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94-90 RDA RESOLUTION NO. 94- 90 AN EMERGENCY RESOLUTION OF THE MIAMI BEACH REDEVELOPMENT AGENCY AUTHORIZING STEPHEN ZACK, ESQUIRE TO OFFER DEFENDANT/PROPERTY OWNERS IN MIAMI BEACH REDEVELOPMENT AGENCY vs. MENDELSON, 11TH CIRCUIT COURT CASE NO.89-08693, AN AMOUNT UP TO ONE MILLION ($1,000,000.00) DOLLARS, AS FULL SETTLEMENT OF ALL DEFENDANTS' CLAIMS FOR FULL AND JUST COMPENSATION IN THIS EMINENT DOMAIN LITIGATION, INCLUDING DEFENDANTS' REASONABLE ATTORNEY'S FEES AND COSTS. WHEREAS, on February 28, 1989, the Miami Beach Redevelopment Agency filed an eminent domain action styled Miami Beach Redevelopment Agency vs. Mendelson. et al., 11th Circuit Court Case No. 89-08693, which action sought to condemn 4 parcels of property in the South pointe area of Miami Beach for the purposes of reducing blight therein via the construction of residential townhouses; and WHEREAS, in its Answer to the Agency's Petition in Eminent Domain, Defendant/property owners Melvin and Estelle Mendelson contested the right of the Redevelopment Agency to condemn the subject properties; and WHEREAS, on May 24, 1990, Circuit Court Judge Gerald Wetherington upheld the Redevelopment Agency's right to so condemn; and WHEREAS, the valuation trial for this cause has been specially set for the week beginning September 24, 1990; and WHEREAS, Stephen Zack, Esquire, outside counsel representing the Redevelopment Agency in the subject eminent domain litigation has recommended (see attached Exhibit "A" hereto) that the Agency offer Defendant Mendelsons up to one million dollars ($1,000,000.00) in full settlement of all their claims for full and just compensation in connection with the condemnation of their property, including Defendants' reasonable attorneys fees and costs; and WHEREAS, pursuant to Florida Statute 973.092, the Redevelopment Agency is permitted to make the suggested Offer of Judgment as a method of encouraging settlement and discouraging protracted litigation; and 1 WHEREAS, in light of the imminent valuation trial date, an Offer of Judgment must be served upon Defendants by no later than Thursday, July 26, 1990; and WHEREAS, in view of the great economical savings that could result by settling this litigation now, the City Attorney concurs with Attorney Zack's recommendation to make the subject Offer of Judgment. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MIAMI BEACH REDEVELOPMENT AGENCY that the recommendation of Attorney Stephen Zack, outside counsel representing the Miami Beach Redevelopment Agency in Miami Beach Redevelopment Agency vs. Mendelson, 11th circuit Court Case No. 89-08693 is hereby accepted, and Attorney Zack thus is authorized to serve an Offer of Judgment in the subject litigation for an amount up to one million dollars ($1,000,000.00) in full settlement of all Defendants' claims for full and just compensation in connection with the condemnation of their property, including Defendants' reasonable attorneys fees and costs. DATED this 25th day of July ATTEST: df~ )n.~ SECRETARY LFjrg FORM APPROVED REDEVELOPMENT AGENCY GENERAL OUNSEL,' ~ ~. By Date 7/2r;!JD ( 2 SENT BY: 7-24-90 17:25 Floyd Pearson at al~ 305 673 7002:# 2 o;;;c MEMORANDUM TO: Laurenoe Feingold, Esq. FROM: Stephen N. Zaok, Esq. July 24, 1990 DATE: RE: Miami Beach Redevelopment Agency v. Mendelson Circuit Case No. 89-08693 CA 31 - Our file No. 13827 Section 73.092(7) through (9), Florida statutes, a copy of which is attached, allows the Miami Beach Redevelopment Agency to make an offer of judgment as a vehicle to encourage settlement and discouraqe protracted litiqation and unrealistic demands for compensation from property owners in eminent domain prooeedings. The offer must be served by July 26, 1990 (no later than sixty days prior to trial). Accordingly I we hereby request authority from the Miami Beach Redevelopment Agency to offer the Mendelsons up to one million dollars in full settlement of all their claims for full and just compensation in connection with the condemnation of their property, including their reasonable attorneys' fees and costs. r recommend this settlement based on our appraisers' opinions as to the value of the property and compensable cost of the Mendelsons' property, equipment coupled with the amount of attorneys' fees and costs generated by both Defendants' firm and the fees that could be saved from our firm and appellate fees by settling this litigation now. This request is made to save time, attorneys' fees and costs. EXHIBIT :-__W_-] r i '~ , ~'1.. ' ~ I Ii i ! I I Ch.73 EMINENT DOMAIN (5) Any increase or decrease in the value of any property to be acquired which occurs after the scope of the project for which the property is being acquired is known in the market, and which is solely a result of the knowledge of the project location, shall not be consid- ered in arriving at the value of the property acquired. For the purpose of this section, the scope of the project for which the property is being acquired shall be presumed to be known in the market on or after the condemnor ex- ecutes a resolution which depicts the location of the proJect. (6) The Jury shall view the sUbject property upon de- mand by any party or by order of the court. (7) If the jury cannot agree on a verdict the court shall discharge them, impanel a new jury, and proceed with the trial Hiltory.