Agenda 09/10/2013 Item #16A25 9/10/2013 16.A.25.
EXECUTIVE SUMMARY
Recommendation to authorize a counteroffer of $15,000 to the business damage claim
made by Southern Management Corporation, d/b/a Burger King, for Parcels 112FEE,
113FEE and 113TCE in the lawsuit styled Collier County v. New Plan Florida Holdings,
LLC, et al„ Case No. 13-CA-238 (U.S. 41 / Collier Boulevard Intersection Improvement
Project No. 60116) (Fiscal Impact $15,000).
OBJECTIVE: That the Board of County Commissioners ("Board") authorize approval of a
counteroffer to the business damage claim relating to the taking of Parcels 112FEE, 113FEE and
113TCE in the lawsuit styled Collier County v. New Plan Florida Holdings, LLC, et al„ Case
No. 13-CA-238 (U.S. 41 / Collier Boulevard Intersection Improvement Project No. 60116).
CONSIDERATIONS: Collier County has taken a 2,550 square foot right-of-way parcel in fee
simple (Parcel No. 112EE) from the property owned by Southern Management Corporation,
d/b/a Burger King, an out-parcel located in the Freedom Square shopping center. Also taken was
a right-of-way parcel in fee simple containing 1,198 square feet (Parcel No. 113FEE) and a 36-
month temporary construction easement (Parcel Nos. 113TCE) containing 650 square feet.
Parcels 113FEE and 113TCE were taken from the shopping center parent tract property owned
by New Plan Florida Holdings, LLC. All of these parcels were required for the construction of
at-grade improvements to the intersection of US-41 and Collier Boulevard. The owner of the
business located on the Southern Management Corporation property (Burger King), whose.
access to and from the public road network is over and across the New Plan Florida Holdings,
LLC, property, is entitled to make a claim for business damages pursuant to Section 73.015(2),
Florida Statutes.
On July 11, 2013, the business owner, Southern Management Corporation, d/b/a Burger King,
presented a claim for recovery of business damages by and through its attorney, Mary J. Dorman
in the amount of$420,003 representing alleged damages resulting from the taking of the above-
referenced parcels. The business proprietor's engineer claims that vehicles exiting the shopping
center after the taking of the right-of-way and the construction of the proposed improvements
will queue-up across one of the entrances to the Burger King restaurant (the entrance closest to
US-41), and that after construction of the proposed improvements the restaurant will suffer
reduced visibility. The business proprietor's certified public accountant claims that the
restaurant will suffer a 10% (ten percent) permanent business damage as a result of the
construction of the proposed improvements. Pursuant to section 73.015(2)(d). Florida Statutes,
the County has 120 days, or by November 8, 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, 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 proffer, a settlement offer is being
recommended in the amount of$15,000 exclusive of attorney's fees, expert fees and costs.
Packet Page -570-
9/10/2013 16.A.25.
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 $15,000 are available in Transportation Impact
Fees.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item has been approved as to form and legality and
requires a majority vote for Board approval. -ERP
RECOMMENDATION: That the Board authorize the making of a counteroffer to the business
damage claim of Southern Management Corporation, d/b/a Burger King, in the amount of
$15,000, as to Parcels 112FEE, 113FEE and 113TCE and authorize payment of the funds as
stated, if accepted by the claimant.
PREPARED BY: Kevin Hendricks, Right-of-Way Acquisition Manager, Growth Management
Division, Transportation Engineering
Attachments: (1) July 11, 2013 Letter from Mary J. Dorman, Esq.; (2) June 28, 2013 Letter from
Lloyd J. Morganstern, C.P.A.; (3)June 27, 2013 LMA Letter; and(4) Location Map
Packet Page -571-
9/10/2013 16.A.25.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.A.16.A.25.
Item Summary: Recommendation to authorize a counteroffer of$15,000 to the business
damage claim made by Southern Management Corporation, d/b/a Burger King,for Parcels
112FEE, 113FEE and 113TCE in the lawsuit styled Collier County v. New Plan Florida Holdings,
LLC, et al„ Case No. 13-CA-238 (U.S. 41/Collier Boulevard Intersection Improvement Project
No. 60116) (Fiscal Impact $15,000).
