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Home My WebLink About13. 18-216 REVISED APRIL 24, 2018 18-216 RESOLUTION (CARRIED 5-1P LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE SETTLEMENT AGREEMENT WITH GEORGE KLEINSCHMIDT FOR ACQUISITION OF PROPERTY AND APPROVE CIP BUDGET AMENDMENT FOR THE FERNAU AVENUE STORM WATER DETENTION BASIN INITIATED BY: LEGAL DEPARTMENT WHEREAS, George Kleinschmidt filed suit challenging the amount the City had paid for acquisition by eminent domain of his property along North Main Street in the City of Oshkosh for the Fernau Avenue Storm Water Detention Basin; and WHEREAS, the parties have reached a tentative settlement of this matter contingent upon the approval of the Common Council compromising the claims for an additional payment in the amount of$109,000.00. WHEREAS, the City Manager has prepared, submitted and recommended a Capital Improvement Program for the year 2018, wherein is listed all anticipated revenue and expenditures for said year, which program has been filed with the Common Council and the City Clerk, and is available for public inspection; and WHEREAS, it is necessary to amend the 2018 CIP program to add the additional compensation for this property. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Oshkosh that the proper City officials are hereby authorized to enter into an appropriate settlement agreement with George Kleinschmidt for the acquisition of his property along North Main Street in the City of Oshkosh for the Fernau Avenue Storm Water Detention Basin in resolution of current litigation between the parties, 17-CV-177 in Winnebago County Circuit Court, according to the following terms and conditions: APRIL 24, 2018 18-216 RESOLUTION CONT'D • The City will make an additional payment of$109,000.00 to George Kleinschmidt. • Mr. Kleinschmidt will dismiss the lawsuit against the City and will release any claims against the City in relation to the subject matter of this litigation. BE IT FURTHER RESOLVED that the proper City Officials are hereby authorized and directed to execute and deliver an agreement substantially in compliance with the terms listed above, 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. BE IT FURTHER RESOLVED that the 2018 Capital Improvement Program, on file in the City Clerk's Office, is hereby amended with adjustments as listed in attached Exhibit "3". EXHIBIT 3 2018 CAPITAL IMPROVEMENT PROGRAM ADJUSTMENTS PROP.IMP. PARK APPROVED AMENDMENT:11.08.17 Res 17-535 PAGE STREETS TRAFFIC EQUIPMENT IMPROV SIDEWALKS WATER SANITARY STORM TOTAL Add: Oshkosh Corporation-Infrastructure additions $1,500,000.00 $ - $ - $ - $ - $ - $ - $ - $ - $ - Revolving Loan Fund$900,00 $ 250,000 $ 650,000 $ 900,000 grants-1 eai vvLu(-1uivl<�,l,�uu,uuu $ 1,250,000 $ 250,000 $ 1,500,000 rroceeas Lana disposition�,,5�u,uuu $ 350,000 $ 350,000 Add 2018 Storm Water Project,Oshkosh Corp projects$827,000 $ 827,000 $ 827,000 Project Savings from prior year capital projects(GO)$1,359,000 $ 784,424 $ 191,156 $ 2511400 $ 132,020 $ 1,359,000 Project Savings from prior year capital projects(Water)$881,000 $ 881,000 $ 881,000 Project Savings from prior year capital projects(Sanitary)$228,600 $ 228,600 $ 228,600 increase zulo uu rsorrowing aaa vsnKosn(-orp projects�,1,16u,luu $ 758,100 $ 422,000 $ 1,180,100 $ 2,034,424 $ 949,256 $ 1,101,400 $ - $ 132,020 $ 881,000 $ 228,600 $ 1,899,000 $ 7,225,700 APPROVED AMENDMENT:04.10.18 Res 18-191 Add: Create Budget Transfer for Contingency Funding$283,725 $ 33,725 $ 33,725 Fund Balance Transfers$283,725 $ 250,000 $ 250,000 PROPOSED AMENDMENT:04.24.18 Res 18-216 Add: Land Acquisition Settlement/Kleinschmidt Operating Cash$108,644 $ 108,644 $ 108,644 $ 2,034,424 $ 949,256 $ 1,385,125 $ - $ 132,020 $ 881,000 $ 228,600 $ 2,007,644 # $ 7,618,069 TO: Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: April 19, 2018 RE: Resolution to Approve Settlement - Kleinschmidt v. City of Oshkosh BACKGROUND Council is being asked to consider a resolution approving a settlement agreement with George Kleinschmidt. The City of Oshkosh took a portion of Mr. Kleinschmidt's property located along North Main Street by eminent domain for the Fernau Avenue Watershed Storm Water Detention Basin. Mr. Kleinschmidt owned property fronting on both Jackson Street and Main Street. The property was in a backwards L -shape with the long portion of the L fronting on Main Street and the smaller portion fronting on Jackson Street. The property was in the town at the time of acquisition. The portion along Main Street was identified for future industrial use and the portion fronting Jackson Street was identified for future commercial. The City acquired the larger portion of the property fronting along Main Street and identified as future industrial property on the City's land use maps. In addition, the City acquired a narrow strip on the south side of the smaller Jackson Street portion for a permanent easement. The City's appraisal valued the property (both the parcel acquired and easement) at $287,200.00 ($261,000 for the acquired parcel and $26,200 for the easement). The parties were unable to reach agreement on a price and the City submitted a jurisdictional offer and award of damages to the court in the amount of $301,356.22. Mr. Kleinschmidt obtained an appraisal indicating a value of $544,000.00. The parties agreed to settle for $410,000, or $109,000 in additional money. ANALYSIS Property valuation is a range of value, and in light of the range of value of the property and the potential risk presented by and cost of litigation of this matter staff believes that the proposed settlement is fair and equitable. Litigation of these issues can be expensive and challenging and require significant investment in terms of staff time and money for discovery and expert valuations. City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us In this case, the attorney representing the Kleinschmidts and the mediator were both experienced attorneys in takings cases and the matters were thoroughly reviewed. Both sides understood the positions and arguments in issue. In light of all of the factors, and because staff believes that the proposed settlement is fair and equitable, staff will be recommending approval of the settlement. FISCAL IMPACT With regard to funding of the settlement amount, the property is within TIF#27. There is not currently sufficient funding with that TIF to cover the amount, so staff anticipates paying for the settlement out of utility funds on hand and reimbursing from the TIF as funds become available. RECOMMENDATION Staff recommends approval of the settlement. Approved: Mark A. Rohloff City Manager City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us