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Agenda 05/10/2011 Item #16K1 5/10/2011 Item 16.K.1. EXECUTIVE SUMMARY Recommendation to Approve a Stipulated Final Judgment in tbe Amount of $297,500.00 for tbe Acquisition of Parcel 111 in tbe Lawsuit Styled Collier County v. NB Holdings Corporation, et 01., Case No. 06-0658-CA (Santa Barbara Boulevard Project No. 62081). Fiscallmpact: $314,737) OBJECTIVE: That the Board of County Commissioners approve a Stipulated Final Judgment in the amount of $297,500.00 for payment of full compensation for the taking of Parcel 111 in the lawsuit styled Collier County v. NB Holdings Corporation. et al.. Case No. 06-0658-CA (Santa Barbara Boulevard Project No. 62081). CONSIDERATIONS: The County acquired 0.037 acres from property owners KB Enterprises of Naples, LLC for the construction of roadway improvements to Santa Barbara Boulevard. The County's initial appraisal dated January 11, 2006, valued the taking at $58,600. The County offered the owner $58,600 as the County's statutory offer in January 12, 2006. An updated appraisal, dated July 8, 2006, showed a change in the market value of$61,600 for the taking. An Order of Taking hearing was held on August 4,2006, and the County deposited the sum of$61,600 in the Court Registry. The owners' appraiser valued the taking at $559,136, which included $35,706 for the land, $445,000 in severance damages, $68.350 in cost-to-cure expenses, as well as $10,080 for improvements in the take. As a result of the taking, the prior entrance to the commercial building directly onto Radio Road was c1oscd. The owner's tenants and customers must now enter from the rear of the building. Mediation was held and monetary issues were agreed to pending the resolution of the administrative variances. The parties agreed to settle the compensation in this matter in the amount of $297.500 plus statutory Attorney's fees which are determined by statute to be $78.837. A hearing on the property owners' Motion to Tax Expert fees and costs will be heard on April 18, 20 II. Negotiations to settle prior to the hearing are in progress. Also, if the administrative variances are not granted, supplemental attorney's fees and damages will need to be resolved at that time. Attached is the pmposed Stipulated Final Judgment. If the settlement is approved, the County is responsible for the following costs: . Additional Compensation: . Statutory Attorney's Fees': TOTAL: $235,900 78,837 $3]4,737 · Attorney's fees are mandated by 973.092, F.S., and are based on 33% of the total benefit achieved. i.e., 0.33 x (297,500- $58,600). FISCAL IMPACT: Funds in the amount of$314,737 are available in impact fees. GROWTH MANAGEMENT IMPACT: None. LEGAL CON SID ERA TIONS: This item is legally sumcient for Board action. This item requires only a majority vote. STW RECOMMENDATION: That the Board of County Commissioners authorize the Stipulated Final Judgment as to Parcel 111 and authorize payment of the funds as stated. PREPARED BY: Steven T. Williams, Assistant County Attorney - Packet Page -951- 5/10/2011 Item 16.K.1. COLLIER COUNTY Board of County Commissioners Item Number: 16.K.1. Item Summary: Recommendation to Approve a Stipulated Final Judgment in the Amount of $297,500.00 for the Acquisition of Parcel 111 in the Lawsuit Styled Collier County v. NB Holdings Corporation, et aI., Case No. 06-0658-CA (Santa Barbara Boulevard Project No. 62081). Fiscal Impact: $314,737) Meeting Date: 5/10/2011 Prepared By Name: CrotteauKathynell Title: Lega] Secretary.County Attorney 3/22/20] 1 2:27:54 PM Approved By Name: AhmadJay Title: Director - Transponation Engineering,TranspOJ1ation Engineering & Construction Management Date: 3/23/201 ] 2:50:50 PM Name: TaylorLisa Tit]e: ManagementlBudget