STATE OF MICHIGAN

BERRIEN COUNTY CIRCUIT COURT

CLELLEN BURY et

Plaintiffs

Case Number 03-3430-CE-F

Honorable Lynda Tolen

CITY OF BENTON HARBOR

Defendant

William Burgess P36922 Charlette Pugh Tall P48780

Geoffrey Fields P41788 Benton Harbor City Attorney

Dickinson Wright PLLC

Attorneys for Benton Harbor Thomas Fette P13396
200 Ottawa NW Suite 900 Paul Taglia P21241
Grand Rapids Ml 49503 Attorneys for Plaintiffs

616 458-1300

CONSENT JUDGMENT
AND PERMANENT INJUNCTION

cL/
At session of the Cou4 in St Joseph Berrien

County Michigan on 0W9

LYNDA 1OLN
Present Hon __________________________
Circuit Court Judge

Upon the Stipulation of the parties having conducted hearing on January 27 2004

pursuant to the Notice of Hearing filed in advance by the parties and being advised in the

premises

Consent Judgment is entered to adjudicate declare find and order the following

Findings

Based on pleadings and evidence in the record including evidence presented at earlier

hearings the Court makes the following findings

D010000022
 SETFLEMENT AGREEMENI

This Settlement Agreement Agreement is entered intq by the City of Benton lfarbor

Shurn
City on the one hand and Clellen Bury Carol Drake Gladys Peeples-Burks Joseph

Norman Tobias Plaintiffs on the other hand The

Sttnm and Princefla collectively

effective date Effective Date of this Agreement is December 18 2003

RccitaI

The Jean Kiock Pait On June 2003 six members of the City Commission
City owns

voted to sefl part of Jean Kiock Park to Grand Boulevard Rnaisaance LLC Developer for

residential development On June 16 2003 Plaintiffs commenced lawsuit Lawsuit against

the City in Brv et al City of Benton Harbo Benien County Circuit Court Court Case

Number O3-3430-CEF The primary issue in the Lawsuit involves whether and to what extent

the City may sell any portion of Jean Kiock Park for uses other than bathing beach park or other

public purposes On August 12 2003 the Court entered Preliminary Injunctive Order and on

October 14 2003 the Court entered an Order for Alternative Dispute Resolution ADR Order
Plaintiff Harzell Taylor is being nigsed from this lawsuit with prejudice due to health

Pursuant to the ADR.Order the remaining engaged in facilitative mediation

problems parties

and as result of meetings with the mediator Mediator and taking into consideration the

history present-day concerns and future interests of the City Jean Kiock Park and the people

who use Jean Kiock Park these parties have agreed to settle their dispute including the Lawsuit

based on the terms and conditions set forth below

Terms and Conditions

The City Clellen Bury Carol Drake Gladys Peeples-Burks Joseph Shurn Norman

Stcmin and Pthicella Tobias agree as follows

D010000023
 of the of this entire
This Agreement is conditioned upon the approval City

without changes or amendments as authorized by law The City shall obtain such
Agreement

scheduled
approval from the City Commission stacy of its regular meetings after Januaiy

2004

execution of Areement counsel for thepaxties sha1linform thC Couxt

Upon this

of this Agreement

Upon execution of this Agreement aotmsd for the parties shall file StipnIat

to Continue Preliminary Injunction Order and Modify Case Management and Scheduling

the form attached to this Agreement Exhibit for entry by the Court
Order in as

Upon approval of this Agreement by the City as described In paragraph above

counsel for the parties shall submits Consent Judgment in the form attached to this Agreement

as thibit for entryby the Court at ahearingto bescheduledby filing aNoticeof Hearing in

form attached this as Exhibit with the Court

the Agreement

Upon execution of this Agreement counsel for the City shall Æcck to obtain any

required approval by the Michigan Depaxtncnt of Natural Resources MDNR for the sale of

Grand Parcel defined Consent Judgment attached Agreement

the Boulevard as in the to this as

Exhibit

In addition subject to approval by the City Cnmn1ision and any other required

the City agrees to provide for the reopening of Grand Boulevard as

governmental entity

on Exhibit to the Consent Judgment out of proceeds from the sale of the Grand
depicted

