Agenda 09/28/2010 Item #16K 2
Agenda Item No. 16K2
September 28,2010
Page 1 of 12
EXECUTIVE SUMMARY
Recommendation to approve a Stipulated Final Judgment in the amount of $67,250 for Parcel 809 in
the lawsuit styled Collier County v. Myrde Preserve, LLC., et al., Case No. 07-0463-CA (Lely Area
Stormwater Improvement Project No. 51101.1) (Fiscal Impact $91,717.50)
OBJECTIVE: That the Board of County Commissioners approve the attached Stipulated Final Judgment
for payment of full compensation, for the taking of Parcel 809 in the lawsuit styled Collier County v. Myrtle
PresefOJe. LLC., et. al., Case No. 07-0463-CA (Lely Area Stonnwater Improvement Project No. 51101.1).
CONSIDERATIONS: Collier County has condemned a 0041 acre parcel from the property owner, Myrtle
Preserve, LLC, 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 September of 2009, an Offer of Judgment was served on the property owners in the amount of
$24,000. Neither offer 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 fonner 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 heen so because of certain 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.
Mediation was held on March 29, 2010 and was continued to August 31. 2010. A settlement for
compensation was reached in the amount of $67,250. Engineer and appraiser fees were also settled for
$19,800 and $9,500 respectively. This settlement is helow 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:
Expert Fees & Costs
* Attorneys fees and Costs:
TOTAL
$47,650.00
$29,300.00
$14.767.50
$91,717.50
* Attorney's Fees are mandated hy S73.092, F.S., and are based on 33% of the Iota] benefit achieved, i.e.,
0.33 x ($67,250 - $22,500).
Expert fees and costs were negotiated at 80'Y" and 85% of the original invoices.
FISCAL IMJ'ACT: Funds in the amount of $91.717.50 are available m ad valorem, Stonnwater
Improvement Project No. 51101.1.
GROWTH MANAGEMENT IMPACT: None.
Aqenda Item No. 16K2
"September 28, 2010
Page 2 of 12
LEGAL CONSIDERATIONS: This item is legally sufficient for Board action. RNZ
RECOMMENDATION: That the Board of County Commissioners authorize the Stipulated Final
Judgment as to Parcel 809 and authorize payment of the funds as stated.
PREPARED BY: Robert N. Zachary, Assistant County Attorney
07-0463CA/340
2
Agenda Item No. 16K2
September 28, 2010
Page 3 of 12
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
16K2
Recommendation to approve a Stipulated Final Judgment in the amount of $67,250 for
Parcel 809 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
$91,717.50)
9/28/20109:00:00 AM
Meeting Date:
Prepared By
Robert N. Zachary
Assistant County Attorney
Date
County Attorney
County Attorney
9/1612010 2:35:34 PM
Approved By
. Robert N. Zachary
Assistant County Attorney
Date
County Attorney
County Attorney
9/16/2010 4:42 PM
Approved By
Kevin Hendricks
Manager. Right of Way
Date
Transportation Division
Transportation Engineering &
Construction Management
9/17/2010 11:35AM
Approved By
Lisa Taylor
ManagementfBudget Analyst
Date
Transportation Division
Transportation Administration
9/17/20104:23 PM
Approved By
Norm E. Feder, AIGP
Administrator. Transportation
Date
Transportation Division
Transportation Administration
9/17/20104:23 PM
Approved By
Jeff Klatzkow
County Attorney
Date
9/21/20101:40 PM
Approved By
OMB Coordinator
Date
County Manager's Office
Office of Management & Budget
9/21/20101:48 PM
Approved By
Mar~i Isackson
Management/Budget Analyst Senior
Date
Office of Management &
Budget
Office of Management & Budget
9/21/20103:14 PM
Aqenda Item No. 16K2
'September 28,2010
Page 4 of 12
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA CIVIL ACTION
COLLIER COUNTY, a political subdivision
of the State of Florida,
Plaintiff,
v.
Case No. 07-0463-CA
MYRTLE PRESERVE, LLC, et al.,
Parcel 809
Defendant.