Analyst,Transponation Administr Date: 3/23/20] 1 3:58:28 PM Name: HendricksKevin Title: Manager - Right of Way,Transponation Engineering Date: 4/15/2011 J :50:08 PM Name: FederNorman Title: Administrator - Growth Management Div.Transportati Date: 4/15/20]] 4:32:48 PM Name: WilliamsSteven Title: Assistant County Attorney.County Attorney Date: 4/20/20] I 11:14:55 AM Name: KlatzkowJelf Title: County Attorney, Packet Page .952- 5/10/2011 Item 16.K.1. Date: 4/28/2011 11 :48:00 AM Name: UsherSusan Title: ManagementIBudget Analyst, Senior.Office of Manage Date: 5/2/20] 14:05:16 PM Name: IsacksonMark Title: Director-Corp Financial and Mgmt Svs.CMO Date: 5/2/2011 5:41:49 PM Packet Page -953- 5/10/2011 Item 16.K.1. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION COLUER COUNTY, FLORIDA" a political subdivision of the State of Florida, Petitioner, v. Case No. 06-0658-CA NB HOLDINGS CORPORATION, et aI., Parcel No. III Respondents. 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, KB ENTERPRISES OF NAPLES, LLC, by and through its undersigned counsel, for entry of a Stipulated Final Judgment as to Parcelll1 for Project No. 62081, and it appearing to the Court that the parties are authorized to make such Motion, tbe Court finding that tbe compensation to be paid by Petitioner is the full compensation due tbe Respondent, KB ENTERPRISES OF NAPLES, LLC, and the Court being otherwise fully advised in the premises thereof, it is thereupon ORDERED AND ADJUDGED that Respondent, KB ENTERPRISES OF NAPLES, LLC, have and recover from Petitioner, COLUER COUNTY, the total stun of Two Hundred Ninety Seven Thousand Five Hundred and Noll 00 Dollars ($297,500.00) for Parcel Ill, 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 connection with said parcel; it is further ORDERED AND ADJUDGED that Petitioner, COLLIER COUNTY, FLORIDA, IS entitled to a credit tor the good faith estimate of value previously deposited in the amount of $61,600.00; it is further Packet Page -954- 5/10/2011 Item 16.K.1. ORDERED AND ADJUDGED that Petitioner, COLLIER COUNTY, FLORIDA, shall pay an additional Three Hundred Fourteen Thousand Seven Hundred Thirty-Seven and No/IOO Dollars ($314,737.00) which includes Two Hundred Thirty-Five Thousand Nine Hundred Noll 00 Dollars ($235,900.00) for additional compensation; Seventy-Eight Thousand Eight Hundred Thirty-Seven and Noll 00 Dollars ($78,837.00) for statutory attorney's fees; and it is further ORDERED AND ADJUDGED that without furthcr ordcr of the Court, that within thirty (30) days hereof, Petitioner, COLLIER COUNTY, FLORIDA, shall pay for the benefit of Respondent, KB ENTERPRISES OF NAPLES, LLC, the total balance of $314,737.00 to Michael R. Whitt, Esquire, BECKER & POLIAKOFF, PA, 12]40 Carissa Commerce Court-Suite 200, Fort Myers, FL 33966 for proper disbursement in accordance with this order; it is further ORDERED AND ADJUDGED that fee simple title to Parcel 111, being fully described in Exhibit "A" attached hereto and incorporated herein, which vested in Petitioner pursuant to the Order of Taking dated August 4, 2006, and the deposit of money heretofore made, is approved, ratified, and confirmed; it is further ORDERED AND ADJUDGED that the Mediated Settlement Agreement of November I, 2010 that is attached hereto as Attachment "B", be incorporated into and made part of this Stipulated Final Judgment; it is further ORDERED AND ADJUDGED that the Notice of Lis Pendens filed in the above-styled cause and recorded in Official Record Book 4027, Page 1 060 of the Public Records of Collier County, Florida be dismissed as to Parcel 11]; it is further ORDERED AND ADJUDGED that the Court will retain jurisdiction herein to determine entitlement to and the amount of reasonable experts' costs, and