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Agenda 05/24/2016 Item #16K 4 5/24/2016 16.K.4. EXECUTIVE SUMMARY Recommendation to approve a settlement with Pinegate 135, LLC in the amount of $35,000.00 for all attorney's fees and experts' fees for the taking of Parcels 150FEE, 150SE and 150TCE in the case styled Collier County v. LDJ Associates, LLC, et al., Case No. 13- CA-1238 required as part of the widening of Collier Boulevard from Green Boulevard to Golden Gate Boulevard, Project No. 68056. (Fiscal Impact: $35,000.00). OBJECTIVE: To settle all attorney's fees and experts' fees due Pinegate 135, LLC for the taking of Parcel 150FEE, 150SE and 150TCE required as part of the widening of Collier Boulevard from Green Boulevard to Golden Gate Boulevard, Project No. 68056, herein after referred to as the"Project." CONSIDERATIONS: On September 9, 2013, Collier County condemned Parcels 150FEE, 150SE and 150TCE as part of the Project and specifically to complete a"jug-handle" access road for safer ingress and egress to and from Collier Boulevard for those properties located at the northwest corner of Pine Ridge Road and Collier Boulevard. Please refer to the attached aerial of the subject area. Pinegate Shopping Plaza, owned by Pinegate 135, LLC at the time of the taking, enjoys access to and from Collier Boulevard over the gas station property on the corner of Pine Ridge and Collier by virtue of an Amendment to Declaration of Easements and Restrictions filed in the public records at OR Book 2801, Page 1601. Because the holder of an easement is the owner of a real property interest, if a condemning authority takes real property encumbered by the easement, the holder of the easement has a constitutional right to be compensated for the taking of that real property. On October 28, 2014, the Board approved an offer of judgment in the amount of $40,001.00, as well as statutory attorney's fees, to compensate Pinegate for their interest in the easement taken for the jug handle access road and Pinegate accepted the County's offer. On September 28, 2015, the parties filed an final judgment paying over the $40,001.00 and $13,201.33 in statutory attorney's fees for the benefit provided to their client (33% of the benefit). However, Pinegate also claimed approximately$23,000.00 in experts' fees, as well as a claim for attorney's fees in the amount of $90,000.00 for a non-monetary benefit to its client which is authorized by Section 73.092(1)(b), Florida Statutes. A "non-monetary benefit" is awarded where the attorney for the property owner can prove that they were successful in achieving some benefit for the client, such as a change in construction plans or a variance, which simultaneously achieves a reduction in damages to the property to be paid over by the condemning authority. In the present case,the attorney for Pinegate claimed that he was successful in restoring access to the jug handle access road by getting the gas station property to record a Supplemental Declaration of Easements to clarify the rights to the new access point. They claimed that this cured a large severance damage claim since this access point would have been severed without the clarification of rights. While County staff did not agree that the access to the jug handle access road was ever impaired, the interpretation of the Easement rights would require a lengthy evidentiary hearing risking additional experts' costs and potentially supplemental attorney's fees, if Pinegate was successful in its claim. Through negotiations, the parties agreed to a settlement figure of$35,000.00 for all attorney's fees