Meeting Date: 9/10/2013
Prepared By
Name: HendricksKevin
Title: Manager-Right of Way,Transportation Engineering
8/1/2013 4:55:20 PM
Approved By
Name: LynchDiane
Title: Administrative Assistant
Date: 8/6/2013 5:44:46 PM
Name: TaylorLisa
Title: Management/Budget Analyst,Transportation Administr
Date: 8/8/2013 9:18:48 AM
Name: KearnsAllison
Date: 8/12/2013 10:42:49 AM
Name: AhmadJay
Title: Director- Transportation Engineering,Transportation Engineering&Construction Management
Date: 8/13/2013 8:56:10 AM
Name: ShueGene
Date: 8/14/2013 1:46:01 PM
Name: PepinEmily
Title: Assistant County Attorney, CAO Litigation
Date: 8/15/2013 4:42:07 PM
Packet Page -572-
9/10/2013 16.A.25.
Name: MarcellaJeanne
Title: Executive Secretary,Transportation Planning
Date: 8/19/2013 8:01:21 AM
Name: KlatzkowJeff
Title: County Attorney
Date: 8/20/2013 10:09:54 AM
Name: UsherSusan
Title: Management/Budget Analyst, Senior,Office of Manage
Date: 8/23/2013 3:24:06 PM
Name: OchsLeo
Title: County Manager
Date: 8/25/2013 10:10:24 AM
Packet Page -573-
9/10/2013 16.A.25.
Mary J. Dorman
Attorney at Law
305 South Brevard Avenue Suite 100
Tampa, Florida 33606
Via electronic mail to Jay Bartlett
Counsel for Collier County
jayb@smolkerbartlett.corn
July 11, 2013
RE: Collier County vs. New Plan Florida Holdings LLC
Case Number: 13-CA-238
Southern Management Corporation's Interest in
Parcels 112 and 113
Good Faith Written Offer To Settle Any Claims of Business Damage
Dear Mr. Bartlett:
Pursuant to Section 73.015(2)c, Florida Statutes, enclosed please find Southern
Management Corporation's good faith written offer to settle any claims of business damage
in the above-referenced matter for the sum of$420,003 exclusive of attorney's fees and
costs. In exchange for Southern Management Corporation's stipulation to the Order of
Taking in this matter, Collier County agreed to extend the time in which Southern
Management Corporation could submit its good faith written offer to settle any claims of
business damage to Juiy 15, 2013. While Section 73.015(2)c states that the good faith
written offer is to be sent by certified mail return receipt requested to the condemning
authority, and the Notices to Business Owner state that the good faith written offer should
be sent to Collier County's Right-of-Way Acquisition Section by certified mail return receipt
requested, you stated to me today that you would prefer that I email the good faith written
offer to you.
As required by Section 73.015, Florida Statutes, Southern Management Corporation's
good faith written offer to settle any claims of business damage includes an explanation
of the nature,extent and monetary amount of business damages prepared by Morgenstern
Phifer & Messina, P.A., Certified Public Accountants. Copies of Southern Management
Corporation's business records, which substantiate the good faith written offer to settle
Southern Management Corporation's business damage claim, are also included with this
offer package. These records are as follows:
1. Income Statements
For the years ended December 31,2008 through 2012
For the four months ended April 30, 2013
2. Sales and Use Tax Returns (Form DR-15)
Packet Page -574-
9/10/2013 16.A.25.
Avow
For January 2008 through April 2013
3. Sales statistics by type (drive-through, take out. dine-ini
From May 2012 through May 2013
4. Fixed Asset/ Depreciation Schedules
For the years ended December 31, 2008 through 2012
Please note that Collier County's construction plans and right of way maps were
considered in making this offer. In addition, engineering analysis of Leland E. Moree, Ill,
P.E., P.L.S. was also considered in making this offer.
Southern Management Corporation has operated a Burger King restaurant at the subject
location in excess of 5 years and is an established business for purposes of Section
73.071(3)(b), Florida Statutes. The impacts of the proposed taking of Parcels 112 and 113
and the business owner's denial of the use of the land taken result in permanent damages
to the business operating on the adjacent lands. In the event changes are made to Collier
County's construction plans, Southern Management Corporation reserves the right to
revise this business damage claim as it deems appropriate based on said changes or
revisions to Collier County's construction plans. Similarly, should additional information
that affects its business damage claim become known to Southern Management
Corporation that is not currently known, Southern Management Corporation reserves the
right to consider such additional information.
