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Agenda 07/26/2011 Item #16K17/26/2011 Item 16.K.1. EXECUTIVE SUMMARY Recommendation to approve a Mediated Settlement Agreement with business owner, East Coast Waffles, Inc., and a Stipulated Final Judgment to be drafted incorporating the same terms and conditions as the Mediated Settlement Agreement awarding business damages in the amount of $30,000 for Parcels 110FEE and 110TCE in the lawsuit styled Collier County v. A. L. Subs, Inc., et al., Case No. 09- 3691 -CA (Collier Boulevard Project 460092). (Fiscal Impact: $57,325). OBJECTIVE: That the Board approve a Mediated Settlement Agreement with business owner, East Coast Waffles, Inc., and a Stipulated Final Judgment to be drafted incorporating the same terns and conditions as the Mediated Settlement Agreement awarding business damages for the taking of Parcels I IOFEE and IIOTCE in the lawsuit styled Collier County v. A. L. Subs, Inc., et al., Case No. 09- 3691 -CA, Collier Boulevard Project 960092. CONSIDERATIONS: Collier County condemned Parcels 110FEE and I IOTCE from property owners, Robert and Mario Vocisano. Parcel I I OFEE, acquired in fee simple, measures approximately 9 feet wide, covering 1514.38 square feet, and Parcel I 1 OTCE, a temporary constriction easement, measures 5 feet wide and covers 839.71 square feet. There are two businesses operating from the site: Buddy's Burgers and Waffle House. The County acquired the subject parcels by Order of Taking on September 17, 2009 and depositing the required $99,330 into the Court Registry. The business owner is entitled to make a claim for business damages pursuant to Section 73.015(2), F.S. On February 20, 2008, business owner, East Coast Waffles, Inc., presented a claim for business damages in the amount of $144.500. The concerns raised by the business owner relate to a temporary business disruption and the permanent closure of an exit driveway onto Beck Boulevard partially located on the Vocisano property. The business owner claims business disruption is due to patrons of Buddy's Burgers using Waffle House parking. The County's business damage expert valued the business damage at $41,000. Through negotiations and a mediation that was held on June 21, 2011, the parties have reached an agreement to pay the owner/business owner $30,000. The agreement is also conditioned upon the construction of an exit driveway to Beck Boulevard on the adjacent Circle K property in accordance with the terms and conditions of the attached Mediated Settlement Agreement. Staff recommends this settlement because it is reasonable and the County is not expected to achieve better results at trial. If approved, the County will be responsible for the following costs: Compensation $ 30,000 Attorney Fees & Expert Witness Costs $ 27.325 TOTAL $ 57,325 FISCAL IMPACT: Funds in the amount of $57,325 will come from Impact Fees. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: This item is legally sufficient for Board action. This item requires a majority vote. (HFAC) RECOMMENDATION: That the Board of County Commissioners approve the Mediated Settlement Agreement; approve the Stipulated Final Judgment which incorporates the terms and conditions of the Mediated Settlement Agreement to be presented to the Court for entry; and approve the expenditure and disbursement of funds as stated. PREPARED BY: Heidi Ashton- Cicko, Assistant County Attorney Attachment: Mediated Settlement Agreement CP \09 -3691 \4765 Packet Page -2692- 7/26/2011 Item 16.K.1. COLLIER COUNTY Board of County Commissioners Item Number: 16.K.1. Item Summary: Recommendation to approve a Mediated Settlement Agreement with business owner, East Coast Waffles, Inc., and a Stipulated Final Judgment to be drafted incorporating the same terms and conditions as the Mediated Settlement Agreement awarding business damages in the amount of $30,000 for Parcels 110FEE and 110TCE in the lawsuit styled Collier County v. A. L. Subs, Inc., et al., Case No. 09- 3691 -CA (Collier Boulevard