supplemental attorney's fees to which Petitioner may be entitled; it is further 2 Packet Page -955- 5/10/2011 Item 16.K.1. ORDERED AND ADJUDGED that this Stipulated Final Judgment is to be recorded in the Official Records of Collier County, Florida; it is further ORDERED AND ADJUDGED that this Order disposes of all claims arising out of the taking of Parcel III other than those referred to above, and that have or could have been asserted in this cause. DONE AND ORDERED in Chambers at Naples, Collier County, Florida, this day of ,2011. Conformed copies to; Steven T. Williams, Esquire Michael R. Whitt, Esquire Jennifer Dixon.Abbott, Esquire Kevin Hendricks, Acquisition Mgr.lTransp, Bookkeeping HONORABLE HUGH D. HAYES CIRCUIT COURT JUDGE JOINT MOTION FOR STIPULATED FINAL JUDGMENT Petitioner, COLLIER COUNTY, together with Respondent, KB ENTERPRISES OF NAPLES, LLC, hereby respectfully move for entry of the foregoing Stipulated Final Judgment as to Parcel Ill. Dated: MICHAEL R. WHITT, ESQUIRE Florida Bar No. 0725020 BECKER & POLIAKOFF, P.A. 12140 Carissa Commerce Court.Suite 200 Fort Myers, FL 33966 (239) 433-7707 - Telephone (239) 433.5933. Facsimile ATTORNEY FOR RESPONDENT, KB ENTERPRISES OF NAPLES, LLC 06w658CA/626 Dated: STEVEN T. WILLV\MS, ESQUlRE~.(...)...\1 Florida Bar No. 0740101 \.'1. OFFICE OF THE COUNTY ATTORNEY Harmon Tumer Building 3299 East Tamiami Trail.Ste. 800 Naples, Florida 34112 (239) 252.8400 - Telephone (239) 252.6300 - Facsimile ATTORNEY FOR PETITIONER COLLIER COUNTY 3 Packet Page -956- . . 5/10/2011 Item 16.K.1. CDJI/T/lYSlD!" I 8fRJ($HIRt I.AX!S sECTlON -X 11iAcr fl. Pl.A r BOOK 14, I PACfS I-I I ~ I::J 3 ~:" 5:!~ ~t:l ~ ,,~ : Q~ 11 "" ~ ~L.. .., o.R. BOOK 2(JI, r PAG( 19$1 I PARCEL 111 FEE SIMPLE TAXING 1.62J SQ/JAI/f FCE7 5 32 4 .J.J 1 ~o.R. fit<< 1m PAer /21 . auTPARCCl -a- 1/l'''lIUrr~tm QJP.. ~,t, AAI(',~ ,I 1"~.m't.Unl'Hrl'O' el"'" "'l.l'MJtn~ ~ I~ I;i 15 ::i ~ ",'~ BER~~ONS f I~ PlA r BOCK J5, PA(;tS J/-Jl ~ \. I I iJ P.O.B. S.[, ClJRNEk OF 71?Acr Or" ~ ~}'- IJ'A . U 100 l~ ~APW{C SCALE PAR r OF WTPARa1 'C. I - J"lI7lITr t4DlN1 JIf1t llAl. 1flJ. NlEoMJ ,,,,,(;r .,.. . PI.).T9()()I(f4, '8-(20 a.lt. ilOOK 27Ft, PAr;( SJ7 OU1PARCEL "D- rrr UJInT fAZIIOfr HI 0... ",&.PV:C110 [X/SnN~ '00' R.O.1l( [AST UNE or srcnON J2 BARBARA BOULEVARD SANTA .". [XJSnNr; 100' R.O.W. UNf: fA.8U <He 8fAIItNrl DJSTANCf If HOOtl7'.)5"w 6.00' 12 f<l6(;' . or !.IT' I] 14.5'" ~ ~ EXHIBIT A lFGAI DESCRIPTION AU. rw.r tWeT rx IRACr T" ($ BUlICJIfR! tAKCS /JNf11' AS RCrxtfCJtD ", PLAT 8OCJI( It PArLS 1Ul-llO. COIJ.JCR COUtlrY, ftO/l!Dl.. M#J AU. 1%41 ~AR' ~ BE1<<UR! COItIMtN! PNlCE.t .C: Pt..., fJOOK Jj, 'ACES JI--J2lXJU.JtR &Ct.JIIrt: It'*'A NIO <<JNC u<IR! fJAJlnMARlY (JaCIffl['f) AS fCUOlS,' BEQNNNC At TNt S()UrHCASr CCIlN(.R (f .5AID 1flACT 'r-; 1H!NCl ALCNC THe SOUTH UNf (Y $.em TRAcr r IiORrH 'f:l6'12 IlfiT ~6J mT; THfNC( NORTtI (X]'(}1',Jr Mar ~oo frO. MHc:t SDmH MJf'Zr fAST 2J7.19 FUT: 1}f;HCf Hl;1IrH '''JJ'J5" W1 :nlf FECT ro TH( tASf LNt or SW T1W:T .r; rntHCf Al.CWG .wI> wr Ui! S()Uffl OO"06'5r-iAST /1.d4 1r(T' 1tl fI.€ f'OMr or IJ(GINNNf:. CONT'JNNC 1.$IJ SQt..Jl.RC rrrr. IkJM OR It'$S. SIJ1JJ'Cr TO fASDI{Nrs ~- ~TrdC7/C>>l! (JI: JilfCMO. LEGEND: "" " "" " ,,'-{ [X/STlHC '.O.W ~ RICHr 01 WAr TAK/NC R,O.tv. ".RIGHr!:F WAY P,O.B . POWl IT S[(;JNNlN(; HC'rIS[D ~-21-(H ["'" R[f,1S[D rO-05-05 cPflV'lB57 RrvrSfo rO-1Z-0:; GPRI./l857 62081 ~~ 100., 111 ~. COLUER COUNTY TRANSPORTATION, -'" ENGfN(E:R.,NG ~ COHS1'Fn.JCnON MANAGf],lFNT DtWSJON .... SKncH AND DESr;/lJpnDN WilsqRMiller . SEW(; ""' or at.."",,, LAKeS fJMT '1. ","cr 'r. PLU BOOK ... .........~ ,~~ .an.,w..~~ .,'......b>ew...I..... t:;flz. rlg=:'~f.Af~ JCZu;:Jltl'f(?.~, ~Lf~R~~1"~r::~~ .'~~='.~'1_ D.\N: 1IQ,ju:r ~.l l!U ~ I J ,~u...Ij,~-...