RES 2006-0018 - Agmt to settle case Richard M Wiesman, personal representative of the estate of Elaine R Wiesman, et al v City of Omaha •
•
O�oHIAHA,p• .P. Planning Department
n,a c,.0 RECEIVED Omaha/Douglas Civic Center
),j'1f t ^ 1819 Farnam Street,Suite 1100
a ��-�� h +fig t Omaha,Nebraska 68183
o�® s , 05�y � G 1"1 1 (402)444-5150
op�TFD FesR°� '•3Telefax(402)444-6140
�� CLERIC, y, Steven N.Jensen,AICP
City of Omaha �'� } $' � �.�1'�,t Director
Mike Fahey,Mayor
Honorable President
and Members of the City Council,
Transmitted herewith is a Resolution authorizing the Mayor to execute and the City Clerk to attest to
the attached Settlement Agreement between the City of Omaha and the Estate of Elaine R.Wiesman,
Richard M.Wiesman,Ronald D.Wiesman and John R.Wiesman in settlement of a lawsuit presently
pending in the Douglas County District Court entitled Richard M. Wiesman,Personal Representative
of the Estate of Elaine R. Wiesman, et al. v. City of Omaha,Doc. 1008,No. 977. This lawsuit arises
out of the City of Omaha's acquisition of property owned by the Estate of Elaine R. Wiesman at
1121 Abbott Drive. This property was acquired for the purposes of the Gallup University
Redevelopment Plan. This Resolution authorizes the Finance Department to make payment pursuant
to the Settlement Agreement in the amount of forty-eight thousand ($48,000) from the Gallup
Campus Construction Fund 13434, Organization 131771.
Settlement of this case in this fashion is recommended by the Law Department, and your favorable
consideration of passage of this Resolution is respectfully requested.
Respectfully submitted, Referred to City Council for Consideration:
n
. --/1, \ ' 2 . I q-G5 L (1(14.44i( t5
Steven N. Je A1CP Date Mao f ce Date
Planning Director iJ
Approved as to funding:
ia,11sloS
• Carol Ebdon Date
Finance Director
P:\LAW 1\16010maf.doc
c-ZSA CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebraska
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, on July 12, 2001, the City of Omaha commenced acquisition
procedure of properly located at 1121 Abbott Drive owned by the estate of Elaine R. Wiesman
and her heirs as part of the Gallup University Redevelopment Plan; and, •
WHEREAS, the estate of Elaine R. Wiesman and her heirs Richard M. Wiesman,
Ronald D. Wiesman and John R. Wiesman appealed the award of the County Court Board of
Appraisers which determined the fair market value of the City's acquisition of the property at
1121 Abbott Drive by filing a lawsuit against the City of Omaha in the Douglas County District
Court entitled Richard M. Wiesman, Personal Representative of the Estate of Elaine R. Wiesman,
et al. v. City of Omaha, Doc. 1008 No. 977; and,
WHEREAS, the allegations of the Estate of Elaine R. Wiesman and its heirs and
the contentions of the City of Omaha constitute disputed claims as to the value of the property;
and,
WHEREAS, the City of Omaha and the Estate of Elaine R. Wiesman and its heirs
desire to settle their differences with respect to the acquisition without any further proceedings or
litigation; and,
WHEREAS, the City of Omaha and the Estate of Elaine R. Wiesman and heirs
have set forth their respective understandings and agreements with regard to the settlement of the
matter including the consideration of forty-eight thousand dollars ($48,000) in settlement of all
claims for compensation concerning the property; and,
WHEREAS, the circumstances of the questions and valuation of this case suggest
that it be in the best interest of the City of Omaha and the residents thereof to resolve this
litigation by settlement of the condemnees.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF OMAHA:
By
Councilmember
Adopted
City Clerk
Approved
Mayor
SETTLEMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this itAlay of3 f '('hus_t
2005, by and between the Estate of Elaine R. Wiesman, RICHARD M. W t 1-�SMAN, RONALD
1
D. W t NSMAN, and JOHN R. WIESMAN, referred to hereinafter collectively 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, under Docket CO1 No. 10194, the object and purpose of which was to acquire
a parcel of real estate under its power of eminent domain, referred to hereinafter as ("The
Condemnation Action"); and,
WHEREAS, CONDEMNEE claims an interest in the subject property legally identified
and referenced and contained in said Petition to Condemn Property as Tract No. 2, a copy of
such legal description is attached as Exhibit"A"to this Agreement; and,
WHEREAS, a County Court appointed Board of Appraisers returned and filed a Report
of Appraisers; and,
WHEREAS, CONDEMNEE has filed an action in the District Court of Douglas County,
Nebraska, entitled Richard M. Wiesman, Personal Representative of the Estate of Elaine R.
