HomeMy WebLinkAboutKevin Kalsem Settlement Agreement & Release - 7-1-24SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is made and entered into by and
between Kevin Kalsem, as Trustee of the Roger T. Kalsem Revocable Trust, its members,
managers, agents, employees, successors and assigns (collectively "ROGER T. KALSEM
TRUST") and the City of Waterloo, Iowa, its officers, employees, agents, predecessors, heirs,
executors, successors, related entities and assigns (collectively "City"). ROGER T. KALSEM
TRUST and the City will be referred to jointly as the "Parties."
WHEREAS, ROGER T. KALSEM TRUST is the owner of land situated in Black Hawk
County, Iowa; and
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WHEREAS, the City is an Iowa municipal corporation located in Black Hawk County,
Iowa; and
WHEREAS, the City ordered construction of certain public improvements in connection
with its Hammond Avenue Bridge Replacement Project ("Project"), which required the acquisition
of private property; and
WHEREAS, an Application for Condemnation affecting a portion of ROGER T.
KALSEM TRUST'S property was filed by the City in May 2022. The Application for
Condemnation sought the following legally -described property interests from portions of ROGER
T. KALSEM TRUST'S property:
Portions of Parcel 1 described as follows:
Fee Title:
That part of Parcel "M", Document No. 2005-18840 in the Black Hawk County
Recorder's Office, which is also part of the Northwest Quarter (NW 1/4) of Section
Twenty-three (23), Township Eighty-eight North (T88N), Range Thirteen West
(RI3W), of the Fifth Principal Meridian, Waterloo, Black Hawk County, Iowa,
described as follows:
Commencing at the Northwest corner of aforesaid Northwest Quarter (NW 1/4);
thence S00 09.37"E Fifty-nine and Seventy-nine Hundredths (59.79) feet along the
West line of said Northwest Quarter (NW 1/4); thence N89"50'23"E
Thirty-three (33.00) feet to the Northwest corner of aforesaid Parcel "M" and to the
point of beginning; thence S00"09'37"E Six Hundred and Ninety-eight I-Iundredths
(600.98) feet along the West line of said Parcel "M" to the Southwest corner of said
Parcel "M"; thence N89°25'37"E Fifty-four and Eight Hundredths (54.08) feet
along the South line of said Parcel "M"; thence N15°30'19"W One Hundred Ten
and Two Hundredths (110.02) feet; thence N00°13'04"W Two Hundred (200.00)
feet; thence N04°29'22"W One Hundred Seventy-one and Eighty-two Hundredths
(171.82) feet, thence N22"24'52"E Twenty-four and Thirty-five Hundredths
(24.35) feet; thence N00°09'37"W Ninety-nine and Thirty-four Hundredths (99.34)
feet to the North line of aforesaid Parcel "M"; thence N86"32'04 "W Twenty-one
and Eighteen Hundredths (21.18) feet along said North line to the point of
beginning containing 0.34 acres.
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Temporary Construction Easement:
n Easement for temporary construction purposes over, under and across that part of
Parcel "M", Document No. 2005-18840 in the Black Hawk County Recorder's
Office, which is also part of the Northwest Quarter (NW 1/4) of Section Twenty-
three (23), Township Eighty-eight North (T88N), Range Thirteen West (RI3W), of
the Fifth Principal Meridian, Waterloo, Black Hawk County, Iowa, described as
follows:
Commencing at the Northwest corner of aforesaid Northwest Quarter (NW 1/4);
thence S00"09'37"E Fifty-nine and Seventy-nine Hundredths (59.79) feet along the
West line of said Northwest Quarter (NW 1/4); thence N89"50'23"E Thirty-three
(33.00) feet to the Northwest corner of aforesaid Parcel "M"; thence S00"09'37"E
Six Hundred and Ninety-eight Hundredths (600.98) feet along the West line of said
Parcel "M" to the Southwest corner of said Parcel "M", thence N89"25'37"E Fifty-
four and Eight Hundredths (54.08) feet along the South line of said Parcel "M" and
to the point of beginning; thence N15"30'19"W One Hundred Ten and Two
Hundredths (110.02) feet; thence N00" 13'04"W Two Hundred (200.00) feet; thence
N04"29'22"W One Hundred Seventy-one and Eighty-two Hundredths (171.82)
feet; thence N22"24'52"E Twenty-four and Thirty-five Hundredths (24.35) feet;
thence N00"09'37"W Ninety-nine and Thirty-four Hundredths (99.34) feet to the
North line of aforesaid Parcel "M"; thence S86"32'04"E Thirty and Seven
Hundredths (30.07) feet along said North line; thence S00"09'37"E Two Hundred
Forty-two and Forty-two Hundredths (242.42) feet; thence SO4"29'22"E Forty-
seven and Eighty-two Hundredth (47.82) feet; thence S00"13'04"E One Hundred
Seventy-eight and Ninety-seven Hundredths (178.97) feet; thence S20"09'25' E
One Hundred Thirty-six and Fourteen Hundredths (136.14) feet to aforesaid South
line; thence S89"25'37'W Forty-seven and Forty-two Hundredths (47.42) feet along
said South line to the point of beginning containing 0.46 acres.