Boulevard Parcel and replace the fence at Jean Klock Park out of proceeds from the sale of

the Urana Boulevard Parcel

A.I1YT II.4 tTI bi14R.Jq2 Q7T CY7Y

D010000024
 this to cooperate to take all teessary
Each of the parties to Agreement agrees

of
measures to obtain and to refrain from actions that might impede entry and implementation

the Consent Judgment and approval by the MDNR as provided for by paragraphs and above

conditioned the successful completion of the sale of the

This Agreement is upon

for by the Consent Judgment attached to this

Grand Boulevard Parcel as defined in and provided

Agreement as Exhibit

the to publicly support and promote and

Each of parties supports agrees

and promote the

authorLzes counsel of record in the Lawsuit to publicly support this Agreement

of
implementation of of the provisions Agreement
all this
Consent Judgment and the successful

the sale and residential development of the Grand

and the Consent Judgment including

Boulevard Parcel as provided for in the consent Judgment

binds and inures to the benefit of the parties and their respective
10 This Agreement

successors and assigns

and neither
purpose of compromise
into for the this
11 This Agreement is entered

or conditions shall be considered to be an admission by or

Agreement nor any of terms
its

by or on behalf of any party to this Agreement

evidence of liability

of
12 This Agreement is the entire agreement of the parties regarding the resolution

the transactions and occuirences regarding the Lawsuit and no prior

their dispute over

or other understandings may be used to explain this Agreement or any

agreements negotiations

of its terms and conditions

terms and conditions and all exhibits may not be amended

13 This Agreement its

all parties to this Agreement or

modified waived or assigned except in writing signed by

their authorized representatives

D010000025
 counsel for the parties with the
was negotiated jointly by
14 ThIs Agrcenicnt

the drafter if there is

and sb1l not be construed against any party as
assistance of the Mediator

and conditions
as to the meaning of this Agreement or any of its tenns
any question

15 MIchigan law governs

this AgrcemMt

have discussed this settlement with the

counsel for the
16 The undersigned parties

his clients to this

behalf of and bind respecthP
and each is fully
authorized to sign on
parties

Agre21ent

one or more counterparts each of which shall

may be executed in
17 This Agreement

and of which together shall constitute one and the same

be deemed to be an original all

transmit this Agreement to one

is agreed that the counsel for the parties may
instrument it

facsimile shall be accepted as oiiglnal signatures

facsimile and that their signatures
another by

ThomuLFcttcP13396
pefdsP4l788 for Plaintiffs
for City of Benton Harbor Attorney
Attorney

.1ifVT ri wrrwt 9ZCt 2GZJBt/1

D010000026
 STATE OF MICHIGAN

BERRIEN COUNTY CIRCUiT

COURT

CLELLEN BURY et aL

PIaintifl
Case Number 03-3430-CE-F

Hono1c L4a Tolen

OF BON
Defendant
---I

Charlette Pugh Tall P48780

WIIliarnT P36922
Burgess
Benlon Harbor City Attorney
Fields P41788
Ocoffley
Dickinson Wright PLLC
Harbor Thomas R. Fete P13396
for Benton
Attorneys

200 Ottawa NW Suite 900 Paul TagliaP2124l

for Plaintiffs
Attorneys
Grand Rapids MI 49503

616 458-1300

PRELIMINARY INJuNCFWE
STIPULATED ORDER TO CONTINUE
ER AND MODIFY CASE MANAGEMENT
AND SCHEDULING ORDER

of the Court in St Joseph Berzieu

At session

County Michigan on__________________

Present Hon _______________________

Circuit Court Judge

the premises
the Stipulation of the parties and being advised in
Upon

iT IS ORDERED as follows

The agree that the Prdliininwy Injunction Order may rnain in force and
parties

or further order of the Cowt provided that

until the earlier of the March 2004 trial date
effect

waive any and all objections it has raised in

and does not
in so stipulations the City reseres

of the Preliniinmy Injunctive Order

opposition to entry

I.4k1 I4 VTE.L tLLOC8669 9t 8Z/6t/t

D010000027
 whatsoever regarding the subject
interest
The deadline for any person having any

intervene in this action pursuant to MCR 2.209

an application to
action to fiske
matter of this

counsel of record
entry of this Order
the date of entry of this Order Upon
shall be 28 days from

