Agenda 05/10/2011 Item #16K1
5/10/2011 Item 16.K.1.
EXECUTIVE SUMMARY
Recommendation to Approve a Stipulated Final Judgment in tbe Amount of $297,500.00 for tbe
Acquisition of Parcel 111 in tbe Lawsuit Styled Collier County v. NB Holdings Corporation, et 01., Case
No. 06-0658-CA (Santa Barbara Boulevard Project No. 62081). Fiscallmpact: $314,737)
OBJECTIVE: That the Board of County Commissioners approve a Stipulated Final Judgment in the amount
of $297,500.00 for payment of full compensation for the taking of Parcel 111 in the lawsuit styled Collier
County v. NB Holdings Corporation. et al.. Case No. 06-0658-CA (Santa Barbara Boulevard Project No.
62081).
CONSIDERATIONS: The County acquired 0.037 acres from property owners KB Enterprises of Naples,
LLC for the construction of roadway improvements to Santa Barbara Boulevard. The County's initial
appraisal dated January 11, 2006, valued the taking at $58,600. The County offered the owner $58,600 as
the County's statutory offer in January 12, 2006. An updated appraisal, dated July 8, 2006, showed a change
in the market value of$61,600 for the taking. An Order of Taking hearing was held on August 4,2006, and
the County deposited the sum of$61,600 in the Court Registry. The owners' appraiser valued the taking at
$559,136, which included $35,706 for the land, $445,000 in severance damages, $68.350 in cost-to-cure
expenses, as well as $10,080 for improvements in the take. As a result of the taking, the prior entrance to the
commercial building directly onto Radio Road was c1oscd. The owner's tenants and customers must now
enter from the rear of the building.
Mediation was held and monetary issues were agreed to pending the resolution of the administrative
variances. The parties agreed to settle the compensation in this matter in the amount of $297.500 plus
statutory Attorney's fees which are determined by statute to be $78.837. A hearing on the property owners'
Motion to Tax Expert fees and costs will be heard on April 18, 20 II. Negotiations to settle prior to the
hearing are in progress. Also, if the administrative variances are not granted, supplemental attorney's fees
and damages will need to be resolved at that time. Attached is the pmposed Stipulated Final Judgment.
If the settlement is approved, the County is responsible for the following costs:
. Additional Compensation:
. Statutory Attorney's Fees':
TOTAL:
$235,900
78,837
$3]4,737
· Attorney's fees are mandated by 973.092, F.S., and are based on 33% of the total benefit achieved. i.e., 0.33
x (297,500- $58,600).
FISCAL IMPACT: Funds in the amount of$314,737 are available in impact fees.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CON SID ERA TIONS: This item is legally sumcient for Board action. This item requires only a
majority vote. STW
RECOMMENDATION: That the Board of County Commissioners authorize the Stipulated Final
Judgment as to Parcel 111 and authorize payment of the funds as stated.
PREPARED BY: Steven T. Williams, Assistant County Attorney
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5/10/2011 Item 16.K.1.
COLLIER COUNTY
Board of County Commissioners
Item Number:
16.K.1.
Item Summary: Recommendation to Approve a Stipulated Final Judgment in the Amount
of $297,500.00 for the Acquisition of Parcel 111 in the Lawsuit Styled Collier County v. NB
Holdings Corporation, et aI., Case No. 06-0658-CA (Santa Barbara Boulevard Project No. 62081).
Fiscal Impact: $314,737)
Meeting Date: 5/10/2011
Prepared By
Name: CrotteauKathynell
Title: Lega] Secretary.County Attorney
3/22/20] 1 2:27:54 PM
Approved By
Name: AhmadJay
Title: Director - Transponation Engineering,TranspOJ1ation Engineering & Construction Management
Date: 3/23/201 ] 2:50:50 PM
Name: TaylorLisa
Tit]e: ManagementlBudget Analyst,Transponation Administr
Date: 3/23/20] 1 3:58:28 PM
Name: HendricksKevin
Title: Manager - Right of Way,Transponation Engineering
Date: 4/15/2011 J :50:08 PM
Name: FederNorman
Title: Administrator - Growth Management Div.Transportati
Date: 4/15/20]] 4:32:48 PM
Name: WilliamsSteven
Title: Assistant County Attorney.County Attorney
Date: 4/20/20] I 11:14:55 AM
Name: KlatzkowJelf
Title: County Attorney,
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5/10/2011 Item 16.K.1.