AND
Portions of Parcel 4 described as follows:
Fee Title:
That part of Tract "A", Hawkeye Heights Subdivision, which is also port of the
Northeast Quarter (NE 1/4) of Section Twenty-two (22), Township Eighty-eight
North (T88N), Range Thirteen West (R13W), of the Fifth Principal Meridian,
Waterloo, Black Howk County, Iowa, described as follows:
Commencing at the Northeast corner of aforesaid Northeast Quarter (NE 1/4);
thence S00°09'37"E Forty and Fifty-six Hundredths (40.56) feet along the East line
of said Northeast Quarter (NE 1/4); thence S89°50'23"W Thirty-three (33.00) feet
to the intersection of the West right-of-way line of Hammond Avenue with the
South right-of-way line of Orange Road and to the point of beginning; thence
S00°9'37"E Five Hundred Seventy-four and Twenty-seven I-lundredths (574.27)
feet along said West right-of-way line to the Northeast corner Parcel "A",
Document No. 2017-15794 in the Black Hawk County Recorder's Office; thence
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S88°52'53"W Fifty-five and Thirty-one Hundredths (55.31) feet along the North
line of said Parcel "A"; thence N09°13'52"E Twenty-eight and Three Hundredths
(28.03) feet; thence N05°13'52"E Fifty-nine and Forty-five Hundredths (59.45)
feet; thence NO1°20'S5"E Four Hundred Three and Fifty-seven Hundredths
(403.57) feet; thence N01°24129"W Eighty-four and Thirty-five Hundredths
(84.35) feet to aforesaid South right-of-way line; thence N88°52'53"E Thirty-six
and Thirty-six Hundredths (36.36) feet along said South right-of-way line to the
point of beginning containing 0.54 Acres.
Temporary Construction Easement
An Easement for temporary consti uction purposes over, under and across that part
of Tract "A", Hawkeye Heights Subdivision, which is also port of the Northeast
Quarter (NE 1/4) of Section Twenty-two (22), Township Eighty-eight North
(T88N), Range Thirteen West (R13 W), of the Fifth Principal Meridian, Waterloo,
Black Hawk County, Iowa, described as follows:
Commencing at the Northeast corner of aforesaid Northeast Quarter (NE 1/4);
thence S00°09'37"E Forty and Fifty-six Hundredths (40.56) feet along the East line
of said Northeast Quarter (NE 1/4); thence S89"50'23"W Thirty-three (33.00) feet
to the intersection of the West right-of-way line of Hammond Avenue with the
South right-of-way line of Orange Road; thence S00"09'37"E Five Hundred
Seventy-four and Twenty-seven Hundredths (574.27) feet along said West
right-of-way line to the Northeast corner Parcel "A", Document No. 2017-15794 in
the Black Hawk County Recorder's Office; thence S88°52'53"W Fifty-five and
Thirty-one Hundredths (55.31) feet along the North line of said Parcel "A" and to
the point of beginning; thence N09°13'52"E Twenty-eight and Three Hundredths
(28.03) feet; thence N05°13'52"E Fifty-nine and Forty-five Hundredths (59.45)
feet; thence N01°20155"E Four Hundred Three and Fifty-seven Hundredths
(403.57) feet; thence N01 °24'29"W Eighty-four and Thirty-five Hundredths
(84.35) feet to aforesaid South right-of-way line; thence
S88°52'53"W Thirty (30.00) feet along said South right-of-way line; thence
S01°24'29"E Eighty-three and Seventy-eight Hundredths (83.78) feet; thence
SO1°20'55"W Four Hundred One and Eighty-three Hundredths (401.83) feet,
thence S05°13'52"W Fifty-seven and Thirty-nine Hundredths (57.39) feet; thence
S09°13'52"W Thirty-two and Forty-six Hundredths (32 46) feet to aforesaid North
line of aforesaid Parcel "A' ; thence N88°52'53"E Thirty and Fifty Hundredths
(30.50) feet along said Noith line to the point of beginning containing 0.40 Acres.
