HomeMy WebLinkAboutRe: escrow refund * f
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To: Finance Department
From: Christine Mattson, Planning Assistant
Date: 2/9/2011
G/L: 101-22205
Re: Building Permit Escrow Refund
On June 5, 2008, the City received a $2,000 escrow from Highmark Builders, Inc.
(Developer) and LMG Partners, LLC (Property Owners) for 4205 North Shore Drive in
agreement of removing a shed (boat house)that was located within the 0-75' setback.
The property owners challenged the City regarding having to remove the structure. On
January 13, 2009 Highmark Builders, Inc. and LMG Partners, LLC entered into another
agreement to keep the shed (boat house). Melanie Curtis and I have reviewed the Mutual
promises, Covenants and Undertakings and concluded they are satisfied.
As of November 2010, 4205 North Shore Drive has new owners.
Please refund the escrow of $2,000 to Highmark Builders, Inc. at 12237 Nicollet Ave S,
Burnsville, MN 55337.
The following supporting documentation is attached:
• Copy of signed escrow agreement, dated June 5, 2008
� Copy if the signed agreement, dated January 13, 2009
• Variance 06-3246 has no outstanding amount shown on Subdivision-CUP
Spreadsheet
• Building Permit P11531 isn't on the Subdivision-CUP Spreadsheet.
• Considering the age of the escrow, Campbell Knutson & Bonestroo were not
contacted
w:\street files\north shore dr�4205\escrow refund memo for p11531.doc
�?� ��t��l�re I�' �
AGREEMENT FOR REMOVAL ����
OF ACCESSORY S'�RUCTURE
Right-of-Entry
TffiS AGREEMENT ("AgreemenY'), made and entered into this s}� day of June,
2008,by Highmark Builders,Inc. ("Developer") and LMG Partners,LLC("Properiy Owner")
(hereinafter Developer and Property Owner collectively referred to as "Applicants") and the City
of Orono, a Minnesota.municipal corporation(hereinafter referred to as the"Cit,�').
WITNESSETH:
WHEREAS, Applicants have made application to the City for a variance to Municipal
Zoning Code Section 78-1288, 78-1282, and 78-330 for property located at 4205 North Shore
Drive, within the City of Orono, Hennepin County, State of Minnesota, such property legally
described as:
See"E�chibit A"atta.ched for legal description;
(hereinafter referred to as"Subject Property"); and
WHEREAS, the Subject Property contains a pre-existing 117 square foot accessory
structure("Shed") in the 0-75 foot zone; and '
WHEREAS,the Applicants have received a variance for the Subject Property pursuant to
Orono City Council Resolution 5601 and recorded as Hennepin County Document#4464906; and
WHEREAS,the Applicants now believe that Minnesota Statutes §117.184,effective after
May 20,2006, applies to the Shed and provides certain protections to the Applicants; and
WHEREAS, the Applicants have expressed their desire to keep the Shed on the Subject
Property and have communicated such desire to the City of Orono on June 2, 2008 and, in fact,
have not removed the Shed as requested by the City; and
WHEREAS, the Applicants recognize that it is the City's position that the Shed must be
removed as a condition of the variance; and
WHEREAS, the City has denied the Applicants' approval of the grading inspections
necessary to complete the sodding of the Subject Property and obtain a temporary certificate of
occupancy as a result of the dispute regarding the removal of the Shed; and
WHEREAS, at the Applicants' request, the City agrees to a11ow the Applicants to retain
the Shed on the Subject Property while the partties resolve their dispute regarding the City's
requirement to remove the Shed.and the Applicants' rights to maintain said structu.re are resolved;
and
139014v2
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WHEREAS, the Applicants recognize that if it is ultimately determined that the
protections afforded by Minnesota.Statutes §117.184 to legal nonconforming use are inapplicable
to the Shed,the Applicants will agree with the City's request for removal of the Shed.
