RES 2014-1148 - Allow judgment taken against city on City of Omaha v Bernard J Morello AHA NFRECEIVED
8*9 Law Department
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ti, (402)444-5115
CITY CLERK I'clefax(402)444-5125
OQ�rED FEBR�A
City of Omaha O M A i A. N EBRASIC Paul D. Kratz
Jean Stothert,Mayor City Attorney
Honorable President
and Members of the City Council,
The attached Resolution is submitted by the Law Department authorizes settlement of a lawsuit
pending in the District Court of Douglas County. If the Resolution is approved; the amount of fifty
thousand dollars ($50,000)will be paid after a judgment is entered against the City.
In 2008, the City of Omaha filed a petition to acquire property and a temporary construction
easement for property at the corner of 24th and Hamilton owned by Bernard J. Morello. Mr.
Morello filed an appeal of the award in the District Court entitled City of Omaha v. Bernard J.
Morello, Doc. 1101, No. 027, challenging the amount paid for the property, the City's purported
use of the property and whether the City gained access to the property prior to the time it had a
right to do so. This property was acquired for the purpose of making improvements in the right-of-
way and generally enhancing the area.
This Resolution authorizes the Mayor to sign the attached Settlement Agreement and upon entry of
a judgment, payment would be made by the City of Omaha in the amount of fifty thousand dollars
($50,000) as total consideration for all property interests acquired by the City, attorney fees, costs,
expert witness fees, etc. Although the settlement is consensual, it contemplates a judgment being
entered as to the agreed amount can be paid from the Judgment Fund, Fund 1;111, Org. 13,1101, /woo"
Settlement of this case in this fashion is recommended by the Planning Department and the Law
Department.
Your favorable consideration and passage of this Resolution is respectfully requested.
Respectfully submitted, Referred to City Council for Consideration
(-1?2-/C
7 2 4,21 zcl
or
Date Mayor's Office/Title Date
Bernard J. in den Bosch Y
Deputy City Attorney
Approved: Approved as to Funding:
6.25la{ei, 66k Oiv
Ja es R. Thele j Date teph . Curtiss e
Pla ning Director �s�� Finance Director
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SETTLEMENT AGREEMENT
THIS AGREEMENT is made and entered into this VI day of S: en,6l 2014, by and
between Bernard J. Morello, referred to hereinafter as "Condemnee". and the City of Omaha,
hereinafter referred to as the "City."
WITNESSETH:
WHEREAS, CITY filed a Petition to Condemn Property in the County Court of Douglas
County,Nebraska,the object and purpose of which was to acquire various interests in a parcel of
real estate under the power of eminent domain, referred to hereinafter as "The Condemnation
Actions"; and,
WHEREAS, CONDEMNEE claims an interest in the subject property that was acquired
in City of Omaha v. Bernard J. Morello, CI09-17990 from 1320 N. 24th Street, said subject
property being referenced and contained in said Petition to Condemn Property; and,
WHEREAS, the County Court appointed Boards of Appraisers returned and filed a
Report of Appraisers in each of the pending condemnation actions; and,
WHEREAS, CONDEMNEE has filed action in the District Court of Douglas County,
Nebraska, entitled City of Omaha v. Bernard J. Morello, Doc. 1101, No. 027; appealing the
awards entered by the County Court Boards of Appraisers; and,
WHEREAS, CONDEMNEE and the CITY desire to settle their differences with respect
to the various actions without any further proceedings or litigation on the following terms and
conditions;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained herein, it is agreed by and between CONDEMNEE and CITY:
1. CITY stipulates to entry of Judgment against it if for the benefit of
CONDEMNEE in the amount of five thousand dollars ($5,000) in total consideration for the
property interests acquired by the CITY. The parties further agree that the parties shall requests
that the Court award CONDEMNEE the amount of forty-five thousand dollars ($45,000) in
attorney fees, costs, expert witness fees, etc. CITY agrees to make payment of this sum only
after approval of this Agreement by the City Council of the City of Omaha and the Mayor of the
City of Omaha.
2. Upon receipt of this payment, CONDEMNEE agrees to waive and release any
cause or causes of actions and all rights he now has or may have, known and unknown, against
the City, its agents, assigns, representatives, and/or parties, growing out of or relating to the
condemnation of CONDEMNEE'S property including the condemnation action for the
acquisition of property at 1320 North 24th Street, Omaha, NE, to the extent of the taking, and
further warrants and represents that it shall not litigate or otherwise dispute any such cause or
causes of action in any subsequent judicial proceeding.
3. The parties hereto represent that in reaching this Settlement Agreement they
received or had the right to receive legal advice as to their respective rights.
4. This Agreement constitutes and contains the entire agreement between the parties
and supersedes all prior negotiations and all agreements proposed or otherwise, whether written
or oral, concerning the same subject matter.
5. Upon payment of all sums required by this agreement, CONDEMNEE and CITY
will stipulate to the dismissal with prejudice, with each side bearing its own costs, of the lawsuits
pending in the District Court of Douglas County: City of Omaha v. Bernard J. Morello, Doc.
