Agenda 07/09/2013 Item #16A20 7/9/2013 16.A.20.
EXECUTIVE SUMMARY
Recommendation to authorize a counteroffer of $350,000 to the business damage claim
made by Holiday CVS , LLC, for Parcels 116FEE, 116TCE1, 116TCE2 and 116TC3 in the
lawsuit styled Collier County v. RTG, et al, Case No. 13-CA-259 (U.S. 41 / Collier
Boulevard Intersection Improvement Project No. 60116) (Fiscal Impact $350,000).
CONSIDERATIONS: Collier County has taken a 9,387 square foot right-of-way parcel in fee
simple (Parcel No. 116FEE) along with three 36-month temporary construction easements
(Parcel Nos. 116TCE1, 116TCE2 and 116TCE3) containing 2,068 square feet, 119 square feet
and 3,164 square feet, respectively, for construction of at-grade improvements to the intersection
of US-41 and Collier Boulevard. The owner of the business located on the property (Holiday
CVS, LLC.) is entitled to make a claim for business damages pursuant to Section 73.015(2),
Florida Statutes.
On April 16, 2013, the business owner, Holiday CVS, LLC, presented a claim for recovery of
business damages by and through its attorney, Buell and Elligett, in the amount of$3,151,534
representing alleged damages resulting from the permanent closure of the existing business at its
present location. The business proprietor claims that the drug store will no longer be able to
operate after the taking of the right-of-way and the construction of the proposed improvements.
Pursuant to section 73.015(2)(d), Florida Statutes, the County has 120 days, or by July 15, 2013,
to make a business damage counter-offer or the counter-offer is deemed to be zero (which would
increase the County's exposure to attorney's fees). The owner's claim was evaluated by County
staff, CPA and business damages analyst, Jim Robinson, with the firm of Gersen Preston
Robinson, forensic engineer Joseph Roles, P.E., real estate appraiser, Alan Wilcox, MAI, and
outside counsel with the law firm of Smolker, Bartlett, Schlosser, Loeb and Hinds. Based on the
analysts' past experience regarding the likelihood of rejection and/or acceptance of the
settlement offer by the business proprietor, the arguments we anticipate they will make at trial,
and the anticipated rebuttal argument we would then proffer, a settlement offer is being
recommended in the amount of$350,000, exclusive of attorney's fees and expert witness costs.
If approved, and if accepted by the claimant, the County will be responsible for payment to the
business proprietor, Holiday CVS, LLC, in the amount of$350,000, exclusive of attorney fees
and expert witness costs.
The issue of full compensation for the taking of the right-of-way and the temporary easements is
still pending. Note that business damages are statutorily authorized and not included in the
definition of full compensation (which is a constitutional right).
FISCAL IMPACT: Funds in the amount of$350,000 are available in Road Impact Fees.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item has been approved as to form and legality and
requires a majority vote for approval.—ERP
RECOMMENDATION: That the Board of County Commissioners authorize the making of a
counteroffer to the business damage claim of Holiday CVS, LLC, as to Parcels 116FEE,
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7/9/2013 16.A.20.
116TCE1, 116TCE2 and 116TCE3 and authorize payment of the funds as stated if accepted by
the claimant.
Prepared by: Kevin Hendricks,Right-of-Way Acquisition Manager
Attachment: Business Damage Claim Letters (2)
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7/9/2013 16.A.20.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.16.A.16.A.20.
Item Summary: Recommendation to authorize a counteroffer of$350,000 to the business
damage claim made by Holiday CVS, LLC, for Parcels 116FEE, 116TCE1, 116TCE2 and 116TC3 in
the lawsuit styled Collier County v. RTG, et al, Case No. 13-CA-259 (U.S. 41/Collier Boulevard
Intersection Improvement Project No. 60116) (Fiscal Impact$350,000).
Meeting Date: 7/9/2013
Prepared By
Name: HendricksKevin
Title:Manager-Right of Way,Transportation Engineering
6/21/2013 3:38:14 PM
Approved By
Name: KearnsAllison
Date: 6/21/2013 4:05:33 PM
Name: ShueGene
Date: 6/23/2013 6:45:35 PM
Name: AhmadJay
Title: Director-Transportation Engineering,Transportation Engineering&Construction Management
Date: 6/26/2013 3:31:56 PM
Name: LynchDiane
Title: Administrative Assistant
Date: 6/26/2013 4:00:25 PM
Name: TaylorLisa
Title: Management/Budget Analyst,Transportation Administr
Date: 6/26/2013 4:02:18 PM
Name: PepinEmily
Title: Assistant County Attorney, CAO Litigation
Date: 6/26/2013 4:51:30 PM
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7/9/2013 16.A.2O.
Name: MarcellaJeanne
Title:Executive Secretary,Transportation Planning
Date: 7/1/2013 10:03:47 AM
Name: KlatzkowJeff
Title: County Attorney
Date: 7/1/2013 11:21:58 AM
Name: UsherSusan
Title:Management/Budget Analyst, Senior,Office of Manage
Date: 7/1/2013 1:56:20 PM
Name: OchsLeo
Title: County Manager
Date: 7/1/2013 2:35:30 PM
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7/9/2013 16.A.20.
