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HomeMy WebLinkAboutItem VI (B2) Approval and Settlement Agreements - Bennye Lou Pease and Patricia Anne Ross-Clarke Road Parcels No 120,220, and 320 . • AGENDA 6-16-92 Item VI B 2 FOLEY & LARDNER III NORTH ORANGE AVENUE, SUITE 1800 ORLANDO, FLORIDA 32801-2386 TELEPHONE (407) 423-7656 FACSIMILE (407) 648-1743 • TAMPA, FLORIDA MAILING ADDRESS: MILWAUKEE, WISCONSIN JACKSONVILLE, FLORIDA POST OFFICE BOX 2193 MADISON, WISCONSIN TALLAHASSEE, FLORIDA ORLANDO, FL 32802-2193 WASHINGTON, D.C. WEST PALM BEACH, FLORIDA ALEXANDRIA, VIRGINIA ANNAPOLIS, MARYLAND CHICAGO, ILLINOIS MEMORANDUM TO: The Honorable Mayor and City Commissioners of the City of Ocoee FROM: Paul E. Rosenthal, CityCity Atto17-7-1 DATE: June 12 , 1992 RE: Approval of Mediation Agreement with Bennye Lou Pease and Patricia Anne Ross, as Co-Trustees; Clark Road Parcel Nos. 120, 220, and 320. The City of Ocoee filed a Petition for Condemnation on August 16, 1991 to acquire certain interests in Clark Road Parcel Nos. 120, 220, and 320 ("the Pease/Ross Parcels") from Bennye Lou Pease and Patricia Anne Ross, as Co-Trustees ("Pease/Ross") . In connection with the condemnation action, the City's appraiser, Pinel & Carpenter, Inc. appraised the land taken as Parcels 120 and 220 at $60, 125. In addition, Pinel & Carpenter appraised the value of a temporary construction easement across Clark Road, Parcel No. 320, at $900. Accordingly, it was the opinion of Pinel & Carpenter that the value of the taking of the Pease/Ross Parcels was $61, 025. An Order of Taking was entered September 27, 1991 in which the Court granted the City of Ocoee the right to take the Pease/Ross Parcels. The sum of $61, 025 was deposited by the City into the Registry of the Court on October 10, 1991. Ms. Pease and Ms. Ross have contested the valuation of the Pease/Ross Parcels as determined by Pinel & Carpenter. They retained Matonis, MacDermott & Company to appraise the interests taken by the City. The Pease/Ross appraiser valued the land taken at $150, 800. Additionally, the Pease/Ross appraiser valued the temporary construction easement at $4, 950. Accordingly, the Pease/Ross appraiser valued the total taking of the Pease/Ross Parcels at $155, 750. There are essentially two differences in the appraisals. First, the Pinel report appraises the property upon a highest and best use of low density single family residential and uses a value of $35, 500 per acre to value the parts taken. The Pinel appraisal includes a 15% premium for location and possible use of a portion of the parent tract for commercial uses. The Matonis appraisal has assigned a multi-family highest and best use to a portion of the property and valued this land at $72, 000 per acre. The second difference is that the Matonis appraisal assigned a commercial highest and best use to a 3 . 5 acre portion of the parent tract owned by Ms. Pease and Ms. Ross. Pease/Ross also retained Canin Associates as a land planner who conducted a study confirming the Matonis appraisal as to commercial usage. Accordingly, the Pinel report appraises the entire taking based upon a highest and best use of low density single family residential (with a 15% premium) , whereas the Matonis appraisal values the taking based on a highest and best use consisting of both commercial and multi-family usage. The Court ordered that the parties attempt to mediate this matter and a mediation meeting was held on June 10, 1992 . Jim Shira, Jon Wilson and I were present representing the City. Ms. Pease and Mr. and Mrs. Ross were present along with their attorneys, Bill Mateer and Christine Abrams. 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 $94,725 between the values asserted by the City and Ms. Pease and Ms. Ross. After extensive negotiations through Davisson Dunlap, the mediator, the parties agreed to a settlement value of the taking of the Pease/Ross Property at $125, 000. This represents a payment in the amount of $63 , 975 in excess of the appraised value found by Pinel. In reaching this settlement, the City took into consideration the likelihood that a jury would conclude that a portion of the parent tract had a commercial highest and best use. Pease/Ross would point out to the jury that the parent tract is designated as an Activity Center under the Ocoee Comprehensive Plan and that the other three corners are commercial. Brian Canin would also testify in support of commerical usage. We believe that a jury would conclude that a portion of the property has a highest and best use for commercial purposes. In light of all these factors we would have recommended that the City accept the valuation of the Matonis appraisal with respect to the commercial usage, but reject it with respect to the multi-family usage. Based upon this circumstance, we believe that $113 , 500 is the fair value of the property taken after adjusting for commercial uses (representing a land value of $107, 800 plus interest from the date of taking) . Accordingly, in our opinion, the proposed settlement is $11, 500 in excess of the value of the property taken. Our settlement discussions with Pease/Ross were based upon this opinion. -2- In reaching this settlement, we also 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 our adjusted value of $113, 500. • Additionally, Ms. Pease and Ms. Ross agreed that the $125, 000 value would be inclusive of any interest which would be otherwise payable under Florida law. The Pease/Ross legal counsel also agreed that their legal fees would not exceed $32 , 500. Attached hereto is the Mediation Agreement which sets forth the details of our proposed settlement. 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 10, 1992 between the City of Ocoee and Bennye Lou Pease and Patricia Anne Ross, as Co-Trustees (2) authorize the payment to Ms. Pease and Ms. Ross, as Co-Trustees, of the additional sum of $63 ,975 pursuant to the terms of said Mediation Agreement, (3) authorize the payment of the Pease/Ross 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:\WP5I\DOCS\OCOE\PEASE.MEM;6/1242;185015;PER:j1h -3- 111 4U -b4ti-yUyy JUN 10 '92 1557 No . 020 P .02 k EDYA2'rON AGRFEMENT This Mediation Agreement, in the case of Qctao C191-7358, - 4Late, No. 4 has been agreed to by the parties. C' �tv 9f Ocnpg nd Be n e as and at ic'a n ss, this 10th day of June, 1992. It has been agreed as follows; 1. The City Ocoeeshall of pay the Defendants e n e ea a an Pa ricia Anne Ross the sum of $125, 000. 00 $61, 025.00 already (less withdrawn) , to cover the cost of the land taken, the drainage and construction easements and interest upon additional sum p the paid over and above the money withdrawn from the registry of the Court by the Defendants. . 2. The Defendants shall be entitled to recover moneys for attorneys' fees and costs as set by the Court or by agreement of the parties, subject to the condition that the attorneys' fees as set by the Court or by agreement of the parties shall not exceed $32,500. 00, plus costs. The sum of $32, 500. 00 shall cover attorneys' fees only Y expended to date and does not include any attorneys' fees expended p by the Defendants in the future for controversy with respect to the value of the fees of appraisers, land planners and other experts employed by Defendants. 3 . The settlement is subject to approval by the City Commissioner of Ocoee. 4 . The Settlement Agreement shall be carried out promptly after approval by the city of Ocoee. 5. This Agreement covers parcels 120, 220 and 320. ID :407-648-9099 JUN 1U '92 15 :57 No .020 P .03 6. 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 a 4 pproved, Defendants 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 10th day of June, 1992 . CITY OF OCOEE, Petitioner By: For the City Attorney for Plaintiff BENNYE LU PEASE and PATRICIA ANNE ROSS, Defendants By: Attorney for Defendants P:wUNIs*M31193 64722\MEDlAT1o.A('k 2