HomeMy WebLinkAbout42-13 RESOLUTIONRESOLUTION NO.42-13
A RESOLUTION APPROVING A SETTLEMENT AGREEMENT WITH
GLEN DAVID WILSON, TRUSTEE, TIMOTHY HINKLE, TRUSTEE, AND
LINDA HINKLE REGARDING CONDEMNATION LITIGATION FILED AS
PART OF THE N. GARLAND AVENUE WIDENING AND IMPROVEMENT
PROJECT
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
the agreement with Glen David Wilson, Trustee, Timothy Hinkle, Trustee and Linda Hinkle, as
full and final settlement of condemnation litigation (City of Fayetteville v. Wilson, et al.,
Washington County Circuit Court Case No. CV 2012-656-2) filed as part of the N. Garland
Avenue Widening and Improvement Project.
Section 2: That the City Council of the City of Fayetteville, Arkansas, in furtherance of
the settlement, hereby understands its obligation to adopt at a future date a street vacation of
portions of Mt. Comfort Road and James Street as described in the settlement.
PASSED and APPROVED this 5t' day of March, 2013.
APPROVED:
ATTEST:
By: Y• B ��
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LAD A , ayor SONDRA E. SMITH, City Clerk/Treasurer
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City of Fayetteville Staff Review Form
City Council Agenda Items
and
Contracts, Leases or Agreements
-5-6- b
City Council Meeting Date
Agenda Items Only
Chris Brown Engineering Development Services
Submitted By Division Department
$ _ $ - Transportation Bond Program
Cost of this request Category / Project Budget Program Category / Project Name
_ $ - Land Acquisition
Account Number Funds Used to Date Program / Project Category Name
_ $ - Sales Tax Capital Improvements
Project Number Remaining Balance Fund Name
Budgeted Item �x Budget Adjustment Attached
Finance and Internal Services Director
ou- -1A(3 Previous Ordinance or Resolution #
Date
Original Contract Date:
Original Contract Number:
Date
S^?.013
Date Received in C�jyj_ ,I P 0 i, K CV -
Clerk's Office
Received in ��
Mayor's Office
Revised January 15, 2009
Zayle te;l1le
ARKANSAS
CITY COUNCIL AGENDA MEMO
To: Mayor Jordan and City Council
Thru: Don Marr, Chief of Staff ��QQ
Jeremy Pate, Director of Development Services`
From: Chris Brown
Date: February 14, 2013
THE CITY OF FAYETTEVILLE, ARKANSAS
DEPARTMENT CORRESPONDENCE
City Council Meeting of March 5, 2013
Subject: Approval of a Resolution authorizing settlement of the Condemnation Case with Glen David
Wilson on Garland Avenue (North to Melmar) Water and Sewer Relocation Project.
PROPOSAL:
Improvements to Garland Avenue (Highway 112) are planned as part of a City of Fayetteville and Arkansas
State Highway and Transportation Department (AHTD) partnering project. Our agreement with AHTD
provides that the City is responsible for 50% of the construction cost, up to $1.5 million, and all of the cost of
right of way acquisition and relocation of utility facilities.
Construction of roadway improvements, including construction of a 4-lane roadway with intermittent medians,
bike lanes, pedestrian sidewalks, and three new signals, will be administered by AHTD. This construction is
currently in the very preliminary stages, and is planned for completion in mid-2014.
Prior to the roadway construction, all utilities, including those owned by the City of Fayetteville Water and
Sewer Division, were relocated out of the limits of the planned roadway construction. In order to complete the
relocation, utility easements were needed from several property owners, including property owned by the Glen
David Wilson Trust and Linda Hinkle. This property includes the Harp's Grocery Store and the vacant lot to
the north of Harp's.
City staff was unable to acquire the necessary easement on this property by negotiation; therefore, it was
necessary to acquire it by condemnation. The City Council authorized condemnation in March of 2012, and the
City Attorney filed the condemnation complaint with the Circuit Court and received the Order of Possession
soon thereafter. A deposit of $30,700, representing the appraised value of the easement, was made into the
Registry of the Court at the time of filing.
