Agenda 12/13/2011 Item #16K 612/13/2011 Item 16.K.6.
EXECUTIVE SUMMARY
Recommendation to approve a Stipulated Final Judgment in the amount of $35,650 for 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 #60092). (Fiscal Impact: none at this time).
OBJECTIVE: That the Board approve a Stipulated Final Judgment for the taking of Parcels I I IFEE
and 11 ITCE in the lawsuit styled Collier County v. A L Subs, Inc., et al., Case No. 09- 3691 -CA, Collier
Boulevard Project 960092.
CONSIDERATIONS: Collier County condemned Parcels I I IFEE and I I ITCE from property owner,
Circle K Stores, Inc. and business owner, Petro Gate, Inc. Parcel 111FEE, acquired in fee simple,
measures approximately 9 feet in depth along Beck Boulevard and covers 911.75 square feet. Parcel
IIITCE, a temporary construction easement, measures 5 feet wide and covers 592.94 square feet. The
County acquired the subject parcels by Order of Taking on September 17, 2009 and depositing the
required $35,650 into the Court Registry.
A Shell gas station, including a retail store, currently operates on the parent tract. The primary issues in
this case are the County's closure of the exit only driveway onto Beck Boulevard and the reduced
landscape buffer which becomes a legal non - conforming use. The business owner filed a business
damage claim of $1,680,000. Through negotiations, Circle K and Petro Gate have agreed to accept the
funds on deposit and waive business damages, and the County has agreed to allow reconstruction of an
exit only driveway onto Beck Boulevard. The Stipulated Final Judgment is also conditioned upon the
following: (1) the County shall pay for the design and construction of an exit only driveway onto Beck
Boulevard; and (2) the County will allow the one foot landscape buffer to remain in accordance with
Section 9.03.07 of the LDC. Respondents have also waived attorney fees for non - monetary benefits, but
the attorneys will be paid reasonable attorney fees based on hourly rates by further order of the Court.
Staff recommends this settlement because it is reasonable and the County is not expected to achieve better
results at trial. If approved, the County will be responsible for the following costs:
Additional Amount Owed: To be determined (design and construction of exit driveway)
Reasonable Attorney Fees: To be detennined
Expert Witness Costs: To be determined
TOTAL $ 35,650 (credit)
FISCAL IMPACT: Funds in an amount to be detennined are available in gas taxes and impact fees.
Source of funds are Gas Taxes and Impact Fees.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item is legally sufficient for Board action. This item requires a
majority vote. (HFAC)
RECOMMENDATION: That the Board of County Commissioners approve the Stipulated Final
Judgment and the expenditure and disbursement of funds as stated.
PREPARED BY: Heidi Ashton - Cicko, Assistant County Attorney
Attachments: 1) Stipulated Final Judgment; 2) Aerial of Subject Property
CP \09- 3691 \4833
Packet Page -3725-
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.6.
12/13/2011 Item 16.K.6.
Item Summary: Recommendation to approve a Stipulated Final Judgment in the amount
of $35,650 for 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 #60092). (Fiscal Impact: none at this
time).
Meeting Date: 12/13/2011
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
11 /10 /2011 2:44:35 PM
Approved By
Name: BellowsRay
Title: Manager - Planning, Comprehensive Planning
Date: 11/10/20113:00:54 PM
Name: PutaansuuGary
Title: Project Manager, Principal,Transportation Engineer
Date: 11/14/20118:21:11 AM
Name: HendricksKevin
Title: Manager - Right of Way,Transportation Engineering
Date: 11/14/20113:30:43 PM
Name: TaylorLisa
Title: Management/Budget Analyst,Transportation Administr
Date: 11/17/2011 7:42:37 AM
Name: FederNorman
Title: Administrator - Growth Management Div,Transportati
Date: 11/17/2011 10:20:44 AM
Name: AshtonHeidi
Title: Section Chief/Land Use- Transportation,County Attor
Packet Page -3726-
Date: 11/17/2011 1:34:53 PM
Name: KlatzkowJeff
Title: County Attorney,
Date: 11/23/2011 11:03:34 AM
Name: UsherSusan
Title: Management/Budget Analyst, Senior,Office of Manage
Date: 11/28/2.0113:07:46 PM
Name: OchsLeo
Title: County Manager
Date: 11/29/20114:08:29 PM
Packet Page -3727-
12/13/2011 Item 16.K.6.
