Agenda Item #: 3D-1
PALM BEACH COUNTYBOARD OF COUNTY COMMISSIONERSAGENDA ITEM SUMMARY=====================================================-----------------------[X] Consent[ ][ ] Public Hearing

Meeting Date: April 6, 2010

Regular

Department
Submitted By:

County Attorney

Submitted For:=====================================================-----------------------I. EXECUTIVE BRIEF
Motion and Title: Staff recommends motion to approve a settlement as to Parcels 26, 802, 902, in
the amount of $332,467.88 inclusive of attorney's fees and experts' fees and costs, in the eminent
domain proceeding entitled Palm Beach County v. Dell's Suburban Market, et al, Case No.: 502008
CA033455XXXXMB, for the improvement of West Atlantic Avenue.
Summary: This action would approve a settlement in an eminent domain proceeding relating to thewidening of West Atlantic Avenue from west of Lyons Road to Starkey Road (Project No. 2004602),
by paying $332,467.88 for the property acquired, relocation costs, any and all damages and costs tocure such damages, attorney's fees, experts' fees and costs, and deposit fee of the clerk of the court.
Of this sum, $8,900 would be paid back to Palm Beach County based on a code enforcement lien on
the acquired property. District 6 (PM).
Background and Justification: Palm Beach County, under a Joint Participation Agreement with theFlorida Department of Transportation (FOOT), is acquiring right-of-way for the construction andimprovement of West Atlantic Avenue, from 1,330 feet west of Lyons Road to Starkey Road (ProjectNo. 2004602). This Board action would approve a settlement, by entry into a Final Judgment andOrder Apportioning Part of the Compensation to Palm Beach County, as to Parcels 26 (a fee simple
taking), 802 (permanent embankment easement), and 902 (temporary construction easement),whichparcels have already been acquired for the Project by the quick take procedure, by paying fullcompensation in the amount of $260,000 for the property acquired, damages to the remaining
property, relocation costs, and any and all other damages and costs to cure any damages, $47,891 in
attorney's fees, and $24,406.88 in experts' fees and costs, plus $170 in deposit fees of the clerk of
the court.

The parcels are being acquired from a parent tract of property near the northeast corner of Lyons
Road and West Atlantic Avenue which has historically been used for restaurant. An appraiser hired
by Palm Beach County has opined in an updated appraisal that full compensation for the real
property and easements acquired should be $232,330. The owner has an appraiser who has opinedthat this compensation should be $339,000. {Continued on page 3)

Attachments:

1.
2.
3.

Budget Availability Statement.
Approval of the Proposed Settlement by the Department of Engineering and Public Works.
Proposed Stipulated Final Judgment a Order Apportioning Part of the Compensation toPalm Beach County.

------------------------------------------=====~====================================

Recommended by:
Date

Approved by: ------"N-="-/.:...;A=-----------------------Date

II. FISCAL IMPACT ANALYSIS
A. Five Year Summary of Fiscal Impact:
Fiscal Years
Capital Expenditures
Operating Costs
External Revenues
Program Income (County)
In-Kind Match (County)
NET FISCAL IMPACT

2010

2011

$ ~it -f'29 ___-0_-0-0-

-0-0-

-0-

-0-

-0-

*$·~'1, tbfJ

-0-0-

Is Item Included in Current Budget?
Budget Account No:
Fund 3500 Dept 361
Unit

Yes

2012

2013

2014

-0-0-0-0-0-0--0-0-0-0-0-0--0-0-0-0-0-0-# ADDITIONAL FTEPOSITIONS (Cumulative)

1085

X

No__

Object 6551

B. Recommended Sources of Funds/Summary of Fiscal Impact:
Transportation Improvement FundW Atlantic Ave/W of Lyons to E of Fla Turnpike
Property and Damages
Attorney's Fees
Expert Fees and Costs
Fees of the Clerk of the Court
Total Settlement
Current Deposited Value
Fiscal Impact$260,000.00$ 47,891.00$ 24,406.88$
170.00$332,467.88<$155,350.00>$177,117.88*Note:
1. Eminent domain is exempt from the Inspector General Fee.
*2- This parcel has a code enforcement lien of $8,900 which will
be deducted from the purchase price and returned to the County's
PZ&B department.
C. Departmental Fiscal Review: ........._ _ _ _ _ _ _ _ _ _ _ _ _ __Ill. REVIEW COMMENTS
A. OFMB Fiscal and/or Contract Dev. and Control Comments:

~
B.

