RES 2000-1163 - Settle case Father Flanagan's Boys' Home v City of Omaha /
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1 �� Law Department
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o•F� '�.y���:.�F'� Omaha,Nebraska 68183-0804
AD ro (402)444-5115
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E'D FEas- Telefax(402)444-5125
City of Omaha Paul D.Kratz
Hal Daub,Mayor City Attorney
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Honorable President and
Members of the City Council,
Transmitted herewith is a Resolution authorizing the Mayor to sign and the City Clerk to attest
the attached Settlement Agreement between the City of Omaha and Father Flanagan's Boys'
Home in settlement of a lawsuit presently pending in the Douglas County District Court entitled
Father Flanagan's Boys'Home v. City of Omaha, Doc. 969 No. 162. This lawsuit arises out of
the City of Omaha's acquisition of property owned by Father Flanagan's Boys' Home along
132nd Street between West Dodge Road and Pacific Street for SP-91-22. This property was
acquired for.the widening of 132nd Street from two lanes to four lanes. This Resolution
authorizes the Finance Department to make payment pursuant to this Settlement Agreement in
the amount of $80,871.50 from the 1996 Street and Highway Bond Issue No. 2 (Year 2000
funding), Fund 305, Agency 140, Organization 1509, Activity 4013, Object 5010.
Settlement of this case in this fashion is recommended by the Law Department. Your favorable
consideration and passage of this Resolution is respectfully requested.
Respectfully submitted, Referred to 'ty Cou cil f Consideratio •
in 1°o f T
Bernard J. in den Bosch Date Mayo 's Office/Title Date
Assistant City Attorney •
Approved as to funding:
1kAjyrlAwit's")/ Wier/0 0
Stan Timm Date
Acting Finance Director VP
P:\LAW\10464skz.doc
SETTLEMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this 1-11-(,, day of Apr►) ,
2000, by and between Father Flanagan's Boys' Home, referred to hereinafter as "Condemnees".
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 C?7No.‘O012, the object and purpose of which was to acquire
various interests in a parcel of real estate under its power of eminent domain, referred to
hereinafter as "The Condemnation Action"; and,
WHEREAS, CONDEMNEES claim an interest in the subject property, more fully
identified as Tract No. 1 and legally described in Exhibit "A" which is attached hereto, said
subject property being referenced and contained in said Petition to Condemn Property; and,
WHEREAS, a County Court appointed Board of Appraisers returned and filed a Report
of Appraisers; and,
WHEREAS, CONDEMNEES have filed an action in the District Court of Douglas
County,Nebraska, entitled Father Flanagan's Boys'Home v. City of Omaha, Doc. 969,No. 162,
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 eighty thousand eight hundred
seventy-one dollars and 50/100($80,871.50) in addition to those monies previously awarded
CONDEMNEE by the Board of Appraisers. The CITY agrees to make payment of this sum after
approval of this Agreement by the City Council of the City of Omaha and Mayor of the City of
Omaha
2. Upon receipt of this payment, CONDEMNEE agrees to waive and release any
cause or causes of action and all rights they now have or may have, known and unknown, against
the City, its agents, assigns,representatives, and/or other parties, growing out of or relating to the
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condemnation action, and further warrant and represent that they shall not litigate or otherwise
dispute any such cause or causes of action in any subsequent judicial proceeding. Further,
CONDEMNEE and CITY agree to stipulate for dismissal of the case entitled Father Flanagan's
Boys'Home v. City of Omaha, Doc. 969, No. 162, with prejudice and each side bearing its own
costs.
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, plaintiff will dismiss with
prejudice its lawsuit in the District Court of Douglas County and any appeal which may have
been filed.
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.
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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.
pry
Executed by FA HER FLANAGAN'S BOYS' HOME this day off,
2000.
PRESIDENT R AU HORI ED ':� . ICER ATTEST:
By: ,,, By: -_
Title: cle< Title: Peter J. Garofalo
Corporate Secretary
,,,, Legal Counsel
FATHER '�E:;;� a�,, ,S ENS HOME
Executed by THE CITY OF OMAHA this .3 / day of , ,9r✓` 2000.
ATTEST: By:
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City Clerk Mayor of the City of Omaha
APPROVED AS TO FO
2vOb
Assistant City Attorney
STATE OF NEBRASKA ) •
) ss.
COUNTY OF DOUGLAS )
/phOn this T. day of l , 2000, before me, a Notary Public in and for said
Coun ersonall came rather VexteLat— E!ig. ✓ irecZbr- of
Father Flanagan's Boys' Home, a Nebraska Corporation, and lcr.jro o
C j1orcrk 61,12:1-a of said Corporation,to me personally know to be the respective officers
of said corporation and the identical persons whose names are affixed to the foregoing
instrument, and acknowledged the execution thereof to be their respective voluntary act and deed
as such officers and the voluntary act and deed of said Corporation, and the Corporate Searl of
said Corporation to be thereto affixed by its authority.
Witness my hand and Notarial Seal the day year last above writ n
iGiNERALNOl .StNebraska.
111 BESS IRVINE
• My Comm.Exp.Oct.17,2003 Notary Public
Notary Seal
c-25A CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebr •
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, on November 24, 1997, the City of Omaha commenced acquisition
procedures of property interests located on 132nd Street between West Dodge Road and Pacific
Street owned by Father Flanagan's Boys' Home, as part of S.P. 91-22, for the purposes of
widening 132nd Street between West Dodge Road and Pacific Street from two lanes to four lanes;
and,
WHEREAS, Father Flanagan's Boys' Home appealed the award of the County
Court Board of Appraisers entered on January 8, 1998, which determined the fair market value,
of the City's acquisition of property interests along 132"d between.West Dodge Road and Pacific
Street, by filing a lawsuit against the City of Omaha in the Douglas County District Court
entitled Father Flanagan's Boys'Home v. City of Omaha, Doc. 969 No. 162; and,
WHEREAS, the allegations of Father Flanagan's Boys' Home and the
contentions of the City of Omaha constitute disputed claims as to the value of this property; and,
WHEREAS, the City of Omaha and Father Flanagan's Boys' Home desire to settle
their differences with respect to this acquisition without any further proceedings or litigation;
and,
WHEREAS, the City of Omaha and Father Flanagan's Boys' Home have set forth
their respective understandings and agreement with regard to settlement of this matter for the
consideration of $80,871.50 in settlement of all claims for compensation concerning this
property; and,
WHEREAS, the circumstances of the questions of valuation suggest that it would
be in the best interest of the City of Omaha and the residents thereof to resolve this litigation by
settlement with the plaintiffs.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF OMAHA:
THAT, the Mayor is authorized to sign and the City Clerk to attest the attached
Settlement Agreement between the City of Omaha and Father Flanagan's Boys' Home to
conclude the pending litigation in the case Father Flanagan's Boys' Home v. City of Omaha,
Doc. 969 No. 162, in lawful manner; and that, after execution, the Finance Department is
authorized to issue such warrant as necessary, such funds to be paid from 1996 Street and
Highway Bond Issue No. 2 (Year 2000 funding), Fund 305, Agency 140, Organization 1509,
Activity 4013, Object 5010. •
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W\104665skz.doc APPROVED AS TO F
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5.2000
Adopted ,F :APR 6--D /kss��rvz C Y ATTORNEY DATE
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