Pursuant to Section 73.0155(1), Florida Statutes, Southern Management Corporation
requests that the business records provided herewith be held confidential and exempt from
the disclosure provisions in Section 24(a), Art. I of the Florida Constitution and Section
119.07(1), Florida Statutes. Moreover, Southern Management Corporation hereby states
its belief that the disclosure of the business records submitted herewith is likely to cause
substantial harm to its competitive position.
This letter and enclosures are being provided strictly for purposes of settlement
negotiations and are therefore inadmissible in the compensation trial of this matter.
Please call me at your convenience once you have had a chance to review this offer and
enclosed documents. Thank you for your consideration and I look forward to hearing from
you.
Very Truly Yours,
Mary J. orman
Counsel for Southern Management Corporation
Enclosures
Packet Page -575-
9/10/2013 16.A.25.
31622 US 19 North
Palm Harbor,Florida 34684
SLAIN grin PYL.; Phone:(727)789-5010
.„€ # . Toll Free:1.800-262-7960
=Me Landon, Moree & Associates, Inc. Fax:(727)787-4394
WWW.I.MAENGR.COM
Civil & Environmental Engineers-Planners-Surveyors MOREEeLMAENGR.COM
June 27, 2013
Dorman &Associates P.L.
305 S. Brevard Avenue, Suite 100
Tampa, Florida 33606
Attention: Mary Jewel Dorman
Re: COLLIER COUNTY vs. SOUTHERN MANAGEMENT CORPORATION
COLLIER COUNTY PROJECT NO.: 428147-1-58-01
S.R. 90 (U.S. 41) & S.R./C.R. 951
INTERSECTION CAPACITY IMPROVEMENTS
PARCEL 112, 12651 TAMIAMI TRAIL E., NAPLES, FLORIDA 34113
Dear Ms. Dorman:
As requested, please be advised I have completed my preliminary engineering analysis
for the above referenced property located at 12651 Tamiami Trail East, Naples, Florida
34113. This analysis is based on the parcel sketch and legal description prepared by
RWA Consulting dated June 13, 2012 and construction plans prepared by Stanley
Consultants, Inc. with a print date of November 2012.
The parent tract for Parcel 112 is under the ownership of Southern Management
Corporation and is located in Section 3, Township 51 South, Range 26 East, Collier
County, Florida. The parent tract is a commercial parcel in the Lely Resort PUD doing
business as a Burger King fast food restaurant with drive-thru facilities. The parent tract
contains 46,758 square feet (1,073 acres) and is rectangular in shape. The parent tract
has 170.02 feet of road frontage along the north side of State Road 90 (U.S. 41) and a
depth of 275.00 feet, The parent tract is located at the northwest corner of the "Celeste
Drive T” intersection.
Adjacent to the property State Road 90 (U.S. 41) is a six lane divided roadway with
bicycle lanes and public sidewalks. The northbound lanes are striped with a continuous
dedicated right turn lane from Collier Boulevard to the south to Triangle Boulevard to the
north. Celeste Drive is a two lane divided roadway that leads to multiple commercial
properties. Access to the property is provided by two driveway connections connected
to Celeste Drive. The State Road 90 (U.S. 41)/Celeste Drive intersection is limited to
right-in/right-out vehicle turning movements due to the raised median in State Road 90
(U.S. 41).
Collier County is proposing to acquire the south 15 feet of the parent tract adjacent to
the State Road 90 (U.S. 41) frontage for the construction of a public transit concrete bus
Civil & Environmental Engineers - Planners- Surveyors
Packet Page-576-
9/10/2013 16.A.25.
shelter pad, relocation of public sidewalk and grading of a roadside ditch. The
acquisition is known as Parcel 112 and contains 2,550 square feet {0.059 acres). .r.
Parcel 112 consists of 5.45 percent of the parent tract. In the after condition the
remainder tract will contain 44,208 square feet (1.014 acres). In the before condition
exiting vehicles can pull up to the back of the public sidewalk which is adjacent to the
through lane to perform the stop maneuver. This allows three vehicles to stack in a
queue prior to interfering with the Celeste Drive median opening and entry drive.