C.

Other Department Review:

Department Director
This summary is not to be used as a basis for payment.
2
l:\WP\AGENDAPAGE2\AGNPGTWO2010\00117.DOC

Background and Justification (continued):

The attorney's fees included in the proposed settlement are calculated mathematically pursuant toFlorida law based on the increase in compensation over the amounts originally offered for theproperty. The initial appraisal for the County and, therefore, the amount of the County's original offer,
was in the amount of $125,700. The initial appraiser selected by FOOT did not include damages in
his original appraisal to a building that will have to be demolished based on a 1964 removal
agreement between the County and the then owners. Unfortunately, the building on the property isoutside of the area described in the removal agreement and damages for the demolition of thebuilding should have been included in the original appraisal. The appraiser hired by the County
corrected this omission in an updated appraisal, however, the original offer versus the settlement
resulted in a monetary benefit fee of $44,391. There are additional attorney's fees of $3,500 for work
done in obtaining a prior settlement of business damages ($50,000), and in apportionment. This fee
and the expert fees have been reviewed by professionals in the appropriate fields and found to bereasonable after agreed upon downward adjustments.
Projects on the State Highway System, or projects which use state funding for right-of-way, mustcomply with either federal laws or state laws relating to right-of-way acquisition procedures. As such,
the County was required to follow the procedures of the Federal Uniform Relocation Assistance andReal Property Acquisition Policy Act (Uniform Act) in its acquisition of the needed right-of-way andeasements for the Project. The right-of way acquisition phase of the Project began in earnest in
August 2006, when the County received authorization from the FOOT to begin right-of-way activities.
Adherence to the Uniform Act, with strict oversight by the FOOT, has resulted in a very time
consuming process. All parcels must be settled before the FOOT will certify that the County hascomplied with the requirements of the Uniform Act. The required FOOT permit for the construction of
the Project will not be issued until the FDOT's right-of-way certification is complete.
Staff acknowledges the Property Review Committee (Committee) provision established in the recently
adopted Palm Beach County Real Property Acquisition, Disposition and Leasing Ordinance. One
aspect of the provision requires the Committee to review, evaluate and advise the Board on realestate transactions when the final agreed on price varies from the appraised value by more than
10%. However, due to the timing and facts of this specific proposed settlement, it is the opinion of theCounty Attorney's office that this proposed settlement does not need to go to the Committee before
coming to the Board of County Commissioner's for approval due to the following: a) this settlement
was negotiated in December 2009, prior to the enactment of the County ordinance directing theformation of the Committee; b) while the Committee was created by Resolution adopted by the Boardof County Commissioners on February 23, 2010, the Committee has not been staffed yet and noformal appointments have been made or are pending; c) the County has approved Transportation
Regional Incentive Program funding in the amount of $6,286,595 which could be jeopardized if theacquisition process is not timely completed, and based on projections from the Engineering
Department of this and other time sensitive matters, waiting for formation of and formal appointments
to the Committee could jeopardize these funds; d) timely completion of the right-of-way phase of thisproject is necessary to obtain the required permits for this project.
A portion of the settlement amount ($8,900), will be paid back to the County based on a code
enforcement lien on the taken property. This payment represents the same proportion (approximately
1/15) of the total amount of the lien, at the time of the taking, as the proportion of the total property
taken. This settlement will, in large part, be funded by developers of nearby properties and by theState of Florida, Department of Transportation.
This settlement is cost-effective in light of the closeness of the settlement to the County's appraisal
and the savings in expert fees and costs which would be incurred in a trial.

