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4025 Old Sibley Mem Hwy BUILDING PERMIT ?f.?;V• • '" ' CITY OF EAGAN 3830 Plot Knob Road, P.O. Box 21-199, Eagan, MN 55121 * PHON E : 454-8100 ?J Receipt # ?! ! f-? fNGE Esf_ Velue $200,000 pMp JULY 16 1984 SlteAddress `t??a 6D1L3LGI tWir.lvi riwi Erect ?I Lot 1 Block 5 ?1Sub. SECT 19 Remodel ? Parcel No. 10-01900-011-50 Repair ? Enlarge ? cc Name NOLAIV & NOLAN Move O = 5607 SO CEDAR LK RD Demoiish ? Addres ? s 546-3206 rPI S Grade ? Citv ' phone Occupency Zoning Type of Const. No. Stories Length gr Depth 2 BLDGS., 271' 31' EAC] SAMF', Name wpprovau A u? A?? ssessment 1- City Phone Water 3 $ew. FRIDLUND 11 1i PPolice N?e . . Fire ? ? A? '?504 !'tINNETONKA ALVD E tW City r'P I"' Phone 920-3080 Vo ner i I C I here6y otknowledge fhot I hava reod this opplicotion ond stafe that ounc gldg. Off. the informotion is correct and ugree fo tomply wifh all opplicoble Sfate of Minnesota Statutes ond City of Eagan Ordinonces. APC Var. Date Sipnoturo of Permittee A Building Permit is issued to: ??}LAiti & 1VOLAN all woric sholl be done in occorciaQCev?ith oll qpplito s Stotcpf Mi _ Buildinp afficiol r ? Pertnit y v v.i . v v Surcharyo 100.00 Pian check 341.50 5^C 525.00 Water Conn. Wnter Meter Road Unit Parks 7otal $1,649.50 on tha express condition thol Statutes ond City of Eoqan Ordinances. Psrmit No. Pwmk Holdor Date Plumbirrp H.V.A.C. Ebctric Softaner Irqpection Date Insp. Other Faotings Foundation Framing Rough Plbp. Rough HVAC Inwlation Final Plbp. Final HVAC Finel 3 c.wooc. Water Deseribe Location: Vllell Sewer ? Pr. Disp. - CITY OF EAGAN `- ' 3830 Pilot Knob Road, P.O. 8ox 21-199, Eagan, MN 55121 PHONE:454-8100 BUILDING PERMIT Receipt # Tobeusedror F.-'f. E.va1ue $250,000 Date D ECEMBER 6 ,1985 Site Address 4025 SIBLFI.° ";?i.ORIhL Hfa7Y Erect L? Occupancy 134 Lot 1 Block 1 Sec/Sub. RW IND A('RE1Remodel ? Zoning LI Parcel No Repair ? Type of Const ?I I1 . Addition ? No. Stories ¢ Nni'AV & [v'GLAN Move ? Length 251 Name W 5607 SO CEDAR Lri?KE RD Demo?ish ? Depm 31 o Address City tpLPhone 546-3206 Int Impr. Instau ? ? Sq. F 3 BL RA?. 19F600 ¢ ou Ug I.- c~i a W W ~ 2 U? ? W Name SAUIk' ? Apprcvi Address Assessment _ City Phone Water & Sew. Police Ft.W. FRl'DLUi`all ?. I hereby acknowledge that I have read this application and state that the information is correct and agree to comply with all applicable State at Minnesota Statutes and City of Eagan Ordinances. ? _. Signature ot Permittee ' - NULAt? ? NOLAN A Building Permit is issued to: all work shall be done in accordance with all applicable Stete of Minneso . / - Building Official Eng. - Planner Council Bldg. Of Permit ? o v v. ? v Surcharge 125.00 Plan Review 404.00 SAC 52 .00 Water Conn. Water Meter Road Unit APC Parks Var. Date Copies TOtal $11862.00 on the express condition that Statutes and Ciry of Eagan Ordinances. I PormH No. Permlt Holdor Dab Tomphone 1i Plumbinq IN.V.A.C. Elactric Sohenor 1Impeetion Dsh Inap. Commanb F°°8^ys 1 u. Footinye 11 6 i - l•,y • 6?,? ?S w P Foundafbn Frsminy o1G (? 0-?LJ? j??.ti G?,O ? 7? Le, Rooti" I Rouph Plbq. I RouQh Hty. insul. Flreplac* 9-24. FtnW Htp. ;IE+ I FInM Wbp. Bidp. FMsI Cert. Occ. 11 IDeck Fty. I Dack Fnny. DaserlM Loeatlon: WNI Pr. Dbp. CITY OF EAGAN 3795 Pllot Kaob Rood Eagon, MN 551 ZZ N2 4968 - PHONEs 454-8100 BUILDING PERMIT Receipt c raq - 7/ 7' To be wsd (or Est. Value Date 19 Site Address Erett ? Occupancy - Lot Blotk Sec/Sub. Alter ? Zoning Porcal Repair 0 Fire Zone Enlo?ge ? TYpe of Const. I F T W Name ?.c>ra?•c Move ? # Stories - z Address Demolish ? Front h. r? dr',_17(1f Grade fl Depth ft. Name 0 ? ~ AssessmenT ?? Address . ~ Ci ph? Woter & Sew. Police ? ?W Name - - ' Fire . , s? /lddress L! 1 vt : Eng. u?' <W Cf -? Phone Planner Council ?' /1 ? 7 R '$urchorge Plan cF?eck SAC Woter Conn. Water Meter I hereby acknowledge thot I have read this opplicotion and stote that Bldg. Off. the information is correct and ngree to comply with all applicable APC Total Stnte of Minnesota Statutes ond City of Eugon Ordincnces. Signature of Permittee A Building Permit Is issued to: on the express condition thot all work shall be done in occordance with oll opplicable Stote of Minnesoto Stntutes and City of Eagan Ordinonces. Building Official Parwk ?F Oeft Iswad PersMfN Plumbing 3a C. Mechanicol f ? ? ? - 7 ?'/ ? L:LL 92-3 -C'-d4- r_. < < -c _ , . _ 5 Z-1 1 7- z 4-- _ ` INSPECTIONS DATE (NSP. Rouqh-ln Flnal Footings ? Dats Insp. DatS, Irap. Foundation Plumbing 8-.2 o-T Framefins. -7 Mechonical jo-tv-,pr Z , Remarks: a-ZO " 7? ? • < . - CITY OF EAGAN . 3795 Pilot Knob ReaJ , " - Ea9ow, Mlnnesota 55122 ,* Phone: 454-8100 MECH. P=IT'('- _ PERMIT ? 0-25-? `:, Dote: a O Site Address: "'r'K?••S i1'?'-'`.• Pmorial Highwa5 Lot Block -I") ^2-?r ,iI 50 Sub/Sec. _ Nome Nulan b Nolar r € Address CQd3Y" T'ri. ? City , r,l s Phone: 5'?r,-3zn6 N me _?nt. iluYr P1bg. irtC. . Address ' i2 South Concn-L-d • ? C;ty .`' S t . T• - ? ? '> 5 07 Phor?e: This Permit is issued on the express condition that oll work shall be Minnesota Statutes and City of Eogan Ordinances. - No. 320 215? Receipt No.: 7 Single . Residential Multi Res., Comm./Ind. I New/Alter./Repair. NeW COSt Of InStpllatiOn • Permit Fee ? 9, 01) Surchorge . ?n / Total done14- accardonce with all epplicable Stote of Building Official ?. . r . • -, ?• ' CITY OF EAGAN 3745 Pilot Kwob Reed . - - - ' Eagan, Mlnnesota 55122 -? - Phone: 454-0100 ?aRrwluaTrAT pERMIT No. .-` 1. 3 11(.?: Dute: Receipt No.: a b ?L Single $ite Address. Residential Lot Block subisec. ' 0-01900-011-50 r+nuiri Name - Naw/Alter./Repair nn?` ? Address Cost of Installafion _ 30.Or' City Phone: Permit Fee N. e ? ZeY Ai-re Zr:C, Surchorge ? r r . ? Address ` li ?V. 126th St. e 0 i - City `Q' j 53 % Phone: Total This Permit is issued on the express condition thot all work shall be done in xcordonce with all opplicoble Stote of Minnesota Statutes and City of Eogon Ordinonces. Official OF EAGAN -?L /??-' -` - Remarks ffi.';.-? 7. -,Z>, Vl , . )?I r, _ Improvement Date Amount Annuel Years Payment Re ' t Date STREET SURF. STREET RESTOR. GRADING SAN SEW TRUNK Y/Z? SEWER IATERAL ,Wf /wo t 33 69 . 891.27 WATERMAIN WATER LATERAL ? WATER AREA /'i STORM SEW TRK 3 S 3 55 Z ? STORM SEW LAT CURB & GUTTER . SIDEWALK STREET LIGHT WATER CONN SUILDI ER. SA n - RK Y OF EAGAN Remarks____ ?-?---?- Rdditio tlOri 19 Lot Rlk Owner ' Street ? r ! J 1? R?? ? 1 f -t N/? A r. 01900 O1! 50 . u "l'',l _ 2 a - - - 19I Improvement Date - - Amount - Annual Years Pay n Rece' Date STREET SURF. STREET RESTOR. GRADING 0.SAN SEW TRUNK 1968 15.75 $257.19 30 Fjrf4 85 A004435 7-27-77 SEWER LATERAL WATERMAIN WATER LATERAL WATER AREA 1974 $9500.40 15 PAID STORM SEW TRK g 26 39 , 2L Q, 3 STORM SEW LAT ? . . . CURB & GUTTER SIDEWALK STREET LIGHT WATER CONN. BUILDIN R. SAC K ?..r. ?: I i. o ?)!?!? y/? ? / ??B?d-' ?7? ?e,vr?•t? ,???`? '4S L ?,>'- t'k "''c . , , ?..,.?, Ss. ?q ??y?s?. B o 90 = yy ? '?? . / qy s - ?Z..r?-.?-?c.r. -?? ? ` •?- P- .._. ?, ,..?+?',?? / ?? ?r?? LC?•? l?? cd , na..? ? h n ??, ??l - ,?2?- ? ?. ?? ?? ,. ?? ? d.?? ,?-r 1 L d . ??iC•udl-t''y `'' ?' l ? 9 ? 