Wiesman, et. al. v. City of Omaha, Doc. 1008, No. 977, appealing the award entered by the
County Court Board 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 shall pay CONDEMNEE the sum of forty-eight thousand and 00/100
dollars ($48,000.00) in addition to those monies previously awarded CONDEMNEE by the
Board of Appraisers.
2. Upon receipt of this payment, CONDEMNEE agrees to waive and release any
cause or causes of action and all rights it now has or may have, known and unknown, against the
City, its agents, assigns, representatives, and/or other parties, growing out of or relating to the
condemnation action or the City's acquisition of the property identified in the attached Exhibit
"A", including any attorney's fees, expert witness fees, and costs, and further warrant and
represent that it shall not litigate or otherwise dispute any such cause or causes of action in any
subsequent judicial proceeding.
3. CONDEMNEE and CITY agree to stipulate to the dismissal of the case entitled
Richard M. Wiesman, Personal Representative of the Estate of Elaine R. Wiesman, et. al. v. City
of Omaha, Doc. 1008, No. 977, with prejudice and each side bearing its own costs.
4. 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.
5. 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.
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.
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
2
•
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.
Executed by the Estate of Elaine R. Wiesman this Z Z y 61 day of Po ea 6e% ,
2005.
CH M. WIESM ,
PERSONAL REPRESENTATIVE
STATE OF MA'SS404ASE7TS
)SS
COUNTY OF I44i7�-rteSEi1
On this Z2'4D day of Novato Q 2005, before me, a Notary Public, in and for said
County, personally came the above named Richard M. Wiesman, Personal Representative of the Estate of
Elaine R. Wiesman, 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 abov written.
ANNETTE DrNotary. MCKPubliINcNON NOTARY PUBLIC
sl'1°
My Commission expire
COMMONWEALTH OF MASSACHUSETTS
My Commission Expires August 17.2012
3
Executed by RICHARD M. WIESMAN this 2 2-Na? day of A/ooeN beer-- , 2005.
RICHARD M. WIESMAN
STATE OF l4e9SSACAIS TS
)SS
COUNTY OF M W2 e3(.
On this ZGs'-' day of AkibirA 2005, before me, a Notary Public, in and for said
County,personally came the above named Richard M.Wiesman, 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
ANNETTE D. MCKINNON NOTARY PUBLIC
i Notary Public
" soCOMMONWEALTH OF MASSACHUSETTS
My Commission Expires August 17.2012
My Commission expires
4
Executed by RONALD D. WIESMAN this /51 day of MNrmger,, 2005.
lJaa►a.�J
RONALD D. WIESMAN
STATE OF )
)SS
COUNTY OF )
On this /'�7" day of /1441.ij , 2005, before me, a Notary Public, in and for said
County, personally came the above named Ronald D. Wiesman,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 ab ve written.
Name!D.Pierce
Notary Public,District of Columbia
My Commission Expires 04-14-2006 TARY PUBLIC
My Commission expires
5
/ T
Executed by JOHN R. WIESMAN this G J� day of No✓t ,(2005.
II'
JOHN R. WIESMAN
STATE OF ///4" )
)SS
COUNTY OF - P-1G1
On this / day of AMA-exe,2005, before me, a Notary Public, in and for said
County, personally came the above named John R. Wiesman, 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 a.9ove written.
ll _
AchatYa Off' :ITC
p, owin R.
MyCommission expires
NOTARY PUBLIC
p
My comvisa exPoDe.'18"'
6
Executed by THE CITY OF OMAHA this 1,274day of ,t/ll4rey , 200.fs
ATTEST::f' ,� By:
)'\#11.jA
City Clerk Mayor of the Cityof aha
Y
APPROVED AS TO FORM:
‘<— C-P- 2--S212.)7A16.5.
