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Agenda 01/11/2011 Item #16K3 Agenda Item No. 16K3 January 11, 2011 Page 1 of 10 EXECUTIVE SUMMARY Recommendation to approve a Stipulated Final Judgment in the amount of $50,500 for Parcel 811 in the lawsuit styled Collier County v. Myrtle Preserve. LLC., et al., Case No. 07-0463-CA (Lely Area Stormwater Improvement Project No. 51101.1) (Fiscal Impact $40,140) OBJECTIVE: That the Board of County Commissioners approve the attached Stipulated Final Judgment for payment of full compensation, for the taking of Parcel 811 in the lawsuit styled Collier County v. Myrtle Preserve, LLC., et. al., Case No. 07-0463-CA (Lely Area Storm water Improvement Project No. 51101.1). CONSIDERATIONS: Collier County has condemned a 0.41 acre parcel from the property owner, Cornelia Jones, for the construction of a portion of the Lely Manor canal as well as a maintenance road alongside the canal. In November 2006, the County made its statutory offer for $22,500. An Order of Taking hearing took place in August 2007 and $19,600 was deposited into the Registry of the Court for the parcel. In July of 2009, an Offer of Judgment was served on the property owner in the amount of $24,015. Neither the original offer or Offer of Judgment was accepted. Subsequent to the completion of the canal and maintenance road, the owner noticed standing water on the property and retained an engineer. The engineer concluded that the maintenance road was acting as a dam that would not allow drainage of the property, thus converting a former upland into a wetland. The owner's appraisal found that because of the wetland, the permitting and mitigation costs for the subject parcel were far greater than the value of the remainder and concluded to a compensation of $126,200, ($23,800 land, $102,400 damages). The County retained experts who agreed the parcel was indeed a jurisdictional wetland, but also concluded that it had historically been so because of several factors. They also opined that the wetland characteristics of the property were not the result of the canal or maintenance road, thus setting the stage for a classic battle of the experts at trial. Mediation was held on December 7, 2010. A settiement for compensation was reached in the amount of $50,500 and $9,240 in statutory attorney's fees. Engineer and appraiser fees will be brought before the Board at a later date. This settlement is below the midpoint of the two positions and avoids the far greater costs of further discovery and trial. If the attached Stipulated Final Judgment is approved, the County will be responsible for the following costs: Additional Amount Owed: * Attorneys fees and Costs: TOTAL $30,900.00 $ 9.240.00 $40,140.00 * Attorney's Fees are mandated by ,p3.092, F.s., and are based on 33% a/the total benefit achieved, i.e., 0.33 x ($50,500 - $22,500). FISCAL IMPACT: Funds in the amount 01'$40,140 are available in ad valorem, Stormwater Improvement Project No. 51101.1. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: This item is legally sufficient for Board action and requires a simple majority vote for approval. RNZ RECOMMENDATION: That the Board of County Commissioners authorize the Stipulated Final Judgment as to Parcel 811 and authorize payment of the funds as stated. PREPARED BY: Robert N. Zachary, Assistant County Attorney 07-0463CA/358 Agenda Item No. 16K3 January 11, 2011 Page 2 of 10 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16K3 Recommendation to approve a Stipulated Final Judgment in the amount of $50,500 for Parcel 811 in the lawsuit styled Collier County v. Myrtle Preserve, LLC., et aI., Case No. 07- 0463-CA (Lely Area Stormwater Improvement Project No. 51101.1) (Fiscal Impact $40,140) 1/11/2011 9:00:00 AM Meeting Date: Prepared By Robert N. Zachary Assistant County Attorney