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Agenda 05/13/2014 Item #16K1 5/13/2014 16.K.1. EXECUTIVE SUMMARY Recommendation to approve a Joint Motion for Final Judgment in the amount of $110,000.00 for the acquisition of Parcel 114FEE in the lawsuit styled Collier County, Florida v. New Plan Florida Holdings, LLC, et al., Case No. 13-CA-238 (US 41/SR-CR-951 Intersection Improvement Project#60116). (Fiscal Impact: $52,770.00) OBJECTIVE: That the Board approves a Final Judgment for full and final compensation to be paid for the acquisition of Parcel 114FEE in the lawsuit styled Collier County, Florida v. New Plan Florida Holdings, LLC, et al., Case No. 13-CA-238 (US 41/SR-CR-951 Intersection Improvement Project#60116). CONSIDERATIONS: The County acquired the subject property by entry of an Order of Taking on March 13, 2013 and subsequently depositing the amount of$57,400.00 into the Court Registry on March 21, 2013. The taking of Parcel 114FEE was acquired from Suntrust Bank. The County and Respondent negotiated a global settlement of$110,000 for full compensation including statutory interest, all claims related to real estate and business damages, and all attorney's fees, experts' fees, and costs. The settlement also resolves the interest Suntrust Bank has in Parcel 113FEE by virtue of a cross-access easement agreement with the owner of the Freedom Square Shopping Center. Since the discussion of a potential overpass at this intersection has been disseminated to the public absent any real plans to build an overpass, the County has also agreed to allow Respondent to bring forth a claim, if any, of additional damages if and when an overpass is constructed within the footprint of the current right-of-way taking. The County reserves the right to dispute the amount of damages and determine there are no additional damages to the remainder property at the completion of the construction. This settlement will, in essence, delay any severance damage claims until such time as an overpass is actually built and damages, if any, can be accurately.quantified. Attached is the Joint Motion for Final Judgment providing for the above-stated funds. FISCAL IMPACT: Funds in the amount of$52,770.00 (additional funds to the Respondent of $52,600.00 plus a $170.00 deposit fee to the Clerk) are available in the Transportation US 41/SR-CR951 Intersection Improvement Project (#60116). Source of funds is Road Impact Fees. There is no incremental maintenance cost associated with this action. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: This item has been approved as to form and legality and requires a majority vote for Board approval. -ERP RECOMMENDATION: That the Board of County Commissioners approves the Stipulated Final Judgment and approves the expenditure and disbursement of funds as stated. PREPARED BY: Emily R. Pepin, Assistant County Attorney Packet Page -1927- 5/13/2014 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 for Final Judgment in the amount of$110,000 for the acquisition of Parcel 114FEE in the lawsuit styled Collier County, Florida v. New Plan Florida Holdings, LLC, et al., Case No. 13-CA-238 (US 41/SR-CR-951 Intersection Improvement Project#60116). (Fiscal Impact: $52,770) Meeting Date: 5/13/2014 Prepared By Name: AllenDebbie Title:Legal Office Administrator, CAO Office Administration 5/1/2014 3:02:18 PM Submitted by Title: Assistant County Attorney, CAO Litigation Name: PepinEmily 5/1/2014 3:02:18 PM Approved By Name: AhmadJay Title: Director-Transportation Engineering,Transportat Date: 5/5/2014 10:05:38 AM Name: KearnsAllison Title: Manager Financial &Operational Support,Transportation Administration Date: 5/5/2014 4:43:41 PM Name: ShueGene Title: Director-Operations Support,Transportation Administration Date: 5/6/2014 2:29:29 PM Name: HendricksKevin Title: Manager-Right of Way, Transportation Engineering&Construction