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Agenda 12/13/2011 Item #16K 512/13/2011 Item 16.K.5. EXECUTIVE SUMMARY Recommendation to approve a Mediated Settlement Agreement and a Stipulated Final Judgment to be drafted incorporating the same terms and conditions as the Mediated Settlement Agreement in the amount of $301,000 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: $253,023.00). . . OBJECTIVE: That the Board approve a Mediated Settlement Agreement and a Stipulated Final Judgment to be drafted incorporating_ the same terms and conditions as the Mediated Settlement Agreement for the taking of 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. CONSIDERATIONS: Collier County condemned Parcels 1 l0FEE and 110TCE from property owners, Robert and Mario Vocisano. Parcel 110FEE, acquired in fee simple, measures approximately 9 feet wide, covering 1514.38 square feet, and Parcel 110TCE, a temporary construction easement, measures 5 feet wide and covers 839.71 square feet. The County acquired the subject parcels by Order of Taking on September 17, 2009 and depositing the required $99,330 into the Court Registry. Two businesses operate from the parent tract: Buddy's Burgers and Waffle House. The County previously settled the business damage claim of Waffle House. As a result of the taking, the landscape buffer along Beck Boulevard is reduced to one foot, on -site traffic circulation will be modified, and the exit driveway onto Beck Boulevard will be closed. The issues in this case are land valuation of the commercial property taken, severance damages, business damages and a cost to cure. Owner appraised the taking at $579,903 plus business damages of $27,000. Through negotiations and a mediation that was held on October 27, 2011, the parties have reached an agreement to pay the property owners $301,000. The agreement is also conditioned upon (1) the construction of a driveway to Beck Boulevard on the adjacent Circle K property; (2) limiting the duration of the construction use of Parcel 110TCE; and (3) allowing the one foot buffer to remain in accordance with Section 9.03.07 of the LDC. 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: Additional Amount Owed: $ 201,670 Statutory Attorney Fees: $ 51,183 Expert Witness Costs: $To be determined Deposit Fee to Clerk of Courts: $ 170 TOTAL $ 253,023 Attorney's fees are mandated by 73.092, F.S., and are based on a percentage of the difference between the settlement amount and the original offer plus the business damage offer (e.g., $301,000 — ($120,900 + $25,000) x 33% = $51,183). FISCAL IMPACT: Funds in the amount of $253,023 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) Packet Page -3710- 12/13/2011 Item 16.K.5. 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: 1) Mediated Settlement Agreement; 2) Exhibit from County's Appraisal Report CP \09 -3691 \4825 Packet Page -3711- 12/13/2011 Item 16.K.5. COLLIER COUNTY Board of County Commissioners Item Number: 16.K.5. Item Summary: Recommendation to approve a Mediated Settlement Agreement and a Stipulated Final Judgment to be drafted incorporating the same terms and conditions as the Mediated Settlement Agreement in the amount of $301,000 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: $253,023). Meeting Date: 12/13/2011 Prepared By Name: CrotteauKathynell Title: Legal Secretary,County Attorney 11/9/2011 12:22:22 PM Approved By Name: HendricksKevin Title: Manager - Right of Way,Transportation Engineering Date: 11/10/2011 10:13:07 AM Name: BellowsRay Title: Manager - Planning, Comprehensive Planning Date: l 1 /10/2011 12:00:53 PM Name: PutaansuuGary Title: Project Manager, Principal,Transportation Engineer Date: 1 1/14/201 1 8:21:26 AM Name: TaylorLisa Title: Management/Budget Analyst,Transportation Administr Date: 11/17/2011 7:42:29 AM Name: FederNorman Title: Administrator - Growth Management Div,Transportati Date: 11/17/2011 10:19:19 AM Name: AshtonHeidi Packet Page -3712- Title: Section Chief/Land Use- Transportation,County Attor Date: 11/17/2011 1:31:41 PM Name: KlatzkowJeff Title: County Attorney, Date: 11/18/20114:23:59 PM Name: UsherSusan Title: Management/Budget Analyst, Senior,Office of Manage Date: 11/28/2011 2:58:55 PM Name: OchsLeo Title: County Manager Date: 11/29/2011 4:03:13 PM Packet Page -3713- 12/13/2011 Item 16.K.5. 