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Home My WebLink About2007-02-13 - Agendas - Final (2) Aldermen Ward 1 Position 1—Adella Gray Mayor Dan Coody Ward 1 Position 2—Brenda Thiel Ward 2 Position 1 —Kyle B.Cook City Attorney Kit Williams Ward 2 Position 2—Nancy Allen Ward 3 Position l—Robert K.Rhoads City Clerk Sondra Smith Taye evi e Ward 3 Position 2—Robert Ferrell ARKANSAS Ward 4 Position 1 —Shirley Lucas Ward 4 Position 2—Lioneld Jordan Final Agenda City of Fayetteville Arkansas Special City Council Meeting February 13, 2007 A meeting of the Fayetteville City Council will be held on February 13, 2007 at 4:30 PM in Room 326 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. Call to Order Roll Call Pledge of Allegiance A. NEW BUSINESS: 1. Barbara J. Heyliger Revocable Trust Settlement Agreement: A resolution to approve the Settlement Agreement with the property owner in City of Fayetteville v. Barbara J. Heyliger Revocable Trust, Washington County Circuit Court Civil Case No. 06-990-4. PASSED AND SHALL BE RECORDED AS RESOLUTION NO. 25-07. Meeting adjourned at 4:35 p.m. 113 West Mountain 72701 (479)521-7700 (479)575-8257(Fax) accessfayetteville.org Special City Council Meeting FebruN.:;713, 2007 Subject: Motion To: Motion By: Seconded: Thiel Cook ✓ Allen Rhoads04 5 Ferrell LZ Lucas Jordan Gray Mayor Coody ✓ Subject: Motion To: Motion By: Seconded: Thiel UZ Cook LAP Allen Rhoads .00 Ferrell ✓ Lucas Jordan 5 Gray V Mayor Coody � v Aldermen Ward 1 Position 1—Adella Gray Mayor Dan Coody Ward 1 Position 2—Brenda Thiel Ward 2 Position 1 —Kyle B.Cook City Attorney Kit Williams Ward 2 Position 2—Nancy Allen Ward 3 Position l—Robert K.Rhoads City Clerk Sondra Smith Taye evi e Ward 3 Position 2—Robert Ferrell ARKANSAS Ward 4 Position 1 —Shirley Lucas Ward 4 Position 2—Lioneld Jordan Final Agenda City of Fayetteville Arkansas City Council Meeting February 13, 2007 A meeting of the Fayetteville City Council will be held on February 13, 2007 at 4:30 PM in Room 326 of the City Administration Building located at 113 West Mountain Street, Fayetteville, Arkansas. Call to Order Roll Call Pledge of Allegiance A. NEW BUSINESS: 1. Barbara J. Heyliger Revocable Trust Settlement Agreement: A resolution to approve the Settlement Agreement with the property owner in City of Fayetteville v. Barbara J. Heyliger Revocable Trust, Washington County Circuit Court Civil Case No. 06-990-4. 113 West Mountain 72701 (479)521-7700 (479)575-8257(Fax) accessfayetteville.org A. 1 Barbara J. Heyliger Revocable Trust CITY ATTORNEY AGENDA REQUEST Settlement Agreement Page 1 of 12 FOR: SPECIAL COUNCIL MEETING OF FEBRUARY 13, 2007 FROM: DAVID J. WHITAKER, ASSISTANT CITY ATTORNEY ORDINANCE OR RESOLUTION TITLE AND SUBJECT: A Resolution To Approve The Settlement Agreement With The Property Owner In City Of Fayetteville v. Barbara T. Heyliger Revocable Trust Washington County Circuit Court Civil Case No. 06-990-4 APPROVED FOR AGENDA: Assistar6i City Attorney Date 2 / 6 /a7 City Attorne Date 0 Akaov, qF" off Wate & 4stewater Director Date Mayor Date A. 1 Barbara J. He tiger Revocable Trust ettlement Agreement FAYETTEVILLE --T—, Page 2 of 12 THE CITY OF FAYETTEVILLE,ARKANSAS KIT WILLIAMS,CITY ATTORNEY a4� DAVID WHITAKER,ASST.CITY ATTORNEY DEPARTMENTAL CORRESPONDENCE LE NT TO: City Council c-�FROM: David J. Whitaker, Assistant City AttorneyJ / -r^✓� DATE: February 8, 2007 RE: Proposed Settlement in City of Fayetteville v. Barbara J. Heyliger Revocable Trust CV 06-990-4 On May 11, 2006, the City of Fayetteville filed a condemnation complaint against Barbara J. Heyliger, as Trustee for the Barbara J. Heyliger Revocable Trust for Temporary and Permanent Easements to construct a portion of the WL-4 wastewater transmission line across real property owned by the Trust. At that time, a check in the amount of$22,000.00 was deposited with the Clerk of the Washington County Circuit Court to be held in escrow as just compensation for the taking. The City of Fayetteville's offer was based on the assumption of a 50% devaluation of the Fair Market Value of