Since that time, City staff and representatives of Mr. Wilson have worked together to come to a proposed
settlement, which is detailed in the attached document. If approved by the City Council, the settlement
provisions will include:
THE CITY OF FAYETTEVILLE, ARKANSAS
1) The property owners agree to dedicate a utility easement (at no cost to the City) just outside the right of
way of Garland Avenue. This easement was intended to be dedicated as part of the development of the
Harp's store, but the easement document was never recorded. The easement area has been used by
utilities since the store was built, and the signatures of the property owners on the easement document
simply confirms and ratifies the easement.
2) The City agrees to vacate the right of way of Mount Comfort Road, as depicted by the cross -hatched
areas in the attached Exhibit `B". This vacation will occur after Mount Comfort Road is re -aligned to
Holly Street, and the existing area of Mount Comfort is no longer needed for public street purposes. A
utility easement will be retained as needed for use by public utilities.
3) The City will receive the $30,700 deposited with the Court back, to be returned in the project account.
RECOMMENDATION:
Staff recommends approval of the settlement..
BUDGET IMPACT:
This action will reduce the cost of the project by $30,700.
RESOLUTION NO.
A RESOLUTION APPROVING A SETTLEMENT AGREEMENT WITH
GLEN DAVID WILSON, TRUSTEE, TIMOTHY HINKLE, TRUSTEE, AND
LINDA HINKLE REGARDING CONDEMNATION LITIGATION FILED AS
PART OF THE N. GARLAND AVENUE WIDENING AND IMPROVEMENT
PROJECT
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
the agreement with Glen David Wilson, Trustee, Timothy Hinkle, Trustee and Linda Hinkle, as
full and final settlement of condemnation litigation (City of Fayetteville v. Wilson, et al.,
Washington County Circuit Court Case No. CV 2012-656-2) filed as part of the N. Garland
Avenue Widening and Improvement Project.
Section 2: That the City Council of the City of Fayetteville, Arkansas, in furtherance of
the settlement, hereby understands its obligation to adopt at a future date a street vacation of
portions of Mt. Comfort Road and James Street as described in the settlement.
PASSED and APPROVED this 5 h day of March, 2013.
APPROVED:
ATTEST:
I0
LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer
eDepartmental Correspondence
RKANSAS
Kit Williams
CityAttorney
MEMORANDUM Jason B. Kelley
Assistant City Attorney
TO: MAYOR & CITY COUNCIL
FROM: JASON KELLEY, ASST. CITY ATTORNEY
CC: KIT WILLIAMS, CITY ATTORNEY
DATE: FEBRUARY 15, 2013
RE: GLEN DAVID WILSON, ET. AL, CONDEMNATION SETTLEMENT PROPOSAL
I am pleased to present a very advantageous condemnation settlement related to the
necessary taking of a utility easement on the "Harps property" along N. Garland Avenue which
will result in the city obtaining an easement deed and saying nearly $31,000.00 on the Proiect.
In 2012, the Council authorized our office to file an eminent domain lawsuit to obtain a
utility easement on the property as part of the N. Garland Avenue Widening and Improvement
Project. The City's appraiser valued the taking at $30,700.00, which was the sum placed on
court deposit when the lawsuit was fled. During negotiation and after historical research, it was
agreed by the parties that a 25 foot utility easement along the property and adjacent to the
Garland Avenue right -of way was to have been dedicated to the City as part of the original large-
scale development approval for the Harps construction in the late 1980s. No record exists
showing this was ever formally accomplished. In exchange for all the current property owners
signing a utility easement deed to the City clarifying the 25 foot easement, the City agreed,
subject to your approval, to vacate the portions of Mt. Comfort Road and James Street which the
City and Highway Department had already planned to destroy and remove as part of the
realignment of the Mt. Comfort Road/Garland Avenue intersection at Holly Street. The City will
retain a utility easement along the vacated area for utilities already in place in the area.
In short, this settlement allows the City to obtain the necessary easement (which we
already should have had) for the N. Garland Avenue Widening and Improvement Project without
additional monetary cost to the Project, so long as we vacate the portions of Mt. Comfort and
James Street we already planned to destroy and remove. The $30, 700.00 currently on court
deposit would be returned to the City.
