Agenda 12/15/2009 Item #16K 2
Agenda Item No. 16K2
December 15, 2009
Page 1 of 11
EXECUTIVE SUMMARY
Recommendation to authorize a Stipulated Final Judgment in the amount of $375,000 for
Parcels 104 and 604 in the lawsuit styled Collier County, Florida v. Highland Properties of Lee
and Collier, Ltd., et al., Case No. 06-0563-CA (Santa Barbara Boulevard Project #62081)
(Fiscal Impact $304,372).
OBJECTIVE: That the Board of County Commissioners authorize the attached Stipulated Final
Judgment for payment of full compensation, for the taking of Parcels 104 and 604 in the lawsuit
styled Collier County. Florida v. Highland Properties of Lee and Collier, Ltd. et. al., Case No. 06-
0563-CA (Santa Barbara Boulevard Project No. 620R]).
-
CONSIDERATIONS: Collier County has condemned 3,523 square feet for road right-of-way and
a perpetual slope easement (Parcels 104 and 604) from 'property owner. Santa Barbara Fuels, Inc.
and business owner Touchless Laser Car Wash, Inc. The subject property is located at the comer of
Radio Road and Santa Barbara Boulevard. A Hess gas station with a convenience store and car
wash was operating on the site at the time of the taking. The COWlty'S initial appraisal dated
January 25,2006, valued the takings at $161,600. Thc County otfcred the owners $16],600 as the
County's statutory offer on January 31, 2006, This offer was not accepted. An updated appraisal,
dated June 30, 2006, reflected an increase in the value of the takings to $162,500. An Order of
Taking hearing was held on July ]R, 2006, and the County deposited the sum of $162,500 in the
Court Registry.
The issues in this case are the value of the land taken and the amount of severance damages to the
remainder as well as the amount of business damages. The County's appraisal found no severance
damages, while the owners' appraisal includes severance damages from both temporary and
permanent loss of parking spaccs due to the owners' claim that they need to relocate the entrance to
the service station/convenience store for safety reasons as wcll as costs to relocate the business sign,
and reestablish the landscape buffer. The owners also cited the visibility of the relocated sign and
convenience of access as contributing to the severance damage. The owners' appraisal valued the
compensation for the taking and damages at $295,000, The owners also made a business damage
claim of $400,000 due to temporary and permanent loss of revenue, fbr a total of $695,000 for the
land taken, severance damages and business damages, as well as a cost to cure to reestablish the
landscape buffer and relocate the sign and entrance to the business. The County made a counter
offer for business damages of $70,000, fc)r a total of $231,600 tlx compensation and business
damages.
On November 18,2009, the paliies mediated the case and reached a settlement of $375,000 for full
compensation to the owners, which includes the property taken, severance damages and business
damages. It should be noted that if the County were unsuccessful at trial, between a potcntial jury
verdict of $695,000, together with the County having to pay both the owners' attomey's fees and
costs, as well as its own trial costs, total expenditures could be several hundreds of thousands of
dollars in excess of the sum the County would be paying iftl1is proposfIlhelllement is approved.
-
Agenda Item No. 16K2
December 15, 2009
Page 2 of 11
Executive Summary
Page Two
Attached is a Stipulated Final Judgment.
following costs:
If approved, the County will he responsible for the
Additional Amount Owed:
"Attorney's fees and costs:
"Experts' fees and costs:
TOTAL
$212,500
$ 58,872
U3,000
$304,372
" Attorney's fees are based on the benefit achieved for the owners beyond the otTers made by the
County for the combined full compensation and business damages. There was a dispute regarding
the amount of the County's business damage counter offer. In order to preclude the expense of
litigating the attomey's fees, a compromise was reached by splitting the difference in the disputed
amount to calculate attorney's fees and costs. This reduces the owners' claim for attorney's fees by
$11,550. The owners' experts included an appraiser, a certified public accountant, a land planner
and an engineer.
FISCAL IMPACT: Funds in the amount of $304,372 are available in Gas Taxes and/or tmpact
Fees.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This itcm is legally sufficient for Board action. RNZ
RECOMMENDATION: That the Board of County Commissioners authorize the Stipulated
Final Judgment as to Parcels 104 and 604, and authorize payment of the funds as stated.
