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Agenda 05/10/2016 Item #16K 15/10/2016 16.K.1. /� EXECUTIVE SUMMARY Recommendation to approve a Joint Motion and Final Judgment in the amount of $455,000.00 for total compensation owed for the taking of Parcels 119FEE and 119TCE in the case styled Collier County v RTG, LLC, et al., Case No. 13 -CA -259 required for the construction of improvements to the intersection of US41 and Collier Boulevard, Project No. 60116. (Fiscal Impact: $ 339,800.00) OBJECTIVE: To settle full compensation owed for the taking of Parcels I I9FEE and 119TCE, which was required for the construction of at -grade improvements to the intersection of US -41 and Collier Boulevard, Project No. 60116 (hereinafter referred to as the "Project"). CONSIDERATIONS: Parcel 119FEE is a taking of right -of way in fee simple, containing 4,241 square feet, more or less, from a 1.74 acre parent tract owned by ABC Liquors, Inc ("ABC"). Parcel 119TCE is a 1,911 square foot temporary construction easement taken from the same parent tract. See the attached location map for reference. On March 26, 2013, an Order of Taking was entered with the Circuit Court in favor of Collier County; and shortly thereafter a good faith estimate of value in the amount of $115,200 was deposited into the Court Registry, securing title and possession of the right-of-way for the County. ABC countered with a claim for full compensation in the amount of $1,550,900, including $1,395,000 in severance damages. Its severance damage claim was based in large part on its contention that the County had taken enough property at the intersection to someday build a grade -separated overpass which they contended would diminish their access and exposure to motorists. Then, on September 22, 2014, in an effort to settle the case, the County extended to ABC an Offer of Judgment in the amount of $250,001. ABC rejected the Offer of Judgment and again pressed for additional compensation stemming from the construction of an overpass at the intersection. Thereafter, on August 10, 2015, a hearing was held on a Motion in Limine filed by the County to exclude as "speculative" any testimony by ABC's experts at any jury trial related to "overpass damages." Collier County received a favorable ruling from the judge at that hearing. As a compromise, ABC dropped this claim as part of the settlement, preserving the right to bring a future claim with respect to an overpass, if and when built. Later, through continued negotiations by the representatives of the parties, a settlement proposal was agreed to by ABC which would compensate them in the amount of $455,000 including all expert costs and attorney fees. If this settlement is approved by the Board, the County will be required to pay an additional $339,800.00 to ABC in this case. The County Attorney's Office and staff recommend approval of this item since a better result is not expected from a jury trial which could easily result in a burden of several hundred thousand dollars in costs for which the County would be statutorily responsible. Upon approval, the Packet Page -1245- 5/10/2016 16.K.1. County Attorney's Office will file the attached Joint Motion for Final Judgment with the Circuit Court. GROWTH MANAGEMENT IMPACT: None. FISCAL IMPACT: Funds in the amount of $339,800.00 will be paid from gas taxes and/or impact fees from the US -41 / Collier Boulevard Intersection Improvement Project #60116. The primary funding source for the acquisition of right-of-way is impact fees. Should impact fees not be sufficient within a particular project, the secondary funding source will be gas taxes. LEGAL CONSIDERATIONS: This item has been approved as to form and legality and requires a majority vote for Board approval. — ERP RECOMMENDATION: To approve the attached Joint Motion for Final Judgment and authorize the payment of funds as stated herein. Prepared By: Emily R. Pepin, Assistant County Attorney and Kevin Hendricks, Right -of -Way Acquisition Manager Attachments: (1) Proposed Joint Motion for Final Judgment (2) Aerial of Parcels 119FEE and 119TCE Packet Page -1246- 5/10/2016 16.K.1. COLLIER COUNTY Board of County Commissioners Item Number: 16.16. K. 16. K. 1. Item Summary: Recommendation to approve a Joint Motion and Final Judgment in the amount of $455,000 for total compensation owed for the taking of Parcels 119FEE and 119TCE in the case styled Collier County v. RTG, LLC, et al., Case No. 13 -CA -259 required for