9 • ? - y - y 7 cc??? . CITY OF EAGAN Owner SY????? Sibley Mem Hw.y State Eagan, MN 55122 ,? p ?//f7 ?n ns?ii4 .rJ%.??.1 r. r ./?..7R, f :?'. ,,." {11 f/G/// n....w....;,-4-'/J11-1'1[1 rlR'c Improvement Date Amount ., Annual Years Payment Receipt Date STREET SURF. 1 STREET RESTOR. GRADING SAN SEW TRUNK 1968 aid Ur2 er arcel OI.Z 50 * SEWER LATERAL 80 ]. . ? ]_ . 7 15 * services 1040 y85 15 083.0 1508.39 10 WATERMAIN ? WATER LATERAL - WATER AREA Paid und r arcel 11 ! 0 Waterlat,gpr ? STORM 5EW TRK ? 1979 1l s . STORM SEW LAT 1042. 985 19,863.3 3 1,986.3 3 10 CURB & GUTTER 51DEWALK STREET LIGHT Road Unit 280.00 _ 58053 12 6$5 WATER CDNN. 500.00 BUILDING PER. 1371 sAC 525.00 PARK OF EAGAN Remarks -7..,.n " iT .n L., rj .? ?- _ . .. t- , _iI n • - - ?i_- _, Improvement pate Amount Annual Years Payment Rece" Date STREET SURF, STREET RESTOR. GRADING SAN 5EW TRUNK d 16$ id UI1 l 010 ? SEWER LATERAL WATERMAIN P WATER LATERAL WATER AREA 1974 aid Ui1 1 010 50 STORM SEW TRK d 1979 386.29 STORM SEW LA T CURB & GUTTEF SIDEWALK STREET LIGHT - Q ' WATER CONN SUILDIN ER. SAC RK CI7Y ' c EAGAN 3795 Piioc Knob Road Eagan, MN 55122 Zoning: Owner: Address: Slte Address: Plum6er: I agree to eompiq with the City of Eagan Ordinanoas. Bv Qate af Insp.; I nso.: CI7Y AF EAGAN 3795 Pilot Knob Rood Eagsn, MN 55122 Zoning: Addi No.: :eader No.: ugree to wmply with the City of Engan of Insp.: (') L-\ SEWER SERVICE PERMIT PERMIT NO.: DATE: No. of Units: Connection Charge: ? Account Deposit: Permit Fee: Surcharge: Misc. Chorges: Total: Date Paid: WATER SERVICE PERMIT PERMIT NO.: DATE: No, of Units: Connection Chorge: Account Deposit: Permit Fee: Surchorge: Misc. Charges: Totnl: Dote Poid: I nsp.: • : , cirr oF EAcnN - `: C 3795 Pilof Kiw6 Rmd- Eegan, MN $5122 N2 4968 1 PHONE: 454-8I00 BUILDING PERMIT APPLICATION 40QF QQO,a0 Receipt # 17-575 _ r- ---, -- Storage & Dwejl?r}g _ .,_._ o i-, i'70 ,o $ite Address}.Q?9-#iblerMe.?vr,.y _ Erect )p Occupancy rG Lot 81ock $et/Sub. Alter ? Zoning _ T?a}cjhz_ porrel .# 1 0 n 19 n n O l 1 S 0 Repoir ? Pire Zone -a_. w 3 0 0 Zu ? Enlarge ? Type of Const. TTT-N Nume Nolan & Nolan dba E-Z Storaae µ.,e p # Sro.ias ] Addreu 5607 S Cedar Lake Rd Demolish [j Front 4._h1tjq +r. Ciri Mi nnPant?l i c Phone 54fi-12QFi 6rode ? DePth ft. ----- Approrob Peea Name Name H W Fri dl ind Addreu4504 Minnetonka Blvd AssessmeM R 1 7 / Water & Sew. Police P /21 /78 Fire Eng. Planner Council R/_r/7A 'germit 51 S _ RO Surchcrge 2 n n _ () () Plan check 2 r. 7- 7 5 SAC S00_0(1. Water Conn. NA Water Metei- -"` Rnari 1 I hereby acknowledge thot I hove read this applicatian and state tFiat gldg. Off. ? the informotion is correct and g? ree to comply with ali opplicabie Stote of Minnesota SMt esndd?? LEaSTardin??- APC 7??' ]?7A Total '2dQti f1f1 Signature of Pertnittee' ?ZL A Building Permit is issued to: NOI811 & Nolan on the expren condition that oll work shalt be done fn accorda,nF/e with all appliw/y?/ Stote ot Minnesota Stotutes and City of Eagan Ordinances. Building Official / fi?-?cL<"r?- ??. BUILDING PERMI T..we...sa4...E'-Z Name NOLAN & NOLAN Move ? Lengih ?- 21 I,1'11 5607 SO CEDAR LAKE RD oemolisn ? Depth-?-- Address Int. Impr. ? Sq. Ft. City P9PLSPhane 546-3206 Ins?ll ? 19,600 A 1-- $ SiteAddress 4025 ?SIBLEY MEMORIAL HWY Erect ? occupancy B4 Lot 1 Block 1 Sec/Sub. S& W IND ACREStemodel ? zoning T.7 Parcel No. Repair ? Type of ConstT!I*.?- Addition ? No Stories W 3 0 ,o z? oa UQ ? CITY OF EAGAN ? 71 3830 Pilot Knob.Road, P.O. Box 21-199, Eagan, MN 55121 N 0 11, PHONE:454-8100 ?0? T Receipt # I-STOIJA.CV§Ue $250, 000 Phone uW I nlame H.W. FRIDLUND ?i Address 4501 MINNETONKA BLVD a W CiN MPLSphone 920-3080 I hereby acknowledgethat I have read this application and statethatthe information is correct and agree to comply with all applicable State of Minnesota StaWtes of Ea Or ma ce Signature of Permitte a?"'? A A euilding Permit is issued to: NOLAN & NOLAN all work shall be done in accordance with alFepnlicable Sfate of M nneso Assessment Water & Sew. Police Fire Eng. Planner Council eldg.On 10/30/8 APC Var. Date Permit +' °"O."v Surcharge 125.00 Plan Review 404.00 cer 525.00 Water Conn. Water Meter Road Unit Tr. PI. Parks Copies Total $1,862.00 on the express condition that and City of Eagan Ordinances Building I/ - ?• "L ,? BUILDING PERMIT r_ ?. ....A a. STOI Site Address 40 "Lot 1 91ock_ Parcel No. 10- CITY OF EAGAN 93 O? 3830 Pilot Kno6 Road, P.O. Box 21-799, Eagan, MN 55121 PHONE: 454-8100 , /??/ `Z Receipt # ?7- /3 AGE FN v„i,,, $200,000 n,,,, JULY 16 „84 y, SECT 19 _rn W IN,ma NOLAN & NOLAN ; Address 5607 SO CEDAR LK RD U City MPLS Phone 546-3206 o Name SAME su ? Address ? City Phone Z IName H.W. FRIDLUND x? Address 4504 MINNETONKA BLVD ?W City MPLS Phone 920-3080 1 hereby ackrawiedge tFwt 1 hove reod this application ond stote thaf the inlormation Is torrett and ogree to comply with all appli[oble Slote of Minnewta Statutes and City of Eagon Ordirances. Erect $1 Occupancy B4 - Remodel ? Zoning Li Repair ? Type of Const. IIIN Enlarge ? No. Stories Move ' ? Length 211 - g Demolish ? Depth 2 BLDGS. , 271' Grade ? ]S*7B1?2 BLDGS., 31'EAC: ADOrovols Fees Assessmenr Woter & Sew. PoliGe Flra Enp. Planner Council Bldg. Off. APC Var. Oate Permi 6S3'00 Surcharge 100.00 Plan check 341.50 SnC 525.00 Water Conn. Water Mefer Rood Unit Parks rotal $1,649, 50 $ipnoture of Permittee I A Building Permit is issued to: NOLAN & NOLAN on the express condition that oll work shall be done in accor e t cIlliwb f Minnewta Statutes and City of Eagan Ordinances. Buildfnq Officiol ' CITY OF EAGAN BUILDING PEM?UP APPLICATION Include 2 sets of plans, 1 Certi#icate.of Survey & 1 set of ener9y cal.culations. 7b Be Used For ?TOIZP16aE Valuation fp 2.0C7, O/Xo.°-° Date (O - 2 8- bq- site Address: 4025 GJI MIP-7- M •?? Lot Block S D Sec. /Sub. 52? Parcel #: `O O 19 00, ' OI I r-O Oaner: ? p LP?N ? ?-bLP.N Address: CJ?D-7 -J. &C--P7AC LK. City/Zip Code: Phone #: Contractor: Address: City/Zip Code: Phone #: Arch./Eng.: H W. 1:11 P(_UND Address: 4C04 KNtiir--TONicA 65t-vo. City/Zip Code: Phone #: 920-3080 OFFICE USE ONLY Erect X occupancy 15- 4 Alter Zonirig ?- I Repair Fire Zone Enlarge Type of Const. {J Nbve # Stories Deimlish FrontZgu?(?y.- I c? 2l I' IP-ZI I' ft. Grade Depth Z6uX h-@ 3 I' REA. ft. APPAOVALS FEES Assesss[mnts Water/Sewer Police Fire En3 • Pern,it Surcharge Op . Qa Plan Check 3 41, - sr.c 525. Water Conn. Plannex Water Meter Council Road Unit _ Bldg. Off. rPc ?°,?-- - - 009 ? `ioTAL 4 . ? C?erfifirttte uf Mrrupttnrg BUILDING CNE Citp of eagan igrpttrhnrnf nf BuilDing Jnsprriion Tbit Ccrti ficau irtutd Purraant to thr rcquirementr o f Section 306 of the Uitifo.m Bui(ding Code ccrti f prrg that at the rimr o f ittuanrt thft strutture wut In tom pliance with tbe variowr ordinur+ces of thr City +rgulating building ronn+rution or uie. For thr /ol/ounng: u.c?r em StOTage & Dw211iriq B„B,h.,Na_ 4968 Tya F'2 Ty,cW:.a.III-N Fmzm 3 z?, n".