3.11 SR 10-18-2004
Item 3.11.
MEMORANDUM
DATE:
Mayor and City Council
Pat Klaers, City Administrf;r ~~
October 18, 2004
TO:
FROM:
SUBJECT:
Motion Accepting the Halpaus Settlement Agreement and
Release
Attached for your information is some material regarding the Halpaus settlement agreement
and release. The city is not required to assist with the construction or financing in any
manner and has the ability to inspect the completed project for compliance. City Attorney
Peter Beck is recommending that the City Council pass a motion accepting this settlement
agreement and release.
Recommendation
It is recommended that the City Council approve a motion accepting the Halpaus settlement
agreement and release.
s: \CoUIlcil\Pat\2004 \HalpausSettle.doc
HOFF. BARRY & KUDERER, P.A.
ATroRNEYS
775 Prairie Center Drive
160 Flagship Corporate Center
Eden Prairie, Minnesota 55344
Telephone: 952.941.9220
800.989.9220
Facsimile: 952.941.7968
Internet: www.hbklaw.com
JUSTIN L. TEMPUN
Direct 952.746.2710
jtemplin@hbklaw.com
October 11, 2004
Peter Beck
Gray Plant Mooty
500 IDS Center
80 South 8th Street
Minneapolis, MN 55402
OCr
I;
.?OO~
RE: Halpaus v. City of Elk River
Court File No: C2-03-913
Mr. Beck:
I have enclosed four copies of the Settlement Agreement and Release which have been
executed by the Plaintiffs and a representative of Windsor Development. Please seek
City Council approval for the settlement and obtain the necessary signatures from the
City so that this matter can be finalized.
The settlement involves construction of a berm by Mr and Mrs. HaJpaus, at their expense
and on their own property. The City is not required to assist with construction or finance
the construction in any manner, but retains the ability to inspect the completed project for
compliance with the agreement so that there will be no adverse consequences to adjacent
properties. Mr. and Mrs. Halpaus have signed a full release as to claims against the City.
Please contact me if you have any questions. Once the copies of the agreement are fully
executed by the City, please return them to me. Thanks for your help with this matter.
.
Enclosures
ST ATE OF MINNESOT A
DISTRICT COURT
COUNTY OF SHERBURNE
TENTH JUDICIAL DISTRICT
CASE TYPE: OTHER CIVIL AND
INVERSE CONDEMNATION
Ronnie Halpaus and Yvonne Halpaus,
Court File No. 02-12929
Plaintiffs,
vs.
SETTLEMENT AGREEMENT
AND RELEASE
Windsor Development, LLP., a Minnesota
limited liability partnership; Windsor
Development of Minnesota, LLP., a Minnesota
limited liability partnership, and The City of Elk
River, a municipal corporation,
Defendants.
This Settlement Agreement and Release (Settlement Agreement) is entered into by and
between Plaintiffs Ronnie Halpaus and Yvonne Halpaus (Plaintiffs) and Defendants Windsor
Development LLP (Windsor) and the City of Elk River (City) (collectively the Defendants)
(Plaintiff and Defendants are collectively referred to as the Parties):
WHEREAS, Plaintiffs represent and warrant to Defendants that they are the fee owners
of the real property located at 19563 Lander Street NW, Elk River, Minnesota, in the County of
Sherburne, State of Minnesota, legally described as Lot 14, Block I, M-Vale Addition (the
"Property") .
WHEREAS, Plaintiffs filed suit against Defendants in an action entitled Ronnie Halpaus,
et al. v. Windsor Development LLP, et aI., Court File No. 02-12929 (the Action), in Sherburne
County, in which Plaintiffs asserted claims of inverse condemnation, trespass, nuisance, and
I
negligence against Defendants arising out of the alleged discharge of water onto the Property as
a result of Windsor's development located adjacent to the Property;
WHEREAS, Windsor served and filed a counterclaim alleging intentional and negligent
interference with contractual and business relationships, violation of Minn. Stat. 9 561.02 (2002)
(maliciously constructing a fence/structure), defamation, and sought a temporary and permanent
injunction against Plaintiffs;
WHEREAS, City has cross-claimed for contribution and indemnity from Windsor;
WHEREAS, all Parties deny the allegations against them/it; and
WHEREAS, the Parties have reached an agreement to dismiss their lawsuits with
prejudice as to the City and with prejudice as to Windsor with a reservation of Certain Rights of
Claims and Counterclaims between Plaintiffs and Windsor and without any admission of
liability, including but not limited to the claims brought in this action or that could have been
brought without admission on the part of any Party, but with the Plaintiffs reserving the right to
reinstate their lawsuit against Windsor as and only as a Counterclaim notwithstanding the
running of any applicable Statutes of Limitations if and only if Windsor and all related business
entities or corporate successors of Windsor brings any claims against the Plaintiffs of the type or
nature alleged in the Counterclaim asserted by Windsor now or in the future based upon any
action of the Plaintiffs occurring on or before the date of this Settlement Agreement and Release.