-3-

Attachment 1

INTEROFFICE COMMUNICATIONPALM BEACH COUNTYBUDGET AVAILABILITY STATEMENTDATE:March 11, 2010

TO:

Barry S. Balmuth, P.A.
Outside Counsel

FROM:

Alexis T. Willhite, Fi.seal Manager " ~Administrative Services
~'.

RE:

W Atlantic/1330' W of Lyons to Starkey
Project# 2004602
Eminent Domain Settlement
Parcels: 026, 802, and 902$177,117.88
April (oi, 2010

BOARD MEETING DATE:FISCAL IMPACT LOCATION: F:\COMMON\WP\AgendaPage2\
FUNDING STATUS:

00117

FULLY FUNDED

Is Item Included in Current Budget?

Yes

X

No

Budget Account No:

Fund

3500

Dept

361

Unit

1085

Object

6120

Recommended Sources of Funds/Summary of Fiscal Impact:

Transportation Improvement FundW Atlantic Ave/W of Lyons to E of Fla Turnpike
Property and Damages
Attorney's Fees
Expert Fees and Costs
Fees of the Clerk of the Court
Total Settlement
Current Deposited Value
Fiscal Impact$260,000.00$ 47,891.00$ 24,406.88$
170.00$332,467.88<$155,350.00>$177,117.88

This BAS is valid for up to ninety days from its date of issuance.
F:\ADM_SER\WP50\BAS\basl0\00117.row.doc

Attachment 2

Morton Rose
Subject:
Attachments:

FW: Settlement Dell's Market
Barry S 8almuth.vcf

From: Barry Balmuth [maiito:ba!muthlaw@gmaitcom] on Behalf Of Barry S. Balmuth
Sent: Wednesday, March 10, 2010 5:19 PM
To: Morton Rose

Cc: Kat Chopin
Subject: Settlement Dell's Market

i'v'lorton:

Please provide the appropriate signatut\!S befo,.v approving of a settlement for the laking of Parcels 26, 802, and902 (Fee owner: Dell's Suburban !vforkct, Inc.) in the amount of $260,000 as vvell as the settlement of attorney'::
fees and expert foes and costs in the arnount of $72,225.88. Ofthe first sum, $8,900 is being paid back to theCounty based on the code enforcement lien on the taken property. As you knc)\v, the O.FJvLB. and its counsel
are avvare and approve of this arrangement.
The owners appraisal is in the amount of $339,000. The updated appraisal prepared for Palm Beach County isin the amount of $232,330. The original appraisal and offer was in the amount of $125,700. The appraisalincreased in large part due to the addition of damages for a demolished bui !ding" The appraiser originally did
not include such damages in his appraisal because he felt they \Vere waived by virtue of a 1964 removal
agrccrnent betvveen the Cmmty and the then owners. Unfortunately, the building on the property was outside of
the area described in the removal agreement. The low offor versus the settlement resulted in a monetary benefit
fee of $44-391.
This information is provided by way of explanation of the case and settlement. 11owever, the low offer is'•water under the bridge." The only relevant numbers in deciding whether the settlement is appropriate are thecurrent appraisals, the settlement arnount. and the cost of going lo trial. The settlement is much closer to theCounty's appraisal than the owner's appraisal and, for this reason, and to avoid the foes and costs that would beincurred in a trial. the settlement is recommended.
This also resolves attorney's fees and costs. The monetm'Y benefit attorney's fee was already 1~1entioned. Thereis also a fee of $3,500 for time spent by the attorney in presenting a business damage claim of the relatedlessee/business ow.ner (previously settled for $50,000) and for apportionment. This fee was reviewed by me
and found to be rea~onable. The expert tees were reviewed by experts vvorking for the County and found to bereasonable, aller agreed lo al\iustrnents.
Needless to say, please contact me if you have any questions or need further information.
Approved by the Department of F.nginccring and Public ,vorks

