IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CIVIL COURT DEPARTMENT

Transcription

1 IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CIVIL COURT DEPARTMENT IN THE MATTER OF THE ACQUISITION OF PROPERTY BY EMINENT DOMAIN THE CITY OF OVERLAND PARK, KANSAS, A Municipal Corporation, Plaintiff-Condemnor, vs. Case No. 13-CV-5111 Court No. 4 Action Involves Title To Real Property Oak Park Mall, LLC; Mortgage Electronic Registration Systems, Inc.; Oak Park Investment, L.P.; Oak Park Bank Building, LLC; Wells Fargo Bank, National Association; US Bank National Association; Kansas City Power & Light Company; WaterOne f/k/a Water District No. 1 of Johnson County; Johnson County Wastewater District f/ k/a Indian Creek Middle Basin Joint Sewer District No. 3; Academy, Ltd.; Challenger, Inc. d/b/a Nichols Plaza West, Inc.; Mimi s Café Kansas, Inc.; CHARLES LETCHER, in his capacity of Treasurer of Johnson County, Kansas; and the unknown heirs, executors, administrators, devisees, trustees, creditors, spouses, guardians, conservators, successors, and assigns of all such defendants as were or are now serving in any similar fiduciary capacity; any unknown persons claiming an interest in the real property described herein and any unknown persons in possession of the real property described herein, Defendant-Landowners.

2 NOTICE OF PROCEEDING TO CONDEMN LAND AND NOTICE OF HEARING TO CONSIDER PETITION The named defendant-landowners and other interested parties are hereby notified that July 12 th, 2013, the City of Overland Park, Kansas filed an Eminent Domain Petition in the District Court of Johnson County, Kansas seeking the condemnation of certain lands and real property interests therein in Johnson County, Kansas, all as set forth in the said Petition. The Court has ordered that the Petition shall be taken up and considered by the Court on August 26 th, 2013, at 10:30 a.m. before the Honorable Judge Elliott, Judge of the Johnson County District Court (Division 4, 3 rd Floor), at the Johnson County Courthouse, 100 North Kansas Avenue, Olathe, Kansas. THE CITY OF OVERLAND PARK, KANSAS /s/ Tammy M. Owens By Tammy M. Owens #16377 Deputy City Attorney 8500 Santa Fe Drive Overland Park, KS Telephone: (913) ATTORNEY FOR PLAINTIFF

3 IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CIVIL COURT DEPARTMENT IN THE MATTER OF THE ACQUISITION OF PROPERTY BY EMINENT DOMAIN THE CITY OF OVERLAND PARK, KANSAS, A Municipal Corporation, Plaintiff-Condemnor, vs. Case No. 13 CV 5111 Court No. 4 Action Involves Title To Real Property Oak Park Mall, LLC; Mortgage Electronic Registration Systems, Inc.; Oak Park Investment, L.P.; Oak Park Bank Building, LLC; Wells Fargo Bank, National Association; US Bank National Association; Kansas City Power & Light Company; WaterOne f/k/a Water District No. 1 of Johnson County; Johnson County Wastewater District f/ k/a Indian Creek Middle Basin Joint Sewer District No. 3; Academy, Ltd.; Challenger, Inc. d/b/a Nichols Plaza West, Inc.; Mimi s Café Kansas, Inc.; CHARLES LETCHER, in his capacity of Treasurer of Johnson County, Kansas; and the unknown heirs, executors, administrators, devisees, trustees, creditors, spouses, guardians, conservators, successors, and assigns of all such defendants as were or are now serving in any similar fiduciary capacity; any unknown persons claiming an interest in the real property described herein and any unknown persons in possession of the real property described herein, Defendant-Landowners. EMINENT DOMAIN PETITION Plaintiff, City of Overland Park, Kansas, by and through its Deputy City Attorney, Tammy M. Owens, for its verified Petition states the following:

4 1. Plaintiff, City of Overland Park, Kansas, is a municipal corporation duly organized, existing, and constituted under and by virtue of the laws of the State of Kansas. 2. Plaintiff is undertaking a public road improvement project generally located at 95 th Street and Quivira Road within Overland Park, Johnson County, Kansas. The project involves the installation of a traffic signal system as well as associated work to construct, install, operate and maintain the traffic signal system and other appurtenant facilities, structures, and equipment. Plaintiff s Governing Body has determined by resolution and ordinance the real property and real property interests to be acquired by this action are necessary for the proper design, construction, operation and maintenance of such project and improvements. 3. Pursuant to K.S.A , Plaintiff has the power and authority to acquire the interests in and to the real property described herein by the exercise of its power of eminent domain, as deemed necessary by its Governing Body for its lawful uses and purposes as described above, all pursuant to the procedures set forth at K.S.A , et seq. Plaintiff and its Governing Body have, prior to the filing of this Petition, performed all acts required by the above-referenced statutes to appropriate private property to and for its uses and purposes by exercise of its powers of eminent domain, and has, specifically: (a) determined by resolution and publication of the same it is necessary to acquire by the exercise of its power of eminent domain the real property and real property interests which are described herein for the design, laying-out construction, operation and maintenance of the above-described public improvement project; (b) provided for a survey and description of the properties required by a competent engineer or land surveyor, a report of which has been filed with the City Clerk; (c) approved an ordinance exercising the power of eminent domain and declaring the appropriation of said interests in and to the real property described herein; and (d) directed its City Attorney to institute these proceedings. Such resolutions, ordinances and

5 other actions as described above were duly and properly taken in compliance with applicable statutes and ordinances. mean: 4. For purposes of this Petition and this action, the term Traffic Signal Easement shall Subject to existing easements of record, a perpetual easement without expiration over, across, upon and under the surface of the described lands for the purpose of entering upon, constructing and maintaining, or authorizing the location, construction, or maintenance, and use of conduits, poles, wires, ducts, cables, including the right to repair, replace and maintain a traffic signal system and for any reconstruction and future expansion of such facilities within the area of easement together with the right of access to the easement and over the easement for these purposes; and ingress and egress to the property for the above-stated purposes. Such easement shall be permanent, shall run with the land, and shall be binding upon all successors and assigns. 5. Plaintiff s Governing Body, in regular session and in exercise of its power of eminent domain did authorize and provide for the acquisition of the real property and real property interests described herein located in Overland Park, Johnson County, Kansas, as necessary to be acquired for its purposes in connection with the above-described public improvement project:

6 TRACT NO. 2 Lot 16, Block 1, OAK PARK SHOPPING CENTER THIRD PLAT, a subdivision in the City of Overland Park, Johnson County, Kansas. Owners: Oak Park Mall, LLC Address: 2030 Hamilton Place Blvd., Suite 500 Chattanooga, TN Oak Park Mall, LLC c/o Corporation Service Company 2900 SW Wanamaker Drive, Suite 204 Topeka, KS LIENHOLDERS PARTIES IN POSSESSION AND OTHER INTERESTED PARTIES: Charles Letcher, in his capacity of Treasurer of Johnson County, Kansas Address: (Attn: Property Tax Division) County Administration Building 111 South Cherry Street Olathe, KS Mortgage Electronic Registration Systems, Inc. Address: P.O. Box 2300 Flint, Michigan Wells Fargo Bank, National Association Address: Attn: Lease Reviews 1901 Harrison Street, 2 nd Floor Oakland, CA US Bank National Association Address: Attn: Legal Dept. 800 Nicolett Mall Minneapolis, MN Academy, Ltd. Address: 1800 North Mason Road Katy, TX Attn: Real Estate Dept North Mason Road Katy, TX Attn: General Counsel

