HomeMy WebLinkAbout#06 - Cardinal Ridge Watermain Alternatives STAFF REPORT
DATE: April 18, 2023
REGULAR
AGENDA ITEM: Cardinal Ridge Watermain Extension Alternatives
SUBMITTED BY: Jack Griffin, City Engineer
REVIEWED BY: Kristina Handt, City Administrator Sarah Sonsalla, City Attorney
Marty Powers, Public Works Director
Mark Scholle, Project Engineer
ISSUE BEFORE COUNCIL: City staff is seeking council direction regarding the watermain extension
design alternatives for the Cardinal Ridge neighborhood should the HOA choose not to provide a drainage
and utility easement over HOA Outlot C for the installation of 3 watermain services.
BACKGROUND: The City of Lake Elmo received grant funding from the Minnesota Pollution Control
Agency (MPCA) under the 2018 3M Settlement Agreement as an expedited project to extend municipal
water and connect each of the 62 properties, including 17 properties located in the Cardinal Ridge
subdivision. The grant is in the amended amount of $5,645,000 after approving a change order to install the
watermain along Ivy Avenue in the Cardinal Ridge subdivision through open cut trench installation.
T.A. Schifsky & Sons, Inc. was awarded a construction contract on April 6, 2022, to complete the Parkview-
Cardinal Street and Utility Improvements. The amended construction contract completion dates are
Substantial Completion date of July 31, 2023, and Final Completion date of August 15, 2023.
PROPOSAL DETAILS/ANALYSIS: The original project design includes the extension of 3 private
water services across HOA owned Outlot C to serve the properties located at 1545, 1571, and 1589 Ivy
Avenue (see attached Outlot C Exhibit). The installation of the services requires the acquisition of a
drainage and utility easement over Outlot C. Following the start of construction, in August 2022, the city
submitted a request to the HOA to grant the Outlot C easement. In September, 2022 the HOA formally
declined to grant the easement citing various concerns.
After working through the open cut change order issues with the contractor and obtaining additional grant
funding to cover the added project costs, the design team explored alternatives for constructing the
improvements and addressing the 3 private water services across Outlot C. Two (2) implementation options
were developed as outlined below (see OPTIONS below).
A neighborhood meeting was conducted on March 8, 2023 to review the options with the 17 HOA properties
and to answer questions. Following the neighborhood meeting the Cardinal Ridge Homeowners’
Association submitted the attached letter dated March 14, 2023, once again declining to grant the requested
easement. The City Administrator and City Engineer subsequently met with HOA representatives on April
5, 2023 to continue discussions and answer questions. At the meeting, the city advised the HOA
representatives that staff would be requesting council direction at the April 18 council meeting. At the HOA
request the City submitted the attached letter dated April 6, 2023 to address the HOA concerns regarding
the Open Space Easement.
OPTIONS:
1) OPTION 1: Construct the improvements in accordance with the approved Project Plans and
approved Change Order No. 3. With no easement granted over Outlot C, install the water service
stubs for the properties at 1545, 1571, and 1589 Ivy Avenue to the right-of-way boulevard on the
west side of the center landscaped island (see attached Exhibit 1). Service stubs would be installed
across Outlot C and stubbed to each property by the city contractor if the HOA grants the requested
easement before the contractor has completed the watermain installation work in the immediate
area of these services.
At the time of adopting the Final Assessment Roll the properties at 1545, 1571, and 1589 Ivy
Avenue would be removed from the watermain assessment roll, for each property that has not yet
connected to city water, if the service stubs remain on the west side of the Outlot C median. The
street and storm sewer assessments would remain for each property that has not connected to city
water.
The service stubs would be in place to allow for future connection by the property owner should an
easement be granted at some point in the future, either to the city or to the individual property
owner. This connection could be made with MPCA Grant reimbursement funds if completed prior
to the connection deadline requirements, or the connection could be made at property owner’s cost
if completed at a later date.
