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Agenda 12/13/2011 Item #16K 612/13/2011 Item 16.K.6. EXECUTIVE SUMMARY Recommendation to approve a Stipulated Final Judgment in the amount of $35,650 for 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 #60092). (Fiscal Impact: none at this time). OBJECTIVE: That the Board approve a Stipulated Final Judgment for the taking of Parcels I I IFEE and 11 ITCE 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 I I IFEE and I I ITCE from property owner, Circle K Stores, Inc. and business owner, Petro Gate, Inc. Parcel 111FEE, acquired in fee simple, measures approximately 9 feet in depth along Beck Boulevard and covers 911.75 square feet. Parcel IIITCE, a temporary construction easement, measures 5 feet wide and covers 592.94 square feet. The County acquired the subject parcels by Order of Taking on September 17, 2009 and depositing the required $35,650 into the Court Registry. A Shell gas station, including a retail store, currently operates on the parent tract. The primary issues in this case are the County's closure of the exit only driveway onto Beck Boulevard and the reduced landscape buffer which becomes a legal non - conforming use. The business owner filed a business damage claim of $1,680,000. Through negotiations, Circle K and Petro Gate have agreed to accept the funds on deposit and waive business damages, and the County has agreed to allow reconstruction of an exit only driveway onto Beck Boulevard. The Stipulated Final Judgment is also conditioned upon the following: (1) the County shall pay for the design and construction of an exit only driveway onto Beck Boulevard; and (2) the County will allow the one foot landscape buffer to remain in accordance with Section 9.03.07 of the LDC. Respondents have also waived attorney fees for non - monetary benefits, but the attorneys will be paid reasonable attorney fees based on hourly rates by further order of the Court. 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: To be determined (design and construction of exit driveway) Reasonable Attorney Fees: To be detennined Expert Witness Costs: To be determined TOTAL $ 35,650 (credit) FISCAL IMPACT: Funds in an amount to be detennined are available in gas taxes and impact fees. Source of funds are Gas Taxes and 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 Stipulated Final Judgment and the expenditure and disbursement of funds as stated. PREPARED BY: Heidi Ashton - Cicko, Assistant County Attorney Attachments: 1) Stipulated Final Judgment; 2) Aerial of Subject Property CP \09- 3691 \4833 Packet Page -3725- COLLIER COUNTY Board of County Commissioners Item Number: 16.K.6. 12/13/2011 Item 16.K.6. Item Summary: Recommendation to approve a Stipulated Final Judgment in the amount of $35,650 for 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 #60092). (Fiscal Impact: none at this time). Meeting Date: 12/13/2011 Prepared By Name: CrotteauKathynell Title: Legal Secretary,County Attorney 11 /10 /2011 2:44:35 PM Approved By Name: BellowsRay Title: Manager - Planning, Comprehensive Planning Date: 11/10/20113:00:54 PM Name: PutaansuuGary Title: Project Manager, Principal,Transportation Engineer Date: 11/14/20118:21:11 AM Name: HendricksKevin Title: Manager - Right of Way,Transportation Engineering Date: 11/14/20113:30:43 PM Name: TaylorLisa Title: Management/Budget Analyst,Transportation Administr Date: 11/17/2011 7:42:37 AM Name: FederNorman Title: Administrator - Growth Management Div,Transportati Date: 11/17/2011 10:20:44 AM Name: AshtonHeidi Title: Section Chief/Land Use- Transportation,County Attor Packet Page -3726- Date: 11/17/2011 1:34:53 PM Name: KlatzkowJeff Title: County Attorney, Date: 11/23/2011 11:03:34 AM Name: UsherSusan Title: Management/Budget Analyst, Senior,Office of Manage Date: 11/28/2.0113:07:46 PM Name: OchsLeo Title: County Manager Date: 11/29/20114:08:29 PM Packet Page -3727- 12/13/2011 Item 16.K.6. 