Agenda 06/26/2012 Item #16K 16/26/2012 Item 16.K.1.
Executive Summary
Recommendation to Approve an Agreed Order Awarding Expert Fees and Attorney Fees
in connection with Parcels 111FEE and 111TCE in the lawsuit styled Collier County v. A L
Subs, Inc., et al., Case No. 09- 3691 -CA, Collier Boulevard Project No. 60092 (Fiscal Impact:
$94,600).
OBJECTIVE: That the Board of County Commissioners approve an Agreed Order awarding
expert fees and attorney fees in connection with Parcels 111FEE and IIITCE in the lawsuit
styled Collier County v. A L Subs, et. al., Case No. 09- 3691 -CA.
CONSIDERATIONS: On December 14, 2011, the Board of County Commissioners approved
a Stipulated Final Judgment in settlement of Parcels II1FEE and 111TCE with Respondents,
Circle K Stores, Inc., the owner, and Petro -Gate, Inc., the tenant. The primary issue in this case
was damages associated with the closure of an exit driveway on Beck Boulevard. As part of the
settlement, the County agreed to allow the exit to remain and to pay for reasonable attorney fees
based on actual hourly time rather than by monetary and non - monetary benefits achieved.
Respondent's attorney fees would be well over the requested $65,000 if it were computed based
on the value of an exit driveway. Pursuant to Section 73.091(1), F.S., the County is required to
pay reasonable expert fees and expenses incurred in the defense of this matter. On March 27,
2012, the Board approved an Agreed Order to settle the expert fees and costs of Respondent,
Circle K Stores, Inc. To conclude this matter, the County needs to settle the expert fees and costs
of Respondent, Petro -Gate, Inc. Staff recommends payment of the following:
the terms of which are set out in the Agreed Order Awarding Expert Fees and Attorney Fees
attached as Exhibit "A ".
Staff has reviewed the expert fees as set forth in the Agreed Order and considers them to be
reasonable in light of the statutory requirements as to costs and fees imposed upon the
condemning authority. If the County goes to a cost hearing, the County is not required to pay the
expert that is requesting the fee, but the County is required to pay reasonable fees of any experts
that are retained by owner to testify as to the reasonableness of the fee. This means another
planner, another engineer, another petroleum consultant, another CPA and an attorney's fee
expert. Plus the County will need to hire experts to counter owner's experts, and the County will
have to pay owner's attorney hourly for supplemental proceedings.
FISCAL IMPACT: Funds in the amount of $94,600 are available in impact fees. Source of
funds are Impact Fees.
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Negotiated
Invoiced
Percentage
Amount
Amount
of Invoice
Planning Fees
$ 1,700.00
$ 1,771.00
96.0%
Traffic Engineer Fees
$ 4,250.00
$ 4,985.00
85.3%
Petroleum Consultant Fees
$ 2,650.00
$ 3,135.01
84.5%
CPA Fees
$21,000.00
$ 25,851.75
81.2%
Attorney Fees
$65,000.00
$ 76,934.00
84.4%
TOTAL
$94,600.00
$112,276.76
84.3%
the terms of which are set out in the Agreed Order Awarding Expert Fees and Attorney Fees
attached as Exhibit "A ".
Staff has reviewed the expert fees as set forth in the Agreed Order and considers them to be
reasonable in light of the statutory requirements as to costs and fees imposed upon the
condemning authority. If the County goes to a cost hearing, the County is not required to pay the
expert that is requesting the fee, but the County is required to pay reasonable fees of any experts
that are retained by owner to testify as to the reasonableness of the fee. This means another
planner, another engineer, another petroleum consultant, another CPA and an attorney's fee
expert. Plus the County will need to hire experts to counter owner's experts, and the County will
have to pay owner's attorney hourly for supplemental proceedings.
FISCAL IMPACT: Funds in the amount of $94,600 are available in impact fees. Source of
funds are Impact Fees.
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6/26/2012 Item 16.K.1.
GROWTH MANAGEMENT IMPACT• This project will further the goals and policies of the
Collier County Growth Management Plan.
LEGAL CONSIDERATIONS: This item was prepared by the County Attorney's Office and is
legally sufficient for Board action. A majority vote is required for Board approval. (HFAC)
RECOMMENDATION: That the Board of County Commissioners approve the Agreed Order
and the expenditure and disbursement of funds as stated.
PREPARED BY: Heidi Ashton - Cicko, Managing Assistant County Attorney
Attachments: (1) Agreed Order
CP \09- 3691 \4900
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6/26/2012 Item 16.K.1.
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.1.
Item Summary: Recommendation to Approve an Agreed Order Awarding Expert Fees and
Attorney Fees in connection with Parcels 111FEE and 111TCE in the lawsuit styled Collier
County v. A L Subs, Inc., et al., Case No. 09- 3691 -CA, Collier Boulevard Project No. 60092 (Fiscal
Impact: $94,600).
Meeting Date: 6/26/2012
Prepared By
Name: CrotteauKathynell
Title: Legal Secretary,County Attorney
6/11/2012 10:08:43 AM
Approved By
Name: TaylorLisa
Title: Management /Budget Analyst,Transportation Administr
Date: 6/11/2012 1:27:45 PM
Name: HendricksKevin
Title: Manager - Right of Way,Transportation Engineering
Date: 6/11/2012 4:37:44 PM
Name: AhmadJay
Title: Director - Transportation Engineering,Transportation Engineering & Construction Management
Date: 6/12/2012 1:47:12 PM
Name: MarcellaJeanne
Title: Executive Secretary,Transportation Planning
Date: 6/13/2012 5:28:11 PM
Name: AshtonHeidi
Title: Section Chief /Land Use- Transportation,County Attor
Date: 6/15/2012 2:55:24 PM
Name: KlatzkowJeff
Title: County Attorney
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Date: 6/15/2012 4:58:18 PM
Name: UsherSusan
Title: Management /Budget Analyst, Senior,Office of Manage
Date: 6/18/2012 1:00:39 PM
Name: OchsLeo
Title: County Manager
Date: 6/18/2012 1:23:42 PM
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6/26/2012 Item 16.K.1.