12/13/2011 Item 16.K.5. IN THE CIRCUIT COURT OF TIME 'TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIRCUIT CIVIL DIVISION COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida, Petitioner, M A. L. SUBS, INC., et al. Respondents. Case No.: 09- 3691 -CA Parcel No.: 1 l OFEE & 110TCE MEDIATED SETTLEMENT AGREEMENT At the Mediation Conference held on October 27, 2011, the parties reached the following Settlement Agreement: 1. Petitioner will pay to Respondents, Robert Vocisano and Mario Vocisano, as Co- Trustees and Buddy's Burgers, the sum of $301,000.00 in full settlement of all claims for compensation from Petitioner whatsoever, including statutory interest and all claims related to real estate and business damages; if any, 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 $99,330.00, said amount having been previously deposited in the Registry of the Court in this case by Petitioner. Upon the satisfaction of the terms 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 $201,670.00, 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 the trust account of Respondents' attorney an amount to be determined in full settlement and satisfaction of all attorney's fees, including fees related to monetary and non- monetary benefits and supplemental proceedings, if any, and attorney's litigation costs incurred by Respondents 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 the trust account of Respondents' attorney an amount to be determined in full satisfaction of all expert witness costs incurred by Respondents in this case. , EXHIBIT x Packet Page -3714- 12/13/2011 Item 16.K.5. 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 Respondents will jointly submit to the Court a mutually 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. This Settl parties. Mot r Attached hereto is an addendum to this Settlement Agreement. X Yes No , Esq. October 27, 2011, contains all of the agreements of the County for Petitioner, Collier County Azz s William B. 3mith, Esq. Mediator Sharon k. Romer on behalf f Respondent, Robert Vocisano, Co- Trustee and on behalf of Buddy's Burgers S aron K. Romer on be alf f bert Vocisano, Co- Trustee behalf of Buddy's Burgers Fred C. Isaac, Esq. Att rney for Respon ents Michael A. Durant, Esq. Attorney for Respondents Packet Page -3715- on 12/13/2011 Item 16.K.5. ADDENDUM TO MEDIATED SETTLEMENT AGREEMENT This settlement is made subject to the following additional conditions: 1. Parcel No. I IOTCE shall be limited to 90 consecutive days from the commencement of construction in Parcel No. IIOTCE. Petitioner, or its contractor, will provide to Respondents 30days written notice prior to the commencement of construction in Parcel No. I I OTCE. 2. 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. Respondents shall have the right to use said driveway pursuant to the terms and conditions of the access easement attached hereto as Exhibit B. 3. In the event there is damage to the existing improvements on the remainder tract due to a natural disaster or acts of third parties equal to or in excess of 50% of its replacement value, Respondent may construct the same or similar post hazard improvement on the remainder property in the existing building and improvement footprint. 