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Home My WebLink About181-11 RESOLUTIONRESOLUTION NO. 181-11 A RESOLUTION APPROVING A SETTLEMENT AGREEMENT WITH PATRICK J. TOBIN, TRUSTEE OF THE PATRICK J. TOBIN REVOCABLE LIVING TRUST U/D/T MARCH 4, 1997, CONCERNING CONDEMNATION LITIGATION FILED AS PART OF THE TOWNSHIP STREET WIDENING PROJECT, IN THE TOTAL AMOUNT OF $60,000.00 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves an agreement with Patrick J. Tobin, Trustee of the Patrick J. Tobin Revocable Living Trust u/d/t March 4, 1997, in a total amount of $60,000.00 as full and final settlement of condemnation litigation (City of Fayetteville v. Tobin, Washington County Circuit Court Case No. CV 2009- 2086-4) filed as part of the Township Street Widening Project. Section 2: That the City Council of the City of Fayetteville, Arkansas, in furtherance of the settlement, hereby approves payment of an additional $16,500.00 over and above the $43,500.00 placed on deposit with the court. PASSED and APPROVED this 18th day of October, 2011. APPROVED: ATTEST: By knscm, , G OlerL -- SONDRA E. SMITH, City Cl rk/Tr surer • oV° • E :FAYETTEVILLE: -4- • g . • • �rate s v '•,9s•9RKANSP. J=`oma AGENDA REQUEST FOR: COUNCIL MEETING OF OCTOBER 18, 2011 FROM: CHRIS BROWN, CITY ENGINEER' KIT WILLIAMS, CITY ATTORNEY r ORDINANCE OR RESOLUTION TITLE AND SUBJECT: A Resolution Approving A Settlement Agreement With Patrick J. Tobin, Trustee Of The Patrick J. Tobin Revocable Living Trust U/D/T March 4, 1997, Concerning Condemnation Litigation Filed As Part Of The Township Street Widening Project, In The Total Amount Of $60,000.00 APPROVED FOR AGENDA: [0/(7/f City Engineer Date Deve op nt Services Director Date ssistant Ci Attorne /0/177/) Date 10-17-11 PO4:51 RCVD lMtiC6-- • Date Harp Z.V21/1_11 Date ave evi le THE CITY OF FAYETTEVILLE, ARKANSAS ENGINEERING DIVISION 125 West Mountain Fayetteville, AR 72701 Phone (479) 444-3443 ARKANSAS. www.accessfayetteville.org -; CITY COUNCIL AGENDA MEMO To: Mayor and City Council Thru: Don Marr, Chief of Staff Jeremy Pate, Director, Development Services Department From: Chris Brown, City Engineer Date: October 17, 2011 Subject: A Resolution approving a Settlement Agreement in the Amount of $60,000 with the Patrick J. Tobin Revocable Living Trust, Concerning Condemnation Litigation Filed as part of the Township Widening Project PROPOSAL: The Township Street Widening Project was constructed as part of the Capital Improvement Program. Construction consisting of widening approximately 2100 linear feet of Township Street to 3 lanes from Gregg Avenue to N. College Ave. (Hwy 71B), the installation of an underground storm drainage system including a double 10'x8' reinforced concrete box culvert, the construction of 6 foot sidewalks on both sides of the roadway, and the installation of an 8" waterline on the north side was completed in 2010. Prior to construction beginning in 2009, right of way and easements needed from the Patrick J. Tobin Revocable Living Trust were acquired by eminent domain. Since that time, the City Attorney and other City staff members have worked to try and settle the case in a fair and equitable manner for both the Tobin Trust and the City. Mr. Tobin has offered to settle the case for $60,000 in cash payment, plus widening their driveway closest to Green Acres Road by 10 feet. The attached memo from Assistant City Attorney Jason Kelley provides details of efforts to settle the case over the past two years. RECOMMENDATION: Staff recommends approval of the settlement with Mr. Tobin, to include a total cash payment of $60,000 and widening the driveway nearest to Green Acres Road on the