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HomeMy WebLinkAbout2000-09-11 CC Meeting Packet Enclousre - Vacation of Roadway Easement s y Oak Park Heights Request for Council Action Meeting Date: September 11, 2000 Agenda Item Title: Vacation of Roadway Easement Time Required: 10 Minutes Agenda Placement: Public Hearings Originating Department/Requestor: Community Development Requester's Signature: Action Requested : Approval of Easement Vacation Background/Justification: (Please indicate if any previous action has been taken or if other public bodies have advised) A public hearing to consider the vacation of a sixty (60) foot roadway easement was set for this meeting by the City Council at its meeting of 8/22/2000. The vacation of this easement is necessary for the approval of the PUD/CUP for theValley View Estates 4`I'Addition. bi(1) I II////AA'' V�/O '1/ Date/Time Received City Administrator/Date Financial Implications $ Budget Line Item Budgeted: Yes No Funding: Levy Other Administrative Recommendation: Approve Deny No Recommendation Comments: S:\SHARED\Forms\COUNCIL ACTION REQUEST.doc LIlYUF • OAK I. ,RK HEIGHTS 14168 North 37th Street • P.O. Box 2007 • Oak Park Heights, MN 55082-2007 • Phone: 651/439-4434 4 • Fax: 651/439-0574 CITY OF OAK PARK HEIGHTS NOTICE OF PUBLIC HEARING TO CONSIDER VACATION OF A SIXTY (60) FOOT ROADWAY EASEMENT WITHIN OUTLOT B, VALLEY VIEW ESTATES, WASHINGTON COUNTY, MINNESOTA The City Council of the City of Oak Park Heights will hold a public hearing on Monday, September 11, 2000 at 7:00 PM at the Oak Park Heights City Hall located at 14168 Oak Park Boulevard to consider a vacation of a sixty Oudot B, Valley View Estates, Washington County, Minnesota. Said roadway easement within connects Upper 56th Street North to 57th Street North within Oak Park Heights. A easement of a map identifying the roadway easement area will be available for review at Ci Hall before the public hearing. ty All who wish to comment are asked to attend and be heard. Dated August 23, 2000. BY ORDER OF THE CITY COUNCIL \\\ Torn Melena, City Administrator Tree City U.S.A. iS-`n0 14:47 NAC 612 595 9837 P.©2/03+ . Iac� RTHWEST ASSOCIATED ED CONSULTANTS INC COMMUNITY PLANNING - DESIGN - MARKET RESEARCH N \amyl MEMORANDUM TO Tom Melena -ROM: Scott Richards DATE: August 16, 2000 RE Oak Park Heights -Valley View Estates 4th Addition FILE NO: 798.02 - 00.09 As you are aware, the consideration of the preliminary plat, final plat, conditional use permit/planned unit development (CUP/PUD), and site plan approval for the 4th Addition ro Valley View Estates was not acted upon by the City Council at their August 8, 2000 7,eeting. In order to act upon a concept plan for the CUP/PUD, an affirmative vote of four- fifth's of the City Council is required. Only three members of the Council were present that evening. The consideration by the Council on this matter was held over the following meeting of August 22, 2000. Randy Kurth of Kurth Surveying has recognized the need to vacate a roadway easement 4,ithin the property being considered for Valley View Estates 4th Addition (see attached). l he easement has appeared in the memorials of the certificate of title for this property. Ns part of the consideration of the Valley View Estates 4th Addition, the City Council should vacate the roadway easement through a resolution. ac: Kris Danielson WAYZATA BOULEVARD. SUITE 555 ST. LOUIS PARK, MINNESOTA 55416 NE 612 - 595 - 9636 FAX 612 - 595 - 9337 EMAIL NAC @WINTERNET.COM PAW: y �d' , , 1 612 595 9837 P.03;03 - s, N 02 2'40— W — ... 746.72 , iiiiisl I `� ii • 1 ; ri,a, A VENUE NOR MATO _ a D.NC r< • N 01 '47'04 • V 401 94 P jIri ? -- 153. 74 - 9 e► • r�v� Q --- Z _ I s I Imo, LI F.4 ►0 �_�� I{ M 1 7Y -f y , I ' r1�t ~ a. Nii) it I . 1 iii O t fA S ., 11-' '601J9y >4 4044w 1 ... n'1li) 4\ O' 117181111111=M1111 II lid 111. 1 ' 5a'45 -___- L41 S 0212'40` E • 1a I 4`97. 1;-""--"1/4"- � _� -no2'12'4Dr( 0 11 :.