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Agenda 09/29/2009 Item #16K 5 Agenda Item No. 16K5 September 29,2009 Page 1 of 6 EXECUTIVE SUMMARY Authorize the making of an Offer of Judgment to Respondent, Myrtle Preserve, LLC, for Parcel No. 809 in the amount of $24,000 in the lawsuit styled Collier County v. Myrtle Preserve, LLC, et al., Case No. 07-463-CA (Lely Area Stormwater Improvement Project No. 51101) (Fiscal Impact $4,400). OBJECTIVE: To approve and authorize the making of an Offer of Judgment pursuant to Section 73.032, Fla. Stat., to property owner, Myrtle Preserve, LLC, in the amount of $24,000, as full compensation, excepting attorney's fees and costs, for the fee simple acquisition arising out of the condemnation of Parcel No. 809 in Collier County v. Myrtle Preserve, LLC, et at., Case No. 07 -463-CA, Lely Area Stormwater Improvement Project 51101. CONSIDERATIONS: Collier County has condemned a .41 acre parcel for stormwater improvement (Parcel 809) from property owner Myrtle Preserve, LLC. The County's initial appraisal dated August 25, 2006, valued the taking at $19,300. The County offered the owner $22,500 as the County's statutory offer on November 9, 2006, which includes the appraisal amount plus an incentive to settle. The offer was not accepted. A second appraisal dated June 29, 2007, valued Parcel 809 at $19,600. An Order of Taking hearing was held on August 3, 2007, and the County deposited the sum of$19,600 in the Court Registry. The County Attorney's Office and staff would like to make an Offer ofJudgment in the amount of $24,000 as full compensation for Parcel 809, excluding attorney's fees, expert fees and costs, which will expire in 30 days unless extended by the County or accepted. If the property owner accepts the offer, the County will be required to pay an additional $4,400, which will be paid to the property owner by Stipulated Final Judgment of the court. If the property owner rejects the offer, and fails to recover more than $24,000 for Parcel 809, either through settlement or jury verdict, the County will not be required to pay any costs incurred by the property owner after the date of the offer's rejection. This would include any expert witness fees, such as appraisal fees. Although the offer does not include attorney's fees, if the property owner accepts the offer, the attorney's fee based on benefit achieved pursuant to Section 73.092, Fla. Stat., is $495. The County Attorney's Office has reviewed all considerations in making an Offer of Judgment and has calculated in good faith this offer of full compensation for the property interests taken. This office considers the terms of the Offer of Judgment to be reasonable. FISCAL IMP ACT: Funds in the amount of $4,400 from the Lely Area Stormwater Improvement Project (Project No. 51101) to come from ad valorem taxes. LEGAL CONSIDERATIONS: This item is legally sufficient for Board action. RNZ GROWTH MANAGEMENT IMPACT: None. Agenda Item No. 16K5 September 29, 2009 Page 2 of 6 Executive Summary Page Two RECOMMENDA TION: That the Board of County Commissioners: 1. Approve the terms of the Offer of Judgment and authorize its service on the property owner; 2. Approve the expenditure of funds as stated, if the offer is accepted. -, Prepared by: Robert N. Zachary, Assistant County Attorney 07-0463;265 2 Page 1 of2 Agenda Item No. 16K5 September 29, 2009 Page 3 of 6 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 16K5 Item Summary: Authorize the making of an Offer of Judgment to Respondent, Myrtle Preserve, LLC. for Parcel No. 809 in the amount of $24,000 in the lawsuit styled Collier County v. Myrtle Preserve, LLC, et aI., Case No. 07-463-CA (Lely Area Stormwater Improvement Project No. 51101) (Fiscal Impact $4,400). Meeting Date: 9/29/2009 9:00:00 AM Prepared By Robert N. Zachary Assistant County Attorney Date County Attorney County Attorney Office 9/16/20093:22:05 PM Approved By Heidi F. Ashton Assistant County Attorney Date County Attorney County Attorney Office 9/16/2009 4:43 PM Approved By Robert N. Zachary Assistant County Attorney Date County Attorney County Attorney Office 9/17/20099:10 AM Approved By Caroline Soto Administrative Assistant Date Transportation Services Transportation Engineering and Construction 9/17/2009 1 :04 PM Approved By Gerald Kurtz Senior Engineer Date Transportation Services Storm water Management 9/17/20091 :54 PM Approved By Najeh Ahmad Director Date Transportation Services Transportation Engineering & Construction Management 9/17/20093:45 PM Approved By Kevin Hendricks Right Of Way Acquisition Manager Date Transportation Services TECM-ROW 9/17/20094:41 PM Approved By Jeff Klatzkow County Attorney Date County Attorney County Attorney Office 9/18/2009 1 :39 PM Approved By OMS Coordinator OMS Coordinator Date file://C:\Agendatest\export\135-September 29,2009\16. CONSENT AGENDA\16K. COON... 9/23/2009 Page 2 of2 Agenda Item No. 16K5 September 29,2009 Page 4 of 6 County Manager's Office Office of Management & Budget 9118/2009 3:47 PM Approved By John A. Yonkosky Director of the Office of Management Date County Manager's Office Office of Management & Budget 9/18/20095:21 PM Approved By Leo E. Ochs, Jr. Deputy County Manager Date Board of County Comm issioners County Manager's Office 9/19/20099:37 AM -- - file://C:\Agendatest\export\135-September 29,2009\16. CONSENT AGENDA\16K. COUN... 9/23/2009 Agenda Item No. 16K5 September 29,2009 Page 5 of 6 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CML ACTION COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida, Petitioner, Case No. 07-463-CA v. Parcel No.: 809 MYRTLE PRESERVE, LLC, et aI., Respondents. -- / OFFER OF JUDGMENT TO: Myrtle Preserve LLC c/o Kenneth A. Jones, Esquire Roetzel & Andress 2320 First Street, Suite 1000 Fort Myers, FL 33901 Petitioner, COLLIER COUNTY, FLORIDA, pursuant to Section 73.032, Florida Statues, and Fla. R. Civ. P. 1.442, does hereby make this binding offer of judgment in this action for the Lely Area Stormwater Improvement Project No. 51101 to the Respondent, MYRTLE PRESERVE, LLC ("Respondent"), for all compensation, including severance damages, business damages, costs to cure, together with the value of the taking, and any other claims of Respondents arising out of the taking of Parcel 809, in the total amount of Twenty Four Thousand and NollOO Dollars ($24,000.00), for Parcel 809, subject to apportionment if any, which includes the amount of $19,600.00 which was deposited pursuant to the Order of Taking dated August 3, 2007. Agenda Item No. 16K5 September 29,2009 Page 6 of 6 There are no non-monetary terms or other relevant conditions to this offer except that this offer does include interest from the date of the Order of Taking but does not include attorneys fees and costs. The construction plans and specifications for the project on which the offer is based have been previously and continue to be available for the Respondents' review upon reasonable notice of such a request. This Offer of Judgment was approved by the Board of County Commissioners on the _ day of ,2009. Dated this _ day of ,2009. OFFICE OF THE COUNTY ATTORNEY Harmon Turner Building 3301 East Tamiami Trail Naples, Florida 34112 (239) 252-8400 - Telephone (239) 252-6300 - Facsimile BY: R.~ ROBERT N. ZACHARY ASSIST ANT COUNTY ATTORNEY Florida Bar No. 816604 ATTORNEY FOR PETITIONER 2 --.---. -.-...--..--