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2006-05-08 Signed Final Stipulation and Settlement STATE OF MINNESOTA DISTRICT COURT COUNTY OF WRIGHT TENTH JUDICIAL DISTRICT Court File No. C9-05-2481 City of Albertville, a municipal corporation under the laws of the State of Minnesota, Plaintiff, v. Edina Development Corporation, Inc., Defendant. STIPULATION AND SETTLEMENT AGREEMENT This Stipulation and Settlement Agreement ("Agreement") is made by and between the City of Albertville ("City"), Plaintiff, and Edina Development Corporation Inc., ("Edina"), Defendant (collectively the "Parties"). The Parties have agreed to the following stipulation and to dismiss without prejudice to any party the following lawsuit currently pending in Wright County District Court: Court File No.C9-05-2481. WHEREAS, The City commenced a legal action against Edina alleging in its complaint ("Complaint"), among other things, breach of contract relating to various Development Agreements between the City and Edina wherein Edina developed certain real property within the City; and WHEREAS, Edina has denied the allegations in Albertville's Complaint and contends Albertville has.no procedural or substantive basis to make the claims alleged; WHEREAS, the parties recognize that they will incur substantial legal fees and costs associated with protracted litigation; and WHEREAS, the parties desire to settle this lawsuit in order to avoid the costs and risks associated with protracted litigation. The Parties hereby stipulate and agree that: 1. Upon the execution of this Agreement, Edina shall pay the City $328,000.00 via certified check as a monetary settlement of the claims alleged in the Complaint. Upon the execution of this Agreement the City shall not withhold building permits, upon proper application, for any lots in Albert Villas 6th Addition, provided said building permit applications meet all applicable City ordinances. For any lot which does not meet City ordinances without raising the elevation of the lowest floor or the lowest opening, the Developer shall submit a revised grading plan acceptable to the City showing the revised elevations for such lot. 2. Upon the City's receipt of payment from Edina identified in paragraph one of this Agreement, the City shall deem cured the defaults of Edina as alleged in the Complaint, including any and all interest and attorneys fees incurred by the City in relation to any of the defaults alleged in the Complaint, and including the alleged default, fees and/or costs associated with the trail along Swamp Lake, and including the obligation of Edina to reimburse the City for all of its costs and expenses incurred in relation to the creation, administration, enforcement and 2 execution of the Development Contracts and the related plats as alleged in the Complaint. 3. The City hereby deems cured the default of Edina as alleged in the Complaint pursuant to the City of Albertville Conditional UseIPlanned Unit Development Agreement Albert Villas Sixth Addition dated May 30, 2003, as it relates to the construction of a bituminous trail on Defendant's property. The City mayor may not choose to construct said trail along Swamp Lake, but in no event shall Edina be required to construct said trail. 4. The City will suspend until June 15,2006 Edina's defaults alleged in the Complaint related to the construction items that are identified in the SEH letter dated December 6, 2005 and attached as Exhibit A to this agreement. Edina shall complete the construction items identified on said Exhibit A by June 15, 2006 subject to approval by the City, which will not be unreasonably withheld. In the event that Edina fails to complete the construction items identified on Exhibit A by June 15, 2006 the City will have the option to reinstate said alleged defaults for failure to complete said construction items and seek any remedy available to it pursuant to said various Development Agreements. If Edina satisfactorily completes said construction items by June 15,2006 the defaults alleged in the Complaint related to said items shall be deemed cured. 5. The City specifically does not waive its contractual rights related to any default of Edina not specifically alleged in the Complaint. In addition, the City specifically 3 reserves the right to make a claim, if any exists, against Edina related to the adequacy of the storm water ponding and drainage systems installed pursuant to the various Development Agreements. However, in the event the City makes such a claim, the City shall not withhold building permits in Albert Villa's 6th Addition, provided such building permit applications comply with the requirements set forth in paragraph 1 above. 6. Edina shall make good faith efforts to diligently correct and finish the construction-related items listed in paragraph 4 above by June 15, 2006. 