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Agenda 05/28/2013 Item #16A3 5/28/2013 16.A.3. EXECUTIVE SUMMARY Recommendation to ratify and approve a stipulated Final Judgment as to Parcel 106FEE, et al, as part of the US-41 / Collier Boulevard Intersection Improvement project (Project No. 60116) Fiscal Impact: $5,455 OBJECTIVE: To settle the lawsuit styled Collier County v. KRG 951 & 41, LLC., et al, as to Parcels 106FEE and 106TCE(Embarq Florida, Inc., a Florida corporation d/b/a Century link, f/k/a Sprint-Florida, Incorporated, successor by merger to United Telephone Company of Florida.) and eliminate exposure to further costs arising out of extended litigation. CONSIDERATIONS: The above referenced parcels were taken by Collier County for the purpose of constructing at-grade improvements to the intersection of US41 and Collier Boulevard via the entry with the circuit court of a stipulated Order of Taking and the deposit into the court registry of$203,000 (the estimate of full compensation according to the County's real estate appraiser). The County's appraiser included in his appraisal a payment to the owner to"cure"the loss of the parking lot that is wholly within the taking, i.e.,to replace the lost parking elsewhere on the remainder property. However, Century Link staff has requested that the County's contractor replace the lost parking as part of our intersection improvement construction project. Therefore, a credit is being returned to the County since Embarq was already paid to replace the parking lot themselves. The parties have long known that the right-of-way being taken for the project would wipe out the existing parking lot on the west side of Embarq's unmanned switching station located on the east side of Collier Boulevard just south of the intersection at US-41, and that the parking would have be restored somehow. The plan being recommended is for the County to pay Embarq $148,600 for the land and improvements within the take area and another$31,624 so that Embarq could pay the engineering firm of Ash Engineers to develop plans and specifications that the County's contractor could follow to re-establish the lost parking as part of our roadway construction project. Subtracting these amounts from the County's deposit into the court registry of $203,000 yields a credit of $22,776 that the court will return to the County. FISCAL IMPACT: Since the engineer's estimate of the probable cost of the parking lot restoration has been updated to $28,000 the net fiscal impact to the County of this settlement proposal is estimated to be $5,224, recording fees of$61, and the Clerk's Service Fee of$170, for a total of$5,455. Source of funds are impact fees. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with the approval of this agenda item. LEGAL CONSIDERATIONS: This item has been reviewed for form and legality and requires majority vote for approval. -JW RECOMMENDATION: That the Board of County Commissioners of Collier County, Florida, approve entry of the attached Stipulated Final Judgment with the Circuit Court. Prepared by: Kevin Hendricks, Right-of-Way Acquisition Manager Attachment: Stipulated Final Judgment with legal description attached thereto. Packet Page -394- 5/28/2013 16.A.3. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.A.16.A.3. Item Summary: Recommendation to ratify and approve a stipulated Final Judgment as to Parcel 106FEE, et al, as part of the US-41/Collier Boulevard Intersection Improvement project (Project No. 60116) Fiscal Impact: $5,455 Meeting Date: 5/28/2013 Prepared By Name: HendricksKevin Title: Manager-Right of Way,Transportation Engineering 3/8/2013 4:23:09 PM Approved By Name: LynchDiane Title: Administrative Assistant Date: 4/25/2013 2:01:44 PM Name: TaylorLisa Title: Management/Budget Analyst,Transportation Administr Date: 4/30/2013 11:08:55 AM Name: AhmadJay Title: Director-Transportation Engineering,Transportation Engineering&Construction Management Date:4/30/2013 12:15:12 PM Name: ShueGene Date: 4/30/2013 12:34:17 PM Name: KearnsAllison Date: 5/7/2013 8:58:59 AM Name: WrightJeff Title: Assistant County Attorney,County Attorney Date: 5/14/2013 10:32:06 AM Name: MarcellaJeanne Packet Page-395- 5/28/2013 16.A.3. Title: Executive Secretary,Transportation Planning Date: 5/15/2013 2:14:55 PM Name: FinnEd Title: Senior Budget Analyst, OMB Date: 5/17/2013 9:37:36 AM Name: KlatzkowJeff Title: County Attorney Date: 5/17/2013 11:11:46 AM Name: IsacksonMark Title: Director-Corp Financial and Mgmt Svs,CMO Date: 5/19/2013 10:29:11 AM osokk Packet Page -396- 5/28/2013 16.A.3. 