4. The nonconforming one -foot landscape buffer along Beck Boulevard does not create an unsafe condition and it may remain after the taking of Parcel 110 FEE and 110 TCE in accordance with Section 9.03.07.C.2 of the LDC, until the site is combined with another lot or the oyvner voluntarily elects to remove the building and redevelop the site. lier County Jeffrey �1 Kl-Tow, Esq. Attorne for fletitioner, Collier County William B. YSAiith, Esq. Mediator Sharon K. Romer on eha f of Respondent, Robert Vocisano, Co- Trustee and on behalf of Buddy's Bu • ers *aro K. Romer on b ha of Respondent Mario Vocisano and on behalf of Buddy's 4gers 6W red C. Isaac, Esq. A rney for Respo de Michael A. Durant, Esq. Attorney for Respondents Packet Page -3716- X 1-M i Ciz it :1 7''! Cr y gad i L Z4-1.25' 5 E -bit A x-hi Packet Page -3717- 12/13/2011. Item 16.K.5. Ln �j we C7% T- - - - - - - L= Z4-1.25' 5 E -bit A x-hi Packet Page -3717- 12/13/2011. Item 16.K.5. Ln �j we C7% ra ` .,rev — I 4.11 x ar y anon. Attccnay Super ice Croup. Zrtc. p. 0. Box 14000 Lexington, KY 40SIZ 12/13/2011 Item 16.K.5. AMEX=* t►ade as of �' . bly and _.- batvaan A. N. Papinaau and Robe S. J rdy. both with a mailing cc address of 1.185 Gags Court, #taples, fiarida 33982 ( "papineeu i ra o• hardy") and 5uparAeric ,tp, Isc•,I2 a»j¢s of p. a. Box 14000, Z4x1ngt0n, Kentoaky 405 ( "5 perAs�rica WJTXZ$s : Ca, C3 WAZpZAg, papineau to hardy are the owners as co- successor trustees of certain real. property located along S.R. 951 and uS:R 84, Naples, Collier county, Florida (the 'fPapineaus -A c Property-); o KyERW, 5uperAmeriaa has acquired certain real property y. ro from papineau i hardy located along S.R. 951 and S.R. 94, Naples, � Collier county, Florida., and adjacent to the Papineau & Hardy na Property (the "SA Property-); and ARE", papineau & Hardy desire to grant of the Pagineau roadway access easement" over and across Tn\, a Baasement") for purposes A Ra�Y Property ( v pedestrian traffic onto of ingress and egress the SA Property and S. and fig, gupeL %-.1 q" Tres to q papineau & Hardy an the superA�aerica egressc easement ov g nd� ^a oss art i press for vehicular Property (the "SA & Hardy Property and and pedestxian tr ff ° S.R. 84. (� ry NOW, TRggp in considers on of 'e mutual easements granted and the mut covenants se in, Papineau & Hardy and SuperAmerica her grey as fol w �l PAPINEAII & pineau & Hardy hereby 1• - lusive easement over and h grant to SuperAmerica axtia apfneau i Hardy Property for J across the following Po for vehicular and pedestrian r the purpose of ingress and egress and S.R. 84. The papineau & H 2 traffic to and from the SA Property N Hardy Easem ut is described as follows: o E Being a portion of Tract 5, Tailgate Commercial Center, r� _Y 1 Exhibit B Packet Page -3718- 12/13/2011 Item 16.K.5. mesa TV, recorded in Flat 586% !9 at paq� =' �s ='���` `4 in the vftico of public ;Mcardo. 3£tunto in sactic- 35. and more parti=cularly doscr beds a Collier fcl l&vs: ntf' r.orida Coussancing at the Northeast corner of Parcel One, Taiigato Comarciai Center Phase One as recorded in Flat toch :t, �° 1, $n than office of public Records for Collier County. Ploridat thence along tna East line or said Parcel one Sostth 00' 46' 58" Vat 1278.72 feet to a point on north right-of-'MY line of state Road 04: thence &jOVrj said north 975.48 feet to the iSouth astcornar5of Tract 56 also b 1,17 the true point of bolinningt thence continuing South 89 569 .00 f0att thence feat; th thence * 60 16" 00' st 020.00afeat; 001 031 44" thence beginning. Containing 399.99 square feet more or less. The Papineaa i Hardy 8asament is depicted as the rRooaddway Access Easement0 an Z5rnir`vit A attac,.�....d.c.... w....._..__ part hereof. 2. SA EASEMENT. SuperAmerica hereby grants to Papineau & Hardy a perpetual, non - exclusive easement over across gress for following portion of the SA Property for the paz`p aae of vehicular and pedestrian traffic to and from the Papineau & Hardy Property and S.R. 64. 