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Agenda 12/15/2009 Item #16K 2 Agenda Item No. 16K2 December 15, 2009 Page 1 of 11 EXECUTIVE SUMMARY Recommendation to authorize a Stipulated Final Judgment in the amount of $375,000 for Parcels 104 and 604 in the lawsuit styled Collier County, Florida v. Highland Properties of Lee and Collier, Ltd., et al., Case No. 06-0563-CA (Santa Barbara Boulevard Project #62081) (Fiscal Impact $304,372). OBJECTIVE: That the Board of County Commissioners authorize the attached Stipulated Final Judgment for payment of full compensation, for the taking of Parcels 104 and 604 in the lawsuit styled Collier County. Florida v. Highland Properties of Lee and Collier, Ltd. et. al., Case No. 06- 0563-CA (Santa Barbara Boulevard Project No. 620R]). - CONSIDERATIONS: Collier County has condemned 3,523 square feet for road right-of-way and a perpetual slope easement (Parcels 104 and 604) from 'property owner. Santa Barbara Fuels, Inc. and business owner Touchless Laser Car Wash, Inc. The subject property is located at the comer of Radio Road and Santa Barbara Boulevard. A Hess gas station with a convenience store and car wash was operating on the site at the time of the taking. The COWlty'S initial appraisal dated January 25,2006, valued the takings at $161,600. Thc County otfcred the owners $16],600 as the County's statutory offer on January 31, 2006, This offer was not accepted. An updated appraisal, dated June 30, 2006, reflected an increase in the value of the takings to $162,500. An Order of Taking hearing was held on July ]R, 2006, and the County deposited the sum of $162,500 in the Court Registry. The issues in this case are the value of the land taken and the amount of severance damages to the remainder as well as the amount of business damages. The County's appraisal found no severance damages, while the owners' appraisal includes severance damages from both temporary and permanent loss of parking spaccs due to the owners' claim that they need to relocate the entrance to the service station/convenience store for safety reasons as wcll as costs to relocate the business sign, and reestablish the landscape buffer. The owners also cited the visibility of the relocated sign and convenience of access as contributing to the severance damage. The owners' appraisal valued the compensation for the taking and damages at $295,000, The owners also made a business damage claim of $400,000 due to temporary and permanent loss of revenue, fbr a total of $695,000 for the land taken, severance damages and business damages, as well as a cost to cure to reestablish the landscape buffer and relocate the sign and entrance to the business. The County made a counter offer for business damages of $70,000, fc)r a total of $231,600 tlx compensation and business damages. On November 18,2009, the paliies mediated the case and reached a settlement of $375,000 for full compensation to the owners, which includes the property taken, severance damages and business damages. It should be noted that if the County were unsuccessful at