/
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,
MYRTLE PRESERVE, LLC, by and through their undersigned counsel, for entTy of a Stipulated
Final Judgment as to Parcel 809 for Project No. 511011, and it appearing to the Court that the
parties are authorized to make such Motion, the Court fmding that the compensation to be paid by
Petitioner is the full compensation due the Respondent, MYRTLE PRESERVE, LLC, and the
Court being otherwise fully advised in the premises thereof, it is thereupon
ORDERED AND ADJUDGED that Respondent, MYRTLE PRESERVE, LLC, has and
recover from Petitioner, COLLIER COUNTY, the total sum of Sixty Seven Thousand Two
Hundred Fifty and No/IOO Dollars ($67,250.00) for Parcel 809, 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 for the good faith estimate of value previously deposited in the amount of
$19.600.00; it is further
Agenda Item No. 16K2
September 28,2010
Page 5 of 12
ORDERED AND ADJUDGED that Petitioner, COLLIER COUNTY, FLORIDA, shall pay
an additional Ninety One Thousand Seven Hundred Seventeen and 50/100 Dollars ($91,717.50)
which includes Forty Seven Thousand Six Hundred Fifty No/IOO Dollars ($47,650.00) for
additional compensation; Twenty Nine Thousand Three Hundred No/IOO Dollars ($29,300.00) for
engineer and appraisal fees and costs and Fourteen Thousand Seven Hundred Sixty Seven and
50/100 Dollars ($14,767.50) for statutory attorney's fees. No other attorney's fees or expert fees
and costs shall be awarded in this case; and it is further
ORDERED AND ADJUDGED that without further order of the Court, that within thirty
(30) days hereof, Petitioner, COLLIER COUNTY, FLORIDA, shall pay for the benefit of
Respondent, MYRTlE PRESERVE, LLC, the total balance 0[$91,717.50, to the Roetzel Andress
Trust Account c/o 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 809, 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 I 117 of the Public Records of CoIlier
County, Florida be dismissed as to Parcel 809; it is further
ORDERED AND ADJUDGED that the Mediated Settlement Agreement of August 31,
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 Court will retain jurisdiction herein as to experts'
costs; it is further
2
Agenda Item No. 16K2
September 28,2010
Page 6 of 12
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 809 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
.2010.
HONORABLE HUGH D, HAYES
CIRCUlT COURT JUDGE
conformed copies to:
Robert N. Zachary. Esquire
Kenneth A. Jones, Esquire
Jennifer Dixon-Abbott
Kevin Hendricks, Acquisition Mgr lTransp.
Accounting
3
Agenda Item No. 16K2
September 28, 2010
Page 7 of 12
JOINT MOTION FOR STIPULATED FINAL JUDGMENT
Petitioner, COLLIER COUNTY, together with Respondent, MYRTLE PRESERVE,
LLC, hereby respectfully move for entry of the foregoing Stipulated Final Judgment as to Parcel
809.
Dated:
Dated:
fZ-~OBERT N. ZACHARY
Florida BarNo. 816604
ASSISTANT COUNTY AITORNEY
Harmon Turner Building, 8th Floor
3301 East Tamiami Trail
Naples, Florida 34112
(239) 774-8400 - Telephone
(239) 252-6300 - Facsimile
A ITORNEY FOR PETITIONER
COLLIER COUNTY
KENNETH A. JONES, ESQUIRE
ROETZEL & ANDRESS
2320 First Street, Suite 1000
Fort Myers, FL 33901
(239) 338-4206
(239) 337-0970
AITORNEY FOR RESPONDENT
MYRTLE PRESERVE, LLC
CP: 07-0463CA1341
4
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3301 BASTT.AMIAM1 TRAIL NAPLES,FLOlUDA34112
(941) 774-8192
Agen a Item No. 16K2
er28,2010
age 8 of 12
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SKETCH OF DESCRIPTION
NOt A SURVEY pROJECT I 51101,. ;""1
PARCEL .-:::i",80'l
FOLlO 9!'''I 04..s11. ,,""8
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300.00'
EXHIBIT
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LEGAL DESCRIPTION ~ . .
