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HomeMy WebLinkAbout17-059CITY OF LAKEVILLE RESOLUTION NO. 17-59 RESOLUTION APPROVING THE CONVEYANCE OF REAL PROPERTY AND DISPENSING WITH STATUTORY REQUIREMENTS FOR REVIEW BY PLANNING COMMISSION OF DISPOSAL OF PROPERTY WHEREAS, the City is proposing to convey certain property ("Property") legally described in and under the terms of the proposed settlement agreement attached as Exhibit "A", between John L. Harrison and Rose A. Harrison ("Harrisons"), Dakota County and the City of Lakeville ("Settlement Agreement") for the purpose of expanding County State Aid Highway (CSAH) 50 (Kenwood Trail) to a four -lane divided highway; WHEREAS, Minn. Stat. 4 462.356, subd. 2 requires that the Planning Commission review the City's proposed acquisitions and dispositions of property, and; WHEREAS, Minn. Stat. 4 462.356, subd. 2 provides for an exception from the Planning Commission review requirement upon 2/3 vote of the City Council dispensing with the requirement and finding that the acquisition or disposal of the property has no relationship to the comprehensive municipal plan. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lakeville: 1. The City Council finds that the disposition of the Property under the Settlement Agreement has no relationship to the comprehensive municipal plan and approves the Settlement Agreement; 2. Review by the Planning Commission of the disposition of the Property is hereby dispensed with; and 3. The Mayor, City Administrator and City Clerk are authorized and directed to execute all documents, and take all appropriate measures to convey the Property under the terms of the Settlement Agreement. ADOPTED by the Lakeville City Council this 15`h day of May 2017 Douglas P. Anderson, Mayor Charlene Friedges, City/�lerk STATE OF MINNESOTA COUNTY OF DAKOTA THE COUNTY OF DAKOTA, (C.P. 50-19) PETITIONER, ILiV, U.S. Bank National Association, a United States of America national banking Association, et al. (John L. Harrison and Rose A. Harrison, Trustees of the John L. Harrison Living Trust) RESPONDENTS. CASE TYPE: CONDEMNATION DISTRICT COURT FIRST JUDICIAL DISTRICT SETTLEMENT AGREEMENT REGARDING PARCEL 64 (469) District Court File No. 19HA-CV-17-574 WHEREAS, Dakota County and the City of Lakeville (collectively the "Partner Agencies") are partnering on County Project (CP) 50-19 to expand County State Aid Highway (CSAH) 50 to a four -lane divided highway from CSAH 60 (185th Street) to CSAH 9 (Dodd Boulevard) in Lakeville; and WHEREAS, County of Dakota commenced the above action in eminent domain to acquire Parcel 64 (469) in fee simple from John L. Harrison and Rose A. Harrison, Trustees of their successors in trust under the John L. Harrison Living Trust, dated June 3, 1994, and any amendments thereto (the "Owner"); and WHEREAS, the Partner Agencies have entered in to a negotiated settlement with Owners for the acquisition of Parcel 64 and all damages and claims that could be asserted by Owner in the above referenced action; and SETTLEMENT AGREEMENT Page 1 of 9 NOW, THEREFORE, THE PARTIES HEREBY AGREE TO SETTLE THE ABOVE REFERENCED MATTER UPON THE FOLLOWING TERMS AND CONDITIONS: 1. The County and Owner will enter into the Stipulation for Dismissal of Parcel 64(469), Order and Partial Judgment (the "Stipulation"), attached as Attachment A. The County and Owner will sign the Stipulation at the closing of the real estate transactions described below and County may then file the Stipulation with the district court. 2. The Parties agree to a land exchange by which Petitioner Dakota County will acquire from Owner in fee simple Parcel 64 (469) identified in Dakota County Road Right - of -Way Map Number 469, recorded in the Office of the Dakota County Recorder as Document No. 3178853, for CP 50-19 and Owners will acquire from the City in fee simple Outlot E, Kenwood Trail Business Park to replace parking an land impacted by CP 50-19. 