NOW, THEREFORE, THE PARTIES TO THIS AGREEMENT AGREE TO THE
FOLLOWING:
1. Applicants may retain the Shed located in the 0-75 foot zone and will receive a
temporary certificate of occupancy subject to the following conditions:
A. The Applicants and City agree to enter into good faith negotiations to
attempt to resolve the issue of whether Minnesota Statutes §117.184 applies to the Shed
and whether the City may require the removal of the Shed.
B. The Applicants agree to deposit Two Thousand a.nd no/100ths Dollars
($2,000.00) with the City which may be used by the City to secure the demolition of the
Shed.
C. The Applicants will sign the attached Waiver of Trespass/Right of Entry
attached as"Exhibit B."
2. The City agrees to meet with the Applicants to discuss and attempt to resolve the
application of Minnesota Statutes to the removal of the Shed following the signing of this
Agreement. The City makes no representations that the City will agree to the Applicants' request
and that presently it is the City's position that the Shed must be demolished. If the resolution is in
favor of the City's position that its removal is proper, Applicants will remove such structure and
restore the landscaping to the approved plans by the City of Orono. If Applicants fail to remove the
Shed as required.,the Applicants hereby agree as follows:
A. The City may enter upon the Subject Property and remove the Shed.
B. The City may draw down on the $2,000.00 to pay for the removal of the
Shed and assess any cost exceeding $2,000.00 for the removal of the Shed to the Subject
Property.
3. If the Applicants fail to abide by the conditions set forth above, the City may
immediately revoke its temporary certificate of occupancy. The City will not issue a final
certificate of occupancy until the teims of the variance have been complied with.
4. The Applicants will underta.ke to secure the necessary land alteration approvals as
required by Orono City Code Section 78-967.
Se This Agreement shall be binding upon current and future owners of the Subject
Property, and shall be filed within the chain of title of the Subject Property.
139014v2
2
6. Applicants represent that they are the fee owners of the Subject Property or have
received written consent from the fee owners to sign this Agreement.
7. Applicants shall indemnify and hold harmless the City, the City Council, and the
agents and employees of the City from and against all claims, damages, losses or expenses,
including attorney fees, which the City, City Council and agents and employees of the City may
suffer or for which it may be held liable, arising out of or resulting from the assertion against them
of any claims, debts or obligations in consequence of the performance of the terms of this
Agreement.
CITY OF ORONO
,
By: !7'/• G��`�
es� White,Its Mayor
BY� �.-���� �/ 'J2—�'.�
Linda Vee, Its City Clerk
ACKNOWLEDGEMENT
STATE OF NIINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this�'�ci.ay of June,2008,
by James�.White and Linda Vee,respectively the Mayor and City Clerk of the City of Orono,
on behalf of the municipal orporation. _�_��_ _ �,
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ME A KOTEK Public
�� -MII�qNESOTA ` � t���
Mp fMn IIMM�t d�n.81;P012 GVGv
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APPLICANTS:
BARBARA G.SILUS HIGHMARK BUII.,DERS,INC.
NOTARY PUBUC-MINNESOTA
�Y���Expires Jan.31,2013
By: e..__
Mora.s
I : P esident
139014v2
3
LMG PARTNERS,LLC
By:
J es Moras
Its. Secretary
ACKNOWLEDGEMENT (APPLICANTS)
STATE OF NIINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ��`day of June,2008,
by James Moras,the President of Highmark Builders,Inc.,on behalf of the corporation.
A �' • ry q
MELISSA KOTEK O � ,�'� ,� , � �
�TA�►�•�It�tEsoTA Notary Public
I�(�e�too E�S,I�.81.zD1x
� �
STATE OF MIl�TNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of June,2008,
by James Moras, the Secretary of LMG Partners, LLC, on behalf of the limited liability
corporation.
.
� r� � � � � �.
