10-809� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet �
10-809
CO -- Council
'�, Contad Person & Phone:
. Judv Hanson
i Must Be on Council Agenda by (Dats):
'� 21-JU�-10
i Doa Type: RESOLUTION
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�I E-Document Required: Y
Document Contact:
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21 JUL2010 Green Sheet NO: 3116046
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Assign
Number
For
Routing
Order
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2 ,�Council � L , ��
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ContactPhone: 266-8727 ' I,
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�'� Total # of Signature Pages _(C�ip AII Locations for Signature) J
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i Action Requested:
I The Crty AtYOrney's O�ce recommends approval of resolution authorizing the seCtlement of Town and Coantry v. City of St. Paul �n
�i accordance with Yhe 5ettlement Agceement and Release.
� Recommendafions: Approve (A) or Reject �(R).
� _. Planning Commission
CIB Committee
C�vil Service Commission
Personal Service Contracts Must Answer the Following Questions:
L Has this person/firm ever worked under a contract for this department?
Yes No
2. Has this person/f rm ever been a city employee?
Yes No
3. Does this person/f rm possess a skill not normally possessed by any
current city employee?
Yes No
Expiain all yes answers on separate sheet and attach to green sheet.
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�i 4nitiating Problem, Issues, Opportunity (Who, What, Whea, Where, Why):
I Plamtiff Town & Country brought an action in stafe district court seeking a permanent injunction proh�biting Che s�dewalk portion of
�, the City's Project 10-P-1336 ("Projecf") from commencing on the City's right-of-way which abuts Town and Country's properry; m
` addition to claims alleging violations of MN Stat 116B.03, the MNH Environmenta] Rights Act ("MERA"), a denial of due process
I and equal protection and abuse of process, and v�olations of 42 U.S.C. 1983, and MN. Stat. 651.04. Town and Country also contested
the City's assessment for the sidewalk which abutted their property.
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�� AdvantageslfApproved:
� The City will be able to proceed wdh the Project th�s season and avoid the risk of losmg the federal funding for the Projeet and
pote�t�al damages associated with the cancellaf�on of the Project contract. Additionally, the City avo�ds the costs and nsks of Ynal.
Settlemenl of this case is not an adm�ssion of liabitity.
Disadvantages If Approved:
�� The Judge conld issue a rR0 which would delay the Project and risk the loss of the federal funding and eost the City in damages for
breachmg the Project contract.
�i Disadvantages If Not Approved:
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Totai Amount of
Transaction: CoStlRevenue Budgeted:
Funding Source:
Fi nancial Information:
(Expiain)
Activity Number:
Julv 21. 2010 8:54 AM Pana 1
10-809
STATE OF MINNESOTA
COUNTY OF RAMSEY
Town and Country Club of St. Paul,
Minnesota, and State of Minnesota by
Town and Country Club of St. Paul,
Minnesota,
Plaintiffs,
vs.
City of St. Paul, a inunicipal
corporation,
Defendant.
DISTRICT COURT
SECOND JUDICIAL DISTRICT
Court File No.: 62-CV-10-5553
Case Type: Civil
SETTLEMENT AGREEMENT
AND RELEASE
This Settlement Agreement and Ralease ("AgreemenY') is made between Plaintiff, TQwn
and Country Club of St. Paul, Minnesota ("T&C") and Defendant City of 5t. Paul (the "City").
WHEREAS, on January 27, 2009 T&C received an estimated assessment in the amount
of $42,850 for the construction of a new sidewalk on the nofth side of Marshall Avenue between
Otis Avenue and Cretin Avenue; and
WHEREAS, on February 18, 2009 the City Council considered whether to approve the
assessment, and on Februazy 25, 20Q9 Final Order �9-2Q� was approved 6 to 1; and
WHEREAS, on May 20, 2010, T&C filed a civil complaint in this matter seeking a
permanent injunction prohibiting the sidewalk portion of the City's Project 10-P-1336
("Project") from commencing on the City's right of way which abuts T&C property; in addition
to claims alleging violations of Minn. Stat. § 116B.03, (the Minnesota Environmental Rights Act
("MERA"), a denial of due process and equal protection and abuse of process, and violations of
42 U.S.C. § 1983, and Minn. Stat. § 651.04; and
EXHIBIT A
10-809
WHEREAS, the City has denied and continues to deny T&C's allegations; and
WHEREAS, the parties wish to settle and resolve all outstanding disputes and claims
between them to avoid the uncertainties and costs associated with continued litigation of the
matter, and;
WHEREAS, the parties to this Agreement have successfully conciliated all issues of
dispute in the above-entitled matter;
NOW, THEREFORE, in consideration of the mutual promises established herein, the
parties agree as follows:
1. The City will proceed with the construction of the sidewalk along the north side
of Mazshall Avenue between Otis Avenue and Cretin Avenue in accordance with the Project.
2. There will be no sidewalk assessment charged to T&C for the above-mentioned
Project.
3. The City will pay for removing and replacing approximately 27.4% of the
existing fence along the north side of Marshall Avenue as part of the Project. The City will
consult with T&C about matching the new fence with the existing fence.
