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Home My WebLink About02-24-2014 - Request for council action ti55r� Wo) ver- t.. P I REQUEST FOR COUNCIL ACTION DATE: February 24, 2014 ITEM NO: Department Approval: Administrator Reviewed: Agenda Section: Name Jessica Loftus ? City Attorney Report Title City Administrator Item Description: Settlement Agreement for Wilcox v.Orono George Hoff from Hoff, Barry & Kozar attended the Jan. 24th meeting to discuss settlement for Wilcox v. Orono. The attached dismissal is provided for your review and approval. It requires future action by the City to go through the public hearing process to vacate the conservation easement. COUNCIL ACTION REQUESTED: Consider a motion to approve the attached settlement. 1 STATE OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT Case Type: Other Civil Alexandra and Brian Wilcox, Court File No.27-CV-13-17416 Judge Susan M.Robiner Plaintiffs, v. STIPULATION OF DISMISSAL WITH PREJUDICE AND Revis Stephenson;Wolverton Place,LLC; ORDER Barry L.Berg;Caldwell Banker Burnett; Lori Gherardi;JNJ Brothers LLC;Joe M. Brennan; Brennan Properties,LLC; and the City of Orono,MN, Defendants, Alexandra and Brian Wilcox(collectively,the"Plaintiffs")and Defendant City of Orono (the"City"),through their undersigned counsel,hereby stipulate and agree as follows: 1. Plaintiffs own the property located at 4550 Wolverton Place,Orono,Minnesota 55359 and legally described as follows: That part of Lot 1,Block 1,FOXPYRE ESTATES,according to the recorded plat thereof, Hennepin County,Minnesota,lying southerly,easterly and southeasterly of the line described as follows: Commencing at the northeast coiner of the Southwest Quarter of Section 31,Township 118 North,Range 23 West,Hennepin County,Minnesota;thence on an assumed bearing of South 89 degrees 56 minutes 10 seconds West;along the north line of said Southwest Quarter,a distance of 538.00 feet to the northeast corner of Lot 1,Block 1,FOXFYRE ESTATES;thence South 0 degrees 28 minutes 40 seconds West,along the east line of said Lot 1,a distance of 125.42 feet to the point of beginning of the line to be described;thence South 89 degrees 56 minutes 10 seconds West a distance of 344.07 feet;thence South 0 degrees 28 minutes 40 seconds West a distance of 216.56 feet;thence South 21 degrees 40 minutes 14 seconds West a distance of 294.49 feet to the southwesterly line of said Lot 1, and said line there terminating. Subject to any and all easements of record. (the"Property"). 1 ". % 2. On April 10,2013,Document No.A09935364,a Permanent Tree Stand and Native Grassland Preservation and Conservation Easement,was recorded against the Property and an adjoining tract of property(the"Conservation Easement"). 3. On or about November 15,2013,Plaintiffs initiated the above-captioned action against Defendants,which is currently pending before the Hennepin County District Court as Court File No.27-CV-13-17416(the"Litigation"),challenging,among other things,the validity of the Conservation Easement on the Property. 4. Plaintiffs seek a judgment declaring that the Conservation Easement and subdivision of the Property from the adjoining tract are invalid and damages for a taking of private . property without just compensation in violation of the United States and Minnesota Constitutions, 5. The City will initiate the process to vacate the portion of the Conservation Easement granted by Document No.A09935364 across the Property within 45 days of the date of this Stipulation in accordance with the procedures set forth in Minn. Stat. §412.851 by a Resolution vacating the easement substantially in the form attached hereto as Exhibit A(the Resolution). 6. Upon vacation of the Conservation Easement in accordance with paragraph 5 above, all claims and requests for relief by Plaintiffs against the City in the Litigation shall be dismissed with prejudice with no damages,costs,disbursements or attorneys' fees to either party and the City shall be dismissed as a party to the Litigation. In the event,the City does not approve Vacation of the Conservation Easement within the time described above,this Stipulation shall be null and void. [Signature Page to Follow] 2 Dated: Z r ,2014 �L Eric Andrew Ruzicka(#0313373) Dorsey&Whitney LLP 50 South Sixth Street Suite 1500 Minneapolis,MN 55402 (612)340-2959 Attorneys for Plaintiffs Dated: ,2014 George C.Hoff(#45846) Shelley M.Ryan(#348193) Hoff,Barry&Kozar,P.A. 160 Flagship Corporate Center 775 