~)IIMlIII.__....u.-...............--........... D4/'1001 N60Z2-0!J2-Q!Q-IDHlW flf Cf xxx "'~r._"('\"i ll. 2ll0' - 09:~JlIJ Cl Packet Page -957- ~\lo.,"\Sob-..ll\ ~'? 1" LAN r. ~R. \4L StIIi'~l'tW t UAPPfR Fl{JRIOA R[C1S~A. l.S /15617 wr it....UD UN!.[.~ SJ:iN[D 8Y f/-i[ SVR\I[')"JR AHV SfAUO W TH 'n1[ SUR ~1'tW:S- fJJ80sstD SEAL ~mc^rr 'Y AU1HORilATl~ 11.8-4.] Iter...... 1(~__U,KDfII_" =:'~If~-c=lI" J'1S'fPl~IQI~~lOC. 5/10/2011 Item 16.K.1. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIRCUIT CIVIL DIVISION COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida, Petitioner, Case No.: 06-0658-CA v. Parcel No.: 111 NB HOLDINGS CORPORATION, et al. Respondents. I MEDIATED SETTLEMENT AGREEMENT At the Mediation Conference held on May 3,2010, and on November 1,2010, the parties reached the following Settlement Agreement: 1. Petitioner will pay to Respondent, KB Enterprises of Naples, LLC, the sum of $ ;J, Q'1 5' {)O. ~ () in full settlement of all claims for compensation frofn Petitioner whatsoever, including statutory interest and all claims related to real estate, but excluding attorney's fees, experts' fees, and costs. Said sum will be subject to claims of apportionment, if any. Petitioner is entitled to a credit in the amount of $ ,.;; / tiJOCJ. ~o , said amount having been previously deposited in the 'Registry of the Court in this case by Petitioner. Upon the satisfaction of the tenns and conditions of this Settlement Agreement and the entry of the Stipulated Final Judgment in this matter, Petitioner will deposit in the Registry of the Court the sum of $ Z3,-S; '1()CJ. 00 , representing the difference between the total settlement sum referenced above and Petitioner's previous deposit referenced above. 2. In addition to the above-referenced settlement sum, Petitioner will pay to Respondent's attorney $ 1~ l?3'1. 00 in full settlement and satisfaction of all attorney's fees, including ees related to monetary and non-monetary benefits and supplemental proceedings, if any, and attorney's litigation costs incurred by Respondent in this case. 3. In addition to the above-referenced settlement sum and the above- referenced attorney's fees and attorney's litigation costs, Petitioner will pay to Respondent's expert witnesses $ "&> -I3j'- "ET~vwl.~ in full satisfaction of all expert witness costs incurred by Respondent in this case. EXHIBIT I ~ Packet Page -958- 5/10/2011 Item 16.K.1. 4. This Settlement Agreement is subject to and conditioned upon final approval by the Board of County Commissioners of Collier County. 5. Counsel for Petitioner and Respondent will jointly submit to the Court a mutually approved Stipulated Final Judgment containing the terms and conditions of this Settlement Agreement ""ithin ten days following the final approval of this Settlement Agreement by the Collier County Board of County Commissioners. 6. Attached hereto is an addendum to this Settlement Agreement. /Yes No This Settlement Agreement, dated November 1, 2010, contains all of the agreements of the parties. endricks , on behalf of Pe tioner, Collier County ~~ Attorney for Petitioner ) ~ Michael R. Whitt, Esq. Attorney fi Res ondent ~~~ ~,~.~. 'PO '" () 7 Vi; 0 "2..D Packet Page -959- 5/10/2011 Item 16. K.1. ADDENDUM TO MEDIA TED SETTLEMENT AGREEMENT This settlement is made subject to the following additional conditions: J. ?a(T(I?N~ WeLL O'ij'jAIN i1-\r.:... Abr\A..IN( '$"IO:A:\IVf- \j A-e.,A-N t:f..S (')R \~( N A u '/ ? R.t...1?A i<E-l/ rv ~ r\ \ _11\) r:. v~ nHr-. Af-fl.-(<-ATlerN fR~A'RC;::V "81 RWA l~ Tl"t1s ""_A~..L-:v..-'(,..t\+Cd~ wi l..-r.... F'"tt.-.r;L.""THE.. ~(,..l~~~ ~ "::5',A1'V \)A~~c-e.-s; t-J~) LA-llU<- 'Tf'--jj.v-J qft ~~s P'~~ If-l~ pAlL ~- /N--1 '5: 1"~~~tS~"'I.' -ri-/e I./AR..iA~cL& WI L-L-.:B[... ~R/\I..rT1:J7 oR.. y~\ L:.