HomeMy WebLinkAbout11-435SEPTEMBER 27, 2011 11 -435 RESOLUTION
(CARRIED 6 -0 LOST LAID OVER WITHDRAWN )
PURPOSE: APPROVAL OF SETTLEMENT AGREEMENT AND RELEASE OF
CLAIMSNIDI LI -- SPECIAL ASSESSMENTS FOR PROPERTY
LOCATED AT JACKSON STREET — MURDOCK AVENUE
INTERSECTION IMPROVEMENT PROJECT
INITIATED BY: LEGAL DEPARTMENT
BE IT RESOLVED by the Common Council of the City of Oshkosh that the attached
Settlement Agreement and Mutual Release is hereby approved and the proper City
officials are hereby authorized to execute and deliver the agreement in substantially the
same form as attached hereto, any changes in the execution copy being deemed approved
by their respective signatures, and said City officials are authorized and directed to take
those steps necessary to implement the terms and conditions of the Agreement.
CITY HALL
215 Church Avenue
P.O. Box 1130
Oshkosh, Wisconsin 903 -1130 City of Oshkosh
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TO: Honorable Mayor and Members of the Common Council
FROM: Lynn A. Lorenson, City Attorney
DATE: September 22, 2011
RE: Approval of Settlement Agreement with Yidi Li — Special Assessments for
Property located at Jackson Street — Murdock Avenue Intersection
Improvement Project
BACKGROUND
Yidi Li is the owner of property located at 450 West Murdock Avenue in the City of
Oshkosh. On July 27, 2010 the Common Council adopted a Final Resolution levying
special assessments against the property in the amount of $15,387.82 in connection
with public improvements made in and around the Jackson Street — Murdock Avenue
Intersection. Li timely appealed those special assessments on a number of grounds by
filing a lawsuit in Winnebago County Circuit Court. The City's defense in this matter
was provided through the City's insurance coverage and Attorney Rich Carlson was
appointed to represent the City of Oshkosh.
If there are sensitive questions or concerns relative to this matter, I recommend that
they be discussed in a closed session pursuant to section 19.85(g) 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. Non - sensitive questions regarding this matter 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's agenda as a resolution to approve the attached
settlement.
ANAI YSIS
Under the terms of the proposed settlement the City would reduce the special
assessment against the Li property from $15,387.82 to $6,000.00 resulting in a
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reduction of the amount to be billed to Li of $9,387.82. The settlement would resolve all
issues related to the assessment between the parties and the lawsuit against the City of
Oshkosh would be dismissed.
Li challenged the assessment on a number of grounds including questioning the
process that the City used in the adoption of the resolution levying the assessments,
questioning the methodology used to apportion the assessments against the various
affected properties, questioning whether the assessments were properly attributed to a
local project and questioning whether the project actually provided any assessable
benefit to Li's property. The property owners believe that under their circumstances,
their assessment should be $0. City staff participated in settlement discussion with the
plaintiff. Based upon the available information and positions of the parties and the
recommendation of the City's insurance defense counsel, staff is recommending that
the Council approve the settlement agreement reached. The settlement would result in
a reduction of Li's assessment from $15,387.82 to $6,000.00. The settlement would
fully and completely resolve the issues related to the special assessment between the
parties and the lawsuit filed against the City would be dismissed.
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. Defense costs related to this matter are covered
under the City's insurance policy, however staff time and any costs in excess of the
policy limit would be excluded. As always the City would also have the risk that the
court would agree with the plaintiff and set the assessment at $0. In addition, should
the property owner prevail, those costs would not be covered by insurance and would
be paid directly by the City.
FISCAL IMPACT
The proposed settlement would result in a reduction in the amount to be billed to the
property owners of $9,387.82.
RECOMMENDATION
Based upon all of the facts of this case and consideration of the law and
recommendation of insurance counsel, staff recommends that the Council approve the
settlement agreement.
Resp tfully Submitted,
L A. Lorenson
City Attorney
Approved:
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Mark A. Rohloff
City Manager