2) OPTION 2: Direct staff to revise the design to include a secondary watermain extension further
east along 16th Street, then south along Ivy Avenue on the east side of the Outlot C median, with
service stubs extended to 1545, 1571, and 1589 Ivy Avenue (see attached Exhibit 2). Furthermore,
direct the city engineer to prepare a revised Feasibility Report and Preliminary Assessment Roll to
assess the secondary watermain costs to the 17 Cardinal Ridge HOA properties (estimated unit
assessment of $10,300).
A design change order will be prepared for future council approval to include the secondary
watermain improvements. A revised feasibility report will be prepared for council approval and a
public improvement hearing will be scheduled and noticed for the purpose of adopting a revised
preliminary assessment roll. The secondary watermain assessments would not be forgivable with
the connection to city water as they would remain outside the scope of the MPCA Grant Agreement.
3) OPTION 3: Provide direction to staff to proceed with either OPTION 1 as amended by the City
Council, or OPTION 2 as amended by the City Council.
FISCAL IMPACT: OPTION 1 would have no fiscal impact to the city or grant agreement. Future water
service costs may be incurred by the properties at 1545, 1571, and 1589 Ivy Avenue should they elect to
connect to city water after the termination of the MPCA grant agreement.
OPTION 2 would increase the total project costs in the estimated amount of $175,000 which would be
assessed to the 17 Cardinal Ridge HOA properties.
RECOMMENDATION: Staff is recommending that the City Council approve OPTION 1 to construct the
improvements in accordance with the approved Project Plans and approved Change Order No. 3, unless the
Cardinal Ridge HOA provides documentation in support of OPTION 2 either prior to or at the April 18,
2023 city council meeting. The recommended motion for the action is as follows:
“Move to approve OPTION 1 to construct the improvements in accordance with the approved Project
Plans and approved Change Order No. 3 as detailed in this agenda report, and to direct the city
engineer to remove the properties at 1545, 1571, and 1589 Ivy Avenue from the final watermain
assessment, for each property that has not yet connected to city water at the time of the final
assessment roll adoption.”.
ATTACHMENTS:
1. Outlot C Easement Exhibit.
2. Cardinal Ridge Homeowners’ Association letter dated March 14, 2023 to the City of Lake Elmo.
3. City of Lake Elmo letter dated April 6, 2023 to the Cardinal Ridge Homeowners’ Association.
4. Exhibit 1 – OPTION 1. Three (3) water services stubbed to the west island right-of-way.
5. Exhibit 2 – OPTION 2. Secondary watermain extension.
DOCSOPEN\LA515\1\817113.v2-8/16/22 B-1
EXHIBIT B TO
DRAINAGE AND UTILITY EASEMENT
Depiction of the Easement Area
Cardinal Ridge Homeowners’ Association
LakeElmoCardinalRidgeHOA@gmail.com
Cardinal Ridge HOA
LakeElmoCardinalRidgeHOA@gmail.com
Tuesday, March 14, 2023
Lake Elmo City Council:
Mayor Charles Cadenhead
Councilwoman Lisa McGinn
Councilman Jeff Holtz
Councilwoman Katrina Beckstrom
Councilman Matt Hirn
3800 Laverne Avenue North
Lake Elmo, Minnesota 55042
CC: City Administrator, City Engineer, City Attorney, FOCUS Engineering, and other interested parties
Dear Mayor Cadenhead and members of the Lake Elmo City Council, and all other interested
parties:
On September 1st, 2022, the Cardinal Ridge Homeowners’ Association (“HOA”), after very careful
consideration, declined to grant the City of Lake Elmo an easement across an outlot in our community
(“Outlot C”). This easement was requested because the Parkview-Cardinal Neighborhood Street and Utility
Improvement project had planned, in its design of the project, to cut across Outlot C to service three homes
on the east side of Ivy Avenue. The easement was not requested until August 16th, 2022, despite knowledge
that the easement would be necessary to complete the project as designed. Outlot C is governed by a
conservation easement granted to the City of Lake Elmo.