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 t;,% Situate in section 35, Township 49 South 26 Eas 43, er County, Florida and snore partic y described a ` ego lows: Commencing a e ea rn f Parcel One, Tollgate Comm rc e e e s ecorded in Plat Book 16, pag is Records for Collier Caun or d t e East line of said Parcel ' ga 8.72 feet to a point on no rr ht- of-way 1 0 st Road 84; thence along said no ght -of way. a o 89' 56' 020 West 416.98 feet t e true ptsir! inning; thence, continuing Son 56' 020 W 50 feet to the Southwest corner 6• North 00' D3' 44" West 20.00 feet; Do' 13" East 31.43 feet; thence North 00 est 105.00 feet; thence South 89' 56' 160 West 28.50 feet; thence North 00' 03' 44" west 24.00 feet; thence North 89' 56' 16" East 58.50 feet; thence South DO' 03' 44" East 162,25 feet to the point of beginning- Containing 6,310.18 scruare feet or 0.14 acre more or less. Packet Page -3719- 12/13/2011 Item 16.K.5. The Sh EX,ibitE9 attached he- ctoaandg"do iass apar• era e ofisi° sn 1. CONS'i'ptiC ION WD Kk1NTt#AM -Z of g,ASVtt5. suporAvarica will be re�nelble for the initial construction and surfacincl of the $A tsee"at and the gapineau i ffardy fasagQnt, in asphalt or similar surface, at SvperAxerica , 0010 ctna tandsurfaPraoo€ Superks oejea snail a..,.t...:•��_ -- the SA segment, at suporAzerica . o cols cost and axpensa. SuparAsariea shall be responsible for maintaining the surfaaa of the papinosu i Hardy gas"ent, but shall " reimbursed for one -half (1 12) of such s:+aintenance costs and oxpensas by the owner of the Papinoau i Hardy property. 4. fLM"p;tZ s zQttIDS MRAGE. Papineau L hardy acknowledge that they have Moen informed that underground storage tsnl:g containing flazzable substances vill be located under the surfsce of a portion of the SA Easement area. Superl�saerica expressly reserves the right to enter ups the A Easement for .Mpoaes of maintaining, repairing, g, Tilling or testing such tanks, or f&r any othsr p:; `•=s associated with such tanks. b SuperAmerica, theaPapineaugA Hardy in the event at such entry y educereduced s denied for a reasonable period of time. be restricted, 5. COMANTS TO RUN WM 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. .T C SUPERAMERICA GROUP, INC. Its: fr lif-) Packet Page -3720- t sets forth the entire b. ENTIRE understanding of RECD the es beret red eexce t its p in writing matter, and WAY no amended or signed by the part s et have executed this IN WITNESS i ov� written. Agreement as of e a WI'T'NESSES: n .T C SUPERAMERICA GROUP, INC. Its: fr lif-) Packet Page -3720- 12/13/2011 Item 16.K.5. I t i �o t r-. fz 0 0 M Auf0 ( � �.IE CSC I > Co C, °. •� TOLLGATE BLVD_ N� Y Ad u ba °•�' t/fAy s�� . wruf 1 m S 1276.72' 0D' 46' S8" W I > A N � ;a tI) EAST UNE OF PARCEL. ONE o =oap ^ 4 N z RECORDER IN P.B. 16, P.1 irn 0 a,I tjy > �Rt zr � mm,�roi�' r� dm r[! In m F1 G7 ro AZ0O F � c0 N S A n c s M 000 rte M j 9r"-1r N Wao Co > N Z rID �0 INfI � '. rn i� N� C C .' ' M M z •� � ... ..�� 092 > SHEET 2 OF 2 r G0 12/13/2011 Item 16.K.5. I t i �o t r-. fz 0 0 M Auf0 ( � �.IE CSC I > Co C, °. TOLLGATE BLVD_ u cn P. :r. 'O 1 m S 1276.72' 0D' 46' S8" W I > A � a ;a tI) EAST UNE OF PARCEL. ONE o =oap RECORDER IN P.B. 16, P.1 - a K o . a,I tjy > �Rt mm,�roi�' r� gg r[! In AZ0O F n c s M rte j 9r"-1r m > N Z rID �0 INfI � rn i� C �r Dv mC) Packet Page -3722- SHEET 2 OF 2 v _,_ C� ,I Y 0 x 0 r*i c> z z t, u 't+ a AY rc CKi 03' u` rr rGS(�' e.+ M i 12/13/2011 Item 16.K.5. EASC�V ©n v r 0X S 04' OY s +' S x62-25' • . O , •' C S (n ((/r • Y-q � R CQ I A C; co r ATE N t L. U - rn � 0 0 N W e O m n Ln M 0 (n !n D t- EAST LINE Ol PARCEL ONE 0 7 O D p RECORDED IN P.$. 16, P.1 r > r'Lo�c�h mmmm• � �rz �?�Z h �cZO.1 r � � r � 4Ko.- p j p Packet Page -3723- M g� P 5' n a Q m m 3 Q3 is ! d r N3 ioi 0X ::o rTl S (n ((/r • Y-q Ln M 0 (n !n D t- EAST LINE Ol PARCEL ONE 0 7 O D p RECORDED IN P.$. 16, P.1 r > r'Lo�c�h mmmm• � �rz �?�Z h �cZO.1 r � � r � 4Ko.- p j p Packet Page -3723- M g� P 5' n a Q m m 3 Q3 is ! d r N3 ioi i 12/13/2011 Item 16.K.5. A►:NDERSON & CAVU, INC. Ingress & Egress Before Road Construction Ingress & Egress After Road Construction (Prepared for, and Property of Collier County 13nard of Commissioners. Reliance upon appraisal for other uses is not warranted.) Packet Page -3724-