trial, between a potcntial jury verdict of $695,000, together with the County having to pay both the owners' attomey's fees and costs, as well as its own trial costs, total expenditures could be several hundreds of thousands of dollars in excess of the sum the County would be paying iftl1is proposfIlhelllement is approved. - Agenda Item No. 16K2 December 15, 2009 Page 2 of 11 Executive Summary Page Two Attached is a Stipulated Final Judgment. following costs: If approved, the County will he responsible for the Additional Amount Owed: "Attorney's fees and costs: "Experts' fees and costs: TOTAL $212,500 $ 58,872 U3,000 $304,372 " Attorney's fees are based on the benefit achieved for the owners beyond the otTers made by the County for the combined full compensation and business damages. There was a dispute regarding the amount of the County's business damage counter offer. In order to preclude the expense of litigating the attomey's fees, a compromise was reached by splitting the difference in the disputed amount to calculate attorney's fees and costs. This reduces the owners' claim for attorney's fees by $11,550. The owners' experts included an appraiser, a certified public accountant, a land planner and an engineer. FISCAL IMPACT: Funds in the amount of $304,372 are available in Gas Taxes and/or tmpact Fees. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: This itcm is legally sufficient for Board action. RNZ RECOMMENDATION: That the Board of County Commissioners authorize the Stipulated Final Judgment as to Parcels 104 and 604, and authorize payment of the funds as stated. PREPARED BY: Robert N. Zachary, Assistant County Allomey CP:06.0563.CA;3215 Agenda Item No. 16K2 December 15, 2009 Page 3 of 11 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 16K2 Recommendation to authorize a Stipulated Final Judgment in the amount of $375,000 for Parcels 104 and 604 in the lawsuit styled Collier County, Florida v. Highland Properties of Lee and Collier, Ltd., ef aL, Case No, 06-0563-CA (Santa Barbara Boulevard Project #62081) (Fiscal Impact $304,542), 12/15/20099:00:00 AM Meeting Date: Prepa red By Robert N. Zachary Assistant County Attorney Date County Attorney County Attorney 12/2/20092:23:58 PM Approved By Norm E. Feder, Alep Administrator ~ Transportation Date Transportation Division Transportation Administration 12/3/200912:52 PM Approved By Lisa Taylor ManagemenUBudget Analyst Date Transportation Division Transportation Administration 12/3/20092:55 PM Approved By Robert N. Zachary Assistant County Attorney Date County Attorney County Attorney 12/3/2009 3: 11 PM Approved By Heidi F. Ashton Section Chief/Land Use-Transportation Date County Attorney County Attorney 12/3/20094:01 PM Approved By Najeh Ahmad Director - Transportation Engineering Date Transportation Division Transportation Engineering & Construction Management 12/4/20092:30 PM Approved By Kevin Hendricks Manager - Right of Way Transportation Engineering & Construction Management Date Transportation Division 12/4/20093:20 PM Approved By Jeff Klatzkow County Attorney