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HomeMy WebLinkAboutItem VI (B1) Approval and Settlement Agreements - Margaret Mulvey-Clarke Road Parcels No 112, 113, 114, 312 AGENDA 6-16-92 Item VI B 1 FOLEY & LARDNER III NORTH ORANGE AVENUE.SUITE 1800 POST OFFICE BOX 2193 ORLANDO, FLORIDA 32802-2193 JACKSONVILLE, FLORIDA TELEPHONE 14071 423-7656 IS A MEMBER OF GLOBALEX TALLAHASSEE, FLORIDA FACSIMILE 14071 648-1743 WITH MEMBER OFFICES IN TAMPA, FLORIDA WEST PALM BEACH, FLORIDA MILWAUKEE, WISCONSIN LONDON, ENGLAND MADISON, WISCONSIN PARIS, FRANCE CHICAGO, ILLINOIS BERLIN, GERMANY STUTTGART, GERMANY WASHINGTON. D.C. DRESDEN, GERMANY ALEXANDRIA, VIRGINIA MEMORANDUM ANNAPOLIS, MARYLAND SINGAPORE TAIPEI, TAIWAN TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, City Attorney 541._ DATE: June 12 , 1992 RE: Approval of Mediation Agreement with Margaret Ann Mulvey; Clark Road Parcel Nos. 112 , 113 , 114, 114 (a) 312, 313 , 314 and 314 (a) The City of Ocoee filed a Petition for Condemnation on August 16, 1991 to acquire certain interests in Clark Road Parcel Nos. 112, 113 , 114 , 312 , 313 and 314 ("the Mulvey Parcels") from Margaret Ann Mulvey ("Mulvey") . The Petition also sought to acquire certain interests in Clark Road Parcel Nos. 114 (a) and 314 (a) owned by Mulvey and certain other persons. In connection with the condemnation action, the City's appraiser, Pinel & Carpenter, Inc. appraised the land taken at $50, 850 and the value of improvements at $5, 975 for a total land value of $56, 825 for Clark Road Parcel Nos. 112 , 113 and 114 . In addition, Pinel & Carpenter appraised the value of a temporary construction easement across Clark Road, Parcel Nos. 312 , 313 and 314, at $2, 725. Accordingly, it was the opinion of Pinel & Carpenter that the value of the taking of the Mulvey Parcels was $59, 550. In addition, Pinel & Carpenter appraised the value of the takings of Clark Road Parcel Nos. 114 (a) (a fee taking) and 314 (a) (a temporary construction easement) at $200. An Order of Taking was entered September 27, 1991 in which the Court granted the City of Ocoee the right to take the Mulvey Parcels and Parcel Nos. 114 (a) and 314 (a) . The sum of $59, 750 was deposited by the City into the Registry of the Court on October 10, 1991. Mrs. Mulvey contested the valuation of the Mulvey Parcels as determined by Pinel & Carpenter. Mrs. Mulvey retained Matonis, MacDermott & Company to appraise the interests taken by the City. Mrs. Mulvey' s appraiser valued the land taken at $125, 500. Additionally, Mrs. Mulvey' s appraiser valued the temporary construction easement at $8, 850. Accordingly, Mrs. Mulvey's appraiser valued the total taking of the Mulvey Parcels at $134 , 350. T o 1.. o1 Z Y E A R S Q� Z; There was no dispute between the City and Mrs. Mulvey with respect to the $200 valuation of Clark Road Parcel Nos. 114 (a) and 314 (a) . A separate appraisal was not obtained with respect to such parcels. There are essentially two differences in the appraisals. First, the Pinel appraisal uses a per acre residential value of $32, 815 per acre, whereas, the Matonis appraisal values the residential property at $35, 000 per acre. The second difference is that the Matonis appraisal assigned a low intensity commercial highest and best use to a five acre portion of the parent tract owned by Mrs. Mulvey. Mrs. Mulvey also retained Hugh Harling as a land planner who conducted a study confirming the Matonis analysis as to low intensity commercial usage. Accordingly, the Pinel report appraises the entire taking based upon a highest and best use of low density single family residential, whereas the Matonis appraisal values the taking based on a highest and best use consisting of both low density single family residential and low intensity commercial usage. The essential difference of opinion is whether the highest and best use of a five acre portion of Mrs. Mulvey's property is low intensity commercial. The Court ordered that the parties attempt to mediate this matter and a mediation meeting was held on June 1, 1992 . Jim Shira, Jon Wilson and I were present representing the City. Mrs. Mulvey was present along with her attorneys, Ladd Fassett and Ken Oswald. During the mediation, the parties each presented a summary of the arguments which they would make in Court. The strength and weaknesses of these arguments were also briefly discussed. The goal of the mediation was to close the gap of $74 , 800. 