« Lt. Indus. euuame NOlan. ? Nolan eea. MiIliiedplis, MN By April 23, 1979 N«. . / A'ITOHNF.I'S 4T I,Tw P., ,P,? RECEIYED ? MAY 0 9 2006 May 5, 2006 EAGAN s°it°'°° ENGINEERING DEPARTMENT 8519 Eaglc Pomc Eoulevard Lake L.Imo, M V 55042 F. 051) 290-6500 PRTVILEGED AND CONFIDENTIAL COMMUNICATION F? ce>u 223-5070 pURSUANT TO ATTORNEY-CLIENT RELATIONSHIP Iola?4C?jlolaw com AND WORK-PRODUCT DOCTRINE . ?ehslre www.ilolaw.mm MR THOMAS A COLBERT CaaLd M. Linnihav * tUen R. Vanasek PUBLIC WDRKS DIRECZ'OR ie??e?zJKFi;°k?"J` CITY OF EAGAN Charks E. Cillin * km? J. c?«.. x 3830 PILOT KNOB ROAD ?ia,ki. eake?`,= EAGAN MN 55122 Gcorgc W. Kiiehver Pecfi J. Skngluvd " se,n E. Ha& - vs. CitY of Baban and a Minnesota PartnershiP Re: Nolan and Nolan Tim.tny s. c,o. • , , M. R°?hd°ra' Minnesota De artment of Trans ortation lam? G. co,?.,be?k • p p ?.?=vn ? Flr«.' pur File No 31543 (872) Madcnc S. Garvis' . 'I'6omas L. Cummings ?2an y ?oyL Dear Mr. Colbert: Jesslca E. Schw?e 'r;o'maJ`M?s,,?k Enclosed for your file, please find a fully-executed copy of the Settlement s,nwm, Matthe,v P. Bandt" Agreement And Release OfAll Claims. @Ilsa M. Hadev;g Jnson A.I<och raerw.wa..„.K The Stipulation of Dismissal With Prejudice has been signed by all the attorneys jon. R. oa,,e? -.aam,ttea and filed with the Court. We are awaiting the Order of Dismissal With Prejudice. [1?'`16NIl6tIlC'RICiILLLt i,tinn?o«, reri«a I have rectuested the settlement draft from the LMCIT. Some mcmbers .Iso admitted ?o P=a«;<e1aw ?„ wlx?o.?;n', If you have any questions concerning this matter, please contact me. No. th Dakoca, South Dakota, and lowa Very truly yours, S6amm? Ranaszewslei Adminis¢amr JARDINE, LOGAN & O'BRIEN, P.L.L.P. Donald Yl.iardinc (1915-2005) Jcae P. i oa n(1923-1983) ames G. GDirect Dial: (651) 290-6567 JGG:IIs Enclosure Established 7918 Equal Opportunity Employer PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY-CLIENT RELATIONSHIP AND WORK-PRODUCT DOCTRINE MR THOMAS A COLBERT May 5, 2006 Page 2 c°pv: MR MICHAEL DOUGHERTY SEVERSON SHELDON DOUGIiERTY ET AL 7300 WEST 147TH STREET APPLE VALLEY MN 55124 , STATE OF MINNESOTA COUNTY OF DAKOTA Nolan and Nolan, a Minnesota Partnership, Plaintiff, vs. City of Eagan, a Minnesota municipal corporation, and Minnesota Department of Transportation, Defendants. DISTRICT COURT FIRST JUDICIAL DISTRICT Case Type: Condemnation/Property Damage File No. C9-02-9121 SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims ("AgreemenY') is entered into by and between Defendant State of Minnesota, Minnesota Department of Transportation ("Mn/DOT"), Defendant the City of Eagan ("the City" or "Eagan") (collectively, "Defendants") and Plaintiff Nolan and Nolan ("Plaintiff" or "Nolan"), ali collectively referred to as "the Parties," to resolve any and all causes of action, disputes, claims, cross-claims, counter-claims, controversies, petitions for mandamus, and lawsuits in any venue that may currently exist and that could be brought now and in the future by Nolan against Mn/DOT, and/or against any and all former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; by Nolan against the City and/or against any and all former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; and by Mn/DOT and the City against each other related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit, all as it relates to the Plaintiffls property ("Property"), located at 4025 Sibley Memorial Highway, Eagan, Minnesota. WHEREAS, the Plaintiff commenced this lawsuit against Defendants on July 2, 2002. WHEREAS, on December 18, 2002, upon Mn/DOT's motion, the Dakota County District Court dismissed the Plaintiff's Complaint against Mn/DOT in its entirety, and by stipulation between the Plaintiff and the City, the Plaintiff dismissed the City without prejudice; WHEREAS, on December 30, 2003, the Minnesota Court of Appeals affirmed the dismissal against Mn/DOT of the Plaintiff's causes of action of trespass, nuisance, and negligent construction and design of the joint storm sewer system, but reversed and remanded the Plaintiff's claim for negligent maintenance, repair, and operation of the storm sewer system and for mandamus/inverse condemnation; WHEREAS, Plaintiff recommenced its original claims against the City and by Stipulation of the Parties, agreed that those claims and the remanded claims against Mn/DOT would be litigated in the same lawsuit; WHEREAS, on June 22, 2005, the Dakota County District Court denied Plaintiff's motion for partiaf summazy judgment as to the inverse condemnation claim, conc(uding that the Plainriff could not establish a prima jacie case for mandamus to issue; granted summary judgment in favor of the City with respect to all of the Plaintiff's claims, except the Plaintiffs claim for negligent maintenance, repair, and operation of the storm sewer system; and denied Mn/DOT's motion for summary judgnent on the Plaintiff's remaining claim against it for negligent maintenance, repair, and operation of the storm sewer system; WHEREAS, the City and Mn/DOT deny the Plaintiff allegations against them and specifically deny Plaintiffs remaining allegations against them, and assert that neither they nor any of their former and/or current employees, agents, representatives, successors or assigns, 2 engaged in any improper and/or illegal acdactions against Plaintiff related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit; and WHEREAS, the City and Mn/DOT deny all allegarions against each other, including but not limited to their respective former and/or current empioyees, agents, representatives, successors or assigns, related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit; WHEREAS, the parties consider it desirable and in the best interests of all concerned to settle all claims, controversies, and disputes of whatever nature and kind related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit that may currently exist and that could be brought now and in the fuhue against the City, Mn/DOT, and/or against any and all former and current employees, agents, representarives, successors or assigns, individually and/or in their official capacities; and with respect to the City and Mn/DOT's cross claims against each other, and in order to avoid the expense, inconvenience, and burden of further action, including arbitration, mediation and/or litigation; and WHEREAS, it is the intent of the Plaintiff herein to cons7uct a berm azound the Plaintiff s property under the terms and conditions set forth herein; Now, therefore, in consideration for the mutual promises, agreements, and covenants wntained herein, the parties stipulate and agtee as follows: 1. TERMS OF AGREEMENT. A. Monetary Payment. For and in exchange for a full, final, and complete settlement as set forth herein, and upon the complete execution of this Agreement, the City and Mn/DOT jointly shall pay to the Plaintiff a total sum payment of Fifty Thousand Dollazs ($50,000), which includes any and all 3 attorneys fees, costs, and disbursements, subrogation and indemnity claims, payable to Nolan and Nolan, a Minnesota Partnership. The payment of $50,000, shall be paid as follows: (a) Twenty-five Thousand Dollazs ($25,000) by the City within 30 days from the date of full execution of this Ageement; and (b) Twenty-Five Thousand Dollars ($25,000) by MnNOT. The Plaintiff understands that the Mn/DOT process to encumber and make payment of said funds is within 30 days from the complete execution of this Agreement pursuant to Minn. Stat. § 3.732, et. seq., and other applicable law. B. Piaintift's Speci6c Terms of Agreement. 