BUELL & ELLIGETT
PROFESSIONAL ASSOCIATION
ATTORNEYS AT LAW
MARK P. BUELL""t 3003 W AZEELE STREET { . . APPELLATE PRACTICE
RAYMOND T. ELLIGETT,JR." SUITE 100 °Idea �`` O 31
COMMERCIAL LITIGATION
SHIRLEY T. FAIRCLOTH TAMPA, FLORIDA 33609
AMY S. FARRIOR• EV 1, j 'd d V EMINENT DOMAIN/
INVERSE CONDEMNATION
BOARD CERTIFIED APPELLATE LAWYER (813) 874-2600 III��4
BOARD CERTIFIED CIVIL TRIAL AND FAX (813)874-1760 x iiilll
31333 INSURANCE COVERAGE
BUSINESS LITIGATION LAWYER
t CERTIFIED CIRCUIT COURT MEDIATOR W'RW.BEI.AWTAMPA.com PLAINTIFFS'PERSONAL INJURY
April 16, 2013
Mark P.Buell
I3uellribelawtampa.com
Via Certified Mail,
Return Receipt Requested
Right-of-Way Acquisition Section
Transportation Engineering Department
Collier County Growth Management Division
2885 Horseshoe Drive South
Naples, FL 34104
Re: Collier County Project No. 50116
Our Client: CVS 47899 (Naples)
Parcels: 116FEE, 116TCE I, 116TCE2, & 116TCE3
Dear Sir or Madam:
Please consider this Holiday CVS,LLC's good faith offer,pursuant to Florida Statute
§73.015 to settle business damage claims relating to the above store in the amount of
$3,151,534. Enclosed is an explanation of the nature, extent, and monetary amount of
damage prepared by Morgenstern, Phifer&Messina, P.A. dated April 16, 2013, along with
copies of business records substantiating the good faith offer to settle the business damage
claim. This is based on information provided by Collier County relating to the taking. If
there are future changes, please provide them as soon as reasonably possible after the
information is available.
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7/9/2013 16.A.2O.
Right-of-Way Acquisition Section
April 16, 2013
Page 2
I look forward to your response. Please let me know if there are questions.
//7 Singly:f�
,/ � ` fi fir
/Mark P. Buell
MPB/msm
Enclosures
cc: Jay Bartlett, Esq.
Dennis Murphy, Esq. (via e-mail without business records enclosure)
Christopher Mercer, Esq. (via e-mail without business records enclosure)
Lesley A. Fryncko, Paralegal (via e-mail without business records enclosure)
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• 7/9/2013 16.A.20.
MORGENSTERN PHIFER& MESSINA,P.A.
CERTIFIED PUBLIC ACCOUNTANTS
LLOYD J.MORGENSTERN,C.P.A. BANK OF AMERICA PLAZA
STEPHEN C.PHIFER,C.P.A. SUITE 1480 MEMBERS
MICHAEL P.MESSINA,C.P.A. 101 EAST KENNEDY BOULEVARD AMERICAN INSTITUTE OF
BRIAN K GRAFF,C.P.A. TAMPA,FLORIDA 33602 CERTIFIED PUBLIC ACCOUNTANTS
JONATHAN L MILTON,C.P.A. FLORIDA INSTITUTE OF
EDWIN L PINZ:N,C.P.A. TELEPHONE(813)222-8888 CERTIFIED PUBLIC ACCOUNTANTS
LISA M.WEINBERGER,C.P.A. FACSIMILE(813)222-8895
MICHAEL C.MESSINA,C.P.A.
April 16,2013
Mark P. Buell, Esquire
Buell &Elligett
Attorneys At Law
3003 West Azeele Street
Suite 100
Tampa, Florida 33609
Re: CVS Pharmacy, Inc. D/B/A CVS#7899
6800 Collier Boulevard,Naples,FL
Parcel numbers 116, 116TCE1, 116TCE2 and
116TCE3 (Collier County)
Dear Mr. Buell:
At your request, attached are workpapers supporting our preliminary business damage
calculations on the above referenced business. The taking is along the entire Collier Boulevard
frontage at a depth of 28.5 feet at the northeast property line with additional property taken at the
intersection with U.S. Highway 41. The taking severs the front parking area including portions
of 11 parking spaces and will result in the loss of numerous other parking spaces. The taking
also includes the business sign and the entire landscape buffer along Collier Boulevard. In
addition,three separate temporary construction easements are taken.
As previously mentioned, the taking severs 11 front parking spaces and will result in the
loss of numerous other parking spaces in close proximity to the front door. Without adequate
and convenient customer parking spaces, the business will no longer be able to continue
operating at this site.
The calculations contained herein represent the probable damages to the business which
the denial of the use of the property so taken may reasonably cause and include, but are not
limited to, the following:
• Permanent impacts to number and quality of customer parking spaces on continued
business operations
• Permanent impacts of sign visibility on continued business operations
• Permanent impacts to site circulation on continued business operations
• Permanent impact of loss of site utility on continued business operations
• Permanent impact of lost expansion potential on continued business operations
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7/9/2013 16.A.20.
Amkt
Mark P. Buell, Esquire
April 16, 2013
Page 2
Based on permanent closure, the capitalized cash flows method and other costs
associated with closure indicate business damages totaling$3,151,534 (weighted average).
We reserve the right to modify our findings as a result of changes in information relied
upon in the preparation of these calculations or in the event that new facts or circumstances
come to our attention. These calculations constitute a summary of the work performed by our
firm. Additional supporting data is contained in our files.
Respectfully,
tt4,79 j • gler/14,r4-1-----
Lloyd J. Morgenstern, C.P.A.
Enclosures
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