NOW THEREFORE, the Parties hereby stipulate and agree based on the consideration
stated herein and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged by the Parties, as follows:
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1. Benn. Plaintiffs will construct on their property a benn that is approximately 18
to 36 inches high at the center from the existing grade with a total width at the base of nine feet
consistent with the plan and in the area shown on the attached Exhibit A. The benn will be
installed when weather pennits but no later than August 1,2005. The City shall have the right to
inspect the benn to insure compliance with this Agreement and Plaintiffs shall correct
deficiencies identified in the City's inspection.
2. Dismissal With Preiudice of Claims Against the Citv. Plaintiffs hereby agrees to
dismiss their claims against the City with prejudice and to execute the release attached to this
Agreement as Exhibit B.
3. Dismissal With Preiudice and With the Reservation of Certain Rights of Claims
and Counterclaims between Plaintiffs and Windsor. Windsor hereby dismisses its counterclaims
against the Plaintiffs with prejudice to the extent that they refer to any event happening or
damage occurring prior to the date of this Settlement Agreement and Release. The Plaintiffs
hereby dismiss their claims against Windsor with conditional prejudice subject to the explicit
reservation, to which Windsor hereby specifically agrees for itself and for all related business
entities or corporate successors, of the right to reinstate and re-sue such claims against Windsor,
notwithstanding the expiration of any period prescribed by any statute of limitations, including
but not limited to the two-year statute of limitations on claims for damage to property resulting
from construction activities, but it is explicitlv agreed that such reinstatement and re-suit bv the
Plaintiffs mav be brought as and only as a counterclaim against Windsor or any related business
entity or corporate successor of Windsor. in the event Windsor or any related business entity or
corporate successor of Windsor brings a claim or claims against the Plaintiffs for actions
3
occurring on or after the date of this Agreement of the type or nature alleged in the Counterclaim
asserted by Windsor~ Windsor, for itself and for all related business entities or corporate
successors in any claim which may be made against the Plaintiffs for actions occurring on or
after the date of this Agreement, hereby waives the right to assert any statute of limitations as a
defense against any Counterclaim brought by the Plaintiffs, and Windsor, for itself and for all
related business entities or corporate successors, agrees to the tolling of any applicable statute of
limitations to the extent specified in this paragraph from and as of the date the Plaintiffs served
the above-entitled action on the Defendants. Windsor, for itself and for all related business
entities or corporate successors, further agrees that the City and or its officials, agents or
employees shall not be made third-party defendants in any such claim.
4. Non-Admission: Nothing in this Agreement shall be construed to be an
admission by any party.
5. Entire Agreement: This Agreement constitutes the entire agreement between the
Parties and supersedes all prior oral or written agreements between the Parties. Any subsequent
modification of this Agreement must be in writing and signed by the Parties to be effective.
6. Contingent. This Agreement shall be contingent upon the approval of the City
Council.
7. Binding. This Agreement shall be binding and inure to the benefit of the parties
jointly and severally, including their executors, administrators, personal representatives, heirs,
successors, assigns, transferees, principals, officers, directors, agents, servants, insurers,
subrogees, and legal representatives.
4
8. Governing Law: This Agreement IS governed by and is to be construed In
accordance with the laws of the state of Minnesota.
9. Survival: If one or more of the provisions of this Agreement are stricken or
declared invalid by any court, the remainder of the Agreement shall survive and remain
enforceable.
10. Authoritv: Each of the persons signing on behalf of the respective Parties to this
Agreement acknowledge that they have authority to execute this Agreement on behalf of their
respective party or entity.