Project #60092). (Fiscal Impact: $57,325). Meeting Date: 7/26/2011 Prepared By Name: CrotteauKathynell Title: Legal Secretary,County Attorney 7/11/2011 10:16:36 AM Approved By Name: HendricksKevin Title: Manager - Right of Way,Transportation Engineering Date: 7/11/2011 11:37:28 AM Name: TaylorLisa Title: Management/Budget Analyst,Transportation Administr Date: 7/11/2011 11:39:26 AM Name: AhmadJay Title: Director - Transportation Engineering,Transportation Engineering & Construction Management Date: 7/11/2011 1:14:19 PM Name: FederNorman Title: Administrator - Growth Management Div,Transportati Date: 7/11/2011 1:45:37 PM Name: AshtonHeidi Title: Section Chief/Land Use- Transportation,County Attor Date: 7/12/20112:59:38 PM Packet Page -2693- Name: KlatzkowJeff Title: County Attorney, Date: 7/12/2011 3:17:44 PM Name: UsherSusan Title: Management/Budget Analyst, Senior,Office of Manage Date: 7 /18/2011 10:08:01 AM Name: SheffieldMichael Title: Manager- Business Operations, CMO Date: 7/18/2011 10:55:58 AM Packet Page -2694- 7/26/2011 Item 16.K.1. 7/26/2011 Item 16.K.1. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIRCUIT CIVIL DIVISION COLLIER COUNTY, apolitical subdivision of the State of Florida, Petitioner, V. A. L. SUBS, INC., et al. Respondents. Case No.: 2009 - 3691 -CA Parcel No.: I I OFEE & 1 IOTCE MEDIATED SETTLEMENT AGREEMENT At the Mediation Conference held on June 21, 2011, the parties reached the following Settlement Agreement: 1. Petitioner will pay to Respondent, East Coast Waffles, Inc., as successor to North Lake Foods, Inc., the sum of $30,000.00 in full settlement of all claims for compensation from Petitioner related to business damages, but excluding attorney's fees, experts' fees, and costs, Upon the entry of the Stipulated Final Judgment in this matter, Petitioner will pay to the trust account of Respondent's attorney the sum of $30,000.00, representing the total settlement sum referenced above. Respondent's attorney shall hold said sum in his trust account until entry of a Stipulated Final Judgment for Parcels 111FEE and IIITCE that provides for the reconstruction of the exit drive on Circle IC's property. 2. In addition to the settlement amount referenced in Paragraph 1 of this Settlement Agreement, Petitioner will pay to the trust account of Respondent's attorney $9,900.00 in full settlement and satisfaction of all attorney's fees and attorney litigation costs in this case, including fees related to monetary benefits, non - monetary benefits and supplemental proceedings, if any. 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 the trust account of Respondent's attorney $17,425.00 in full settlement and satisfaction of all expert witness costs incurred by Respondent in this case. 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 Packet Page -2695- 7/26/2011 Item 16.K.1. approved Stipulated Final Judgment containing the terms and conditions of this Settlement Agreement within ten days following the final approval of this Settlement Agreement by the Collier County Board of County Commissioners. 6. This Agreement is conditioned upon approval by the Chief Financial Officer of East Coast Waffles, Inc. prior to approval of the Board of County Commissioners of Collier County, Florida, 7. Parcel No. IIOTCE shall be limited to 90 consecutive days from the commencement of construction in Parcel 1 I OTCE. Petitioner, or its contractor, will provide to Respondent 30 days written notice prior to the start of construction in Parcel No. 110TCE. Said notice shall be sent to Waffle House, Inc., attention: Ansley Wood, P. O. Box 6450, Norcross, Georgia 3 009 1. 8. This settlement is conditioned upon the construction of a driveway to Beck Boulevard on the adjacent Circle K property. Said driveway will be constructed substantially in conformance with the driveway shown on Exhibit "A" attached hereto. Respondent shall have the right to use said driveway pursuant to the terms and conditions of the access easement attached hereto as Exhibit "B ". • - ••�••�y +�i . �uuvuct William B, Smith, Esq. Mediator Attorney for Respondent Packet Page -2696- 0 ibitA Packet Page -2697- i UMMilfi■iia;iTi[MAI 0 � � rl± c f t' Z 0 C m rn O 7/26/2011 Item 16.K.1. Exhibit B Packet Page -2698- "e. —<-;- , at rskss 0k'Rs4 Cal Frs -i TRi or t l`/l'yo��'�:'t�cPF'n£5 K r y . Owen, A tornay .