the property due to it lying in a flood plain. The Heyliger Trust initially disputed the entire 50% devaluation, and countered with a demand for $45,000.00 in total compensation. After months of good-faith negotiations, the parties have tentatively agreed upon the amount of$35,000.00 as total compensation for the taking. This resulted in the drafting of the proposed Settlement Agreement now before you. If you approve this settlement, we will submit it, along with an appropriate order, to the Circuit Court. The order will also release the $22,000.00 from escrow, and require the City to issue a second check in the amount of$13,000.00, for a total of$35,000.00. Our decision to continue negotiations and agree to a higher amount than initially offered was based in large part on a number of recent land sales in the surrounding area, where it appears that the flood plain devaluation was either minimal or non-existent. Land speculation appears to be widespread in the subject area. I have attached this information for your examination. Settlement at this time will allow us to deal with a known and manageable amount. No one can accurately predict what total dollar amount a Washington County jury would award, though.it could well be substantially higher than the proposed settlement amount. //�� A. 1 f�rSOCtA�_ , Appraiserr, I r7c• Barbara J. Heyliger Revocable Trust Settlement Agreement 55S E.J.SALL PLAZA Page 3 of 12 REAL ESTATE APPRAISERS&CONSULTANTS 1 I2 W. CENTER STREET, STE.655 FAVETTEVILLE, AR 72701 5010521-2737 FAX 501/521-2716 KEITH L. SCHULTZ PRESIDENT Mr. and Mrs. Desmond Heyliger 2462 Hughmont Rd Fayetteville, AR 72704 Re: City of Fayetteville Wastewater Improvements Project Dear Mr. and Mrs. Heyliger At your request I have researched land sales . in the general neighborhood of your property. A formal appraisal of the property has not been conducted and I have not determined a value estimate. It is my understanding that the City of Fayetteville has had an independent appraisal of the property conducted for purposes of acquiring an underground sewer easement across a portion of the . property. I have read, rather than conducted a formal review of an appraisal report prepared by Mr. Mark Risk at the request of the City. I understand that Mr. Risk has valued that portion of the property to be acquired and located within the flood plain as being approximately one half the value of his of land value of $40, 000. 00 per acre. None of my research over the past decade has indicated that either buyers or sellers determine that one portion of a site is less valuable than the other based upon either terrain features or proximity to a flood zone. Location and general topography are the primary influences on value. I have attached a number of recent sales in the neighborhood that apparently da not indicate that the presence of a portion of the property in the flood zone has influenced the purchase price. I am sure that you can become familiar with the sales and then diacu IR::R die sales information with city officials. A hi1 +by /./±r�a� { cGul Y �'+rrmRnrsr•� I IIVV VJ LVVV 1V. JL,,,, 1\LV .V,\ � .r ..�...• . A:1 Barbara J. Heyliger Revocable Trust Settlement Agreement Page 4 of 12 Associatej Appraisers, �nc. Sale # 1 (01105001-051007) Seller: Mike & Brenda Price to Tracy Hoskins Location: 2205 West Highway 112, Fayetteville, AR (Pt NE SW 28-17-30) Sale Date : 10/7/05 Size: 13 .52 acres Sale Price: $950, 000.00 Improvements: Older SFR 3, 087 sq.ft . , w/ 3 car garage 20 yr eft age Book &. Page: 2005-45169 Remarks: Sale # 2 (01105007-050325) Seller: Leigh Taylor Properties to Dream Team Holdings LLC Location: 2470 Highway 112, Fayetteville, AR (Pt SW NW 28-17-30) Sale Date: 3/25/05 Size: 39 acres Sale Price: $2,301, 000 .00 Improvements: None of contributory value Book & Page: 2005-13194 Remarks. Wooded land at northeast corner of Highway 112 and Howard Nickle Road. Acquired for residential development Sale # 3 (01805001-050329) Seller: Carmen L. Lierly Trustee. to Blind Squirrel LLC Location: Pt SW NE & Pt NW SE 31-17-30 Fayetteville, AR (North of Mt Comfort and west of Salem) Sale Date: 2/28/05 Size: 8 .8 acres Sale Price: $451,000 .00 Improvements: None Book & Page: 2005-11231 Remarks : Pasture land acquired for speculation A. 1 Barbara J. Heyliger Revocable Trust Settlement Agreement Page 5 of 12 Associatej Appraisers, Inc. Sale # 4 (01805007-051007) Seller: GN Development LLC to Olika Investments Inc. Location: 3160 N Salem Road, Fayetteville, AR (Pt E/2 NW 32-17-30) Sale Date: 10/7/05 Size: 10 acres Sale Price: $550, 000 . 