Date: 4/28/2011 11 :48:00 AM
Name: UsherSusan
Title: ManagementIBudget Analyst, Senior.Office of Manage
Date: 5/2/20] 14:05:16 PM
Name: IsacksonMark
Title: Director-Corp Financial and Mgmt Svs.CMO
Date: 5/2/2011 5:41:49 PM
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5/10/2011 Item 16.K.1.
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
COLUER COUNTY, FLORIDA" a political
subdivision of the State of Florida,
Petitioner,
v.
Case No. 06-0658-CA
NB HOLDINGS CORPORATION, et aI.,
Parcel No. III
Respondents.
I
STIPULATED FINAL JUDGMENT
THIS CAUSE having come before the Court upon Joint Motion made by Petitioner,
COLLLIER COUNTY, FLORIDA, by and through its undersigned counsel, and Respondent, KB
ENTERPRISES OF NAPLES, LLC, by and through its undersigned counsel, for entry of a
Stipulated Final Judgment as to Parcelll1 for Project No. 62081, and it appearing to the Court that
the parties are authorized to make such Motion, tbe Court finding that tbe compensation to be paid
by Petitioner is the full compensation due tbe Respondent, KB ENTERPRISES OF NAPLES, LLC,
and the Court being otherwise fully advised in the premises thereof, it is thereupon
ORDERED AND ADJUDGED that Respondent, KB ENTERPRISES OF NAPLES, LLC,
have and recover from Petitioner, COLUER COUNTY, the total stun of Two Hundred Ninety
Seven Thousand Five Hundred and Noll 00 Dollars ($297,500.00) for Parcel Ill, as full payment
for the property interest taken and for damages resulting to the remainder, if less than the entire
property was taken, and for all other damages .in connection with said parcel; it is further
ORDERED AND ADJUDGED that Petitioner, COLLIER COUNTY, FLORIDA, IS
entitled to a credit tor the good faith estimate of value previously deposited in the amount of
$61,600.00; it is further
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5/10/2011 Item 16.K.1.
ORDERED AND ADJUDGED that Petitioner, COLLIER COUNTY, FLORIDA, shall pay
an additional Three Hundred Fourteen Thousand Seven Hundred Thirty-Seven and No/IOO Dollars
($314,737.00) which includes Two Hundred Thirty-Five Thousand Nine Hundred Noll 00 Dollars
($235,900.00) for additional compensation; Seventy-Eight Thousand Eight Hundred Thirty-Seven
and Noll 00 Dollars ($78,837.00) for statutory attorney's fees; and it is further
ORDERED AND ADJUDGED that without furthcr ordcr of the Court, that within thirty
(30) days hereof, Petitioner, COLLIER COUNTY, FLORIDA, shall pay for the benefit of
Respondent, KB ENTERPRISES OF NAPLES, LLC, the total balance of $314,737.00 to Michael
R. Whitt, Esquire, BECKER & POLIAKOFF, PA, 12]40 Carissa Commerce Court-Suite 200,
Fort Myers, FL 33966 for proper disbursement in accordance with this order; it is further
ORDERED AND ADJUDGED that fee simple title to Parcel 111, being fully described in
Exhibit "A" attached hereto and incorporated herein, which vested in Petitioner pursuant to the
Order of Taking dated August 4, 2006, and the deposit of money heretofore made, is approved,
ratified, and confirmed; it is further
ORDERED AND ADJUDGED that the Mediated Settlement Agreement of November I,
2010 that is attached hereto as Attachment "B", be incorporated into and made part of this
Stipulated Final Judgment; it is further
ORDERED AND ADJUDGED that the Notice of Lis Pendens filed in the above-styled
cause and recorded in Official Record Book 4027, Page 1 060 of the Public Records of Collier
County, Florida be dismissed as to Parcel 11]; it is further
ORDERED AND ADJUDGED that the Court will retain jurisdiction herein to determine
entitlement to and the amount of reasonable experts' costs, and supplemental attorney's fees to
which Petitioner may be entitled; it is further
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5/10/2011 Item 16.K.1.
