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HomeMy Public PortalAbout2022-86 - Resolution_Approving_Settlement_AgreementResolution 2022-86 October 18, 2022 Member Martin introduced the following resolution and moved its adoption: CITY OF MEDINA RESOLUTION NO. 2022-86 RESOLUTION APPROVING SETTLEMENT AGREEMENT AND MUTUAL RELEASE WHEREAS, the city of Medina (the “City”) is presently engaged in litigation in Hennepin County District Court (Court File No. 27-CV-21-7210) with North Metro Companies LLC, The Robert J. Muller Trust U/A/D June 4, 2004 and The Lawrence L. Pribyl Revocable Trust; and WHEREAS, the litigation was initiated by the City due to violations of the City’s ordinances on real property located at 2402 State Trunk Highway 55, Medina, Minnesota; and WHEREAS, the parties have negotiated a settlement of the dispute, the terms of which are contained into the Settlement Agreement and Mutual Release attached hereto as Exhibit A; and WHEREAS, the city council determines it is in the best interests of the public and the City’s taxpayers to approve and execute the Settlement Agreement and Mutual Release and bring an end to the litigation. NOW, THEREFORE, BE IT RESOLVED, that the city council of the city of Medina hereby approves the Settlement Agreement and Mutual Release in substantially the form as attached hereto as Exhibit A. NOW, THEREFORE, BE IT FURTHER RESOLVED, that the mayor and city administrator are hereby authorized and directed to sign the Settlement Agreement and Mutual Release when presented for signature by the city attorney. NOW, THEREFORE, BE IT FINALLY RESOLVED, that the mayor, city administrator, and city attorney are hereby authorized and directed to take any and all additional steps and actions necessary or convenient to finalize the appropriate documents and/or agreements to facilitate the settlement of this matter as provided herein and the City’s officers, employees, and consultants are authorized to take such steps as are needed to carry out the terms of the final settlement agreement. Dated: October 18, 2022. Kathleen Martin, Mayor 2 Resolution 2022-86 October 18, 2022 ATTEST: Scott T. Johnson, City Administrator-Clerk The motion for the adoption of the foregoing resolution was duly seconded by member Reid and upon vote being taken thereon, the following voted in favor thereof: Albers, Martin, Reid and the following voted against same: (Absent: Cavanaugh, DesLauriers) None Whereupon said resolution was declared duly passed and adopted. 1 EXHIBIT A SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release (“Settlement Agreement”) is made by and among the City of Medina (“City”), North Metro Companies, LLC, Robert J. Muller, or successor(s), as Trustee of The Robert J. Muller Trust U/A/D June 4, 2004 and The Lawrence L. Pribyl Revocable Trust (collectively “the Parties”). RECITALS WHEREAS, Robert J. Muller, or successor(s), as Trustee of The Robert J. Muller Trust U/A/D June 4, 2004 and the Lawrence L. Pribyl Revocable Trust (“Owners”) each own a one-half interest in the property located in Hennepin County at 2402 State Trunk Highway 55 in Medina, Minnesota (PID No. 04-118-23-41-0001) (“Subject Property”) legally described as: All that part of the Southeast Quarter of Section Four (4), Township One Hundred Eighteen (118), Range Twenty-three (23), lying Northeasterly of State Trunk Highway No. 55, according to the United States Government Survey thereof and situate in Hennepin County, Minnesota. (Abstract Property) WHEREAS, North Metro Companies LLC (“North Metro”) is a duly organized limited liability company under Minnesota Statutes Chapter 322C and has been operating a landscaping business on the Subject Property since approximately 2013. WHEREAS, planning and zoning controls for the Subject Property are governed by the Medina City Code. WHEREAS, in 2010 the Subject Property was re-zoned and designated as part of the City’s Commercial-Highway (C-H) District. WHEREAS, based on the re-zoning of the Subject Property in 2010, the Subject Property became subject to the following exterior storage restrictions in Section 838.5.08, Subd. 17 of the City Code: a) Outside storage shall not be permitted on parcels less than 3 acres in size. 2 b) The area of storage shall not exceed an area equal to 10 percent of the gross area of the lot or 20 percent of the footprint area of the principal structure, whichever is less. c) The area of storage shall not be located within the front yard or a side yard adjacent to a right-of-way. d) The area of outside storage shall be set back a minimum of 50 feet from all property lines, and a minimum of 100 feet from a residential zoning district. e) The area of storage shall be surfaced with a material approved by the city, and may not be gravel. f) The area of storage shall be fully screened from neighboring properties and from the right-of-way. If a fence is used for screening, additional landscaping shall be required adjacent to the area of storage, which shall not be counted towards the landscaping requirements of the site. Similarly, if natural screening is utilized, these plantings shall not be counted towards landscaping requirements. WHEREAS, the tenants on the Subject Property in 2010 had exterior storage that exceeded the above restrictions contained in Section 838.5.08, Subd. 17 of the City Code. WHEREAS, the exterior storage on the Subject Property in 2010 was limited to a fenced- in area that is represented on the aerial photograph from the Hennepin County GIS website and attached hereto as Exhibit A. WHEREAS, North Metro currently rents the Subject Property from the Owners and allows landscaping inventory and materials to be stored on the Subject Property that exceeds the restrictions contained in Section 838.5.08, Subd. 17 of the City Code