By:
Tanya N. McConnell, P.E.
Deputy County Engineer

L Morton Rose, · . •~.
Five Year Road Program M.anager

Attachment 3

IN THE CIRCUIT COURT OF THE
15™ JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDAPALM BEACH COUNTY, a politicalsubdivision of the State of Florida,
CASE NO.:502008CA033455XXXXMBPetitioner,v.
DELL'S SUBURBAN MARKET, INC., a
Florida Corporation, RANGELINE GRILL,
INC., A Florida Corporation, FRESH BY
ISABELLA, LLC, a Florida Limited Liability
Corporation, SAMUEL BROWN d/b/a
SAMUEL BROWN TRUCKING, IRISH
ELECTRIC, INC., a Florida Corporation,
DONOVAN G. HEWITT,INTERNATIONA L CARRIER'S UNION,
INC., a Florida Corporation, TALK.IN'
TRASH, INC., a Florida Corporation,
MICHAEL JEFFREY TURNER, and ANNE
M. GANNON, as Palm Beach County Tax
Collector,

PARCELS 26,802 & 902

Defendants.

------ ------I
STIPULATED FINAL JUDGMENT AND ORDER APPORTIONING
A PART OF COMPENSATION TO PALM BEACH COUNTYTHIS CAUSE having come on to be heard on the Joint Motion of the parties, Petitioner,
PALM BEACH COUNTY, and Defendants, DELL'S SUBURBAN MARKET, INC. and

RANGELINE GRILL, lNC., for the entry of this Stipulated Final Judgment and Order Apportioning
A Part of Compensation to Palm Beach County, and the Court, finding that the compensation to be
paid to the Defendants hereunder is full and just, and being otherwise fully advised in the premises,
it is hereby:

ORDERED AND ADJUDGED as follows:Palm Beach County v.
Dell's Suburban Mark et, Inc., et a/.
Case No,: 502008CA033455XXXXMBPage 2

1.

Subject to apportionment, if any, amongst the Defendants listed in exhibit "l"attached hereto,1 Defendants, DELL'S SUBURBAN MARKET, INC., shall have and recover from
Petitioner, PALM BEACH COUNTY, the sum of TWO HUNDRED SIXTY THOUSANDDOLLARS AND NO CENTS ($260,000.00) as full and complete compensation for the takings ofParcel 26 in fee simple, a permanent embankment on property identified as Parcel 802, and atemporary construction easement on property identified as Parcel 902 as well as buildings or portionsof buildings, trade fixtures, or other improvements and landscaping within the area of these parcels,damages to the remaining property including, but not limited to, damages to buildings or portionsof buildings, trade fixtures, or other improvements, costs to cure any damages, relocation/moving
costs, and any and all other damages caused by the taking of Parcels 26, 802, and 902, and for any
other claims or counter claims which were brought or could have been brought by Defendants
relating to the taking of Parcels 26, 802, and 902 exclusive of attorney's fees and expert fees and
cots.
2.

The above sum is inclusive of the sum of ONE HUNDRED FIFTY FIVE

THOUSANDTHREEHUND REDFIFTYDOLLARSAND NOCENTS($155,350.00)pr eviously
deposited by Petitioner into the Registry of the Court under the previously entered Order of Taking
in this cause. Accordingly, within thirty (30) days of receipt of a certified copy of this judgment,

1

Defendants, SOUTHEAST FLORIDA PEST CONTROL, INC., BARRY MELMAN,
MZ DELNERY AND MAINTENANCE, INC., MARIO ZAIDAN, CHERYL DOMATO,
SCOTT SIDMAN, ROBERT E. PROUT, and SEAHORSE CONTRACTING, INC. executed
Disclaimers of Interest in Parcels 206, 802, and 902 and the compensation in this cause and were
dropped as parties.