For the following reasons, the request for the easement was denied:
1. The Protective Covenants and Easements that run with and bind all properties within Cardinal Ridge
do not allow the Board to grant such an easement without “an affirmative vote of two-thirds
(2/3rds) majority of all the owners of said lots at a special meeting called for that purpose…” The
proposed Easement grants the City permanent control over the parcel to the degree necessary to
maintain the infrastructure. All other issues aside, the HOA cannot in good faith consent to such a
request without adhering to proper procedure.
2. It appears that the City’s plan for installing water across Outlot C runs afoul of the spirit and letter of
the OPEN SPACE EASEMENT CARDINAL RIDGE already granted to the City of Lake Elmo.
See Paragraph 1 of the OPEN SPACE EASEMENT. The HOA has an affirmative duty to uphold
this agreement. See Paragraph 11.B of the Protective Covenants and Easements. See Article 23 of the
Protective Covenants and Easements.
3. The OPEN SPACE EASEMENT specifically prohibits installation of new utilities, including water,
in Outlot C, unless prior approval is granted by the City. The HOA has made no such request, and
any such request, if the HOA were to make it, would need to adhere to regular procedural
Cardinal Ridge Homeowners’ Association
LakeElmoCardinalRidgeHOA@gmail.com
Cardinal Ridge HOA
LakeElmoCardinalRidgeHOA@gmail.com
requirements such as notice and presentation to the City Council. See Paragraph 6 of the OPEN
SPACE EASEMENT.
4. The OPEN SPACE EASEMENT also specifically states that “the owner shall not remove, destroy,
cut, mow, or alter trees, shrubs, and other vegetation…” except as allowed in Paragraph 5, Paragraph
7, or otherwise specified in the agreement. As the OPEN SPACE EASEMENT both specifically
prohibits the HOA or individual owners from installing water, and further specifically prohibits the
destruction of trees on the common property, it is clear that the very purpose and intent of the
OPEN SPACE EASEMENT is to prevent disturbances to the open space exactly like the
disturbance proposed by the City.
5. The proposed Easement grants the City permanent control over the parcel to the degree necessary to
maintain the infrastructure, in exchange for “just compensation.” No compensation has been
offered.
If the HOA grants the City of Lake Elmo an easement over Outlot C to complete the construction, three
trenches will be dug across Outlot C and each will be, at minimum, 20 feet wide. Many of our large, mature
trees will be lost, and will not be able to be replanted due to the nature of the utilities that will now be buried
there, aside from the fact that no replacement of trees was budgeted for in the construction. This results in a
significant loss of privacy to the residents who live to the east and west of Outlot C, as well as loss of
enjoyment of one of our open spaces which we have maintained since our development’s inception.
During a neighborhood Zoom meeting with Mr. Griffin of FOCUS Engineering, Mr. Griffin indicated that
additional funding has already been secured from the MPCA to assist in unforeseen costs associated with this
project. These additional funds will not, however, be sufficient to fund an alternative to cutting across Outlot
C, thereby effectively destroying the conservation nature of the OPEN SPACE EASEMENT. Mr. Griffin
indicated that he did not seek additional funds to pay for such an alternative because he did not think that the
MPCA would fund them. Mr. Griffin further indicated that if the proposed easement across Outlot C is not
granted, and the residents on the east side of Ivy wished to be included in the water service, all residents of
our HOA would be assessed close to $10,000 to pay for an alternative design.
Respectfully, it seems that our residents are being penalized for a lack of foresight that was completely outside
their control. The easement across Outlot C was a necessary component of the project from the very
beginning, but was not obtained before the project was approved in 2021, was not obtained as part of the
feasibility report, and in fact, the easement across Outlot C was not even requested until nearly the end of the
construction season last year. This is not our residents’ failure or mistake, and they ought not be penalized for
it. Instead, funding to address this lack of foresight should be obtained from the MPCA or from the City’s
general fund. Our residents, after a Special Meeting and vote, are unanimously requesting that the City of
Lake Elmo authorize Mr. Griffin to seek an additional amendment to the MPCA grant for funds to complete
Cardinal Ridge Homeowners’ Association
LakeElmoCardinalRidgeHOA@gmail.com
Cardinal Ridge HOA
LakeElmoCardinalRidgeHOA@gmail.com
the project with an alternative design, that the City Council elect to pay for the alternative design from the
general fund, or some combination of the two.