the construction of improvements to the intersection of US -41 and Collier Boulevard, Project No. 60116. (Fiscal Impact: $ 339,800) Meeting Date: 5/10/2016 Prepared By Name: AllenDebbie Title: Legal Office Administrator, CAO Office Administration 4/28/2016 3:14:11 PM Submitted by Title: Assistant County Attorney, CAO Litigation Name: PepinEmily 4/28/2016 3:14:12 PM Approved By Name: AhmadJay Title: Division Director - Transportation Eng, Transportation Engineering & Construction Management Date: 4/29/2016 7:14:24 AM Name: HendricksKevin Title: Manager - Right of Way, Transportation Engineering & Construction Management Date: 5/2/2016 9:27:51 AM Name: MarcellaJeanne Title: Executive Secretary, Transportation Administration Date: 5/2/2016 9:31:08 AM Name: PepinEmily Title: Assistant County Attorney, CAO Litigation Packet Page -1247- Date: 5/2/2016 9:32:08 AM Name: KlatzkowJeff Title: County Attorney, Date: 5/2/2016 9:51:48 AM Name: UsherSusan 5/10/2016 16.K.1. Title: Management/Budget Analyst, Senior, Office of Management & Budget Date: 5/2/2016 1:39:02 PM Name: CasalanguidaNick Title: Deputy County Manager, County Managers Office Date: 5/2/2016 2:57:39 PM Packet Page -1248- v CD v ou CD N N -P lD Cal O N O 07 5/10/2016 16.K.1. IN 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, RTG, LLC, a Nebraska limited liability company; et al., Respondents. Case No.: 13 -CA -259 PARCELS: - 119FEE and 119TCE PETITIONER COLLIER COUNTY AND RESPONDENT ABC LIQUOR, INC.'S JOINT MOTION FOR ENTRY OF STIPULATED FINAL JUDGMENT COMES NOW, Petitioner, COLLIER COUNTY, FLORIDA, and Respondent, ABC LIQUORS, INC., by and through their undersigned counsel, and hereby respectfully move for entry of the Stipulated Final Judgment as to Parcels 119FEE and' 19 E, attached hereto as Exhibit "I'> CRAIG B. WILLIS, ESQUIRE A. Tl RT .RD AN, ESQUIFE Florida Bar No. 257656 tt Iorida No. 434 0 94 Fixel & Willis Fishback, omim nett, Ardaman, 211 S. Gadsden Street Ahlers, Langley & Gellert' LLP Tallahassee, FL 32301 1947 Lee Road Telephone: (850) 681-1800 Winter Park, FL 32789-1834 ewillis@fixelwillis.eom Telephone: (407) 425-2786 ecrossley@fixelwillis.com ardaman@fishbacklaw.com CO -COUNSEL FOR PETITIONER erconley@fishbacklaw.com michellel@fishbacklaw.com COUNSEL FOR RESPONDENT ABC LIQUORS, INC. Packet Page -1250- 5/10/2016 16.K.1. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Joint Motion for Stipulated Final Judgment was electronically filed with the Florida Courts E -Filing Portal which will send a notice of electronic filing to the following: Counsel for Respondent ABC LIQUORS, A. Kurt Ardaman, Esq., Fishback, Dominick, Bennett, Ardaman, Ahlers, Langley & Geller, LLP, ardaman@fishbacklaw.com; crconley@fishbacklaw.com; michellel@fishbacklaw.com; Counsel for Respondent RTG, LLC, D. Tobyn DeYoung, Esq., tobyn@deyoungfirm.com; grace@deyoungfmn.com and service@deyoungfirm.com; Counsel for Respondent HOLIDAY CVS, LLC, Mark Buell, Esq., buell@belawtampa.com; mallory@belawtampa.com and faircloth@belawtampa.com; Counsel for COLLIER COUNTY TAX COLLECTOR, Charles PT Phoenix, Esq., cptp@rhodestucker.com and kv@rhodestucker.com; and Co -Counsel for Petitioner COLLIER COUNTY, Emily R. Pepin, Esq., County Attorney's Office, emilypepin@colliergov.net; jenniferbelpedio@colliergov.net; nancybradley@colliergov.net; on this day of , 2016. CRAIG B. WILLIS Packet Page -1251- 5/10/2016 16.x.1. Exhibit "1" to Joint Motion for Stipulated Final Judgment IN 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. RTG, LLC, a Nebraska limited liability company; et al., Respondents. Case No.: 13 -CA -259 PARCELS: 119FEE and 119TCE STIPULATED FINAL JUDGMENT THIS CAUSE having come before the Court upon the Joint Motion made by Petitioner, COLLIER COUNTY, FLORIDA, and Respondent, ABC LIQUORS, INC., by and through their undersigned counsel, for entry of a Stipulated Final Judgment as to Parcels 119FEE and 119TCE, for Project No. 60116, 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 to Respondent, ABC LIQUORS, INC., and the Court being otherwise fully advised in the premises thereof, it is thereupon ORDERED AND ADJUDGED that Respondent, ABC LIQUORS, INC., has and recovers from Petitioner, COLLIER COUNTY, FLORIDA, the total sum of FOUR HUNDRED FIFTY-FIVE THOUSAND AND NO1100 DOLLARS ($455,000.00) for Parcels 119FEE and 119TCE, as full payment for the property interest talcen and for damages resulting to the remainder, and for all other damages, Packet Page -1252- 