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05-380Council File # � J � 3 � (/ RESOLUTION CITY OF SAINT PAUL, MINNESOTA PRESE\'TED BY REFERRED TO CO�iTTEEt DATE �5 WfIEREAS, the settlement set forth in the settlement letter, dated Apri121, 2005, attached and incorporated hereto as E�ibit "A", will result in a full, final and complete settlement and release of in the legal action commenced in federal court, entitled Essling's Homes Plus, Inc., a Minnesota corporation, d/b/a Scenic Hills Aiternative Caze; Judith Essling; and Bridget Essling, Civil No. 04-1115 (MJD/JGL); and The Council having fully considered the same; BE IT RESOLVED, that the proper City officers are hereby authorized and directed to take all actions necessary to execute and file the appropriate settlement documents, attached and incorporated hereto as Exhibit "A". Requested by Department of: City Attorney's Office Adoption Ce�. By: —� Approved by By: -- L Green Sheet # �O��aS� Council Secretary sY: Eric D. Larson ss i y ornev Form Appr by C' Attorney B • �. � /\ i�.+'�� Y � Approy�d by or for Submission t Adopted by Council: Date /y� 'T. �d�s OS - 3Fa ` � Green 8heet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet � OepartrneM/office/council: Date initiated: cA �iTyAttomey 26APR-05 Green Sheet NO: 3026258 CoMad Person & Phone: DeoartrnerH �eM To Person Inkial/Date Eric Larson � 0 ' Aaoru 266-8728 puign 1 " Attom � Must Se on Couneil Agenda by (Date): Number Z ic nse/Ins ctio nvir n Pro 04-MAY-�5 For 3 a or's Office Routing Order 4 �� 5 i Clerk Sotal # of Sig�rature Pages _(Clip All Locatiw�s fw Sigrcature) Action Requested• Approve the settlement and authorize City employees to take the necessary acrions to prepaze ffie proper docnmentarion and complete the settlement per resolution. Recommendations: Approve (A) or Reject (R): Personai Service Contracts Must Answer the Pollowing Questions: Planning Commission �, Has fhis person/firm ever worked under a conVact for fhis department? CIB Committee Yes No Civil Service Commission 2. Has this person/firm ever been a city employee? Yes No 3. Dces this personffirtn possess a skill not normally possessed by any Current city employee? ' Yes No Explain all yes answers on separete sheet and attach to green sheet Initiating Problem, lssues, Opportunity (Who, What, When, Where, Wtry): " . The settlement tesoldes legal action entitled Essling's Homes Plus, Inc., a Minnesota corporation, d/b/a Scenic Hills Alternative Caze; Judith Essling; and Bridget Essling, Civil No. 04-1115 (MJI)/JGL). Advantages If Approved: The lawsuit will be settled resulting in the elunniarion for the City of continued liability and monetary exposure. Disadvantaqes If Approved: None. the settlement achieves the outcome wluch the City sought from the federal distdct court at and below the City's litigation eicpenses with continued litigation. Disadvanfages lf Not Approved: The lawsuit will continue and the uncertainty of the result will remain. Total Amou�t of 20000 CostlRevenue Budgeted: Transaction: Funding Source: Tort Liability Fund ActiviN Numb¢r: 09070 Financial tnformation: , � (Explain) OS- 38D TI�E ITNITED STATES DISTRICT COURT FOR TFiE DISTRICT OF MINNESOTA Essling's Homes Plus, Ina, a Minnesota corporation, d/b1a Scenic Hills Alternative Caze; Judith Essling; and Bridget Essling, Court File No. 04-1115 (MJD/JGL) Plaintiffs, vs: City of Saint Paul, a Minnesota corporation, SETTLEMENT AGREEMENT AND RELEASE Defendants. Essling's Homes Plus, Inc., Judith Essling, and Bridget Essling (hereinafter referred to as "the Esslings") and the City of Saint Paul (hereinafter referred to as "the Cit}�') have agreed to a full and final settlement of ali disputed issues between them. THEREFORE, in consideration of the mutual promises of the parties hereto and to fully and completely resolve the above-entitled action, the parties and their respective counsel agree as follows: Payment and Other Conditions. In settlement and consideration for the release of any and all claims, asserted ar unasserted, against the City by the Esslings, coliectively or individually, and as contained in the action entitled Essling's