Assuming this settlement is accepted by you, a separate street vacation agenda item will
be presented in the future which the Council will be contractually obligated to adopt, since it will
be an approved term of settlement in the condemnation litigation. Needless to say, I recommend
the approval of this settlement.
SETTLEMENT FRAMEWORK
The City of Fayetteville, subject to approval of its Mayor and City Council, and Glen
David Wilson, Trustee, hereby enter into this settlement framework for purposes of settling all
issues related to utility easement acquisition at issue in eminent domain litigation currently
pending in Washington County Circuit Court Case No. CV 12-656-2 (City of Fayetteville v.
Wilson, Trustee et al.). The settlement framework is as follows:
1. Glen David Wilson, Trustee (hereinafter "Wilson") agrees to execute a General
Utility Easement Deed and to assist in obtaining the signatures of Timothy Hinkle and Linda
Kay Hinkle (hereinafter "Hinkles"), to an agreed upon and existing twenty-five foot (25') utility
easement along property jointly owned by Wilson and the Hinkles. A copy of the easement deed
and description is attached to this settlement framework as Exhibit "A".
2. The City of Fayetteville (hereinafter "Fayetteville"), agrees to vacate portions of
the current Mount Comfort Road and James Street, described as Tracts A and B in the attached
Exhibit `B", within ninety (90) days of activation of the new traffic signal at the newly relocated
Mount Comfort Road and Garland Avenue intersection which is being constructed as part of the
Garland Avenue Widening and Improvement Project (hereinafter the "Project"). Wilson and
Fayetteville agree that Fayetteville will retain utility easements through Tracts A and B for
existing utilities currently located in the area to be vacated. Fayetteville states that the re-
alignment of James Street and Mount Comfort Road to connect to Holly Street as part of the
Project will render Tracts A and B of no use to the public for street right of way.
3. Wilson and Fayetteville agree that once the General Utility Easement Deed
(Exhibit "A") is fully executed by Wilson and the Hinkles and delivered to Fayetteville, that the
parties will agree to a dismissal of the pending eminent domain suit, Washington County Circuit
Court Case No. CV 12-656-2. Any court registry deposit for estimated compensation related to
the litigation shall be returned by the court to Fayetteville.
Aen "David Wilson, Tres ee Chris Brown
F tte ille C' y E1191 e'r
y Smi , . sq. ara'B. Kelley
they for Glen l vid Wilson, Trustee Assistant City Attorney of Fayetteville
Date: e2 7 . &,V /, 0-S Date: � - 30 - t 3
Garland Avenue Improvements
Parcel No. 765-13768-000
GENERAL UTILITY EASEMENT
BE IT KNOWN BY THESE PRESENTS:
WHAT Geri David Wilson, Trustee, Glen David Wilson Trust Agreement
Of 2A01, u/t/d July 13, 2001 (/2 Interest), Linda Kay Hinkle (1/4 interest) and
Timothy C. Hinkle, Trusteeof the Timothy C. Hinkle "crust uld/t December'1,
1995 (1/4 interest), hereinafter calied GRANTOR, for and in consideration of the
>um of One Dollar'($1.00)`and other good and valuable consideration, the receipt of
+vtiich is hereby acknowledged, does hereby GRANT, SELL and CONVEY unto the
Ay Of Fayetteville, Arkansas, a municipal corporation, hereinafter called
>RANTEE, and unto Grantee's<suiccessors and assigns, a permanent easement for
he purpose of construction, maintenance,, repair end/or replacement, enlargement
ind, operations of roadway,` drainage, sidewalks, and general utilities including water
tnd/or sanitary seiner pipe line or lines, manholes, natural gas, electrical power,
alephone fiber optic cables) and .television communication line or lines, and
Ippurtenances thereto, On over, across, and under the following described land
�� ifftt.�err it fhl. r�huat {.e 14: IAJt__.i___ — .. -._ � .. -
PROPERTY DESCRIPTION: (Deed Ref. 2007-00023583, seventh description, and Deed Refs. 2002-094498 and
2007-42911)
of the Northeast Quarter (NE9f) of Section Eight (8), Township Sixteen(16)
/ashington County, Arkansas, and being more particularly ticscribed as.
iE) corner of said forty -acre tract, run North 190.0 feet, thence Mst 36:80
hence running W"sst 401.51 feet; thence North 0"39'00" East 376,04 feet,
19069' 14" East 369.56 feet to a point on the right-ofway line of Mt.,Comfort
)f Mt Comfort Road and Highway 112 the following: South 20"44'25" East
to the POINT OF BEGINNING, and containing 3.437 acres, more or less;
,ay, if any.
