Memo-Ugorets Settlement Agreement
. Public Warks Department
Memorandum
To: Honorable Mayor and Members of the City Council
Copy: Jim Genellie, Acting City Manager ,~1J~
From: Steven J, Stadler, Public Works Director
Date: August 6, 2004
Subject: Ugorets settlement agreement
This item has to do with the property linelright of way dispute and limits of construction
on the Lake Street bridge replacement project. The progress toward a settlement was
hampered when Ugorets decided to change legal counsel. Currently, we've submitted
a proposed settlement agreement to Ugorets attorney and are awaiting his response.
. The proposed agreement is similar to what has been previously presented to City
Council. The agreement includes:
-City restore one on-site parking space by slightly modifying adjacent
sidewalk/curb construction
-City provide two areas (four spaces) of on-street parking as shown on exhibit 6
-City staff supports rezoning Ugoret's property to B-1 and issuance of a CUP for
purposes of maintaining the current use of the property (office building)
The agreement does not obligate the City to approve the rezoning or the CUP,
If approved by Ugorets, the proposed agreement will be presented to City Council for
approval,
.
, --
STATE OF MINNESOTA DISTRICT COURT
. COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
Ugorets Properties, LLC. , Court File No: MC 02-016354
Case Type: Other Civil
Plaintiff,
Settlement Agreement
v.
City of Hopkins,
Defendant.
WHEREAS, plaintiff Ugorets Properties, LLC, ( "Ugorets" ) and
the City of Hopkins ( "Ci ty" ) wish to settle the foregoing
litigation and all claims related thereto by entering into this
Settlement Agreement ( "Agreemen t " ) ; and
. WHEREAS, Ugorets represents that it is the sole owner of
real property at 415 Blake Road ln the City of Hopkins, legally
described as follows:
That part of Lot 70, Auditor's Subdivision No.
239, Hennepin County, Minnesota, lying
Southwesterly of Minnehaha Creek, except that
portion conveyed to Hennepin County for highway
purposes.
(the "Property") ; and
WHEREAS, a commercial office building ("Building" ) and a
parking lot for tenants of the Building are located on the
Property. The Property is currently zoned for residential uses
and the building is a legal, non-conforming use; and
.
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WHEREAS, the City engaged ln the reconstruction of Lake
. Street N.E. and associated improvements, including
reconstruction of a 1905 bridge crossing Minnehaha Creek,
adjacent to the Property (the "Reconstruction Project"); and
WHEREAS, during the Reconstruction Project, a dispute
between the City and Ugorets arose as to the proper location of
the Lake Street Right of Way. The City asserted that the
improvements resulting from the reconstruction project were
located within the Right of Way for Lake Street; Ugorets
asserted that the improvements encroached on its Property; and
WHEREAS, Ugorets sued the City, asserting claims of
trespass and inverse condemnation resulting from the
. reconstruction project; and
WHEREAS, the parties completed discovery and Court-ordered
arbitration; and
WHEREAS, the parties acknowledge no liabilitYr but
understand the risks and costs associated with litigation;
1. TERMS AND CONDITIONS. The parties intend to fully settle
this matter on the terms and conditions stated below:
A. The parties agree that the location of the Lake Street
Right of Way ( "Right of Way" ) is as indicated by this
Agreement and Exhibit >'102ft and as depicted in Exhibit
. \\3" , which are attached hereto. Ugorets' right to use
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a portion of the Right of Way for parking purposes is
.
set forth In the License Agreement attached hereto as
Exhibit "l.U The License Agreement shall be executed
simultaneously with this Agreement. Exhibits "211 and
"3" shall be deemed conclusive as to the location of
the Right of Way. Ugorets will convey to the C i t y by
quit claim deed (Minnesota Uniform Conveyancing Blank
Form 28-M) , attached hereto as Exhibit "4111 a
permanent easement for street right of way purposes
over that part of the Property falling within the
Right of Way as established by this Agreement. At
such time as the contingency described in Paragraph
. l.F has been satisfied, Ugorets shall execute and
deliver such quit claim deed to the City.
B. The City, at its expense, will remove a portion of the
Reconstruction Project lD the area irmnediately
southeast of the Property and replace it with
improvements as shown on Exhibit \\5" hereto. The
parties have conferred at the property and mutually
agree regarding the placement of the improvements so
that they may be built ln accordance with sound
, , principles, preserving in totality the
englneerlng
intended utility of the bridge and roadway, and
. observing all necessary setbacks. Construction of the
3
improvements depicted on Exhibit \\5/1 shall not be
. commenced until the contingency described Paragraph
1n
l.F has been satisfied, Ugorets has met the
requirements of Paragraph 1.E, and weather permits.