� ' Notary Public L '�`
MELtSSA KOTEK
NOTARY PllBLIC-Mt1�lE80TA
r ' Il�r r�om�ba C�t�.at,4ot2
�wu 1dMI1M�MAMM1UMiM11VIMl1Nn
DRAFTED BY:
Campbell Knutson
Professional Association
317 Eagandale Office Center
1380 Corporate Center Curve
Fagan,Minnesota 55121
Telephone: (651)452-5000
SMM
139014v2
4
E��IT uA��
Le�al Descrintion of Subiect Prouertv
That part of Lot 2 "Orchard Beach," lying Southeasterly of the following described line and its
Northeasterly extension: Commencing at the Northeast comer of Lot 3, "Orchard Beach";thence
on an assumed bearing of North along the Northerly extension of the East line of said Lot 3 a
distance of 78.92 feet;thence on a bearing of West a distance of 89.50 feet to the point of beginning
of the line being described; thence South 31 degrees 56 minutes 53 seconds West to the
Southwesterly line of said Lot 2 and there ending. Subject to the easement for County Sta.te Aid
Highway No. 19 as shown in Hennepin County Highway Plat No. 50 recorded as CR Document
#4746024. Subject to a perpetual easement for underground utility purposes in favor of the City
of Orono as contained in CR Document#3925296.
139014v2
5
EXHIBIT "B"
WAIVER OF TRESPASS/RIGHT OF ENTRY
THE UNDERSIGNED, Highmark Builders, Inc. (��Developer") and LMG Partners,
LLC ("Owner"), owner of certain land in the City of Orono,who are the sole entities with a right
to grant entry to the afFected property,do hereby consent and grant unto the City of Orono("City"),
its agents and assigns, the right to enter upon and commence removal of the Shed located at 4205
North Shore Drive,within the 0-75 foot zone. The Property is legally described on Exhibit"A"of
the Agreement for Removal of Accessory Structure.
This Right of Entry does not grant to the City,or its agents or assigns, any easement rights,
but is intended to grant to the City and its agents and contractors only the right to enter onto the
property described on Exhibit A of the Agreement for Removal of Accessory Structure for the
purposes described herein.
Dated this�day of June, 2008.
PROPERTY OWNERS:
HIGHMARK BUII.,DERS,INC.
By:
J es Moras
Its: resident
LMG PARTNERS,LLC
By:
es Moras
Its: ecretary
139014v2
6
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�„.� Doc No T4688800
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� �, y�� � Certified, filed andbr recorded on
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,�. `:, v;,��,� �'
�� �= ;..� 9/21/09 4:30 PM
``°�'� Office of the Registrar of Tities
� Hennepin County, Minnesota
Michael H. Cunniff, Registrar of Tities
Jill L. Alverson, County Auditor and Treasurer
Deputy 14 Pkg ID 570848
Doc Name:Variance
Document Recording Fee $46.00
Documenf Total $46.00
Existing Ceots N�w Certs
1215777
This cover sheet is now a permanent part of the recorded document. ��f�
�
�a �rs��%�
(Reserved for RecordingJ
A��'+�E+l�l�d�
T'HIS AGREEMENT ("Agreement"),made and entered into this 13�' da.y of January,2009,
by Highmark Builders,Inc. ("Developer") and LMG Partners,LLC ("Property Owner")
(hereinafter Developer and Property Owner collectively referred to as "Applicants") and the City of
Orono, a Minnesota municipal corporation(hereinafter referred to as the"City").