1101,No. 027.
6. STRICT COMPLIANCE - All provisions of this Agreement and each and every
document that shall be attached hereto shall be strictly complied with as written, and no
substitution or change shall be made except upon written direction from an authorized
representative.
7. INTEREST OF THE CITY - Pursuant to Section 8.05 of the Home Rule Charter
of the City of Omaha, no elected official or any officer or employee of the City shall have a
financial interest, direct or indirect, in any City contract. Any violation of this section with the
knowledge of the person or corporation contracting with the City shall render the contract
voidable by the Mayor or Council.
8. INTEREST OF THE CONTRACTOR - The Parties covenant that they presently
have no interest and shall not acquire any interest, direct or indirect, which would conflict with
the performance of this Agreement; they further covenant that in the performance of this
Agreement, no person having such an interest shall be employed.
9. NONDISCRIMINATION - The Parties shall not, in the performance of this
Agreement discriminate or permit discrimination in violation of federal or state laws or local
ordinances because of race, color, sex, age, disability, political or religious opinions, affiliations
or national origin.
2
10. INVALID PROVISION - In the event that any covenant, condition, or provision
herein contained is held to be invalid by any court of competent jurisdiction, the invalidity of any
such covenant, condition, or provision herein contained shall not affect the validity of the
remainder of the covenants, conditions, or provisions of this Agreement which shall in all
respects remain a legally binding contract with the invalid portion being deleted; provided that
the validity of any such covenant, condition, or provision does not materially prejudice either the
City or Parties in their respective rights and obligations contained in the valid covenants,
conditions or provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed these presents on the day and date
as indicated below. This Agreement may be executed in counterparts.
Executed by BERNARD J. MORELLO this/7 --day of re(' , 2014.
A,C'.4r( / ct ', ?'
BERNARD J. i RELLO
STATE OF I)& 4.. )
)SS
COUNTY OF 1 >uL.lC )
On this / ,1�"' day of Li , 2014, before me, a Notary Public, in and for said
County, personally came the above named Bernard J. Morello, who is personally known to me to
be the identical person whose name is affixed to the above instrument and acknowledged the
instrument to be his voluntary act and deed for the purpose therein stated.
WITNESS my hand and Notarial Seal the day and year last above written.
GB INOTARY-St*ofNe�ska /c{�i.<. ! '.�zrY7c::i,t_.
DIANE T.STESSMAN NOTARY PUBLIC
My Comm.Exp.August 24,2017
My Commission expires .
3
Executed by THE CITY OF OMAHA this Qday of 2014.
ATTEST: By:
Ait- , ..----- f
f j
ity Clerkayor of the City of Omaha
APPROVED AS TO FORM:
, ,j7 . . Y1?-1 7IZ7/�'
Deputy ity Attorney
4
C-25A CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebraska
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, in 2008,the City of Omaha acquired property interest located,near 24th
and Hamilton Street from Bernard J. Morello for purposes of right-of-way improxeinents;,.and,
WHEREAS,Bernard J.Morello appealed the award made by the County Court Board
of Appraisers which determined the fair market value of the property acquired and property interest
acquired by the City of Omaha by filing a lawsuit in the District Court of Douglas County entitled
City of Omaha v. Bernard J. Morello, Doc. 1101 No. 027; and,
WHEREAS, the allegations and contentions of Bernard J. Morello and the City of
Omaha constitute disputed claims as to the value of the property,the propriety of the taking of the
property and the timing of the acquisition of the property; and,
WHEREAS,the City Council determines that it is in the best interests of the City of
Omaha and its residents to avoid the cost and
to be entered against the City of Omahancertainty of trial and to resolve this itigation by
settlement through an offer to allow judgment
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF OMAHA:
THAT,the Law Department is authorized to make an offer to allow judgment under
specified terms to be taken against the City of Omaha and ��gllo�Doc.n pending
101 No. 027,District
the total
Douglas County entitled City of Omaha v. Bernard
amount of fifty thousand dollars ($50,000), inclusive of all damages, attorney fees, costs, expert
witness fees; and if the offer is accepted and judgment entered, the funds shall be paid from the
Judgment Fund, Fund 12111, Org. 121101, Account 46113.
APPROVED
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DEPUTY CITY ATTORNEY A E
By
Councilmember
Adopted SEP - 9 201 _ C
4
- Cit Clerk
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roves
App Mayor
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NO. // /S7
Resolution by
Res. that the Law Department is authorized
to make an offer to allow judgment under
specified terms to be taken against the City
of Omaha and litigation pending in the
District Court of Douglas County entitled
City of Omaha v. Bernard J. Morello, Doc.
1101 No. 027, in the total amount of fifty
thousand dollars ($50,000), inclusive of all
damages, attorney fees, costs, expert
witness fees;and if the offer is accepted and
judgment entered, the funds shall be paid
from the Judgment Fund,Fund 12111, Org.
121101, Account 46113.
p:A law-city council documents\20I4\10077dac doc
Presented to City Council
SEP - 92014
Adopted _
gaiter grown
City Clerk