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Agenda 03/27/2012 Item #16K23/27/2012 Item 16.K.2. Executive Summary Recommendation to approve an Agreed Order Awarding Expert Fees in connection with Parcels 105 and 705 in the lawsuit styled Collier County v. Highland Properties of Lee and Collier Limited, et al., Case No. 06- 0563 -CA, Santa Barbara Boulevard Project No. 62081 (Fiscal Impact: $61,230). OBJECTIVE: That the Board of County Commissioners approve the expert fees associated with the acquisition of Parcels 105 and 705 in the lawsuit styled Collier County v. Highland Properties of Lee and Collier Limited et. al., Case No. 06- 0563 -CA. CONSIDERATIONS: On April 26, 2011, the Board of County Commissioners approved a Stipulated Final Judgment in settlement of these parcels, which had been negotiated with owner's counsel on the eve of trial. The primary issue in this case was damages associated with the loss of 22 parking spaces as a result of the proposed taking of the landscape buffer along Radio Road. As part of the settlement, the County agreed that the 20 -foot landscape buffer along Radio Road would not be required to be replaced, and could be reduced to 5 feet on the remainder tract in accordance with LDC Sections 1.06.01 and 9.03.07.C.3 and Section 1.04.04 of Ordinance 06 -07 and the Zoning Manager's Opinion dated December 3, 2010. As a result of this concession, there was no loss in parking spaces as was originally presumed, and severance damages were almost entirely eliminated. Pursuant to Section 73.091(1), Florida Statutes, the County is required to pay reasonable expert fees and expenses incurred in the defense of this matter. Staff recommends payment of the following fees: Negotiated Invoiced Percentage Amount Amount of Invoice Engineering fees — Mesimer & Associates, Inc. $26,230 $ 32,062.50 81.8% Appraisal fees — Richard Harris & Associates $35,000 $ 74,935.00 46.7% TOTAL $61,230 $106,997.50 57.2% the terms of which are set out in the Agreed Order attached as Exhibit "A ". The negotiated amount is on average 43% below the invoiced amount. The Richard Harris invoice savings are unique in that prior counsel for the property owner utilized Mr. Harris statewide and the attorney is no longer in the practice of law in Florida. Staff has reviewed the expert 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 hearing, the County is not required to pay the expert that is requesting the fee, but the County is required to pay reasonable fees of any experts that are retained by owner to testify as to the reasonableness of the fee. This means another engineer and another appraiser. 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. As indicated above, the experts' fees are inclusive of all efforts in preparation for trial. Packet Page -1481- 3/27/2012 Item 16.K.2. FISCAL IMPACT: Funds in the amount of $61,230 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. RECOMMENDATION: That the Board of County Commissioners approve the Agreed Order and the expenditure and disbursement of funds as stated. PREPARED BY: Steven T. Williams, Assistant County Attorney Attachment: Agreed Order Packet Page -1482- COLLIER COUNTY Board of County Commissioners Item Number: 16.K.2. 