ORDERED AND ADJUDGED that this Stipulated Final Judgment is to be recorded in the
Official Records of Collier County, Florida; it is further
ORDERED AND ADJUDGED that this Order disposes of all claims arising out of the
taking of Parcel III other than those referred to above, and that have or could have been asserted
in this cause.
DONE AND ORDERED in Chambers at Naples, Collier County, Florida, this
day of
,2011.
Conformed copies to;
Steven T. Williams, Esquire
Michael R. Whitt, Esquire
Jennifer Dixon.Abbott, Esquire
Kevin Hendricks, Acquisition Mgr.lTransp,
Bookkeeping
HONORABLE HUGH D. HAYES
CIRCUIT COURT JUDGE
JOINT MOTION FOR STIPULATED FINAL JUDGMENT
Petitioner, COLLIER COUNTY, together with Respondent, KB ENTERPRISES OF
NAPLES, LLC, hereby respectfully move for entry of the foregoing Stipulated Final Judgment as
to Parcel Ill.
Dated:
MICHAEL R. WHITT, ESQUIRE
Florida Bar No. 0725020
BECKER & POLIAKOFF, P.A.
12140 Carissa Commerce Court.Suite 200
Fort Myers, FL 33966
(239) 433-7707 - Telephone
(239) 433.5933. Facsimile
ATTORNEY FOR RESPONDENT,
KB ENTERPRISES OF NAPLES, LLC
06w658CA/626
Dated:
STEVEN T. WILLV\MS, ESQUlRE~.(...)...\1
Florida Bar No. 0740101 \.'1.
OFFICE OF THE COUNTY ATTORNEY
Harmon Tumer Building
3299 East Tamiami Trail.Ste. 800
Naples, Florida 34112
(239) 252.8400 - Telephone
(239) 252.6300 - Facsimile
ATTORNEY FOR PETITIONER
COLLIER COUNTY
3
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5/10/2011 Item 16.K.1.
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5/10/2011 Item 16.K.1.
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
COLLIER COUNTY, FLORIDA, a
political subdivision of the State of Florida,
Petitioner,
Case No.: 06-0658-CA
v.
Parcel No.: 111
NB HOLDINGS CORPORATION, et al.
Respondents.
I
MEDIATED SETTLEMENT AGREEMENT
At the Mediation Conference held on May 3,2010, and on November 1,2010, the
parties reached the following Settlement Agreement:
1. Petitioner will pay to Respondent, KB Enterprises of Naples, LLC, the
sum of $ ;J, Q'1 5' {)O. ~ () in full settlement of all claims for
compensation frofn Petitioner whatsoever, including statutory interest and all claims
related to real estate, but excluding attorney's fees, experts' fees, and costs. Said sum
will be subject to claims of apportionment, if any. Petitioner is entitled to a credit in the
amount of $ ,.;; / tiJOCJ. ~o , said amount having been previously
deposited in the 'Registry of the Court in this case by Petitioner. Upon the satisfaction of
the tenns and conditions of this Settlement Agreement and the entry of the Stipulated
Final Judgment in this matter, Petitioner will deposit in the Registry of the Court the sum
of $ Z3,-S; '1()CJ. 00 , representing the difference between the total
settlement sum referenced above and Petitioner's previous deposit referenced above.
2. In addition to the above-referenced settlement sum, Petitioner will pay to
Respondent's attorney $ 1~ l?3'1. 00 in full settlement and satisfaction of
all attorney's fees, including ees related to monetary and non-monetary benefits and
supplemental proceedings, if any, and attorney's litigation costs incurred by Respondent
in this case.