1. Plainriff indicated that it wants a berm built to an elevation of 811 and desires to have it built as soon as possible. In the interest of reaching an amicable settlement, the parties have agreed that a berm will be built with a portion of it on Plaintiff s property, a portion on the City right of way, and a portion on Mn/DOT's right of way in accordance with the provisions and requirements set forth in this Ageement. a. To this end, within 30 days of the full execution of this Agreement, the Parties, each separately, shall create a"Construction Project Timeline" and provide a copy to the two other Parties, so each Party has a copy of the other Party's "Construction Project Timeline." b. The Parties understand that these "Construction Project Timelines" may require modification to accomplish the work agreed to herein and for this reason, the Parties also agree that they will remain 4 flexible about the dates that are set forth in each "Construction Project Timeline" and will provide updated versions of their respective "Construction Project Timelines" to each Party in a timely manner, should they be modified. The Parties further understand and agree to act with due diligence to meet their respective timelines; however, a failure to do so will not be considered a breach of this Agreement. c. The Parties also agree that the construction referenced in this Agreement may require coordination among the Parties' representatives. 2. The Plainriff shall build its portion of the berm on its property to an elevation of approximately 809 to enable it to connect with Mn/DOT's portion of the berm that is built by Mn/DOT on its right of way. a. The Plaintiff is not precluded from building its portion of the berm up to an elevation of 811; however, the Plainriff may only do so on its property and/or on the City's right of way with permission from the City. b. The Plaintiff's portion of the berm will connect with Mn/DOT's portion of the berm at the Parties' property line as described herein. c. As referenced herein, al] e]evations are refer to elevations above sea level. 5 3. Materials for the construction of the Plaintiff's portion of tlie berm may come from the excavation of the pond that the City of Eagan is required to design and construct, and from Mn/DOT's Pond AP-6, if necessary (see below). a. If a sufficient quantity and/or quality of material is not available from the City's pond construction, the Plaintiff may request a quantity of material from Mn/DOT's pond bottom for the Plaintiff's portion of the benn construction. b. The Plaintiff shall not, enter Mn/DOT's right of way and remove any materials from Mn/DOT's right of way and/or from the City's right of way without first obtaining permission from Mn/DOT and/or the City's engineer(s) and/or contractor(s). However, to the extent that material is available from Mn/DOT's right of way and/or from the City's right of way, Mn/DOT and/or the City will permit the Plaintiff to use the material. c. The Plaintiff shall not be required to accept any materials from the Mn/DOT Pond and/or from the City's Pond that it does not so desire for the construction of the berm set forth in this Agreement. d. Prior to accepting any material from Mn/DOT and/or the City's Pond, the Plaintiff may conduct any testing and analysis of the material it deems necessary and/or appropriate, and it may do so on Mn/DOT and/or on the City's right of way, but only after it has provided prior notice and obtained permission to enter the land. 6 To the extent that any testing and analysis of the material is done by the City and/or Mn/DOT; that data will be shared with the Plaintiff. e. Once the Plaintiff accepts material from the City and/or Mn/DOT by receipt, the Plaintiff shall be fully responsible for that material, and for the transport, collection and disposal of said material, which will be placed at a designation to be determined by the City and/or Mn/DOT, on Mn/DOT and/or on the City's property in the vicinity of the Plaintiff's property. The Plaintiff shall not be responsible for the cost of transportation of any material to the designated location or disposal of material from the designated location that was not accepted by the Plaintiff. f. Any material supplied by the City and/or by Mn/DOT is for the sole purpose of constructing the Plaintiff's portion of the berm around the Plaintiff's property. By providing said material, the City and/or Mn/DOT are not warranting the quality and/or suitability of said material for any purpose and/or use and/or intended puipose and/or use by the Plaintiff. 4. When Plaintiff builds its portion of the berm, the Plaintiff's portion of the berm may spill over onto Mn/DOT's property, but not beyond the location of Mn/DOT's construction fence, or if not feasible at the time of construction, not beyond the limits agreed upon by the Parties' engineers consistent with best engineering practices. 7 a. The Plaintiff wil] maintain an edge of property elevation of 809.0 within rough construction tolerances. b. The Plaintiff shall take reasonable measures to ensure that its renters and others having business at EZ Mini Storage do not cross the construction fence or enter Mn/DOT's Right of Way during construction. 5. Plaintiff is responsible for designing, providing and constructing the outlet structure, which may drain and extend into Pond AP-6, for the purpose of perpetuating the natural drainage from Plaintiff's property. a. The Plaintiff is responsible for obtaining any required permits from any necessary entity for constructing this outlet structure. b. The Plaintiff is also responsible for maintaining the outlet structure and any appurtenances. Plaintiff shall be provided with reasonable access to Pond AP-6 for the purpose of performing such maintenance with prior notice to and permission from Mn/DOT. c. The outlet structure into Pond AP-6 can not be any lower than 795.5. d. The Plaintiffs outlet pipe shall be designed to withstand Mn/DOT's construction activities of its portion of the berm. Any damage to the outlet structure due to Mn/DOT's construction activities for its portion of the berm shal] be repaired by the Plaintiff at the Plaintiffs expense, except for damage caused by 8 the intentional or reckless actions of Mn/DOT, the City, and/or their contractors and/or agents. e. The Plaintiffs outlet pipe shall extend a sufficient distance into the pond to ensure that Mn/DOT's construction of its portion of the berm will not interfere with the operation of the outlet pipe. If lengthening of the Plaintiffs outlet pipe is required, all related costs shal] be borne by the Plaintiff. 6. The Plaintiff shall be responsible for its own design, construction and maintenance costs. 7. Except as otherwise provided herein, the Plaintiff shall indemnify and hold harmless Mn/DOT and the City from any flooding and/or other damage to Plaintiffs property due to the improper operation, and/or failure of Plaintiffs portion of the berm, Plaintiff's outlet structure, and/or PlainrifFs overall intemal drainage system. 