Agenda 07/09/2013 Item #16A19 7/9/2013 16.A.19.
EXECUTIVE SUMMARY
Recommendation to authorize a counteroffer of $150,000 to the business damage claim
made by Circle K Stores, Inc, for Parcels 108FEE, 108TCE1 and 108TCE2 in the lawsuit
styled Collier County v. H & V Realty, et al, Case No. 13-CA-461 (U.S. 41 / Collier
Boulevard Intersection Improvement Project No. 60116) (Fiscal Impact $150,000).
OBJECTIVE: That the Board of County Commissioners authorize approval of a counteroffer
to the business damage claim relating to the taking of Parcels 108FEE, 108TCE1 and 108TCE2
in the lawsuit styled Collier County v. H & V Realty, et al„ Case No. 13-CA-461 (U.S. 41 /
Collier Boulevard Intersection Improvement Project No. 60116).
CONSIDERATIONS: Collier County has taken a 22,341 square foot right-of-way parcel in fee
simple (Parcel No. 108FEE) along with two 36-month temporary construction easements (Parcel
Nos. 108TCE1 and 108TCE2) containing 320 square feet and 200 square feet, respectively, for
construction of at-grade improvements to the intersection of US-41 and Collier Boulevard. The
owner of the business located on the property (Circle K Stores, Inc.) is entitled to make a claim
for business damages pursuant to Section 73.015(2),Florida Statutes.
On April 17, 2013, the business owner, Circle K Stores, Inc, presented a claim for recovery of
business damages by and through its attorney, Gaylord Merlin Ludovici and Diaz, in the amount
of$861,818 representing alleged damages resulting from the permanent closure of the existing
business at its present location. The business proprietor claims that the gas station/ convenience
store will no longer be able to operate after the taking of the right-of-way and the construction of
the proposed improvements. Pursuant to section 73.015(2)(d), Florida Statutes. the County has
120 days, or by July 16, 2013, to make a business damage counter-offer or the counter-offer is
deemed to be zero (which would increase the County's exposure to attorney's fees). The
owner's claim was evaluated by County staff, CPA and business damages analyst, Jim Robinson,
with the firm of Gersen Preston Robinson, forensic engineer Joseph Roles, P.E., real estate
appraiser, Alan Wilcox, MAI, and outside counsel with the law firm of Smolker, Bartlett,
Schlosser, Loeb and Hinds. Based on the analysts' past experience regarding the likelihood of
rejection and/or acceptance of the settlement offer by the business proprietor, the arguments we
anticipate they will make at trial, and the anticipated rebuttal argument we would then profer, a
settlement offer is being recommended in the amount of$150,000, exclusive of attorney's fees
and expert witness costs. If approved, and if accepted by the claimant, the County will be
responsible for payment to the business proprietor, Circle K Stores, Inc., in the amount of
$150,000, exclusive of attorney fees and expert witness costs.
The issue of full compensation for the taking of the right-of-way and the temporary easements is
still pending. Note that business damages are statutorily authorized and not included in the
definition of full compensation (which is a constitutional right).
FISCAL IMPACT: Funds in the amount of$150,000 are available in Road Impact Fees.
GROWTH MANAGEMENT IMPACT: None.
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7/9/2013 16.A.19.
LEGAL CONSIDERATIONS: This item is legally sufficient for Board action, and requires a
majority vote for approval. -EP
RECOMMENDATION: That the Board of County Commissioners authorize the making of
a counteroffer to the business damage claim of Circle K Stores, Inc., as to Parcels 108FEE,
1 08TCE1 and 108TCE2 and authorize payment of the funds as stated if accepted by the
claimant.
Prepared By: Kevin Hendricks, Right-of-Way Acquisition Manager
Attachment: Business Damage Claim Letters (2)
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7/9/2013 16.A.19.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.A.16.A.19.
Item Summary: Recommendation to authorize a counteroffer of$150,000 to the business
damage claim made by Circle K Stores, Inc, for Parcels 108FEE, 108TCE1 and 108TCE2 in the
lawsuit styled Collier County v. H &V Realty, et al, Case No. 13-CA-461 (U.S.41/Collier
Boulevard Intersection Improvement Project No. 60116) (Fiscal Impact$150,000).