Date County Attorney County Attorney 12/22/2010 4:06:48 PM Approved By Robert N. Zachary Assistant County Attorney Date County Attorney County Attorney 12/22/20104:24 PM Approved By Najeh Ahmad Director - Transportation Engineering Transportation Engineering & Construction Management Date Transportation Division 12/23/20109:06 AM Approved By Norm E. Feder. AICP Administrator - Transportation Date Transportation Division Transportation Administration 12/28/2010 10:06 AM Approved By Lisa Taylor Management/Budget Analyst Date Transportation Division Transportation Administration 12/28/20102:37 PM Approved By Kevin Hendricks Manager - Right of Way Date Transportation Division Transportation Engineering & Construction Management 1/4/20119:48 AM Approved By Jeff Klatzkow County Attorney Date 1/4/201110:11 AM Approved By OMS Coordinator Date County Manager's Office Office of Management & Budget 1/4/2011 10:20 AM Approved By Susan Usher Management/Budget Analyst, Senior Date Office of Management & Office of Management & Budget 1/4/201112:31 PM Agenda Item No. 16K3 January 11, 2011 Page 3 of 10 Budget Approved By Mark Isackson Management/Budget Analyst, Senior Date Office of Management & Budget Office of Management & Budget 114/2011 2:07 PM Agenda Item No. 16K3 January 11, 2011 Page 4 of 10 IN THE CIRCUIT COURT OF THE TWENTIEm JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CML ACTION COLLIER COUNTY, a political subdivision of the State of Florida, Plaintiff, v. Case No, 07-0463-CA MYRTLE PRESERVE, LLC, et aI., Parcel 811 Defendant. I I STIPULATED FINAL JUDGMENT THIS CAUSE having come before the Court upon Joint Motion made by Petitioner, COLLLIER COUNTY, FLORIDA, by and through its undersigned counsel, and Respondent, CORNELIA JONES, by and through her undersigned counsel, for entry of a Stipulated Final Judgment as to Parcel 811 for Project No, 511011, and it appearing to the Court that the parties are authorized to make such Motion, the Court finding that the compensation to be paid by Petitioner is the full compensation due the Respondent, CORNELIA JONES, and the Court being otherwise fully advised in the premises thereof, it is thereupon ORDERED AND ADJUDGED that Respondent, CORNELIA JONES, has and recover from Petitioner, COLLIER COUNTY, the total sum of Fifty Thousand Five Hundred and No/I 00 Dollars ($50,500) for Parcel 81 I, as full payment for the property interest taken and for damages resulting to the remainder, if less than the entire property was taken, and for all other damages in cOlmection with said parcel; it is further ORDERED AND ADJUDGED that Petitioner, COLLIER COUNTY, FLORIDA, is entitled to a credit for the good faith estimate of value previously deposited in the amount of $19,600.00; it is further Agenda Item No. 16K3 January 11, 2011 Page 5 of 10 ORDERED AND ADWDGED that Petitioner, COLLIER COUNTY, FLORIDA, shall pay an additional Forty Thousand One Hundred Forty and 50/100 Dollars ($40,140.00) which includes Thirty Thousand Nine Hundred Noll 00 Dollars ($30,900,00) for additional compensation and Nine Thousand Two Hundred Forty and 50/100 Dollars ($9,240.00) for statutory attorneis fees; and it is further ORDERED AND ADWDGED that without further order of the Court, that within thirty (30) days hereof, Petitioner, COLLIER COUNTY, FLORIDA, shall pay for the benefit of Respondent, CORNELIA JONES, the total balance of $40,140.00. to the Roetzel Andress Trust Account clo Kenneth A. Jones, Esquire, 2320 First Street, Suite, 1000, Ft. Myers, FL 33901-2904 for proper disbursement in accordance with this order; it is further ORDERED AND ADJUDGED that fee simple title to Parcel 811, being fully described in Exhibit "A" attached hereto and incorporated herein, which vested in Petitioner pursuant to the Stipulated Order of Taking dated August 3, 2007, and the deposit