11. Dismissal: The Parties agree to execute a Stipulation for Dismissal of the claims
against each other in this Action in the form attached hereto as Exhibit C.
12. Counsel: The Parties acknowledge that they have consulted with legal counselor
have had the opportunity to consult with legal counsel of their choice regarding the terms and
conditions of this Settlement Agreement and Release. The Parties further acknowledge that they
are entering into this Settlement Agreement and Release of their own free will.
13. Counterparts: This Agreement may be executed by the Parties in counterparts.
WHEREFORE, the Parties by setting forth their respective signatures below agree to the
foregoing terms.
5
Dated: /.s f' e,.t? &- V
~-~4
f{.onnie Halpaus
State of Minnesota )
) ss
County of Hennepin )
This instrument was acknowledged bZ' , de nTh ~y ~F~
2004 by Ronnie Halpaus., r-;; , '
~frcaff ~(~t(~
Notary Public '-
El,..:c,~ DONALD C. WILlEKE
""', "Z,IIJ, ';\ Notary Public
\~'t':\:,:$1 Minnesota
,u<iJ-".v MyComml$.:"<itlnEXllinlsJln 31._
Dated: /3 SCf' (')ej
t' ~
i" --. \ '
lV, r;(>.v(~C~ . ~R:::'~"" \~--"'~
cY;Y~ne Halpaus \
State of Minnesota
)
) ss
)
(3!2rday 0
County of Hennepin
This instrument was acknowledged be
2004 by Yvonne Halpaus,
Notary Public
6
Dated:
WINDSOR DEVELOPMENT, LLP
r-
10-\-O{
By:
Its:
State of f1 '
Ccunt)' of OAS W
)
) ss
\
,
This instruwent was acknowledged before rpf this 1_ day of
2004 by r v'~ Op.. ~~ r ., the f"A<-'~
Development, LLP, .
L-f1JFJJ~
Notary Public
o::~.
of Windor
f=O \.. . g cY'J \P .JJ~ . '1'1 - ;yet'i-/-
7
CITY OF ELK RIVER
Dated:
,2004.
By:
Its: Mayor
Dated:
,2004.
By:
Its: City Clerk
State of Minnesota )
ss
County of Sherburne )
This instrument was acknowledged before me this day of
2004 by and . , the Mayor and City
Clerk of the City of Elk River, a municipal corporation under the laws of Minnesota on
behalf of such municipal corporation.
Notary Public
8
EXHIBIT A
DESCRIPTION OF BERM
The berm will be approximately 80 feet long, and approximately nine feet in
width. The height at the middle of the berm will be three feet at the lowest
areas covered by the length of the berm and the height at the middle of the
berm will be less in the up-hill portions of the berm. The middle of the berm
will be approximately five feet from the fence line. The bulk of the berm will
be constructed from moderate to heavy soils, and the berm will be covered with
a layer of top soil that matches surrounding soils as closely as possible. Upon
completion the berm will be covered with mulch or erosion control blankets,
and may be seeded with a temporary cover mix of rye grass, winter wheat and
oats while existing vegetation in the area establishes itself as a cover for the
berm. The location of the approximate center line of the berm is as shown on
the drawing attached as Appendix A.
"
LOT URVEYS COMPANY, INC.
LAND SURVEYORS
PERFe:TIOO' HCMES !
[) Denotes Wood Hub Set RE~ISTERED UNDER LAWS OF STATE OF MINNESOTA t
For Excavation Only 7601' . 73rd Avenue North 660-3093
~ Denotes Surface Drainage
. Minneapolil, MinneaoLa 65428
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M-VALB ADDITION
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INVOICE NO, 19757
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,it . ~; baundIMt. of tM aboYe deacrlbed land and the k:Jcatlon 01 all buildings WId vi.