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, Case No.:2013-CA-0178 vs. Parcels: 106FEE,106TCE KRG 951 &41,LLC.an Indiana limited liability company;EMB' ARQ FLORIDA,INC., a Florida corporation d/b/a Centurylink, f/k/a Sprint-Florida. Incorporated,successor by merger to United Telephone Company of Florida;THE BANK OF NEW YORK MELLON TRUST COMPANY,N.A., a national association;BARRON COLLIER RESOURCES,LLLP,a Florida limited liability limited partnership;COLLIER LAND AND CATTLE CORPORATION,a Florida corporation;LARRY H.RAY,as Collier County Tax Collector, Respondents. STIPULATED FINAL JUDGMENT AS TO PARCELS 1O6FEE AND 1O6TCE WITH DISBURSEMENT ORDERS TO CLERK THIS CAUSE came before the Court upon the Joint Motion for Entry of Stipulated Final Judgment as to Parcels 106FEE and 106TCE ("Joint Motion") filed by Petitioner. COLLIER COUNTY ("COUNTY"), and Respondent, ElvLBARQ FLORIDA, INC, a Florida corporation d/b/a Centurylink, f/k/a Sprint-Florida. Incorporated, successor by merger to United Telephone Company of Florida ("OWNER"). The Court having reviewed the record and it appearing that the parties hereto were authorized to enter into the Joint Motion and that the papers filed herein by COUNTY are in proper and sufficient form, and the Court finding that the compensation to be Page 1 of 7 Packet Page -397- 5/28/2013 16.A.3. paid by COUNTY is full,just and reasonable for all parties concerned, and being otherwise fully advised in the premises, it is hereby ORDERED and ADJUDGED that: 1. All parties have been properly served with process or otherwise have submitted themselves to this Court's jurisdiction. The Court has jurisdiction over the parties and the subject matter of this cause pursuant to Florida Statutes, Chapters 73, 74 and 127. 2. COUNTY and OWNER each stipulate to the entry of this Final Judgment as to Parcels 106FEE and 106TCE. 3. As set forth in the Court's March 4. 2013 Order of Taking, as to Parcels 106FEE and 106TCE (''Order of Taking"). COUNTY's good faith estimate of the value of Parcels 106FEE and 106TCE is TWO HUNDRED THREE THOUSAND AND NO/100 Dollars ($203,000.00). 4. Pursuant to Fla. Stat. §74.051(2) and the Order of Taking, COUNTY timely deposited the sum of TWO HUNDRED THREE THOUSAND AND NO/100 Dollars ($203,000.00) into the court registry on March 18, 2013. being the amount of COUNTY's good faith estimate of the value of Parcels 106FEE and 106TCE, and thereupon COUNTY became vested with such fee simple interests and temporary construction easements in and to Parcels I06FEE and 106TCE as described in the Order of Taking and in Schedules 1, II, Ill and IV attached thereto. Said Order of Taking is hereby ratified and confirmed, and incorporated herein by this reference. 5. Respondent, THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,has released its interest in Parcels 106FEE and 106TCE and has been dropped as a party in this action. Page 2 of 7 Packet Page -398- 5/28/2013 16.A.3. 6. Based upon the foregoing, it is proper that this Final Judgment as to Parcels 106FEE and 106TCE should enter in favor of COUNTY and against the respondents named in the Petition in Eminent Domain as their interests may appear. 7. The Joint Motion is GRANTED and is incorporated by reference into this Final Judgment. 