6/26/2012 Item 16.K.1.
THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CIVIL ACTION
COLLIER COUNTY, a political
subdivision of the State of Florida,
Petitioner,
vs,
A L SUBS, INC., et al,
Respondents.
r
Case No.: 09- 3691 -CA
Parcel Nos.: 111 FEE, 111TCE
AGREED (ORDER
THIS CAUSE, having come before the Court upon joint motion made by Petitioner,
COLLIER COUNTY, FLORIDA, by and through its undersigned counsel, and Respondent,
PETRO -GATE, INC., by and through its undersigned counsel, for entry of an Agreed Order, and
the Court being fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that Respondent, PETRO -GATE, INC., receive from
Petitioner, COLLIER COUNTY, FLORIDA, the sum of One Thousand Seven Hundred
Dollars and No /100 ($1,700.00) for the planning fees of Morris DePew Associates, Inc. in
connection with Parcels I I IFEE and I l ITCE; it is fin-ther
ORDERED that Respondent, PETRO -GATE, INC., receive from Petitioner, COLLIER
COUNTY, FLORIDA, the sum of Four Thousand Two Hundred Fifty Dollars and No /100
(54,250.00) for the traffic engineering fees of Traf Tech Engineering, Inc. incurred in connection
with Parcels I I IFEE and 1.11TCE; it is further
ORDERED that Respondent, PETRO -GATE, INC., receive from Petitioner, COLLIER
COUNTY, FLORIDA, the sum of Two Thousand Six Hundred Fifty Dollars and No /1.00
($2,650.00) for the petroleum consultant fees of Moe Bern & Associates, Inc. incurred in
connection with Parcels 111FEE and I I ITCE; it is further
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6/26/2012 Item 16.K.1.
ORDERED that Respondent, PETRO -GATE, INC., receive from Petitioner, COLLIER
COUNTY, FLORIDA, the sum. of Twenty-One Thousand Dollars and No /100 ($21,000.00)
for CPA fees of Fiske & Company incurred in connection with Parcels 1 l IFEE and 111TCE; it
is further
ORDERED that Respondent, PETRO -GATE, INC., receive from Petitioner, COLLIER
COUNTY, FLORIDA, the sum of Sixty -Five Thousand Dollars and No/100 ($65,000.00) for
attorney fees incurred in connection with Parcels 111 FEE and 111 TCE; it is further
ORDERED that within thirty (30) days of receipt of the Agreed Order entered by the
Court, Petitioner, COLLIER COUNTY, FLORIDA, shall disburse the sum of Twenty -Nine
Thousand Six Hundred Dollars and No /100 ($29,600.00) to the GREENSPOON MARDER
TRUST ACCOUNT c/o THOMAS R. BOLT, ESQUIRE, GREENSPOON MARKER, P.A., 200
East Broward Boulevard, 15''' Floor, Fort Lauderdale, Florida 33301 for the benefit of
Respondent, PETRO -GATE, INC., for expert fees for Parcels I I IFEE and 111TCE; it is further
ORDERED that within thirty (30) days of receipt of the Agreed Order entered by the
Court, Petitioner, COLLIER COUNTY, FLORIDA, shall disburse the sum of Sixty -Five
Thousand Dollars and No /100 ($65,000.00) to THOMAS R. BOLF, ESQUIRE,
GREENSPOON MARDER, P.A., 200 East Broward Boulevard, 15a' Floor, Fort Lauderdale,
Florida 33301 for attorney fees for Parcels 111 FEE and 111 TCE; it is further
ORDERED that this Order disposes of all claims of Respondent, PETRO -GATE, INC.
DONE AND ORDERED this _ day of , 2012, in Naples, Collier County,
Florida.
CYNTHIA A. PIVACEK
Conformed. Gies: Circuit Court Judge
.
Heidi Ashton -Cicko Esquire
Thomas R. Bolf, Esquire
Lorena Dart Ludovici, Esquire
Brenda C. Garretson, Esquire
Shell Oil Company
Toll Gate Commercial Center Property Owners Assn., Inc.
Kevin Hendricks, Transportation ROW Acquisition Manager
Bookkeeping
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6/26/2012 Item 16.K.1.
JOINT MOTION
The Parties, by and through their undersigned attorneys, hereby move for entry of the
foregoing Agreed Order as to Parcels 111 FEE and 111TCE.
Dated:
THOMAS R. GOLF, ESQUIRE
Florida Bar No.: 454419
GREENSPOON MARDER, P.A.
200 East Broward Boulevard, l 5th Floor
Fort Lauderdale, Florida 33301
Telephone: (954) 527 -2474
ATTORNEY FOR RESPONDENT,
PETRO -GATE, INC.
CP \09- 3691 -CA \4899
Dated:
0 _
HEIDI ASHTON- CICKO, ESQUIRE
Florida Bar No.: 966770
COLLIER COUNTY ATTORNEY'S OFFICE
3299 East Tamiami Trail, Suite 800
Naples, Florida 34112
Telephone — (239) 252 -8400
ATTORNEY FOR PETITIONER,
COLLIER COUNTY, FLORIDA
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