We intend to bring this matter before the Council during the Public Comment section of the Tuesday, March
21, 2023 meeting. It is our hope that the City Council will schedule this matter to be heard and addressed by
the City Council as soon as is feasible.
Very truly yours,
Cardinal Ridge Homeowners’ Association
. , OPEN SPACE EASEMENT
CARDINAL RIDGE
3133745
11111111111
THIS OPEN SPACE EASEMENT is entered into this /~--1, day of /Jt~d-q. SO
2000, by and between D&T D e velopment, LLP, a Minnesota Limited L iability Partnership,
whos e address is 2297 Stillwater Road, St. Paul, MN 55119 ("Owner") and the City ofLake
Elmo, a Minnes ota statutory city ("City").
WITNESSETH:
A. Owner is the sole owner in fee s imple of the following described property., together .
with buildings and other improvements located in Washington County, Minnesota
("Protected Land"):
B .
C.
D.
E.
Outlots, A, B and C, Cardinal Ridge.
The Protected Land is primarily farmland, woodland, and open space as defined in
the City's Comprehensive Use Plan and Open Space Preservation District
Regulations (both herein "City Development Regulations").
The natural, scenic and agricultural qualities, forested and open space character
("Conservation Values") of the Protected Land are described in the City's
Development File for the Cardinal Ridge Development ("Development File"). The
City intends to use the description of the Protected Property as contained in the City's
Development File in monitoring the subs equent uses of the Protected Land and
enforcing the terms of this Open Space Easement. Notwithstanding this , the parties
may use all other relevant evidence to establish the present condition of the Protected
Land in the event of a disagreement as to whether a subsequent activity or use is
consistent with the terms of this Open Space Easement.
Owner intends to convey to the City the right to preserve and protect the
Conservation Values of the Protected Land in perpetuity and to prevent or remedy
subsequent activities or uses that are inconsistent with the terms of this Open Space
Easement.
The grant of this Open Space Easement will further the purpose and intent of the
City's Development Regulations.
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ENTERED IN TRANSFER RECORD
WASHINGTON COUNTY, MINNESOTA
13 ~ ooo
VIRGINIA R. ERDAHL, AUDITOR·TReASURER
BY if,' vo '"'" s u-::s---1s::::te21:5t_f __
F. The parties acknowledge that, as a local unit of government, the City has a direct
interest in the enforcement of the terms of this Open Space Easement and is in a
position to monitor compliance with the terms of this Open Space Easement.
NOW, THEREFORE, in consideration of their mutual covenants and pursuant to
the provisions of the City's Development Regulations, Owner conveys and warrants to the
City and the City accepts a perpetual open space easement on the Protected Land of the
character and to the extent set forth herein.
1. Intent. The parties intend to permanently retain the Protected Land in its
predominantly natural, scenic, agricultural, forested, and open space condition and to
prevent or remedy any subsequent activity or use that significantly impairs or interferes with
the Conservation Values of the Protected Land. Owner intends to restrict all subsequent use
of the Protected Land to activities consistent with the terms of this Open Space Easement.
2. City'sRiehts. To accomplish the parties' intent, Owner conveys the following
rights to the City as specified below:
a . To preserve and protect the Conservation Values of the Protected Land
pursuant to t he terms of this Open Space Easement.
b. To enter the Protected Land at reasonable times to monitor subsequent
activities and uses and to enforce the terms of this Open Space Easement. The
City shall give reasonable notice to Owner of all such entries and shall not
unreasonably interfere with Owner's use and quiet enjoyment of the Protected
Land.
c. To act, pursuant to Paragraph 19, to prevent or remedy all subsequent
activities and uses of the Protected Land not consistent with the terms of this
Open Space Easement.