12/13/2011 Item 16.K.6. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION COLLIER COUNTY, apolitical subdivision of the State of Florida, Petitioner, Vs. A L SUBS, INC., et al, Respondents. Case No.: 09- 3691 -CA Parcels. I I I FEE, 111TCE STIPULATED FINAL JUDGMENT THIS CAUSE having come before the Court upon Joint Motion made by Petitioner, COLLIER COUNTY, FLORIDA, by and through the undersigned counsel, and Respondent, CIRCLE K STORES, INC., by and through its undersigned counsel and Respondent, PETRO GATE, INC., by and through its undersigned counsel, for entry of a Stipulated Final Judgment as to Parcels 111FEE and 111TCE, 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, COLLIER COUNTY, FLORIDA, is the full compensation due Respondent, CIRCLE K STORES, INC., the Court being otherwise fully advised in the premises thereof, it is thereupon, ORDERED AND ADJUDGED that Respondent, CIRCLE K STORES, INC., have and recover from Petitioner, COLLIER COUNTY, FLORIDA, the sum of Thirty -Five Thousand Six Hundred Fifty Dollars and No /100 ($35,650.00) as full payment for the property interests taken and for damages resulting to the remainder, if less than the entire property was taken, business damages, and for all other damages in connection with said parcels; it is further 1 of 5 Packet Page -3728- 12/13/2011 Item 16.K.6. ORDERED that the Court reserves jurisdiction to award, reasonable attorney fees based on reasonable hourly rates, and expert fees and costs; it is further ORDERED that Respondents, CIRCLE K STORES, INC. and PETRO GATE, INC. have agreed to waive any attorney fees for non - monetary benefits; it is further ORDERED that Petitioner, COLLIER COUNTY, FLORIDA, is entitled to a credit in the amount of Thirty -Five Thousand Six Hundred Fifty Dollars and No /100 ($35,650.00) which was deposited into the registry of the Clerk of the Circuit Court toward the acquisition of Parcels 111FEE and 111TCE at which time title to said parcels as described in Exhibit "A" vested in the name of Petitioner; it is further ORDERED that disbursement of the sums on deposit shall be by further order of this Court; it is further ORDERED that in accordance with Section 9.03.07 of the LDC, the taking of Parcel 111 FEE does not render the improvements on the parent tract illegal, non - conforming structures. In the event there is damage to the existing gas station improvements on the Remainder Tract due to a natural disaster or acts of third parties (collectively referred to as "natural disaster "), Respondent may construct a post disaster gas station and/or signage and multi -pump dispensers (collectively referred to as "site improvements ") on the Remainder Property in the existing building and improvement footprint as shown on the Site PIan prepared by Super America of Florida, Inc. dated March 18, 1991 and approved on May 16, 1991, attached as Exhibit B, even if the proposed improvements