Date 12/7/20092:10 PM Approved By OMB Coordinator Date County Manager's Office Agenda Item No. 16K2 December 15, 2009 Page 4 of 11 Office of Management & Budget 1217120093:46 PM Approved By John A. Yonkosky Office of Management & Budget Director. Management and Budget Date Office of Management & Budget 1217/20093:55 PM IN THE CIRCUIT COURT OF TIlE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION Agenda Item No. 16K2 December 15, 2009 Page 5 of 11 COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida, Petitioner, Case No. 06-0563-CA v. HIGHLAND PROPERTIES OF LEE AND COLLIER, LIMITED, et aI., Parcels: 104 & 604 Respondents. / STIPULATED FINAL JUDGMENT THIS CAUSE having come before the Court upon Joint Motion made by Petitioner, COLLIER COUNTY, FLORIDA, by and through its undersigned counsel, and Respondents, SANTA BARBARA FUELS, INC. and TOUCHLESS LASER CAR WASH, INC., by and through their undersigned counsel, for entry of a Stipulated Final Judgment as to Parcels 104 and 604 for Project No. 62081, 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 is the full compensation due the Respondents, SANTABARBARA FUELS, INC. and TOUCHLESS LASER CARW ASH, INC., and the Court being otherwise fully advised in the premises thereof, it is thereupon ORDERED AND ADJUDGED that Respondents, SANTA BARBARA FUELS, INC. and TOUCHLESS LASER CARWASH, INC., have and recover from Petitioner, COLLIER COUNTY, FLORIDA, the total sum of Three Hundred Seventy-Five Thousand and No/lOO Dollars ($375,000.00) for Parcels 104 and 604, 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 business damages and all other damages in connection with said parcel; it is further ORDERED AND ADJUDGED that Petitioner, COLLIER Agenda Ilem No. 16K2 December 15. 2009 Page 6 of 11 COUNTY, FLORlDA, is entitled to a credit for the good faith estimate of value previously deposited in the amount of $162,500.00; it is further ORDERED AND ADJUDGED that within thirty (30) days of receipt by Petitioner of the Stipulated Final Judgment entered by the Court, Petitioner, COLLIER COUNTY, FLORIDA, shall deposit an additional Two Hundred Twelve Thousand, Five Hundred and NollOO Dollars ($212,500) into the registry of the Clerk of the Circuit Court for the benefit of Respondents, SANTA BARBARA FUELS, INe. and TOUCHLESS LASER CARW ASH, 1Ne.; it is further ORDERED AND ADJUDGED that disbursement of the funds on deposit shall be by further order of this Court; it is further ORDERED AND ADJUDGED that Petitioner, COLLIER COUNTY, FLORIDA, shall pay to Respondents, as compensation for attorney's fees and costs, Fifty-Eight Thousand, Eight Hundred Seventy-Two and No/lOa Dollars ($58,872.00), and no other attorney's fees or costs shall be awarded in this case; it is further ORDERED AND ADJUDGED that Petitioner, COLLIER COUNTY, FLORlDA, shall pay to Respondents, as compensation for expert fees and costs, Thirty-Three Thousand and No/IOO Dollars ($33,000.00), and no other expert fees or costs shall be awarded in this case; it is further ORDERED AND ADJUDGED that within thirty (30) days