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Home My WebLink About17. 19-171 MARCH 26, 2019 19-171 RESOLUTION (CARRIED 7-0 LOST LAID OVER WITHDRAWN ) PURPOSE: APPROVE SETTLEMENT AGREEMENT WITH CED PROPERTIES LLC RELATED TO SPECIAL ASSESSMENTS FOR PROPERTY LOCATED AT 1800 JACKSON STREET INITIATED BY: LEGAL DEPARTMENT WHEREAS, CED Properties, LLC filed suit challenging the special assessments levied in 2010 for its property located at 1800 Jackson Street in the City of Oshkosh related to improvements for the Jackson Street Murdock Avenue Intersection; and WHEREAS, the parties have reached a tentative settlement of this matter contingent upon the approval of the Common Council. 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 CED Properties, LLC pertaining to property located at 1800 Jackson Street in the City of Oshkosh in resolution of current litigation between the parties in Winnebago County Circuit Court, according to the following terms and conditions: The City will refund $19,404.93 for the Jackson Street paving assessment. CED Properties, LLC will dismiss the lawsuit against the City and the parties assert that they will release any claims against the other party and will not file any further actions against the other party in relation to the subject matter of this litigation. There shall be no costs or attorney fees paid to either party. MARCH 26, 2019 19-171 RESOLUTION CONT'D 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. Money for this purpose is hereby appropriated from: Acct. No. 0317-0410-6469-XXXXX Uncollectible Accounts TO: Mayor and Members of the Common Council FROM: Lynn A. Lorenson, City Attorney DATE: March 22, 2019 RE: CED v. City of Oshkosh On its March 26, 2019 agenda the Council will be asked to consider a resolution approving a settlement agreement with CED Properties (Taco Bell) related to special assessments for paving associated with the reconstruction of the Jackson Street and Murdock Avenue intersection adjacent to their property. The assessments for CED were: Murdock pavement $19,241.73 Sidewalks Murdock 352.35 Jackson pavement 19,404.93 Jackson sidewalk 81.43 Total $39,080.44 CED paid the assessments in full with the 2015 tax bill. The proposed settlement would refund $19,404.93 for the Jackson Street paving assessment. BACKGROUND The project included constructing a roundabout with streetscape improvements, new driveway approaches, sidewalk, utility and other improvements at the intersection and along the approaches of both Jackson Street and Murdock Avenue. The intersection project was a joint effort between the City and the Wisconsin Department of Transportation. The total project cost was $4,060,000.00. The City's share of the project was $1,449,250.00. Abutting properties were assessed approximately $307,000.00 or approximately 7.5% of the total project cost. Abutting properties were assessed approximately $307,000.00 or approximately 7.5% of the total project cost. City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us The special assessments for CED's property were originally levied in 2010 and included assessments for concrete paving on Jackson Street and Murdock as well as replacement of some sidewalk squares. Because CED's property was located at the corner of Jackson and Murdock, when the project was constructed CED received assessments for both Murdock Avenue and Jackson Street. CED contested the amount of the assessments resulting in a 2014 decision of the Wisconsin Supreme Court in which both assessments pertaining to CED's property were voided on technical grounds. In October, 2014 the City reassessed CED for the project. The Murdock Avenue assessment was in the amount of $20,616.67 and the Jackson Street assessment was in the amount of $19,486.36. CED again appealed its assessment. The City filed a motion for summary judgment. The circuit court granted summary judgment to the City and the Court of Appeals affirmed finding that CED failed to raise sufficient issues to overcome a presumption that the City's assessment is correct. The Supreme Court reversed the decision of the Court of Appeals and sent the case back to the circuit court for further proceedings. ANALYSIS The City was represented by outside counsel, Attorney Richard Carlson, in this matter who worked closely with the City Attorney's office and Public Works staff. While outside counsel and staff believe that the assessments levied in this case were in accordance with the City's Special Assessment Policy and current law and are defensible, there are several issues that make settlement reasonable in this particular case including the potentially complex legal issues and passage of time since the original assessments which may impact the ability of the City to successfully present its case at trial. FISCAL IMPACT The proposed settlement would refund $19,404.93 for the Jackson Street paving assessment. No interest, costs or attorney's fees would be provided for within the settlement. The amount will be charged to Uncollectable Accounts. RECOMMENDATION The City's outside counsel and staff recommend settlement of this matter as proposed. Respectfully Submitted, ynn A. Lorenson City Attorney Approved rk 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