are equal to or in excess of 50% of its replacement value; it is further ORDERED that the non- conforming one foot landscape buffer along Beck Boulevard does not create an unsafe condition and it may remain after the taking of Parcel 111 FEE in accordance with Section 9.03.07.C.2 of the LDC, until the site is combined with another lot or the owner voluntarily elects to remove the building and redevelop the site. Said non - conforming 2 of 5 Packet Page -3729- 12/13/2011 Item 16.K.6. one foot landscape buffer may also remain in the event there is a natural disaster (as previously defined above) and Respondent constructs a post disaster building and/or site improvements for the operation of the gas station (as previously described above); it is further ORDERED that the relief provided in this Stipulated Final Judgment pursuant to Section 9.03.07 of the LDC is an alternative to the variance provisions of Section 9.03.03 of the LDC; it is further ORDERED that title to Parcel 111FEE, a Fee Simple Interest, and Parcel 111TCE, a Temporary Construction Easement, being fully described in Exhibit "A" attached hereto and incorporated herein, which vested in Petitioner, COLLIER COUNTY, FLORIDA, pursuant to the Order of Taking dated September 17, 2009 and the deposit of money heretofore made, is approved, ratified, and confirmed; it is further ORDERED that Petitioner agrees to allow an exit only driveway from the Remainder Tract of Parcel 111 onto Beck Boulevard according to the construction plans attached as Exhibit "C ". Petitioner further agrees to pay to the GAYLORD MERLIN LUDOVICI DIAZ & BAIN TRUST ACCOUNT, for proper distribution to experts and contractors, a sum equal to the reasonable costs to design and construct the exit driveway as set forth in Exhibit C; it is further ORDERED that Respondent WAFFLE HOUSE, INC, and Respondents ROBERT VOCISANO and MARIO VOCISANO, Co- Trustees of Unrecorded Trust, shall have the right to use the exit driveway from the Remainder Tract of Parcel 111 onto Beck Boulevard, pursuant to the access easement recorded in Official Record Book 1611, Page 2012, et seq., of the Public Records of Collier County, Florida; it is further ORDERED that this Court reserves jurisdiction to enforce the terms of this Stipulated Final Judgment; it is further 3 of 5 Packet Page -3730- 12/13/2011 Item 16.K.6. ORDERED that this Stipulated Final Judgment is subject to approval by the Board of County Commissioners of Collier County, Florida; it is further ORDERED that the Notice of Lis Pendens filed in this action and recorded in Official Record Book 4448, Page 3045, et seq., of the Public Records of Collier County, Florida be dismissed as to Parcels 111 FEE and 111 TCE; it is further ORDERED that this Stipulated Final Judgment is to be recorded in the Official Records of Collier County, Florida; it is therefore DONE AND ORDERED in Chambers at Naples, Collier County, Florida this day of , 2011. Conformed Copies: CYNTHIA A. PIVACEK Circuit Court Judge Heidi Ashton -Cicko Esquire Lorena Hart Ludovici, Esquire Thomas R. Bolf, Esquire Jennifer Dixon - Abbott, Esquire Shell Oil Company Toll Gate Commercial Center Property Owners Assn., Inc. Kevin Hendricks, Transportation ROW Acquisition Manager Bookkeeping 4 of 5 Packet Page -3731- 12/13/2011 Item 16.K.6. JOINT MOTION FOR STIPULATED FINAL JUDGMENT. The parties hereby stipulate and respectfully request this Court to enter the foregoing Stipulated Final Judgment as to Parcels 111 FEE And 111 TCE. )6MNA %�XrLVDOVIC4 ESQUIRE Florida Bar No.: 847062 GAYLORD MERLIN LUDOVCI DIAZ & BAIN 5001 W. Cypress Street Tampa, Florida.. 