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Agenda 10/28/2014 Item #16K610/28/2014 16.K.6. Executive Summary Recommendation to authorize the County Attorney's Office to make an Offer of Judgment to Party Defendant, Pinegate 135, LLC, in the amount of $40,001 to settle any and all apportionment claims related to the taking of Parcels 150FEE, 150SE and 150TCE in the lawsuit styled Collier County v. LDJ Associates, Ltd., et al., Case No. 13 -CA -1238 (Collier Boulevard Expansion Project No. 68056 from Green Boulevard to Golden Gate Boulevard). Fiscal Impact: $40,001.00 plus attorney fees as may be awarded by the court in accordance with Section 73.092(2). OBJECTIVE: Approve and authorize the making of an Offer of Judgment pursuant to Section 73.032, Fla. Stat., to party defendant, Pinegate 135, LLC, in the amount of $40,001, as full compensation, excepting attorney's fees and costs, for the taking of its ownership interest in Parcels 150FEE, 150SE and 150TCE taken by Collier County in the eminent domain lawsuit styled Collier County v. LDJ Associates, Ltd., et al., Case No. 13 -CA -1238, Collier Boulevard Intersection Improvement Project No. 68056). CONSIDERATIONS: At a mediation held September 01, 2014, the parties (Collier County and Pinegate 135, LLC) were unable to agree on a settlement as to the value of Pinegate's interest in Parcels 150FEE, 150SE and 150TCE taken by Collier County from the neighboring property owner, LDJ Associates, Ltd., and across which Pinegate 135, LLC held an access easement by virtue of the 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 interest. This right to compensation is not necessarily limited to an apportionment of the award of the proceeds awarded to the owner of the encumbered property for the taking by the condemning authority. The easement holder has the right to claim even that an apportionment of ALL of the proceeds to the owner of the encumbered fee taken by the condemning authority, does not fully compensate the easement holder for the loss occasioned by the taking. The easement holder may petition the court to empanel a jury to determine the full compensation to which the easement holder is entitled. It is an extremely unusual circumstance; but such is the case at hand. The County Attorney, along with staff from the Growth Management Division, is hoping that the proposed offer of judgment will motivate the easement holder to settle all claims for full compensation (including all claims of damages of every kind) and to abstain from petitioning the court to set the issue for a jury trial. As with the matter of full compensation to a property for the taking of all or a portion of the property, should the issue be set for trial as to the full compensation for the easement holder, the condemning authority would be responsible for all expert witness costs and attorney fees incurred by the defendant; and of course, for every expert witness hired by the property owner or easement holder, the County must retain a rebuttal witness as well. That is one of the primary reasons that eminent domain jury trials in the State of Florida are so costly for condemning authorities. Packet Page -2013- 10/28/2014 16.K.6. It is estimated that a jury trial on this issue would cost Collier County no less than $150,000, even if the easement holder received an award of zero from the jury. LEGAL CONSIDERATIONS: The County Attorney's Office has reviewed all considerations in making this Offer of Judgment and has calculated in good faith this offer of full compensation for the property interests taken. This Offer of Judgment is reasonable, has been approved as to form and legality and requires a majority vote for Board approval. - ERP FISCAL IMPACT: Funds in the total amount of $40,001 will come from Gas Taxes and /or Impact Fees. The County currently maintains Collier Boulevard, so incremental maintenance costs ultimately related to the improvements will be minimal compared to the overall benefits of the project. Additional right -of -way acquisitions are required which will add acreage to the mowing and garbage removal maintenance at approximately $3,000 per year. Replacement of swales with closed drainage (piping) has a useful life of approximately fifty years with recurring costs of periodic inspections and system cleaning on a three to five year basis at an estimated cost of $5,000 per cycle. New roadway construction has a maintenance curve of approximately 5 to 7 years before any incremental costs are required for repairs or replacement. GROWTH MANAGEMENT IMPACT: Consistent with Collier County Growth Management Plan. RECOMMENDATION: That the Board of County Commissioners authorize the terms of the Offer of Judgment and authorize its service on the easement holder and the expenditure of funds as stated, if accepted. PREPARED BY: Kevin Hendricks, Right -of -Way Acquisition Manager, TECM, and Emily R. Pepin, Assistant County Attorney, Office of the County Attorney Packet Page -2014- 10/28/2014 16.K.6. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.K.16.K.6. Item Summary: Recommendation to authorize the County Attorney's Office to make an Offer of Judgment to Party Defendant, Pinegate 135, LLC, in the amount of $40,001 to settle any and all apportionment claims related to the taking of Parcels 150FEE, 150SE and 150TCE in the lawsuit styled Collier County v. LDJ Associates, Ltd., et al., Case No. 13 -CA -1238 (Collier Boulevard Expansion Project No. 68056 from Green Boulevard to Golden Gate Boulevard). Fiscal Impact: $40,001 plus attorney fees as may be awarded by the court in accordance with Section 73.092(2). Meeting Date: 10/28/2014 Prepared By Approved By Name: HendricksKevin Title: Manager - Right of Way, Transportation Engineering & Construction Management Date: 10/17/2014 10:53:14 AM Name: AhmadJay Title: Director - Transportation Engineering, Transportation Engineering & Construction Management Date: 10/17/2014 2:11:19 PM Name: ShueGene Title: Director - Operations Support, Transportation Administration Date: 10/20/2014 1:48:33 PM Name: KearnsAllison Title: Manager Financial & Operational Support, Transportation Administration Date: 10/20/2014 3:58:00 PM Name: TaylorLisa Title: Management/Budget Analyst, Transportation Administration Date: 10/21/2014 1:16:59 PM Name: MarcellaJeanne Packet Page -2015- 10/28/2014 16.K.6. Title: Executive Secretary, Transportation Planning Date: 10/21 /2014 1 :22:27 PM Name: PepinEmily Title: Assistant County Attorney, CAO Litigation Date: 10/21/2014 1:25:59 PM Name: UsherSusan Title: Management/Budget Analyst, Senior, Office of Management & Budget Date: 10/21/2014 2:07:19 PM Name: KlatzkowJeff Title: County Attorney, Date: 10/21/2014 3:13:44 PM Name: OchsLeo Title: County Manager, County Managers Office Date: 10/21/2014 3:28:53 PM Packet Page -2016-