3. In addition to the above-referenced settlement sum and the above-
referenced attorney's fees and attorney's litigation costs, Petitioner will pay to
Respondent's expert witnesses $ "&> -I3j'- "ET~vwl.~ in full satisfaction of
all expert witness costs incurred by Respondent in this case.
EXHIBIT
I ~
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5/10/2011 Item 16.K.1.
4. This Settlement Agreement is subject to and conditioned upon final
approval by the Board of County Commissioners of Collier County.
5. Counsel for Petitioner and Respondent will jointly submit to the Court
a mutually approved Stipulated Final Judgment containing the terms and conditions of
this Settlement Agreement ""ithin ten days following the final approval of this Settlement
Agreement by the Collier County Board of County Commissioners.
6. Attached hereto is an addendum to this Settlement Agreement.
/Yes No
This Settlement Agreement, dated November 1, 2010, contains all of the agreements of
the parties.
endricks ,
on behalf of Pe tioner, Collier County
~~
Attorney for Petitioner
)
~
Michael R. Whitt, Esq.
Attorney fi Res ondent
~~~ ~,~.~.
'PO '" () 7 Vi; 0 "2..D
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5/10/2011 Item 16. K.1.
ADDENDUM TO MEDIA TED SETTLEMENT AGREEMENT
This settlement is made subject to the following additional conditions:
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Mediator
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5/10/2011 Item 16.K.1.
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The cure plan provides a landscape buffer along Radio Road that is 14+/- feet wide. which is
nonconforming to the buffer width requirement (20 feet) but meets the planting requirements
consisting of one (1) tree per 30 linear feet and a double staggered hedge. Because of the
taking and roadway elevation, the remaining area available for landscaping has an extreme
slope which cannot accommodate landscaping. In order to provide a visible landscape buffer
and an appropriately sloped planting area (6.5+/- feet wide). a retaining wall is required to
accommodate the landscaping and minimize impact to the stormwater ditch. Based on a review
of the County's cure plan by Johnson Engineering, Inc., a poured concrete foundation will be
required for the retaining wall.
Because of the need for a retaining wall, the stormwater pond is reconfigured to accommodate
the wall. The reconfigured pond must provide for the same volume of water as in the Before
condition.
The cure plan provides for an emergency vehicle (fire safety) turn-around located at the
previous Radio Road driveway location. This results in no loss of parking spaces. The turn-
around will address the fire safety requirements of Section 58-27; however, it is 155+/- feet from
the entrance; the maximum distance permitted is 150 feet. The proposed plan also provides a
sidewalk connection to Santa Barbara Boulevard.
The cure plan addresses partial mitigation of the impacts of the taking; however,
nonconformities remain relative to the following LDC requirements:
The landscape buffer width along Radio Road is approximately 14 feet; twenty (20)
feet is required.
The subject property's Radio Road business sign is set back 5.5+/- feet; ten (10)
feet is required.
The shopping center's Radio Road sign is set back 3.3+/- feet; ten (10) feet is
required.
The loss of direct access to Radio Road requires the need for a second directory
sign. Only one (1) on-site sign is permitted.
The emergency vehicle turn-around is 155+/- feet from the entrance; 150 feet is the
maximum distance permitted.
Although the LDC provides for legal nonconforming status for the above nonconformities, any
future redevelopment of the site may trigger full compliance with the LDC. This represents a
potential future redevelopment limitation imposed by the taking that was not a constraint in the
Before condition. To seek conformity, compliance with LDC standards would be required or
variances would need to be approved for the above nonconforrnities.
Summary/Conclusions
In the Before condition, the property is improved with a one-story commercial building. As
vacant, the most reasonable use for the site is for commercial uses consistent with the
provisions of the Berkshire Lakes PUD. As improved, the most reasonable use of the property
IS for continuation, of the current use or for other uses permissible in the Berkshire Lakes PUD.
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8
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