12/13/2011 Item 16.K.6.
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
COLLIER COUNTY, apolitical
subdivision of the State of Florida,
Petitioner,
Vs.
A L SUBS, INC., et al,
Respondents.
Case No.: 09- 3691 -CA
Parcels. I I I FEE, 111TCE
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 111FEE and 111TCE, and it appearing to the Court that the parties are 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 -Five
Thousand Six Hundred Fifty Dollars and No /100 ($35,650.00) 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
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12/13/2011 Item 16.K.6.
ORDERED that the Court reserves jurisdiction to award, reasonable attorney fees
based on reasonable hourly rates, and expert fees and costs; it is further
ORDERED that Respondents, CIRCLE K STORES, INC. and PETRO GATE, INC. have
agreed to waive any attorney fees for non - monetary benefits; it is further
ORDERED that Petitioner, COLLIER COUNTY, FLORIDA, is entitled to a credit in the
amount of Thirty -Five Thousand Six Hundred Fifty Dollars and No /100 ($35,650.00) which
was deposited into the registry of the Clerk of the Circuit Court toward the acquisition of Parcels
111FEE and 111TCE at which time title to said parcels as described in Exhibit "A" vested in the
name of Petitioner; it is further
ORDERED that disbursement of the sums on deposit shall be by further order of this
Court; it is further
ORDERED that in accordance with Section 9.03.07 of the LDC, the taking of Parcel
111 FEE does not render the improvements on the parent tract illegal, non - conforming structures.
In the event there is damage to the existing gas station improvements on the Remainder Tract
due to a natural disaster or acts of third parties (collectively referred to as "natural disaster "),
Respondent may construct a post disaster gas station and/or signage and multi -pump dispensers
(collectively referred to as "site improvements ") on the Remainder Property in the existing
building and improvement footprint as shown on the Site PIan prepared by Super America of
Florida, Inc. dated March 18, 1991 and approved on May 16, 1991, attached as Exhibit B, even if
the proposed improvements are equal to or in excess of 50% of its replacement value; it is further
ORDERED that the non- conforming one foot landscape buffer along Beck Boulevard
does not create an unsafe condition and it may remain after the taking of Parcel 111 FEE in
accordance with Section 9.03.07.C.2 of the LDC, until the site is combined with another lot or
the owner voluntarily elects to remove the building and redevelop the site. Said non - conforming
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12/13/2011 Item 16.K.6.
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 and/or 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 111FEE, a Fee Simple Interest, and Parcel 111TCE, 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 111 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 1611, 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
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12/13/2011 Item 16.K.6.
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 action and recorded in Official
Record Book 4448, Page 3045, et seq., of the Public Records of Collier County, Florida be
dismissed as to Parcels 111 FEE and 111 TCE; it is further
ORDERED that this Stipulated Final Judgment is to be recorded in the Official Records
of Collier County, Florida; it is therefore
DONE AND ORDERED in Chambers at Naples, Collier County, Florida this
day of , 2011.
Conformed Copies:
CYNTHIA A. PIVACEK
Circuit Court Judge
Heidi Ashton -Cicko Esquire
Lorena Hart Ludovici, Esquire
Thomas R. Bolf, Esquire
Jennifer Dixon - Abbott, Esquire
Shell Oil Company
Toll Gate Commercial Center Property Owners Assn., Inc.
Kevin Hendricks, Transportation ROW Acquisition Manager
Bookkeeping
4 of 5
Packet Page -3731-
12/13/2011 Item 16.K.6.
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 111 TCE.
