2006-05-09 City Attorney Memo - Edina Settlement
Page 1 of 1
Tori Leonhardt
From: Mike Couri [mcouri@earthlink.net]
Sent: Tuesday, May 09,20062:31 PM
To: Bridget Miller; Tina Lannes; Mark Kasma; Larry Kruse; Jon Sutherland; AI Brixius; Adam Nafstad;
Tori Leonhardt
Cc: Bob Moberg
Subject: Edina Development Settlement
The City and Edina Development signed the attached settlement agreement on Monday, May 8th, and Edina paid
the City $328,000 in past due fees and expenses. The agreement settles the fee litigation, requires Edina to
complete the punch list items, and requires the City to begin processing a variance for all of Edina's lots in Albert
Villas 6th addition to lower the wetland buffer area and buffer setback from 30 feet to 12 feet. Rather than
process only the lots owned by Edina, we had thought that the City would process the variance for all affected lots
in all of the Albertvillas plats. AI, can you start that process? Under our agreement, Edina does not have to
submit an application as the City has agreed to simply begin processing the variance.
Please note that the settlement does not prohibit the City from declaring defaults in the future, but does prohibit
the City from withholding building permits in the 6th Addition due to a default. As a result, the City should process
any building permit applications from any addition that meet current City ordinances. If the application does not
meet current City ordinance, the building permit should be rejected the same as any other building permit. Edina
is supposed to submit a revised grading plan for the 6th Addition for those lots whose elevation is too low as a
result of BMl's recent flood study conclusions. Adam is going to contact Plow Engineering with the proper
elevation data. I would recommend holding the building permits for any lot that needs a revised grading plan until
that plan is submitted and approved by the City. We are hoping that Plow Engineering will submit one revised
grading plan for all affected lots.
Please feel free to contact me with any questions you may have. Thank you.
Mike Couri
Couri, MacArthur & Ruppe, P.L.L.P.
705 Central Avenue East
P.O. Box 369
St. Michael, MN 55376
763-497-1930
5/9/2006
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RECEIPT
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EASEMENT AGREEMENT
THIS AGREEMENT, is made and entered into this :J... L/1 ~ay of April, 2006,
by and between Donald Barthel and Betty L. Barthel, husband and wife, (together,
"Grantor"), and State Bank of Long Lake, a Minnesota fmancial corporation,
("Grantee"):
REeIT ALS
WITNESSETH, that the Grantor is the owner of that tract of land in the County
of Wright, State of Minnesota, described as follows:
Outlot A, Block 2, Barthel Commercial Park Second Addition,
and the Grantee is the owner of that tract of land in the County of Wright, State of
Minnesota, described as follows:
Lot l, Block l, Albertville Crossing Third Addition.
The Grantor and Grantee have agreed upon the easement provisions hereinafter
described:
NOW THEREFORE, in consideration of One Dollar and other good and
valuable consideration paid by the Grantee to the Grantor, the receipt of which is hereby
acknowledged, and the mutual covenants herein, the Grantor and Grantee agree as
follows:
1. Easement Granted. Subject to the terms and conditions of this Agreement,
Grantor hereby grants, transfers, conveys and declares, an easement under, over and
through the following portion of Grantor's property, (the "Easement Tract"), which
easement shall burden the Grantor's property and shall be appurtenant to and for the
benefit of Grantee's property:
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A 20 foot wide strip of land across Outlot A, BARTHEL COMMERCIAL PARK
SECOND ADDITION, Wright County, Minnesota, the center line of said strip is
described as follows:
Commencing at the southwest comer of said Outlot A; thence on an assumed
bearing of North 89 degrees 25 minutes 09 seconds East, along the south line of
said Outlot A, a distance of 11.66 feet to the point of beginning of the center line
to be described; thence North 7 degrees 55 minutes 34 seconds East a distance of
56.97 feet and said center line there terminating.
2. Storm Drainage Purpose. The easement shall be used exclusively for the
following purposes: installation, maintenance, repair, replacement and use of a storm
sewer main, storm water collection, retention, detention and distribution lines, conduits,
pipes and other related apparatus, under, over and across the Easement Tract. All lines,
conduits, pipes and other apparatus for water drainage are herein called the "Water
Detention and Drainage Facilities." The easement granted herein shall include the right
of reasonable ingress and egress with respect to the Water Detention and Drainage
Facilities required to install, maintain and operate the same.
3. Construction of Water Detention and Drainaee Facilities. Construction of the
Water Detention and Drainage Facilities on the Easement Tract shall be in accordance with
the plans and specifications approved by the City of Albertville. The cost thereof,
including without limitation, all engineering costs, legal costs, recording fees,
construction costs, and other associated costs in connection with construction of the
Water Detention and Drainage Facilities, shall be paid by the Grantee.