Property subject to any and all easements of record.
(Hereinafter "Condemned Property Interests").
WHEREAS, The Chief Judge of the First Judicial District appointed Black Hawk County
compensation commissioners to assign the value of the acquisitions; and
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WHEREAS, on June 28, 2022, the appointed Black Hawk County compensation
commission met and awarded ROGER T. KALSEM TRUST $38,381, for the Condemned
Property Interests ("Condemnation Award"); and
WHEREAS, on July 18, 2022, the ROGER T. KALSEM TRUST filed an appeal of the
award in District Court in and for Black Hawk County, which is pending as Black Hawk County
Case No. CVCV145905 ("Lawsuit"); and
WHEREAS, the Parties desire to settle all matters related to and arising out of the Project
and Condemnation Award.
NOW, THEREFORE, for and in consideration of the mutual releases, covenants, and
undertakings hereinafter set forth, and for other valuable consideration, which each party
acknowledges, it is agreed as follows:
1. PAYMENT. In exchange for the promises and releases made herein and subject
to City Council approval, the City shall pay the sum of Fifty Thousand and Five Hundred Dollars
and No Cents ($50;500) to ROGER T. KALSEM TRUST. This amount shall be paid as follows:
(a) ROGER T. KALSEM TRUST shall request release and accept the Condemnation
Award check in the amount of $38,381.00, which the City previously deposited with
the Black Hawk County Clerk of Court at the time of appeal; and
(b) Following City Council approval of this Agreement and dismissal of the lawsuit by
the Plaintiff no later than July 30, 2024, the City shall pay $12,119.00 to the Roger T.
Kalsem Revocable Trust.
The City shall mail payment to legal counsel for the Trust no later than July 30, 2024, provided
the conditions of Council approval and timely dismissal of the lawsuit have first been met.
2. DRIVEWAY ACCESS The City will agree to replace the two entrances on Parcel
1 at their current location using the type and quantity of entrance material that is currently in place.
3. VALID CONSIDERATION. With the exception of the payments issued pursuant
to the Condemnation Award, ROGER T. KALSEM TRUST expressly agrees and acknowledges
that the payments described above are not payments to which ROGER T. KALSEM TRUST or its
agents are otherwise entitled. Except as stated above in Paragraph 1 of this Agreement, ROGER
T. KALSEM TRUST shall not be entitled to any compensation, remuneration, benefits, or other
payments from the City.
4. DISMISSAL. In exchange for the additional payment provided to ROGER T.
KALSEM TRUST pursuant to Paragraph 1, ROGER T. KALSEM TRUST will take the steps
necessary to dismiss the Lawsuit with prejudice, no later than July 30, 2024.
5. TAXES. ROGER T. KALSEM TRUST is not relying on any information provided
by the City, its employees, or its attorneys concerning the tax consequences of payments made
under this Agreement. ROGER T. KALSEM TRUST acknowledges and agrees that ROGER T.
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KALSEM TRUST is solely and entirely responsible for the payment and discharge of all federal,
state, and local taxes, if any, which may, at any time, be found to be due upon or as a result of any
amount that is paid by the City under this Agreement. ROGER T. KALSEM TRUST agrees to
indemnify, defend, and hold the City harmless from any claim or liability asserted against the City
for any taxes and related penalties or interest, relating to the manner in which payments of the
payments under Paragraph 1 are allocated and paid under this Agreement.
6. LIABILITY NOT ADMITTED. The Parties each agree and acknowledge that
this Agreement is the result of a compromise and shall never be construed as an admission by
either Party of any liability, wrongdoing, or responsibility on its part or on the part of its
predecessors, successors, assigns, agents, representatives, parents, subsidiaries, affiliates officers,
directors, or employees. The Parties expressly deny any such liability, wrongdoing, or
responsibility. It is expressly understood and agreed that neither Party shall be deemed to be a
"prevailing party" for the purposes of any fee -shifting statute, rule, or agreement.