8. Plaintiff agrees to hold harmless and indemnify Mn/DOT and the City during any work that is done by Plaintiff and/or his assigns to implement the terms of this Agreement. Plaintiffs indemnity obligation in this pazagraph shall not apply to any work performed by Mn/DOT and/or the City and/or their respective contractors or engineers. 9. Except for damage caused by the City and/or Mn/DOT, the Plaintiff shall also be responsible for its own maintenance of its portion of the berm at all times, including but not limited to during its construction and thereafter. 9 10. The Plaintiff shall be solely responsible for addressing any permits needed from the gas line company and/or any other entity, including but not limited to Mn/DOT, related to its own construction. The Plaintiff will need a construction easement from Mn/DOT to constnact Plaintiffs portion of the berm. Any permits or easements required from Mn/DOT hereinunder, shall be granted by Mn/DOT, provided that they are consistent with the terms of the Agreement and permit or easement requirements. 11. To the extent that a governmental and/or regulatory agency with jurisdiction does not grant permits that aze necessary for the work covered by this Agreement, the Parties will make a diligent effort to effectuate the tertrts of this Agreement to the extent possible in accordance with the law. 12. The Plaintiff shall notify Gopher State One Call System prior to engaging in any land disturbing activities. 13. The Plaintiff may construct a drainage system on Plaintiffs property, that prohibits water from Pond AP-6 or from the ditch along the westernly side of the Plaintiff's property from flowing back onto Plaintiff s property, and meets with the City's requirements. The City shall permit the construction of the drainage system as described herein. a. In addition to Plaintiffs outlet structure to Pond AP-6 (referred to in Section I.B.S. herein), Plaintiff may discharge water into the existing ditch along the westernly side of the PlaintifPs property or Pond AP-6 by a pressurized system, the location of which shall be 10 coordinated between the Parties' representatives consistent with sound engineering practices. b. The Plaintiff shall be responsible for the design, construction, operation, and maintenance of its own drainage system. c. The Plaintiff shall be provided reasonable access to the westemly ditch (or as indicated above, to Pond AP-6, as the case may be) for the purpose of performing such maintenance with prior notice to and permission from Mn/DOT. d. The Plaintiff shall indemnify and hold harmless Mn/DOT and/or the City from any flooding on Plaintiffs property due to the PlaintifPs negligent design and/or construction, improper operation and/or maintenance, and/or failure of the Plaintiff's own drainage system, exccpt for damage caused by Mn/DOT and/or the City. 14. The Plaintiff shall design and install a private culvert and water diverter under its private driveway within public right of way and regrade a portion of public right of way as necessary to convey excess overland flow directly to the City's or to Mn/DOT's pond. The Plaintiff must obtain a permit to drain into Mn/DOT's pond and must meet the City's requirements to drain into the City's pond. 15. The Plaintiff shall also hold harmless and indemnify the City and Mn/DOT during the work described herein. lt C. The City of Eagan's Specific Terms of Settlement. 1. The City shall construct a City pond on its right of way providing for 1.9 acre foot of storage, including an outlet and the City pond's emergency overflow to Pond AP-6, as approved by Mn/DOT. The conshuction of this pond shall not commence until there is a fully executed Agreement and the Parties respective Construction Timelines have been exchanged. The work shall be completed in accordance with the City's Construction Timeline. 2. The City shall address surface water runoff from Old Sibley Memorial Highway by directing it into the City's newly constructed City pond (referred to in part C. 1. above), where practical. 3. The City shall be responsible for the cost of construction of its City pond and outlet to Pond AP-6. 4. The City shall also be responsible for its own maintenance of the City Pond at all times, including but not limited to during its construction and thereafter. a. The City and Mn/DOT will determine how the City pond will be connected to Pond AP6. b. Should a permit be required to discharge the City's new storm water into Pond AP-6, the City will obtain that permit from Mn/DOT. 5. The City shall allow the Plaintiff to use the matcrial from the construction of its pond for the purpose of constructing Plaintiff's portion of the berm. 12 6. The Plaintiff shall apply for, and the City will grant an easement or permit to the Plaintiff to allow it to connect its portion of the berm along the City's right of way adjacent to Plaintiffs property. The City shall also grant any permits and/or easements to Mn/DOT to effectuate this Agreement. 7. The City shall notify Gopher State One Call System prior to engaging in any land disturbing activities. 8. The City shall supply Mn/DOT's Water Resource Engineer ("WRE") and the Plaintiff's engineer with the City's XPSWMM model and supporting computations (Reports, drainage area maps, hand computations, descriptions of - CN, Time of Concentrations, Links, Nodes, etc.,) in sufficient detail to allow Mn/DOT's staff and Plaintiff's engineer sufficient understanding of the model and the assumptions applied to develop the model. 9. The City shall permit the Plaintiffls construction of a drainage system on its own property in accordance with the law. D. Mn/DOT's Specific Terms of Settlement. 1. Within 60 days after receipt of a copy of this fully-executed Agreement and a Stipulation of Dismissal with Prejudice, Mn/DOT shall commence the process of engaging in the following activities: a. Removing all trees and shrubs around Pond AP-6. 13 b. Updating the outlet structure of Pond AP-6 in accordance with current Mn/DOT design standazds, including but not limited to the removal ofthe gate, windwalls and existing apron. 2. In connection with the construction of PlaintifPs portion of the berm and notice that the Plaintiff must produce to the parties prior to commencement of any work (see Section I.B.I. above), Mn/DOT will excavate Pond AP-6 to an elevation of 795.5 and will deposit the material from that excavation at a place accessible to the Plaintiff to be mutually determined by Mn/DOT and the City, in the vicinity of the Plaintiffls property as described in Section I.B.3.e. above (PlaintifPs Specific Terms of Settlement). 3. To provide additional sediment storage and pollutant removal efficiency between elevation 792.5 and 795.5, Mn/DOT shall lower Pond AP6 to an elevation of 792.5 feet by the end of the fiscal year of 2009. Since work for this project requires bidding and letting of contracts, Mn/DOT requires this additional time to address the issues of manpower, finances, and time involved in this portion of the Agreement. 