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Home My WebLink About2018-12-03-K01D Settlement Agreement_ARC Phase 5. AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: December 3, 2018 AGENDA ITEM:Consideration of approval of a resolution approving Settlement Agreement related to Alice’s Road Corridor Improvement Project, Phase 5 FORMAT:Consent Agenda SYNOPSIS INCLUDING PRO & CON: The agreement addresses right-of-way acquisition for the Alice’s Road Corridor Improvement Project, Phase 5. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:$355,300.00 (amount awarded by Dallas County Compensation Commission) COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: The City Attorney has reviewed the agreement and finds it satisfactory. RECOMMENDATION: Approve the resolution. ATTACHMENTS: I. Proposed Resolution II. Settlement Agreement PREPARED BY:Becky Schuett REVIEWED BY: PUBLIC NOTICE INFORMATION – NAME OF PUBLICATION: DATE OF PUBLICATION: K1D THE CITY OF WAUKEE, IOWA RESOLUTION 18- APPROVING SETTLEMENT AGREEMENT RELATED TO ALICE’S ROAD CORRIDOR IMPROVEMENT PROJECT, PHASE 5 IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a duly organized Municipal Organization; AND, WHEREAS, as part of the Alice’s Road Corridor Improvement Project, Phase 5 (the “Project”), a Settlement Agreement (the “Agreement”) has been negotiated between the City of Waukee and Atlantic Bottling Company; AND, WHEREAS, the Agreement addresses certain matters among the parties related to property condemnation; AND, WHEREAS, the City Attorney has reviewed the Agreement and finds it satisfactory. NOW THEREFORE BE IT RESOLVED by the City of Waukee City Council in session this 3rd day of December, 2018, that it hereby approves the Settlement Agreement related to Alice’s Road Corridor Improvement Project, Phase 5. ____________________________ William F. Peard, Mayor Attest: ___________________________________ Rebecca D. Schuett, City Clerk RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN Anna Bergman R. Charles Bottenberg Courtney Clarke Shelly Hughes Larry R. Lyon 1 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT is entered into this ____ day of November, 2018, by and between the Plaintiff, Atlantic Bottling Company (hereinafter “Plaintiff”) and the Defendant, the City of Waukee, Iowa, as follows: RECITALS: 1.The Taking. Whereas, on January 31, 2018 the Defendant acquired through condemnation proceedings a parcel of land owned by the Plaintiff. This parcel of land is fully described in the Notice of Condemnation dated December 19, 2017 with acquisition plats attached thereto as Exhibit A. 2.Initial Deposit of Damages. Whereas, pursuant to the findings of the Dallas County Compensation Commission, the Defendant caused to be deposited in the Office of the Sheriff of Dallas County, Iowa, a warrant in the amount of $355,300.00 payable to the Plaintiff. By Court Order dated April 3, 2018 the amount awarded by the Compensation Commission was released to Plaintiff. 3.Appeal to District Court. Whereas, the Plaintiff filed an Appeal with the Iowa District Court in and for Dallas Count pursuant to Iowa Code Section 6B.33. 4.Settlement. Whereas, prior to trial of this Appeal, the parties have agreed upon a mutually satisfactory resolution of the Appeal and hereby memorialize their agreement in writing. IT IS THEREFORE AGREED AS FOLLOWS: 5.Final Settlement Terms. In full and final settlement of the Appeal now pending with the Iowa District Court in Dallas County, the parties agree to the following: a)Full and Complete Settlement Payment. On or about April 3, 2018, the condemnation jury award was released and paid to the Plaintiff. Plaintiff acknowledges receipt of payment in full and final settlement of any and all claims whether known or unknown that Plaintiff may have in any way related, directly or indirectly, to the taking and/or the appeal thereof. 2 6.No Further Proceedings. The parties to this Settlement Agreement acknowledge that the Defendant initiated eminent domain procedures to obtain this property, resulting in a settlement of this matter, as outlined in this Settlement Agreement. The parties have executed this Settlement Agreement with the understanding that this settlement is in lieu of further proceedings in connection with condemnation. 7.No Relocation Assistance Available. This Settlement Agreement is an acknowledgment by both parties that the Plaintiff is not entitled to relocation assistance. 8.Full Cooperation. The parties agree all authorized personnel shall sign the papers and those documents necessary to effectuate the terms and conditions of this Settlement Agreement. 9.Release of Claims. The Plaintiff accepts the terms and conditions set out in this Agreement as full and complete settlement of all causes, claims, damages arising out of or resulting from the January 31, 2018 condemnation, and does hereby waive any additional claim for attorney fees, appraisal fees, interest, or expenses arising out of said condemnation and shall dismiss its case with prejudice. Court costs shall be borne by the party incurring them. The Dismissal with Prejudice is attached hereto as Exhibit B. 10.Plaintiff’s Representations. The Plaintiff has sold its property that remained after the taking and appeal and represents and warrants that Plaintiff has not assigned or otherwise transferred or encumbered any right it may have as it pertains to the taking and/or appeal. Plaintiff represents and warrants that it has the full right and authority to dispose and otherwise completely settle the taking and appeal and to dispose of the same in accordance with this agreement as a full and complete settlement. [signature pages to follow] 3 CITY OF WAUKEE, IOWA By: _______________________________ William Peard, Mayor Attest:_______________________________ Tim Moerman, City Administrator STATE OF IOWA, COUNTY OF DALLAS SS: On this _____day of ________________, 2018, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared William Peard, as Mayor, and Tim Moerman, as the City Administrator, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of the City of Waukee, Iowa; that the seal affixed to the foregoing instrument was signed and sealed on behalf of the corporation by authority of its City Council as contained in a Roll Call No. __________, by resolution of the City Council of the City of Waukee on the _____day of ______________, 2018, and that the Mayor and City Administrator as such officers acknowledged the execution of said instrument to be the voluntary act and deed of the municipal corporation, by it voluntarily executed. _________________________________________ Notary Public in and for the State of Iowa 4 ATLANTIC BOTTLING COMPANY By__________________________________ _____________________, President By: _________________________________ ____________________, ____________ STATE OF IOWA, COUNTY OF ____________ SS: On this ______day of __________________, 2018, before me, the undersigned, a Notary Public in and for said County and State, personally appeared _________________________, to me personally known, who, being by me duly sworn, did say that they are the President and ______________________, respectively, of Atlantic Bottling Company; that no seal has been procured by the said corporation; that said instrument was signed on behalf of said corporation by authority of its Board of Directors; and that the said _________________________, as such officers, acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. __________________________________________ Notary Public in and for the State of Iowa