00 between the values asserted by the City and Mrs. Mulvey. After extensive negotiations through Davisson Dunlap, the mediator, the parties agreed to a settlement value of the taking of the Mulvey Property at $99, 500. This represents a payment in the amount of $39, 950 in excess of the appraised value found by Pinel. In reaching this settlement, we took into consideration the additional expense which would be incurred in moving the case to trial and the risk that a jury would find a value of the taking in excess of that found by Pinel. Additionally, we took into consideration the legal obligation of the City to pay 12% annual interest on the difference between the amount paid into the Registry of the Court and the value found by the jury. In reaching the settlement, Mrs. Mulvey agreed that the $99, 500 value would be inclusive of any interest which would be otherwise payable under Florida law. Mrs. Mulvey's legal counsel also agreed that their legal fees would not exceed $20, 000. Attached hereto is the Mediation Agreement which sets forth the details of our proposed settlement. -2- Taking all of the above factors into consideration, it is the opinion of the City Attorney, the City Engineer and the City Manager that approval of the Mediation Agreement is in the best interests of the City. RECOMMENDATION: It respectfully is recommended that the Mayor and City Commissioners (1) approve the Mediation Agreement dated June 1, 1992 between the City of Ocoee and Margaret Ann Mulvey a/k/a Margaret Bravar ("Mrs. Mulvey") , (2) authorize the payment to Mrs. Mulvey of the additional sum of $39, 950 pursuant to the terms of said Mediation Agreement, (3) authorize the payment of Mrs. Mulvey' s attorneys ' fees and costs, including reasonable land use and appraisal expert fees, subject to review and approval thereof by the City Attorney and City Manager or as otherwise ordered by the Court and subject to the conditions of the Mediation Agreement, (4) authorize the payment of the mediator's fee subject to review and approval thereof by the City Attorney and City Manager and (5) authorize the City Attorney, Mayor and City Clerk to execute such documents as may be necessary to implement the terms and conditions of the Mediation Agreement. encl. cc: Mr. Ellis Shapiro Mr. Jim Shira C:\W P51\DOCS\OCOE\I45.MEM 1 6/1 2/92 1 1 8501 5;PER:jIh(I) -3- MEDIATION AGREEMENT This Mediation Agreement, in the case of City of Ocoee v. Mulvey, et al. , has been agreed to by the parties, City of Ocoee and Margaret Ann Mulvey a/k/a Margaret Bravar, this 1st day of- June, 1992 . It has been agreed as follows: 1. The City of Ocoee shall pay the Defendant, Margaret Ann Mulvey a/k/a Margaret Bravar, the sum of $99, 500 to cover the cost of the land taken, the improvements taken, and the temporary easement and interest upon the additional sum paid over and above the money withdrawn from the registry of the court. 2 . The Defendant shall be entitled to receive moneys for attorney's fees and costs as set by the Court subject to the condition that the attorney's fees set by the Court or by agreement of the parties shall not exceed $20, 000. In addition, Margaret Ann Mulvey, the Defendant, shall be entitled to reasonable land use and appraisal expert fees. 3 . The terms of the Settlement Agreement shall remain confidential through June 10, 1992 . 4. The settlement is subject to approval by the City Commission of Ocoee. 5. The Settlement Agreement shall be carried out promptly after approval by the City of Ocoee. 6. This agreement covers parcels 112 , 113 , 114 , 312 , 313 and 314 . 7. The valuation of parcel 114 (a) and 314 (a) of $200, which has been paid in court, is accepted by the parties. A 8. City will seek approval of the- settlement on June 16, 1992, and, if approved, will make payment of the settlement money by June 30, 1992 . If settlement is not approved, Mulvey shall have the option of having the trial continued or have the case tried as - scheduled. Parties agree to cooperate in taking discovery depositions in case the settlement is not approved. Executed this 1st day of June, 1992 . CITY OF OCOEE By: /s/ John Wilson Attorney for Plaintiff MARGARET ANN MULVEY a/k/a MARGARET BRAVAR By: /s/ Margaret Ann Mulvey 2