Order in of general
notice of this newspaper
and defendant shall publish
for the plaintiffs

three consecutivO weeks as provided for in MC1 2.106DX1

for
circulation of Benien County

and Scheduling OrdCi shall remain in

All other deadlines in the Case Management

of the parties
the Court orders otheiwise upon stipulation
place unless

Dated Dccnber 2003

Circuit Cout Judge

Sileulation

Order
their respective counsel Stipulsie to entry of the above
The parties by

Thomas It Fette P13396

GeoeyAJIe1d P41788 frr Plaintiffs
Harbor Attorney
Attorney for City of Denton

December 19 2003
December 19 2003

GaAflJ I2-l Z43101W

qi EPgZi6tit

D010000028
 STATE OP MiCHIGAN

BERRIEN COUNTY CtRCU1T COURT

CLELLEN BURY et aL

Plaintiffs

Cue Numb 03-3430-CE-P

Lda Tolcn

CITY OF BENTON HARBOR

Defendant

William Burgess P36922 Claarlette Pugh Tall P48780

Geoffrey Fields P41788 Benton Harbor City Attorney
Dickinson Waight PLLC
Attorneys for Benton HarbOr Thomas FetteP13396
200 Ottawa NW Suite 900 Panl Taglia P21241
Grand Rapids Ml 49503 Attorneys for PIainti5a

616 458-1300

CONSENT JUDGMENT

At session of the Court in St Joseph Bcrxien

County Michigan on____________

Present Hon._________________
Ccuit Court Judge

Upon the Stipulation of the parties having conducted hearing on

2004 pursuant to the Notice of Nearing flied in advance by the parties and being advised in the

premises

Consent Judgment is ented to adjudicate declare find and or the following

Based en pleadings and evidence in the record evidence

including presented at earlier

hearings the Court makes the following findings

D010000029
 Hazbor owns Jean Kiock Park
The City ofBcntofl Harbor Benton

members of the City Commission voted to sell part of Jean

On June 2003 six

LLC Developer for residential development the

Kiock Park to Grand Boulevard Renaissance

Residential Project

commenced this action to litigate the question of

On June 16 2003 Planitiffs

Kiock Park for uses other than

and what extent the City may sell any portion of Jean
whether 10

bathing beach park or other public purposes

entered Order
On August 12 2003 the Court Preliminary Injunctive

Order The Injunction Order provided for temporary injunctive relief under MCR
Injunction

ruling on an issue of first impression in Michigan

3.310 and depended upon preliminary legal

of to make permanent dedication of public lands the

regarding the ability municipality

Dedication Claim The Injunction Order also made prelindnaiy ruling that
Municipal

to on their other claims in this matter including the claims

Plaintiffs are not likely prevail

relating to the deed from LN and Carrie Kiocic to the City the Deed Claim and claims

under the environmental laws of the State of Michigan the Environmental Claims
arising

anyofthe

claims of this case

On October 14 2003 the Court entered an Order for Alternative Dispute

Resolution ADR Order

FuUaAt tu thc ADR rde the

pardes cngageu in tacthtative mediation As

result of the mediation the parties entered into Settlement Agreement Settlement

by which they agreed to settle all claims and defenses from the transactions
Agreement arising

and occurrences that are or could have been the subject matter of this action copy of the

DLL8C8669 9Et /6t/t

D010000030
 as Exhibit The terms and
attached to this Consent Judgment
Settlement Agreement

attached to this Consent Judgment are incorporated by

conditions of the Settierilent Agreement

reference into this Consent Judgment

On December 2003 the Court entered Stipulated Order MCR 2.106

Amend Case Management Order and Scheduling Order Pursuant to the MCR 2.106
Oriler to

counsel for the parties published aNotice of Entry of MCR 2.106 Orderin newspaper of
Order

circulation in Berricn County for three successive weeks Exhibit No other

general

personified plicaticntoieinthsactionsrcVhdbYtheMCR2.1060rderbYthC

deadline of January 2003

court-imposed

On 2003 at public hearing the City Commission voted to authorize

January

and initiated to amend the Citys Master Plan to

entry of this Consent Judgment proceedings

of Jean Kiock Park as contemplated by the Settlement Agreement

exclude certain portions

entered by the parties and this Consent Judgment

Conclusions of La and Orders of the Court

Based upon the facts of this case the consent of the parties and tnlthi into consideration

the present-day concerns and future interests of the City Jean Kiock Park and the
history

who use Jean Klock Park as well as the time and expense lncwred and about to be
people

incurred in connection with the Residential Project the Court makes the following conclusions

of law and orders as follows

This Consent Judgment Is intended to and may be recorded It relates to the

present and future use of Jean Kiock Park and the Residential Project

_. nwpcqz qzt 2/tIt

D010000031
 This Consent Judgment places and supersedes all pzior rulings made by the Coutt

in this inatt including the Injunction Order as amended or extended from tithe to
time all of

