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Agenda 09/10/2013 Item #16A25 9/10/2013 16.A.25. EXECUTIVE SUMMARY Recommendation to authorize a counteroffer of $15,000 to the business damage claim made by Southern Management Corporation, d/b/a Burger King, for Parcels 112FEE, 113FEE and 113TCE in the lawsuit styled Collier County v. New Plan Florida Holdings, LLC, et al„ Case No. 13-CA-238 (U.S. 41 / Collier Boulevard Intersection Improvement Project No. 60116) (Fiscal Impact $15,000). OBJECTIVE: That the Board of County Commissioners ("Board") authorize approval of a counteroffer to the business damage claim relating to the taking of Parcels 112FEE, 113FEE and 113TCE in the lawsuit styled Collier County v. New Plan Florida Holdings, LLC, et al„ Case No. 13-CA-238 (U.S. 41 / Collier Boulevard Intersection Improvement Project No. 60116). CONSIDERATIONS: Collier County has taken a 2,550 square foot right-of-way parcel in fee simple (Parcel No. 112EE) from the property owned by Southern Management Corporation, d/b/a Burger King, an out-parcel located in the Freedom Square shopping center. Also taken was a right-of-way parcel in fee simple containing 1,198 square feet (Parcel No. 113FEE) and a 36- month temporary construction easement (Parcel Nos. 113TCE) containing 650 square feet. Parcels 113FEE and 113TCE were taken from the shopping center parent tract property owned by New Plan Florida Holdings, LLC. All of these parcels were required for the construction of at-grade improvements to the intersection of US-41 and Collier Boulevard. The owner of the business located on the Southern Management Corporation property (Burger King), whose. access to and from the public road network is over and across the New Plan Florida Holdings, LLC, property, is entitled to make a claim for business damages pursuant to Section 73.015(2), Florida Statutes. On July 11, 2013, the business owner, Southern Management Corporation, d/b/a Burger King, presented a claim for recovery of business damages by and through its attorney, Mary J. Dorman in the amount of$420,003 representing alleged damages resulting from the taking of the above- referenced parcels. The business proprietor's engineer claims that vehicles exiting the shopping center after the taking of the right-of-way and the construction of the proposed improvements will queue-up across one of the entrances to the Burger King restaurant (the entrance closest to US-41), and that after construction of the proposed improvements the restaurant will suffer reduced visibility. The business proprietor's certified public accountant claims that the restaurant will suffer a 10% (ten percent) permanent business damage as a result of the construction of the proposed improvements. Pursuant to section 73.015(2)(d). Florida Statutes, the County has 120 days, or by November 8, 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, 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$15,000 exclusive of attorney's fees, expert fees and costs. Packet Page -570- 9/10/2013 16.A.25. 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 $15,000 are available in Transportation Impact Fees. 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 authorize the making of a counteroffer to the business damage claim of Southern Management Corporation, d/b/a Burger King, in the amount of $15,000, as to Parcels 112FEE, 113FEE and 113TCE and authorize payment of the funds as stated, if accepted by the claimant. PREPARED BY: Kevin Hendricks, Right-of-Way Acquisition Manager, Growth Management Division, Transportation Engineering Attachments: (1) July 11, 2013 Letter from Mary J. Dorman, Esq.; (2) June 28, 2013 Letter from Lloyd J. Morganstern, C.P.A.; (3)June 27, 2013 LMA Letter; and(4) Location Map Packet Page -571- 9/10/2013 16.A.25. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.A.16.A.25. Item Summary: Recommendation to authorize a counteroffer of$15,000 to the business damage claim made by Southern Management Corporation, d/b/a Burger King,for Parcels 112FEE, 113FEE and 113TCE in the lawsuit styled Collier County v. New Plan Florida Holdings, LLC, et al„ Case No. 13-CA-238 (U.S. 41/Collier Boulevard Intersection Improvement Project No. 60116) (Fiscal Impact $15,000). Meeting Date: 9/10/2013 Prepared By Name: HendricksKevin Title: Manager-Right of Way,Transportation Engineering 8/1/2013 4:55:20 PM Approved By Name: LynchDiane Title: Administrative Assistant Date: 8/6/2013 5:44:46 PM Name: TaylorLisa Title: Management/Budget Analyst,Transportation Administr Date: 8/8/2013 9:18:48 AM Name: KearnsAllison Date: 8/12/2013 10:42:49 AM Name: AhmadJay Title: Director- Transportation Engineering,Transportation Engineering&Construction Management Date: 8/13/2013 8:56:10 AM Name: ShueGene Date: 8/14/2013 1:46:01 PM Name: PepinEmily Title: Assistant County Attorney, CAO Litigation Date: 8/15/2013 4:42:07 PM Packet Page -572- 9/10/2013 16.A.25. Name: MarcellaJeanne Title: Executive Secretary,Transportation Planning Date: 8/19/2013 8:01:21 AM Name: KlatzkowJeff Title: County Attorney Date: 8/20/2013 10:09:54 AM Name: UsherSusan Title: Management/Budget Analyst, Senior,Office of Manage Date: 8/23/2013 3:24:06 PM Name: OchsLeo Title: County Manager Date: 8/25/2013 10:10:24 AM Packet Page -573- 9/10/2013 16.A.25. Mary J. Dorman Attorney at Law 305 South Brevard Avenue Suite 100 Tampa, Florida 33606 Via electronic mail to Jay Bartlett Counsel for Collier County jayb@smolkerbartlett.corn July 11, 2013 RE: Collier County vs. New Plan Florida Holdings LLC Case Number: 13-CA-238 Southern Management Corporation's Interest in Parcels 112 and 113 Good Faith Written Offer To Settle Any Claims of Business Damage Dear Mr. Bartlett: Pursuant to Section 73.015(2)c, Florida Statutes, enclosed please find Southern Management Corporation's good faith written offer to settle any claims of business damage in the above-referenced matter for the sum of$420,003 exclusive of attorney's fees and costs. In exchange for Southern Management Corporation's stipulation to the Order of Taking in this matter, Collier County agreed to extend the time in which Southern Management Corporation could submit its good faith written offer to settle any claims of business damage to Juiy 15, 2013. While Section 73.015(2)c states that the good faith written offer is to be sent by certified mail return receipt requested to the condemning authority, and the Notices to Business Owner state that the good faith written offer should be sent to Collier County's Right-of-Way Acquisition Section by certified mail return receipt requested, you stated to me today that you would prefer that I email the good faith written offer to you. As required by Section 73.015, Florida Statutes, Southern Management Corporation's good faith written offer to settle any claims of business damage includes an explanation of the nature,extent and monetary amount of business damages prepared by Morgenstern Phifer & Messina, P.A., Certified Public Accountants. Copies of Southern Management Corporation's business records, which substantiate the good faith written offer to settle Southern Management Corporation's business damage claim, are also included with this offer package. These records are as follows: 1. Income Statements For the years ended December 31,2008 through 2012 For the four months ended April 30, 2013 2. Sales and Use Tax Returns (Form DR-15) Packet Page -574- 9/10/2013 16.A.25. Avow For January 2008 through April 2013 3. Sales statistics by type (drive-through, take out. dine-ini From May 2012 through May 2013 4. Fixed Asset/ Depreciation Schedules For the years ended December 31, 2008 through 2012 Please note that Collier County's construction plans and right of way maps were considered in making this offer. In addition, engineering analysis of Leland E. Moree, Ill, P.E., P.L.S. was also considered in making this offer. Southern Management Corporation has operated a Burger King restaurant at the subject location in excess of 5 years and is an established business for purposes of Section 73.071(3)(b), Florida Statutes. The impacts of the proposed taking of Parcels 112 and 113 and the business owner's denial of the use of the land taken result in permanent damages to the business operating on the adjacent lands. In the event changes are made to Collier County's construction plans, Southern Management Corporation reserves the right to revise this business damage claim as it deems appropriate based on said changes or revisions to Collier County's construction plans. Similarly, should additional information that affects its business damage claim become known to Southern Management Corporation that is not currently known, Southern Management Corporation reserves the right to consider such additional information. Pursuant to Section 73.0155(1), Florida Statutes, Southern Management Corporation requests that the business records provided herewith be held confidential and exempt from the disclosure provisions in Section 24(a), Art. I of the Florida Constitution and Section 119.07(1), Florida Statutes. Moreover, Southern Management Corporation hereby states its belief that the disclosure of the business records submitted herewith is likely to cause substantial harm to its competitive position. This letter and enclosures are being provided strictly for purposes of settlement negotiations and are therefore inadmissible in the compensation trial of this matter. Please call me at your convenience once you have had a chance to review this offer and enclosed documents. Thank you for your consideration and I look forward to hearing from you. Very Truly Yours, Mary J. orman Counsel for Southern Management Corporation Enclosures Packet Page -575- 9/10/2013 16.A.25. 31622 US 19 North Palm Harbor,Florida 34684 SLAIN grin PYL.; Phone:(727)789-5010 .„€ # . Toll Free:1.800-262-7960 =Me Landon, Moree & Associates, Inc. Fax:(727)787-4394 WWW.I.MAENGR.COM Civil & Environmental Engineers-Planners-Surveyors MOREEeLMAENGR.COM June 27, 2013 Dorman &Associates P.L. 305 S. Brevard Avenue, Suite 100 Tampa, Florida 33606 Attention: Mary Jewel Dorman Re: COLLIER COUNTY vs. SOUTHERN MANAGEMENT CORPORATION COLLIER COUNTY PROJECT NO.: 428147-1-58-01 S.R. 90 (U.S. 41) & S.R./C.R. 951 INTERSECTION CAPACITY IMPROVEMENTS PARCEL 112, 12651 TAMIAMI TRAIL E., NAPLES, FLORIDA 34113 Dear Ms. Dorman: As requested, please be advised I have completed my preliminary engineering analysis for the above referenced property located at 12651 Tamiami Trail East, Naples, Florida 34113. This analysis is based on the parcel sketch and legal description prepared by RWA Consulting dated June 13, 2012 and construction plans prepared by Stanley Consultants, Inc. with a print date of November 2012. The parent tract for Parcel 112 is under the ownership of Southern Management Corporation and is located in Section 3, Township 51 South, Range 26 East, Collier County, Florida. The parent tract is a commercial parcel in the Lely Resort PUD doing business as a Burger King fast food restaurant with drive-thru facilities. The parent tract contains 46,758 square feet (1,073 acres) and is rectangular in shape. The parent tract has 170.02 feet of road frontage along the north side of State Road 90 (U.S. 41) and a depth