PREPARED BY: Robert N. Zachary, Assistant County Allomey
CP:06.0563.CA;3215
Agenda Item No. 16K2
December 15, 2009
Page 3 of 11
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
16K2
Recommendation to authorize a Stipulated Final Judgment in the amount of $375,000 for
Parcels 104 and 604 in the lawsuit styled Collier County, Florida v. Highland Properties of
Lee and Collier, Ltd., ef aL, Case No, 06-0563-CA (Santa Barbara Boulevard Project #62081)
(Fiscal Impact $304,542),
12/15/20099:00:00 AM
Meeting Date:
Prepa red By
Robert N. Zachary
Assistant County Attorney
Date
County Attorney
County Attorney
12/2/20092:23:58 PM
Approved By
Norm E. Feder, Alep
Administrator ~ Transportation
Date
Transportation Division
Transportation Administration
12/3/200912:52 PM
Approved By
Lisa Taylor
ManagemenUBudget Analyst
Date
Transportation Division
Transportation Administration
12/3/20092:55 PM
Approved By
Robert N. Zachary
Assistant County Attorney
Date
County Attorney
County Attorney
12/3/2009 3: 11 PM
Approved By
Heidi F. Ashton
Section Chief/Land Use-Transportation
Date
County Attorney
County Attorney
12/3/20094:01 PM
Approved By
Najeh Ahmad
Director - Transportation Engineering
Date
Transportation Division
Transportation Engineering &
Construction Management
12/4/20092:30 PM
Approved By
Kevin Hendricks
Manager - Right of Way
Transportation Engineering &
Construction Management
Date
Transportation Division
12/4/20093:20 PM
Approved By
Jeff Klatzkow
County Attorney
Date
12/7/20092:10 PM
Approved By
OMB Coordinator
Date
County Manager's Office
Agenda Item No. 16K2
December 15, 2009
Page 4 of 11
Office of Management & Budget
1217120093:46 PM
Approved By
John A. Yonkosky
Office of Management &
Budget
Director. Management and Budget
Date
Office of Management & Budget
1217/20093:55 PM
IN THE CIRCUIT COURT OF TIlE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
Agenda Item No. 16K2
December 15, 2009
Page 5 of 11
COLLIER COUNTY, FLORIDA, a
political subdivision of the State of Florida,
Petitioner,
Case No. 06-0563-CA
v.
HIGHLAND PROPERTIES OF LEE AND
COLLIER, LIMITED, et aI.,
Parcels: 104 & 604
Respondents.
/
STIPULATED FINAL JUDGMENT
THIS CAUSE having come before the Court upon Joint Motion made by Petitioner,
COLLIER COUNTY, FLORIDA, by and through its undersigned counsel, and Respondents,
SANTA BARBARA FUELS, INC. and TOUCHLESS LASER CAR WASH, INC., by and through
their undersigned counsel, for entry of a Stipulated Final Judgment as to Parcels 104 and 604 for
Project No. 62081, 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 is the full compensation
due the Respondents, SANTABARBARA FUELS, INC. and TOUCHLESS LASER CARW ASH,
INC., and the Court being otherwise fully advised in the premises thereof, it is thereupon
ORDERED AND ADJUDGED that Respondents, SANTA BARBARA FUELS, INC. and
TOUCHLESS LASER CARWASH, INC., have and recover from Petitioner, COLLIER
COUNTY, FLORIDA, the total sum of Three Hundred Seventy-Five Thousand and No/lOO Dollars
($375,000.00) for Parcels 104 and 604, 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 business
damages and all other damages in connection with said parcel; it is further
ORDERED AND ADJUDGED that Petitioner, COLLIER
Agenda Ilem No. 16K2
December 15. 2009
Page 6 of 11
COUNTY, FLORlDA, is
entitled to a credit for the good faith estimate of value previously deposited in the amount of
$162,500.00; it is further
ORDERED AND ADJUDGED that within thirty (30) days of receipt by Petitioner of the
Stipulated Final Judgment entered by the Court, Petitioner, COLLIER COUNTY, FLORIDA, shall
deposit an additional Two Hundred Twelve Thousand, Five Hundred and NollOO Dollars
($212,500) into the registry of the Clerk of the Circuit Court for the benefit of Respondents,
SANTA BARBARA FUELS, INe. and TOUCHLESS LASER CARW ASH, 1Ne.; it is further
ORDERED AND ADJUDGED that disbursement of the funds on deposit shall be by
further order of this Court; it is further
ORDERED AND ADJUDGED that Petitioner, COLLIER COUNTY, FLORIDA, shall pay
