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Agenda 06/25/2013 Item #16A 46/25/2013 16.A.4. EXECUTIVE SUMMARY Recommendation to approve an Agreed Order Awarding Expert Fees and Attorney Fees in connection with Parcels 111FEE and 111TCE in the lawsuit styled Collier County v. A L Subs, Inc., et al., Case No. 09- 3691 -CA, Collier Boulevard Project No. 60092 (Fiscal Impact: $14,000). OBJECTIVE: That the Board of County Commissioners approve an Agreed Order awarding expert fees and attorney fees in connection with Parcels 111FEE and I I ITCE in the lawsuit styled Collier County v. A L Subs, et. al., Case No. 09- 3691 -CA. CONSIDERATIONS: On December 14, 2011 (Item 16.x.6), the Board of County Commissioners approved a Stipulated Final Judgment in settlement of Parcels 111FEE and 111TCE with Respondents, Circle K Stores, Inc., the owner, and Petro -Gate, Inc., the tenant. As part of the settlement, the County agreed to pay a sum equal to the reasonable costs to design and construct an exit driveway. By statute, the County is also responsible for related attorney fees, based on actual hourly time rather than by monetary and non- monetary benefits achieved. To conclude this matter, staff recommends payment of the following: Negotiated Invoiced Percentage of Amount Amount Invoice (approx.) Planning/Engineer Fees $ 5,500.00 $ 6,119.55 90.0% Attorney Fees 8,500.00 $ 9,437.50 90.0% TOTAL $14,000.00 $ 15,557.05 90.0% The terms of this final settlement are set out in the Agreed Order Awarding Expert Fees and Attorney Fees attached as Exhibit "A ". Once approved, this case will be closed. Staff has reviewed the expert and attorney fees as set forth in the Agreed Order and considers them to be reasonable in light of the statutory requirements as to costs and fees imposed upon the condemning authority. If the County goes to a cost hearing, the County would be required to pay reasonable fees of any experts that are retained by owner to testify as to the reasonableness of the fee. This could mean additional experts (e.g., planner, engineer, petroleum consultant, CPA, attorney's fee expert). Plus the County will need to hire experts to counter owner's experts, and the County will have to pay owner's attorney hourly for supplemental proceedings. FISCAL UVIPACT: Funds in the amount of $14,000 are available in impact fees. Source of funds are Impact Fees. GROWTH MANAGEMENT IMPACT: This project will further the goals and policies of the Collier County Growth Management Plan. LEGAL CONSIDERATIONS: This item has been reviewed as to form and legality, and requires majority vote for Board approval. -JW RECOMMENDATION: That the Board of County Commissioners approve the Agreed Order and the expenditure and disbursement of funds as stated.. Prepared by: Kevin Hendricks, Right -of -Way Acquisition Manager Attachment: (1) Agreed Order Packet Page -382- 6/25/2013 16.A.4. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.A.16.A.4. Item Summary: Recommendation to approve an Agreed Order Awarding Expert Fees and Attorney Fees in connection with Parcels 111FEE and 111TCE in the lawsuit styled Collier County v. A L Subs, Inc., et al., Case No. 09- 3691 -CA, Collier Boulevard Project No. 60092 (Fiscal Impact: $14,000). Meeting Date: 6/25/2013 Prepared By Name: HendricksKevin Title: Manager - Right of Way,Transportation Engineering 5/23/2013 2:58:15 PM Approved By Name: TaylorLisa Title: Management/Budget Analyst,Transportation Administr Date: 5/23/2013 3:53:22 PM Name: AhmadJay Title: Director - Transportation Engineering,Transportation Engineering & Construction Management Date: 5/29/2013 10:21:28 AM Name: LynchDiane Title: Administrative Assistant Date: 5/31/2013 12:35:58 PM Name: KearnsAllison Date: 6/5/2013 2:01:19 PM Name: ShueGene Date: 6/5/2013 3:00:53 PM Name: MarcellaJeanne Title: Executive Secretary,Transportation Planning Date: 6/6/2013 11:31:24 AM Packet Page -383- 6/25/2013 16.A.4. Name: WrightJeff Title: Assistant County Attorney,County Attorney Date: 6/7/2013 2:25:10 PM Name: KlatzkowJeff Title: County Attorney Date: 6/12/2013 2:04:21 PM Name: UsherSusan Title: Management/Budget Analyst, Senior,Office of Manage Date: 6/17/2013 10:06:56 AM Name: IsacksonMark Title: Director -Corp Financial and Mgmt Svs,CMO Date: 6/17/2013 11:43:14 AM Packet Page -384- 6/25/2013 16.A.4. ME 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. 09- 3691 -CA VS. 'Parcel Nos.: I HFEE, 111'TCE- A L SUBS, INC., et al, Respondents. r AGREED ORDER THIS CAUSE, having come before the Court upon joint .motion made by Petitioner, COLLIER COUNTY, FLORIDA, by and through its undersigned counsel, and Respondent, CIRCLE K STORES INC., by and through its undersigned counsel, for entry of an Agreed Order, and the Court finds as follows: 1. That in .accordance with the Stipulated Final Judgment entered on December 14, 2011, the Petitioner, COLLIER COUNTY, agreed to allow construction of an exit only driveway from the Remainder Tract of Parcel 111 onto Beck Boulevard and to pay Respondent, CIRCLE K STORES INC., for their reasonable costs incurred to design and construct the exit driveway. 2 It has now been decided that the Petitioner, COLLIER COUNTY, would' complete construction of.the exit driveway from the Remainder Tract of -Parcel 111 onto Beck Boulevard in accordance with the construction plans attached as Exhibit "C" to the Stipulated Final Judgment entered on December 14, 2011. 3. Respondent, CIRCLE K STORES INC., has incurred costs associated with the design and construction of the exit driveway and is requesting reimbursement for same. It is therefore ORDERED AND ADJUDGED that the Petitioner, COLLIER COUNTY shall complete construction of the exit driveway from the Remainder Tract of Parcel 111 onto Beck Boulevard in accordance with the construction plans attached as Exhibit "C" to the Stipulated Final Judgment entered on December 14, 2011, a copy of which is attached hereto at Exhibit "A and it'is further 1 of 3 Packet Page -385- 6/25/2013 16.A.4. ORDERED that Respondent, CIRCLE K STORES INC., receive from Petitioner, COLLIER COUNTY, FLORIDA, the sum of Five Thousand Five Hundred Dollars and No /100 ($5,500.00) for additional expert fees incurred by Mesimer and Associates, Inc., in connection with Parcels 111FEE and I I ITCE; it is further ORDERED that Respondent, CIRCLE K STORES INC., receive from Petitioner, COLLIER COUNTY, .FLORIDA, the sum of Eight Thousand Five Hundred Dollars and No /100 ($8,500.00) for additional attorney fees incurred in connection with Parcels I I IFEE and 111TCE; it is finther ORDERED that within thirty (30) days of receipt of the Agreed Order centered by the Court, Petitioner, COLLIER COUNTY, FLORIDA, shall disburse the sum of Five Thousand Five Hundred Dollars and No /100 ($5,500.00) to the GAYLORD MERLIN TRUST ACCOUNT c/o LORENA HART LUDOVICI, ESQUIRE, GAYLORD MERLIN LUDOVICI & DIAZ, 5001 West Cypress Street, Tampa, Florida 33607 for the benefit of Respondent, CIRCLE K STORES INC., for expert fees for Parcels 111FEE and 111TCE; it is further ORDERED that within thirty (30) days of receipt of the Agreed Order entered by the Court, Petitioner, COLLIER COUNTY, FLORIDA, shall disburse the sum of Eight Thousand Five Hundred. Dollars and No /100 ($8,500.00)' to LORENA HART