3. The Parties will close on the land exchange at a date and time mutually agreeable to them prior to May 18, 2017 by exchanging the following documents: (a) At the closing, City shall deliver: (i) an executed quit claim deed to Owner conveying Outlot E, Kenwood Trail Business Park (attached as Attachment B); (ii) an affidavit of seller (attached as Attachment C); (iii) a check payable to the Owner and Leland J. Frankman Law Offices in the amount of $30,000 ("Settlement Amount"); (iii) any other documentation reasonably necessary to accomplish the land exchange. (b) At the closing, Owner shall deliver: (i) an executed trustee's deed to County conveying Parcel 64 (469) (attached as Attachment D); (ii) an executed affidavit of trustee and certificate of trust (attached as Attachment E); (iii) an affidavit of seller (attached as Attachment F); SETTLEMENT AGREEMENT Page 2 of 9 (iv) a right of entry for construction access for the construction of improvement identified in Paragraph 4 below (attached as Attachment G). (iii) any other documentation reasonably necessary to accomplish the land exchange. 4. The Parties further agree as follows: (a) A parking lot, sidewalk, and retaining wall will be constructed by the CP 50-19 contractor, at the Partner Agencies' expense, as shown on Lakeville Dental Site Concept A, dated February 9, 2017 (attached as Attachment H). Owner will provide a right of entry for construction access for this work. The right of entry is for the purpose of constructing the above -stated improvements and restoring the subject property following construction, and shall not be used with the intent of storing Project equipment and materials. The CP 50-19 contractor will install sod on grass areas disturbed by construction. (b) Existing mailbox will be salvaged and relocated by the CP 50-19 contractor, at the Partner Agencies' expense, to location agreed upon by Owners and approved by Lakeville Postmaster. (c) Existing boulders will be salvaged and stockpiled on-site by the CP 50- 19 contractor, at the Partner Agencies' expense, to location agreed upon by Owners and the Partner Agencies. (d) Existing monument sign will be salvaged and relocated by Owners, at the Partner Agencies' expense, provided the work is consistent with a contract entered into by Owners, and approved by the Partner Agencies prior to execution. Owners agree to obtain two estimates for the costs of relocating the monument sign to ensure competitive pricing. Sign will be reinstalled in a manner similar to the existing sign. Owner will pay for any desired betterments or improvement to the existing monument sign. City staff will recommend a variance to sign setback requirements provided the location meets traffic sight visibility requirements. Owner will submit an invoice for reimbursement of the costs to the City. City shall reimburse Owner upon the completion of the work in accordance with the approved contract. Owners understand that payment by City requires time processing of a voucher. (e) Existing parking lot lighting will be salvaged and relocated by Owners, at Partner Agencies' expense. City will also reimburse the Owner for the cost and installation of up to two new light poles, of similar kind and quality as the existing parking lighting, for the new parking area. Owners agree to obtain two estimates for the costs related to the parking lot lighting to ensure competitive pricing and the SETTLEMENT AGREEMENT Page 3 of 9 contract must be the approved by the Partner Agencies prior to execution. Owner will submit an invoice for reimbursement of the costs to the City. City shall reimburse Owner upon the completion of the work in accordance with the approved contract. Owners understand that payment by City requires time for processing of a voucher. (f) Alterations for capping and relocating the existing irrigation system impacted by the permanent right of way acquisition and construction contemplated by this Agreement will be completed by Owners, at City's expense, provided the work is consistent with a contract entered into by Owners, and approved by City prior to execution. Owners agree to obtain two estimates for the irrigation alteration costs. Owner will pay for any desired betterments or improvement to the existing irrigation system. Owner will submit an invoice for reimbursement of the costs to the City. City shall reimburse Owner upon the completion of the work in accordance with the approved contract. Owners understand that payment by City requires time for processing of a voucher. (g) County will reimburse Owner for its appraisal costs up to $5,000 upon receiving a copy of the Owner's appraisal and invoice from a licensed certified general appraiser. (h) The Partner Agencies will pay the cost of recording of all deeds. (i) City and Owner warrant, with regard to the respective parcels to be conveyed, that any real estate taxes payable or deferred in the years prior to the year of closing and installments of special assessments have been paid and further warrant that the first half of real estate taxes payable in the year of closing shall be paid by the respective owners on or before May 15, 2017. 