hereof, Petitioner shall pay the total sum of Ninety-One Thousand, Eight Hundred Seventy, Two and Noll 00 Dollars ($91,872,00), payable to the Foerster, Isaac and Yerkes Trust Account, c/o Fred Isaac, Esquire, 2468 Atlantic Boulevard, Jacksonville, FL 32207-3564, for disbursement of attorney's fees, expert fees and costs in accordance with this Order; it is further ORDERED AND ADJUDGED that a perpetual slope easement, identified as Parcel 604, and fee simple title to Parcel 104, being fully described in Exhibit "A" attached hereto and 2 Agenda Item No. 16K2 December 15, 2009 Page 7 of 11 incorporated herein, which were vested in Petitioner pursuant to the Order of Taking dated July] 8, 2006, and the deposit of money heretofore made, is approved, ratified, and continued; it is further ORDERED AND ADJUDGED that the Notice of Lis Pendens filed in the above-styled cause and recorded in Official Record Book 4017, Page 917 of the Public Records of Collier County, Florida be dismissed as to Parcels 104 and 604; it is further ORDERED AND ADJUDGED that pursuant to Section 74,051(4), F.S., the Clerk of Courts shall disburse the interest earned on the funds on deposit in the amount of$714.31, plus any additional accrued interest for parcels 104 and 604, to the Board of County Commissioners, account number 336-163656-62081; it is further 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 Parcels 104 and 604 and that have or could have been asserted in this cause; it is further DONE AND ORDERED in Chanlbers at Naples, Collier County, Florida, this day of ,20_. HONORABLE CYNTIUA A. PIV ACEK CIRCUIT COURT JUDGE Conformed copies to: Robert N. Zachary, Esquire Kevin Brinkhoff, Esquire Fred C. Isaac, Esquire Michael A. Durant, Esquire Jennifer Dixon-Abbott, Esquire Mr. David Cll!)' 1. Jeffrey Rice, Esquire Mr. William O'Connor Kevin Hendricks, Transportation/ECM Jennifer A. BOllifield, Esquire 3 ,^,genda Item No. 16K2 December 15, 2009 Page 8 of 11 JOINT MOTION FOR STIPULATED FINAL JUDGMENT Petitioner, COLLIER COUNTY, FLORIDA, together with Respondents, SANTA BARBARA FUELS, INC. and TOUCHLESS LASER CAR WASH, INC., hereby respectfully move for entry of the foregoing Stipulated Final Judgment as to Parcels 104 and 604, Dated: ~! 1-l 0 ( )!:~Cb</ Dated: FRED C. ISAAC, ESQUIRE Florida Bar No, It 91 32 FOERSTER, ISAAC AND YERKES 2468 Atlantic Boulevard Jacksonville, Florida 32207-3564 (904)396-1900 - Telephone (904)396-0921 - Facsimile ATTORNEY FOR RESPONDENTS, ~ ROBERTN, ZACHARY Florida Bar NO.8] 6604 ASSISTANT COUNTY ATTORNEY Harmon Turner Building, 81h Floor 330] East Tamiami Trail Naples, Florida 34112 (239) 252-8400 - Tekphone (239) 252-6300 - Facsimile ATTORNEY FOR PETITIONER and M]CHAEL A. DURANT, ESQUIRE Florida Bar No, 468045 CONROY, CONROY & DURANT, P,A. 2210 Vanderbilt Beach Road, Suite 1201 Naples, Florida 34109 (239)649-5200 (Telephone) (239)687-1976 (Direct Phone) (239)649-8140 (Facsimile) 4 Agenda Item No. 16K2 December 15, 2009 Page 9 of 11 SERVICE LIST FOR PARCELS 104 & 604 Collier County v Highland Properties of Lee and Collier, Limited, et