8. COUNTY and OWNER nree that OWNER shall recover from COUNTY the total sum of ONE HUNDRED FORTY-EIGHT THOUSAND SIX HUNDRED AND NO/100 DOLLARS (5148.600.00), in full compensation for the property interests taken, improvements taken, severance damages, cure costs and all other damages or compensation claimed by or through OWNER, its successors and assigns, now and in the future arising from the taking of Parcels 106FEE and 106TCE in this cause, subject to the possible payment of any unpaid pro- rated ad valorem taxes assessed against said Parcels through the date of taking. The aforementioned compensation paid by COUNTY includes full payment of all of OWNER's attorneys' fees and costs expended or incurred in this cause by or on behalf of OWNER, but excludes such litigation costs expended or incurred in this cause by or on behalf of OWNER as are awarded in paragraph 11 below. 9. Pursuant to the Joint Motion, within sixty (60) days of the entry of this Final Judgment, OWNER shall provide COUNTY plans and specifications sufficient for COUNTY to reconstruct such portion of the parking lot taken by COUNTY on OWNER's remaining property as OWNER requests at a location and to the specifications indicated in such plans. Thereafter, during the course of construction of the Intersection Capacity Improvements SR 90 (US 41) and SR/CR 951 Project, at no expense to OWNER, the COUNTY shall cause the aforementioned parking lot to be reconstructed at a location and to the specifications indicated in such plans. Page 3 of 7 Packet Page-399- 5/28/2013 16.A.3. COUNTY, its agents and assigns are hereby granted all rights of entry to enter upon OWNER's property as may be necessary to implement such site modifications. OWNER shall fully cooperate with the COUNTY, its agents, or assigns in the implementation of the aforementioned site modifications. Likewise, COUNTY shall maintain continuous reasonable access to OWNER's property throughout construction. However, if OWNER fails to timely provide COUNTY with the plans and specifications described above, COUNTY has no obligation to reconstruct the aforementioned parking lot until OWNER reimburses COUNTY any fees or costs associated with the delinquency (e.g. change order fees, standby charges, etc.). Notwithstanding any other provision of this paragraph, if one hundred twenty (120) days elapses following the entry of this of this Final Judgment and OWNER has either failed to provide COUNTY with the plans and specifications described above, or OWNER has failed to pay to COUNTY all fees or costs associated with delinquently providing COUNTY with the aforementioned plans and specifications, COUNTY shall be wholly relieved of its obligation to perform under this paragraph. 10. Pursuant to the Joint Motion, OWNER and its counsel have each agreed that no nonmonetary benefits have been achieved in this cause and thereby have waived any additional claim for attorney's fees or costs against Petitioner in this cause as to Parcels 106FEE and 106TCE. Such stipulation is hereby ratified and incorporated into this judgment. 11. Pursuant to the Joint Motion, the sum of THIRTY-ONE THOUSAND SIX HUNDRED TWENTY-FOUR AND NO/100 DOLLARS ($31,624.00) is hereby taxed against Petitioner as and for all litigation costs, expended or incurred in this cause by or on behalf of OWNER, including but not limited to all expert fees, engineering fees, appraisal services and costs. Page4of7 Packet Page-400- 5/28/2013 16.A.3. 12. COUNTY shall be and is hereby credited the sum of TWO HUNDRED THREE THOUSAND AND NO/100 Dollars ($203,000.00) deposited into the court registry on March 18, 2013 pursuant to the Order of Taking. Such sum is sufficient to satisfy the awards made herein. 13. Without further order of this Court, the Clerk of this Court shall forthwith pay to OWNER the total sum of ONE HUNDRED EIGHTY THOUSAND TWO HUNDRED TWENTY-FOUR AND NO/100 DOLLARS ($180,224.00), less any unpaid pro-rated ad valorem taxes assessed against Parcels 106FEE and 106TCE through the date of taking. Immediately upon issue, the Clerk shall mail its check payable to the Trust Account of Mitchell I. Kitroser, P.A. to Mitchell I. Kitroser, Esq., Mitchell 1. Kitroser, P.A., 8895 North Military Trail, C-201, Palm Beach Gardens, Florida, 33410, for disbursement in accordance with this judgment. 