WITNESSETH:
WHEREAS,Applicants have made application to the City for a variance to Municipal
Zoning Code Section 78-1288, 78-1282, and 78-330 for property located at 4205 North Shore
Drive, within the City of Orono, Hennepin Cou.nty, State of Minnesota,�such property legally
described as:
See"Exhibit A" attached for legal description;
(hereinafter referred to as "Subject Property"); and
WHEREAS,the Property Owner has received a variance for the Subject Property pursuant
tu Clran� Cit-y�aa.r�cil iiesolutio�:,EJI and recorded a�Fier.nepiu County doc,unent nwnber
4464906;
WHEREAS, as a condition of the variance,the Property Owner was limited to 35 square
feet of hardcover within the 0-75 foot zone. As a result of tYus requirement the Property Owner was
required to remove a 117 square foot shed that is currently located within the 0-75 foot zone;
WHEREAS,Property Owner desires to keep the shed located within the 0-75 foot zone on
the Subj ect Property;
WHEREAS,the City has agreed to allow the Properiy Owner to keep the shed occupying
117 square feet of hardcover located within the 0-75 foot zone based on the following:
140991
NOW,THEREFORE,IN CONSIDERATION OF THE MUTUAL PRONIISES,
COVENANTS AND UNDERTAHINGS CONTAINED HEREIN,THE PARTIES AGREE
AS FOLLOWS:
1. PROPERTY OWNER:
■ The Property Owner shall submit plans to the City Engineer identifying the location and
specifications for a permanent rain gazden to be installed on the Subject Property as
mitigation for the 117 square feet of excess hardcover. Upon receiving approval from
the City Engineer,the Property Owner shall construct and install the rain garden on the
Subject Property per the approved plans dated Apri19,20Q9.
■ The Property Owner sha.11 provide and implement and construct landscaping for the area
around the shed pursuant to the landscape p1an subxaitted and approved by the Cify dated
Apri19,z0U9.
■ The Property Owner may renovate the shed provided any and a11 maintenance is
architecturally consistent with the primary residence. Property Owner agrees that
renovation may not increase the overall size or da.mensions of the shed.
■ Property Owner shall remove all pavers or other non-pervious materials within the
vicinity of the shed excepting the 35 square feet steps,previously authorized by the City.
2. THE CITY:
The shed located within the 0-75 foot zone on the property shall remain on the Subject Property
provided the conditions set forth in paragraph 1 hereof are satisfied.
■ The City sha.11 issue such building permits for renovation and maintenance of the shed
for Property Owner to implement architecturally consistence with the primary residence
required in paragraph 1, above.
■ The City shall issue a final certificate of occupancy for the residence located on the
Suhject I'raperiy upor completing t'�e 'itenzs. sei fortl�ui para.�rraph ? above, Orono �ity
Council Resolution 5601, as modified by this Agreement and applicable regulations set
forth by all applicable government agencies. The City agrees to release or refund to
Property Owner all forms of security posted by the Property Owner with the City in
connection with Subj ect Property,upon the issuance of the final certificate of
occupancy.
■ The City agrees that this Agreement modifies and amends any terms and conditions in
Orono City Council Resolution 5601 and recorded as Hennepin County document
number 4464906, to the extent inconsistent with the terms and conditions of this
Agreement. The City further agrees to undertake, implement and authorize, at the City's
initiative, any official approvals that may be required to implement or cazry out the
terms, covenants, undertakings and agreements of the City contained of this Agreement.
140991
3. RELEASE. In consideration of the settlement in accordance with this Agreement,the
parties have agreed to mutually release any and all claims which they may have against each other.
:.�.:�' �
CITY OF ORONO
, ;:3
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�. a��r�'+�oa�'✓:ti+ /�// V'„� ��I/v`�`�
a� �`� �� • •0, . f�'/
'�a�, �, � BY:
��`����;,^��g � ,�,�����"��'"� es M. White, Its Mayor
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. i i �:r�' e � n �Pd �d,$49� s', �
_ y�"i � ¢a,,�C.�. �.�� ;�c�.�i'[3 '. � /J/
R � ��uvu� +^`��" ��S�"�a`�M,�7 B -� V�
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� r����. .5 �;. � �z� � ,�.
:�'s` � "" - �:�s�m;� ''s�� "� . Linda S. Vee Its City Clerk
� ��:_ �,�:� ���.. :� ,
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-�.; �.:,.V ACKNOWLEDGEMENT
,. . .;:��,;
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a. �^t��.�,
S�T'�TE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrtunent was acknowledged before me this 1��day of
/bt,�(, 2008, by James G. White and Linda Vee, respectively the Mayor and City Clerk of
the City of Orono, on behalf of the municipal corporation.