--e.... �� i 9 ' 15 64.79-1 + �111/1 / 111i 0 PI tn}- !Ya 1 P %. •�1 i V i I'1 t * 1-1 r - iI 10282801 t �.._ 'J Z c ( in'. Il t n " ', •; 1111 1 11 IIIHII� :;tl ~ Yin i tt23 ; • Qp — , LL 5 w ;� C> 1 I Iv1 1,- al 1 ti �'1 i 1 .al y I`00 1` r'G � : ESCROW AGREEMENT This Escrow Agreement (this "Agreement") entered into as of this -7.; *2 day of corpci.,O , r y3-t- , 2000, by and between the City of Oak Park Heights, a municipal oration ("City"), Carriage Homes, Inc., a Minnesota corporation ("Carriage Homes"), and Central Bank of Stillwater, a Minnesota banking corporation, as escrow agent hereunder (the "Escrow Agent"). RECITALS WHEREAS,City has commenced a lawsuit against Carriage Homes and St.Croix Land Co., a Minnesota corporation ("St. Croix") in Washington County District Court captioned City of Oak Park Heights,a municipal corporation,Plaintiff v. Carriage Homes,Inc., a Minnesota corporation, and St. Croix Land Co., a Minnesota corporation,. Defendants, Court File No. he "Lawsuit")wherein City claims it is owed reimbursement by Carriage Homes and St. Croix,jointlyt and severally, for fees and costs incurred by the City which remain unreimburscd in the amount of $9,990.64. WHEREAS, City is willing to dismiss with prejudice St. Croix as a Defendant from the Lawsuit if Carriage Homes places the sum of S11,196 into escrow as security for payment of any final non-appealable judgment that may be entered in favor of the City against Carriage Homes in the Lawsuit. NOW, THEREFORE, in consideration of the Foregoing and for other good and valuable consideration, the receipt and adequacy of which is acknowledged by each of the parties hereto, the parties agree as follows: 1. Appointment of Escrow Agent. The City and Carriage Homes hereby appoint the Escrow Agent as escrow agent hereunder, and the Escrow Agent hereby accepts such appointment. The duties of the Escrow Agent hereunder are limited solely to the holding of the Escrowed Funds (as hereinafter defined), the payment and delivery of the same as provided herein and such other duties as are specifically set forth herein. No duties or obligations not expressly set forth herein shall be implied to the Escrow Agent. The Escrow Agent's duties shall otherwise be subject to Section 4 hereof. 2. Escrowed Funds. Simultaneously with the execution and delivery hereof, Carriage Homes, has deposited with the Escrow Agent for purposes of this Agreement the sum of 511,196. the receipt of which by the Escrow Agent is hereby acknowledged. Such sum, together with any interest or other income earned thereon("Interest"), is herein referred to as the "Escrowed Funds." Interest shall accrue until the final distribution of Escrowed Funds hereunder, at which time it shall be payable to the City and/or Carriage Homes, as the case may be, on a proportionate basis with the amount of Escrowed Funds (excluding Interest)paid to such entities hereunder pursuant to Section 3 hereof. The City and Carriage Homes agree that all such Interest shall be allocated for tax purposes to the parry to whom such amounts are paid. The Escrow Agent shall have no responsibility for any tax allocation nor for any tax reporting hereunder. ODylA\CA GWimp-c'.LL%W.IPU,.lflSDvL UN try I)''C'2.C.1 4 • • • 3. Settlement of Escrowed Funds. The Escrow Agent shall retain possession of the Escrowed Funds and shall disburse the Escrowed Funds in accordance with the following instructions: (a) The Escrowed Funds shall be disbursed in accordance with any written instructions executed by both City and Carriage Homes instructing the Escrow Agent as to how to disburse all or any portion of the Escrowed Funds; and (b) The Escrowed Funds shall be disbursed to the City at the time and for the amount of any judgment entered pursuant to a final and non-appealable order of a court having competent jurisdiction, or entered pursuant to a final decision in a binding arbitration agreed to by City and Carriage Homes, or entered pursuant to a final order of such a court for which the period in which an appeal can be filed has passed, and the balance of the Escrowed Funds, if any, shall be simultaneously disbursed to Carriage Homes. 