property by 10 feet. BUDGET IMPACT: Approximately $217,273 remains in the Township Street Project, after the $43,500 paid into the Court. The additional $16,500 required to complete the payment to the Tobin Trust, along with the estimated $3,000 in construction costs for driveway widening will be taken from the remaining project funds. Telecommunications Device for the Deaf TDD (479) 521-1316 113 West Mountain - Fayetteville, AR 72701 ave ev le Departmental Correspondence ARKANSAS www.accessfayetteville.org LEGAL DEPARTMENT MEMORANDUM TO: MAYOR & CITY COUNCIL FROM: JASON B. KELLEY, ASST. CITY ATTORNEY CC: KIT WILLIAMS, CITY ATTORNEY CHRIS BROWN, CITY ENGINEER JEREMY PATE, DIRECTOR OF DEVELOPMENT SERVICES DON MARR, CHIEF OF STAFF Kit Williams City Attorney Jason B. Kelley Assistant City Attorney DATE: OCTOBER 17, 2011 RE: TOBIN CONDEMNATION/TOWNSHIP STREET WIDENING PROJECT In 2009, as part of the City's project to widen and improve Township Street, the City Council authorized condemnation litigation against Patrick J. Tobin (as Trustee) for the acquisition of necessary right of way and easements across his property along the north side of Township Street near its intersection with Green Acres Drive. My predecessor, David Whitaker, filed this litigation on behalf of the City nearly two and a half years ago. The City obtained the necessary right of way and easements from the court when the case was filed, and the entire project has long since been completed. To date, the City had been unable to suitably settle the matter of just compensation with Mr. Tobin. The valuation of the City's taking has been a hotly contested issue. For purposes of filing the condemnation litigation, the City obtained an appraisal valuing the taking from Mr. Tobin at $5,665.00. Mr. Tobin obtained his own appraisal which valued the taking at $196,700.00. This wide disparity in values is the reason this case is now in its third year of litigation. After depositions, other written discovery, lengthy settlement discussions, and an attempt at mediation, City staff and I believed it to be prudent to obtain an additional appraisal. After slightly modifying a planned drainage easement, the City's new appraisal (from a third appraiser) valued the taking from Mr. Tobin at $43,500.00. We then modified our condemnation suit and placed an additional $37,835.00 on deposit with the court (Initial $5,665 + Additional $37,835 = Total $43,500). Mr. Tobin has now offered to settle the case for total cash compensation of $60,000.00. It is my opinion that the City should accept this offer. With the wide disparity in appraisals, a jury might try to "split the difference" and return an average amount. This is an unacceptable risk, given the City is now in a position to resolve the matter for a further payment of $16,500.00. We would also save litigation costs if we accept this settlement offer since our appraiser would otherwise have to testify as an expert witness. Mr. Tobin has now agreed to settle for less than one third of his appraiser's valuation. Although I still believe the City's current appraisal is a more accurate valuation, it is only 27.5% less than the offered settlement by Mr. Tobin. Therefore, I recommend that the City Council accept this settlement offer. RESOLUTION NO. A RESOLUTION APPROVING A SETTLEMENT AGREEMENT WITH PATRICK J. TOBIN, TRUSTEE OF THE PATRICK J. TOBIN REVOCABLE LIVING TRUST U/D/T MARCH 4, 1997, CONCERNING CONDEMNATION LITIGATION FILED AS PART OF THE TOWNSHIP STREET WIDENING PROJECT, IN THE TOTAL AMOUNT OF $60,000.00 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves an agreement with Patrick J. Tobin, Trustee of the Patrick J. Tobin Revocable Living Trust u/d/t March 4, 1997, in a total amount of $60,000.00 as full and final settlement of condemnation litigation (City of Fayetteville v. Tobin, Washington County Circuit Court Case No. CV 2009- 2086-4) filed as part of the Township Street Widening Project. Section 2: That the City Council of the City of Fayetteville, Arkansas, in furtherance of the settlement, hereby approves payment of an additional $16,500.00 over and above the $43,500.00 placed on deposit with the court. PASSED and APPROVED this 18th day of October, 2011. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer Oct -14-11 02:53P Ronald G. Woodruff Marsha C. Woodruff October 14, 2011 Fax: 419-575-41 5 ATTN: Jason Kelley WOODRUFF LAW FIRM P. O. Drawer 1866 Fayetteville, Arkansas 72702-1866 (479) 444-8444 Re: City v. Tobin Washington Co. Circuit # CV 09-2086-4 P.01 Office Location: 34 E. Center FAX: (419) 444-6667 Pat Tobin proposes to settle all issues in the above styled and captioned cause of action as follows: $60,000,00, plus the City will widen the driveway on Township by ten foot (i.e, 5 foot on the dist .side and 5 foot on the west). Ron KIT WILLIAMS FAYE'1"1'LVILLE CITY ATTORNEY JASON B. KELLEY Assistant City Attorney Judy Housley Office Manager Phone (479) 575-8313 FAX (479) 575-8315 TDD (479) 521-1316 Ron Woodruff, Esq. Woodruff Law Firm VIA FACSIMILE 479-444-6667 October 17, 2011 Re: City of Fayetteville v. Tobin Washington County Circuit Court Case No. CV 09-2086-4 Dear Ron: raeilye ARKANSAS 113 W. Mountain, Suite 302 Fayetteville, AR 72701-6083 Subject to approval of the Mayor and City Council, the City accepts Mr. Tobin's offer to settle the above -referenced litigation as stated in your faxed letter of October 14, 2011. To summarize, the City will pay total cash compensation to Mr. Tobin in the amount of $60,000.00. The amount of $43,500.00 has already been placed on deposit with the court. The City will agree that all deposit funds should be paid over to Mr. Tobin. The City will make an additional payment directly to Mr. Tobin. in the amount of $16,500.00 (Initial deposit $5,665 + Additional deposit upon amending complaint $37,835 + cash payment directly to Mr. Tobin $16,500 = $60,000). Additionally, the City will widen the driveway on the subject property nearest the intersection of Township Street and Green Acres by ten feet (five feet on each side). We will bring this proposed settlement to the Fayetteville City Council tomorrow, October 18, 2011. Assuming the Council and Mayor approve, I will draft a dismissal precedent for Judge Mason directing all registry funds remaining be paid to Mr. Tobin. I will also begin the process of having a check issued for the additional $16,500.00. We will need deeds signed, and I will make sure those are prepared and forwarded to you for signature. Once the deeds are ready, we will trade the deeds for the check. Please contact me concerning this matter should the need arise. cc: C. Brown Jason B. Kelley Assistant City Attorney 0,.-4°' S03'QO'O0"W 1.72' 6 N#,S 14`h' i �LRV 1'0.0-0.c. \ NO3'00'0O"E $0.16400'W ? 68 22' 25.00' / Scute: CURVE DATA (j1 4=00 20.'59'° O2 0=00'19'05" 1 R=12 964.00' 8=12,964.00 E=79;13' L=71.95 1 C00R0 CHORD., 5? w N84'09 54"W 79:113' 71,95' 0 '=00'01'54" R=12,96 4.00' L=7.18' CHORO' N83'59 24"W 7,18' GREEN ACRES RD I0' CENERAI. U EASE,,EN.i v LEGEND 0 o ® FOUND STATE MONUMENT PROP. RIGHT-OF-WAY (1,742 Sq. Ft.) PROP, PERMANENT DRAINAGE EASEMENT (2,541 Sq.. Ft ) 000 60153 sEs NO3'00'00"E -- 9 12.70 PROP. ACCESS EASEMENT (8,894 Sq. Ft.) EXHIBIT "A" APR. 2007 July 2011: Revised Eosements LAND ACQUISITION AND EASEMENTS FOR PATRICK J. TOBIN REVOCABLE LIVING TRUST