33607 -3887 Telephone: (813) 221 -9000 Facsimile: (813) 221 -9030 ATTORNEY FOR RESPONDENT, CIRCLE K STORES, INC. . trra r a. OMAS R BOLF, ESQUIRE Florida Bar No.: 454419 RUDEN MCCLOSKY, P.A. P. O. Box 1900 Fort Lauderdale, Florida 33302 -1900 Telephone: (954) 527 -2474 Facsimile: (954) 333 -4074 ATTORNEY FOR RESPONDENT PETRO GATE, INC. Dated: N5�c HEID>t ASHTON- CICKO, ESQUIRE Florida Bar No.: 966770 COLLIER COUNTY ATTORNEY'S OFFICE 3299 East Tamiami Trail, Suite 800 Naples, Florida 34112 Telephone — (23 9) 252 -8400 Facsimile —. (239) 252 -6300 ATTORNEY FOR PETITIONER, COLLIER COUNTY Attachments: Exhibit A - Legal Description Exhibit B —Site Plan Exhibit C — Construction Plans CM- 36414826. 5 of 5 Packet Page -3732- I � N SECTION 34 SECTION 3 12/13/2011 Item 16.K.6. I . l Parcel 111 FEEHfPIT — TOLLGATE I CENTER WERCK. E TWO Pi - of (P.O. 1i, Z II!20,) + , I I 11NGT a I( I 0 9 iWC1 1 r-?J' ILL s4RCe1 I11 rLL ¢ —, strev1Yw 1pe.1Y roe 5ECTION 35 --- ' • $ECT1011 2 DAVIS ROUt.EVNtO LINE TABLE LINE I LENGTH I BEARING L1 6.96 0 •4 " L2 6.36 ate' rw FEE SIMPLE INTEREST PARCEL, 111 FEE A portion of Tract 6, Tollgota Commercial Center Phase Two, as recorded in Plot Book 16, pages 23-24 of the Public Records of Collier County, Florida. Being more particularly described as follows; Beginning at the southwest cornea of said Tract 5; thence North 0(703'48" Walt along the west line of void Tract 8. a distance of 6.88 feet; thence South 89'43'3x' East, a distance of 105.21 feet; thence South 00'16'28` West, a distance of 8.36 feel to a point on the south lima of said Tract 5 said point also lying on the North right -of -way line of said Davis Boulevard; thence South 89'56'12" West otong sold South line, a distance of 105.16 feet to the POINT OF BEGINNING, Containing 911.75 square feet, more or leas. RLY,t REVISED TO CHANCE PARCEL WE 01/10/05 te2►Ixlu. s 21 se t o lee CRAPHIC SALE NOTES: 1. This is not a survey. Z. Bolin of bearing 14 the East time al Section 34, Township 49S., Range 26E., Collier County, Florida, Ming N 0+729'29" W, Florida State Plons Coordinates NAP 63/90, East Zone. 3. Subject to easements, reservations and restrictions of record, 4. Eosernatits shown hereon are per plot, unless otherwise noted. 5. Dimensions are in feet and decimals thereof. 5, Ctrtificale of authorisation LB 43, 7. R/W represents Right -of -Way. 8. P.0.11, etpresents Point of Beginning. U. P.O.C. represents Point of Commencement. 10. O.R. roprassnts Official Records. 11. L.B.E. represents Landscape Buffer Ea nmertt, 12. I.I.E. represents Utility Eoaoment, 13. F.P.L.E. represents Florida Power & Light EasemsnL 14. O.E. represents Drainage Easement. 15. S.E. represents S;oewola Easement. T6. P.U.E. represents Public Utility Easement. DAVID J. r W . (FOR THE FIRM) FLA. UC. WIS. 3634 NOT VALID WITHOUT THE SIGNATURE AND THE ORIGINAL RAISED 5EAL OF A FLORIDA LICEN5ED SURVEYOR MO MAPPER This is NOT a Survey. ZMITLA At A PORTIONaOFIr-rfun Ve• YANULL All t116 wilsoiN mer SECTION 35, TOWNSHIP 49 S., RANGE •26 E., COLLIER COUN Y FLORIDA w ......,,.„..s•r . w. s.wr.w rie"r.r.e ".awe. TIM 00011 mlaett on GHM ten ow rw PPOt= er TAO Dili IC -49 11601 Ill mar t C -49 C800 0 R Jot• 10, 1=4 - 13:53'.17 M580RNEht \SU8\ce1i"r eH�CM2Mrg1 \IC- �e\IC -le- ►174 Ave Exhibit A Packet Page -3733- n IN Tq LLE Parcel 111 TCE +. BEARINC TOLLGATE a 41111MCRCIAL 5.25 r-, I CENTER E TWO 23-24) 5. 