4. Other Provisions Regar'dine the Escrow Agent. (a) Duties and Responsibilities of Escrow Agent. The City and Carriage Homes acknowledge and agree that the Escrow Agent (i) shall not be obligated to take any legal or other action hereunder which might in its judgment involve any expense or liability unless it shall have been furnished with acceptable indemnification; and(ii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument,statement,request or document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof. (b) Indemnification of Escrow Agent. The City and Carriage Homes aclanowledge that the Escrow Agent is acting solely as an escrow agent at their request and for their convenience and that the Escrow Agent shall not be liable to any of the other parties hereto for any act or omission on its part unless taken or suffered with the Escrow Agent's gross negligence or willful misconduct. The City and Carriage Homes jointly and severally agree to defend, indemnify and hold the Escrow Agent harmless from and against all costs, claims and expenses (including reasonable attorneys' fees) arising out of or incurred in connection with this Agreement or the performance of the Escrow Agent's duties hereunder, except with respect to the Escrow Agent's gross negligence or willful misconduct. The Escrow Agent may act or refrain from acting in respect of any matter referred to herein in full reliance upon the advice of counsel which may be selected by it(including in-house counsel). and the Escrow Agent shall be fully protected in so acting or refraining from acting upon the advice of such counsel. Carriage Homes agrees to pay or reimburse the Escrow Agent for legal fees incurred in connection with the preparation of this Agreement and to pay the Escrow Agent's reasonable compensation for its normal services hereunder in accordance with the attached 2 o �CRY �ELLAw (PLS METS Do:L�cri7 -?':C nri fee schedule, said fees and costs to be borne solely by Carriage Homes. The Escrow Agent shall be entitled to reimbursement from City and Carriage Homes equally on demand for all expenses incurred in connection with the administration of this Agreement or the escrow created hereby which are in excess of its compensation for normal services hereunder, including without limitation,payment of any legal fees and expenses incurred by the Escrow Agent in connection with resolution of any claim by any party hereunder. The provisions of this Section 4(b) shall survive the termination of this Agreement. (c) Replacement of Escrow Agent. (i) Resignation of Escrow Agent. The Escrow Agent may resign at any time and be discharged of the obligations created by this Agreement by executing and delivering to the City and Carriage Homes notice of its resignation as Escrow Agent hereunder and specifying the date on which such resignation is intended to take effect (which date must be at least thirty (30) days subsequent to the date on which such notice is given). Upon receiving such notice of resignation, the City and Carriage Homes shall endeavor to agree upon a successor Escrow Agent to be appointed in ' writing. If no agreement has been reached as to a successor Escrow Agent and no successor Escrow Agent shall have been so appointed and have accepted such appointment within twenty(20) days after such notice of resignation, the City shall appoint a successor Escrow Agent(which shall be independent of the City) prior to �-. the date on which the resignation of the prior Escrow Agent is to take effect and direct the Escrow Agent to deliver the Escrowed Fund thereto. The resignation of the Escrow Agent shall become effective only upon the acceptance of appointment by the successor Escrow Agent. If no successor escrow agent is named by the City or Carriage Homes, the