3. Prohibited Uses. Owner shall not perform or knowingly allow others to
perform acts on the Protected Land that would significantly impair or interfere with the
Conservation Values of the Protected Land. This general restriction is not limited by the
more specific restrictions set forth in Paragraphs 4-14. The parties acknowledge that the
present use of the Protected Land is consistent with the terms of this Open Space Easement
and the City's Development Regulations. The owner may, subject to the restrictions set
forth in Paragraphs 4-14, continue making such u se of the Protected Land.
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4. Residential, Commercial & lnd~ustrial Uses. Owner shall not subdivide all
or part of the Protected Lands for residential, commercial or industrial development. Owner
shall not subdivide, either legally or physically, the Protected Land for any other reason
without the prior written approval of the City. Owner shall not engage in commercial or
industrial activities on the Protected Land, other than the activities relating to a gricultural
operations as set forth in Paragraph 7. Owner shall not engage in the exploration or
extraction of soil, sand, gravel, rock minerals, hydrocarbons or any other natural resource
on or from the Protected Land. Owner shall not grant rights of way on the Protected Land
in conjunction with commercial or industrial activities or residential development on lands
other than the Protected Land, except for access to adjacent parcels owned by Owner.
5. Construction. Owner shall not construct or install additional buildings or
improvements of any kind including, without limitation, fences , driveways, parking lots, and
roads, on the Protected Land, except as specified herein. Owner may maintain, repair, and
replace existing roads but shall not widen them unless doing so lessens the environmental
impact of the road on the Protected Land and Owner has obtained the prior written approval
of the City. Owner may maintain, renovate, expand or replace existing agricultural and
related buildings or improvements in substantially their present location. Any expansion or
replacement of an existing building or improvement shaU not substantially alter its character
or function, and shall not exceed its current square footage, without the prior written
approval of the City.
6. Utility Systems. Owner may maintain, repair, and replace existing utility
systems on the Protected Land including, without limitation, water, sewer, power, fuel, and
communications lines and related facilities. Owner shall not install new utility systems or
extensions of existing utility systems on the Protected Land including, without limitation,
water, sewer, power, fuel, and communications lines and related facilities, without the prior
approval of the City. Owner may install, maintain, and replace irrigation systems used on
the Protected Land. Owner may install sewage systems on or under the Protected Land
which comply with all existing federal , state and local regulations regarding water quality
and other environmental concerns, and which do not disrupt other activities permitted under
the terms of this Open Space Easement.
7. Aa=ricultural Use. Owner may conduct agricultural operations on the
Protected Land provided that such use is in compliance with the City's Development
Regulations.
8. Surface Alteratinn. Owner shall not alter the surface of the Protected Land
including, without limitation, the filling, excavation, or removal of soil, sand, gravel, rocks,
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or other material except as reasonably required in the course of activities or uses permitted
under the terms of this Open Space Easement or as reasonably required during the initial
development of the adjacent property owned by Owner. Such initial development period
shall expire no later than the 30th day of June, 2001.
9. Soil and Water Dea:radation. Owner shall not engage in activities or uses
that cause or are likely to cause soil degradation, erosion, or water pollution, either on the
surface or underground, except for activities or uses reasonably required in the course of
Agricultural Operations permitted by Paragraph 7.
10. Waste Removal. Owner shall not dump or dispose of refuse or other waste
material on the Protected Land although, subject to applicable laws and regulations, Owner
may dispose of brush and other plant material from the Protected Land by burning or
composting if such material results from Agricultural Operations permitted by Paragraph
7 or other activities or uses permitted by this Open Space Easement. Subject to the
applicable laws and regulations, Owner may store and make use of agricultural products and
by-products including, without limitation, crops, silage, fertilizers, lime, and manure on the
Protected Land if such material results from or is to be used in agricultural operations
permitted by Paragraph 7.