5. Partner Agencies cost sharing obligations associated with payments to be made in association with this Agreement are set forth in the First Amended and Restated Joint Powers Agreement For Engineering, Right of Way Acquisition and Construction concerning CP 50-19 dated March 6, 2017 and the 2030 Dakota County Transportation Plan. 6. In exchange for the above-described consideration, the sufficiency of which is hereby acknowledged, Owners, as well as their heirs, assigns, executors, and agents, hereby fully release and fully discharge the Partner Agencies as well as all of their commissioners, council members, employees, officers, agents, insurers, and assigns from any and all claims, SETTLEMENT AGREEMENT Page 4 of 9 demands, damages, actions, attorneys' fees, losses, causes of action or suits of any kind or nature that could have been asserted in this eminent domain proceeding. 6. The Parties agree to use their best efforts and good faith in carrying out all the terms of this Agreement. The Parties further covenant and agree to execute any and all documents reasonably necessary to effectuate the provisions of this Agreement. 7. If a Party alleges that another Party is in default of this Agreement, that Party shall deliver a notice of default by personal service in accordance with Rule 4.03 of the Minnesota Rules of Civil Procedure with a copied mailed to the Party's attorney and the other Party shall have fifteen (15) days to cure such default. 8. The language used in this Agreement is chosen jointly by the Parties to express their mutual intent and no rule of construction will be applied against any Party, including any rule of draftsmanship. The Parties and the parties expressly agree that any uncertainty or ambiguity existing in the Agreement shall not be interpreted against any of them. Except as expressly limited by this paragraph, all of the applicable rules of interpretation of contract shall govern the interpretation of the Agreement. The term "including" as used in this Agreement is used to list items by way of example and shall not be deemed to constitute a limitation of any term or provision contained herein. 9. The Parties understand and agree that none of the Parties or their attorneys have made any representations or warranties regarding the taxability or non -taxability of any of the consideration exchanged pursuant to this Agreement. 10. This Settlement Agreement represents the complete understanding of the Parties and shall be interpreted in accordance with the laws of the State of Minnesota SETTLEMENT AGREEMENT Page 5 of 9 without regard to its conflict of laws provisions. The Parties acknowledge and agree that any and all disputes arising from or related to this Agreement shall be brought only in Dakota County, Minnesota 11. This Agreement may not be modified, amended or terminated orally. No modification, amendment or termination, or any waiver of any of the provisions of this Agreement, shall be binding unless same is in writing and signed by the Party against whom such modification, amendment or waiver is sought to be enforced. 12. This Agreement may be executed in two or more counterparts, each of which will be deemed an original. A copy, facsimile copy, or electronic copy of this Agreement, including its signature pages, will be binding and deemed to be an original. 13. This agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, representatives, and assigns. 