al. Santa Barbara Fuels, Inc. T ouchless Laser Carwash, Inc. Michael A. Durant, Esquire 2210 Vanderbilt Beach Road, Suite 1201 Naples, FL 34109,8721 and Fred C. Isaac, Esquire FOERSTER, ISAAC AND YERKES 2468 Atlantic Blvd. Jacksonville, FL 32207-3564 Zomoi, Inc. d/b/a Ace America's Cash Express c/o David Cary, Registered Agent 11325-C Del Prado Blvd" South Cape Coral, FL 33990 U. S. Home Corporation c/o J. Jeffrey Rice, Esquire GOLDSTEIN, BUCKLEY, CECHMAN, RICE & PURTZ, P.A. POBox 2366 Fort Myers, FL 33902 Countryside Master Association, Inc, c/o William O'Connor, Registered Agent 600 Countryside Drive Naples, FL 34104 Inland Southeast Countryside Limited Partnership c/o JenniferA. Bonifield, Esquire BONIFIELD LAW, PA 1025 Professional Park Drive Brandon, FL 33511 Collier County Tax Collector c/o Jennifer Dixon-Abbott, Esquire RHODES TUCKER & GARRETSON POBox887 Marco Island, FL 34146 CPo 06-0563-CA;3214 r 5 , I Agenda Item No. 16K2 December 15. 2009 Page 10 of 11 -.I t--- ., II ' I \ PRQPOSCD R,O W --- II \ COUNTTr't'SlDE A r. BERKSHRE LAKcs'SEC11ON J..1R.tCT 11. pur 800K 14. PACES 6-8 FEE SIM Sf: PARCEl. 104 RIGHT OF WAr 2.7/4 SQl/Af/E D,R. BOO/( 2214'1~ O.R. 8001< 21JI, PACE 1656 ~ . PArr 1~ ,'~.RQ'!" ""-' 180.00' ~\ ~r-- ~ I D 250" IllD 201'1 GRAPIi1C SCAlE: PART Of' Ot./lPARCfJ. ac" ~ ;:: '" ~ "'''' P?S ., ~ I I 8EI/KSHlRC COWCNS I . PARCEl. .c. l ~,s_ ~ PA= JI-J2 TRACT't". PLAT BOOK 14, PACEs 118 f20 O.R 800K 2719, PAr;r 9.17 OUTPARCa 000" ::0 !i2 b i' EXISTING 100' P.O.B. R,O. If. !-I.E. CORNER (T TRACT II EAST UNE OF SECTION S 5 J2 4 JJ SANTA BARBARA BOULEVARD EXISTING 101/ R.aw' LEGAL DESCRIP710N PARCEl. 101 ALL THAT PART OF THE LANO OESCRIBEO IN OFFICIAL RECOROS BOOK 21J1, PAG[ 1959. BEING PART OF COUNTRYSlOe AT 8EfII<SHJRe LAKES SECTION J. TRACT I/, PLAT BOo!( 14, PAGeS 6-8, COLUERiCOI/NTY. FLORIOA, AND BEING MORE PARTICUlARLY D[SCRIBt:o AS FOLLOWS; BEGINNING AT TH[ Ni:!RTH[AST CORNER OF TRACT 11. COUNTRYSlDE.AT BeRKSHIRE LAKES, SECTlDN THRee. PUT BOOK 14, PAGES,6-B, COWu/ COUNTy' FLORIDA; THeNCE ALONG THe EAST LINE or SAID TRACT 11 SOUTII 01'C2'1S" EAST 26.17 FfIT; THCNCE NORTH 71'15'44' IVCST 32,28 FCCI; THENCE NORTH 89'36'22' IVCST 129.62 FECI; THCNCE NORTH 01"02'15" WEST 16.01 FECI TO THE NORTH LINE or SAIO TRACT 11; THENCE ALONG SAlO NORTH LINE SOUTH 89'36'22" EAST 160.00 FEET TO' THe POINT OF BeGINNING. CONTAINING 2.714 softARE FEa. MORE OR LESS. SUBJECT TO EASEMeNTS AND RESTRICTIONS OF RECORD, EXHIBIT A **; Page2.. of..1QJ. LEGEND: ~ RIGHT OF WAY R.D.W.w RICHT OF WAY P. as. . POINT OF BeGINNING LINE TA8lE UNf BfARfNG L1 501'02'15 LZ N7t1S'44-W fJ N8!rJ6'2rw [4 Nor ',s.w DISTANCE 26.17' 32.28' r 9.62' 16.01' . UJ{CE . Ui.1ER. OVA' .'ilA'i'1fnl\' &: MAPPER FlCRfOA. RRilSTRA 7TON l.S /5527 Nor VAliD UNLESS SlCNto 8r lH~ SURIf"lU'i' AND SEAt..ro 1H11f THC SURIf"YOR~ fJ.I90SSfl> SCAL CERF1f1CATE OF AUTHOI?IZA71ON # lB-4J totrc; Ha~ 62081 I'AllClt. r;a. : 104- WilsonMille,"'w- . ...........~.~II.an.,w..~..v.:M'...!I.Tr~~ iI'ii"oM<ll!\';~ NtiW.,<;otIo\w'l..""""".......,.,"'" l3l:I~I.Mrt.""tv....1bl::t~._~.FtJIlI-&.II-.PlI.ro\..!lo ............."'" __AIfl~lJ//t_.. .ll/PCIII'AlIl.V~I~_ AAU$JIOJ"Sl.