)6MNA %�XrLVDOVIC4 ESQUIRE
Florida Bar No.: 847062
GAYLORD MERLIN LUDOVCI DIAZ
& BAIN
5001 W. Cypress Street
Tampa, Florida.. 33607 -3887
Telephone: (813) 221 -9000
Facsimile: (813) 221 -9030
ATTORNEY FOR RESPONDENT,
CIRCLE K STORES, INC.
. trra r a.
OMAS R BOLF, 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
ATTORNEY FOR RESPONDENT
PETRO GATE, INC.
Dated:
N5�c
HEID>t ASHTON- CICKO, ESQUIRE
Florida Bar No.: 966770
COLLIER COUNTY ATTORNEY'S OFFICE
3299 East Tamiami Trail, Suite 800
Naples, Florida 34112
Telephone — (23 9) 252 -8400
Facsimile —. (239) 252 -6300
ATTORNEY FOR PETITIONER,
COLLIER COUNTY
Attachments: Exhibit A - Legal Description
Exhibit B —Site Plan
Exhibit C — Construction Plans
CM- 36414826.
5 of 5
Packet Page -3732-
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SECTION 34
SECTION 3
12/13/2011 Item 16.K.6.
I
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Parcel 111 FEEHfPIT
—
TOLLGATE I
CENTER
WERCK.
E TWO
Pi - of
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5ECTION 35
--- ' • $ECT1011 2
DAVIS ROUt.EVNtO
LINE TABLE
LINE
I LENGTH
I BEARING
L1
6.96
0 •4 "
L2
6.36
ate' rw
FEE SIMPLE
INTEREST
PARCEL, 111 FEE
A portion of Tract 6, Tollgota Commercial
Center Phase Two, as recorded in Plot
Book 16, pages 23-24 of the Public
Records of Collier County, Florida. Being
more particularly described as follows;
Beginning at the southwest cornea of said
Tract 5; thence North 0(703'48" Walt
along the west line of void Tract 8. a
distance of 6.88 feet; thence South
89'43'3x' East, a distance of 105.21
feet; thence South 00'16'28` West, a
distance of 8.36 feel to a point on the
south lima of said Tract 5 said point also
lying on the North right -of -way line of
said Davis Boulevard; thence South
89'56'12" West otong sold South line, a
distance of 105.16 feet to the POINT OF
BEGINNING,
Containing 911.75 square feet, more or
leas.
RLY,t REVISED TO CHANCE PARCEL WE 01/10/05
te2►Ixlu.
s 21 se t o lee
CRAPHIC SALE
NOTES:
1. This is not a survey.
Z. Bolin of bearing 14 the East time al
Section 34, Township 49S., Range 26E., Collier
County, Florida, Ming N 0+729'29" W, Florida
State Plons Coordinates NAP 63/90, East
Zone.
3. Subject to easements, reservations and
restrictions of record,
4. Eosernatits shown hereon are per plot,
unless otherwise noted.
5. Dimensions are in feet and decimals
thereof.
5, Ctrtificale of authorisation LB 43,
7. R/W represents Right -of -Way.
8. P.0.11, etpresents Point of Beginning.
U. P.O.C. represents Point of Commencement.
10. O.R. roprassnts Official Records.
11. L.B.E. represents Landscape Buffer
Ea nmertt,
12. I.I.E. represents Utility Eoaoment,
13. F.P.L.E. represents Florida Power & Light
EasemsnL
14. O.E. represents Drainage Easement.
15. S.E. represents S;oewola Easement.
T6. P.U.E. represents Public Utility Easement.
DAVID J. r W . (FOR THE FIRM)
FLA. UC. WIS. 3634
NOT VALID WITHOUT THE SIGNATURE AND THE
ORIGINAL RAISED 5EAL OF A FLORIDA LICEN5ED
SURVEYOR MO MAPPER
This is NOT a Survey.
