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RES 2018-0542 - Settlement Agmt - SID 392 and Millard School District i i'•i- i ii j ( ,?`°H► HA�l%,',,i. RECEIVED Law Department � 445.` 1arcti. Omaha/Douglas Civic Center ®�Y T •q�h � 2O 18 HAY Y 2 3 P M 2: -g 1819 Farnam Street,Suite 804 p.014! _` .�':'.�.. a Omaha,Nebraska 68183-0804 rOp -- .�^' (402)444-5115 �44to PEBRV�� • FAX:(402)444-5125 CITY CLERK City of Omaha P1��F� NE M Paul D.Kratz Jean Stothert,Mayor City Attorney Honorable President and Members of the City Council, . The attached Resolution is submitted by the City of Omaha Law Department. It authorizes the Law Department to settle a lawsuit pending in the District Court of Douglas County, City of Omaha v. Sanitary and Improvement District No. 392 and School District No. 17 a/k/a Millard ';' School District, CI16-5165. The matter is related to the installation of a section of Polk Street, between 177th and 178th Streets, located within the boundaries of the SID and immediately south of Wheeler Elementary. The parties have agreed to settle the matter through an Interlocal Agreement, pursuant to which the City will install the street and the SID and School District will ' ' pay the City a portion of the estimated costs. i . j The Settlement Agreement requires the City to assume responsibility for the installation of the street, and the SID and MPS to contribute funds for the completion of the construction project, • • all pursuant to a separate Interlocal Agreement. The Settlement Agreement does not assess liability to any specific party and includes a full and complete release of claims by and between ' all parties. Your favorable consideration of this Resolution is respectfully requested. Respectfully submitted, Referred to City Council for Consideration . ,rn e 5/2 Le f 3 sr 7 Jennife4. Taylor -- Date Mayor's Office Date Assistant City Attorney I1 P\LAW-CITY COUNCIL DOCUMENTS\2018\20263se1 ; I , 1 SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (this "Agreement") is made and entered into by and among the City of Omaha(the"City"),Sanitary and Improvement District No.392 of Douglas County("SID 392"),and School District No. 17 of Douglas County a/k/a Millard School District ("MPS"), as of the date of the last-dated signature appearing below (the "Effective Date"). The City, SID 392,and MPS are sometimes collectively referred to as the"Parties". RECITALS WHEREAS, the City filed a lawsuit in the District Court of Douglas County, Nebraska known as City of Omaha v. Sanitary and Improvement District No. 392 of Douglas County and School District No. 17 of Douglas County a/k/a Millard School District,Case No. CI 16-5165 (the "Lawsuit"); and WHEREAS, SID 392 filed an Answer denying the allegations in the Lawsuit and raising certain affirmative defenses; and WHEREAS,MPS filed an Answer in the Lawsuit; and WHEREAS, SID 392 filed a Cross-Claim against MPS; and WHEREAS, the Parties desire to compromise, settle, and finally resolve any and all existing claims and controversies among them relating to the allegations raised or that could have, been raised in the Lawsuit. NOW, THEREFORE, in consideration of the promises and of the mutual covenants, agreements, and undertakings set forth in this Agreement, and other good and valuable consideration,the adequacy of which is hereby acknowledged,the Parties agree as follows: 1. No Admission of Liability. Each Party to this Agreement specifically denies any claims and allegations asserted against it and asserts it has meritorious defenses, but all Parties agree to the settlement of this matter to avoid the expense,disruption,and uncertainty of litigation. None of the Parties shall be deemed to have admitted the validity of the allegations made by any other Party by entering into this Agreement, and all Parties specifically disclaim and deny any wrongdoing or liability to any other Party with respect to any claim or allegation that was or could have been made in connection with or related to the Lawsuit. 2. City's Assumption of the Project. Pursuant to a separate Interlocal Cooperation Agreement by and between the City, SID 392,and MPS,the City agrees to complete certain Work all as identified in the Interlocal Cooperation Agreement by and among the parties. SID 392 and MPS shall contribute funds for the completion of the Work, all as described in the Interlocal Cooperation Agreement. 