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Home My WebLink About11.b. Settlement Agreement with Menomy/HertogMay 13. 2004 1 :25PM HANSEN MCCANN & OCON No-2083 P. 2 SETTS MMSIT AGREE This Agreerrrent is made this day of , 2004 by and among Edward B. McMenomy and Louise M..McMenomy, husband and wife CMcMenomye), Samuel H. Hertogs and Shirley I Hertogs, husband and wife ("Hertoge) and City of Rosemount, a Minnesota municipal corporation C City c'ta s A. Prior to December 6 2 2002, McMenomys and Hertogs were the fee owners of certain real estate located in the City of Rosemount, County of Dakota, State of Minnesota, and legally described on the attached Exhibit A (the "Property). B. iu 2002, the City commenced an action in eminent domain entitled City of Rosemount v. Christopher George Ostertag. et al. Dakota County Court File No. 19 -C8 -02 -9367 (the "Condemnation Action's for the purpose of acquiring a portion of the Property in fee title as well as a temporary easement over a portion of the Property. The land acquired in that action is referred to in this Agreement as "the Taking" and is described in the attached Exhibit B. The City acquired title to the Taking pursuant to Minn. Stat. § 117.042 by paying its approved appraised value of the Taking to McMenomys and Hertogs, in the amount of $98 The Condemnation Action remains pending for the purpose of determining just compensation for the Taking. The Taking is depicted on the attached Exhibit F. C. McMenomys and Hertogs remain the fee owners of that portion of the Property not taken in the Condemnation Action (the "Remainder Property'). The Remainder Property is legally described on the attached Exhibit C and is depicted on the attached Exhibit F. D. The City has constructed certain roadway and utility improvements as part of Connemara Trail, Phase II Improvements, City Project No. 343. On November 3, 2003, the City's city council levied special assessments in the amount of $329,646.00 against the Remainder Property for Project No. 343. McMenomys and Hertogs have appealed from the levy of assessments in an action entitled Samuel H. ffidngs, et al. v. City of Rosemount Dakota County District Court File No. 19 -C1 -03 -10712 (the "Assessment Appeal Action!). The Assessment Appeal Action remaiars pending. E. The McMenomys and Hertogs are the fee owners of a 33 -foot wide strip of land adjacent to the Taking that lies within vacated Biscayne Avenue (the "Strip Parcel'). The City desires to acquire title to the Strip Parcel, which is legally described on the attached Exhibit D. F. On May 5, 2003, McMenomys and Hertogs granted a right of entry to the City to enter onto the Remainder Property for the purpose of reconstruction of Biscayne Avenue and construction of a sidewak Under the right of entry, the City agreed to acquire a permanent street, utility and drainage easement over approximately 5,221 square feet of the Remainder Property (the "Permanent Easement') and also agreed to acquire a temporary construction easement over approximately 47,950 square feet of the Remainder Property (the CAR-247296A P S220- 115 May.13. 2004 1:25PM HANSEN MCCANN & OCON No.2083 P, 3 "Termporary Easement'). All construction within the Temporary Easement area has been completed. The Permanent Easement is legally described on the attached Exhibit E. G. The parties desire to settle and compromise the various claims related to the Condemnation Action, the Assessment Appeal Action, and the Permanent Easement and Temporary Easement, Terms of Agreement I . ReciW . The recitals above are incorporated into and made a part of this Agreement. 2. ScWement Amount The City agrees to pay jointly to Samuel H. Hertogs and Edward B. McMenomy the amount of $100,000.00 in compromise of the Condemnation Action and all claims related to the Permanent Easement and Temporary Easement. The sum paid is in settlement of all claims for compensation, interest, reimbursement of appraisal fees, and any other costs and expenses in connection with the Taking, Permanent Easement and Temporary Easement and the Strip Parcel. The City agrees to pay the Settlement Amount at a Closing to be held on a date and time to be mutually agreed upon by the parties, but no later than 10 business days after the date of execution of this Agreement. 3. Conveyances Hertogs and McMenomys agree to convey to the City fee simple title to the Strip Parcel by Warranty Deed, subject only to existing easements. Hertogs and McMenomys also agree to convey to the City the Permanent Easement by an instrument to be prepared by the City at the City's cost. The conveyances described in this paragraph will occur at the Closing referenced in paragraph 2 of this Agreement. 4. Assessment Appeal Action Hertogs and McMenomys agree to dismiss the Assessment Appeal Action with prejudice. The parties agree to execute a Stipulation of Dismissal and Order for Dismissal and deliver the same to the City at the Closing. City will be responsible for obtaining the Court's signature on the Order and for filing the dismissal with the court administrator. 5. Condemnation Action Hertogs and McMenomy agree to stipulate to a final award of commissioners in the Condemnation Action, in an amount to be specified by Hertogs and McMenomy but which shall not exceed $160,000.00 (it being understood by the parties that a reasonable portion of the Settlement Amount must be attributable to interest on the Taking and compensation for the Strip Parcel, Permanent Easement and Temporary Easement). Hertogs and McMenomys agree to execute and deliver the stipulation to award at the Closing referenced in paragraph 2 of this Agreement. The stipulation shall include mutual waivers of the right to appeal from the award. The City shall be responsible for filing a final certificate in the Condemnation Action and for discharging the notice of lis pendens of the Condemnation Action. 