Homes Plus, Inc. et al. v. the City of Saint Paul, Civil No. 04-1115 (M7D/JGL), including but not limited to claims that were ar could ha�e been asserted in the action, the parties agree to the foliowing: a. Conditioned on compliance with all applicable code requirements and other applicable legal requirements and that the use of 2187 Bonnie Lane remains a one dwelling use, which includes a limitation of one adult foster care license under existing laws, the residence at 2187 Bonnie Lane may continue to contain two kitchens as it presently exists. b. The Esslings acknowledge and represent that 2187 Bonnie Lane is a single family residence and a single dwelling residence, is in a neighborhood zoned R-LL, and is subject to the applicable zoning codes for an R-LL zoned neighborhood. The Esslings agree that they will not represent to any third person that 2187 Bonnie Lane is a multi-dwelling unit and/or duplex. c. Upon full execution of this Release and Settlement Agreement by all parties, the City's order to remove one of the kitchens from 2187 Bonnie Lane is automaticaliy revoked and all pertinent fines or penalties, if any, are canceled. d. The Esslings acknowledge and represent that all other residences currently owned or possessed by them in the City of Saint Paul are in neighborhoods zoned single �zso�os-i EXHIBIT A OS- 380 fasnily. That with respect to such residences or other residences subsequently acquired by them and located in a neighborhood zoned R-LL to R-4 or zoned singie family, the Esslings agree that they will not represent to any third person ttiat such residence is a multi-dwelling unit and/or duplex and agree to possess and/or use such residence as a single family residence and as a single dwelling unit. e. With respect to each residence owned or possessed by the Esslings located in a neighborhood zoned R-LL to R-4 or zoned single family residence within the City of Saint Paul, the Esslings may apply for a pernut to conshuct a second kitchen for each residence it owns, possesses, or has the legal right to seek such a building permit, including but not lunited to the residence at 2170 Snowshoe Lane, and the building pernrit application for the construction of a second kitchen shall be granted by the City assuxning all applicable code requirements and other legal requirements are met, and the use of each residence remains a one dwelling use which includes a limitation of one aduit foster care license per residence pursuant to current state law. The City will pay to Essling's Homes Plus, Inc. the total suxn of Twenty Thousand Dollars ($20,000.00). g. The City shall have no responsibility or liability for payment of income taxes or other taY-related obligations with respect to the aforesaid payments. The Esslings agree that they are solely responsible for payment of any and all taat-related obligations and any and all liability created under the federal and state taY laws. The City makes no warranty concerning the treatment of any sums paid under said laws and Esslings have not relied upon any such warranty. h. Nothing in this Settlement Agreement and Release precludes the Esslings, or future owners of the Esslings' properties, from adapting the density, use, ar occupancy of their properties to conform with any future zoning ordinances the City may apply to the neighborhood where said properties are located. i. Should the City's zoning ordinances and/or Minnesota state law change, such that more than one adult foster care license is allowed per single dwelling unit, or more than one type of license is allowed per single dwelling unit, this Settlement Agreement and Release does not preclude the Esslings, or future owners of the Esslings' properties, from adapting the use of the properties to conform to the changes. 