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HomeMy WebLinkAbout11-332JULY 26, 2011 11 -332 RESOLUTION (CARRIED 6 -0 LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE AGREEMENT FOR RIGHT -OF -WAY ACQUISITION / JACKSON STREET — MURDOCK AVENUE INTERSECTION IMPROVEMENT PROJECT INITIATED BY: PUBLIC WORKS DEPARTMENT WHEREAS, by Resolution 08 -469 adopted on December 9, 2008, the Common Council approved a revised relocation order and approved a Determination of Necessity pursuant to Sec. 32.07 of the Wisconsin Statutes, to acquire certain land for right -of -way purposes at the Jackson Street and Murdock Avenue intersection; and WHEREAS, by Resolution 09 -286 adopted on July 28, 2009, the Common Council approved a jurisdictional offer of $26,100.00 to acquire property located at 502 W. Murdock Avenue owned by Laser Investments and including the interest of First National Bank -- Fox Vally; and WHEREAS, the City of Oshkosh acquired title to the property by filing with the Winnebago County Circuit Court an Award of Damages; and WHEREAS, by subsequent landowner appeal, the circuit court ordered the parties to mediation over the disagreement as to the appropriate amount of compensation for this acquisition and the parties reached a tentative agreement, subject to final Council approval, providing that the City of Oshkosh would pay an additional $6,000.00 over and above the City's Award of Damages by sending payment to the Clerk of Circuit Court for Winnebago County to be disbursed for the benefit of the property owners. NOW, THEREFORE, BE IT RESOLVED by the Common Council for the City of Oshkosh that the tentative agreement is hereby approved and the proper City officials are hereby authorized and directed to sign all documents and to undertake those steps necessary for implementing this agreement. BE IT FURTHER RESOLVED that money for this purpose is appropriated from: Acct. No. 315 - 0410 - 7208 -00000 Street Improvement Fund Expenditures — Jackson Street Roundabout CITY HALL 215 Church Avenue P.O. Box 1130 Oshkosh, Wisconsin 54903 -1130 City of Oshkosh OfHKO rH TO: Honorable Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: July 21, 2011 RE: Approval of Settlement Agreement with Laser Investments, LLC and First National Bank — Fox Valley / Appeal from an Award of Damages in Eminent Domain for Property located at Jackson Street — Murdock Avenue Intersection Improvement Project BACKGROUND As part of the City's Agreement with the Wisconsin Department of Transportation, the City of Oshkosh was responsible for acquiring certain property for the Jackson Street/Murdock Avenue intersection improvement project including a portion of the property located at 502 W. Murdock Avenue owned by Laser Investments, LLC. In addition to the interest of Laser Investments LLC, the property records showed an interest on behalf of First National Bank — Fox Valley. By Resolution 08 -469 adopted on December 9, 2008, the Council determined the necessity for acquisition of the property and adopted the required relocation order. The City and the property owner were unable to reach an agreement as to the acquisition price for the portion of land required for the project and the City, by Resolution 09 -286 adopted on July 28, 2009, directed the issuance of a jurisdictional offer in the amount of $26,100.00 to acquire the property. The property owner appealed from this award to the Circuit Court for Winnebago County. In the Appeal, the City was represented by Attorney Ben Southwick whose practice focuses on eminent domain litigation. The parties to the lawsuit participated in mediation with Attorney Timothy A. Hawley acting as the agreed upon mediator. A proposed settlement was reached in mediation, but is contingent upon approval by the Common Council. The proposed settlement would require the City to pay an additional $6000.00 over and above the Award of Damages payment, making the total compensation for the property $32,100.00. The subject property is commercial property located along Murdock Avenue to the west of the intersection with Jackson Street. The area taken was approximately 574 square 4.: feet for right of way purposes. In addition, a temporary easement of 1612 square feet for construction purposes was also taken. ANALYSIS The City paid $26,100.00 for the property taken at 502 W. Murdock Avenue for the interchange project. Statutes allow the owners of property to appeal an award of damages when property is taken. The property owners in this case requested compensation in the amount of $40,000.00. The proposed settlement requires the City to pay an additional $6,000.00 to the property owners making the total amount of compensation paid for the property $32,100.00. In exchange the City would receive a full release of all claims relating to the property acquisition. With regard to the risks of not approving the proposed settlement, if the City would proceed to litigation the City would incur additional attorney fees, costs for experts and other costs associated with a trial. In addition, should a jury award the property owner an amount more than 15% greater than the original award of damages, in this case any amount in excess of $3915.00 in additional compensation, by statute the City would be liable for all of the property owner's litigation expenses, including its attorney fees. Should a jury uphold the Award of Damages, the City would incur no additional costs for compensation but would incur the additional legal fees and costs of litigation. If a jury awarded less than the original Award amount, the property owner may have to repay amounts previously paid. FISCAL IMPACT The proposed settlement would result in an additional payment to the property owners of $6,000.00. RECOMMENDATION If there are questions or concerns related to the City's proposed legal strategy or positions in this matter, I recommend that they be discussed in a closed session pursuant to section 19.85(8) of the Wisconsin Statutes which would allow the Council to meet with legal counsel concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved. Questions regarding the basic facts or history of the project or other non - sensitive matters can, of course, be discussed in open session. Therefore, if any member of the Council has questions or concerns regarding the proposed settlement please contact the City Attorney's office to discuss the matter and /or to request that this matter be placed on the Council's Agenda for a closed session to allow for additional discussion. If a closed session is not requested, this matter will remain on the Council Agenda as a resolution to approve the attached settlement. Based upon all of the facts of this case and consideration of the law governing the eminent domain process, Staff recommends that the Council approve the settlement agreement. Res ectfully Submitted, Approved: Lyn A. Lorenson Mark A. Rohloff City Attorney City Manager