which are dissolved

Subject to paragraph below the Court defines Jean Kiock Park to mean and

include all property depicted in xhibit to this Consent Judgment The Court perrnanentiy

eiJoins the City from using any portion of the property depicted as Jcan Xloc Park in Exhibit

to this Consent Judgment for any purpose other than bathing beach park purposes or other

related to bathing beach or park for

public purposes use except recreational vehicle park

campsites provided however that the City shall for all time be authorized and empowered to

operate its water freatment facility located at the south end of the park including but not limited

capital ats and expansion The restrictions in this paragraph shall rui with the

land and shall be binding upon the City and its successors

Notwithstanding any other provision of this Consent Judgment the City may sell

the parcel Grand Boulevard Parcel which is depicted In Exhibit to this Connt Judgnient

to Grand Boulevard Renaissance LLC Developer provided that the residences to be

constructed as part of the Eesidentla Project in the Grand Boulevard Parcel depietcd on Exhibit

Dshall not exceed 35 feet in height from thelevel of Grand Boulevard If foranyreason the

City is unable to coinpletc sale of the Grand Boulevard Parcel to thc

Developer for the

Residential Project and the Developer is unable to the

complete Residential Project then this

Consent Judgment shall be dissolved and any party to this action may petition to
reopen this

action in which case the Court shall hear and decide the Municipal ledicatjon Claim In

addition the City may also use the parcel M-63 Parcel which is depicted in Exhibit to this

Consent Judgment for purposes other than bathing beach park or other public purposes

Zt/tt $d 3flI RlVR-4 DLLCBS9 qzT 7gTzT

D010000032
 the M-63 Parcel for such oth uses If each of
that the City may only use
provided however

must approve such otb uses as

is xnct the City Commission
the conditions
following

and the Michigan Department of

Natural Resources MDNR
required by the City Charter

of
the MDNR is required to do so tmdcr the temis
other uses to the extent
must approve such

to the City
made by the State of Michigan
grants

matter for the purpose and to the extent

shall retain jurisdiction
of this
This Court

and foT deciding any

the terms and provisions of this Consent Judgment
necessaly of enforcing

and the Settlement

of the terms of this Consent Judgment
issues arising from the implementation

Agreement

Consent Judgrnent this action

above in this
as otherwise provided
Except

dismissed with prejudice

Claim and Environmental Claims is

Including the Deed

to the provisions of paragraphs and

Based upon the foregoing and subject

and closes this case

this Consent Judgment resolves all pcndhig claims
above

Honorable Lynda Tolen

Stipu1atiQ

ounsel pursuant to their Settlement Agreement stipulate

The parties by their respective

and consent to entiy of the above Consent Judgment

ThoninaR.FetteP13396
4g ______
Attorney for P1aiiitiffi Attorney for ty ofBenton Harbor

OA l4S13I

9Ct C9/6t/t
na 3i13.1 I-vi tLLGC86691

D010000033
 STATE OF MICHIGAN

COUNTI CIRCUIT COURT

BER.RIEN

BUPY at al
CLELLEN

P1aintif Case Nwnber 03-3430-CE-F

Honorable Lynda Tolen

HARBOR
ciTy OF BENTON

Defendant

Charlette Pugh Tall P48780

Wij1irnT BurgeN P36922f Senton Harbor City Attorney
GeoeY Fields P41788
Dickinson Wright
PU-C
Thomas Fette P13396
for Bentoil Harbor
Attorneys Paul agU P21241
200 Ottawa NW Suite 900
Attorneys for P1ainti
Grand Rapids Ml 49503

616 458-1300

NOTICE OF HEAIL1NG

this action will submit Consent

for the parties to
PLEASE TAICE NOTICE
that counsel

the Court at hearing on

Exhibit for entry by
form attached as
In the
Judgment
of record may be
January 2003 at __ rn or as soon uftr as counsel

heard

DICKiNSON WRIGHF PLLC

TAGUAI pgflE DUMKE WH1Th P.C
for City of Benton Harbor
Attorneys
Plairttiffi
for

B414
Attorneys

By P36922
ThoinsaR FttP13396 illgessP41788
Geo Fields
Paul P21241
Taglia
Oce Box 890 200 Ottawa NW Suite 900
720 State Street Post
Grand Rapids Michigan 49503
Michigan 49085
St Joseph
616-336-1017
269-983-0755

AIU1 i%.I I%

tLLBC8669 e/6t/
ArY1 l14 VIV.L

D010000034