of 275.00 feet, The parent tract is located at the northwest corner of the "Celeste Drive T” intersection. Adjacent to the property State Road 90 (U.S. 41) is a six lane divided roadway with bicycle lanes and public sidewalks. The northbound lanes are striped with a continuous dedicated right turn lane from Collier Boulevard to the south to Triangle Boulevard to the north. Celeste Drive is a two lane divided roadway that leads to multiple commercial properties. Access to the property is provided by two driveway connections connected to Celeste Drive. The State Road 90 (U.S. 41)/Celeste Drive intersection is limited to right-in/right-out vehicle turning movements due to the raised median in State Road 90 (U.S. 41). Collier County is proposing to acquire the south 15 feet of the parent tract adjacent to the State Road 90 (U.S. 41) frontage for the construction of a public transit concrete bus Civil & Environmental Engineers - Planners- Surveyors Packet Page-576- 9/10/2013 16.A.25. shelter pad, relocation of public sidewalk and grading of a roadside ditch. The acquisition is known as Parcel 112 and contains 2,550 square feet {0.059 acres). .r. Parcel 112 consists of 5.45 percent of the parent tract. In the after condition the remainder tract will contain 44,208 square feet (1.014 acres). In the before condition exiting vehicles can pull up to the back of the public sidewalk which is adjacent to the through lane to perform the stop maneuver. This allows three vehicles to stack in a queue prior to interfering with the Celeste Drive median opening and entry drive. Please review our BEFORE TAKE drawing for reference. In the after condition Collier County will construct an 8 foot wide (5 feet paved and 3 feet stabilized) shoulder adjacent to the outside through lane and excavate a roadside ditch with a 12 foot wide flat bottom. The ditch will be graded with a 6:1 front slope and a maximum 3:1 back slope. The sidewalk will be constructed 6 feet wide and have a 2 foot wide level clear zone grass area separation from the new right of way. The sidewalk will transition with a 45 degree angle to match the existing sidewalk and provide space to construct a 20 foot wide by 9 foot deep concrete bus shelter pad toward the west end of the remainder. The dedicated right turn lane in State Road 90 (U.S. 41) will be re-striped with a "bus only" turnout lane adjacent to the remainder. The Celeste Drive intersection will have the existing landscape median shortened and be re-striped with a painted median, directional right turn lane and cross walk. Please review our AFTER TAKE drawing for reference. In the after condition the right of way acquisition and construction will have a negative impact on the remainder property. The remainder will experience reduced visibility from State Road 90 (U.S. 41) due to the construction of the bus shelter. In the after condition the relocated sidewalk will create a second location for vehicles to stop and yield to pedestrians on the sidewalk potentially blocking the front driveway from the relocated vehicle queue until the sidewalk becomes clear. Please do not hesitate to contact me should you have any questions regarding this information. Sincerely, LANDON, MOREE &ASSOCIATES, INC. Leland E. Moree, Ill, P. E., P.L.S. Cc: File: 581-10.000 F:1Projects1581-10 So.Mgt.CorplDocs1581.10 P-112 2013-06-27.doc Civil & Environmental Engineers— Planners-Surveyors Packet Page -577- 9/10/2013 16.A.25. -.... N. N. ... • / ,0 / / ,... LP / ,/..... ,.. //,/... IS...4 /• • D ... ar STORM/I/ATER POND /_ • /N•■ • • d' N'(//a, ' //IN •y' diqk' / / • „.. • . /•'() „"N‘i • / N... 15 00 / • ... ■ '''',1/ •41 "... /N ` V' ''',)i.p • '4Z`'. / ' , , 41),•-• . /.5,,`) ''*NA 4 0‘, / '' • - • 4, Q. -.. Nit'''C3I CO . /4P,,, 4,'' ,,,, 0 • „O LF `,./•-•7':• ■• ,,, k :■■ / ■ 00,IP 0 ..