Item 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.
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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
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