7. Edina hereby deems cured the current breach of contract claim alleged against the City by Edina in Edina's answer and counterclaim and waives any claim of damages against the City for the City's alleged breach of the various Development Agreements, which are the subject of this litigation. 8. The City agrees to consider in good faith a variance from the 30-foot wetland buffer strip and structure setback (as contained in City Code Section 5000.5B) to reduce the buffer strip and structure setback to 12 feet on the following lots located in all Albert Villas Additions plats shown on the attached Exhibit B. The City shall initiate the processing of such variance within 30 days of the execution of this Agreement. Edina shall not be required to submit such a variance application. In the event the City grants the variance, Edina shall relocate the wetland markers from their present location at the 30-foot buffer mark to the 12-foot buffer mark. The City agrees to waive all fees associated with obtaining the variances. 4 9. Performance of the terms of this Agreement by the City and Edina is contingent upon the City granting the variances specified in paragraph 8 above, except that the performance of the requirements of paragraph one above shall occur immediately and such performance of paragraph one shall terminate only upon the failure of Edina to pay the required $328,000.00 to the City or upon this Agreement becoming null and void under the terms of this paragraph. If the City fails to timely grant such variances, this Agreement shall be null and void at the option of Edina, provided Edina n<}tifies the City Administrator of the election of ~ 4f ,.afT, f ""vitti" "ol/c! { such option within 14 daysVofthe City's failure to grant such variances. In the ~ 4IiI q;~ tltc.f.r to vol/ fltt'f tJj"I'tl..t"~ I event the variance is not granteJ: the City shall return the $328,000.00 to Edina within 14 days of the written notice. In such event, the City shall pay Edina the actual interest earned by the City on said $328,000.00. 10. This Agreement is intended to resolve the allegations contained in the Complaint, Answer and Counterclaim between the Parties but is not intended to affect in any way the continued validity of the various Development Agreements which are the subject of this litigation and said Development Agreements are to remain in full force and effect. 11. In entering into this Agreement, the City and Edina all represent that they have been represented by independent legal counsel, that they have read the terms of this Agreement, and that those terms are fully understood and voluntarily accepted by them. The parties further affirmatively represent that they have voluntarily 5 entered into this Agreement and that there are no representations made by the City and Edina, or their attorneys, agents or other representatives which are not expressly set forth in this Agreement. 12. It is specifically understood that, by reason of entering into this Agreement, no party admits liability of any sort and that such parties have made no representations as to the extent of damages and/or injuries or the liability issues previously raised. It is further specifically understood and agreed that this Agreement shall not be construed as an admission of liability on the part of the parties, or by anyone else, liability having, at all times, been denied. 13. This Agreement may be executed in any number of counterparts, all of which shall constitute a single agreement. 14. This Agreement contains the entire Agreement between the Parties hereto related to the settlement of the litigation referred to herein. The terms of this Agreement are contractual and not mere recitals. This Agreement may not be modified or changed, except by writings signed by the Parties hereto. This Agreement shall be construed in accordance with and governed by the laws of the State of Minnesota. 15. Upon satisfaction of the contingencies contained herein, the parties hereby authorize their respective attorneys to execute a Stipulation of Dismissal, which shall be filed with the Wright County District Court requesting that the Court order this Lawsuit be dismissed without prejudice to either party and without costs and disbursements to any party. 6 Date: 5" -I ofJ' /') Date: '5 - 3 -Q(p y .~' A~)}1Yl ~~ ~tyae~ DEFENDANT EDINA DEVELOPMENT CORPORATION INC. Date: )' <"f{ ~ 0 b By: f4,~. L- ~ v fruo ' Its: 7 o en C\I '\"'"'l C\l "r"'t .'P"q uo ~ C8 II) a:: c( ..J ..J o o \.D o o N ro o >. III ::E tAo o 0) (\J ~ (\J ~ ~ ru ..z C"- O'" (/) ..z 0:: ru ~ ...:l cll ...:l 0'" 0 Cl - 0 0 0 .. M 0'" ........ 0 - 0 0 Cl 0 U Z ~ 0 ...I 0 ...J Cl - ui Z 0'" U ~ Z (/) 0 < D .. Z 0 l.L. 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