4. It is understood, for proper operation of Pond AP-6, Mn/DOT shall maintain a pond bottom elevation of not greater than 795.5. 5. Mn/DOT's portion of the berm shall run on Mn/DOT's right of way, adjacent to the Plaintiff's north property line, commencing approximately 100 feet west of the northeast property comer (northem border) and ending at the northwest property comer; and adjacent to the Plaintiffs 14 western property line, commencing at the Plaintiffs northwest property corner and going southwest approximately 300 feet. The Plaintiffs portion of the berm and Mn/DOT's portion shall connect. a. Mn/DOT shall construct its portion of the berm on Mn/DOT's property to match Plaintiffs portion of the berm at an elevation of 809 along the property line. b. Mn/DOT will commence this work as soon as the Plaintiff completes its portion of the berm on its property and the PlaintifPs outlet structure is in place so Mn/DOT can fill over it. 6. Prior to the Plaintiff s construction of its portion of the berm, Mn/DOT shall take down the existing fence between the Plaintiffs property and Mn/DOT's right of way and replace that fence when Mn/DOT's berm construction is complete. 7. Prior to the Plaintiffs construcrion on its portion of the berm, Mn/DOT shall put up a construction fence and a silt fence on Mn/DOT's property at Mn/DOT's expense. The construction fence will serve as the boundary between the Plaintiffs property and Mn/DOT's as described under Plaintiffs Specific Settlement Terms herein. 8. Mn/DOT shall be responsible for its own design, construction and maintenance costs of the work set forth herein. 9. After the conclusion of the construction, Mn/DOT shall be responsible for the maintenance of its portion of the berm and of Pond AP-6. 15 10. Mn/DOT shali not participate in the requests for any permits not associated with its own construction. 11. Mn/DOT wil] grant a temporary construction easement to the Plaintiff for the purpose of and during Plaintiff's construction of its portion of the berm. 12. Mn/DOT shall notify Gopher State One Call System prior to engaging in any land disturbing activities. II. OTHER ACKNOWLEDGEMENTS AND AGREEhfENTS. A. The Parties acknowledge and agree that activities and other work related to Pond AP-6 and building Mn/DOT's portion of the berm on Mn/DOT's property shall be deemed "construction" and not maintenance for purposes of this Agreement. Any other work that Mn/DOT does relative to Pond AP-6 shall be construed in accordance with the law applicahle at the time. B. The parties further acknowledge and agree that prior to construction of their respective work, they will designate a contact person for coordination purposes. C. The parties also acknowledge and agree that any materials supplied by the City and by Mn/DOT shall be for the sole pwpose of Plaintiff's construction of its portion of the berm. D. The parties further acknowledge and agree that utility disturbances shall be the responsibility of the party performing the land distwbing activities. E. The parties also acknowledge and agee that each of them will be responsible for providing erosion control and vegetation re-establishment on their respective portion of the berm. 16 F. The parties also acknowledge and agree that the Plaintiff's release of claims does not include any damages for floods caused in the ftzture by the failure of Mn/DOT to maintain Pond AP-6 and its portion of the berm or of the City to maintain its newly created 1.9 acre foot pond. G. The parties further acknowledge and agree that if there is a substantial change in the entity that owns the Property and/or the Property is sold and/or transfeaed, this Settlement Agreement shall remain in fuli force and effect, except that: 1. Upon the completion of the design and construction of the Plaintiff's portion of the projects described in this Settlement Agreement, the Plaintiff shall no longer be responsible for the on-going maintenance and associated maintenance costs of its portion of the berm, its outlet structwe, any of its appurtances, and any portion of its own drainage system, and it shall no longer be responsible for indemnifying and holding harmless the City and/or Mn/DOT for the failure of a different owner of said Property and/or other entity's failure to maintain these constructed items; and 2. Upon the completion of the Plaintiff's portion of the berm, its outlet structure and any appurtances, and its own drainage system, any obligation by Mn/DOT and the City to provide the Plaintiff with access to their respective right of ways shall terminate; however, said termination shall not preclude a different owner of said Property and/or other entity from applying to Mn/DOT and/or the City for perenission to access the respective right of ways for the purpose of maintaining said constructed 17 items nor Mn/DOT and/or the City from making their respective determination regarding the request at that time. III. RELEASE AND SETTLEMENT OF ALL CLAIMS. A. This Agreement represents a complete and final settlement of any and all causes of action, disputes, claims, cross-claims, wunter-claims, controversies, petitions for mandamus, and lawsuits in any venue that may cutrently exist and that could be brought now and in the future by the Plaintiff against Mn/DOT, and/or against any and all forrner and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; by the Plaintiff against the City and/or against any and all former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; and by Mn/DOT and the City against each other related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit. B. By executing this Agreement, the parties acknowledge and agee that al] causes of action, disputes, claims, cross-claims, counter-claims, controversies, petitions for mandamus, and lawsuits in any venue that may currently exist and that could be brought now and in the future by the Plaintiff against Mn/DOT, and/or against any and all former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; by the Plaintiff against the City and/or against any and all former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; and by Mn/DOT and the City against each other related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit, completely and finally settled. C. In return for the good and valuable consideration provided by the City and Mn/DOT as set forth herein, the Plaintiff hereby waives and releases the City and/or any and all 18 of its fonner and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities, and the State/Mn/DOT, and/or any and all of its former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities, from any and all causes of action, disputes, claims, cross-claims, counter- claims, controversies, petitions for mandamus, and lawsuits in any venue that may currently exist and that could be brought now and in the future, whether known or unknown, or sounding in law or in equity, and specifically including but not limited to Plaintiffs petition for mandamus for inverse condemnation, and claims