4.7. SR 06-17-2002 Howard R, Green Qompany
June 13, 2002
File: 815640Jo0045
Item
#4.7.
The Honorable Mayor and City Council
City of Elk River
13065 Orono Parkway
Elk River, MN 55330
RE:
KIRKEIDE SE'DTLEMENT AGREEMENT
ZANE AVENUE IMPROVEMENTS
Dear Council Members:
Attached is a copy of the settlement agreement negotiated by Howard Roston with Mr. Kirkeide
for the acquisition of a small piece of his property for the Zane Avenue Improvements. Briefly,
the terms of the settlement agreement are as follows:
· There will be no payment for the easement.
· There will be no assessment to Mr. Kirkeide's property for any of the improvements on
Zane Avenue.
· There will be no requirement that Mr. Kirkeide hook up to the sanitary sewer and water.
· Mr. Kirkeide's fence and gate around the perimeter of his property will temporarily be
relocated during construction and then permanently relocated at the end of construction.
· There will be three six-foot Colorado or Black Hills Spruce trees planted on Mr.
Kirdeide's property for every Oak tree that is removed due to construction. All other
species of trees will be replaced at a ratio of one Colorado or Black Hills Spruce tree for
each tree removed.
· Mr. Kirkeide's driveway will be hard-surfaced for approximately 70 feet from the new
Zane Avenue curb line.
You will note that only Mr. Kirkeide has signed the settlement agreement. Item J in the
settlement agreement allows Mr. Kirkeide to sign the agreement on behalf of his wife. The
actual easement document has been given to Mr. Kirkeide, and he is prepared to execute the
easement document once the City has executed the settlement agreement and provided a copy
of the agreement to him. We would recommend that the City accept the settlement agreement
and direct the City Administrator to execute it on behalf of the City.
If you have any questions regarding this issue, I will be in attendance at your June 17, 2002,
City Council meeting.
Sincerely,
Howard R. Green Company
TJM:mw
Enclosure
O:\Proj\815640J\0045\Ltr-061302-Council Kirkeide.doc
1326 Energy Park Drive · St. Paul, MN 55108 · 651/644-4359 fax 651/644-9446 toll free 888/368-4389
Settlement Agreement
This settlement agreement and release ("Agreement") is entered into this __ day of ,2002 by and between
Petitioner, the City of Elk River ("City") and Dwight L. Kirkeide and Jane A. Kirkeide ("Respondents").
Recitals
1. In accordance with Chapter 117 of the Minnesota Statutes, the City has filed and served its Petition in
Condemnation and Motion to Transfer Title and Possession for the purposes of acquiring by condemnation the real
property and temporary construction easements described on Exhibit A hereto ("Acquired Property"). The City is
acquiring the Acquired Property in order to complete certain improvements to Zane Street, including developing and
establishing public roads and providing utilities including water, sanitary sewer and storm water ("Project").
2. The Respondents are the fee owners of certain real property located in the City of Elk River, Minnesota with a post
office address of 11230 173rd Avenue Northwest, Elk River, Minnesota ("Real Property"). The Acquired Property is a
portion of the Real Property.
3. The City has duly and timely filed all documents necessary and required in order to acquire the Acquired Property.
4. In an effort to avoid the time and expense of litigation, the City and the Respondents desire to settle all claims
relating to the City's acquisition of the Acquired Property, including all damages which the Respondents have or may
have as a result of the taking.
Terms of Settlement
Now, therefore, for good, valuable and sufficient consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties stipulate and agree as tbllows:
A. Transfer of Property. In exchange for the total sum of One Dollar ($1.00), Respondents agree to convey to the
City the Acquired Property described on Exhibit A hereto. Respondents agree to execute any documentation
reasonably necessary to convey to the City the Acquired Property. In the event that the documentation necessary to
convey to the City the Acquired Property is not completed by June 1, 2002, the Respondents agree to permit the City
access to the Acquired Property from and after June 1, 2002 in order to begin the construction and related activities
for the Project.
B. No Assessment for the Project - Exceptions. The City agrees that Respondents shall not be assessed for any
portion of the Project, including municipal sewer and water. Nothing contained herein shall be construed as a waiver
of the City's right to assess the Real Property in accordance with applicable laws for improvements or municipal work
unrelated to the Project. In the event that Respondents or any successors in interest to the Respondents ("Respondents
or Successors") seek to connect to or benefit from municipal utilities including, but not limited to sanitary sewer
and/or municipal water ("Utilities"), the City shall be entitled to assess the Respondents or Successors for the
Utilities.
C. No Requirement to Connect to Utilities- Exceptions. The City agrees that it will not require the Respondents or
Successors in interest to connect to Utilities, unless:
i. Respondents or Successors seek any zoning or other approvals for the Real Property which would
result in the Real Property being used for anything other than one single family residence being the
principal structure together with any accessory use allowed by the zoning ordinance, or
ii. Respondents or Successors establish any use on the Real Property other than one single family
residence being the principal structure together any accessory uses allowed by the zoning ordinance; or
iii. Any governmental authority, including but not limited to, the City or the Minnesota Department of
Health, establish that Respondents or Successors need to connect to Utilities in order to protect the
health, safety or welfare of Respondents or Successors, or other citizens of the City of Elk River or
surrounding communities.
Notwithstanding the foregoing paragraphs Ci to Ciii, Respondents acknowledge that other governmental entities may
require the Respondents or Successors to connect to Utilities.