4. Mechanic's or Construction Liens. If, because of any act or omission (or
alleged act or omission) of Grantee, any mechanic's or construction lien shall be filed
against the Easement Tract (whether or not such lien is valid or enforceable as such), the
Grantee shall cause same to be discharged of record, or bonded, with respect to the
Easement Tract, within thirty (30) days after being notified of the filing thereof; and the
Grantee shall indemnify and save harmless the Grantor, from all costs, liabilities, suits,
penalties, claims and demands, including reasonable attorneys' fees resulting therefrom.
5. Bindine Effect. The easement created hereby and other terms of this Agreement
shall be considered covenants running with the land, and shall be binding upon the inure
to the benefit and burden of the respective owners of the Grantor's and Grantee's
properties, and their respective successor, heirs, personal representatives and assigns who
become the owners. The Grantor and Grantee now, and hereafter their respective
successors, heirs, personal representatives and assigns owning any portion of the
properties herein, shall be liable for performance of all covenants, obligations and
undertakings herein set forth.
6. Recitals. The recitals set forth herein are incorporated herein for all purposes.
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7. Covenants Runnin2 with the Land. All easements and covenants described
herein are perpetual and shall run with the land. Provided, however, any transfer of
ownership of Grantee's property, by conveyance, operation of law or otherwise, shall
operate to relieve such transferring Grantee from liability for costs or obligations arising
hereunder after the date of such transfer, but such transferring Grantee shall remain liable
for any costs incurred while such transferring Grantee was bound by the terms of this
Agreement.
8. Severability. If any provision of this Agreement is held invalid, the validity of the
remainder of the Agreement shall not be affected thereby.
9. Failure to Enforce Not a Waiver. No provision contained in this Agreement
shall be deemed to have been abrogated or waived by reason of any failure to enforce or
exercise the same.
10. Recording. This Agreement shall be filed against the title to the respective
properties of the Grantor and Grantee.
11. No Gift or Public Dedication. Nothing contained in this Agreement will be
deemed to be a gift or dedication of any portion of the Grantor's or Grantee's property to
the general public for the general public or for any public purpose whatsoever, it being the
intention of the parties that this Agreement be strictly limited to and for the purposes
expressed herein.
12. Governin1! Law. This Agreement has been entered into in the State of Minnesota
and shall be governed by and construed under the laws of the State of Minnesota.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the day set forth above.
STATE BANK OF LONG LAKE
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By: Michael Byrne
Its: President
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Donald arthel _
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STATE OF MINNESOTA)
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COUNTY OF'vJr"c;'.A: )
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The foregoing instrument was acknowledged before me this..2~ day of April,
2006, by Betty L. Barthel and Donald Barthe~I' M~~ an;W-~
. JAYV.EUU N:~' yP-blic
NOTARY PUBLIC. MINNESOrA
My Commission Expires Jan. 31, 2010
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COUNTY OF HENNEPIN)
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The foregoing instrument was acknowledged before me this2Lf day of April,
2006, by Michael Byrne, the President of State Bank of Long Lake, a Minnesota financial
corporation, on behalf of the corporation.
JAY V. EUlL
NOTARY PUBLIC. MINNESOTA
My CommISSIon Explrea Jan. 31, 2010
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THIS INSTRUMENT DRAFTED BY:
STANDKE, GREENE & GREENSTEIN, LTD.
17717 Highway 7
Minnetonka, Minnesota 55345
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STORM
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APRIL 10, 2006
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1 INCH = 100 FEET
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CORNER OF CUlLOT A, '
BARTHEL COMMERCIAL \ 10 OJ
PARK SECOND ADDITION-"
A 20 foot wide strip of land across Outlot A.
BARTHEL COMMERCIAL PARK SECOND ADDITION,
Wright County, Minnesota. the center line of said
strip is described os follows:
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Commencing at the southwest corner of said
Outlot A; thence on on assumed bearing of North
89 degrees 25 minutes 09 seconds East, along
the south line of said Outlot A, a distance of
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center line to be described; thence North 7
degrees 55 minutes 34 seconds East 0 distance
of 56.97 feet and said center line there
terminating.
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The side lines of said easement sholl be prolonged
or shortened to terminate on said sou th line.
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ALBERTVILLE CROfSING THIRD
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ADDITION
APRIL 10. 2006
11432-STORM EXHIBIT
Anderson Engineering of Minnesota, LLC.
CIVIL ENGINEERING AND LAND SURVEYING
13605 1ST AVENUE NORTH, SUITE 100, PLYMOUTH, MN 55441 TEL (763) 383-1084 FAX (763 383-1089
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 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
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.
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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
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 nqtifies the City Administrator of the election of ~
~f ,..tct;f16f wvitttit lIoYhl (
such option within 14 days "of the City's failure to grant such variances. In the ~
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event the variance is not grantee{ 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: S-I ,(Jt,
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DEFENDANT
EDINA DEVELOPMENT CORPORATION INC.
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