00 Improvements: None of contributory value Book & Page: 2005-45567 Remarks: Rolling land located just north of Crystal Springs S/D and acquired for use as Rockhaven S/D Sale # 5 (01805007-051121) Seller: Jack Haynes to Broyles Commercial Funding LLC Location: Pt E/2 NW NW 32-17-30 Fayetteville, AR (West aide of N Salem, south of Weir Rd) Sale Date: 11/21/05 Size: 10 . 66 acres Sale Price: $592, 000.00 Improvements: None of contributory value Book & Page: 2005-52483 Remarks: Pasture and scattered timber, downward slope from Nth to Sth. Across from Crystal Springs S)D. Acquired for residential development Sale # 6 (01706001-060117) Seller: Dixie Management- & Investments LP to Nickell Investment LLC Location: Pt NW 1-16-31 & Pt S/2 31-17-30 Fayetteville, AR (West side of Wildflower S/D) Mt Comfort Rd & WCR 703) Sale Date: 1/17/06 Size: 24. 45 acres Sale Price: $1,315, 000. 00 Improvements: None of value Book & Page: 2006-2672 Remarks: Dixie acquired. property 12/17/04 for $912,000.00 A. 1 Barbara J. Heyliger Revocable Trust Settlement Agreement Page 6 of 12 }-�ssociatec� /-�FPrasers, Inc. Sale # 7 (01706001-060213) Seller: Tall Oak Development to Homestead Homes LLC Location: Pt SW NW• & Pt NW SW 31-17-30 Fayetteville', Ar (Hughmont Road just north of Wheeler Rd) Sale Date: 2/13/06 Size: 80. 39 acres Sale Price: $3, 620, 000.00 Improvements: None of value Book & Page: 2006-6576 Remarks: . Pasture land with a drainage problem. Acquired for S/D. Seller paid $1, 720,000.00 on 10/31/05 Sale # .8 (01706007-060306) Seller: Larry Morris to Hometown Properties LLC Location: 3122 Hughmont Rd, Fayetteville, AR (Pt W/W/2 NE and Pt. W/2 NW NE 31-17-30) Sale Date: 3/6/06 Size : 17. 66 acres Sale Price: $1, 050, 000. 00 Improvements: Pasture land with older home acquired for future S/D Book & Page: 2006-1011 Remarks: A. 1 Barbara J. Heyliger Revocable Trust Settlement Agreement Page 7 of 12 �ssociotec� appraisers, Inc, /Seller: ale # 9 .(04903001-031215) WHM Land Investments Inc. to Nock Investments LLC Location: Lot 7, WHM band Investments (Pt 12-16-31) Fayetteville, AR Sale Date: 12/15/03 Size: 40.65 acres Sale Price: $1, 350, 000.00 Improvements: None of contributory value Book & Page: 2003-63375 Remarks : Open pasture land located south of Wedington and west of Rupple Rd. Sale # 10 (04904001-040109) Seller: Jean. Jowers, Successor to the Estate of Hoyet Greenwood to Sloan Properties Location: SE SW 12-16-30 and NW 13-16-31 Fayetteville, AR (South of Wedington Drive and east and west on Persimmon) Sale Date : 1/9/04 Size: 200 acres Sale Price: $6,250, 000 . 00 Improvements : Older two story SFR remodeled and in excellent condition, 4, 226 sq.ft. , barns, fences, etc. Book & Page: 2004-1098 Remarks: Acquired for residential development . Home will be retained. Sale-# 11 (01805007-051116) Seller: Springwood Land Holdings LLC to Dream Team Holdings # 1 LLC Location: Lot 5, Springwoods Add, Fayetteville, AR (East side of Deane Solomon Rd) Sale Date: 11/16/05 Size: 30.788 acres Sale Price: $1, 000, 000.00 Improvements: Book & Page: 2005-52521 Remarks: Portion in the flood plain, acquired for residential development A. 1 Barbara J. Heyliger Revocable Trust Settlement Agreement Page 8 of 12 RESOLUTION NO. A RESOLUTION TO APPROVE THE SETTLEMENT AGREEMENT WITH THE PROPERTY OWNER IN CITY OF FAYETTEVILLE v. BARBARA J. HEYLIGER REVOCABLE TRUST, WASHINGTON COUNTY CIRCUIT COURT CIVIL CASE NO. 06-990-4. WHEREAS, after many months and numerous settlement conferences between Heyliger Trust attorney Mary A. Long and Fayetteville Assistant City Attorney David J. Whitaker, a possible settlement agreement has been agreed to by the defendant property owner and is recommended for approval of the City Council by City Attorney Kit Williams and Mayor Dan Coody. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUN THE CITY OF FAYETTEVILLE,ARKANSAS: Section 1. That the City Council of the City of F kan hereby approves the Settlement Agreement with the defend : perty owner i of Fayetteville v. Barbara J. He li er Revocable Trust, Wash on unty Ci t Court Civil Case No. 06-990-4, as attached hereto a 'bit A an - t s Mayo oody to execute this agreement. , 4 PASSED an this d f Feb 2007. APPRO By: AN CO or SONDRA SMITH, City Clerk/Treasurer A. 1 Barbara J. Heyliger Revocable Trust Settlement Agreement Page 9 of 12 IN THE CIRCUIT COURT OF WASHINGTON COUNTY, ARKANSAS FOURTH DIVISION CITY OF FAYETTEVILLE, ARKANSAS PLAINTIFF a municipal corporation VS. Case No. CV 06-9904 BARBARA J. HEYLIGER,Trustee of THE BARBARA J. HEYLIGER REVOCABLE TRUST DEFENDANT SETTLEMENT AGREEMENT Comes now the Plaintiff City of Fayetteville by Assistant City Attorney David J. Whitaker and Defendant Barbara J. Heyliger, as Trustee of The Barbara J. Heyliger Revocable Trust and hereby agree to settle the above captioned case as follows: 1. The Plaintiff agrees to dismiss this case with prejudice. 2. Defendant Barbara J. Heyliger, as Trustee of The Barbara J. Heyliger Revocable Trust, hereby accepts the sum of $35,000.00 as Total Just Compensation for the Temporary and Permanent Easements sought by Plaintiff in this action,broken out as follows: A. $33, 250.00 for the purchase of Permanent Easements;, and B. $1,750.00 for the rental value of Temporary Construction and Grading Easements. 3. Plaintiff City of Fayetteville commits itself to the following promises A. 1 Barbara J. Heyliger Revocable Trust Settlement Agreement Page 10 of 12 A. Plaintiff City of Fayetteville shall return the site as nearly as possible to its current aesthetic appearance upon completion of the work. B. That all currently planned construction associated with the Wastewater System Improvement Project shall be located either below ground or level with the current height of the subject property upon which the construction is located. C. That the compensation evidenced by this Settlement Agreement is for the future wastewater transmission line which shall be placed initially with as many as three (3) separate manhole covers on the subject property and allotted as many additional manholes in the future as are necessary to maintain the line as the subject property and those surrounding it are developed; and D. The future construction of above-ground buildings or structures on the subject property by Plaintiff City of Fayetteville will constitute an additional taking, entitling Defendant Barbara J. Heyliger, as Trustee of The Barbara J. Heyliger Revocable Trust, its successors or assigns,to additional compensation. 4. Plaintiff City of Fayetteville and Defendant Barbara J. Heyliger, as Trustee of The Barbara J. Heyliger Revocable Trust agree and covenant that this Settlement Agreement is a full and final settlement and resolution of any and all issues and claims that do or might exist between the parties as of the date of this Agreement. 5. This Settlement Agreement will be jointly submitted by the parties to the Court for approval and for issuance of the accompanying Order dismissing this 2 A. 1 Barbara J. Heyliger Revocable Trust Settlement Agreement Page 11 of 12 action with prejudice; provided that this Court shall retain jurisdiction over the parties and subject matter for the purpose of enforcing compliance with the terms of this Settlement Agreement. Signed this day February,2007. CITY OF FAYETTEVILLE BARBARA J. HEYLIGER REVOCABLE TRUST By: By: DAN GOODY, Mayor BARBARA J. HEYLIGER,Trustee ATTEST: By: Sondra Smith,City Clerk/Treasurer APPROVED AS TO FORM: By: David J.Whitaker, Asst. City Attorney By: Mary A. Long, Attorney for Defendant 3 A. 1 Barbara J. Heyliger Revocable Trust Settlement Agreement Page 12 of 12