14. Without further order of this Court,the Clerk of this Court shall forthwith pay to COUNTY the total sum of TWENTY-TWO THOUSAND SEVEN HUNDRED SEVENTY- SIX DOLLARS AND NO/100 DOLLARS ($22,776.00), being the excess amount of COUNTY's deposit described in paragraph 4 above that remains in the registry of the Court following the payment to OWNER of the amount set forth in paragraph 13 above. Immediately upon issue, the Clerk shall mail its check payable to the Trust Account of Smolker, Bartlett, Schlosser, Loeb-& Hinds, P.A. to Jeffrey L. Hinds, Esq., Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A., 500 East Kennedy Blvd., Suite 200, Tampa, Florida 33602, for delivery to COUNTY. 15. The interest, if any, related to the deposit(s)referenced herein shall be distributed pursuant to the formula set forth in Fla. Stat. §74.051. Page 5 of 7 Packet Page -401- 5/28/2013 16.A.3. 16. There is no other or further compensation, damages, attorneys' fees and costs or experts' fees and costs due from COUNTY to OWNER in this matter as to Parcels 106FEE and 106TCE. IT The Court retains jurisdiction for determination of unpaid taxes and for enforcement of the terms of this Final Judgment as may be necessary. DONE and ORDERED in chambers in Collier County, Florida on this day of ,2013. FREDERICK R.HARDT CIRCUIT COURT JUDGE Copies furnished to: Jeffrey L. Hinds, Esquire Steven W. Young,Esquire Mitchell I.Kitroser,Esquire The Bank of New York Mellon Trust Company Larry H. Ray, Collier County Tax Collector Page 6 of 7 Packet Page-402- 5/28/2013 16.A.3. LN 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, Case No.:2013-CA-0178 vs. Parcels: 106FEE,106TCE KRG 951 &41,LLC,an Indiana Iimited liability company,et al., Respondents. JOINT MOTION FOR ENTRY OF STIPULATED FINAL JUDGMENT AS TO PARCELS 106FEE AND 106TCE Petitioner, COLLIER COUNTY,and Respondent,EMBARQ FLORIDA, INC., a Florida corporation d/b/a Centurylink,f/k/a Sprint-Florida, Incorporated,successor by merger to United Telephone Company of Florida, by and through their undersigned counsel, hereby stipulate and jointly move that the Court enter the foregoing Stipulated Final Judgment as to Parcels 1061-EE and 106TCE. Mitchell I.Kitroser,Esq. Jeffrey L.Hinds,Esq. MITCHELL I.KITROSER,P.A. SMOLKER BARTLETT,SCHLOSSER, 8995 North Military Trail,C-20 LOEB&HINDS,P.A. Palm Beach Gardens,Florida 33410 500 East Kennedy Blvd., Suite 200 (561) 721-0600 Tampa,Florida 33602 FBN: 995134 (813)223-3888 Counsel for EMBARQ FLORIDA,INC. FBN:0008710 Special Counsel to the Petitioner rI Dated this �S> day of April,2013. Dated this day of April,2013. Page 7 of 7 Packet Page-403- 5/28/2013 16.A.3. LOCATION MAP SHOWING PARCELS 106FEE & 106TCE . . ..,• 4, --,.._.„....... ,, / .. I ...J r- I TAKING FROM EMBARQ I ~^' UNMANNED SWITCHING ' ►�, STATION (PARCELS I .'N. 106FEE AND 106TCE) ,., 1 -441 I f;: gli 21 in v,„. �' 70/N2...,7 I II I '444Cre. Opal II II NN\s,_ ------,,, _1 I Packet Page-404- 5/28/2013 16.A.3. P' I ' THIS IS NOT A .SURVEYS {` L y 1 rot. "` 1 "., t i p. .. -77,,Rp ` 0 20 .40 n ;: GRAPHIC SCALE rF. , . . :. - I �` , • • nk'F.. s .'f .µ`t t rye,✓ J `.-'�. :f' 1,:....014.5 .,. ; s a y fa7GRW ",.; I t Y .• D I 41. _ YES `' ' Ir) a o', FEE , �I :. k I I FEE ; I 4i ce_ r L� 1 zl ' - - r 46;45.Vd--'1 17' .eat, v .a >� i1# — }+ ,t;, . 1 •• `' . .. 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EE..,w,a .Z.t. • •1 i SHEET NUMBER: I OF I TITLE: XISTNG C ONP1r ONS Y11311 Sp?OuNPING 'A?C 106rc Engneets,Suneyors&'Mappers Planners,Project Managers DRA WIN: r A.K, (239)597-0575 FAX:(239)597-0578 CHECKED: M.A.N. CLIENT COQ I-IFI:COUP -- - 1U O Or COUNTY COMM155IO\1CC3 6610 WIiu°w Patk onav Suite 20C Packet Page-405- "e°Ies,Fl°``fa3°'°` 5/28/2013 16.A.3. 1 THIS ':IS oT -SURVEY �,� „� l��vp / I , , < _ :'''''''.9/2i;=:._':-.,... X10< t i'H1C St ALE `r :� � i w JIt v, 106 a o° TCE - I TM p i"a„ • .4s •Y`d ;y a ry � e i C fi S . fit ` 1;1,1. .> .3 f. c t E �* "''vmm ° 9 d a✓to- , ��' ! 4,:i.',,,;,,..-2:-:!' ,�t"� r �_ a , R-1-'‘,„\ - ' ' — • if 1 643,,Z• ' - - -,. l'.. ',.-., - - - -..,?;:e!:....;..: ,,,;,:l.r.:e,":4'...,%., nY �R ..r11�... 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