PERMANENT EASEMENT DESCRIPTION:
A part of the Southeast Quarter (SEY) of the Northeast Quarter (NEY/4)_of Section 8> Township 16 North
Range 30 West and being more particularly described as fellows, to -wit: Commencing at the Northeastcorner
of said Section 8 thence South 021136'57" West 2,079.97 feet, thence North 87'23'03" West 70.51 feet to the
Westerly right-, af way pf Arkansas State l-ighway 112 (Garland Avenue). thence along said riahr»nrwi"„ on, tr,
1
��t ti i. r c, ecc s, crick FLc rcavury bdrU rignc-Qr-way rvortn t3! ":3t3' CfS West 24.79
feet; `thence North 02°04' 49' East $49,92 feet to the Point of Beginning and containing 6,381 square feet,
more or less:
Together with the rights, easements, and privileges in or to said lands which may be required for the full enjoyment of
the rights herein granted.
TO HAVE AND TO HOLD unto said Grantee, its successors and assigns, until the use of said permanent easement is
relinquished, abandoned or vacated and so long as such pipe line or lines, electrical power, telephone and/or television lines or
cables, manholes and/or appurtenances thereto shall be maintained, together with free ingressto and egress from the real
estate first herein above described for the uses and purposes herein above set forth.
The said Grantor is to fully use and enjoy the said premises except for the purposes hereiibefore granted to the said
Grantee, which hereby agrees to bury all pipes, lines and/or cables where feasible, to a sufficient depth so as not to interfere
with cultivation of soil, and that manholes will be constructed flush with the surface of the ground except in bottom lands where
they shall be at a height above water.
The Grantor agrees no to erect any buildings or structures in said permanent easement.
The Grantee shall have the right to construct additional pipe lines, electric power lines, telephone and/or television lines
or cables upon the above described easement at any time in the future and agrees to pay any damages as a result of such
future construction as set out in this easement.
The consideration first above recited as being paid to Grantor by Grantee is in full satisfaction of every right hereby
granted. All covenants and agreements herein contained shall extend to and be binding upon the respective heirs, legal
representatives, successors and assigns of the parties hereto.
GENERAL UTILITY EASEMENT
Page 2 of 3
It is hereby understood and agreed that the party securing this document in behalf of the Grantee is without authority to
make any covenant or agreement not herein expressed.
WITNESS the execution hereof on this the / 5rday of _, 2013.
Glen David Wilson Trust Agreement of 2001,
u/t/d July 13, 2001
c
By-,
n avi ison, Tr &tee Linda Kay Hinkle
Timothy C. Hinkle Trust u/d/t December 1, 1995
By:
Timothy C. Hinkle, Trustee
ACKNOWLEDGMENT
STATE OF ARKANSAS
ss.
COUNTY OF WASHINGTON
BE IT REMEMBERED, that on this date, before the undersi ned; a duty commissioned and acting Notary Publicwithin
and for said County and State, personally appeared Glen David W1 son, Trustee, Glen David Wilson Trust Agreement of
2001, u/t/d July 13, 2001, to me well known as the person who executed thy; foregoing document, and who stated and
acknowledged that he had so signed, executed and delivered said 'instrurnent for the consideration, umes;and purposes therein
mentioned and set forth. I w1
WITNESS my hand and seal on this ' day of _ ' L 201'3.
MY COMMISSION EXPIRES:
LISA NEELEY
£.ruYt•- MYCOMMISSION412347756
r I `a�ft1»iF 1—? 16
ACKNOWLEDGMENT
STATE OF ARKANSAS )
ss.