MONICA A.FADNESS � �'
NOTARY PUBLIC-MINNESOTA Notary Public
� My Commission Expires Jan.31,Z012
A�Y'�i�i�:_%ii�T�S:
flgGi�[1�A�K B�LYD]�RS;INC.
By: �'
Jim, oras
I � �
LMG PARTNERS,LLC .
By: �
Ji Moras
ts Treasurer
140991
ACKNOWI.EDGEMENT (APPLICANTS)
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this �`�`tiay of
` �L,e , , 200�by �;,�n �l"�.c��`ct.� , the t'�,r�s,'�t�-�-� of
Highmark uilders,Inc., on behalf of the corpor ' .
SUZqAFNE M. MAYER �� --
NOTARY PUg��� NO f Public
MINNESOTq
J �l`Ga""qeelon E�fres.an..aL�t�
STATE OF MINNESOTA )
� 5S.
COUNTY OF HENNEPIN )
-�� The foregoing instrument was acknowledged before me this ��y of
, 200$,�by �,,,�, ��. , the Treasurer of
LMG Partn rs,LLC, on behalf of the limited liabiliTy corporation.
SUZqNIVE IiA. p�{AYER ` .
MOTARY PUgU� NOt21'y LiC
MINNESOTA
�1'�so�n Exph�Jan_at.2ou
DRAFTED BY:
C:am�he�!�Cnettc�sn
Professi�rs�a1 AssoeBatior.
317 Eagandale Office Center
1380 Corporate Center Curve
Eagan,Minnesota 55121
Telephone: (651)452-5000
SMM
140991
, , . .
R • r •
EXHIBIT"A"
Le�al Descriution of Subiect Property
That part of Lot 2 "Orchard Beach," lying Southeasterly of the following described Iine and its
� Northeasterly extension: Commencing at the Northeast corner of Lot 3, "Orchaxd Beach"; thence
on an assumed bearing of North along the Northerly extension of the Ea.st line of said Lot 3 a
� distance of 78.92 feet; thence on a bearing of West a distance of 89.50 feet to the point of beginning
� of the line being described; thence South 31 degrees 56 minutes 53 seconds West to the
Southwesterly Iine of said Lot 2 and there ending. Subject to the easement for County State Aid
Highway No. 19 as shown in Hennepin County Highway Plat No. 50 recorded as CR Docuznent
#4746U%4. Sub;ect tc a perpetual easement for u.nder�rround utility purposes in favor of the Ci�ty of
- Orono as contained in CR Document#3925296.
140991
06-3246 4205 North Shore Drive Variance Baian�»
$o.00
Summary All Variances and CUP's get a$500 Englneerfng credit and a$28
Legal $0.00 Legal credit(2008 and later)
Mary Jo Peterson Engineering $2,533.00
12245 Nicollet Ave.South Subtotal $2,533.00 Preliminary Plat ApplicaUon Fees Pafd
Bumsville,MN 55357 Credits $0.00
Payments ($2,533.00)
Balance $0.00
Total Application Fees $0.00
Legal
Involce Date AcUvity Invoice# Amount Prelim Plat Improvement Fees
Total $0.00 Fees Paid Applicable to Engineering Prelim Plat $0.00
Englneering
Invoice Date Activity Invoice# Amount
11/19/07 3246 engineering 20070245 $ 2,093.00 Final Plat Applicatfon Fees Paid
01/18/OS 3246 engineering 20080025 440.00
Total Final Plat App Fees $0.00
Total $2,533.00 Final Engineering Fees Paid
Credits Fees Paid Applicable to Engineering Final Plat $0.00
Date Payment Type Check# Amount
Total Fees Paid $0.00
Total $0.00
Payments
Date Payment Type Check# Amount
02/08/08 AR payment 20070245,20080025 5250 ($2,533.00)
Total ($2,533.00)
2/9/2011