11. Water Bodies and Courses. Owner shall not alter existing bodies of water
or water courses or construct new bodies of water or water courses on the Protected Land
except as reasonably required for the activities or uses permitted by the terms of this Open
Space Easement or to enhance wildlife habitat or water quality.
12. Trees, Shrubs, and Ve&etation. Owner shall not remove, destroy, cut, mow,
or alter trees, shrubs, and other vegetation except (i) for areas immediately adjacent to
buildings or improvements permitted by Paragraph 5 (ii) as reasonably required for
agricultural operations permitted by Paragraph 7, (iii) to prevent or control insects, noxious
weeds, diseases, fire, personal injury, or property damage, (iv) for firewood or construction
material intended for residential use on the protected Land or adjacent land (v) as reasonably
required to construct and maintain the trails permitted in Paragraph 13 (vi) selective cutting
for harvest pursuant to sound forest management practices, and (vii) for other activities or
uses permitted by the terms of this Open Space Easement.
13. Recreational Use. Owner may establish and maintain trails for fire breaks,
walking, horseback riding, cross-country skiing, and other non-motorized recreational
activities on or across the Protected Land. Owner shall not use or allow others to use
motorcycles, all-terrain vehicles, or other motorized vehicles on the Protected Land except
4
as reasonably required for other activities or uses permitted by the terms of this Open Space
Easement.
14. Signs. Owner shall not erect or install any signs or billboards on the Protected
Land without consent of the City.
15. City's Approval. The Owner may not change the use of the Protected Land
as described in the City's Development File without prior written approval of the City so that
the City can determine if the proposed change is consistent with this Open Space Easement
and maintains or enhances the Conservation Values of the Protected Land. Owner shall
submit a request in writing to the City at least ninety days prior to the proposed date of
commencement of the use in question . The request shall set out the use for which approval
is sought, its design and location, the impact of the proposed use on the Conservation Values
of the Protected Land, and other material information in sufficient detail to allow the City
to make an informed judgment that the proposed use is or is not consistent with this Open
Space Easement or would adversely effect the Conservation Values of the Protected Land.
The City shall notify Owner in writing of its decision within sixty days of its receipt of
Owner's request. Where the proposed use or modification of use requires a development
permit or other approval from the City pursuant to the City's Development Regulations, the
Owner shall follow the process described in such regulations and the City shall notify the
Owner of its decision within sixty (60) days of receipt of a completed application from the
Owner. The City may withhold its approval only on a reasonable determination that the
proposed use would be inconsistent with this Open Space Easement, impairs the
Conservation Values of the Protected Land, results in violation of any applicable law or
regulation or that it lacks information in sufficient detail to reach an informed judgment that
the proposed use is or is not consistent with this Open Space Easement. The City may
condition its approval on the Owner's acceptance of modifications which, in the City's
judgment, would make the proposed use, as modified, consistent with this Open Space
Easement or protects the Conservation Values of the Protected Land.
16. Public Access. No right of access by the public to any portion of the
Protected Land is conveyed by this Open Space Easement.
17 . Reserved Rights. Owner reserves all rights accruing from its ownership of
the Protected Land including, without limitation, the right to engage in or allow others to
engage in all activities or uses of the Protected Land that are not prohibited or limited by this
Open Space Easement or the City's Development Regulations, the right to exclude all or any
of the public from the Protected Land and to sell or trans fer all or part of the Protected Land
subject to this Open Space Easement. Owner shall inform all others who exercise any right
5
by or through it on the Protected Land of the terms of this Open Space Easement. Owner
shall incorporate by reference the terms of this Open Space Easement in all deeds or other
legal instruments by which they transfer any interest, including a leasehold interest, in all
or part of the Protected Land. Owner shall give sixty (60) days prior written notification to
the City of a transfer of all or any part of fee title to the Protected Land.