-s 1 ch 65-369: ss. 23, 35, ch. 69-106: s. 1, ch. 70-283, s. 1, ch 77-51: s 19. ch 79-400. s 36, ch 85-180 73.0715 Valuation of electric utility property.- When any person having the right to exercise the power of eminent domain seeks the appropriation of property used for the generation, transmission, or distribution of electriC energy, the jury shall determine solely the amount of compensation to be paid. Such compensa- tion shall Include the reproduction cost of the property sought to be appropriated less depreciation, together 'WIth going concern value, and, when less than the entire property IS sought to be appropriated, any damages to the remainder caused by the taking. Hiltory,-s 2. ch 82-53 73.072 Mobile home parks; compensation for per- manent improvements by mobile home owners.- (1) When all or a portion of a mobile home park as defined in s, 723.003(6) is appropriated under this chap' ter, the condemning authority shall separately deter. mine the compensation for any permanent improve- ments made to each site. This compensation shall be awarded to the mobile home owner leasing the site if: (a) The effect of the taking includes a requirement that the mobile home owner remove or relocate his mo- bile home from the site; (b) The mobile home owner currently leasing the site has paid for the permanent improvements to the site; and (c) The value of the permanent improvements on the site exceeds $1,000 as of the date of taking. (2) "Permanent improvement" means any addition or improvement to the site upon which a mobile home is lo- cated, which addition or improvement cannot be de. tached and removed from the site without destroying its practical utility at another site. If capable of removal to another site, compensation for the expense of removal and relocation shall be as provided by law. (3) A mobile home owner who is the lessee of the site and is required to remove his mobile home as the result of a taking of all or a part of a mobile home park may petition to intervene as a party defendant in pro- ceedings under this chapter, for purposes of asserting his right to the separate compensation to be determined and awarded under this section. Failure to intervene :>hall not constitute a waiver of the right of a mobile home owner to institute a separate action to recover from a mobile home park owner the compensation awarded to such park owner for the permanent improvements made by the mobile home owner to the site on which his m0- bile home is located. Hlstory.-s. 1, ch. 78-315: s. 4, ch. 84-80: s. 9. ch. 87-224. 73.081 Form of verdict.- The verdict of the jury shall state an accurate description of each parcel of the property sought to be appropriated and the amount to be paid therefor, together with any damage to the re- mainder caused by the taking and including business damages when allowable by statute. When severance damages, business damages, moving costs, separate compensation for permanent improvements made by a mobile home owner under s. 73.072, or other special damages are sought, the verdict shall state the amount of such damages separately from the amounts of other damages awarded. Hiltory.-s. 1, ch. 65-369: s. 1. ch 70-284. s. 2, ch. 78-315 73.10 )te the teres t '. .' ught 1" the petl '>"'posit of jury, Wt awardei tion, she with res the mett tion of 8 History ,. 73.091 Costs of the proceedings.-Except as pro- vided in s. 73.092(7), the petitioner shall pay all reason- able costs of the proceedings in the circuit court, includ- Ing, but not limited to, a reasonable attorney's fee, rea- sonable appraisal fees, and. when business damages are compensable, a reasonable accountant's fee, to be assessed by that court. Hiltory,-s 1. ch 65-369 s 2. ch. 87-148 ), 73.11' after thE deposit the cour ing shall time, no Upon su in the clE icate the 'court, th, tioner. T I .!erms u~ 8urrendE r, 1fattKy.- ::'3.12, " ~enevE !lJhOldin ucti ssic so, ,or r 73.092 Attorney's fees.