Palm Beach County v.
Dell's Suburban Mark el, Inc., et al.
Case No.: 502008CA033455XXXX MB
Page 3

Petitioner, PALM BEACH COUNTY, shall deposit the additional sum of ONE HUNDRED FOUR
THOUSAND SIX HUNDRED FIFTY DOLLARS AND NO CENTS ($104,650.00), representing
the difference between the amount previously deposited and the compensation provided for in
Paragraph I, above, into the Registry of the Court and simultaneously pay the Clerk of the Court thefee for making such deposit of$170.00.
3.

Petitioner, PALM BEACH COUNTY, has recorded that Order Imposing Fine/Lienin the Official Records of Palm Beach County beginning at Official Records Book 18803, Page
1576. The recording of this Order Imposing Fine/Lien creates a lien in favor of PALM BEACH
COUNTY on the taken property, Parcels 26, 802, and 902, as well as the remaining property. In a
separateaction,DE LL'SSUBURBANM ARKET,INC.,hasd isputedthevalidityo fthislien. Solely
to resolve this code enforcement lien as it relates to the taken property, without any effect on thecode enforcement lien on the remaining property or other litigation between the parties ( other thanto reduce the amount of said lien bythepaymentrequ iredherein), DELL'S SUBURBAN MARKET,
lNC., shall pay to PALM BEACH COUNTY the sum of EIGHT THOUSAND NINE HUNDREDDOLLARS AND NO CENTS ($8,900.00). This sum is apportioned to PALM BEACH COUNTY.
Defendants have withdrawn the sums deposited by Petitioner pursuant to the Order of Taking withthe exception of this amount. Accordingly, the Clerk of Court shall disburse the sum of EIGHTTHOUSAND NINE HUNDRED DOLLARS AND NO CENTS ($8,900.00) to Petitioner by making
a check for this amount made payable to Palm Beach County and mailing same to Glenn E. Meeder,Jr., Collections Coordinator, O.F.M.B., 301 N. Olive Avenue, 7m Floor, West Palm Beach, Florida

Palm Beach County v.
Dell's Suburban Market, Inc., et al.
Case No.: 502008CA033455XXXXMBPage 433401.
4.

Defendant, DELL'S SUBURBAN MARKET, INC. and RANGELINE GRILL, INC.,

shall also have and recover from Petitioner, PALM BEACH COUNTY, the sum of FORTY SEVEN
THOUSAND EIGHT HUNDRED NINETY ONE DOLLARS AND NO CENTS ($47,891.00) in
attorney's fees and TWENTY FOUR THOUSAND FOUR HUNDRED SIX DOLLARS AND
EIGHTY EIGHT CENTS ($24,406.88) in expert fees and costs. Accordingly, within thirty (30) daysof receipt ofa certified copy of this judgment, Petitioner, PALM BEACH COUNTY, shall make acheck for the total of these sums, in the amount of SEVENTY TWO THOUSAND TWO
HUNDRED NINETY SEVEN DOLLARS AND EIGHTY EIGHT CENTS ($72,297.88), payable
to the the Trust Account of Hicks & Schreiber, P.A. and mail same to Robert Schreiber, Esquire,
Hicks & Schreiber, P.A., 890 S. Dixie Highway, Coral Gables, FL 33146 for further disbursement.
5.

There shall be no further compensation of any kind in this cause, no non-monetary

benefit attorney's fees, and no further attorney fees and costs or expert's fees and costs.
6.

Tit1e to Parcels 26, 802, 902, which vested in the Petitioner pursuant to the Order of

Taking and deposit of money heretofore made, is approved, ratified and confirmed.
7.

The Court retains jurisdiction of this action to: (i) enforce the terms ofthis judgment;and (ii) over any apportionment claims.
8.

Judicial labor has not ceased on this matter and, therefore, the C1erk of the Court

shal1 not at this time close this case file nor sha11 the Clerk of the Court require a fee for the filingof future pleadings.

Palm Beach Cou11ty v.
Dell's Suburban Market, Inc., et al.
Case No.: 502008CA033 455XXXXMBPage 5

DONE and ORDERED this _ _ day of _ _ _ _~ 2010, in West Palm Beach,
Florida.