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RELEASE OF CLAIMS
In consideration of the Settlement Agreement entered into by and between Ronnie and
Yvonne Halpaus ("Halpaus"), Defendants Windsor Development LLP ("Windsor") and the City
of Elk River ("City"), in the matter of Ronnie Halpaus et al. v. Windsor Development LLP. et
al. Court File No. 02-12929 (the "Case"), relating to the property legally described as Lot 14,
Block 1, M-Vale Addition (the "Property"), the undersigned on behalf of themselves, their heirs,
executors, assigns, and subsequent owners of the Property, hereby release and forever discharge
the City, their officers, employees, agents and insurers, from any and all claims, suits and or
damages, of every kind, nature and description which they had, or may have, known, or
unknown, specifically including, but not in any way limiting the generality of the foregoing
release, all claims, now and in the future, related to the development or approval of the Seven
Oaks Development adjacent to the Property and any actions or inaction by the City with respect
to the diversion, discharge or accumulation of water on the Property in any way arising or
resulting from the Seven Oaks Development whether based on theories of tort, inverse
condemnation or any other theory.
This Release touches and concerns the Property, and this Release is intended to and does
run with the Property, constituting a binding covenant. This Agreement is made for the benefit
of the City and the undersigned and shall be binding upon and inure to the benefit of the parties,
including their executors, administrators, personal representati Yes, heirs, successors, assigns,
transferees, principals, officers, directors, agents, servants, insurers, subrogees, and legal
representatives.
This Release shall be recorded with the Sherburne County Recorder if the Property is
Abstract or with the Sherburne County Registrar of Titles if the Property is Torrens.
Dated:
/3 j~
,2004
~~
Ronnie Halpaus
ST ATE OF MINNESOT A )
c:J.k~'\ ) ss.
COUNTY OF 51 NE)
Dated:
~ Jhe foregoing instrument was acknowledged before me this f3f1day of
&"~~'", ~,:004' by Roo";, IWP'"J\ " (, , !Z'/ /irc r
~' :,'~;~= ~~ l_f/lj, GL$~
" . MYCi)mmISSlOIl~_ 1'1." Notary Publ1c
f'
I) c. D .,
l~, t-..n(''<''o --~ 'fYu ,\ ~-'-- .~
av\ye Halpaus
J 3 tSep
,2004
STATE OF MINNESOTA )
~~ )ss.
COUNTY OF ~)
~ The f9regoing Instrument was acknowledged before me this L..3.2)day of
- _'l.e,~.{,< 2004 by Y'""""'W""'ll,ud &1l~
DC,. " I'l,;. WillE Notary Public
'Mury Public
\.,t,innesota
Mv(;c,nl11l&$lonIbl$NN.JIn 31,_
2
THIS DOCUMENT DRAFTED BY:
HOFF, BARRY & KUDERER, P.A.
160 FLAGSHIP CORPORATE CENTER
775 PRAIRIE CENTER DRIVE
EDEN PRAIRIE, MN 55344
3
STATE OF MINNESOTA
DISTRICT COURT
COUNTY OF SHERBURNE
TENTH JUDICIAL DISTRICT
CASE TYPE: OTHER CIVIL AND
INVERSE CONDEMNATION
Ronnie Halpaus and Yvonne Halpaus,
Court File No. 02-12929
Plaintiffs,
vs.
STIPULATION FOR DISMISSAL
Windsor Development, LLP., a Minnesota
limited liability partnership; Windsor
Development of Minnesota, LLP., a Minnesota
limited liability partnership, and The City of Elk
River, a municipal corporation,
Defendants.
Pursuant to the Settlement Agreement and Release reached between them and upon the
terms stated therein, the parties hereby stipulate and agree to dismiss with prejudice all claims in
the captioned lawsuit without costs or expenses to any party.
1
Dated: /:J.se/~~/1: 2oo'f
Dated:
Dated:
Wll..LEKE & DANIELS
onald C. Willeke (#117250)
201 Ridgewood Avenue
Minneapolis, MN 55403-3508
Attorneys for Plaintiffs Ronnie and Yvonne Halpaus
HOFF, BARRY & KUDERER, PA
George C. Hoff (#45846)
Kimberly B. Kozar (#268951)
Justin L. Templin (#305807)
775 Prairie Center Drive, Suite 160
Eden Prairie, MN 55344
Attorneys for Defendant City of Elk River
BARNA GUZY & STEFFEN, LTD.
Joan M. Quade (#18276)
400 Northtown Financial Center
200 N.W. Coon Rapids Blvd.
Coon Rapids, MN 55433-5894
Attorneys for Windsor Development, LLP
2