7. RELEASE OF ALL CLAIMS The Parties, and both of their respective agents,
employees, representatives, successors, and assigns, hereby release and forever discharge each
other, its elected representatives, members, directors, officers, executives, employees, insurers,
predecessors and/or successors in interest, attorneys, agents, heirs, successors and assignees, past
or present ("Released Parties"), of and from any and all matters, claims, complaints, charges,
demands, damages, causes of action, debts, liabilities, controversies, judgments, and suits of every
kind and nature whatsoever arising out of the Project, Condemnation Award, the Lawsuit, or
related to the Condemned Property Interests which are known or reasonably known as of the date
of this Agreement, including but not limited to, the exercise of eminent domain authority and the
value of damages related to the condemnation of property interests held by ROGER T. KALSEM
TRUST. If either Party violates this Agreement by suing the other Party for any reason for which
suit is precluded by this Agreement, the breaching Party agrees to pay all costs and expenses
incurred by the other Party in defending such a lawsuit, including reasonable attorneys' fees as
described in Paragraph 7 of this Agreement.
8. ATTORNEYS' FEES AND COSTS. The Parties agree that their execution of
this Agreement resolves all claims by either party against the other for attorney's fees and expenses
related to any claim released herein. ROGER T. KALSEM TRUST shall be responsible for court
costs associated with the Lawsuit. In the event of any legal action for breach or to enforce the
terms of this Agreement, the losing party shall reimburse the prevailing party for all reasonable
attorney fees and all litigation costs and expenses that the prevailing party incurred in enforcing
their rights hereunder.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement,
written and oral, of the Parties hereto, and it supersedes and replaces all prior negotiations,
proposed agreements, understandings, representations, and agreements, written or oral. No Party
hereto is relying on any statement or representation of any other Party hereto except those
expressly set forth herein.
10. BINDING ON SUCCESSORS. This Agreement inures to the benefit of, and is
binding on, the Parties and their respective heirs, personal representatives, successors, and assigns.
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11. WARRANTY OF NO ASSIGNMENT. ROGER T. KALSEM TRUST warrants
and represents that it has neither made nor suffered to be made any assignment or transfer of any
right, claim, demand, or cause of action covered by the release in this Agreement and that it is the
sole and absolute owner thereof
12. EXECUTION IN COUNTERPARTS. This Agreement may be executed in one
or more counterparts, all of which, taken together, shall constitute one and the same instrument.
Scanned or faxed copies of signatures shall be the equivalent of originals.
13. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the state of Iowa.
14. SEVERABILITY. If any provision of this Agreement shall be finally determined
to be invalid or unenforceable by a court of competent jurisdiction, that part shall be ineffective to
the extent of such invalidity or unenforceability only, without in any way affecting the remaining
parts of said provision or the remaining provisions of this Agreement.
15. JOINTLY DRAFTED. Because the Parties have had a full opportunity to
consider this Agreement and negotiate its terms, this Agreement is deemed to have been jointly
prepared by the Parties, and any uncertainty or ambiguity existing in it shall not be interpreted
against any Party as the primary drafter of the Agreement.
16. AMENDMENT AND MODIFICATION. This Agreement may not be amended,
modified, or terminated, nor may any obligation under it be waived, orally. No amendment,
modification, termination, or waiver shall be effective for any purpose unless it is in writing and
signed by the Party against whom enforcement is sought.
17. NON -WAIVER. No delay or failure by any Party to exercise any right under this
Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any
other right, unless otherwise expressly provided herein.
18. APPROVAL OF CITY COUNCIL. This Agreement is expressly conditional
upon the approval of the Waterloo City Council. This Agreement is of no force and effect unless
and until such approval by formal action of the City Council occurs.
19. NOTICE OF RIGHT TO RENEGOTIATE The City hereby gives notice of the
condemnee's right to renegotiate construction or maintenance damages not apparent as of the date
of the signing of this settlement agreement, in accordance with Iowa Code section 6B.52.
IN WITNESS WHEREOF, the Parties have fully executed this Agreement as of the date
of the last signature below.
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CITY OF WATERLOO, IOWA:
Lh1C/ �(/iTli SIGNED
By: ./
Naive: Quentin Hart
Title: Mayor
Date:
7/1/2024
ATTEST:
By: Kelley FelcIile
Name: Kelley
SIGNED
Title: City Clerk
Date: 7/1/2024
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KEVIN KALSEM, AS TRUSTEE ON
BEHALF OF THE ROGER T. KALSEM
TRUST:
By: Wale r 77 Ka1.`,to
u� Ccib+F 11CtJ5�`
Name: .�c� �, � ieekJ; H C. &41 iSe car
Title: / YL�s-e-e_
Date: 7 /a U 1 q