Prairie Center Drive Eden Prairie,MN 55344 (952)941-9220 Attorneys for Defendant City of Orono 3 ORDER The undersigned, being one of the Judges of the above-entitled court, having reviewed the above Stipulation of Plaintiffs and Defendant City of Orono,hereby orders: 1. Upon vacation of the Conservation Easement in accordance with paragraph 5 of the Stipulation and the filing of the Resolution with the Court,all claims and requests for relief by PIaintiffs against the City of Orono in the Litigation shall be dismissed with prejudice with no damages,costs,disbursements or attorneys'fees to either party,and Judgment of Dismissal of the City from the Litigation shall be entered.. LET JUDGMENT BE ENTERED ACCORDINGLY, Dated: ,2014 BY THE COURT Judge of District Court 4 CONSENT BY DEFENDANTS The undersigned attorneys on behalf of their respective clients shown below,hereby consent to the foregoing Stipulation and the entry of the Order for Dismissal with Prejudice therein. This consent is provided pursuant to Minn.Rules of Civil Procedure 41,and the entry of the judgment of dismissal may be made without further notice or appearance by the undersigned. This Consent may be executed in counterparts. Date: ,2014 Thomas W.Newcome III(#0136943) Leonard, O'Brien,Spencer, Gale&Sayre,Ltd, 100 South Fifth Street, Suite 2500 Minneapolis,MN 55402 (612) 332-1030 Counsel for Defendants Lori Gherartll,JNJBrothers LLC, Revis Stephenson and Wolverton Place,LLC Date: ,2014 Matthew D. Sloneker 00338953) Lind,Jensen, Sullivan&Peterson,P.A. 1300 AT&T Tower 901 Marquette Ave S Minneapolis,MN 55402 (612)333-3637 Counsel for Defendants Barry L.Berg and Coldwell Banker Burnett Date: ,2014 Patrick J.Larkin(#0286801) Lind Jensen Sullivan&Peterson,F.A. 1300 AT&T Tower 901 Marquette Ave. S. Minneapolis,MN 55402 (612)333-3637 Counsel for Defendants Brennan Properties,LLC and Joe M.Brennan 5 CITY OF ORONO HENNEPIN COUNTY,MINNESOTA RESOLUTION NO. 14- RESOLUTION VACATING A PORTION OF A CONSERVATION EASEMENT LOCATED ON 4550 WOLVERTON PLACE,IN THE CITY OF ORONO WHEREAS,pursuant to Minnesota Statutes § 412.851 the Orono City Council has conducted a hearing preceded by two(2)weeks published and posted notice and mailed notice to the abutting property owners,to consider the vacation of a portion of the Grant of Permanent Tree Stand and Native Grassland Preservation and Conservation Easement(the"Conservation Easement")recorded with the Hennepin County Recorder on April 10,2013,as Document No. A09935364 over property legally described on Exhibit A attached hereto(hereinafter"Subject Property"). WHEREAS,the Conservation Easement identifies an area referred to as Grassland South. The portion of the Grassland South affecting the Subject Property is no longer needed for public purpose. WHEREAS,following the hearing and consideration ofthe proposed vacation, the Council has determined that it is in the public interest to vacate the Conservation Easement as it affects the Subject Property, NOW,THEREFORE,BE IT RESOLVED by the City Council of the City of Orono: 1. That portion of the above-described Conservation Easement as it affects the Subject Property is hereby vacated. 2, The Clerk shall forthwith transmit a certified duplicate of this Resolution to the County Auditor and County Recorder. ADOPTED, this day of , 2013, by the City Council of the City of Orono,Minnesota. CITY OF ORONO By Lili Tod McMillan,Mayor Al FEST: Rachel Dodge,City Clerk (a E% I8)T 174951v1 EXHIBIT A That part of Lot 1,Block 1,FOXFYRE ESTATES,according to the recorded plat thereof, Hennepin County,Minnesota,lying southerly,easterly and southeasterly of the line described as follows; Commencing at the northeast corner of the Southwest Quarter of Section 31,Township 118 North,Range 23 West,Hennepin County,Minnesota;thence on an assumed bearing of South 89 degrees 56 minutes 10 seconds West,along the north line of said Southwest Quarter,a distance of 538.00 feet to the northeast corner of Lot 1,Block 1,FOXFYRE ESTATES;thence South 0 degrees 28 minutes 40 seconds West,along the east line of said Lot 1,a distance of 125.42 feet to the point of beginning of the line to be described;thence South 89 degrees 56 minutes 10 seconds West a distance of 344.07 feet;thence South 0 degrees 28 minutes 40 seconds West a distance of 216.56 feet;thence South 21 degrees 40 minutes 14 seconds West a distance of 294.49 feet to the southwesterly line of said Lot 1, and said line there terminating, 174951v1