Management Date: 5/6/2014 2:35:32 PM Packet Page -1928- 5/13/2014 16.K.1 . Name: TaylorLisa Title: Management/Budget Analyst,Transportation Administration Date: 5/6/2014 2:35:40 PM Name: MarcellaJeanne Title: Executive Secretary, Transportation Planning Date: 5/6/2014 2:50:23 PM Name: PepinEmily Title: Assistant County Attorney, CAO Litigation Date: 5/6/2014 3:09:11 PM Name: IsacksonMark Title: Director-Corp Financial and Mngmt Svs, Office of Management&Budget Date: 5/6/2014 4:53:47 PM Name: KlatzkowJeff Title: County Attorney, Date: 5/7/2014 12:02:30 PM Name: OchsLeo Title: County Manager, County Managers Office Date: 5/7/2014 2:09:12 PM Packet Page-1929- 5/13/2014 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, Case No.: 13-CA-238 Petitioner, Parcels: 114FEE vs. NEW PLAN FLORIDA HOLDINGS, LLC,a Delaware limited liability company; et al., Respondents. JOINT MOTION FOR ENTRY OF STIPULATED FINAL JUDGMENT Petitioner, COLLIER COUNTY, FLORIDA,together with Respondent, SUNTRUST BANK,hereby respectfully move for entry of the Stipulated Final Judgment (with disbursement directions to the Clerk of the Court) as to Parcel 114FEE attached hereto. 7 Dated: 511.2 / f Dated: t 1 KE 1T Li. HIPPF( S UIRE EMILY R. PEPIN,ESQUIRE Florida Bar No. 87930 Florida Bar No. 92956 GrayRobinson,P.A. ASSISTANT COUNTY ATTORNEY 301 East Pine Street, Suite 1400 Harmon Turner Building Orlando, Florida 32801 3299 East Tamiami Trail, Suite 800 I_:ert.hipn cr�77ray-robinson.corn Naples, Florida 34112 ATTORNEY FOR RESPONDENT emit -pe..pin( collienjov.net SUNTRUST BANK kathvnellcrotteau 2i coiliergov.net nancvbradleyk ;collier{aov.net ATTORNEY FOR PETITIONER Packet Page-1930- 5/13/2014 16.K.1 . CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Motion was electronically filed with the Florida Courts E-Filing Portal which will send a notice of electronic filing to all parties as indicated on the attached Service List and on this day of , 2014. EMILY R. PEPIN,ESQUIRE SERVICE LIST PARCEL 11 4FEE SunTrust Bank,a Georgia Banking corporation do Kent L.Hipp,Esquire V.Nicholas Dancaescu,Esquire Gray Robinson,P.A. P.O. Box 3068 Orlando,FL 32802 (via electronic mail) k ipp(it fzrav-robinsotl.c.-.om nick.dancaescurarohjnson,corn ci ebb e.town seneig gra v-rob in son.corn ALL PARCELS Lely Community Development District do David E.Bryant,Esquire The Bryant Law Firm Stand Executive Center 5633 Strand Boulevard, Suite 311 Naples,FL 34110 (via electronic mail) • au rum stata aol.corn Larry H.Ray as Collier County Tax Collector do Charles PT Phoenix,Esquire Rhodes Tucker Garretson&Phoenix 2401 Periwinkle Way, Suite 6 Sanibel, FL 33957 (via electronic mail) eptprhodesturker,corn kv@rhodestucker.com Packet Page-1931- 5/13/2014 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 Case No.: 13-CA-238 subdivision of the State of Florida, Parcels: 114FEE Petitioner, vs. NEW PLAN FLORIDA HOLDINGS, LLC, a Delaware limited liability company; et al., Respondents. STIPUALTED FINAL JUDGMENT (with disbursement directions to the Clerk of the Court) THIS CAUSE having come before the Court upon Joint Motion made by Petitioner, COLLIER COUNTY, FLORIDA, by and through its undersigned counsel, and Respondent, SUNTRUST BANK, by and through its undersigned counsel, for entry of a Stipulated Final Judgment as to Parcel 114FEE for Project 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 the Respondent, SUNTRUST BANK, and the Court being fully advised in the premises thereof, it is thereupon ORDERED AND ADJUDGED: 1. Respondent, SUNTRUST BANK, have and recover from Petitioner, COLLIER COUNTY, FLORIDA, the total sum of One Hundred Ten Thousand and No/100 Dollars ($110,000.00) for Parcel 114FEE, as full compensation, including damages, cost to cure, Packet Page-1932- 5/13/2014 16.K.1 . statutory interest, and for any severance, business, and all other damages in connection with said parcel, inclusive of all attorney's fees, expert fees and costs. 