Item #06 Approval of City of Ocoee v. Lakendon - W.J Milner & Co. Mediated Settlement Agreement AGENDA ITEM COVER SHEET
Meeting Date: i>eCrir 7
Item #
Reviewed By:
Contact Name: Mary D. Solik, Special
Counsel Department Director:
Contact Number: 407 - 839 -3383 x 216 City Manager:
Subject: City of Ocoee v. Lakendon, et al.: Parcels 108 and 804 — W.J. Milner & Co. -
Mediated Settlement Agreement
Background Summary:
Request for approval of Mediated Settlement Agreement in case of City of Ocoee v. Lakendon, et
al., Parcels 108 and 804, W.J. Milner & Co. This case is an eminent domain action to acquire the
ROW necessary to construct the Maguire Road Phase V project.
Issue:
Parcels 108 and 804 were mediated on November 16, 2010.
Recommendations
Approve Negotiated Cost Amounts.
Attachments:
Staff Report attached.
Financial Impact:
Approval of the Negotiated Costs will require the payment of $97,500 by the City.
Type of Item:
❑ Public Hearing For Cleric's Dept Use:
❑ Ordinance First Reading ❑ Consent Agenda
❑ Ordinance First Reading ❑ Public Hearing
❑ Resolution ❑ Regular Agenda
® Commission Approval
❑ Discussion & Direction
El Original Document/Contract Attached for Execution by City Clerk
Original Document/Contract Held by Department for Execution
Reviewed by City Attorney E N/A
Reviewed by Finance Dept. _ 71 N/A
Reviewed by ( ) N/A
Law Offices of John L. Di Masi, P.A.
ATTORNEYS AT LAW
801 N. Orange Avenue
Suite 500
ORLANDO, FLORIDA 32801
TELEPHONE
JOHN L. DI MASI, Esquire (407) 839 -3383
MARY DOTY SOLIK, Esquire FACSIMILE
FRANK LACQUANITI, Esquire (407) 839 -3384
TIFFANY MOORE RUSSELL, Esquire
WENDY SHAY TEMPLE, Esquire E -MAIL: msolik @orlando- Iaw.com
MEMORANDUM
DATE: November 23, 2010
TO: The Honorable Mayor and Commissioners of the City, of Ocoee
FROM: Mary D. Solik, Esquire
RE: City of Ocoee v. W.J. Milner & Co.
Parcels 108 and 804 Mediated Settlement Agreement
BACKGROUND
The referenced case is a condemnation action. Parcels 108 and 804 are part of the Maguire Road
Phase V Project. Parcel 108 is a strip taking along the east side of Maguire Road. The parent tract is
owned by W.J. Milner & Co. The property is located just north of the Groundtek property and is leased
to City Electric Supply and NAMASCO. Parcel 108 is 5,169 square feet. The parent tract is 4.23 acres
in size. Parcel 804 is a drainage easement on the property. It is 580 square feet in size.
Dan DeRango, the City's appraiser, first appraised the property in 2006. He concluded to a total
value of $49,600. 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 $60,130. 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 owner argued that the strip taking
would affect the internal circulation of the semi- trucks utilized by the lessees on the property for
deliveries as well as require the relocation of five (5) parking spaces.
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PEC had opined that internal circulation was unaffected and that the five parking spaces could be
relocated on site. 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 108 and 804 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's counsel
to provide me with its attorneys' fees and costs claims. That number was in excess of $114,000. 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 16, 2010. Just prior to the mediation the property owner
presented the City with its appraisal, prepared by Rick Dreggors. Mr. Dreggor's opinion of land value
for the two parcels totaled $47,800. He maintained, however, that there were severance damages on the
property in the amount $302,400. This is despite the fact that the City had made some more revisions to
the two existing driveways. The parties were unable to reach a proposed comprehensive settlement of
all of the issues in the case and an impasse was declared by the mediator. The parties then mediated a
settlement of fees and costs based on a City dismissal of the law suit. This mediated settlement amount
is $97,500.
The Mediated Settlement Agreement on fees and costs, however, is subject to City Commission
approval. It is my opinion this settlement eliminates risk cost affectively and is in the best interest of the
City.
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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
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IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN
AND FOR ORANGE COUNTY, FLORIDA
CITY OF OCOEE,
Petitioner, Case No.: 08 -CA -11495
v. Parcel: 108 & 804
LAKENDON, INC., ETC.ET AL
W.J. MILNER, INC.,
Respondent.
MEDIATED SETTLEMENT AGREEMENT
At a Mediation Conference held on the 16th 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 Respondents', W.J. Milner, Inc.'s
the sum of $97,500.00 for any and all attorney's fees, expert's fees, costs and
expenses.
2. Counsel for Petitioner and Respondent will stipulate to the entry of an
Order awarding the fees and costs set forth in paragraph 1 and a Notice of Dismissal
Without Prejudice of parcels 108 and 804 from the lawsuit as soon as practical
hereafter.
3. Petitioner will pay the trust account of Kurt Ardaman the balance due of
$97,500.00 within 20 days hereof.
4. Attached hereto is an addendum to this yes agreement: X no
g Y
5. THIS AGREEMENT (AND ANY ADDENDUM, IF ANY) : TAIN(S) ALL OF THE
AGREEMENTS OF THE PARTIES, AND EVERY PART OF EVERYAi ' .T.
411 NW/ like.
Mary So ik, ?1t e for Petitioner K t , . ey or •espondent
. ator, Lawrence S. Gtndz 'r