___ SuParAmWica Croup, rm. P. O. SOK 15000 se Lexington, KY 405f2 •'�'� IiGREfMri(! fOR )fOSSlAe_. ACCtff Laa,R,aew,r�f � .• -- AGREEMENT, Dade as oY �(, 1991, by and bstveen A. M. Papinaau and Robe 5. Mandy, ttf with a nailing a address of 1165 Clap Court, Naples, Florida 11962 (•Papineau & -V Hardy) and SuporASarica Group, Inc., with a mailing address of P. o. SOX 14000, Lexington, Kentucky 40512 ( "SUporAAerica•). WITMEBQETfi WHEREAS, Papineau & Hardy are the owners as co- successor trustees of certain real property located along S.R. 951 and S.R. 84, tlaples, Collier county, Florida (the " Papineau & Y.ardy Property")) o WHEREAS, SuperAmerica has acquired certain rent property b per, v from Papineau & Hardy located along S.R. 951 and S.R. 04, Naples, G7 a Collier County, Florida, and adjacent to the Papineau & Hardy m Property (the "SA Property ")l and na WHEREAS, Papineau & Hardy desire to grant SuperAmerica a roadway access easement over and across a portion of the Papineau & Hardy Property (the "Pa -dy Easement ") for purposes of ingress and egress jv pedestrian traffic onto the SA Property and S. and T� WHEREAS, Super a qa- desires to g n Papineau & Hardy an egress easement ov n Ms art f n of the SuperAmorica Property (the •SA as r e f gress for vehicular and pedestrian tr ff o & Hardy Property and S.R. 94. h1 NOW, THEREFO in ccnaidera on of a mutual easements granted and the mut cove naiita se in, Papineau & Hardy and SuperAmerica her gree as fo l w I. PAPINEAU & �. pineau & Hardy hereby < grant to SuperAmerica a cluaive easement over and across the following portion apineau & Hardy Property for F a the purpose of ingress and egress for vehicular and pedestrian rr- traffic to and from the SA Property and S.R. 84. The Papineau & Hardy Easement is described as follows: o o m Being a portion of Tract 5, Tollgate commercial Center, J 1 J Exhibit B Packet Page -2698- 7/26/2011 Item 16.K.1. �` ,1flt6ff ep2ti3 pit iIUUA AAi:F Phase Two recorded in Fiat 900% 1: at i-gss " t.§rc�" d4 in the Office of Public Records. Bituate in Section 35. Township 49 South, Range 26 Cast, Collier county, Florida and nora particularly described as follova: Commencing at the Northeast Corner of parcel One, Tollgate ca"Orciai Canter phase One as retarded in Plat eo*k Ed, p 1, in the Office of public Records for Collier County, Florida? thence along the East line of said Parcel One South 00' 46' S8" West 1278.72 feet to a point on north right -of -way line of State Road 94; thence along said north right -of -way line South 09' 56' 02" West 97S.48 feet to the Southeast corner of Tract 5 also beLng the true point of beginning; thence continuing South 99 56' 02" West 20.00 feet; thence North 00' 03' 44" West 20.00 feet? thence North 89' 56' 16" East 20.00 fast; thence South 00' 03' 44" East 20.00 feet to the point of beginning. Containing 399.99 square feat more or loss. The Papineau 6 Hardy Easement is depicted as the "Roadway Access Easement" on exhirAt A attaah_-P. ...s -., = —d mad= °- part hereof. 2. SA BASEMENT. SuperAmerica hereby grants to Papineau & Hardy a perpetual, non - exclusive easement over and across the following portion of the SA Property for the purpose of egress far vehicular and pedestrian traffic to and from the Papineau i Hardy Property and S.R. 84. The SA Easement is described as follows: Being a portion of Tract 6, Tollgate Commercial Center, Phase Two recorded in 8 at pages 23 through 24 in the office of Ej tuate in Section 35, Township 49 South 26 Eas Q1 er County, Florida and more parti'v described a laws: Commencing a e e arm f Parcel One, Tollgate Comm re e e e s ecorded in Plat Book 16, pag iC Records for Collier Coun or d ? t e East line of said