2006-05-16 Couri Affidavit
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STATE OF MINNESOTA
DISTRICT COURT
COUNTY OF WRlGHT
TENTH JUDICIAL DISTRICT
Case Type: Other Civil
Court File No. C9-05-2481
City of Albertville, Minnesota,
Plaintiff,
vs.
AFFIDAVIT OF MICHAEL C. COURI
Edina Development Corporation,
Defendant.
STATE OF MINNESOTA)
) ss.
COuNTY OF WRIGHT )
MICHAEL C. COURI, being fIrst duly sworn and under oath deposes and states,
under penalty of peIjury, as follows:
1. This affIant is an attorney licensed to practice law 10 the State of
Minnesota.
2. This affIant represents the City of Albertville ("City") in the above-entitled
litigation and submits this affIdavit in support of the City's motion for leave
to amend its Complaint and to vacate the scheduling order.
3. The City and Defendant Edina Development Corporation ("Edina") entered
into settlement discussions in December, 2005 in an effort to settle the
claims in this litigation. During these discussions, the City and Edina orally
reached a tentative settlement agreement tentatively resolving the issues.
raised in this litigation.
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4. Upon reaching the tentative settlement agreement in December, 2005, the
City and Edina agreed to suspend further discovery production pending the
execution of a written settlement agreement and ultimate settlement of the
issues raised in this litigation.
5. The Stipulation and Settlement Agreement attached as Exhibit A to this
AffIdavit is a true and correct copy of the Stipulation and Settlement
{\.greement that was executed in my presence by representatives of the City
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of Albertville and Edina Development Corporation on May 8, 2006.
6. The Stipulation and Settlement Agreement is contingent upon the City must
processing and granting a variance for several lots owned by Edina. The
City expects to fmish processing the variance request by June 30, 2006.
7. To date, discovery responses have consisted of answers to interrogatories
and requests for admissions. No document production has occurred to date
nor have any depositions been taken in this case.
Dated: May 16, 2006
Further Your AffIant Sayeth Not,
/JJl{ ~
Michael C. Couri
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EXHIBIT
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A
8T A TE OF MINNESOTA
DISTRICT COURT
COUNTY OF WRlGHT
TENTH JUDICIAL DISTRICT
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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;
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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;
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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
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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 Use/Planned 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
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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
f~ilure 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
Of' tion of Edina, provided Edina nQtifies the City Administrator of the election of ~
bf ,.tcti,16f wvitttlll#o1hl r
s*... ch option within 14 daysVofthe Cjty's failure to grant such variances. In the ~
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event the variance is not grantecf, 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
ac;:tual 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
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entered into this Agreement and that there are no representations made by the City
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~nd Edina, or their attorneys, agents or other representatives which are not
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expressly set forth in this Agreement.
12.
It is specifically understood that, by reason of entering into this Agreement, no
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warty admits liability of any sort and that such parties have made no representations
is to the extent of damages and/or injuries or the liability issues previously raised.
;t is further specifically understood and agreed that this Agreement shall not be
10nstrued as an admission of Jjability on the part of the parties, or by auyoue else,
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l~ability having, at all times, been denied.
13.
This Agreement may be executed in any number of counterparts, all of which shall
oonstitute a single agreement.
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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
cpntractual and not mere recitals. This Agreement may not be modified or changed,
e~cept by writings signed by the Parties hereto. This Agreement shall be construed
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iI1l accordance with and governed by the laws of the State of Minnesota.
15. qpon 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 Distriot Court requesting that the Court order this Lawsuit
be dismissed without prejudice to either party and without costs and disbursements
to any party.
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Date: ,5'- J -0("
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Date: S - 3-00
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DEFENDANT
EDINA DEVELOPMENT CORPORATION INC.
Date: 5"J->r;j>Ob
By: ;4,:/{ 'L "
Its: f1J/:;J "
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