2. Release of Claims. In consideration of the payment and the other conditions set forth in paragraph 1 of this Settlement Agreement and Release, the sufficiency of wluch is hereby acknowledged, the Essiings do hereby absolutely and unconditionally release and forever discharge the City, together with all past and present officials, officers, employees, agents, and each and everyone thereof, of and from any and all actions, suits, proceedings, claims (inciuding, but not limited to, ciaims for attorneys' fees and costs), complaints, charges, judgments, and executions, whether liquidated or unliquidated, 1250708-1 OS- 38d known or iuilrnown, suspected or unsuspected, and whether related or unrelated to any present dispute as to law or facts or both, which Esslings have ever had, presently have, or claun to have had against the City, together with all past and present officiais, officers, employees, and agents of each and everyone thereof, the agreed upon consideration having been negoriated and bargained for all things above menrioned, and received in full satisfaction for all of the above. 3. Non-Admission. This Settlement Agreement and Release does not constitute an admission by the City that it in any way violated any of the Esslings' legal rights, and none of the parties hereby will ever contend that it does constitute such admission. 4. Stipulation of Dismissal. Upon payment to Essling's Homes Plus, Inc., the Esslings and the City, by their respective attorneys, will execute and file with the court a Stipulation of Dismissal With Prejudice and on the merits and without awarding attorneys' fees, costs, or disbursements to either party. 5. Entire Agreement. The tet of this Settlement Agreement and Release supersede and terminate all prior oral and written agreements and communications between the parties. The Esslings and their counsel and the City and its counsel agree that this Settlement Agreement and Release contains all of the agreements between them, and that they have no other written or oral aa eements. 6. Goveming Law. This Settlement Agreement and Release will be construed and enforced in accordance with the laws of the State of Minnesota and choice of forum sha11 be the State of Minnesota, Ramsey County District Court. 7. Representation. The Esslings acknowledge that they have been represented by their own attorney in this matter, have fully negotiated this settlement, and have not relied upon any statements made by the City, its agents, or attorneys in agreeing to sign this Agreement. 8. Counterparts. This Agreement may be executed in any nuxnber of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. izso7os-i oS- 3kD �., Datat: �: _� 2005 Datcd: �F�r' � 2l , 2005 Subscribed and sworn Lo before me this Z of Ap ", 20(15. w� � NOLBi�' PII�SLC �. _ , , r� � �fER gENNEI'T, LLP By � tan{#20367I} 3oaime M. Haasa (#0328261) Atto s forPlaiatiffs 33 Sonth Sixth S�, S�re 490 Masneapolis, MN 55402 phone; (6 ) 34t1-891 ar {612} 346-89�i2 'dget Ess - g KR{STEN NAAAMERSCHMIOT �� NoWry Public Minnesota � MyCOmmnsprtE�p�esdamvy9f.20�9 –!�� Judy Essl�ng � Subscdbed an swom to bcfoce me tllis y Apri1, z 5- KR{STEN HAMMERSCHMIOT •r.•-°�. � _ Notery Public AAinnesota ° A1yCammm+onE+Pro+esJam+ary3t.iW9 PlOtacy PnbiiC � Dated: /tip/'i ? I 2dQ5 � , G �! — � L- ssliag's Homes P,i , Inc. / Subscribed aad swom to before me t}�is zi day af April, 2 OS. 1��Ll- �KRIS7EN HAMMERSCHMIDT � l/�j� � y q�. Notary Public �qf �� 'i Minnesob AjO� L uuuC MY W mmasan FtP"sn Jawa7 J1.2009 ILW70B-1 � z•d dci=�o sa xa J�a £BiZ9'd 006L 04£ 2T9 113NN3H J3QI?J ZZ:9I seez-ia-add oS - 3S�a Dated: Dated: L6j1I17�. 2005 Subscribed and sworn to before me this _ day of April, 2005. Notary Public Dated: . I IL•r Subscribed and swom to before me this _ day of April, 2005. Notary Public Dated: 2005 Subscribed and sworn to before me this _ day of April, 2005. Notary Public tzso�os-i RIDER BENNETT, LLP By Timothy J. Nolan (#203671) Joanne M. Haase (#Q328261) Attomeys for Plaintiffs 33 South Sixth Street, Suite 4900 Minneapolis, MN 55402 Phone: (612) 340-8911 or (612) 340-8942 Bridget Essling Judy Essling Essling's Homes Plus, Inc. 0 OS- 380 MANLJEL J. CERVANTES CTI'Y ATT'ORNEY By Eric D. Larson (#22067X) Assistant City Attorney Attomeys for Defendant City of Saint Paul 550 City Hall and Court House 15 West Kellogg Boulevard Saint Paul, MN 55102 Dated: , 2005 Phone: (612) 266-8728 Dated: 2005 By 7aneen Rosas Subscribed and sworn to before me this _ day of April, 2005. Notary Public tzso�os-i 5