Assistant City Attorney
•
c-2A, "'`CITY OF 'OMAHA
LEGIS.LATIYE CHAMBER
' 'Omaha,Nebraska
PAGE 2
THAT, the Mayor is authorized to execute and the City Clerk to attest the
attachment Settlement Agreement between the City of Omaha and the Estate of Elaine R.
Wiesman, Richard M. Wiesman, Ronald D. Wiesman and John R. Wiesman to conclude the
pending litigation in the case entitled Richard M. Wiesman, Personal Representative of the
Estate of Elaine R. Wiesman, et al. v. City of Omaha, Doc. 1008 No. 977 in a lawful manner and
after execution the Finance Department is authorized to issue such warrant in the amount of
$48,000 dollars, such funds to be paid from the Gallup Campus Construction Fund 13434,
Organization 131771.
APPROVED AS TO FORM:
C 112/4Q5
/ CITY ATTORNEY DATE
P:\LAW1\16009maf.doc
By
13.-qitadvt.
.Councilmember
Adopted ``:3AAN 1�:fit.40.06.-
4 /
.. City Clerk _ / �
/ d
Approve&'`
_ _ Mayor
, .
. .
.:,* * • ?t.. . . .
. '
• "CI '71''tj II) CD Z 5cpci) :;'' xi (Pe
p2. g 0 -. r,,, — 0 .. -• ,,,c-ii-• 0. (no cn ,
. 0 •R., 0 5 6 • m ,:-.1 c> 0 0
> ‘21-' C 0 Z r...1 c.,-7, 2-4•7:i cn co,
,—• 14' ;:i. -t-. <•:' g , -, 0 po c c,'-' $1,9•' .__,,-<-.
._._-.-
,
• 0, u..) ,-- 1-h O.
C.. 14. =• '•cr• Z ,
b-cs c) -P• •_,-,-, ,,b-• , a:). ra, >..< CD C) '.• .-. 42, <-4- t--t. .- - ''''''
"
0 vp
S.--e) CD .2° ° R") p) !:?'" <.t "='". ; 8- ...,. Cri,q-sp n p4
C... cn
Ck.
sl) cra 0 C) "-- ,.....S, crta ••• cp 0 kc
:b. o
:=.•
,-, ..-, pp E C. ,CIA
o a. . --, sw ,-, ca, CD 'A., "ci
= ,_ c) b:rj A) (-) <- I-'
N., a.
\"-) 0
'-'• C 0 • ,. `S.', . '"'" 'CD
,.._.C.) 4.-•
. <-- N ro Ca, .•••...* 0 e‘d rii = '"'" 1--•
'S -1.-ga • o s,?.„) 0 A) !"C cb • • cn <-4- 0 u)
e.F. SzI
i•-•:' (t. . \n
F.) 5- n ca' 0 '-',(4, tzi F,.'• — FS 0- -,' a' ,„„N
4=. ,.'. . 0 CD
1--‘. __ c„,, t."J 1.-,• e-t. ("1:. r-r- ,....
cn
ei
PN c..)
vj C., 0 5 wi _ on -,.. -•
0 .
o
.
•
,---*
0 0 cp 6
O. z
a
C05 e-i- 0 CD ,-t: ?• .:'''CD .
CT 0
e-t• of-,. t-t- A) '-' Ct. P 1.74: "*--' C.L., 0 0 - ,
,-s 1-,• ,.-,. g) <=:. •--. CD
7.7' 0 cr m" ,-. 0 c) p CD P-, ,Zi X) 0 m •-
Z CD CD cn s-t 00 • e..... c.a. CD . . +-+, <-t.. CD
i
. ,
l•-•
• ' ...1. .' ' ;
.. '4: • :. .
t'. •
. '''..• ,
.. . .,. . „
•
• ,
.,,
. .
. .
•
. ,
• -,„ • . , ,- ',„ ' . .
. ,
•''., '
\ .\ /,/,' •
•
. .
''',. •13 •. . _ _.,-• '-:.
_ .
. , -— --• ,
. . .,
--- , • _.`, .- . , .
,,--,____._.... ----•..A. .:- ...
• -'
....- -........ _....--- -.
t., . I..
. - ,