14. The signatories below acknowledge on behalf of their respective entities that each signatory has the fully authority and power to execute this agreement, and that all consents and/or approvals necessary for each respective entity to enter into this agreement have been obtained or waived. Each of the parties hereto further acknowledges and agrees that it entered into this agreement of its own free will and not under any form of duress. SETTLEMENT AGREEMENT Page 6 of 9 AGREED AND ACCEPTED: ATTORNEYS FOR DAKOTA COUNTY JAMES C. BACKSTROM DAKOTA COUNTY ATTORNEY By: r Thomas R. Donel ; leg. No. 349938 Assistant County Attorney Dakota County Government Center 1560 Highway 55 Hastings, MN 55033 651438-4438 Date of Signature: 5 -In -17 SETTLEMENT AGREEMENT Page 7 of 9 AGREED AND ACCEPTED: CITY OF LAKEVILLE Douglas P. Anderson, Ma or Date of Signature: Charlene Friedges, Date of Signature:. SETTLEMENT AGREEMENT Page 8 of 9 AGREED AND ACCEPTED: OWNER: JOHN L. HARRISON AND ROSE A. HARRISON, TRUSTEES OF THE JOHN L. HARRISON LIVING TRUST in L. Harriso ,Tru tee Date of Signature: :� 1 Rose A. Harrison, Trustee Date of Signature: ter' i LELAND J. FRANKMAN LAW OFFICES Bv• Harry A. Frankman Leland J. Frankman Law Offices Attorney at Law, Reg. No. 0310955 900 IDS Center 80 South 8th Street Minneapolis, Minnesota 55=402 612-375-1600 Date of Signature: S -y- ) -� Si:TTLEIIENT AGRKMENT Page 9 of 9 Attachment A CASE TYPE: CONDEMNATION STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT THE COUNTY OF DAKOTA, (C.P. 50-19) PETITIONER, STIPULATION FOR DISMISSAL v. REGARDING PARCEL 64 (469) AND ORDER FOR PARTIAL JUDGEMENT District Court File No. 19HA-CV-17-574 U.S. Bank National Association, a United States of America national banking Association, et al. (John L. Harrison and Rose A. Harrison, Trustees of the John L. Harrison Living Trust) RESPONDENTS. WHEREAS, Dakota County (“County”) and the City of Lakeville (collectively the “Partner Agencies”) are partnering on County Project (CP) 50 -19 to expand County State Aid Highway (CSAH) 50 to a four-lane divided highway from CSAH 60 (185th Street) to CSAH 9 (Dodd Boulevard) in Lakeville; and WHEREAS, County of Dakota commenced the above action in eminent domain to acquire Parcel 64 (469) in fee simple (the “Acquisition”) from John L. Harrison and Rose A. Harrison, Trustees of their successors in trust under the John L. Harrison Living Trust, dated June 3, 1994, and any amendments thereto (the “Owner”); and 2 WHEREAS, the Partner Agencies have entered in to a negotiated settlement with Owners for the Acquisition of Parcel 64 and all damages and claims that could be asserted by Owner in the above referenced action; and WHEREAS, County and Owner have reached a full and final settlement and compromise of any and all claims related to the taking memorialized in that certain Settlement Agreement Regarding Parcel 64 (469) (the “Settlement Agreement”). AGREEMENT NOW, THEREFORE, in consideration of the payment to be made by County to Owner, Trustees Deed from Owner to County for Parcel 64 (469) and other consideration detailed in the Settlement Agreement, the sufficiency of which is hereby acknowledged, the Parties to this Stipulation and their counsel memorialize, agree, and bind themselves as follows: 1. Owner agrees to forever settle, release, waive, and discharge any and all claims for damages occasioned by the acquisition of the property rights described in the condemnation petition, and all damages, if any, to the remaining lands that could have been asserted in this action, and are hereby intending to forever settle any and all claims that have been made or could have been asserted in this action, including any claim for interest, costs, attorney fees and appraisal fees, with respect to the Acquisition. 2. The Court may enter an order dismissing the above-entitled action against Owners as to the Acquisition on its merits, with prejudice, and without further notice or cost to either party. 3 3. The undersigned state and represent that they have fully read this Stipulation, and that they each know and understand the consequences and legal effect thereof. This Stipulation and the Settlement Agreement contains the entire agreement of the Parties with regard to the matters set forth herein. 4. The Parties agree that this Stipulation may be executed in separate counterparts which, taken together, shall be and comprise one agreement. 5. The persons signing this Stipulation in their representative capacities represent and warrant that, by signing this Stipulation, it is their intent to bind their respective principal to the terms and conditions set forth herein, that the persons signing in their representative capacity have been authorized to bind their respective principal to such terms, and that it is the respective principal’s intent to be so bound. 