COUNTY OF WASHINGTON
BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within
and for said County and State, personally appeared Linda Kay Hinkle, to me well known as the person who executed tile
foregoing document, and who stated and acknowledged that she had so signed, executed and delivered said instrument for the
consideration, uses and purposes therein mentioned and set forth.
WITNESS my hand and seal on this day of , 2013.
MY COMMISSION EXPIRES:
Notary Public
GENERAL UTILITY EASEMENT
Page 3 of 3
ACKNOWLEDGMENT
STATE OF ARKANSAS
j)
COUNTY OF WASHINGTON SS.
BE IT REMEMBERED, that on this date, before the undersigned, a duly, commissioned and acting Notary Public Within
and for said County and State, personally appeared Timothy C. Hinkle, Trustee of the Timothy C. Hinkle Trust u/d/t
December 1,1995, to me well known as the person who executed the foregoing document, and Who stated and acknowledged
that he had so signed, executed and delivered said instrument far the consideration, uses and purposes therein mentioned and
set forth.
WITNESS my hand and seal on this w _ day of _, 2013.
MY COMMISSION EXPIRES:
Notary Public
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01/16/2013 11:59 8146434441 TIM HINKLE PAGE 02
GENERAL UTILITY EASEMENT
Page 2 of 3
It is hereby understood and agreed that the parry securing this document in behalf of the Grantee is without authority to
Make any covenant or agreement not herein expressed.
WITNESS the execution hereof on this the 10 day of 9-c!Ll , 2013.
Glen David Wilson Trust Agreement of 2001,
u/t/d July 13, 2001
By:
We-; Divid Wilson, Trustee Linda Kay Hinkle
Timothy C. Hinkle Trust u/d/t December 1, 1995
By:
Timothy C. in , Trustes
ACKNOWLEDGMENT
STATE OF ARKANSAS i
COUNTY OF WASHINGTON 1 ss.
BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Public within
and for said Coun and State, personally appeared Glen David Wilson, Trustee, Glen David Wilson Trust Agreament of
2001, u/t/d July Z3, 2001, to me well known as the person who executed the foregoing document, and who stated and
acknowledged that he had so signed, executed and delivered said Instrument for the consideration, uses and purposes therein
mentioned and set forth.
WITNESS my hand and seal on this _ _ .._ day of , 2013,
MY COMMISSION EXPIRES:
Notary Pu IiC
ACKNOWLEDGMENT
STATE OF ARKANSAS I
COUNTY OF WASHINGTON i ss•
BE IT REMEMBERED, that on this date, before the undersigned, a duly Commissioned and acting Notary Publlo within
and for said County and State, personally appeared Linda Kay Hinkle, to me well known as the person who elxeruted the
foregoing document, and who stated and acknowledged that she had so signed, executed and delivered said Instrun'ient fbr the
consideration, uses and purposes therein mentioned and set forth.
WITNESS my hand and seal on this_ day of
MY COMMISSION EXPIRES:
�'—----�NotaryNEW—
01/16/2013 11:59 8146434441 TIM HINKLE PAGE 03
GENERAL UTILITY EASEMENT
Page 3 of 3
ACKNOWLEDGMENT
STATE OF, Pennsylvania
COUNTY OF Huntingdon ss.
BE IT REMEMBERED, that on this date, before the undersigned, a duly commissioned and acting Notary Pubilowithin
and for said County and State, personally appeared Timothy C. Hinkle, Trustee of the Timothy C. Hinkle Trust uldh
December 1,1995, to me well known as the person who executed the foregoing document, and who stated and acknowledged
that he had so signed, executed and delivered said instrument for the consideration, uses and purposes therein mentioned and
set forth.
WITNESS my hand and seal on this 16tb day of Jaro.taxy , 2Q13.
MY COMMISSION EXPIRES:
May 11, 2014
COMMONWEALTH QE PENNSYLVANIA
Notarial Seal
AMBER D. REED, Notary Public
Huntingdon Soto, Huntingdon County
My Commission Expires May 11. 2014
GLEN DAVID WILSON TRUST
765-08235-000
M NE
9•l6-S4
GLEN DAVID WILSON TRUST
765-13768-000
Inst. No. 2007-23583
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