LUDOVICI, ESQUIRE, GAYLORD MERLIN LUDOVICI & DIAZ, 5001 West Cypress Street, Tampa, Florida 33607 for attorney fees for Parcels 111FEE and 111TCE; it is further ORDERED that this Order disposes of all claims of Respondent, CIRCLE K STORES INC. DONE AND ORDERED this day of 2013, in Naples, Collier County, Florida. CYNTHIA A PIVACEK Circuit Court Judge 2 of 3 Packet Page -386- Conformed Copies: Heidi Ashton -Cicko Esquire Lorena Hart Ludovici, Esquire Thomas IL Bolf, Esquire Brenda C. Garretson, Esquire Shell Oil Company Toll Gate Commercial Center Property Owners Assn., Inc.: Kevin Hendricks, Transportation ROW Acquisition Manager Bookkeeping --JAMENAJLQU LUDDVfa, ESQUIRE JEFF E. WRIGHT, ESQUIRE v Florida Bdr No.: 847062 Florida Bar No.. 20203 GAYLORD MERLIN LUDOVCI &: DIAZ COLLIER COUNTY ATTORNEY'S OFFICE 5001 West Cypress Street 3299 East Tamiami Trail, Suite 800 Tampa, Florida 33607 Naples, Florida 34112 Telephone: (813) 221 -9000 Telephone — (239) 252 -8400 ATTORNEY FOR RESPONDENT ATTORNEY FOR PETITIONER, CIRCLE K STORES INC. COLLIER COUNTY CM09- 3691- CA\4940 3 of 3 Packet Page -387- r IN THE CIRCUIT COURT IN AND FOR COLLIER COUNTY, a political subdivision of the State of Florida, Petitioner, Fiq1;ign1 � 16 A 4 Case No.: 09- 3691 -CA VS. Parcels l l I FEE, 111 TCE A L SUBS, INC., et al, Respondents. STIPULATED FINAL JUDGMENT -THIS CAUSE having come before the Court upon Joint Motion made by Petitioner, COLLIER COUNTY, FLORIDA„ by and .through the undersigned counsel, and Respondent, CIRCLE K STORES, INC., by and through its undersigned counsel and Respondent, PETRO GATE, INC., by and through its undersigned counsel, for entry of a Stipulated -Final Judgment as to Parcels l i 1 FEE and 11 I TCE, and it appearing to the Court that the parties am authorized to make such motion, the Court finding that the compensation to be paid by Petitioner, COLLIER COUNTY,'FLORIDA, is the full compensation due Respondent, CIRCLE K STORES, INC., the Court being Otherwise fully advised in the premises thereof, it is thereupon, ORDERED AND ADJUDGED that Respondent, CIRCLE K STORES, INC., have and recover from Petitioner, COLLIER COUNTY, FLORIDA, the sum of Thirty -rive Thousand :Six hundred Fifty Dollars and No/100 (535,650,00) as full payment for the property interests taken and for damages resulting to the remainder, `if less than the entire property was taken, business damages, and for all other damages in connection with said parcels; it is further 1 of 5 EXHIBIT "A" Packet Page -388- 00 =M Q. z_, - 6/25/2013 16.A.4. one foot landscape buffer may also remain in the event there is a natural disaster (as „previously :defined above) and Respondent constructs a post disaster building andfor site improvements for the operation of the gas station (as .previously described ° above); it is further ORDERED that the relief provided in this Stipulated Final Judgment pursuant to Section 9.03.07 of the LDC is an alternative to the variance provisions of Section 9.03.03 ,of the LDC; it is further ORDERED that title to Parcel IIIFEE, a Fee Simple Interest, and Parcel I I ITCE, a Temporary Construction Easement, being fully described in Exhibit "A" attached hereto and incorporated herein, which vested in Petitioner, COLLIER COUNTY, FLORIDA, pursuant to the Order of Taking dated'` September 17, 2009" and the deposit of money heretofore made, is approved, ratified, and confirmed; it is further ORDERED that Petitioner agrees to allow an exit only driveway from the Remainder Tract of Parcel 11 I onto Beck Boulevard according to the construction plans attached as Exhibit "C ". Petitioner further agrees to pay to