to Respondents, as compensation for attorney's fees and costs, Fifty-Eight Thousand, Eight
Hundred Seventy-Two and No/lOa Dollars ($58,872.00), and no other attorney's fees or costs shall
be awarded in this case; it is further
ORDERED AND ADJUDGED that Petitioner, COLLIER COUNTY, FLORlDA, shall pay
to Respondents, as compensation for expert fees and costs, Thirty-Three Thousand and No/IOO
Dollars ($33,000.00), and no other expert fees or costs shall be awarded in this case; it is further
ORDERED AND ADJUDGED that within thirty (30) days hereof, Petitioner shall pay the
total sum of Ninety-One Thousand, Eight Hundred Seventy, Two and Noll 00 Dollars ($91,872,00),
payable to the Foerster, Isaac and Yerkes Trust Account, c/o Fred Isaac, Esquire, 2468 Atlantic
Boulevard, Jacksonville, FL 32207-3564, for disbursement of attorney's fees, expert fees and costs
in accordance with this Order; it is further
ORDERED AND ADJUDGED that a perpetual slope easement, identified as Parcel 604,
and fee simple title to Parcel 104, being fully described in Exhibit "A" attached hereto and
2
Agenda Item No. 16K2
December 15, 2009
Page 7 of 11
incorporated herein, which were vested in Petitioner pursuant to the Order of Taking dated July] 8,
2006, and the deposit of money heretofore made, is approved, ratified, and continued; it is further
ORDERED AND ADJUDGED that the Notice of Lis Pendens filed in the above-styled
cause and recorded in Official Record Book 4017, Page 917 of the Public Records of Collier
County, Florida be dismissed as to Parcels 104 and 604; it is further
ORDERED AND ADJUDGED that pursuant to Section 74,051(4), F.S., the Clerk of
Courts shall disburse the interest earned on the funds on deposit in the amount of$714.31, plus any
additional accrued interest for parcels 104 and 604, to the Board of County Commissioners, account
number 336-163656-62081; it is further
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 Parcels 104 and 604 and that have or could have been asserted in this cause; it is further
DONE AND ORDERED in Chanlbers at Naples, Collier County, Florida, this
day of
,20_.
HONORABLE CYNTIUA A. PIV ACEK
CIRCUIT COURT JUDGE
Conformed copies to:
Robert N. Zachary, Esquire
Kevin Brinkhoff, Esquire
Fred C. Isaac, Esquire
Michael A. Durant, Esquire
Jennifer Dixon-Abbott, Esquire
Mr. David Cll!)'
1. Jeffrey Rice, Esquire
Mr. William O'Connor
Kevin Hendricks, Transportation/ECM
Jennifer A. BOllifield, Esquire
3
,^,genda Item No. 16K2
December 15, 2009
Page 8 of 11
JOINT MOTION FOR STIPULATED FINAL JUDGMENT
Petitioner, COLLIER COUNTY, FLORIDA, together with Respondents, SANTA
BARBARA FUELS, INC. and TOUCHLESS LASER CAR WASH, INC., hereby respectfully
move for entry of the foregoing Stipulated Final Judgment as to Parcels 104 and 604,
Dated: ~! 1-l 0 (
)!:~Cb</
Dated:
FRED C. ISAAC, ESQUIRE
Florida Bar No, It 91 32
FOERSTER, ISAAC AND YERKES
2468 Atlantic Boulevard
Jacksonville, Florida 32207-3564
(904)396-1900 - Telephone
(904)396-0921 - Facsimile
ATTORNEY FOR RESPONDENTS,
~
ROBERTN, ZACHARY
Florida Bar NO.8] 6604
ASSISTANT COUNTY ATTORNEY
Harmon Turner Building, 81h Floor
330] East Tamiami Trail
Naples, Florida 34112
(239) 252-8400 - Tekphone
(239) 252-6300 - Facsimile
ATTORNEY FOR PETITIONER
and
M]CHAEL A. DURANT, ESQUIRE
Florida Bar No, 468045
CONROY, CONROY & DURANT, P,A.
2210 Vanderbilt Beach Road, Suite 1201
Naples, Florida 34109
(239)649-5200 (Telephone)
(239)687-1976 (Direct Phone)
(239)649-8140 (Facsimile)
4
Agenda Item No. 16K2
December 15, 2009
Page 9 of 11
SERVICE LIST FOR PARCELS 104 & 604
Collier County v Highland Properties of Lee and Collier, Limited, et al.
Santa Barbara Fuels, Inc.
T ouchless Laser Carwash, Inc.
Michael A. Durant, Esquire
2210 Vanderbilt Beach Road, Suite 1201
Naples, FL 34109,8721
and
Fred C. Isaac, Esquire
FOERSTER, ISAAC AND YERKES
2468 Atlantic Blvd.
Jacksonville, FL 32207-3564
Zomoi, Inc. d/b/a Ace America's Cash Express
c/o David Cary, Registered Agent
11325-C Del Prado Blvd" South
Cape Coral, FL 33990
U. S. Home Corporation
c/o J. Jeffrey Rice, Esquire
GOLDSTEIN, BUCKLEY, CECHMAN, RICE & PURTZ, P.A.