3/27/2012 Item 16.K.2. Item Summary: Recommendation to approve an Agreed Order Awarding Expert Fees in connection with Parcels 105 and 705 in the lawsuit styled Collier County v. Highland Properties of Lee and Collier Limited, et al., Case No. 06- 0563 -CA, Santa Barbara Boulevard Project No. 62081 (Fiscal Impact: $61,230). Meeting Date: 3/27/2012 Prepared By Name: CrotteauKathynell Title: Legal Secretary,County Attorney 3/14/2012 9:38:03 AM Approved By Name: TaylorLisa Title: Management/Budget Analyst,Transportation Administr Date: 3/14/2012 10:34:59 AM Name: AhmadJay Title: Director - Transportation Engineering,Transportation Engineering & Construction Management Date: 3/14/2012 11:08:43 AM Name: HendricksKevin Title: Manager - Right of Way,Transportation Engineering Date: 3/15/2012 11:37:16 AM Name: WilliamsSteven Title: Assistant County Attorney,County Attorney Date: 3/15/2012 11:59:57 AM Name: FederNorman Title: Administrator - Growth Management Div,Transportati Date: 3/16/2012 7:02:08 AM Name: KlatzkowJeff Title: County Attorney Packet Page -1483- Date: 3/16/2012 3:30:00 PM Name: IsacksonMark Title: Director -Corp Financial and Mgmt Svs,CMO Date: 3/19/2012 10:10:09 AM Name: UsherSusan Title: Management/Budget Analyst, Senior,Office of Manage Date: 3/19/2012 12:46:02 PM Name: OchsLeo Title: County Manager Date: 3/19/2012 2:46:41 PM Packet Page -1484- 3/27/2012 Item 16.x.2. 3/27/2012 Item 16.K.2. 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, V. HIGHLAND PROPERTIES OF LEE AND COLLIER, LIMITED, et al., Respondents. AGREED ORDER Case No.: 06- 0563 -CA Parcel Nos.: 105, 705 THIS CAUSE, having come before the Court upon joint motion made by Petitioner, COLLIER COUNTY, FLORIDA, by and through its undersigned counsel, and Respondent, DDRM COUNTRYSIDE, LLC AS SUCCESSOR TO INLAND SOUTHEAST COUNTRYSIDE LIMITED PARTNERSHIP (hereinafter DDRM COUNTRYSIDE, LLC), by and through its undersigned counsel, for entry of an Agreed Order, and the Court being fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Respondent, DDRM COUNTRYSIDE LLC, receive from Petitioner, COLLIER COUNTY, FLORIDA, the sum of Twenty-Six Thousand Two Hundred Thirty Dollars and No /100 ($26,230.00) for engineering fees incurred by Mesimer and Associates, Inc. in connection with Parcels 105 and 705; it is further ORDERED that Respondent, DDRM COUNTRYSIDE LLC, receive from Petitioner, COLLIER COUNTY, FLORIDA, the stun of Thirty Five Thousand Dollars and No /100 ($35,000.00) for appraisal fees incurred by Richard Harris & Associates, Inc. in connection with Parcels 105 and 705; it is further I of 2 Packet Page -1485- 3/27/2012 Item 16.K.2. 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 Sixty -One Thousand Two Hundred Thirty Dollars and No /100 ($61,230.00) to the BRIGHAM MOORE LLP TRUST ACCOUNT c/o Gregory S. Rix, Esquire, Brigham Moore, LLP, 300 West Platt Street, Suite 100, Tampa, Florida 33606 for the benefit of Respondent, DDRM COUNTRYSIDE LLC, for expert fees for Parcels 105 and 705 it is further ORDERED that this Order disposes of all claims of Respondent, DDRM COUNTRYSIDE LLC. DONE AND ORDERED this day of , 2012, in Naples, Collier County, Florida. Conformed Copies: Steven T. Williams Esquire Gregory S. Rix, Esquire Brent E. Simon, Esquire Michael A. Durant, Esquire Brenda Garretson, Esquire Kevin Hendricks, Transportation ROW Acquisition Manager Bookkeeping CYNTHIA A. PIVACEK Circuit Court Judge JOINT MOTION The Parties, by and through their undersigned attorneys, hereby move for entry of the foregoing Agreed Order as to Parcels 105 and 705. Dated: —&-e— l3, 61Z _ GREGO Y . X, ESQUIRE Florida Bar No.: 317217 BRIGHAM MOORE LLP 300 West Platt Street, Suite 100 Tampa, Florida 33505 Telephone: (813) 318 -9000 ATTORNEY FOR RESPONDENT, DDRM COUNTRYSIDE, LLC, AS SUCCESSOR TO INLAND SOUTHEAST COUNTRYSIDE LIMITED PARTNERSHIP Dated: STEVEN T. WILLIAMS, ESQUIRES.1p Florida Bar No.: 740101 3114112. COLLIER COUNTY ATTORNEY'S OFFICE 3299 East I'amiami Trail, Suite 800 Naples, Florida 34112 Telephone – (239) 252 -8400 ATTORNEY FOR PETITIONER COLLIER COUNTY, FLORIDA 2 of 2 Packet Page -1486- id