Please review our BEFORE TAKE drawing for reference.
In the after condition Collier County will construct an 8 foot wide (5 feet paved and 3 feet
stabilized) shoulder adjacent to the outside through lane and excavate a roadside ditch
with a 12 foot wide flat bottom. The ditch will be graded with a 6:1 front slope and a
maximum 3:1 back slope. The sidewalk will be constructed 6 feet wide and have a 2
foot wide level clear zone grass area separation from the new right of way. The
sidewalk will transition with a 45 degree angle to match the existing sidewalk and
provide space to construct a 20 foot wide by 9 foot deep concrete bus shelter pad
toward the west end of the remainder. The dedicated right turn lane in State Road 90
(U.S. 41) will be re-striped with a "bus only" turnout lane adjacent to the remainder.
The Celeste Drive intersection will have the existing landscape median shortened and
be re-striped with a painted median, directional right turn lane and cross walk. Please
review our AFTER TAKE drawing for reference.
In the after condition the right of way acquisition and construction will have a negative
impact on the remainder property. The remainder will experience reduced visibility from
State Road 90 (U.S. 41) due to the construction of the bus shelter. In the after condition
the relocated sidewalk will create a second location for vehicles to stop and yield to
pedestrians on the sidewalk potentially blocking the front driveway from the relocated
vehicle queue until the sidewalk becomes clear.
Please do not hesitate to contact me should you have any questions regarding this
information.
Sincerely,
LANDON, MOREE &ASSOCIATES, INC.
Leland E. Moree, Ill, P. E., P.L.S.
Cc: File: 581-10.000
F:1Projects1581-10 So.Mgt.CorplDocs1581.10 P-112 2013-06-27.doc
Civil & Environmental Engineers— Planners-Surveyors
Packet Page -577-
9/10/2013 16.A.25.
-....
N.
N.
... •
/
,0 / / ,... LP
/ ,/..... ,..
//,/... IS...4
/•
• D
... ar
STORM/I/ATER POND /_ • /N•■ •
• d' N'(//a, ' //IN •y'
diqk' /
/
•
„.. •
. /•'() „"N‘i •
/
N... 15 00
/ • ...
■ '''',1/ •41
"... /N ` V' ''',)i.p • '4Z`'.
/
' , , 41),•-• . /.5,,`)
''*NA
4 0‘, / ''
• - • 4, Q. -..
Nit'''C3I CO .
/4P,,, 4,''
,,,, 0
•
„O
LF `,./•-•7':•
■• ,,, k :■■ /
■
00,IP
0 ..--
/ss••••••■■ ,:„., 15 00
os, Aiis i
ir"'- ''‘, ''''c 1 i' '':' •■ NIIF41
...,,
' . N ■ 1#* Or
's 2' '<I ' ',
.!) N,---.
. ,
•:. ,
■—•- '''', N
---
` * '" :- ''-‘,
,...
. . * ...,„
. „
`..'
. .
'`.
. .'
' - -",..,__..,,..,....,..,.
No
PARCEL 112
1 RIGHT OF WAY(FEE SIMPLE)
PARCEL 113
RIGHT OF WAY(FEE SIMPLE)
PARENT TRACT: 46.758 S.F./1.073 AC N 1
PARCEL 113 TCE PARCEL 112: 2,550 S F/0 059 AC
TEMPORARY CONSTRUCTION EASEMENT REMAINDER: 44.208 S.F./014 AC
1 1
I
BEFORE TAKE SCALE'1"=50'
STATE ROAD 90
11111 Landon,MorostAt Associates,Inc.
SOUTHERN MANAGEMENT CORP. .....------------.
31622 U.S.19 North Palm Harbor,Fiend*3,884
Phone:(727)7119.8010.Fox1(727)7874394
PARCEL 112 Toll Free:(BOO)282-7980,411119181.19AENOR.Cont
I MA 1(1R ft.SR1 in nnn
Packet Page -578-
9/10/2013 16.A.25.••
/
LP
• i / ),. ♦ \`\a.
LP
• D /Q9')'\S°o
9.