POBox 2366
Fort Myers, FL 33902
Countryside Master Association, Inc,
c/o William O'Connor, Registered Agent
600 Countryside Drive
Naples, FL 34104
Inland Southeast Countryside Limited Partnership
c/o JenniferA. Bonifield, Esquire
BONIFIELD LAW, PA
1025 Professional Park Drive
Brandon, FL 33511
Collier County Tax Collector
c/o Jennifer Dixon-Abbott, Esquire
RHODES TUCKER & GARRETSON
POBox887
Marco Island, FL 34146
CPo 06-0563-CA;3214
r
5
,
I
Agenda Item No. 16K2
December 15. 2009
Page 10 of 11
-.I
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., II
' I
\ PRQPOSCD R,O W --- II
\ COUNTTr't'SlDE A r. BERKSHRE
LAKcs'SEC11ON J..1R.tCT 11.
pur 800K 14. PACES 6-8
FEE SIM
Sf:
PARCEl. 104
RIGHT OF WAr
2.7/4 SQl/Af/E
D,R. BOO/( 2214'1~ O.R. 8001< 21JI,
PACE 1656 ~ . PArr 1~
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PLAT BOOK 14, PACEs 118 f20
O.R 800K 2719,
PAr;r 9.17
OUTPARCa 000"
::0
!i2
b
i'
EXISTING 100' P.O.B.
R,O. If. !-I.E. CORNER
(T TRACT II
EAST UNE OF SECTION S
5 J2
4 JJ
SANTA BARBARA BOULEVARD
EXISTING 101/
R.aw'
LEGAL DESCRIP710N
PARCEl. 101
ALL THAT PART OF THE LANO OESCRIBEO IN OFFICIAL RECOROS BOOK 21J1, PAG[ 1959.
BEING PART OF COUNTRYSlOe AT 8EfII<SHJRe LAKES SECTION J. TRACT I/, PLAT BOo!( 14,
PAGeS 6-8, COLUERiCOI/NTY. FLORIOA, AND BEING MORE PARTICUlARLY D[SCRIBt:o AS FOLLOWS;
BEGINNING AT TH[ Ni:!RTH[AST CORNER OF TRACT 11. COUNTRYSlDE.AT BeRKSHIRE LAKES, SECTlDN THRee.
PUT BOOK 14, PAGES,6-B, COWu/ COUNTy' FLORIDA;
THeNCE ALONG THe EAST LINE or SAID TRACT 11 SOUTII 01'C2'1S" EAST 26.17 FfIT;
THCNCE NORTH 71'15'44' IVCST 32,28 FCCI;
THENCE NORTH 89'36'22' IVCST 129.62 FECI;
THCNCE NORTH 01"02'15" WEST 16.01 FECI TO THE NORTH LINE or SAIO TRACT 11;
THENCE ALONG SAlO NORTH LINE SOUTH 89'36'22" EAST 160.00 FEET TO' THe POINT OF BeGINNING.
CONTAINING 2.714 softARE FEa. MORE OR LESS.
SUBJECT TO EASEMeNTS AND RESTRICTIONS OF RECORD,
EXHIBIT A
**; Page2.. of..1QJ.
LEGEND:
~ RIGHT OF WAY
R.D.W.w RICHT OF WAY
P. as. . POINT OF BeGINNING
LINE TA8lE
UNf BfARfNG
L1 501'02'15
LZ N7t1S'44-W
fJ N8!rJ6'2rw
[4 Nor ',s.w
DISTANCE
26.17'
32.28'
r 9.62'
16.01'
.
UJ{CE . Ui.1ER. OVA' .'ilA'i'1fnl\' &: MAPPER
FlCRfOA. RRilSTRA 7TON l.S /5527
Nor VAliD UNLESS SlCNto 8r lH~ SURIf"lU'i' AND
SEAt..ro 1H11f THC SURIf"YOR~ fJ.I90SSfl> SCAL
CERF1f1CATE OF AUTHOI?IZA71ON # lB-4J
totrc; Ha~ 62081 I'AllClt. r;a. : 104-
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.
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smIll(Wl)1at~W'ltIII:.
REVISED 9-21-0-1 l TlJ
REIITSfD 9-29-05 CPRL 857
. -, COLUER COUNTY TRANSPORT A TlON.