-- /ss••••••■■ ,:„., 15 00 os, Aiis i ir"'- ''‘, ''''c 1 i' '':' •■ NIIF41 ...,, ' . N ■ 1#* Or 's 2' '<I ' ', .!) N,---. . , •:. , ■—•- '''', N --- ` * '" :- ''-‘, ,... . . * ...,„ . „ `..' . . '`. . .' ' - -",..,__..,,..,....,..,. No PARCEL 112 1 RIGHT OF WAY(FEE SIMPLE) PARCEL 113 RIGHT OF WAY(FEE SIMPLE) PARENT TRACT: 46.758 S.F./1.073 AC N 1 PARCEL 113 TCE PARCEL 112: 2,550 S F/0 059 AC TEMPORARY CONSTRUCTION EASEMENT REMAINDER: 44.208 S.F./014 AC 1 1 I BEFORE TAKE SCALE'1"=50' STATE ROAD 90 11111 Landon,MorostAt Associates,Inc. SOUTHERN MANAGEMENT CORP. .....------------. 31622 U.S.19 North Palm Harbor,Fiend*3,884 Phone:(727)7119.8010.Fox1(727)7874394 PARCEL 112 Toll Free:(BOO)282-7980,411119181.19AENOR.Cont I MA 1(1R ft.SR1 in nnn Packet Page -578- 9/10/2013 16.A.25.•• / LP • i / ),. ♦ \`\a. LP • D /Q9')'\S°o 9. M / ASONRY WALL / ' / / STORMWATER POND / DECORATIVE METAL FENCE <6.1e°j ` / i / / L / P • /• \.:� .� , / BURGER KING '�\`\ ,,\,,,,... c,.., . , /Nt ' ../ / ■ ,_. '-- --,_ .s.,,.,,i A28. ® LP �I q• / 0 1/Q '''''f' ® i 4 \ '',',_mss / f.�, 4 \ 1,...\\�'. •9 ` -i Tom\ PAVED SHOULDER \ IPA `� \ P`i' ,`,, ..... ,, ..,_,...,... \,„, ,, ,,, . ,, , „(,...„ . ‘ „,„ N.... "----- , 1 I PARCEL 113TCE 1 TEMPORARY CONSTRUCTION EASEMENT I i AFTER TAKE SCALE:1"=50' STATE ROAD 90 4..04, IllilMA don,Mores&Associates,Inc. SOUTHERN MANAGEMENT CORP. 6--------------" -a --ntal En i.a.-a-,Mnnara.--.fir: 31622 U.S.18 north Palm Harbor,Florida 34884 PARCEL 112 .h...:(2O)25 ,o.F.,: .LMAC CIR.0 ralFr..:(sooits3asso.www.rrrweMan.cem "°"'R fk Packet Page -579- 'G""� 9/10/2013 16.A.25. 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 PINZbN,C.P.A. CERTIFIED PUBLIC ACCOUNTANTS LISA M.VVEINBERCER,C.P.A TELEPHONE(813)222-8888 MICHAEL C.MESSINA,C.P.A. FACSIMILE(813)222-8895 June 28,2013 Mary J. Dorman,Esquire Dolman&Gutman, P.L. 305 South Brevard Avenue, Suite 100 Tampa,FL 33606 Re: Southern Management Corporation DB/A Burger King#70 12651 Tamiami Trail East,Naples,Florida Collier County, Parcel numbers 112, 113FEE and 113TCE Dear Ms. Dorman: At your request, attached are workpapers supporting our preliminary business damage calculations on the above referenced business. The taking is a strip along the entire U.S. Highway 41 frontage at a depth of 15 feet and includes the landscaping and drainage improvements. There is also a temporary construction easement taken at the U.S. Highway 41 driveway. The take will result in the reduction in available stacking area for customers exiting the site and is expected to permanently impact business operations. 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 impact of loss of landscaping on continued business operations • Permanent impact of quality of driveway and lost vehicle stacking 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 Based on a 10% permanent loss, business damages total $420,003 as detailed in the following schedules. Packet Page-580- • 9/10/2013 16.A.25. Mary J. Dorman,Esquire June 28,2013 Amok Page 2 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, 411) Lloyd J. Morgenstern, C.P.A. Enclosures • Packet Page-581- 9/10/2013 16.A.25. LOCATION MAP ' . *- : , , . ,-;;-....'9141 "1 i .. ... .. ,„ , f ■ ,'' __-_-.-4.-- , ,... '"",".7.t"''''''1',,,..!,--2k 1/ ,,' ''''''''' . £ .; ' :tit ,°°"t it F sMT� 'h -b _ m b'kr,,,,s -,,,,- -- ' ivt ' :,- ,,-' - „...;,,,,,,''. '''':0 -.410 '*jf• / , v"`� . BURGER KING � .. a � � PROPERTY ..:-/,,.� Ar,...204,„ ?,,,,71.44., - , - ..1.-,--...; , , ..:4 .. ,.a , ,F ' ,.... , ,.„,„„ .,,,,-.,„:.,4,:......, ,--,, ,,,,,,,... .,;... . - ,....4/ �'. . r -� ,.... } .ee * ? z �' .4.* +� N. is , et, ht., y {�,otfr ++TT Ear �' dir 5y, i 4 Packet Page -582-