6. The Effective Date of this Stipulation shall be the date of its execution by the last party to sign. [SIGNATURE PAGES TO FOLLOW] 4 DAKOTA COUNTY ATTORNEY’S OFFICE JAMES C. BACKSTROM DAKOTA COUNTY ATTORNEY By: ______________________________ Thomas R. Donely; Reg. No. 349938 Assistant County Attorney Dakota County Government Center 1560 Highway 55 Hastings, MN 55033 651 438-4438 Date of Signature: _____________ 5 OWNER: JOHN L. HARRISON AND ROSE A. HARRISON, TRUSTEES OF THE JOHN L. HARRISON LIVING TRUST By: ______________________________ John L. Harrison, Trustee Date of Signature: ______________ By: ______________________________ Rose A. Harrison, Trustee Date of Signature: _____________ LELAND J. FRANKMAN LAW OFFICES By: ______________________________ Harry A. Frankman Attorney at Law, Reg. No. ___________ 900 IDS Center 80 South 8th Street Minneapolis, Minnesota 55402 612-375-1600 Date of Signature: _______________ Attachment A ORDER IT IS HEREBY ORDERED that the above Stipulation is accepted by the Court and that judgment shall be entered dismissing Parcel 64 (469) and Respondents, John L. Harrison and Rose A. Harrison, Trustees of their successors in trust under the John L. Harrison Living Trust, dated June 3, 1994, and any amendments thereto, from the above-entitled action on the merits and with prejudice, and without further cost or notice to either Party. LET JUDGMENT BE ENTERED FORTHWITH Date: Judge of District Court I HEREBY CERTIFY THAT THE ABOVE ORDER CONSTITUTES A PARTIAL JUDGMENT OF THE COURT. Dated this day of , 2017. HEIDI CARSTENSEN COURT ADMINISTRATOR By Deputy Attachment C Page 1 of 2 AFFIDAVIT OF SELLER STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) ____________________________________________________ on behalf of the City of Lakeville (the “City”), being first duly sworn, on oath state: 1. The City is the owner of the land located in Dakota County, Minnesota described as follows: Outlot E, Kenwood Trail Business Park, according to the record plat thereof in the Office of the Dakota County Recorder. 2. Said City’s principal place of business is at 20195 Holyoke Avenue, Lakeville MN 55044, and said City’s principal place of business during the past ten years has been at the same address. 3. There have been no: a. Bankruptcy or dissolution proceedings involving the City during the time period in which the City has had any interest in the land described above (the “land”); b. Unsatisfied judgments of record against said City nor any actions pending in any courts, which affect the land; and c. Tax liens filed against the City. 4. Any bankruptcy or dissolution proceedings of record against counties with the same or similar names, during the time period in which the City had any interest in the land, are not against the City. 5. Any judgments or tax liens of record against counties with the same or similar name are not against the City. 6. To the best of Affiant’s knowledge, there have been no labor or materials furnished to the land for which payment has not been made in full. 7. To the best of Affiant’s knowledge, there are no unrecorded contracts, leases, easements or other agreements or interests relating to the land entered into by the City. 8. To the best of Affiant’s knowledge, there are no persons in possession of any portion of the land other than pursuant to a recorded document. 9. To the best of Affiant’s knowledge, there are no encroachments or boundary line questions affecting the land. Page 2 of 2 To the best of Affiant’s knowledge, the matters herein stated are true. CITY OF LAKEVILLE The foregoing instrument was acknowledged before me this _____ day of ______________, 2017, by ______________________________________________ of the City of Lakeville, a body politic and corporate under the laws of the State of Minnesota, on behalf of the body politic and corporate. Notarial Stamp or Seal (or other title or rank) _________________________________________ Notary Public My commission expires:_____________________ THIS INSTRUMENT WAS DRAFTED BY: Dakota County Attorney’s Office 1560 Highway 55 Hastings, MN 55033 Attachment F AFFIDAVIT REGARDING SELLER(S) STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) John L. Harrison and Rose A. Harrison, being first duly sworn, on oath say that: 1. They are the persons named as the Grantors in the documents, dated May 16, 2000, as trustees of their successors in trust under the John L. Harrison Living Trust, dated June 3, 1994, and any amendments thereto, regarding the following parcels (premises): Parcel 64, as shown on DAKOTA COUNTY ROAD RIGHT -OF-WAY MAP NO. 469, according to the map on file and of record in the Dakota County Recorder’s Office. 