18. Costs and Liabilities. Owner retains all obligations and shall bear all costs
and liabilities of any kind accruing from their ownership of the Protected Land including the
following responsibilities:
a. Owner shall remain solely responsible for the operations, upkeep, and
maintenance of the Protected Land. Owner shall keep the Protected Land free
of all liens arising out of work performed for, materials furnished to, or
obligations incurred by Owner.
b. Owner shall pay all taxes, special assessments and other assessments levied
against the Protected Land.
c. Owner shall remain solely responsible for maintaining liability insurance for
its uses of the Protected Land and the Protected Land itself. Liability
insurance policies maintained by the Owner covering the Protected Land will
name the City as an additional named insured. Owner shall hold harmless,
indemnify, and defend the City from and against all liabilities, penalties, costs,
losses, damages, expenses, causes of action, claims, demands, or judgments,
including, without limitation, reasonable attorney's fees, arising out of or
relating to (i) personal injury, data or property damage resulting from an act,
omission, or condition on or about the Protected Land unless due solely to the
negligence or willful act of the City (ii) the obligations retained by Owner to
maintain the Protected Land and pay taxes in Paragraphs l 8(A) and (B), and
(iii) the existence of this Open Space Easement.
19. Enforcemellt. If the City finds at any time that Owner has breached or may
breach the terms of this Open Space Easement, the City may give written notice of the
breach to Owner and demand action to cure the breach including, without limitation,
restoration of the Protected Land. If Owner does not cure the breach within thirty days of
notice, the City may commence an action to (i) enforce the terms of this Open Space
Easement (ii) enjoin the breach, ex parte if needed, either temporarily or permanently, (iii)
recover damages, (iv) require restoration of the Protected Land to its condition prior to
Owner's breach, and (v) pursue any other remedies available to it in law or equity. If the City
6
determines that immediate action is needed to prevent or mitigate significant damage to the
Protected Land, the City may pursue its remedies under this Paragraph without written
notice or giving Owner time to cure the breach.
20. Costs of Enforcement. If the City prevails in an action brought under
Paragraph 19, Owner shall reimburse the City for all costs incurred by the City in enforcing
the terms of this Open Space Easement including, without limitation, costs of suit,
reasonable attorney's fees, and costs ofrestoration. If Owner prevails and the District Court
finds that the City brought the action without reasonable cause or in bad faith, the City, as
determined by the Court, shall reimburse Owner's costs of defense including, without
limitation, costs of suit and reasonable attorney's fees.
21. Waiver. The enforcement of the terms of this Open Space Easement is subject
to the City's discretion. A decision by the City not to exercise their respective rights of
enforcement in the event of a breach of a term of this Open Space Easement shall not
constitute a waiver by the City of such term, or of any subsequent breach of the same or any
other term, or any of the City's rights under this Open Space Easement. The delay or
omission by the City to discover a breach by Owner or to exercise a right of enforcement
as to such breach shall not impair or waive its rights of enforcement against Owner.
22. Acts Beyond Owner's Control. The City shall not exercise their respective
rights of enforcement against Owner for injury or alteration to the Protected Land resulting
from causes beyond the reasonable control of Owner including, without limitation, fire ,
flood, storm, and earth movement, or from any prudent action taken by Owner under
emergency conditions to prevent, abate, or mitigate significant injury or alteration to the
Protected Land resulting from such causes.
23. Extinz:uishment. If, in the judgment of the City, subsequent unexpected
changes in the conditions surroun<iing the Protected Land make it impossible to preserve and
protect the Conservation Values of the Protected Land, this Open Space Easement can be
extinguished, either in full or in part by proceedings in a court having jurisdiction.
24. Assienment of Easement. The City may transfer its rights and obligations in
this Open Space Easement only to a qualified conservation organization, as provided in
Section l 70(h) of the Internal Revenue Code, which may hold Open Space Easements, as
provided in Minnesota Statutes Sec. 84C.01(2) (1992). As a condition of such transfer, the
City shall require the continued enforcement of this Open Space Easement unless the Open
Space Easement has been extinguished.
