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HomeMy WebLinkAboutItem #03 Approval of City of Ocoee v. Irwin Family Partnership, et.alAGENDA ITEM COVER SHEET Meeting Date: November 9, 2010 Item # Contact Name: Mary D. Solik, Special Counsel Contact Number: 407 - 839 -3383 x 216 Reviewed By: Department Director: City Manager: Subject: City of Ocoee v. Irwin Family Partnership, et al.: Parcels 105 and 802 - Mediated Settlement Background Summary: Parcels 105 and 802 are part of the Maguire Road Phase V Project. Parcel 105 is a strip taking along the east side of Maguire Road. Parcel 802 is a drainage easement on the property. Issue: Parcels 105 and 802 was mediated on November 9, 2010 and a settlement was reached subject to Commission approval. Recommendations Approve Mediated Settlement Agreement. Attachments: Staff Report attached. Financial Impact: Approval of the Mediated Settlement Agreement will require the payment of $182,500.00 by the City. Type of Item: ❑ Public Hearing For Clerk's Dept Use: ❑ Ordinance First Reading ❑ Consent Agenda ❑ Ordinance First Reading ❑ Public Hearing ❑ Resolution ❑ Regular Agenda ® Commission Approval ❑ Discussion & Direction ❑ Original Document/Contract Attached for Execution by City Clerk ❑ Original Document/Contract Held by Department for Execution Reviewed by City Attorney ® N/A Reviewed by Finance Dept. ❑ N/A Reviewed by ( ) ❑ N/A 4_1293936.1 Law Offices of John L. Di Masi, P.A. ATTORNEYS AT LAW 801 N. Orange Avenue Suite 500 ORLANDO, FLORIDA 32801 JOHN L. DI MASI, Esquire MARY DOTY SOLIK, Esquire FRANK LACQUANITI, Esquire TIFFANY MOORE RUSSELL, Esquire WENDY SHAY TEMPLE, Esquire MEMORANDUM DATE: November 9, 2010 TELEPHONE (407) 839 -3383 FACSIMILE (407) 839 -3384 E -MAIL: msolik@.orhndo- 4iw.com TO: The Honorable Mayor and Commissioners of the City of Ocoee FROM: Mary D. Solik, Esquire RE: City of Ocoee v. Irwin Family Partnership Parcels 105 and 802 Mediated Settlement Agreement BACKGROUND The referenced case is a condemnation action. Parcels 105 and 802 are part of the Maguire Road Phase V Project. Parcel 105 is a strip taking along the east side of Maguire Road. The parent tract is owned by the Irwin Family Partnership. The property is located just south of the Groundtek property and is leased to the Exotic Car Transporters. Parcel 105 is 4, 429 square feet. The parent tract is 2.86 acres in size. Parcel 802 is a drainage easement on the Irwin property. It is 3,286 square feet in size and is located adjacent to the drainage ditch that abuts the southern property line. Dan DeRango, the City's appraiser, first appraised the property in 2006. He concluded to a total value of $50,135. The initial offer was made to the property owner in this amount. The eminent domain action was filed in 2008 when funds for ROW acquisition were budgeted. Dan DeRango was then directed to update his report. His updated value was $57,822. Mr. DeRango did not find any damages caused by the taking. An Order of Taking hearing was held in November 2008. The property owner contested the taking arguing that because the City did not find any severance damages, the City had not presented a good faith estimate of value based on a valid appraisal. The property is currently served by one driveway and the property owner argued that the shortening of the throat of the driveway (caused by the ROW taking) as well as a narrowing of the driveway width would affect the internal circulation of the semi- trucks utilized by the lessee on the property. The City had anticipated this argument and had added a second driveway to the property as part of the construction plans. PEC had opined that the addition of this driveway would insure that semi access and circulation on the property would be unimpaired. At the hearing, the City argued that the issues raised by the property owner were really valuation issues appropriately raised at the valuation state of the proceeding. Judge Adams, however, disagreed and denied the Order of Taking, finding that the City should have done a complete before and after appraisal report to assess damages and ordered the City to do so and come back for another hearing. City staff viewed Judge Adams' ruling to be erroneous but declined an appeal as Florida law requires that the City pay the City's attorneys' fees on appeal and those of the property owners' as well. The more cost effective decision was to simply comply with the court's order and repetition the Court for an Order of Taking once the new appraisal was complete. Under Florida Statutes, the City is responsible for the property owner's reasonable attorneys' fees and costs incurred in defeating an order of taking. City staff continued to pursue the Maguire Road Phase V Project until budgetary constraints forced a re- evaluation of the Project. As title to Parcels 105 and 802 had not yet passed to the City, the option of dismissing the case as to this property owner was available. This decision, however, would mean that the project could not be constructed until the City refiled the condemnation action, reappraised the property, and reapplied for an Order of Taking. This decision is also not without exposure to the City. Under Florida Statutes, the City is still obligated to pay the property owner's reasonable attorneys' fees (on an hourly basis) and costs. If the city took a voluntary dismissal, it would have been the same exposure but for all phases of the litigation, not just the Order of Taking phase. It would also not have