Item VI (B1) Approval and Settlement Agreements - Margaret Mulvey-Clarke Road Parcels No 112, 113, 114, 312 AGENDA 6-16-92
Item VI B 1
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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.
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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)
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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
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