4. The City will cover the cost of the retaining wall on the north side of Marshall
Avenue at Cretin Avenue as part of the Project. There will be no retaining wall at the corner of
Otis Avenue.
5. The crab trees will be removed and the City will consult with T&C about
placement and selection of replacement trees.
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6. The contractor will use its best efforts not to damage T&C trees. The City has
identified three (3) spruce trees between Otis and Montrose which will be impacted by the
construction Project as follows:
a. 11.5 inch spruce at STA. 4+61L that is four feet (4') north of the north right-of-
line;
b. 6.5 inch spruce tree at STA. 5+88L that is two feet (2') north of the right-of-way
line; and
c. 6.5 inch spruce tsee at STA. 6+02 that is three feet (3') north of the right-of-way
line.
The City agrees that it will collaborate with T&C in the replacement of these three (3)
spruce trees by providing trees of similaz kind, height, and value at no cost to T&C. The City
will remove the three (3) spruce trees, including the grubbing and stump removal and replace the
trees as stated above at no cost to T&C. The replacement trees will be planted at least fifteen
feet (15') north of the south line.
There are other coniferous trees north of the fence between Otis and Montrose which may
need to be "lifted" or "limbed up" to prevent the branches from projecting into the right-of-way.
The City will collaborate with T&C on this process. In addition there are vines growing on the
fence between Otis Avenue and Cretin Avenue which need to be trimmed as they are projecting
into the City right-of-way. The City will collaborate with T&C about the trimming of these
vines to provide sufficient clearance for pedestrian traffic along the new sidewalk.
7. T& C will maintain the sidewalk in accordance with Saint Paul Legislative Code
Chapter 113
8. The City agrees to grant an encroachment permit for the existing fence, in its
current location around the entire T&C property, including the putting green fence and half way
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10-809
house. The encroachment permit will be issued by the Public Works Director as part of this
settlement. T&C will execute the proper City Encroachment Permit application forms, provided
they are not inconsistent with this Agreement Further, T&C and the City agree to the following
special terms and conditions, and further agree that Saint Paul Legislative Code Chapter 134
shall apply to this Agreement to the extent it is not inconsistent with the terms and conditions set
out herein:
a. The City will provide T&C with six (6) months written notice of any intent to
revoke the encroachment permit and
b. Neither this Agreement nor the encroachment permit will prohibit T&C from
petitioning the City to vacate its right-of-way at some later date.
9. In consideration of the above-mentioned terms and conditions and the execution
of this Agreement, T&C hereby fixlly and completely releases the City and all of its past and
present agents, officers, employees, predecessors, successors and successors in interest of the
City in their official and individual capacities, of any and all claims for damages, costs and
attorney's fees which T&C has or may have, whether presently lrnown or unknown, arising in
law or in equity, which were made, or which could have been made, in the above-entitled action.
10. T&C agrees that upon execution of this Agreement all such claims, defenses,
demands, rights and causes of action which T&C now has or may have had against the City, and
all the past and present agents, officers, employees, predecessors and successors in interest of the
City in their official and individual capacities, whether currently known or uuknown, arising in
law or in equity, which were made, or which could have been made, in the above-entitled action,
are fully released, satisfied, discharged and settled. This means that T&C releases the City and
all employees of the City from any and all claims for damages, costs and attorney's fees, known
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or unknown, that were or could ha�e been brought in relation to the set of facts presented in the
above-entitled action.
Notwithstanding the above release, T&C hereby reserves the right to pursue a claim and
seek damages for any trees lost or damaged as a result of the Project.
1 L In considecation of the above-mentioned terms and conditions and the execution
of this Agreement, the City,its successors and assigns, hereby releases and forever discharges
T&C from any and all liability, actions, causes of action, claims and demands, whether based
upon statute, regulation, contract, tort, ar common law, known or unknown, upon and by reason
of any damage, loss or injury as a result of the injunction lawsuit filed on May 21, 2010.
11. T&C agrees that the terms of this Agreement are binding on T&C and their
personal representatives, heirs, successors and assigns. T&C understands and acknowledges the
City does not admit any wcongdoing, improper action Qr liability for any of T&C's claims in
equity, claims at law or any alleged damages.
12. The parties agree that this Agreement constitutes all the agreements and
understandings between T&C and the City. There are no other written or oral agxeements or
understandings that modify the terms set forth in this Agreement.
13. T&C, by execution hereof, acknowledges that this Agreement has been read and
explained to them by legal counsel and they understand and fully agree to each and every
provision hereof.
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Date:
;d and
day of
Notary
before me this
�_, 2010.
Date: ��� � t �
Date: ��d� � /�
7ames A. Trenda�re
Town and Country
Minnesota
Club of St. Paul,
l !I1l Illl./`!lJ
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Patrick H. O'I�eill, Jr., #0207950
332 Minnesota St., Suite W-2600
St. Paul, MN 55101-1355
(651}292-8100
Attorney for Plaintiff
T. HENDRICKSON
City Attorney
3uditli A. Hanson, 3�207408
A�stant City Attorney
�50 City Hall and Courthouse
15 West Kellogg Boulevard
St. Paul, MN 55102
(651) 266-8727
Attorneys for Defendant Ciry of Saint Paul
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