5/10/2016 16.K.1. statutory interest, attorneys' fees, and expert fees and costs in connection with said parcels; it is further ORDERED that Petitioner COLLIER COUNTY, FLORIDA is entitled to a credit of ONE HUNDRED FIFTEEN THOUSAND TWO HUNDRED AND NO/100 DOLLARS ($115,200.00) previously deposited into the Court Registry; it is further ORDERED that within thirty (30) days of entry of this Stipulated Final Judgment, Petitioner shall pay the total sum of THREE HUNDRED THIRTY-NINE THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS ($339,800.00) to the Fishback, Dominick, Bennett, Ardaman, Ahlers, Langley & Geller LLP Trust Account, c/o A. Kurt Ardaman, 1947 Lee Road, Winter Park, FL 32789-1834; it is further ORDERED that this Order disposes of all claims arising out of the taking of Parcels 119FEE and I I9TCE, and that have or could have been asserted in this cause, except as provided herein; it is further ORDERED that Respondent, ABC LIQUORS, INC.'s claim for damages resulting from a grade separated overpass of C.R. 951 over U.S. 41 is preserved until such time as the Petitioner, COLLIER COUNTY, FLORIDA, its contractors, privies, employees, partners, or agents commences construction of the overpass, if at all. This Stipulated Final Judgment is based upon the construction plans for the current construction project and the actual construction of the intersection at grade completed as of April 2016. Petitioner's right to the foregoing claim against the Petitioner, COLLIER COUNTY, FLORIDA for a grade separated overpass, shall only be available to the owner of the remainder of the Parcels 119FEE and 119TCE and its successors and assigns. Such claim may be retained by Respondent, ABC LIQUORS, INC. in the event Respondent, ABC LIQUORS, INC. conveys its remainder property to a successor or Packet Page -1253- 5/10/2016 16.K.1. assign and the claim will have ripened if and when construction of an overpass project commences. Central and Southern Florida Flood Control Dist. v. Wye River Farms, 297 So.2d 323 (Fla. 4th DCA 1974). In accordance herewith, the Parties agree that if the Petitioner, its contractors, privies, employees, partners, or agents commence construction of a grade separated overpass of C.R 951 over U.S. 41, the taking of the Parcels 119FEE and 119TCE shall be considered to be taken contemporaneously on the date of commencement of construction of the overpass. Notwithstanding any previous evidentiary rulings issued in this proceeding, which rulings shall have no prejudicial, preclusive or persuasive effect on Respondent's claims preserved under this paragraph, Respondent has the right to make any and all legal and equitable arguments relating to any and all claims preserved under this paragraph, including without limitation, arguments relating to the integral and inseparable rule. Any claims under this paragraph may be brought upon or after the commencement of construction of a grade separated overpass; it is finther ORDERED that the fee simple and temporary construction easement interests to Parcels 119FEE and 119TCE, being fully described in Exhibit "A" attached hereto and incorporated herein, which vested in Petitioner pursuant to the Order of Taking dated March 26, 2013, and the b deposit of money heretofore made, are approved, ratified, and confirmed; it is further ORDERED that the Notice of Lis Pendens filed in the above -styled cause and recorded in Official Record Book 4879, Page 3609 of the Public Records of Collier County, Florida be dismissed as to Parcels 119FEE and 119TCE; it is further ORDERED that the Court reserves jurisdiction to enforce the terms of this Stipulated Final Judgment; it is further Packet Page -1254- 5/10/2016 16. K.1. ORDERED that this Stipulated Final Judgment is to be recorded in the Official Records of Collier County, Florida. DONE AND ORDERED in Chambers at Naples, Collier County, Florida, this day of , 2016. THE HONORABLE JAMES R. SHENKO CIRCUIT COURT JUDGE conformed copies to: Craig Willis, Esq.; Co -Counsel for Petitioner, cwillis@fixelwillis.com Emily R. Pepin, Esq., Co -Counsel for Petitioner, emilypepin@colliergov.net A. Kurt Ardaman, Esq., Counsel for Respondent ABC Liquors, Inc., ardaman@fishbacklaw.com Kevin Hendricks, Transportation ROW Acquisition Manager, kevinhendricks@colliergov.net Clerk's Office, Accounting 13-4259-CAl1576 U:\IFB\CUENTS\ABCICOLL[LR COUNTY,#158 COLUPR BLVD, ADV. A6-23252\SFTTLEMENTVOINT MOTION AND SFJ RF V CLEAN 4-1-16.D0CX Packet Page -1255-