Meeting Date: 7/9/2013
Prepared By
Name: HendricksKevin
Title: Manager-Right of Way,Transportation Engineering
6/21/2013 3:19:56 PM
Approved By
Name: KearnsAllison
Date: 6/21/2013 4:06:57 PM
Name: ShueGene
Date: 6/23/2013 6:41:53 PM
Name: AhmadJay
Title: Director-Transportation Engineering,Transportation Engineering&Construction Management
Date: 6/26/2013 3:31:17 PM
Name: LynchDiane
Title: Administrative Assistant
Date: 6/26/2013 3:58:48 PM
Name: TaylorLisa
Title: Management/Budget Analyst,Transportation Administr
Date: 6/26/2013 4:02:02 PM
Name: PepinEmily
Title: Assistant County Attorney, CAO Litigation
Date: 6/26/2013 4:57:15 PM
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7/9/2013 16.A.19.
Name: MarcellaJeanne
Title: Executive Secretary,Transportation Planning
Date: 7/1/2013 10:03:27 AM
Name: KlatzkowJeff
Title: County Attorney
Date: 7/1/2013 11:21:38 AM
Name: UsherSusan
Title: Management/Budget Analyst, Senior,Office of Manage
Date: 7/1/2013 2:04:12 PM
Name: OchsLeo
Title: County Manager
Date: 7/1/2013 2:40:17 PM
ogott
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7/9/2013 16.A.19.
Gaylord
Merlin
Ludovlci
N, &Diaz
EMINENT DOMAIN • INVERSE CONDEMNATION
PROPERTY RIGHTS • PROPERTY TAX APPEALS
April 18, 2013
Via Certified Mail #7011 2000 0001 8418 9507
Right-of-Way Acquisition Section
Transportation Engineering Department
Collier County Growth Management Division
2885 South Horseshoe Drive
Naples, Florida 34104
Re: Circle K #2701700
Loc.: 12800 East Tamiami Trail, Naples, Florida
Project: Collier County Project No. 60116 (US-41/Collier Boulevard
Intersection Improvements)
Parcels: 108FEE, 108TCE1 and 108TCE2
Dear Sir/Madam:
Pursuant to Florida Statutes Section 73.015(2)(c), enclosed please find Circle K
Stores Inc.'s (Circle K) good-faith written offer to settle any claims of business damage
for the total sum of $ 861,818.00 , sent by certified mail, return receipt requested.
As required by Florida Statutes Section 73.015(2)(c)(1), Circle K's enclosed
business damage offer includes an explanation of the nature, extent and monetary
amount of business damages and is prepared by Morgenstern, Phifer & Messina, P.A.,
certified public accountants. The offer is based upon data furnished by Collier County
Government, Growth Management Division, including right of way maps and
constructions plans as well as a preliminary report prepared by Mesimer & Associates.
This offer package includes records that substantiate Circle K's good faith offer to settle
its business damage claim and is based upon preliminary information prepared by or on
behalf of Collier County Government and preliminary information from Mesimer and
Associates, Inc, Circle K reserves the right to present evidence of damages at a trial in
this cause at an amount different, and possibly higher, than the amount contained
herein.
Circle K's business records that substantiate its good faith offer to settle its
business damage claim are provided as listed below. Because the business records
contain proprietary information Circle K requests that the records are exempt from
disclosure to the public pursuant to Florida Statutes Section 73.0155.
5001 WEST CYPRESS STREET•TAMPA,FLORIDA 33607-3803
TFI FPHONE:813-221-9000•FncsLMmi:813-221-9030•Tou.FREE:877-982-1900
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7/9/2013 16.A.19.
Right-of-Way Acquisition Section
April 18, 2013
Page 2 •§.