-D ,,(C7T u\-iff.J~ 'Tf-{AN \ E 0 uA~ 6 r~t'<A... lN~ 'l>6\'fL of 114 \-$ /\~R-.li:..Efl..\r: f\)'\: C,^R\51<O~r\E.tC-SQ::'7\1 A-N1> :::sAN 1\\?f(SQftt SHALt..... 15f- A.JA/~D ArS' c.o - A r:; E'...NIS f-<J K- <"f K".,~\~ \ I N T1-lc: ~1-(<:A1\&~ ~~/ 5AI~K1A.N~L.'7. SAI.h uA-1L4~<' ~G -!SF-fA-t-L1N\?_IJ, he ~c.. N. C-Cl A1t1 ~~3~-( Atto~_ 4am . Smith, Esq. Mediator Packet Page -960- 5/10/2011 Item 16.K.1. c: Y it.. c' b r 'f- \ 1-+/ The cure plan provides a landscape buffer along Radio Road that is 14+/- feet wide. which is nonconforming to the buffer width requirement (20 feet) but meets the planting requirements consisting of one (1) tree per 30 linear feet and a double staggered hedge. Because of the taking and roadway elevation, the remaining area available for landscaping has an extreme slope which cannot accommodate landscaping. In order to provide a visible landscape buffer and an appropriately sloped planting area (6.5+/- feet wide). a retaining wall is required to accommodate the landscaping and minimize impact to the stormwater ditch. Based on a review of the County's cure plan by Johnson Engineering, Inc., a poured concrete foundation will be required for the retaining wall. Because of the need for a retaining wall, the stormwater pond is reconfigured to accommodate the wall. The reconfigured pond must provide for the same volume of water as in the Before condition. The cure plan provides for an emergency vehicle (fire safety) turn-around located at the previous Radio Road driveway location. This results in no loss of parking spaces. The turn- around will address the fire safety requirements of Section 58-27; however, it is 155+/- feet from the entrance; the maximum distance permitted is 150 feet. The proposed plan also provides a sidewalk connection to Santa Barbara Boulevard. The cure plan addresses partial mitigation of the impacts of the taking; however, nonconformities remain relative to the following LDC requirements: The landscape buffer width along Radio Road is approximately 14 feet; twenty (20) feet is required. The subject property's Radio Road business sign is set back 5.5+/- feet; ten (10) feet is required. The shopping center's Radio Road sign is set back 3.3+/- feet; ten (10) feet is required. The loss of direct access to Radio Road requires the need for a second directory sign. Only one (1) on-site sign is permitted. The emergency vehicle turn-around is 155+/- feet from the entrance; 150 feet is the maximum distance permitted. Although the LDC provides for legal nonconforming status for the above nonconformities, any future redevelopment of the site may trigger full compliance with the LDC. This represents a potential future redevelopment limitation imposed by the taking that was not a constraint in the Before condition. To seek conformity, compliance with LDC standards would be required or variances would need to be approved for the above nonconforrnities. Summary/Conclusions In the Before condition, the property is improved with a one-story commercial building. As vacant, the most reasonable use for the site is for commercial uses consistent with the provisions of the Berkshire Lakes PUD. As improved, the most reasonable use of the property IS for continuation, of the current use or for other uses permissible in the Berkshire Lakes PUD. .__....,' ...._....."._.,........... . _. ,_n_ .__.__..d. -,~.""---......,..,.._~.~..^'~..........~"._....-. .",. ~,..,..._,,,. '.,._'.......~....;..'-" .......... - . ..,..... .'_n. _ __ u.__..__ _ ,...._ __ _..__ ....... ._"'~ '_-',..."_1>1"'-'''''_''0 ..~'. '0'-.."...."'.,....., ."-'.,'.,.","'..,.,,.._.~,"'.,'-< ,--..-.-.-..---...... -~,.."""'"'-'''.'''~-''' Engelhardt, Hammer & AssoGi3tes, Inc. 8 Packet Page -961-