title to the property. To help the City decide the most prudent course of action, I asked the property owner to provide me with its attorneys' fees and costs claims. That number was in excess of $125,000. We then proposed a comprehensive mediation with the property owner to see if we could resolve all the issues in the case: acquisition, compensation, and cost reimbursement. If this process was successful, the City would obtain title to the right -of -way and be in control of its costs. The matter was mediated on November 9, 2010. Just prior to the mediation the property owner presented the City with its appraisal, prepared by Glen Spivey. Mr. Spivey's opinion of value for the two parcels totaled $78,800. He maintained, however, that there were still severance damages on the property in the amount $382,000. This is despite the fact that the City had made some more revisions to the two driveways proposed for the parent tract. The parties reached a mediated settlement agreement in the amount of $78,800 as full compensation. As part of this settlement, the City has agreed to waive the requirement under City Ordinance 2006 -014 that the property owner cure the non - conforming front yard setback caused by the taking. Curing this setback would require that the property owner remove a portion of the building on the Maguire Road frontage. This situation results in the "unreasonable burden" the waiver provisions of the ordinance were drafted to address. Also included in the settlement agreement was the payment of a total of $103,700 in expert fees and costs and attorneys fees. Under Florida law, condemning authorities are responsible for the property owner's reasonable expert costs. The condemning authority must also pay attorneys' fees based on a statutory formula for both monetary and non - monetary benefits obtained for the client. The statute also requires that attorneys' fees be paid 2 on a reasonable hourly basis for time spent defeating an Order of Taking. Because the property owner did defeat the Order of Taking, the City had additional exposure for attorneys' fees. The total settlement amount is $182,500. If the City had dismissed the case, we would have been litigating the property owner's claims for approximately $125,000 and still have not acquired the necessary property. The Mediated Settlement Agreement is, however, subject to City Commission approval. It is my opinion this settlement eliminates risk cost affectively and is in the best interest of the City. RECOMMENDATION It is respectfully recommended that the City Commission approve the Mediated Settlement Agreement, and authorize Staff to execute all documents necessary to conclude these matters. MDS /jc cc: Robert Frank, City Manager 3 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA CITY OF OCOEE, Petitioner, V. LAKENDON, INC., ETC.ET AL IRWIN FAMILY PARTNERSHIP, Respondent. Case No.: 08 -CA -11495 Parcel: 105 & 802 MEDIATED SETTLEMENT AGREEMENT At a Mediation Conference held on the 9th day of November, 2010, the parties reached the following Settlement Agreement subject to the approval of the City of Ocoee Commission. 1. Petitioner will pay to Respondent, IRWIN FAMILY PARTNRSHIP the sum of $78,800.00 in full settlement of all claims for compensation in this cause including statutory interest. 2. Petitioner will pay Respondent attorney's fees, expert's fees, costs and expenses in the amount of $103,700.00. 2. Counsel for Petitioner will submit to the Court for signature a mutually approved form of Stipulated Order Of Taking conveying parcels 105 and 802 to the City of Ocoee and a Stipulated Final Judgment of this matter as soon as practical hereafter. 3. Petitioner will deposit in the Court Registry the balance due of $182,500.00 within 10 days of the actual date of receipt by Petitioner's counsel a conformed copy of the aforesaid Stipulated Final Judgment from the Court. 5. The Court will retain jurisdiction herein solely as to the matter of to enforce the terms of the final judgment. 6. Attached hereto is an addendum to this agreement:_X_ yes no 7. THIS AGREEMENT (AND ANY ADDENDUM, IF ANY) CONTAIN(S) ALL OF THE AGREEMENTS OF THE PARTIES, AND EVERY PART OF EVERY GREEMENT. Petitioner, City of Ocoee Resp ent, Irwin Fami Partnership Rob Frank, it anager Gain W. Boswell Jr' r T I LiC i I r' Vkyfyx--( S 0 L-k tc Addendum to Irwin Family Partnership Mediation Agreement 1. As permitted by City Ordinance No.: 2006 -014, the City of Ocoee agrees to administratively waive the requirement set forth in said Ordinance that the property owner shall cure the front yard setback nonconformity caused by the taking of parcels 105 and 802. This waiver shall run with the land and shall inure to the benefit of successors and assigns. This waiver shall be included in the Stipulated Final Judgment. 2. The City also agrees that the driveway openings depicted in the attached sketch shall be constructed as part of the subject project and incorporated into the project plans. Said driveways shall constitute part of the full compensation paid to the owner for the taking of parcels 105 and 802. etitioner, City of Ocoee Rob Frank, City Manager Resp dent, Irwin F y Partnership Gaing W. Boswell Jr. ��a (" W - Mary Solik, Attorney for Petitioner RespUident, Irwin Family Partnership Janice I. Brown � ~ "k� � �| ■ § VAR f �k �� � $ 7 �a ■' . . �� k � � \ Pit \ q� '■ � �� .f � � � c . � � % | §a��, ■2 . I ! Gal I A , is — — � - , �.. 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