3. Releases. (a) The City's Release of SID 392. Except as set forth in the Interlocal Cooperation Agreement, the City hereby irrevocably and unconditionally releases and discharges SID 392, and its successors, predecessors, assigns, agents, attorneys, and representatives from any and all demands,sums of money,actions,rights,causes of action, obligations, claims, expenses, damages, losses and/or liabilities of any kind whatsoever, known or unknown,which the City had,now has or may have against SID 392 which relate to the alleged failure of SID 392 to complete the installation of Polk Street between 178th • and 177th Streets, in Omaha, Nebraska, all claims that arise out of or are in way related, directly or indirectly,with the City's claims in the Lawsuit, or that could have been raised in the Lawsuit, and all claims that arise out of or are in any way or manner related to any of the agreements attached to the Complaint in the Lawsuit. (b) The City's Release ofMPS. Except as set forth in the Interlocal Cooperation Agreement,the City hereby irrevocably and unconditionally releases and discharges MPS, and its successors, predecessors, assigns, agents, attorneys, and representatives from any and all demands, sums of money, actions, rights, causes of action, obligations, claims, expenses, damages, losses and/or liabilities of any kind whatsoever, known or unknown, which the City had, now has or may have against MPS which relate to the alleged failure of MPS to participate in the installation of Polk Street between 178th and 177th Streets, in Omaha,Nebraska, all claims that arise out of or are in way related, directly or indirectly, with the City's claims in the Lawsuit,or that could have been raised in the Lawsuit,and all claims that arise out of or are in any way or manner related to any of the agreements attached to the Complaint in the Lawsuit. (c) SID 392's Release of MPS. Except as set forth in the Interlocal Cooperation Agreement, SID 392 hereby irrevocably and unconditionally releases and forever discharges MPS for, of and from any and all demands, sums of money, actions, rights, causes of action, claims, expenses, damages, or losses and/or liabilities of any kind or ,nature whatsoever,known or unknown,that relate to the claims in the Lawsuit,or that were or could have been raised in the Lawsuit, and all claims that arise out of or are in any way related to any of the agreements attached to the Complaint in the Lawsuit. 4. Representations and Warranties. The Parties expressly represent and warrant that they are authorized to execute this Agreement. Further, the Parties expressly acknowledge that they have been represented by their respective attorneys in connection with the preparation of this Agreement. This Agreement has been drafted jointly by the Parties and their respective attorneys, and the terms, conditions and provisions of this Agreement shall be construed only according to their fair import and shall not be construed for or against any Party hereto. The warranties and representations contained in this Agreement shall survive the execution of this Agreement. 5. Dismissal. Within a reasonable time after the Effective Date, but not later than ten (10) business days following its receipt of the payments specified in the separate Interlocal Cooperation Agreement, the City agrees to take all steps necessary to dismiss the Lawsuit with prejudice, with each Party to bear its own costs and attorneys' fees. Similarly, SID 392 agrees to take all steps necessary to dismiss any and all cross-claims brought in the Lawsuit. 6. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto,and each Party's respective legal representatives, successors and assigns. 2 7. Governing Law. The laws of the State of Nebraska shall govern the validity, construction, interpretation and effect of this Agreement, regardless of any applicable law regarding the conflict of laws or the interpretation of contracts. 8. Entire Agreement. This Agreement, along with the Interlocal Cooperation Agreement, represent the complete expression of the intentions of the Parties with regard to the settlement of the Lawsuit and the related matters set forth herein. They constitute the entire agreement among the Parties relating to this subject matter, and supersede all prior agreements, whether written or oral, among the Parties pertaining to this subject matter. 9. Authorized Signatures. By signing below, each Party represents and warrants that • he/she is authorized to sign on behalf of the respective entity signing below. • Executed this?day of . ,2018. CITY OF OMAHA ll11__ By_ / e Mayor Jean Stothert ATTEST: City Cl c, C. - Omaha Executed this OI. day of ,2018. SANITARY AND IMPROVEMENT DISTRICT NO. 392 OF DOUGLAS COUNTY By \� ATT. ST: � S / • 3 Executed this IC day of /Yl «y ,2018. SCHOOL DISTRICT NO. 17 OF DOUGLAS COUNTY a/k/a MILLARD SCHOOL DISTRICT By: - Its: C. F. O. ATT APIP t • • RESOLUTION NO. 51i Item Submitted By: Sunny LaPuzza Department: Law Council Meeting Date: June 5, 2018 Res. that, the City Council does hereby approve the settlement of the case entitled City of Omaha v. Sanitary and Improvement District No. 392 of Douglas County and School District No. 17 of Douglas County a/k/a Millard School District and that the Mayor is hereby authorized and empowered to execute the attached Settlement Agreement and Release. VE3 • • Presented to City Council June 5, 2018 APPROVED 7-9-60-0 8ltzabeth Mi&tier City Clerk