2. Petitioner, COLLIER COUNTY, FLORIDA, is entitled to a credit for good faith estimate of value previously deposited in the amount of Fifty-Seven Thousand Four Hundred and No/100 Dollars ($57,400.00). 3. Within thirty (30) days hereof, Petitioner, COLLIER COUNTY, FLORIDA, shall pay an additional Fifty Two Thousand Six Hundred and No/100 Dollars ($52,600.00) into the Court Registry for additional funds agreed upon for the benefit of Respondent. 4. The Clerk of the Court shall immediately disburse the Fifty Two Thousand Six Hundred and No/100 Dollars ($52,600.00) to the Gray Robinson, P. A. Trust Account c/o Respondent SUNTRUST's counsel, Kent L. Hipp, Esquire, 301 East Pine Street, Suite 1400, Orlando, Florida 32802. 5. The Clerk of the Court shall immediately disburse the One Thousand Six Hundred and No/100 Dollars ($1,600.00) previously deposited in the Court Registry to the Gray Robinson, P. A. Trust Account c/o Respondent SUNTRUST's counsel, Kent L. Hipp, Esquire, 301 East Pine Street, Suite 1400, Orlando, Florida 32802. 6. Respondent's claim for damages resulting from the grade separated overpass of C.R. 951 over US 41 ("Overpass Claim") shall be determined at the time of completion of the construction of the overpass. The right to raise such claim shall only be available to the owner of the property at the time of the completion of the overpass. If Respondent chooses to sell the remainder real estate prior to the completion of the overpass, such right to claim damages shall be extinguished as to the current Respondent and pass to the subsequent owner of the remainder real estate. Accordingly, the term "Respondent," as it is used in the rest of this paragraph only, Packet Page -1933- 5/13/2014 16.K.1. shall also refer to the proper party if the current Respondent no longer has any interest in the property adjacent to the intersection at C.R. 951 and US 41 at the time of completion of the overpass. Petitioner shall not contest the legal compensability of the Overpass Claim. However, Petitioner shall be entitled to contest what amount is owed, if any. In order to bring an Overpass Claim, Respondent shall give Petitioner notice of such Overpass Claims, which notice shall include a copy of this Final Judgment, upon completion of construction of the overpass improvements and no later than 3 years after completion of the overpass. Within one hundred and fifty (150) days from the date of notice from the Respondent of their Overpass Claim, Petitioner shall tender an offer of settlement for damages to Respondent via certified mail. Petitioner and the Respondent shall schedule mediation to attempt to resolve the Overpass Claim no later than 90 days after the offer of settlement has been received, if Respondent rejects the settlement offer tendered by Petitioner. Should the parties not resolve the Overpass Claim at mediation, Petitioner shall file suit against Respondents based on this Judgment and the parties shall proceed to a Jury Trial on the issue of full compensation of said claim, without the need for any further mediation. Attorney fees shall be awarded pursuant to the provisions of Section 73.092(1), Florida Statutes, with the benefit being calculated as the difference between the above-referenced settlement offer and the amount contained in the Stipulated Final Judgment. 7. County shall maintain continuous access to Respondent's Parcel 114 remainder property over the Freedom Square Shopping Center driveway underlying Parcel 113. 8. Title to Parcel 114FEE, being fully described in Exhibit "A" attached hereto and incorporated herein, which vested in Petitioner pursuant to the Order of Taking dated March 13, 2013, and the deposit of money heretofore made is approved, ratified, and confirmed. Packet Page-1934- 5/13/2014 16.K.1. 