ZMITLA At
A PORTIONaOFIr-rfun Ve• YANULL All t116 wilsoiN mer
SECTION 35, TOWNSHIP 49 S., RANGE •26 E.,
COLLIER COUN Y FLORIDA w ......,,.„..s•r . w. s.wr.w rie"r.r.e ".awe.
TIM 00011 mlaett on GHM ten ow rw PPOt= er
TAO Dili IC -49 11601 Ill mar t C -49 C800 0 R
Jot• 10, 1=4 - 13:53'.17 M580RNEht \SU8\ce1i"r eH�CM2Mrg1 \IC- �e\IC -le- ►174 Ave
Exhibit A
Packet Page -3733-
n
IN Tq
LLE
Parcel 111 TCE
+.
BEARINC
TOLLGATE a 41111MCRCIAL
5.25
r-,
I CENTER E TWO
23-24)
5. 0
N 0 3' 4 W
L3
o
V yt
41
I
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>
TWAT , 1 !
11.35
+�
Tao' o.L-4
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SECT1t)N 35 ►oc
SECTION 2
SECTION 3
DAVIS BOULEVARD
M
IN Tq
LLE
LINE
LENGTH
BEARINC
L1
5.25
N C '4 'W
L2
5. 0
N 0 3' 4 W
L3
lJ.J6
L4
5.00
N 54 '3 W
L5
11.35
NO.17181FE
PARCEL 111 ICE
A portlen of Treet 11, Tollgate Commercial
Center Phase Two, as recorded in Plot Bock
10, pages 23 -24 of the Public Records of
Collier County, Florida. Being more particularly
described as follows;
Commencing of the southwest corner of said
Tract 6; thence North 0t703'4r West along the
West fine of sold Tract 6, a distance of 8.96
feet to the POWT OF BEGINNING. thenes
aonllnuing along sold West line North 0003'46'
West• o distance or 5.00 fsetl thence South
8543'32' East, a distance of 110.24 feel;
thence South 0016211' West, a distonoe of
IS,35 lee% to o point on %he South Tine of
Paid Tract 6 said point also lyinq on the North
right -of -way line 61 Davis Boulevard; thence
North 8g'43'32' West along void South tins and
sold North right -of -way line, o distance of
5.00 feel: thence North 0016'16" East, a
distance of e.35 feet; thence North 88'43'32 -
Wes1, o distance of 105.21 het in the POINT
OF BEGINNING.
Contofning 592.94 square leat, more or less
12/13/2011 Item 16.K.6. ■
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GRAPNC SCALE
NOTES;
1. This is not a aurvey,
2. Basis of bearing Is the Cost line of
Section 34, Township 465„ Range 25E., Collier
county, norida, wing N 0029'29" W, Florida
State Plane Coordinates NAD 113/60, East
Lone,
3. Subject to easements, rasefvatlons and
reslricllons of record.
4. Easements shown hereon are per plot,
unless athsrwise noted.
S. Dimensions are in fact and decimals
thereof,
6. Certl5cute of ouihori =otlon LB 43.
7. R/W represents Right -ol-Way,
S. P.O.B. represents Point of Beginning.
9. P.O,C. represents Point of Commencement.
10, O.R. represents Official Records.
11. L.M. represents Landscape Buffer
Easement.
12. u.E, represents Utilityy Easement.
1a. F.PA4E. represents rlorido Power x light
Easement.
14. D.E. repreeenls Drainage Easement.
15. S.E. rspretents Sidewalk Easement.
16. P.U.E. represents Public UUlity Eoaement.
TEMPORARY
CONSTRUCTION EASEMENT
DURATION YEARS. /
DAVID J. HYA , P.. FOR THE FIRM)
FLk LIC. NO.
NOT VALtO WITHOUT THE SIGNATURE AND THE
ORIGINAL RAISED SEAL OF A FLORIDA LICENSED
SURVEYOR AND MAPPER
ACYA REVISED TO CetANt:C PARCU. W44V AND PWINCS NI DESCRIPTION 01/10/0e Th1s Ia NOT s Survey.
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