Res 2018-37 Definitive Stlmt Agr with Lary Falck (2)RESOLUTION NO. 2018 - 37
RESOLUTION APPROVING A DEFINITIVE SETTLEMENT AGREEMENT
BETWEEN THE CITY OF FRIDLEY AND LARY B. FALCK, OWNER
OF THE PROPERTY GENERALLY LOCATED AT 1135 - 73RD AVENUE N.E.
TO ACCOMMODATE LIMITED OUTDOOR STORAGE
WHEREAS, the City Council approved a Stormwater Management and Erosion Control Plan for the
property at 1135 - 73rd Avenue on April 30, 1982; and
WHEREAS, the legal description for this property is as follows:
Lots 3 - 5 Inclusive, Block 2, Central View Manor, excluding the road subject to
easements of record, Anoka County, Minnesota; and
WHEREAS, in June 2009, the City recognized that this legally described site was not in compliance
with an approved plan for the site dated April 30, 1982; and
WHEREAS, on May 7, 2012, the Fridley City Council approved a negotiated Compliance Agreement
with the property owner, Lary Falck, for a revised site plan to accommodate the outside storage; and
WHEREAS, following repeated attempts by City staff to get the site into compliance with the
screening requirements in the terms of the 2012 Compliance Agreement, Lary Falck filed a complaint
for declaratory judgement against the City of Fridley in District Court; and
WHEREAS, the City of Fridley agreed to attempt to mediate the case on August 3, 2018, at which
time a mediated settlement agreement was reached. A copy of the Definitive Settlement Agreement has
been attached as Attachment l;
NOW, THEREFORE, BE IT RESOLVED that the City Council approves the attached Definitive
Settlement Agreement, including Exhibit 1, for the property at 1135 73rd, authorizing the Mayor and
City Manager to execute the agreement and further directs staff to record said agreement at Anoka
County.
PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THIS
13TH DAY OF AUGUST, 2018.
SCOTT J. LUND - MAYOR
ATTEST:
DEBRA A. SKOGEN — CITY CLERK
DEFINITIVE SETTLEMENT AGREEMENT
This definitive Settlement Agreement (the "Agreement") is entered into by the City of
Fridley (the "City") and Lary Falck ("Falck")
RECITALS:
1. WHEREAS, Lary Falck is the owner of property located at 1135 73rd Avenue, Fridley,
Minnesota ("the Property"); and
2. WHEREAS, going back to at least 2009 there have been ongoing disputes between Falck
and the City regarding the Property's compliance with various Codes, City ordinances,
and the Stormwater Management and Erosion Control Plan as approved by the City on
April 30, 1982 (the "Plan"); and
3. WHEREAS, efforts to reach a resolution of these disputes culminated in a Compliance
Agreement entered into by the City and Falck in May 2012, which was approved by the
Fridley City Council via Resolution No. 2012-30 dated May 7, 2012 (the "Compliance
Agreement"); and
4. WHEREAS, the City subsequently sent Falck numerous non-compliance notices related
to matters in the Compliance Agreement, Falck contended that he had complied with the
Agreement, and a dispute arose about whether Falck had complied with the requirements
set forth in that agreement; and
5. WHEREAS, Falck initiated a lawsuit in Anoka County, Minnesota titled Lary Falck v.
The City of Fridley, Court File No. 02 -CV -17-5652, an action for declaratory judgment
seeking "a determination of the parties' rights, duties, and obligations under the
Compliance Agreement..." (the "Lawsuit); and
1
6. WHEREAS, the City answered, denying that Falck was entitled to a declaratory
judgment in his favor and contending that Falck was in violation of the Compliance
Agreement and that the City was entitled to a declaratory judgment; and
7. WHEREAS, Falck and the City now desire to settle all claims arising out of or related to
the Compliance Agreement and which have been asserted in the Lawsuit, together with
any existing but unasserted claims, as more fully set forth below.
RELEASE:
NOW, THEREFORE, IN CONSIDERATION of Falck's agreement to dismiss the Lawsuit,
and other good and valuable consideration between the parties, the sufficiency of which is
hereby acknowledged by the parties, Falck and the City hereby unconditionally agree to mutually
release each other, their agents, members, family members, officers, employees, insurers,
attorneys, and other representatives and affiliates from any and all claims, counter -claims, and
cross claims, known or unknown, asserted or unasserted, that they may have against each other
as of the date this Agreement is approved by the City Council.
IT IS FURTHER UNDERSTOOD AND AGREED:
1. Upon approval of this Settlement Agreement by the Fridley City Council and
performance of the provisions in paragraph 2, a Stipulation of Dismissal With Prejudice
will be filed with the District Court dismissing the Lawsuit and all claims and
counterclaims without further cost or expense to any of the parties.