0 N 0 3' 4 W L3 o V yt 41 I "' > TWAT , 1 ! 11.35 +� Tao' o.L-4 -7.eb' o.E 0 U � It IOa t[C,11 SECT1t)N 35 ►oc SECTION 2 SECTION 3 DAVIS BOULEVARD M IN Tq LLE LINE LENGTH BEARINC L1 5.25 N C '4 'W L2 5. 0 N 0 3' 4 W L3 lJ.J6 L4 5.00 N 54 '3 W L5 11.35 NO.17181FE PARCEL 111 ICE A portlen of Treet 11, Tollgate Commercial Center Phase Two, as recorded in Plot Bock 10, pages 23 -24 of the Public Records of Collier County, Florida. Being more particularly described as follows; Commencing of the southwest corner of said Tract 6; thence North 0t703'4r West along the West fine of sold Tract 6, a distance of 8.96 feet to the POWT OF BEGINNING. thenes aonllnuing along sold West line North 0003'46' West• o distance or 5.00 fsetl thence South 8543'32' East, a distance of 110.24 feel; thence South 0016211' West, a distonoe of IS,35 lee% to o point on %he South Tine of Paid Tract 6 said point also lyinq on the North right -of -way line 61 Davis Boulevard; thence North 8g'43'32' West along void South tins and sold North right -of -way line, o distance of 5.00 feel: thence North 0016'16" East, a distance of e.35 feet; thence North 88'43'32 - Wes1, o distance of 105.21 het in the POINT OF BEGINNING. Contofning 592.94 square leat, more or less 12/13/2011 Item 16.K.6. ■ i I tT A Pegs . of , t C7 TIM a � $ I 1♦ � e o6 N too no GRAPNC SCALE NOTES; 1. This is not a aurvey, 2. Basis of bearing Is the Cost line of Section 34, Township 465„ Range 25E., Collier county, norida, wing N 0029'29" W, Florida State Plane Coordinates NAD 113/60, East Lone, 3. Subject to easements, rasefvatlons and reslricllons of record. 4. Easements shown hereon are per plot, unless athsrwise noted. S. Dimensions are in fact and decimals thereof, 6. Certl5cute of ouihori =otlon LB 43. 7. R/W represents Right -ol-Way, S. P.O.B. represents Point of Beginning. 9. P.O,C. represents Point of Commencement. 10, O.R. represents Official Records. 11. L.M. represents Landscape Buffer Easement. 12. u.E, represents Utilityy Easement. 1a. F.PA4E. represents rlorido Power x light Easement. 14. D.E. repreeenls Drainage Easement. 15. S.E. rspretents Sidewalk Easement. 16. P.U.E. represents Public UUlity Eoaement. TEMPORARY CONSTRUCTION EASEMENT DURATION YEARS. / DAVID J. HYA , P.. FOR THE FIRM) FLk LIC. NO. NOT VALtO WITHOUT THE SIGNATURE AND THE ORIGINAL RAISED SEAL OF A FLORIDA LICENSED SURVEYOR AND MAPPER ACYA REVISED TO CetANt:C PARCU. W44V AND PWINCS NI DESCRIPTION 01/10/0e Th1s Ia NOT s Survey. y A. PORTION OF IAA /�(1illIllDC� SECTION 35, TOWNSHIP 49 S., RANGE 28 E., COLLIER COUNTY FLORIDA �.,,..... ... ........,.�.�......_..,.� VW awb WAM JIM 0*0 WA tyo ►Pa "*=T tla wtsT waves NM 001 IRW 001) TWO DJN IC-40 NSOIS- SOU -Dot 111 Tcrw i IC -4e Jan 10. zoos - 1157:46 TOS80ME1%:\5UIT1c«Ya 6Nd�CNI1 ,Nelr�tp- 4e \iC- 49- P764.e.e Packet Page -3734- Q b a ^�j J +m (� z Q 0 J � W Z Y1 � V 2 ^ w z � t- J� .7 U �r �W W10 W z w � U vi? 1yyVI�j 7NZ} Lw �- 1 sW Q 3 qtr Uo H LLJ S, Q Q Q s� q W m O Gf +� a a ^�j J +m (� Packet Page -3735- 12/13/2011 Item 16.K.6. - $ � z Q J Z O ^ w z � t- J� .7 U Z W z w � U vi? Q 3 LLJ ' Q Q Q s� q W m O xN OR �z x s� �W V7 5 QS Packet Page -3735- 12/13/2011 Item 16.K.6. - $ � z Q J Z O ^ w z � t- J� .7 U Z W z w � U vi? 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