Escrow Agent may apply to a court of competent jurisdiction for appointment of a successor escrow agent. (ii) Discharge of Escrow Agent. At any time, the City and Carriage Homes may discharge the Escrow Agent by jointly executing and delivering to the Escrow Agent notice of its discharge as Escrow Agent hereunder and specifying (i) the date when such discharge shall take effect and (ii) whom the successor Escrow Agent is,in which event the Escrow Agent will be discharged of its duties as of such date.This Agreement shall terminate,and the Escrow Agent shall be discharged from any further obligations hereunder upon the release of all of the Escrowed Funds. (iii) Successor Escrow Agent. If the Escrow Agent shall be dissolved,or if its property or affairs shall be taken under the control of any state or federal court or administrative body or agency because of insolvency or bankruptcy. or if for any other reason a vacancy shall forthwith exist in the office of Escrow Agent, then within a period of thirty (30) days thereafter, a successor shall be appointed by the .-� mutual agreement of the City and Carriage Homes. If no agreement has been reached as aforesaid and no successor Escrow Agent shall have been so appointed and have accepted such appointment within such thirty(30) day period, the City shall appoint a successor Escrow Agent (which shall be independent of the City). ODM.AG fwi�r�fFi.�a'.:Ms M L L.la.r,is70:0 I 3 (iv) Instruments in Writing. Appointments made by the City and/or Carriage Homes under this Section 4(c) shall be made by an instrument or instruments in writing. Copies of each instrument shall be delivered by the City and Carriage Homes to the predecessor Escrow Agent and to the successor Escrow Agent so appointed. (v) Successor Escrow Agents. Any successor Escrow Agent appointed hereunder shall execute, acknowledge and deliver to the city and Carriage Homes an instrument accepting such appointment hereunder, and thereupon such successor Escrow Agent, without any further act, deed, or conveyance, shall become duly vested with all of the property, rights, powers, trusts, duties and obligations of its predecessor hereunder, with the same effect as if originally named Escrow Agent. Notwithstanding any other provision of this Agreement upon request of such successor Escrow Agent, the Escrow Agent ceasing to act, the City and Carriage Homes shall execute and deliver an instrument transferring to such successor Escrow Agent all the property,rights, powers and trusts created hereby of the Escrow Agent so ceasing to act hereunder, and the Escrow Agent so ceasing to act shall immediately transfer to the successor Escrow Agent a certified or bank check representing thc Escrowed Funds then held by it hereunder. (d) Disputes {i) Interpleader. The Escrow Agent may, but shall not be obligated to, in its sole discretion at any time and from time to time, for any reason,commence an interpleader or similar action,suit or proceeding for the resolution of any controversy regarding this Agreement, its service as Escrow Agent or the Escrowed Funds, and shall incur no liability therefor. (ii) Notice Prior to Action Against Escrow Agent. The parties to this Agreement hereby agree that no action, suit or proceeding shall be commenced against the Escrow Agent (a) unless the:Escrow Agent shall first have been given thirty (30) days' written notice of the claim and (b) the same shall he brought in a court of competent jurisdiction located in the State of Minnesota. (iii) Disputes Accepting Court Jurisdiction. If a controversy arises between one or more of the parties hereto, or between any of the parties hereto and any person not a party hereto, as to whether or not or to whom the Escrow Agent shall deliver the Escrowed Funds or any portion thereof, or as to any other matter arising out of or relating to this Agreement or the Escrowed Funds,the Escrow Agent shall not be required to make any inquiry or investigation,or