2. Subparagraphs a. -d. of Section 1 of the Compliance Agreement are replaced and
superseded with the following requirements:
a. Within ninety days of the City's approval of this Agreement, Falck will add five
fence segments, designated on the attached drawing (Exhibit 1) as Fences A, B,
2
C, D, and E. The additional fence segments will be the same height as adjoining
fencing. The parties agree that Fences B and E may not be installed if the
fencepost is angled out to reasonably achieve the drive aisle in 2.b. Falck may,
but is not required, to replace fencing on the property up to a height of 8 feet in
the future.
b. The parties agree that there will be an 18' wide drive aisle from the building curb
to Fences B, D, and E.
c. Falck will install slatting on Fences A, B, C, D, and E and the existing center
fence at Falck's own expense.
d. Falck will stripe six 9' x 18' parking stalls on the paved area of the property.
e. At or before the time that Fences A, B, C, D, and E are installed, Falck will install
signage on the driveway instructing that semi (tractor/trailer) deliveries are one
way only entering from 73rd Avenue and exiting onto 7312 Avenue. Falck will
paint at least two arrows on the driveway showing the direction for semi
(tractor/trailer) deliveries.
f. Falck's use of the fenced area is not an expansion or increase of the legal non-
conforming outsidestorage area beyond what existed at the time the Compliance
Agreement was executed and approved by the Fridley City Council on May 12,
2012. As long as the storage is confined within the fenced area and is not on the
parking spaces described in paragraph 2.d or in the areas shaded green between
points B and E on Exhibit 1, it is not an expansion or increase of the legal non-
conforming outside storage. Vehicles and trailers may be stored in outside
storage.
3
g. All fences will be maintained on the Property in good repair, and the new fencing
will match existing fencing in color and style as much as feasible.
h. Gates can remain open during business operations.
i. Shipping containers like those in the existing outside storage are acceptable in the
outside storage.
j. Falck will place a sign on the fence/gate in both directions to remind customers to
park within the Property and not on the street.
3. The Compliance Agreement remains in full force and effect except as specifically
modified in this Settlement Agreement. This includes, but is not limited to, the
provisions that " [a]ny and all existing compliance issues related to outside storage and
Fencing with the Code are hereby resolved." Also, "the City represents and agrees it will
not initiate a City Code or City Zoning Code violation or noncompliance action related to
the outside storage consistent with" this Settlement Agreement and the Compliance
Agreement. Also, the City will not pursue a criminal action against Falck related to the
outside storage as long as Falck is compliant with this Agreement.
4. The City agrees that all known and existing Code issues at the Property are resolved by
this Agreement.
5. The Property is subject to the 1971 City Code, and the Stormwater Management and
Erosion Control Plan (the "Plan") as approved by the City on April 30, 1982.
6. The City will release the bond, if any, for the Property and will provide Falck with the
final Certificate of Occupancy for the Property upon confirmation that condition 1 of the
Temporary Certificate of Occupancy dated November 2, 1982, has been satisfied. The
4
City will be precluded from arguing in the future that the Property is an illegal non-
conforming use.
7. This Agreement will be recorded and will run with the Property.
8. This Agreement is subject to the approval of the Fridley City Council. City staff will
recommend and advocate for its adoption by the City Council.
9. This Agreement is governed by the laws of Minnesota.
10. The Agreement may only be modified in a writing signed and authorized by both parties.
11. This Agreement may be signed in any number of counterparts. The counterparts
together will be a single instrument. Signatures may be transmitted electronically and
faxed or emailed copies will be treated and enforced as originals.
Dated:
Falck
Dated:
CITY OFF LEY
By:
7/0
Its: /%I a,14 J))—
After
L
After Recording, Return To:
Sarah E. Bushnell
Arthur Chapman Kettering Smetak & Pikala, P.A.
81 S. 9th Street, Suite 500
Minneapolis, MN 55402
R
9:
�W ' o
°3g ❑
0
' 8D❑❑o❑❑0000❑oo �o q o
G
❑
❑ ,�� O
r O� � F ❑❑
000
0 �arking Space 0
/►ii.I✓�►/ ❑
_ o
1135 73rd Ave. NE y �a��e.
Fridley% './ D
— O
`i �arkingSpace11
C
0000000000000000000q
00
�a I
Parking Space
�ti `8x�./,�./ ❑
0
o
IM 0
Parking Space,, O
❑
DO
0
S D
No o
:n 0
D
0
0
0
0
0
0
D
g r� o
�a ❑ 0
oa 0
D❑D❑DOOOD❑DODOD❑0000❑❑❑000❑i]❑0❑OD❑0
1 • _ _ pyo
.o
r
Fencing rte% *The parties agree no storage will be kept within the sight
0000 Existing lines as indicated by the green shaded areas between B and E.
moo Extension
7>3RD AVE NE *The parties agree that Fences B and E do not have to be
0 10 20 30 40 f installed if the fencepost is angled out to reasonably
achieve the 18' wide drive aisle.
*not to scale