Agenda 10/28/2014 Item #16K510/28/2014 16.K.5.
EXECUTIVE SUMMARY
Recommendation to approve a Stipulated Final Judgment as to RTG, LLC, for Attorney's
Fees and Expert Fees and Costs related to the Taking of Parcels 119FEE and 119TCE in
the case styled Collier County v. RTG, LLC, et al., Case No. 13 -CA -259, relating to the
intersection improvements at SR 951 (Collier Blvd.) and US 41 (Project No. 60116) (Fiscal
Impact $16,000).
OBJECTIVE: To approve the attached Stipulated Final Judgment as to RTG, LLC, for Parcels
119FEE and 119TCE, and to agree to the payment of costs included therein as full settlement of
all fees and costs for intersection improvements at SR 951 (Collier Blvd.) and US 41 (Project
No. 60116).
CONSIDERATIONS: Sections 73.091 and 73.092 govern the payment of attorney's fees and
reasonable costs incurred in the defense of the proceedings, which includes all expert fees. In
addition, the attorney may recover "costs" for the defense of the proceeding that his or her firm
has incurred, which includes exhibits, copies and transcripts, among other various costs.
Furthermore, Section 73.092(2) allows a firm to tax attorney's fees for supplemental proceedings
which occur after a final judgment and fees incurred for apportionment of the funds awarded.
The case Collier County v. RTG, LLC et al. was filed to acquire land to build improvements to
the intersection at Collier Boulevard (S.R. 951) and US 41. Collier County acquired Parcels
119FEE and 119TCE through an Order of Taking entered on March 26, 2013.
RTG, LLC, is the owner of a reciprocal access easement over Parcels 119FEE and 119TCE.
Staff and Respondents have agreed to a current settlement of Attorney's Fees and Expert Fees
and Costs as follows:
Statutory Attorney's Fees: $ 12,500
Expert Fees and Costs: $ 3.500
Total: $ 16,000
The County has also agreed to allow Respondent to reserve the right to bring 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.
FISCAL IMPACT: Funds in the amount of $16,000 are available in Project No. 60116.
Source of funds are impact fees. The County currently maintains the US41 /951 intersection, so
incremental maintenance costs ultimately related to the improvements will be minimal compared
to the overall benefits of the project. New roadway construction has a maintenance curve of
approximately 5 to 7 years before any costs are required for repairs or replacement.
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GROWTH MANAGEMENT IMPACT: There is no growth management impact associated
with the approval of this agenda item.
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 of Collier County, Florida,
approves entry of the attached Joint Motion and Final Judgment with the Circuit Court.
Prepared by: Emily R. Pepin, Assistant County Attorney
Attachment: (1) Joint Motion and Final Judgment with sketch exhibit
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10/28/2014 16.K.5.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.K.16.K.5.
Item Summary: Recommendation to approve a Stipulated Final Judgment as to RTG, LLC,
for Attorney's Fees and Expert Fees and Costs related to the Taking of Parcels 119FEE and
119TCE in the case styled Collier County v. RTG, LLC, et al., Case No. 13 -CA -259, relating to the
intersection improvements at SR 951 (Collier Blvd.) and US 41 (Project No. 60116) (Fiscal Impact
$16,000).
Meeting Date: 10/28/2014
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary, CAO Office Administration
10/16/2014 4:35:55 PM
Approved By
Name: HendricksKevin
Title: Manager - Right of Way, Transportation Engineering & Construction Management
Date: 10/17/2014 10:46:51 AM
Name: AhmadJay
Title: Director - Transportation Engineering, Transportation Engineering & Construction Management
Date: 10/17/2014 2:10:48 PM
Name: ShueGene
Title: Director - Operations Support, Transportation Administration
Date: 10/20/2014 1:48:47 PM
Name: TaylorLisa
Title: Management/Budget Analyst, Transportation Administration
Date: 10/20/2014 3:12:25 PM
Name: KearnsAllison
Title: Manager Financial & Operational Support, Transportation Administration
Date: 10/20/2014 3:57:47 PM
Name: MarcellaJeanne
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Title: Executive Secretary, Transportation Planning
Date: 10/20/2014 4:19:44 PM
Name: PepinEmily
Title: Assistant County Attorney, CAO Litigation
Date: 10/20/2014 5:00:27 PM
Name: KlatzkowJeff
Title: County Attorney,
Dater 10/21/2014 8:58:48 AM
Name: UsherSusan
Title: Management/Budget Analyst, Senior, Office of Management & Budget
Date: 10/21/2014 9:09:03 AM
Name: OchsLeo
Title: County Manager, County Managers Office
Date: 10/21/2014 9:13:48 AM
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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,
VS.
RTG, LLC, a Nebraska limited liability
company; et al.,
Respondents. /
CASE NO. 13 -CA -259
Parcel Nos: 119FEE, 119TCE
STIPULATED FINAL JUDGMENT
AS TO RTG, LLC FOR PARCELS 119FEE AND 119TCE
THIS CAUSE came before the Court upon the Joint Motion made by the Petitioner,
COLLIER COUNTY, FLORIDA, by and through its undersigned counsel, and Respondent, RTG,
LLC (hereinafter "RTG "), by and through its undersigned counsel, for entry of this Stipulated Final
Judgment as to RTG for Parcels 119FEE and 119TCE 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, RTG, LLC, for these parcels, and
the Court otherwise being fully advised in the premises thereof, it is thereupon
ORDERED AND ADJUDGED as follows:
1. RTG's claim for severance damages resulting from the grade- separated overpass of
C.R. 951 over U.S. 41, ( "Overpass Claim ") is hereby reserved and shall be brought at the time of
commencement of construction of the overpass. Commencement of construction of the overpass
shall mean the date when COLLIER COUNTY lets the contract for the construction.