as well as the exterior storage maintained by the prior tenants on the Subject Property in 2010. WHEREAS, the City commenced an action in Hennepin County District Court entitled City of Medina v. North Metro Companies LLC, Robert J. Muller, or successor(s), as Trustee of The Robert J. Muller Trust U/A/D June 4, 2004 and The Lawrence L. Pribyl Revocable Trust (Court File No. 27-CV-21-7210) seeking declaratory and injunctive relief against the Owners and North Metro to force them to comply with the City Code. WHEREAS, the Owners and North Metro asserted a defense to the lawsuit claiming a legal nonconforming use which would allow exterior storage on the Subject Property over the entire property as well as asserting various claims in a counterclaim against the City. WHEREAS the Parties mutually desire to fully compromise, settle, and resolve all existing and potential disputes and to avoid the expense of further litigation. NOW, THEREFORE, in consideration of the promises and covenants hereinafter 3 contained, and intending to be legally bound hereby, the Parties agree as follows: 1. Stay of Enforcement Action. Pursuant to the rights and obligations outlined herein, the City agrees to forego enforcement of the City Code against the Owners and North Metro with regard to the exterior storage limitations outlined in Section 838.5.08, Subd. 17 of the City Code until October 10, 2023. 2. Acknowledgement of a Legal Nonconforming Use on Subject Property. The parties hereby acknowledge that the exterior storage area on the Subject Property in 2010 as depicted in Exhibit A attached hereto hereby constitutes a legal nonconforming use on the Subject Property and the Subject Property shall retain all rights associated therewith in the future. The Parties agree that the area of the legal nonconforming use in Exhibit A consists of approximately 137,468 square feet. Notwithstanding the foregoing, the Owners have requested that said area be slightly modified without any increase in size to accommodate site conditions, and to that end, the Parties agree to a minor modification to said area, which is depicted in Exhibit B attached hereto. Within 30 days of the execution of this Settlement Agreement, the Parties agree to specifically identify the location of the legal nonconforming use on the Subject Property, as depicted in Exhibit B. The City, its employees or contractors, may enter onto the Subject Property and have a survey prepared for purposes of legally describing the legal nonconforming use and such legal description will be attached hereto as Exhibit C prior to recording. Commencing on October 31, 2023, the Owners and North Metro agree to limit all exterior storage on the Subject Property to the legal nonconforming rights agreed to and referenced herein, as generally depicted on Exhibit B and legally described in Exhibit C attached hereto. This legal nonconforming use shall be subject to all applicable laws related to the same, including but not necessarily limited to, that it cannot be expanded in the future and it may be extinguished in whole or in part if any portion of the area is not used for exterior storage for at least one year. Finally, the Parties acknowledge and agree that absent any future amendment to the City’s land use controls expressly permitting otherwise, outdoor storage on the Subject Property is only permitted in the exterior storage area depicted on Exhibit B and legally described in the survey on Exhibit C. 3. Physical Demarcation of Legal Nonconforming Use. Prior to October 31, 2023, either the Owners shall install a fence or other permanent physical indicators that identify the boundaries of the legal nonconforming use depicted on Exhibit B and legally described in Exhibit C, which will delineate the physical limitations for allowable outdoor storage. The Owners are responsible for the installation and ongoing maintenance of such physical indicators that identify the boundaries of the legal nonconforming use acknowledged herein. 4. Lease Provisions. The Owners shall include in all future leases for the Subject Property a provision putting the prospective tenant(s) on notice of the specific limitation on exterior storage on the Subject Property along with the tenant(s) obligation to comply with the limitation. Upon a request from the City, the Owners will provide the City with a copy of any lease for the Subject Property to confirm that such provisions are included in the lease. 4 5. Mutual Release. Upon the execution of this Settlement Agreement, the Parties hereby release and discharge each other and their respective heirs, predecessors, successors, assigns, agents, employees, principals, representatives and attorneys, and all others claiming an interest on their behalf, from any and all claims, causes of action, suits, proceedings, debts, judgments, damages, attorneys fees, costs, levies, executions and demands of any nature, in law or equity, whether known or unknown, liquidated or unliquidated, fixed, vested, contingent, direct or indirect, which the Parties have had, currently have, or may have or may claim to have against each other relating to or arising out of the facts and circumstances alleged by the Parties in this action or could have been alleged in this action. 6. Dismissal of Pending Action. Upon approval and execution of this Settlement Agreement, the Parties agree to execute a stipulation for dismissal with prejudice of the pending action in Hennepin County District Court entitled City of Medina v. North Metro Companies LLC, Robert J. Muller, or successor(s), as Trustee of The Robert J. Muller Trust U/A/D June 4, 2004 and The Lawrence L. Pribyl Revocable Trust and incorporate the Parties’ obligation to comply with the terms of the Settlement Agreement in the order dismissing the action. 