9. The Notice of Lis Pendens filed in the above-styled cause and recorded in Official Record Book 4879, Page 1825, et.seq., of the Public Records of Collier County, Florida be dismissed as to Parcel 114FEE. 10. This Stipulated Final Judgment will be subject to claims of apportionment, if any, by any judgment creditors, mortgages and lien holders named in this action. 11. ORDERED AND ADJUDGED that the Court reserves jurisdiction to enforce the terms of this Stipulated Final Judgment. 12. 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 2014. HONORABLE CYNTHIA A.PIVACEK CIRCUIT COURT JUDGE • Conformed copies to: Emily R.Pepin,Esquire Kent L.Hipp,Esquire David E.Bryant,Esquire Charles PT Phoenix,Esquire Kevin Hendricks,Acquisition Mgr./Transportation Bookkeeping Packet Page-1935- 5/13/2014 16.K.1. Schedule 1 (Fee Simple Acquisition) TERM SHEET OF INTERESTS AND RIGHTS ACQUIRED AND OBLNATIONS INCURRED FOR THE CONSTRUCTIQN,OPERATION AND MAINTENANCE OF ROADWAY.DRAINAGE AND UTILITY IMPROVEMENTS TO THE INTFjtSECTION OF US 41 AND COLLIER BOULEVARD ITRANSPORTATIONJNTERSECTION SAFETY AND CAPACITY IMPROVEMENT PROGRAM PROJECT NO.4011e) The following summarizes the interests and rights Collier County (hereinafter the County") shall acquire from the property owners/interest holders (hereinafter 'Owner(s)") of certain real property and described in the legal description and sketch (`Schedule in and the obligations the County has agreed to comply with in connection with such Interests and rights: 1. The area of the interests and rights to be acquired by the County are described and depicted herein and on Schedule II. 2. Schedule II describes and depicts a fee simple acquisition from Owners)for road construction and related purposes,all being associated with the Project. The County shall acquire a fee simple interest in the property described and depicted on Schedule • II. Schedule 1-Page 1 of 1 Packet Pa a-1936- 5/13/2014 16.K.1. I / 1• • E /941:e p �, SCH LE II e-y`'.z" Page 1 1 O b m ," LELY RESORT PHASE 1, t PB 16, PC 07 LiNRK SCUS 1+ 4141 7'•b' F . TRACT 15 SUNTRUST BANK OR 4364, PC 445 FOLIO NO. 55425004005 043519'04`E ,SI 114FEE /1,, 15.50' ,, , 3,100 SF 44 -u4. rtif `d,`. f+q*�yt ''fir I,III 'V4/ 15,50'535'42'2515 1 5.50• POD NNNNse.N>NN MOM Pli *x; 44' LEGEND RN-woo-OF-1µY OR-OFFICNL RECORDS BOOK P .0 PLAT PLAT BO PC- PAGE P011-POINT OF BECINBAO NO.- NUMBER SR-STATE ROAD FEE SIMPLE AKA-ALSO KNOWN AS LEGAL DESCRIPTION - PARCEL 114FEE INTEREST A PARCEL OF LAND LYING IN SECTION 3,TOWNSHIP 51 SOUTH.RANGE 25 EAST. COWER COUNTY, FLORMA BEING YORE PARTICULARLY DESCRIBED AS FOLLOWS; 57, THE PUBUC RECORDS OF COWER COUNTY, FLORIDA. ALSO BEING A 1POINT ON THE BODE RIGHT—OF—WAY UNE OF US. 41; THENCE N547.0'28'W FOR 199.95 FEET ALONG SAID NORTHERLY RIGHT—OF—WAY UNE OF U.S. 41; THENCE LEAVING SAID NORTHERLY RIGHT—OF—WAY UNE OF U.S. 41, N33'30'041 FOR 15.50 FEET ALONG THE WESTERLY BOUNDARY OF SAID TRACT 15; THENCE LEAVING SAID WESTERLY BDUHONRI'. 554'20'2B'E FOR 199.90 FEET, TO A POINT ON THE EASTERLY BOUNDARY OF SAM TRACT 16; THENCE 535-4215'W FOR 15.50 FEET ALONG THE EASTERLY BOUNDARY OF SAID TRACT 15, TO THE POW' OF BEGINNING OF THE PARCEL HEREIN DESCRIBED. CONTAINING 3.100 SOUARE FEET MORE OR LESS. SUBJECT TO EASEMENTS ANO RESTRICTIONS OF RECORD. TECM-ROW • JUN I52012 (1/Wit�A. WARD PROFESSIONAL LAND SURVEYOR W 5301 aTE SIGNED NOT VAUB WITHOUT THE ORIGINAL SIGNATURE /c RAISED EMBOSSED SELL OF A FLORIDA REGISTERED PROFESSIONAL SURVEYOR AND MAPPER. THIS IS NOT A SURVEY. M 4 am pm IY-UIrLOR/,a/p••••SIM•lr,r„�M-+•-M,../A41 WOW"V.A.I y •.. +f1A++ ww.1,w+NR�+r U.Ryr_1N47,4l1 PROIBGTI U.R.41/C.R.951/B.R.951 RVkKw BUTCH AND ISGAL DESCRIPTION PARC![ 1141R WORT—OT•TAY *I"wo Ammo*.A OA.,Awils PRIMA FOR MUM GOMM 9511610=1 T/9oV9 Of COUNTY 0:505550k555 rti foSIONNr Pct ow Amin, SCALE uM►;HRR 000001.OD.00 RD�iON SECTK*li TOWNSHIP 5E 1 1 SO' , 5/5112 DRAWN R.A.K. SKD 114FEE 1 OF 1 ' Schedule II Packet Pare-1937-