6. Pondin . The City agrees that the Remainder Property may be developed with on -site ponding, provided that any on -site ponding must comply with all requirements under city ordinances or other applicable law or regulation. To the extent that the required level of 2 May -13, 2004 1 :26PM HANSEN MCCANN & OCON No-2083 P. 4 ponding cannot be achieved on-site, the Remainder Property may utilize the City's regional storm water pond that has been constructed within the Taking area, provided that the developer of the Remainder Property will be required to pay all applicable fees and charges under City ordinances with respect to any use by the Remainder Property of the City's regional storm water pond. 7 Noticrs. Any notice, demand, request or other communication which may or shall be given or served by the parties d WI be deemed to have been given or served on the date the same is deposited in the United States Mail, registered or certified, postage prepaid and addressed as follows: A. If to MCMenornys or Hertogs: Edgard B. McMenomy and Samuel I Hertogs c!o Edward McMenomy, Jr. 14450 South Robert 'frail Rosemount, MN 55068 With copy to: Reid Hans Attorney at Law 14450 South Robert Trail Rosemount, MN 55068 B. If to City: City of Rosemount Attn: Andy Bmtzler 2875145' St. W. Rosemount, MST 5506$ In witness of the above, the undersigned have executed this Agreement as of the day and year written above. [remainder of this page intentionally left blank] 3 May,13. 2004 1:26PM HANSEN MCCANN & OCON No.2083 P. 5 Sipature Page for McMenomys and Hertogs - Sai5iud fi Hex'togs Shirley J. Herpegs , L- I Z �,, g � �-, -7- Edward B. McMenomy wise M. McMenomy ^` 5 May•13. 2004 1:26PM HANSEN MCCANN & OCON No.2083 P 6 Signature Page for City MY OF ROSEMOUNT By Its Mayor By Its City Clerk 5 May.13. 2004 1 :26PM HANSEN MCCANN & OCON No.2083 P - 7 EXHIBIT A Legal Description of Property Before Taking All that part of the Northeast Quarter of the Southeast Quarter of Section 20, Township 115, Mange 19, Dakota County, Minnesota, described as follows: Commencing at the Southeast comer of said Quarter Quarter Section; thence West on the South line thereof 256.5 fee to the Easterly right-of-way Litre of the Chicago- Milwaukee -St. Paul and Pacific Railroad Company, said right -of -way being 100 feet wide measured at right angles a distance of 50 feet on each side of the center line of said railroad company's main track as now placed. Thence Northeasterly along said Easterly line to its intersection with the East line of said Quarter Quarter Section; thence South on the East lime of said Quarter Quarter Section, to the point of beginning. All that part of the Southeast Quarter of the Southeast Quarter of Section 20, Township 115, Range 29, Dakota County, Minnesota, described as follows: Beginning at the Southeast comer of said Quarter Quarter Section; thence 'West along the South line thereof 885 feet to the Easterly right -of -way line of the Chicago- Milwaukee-St. Paul and Pacific Railroad Company, said right -of -way being 100 feet wide measured at right angles a distance of 50 feet on each side of the center line of said railroad Company's main track as now placed; thence Northeasterly along said Easterly right-of-way line 1,449 feet to the North line of said Quarter Quarter Section; thence East on said North line 256.5 feet to the Northeast comer of said Quarter Quarter Section; thence South on the East line of said Quarter Quarter Section 1328.9 feet to the point of beginning, according to the United States Goverment Survey thereof and situate in Dakota County, Minnesota. CAH 2d7296v1 RSZ20 -115 May.13. 2004 1:26PM HANSEN MCCANN & OCON No.2083 P. 8 EXHIBIT S Legal Description of Taking Fee simple absolute title to that part of the above - described property which lies Northerly of a line drawn parallel with and distant 50.00 feet Southerly of the following described line: Commencing at the Southeast corner of said Southeast Quarter of the Southeast Quarter; thence North 00 degrees 02 minutes 34 seconds West, assumed bearing along the East line of said Southeast Quarter of the Southeast Quarter, a distance of 1006.13 feet to the point of beginning of said line to be hereinafter described; thence North 68 degrees 56 minutes 19 seconds West a distance of 343.51 :feet to the Easterly right -of -way line of the Chicago Milwaukee --St. Paul, and Pacific Railroad Company and said line there terminating. And A temporary easement for construction purposes over, under, across and through that part of Property described as follows: A strip of land 40.00 feet in width over that part of said Property the Northeasterly line of which is contiguous with the parallel lire of the above- described fee taking. Said strip of land is to extend by its full width from the Westerly right -of -way lime of Biscayne Avenue to said Southeasterly railroad right -of -way line. Said temporary easement to expire December 31, 2003. CAH- 24n96v1 . B5220 -115 May-13. 2004 1 :26PM HANSEN MCCANN & OCON No.2083 P. 9 FMUIT C Legal Description of Remainder Property CAH PS220-115 May-13. 2004 1:26PM HANSEN MCCANN & OCON No.2083 P. 10 FI)MMIT b Legal Description of Scrip Parcel CAR- 247296YI R5220 -115 May.13. 2004 1 :26PM HANSEN MCCANN & OCON No.2083 P. 11 RXEUI I' E Legal Description of Penuanent Easement CAH- 247296v1 RS220 -115 May-13. 2004 1:26PM HANSEN MCCANN & OCON No.2083 P. 12 K MaMrr F Map Depicting Location of Parcels CAH- 2472-96vt RS220 -115