M
/
ASONRY WALL / ' / /
STORMWATER POND
/
DECORATIVE METAL FENCE <6.1e°j ` / i / /
L /
P
•
/• \.:� .� , /
BURGER KING '�\`\ ,,\,,,,... c,.., . ,
/Nt ' ../
/
■
,_. '-- --,_ .s.,,.,,i A28. ® LP �I q• /
0
1/Q '''''f' ® i 4
\ '',',_mss / f.�, 4
\ 1,...\\�'. •9 ` -i Tom\ PAVED SHOULDER
\ IPA `� \ P`i' ,`,, .....
,,
..,_,...,... \,„,
,,
,,, . ,, ,
„(,...„ .
‘ „,„ N.... "----- ,
1
I
PARCEL 113TCE 1
TEMPORARY CONSTRUCTION EASEMENT
I
i
AFTER TAKE SCALE:1"=50'
STATE ROAD 90 4..04,
IllilMA don,Mores&Associates,Inc.
SOUTHERN MANAGEMENT CORP. 6--------------"
-a --ntal En i.a.-a-,Mnnara.--.fir:
31622 U.S.18 north Palm Harbor,Florida 34884
PARCEL 112 .h...:(2O)25 ,o.F.,: .LMAC CIR.0
ralFr..:(sooits3asso.www.rrrweMan.cem
"°"'R fk Packet Page -579- 'G""�
9/10/2013 16.A.25.
MORGENSTERN PHIFER& MESSINA,P.A.
CERTIFIED PUBLIC ACCOUNTANTS
LLOYD J.MORGENSTERN.C.P.A. BANK OF AMERICA PLAZA
STEPHEN C.PHIFER,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 PINZbN,C.P.A. CERTIFIED PUBLIC ACCOUNTANTS
LISA M.VVEINBERCER,C.P.A TELEPHONE(813)222-8888
MICHAEL C.MESSINA,C.P.A. FACSIMILE(813)222-8895
June 28,2013
Mary J. Dorman,Esquire
Dolman&Gutman, P.L.
305 South Brevard Avenue, Suite 100
Tampa,FL 33606
Re: Southern Management Corporation
DB/A Burger King#70
12651 Tamiami Trail East,Naples,Florida
Collier County, Parcel numbers 112, 113FEE and
113TCE
Dear Ms. Dorman:
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 U.S.
Highway 41 frontage at a depth of 15 feet and includes the landscaping and drainage
improvements. There is also a temporary construction easement taken at the U.S. Highway 41
driveway. The take will result in the reduction in available stacking area for customers exiting
the site and is expected to permanently impact business operations.
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 impact of loss of landscaping on continued business operations
• Permanent impact of quality of driveway and lost vehicle stacking on continued
business operations
• Permanent impact of loss of site utility on continued business operations
• Permanent impact of lost expansion potential on continued business operations
Based on a 10% permanent loss, business damages total $420,003 as detailed in the
following schedules.
Packet Page-580-
•
9/10/2013 16.A.25.
Mary J. Dorman,Esquire
June 28,2013
Amok
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,
411)
Lloyd J. Morgenstern, C.P.A.
Enclosures
•
Packet Page-581-
9/10/2013 16.A.25.
LOCATION MAP
' . *- : , , . ,-;;-....'9141
"1 i
.. ... .. ,„ , f
■
,'' __-_-.-4.-- , ,... '"",".7.t"''''''1',,,..!,--2k 1/ ,,' ''''''''' .
£ .; ' :tit ,°°"t
it
F
sMT� 'h -b _ m
b'kr,,,,s
-,,,,- -- ' ivt ' :,- ,,-' - „...;,,,,,,''. '''':0 -.410 '*jf• / , v"`� . BURGER KING �
.. a � � PROPERTY ..:-/,,.�
Ar,...204,„ ?,,,,71.44., - , - ..1.-,--...; , , ..:4 .. ,.a , ,F '
,.... , ,.„,„„ .,,,,-.,„:.,4,:......, ,--,, ,,,,,,,... .,;... . - ,....4/ �'. . r -� ,....
} .ee * ? z �' .4.*
+� N. is , et,
ht., y {�,otfr
++TT Ear �'
dir
5y, i 4
Packet Page -582-