7 Mimi s Café Kansas, Inc. Address: Merit Drive, Suite 900 Attn: Legal Department Dallas, TX c/o Corporation Service Company 2900 SW Wanamaker Drive, Suite 204 Topeka, KS Challenger, Inc. (merged out of existence, d/b/a Nichols Plaza West, Inc.) Address: Highwoods Properties, Inc. c/o Legal Department 3100 Smoketree Court, Suite 600 Raleigh, NC Oak Park Investment, L.P. Address: 8900 State Line Road, Suite 333 Leawood, KS Oak Park Bank Building, LLC Address: 1100 Walnut, Suite 2000 Kansas City, MO Oak Park Bank Building, LLC c/o Kansas Corporation #2, Inc Somerset Drive Ste. 208 Prairie Village, KS Kansas City Power & Light Company Address: William Downey, President 1200 Main Street Kansas City, MO Kansas City Power & Light Co. Attn: Teresa R. Laidacker, Sr. Atty-Litigation 1200 Main, Law, Floor 16B Kansas City, MO Kansas City Power & Light Co. c/o National Registered Agents, Inc. 300-B East High Street Jefferson City, MO WaterOne f/k/a Water District No. 1 of Johnson County Address: Charlie Daniells

8 Engineering Dept Renner Blvd. Lenexa, KS Eric Arner, General Counsel WaterOne Renner Blvd. Lenexa, KS Johnson County Wastewater District f/k/a Indian Creek Middle Basin Joint Sewer District No. 3 Address: Attn: Robert Ford Johnson County Administrative Building 111 S. Cherry St. Olathe, KS Johnson County Wastewater District Attn: Jim Hunsucker, Engineering Specialist South Sunset Drive, Suite 2500 Olathe, KS Johnson County Wastewater District South Sunset Drive, Suite 2500 Olathe, KS REAL PROPERTY INTERESTS TO BE ACQUIRED: TRAFFIC SIGNAL EASEMENT That part of Lot 16, Block 1 of OAK PARK SHOPPING CENTER, THIRD PLAT, according to the recorded subdivision plat thereof, in the City of Overland Park, Johnson County, Kansas, described as follows; Beginning at the most Northerly Northwest corner of said Lot 16; thence N87 45'31"E along the North line of said Lot 16, a distance of feet; thence S02 14'29"E, a distance of feet; thence S87 45'31"W, a distance of feet; thence N02 14'29"W, a distance of 7.00 feet; thence S87 45'31"W, a distance of feet; thence S42 49'38"W, a distance of feet to a point on the West line of said Lot 16; thence N02 06'15"W along said West line, a distance of feet to a point on the Northwest line of said Lot 16; thence N42 49'38"E along said Northwest line, a distance of feet to the Point of Beginning; said parcel of land containing 838 square feet, more or less. WHEREFORE, Plaintiff-Condemnor hereby respectfully prays that the Court examine this verified Petition and enter its order setting a hearing for its consideration by the Court, and that at such hearing enter its order finding that Plaintiff has the power of eminent domain; finding that the

9 takings described herein are necessary for its lawful purposes; appointing three disinterested residents of Johnson County to view and appraise the value of such parcels to determine just compensation to be paid to all interested parties resulting from said takings and to set forth such determinations in a written Report; setting a deadline for the filing of such Report; and for such further relief as the Court deems just and equitable. Respectfully submitted, CITY OF OVERLAND PARK, KANSAS By: /s/ Tammy M. Owens Tammy M. Owens, KS # Deputy City Attorney 8500 Santa Fe Drive Overland Park, Kansas (Fax) tammy.owens@opkansas.org ATTORNEY FOR PLAINTIFF, THE CITY OF OVERLAND PARK, KANSAS

10 VERIFICATION STATE OF KANSAS ) ) ss. COUNTY OF JOHNSON ) Brian Shields, being first duly sworn upon my oath, state I am over the age of eighteen years; I am the duly-appointed Traffic Engineer for the City of Overland Park, Kansas; I have read the foregoing Eminent Domain Petition and the allegations and facts set forth therein are true and correct to my best knowledge and belief. /s/ Brian Shields Brian Shields Traffic Engineer The City of Overland Park, Kansas Subscribed and sworn to before me this 12 th day of July, My appointment expires: /s/ Chelsee Anne Chism Notary Public 5/19/14