make any determination as to such controversy, and need not make any delivery of the Escrowed Funds. In such event, the Escrow Agent is authorized and directed to retain in its possession without liability to the City and Carriage Homes the Escrowed Funds until the rights of the parties to the dispute shall have finally been determined by written agreement between the parties to this Agreement (other than the Escrow Agent) which is nny.nn\rCPWlc F.LIAw.MPL' ),{TLC Doc llaAry 57020 satisfactory in form to the Escrow Agent or by final order of a court of competent jurisdiction. from which final order the time for appeal has expired without an appeal having been taken, or by final decision of an Arbitrator appointed pursuant to an agreement by City and Carriage Homes for binding arbitration. If and to the extent directed to do so by said agreement or final order, the Escrow Agent shall deliver the Escrowed Funds held in escrow within a reasonable time after the agreement, final order, or final Arbitrator's decision, accompanied by proof satisfactory to it of the validity of such agreement and/or the finality of such order or final Arbitrator's decision. The Escrow Agent shall be entitled to assume thaLno such controversy has arisen unless it has received a written notice thereof which refers specifically to this Agreement and identifies by name and address all parties to the controversy. Notwithstanding anything to the contrary set forth in this Agreement, the Escrow Agent shall be entitled to comply with any order of any court or other lawful authority which has not been stayed. 5. Governing Law;Jurisdiction;Modification or Waiver. This Agreement shall be covered and construed in accordance with the laws of the State of Minnesota, without giving effect of the choice-of-law provisions thereof. The terms and provisions of this Agreement may only be modified or waived by a writing executed and delivered by all parties hereto. City and Carriage Homes hereby absolutely and irrevocable consent and submit to the jurisdiction of the courts in the State of Minnesota and of any Federal court located in said State in connection with any actions or proceedings brought against City and Carriage Homes by the Escrow Agent arising out of or relating " " to this Escrow Agreement. 6. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, written and oral. 7. Headings. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. 8. Counterparts. This Agreement may be executed inany numberofcounterparts,each of which shall be deemed to be an original and all of which together shall be deemed to be a single agreement. 9. Successors and Assigns. The agreements, covenants, terms and provisions of this Agreement shall bind the respective heirs, executors, administrators, successors and assigns of the parties. Subject to the provisions of Section 4 concerning the Escrow Agent,this agreement may not be assigned without the express written consent of the other parties to this Agreement. 10. Notices. All notices, demands, approvals, consents, elections or other communications permitted or required to be given hereunder shall be in writing and shall be deemed given (i) 3 days after being posted certified mail, return receipt requested, postage prepaid, or (ii) when delivered, if sent by hand delivery or by overnight courier service. Such notices shall be addressed as follows: ODMA\GRPwise\FEU.Aw.1P .Hots ?cc GTtcry 197020 1 5 V 1/ • If to the City: City of Oak Park Heights 14168 Oak Park Boulevard P.O. Box 2007 Oak Park Heights, MN 55082 Attention: With a copy to: Mark J. Vierling, Esq. Eckberg, Lammers, Briggs, Wolff& Vierling, P.L.L.P. 1835 Northwestern Avenue Stillwater, MN 55082 If to Carriage Homes: Carriage Homes, Inc. 6750 Stillwater Boulevard North Stillwater, MN 55082 Attention: John W. Arkell With a copy to: Felhaber, Larson, Fenlon & Vogt, P.A. 601 Second Avenue South Suite 4200 Minneapolis,MN 55402 Attention: J.Patrick Brinkman If to the Escrow Agent: • Central Bank of Stillwater 2270 Frontage Road West Stillwater, MN 55082 Attention: or to such address as any party may from time to time specify in writing to the others in accordance herewith. If any such notice is given by hand delivery, the person to whom such notice is given shall, if requested,acknowledge receipt of such notice and the date of such receipt on a copy of such notice. 