-In assessing attorney's fees in eminent domain proceedings, the court shall con- sider: (1) Benefits resulting to the client from the services rendered. However, under no circumstances shall the attorney's fees be based solely on a percentage of the award. (2) The novelty, difficulty, and importance of the questions involved. (3) The skill employed by the attorney in conducting the cause. (4) The amount of money involved. (5) The responsibility incurred and fulfilled by the at. torney. (6) The attorney's time and labor reasonably re- quired adequately to represent the client. The cond~ nee's attorney shall submit to the condemning auth~ :. and to the court complete time records and a detaJlClY, statement of services rendered by date, nature of seli' vices performed, time spent performing such seryi .' and costs incurred at least 30 days prior to a hearing assess attorney's fees under this section. . . tm Where an offer of judgment made by the petl. e~;~rsuant to the Florida Rules of Civil Procedure. IS ther rejected or expires and the verdict or judgment; less than or equal to the offer of judgment, no attor . fees or costs shall be awarded for time spent by the torney or costs incurred after the time of rejection r:r pi ration of the offer. Where an offer of judgment IS cepted or the verdict exceeds the offer of judgment. torney's fees and costs shall be determined in a ance with subsections (1 )-(6), An offer of judgment not be made by the petitioner until the expirat,ion of days from the filing date of a petition under thiS C or chapter 74. 368 Cn.73 EMINENT DOMAIN f!. 1989 cept upon an appeal taken by a defendant in which the judgment of the lower court shall be affirmed. Hlatory.-s. 1. ch. 65-369; s. 4, ch. 87-148. ,(Slb The offer of judgment shall be accepted or reject- eMthin 30 days, or at such other time ~s the court shall r ide, or it shall be deemed to be rejected: . p ~ For the purposes of Florida Rule of CIvil Proce- du1e 1.442, a condem~ing auth~rity shall be considered a party defending against a claim at any time after .the entry of an order of taking in any condemnation action. HlelOry.-s. 1, ch. 76-158; s. 37, ch. 85-180; s. 3, ch. 87-148. 73.141 payment.- (1) In the event that no appeal has been taken within the time and in the manner provided by the Florida Ap- pellate Rules, the clerk shall pay each judgment creditor the sum necessary to satisfy the judgment from the funds on deposit, and upon order of the court shall re- fund to the petitioner all the funds not necessary for the satisfaction of the judgment, costs and attorney fees. (2) In the event that a timely appeal is taken and the judgment of the trial court is affirmed, the clerk of the court shall pay each judgment creditor as hereinabove provided. Hlatory.-s. 1, ch. 65-369; s. 1. ch. 69-267 ) 87-224. verdict of the j )f each parcel of the j and the amount tel I damage to the re;. j including busine~ te. When severanC4t ling costs, separate lVements made by a 172, or other special lall state the amount the amounts of other ,1\ 73.101 Form of judgment.- The judgment shall re- cite the verdict in full and shall state that the estate or interest in the property described in. the petition and sought to be appropriated by the petitioner shall vest In the petitioner upon the payment of, or securing by de- posit of money, the amount found by the verdict of the jury. Where there are conflicting claims to the amount awarded for any parcel, the court, upon appropriate mo- tion, shall determine the rights of the interested parties with respect to the amount awarded for each parcel and the method of apportionment, together with the disposI- tion of any other matters arising from the taking. Hlatory.-s. 1, ch. 65-369. 73.151 Railroads and canal companies.- (1) Whenever land sought to be condemned to the use of a railroad or canal company is in the possession, under any law of this state, of another railroad or canal company which is using the same in the construction or operation of its railroad or canal. the use of no more land than is necessary to furnish to the petitioner a right-of- way 105 feet in width across such railroad or canal shall be condemned for such use. (2) If it shall be necessary for any railroad company organized under any law of this state to use, for the pur- pose of its road, any lands over which any other railroad company shall have previously acquired the right-of- way for its road, the right to use such lands may be ac- quired as in other cases. Such lands shall not be taken in a manner to interfere with the main track of the rail- road first established except for crossing, as provided by law. History.-s '. ch 65-345 s. 1 ch. 65-369 ch.78-315. .' 19S.-Except as pro- r shall pay all reason. e circuit court, includ. Ie attorney's fee, rea- n business damages :countant"s fee, to be 73.111 Deposit and possession.-Within 20 days after the rendition of the judgment, the petitioner shall deposit the amount set forth therein into the registry of the court for the use of the defendants, or the proceed- ing shall be null and void, unless for good cause further time, not exceeding 60 days, is allowed by the court. Upon such deposit and the entry in the proper records in the clerk's office of the Judgment and the clerk's certif- icate that the compensation has been paid into the court, the estate or interest sought shall vest in the peti- tioner. The court may fix the time within which, and the terms upon which, the defendants shall be required to surrender possession to the petitioner. Hillory.