of money heretofore made, is approved, ratified, and confirmed; it is further ORDERED AND ADJUDGED that the Notice of Lis Pendens filed in the above-styled cause and recorded in Official Record Book 185, Page 1117 of the Public Records of Collier COWlty, Florida be dismissed as to Parcel 811; it is further ORDERED AND ADJUDGED that the Mediated Settlement Agreement of December 6, 2010 that is attached hereto as Attaclunent "B", be incorporated into and made part of this Stipulated Final Judgment; it is further ORDERED AND ADWDGED that the Court will retain jurisdiction herein as to experts' costs and supplemental attorney's fees; it is further ORDERED AND ADJUDGED that this Stipulated Final Judgment is to be recorded in the Official Records of Collier County, Florida; it is further 2 Agenda Item No. 16K3 January 11, 2011 Page 6 of 10 ORDERED AND ADJUDGED that this Order disposes of all claims arising out of the taking of Parcel 811 and that have or could have been asserted in this cause; it is further DONE AND ORDERED in Chambers at Naples, Collier County, Florida, this day of ,2011. HONORABLE HUGH D. HAYES CIRCUIT COURT JUDGE conformed copies to: Robert N. Zachary, Esquire Kenneth A. Jones, Esquire Jennifer Dixon-Abbott Kevin Hendricks, Acquisition Mgr.fTransp. Accounting 3 Agenda Item No. 16K3 January 11, 2011 Page 7 of 10 JOINT MOTION FOR STIPULATED FINAL JUDGMENT Petitioner, COLLIER COUNTY, together with Respondent, CORNELIA JONES, hereby respectfully move for entry of the foregoing Stipulated Final Judgment as to Parcel 811. Dated: KENNETH A. JONES, ESQUIRE ROETZEL & ANDRESS 2320 First Street, Suite 1000 Fort Myers, FL 33901 (239) 338-4206 (239) 337-0970 ATTORNEY FOR RESPONDENT CORNELIA JONES CP: 07-0463CN357 Dated: ~OBERT N. ZACHARY Florida Bar No. 816604 ASSISTANT COUNTY A TIORNEY Harmon Turner Building 3299 East Tamiami Trail-Ste. 800 Naples, Florida 34112 (239) 252-8400 - Telephone (239) 252-6300 - Facsimile A TIORNEY FOR PETITIONER COLLIER COUNTY 4 ...:1 . ',3. . '. Agenda Item No. 16K3 January 11, 2011 Page 8 of 10 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, . v. Case No: 07-0463-CA Parcel No: 81 i MYRTLE PRESERVE, LLC., et al, Defendant. / . MEDIATED SETTLE:MENT AGREEMENT At a Mediation Conference held on December 6, 201 o beginning at 10:00 a.m., the parties reached the following Settlement Agreement. 1. Petitioner will pay to Respondent, Cornelia Jones, ~e sum of $ S1J, S~ ... in full settlement of all claims for compensation. from Petitioner whatsoever, including statutory interest, but excluding attorney's and expert's fees and costs. Said sum will be subject to claims of apportionment, if any. 2. Petitioner is entitled to a credit in the amount of $ 1 '\ G, do which was previously deposited in the registry of the Court in this case by Petitioner. 3. Counsel for Petitioner and Respondent will jointly submit to the Court for signature a mutually approved Stipulated Final Judgment in this matter as soon as practical hereafter. 4. Petitioner will pay Respondent the balance due of $ '3 0, 'I 00 within thirty (30) days of the actual date of receipt by Petitioner's counsel of a conformed copy of the aforesaid Stipulated Final Judgment from the Court. . Agenda Item No. 1.l21S~ Januflry .H~ 1 onPliMe 9 of 10 . S ..;;~ t .....C , The Courl will retain jurisdiction. herein as to the matter ofattomey's feesJ I+- tt.tI\.1 'o4iI. " If ..' . 5. 6. Settlement of this. case is conditioned upon final 'approval' by Collier County Boar~ of County Commissioners. / 7. Attached hereto i. an addendum to this agreement: / Yos . No. 8. This agreement dated December 6, 2010, and attached addendum. if any, contain(s) all of the agreementS of the parties. ~ -----I Rob1:rt N. Z arY Florida Bar No: Si6604 ounty . ,"" ., . , . , . 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