7. No Admission of Liability. This Settlement Agreement is not and shall not be construed as an admission of liability or wrongdoing by any party hereto. 8. Mutual Non-Disparagement. The Parties to this Settlement Agreement agree that they will make no disparaging and defamatory remarks, either orally or in writing regarding the other parties in any respect or make any disparaging and defamatory comments concerning any aspect of their relationship or the conduct or events which precipitated the negotiation of this Settlement Agreement. This provision will not prevent either party from being required to provide factual information as required by law or court order. 9. Entire Agreement, Successors in Interest, and Waiver. This Settlement Agreement contains the entire agreement and understanding of the Parties hereto, and supersedes all prior oral and written communications, agreements, and understandings between the Parties with respect to its subject matter. The Parties each represent that they rely wholly on their own judgment, belief, and knowledge of their rights and obligations related to the subject matter of the Settlement Agreement and that, in making the Settlement Agreement, they have not been influenced to any extent by any representations or statements made by each other or by any third party that are not expressly set forth herein. The rights and obligations herein shall be binding upon and inure to the benefit of the successors and assigns of each party. The provisions of this Settlement Agreement may only be waived, modified, or amended by the written agreement duly executed by all parties. 10. Legal Counsel. The Parties hereto hereby warrant and represent that they have consulted with and received advice from legal counsel of their choice with respect to this Settlement Agreement. Further, that each has thoroughly read and understand the terms of this Settlement Agreement and that each are voluntarily entering into this Settlement Agreement to resolve all claims associated with the Lawsuit. 11. Costs of Enforcement. The prevailing party in any lawsuit arising out of or relating to the interpretation and/or enforcement of this Settlement Agreement shall be allowed recovery of all reasonable costs, expenses, and disbursements, reasonable attorneys' fees, and reasonable 5 expert fees incurred in such lawsuit. 12. Governing Law. This Settlement Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota, irrespective of principles of conflicts and/or choice of law. 13. No Construction Against Drafter. This Agreement shall be considered as drafted jointly by the parties hereto, and no uncertainty or ambiguity found in the terms hereof shall be construed for or against any party based on an attribution of drafting to any party. 14. Warranty of Capacity to Execute Agreement. Each of the undersigned persons that is executing this document on behalf of an entity represents and warrants that he or she is authorized by the entity, and has the full legal authority, to do so. 15. Agreement to Run with Land. This Settlement Agreement may be recorded among the land records of Hennepin County, Minnesota. The provisions of this Settlement Agreement shall run with the Subject Property and be binding upon the Owners and their assigns or successors in interest. It is the intent of the Parties that this Settlement Agreement be in a form which is recordable among the land records of Hennepin County, Minnesota and the Parties agree to make any changes in this Settlement Agreement which may be necessary to effect the recording and filing of this Settlement Agreement against the title of the Subject Property. 16. No Assignment. This Settlement Agreement may not be assigned by any of the Parties. 17. Counterparts/Electronic Signatures. This Agreement may be executed by facsimile and/or scanned signature and in any number of counterparts, each of which shall constitute one and the same instrument. 18. Attorneys’ Fees and Expenses. Each party shall be responsible for their own attorneys’ fees or expenses in connection with the pending action and the negotiation of this Settlement Agreement. [Signatures appear on following pages] S-1 NORTH METRO COMPANIES, LLC By: Name: Its: STATE OF MINNESOTA ) ) SS. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2022, by , the of North Metro Companies, LLC, a Minnesota limited liability company, on behalf of said company. Notary Public S-2 ROBERT J. MULLER TRUST U/A/D June 4, 2004 By: Name: STATE OF MINNESOTA ) ) SS. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2022, by , in his/her capacity as Trustee of the Robert J. Muller Trust U/A/D June 4, 2004, on behalf of said trust. Notary Public S-3 LAWRENCE L. PRIBYL REVOCABLE TRUST By: Name: STATE OF MINNESOTA ) ) SS. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2022, by , in his/her capacity as Trustee of The Lawrence L. Pribyl Revocable Trust, on behalf of said trust. Notary Public S-4 CITY OF MEDINA By: Kathleen Martin, Mayor By: Scott T. Johnson, City Administrator STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of , 2022, by Kathleen Martin, the mayor of the city of Medina, a Minnesota municipal corporation, on behalf of the municipal corporation. Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of , 2022, by Scott T. Johnson, the city administrator of the city of Medina, a Minnesota municipal corporation, on behalf of the municipal corporation. Notary Public A-1 Exhibit A 2010 Aerial Photograph of Legal Nonconforming Use on Property Located at 2402 State Trunk Highway 55 in Media MN B-1 Exhibit B Allowable Outdoor Storage Area on Property Located at 2402 State Trunk Highway 55 in Medina MN C-1 Exhibit C Survey of Allowable Outdoor Storage Area on Property Located at 2402 State Trunk Highway 55 in Medina MN [to be inserted]