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25. Notices. Any notice or other communication that either party wishes to or
must give to the other shaJl be in writing and either served personally or sent by first class
mail, postage prepaid, to the following addresses or s uch other address as either party shall
designate by written notice to the other:
OWNER:
D&T Development, LLP
2297 Stillwater Road
St. Paul, MN 55119
CITY:
City of Lake Elmo
3800 Laverne Avenue North
Lake Elmo, MN 55042
ATTN: City Administrator
26. Governin& Law and Construction . This Open Space Easement shall be
governed by the laws of the Minnesota. Nothing contained in this Open Space Easement
shall be construed to allow any use or development of the Protected Land in a manner which
is not in compliance with the City's Development Regulations or to a llow the u se or
development of the Protected Land without obtaining all permits required by the City's
DevelopmentRegulations. Where incons istencies occur between the prov isions of state law,
city regulations, or the terms of this Open Space Easement, the most restrictive regulation
shall apply.
27. Entire A&reement. This Open Space Easement sets forth the entire
agreement of the parties and supersedes all prior discussions .
28. Amendment. The parties may amend this Open Space E asement provided
that such amendment shall not impair or threaten the Conservation Values of the Protected
Land and shall not affect the perpetual duration of this Open Space Easement.
29. Bindin& Effect. The covenants, terms, conditions, and restrictions of this
Open Space Easement shall bind and inure to the benefit of the parties, their personal
representatives, heirs, successors, assigns, and all others who exercise any right by or
through them and shall run in perpetuity with the Protected Land.
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OWNER:
D&T Development, LLP,
a Minnesota Limited Liability Partner ship --By: Urn. m w~·
Its Partner
STATE OF MINNESOTA )
~ )ss.
COUNTYOFbttt )
On this~ay of~ , 2000, before me, a notary public within and for
s aid county, personally appeared 71,_,,,,.i/JIWr, to me known to be a Partner of D&T
Development, LLP, and he/she executed the foregoing instrument and acknowledged that
he/she executed the same by authority of and on behalf o f D&T Development, LLP.
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Not 1 ---., _ ubhc
9
e CYNTHIA L YOUNG
IIOl'AIIYNIUC•....arA
M,C t i ... .1111.31,2005
CITY OF LAKE ELMO, a
Minnesota statutory City Of Lake Elmo
By:2---4-i~
Lee Hunt, Mayor
STATE OF MINNESOTA )
~)ss.
COUNTYOF~.=.:..:~~)
On this /~ay of f2e. ~ , 2000, before me, a notary public within and for
said county, personally appeared Lee Hunt, to me known to be the Mayor of the above described
corporation, and he executed the foregoing instrument and acknowledged that he executed the
same by authority of and on behalf of the City of Lake Elmo.
b r0o.tte.J i,
(., h_ C-1, 6 t _ L ~ 0 N f
Y 1.1 4 C ~t! c.i.-SJ.
S+ p (i..lA l , 1'--\ N 5 5 1 0 f
~!(r Notary Public
--e CYNTHIA L YOUNG
NOTMYPl&IC -1i91E80TA l
MyCoaa I 11 ,E,ipllleJln.31,2005 f
D c:i T D<,_ v e \ opmep,-f
21_r:,-, S+\t\w"-'tCF R J
MA p \e.'--'oco fvlN 55 / 19
i t .
-· Olf ice oi Iha
County Recorder
Washington County , MN
d/ record ed on :
Certl fl ed fli ed an or ·29 ·00 PM
2000112/13 2· .
3133745
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H:\LKELMN\0N1125134\CAD\C3D\FIGR-125134-Watermain Options 2023-01-24.dwg 1/24/2023 12:52:19 PMR
Parkview - Cardinal Neighborhood Street and Utility Improvements
City of Lake Elmo
Ivy Avenue Watermain Options
January 2023
FEETSCALE
0 60 120R
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H:\LKELMN\0N1125134\CAD\C3D\FIGR-125134-Watermain Options 2023-01-24.dwg 1/24/2023 12:52:19 PMR
Parkview - Cardinal Neighborhood Street and Utility Improvements
City of Lake Elmo
Ivy Avenue Watermain Options
January 2023
FEETSCALE
0 60 120R