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THe WEST 80 FEET OF THE FOl.LOWlNG DESCRIBED PARCEL.:
COMMeNCE AT THe NORiHWEST CORNER OP SE!C'11ON 32. TdWNSHIP 60 SOUTH, RANGe Z8 EAST,
COWER COUNTY, F~ORlDA: THENCE S 02'48'80' W AlONG THE WEST UNE OF SAID 8!!CTION '3%
BOO.OO FEET TO THE POINT OF BEGINNING; THENCE CONTINUE 8 O2'4B'30' W 300.00 FEET; THENCE
S 69"38'10" E 800.00 FEET; THENCE N 02'48'30" E 800.00 FEET; TH!NCE N 88'38'10' W 300.00' TO THE
POINT OF BEGINNING.' Containing 18;000 Sq. F..t. \lIOn or 1....
GENERAL NOTES
11 P.O.C.' POINT OF COMMeNCEMENT
2) P.O.B.. POINT OF BEGINNING
5) SEC.' SECTION
41 'lWP,' TOWNSHlP
5) ME,. RANGE
51 IWI- RIGHT OF WIW
T) AU.DISTANCEB ARE IN'FUT AND DEDIMAUI THliREOF
8) NOTVAUC UNLE!BB 81GNI!DANC BEAU!DWlTHTHE
EMBOSSED 8EA1. OF A PAOPl!8BIO>W. \.ANtI BURWYOR
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NOT TO SCALE
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JUNE 8, 2000
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Agenda Item No. 16K2
September 28,2010
Page 9 of 12
" .:1'
,
IN TIlE CIRCUIT COURT OF TIlE 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: 809
MYRTLE PRESERVE, LLC., et aI.,
Defendant.
I
MEDIATED SETTLEMENT AGREEMENT
At the Mediation Conferences held on March 29,2010 and continued on August
31,2010, the parties reached the following settlement agreement.
1. Petitioner will pay to Respondent, Myrtle Preserve, LLC, the sum of
(0 7, ~ SD o'f{,,~
.
$
in full settlement of all
claims for compensation from Petitioner whatsoever, including statutory interest, bIft-
C71eht!iift~ ~LLu111~ lUll1 ~"" . lb:,. ",11d w1lt5. Said sum will be subject to claims of
. SCIT AlP
apportionment, if any.
2. Petitioner is entitled to a credit in the amount of $~I h 00 tAljtJi)
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 $ 47. b SO CJ~J
I
within thirty (30) days of the actua1 date of receipt by Petitioner's counsel of a conformed
copy of the aforesaid Stipulated Final Judgment from the Court.
EXHIBIT
I 6
.
,
.
Agenda Item No. 16K2
September 28, 2010
Page 10 of 12
5. The Court will retain jurisdiction herein as to tIK11...t&~.ll~'. ..,;;t
.... experts' costs.
6. Settlement of this case is conditioned upon fInal approval by Collier
County Board of County Commissioners.
7. Attached hereto is an addendum to this agreement: .L Yes _ No.
8. This agreement dated August 31, 2010, and attached addendum, if any,
P . on for Collier County
J<E.\II~ ~'t)"'\C.Ic..~
:g:.~~
Florida BarNo: 816604
Office of the County Attorney
Harmon Twner Bldg.
3301 East Tarniarni Trail
Naples, FL 34112
Attorneys for Petitio , Lee County
Office: 239-261-4 3
Fax: (239) 5 00
/
A. Jones
arNo: (7 :LoOI S'b
Roetz & Andress
2320 irst Street, Suite 1000
Ft. Myers, FL 33901
Attorneys for above-named Respondent
Direct: 239-338-4202
Main: 239-337-3850
Fax: 239-337-0970
.
,
Agenda Item No. 16K2
September 28, 2010
Page 11 of 12
t. ,oJ
,
.
Collier Countv v, Mvrtle Preserve. LLC., et aL
Addendum to Continued Mediation held on Aumst 31.2010
Mvrtle Preserve. LLC (Parcel 809)
Paeel
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Aaenda liem No. 16K2
'September 28,2010
Page 12 of 12
Collier Countv v. Mvrtle Preserve.LLC.. et al.
Addendum to Continued Mediation beld on AUl!Ust 31.2010
Mvrtle Preserve. LLC (Parcel 809)
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