JOSEPH MARX
Circuit Judge
Copies to a1J parties on the attached Service List

STIPULATION AND JOINT MOTION FOR THE ENTRY OF
STIPULATED FINAL JUDGMENT AND ORDER APPORTIONING
A PART OF COMPENSATION TO PALM BEACH COUNTY
Comes now the Petitioner, PALM BEACH COUNTY, and the Defendants, DELL'SSUBURBA N MARKET, lNC. and RANGELIN E GRILL, lNC., and respectfully stipulate to theentry of the foregoing Stipulated Fina] Judgment and Order Apportioning A Part of Compensati on
to Palm Beach County and jointly move for the entry of same.
By executing below, all counsel represent that they are authorized to enter into thisstipulation.

BARRY S. BALMUT H, P.A.

HICKS & SCHREIBER, P.A.

BARRY S. BALMUTH, ESQUIRE
Florida Bar No. 868991
Outside Counsel for Palm Beach County
1601 Forum Place, Suite 1101
West Palm Beach, Florida 33401(561) 478-2433 Facsimile(561) 242-9400 TelephoneCounsel for and Dell'S Suburban Market, Inc.
and Rangeline Grille, Inc.
90 S. Dixie Highway
Coral Gables, FL 33146(800) 671-2804 Telephone(305) 663-0219

PALM BEACH COUNTYv DELLS SUBURBAN MARKET, INC., et. al.
Case No. : 502008CA033455XXXXMBService List
Page6 of2
PARCELS: 26, 802 & 902
Defendant:

DELL'S SUBURBAN MARKET, INC., a Florida Corporation
c/o Robert Schreiber, Esquire
Hicks & Schreiber, P.A.
890 S. Dixie Highway
Coral Gables, FL 33146

Defendant:

RANGELINE GRILL, INC., a Florida Corporation
c/o Robert Schreiber, Esquire
Hicks & Schreiber, P.A.
890 S. Dixie Highway
Coral Gables, FL 33146

Defendant:

FRESH BY ISABELLA, LLC, a Florida Limited Liability Corporation
Sandra I. Prestia, Registered Agent
4827 Willow Drive
Boca Raton, FL 33487

Defendant:

SAMUEL BROWN d/b/a SAMUEL BROWN TRUCK.ING
Samuel Brown
4400 Brandon Drive
Delray Beach, FL 33445

Defendant:

IRISH ELECTRIC, INC., a Florida Corporation
James W. Irish, Registered Agent
8839 Sonoma Lake Blvd.
Boca Raton, FL 33434

Defendant:

DONOVAN G. HEWITT and INTERNATIONAL CARRIER'S UNION, INC.,a Florida Corporation
Donovan Hewitt, Registered Agent
10709 Oak Meadow Lane
Lake Worth, FL 33467

Defendant:

TALK.IN' TRASH, INC., a Florida Corporation
Eric Masse, Registered Agent
9924 Happy Hollow Road
Delray Beach, FL 33446

PALM BEACH COUNTY v DELLS SUBURBAN MARKET, INC., et. al.

Case No.: 502008CA033455XXXXMBService List
Page 7 of 2
Defendant:

MICHAEL JEFFREY TURNER
Michael Jeffrey Turner
6541 Sleepy Willow Way
Delray Beach, FL 33484

Defendants: BEEFY PRODUCE, INC., BEEFY TREE FARM, INC., BEEFY U-PICK, INC.,
RICHARD BOWMAN, and TERESA BOWMAN
Theresa A. Bowman, Esquire
14339 Smith Sundy Road.
Delray Beach, Florida 33446
Dana Earle McPherson, Esquire
6850 SW Markel Street
Palm City, Florida 349905121

Defendant :c· ..

ANNE M. GANNON, as Palm Beach County Tax Collector
c/o Brian Hanlon, Esquire
301 South Olive Avenue, 3rd Floor
West Palm Beach, Florida 33401,11'.CIJ',(111-ll•l•O•••i•"""'•'"" ........,.,, ... WuhlllfJ .• , .