Ugorets will permit the City to access the property
and provide a reasonable space 1n which to complete
the work contemplated by this paragraph at no cost to
the City;
C. The City will permit on~street parking in the areas
shown on Exhibit "6" ( "on-street parking") . The on-
street parking will be for public use and will not be
reserved for the use of Plaintiff (Ugorets) , tenants,
. and invitees of the Property;
D. The City retains the discretion to remove the on-
street parking or any portion of it in the event the
on-street parking or any portion of it 13 determined
to be a traffic hazard or threat to public safety by
the City's Director of Public Works. If the on-street
parking or any portion of it is removed, the City will
notify Ugorets (or the then current owner of the
property) at its address (or the address of the then
current owner of the property) as listed 1n the
records of the Hennepin County Property Taxation
. Department by first class U.s. Mail, postage paid, of
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the removal ("notification") . All notifications to
.
Ugorets pursuant to this Agreement shall be deemed
duly delivered two business days after mailing. If
within 10 days after delivery of the notification,
Ugorets (or the then current owner of the Property)
notifies the City In writing of its intent to
challenge the remova 1, the City will contact Ugorets
(or the then current owner of the Property) and the
parties will agree upon and select an independent
traffic engineer ( "neutral" ) , the cost of which will
be shared equally by the parties. All notices to the
City shall be sent by first class U.S. MaiL postage
. paid, and addressed to the Director of Public Works,
City of Hopkins, 1010 1st Street South, Hopkins, MN
55343, and shall be deemed delivered two business days
after mailing. Within 30 days of the selection, the
neutral will issue an opinion to the City Council
regarding the potential for traffic hazard and threat
to public safety caused by the on-street parking. The
City Council will consider the neutral's opinion and
act on the on-street parking at the next regularly
scheduled meeting. The City Council's decision shall
be considered final and binding on the parties.
.
5
E. City staff will support rezonlng the Property to "B-1"
.
zoning classification pursuant to the City of Hopkins
Zoning Ordinance Section 535 upon an application by
Ugorets pursuant to City ordinances (the "rezoning") .
City staff further agrees to support the issuance of a
conditional use permit ("CUP") for purposes of
maintaining the current use of the Property as an
office building provided that Ugorets' proposed use
meets the requirements of the zonlng ordinance. The
City further agrees that staff will not reconunend to
the City Council that conditions be imposed in the CUP
related to the Property meeting the City's on-site
. parking requirements for the use.
F. This Settlement Agreement and the obligations of both
the parties are contingent upon approval by the City
Council of Ugorets application for rezoning the
property to B-1 and the CUP for use of the property as
an office building. Ugorets acknowledges that the
City by entering this Agreement is not obligated by
this Agreement to approve the rezonlng or the CUP and
the City does not waive any procedural or substantive
requirements regarding the rezoning or the CUP.
.
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2. RELEASE. Ugorets and the City hereby mutually release each
.
other, their officers, employees, elected
agents,
officials, successors, assigns and lnsurers from any and
all possible claims or causes of action related to the
Property, claims involved In this lawsuit or claims that
could have been brought in this lawsuit other than claims
related to the enforcement of this Agreement. This release
shall be effective upon the filing of the Dismissal with
Prejudice provided for herein.
3 _ DISMISSAL. Upon approval of the rezoning of the Property
to B-1 and the CUP contemplated herein, the parties shall
. execute a Stipulation of Dismissal with Prejudice in the
form attached hereto as Exhibit "7."
4. COUNTERPARTS. This Agreement may be executed In
counterparts.
5. ENTIRE AGREEMENT _ This Agreement fully incorporates all
prior discussions and agreements between the parties.
6. AGREEMENT EFFECTIVE. This Agreement lS effective. upon
execution by all parties, subject to the contingencies
. stated herein.
7
. 7. AGREEMENT RUNS WITH THE PROPERTY. This Agreement 1S
binding on Ugorets and all successors and assigns to any of
Ugorets' rights to the Property and runs with the Property.
8. ENFORCEMENT. Any action to enforce this Agreement shall be
brought before the Hennepin County District Court.
.
.
8
.
LICENSE AGREEMENT
THIS AGREEMENT is made effective as of the execution date indicated below by and
between the City of Hopkins, a municipal corporation under the laws of the State of Minnesota
("City") and U gorets Properties, LLC (hereinafter referred to as "Licensee").
