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HomeMy WebLinkAbout[06] Graceview Estates Stipulation AgreementI CITY OF ST. JOSK1111 Council Agenda Item 6 MEETING DATE: January 21, 2010 AGENDA ITEM: Graceview Estates Stipulation Agreement SUBMITTED BY: Administration BOARD /COMMISSION /COMMITTEE RECOMMENDATION: The Attorney assigned to the City by the League of MN Cities (Jim Thomson) and the City Attorney are recommending execution of the stipulation agreement. PREVIOUS COUNCIL ACTION: The City executed a mediated settlement agreement in August 2009. BACKGROUND INFORMATION: The City of St. Joseph was part of lawsuit regarding the Graceview Estates Development. The lawsuit was two parts, the first matter included S & H Partnership and the Apartment Facility. The Council approved a mediated development agreement which allowed the construction of the apartment complex, which is under construction. The second matter included Pond View Ridge LLP and was related to the development of the remaining undeveloped land in the PUD approved in 2002 entitled Graceview Estates. The Attorneys have provided a stipulation agreement whereby it is acknowledged that the remaining portion of the single family development in Graceview Estates is permitted without the owner obtaining further zoning approvals such as special use, replattting, building permits. The developer will be required to complete the final platting procedures including the execution of a development agreement. The stipulation agreement does not relate to the senior complex that was proposed in 2002. The agreement is public information, however, if the Council would like to discuss the agreement in detail, discussing the mediation, that should be done is a closed session. For that reason we are posting the potential for a closed meeting. The City Attorney will be present at the meeting to answer any questions you may have. BUDGET /FISCAL IMPACT: ATTACHMENTS: Settlement Agreement REQUESTED COUNCIL ACTION: Authorize the Mayor and Administrator to execute the settlement agreement between the City of St. Joseph and Pond View Ridge LLP. R I N K E N O O N A N A T T O R N E Y S A T L A W SUITE 300, US BANK PLAZA, P. O. BOX 1497 1015 W. ST. GERMAIN STREET ST. CLOUD, MINNESOTA 56302 -1497 TELEPHONE 320- 251 -6700, FAX 320- 656 -3500 EMAIL: MAIL ®RNOON.COM WWW.RNOON.COM December 11, 2009 James Thomson, Esq. Kennedy & Graven 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 Re: S & H Partnership, et al. v. City of St. Joseph Court File No. 73 -CV -08 -16067 Our File No. 16534.004 Dear Mr. Thomson: Enclosed please find the Settlement Agreement executed by our client (Pond View Ridge, LLP) and Tim Sime. We have attached the referenced Exhibit A which is the Stipulation of Dismissal without Prejudice which can be filed with the Court after you and your client have signed the Settlement Agreement. Thank you. Sincerely, Darlene V. Finken, Paralegal /dvf Enclosure DEC 7 4 jg PDecember H. 2009.C2009 12 11 F.TATA \16534 \004\1.etters\Lener Jim Thomson executed settlement agreement. wpd dvf RINKE. NOONAN. SMOLEY. DETER. COLOMBO. WIANT, VON KORFF a HOBBB. LTD. D. Michael Noonan Gerald W. Von Korff John J. Babcock Pamela A. Stockman' Tim A. Simet William A. Smoley' Sharon G. Hobbs Igor S. Lenwer' Stefanie L. Brown Nicholas R. Delaney' Kurt A. Dater' David J. May.,.'- -- Gary R. Leiatico10 Tonya T. Hinkemeyer Adam A. Ripple Barrett L. Colombo John J. Meuers John C. Kolb Ryan J. Hatton1° Brodie L. Miller James L. Wiant Roger C. Justin— Scott G. Hamak Benjamin B. Bohnsock Andrew J. Steil' 1. O.Alihed neutral under %I. 114. 1. A Real Property Lew Specialist c.rti /ied Dy rhw Minn.sore Stare Sar A..aciation. 3. Admirt.d to pracric. — in Wi.con.ie. 4 . Admirtad to pmrtic. I.w in North Oakp.. 5. Admirtad Ip p—,i- law 111 Saurh Dakota. 6. Sherburne County E—i— p/Titlea. 7 . Admitted to p-- law in Arizona. S. A In/ to practice law in Iowa. SETTLEMENT AGREEMENT This Settlement Agreement is entered into this day of December _, 2009, by and between Plaintiff Pond View Ridge, LLP ( "Pond View Ridge ") and Defendant City of St. Joseph («City»). Recitals Pond View Ridge is the owner and developer of the Graceview Estates development in St. Joseph, Minnesota. The Graceview Estates property is approximately 91 acres in size. II. Pond View Ridge received various zoning and development approvals from the City for Graceview Estates in 2002. III. Pond View Ridge sold a potion of the Graceview Estates property ( Outlot A) to S & H Partnership ( "S &H ") in 2008. S & H intended to develop Outlot A for apartment buildings. IV. The City has claimed that certain multi - family uses of the Graceview Estates property (such as apartments and assisted living facilities) are not "permitted" uses under the applicable zoning for the property and therefore require additional special use permits. V. Pond View Ridge and S &H have claimed that these additional multi - family uses were permitted as part of the 2002 zoning and development approvals, and that no further special use permits are required. VI Pond View Ridge and S &H commenced an action entitled "S& H Partnership and Pond View Ridge, LLP v. City of St. Joseph" Court File No. 73 -CV -08 -16067 ( "Litigation ") to resolve the dispute over the uses "permitted" on the Graceview Estates property through the 2002 zoning and development approvals and to challenge the City's denial of a special use permit for the development of apartment buildings on Outlot A. VI. S & H and the City have resolved the issues in the Litigation relating to the development of Outlot A according to a Mediated Settlement Agreement. That Mediated Settlement Agreement requires Plaintiffs to dismiss Count I1 of the Complaint (relating to Outlot A) with prejudice. VII. Pond