11. Force Majeure. Neither City nor Carriage Homes nor Escrow Agent shall be responsible for delays or failure in performance resulting from acts beyond its control. Such acts shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, epidemics, ,71,4,,,1-130uncr%crt I AW MVI uPI,1)efe I;IImry I<,u,U, 6 — • governmental regulations superimposed after the fact, fire, communication line failures, computer ,..� viruses, power failures, earthquakes or other disasters. 12. Modifications. This Agreement may not be altered or modified without the express written consent of the parties hereto. No course of conduct shall constitute a waiver of any of the terms and conditions of this Escrow Agreement, unless such waiver is specified in writing,and then only to the extent so specified. A waiver of any of the terms and conditions of this Escrow Agreement on one occasion shall not constitute a waiver of the other terms of this Escrow Agreement, or of such terms and conditions on any other occasion. 13. Reproduction of Documents. This Agreement and all documents relating thereto, including, without limitation, (a) consents, waivers and modifications which may hereafter be executed, and (b) certificates and other information previously or hereafter furnished, may be reproduced by any photographic, photostatic, microfilm, optical disk, micro-card, miniature photographic or other similar process. The parties agree that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding,whether or not the original is in existence and whether or not such reproduction was made by a party in the regular course of business, and that any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. IN WITNESS WHEREOF,the parties to this Agreement have caused this Agreement to be duly executed as of the date first written above. City: THE CITY OF OAK PARK HEIGHTS By: Its rvt 6,y,,.r By: V Its S)_..„-A, N> r>. Carnage Homes: CARRIAGE HOMES, INC. By: Q Its C° 7 ODM \Gri'wtSe'WCUsw.TR'LS.MPS Dot.L.hiu.y 137020.1 A 4 . • ESCROW AGENT: CENTRAL B • • of STILLWATER • By: 4 ame: Sc o 7l'141 . ,CAu s' j Title: Pre ...-...n n�rn rr. nv•ion UGi Cil..-1•M��.i <7G70 I 8 `` ..� Y4-t CITY• �\ g OAK PARK HEIGHTS • f 14168 North 57th Street • P.O. Box 2007 • Oak Park Heights. MN 55082-2 007 • Phone: 651/439-4439 • Fax: 651/439-0574 FINAL INVOICE: JULY 19 , 2000 Project #43500 Carriage Homes CUP CDVA Planner Fees 8/1998 . $ 140 .00 Copies & Postage 10/1998 36. 96 Courier Publishing 10/1998 7. 30 Planner Fees 9/1998 126 .00 Wash Cty Services 9/1998 89 .50 Postage & Copies 11/1998 51. 66 Planner Fees 10/1998 1644. 78 Planner Fees 11/1998 457. 30 Admin Fees 12/1998 250. 00 Postage & Copies 12/1998 50. 82 Planner Fees 12/1998 396. 40 Planner Fees 1/1999 1809.13 Engineering Fees 11/1998 109.00 Engineering Fees 1/1999 348 .00 Planner Fees 2/1999 575 .40 Engineering Fees 2/1999 404. 25 Planner Fees 3/1999 91. 00 Engineering Fees 3/1999 183. 75 Planner Fees 4/1999 70 .00 .-� Planner Fees 5/1999 49 .00 Postage & Copies 6/1999 56 . 33 CONTINUED Tree Cify U.S.A. s Char3es Continued: Publishing Fees 6/1999 16 .00 County Parcel Search 6/1999 118 . 00 Planner Fees 6/1999 1684.01 Engineering Fees 7/1999 141. 75 Planner Fees 7/1999 313 . 75 Quantum Digital 8/1999 5 . 65 Planner Fees 8/1999 553. 50 Plant Health Assoc Fees 8/1999 17.QO Engineering Fees 8/1999 206 .00 Planner Fees 9/1998 498 . 40 Legal Fees 5/2000 29 . 16 LegalLT .� Fees ees 6/2000 1 50 TOTAL , ,. $1 0 , 5 9 % . 3 0 less ovmt 9/28/98 (550 . 00) FINAL BALANCE DUE $10 , 047. 30 PAYMENT DUE UPON RECEIPT Thank You