WHEREAS, Licensee is the fee owner and occupant ofreal property located at 415 Blake
Road in the City, legally described in the attached as Exhibit 1 (hereinafter referred to as the
"Property");
. WHEREAS, the Property adjoins the Right of Way of Lake Street, which is a public
street owned and maintained by the City;
WHEREAS, the City and Licensee have agreed that the northwesterly line of the Right of
Way of Lake Street as it adjoins the southeasterly line of the Property is in the location legally
described in the attached Exhibit 2 (hereinafter referenced as the "Right of Way");
WHEREAS, the Property currently has a parking lot that is situated adjacent to the Right
of Way and City improvements, including curb and gutter, within the Right of Way. Those
improvements will be in part removed by the City and replaced with new improvements to be
situated within the area of the Right of Way ("New Improvements");
WHEREAS, the City will by this License permit the Licensee to locate a portion of its
parking lot at the Propet1y within License Area as defined in Paragraph 1;
NOW, THEREFORE in consideration of the above recitals which are incorporated in this
agreement and the mutual promises contained in this Agreement, the parties agree as follows:
1. City hereby grants to Licensee a license to occupy and use, subject to all the terms
and conditions of the Agreement, the portion of the Right of Way described on Exhibit 3
attached hereto (hereinafter referred to as the "License Area").
. 2. Licensee agrees that the past or future existence, occupancy, and use of the
parking area within the Right of Way is the result of the City's permlssion and is not open,
G :\WPDA T A \3200-155\license agreement5.doc
. continuous, notorious or in any other manner supportive of a claim of adverse possession or
other entitlement to the Right of Way.
3. The License Area may be occupied and used by Licensee solely for parking for
tenants and invitees of the Property during the period beginning upon execution of this
Agreement and continuing until this Agreement is terminated. Any repair and maintenance
needed to the parking area, in the discretion of the Licensee, shall be the sole responsibility of
the Licensee, The Licensee shan bear the sole cost and responsibility for repair, maintenance
and damages as a result of ordinary wear and tear, accidents, the elements, any activities
conducted by or on behalf of the Licensee or the parking by tenants and invitees of the Property,
4, The Licensee agrees to indemnify and hold harmless the City, its employees,
officers and agents against any and all claims related to the Licensee's use and possession of the
License Area. Licensee shall, within 30 days of execution of the Agreement, make the City and
its officers, agents and employees as additional insureds on Licensee's liability and casualty
insurance policy for the Property covering the License Area and thereafter continuously maintain
such coverage and provide the City, upon written request, with a Certificate of Insurance
evidencing such coverage.
5. Licensee may terminate this Agreement at any time with or without cause by
giving written notice to the City, specifying the date of termination, such notice to be given not
less than 30 days prior to the date specified in such notice for the date of termination. The City
. may terminate this Agreement, effective immediately upon written notice to Licensee, only upon
just cause. For purposes of this paragraph, "just cause" shall be defined as (a) violation of the
terms this License or of the Settlement Agreement reached between the parties to which this
License is attached as Exhibit A; (b) violation of required setback distances as established by
federal, state, or local laws or regulations; or (c) threat to public health, safety, or welfare as a
result of the actions of Licensee in connection with the License Area. In the event this
Agreement is terminated, the City shall have the option to remove the New Improvements and
parking area within the Right of Way. The cost of removal of the New Improvements and
parking area within the Right of Way as contemplated herein shall be borne by the party at
whose option the agreement is terminated and this obligation shan survive termination of this
License Agreement by either party.
6. It is agreed that this Agreement shall be governed by, construed, and enforced in
accordance with the laws of the State of Minnesota.
7. This Agreement shall constitute the entire agreement between the parties and any
prior understanding or representation of any kind preceding the date of this Agreement shall not
be binding upon either party except to the extent incorporated 1n the Agreement.
8. Any modification of this Agreement or additional obligation assumed by either
party in connection with this Agreement shall be binding only if evidenced in writing signed by
each party or an authorized representative of each party.
.
2
. 9. Any notice provided for or concerning the Agreement shall be in writing and shall
be deemed sufficiently given when sent by first class U.S. Mail, properly addressed and postage
paid, to the other party as follows:
LICENSEE: At the address of the current owner of the property as listed in the records
of the Hennepin County Property Taxation Department
CITY: Director of Public Works, City of Hopkins, 1010 1st Street South,
Hopkins, MN 55343-9475
10. Time is of the essence in the performance of the terms and obligations of this
Agreement.
11. In the event that any action is filed in relation to this Agreement, the unsuccessful
party in the action shall pay to the successful party, in addition to all the sums that either party
may be called on to pay, a reasonable sum for the successful party's attorney's fees.
12. The parties acknowledge that this Agreement is a license to use the License Area
for the purpose described herein and does not confer any estate or interest in the Right of Way to
Licensee. This Agreement and all of its terms, covenants, and conditions herein shall be binding
on the City and Licensee and their respective successors and assigns,
.
.
3
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