(!rNNIt'-lI" smIll(Wl)1at~W'ltIII:. REVISED 9-21-0-1 l TlJ REIITSfD 9-29-05 CPRL 857 . -, COLUER COUNTY TRANSPORT A TlON. E:NGINE:ERING &: CONSTRUCTION MANAGEMENT DIV/510N 'm~t. SKE:TCH AND DESCRIPTION' BEiNG PAf?l OF PItRCQ DESCRlSaJ IN OI"FJC/AL R~COR{)S BOOK 21.]1, PA.~ fS59, COLVER COUNTY. FLORJDA ~~~r7:~"7_"If\_ mJJ~ ~n~ ~t~.... f;;.....N..:.; W,1E: ".JhI1ll7 ,.- ,--- Pfl/PfTUAL SLOPf I fASF:lIfNT--"',~ \ Pf10P0SfO f1,O,W, --....1 , CWl/TR'fSIOE At BE1IJ(SHRE LAKES SCCIICN .\' 1IlACT II, PlAT BOIJ( '4, fAGES 1-8 lBO-DO' PltRos. 604 .. PfRPrnJAL Sl.OPE I ~$E1JENT SCUltRe F'fET al? BOOK 22'4. i O,R. BOO/( 11J1: PACE IS56 ~l PAGE ,g"g fXlST/IiG 10(1' R.O.w' . EX/STING 100' R,O,W, .', ( Agenda Item No. 16K2 December 15, 2009 Page 11 of 11 !\ ~ ~ ~~ ~ ~~ """, ~ "'tl( ~~ ~ . "'d ~r- ~-, I 01110 IlIl ~ GRAPHIC SCALE PART or OUTPARCEt .c. JRACT T ~ '4. PI.G!S UB-t20 ~ _s 'AIlCO. "C" PLAT BOOK .l\ PActS JI->> D.R. BOOK 2719, PAGE gJ7 OUIPAIlCO. 7>" :a 12 t:l 5 J2 ., J,] SANTA BARBARA BOULEVARD LeGAL DE:SCRIPT1(JN PARCEL 604 AU THAT PART OF rHf LAND DfSCR/BEV IN OFF1aM. IIfCOROS BOOK 2131, PAGf 1959, 8F:JNG PART OF COUNTF/'ISIDI' AT 8F:f1KSHlllf LAKI'SStCT/ON J, TRACT I, PUoT BOOK H, PAGfS 6-8, COWfll COUNTY, FLOR/DA, AND 81'1NG MORE PARTlClJU.RLY DfSCI/IBI'O AS FOllOWS; co/'(IIF:NCING AT THf NORTlfF:AST CDRNF:J/ OF TRACT II, CO/lNTRYSIIIF: AT BfRKSHlRf LAKES, SecTION TIIl/II, PI.A T,BOOJ( H, PAGtS 6-8, cauF:J/ COUI/TY, FLORIDA; . TliF:IVCE ALONG TIfF: fAST LINE OF SAID TRACT II SOIIT// 0/'02'1" fAST 26. 17-FI'U ro TliE POINT OF BEGINNIN(;; TI/F:NCF: CONTINUf ALONG SAID <AST LINE SOUTH Or02'IS" EAST S.JI FEU; THENCE NOK11I 71'15'44" wc.rr JJ.2' FrrT; THENCE: NORTH 89'J6'22" IIFST 12S,68 FEU; THENCE NORTH 0I'02',S' WEST 5.00 FrrT; THENCE SOUTH S9"J6'U" WT /29.62 FEU; THmCf SOIIT// '/'/5'44' WT J2-28 FrrT TO THE POINT OF Bt:GINN/NG. CONTNNING B09.0 SOWlE FIB, MORE OR LfSS. SUBJECT 'TO !'AIDII'NIS AND REST1IICTlONS tR IT A ... NOT.A ... Pagel of...1f!.l MfPARfD 8~. LEGEND, """" ""''' 'i PI1IPrn1A/. SlOPE EASCJIENT ~ RIGHr OF' WAY TAKJNC UHCE,'/4/,CII, ~S1A1'fYll'/"1IAPI'ER ~ Fl,0RII1A RCGlSlRAfIoN.t,S'p62' R.O.II( . ///CHT OF WAY NOT \lAUD UNl.ESS S1CNU) iJr TN( 5UR\If.1'tW AND ~__..-., P.o.s.. PaNT OF BEGJNHTNC. ~ALED MfTH rH€ SURllf1'VR'S E1IBrmED S&\L ===-~'=Ir R015aJ 9-21-04. 1.TJ/ CERF7F1CATf OF AU'1HfRfzAnDN L8-1J SlSIIII'tWJlmft-'UAIl'll:\flt RorSfD 9-1SJ-05 GPRL 857 -... ''''' 62081 . """.... 60+ ..... COWER Cot/NIT llMNsPORTA110N, M~~I/IMW -.., - ENGINOFRING '" CONSlRUCl1ON MAN....GEMENT D/YlSlON '. " 'all """ SKETCH ....ND DEScRIPTION 'J Il Iii. BEING PART OF PARCEL D€SCRJfJED IN ..............~ '~'''''''''~..AnNc'''~''CadMII OFnaAL RECORDS BOOK 2ISl,.PACE 19~9, ItIIcrlWw: M crx.t.Jf:R COLW1Y, FLORIOJ. _.1lIt1olllr................r... !)Alt:,. ~t 110.1 5f1UTHlJUlWl: 'UllIU -_~.......IIl:fMIMIIHIll'.....~.IIC~................._ n4hnn~ "'''tJ':n_fln?_mn-rro-rlW=' t/UA nF' WY "1"'1'" ..."... UNE LI l2 LJ Lf L5 L' L7 DISTANCE .fl' J' 7' 18.68' ,00' 19.62' 32.28'