The business records provided are as follows:
1. Income Statements (by period)
For the period 1 of fiscal year 2009 through April 2013
2. 2009 through 2013 Fiscal Year Calendars
3. Land and Building Lease between H &V Realty Corp of Brooklyn,
Inc. (landlord) and Circle K Stores Inc. (tenant) executed September
21, 2007
4. Preliminary Report and Site Sketches from Mesimer and Associates.
Pursuant to Florida Statute Section 73.015(2)(c)(2), please note that Circle K
does not prepare or possess several specific business records attributable solely to the
business operation on the property to be acquired. Enclosed please find the affidavits
of the following Circle K representatives which address Circle K's business records:
• David Morgan, Vice President of Operations
• Peter Uhlich, Assistant Secretary
Pursuant to Florida Statutes Section 73.015(2)(d), the FDOT has 120 days after
receipt of Circle K's good faith business damage offer and accompanying business
records to, by certified mail, accept or reject the offer or make a counteroffer. Failure by
the FDOT to respond to the business damage offer, or rejection thereof, will be deemed
to be a counteroffer of zero dollars.
Please feel free to call me once you have had an opportunity to review Circle K's
offer and enclosed documents. Thank you for your consideration and we look forward
to hearing from you.
Very t ' ors, ,
za
LT ,,,,.:
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LHL/dw
Enclosures
Gaylord Packet Page l &Diaz
-524-
7/9/2013 16.A.19.
MORGENSTERN PHIFER& MESSINA, P.A.
CERTIFIED PUBLIC ACCOUNTANTS
LLOYD J.MORGENSTERN,C.P.A. BANK OF AMERICA PLAZA
STEPHEN C.PREFER,C.P.A. SUITE 1480 MEMBERS
MICHAEL P.MESSINA,C.P.A. 101 EAST KENNEDY BOULEVARD AMERICAN INSTITUTE OF
BRIAN K GRAFF,C.P.A. TAMPA,FLORIDA 33602 CERTIFIED PUBLIC ACCOUNTANTS
JONATHAN L.MILTON,C.P.A. FLORIDA INSTITUTE OF
EDWIN L.PINzON,C.P.A. TELEPHONE(813)222-8888 CERTIFIED PUBLIC ACCOUNTANTS
LISA M.WEINBERGER,C.P.A. FACSIMILE(813)222-8895
MICHAEL.C.MESSINA,C.P.A.
April 15, 2013
Lorena H. Ludovici, Esquire
Gaylord Merlin Ludovici & Diaz
Attorneys At Law
5001 West Cypress Street
Tampa, Florida 33607
Re: Circle K Stores Inc. D/B/A Circle K 41700
12800 East Tamiami Trail,Naples, Florida
Parcel numbers 108, 108TCEI and 108TCE2
(Collier County)
Dear Ms. Ludovici:
At your request, attached are workpapers supporting our preliminary business damage
calculations on the above referenced business. The taking is a strip along the entire County Road
951 frontage varying in depth from 67 feet to 84 feet. The taking includes a portion of the
County Road 951 driveway as well as pavement, landscaping, retention areas and business sign.
In addition, there are temporary' construction easements taken at the County Road 951 driveway
and the eastern Tamiami Trail driveway.
The take will impact fuel deliveries to the site and cause internal conflicts between
customers and delivery vehicles. Without the fuel operation, the business will no longer he able -
to operate at this location.
The calculations contained herein represent the probable damages to the business which
the denial of the use of the property so taken may reasonably cause and include, but are not
limited to, the following:
• Permanent impacts to fuel deliveries and site maneuverability on continued business
operations
• Permanent impact of lost business signage on continued business operations
• Permanent impact of lost landscaping on continued business operations
• Permanent impact of lost site utility on continued business operations
• Permanent impact of lost expansion potential on continued business operations
Based on permanent closure, the capitalized cash flows method and other costs
associated with closure indicate business damages totaling 5861,818 (weighted average).
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7/9/2013 16.A.19.
Lorena H. Ludovici, Esquire
April 15, 2013
Page 2
We reserve the right to modify our findings as a result of changes in information relied
upon in the preparation of these calculations or in the event that new facts or circumstances
come to our attention. These calculations constitute a summary of the work performed by our
firm. Additional supporting data is contained in our files.
Respectfully,
ate'
Lloyd J. Morgenstern, C.P.A.
Enclosures
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