-s. 1, ch. 65-369, s 3. ch. 78-315 assessing attorney's gs, the court shall con. Iient from the services rcumstances shall the In a percentage of the nd importance of the attorney in conducting 73.161 Right-ot-way tor telephone and telegraph over railroad right-ot-way.- (1) If any telegraph or telephone company fails to se- cure the consent of any railroad or railway company for the construction of its lines along and upon the rlght-of- way of any railroad In this state. the same may be ac- quired by eminent domain. If the defendant railroad or railway company has a principal office or place of bUSI- ness in this state, and any portion of the right-of-way sought to be condemned extends Into the county wherein such principal office or place of business is lo- cated, then the eminent domain action shall be had in such county. No map need be filed with the petition, but it shall state about how many poles per mile will be erected on such right-of-way, and about how far from each other, and from the centers of the main track of the railroad, their length and size, the depth they Will be planted in the ground, and the amount of land that will be occupied by them. No pole shall be set at a greater distance than 10 feet from the outer edge of the right- of-way. In such action, the petitioner shall give bond for costs in the penalty of $200, payable to the defendant, with surety to be approved by the clerk. (2) The judgment shall authorize the petitioner to en- ter upon the right-of-way of the defendant and con- struct its lines thereon. Said judgment shall further pro- 73.121 Writs ot assistance and possession.- Whenever the judge IS satisfied that any person, wheth- er holding under the defendant or not, is preventing or obstructing the petitioner from entering upon or taking possession of the property after the petitioner is entitled to do so, he may grant such writs as he may think neces- sary, or he may proceed for contempt of court. Hlatory.-s 1. ch. 65-369 lolved. d and fulfilled by the at. j labor reasonably reo the client. The conde~- e condemning authonty records and a detailed i by date, nature of. ser. ,rforming such servlce~o lays prior to a heanng ; lis section. .' ': 3nt made by the petl~IO~ , of Civil Procedure, IS e!. ~ verdict or judgment !: f Judgment, no attorne~t. for time spent by the , 1e time of rejectIOn or :. ! offer of judgment IS , the offer of jUd9ment, ~ ae determined In accohSl An offer of judgment s t80 until the expiration of " letition under this cha 73.131 Appeals; costs.- (1) Appeals in eminent domain actions shall be tak- en in the manner prescribed by law and in accordance with the appellate rules, except that an appeal shall not prevent appropriation of the property by the petitioner where the amount awarded by the judgment has been deposited with the court as aforesaid. If, at any time af- ter entry of the judgment, a defendant shall take out of the Court the amount due him, any pending appeal taken by him shall be dismissed by the appellate court upon the filing of a certificate by the clerk of the circuit court stating that the defendant taking the appeal has with. drawn the amount due him. (2) The petitioner shall pay all reasonable costs of the proceedings in the appellate court, including a rea- SOnable attorney's fee to be assessed by that court, ex, 369 Miami Beach Redevelopment Agency 1700 Convention Center Drive Miami Beach, Florida 33139 ~~/..,- o~\v ....r;., "... j L~G~:'~\}~L:',;J tJlr~i";j~'~ 1J ~l1(j ()~. REDEVELOPMENT AGENCY MEMORANDUM NO. DATE: JULY 25, 1990 FROM: Chairman Alex Daoud and Commissioners of the Redevelopment Agency Executive Director::Job.~.. ";1arkins Laurence Feingold ' General Counsel . TO: SUBJECT: EMERGENCY RESOLUTION REGARDING OFFER OF JUDGMENT IN MIAMI BEACH REDEVELOPMENT AGENCY V. MENDELSON stephen Zack, Esquire, outside counsel representing the Miami Beach Redevelopment Agency in the eminent domain litigation styled Miami Beach Redevelopment Aqencv v. Mendelson, Eleventh Circuit Court, Case No. 89-08693 has recommended that the Agency offer Defendant/property owners Melvin and Estelle Mendelson $1,000,000.00 in full settlement of all of Defendants' claims for full and just compensation in connection with the condemnation of their property, including Defendants' reasonable attorney's fees and costs; this Offer of Judgment must be served by no later than tomorrow, Thursday, July 26, 1990 (in light of the upcoming valuation trial set for September 24, 1990). In light of the imminent deadline for serving an Offer of Judgment in the subject litigation, and in view of the great economical savings that could result by settling this litigation at the present time, I concur with Attorney Zack's recommendation to make the subj ect Offer of Judgment. Accordingly, I am respectfully requesting that the Redevelopment Agency consider the attached Resolution on an emergency basis. LF/JKO/rg au .