"). The Court having reviewed the record and it appearing that the parties hereto were authorized to enter into the Joint Motion and that the Page 2 of 5 Packet Page -1361- 5/14/2013 16.A.24. papers filed herein by Petitioner are in proper and sufficient form, and the Court finding that the compensation to be paid by Petitioner is full, just and reasonable for all parties concerned, and being otherwise fully advised in the premises, it is hereby ORDERED and ADJUDGED that: 1. RESPONDENT shall have and recover from Petitioner the sum of Five Thousand and NO /100 Dollars ($5,000.00), in full compensation for the property interests taken, improvements taken, severance damages, cure costs, business damages and all other damages claimed by or through them, their successors and assigns, now and in the future arising from the taking of Parcels 113FEE and 113TCE in this cause, including all experts' fees and costs, appraisal services and costs and attorney's fees. 2. Pursuant to the Joint Motion, COUNTY agrees to the following terms: a. COUNTY shall construct the project in substantial conformity to the 90% Construction Plans [ "Design and Related Services Intersection Capacity Improvements SR 90 (US 41) & SR/CR 951 "] dated November 21, 2012, filed with the Court on this matter and incorporated herein by this reference, reserving to CARRABBA'S ITALIAN GRILL all claims under Central and Southern Florida Flood Control Dist. V Wye River Farms, Inc., 297 So.2 323 (Fla.4a' DCA 1974); b. The COUNTY shall not store any vehicles, equipment, materials or other items within the driveways; C. The COUNTY shall perform all work in such a manner that existing improvements shall not be damaged. It is further understood and agreed that the COUNTY shall, at its own expense, restore the remaining lands to a safe and sanitary condition; Page 3 of 5 Packet Page -1362- 5/14/2013 16.A.24. d. The COUNTY shall maintain continuous access through the driveway at all times. 3. Pursuant to the aforementioned joint motion, RESPONDENT and its counsel have each agreed that no nonmonetary benefits have been achieved in this cause and thereby have waived any additional claim for attorney's fees or costs against Petitioner in this cause as to Parcels 113FEE and 113TCE. Such stipulation is hereby ratified and incorporated into this order and judgment. 4. Further, pursuant to the aforementioned joint motion, RESPONDENT and its counsel have each agreed that no claim for apportionment will be made by RESPONDENT against the parties in this action. 5. Accordingly, within thirty (30) days after the date of this order, Petitioner shall pay the total sum of Five Thousand and NO /100 Dollars ($5,000.00) to the trust account of Trenam, Kemker, Scharf, Barkin, Fyre, O'Neil &Mullis, P.A., c/o Paul Bain, Esquire, 101 East Kennedy Blvd., Suite 2700, Tampa, Florida 33602; which total sum shall satisfy the awards made herein. Upon such payment, RESPONDENT stands dismissed from this action without further order of this Court. 6. There is no other or further compensation, attorneys' fees or costs due from Petitioner to this RESPONDENT in this matter. DONE and ORDERED in chambers in Collier County, Florida on this day of 2013. Copies furnished to: Jeffrey L. Hinds, Esquire Paul D. Bain, Esquire HONORABLE CYNTHIA A. PIVACEK CIRCUIT COURT JUDGE Page 4of5 Packet Page -1363- 5/14/2013 16.A.24. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT 1N.z',,ND FOR COILILAER COUNTY, FLORIDA CIVIL ACTION COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida, Case No.: 13-CA-238 Petitioner, vs. Parcels: 113FEE, 113TCE NEW PLAN FLORIDA HOLDINGS, LLC, a Delaware limited liability company; et al., Respondents. JOINT MOTION FOR ENTRY OF STIPULATED FINAL JUDGMENT AS TO INTEREST OF CARRABBAS, ITALIAN GRILL, LLC. IN PARCELS 113FEE, 113TCE Petitioner, COLLIER COUNTY, and Respondent, CARRABBA'S ITALIAN GRILL, LLC, a Florida limited liability company, by and through their undersigned counsel, hereby stipulate to the entry of this Final Judgment and Jointly move that the Court enter the foregoing Final Judgment as to Parcels 113FEE and 113TCE. Paul D,-Bain, Esq. I TRENAm, KEmKER, SCHA/BARKIN, FRYE, O'NEIL & MuLus, P.A. 101 E. Kennedy Blvd,, Suite 2700 Tampa, Florida 33602 (813) 223-7474 FEN: 984655 Counsel for Respondent Carrabba's a Dated this -j— day oA l 2013 1101—r Jeffrey L. Hinds, Esq. SMOLKER BARTLETT SCHLOSSER LOEB & HINDS, P.A. 500 East Kennedy Blvd., Suite 200 Tampa, Florida 33602 (813) 223-3888 FBN: 0008710 Special Counsel to the Petitioner Dated this day of 52013. Page 5 of 5 Packet Page -1364- t AERAIL PHOTO SHOWING REGION'S, CARRABB'S AND 7 -11 Packet Page -1365- 5/14/2013 16.A.24. r m #.