Parcel o ' e" Ff 8.72 feet to a point on no C"r ht -of -way li 0 St Road 84; thence along said no ght -of -way 0 89' 56' 02" West 916.98 feet t e true po inning; thence, continuing Sou 56' 02" W .50 feet to the Southwest corner t 6 ..t North 00' O1' 44" West 20.00 feet; 00' 13" East 31.43 feet; thence North 00 est 105.00 feet; thence South 89' 56' 16" West 26.50 feet; thence North DO' 03' 44" West 24.00 feet; thence North 89' 56' 16" East 58.50 feet; thence South 00' 03' 44" East 162.25 feet to the point of beginning. Containing 6,310.18 square feet or 0.14 acre more or less. Packet Page -2699- 7/26/2011 Item 16.K.1. 1611 n02(l(4 nct ntx PAGE The SA Easement is depicted se the •rgrass Easement- on Exhibit 8 attached hereto and bade a part t:arcof. 3. CONSTRUCTION AND X%XWfEMANCE Of EASEMOnS. SuporAnarica will be responsible for the initial construction and surfacing of the SA th000ant and the Papineau a Hardy Easesant, in asphalt or similar surface, at suparAnorica -s solo cost and expense. SuperAbefiCe shall ba for mlnc.ining the surface of the SA Easamone, at SuporAmarica -s sole coat and expense. Suparlmerica shall be responsible for maintaining the surface of the Papineau i Hardy Easement, but shell be reimbursed for one -half (1 /2) of such maintenance costs and expenses by the owner of the Papinaau G Hardy property. 1. PIAMIASLE LIQUIDS STORI6E. Papineau i Hardy acknovladga that they have been informed that underground storage tanks containing flammable substances will be located under the surface of a portion of the SA Easement area. SuporAmerica expressly reserves the right to enter upon the SA Easement for purposes of maintaining, repairing, servicing, installing, filling or testing such tanks, or for any other perpr =s associated with such tanks. Papineau i Hardy acknowledge that, in the avant of such entry by SuparAmerica, the Papineau 6 Hardy Property -s access and use of the SA Easement may be restricted, reduced or denied for a reasonable period of time. 5. COVENANTS To RUN WITH LAND. The respective easements granted hereunder shall run with the land benefitted thereby and .inure to the benefit of the respective owners, their successors and assigns. 6. ENTIRE understanding of matter, and may signed by the pal IN WITNESS Agreement as of t.,✓ � . .lie r.. I!. _.:_ F_ t sets forth the entire t respect to its subject 9or ed except in writing have executed this written. SUPFRSxratCA GROUP, INC. Packet Page -2700- 7/26/2011 Item 16.K.1. 001611 ael 15 OR BOOK A..,r' or [ ) STATE .� )SS coum or(�c' &u) Eo[sgofpgl in ttssannt vas ask. dged bu- no this y of 1993, by A. x. pspfnasu. PC. Notfry Pu flc - Main.r cw rYalr.a My Commission Expfrosc w.+�»c* -^�°•^ '+��• -- ._,..,.._,..�... STATE OFJrbltti ) )SS COUNTY or .) The foregoing ins rusant vas aaknorledged before me this j2nd day of —" 1991, by Robert S. Hardy. Not Public � ^. ax.., adx. em N Hill/t } irywmwinancr o.N. �. V/ ) . My Commission Expires: STATE Or KENTUCKY )BB COUNTY OF FAYETTE ) R cp 1�, The foregoin M i Z day of , 1991, by the corporat Cr up, I ,_., —a., Dalava= the corporation NY Commission iress MY Packet PaEe -2701- Iged before me this pattus, president of ation, on behalf of Un o= oaN O, a w e � o ! zv WO. Z p0 Z oq Z W Y � C4 � I N :D o d f _ Co u X U1 _ om V) D ri Y_ jC) C) f Tl n a m F� Z r 1 P� a 1 M M TOLLGATE BLVD. EAST LINE OF PARCEL ONE RECORDED IN P_8. 16. PA Z NT z Packet Page -2702- 7/26/2011 Item 16.K.1. i i 10 Ir 1x FD I O C In z r- r m D 10 N uDn "l "0T0 I O C D r _� SHEET 2 OF 2 a, d w 0 Co #,� a 0 o=oa0 a 0 C N ; te n 1 � Z Dmgo CD L 0 p° A _� SHEET 2 OF 2 a, d w 0 Co 7/26/2011 Item 16.K.1. LJ.'ELSIT B •o M cs.� r q U E�/E n iU W' u• ■ cwt C \�� 1 t• ii OY _ __ In •ff � � N \ N jS nDO0u• s anew \•,j °Rim � MM Mn M /Y 00'OYW E ISMY z C n I ;lD Ci o I a , °a G Co 4 m� 1 GOB A m b U � J N G • p `L a7 � a > t� S 00'46'53' W 1276.72' D 0 E O EAST LWE OF PARCEL ONE -4 rq X RECORDED IN P.B. 16. P.1 = N s � o D z (n mn noz�o° _ 5 (n = 0 r1 Mz -' m >o�zow $ mr m < Packet Page -2703- �r n.