based upon state and federal law, including but not limited to statutes, contracts or agreements of any kind, fiduciary relationships, the Minnesota State Constitution, the United 5tates Constitution, and Common Law, related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit. D. The City and Mn/DOT hereby waive and release each other, and their respective former and current employees, agents, representatives, successors or assigns, individua]ly and/or in their official capacities, from any and all causes of action, disputes, claims, cross-claims, counter-claims, controversies, petitions for mandamus, and lawsuits in any venue that may currenUy exist and that could be brought now and in the future, whether known or unknown, or sounding in law or in equity, and specifically including but not limited to Plaintiff's petition for mandamus for inverse condemnation, and claims based upon state and federal law, including but not limited to statutes, contracts or agreements of any kind, fiduciary relationships, the Minnesota State Constitution, the United States Constitution, and Common Law, related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit. 19 E. This Agreement does not prevent or preclude the City and Mn/DOT from engaging in any other Agreements relative to Pond AP-6 and/or the City's Storm Sewer System concerning terms and conditions not otherwise stated herein. F. Unless specifically prohibited herein, [he Agreement does not prevent or preclude the Parties to this Agreement from bringing future claims against any party and/or non-party based upon occurrences, and/or events, and/or changed conditions that aze unrelated to this settlement and to the facts and circumstances related to and giving rise to the above-entitled lawsuit. IV. NON-ASSIGNMENT OF RIGHTS. A. The Plaintiff represents and acknowledges that it has not assigned, sold or otherwise transferred the right to pursue any claim it has or may have related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit. B. The parties to this Agreement represent and acknowledge that they will not assign, sell, or transfer this Agreement to anyone else, unless all of the parties to this Settlement Agreement agree to such terms in writing. V. D[SMISSAL OF CLAIMS. The Plaintiff understands and agrees that the parties to this Agreement may use this document to secure the dismissal with prejudice of any federal, state, or local chazges, claims, and other causes of action that the Plaintiff may commence now and/or in the future related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit. T'he Plaintiff further understands that a copy of this Agreement may be sent to the City, Mn/DOT, and to any other State agency that has a reason to know of this settlement. The Plaintiff furfher agrees to waive the right to receive any monetary damages or other legal or 20 equitable relief awarded by any court or governmental agency related to such claims not otherwise set forth herein. VI. NON-ADMISSION. A. Nothing in this Agreement is intended to be, nor will be deemed to be an admission of liability by the State, Mn/DOT, and any and all of their fortner and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities, that it has violated any state or federal law, including but not limited to statutes, the state and federal constitution, regulations, local ordinances, or principle of common law or equity, or that it has engaged in any wrongdoing. B. Nothing in this Agreement is intended to be, nor will be deemed to be an admission of liability by the City, and any and all of its former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities, that it has violated any state or federal law, including but not limited to statutes, the state and federal constitution, regulations, local ordinances, or principle of common law or equity, or that it has engaged in any wrongdoing. VII. USE OF THIS SETTLEMENT AGREEMENT. The Parties understand and agee that they may use this Agreement to secure the subsequent dismissai with prejudice of the above-entitled lawsuit, and of any pending and/or future claims of indemnification and/or subrogation, and any other lawsuit that could be commenced in the future, related to and/or arising out of the same facts and circumstances and alleged claims. 21 VIII. NON-PRECEDENCE. The parties agree that this Agreement will not constitute a precedent. The parties to this Agreement shall not ever assert or claim that this Ageement is a precedent in any current or future personnel action or administrative procedure or litigation of any kind. IX. SEVERABILITY AND INTERPRETATION. In the event that any provision of this Agreement is held invalid by a court of competent jurisdiction, the remaining provisions shall nonetheless be enforceable according to their terms. Further, in the event that any provision is held to be overly broad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provisions enforceable according to applicable law, and enforced as amended. X. GOVEI2NING LAW AND JURISDICTION. The validity, enforceability, construction and interpretation of this Agreement shall be govemed by the laws of the State of Minnesota. Jurisdiction on any legal dispute arising in relation to the subject matter addressed in this Agreement shall be vested in the courts of the State of Minnesota or in a federal couR whose jurisdiction covers the State of Minnesota. The parties agree that any legal action filed, if at all, shall be filed exclusively in those courts. XI. KNOWING EXECUT[ON AND VOLUNTARY EXECUTION. The parties to this Ageement represent and certify that they (a) have received a copy of this Agreement for review and study; (b) have had an adequate time to consider the terms of this Agreement, to consult with and to review with counsel the terms of this Agreement; (c) have been given a full and fair opportunity to discuss and negotiate the terms of this Agreement; (d) fully understand the provisions of this Ageement; (e) have been advised by an attorney of all of the rights and obligations of this Ageement; (o have determined that it is in their best interests 22 to enter into this Agreement; (g) have not been influenced to sign this Agreement by any statement or representation by Defendants not contained in this Agreement; and that (h) they enter into this Agreement knowingly and voluntarily. XII. MODIFICATION OF THIS AGREEMENT AFTER EXECUTION. No modification of this Agreement shall be binding unless set forth in writing and signed by all parties to this Agreement. XIII. ENTIRE AGREEMENT. The parties agree that this Agreement constitutes the entire ageement between them concerning the matters discussed herein and fully supersedes any and all prior ageements, representations or understandings between them pertaining to the subject matter contained herein. Except as described in this Agreement, there were no inducements or representations leading to the execution of this document. IN THE WI'TNESS WHEREOF, the Parties have executed this Agreement on the dates set forth below. FOR AND ON BEHALF OF NOLAN AND NOLAN ? ? Date: Marc.4. 