the GAYLORD MERLIN LUDOVICI DIAZ & BAIN TRUST ACCOUNT for proper distribution to experts and contractors, a sum equal to the reasonable costs to design and construct the exit driveway as set forth in Exhibit C; it is further ORDERED that Respondent WAFFLE HOUSE, INC. and Respondents ROBERT VOCISANO and MARIO VOCISANO, Co- Trustees of Unrecorded Trust, shall have the right to use the exit driveway from the Remainder Tract of Parcel 111 onto Beck Boulevard, pursuant' to the access easement recorded in Official Record Book 1614, Page 2012, et seq., of the Public Records of Collier County, Florida; it is further ORDERED that this Court reserves jurisdiction to enforce the terms of this Stipulated Final Judgment; it is further 3 of 5 Packet Page -389- 6/25/2013 16.A.4. 3 ORDERED that this Stipulated Final Judgment is subject to approval by the Board of County Commissioners of Collier County, Florida; it is further ( ORDERED that the Notice of Lis Pendens filed in this actionaand recorded in Official Record Book 4448, Page 3045, et seq., of the Public ;Records, of Collier County, Florida be 4 dismissed as to Parcels I 1 I FEE and I 1 I TCE; it is further a ' ORDERED that this Stipulated Final Judgment is to be recorded in the Official Records of Collier County, Florida', it is therefore 1 DONE AND ORDERED in Chambers at Naples, Collier County, Florida this day of . 2011. W The Original Of this document as signed CYNTHIA A. PIVACEWr t�Q�! Circuit Court Jb EY'NTHIA A. PIVACEK Circuit Court Judge Conformed Cog% Heidi Ashton -acko Esquire Loreaa Hart Ludoviel, Esquire Thomas PL Bolf, Esquire Jennifer Dixon- Abbott, Esquire Shell Oil Company _ Toil taste Coma mial Center Property Owners Assn., Inc. Kevin Hendricks, Transportation ROW Acquisition Manager Bookkeeping i 4 of 5 n Packet Page -390- 6/25/2013 16.A.4. JOINT MOTION FOR .STIPULATED FINAL JUDGMENT The parties hereby stipulate and respectfully request this Court to enter the foregoing Stipulated Final Judgment as to Parcels 111 FEE and 1 l 1TCE. Dated; HEIlDi9 - CIGKOy F. QUIRE Florida Ba -Vo,,:,,.,'966770 GAYLORD MERLIN LUDOVCI DIAZ COLLIER COUNTY ATTORNEY'S OFFICE & BAIN 3299 East Tamiami Trail,_Suite 800 5001 W. Cypress Street Naples, Florida34112 Tampa, Florida. 33607 -3887 Telephone — (239) 2 2 -$400 Telephone: (813) 221 -9000 Facsimile -- (239) 252 -6300 Facsimile: (813) 221 -9030 A7TORNEY FOR PETITIONER,: A77MMEYFOR RESPONDENT, COLLIER COUNTY CIRCLE K STORES, INC. OMAS =R. B ©LF, ESQUIRE Florida Bar No.: 454419 RUDEN MCCLOSKY, P.A. P.O. Box 1900 <: Fort. Lauderdale, Florida 33302 -1900 Telephone: (954) 527 -,2474 Facsimile:: (954) 333 -4074 A7TORNEYFOR RESPONDENT PETRO GATE, INC. Attachments: Exhibit A - Legal Description Exhibit B —Site Plan Exhibit C — Construction Plans CM9= 3 69114 6 26 Sof5 Packet Page -391- 6/25/2013 16.A.4. j Parcel 1'11 FEE EXH101T � IuEStcw. � TOLt.GATE Page Of CENTER ' I E TNO (P.8, 18, 14".04) I I 3 Hoare I I • I MICT I > rip 04 I I SECTION 35 SECAON J4 ,,�,;;; . • �.-� SEC'f10N 2 SECTION 3 DAMS BOULCVARO E . AB UNE I LIMM _I 1 4 Bile AA $ b FEE SIMPLE INTERE13T • >a waltM/eC1GIt •w PARCEL 111 FIX A portion of Treat' 8, Tollgate Co0r~olal Center Phase Two, as recorded In Plot pOTES; Book 16, popes 23 -24 of the Public 1. This Is not a survayr Records of Collier County, Florida. Being more particularly described as.followss 7. Bosia of bearing is the East one of Section 34, Township 49S., Rungs 26E., Collier Beginning at the southwest comer of said Counly, Florida, beinq N OIrT9 r M, Florida Treat 5; thence North OQ03148' West Stets Plana Coordinot•s NO 13/90, East along the west Line of sold - Tract 6, a Zorn' distance of 6,98 feat; thence South 3. Subject to easements, raservadons and 89'43'3x' East, a dlstonge Of 108.21 rsatriollens of rsaord. feet;-thence South 00'16'2E' West, o distance of 8.36 feel to a point on the 4. Easements shown hereon are par plat south line of said 'Tract 6 pint int also unless otherwise noted. Vjq on the North fight -of -Tway line of 5. aimenelons are III l4al and decimals said Davis SoWevord; thence South taro(. 