E:NGINE:ERING &: CONSTRUCTION MANAGEMENT DIV/510N
'm~t. SKE:TCH AND DESCRIPTION'
BEiNG PAf?l OF PItRCQ DESCRlSaJ IN
OI"FJC/AL R~COR{)S BOOK 21.]1, PA.~ fS59,
COLVER COUNTY. FLORJDA
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PfRPrnJAL Sl.OPE
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al? BOOK 22'4. i O,R. BOO/( 11J1:
PACE IS56 ~l PAGE ,g"g
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EX/STING 100'
R,O,W, .',
(
Agenda Item No. 16K2
December 15, 2009
Page 11 of 11
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PAGE gJ7
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:a
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., J,]
SANTA BARBARA BOULEVARD
LeGAL DE:SCRIPT1(JN
PARCEL 604
AU THAT PART OF rHf LAND DfSCR/BEV IN OFF1aM. IIfCOROS BOOK 2131, PAGf 1959, 8F:JNG PART OF COUNTF/'ISIDI'
AT 8F:f1KSHlllf LAKI'SStCT/ON J, TRACT I, PUoT BOOK H, PAGfS 6-8, COWfll COUNTY, FLOR/DA, AND 81'1NG MORE
PARTlClJU.RLY DfSCI/IBI'O AS FOllOWS;
co/'(IIF:NCING AT THf NORTlfF:AST CDRNF:J/ OF TRACT II, CO/lNTRYSIIIF: AT BfRKSHlRf LAKES,
SecTION TIIl/II, PI.A T,BOOJ( H, PAGtS 6-8, cauF:J/ COUI/TY, FLORIDA; .
TliF:IVCE ALONG TIfF: fAST LINE OF SAID TRACT II SOIIT// 0/'02'1" fAST 26. 17-FI'U ro TliE POINT OF BEGINNIN(;;
TI/F:NCF: CONTINUf ALONG SAID <AST LINE SOUTH Or02'IS" EAST S.JI FEU;
THENCE NOK11I 71'15'44" wc.rr JJ.2' FrrT;
THENCE: NORTH 89'J6'22" IIFST 12S,68 FEU;
THENCE NORTH 0I'02',S' WEST 5.00 FrrT;
THENCE SOUTH S9"J6'U" WT /29.62 FEU;
THmCf SOIIT// '/'/5'44' WT J2-28 FrrT TO THE POINT OF Bt:GINN/NG.
CONTNNING B09.0 SOWlE FIB, MORE OR LfSS.
SUBJECT 'TO !'AIDII'NIS AND REST1IICTlONS tR IT A
... NOT.A ... Pagel of...1f!.l
MfPARfD 8~.
LEGEND,
"""" ""''' 'i PI1IPrn1A/. SlOPE EASCJIENT
~ RIGHr OF' WAY TAKJNC
UHCE,'/4/,CII, ~S1A1'fYll'/"1IAPI'ER ~
Fl,0RII1A RCGlSlRAfIoN.t,S'p62' R.O.II( . ///CHT OF WAY
NOT \lAUD UNl.ESS S1CNU) iJr TN( 5UR\If.1'tW AND ~__..-., P.o.s.. PaNT OF BEGJNHTNC.
~ALED MfTH rH€ SURllf1'VR'S E1IBrmED S&\L ===-~'=Ir R015aJ 9-21-04. 1.TJ/
CERF7F1CATf OF AU'1HfRfzAnDN L8-1J SlSIIII'tWJlmft-'UAIl'll:\flt RorSfD 9-1SJ-05 GPRL 857
-... ''''' 62081 . """.... 60+ ..... COWER Cot/NIT llMNsPORTA110N,
M~~I/IMW -.., - ENGINOFRING '" CONSlRUCl1ON MAN....GEMENT D/YlSlON
'. " 'all """ SKETCH ....ND DEScRIPTION
'J Il Iii. BEING PART OF PARCEL D€SCRJfJED IN
..............~ '~'''''''''~..AnNc'''~''CadMII OFnaAL RECORDS BOOK 2ISl,.PACE 19~9,
ItIIcrlWw: M crx.t.Jf:R COLW1Y, FLORIOJ.
_.1lIt1olllr................r... !)Alt:,. ~t 110.1 5f1UTHlJUlWl: 'UllIU
-_~.......IIl:fMIMIIHIll'.....~.IIC~................._ n4hnn~ "'''tJ':n_fln?_mn-rro-rlW=' t/UA nF' WY "1"'1'" ..."...
UNE
LI
l2
LJ
Lf
L5
L'
L7
DISTANCE
.fl'
J'
7'
18.68'
,00'
19.62'
32.28'