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2. The Overpass Claim consists of that claim for severance damages pertaining to
RTG's Parent Tract from which Parcels 116FEE, 116TCE1, 116TCE2, 116TCE3, 119FEE and
119TCE have been acquired for the project at issue herein. The previously entered final judgment for
the 116 parcels is unaffected by the agreement evidenced in this final judgment pertaining to the
reservation of a potential future access claim.
3. The right to raise the Overpass Claim shall only be available to the owner of the
property at the commencement of construction of the overpass. If commencement of construction
never occurs, the Overpass Claim shall not ripen and the Overpass Claim shall never be brought.
4. As to the current eminent domain proceeding for all claims arising out of the present
construction design as depicted on the construction plans received into evidence at the Order of
Taking Hearing for Parcel 119FEE and 119TCE, RTG shall have and recover from Petitioner,
COLLIER COUNTY, the total sum of Zero Dollars ($0.00), as full compensation, including
damages, cost to cure, statutory interest, and for any severance, business, and all other damages in
connection with Parcels 119FEE and 119TCE, including any apportionment claims against any other
parties having an interest in these parcels.
5. The Overpass Claim described herein is transferrable. That is, if RTG sells the
remainder real estate prior to the construction and/or completion of the overpass, such right to claim
damages shall extinguish as to RTG and shall pass to the subsequent owner of the remainder real
estate. Accordingly, the term "RTG" as used herein, shall also refer to the owner of the property at
the time the Overpass Claim described herein ripens, and such party shall be the proper party for
purposes of pursuing the Overpass Claim.
6. In order to bring the Overpass Claim, RTG shall give COLLIER COUNTY notice of
such Overpass Claim, which notice shall include a copy of this Final Judgment, no sooner than
2
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COLLIER COUNTY's commencement of construction of the overpass improvements and no later
than two (2) years after completion of the overpass. Within one hundred and eighty days (180) days
from the date of notice from RTG of its Overpass Claim, COLLIER COUNTY shall tender offers of
settlement for severance damages, if any, to RTG via certified mail. COLLIER COUNTY and RTG
shall schedule mediation to attempt to resolve the Overpass Claim no later than ninety (90) days after
the offers of settlement have been received, if RTG rejects settlement offers tendered by COLLIER
COUNTY. Should the parties not resolve the Overpass Claim at mediation, COLLIER COUNTY
shall file suit against RTG or its successor in interest 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 (2012), with the benefit being calculated as the difference between the above -
referenced settlement offer and the amount ultimately awarded and contained in the final judgment.
7. COLLIER COUNTY shall not contest the legal compensability of the Overpass Claim
for any legal claim cognizable under Florida law. However, COLLIER COUNTY waives the
defense to the Overpass Claim that the future project is being constructed in the existing right of
way. COLLIER COUNTY shall be entitled to contest the amount owed for the Overpass Claim, if
any. Additionally, in the Parcel 116 proceeding, COLLIER COUNTY filed a Motion to Sever the
Parcel 116 claims and the Parcel 119 claims for the aforementioned jury trial and the parties agreed
during that proceeding that no Overpass Claim would be presented therein. Thus, the jury trial for
the taking of Parcels I I6FEE, 116TCE1, 116TCE2, and 116TCE3 on January 6 -10, 2014, in this
Court before the Honorable Lauren L. Brodie, shall not operate as res judicata or bar to the Overpass
Claim.
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8. Petitioner, COLLIER COUNTY, FLORIDA, shall pay within thirty (30) days the sum
of Twelve Thousand Five Hundred and No /100 Dollars ($12,500.00) for attorney's fees and all other
and costs; and the sum of Three Thousand Five Hundred and No /100 Dollars ($3,500.00) in full
settlement of all expert fees to D. Tobyn DeYoung, Esquire, 449 Central Avenue, Suite 200, St.
Petersburg, Florida 33701. No further attorney's fees and expert fees and costs shall be paid to RTG
in this proceeding.
9. Other than the Overpass Claim as provided herein, RTG hereby waives and disclaims
all apportionment claims to compensation for the land taken and for severance damages arising from
the taking of Parcels 119FEE and I I9TCE and hereby waives any claim for supplemental attorneys'
fees and expert fees and costs associated with apportionment.
10. Title 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 deposit of money heretofore made is approved, ratified, and confirmed.
11. The Court reserves jurisdiction to enforce the terms of this Stipulated Partial Final
Judgment.
12. This Stipulated Final Judgment shall be recorded in the Official Records of Collier
County, Florida.
e
DO //NE AND ORDERED in Chambers at Naples, Collier County, Florida, this /y of
2014.
X/
HON ffAMES R. SHENKO
C IR IT COURT JUDGE
Conformed copies to:
D. Tobyn DeYoung, Esquire
✓ Emily R. Pepin, Esquire
Craig B. Willis, Esquire
Alan Kurt Ardaman, Esquire
Mark P. Buell, Esquire
j Larry H. Ray, Tax Collector
f�,u�t to 000kkepr;rc�' G +�j'+
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