for non-monetary benefits earned and experts' fees. [13-1238-CA/1257739/1] Packet Page -1770- 5/24/2016 16.K.4. The County Attorney's Office and staff recommend this settlement since a better result is not guaranteed at a hearing and would potentially accrue additional expert costs and attorney's fees in the process. If this settlement is approved by the Board today, the attached Joint Motion for Agreed Order will be filed with the Circuit Court. GROWTH MANAGEMENT IMPACT: None. FISCAL IMPACT: Funds in the amount of$35,000.00 are available from Impact Fees. LEGAL CONSIDERATIONS: This item has been prepared by the County Attorney's office, is approved as to form and legality, and requires a majority vote for Board approval.—ERP RECOMMENDATION: To approve a settlement with Pinegate 135, LLC in the amount of $35,000.00 for all attorney's fees and experts' fees for the taking of Parcels 150FEE, 150SE and 150TCE in the case styled Collier County v. LDJ Associates, LLC, et al., Case No. 13-CA-1238 required as part of the widening of Collier Boulevard from Green Boulevard to Golden Gate Boulevard, Project No. 68056. PREPARED BY: Emily Pepin ATTACHMENTS: Proposed Settlement(by an Agreed Order); Aerial Overview of the Parcel [13-1238-CA/1257739/1] Packet Page-1771- 5/24/2016 16.K.4. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.K.16.K.4. Item Summary: Recommendation to approve a settlement with Pinegate 135, LLC in the amount of$35,000 for all attorney's fees and experts'fees for the taking of Parcels 150FEE, 150SE and 150TCE in the case styled Collier County v. LDJ Associates, LLC, et al., Case No. 13-CA- 1238 required as part of the widening of Collier Boulevard from Green Boulevard to Golden Gate Boulevard, Project No. 68056. (Fiscal Impact: $35,000). Meeting Date: 5/24/2016 Prepared By Name: BrockMaryJo Title: Executive Secretary to County Manager, County Managers Office 5/18/2016 4:40:16 PM Submitted by Title: Executive Secretary to County Manager, County Managers Office Name: BrockMaryJo 5/18/2016 4:40:17 PM Approved By Name: KlatzkowJeff Title: County Attorney, Date: 5/18/2016 5:03:24 PM Name: CasalanguidaNick Title:Deputy County Manager, County Managers Office Date: 5/18/2016 5:14:41 PM Packet Page -1772- 5/24/2016 16.K.4. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY,FLORIDA CIVIL ACTION COLLIER COUNTY, a political subdivision of the State of Florida, Petitioner, Case No.: 13-CA-1238 vs. Parcel Nos.: 150FEE, 150SE,. 150TCE LDJ ASSOCIATES, LTD., ET AL., Respondents. JOINT MOTION FOR AGREED ORDER ON ATTORNEY'S FEES AND EXPERT FEES Petitioner, COLLIER COUNTY, FLORIDA, together with Respondent, PINEGATE 135, LLC, by and through their undersigned counsel, hereby respectfully move for entry of the attached Order for Attorney's Fees and Expert Fees attached hereto as Exhibit"1". Dated: L ,r 6 Dated: MARK A. T*BIN,ESQ IRE EMILY R. PENN, ESQUIRE Florida Bar 1 o. 777498 Florida Bar No. 92956 Akerman LLP ASSISTANT COUNTY ATTORNEY 1 SE 3rd Avenue, Floor 25 Harmon Turner Building Miami, Florida 33131-1700 3299 East Tamiami Trail-Ste. 800 (305) 982-5588 -Telephone Naples,Florida 34112 (305) 374-5095 - Facsimile (239) 252-8400 -Telephone ATTORNEY FOR RESPONDENT (239)252-6300 - Facsimile ATTORNEY FOR PETITIONER COLLIER COUNTY [13-1238-CA/1257616/1] Packet Page -1773- 5/24/2016 16.K.4. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Joint Motion for Agreed Order for Attorney's Fees and Expert Fees was filed with the Clerk of Court, using the Florida Courts E-Filing Portal, and that a true and correct copy was furnished via electronic mail to all parties listed on the attached Service List as indicated on this day of , 2015. BY: EMILY R. PEPIN, ESQUIRE SERVICE LIST Case No.: 13-CA-1238 Parcels 150FEE/150SE/150TCE Pinegate 135, LLC Craig B. Willis, Esquire do Mark A. Tobin, Esquire Fixel&Willis Andrew M. Shapiro,Esquire 211 South Gadsden Street Akerman LLP Tallahassee,Florida 32301 One Southeast Third Avenue,25th Fl. (850) 681-1800 Miami, FL 33131 cwillis@fixelwillis.com (via electronic mail) ccrossley@fixelwillis.com mark.tobin@akerman.com andrew.shapiro@akennan.com kate.quelch@akerman.com dorothy.matheis@akerman.com [13-1238-CA/1257616/1] Packet Page-1774- 5/24/2016 16.K.4. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUITIN AND FOR COLLIER COUNTY,FLORIDA CIVIL ACTION COLLIER COUNTY, a political subdivision of the State of Florida, Petitioner, Case No.: 13-CA-1238 vs. Parcel Nos.: 150FEE, 150SE, 150TCE LDJ ASSOCIATES, LTD.,ET AL., Respondents. AGREED ORDER ON ATTORNEY'S FEES AND EXPERT FEES THIS CAUSE having come before the Court upon Joint Motion made by Petitioner, COLLIER COUNTY, FLORIDA, by and through its undersigned counsel, and Respondent, PINEGATE 135, LLC, by and through their undersigned counsel, for entry of an Agreed Order as to attorney's fees and expert fees due Respondent and it appearing to the Court that the parties are authorized to make such Motion, and the Court being otherwise fully advised in the premises thereof,it is thereupon ORDERED AND ADJUDGED that: 1. Respondent, PINEGATE 135, LLC, have and recover from Petitioner, COLLIER COUNTY, FLORIDA, the total sum of Thirty-Five Thousand and No/100 Dollars ($35,000.00), as full and final payment of all attorney's fees, including all fees for nonmonetary benefits achieved for Respondent, all supplemental attorney's fees and any and all other attorney's fees that have or could have been claimed in this case, as ‘r- OA? 06 ?-) [13-1238-CA/1257616/1] Packet Page-1775- 5/24/2016 16.K.4. well as all expert fees and costs in connection with the taking of Parcels 150FEE, 150SE, and 150TCE. 2. Within twenty (20) days hereof, Petitioner shall pay the total sum of Thirty-Five Thousand and No/100 Dollars ($35,000.00) to Akerman, LLP Trust Account do Mark A. Tobin, Esq. Akerman LLP, 1 SE 3rd Avenue, Floor 25 Miami, Florida 33131-1700, in additional funds over the amount previously deposited into the Court Registry. 3. This Order disposes of all claims arising out of the taking of Parcels 150FEE, 150SE and 150TCE that have or could have been asserted in this cause. 4. The Court reserves jurisdiction to enforce the terms of this Agreed Order. DONE AND ORDERED in Chambers at Naples, Collier County, Florida,this day of , 20 . HONORABLE JUDGE SHENKO CIRCUIT COURT JUDGE conformed copies to: Craig B. Willis,Esquire Mark A. Tobin Esquire Emily R. Pepin,Esquire Kevin Hendricks,Transportation ROW Acquisition Manager Clerk's Office,Accounting 13-1238-CA/1557 [13-1238-CA/1257616/1] ' f (el ) Packet Page-1776- l 5/24/2016 16.K.4. Aerial of NW Corner of Pine Ridge Road and Collier Boulevard 1 { V A ted9 f; &F ]9 r 4 i 1 rtr� ac sr '' = ' 'Z -,� 1 e+ ' r t. } 3 . __ , , n At 1 9 7 ("1r . k.ga. r.r r 4r „t{ , B, ,I {j, i �'� ¢ t` � ,, r 1 �i I '. ! ' 4 t fi • L. & C a".c tin+ ° "a' ' .+wX y4' a .p*J4�+ _ t" rr . r p r l''''''—'1`,,11'1/ - t ``," �: � sem&, v .,� ._ -* ,�., ' y,. kp� '',,,,u'Y err `g,:a `�tr „ F 'L` t k— ,. r y a" '" ivy *`,�^as X(kr" s x ^, +", ".e'`+; x' .i94.;1';‘,.----=4—:-----,r ''::G'''-',.., +* �. ; a. lye e': h.. _ 3 t '° isem; ; €._� a3 r � ods 1 , ;,.fix :.`` 1- € `# t '' i,; .. C,1htrc .lith*'P',0P.AY Al mmut ...,FQ,. r ra, � 5 x ...,`,:: :E Packet Page -1777-