89'36'12" West along sold South line, a distance of 105.15 faetiL to the POINT OF & Cat at outhoritotiea L8 41' BEGINNING. 7. R/* nipressnts Al hL -of -Way. a. P.aA rearaaants Paint of NZ4nnine. Containing 911.75 square feet. more or s. P.= repravenla Point-of Con"one—At. 10. O.R. represents official Records. less. ..... 11. L9& represents Lohdsaopa Huffer Eoeamsnt. U. UXF represents Utility Eeesmenl. 1J. F.P.LE. repreesnts Fiorillo Power k U9ht EosemenL 14. O.E. represents Oroinoge Easement. 15, &E,- LISMsents Sidewalk Easement. td. P.UX. represents Pubac Utility Easement, DAVE J :NT (FOR THE FIRM) nA M .5 4 NOT VAUD WMiDUT THE SIGNATURE AND THE ORIGINAL AAlSEO SEAL OF A rLOR10A LICCHSEO SURVEYOR MO:MARPER We.1 ItW3EO TO CHANCE PARCEL NWE =111 /to/Oe C112W LL Tws " a Surrey, -SKETCH k DSSCR)PTION 0 PARCEL Ill FU A PORTION OF ty1r�,AWrrEr SECTION 35, TOWNSHIP 49 S., RANG8 -28 E., f'^ """""a'e"""'`"""r"" """""" COLLIER 0OIJNjY, FLORIDA I . YLMIr.a. Ifs-- v'mr omo orwew on os� ono rub+ 11a "isvwfs "peal 1p' ran OC800 TA0 lull to -ds B1016- 601E -OOt tit flSIO/ Y !0-N rM 14 eaa - la.exv leesewgb�slartww irrs�ruawai�o-.a�lwe -n =adq Exhibit A Packet Page -392- a I , / 1 Io.c �,,r Svmvm 35 Pas S ECTIOtN S OAKS SOULESfAi10 roc N L1 5,98 CRAMD SC" NOTES: PARCEL ))) 'fCL 1: Two Is not o aw-M, 2. Swis at t..orinq�la the East Into of A portion at irset:5, Tollgate Camr woloi Section•34, T,06.4ttyi- 495.,'Range 26L, Collier Crhter Phasa Two, as rMardod im Plot Book Csunly, ,horWe, tletNq;iN OP28 Y9 W, fllvldo T5, or YSi jk of the PUDIk Records of Stale Plpns Cseap Ohs 00.83/90. East Coiner County,.Ftarka airy:rhers poKioutsrry Lana. dosodb sr followal - Coramenctng at the sauthrvatt corner of aeid 3. Strblect to waementsi uservatlan and Tract 6; thence North OD gT46a *-at song the nstrietbns' of reea►d. .. Weed nne Of sold -:Troot 6, a- dtstenea W 6.96 4....Eossments shown hereon are par plat. .. le.l'to the POOR• OF SLOINNINC;.. thence unless otherwisr noted,• -- canlMwing along sold West One North 00-03'41r Weak o distoncs or 5,00 1`004 -Ownoa -South 3. OW4nolorw on In taw! and deaknWe 6743'3T USL a- distance of It0,94, Feet:' thersef, thence South 00'16'26" West, a detaht:e of 1`338 4es4 1`0 a 'ron the SQUth;Ma 0/ 6. Carilffaots 01` authorlmtlar, LD 43. sold Tradt 6 will ptYnt aloe yr4p on -rlht North 7. R/W repro mih Right- of -Woy. right -or -way Naa er oovls 604rva►d, ^thane A. P.04, rrspresdnis Motor. Beginning. North 58'43'32" Wstt alone said SOUth ins and 9. isprement palm! of - commentoMtent wad North right•- af-wuy line, a dImhu ao of 10. P.O.C. 01, rspnesals Gila l Reoerds. S.OQ feet. thaws North OQ16'28" EwL s 11. LB.E. nareverda LAndsodp , Butter cwbtorw* Or 06'fee: thence No rtS #3'3" EasemenL eAfaryt..,. : - OF a tD IOa W. 103,21 11J2 . PUPE , Lrtr3, represents ►rpornpts tK dU. N E �V nfre) la the PON f+ONef at Light LaeemlNj h' Comottunq 592A4..equare lest, man or L.* , 14. D.E. 60niihis 15. DmMaQS t ottorttenL S i tiprtlgaltte ;$idswalk Casmtartl. I d. P.Ui, npre0ortts L 044 Eaecmat4 TEMPORARY CON MUCTIO EASEMENT DURAN'ION 3 YEARS.. ,ffis DAVID J, MCA 41 FLA. LIC FOR THE M) . 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