2. Said persons are of legal age and under no legal disability, and currently reside at: 10213 196TH Way W Lakeville, MN 55044 3. There have been no: a. Bankruptcy, divorce or dissolution proceedings involving said persons during the time said persons have had any interest in the above premises; b. Unsatisfied judgments of record against said persons nor any actions pending in any courts, which affect said premises; or c. Tax liens against said persons; except as stated herein:None 4. Any bankruptcy, divorce or dissolution proceedings of record against parties with the same or similar names during the time period in which the above-named persons have had any interest in the premises are not against the above-named persons. 5. Any judgments or tax liens of record against parties with the same or similar names are not against the above-named persons. 6. There has been no labor or materials furnished to the premises for which payment h as not been made. 7. There are no unrecorded mortgages, contracts, leases, easements, or other agreements or interests relating to the above premises except as stated herein:None 8. There are no persons in possession of any portion of the premises other than pursuant to a recorded document except as stated herein: None 9. There are no encroachments or boundary line questions affecting the premises of which Affiants have knowledge. 2 10. The persons have not received medical assistance from the State of Minnesota or any county medical assistance agency. Affiants know the matters herein stated are true and make this Affidavit for the purpose of inducing the acceptance of title to the premises. Subscribed and sworn to before me this ______ ________________________________________ day of _________________________, 2017. ________________________________________ ______________________________________ SIGNATURE OF PERSON TAKING ACKNOWLEDGMENT THIS INSTRUMENT WAS DRAFTED BY: Dakota County Attorney’s Office NOTARIAL STAMP OR SEAL Dakota County Judicial Center 1560 Highway 55 Hastings, MN 55033 (651) 438-4438 Attachment G RIGHT OF ENTRY AGREEMENT John L. Harrison and Rose A. Harrison, Trustees of their successors in trust under the John L. Harrison Living Trust, dated June 3, 1994, and any amendments thereto, the owner(s) of certain lands in Dakota County hereby grant(s) the City of Lakeville and Dakota County Transportation Department their employees, contractor(s) and agent(s) the right to enter upon the property located at 20171 Icenic Trail, Lakeville, MN 55044 (PIN 220290034060)for the purpose parking lot, sidewalk, and retaining wall construction and restoring remaining vegetation as similar to that existing prior to construction as possible. It is further understood that this right of entry does not permit Dakota County to construct any improvements other than those required under the construction plans for Dakota County Transportation Department Project No.50-19, as finally approved, for the construction of the parking lot, sidewalk, and retaining wall depicted in the attached site plan. It is understood that the City of Lakeville and Dakota County or their contractors will restore the disturbed areas to a condition as nearly as possible to that which existed prior to the start of construction and do all related work in accordance with the final plans as approved by the Dakota County Engineer. It is further understood that this right of entry does not constitute a waiver on behalf of the owner(s) to any claim for damages caused by construction activities permitted by this Agreement. No equipment shall be stored on site if not being used for purposes expressly permitted by the Agreement. This right of entry shall expire on May 18, 2018 Grantor(s) Dated this ___ day of ___________, 2017. ___________________________ John L. Harrison, Trustee ___________________________ Rose A. Harrison, Trustee Attachment G