D. Fence and Gate Replacement. Respondents acknowledge that the Project will require the temporary removal and
replacement of Respondents' fence and gate located along the north and east property line of the Real Property. To the
extent that the Project requires the removal of the fence and gate, the City agrees, at its cost, to re-install the fence
and gate (using substantially the same materials) in a location reasonably requested by the Respondents. The
Respondents acknowledge that the re-installation of the fence and gate will, at the discretion of the City, to the fullest
extent possible include the same material currently existing on the Real Property. During the removal and re-
installation of the fence and gate the City (or its contractors) will take all reasonable efforts to secure the Real
Property to ensure that Respondents horses do not escape from the Real Property.
E. Replacement of Trees. Based upon the current construction designs for the Project, the parties hereto anticipate
that the construction and related work will necessitate the removal of approximately twenty-seven (27) trees,
including eleven (11) oak trees, from the Acquired Property. The City agrees, at its expense to plant three (3) six foot
Colorado or Black Hills Spruce Trees on the Real Property for each oak tree actually removed or destroyed during the
construction of the Project. The City agrees, at its expense to plant one (1) six foot Colorado or Black Hills Spruce
Tree on the Real Property for each tree species (other than Oak) actually removed or destroyed during the
construction of the Project. The City agrees that it will plant the aforementioned-replacement trees at any reasonable
location on the Real Property, provided that Respondents provide reasonable and suitable access to the Real Property.
F. Paving of Driveway. The City agrees, at its expense, that it (or its contractors) will construct a hard surfaced
driveway approximately 70 feet long from the curb line. The aforementioned driveway will be located in substantially
the same location as Respondents' existing driveway and will include a minimum of 2 inches of bituminous surfacing.
Respondents acknowledge that the aforementioned driveway may not be completed until the 2003 construction
season.
G. Release of Claims. The Respondents and their successors, heirs, assigns and agents hereby release the City and its
officers, employees, agents, engineers, lawyers, elected officials and staff ("Released Parties") from any claims they
have or may have against the Released Parties arising from or relating to the City's acquisition of the Acquired
Property including, but not limited to, claims for just compensation, severance damages, loss of going concern and
any other monetary damages. The Respondents further waive any claims against the Released Parties and release the
Released Parties from any claims for relocation assistance, services and benefits pursuant to Minn. Stat. §§ 117.50 to
117.56 and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601
et. Seq ("Act") and the federal regulations implementing the Act ("Relocation Claims"). Respondents acknowledge
that they have had the opportunity to consult with legal counsel of their choice regarding the availability of
Relocation Claims and their waiver thereof.
H. Choice of Law / Venue. This Agreement shall be construed and interpreted in accordance with Minnesota law.
Any action to enforce this Agreement or construe the terms of this Agreement shall be venued in state court in
Sherburne County, Minnesota. The parties hereto consent to the jurisdiction and venue of the Sherburne County
District Court. Notwithstanding the foregoing sentences of H, Respondents reserve the right to seek a federal remedy
for interpretation of federal laws in which state court is not the proper venue.
1. Requirement of City Council Approval. Respondents acknowledge that this Agreement must be approved by the
City Council of the City of Elk River and is not enforceable until so approved by the City Council. Respondents
agree not to revoke acceptance of this Agreement pending approval by the City Council.
J. Execution of Document. This Agreement may be executed in counterparts. Each counterpart shall have the effect
of an original document. Dwight L. Kirkeide by signing below represents and warrants that he has the full authority
to execute this Agreement on behalf of Jane A. Kirkeide
The City of Elk River
By
Its
Dwight L. Kirkeide.
Jane A. Kirkeide.
Exhibit A
Street, Drainage, Utility, and Construction
Perpetual and temporary easements for street, drainage, and utility and construction purposes over that part
of the following described property:
Ail that part of Government Lot 2, Section 10, Township 32, Range 26, Sherbume County, Minnesota, lying
Northerly of the Westerly extension of the South line of the Northwest 1/4 of the Northwest 1/4, Section 11,
said township and range.
Which lies within the following described perpetual easement for street, drainage, and utility purposes:
That part of Government Lot 2, Section 10, Township 32, Range 26, Sherburne County, Minnesota, which
lies Northeasterly of a line described as follows:
Begira:ing at a point on the North line of said Government Lot 2, distant 25.00 feet Westerly of the Northeast
comer of said Government Lot 2; thence Southeasterly to a point on the East line of said Government Lot 2,
distant 33.00 feet Southerly of said Northeast comer of Government Lot 2 and said line there terminating.
And also:
Which lies within the following described perpetual easement for drainage and utility purposes:
That part of said Government Lot 2, which lies Northeasterly of a line described as follows:
Beginning at a point on said North line of Govenunent Lot 2, distant 38.00 feet Westerly of said Northeast
comer of Government Lot 2; thence Southeasterly to a point on said East line of Government Lot 2, distant
50.00 feet Southerly of said Northeast comer of Government Lot 2 and said line there terminating.
Except that part which lies within said first above described perpetual easement.
And also:
Which lies within the following described temporary easement for construction purposes:
That part of said Government Lot 2, which lies Northeasterly of a line described as follows:
Beginning at a point o:x said North line of Government Lot 2, distant 50.00 feet Westerly of said Northeast
comer of Government Lot 2; thence Southeasterly to a point on said East line of Government Lot 2, distant
60.00 feet Southerly of said Northeast comer of Government Lot 2 and said line there terminating.
Said temporary construction easement is to expire on May 30, 2003.
Owner/Interested Party
Interest
Dwight L. Kirkeide
Jane A. Kirkeide
Sherburne County, Minnesota
Fee Owner
Fee Owner
Real Estate Taxes if any
60245