View Ridge and the City, while not admitting fault or error in their respective claims regarding the 2002 zoning and development approvals for the Graceview Estates property, wish to avoid further litigation costs and expenses and accordingly have agreed to settle their dispute on the terms below, including by dismissing the remaining claims (Counts I, III, IV and V) without prejudice, with intent of such terms being that neither party is waiving, and each parry shall preserve, its claims and defenses relating to the zoning and development approvals issued by the City in 2002. NOW, THEREFORE, and in consideration of the premises and mutual obligations, undertakings, promises, and covenants set forth herein, and for other good and valuable consideration, the parties agree as follows: Agreement 1. Claims Dismissed. Subject to the terms of this Agreement, the Parties agree that their counsel shall execute and file a Stipulation of Dismissal in the form set forth in the attached ExhibitA. The parties shall bear their own costs and attorney fees incurred in this litigation. 2. Single Family Uses. The City acknowledges that single family homes are a "permitted" use within Graceview Estates and that Pond View Ridge and its successors and assigns may develop_ Graceview Estates for such single family uses without obtaining further zoning approvals (including, without limitation, special use permits, but not including non - zoning matters such as subdivision, platting, and building permit approvals) from the City. It is the intent of this Agreement that each party shall preserve its claims and defenses relating to the zoning and development approvals issued by the City in 2002, including the issue of whether the City may require Pond View Ridge, or its successors and assigns, to construct Field Street or any other access road from Graceview Estates to County Road 121, as a condition of further developing the Graceview Estates property. 3. Agreement is Final and Binding. This Settlement Agreement is final and binding on all parties and their successors in interest. 4. Consideration. All parties agree that the consideration listed herein is adequate and is the only consideration for the mutual promises and undertakings in this Agreement. Enforcement. In the event any party breaches this Agreement, any other party may commence an action to enforce the agreement as provided by law. In addition to any injunctive relief or monetary damages, the prevailing parry shall be entitled to their reasonable attorney fees incurred in the action. 6. No Waiver by Failure to Enforce. Any failure to enforce at any time any term, condition, or warranty of this Agreement shall not be considered a waiver of the right thereafter to enforce each and every term, condition, and warranty of this Agreement. 7. No Third -Party Obligations. Nothing in this Settlement Agreement, express or implied, is intended to confer on any persons other than the parties to this Agreement or their respective successors or assigns, any rights, remedies, obligations or liabilities by reason of this Settlement Agreement. Knowing and Voluntary Agreement. The parties, by execution of this Agreement through their respective counsel, acknowledge that they have consulted their respective legal counsel, and that the terms of this Agreement are fully understood and voluntarily accepted by each party. 9. Authority to Execute. Any person or entity executing this Agreement on behalf of a party represents and warrants that he or she is duly authorized to enter into this Agreement on behalf of that party. 10. Controlling Law. This Agreement shall be deemed to be a contract under the laws of the State of Minnesota and for all purposes shall be construed and enforced in accordance with the laws of this state. [Signature pages to follow. ] Dated: CITY OF ST. JOSEPH Lo Attest: Its: Mayor City Clerk- Administrator AS TO STIPULATION OF DISMISSAL ONLY Dated: KENNEDY & GRAVEN, CHARTERED James J. Thomson, #145300 Attorney for Defendant 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337 -9209 Attorney for City of St. Joseph Dated: /07A-?10°/ POND VIEW RIDGE, LLP. By: Its: 4!_fr 41_eZ/d% /,�j►//f-�� AS TO STIPULATION OF DISMISSAL ONLY Dated: I c_)__ A � & C RINKE NOONAN Tim Si Su 0, US Bank Plaza 1015 W. St. Germain Street St. Cloud, MN 56302 (320) 251 -6700 Attorney for Pond View Ridge, LLP. 5 STATE OF MINNESOTA COUNTY OF STEARNS S & H Partnership and Pond View Ridge, LLP, Plaintiffs, Vs. City of St. Joseph, a govenunental subdivision of the State of Minnesota, Defendant. CaseType: 14 (Appeal of Municipal Decision, Declaratory Judgment. Writ of Mandamus) IN DISTRICT COURT SEVENTH JUDICIAL DISTRICT Case No. 05 -CV -06 -2226 STIPULATION OF DISMISSAL WITHOUT PREJUDICE AND ORDER IT IS HEREBY STIPULATED AND AGREED by and between Plaintiff Pond View Ridge, LLP and Defendant City of St. Joseph, through their attorneys, that any and all claims that said parties have or may have against each other have been fully compromised and settled as agreed to by the parties and that any claims asserted by each other be, and hereby are, dismissed without prejudice, on the merits, and without costs and disbursements to either party. [Signature pages to folloiv] �4 EXHIBIT Dated: RINKE NOONAN Dated: Tim Sime, #0265172 Attorneys for Plaintiff Pond View Ridge, LLP P.O. Box 1497 St. Cloud, MN 56302 -1497 (320) 251 -6700 KENNEDY & GRAVEN, CHARTERED James J. Thomson, 11145 3 00 Attorney for Defendant City of St. Joseph 470 U. S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337 -9209 ORDER The parties having agreed and stipulated to the same, it is hereby ordered, the above matter is hereby dismissed without prejudice without costs to either party. Dated: , 2010 2 BY THE COURT Judge of District Court