31 2006. By. Subscribed and sworn to before me this 3 \ day of DIM,yL, 2006. Notary Public NANCI B. BLOOM Notary public State of Minnesota My Commisalon Expires 10 - - - January8l, 2ot0 23 AS TO FORM AND EXECUTION ND MARTIN LLP Date: 2006. Date: 44 ? L- / g , 2006. Re'r. No. 0066862 WARD A. ROSTON Atty. Reg. No. 260460 1900 Pillsbury Center 220 3outh Sixth Street Minneapolis, Minnesota 55402-4511 (612) 344-1111 ATTORNEYS FOR PLAINTIFF FOR AND ON BEHALF OF THE CITY OF EAGAN z BY.. h'1 e?j,or AS TO FORM AND EXECUTION JARDINE, LOGAN & O'BRIEN, PLLP Date: av?j I 1- 2006. A S G. GOLEMBECK Atty. Reg. No. 179620 8519 Eagle Point Boulevard Suite ]00 Lake Elmo, Minnesota 55042-8624 (651) 290-6500 ATTORNEYS FOR DEFENDANT CITY OF EAGAN 24 MNiUU1llt51HK Fax:612-215-0409 Fapr 28 '06 13:06 P.02i02 : . FOR AI3A ON BEFIAI.fi OF MN/DOT Date: 2006. ? By: Aate: 2006. C?'}'7iE29 By: rdlv?DO; -ra,°r AS 'I'O FORM AND EYECUTION ON BEHALF MN/DOT NITICE FiATCH Attorney Gencsal State of Minnesota Datz: T G? ? ?, 2006_ MARSHA ELDOT DEVINE Assistant Attomey General Atty. Reg. No. 192922 445 Minnesota Sueet, Suite 1100 St. Paul, Minnesota 55101-2128 (651) 282-5713 (Voice) (651) 296-1410 (TI'Y) ATTORNE'YS FOR DEFENAANT MN/DOT AG;4157427I-vl 25 hley W&"*- r /' STATE OF MINNESOTA COUNTY OF DAKOTA Nolan and Nolan, a Minnesota Partnership, vs. Piaintiff, DISTRICT COURT FIRST JUDICIAL DISTRICT Case Type: Condemnation/Properry Damage File No. C9-02-9121 SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS City of Eagan, a Minnesota municipal corporation, and Minnesota Department of TranspQrtation, Defendants. SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims ("Agreement") is entered into by and between Defendant State of Minnesota, Minnesota Department of Transportation ("Mn/DOT"), Defendant the City of Eagan ("the City" or "Bagan") (collectively, "Defendants") and Plaintiff Nolan and Nolan ("Plaintiff' or "Nolan"), all collectively referred to as "the parties," to resolve any and all causes of action, disputes, claims, cross-claims, counter-claims, controversies, petitions for mandamus, and lawsuits in any venue that may currently exist and that could be brought now and in the future by Nolan against Mn(DOT, and(ar against any and all former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; by Nolan against the City and/or against any and all former and current employees, agents, representatives, successors or assigns, individually andlor in their official capacities; and by Mn/DOT and the City against each ather related to and azising out of the facts and circumstances set forth in the above-entitled lawsuit all as it relates to the Plaintiff s propertv ("Propertd') locatecl at 4025 Siblev T4emorial High-,vav Eagan Minnesota. WHEREAS, the Plaintiff commenced this lawsuit against Defendants on July 2, 2002. WHEREAS, on December 18, 2002, upon Mn/DOT's motion, the Dakota County District Cour[ dismissed the PlaintifYs Complaint against Mn/DOT in its entirery, and by stipulation between the Plaintiff and the City, the Plaintiff dismissed the City without prejudice; WHEREAS, on December 30, 2003, the Minnesota Court of Appeals affirmed the dismissal against Mn/DOT of the Plaintiff's causes of action of trespass, nuisance, and negligent construction and design of the joint storm sewer system, but reversed and remanded the Plaintiff's claim for negligent maintenance, repair, and operation of the storm sewer system and for mandamus/inverse condemnation; WHEREAS, Plaintiff recommenced its original claims against the City and by Sripulation of the Parties, agreed that those claims and the remanded claims against Mn/DOT would be litigated in the same lawsuit; WHEREAS, on June 22, 2005, the Dakota County District Court denied Plaintiff's motion for partial suminary judgment as to the inverse condemnation claim, concluding that the Plaintiff could not establish a prima facie case for mandamus to issue; granted summazy judgment in favor of the City with respect to all of the Plaintiff's claims, except the Plainfiff's claim for negligent maintenance, repair, and operation of the storm sewer system; and denied Mn/DOT's motion for summary judgnent on the Plainriff's remaining claim against it for negligent maintenance, repair, and operation of the storm sewer system; WHEREAS the City and Mn/DOT deny the Plaintiff allegations against them and specifically deny Plaintiffls remaining allegations against them, and asserts that neither they nor any of their former and/or current employees, agents, representatives, successors or assigns, 2 engaged in any improper and/or illegal acUactions against Plaintiff related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit; and WHEREAS, the City and Mn/DOT deny all allegations against each other, including but not lunited to their respective former and/or current employees, agents, representatives, successors or assigns, related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit; and WHEREAS, the parties consider it desirable and in the best interests of all concerned to settle a11 claims, controversies, and disputes of whatever nature and kind related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit that may currently exist and that could be brought now and in the future against the City, Mn/DOT, and/or against any and all former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; and with respect to the City and Mn/DOT's cross claims against each other, and in order to avoid the expense, inconvenience, and burden of further action, including azbitration, mediation and/or litigation; WHEREAS it is the intent of the Parties herein to construct a berm azound the Plaintiff's property under the terms and conditions set forth herein. Now, therefore, in consideration for the mutual promises, agreements, and covenants contained herein, the parties stipulate and agree as follows: 1. TERMS OF AGREEMENT. A. Monetary Payment. For and in exchange for a fixll, final, and complete settlement as set forth herein, the City and Mn/DOT jointly shall no later than Mazch I_, 2006 pay to the Plaintiff a total sum payment of Fifiy Thousand Dollus ($50,000), which includes any and all ariomeys fees, costs, and 3 disbursements, subrogation and indemnity claims, paya6le to Nolan and Nolan, a Minnesota Partnership. The payment of $50,000, shall be paid as follows: (a) Twenty-five Thousand Dollars ($25,000) by the City; and (b) Twenty-Five Thousand Dollazs ($25,000) by Mn/DOT. B. PlaintifPs Specific Terms of Agreement. l. Plaintiff indicated that it wants a berm built to an elevation of 811 and desires to have it built as soon as possible. In the interest of reaching an amicable settlement, the parties have agreed that a berm will be built with a portion of it on Plaintiff's property, a portion on the City right of way, and a portion on MnNOT's right of way in accordance with the provisions and requirements set forth in this Settlement Agreement. To this end, within 30 days of the date of this Agreement, the Parties and their respective engineers and experts will jointly work together or prepare and finalize the construction plans and specifications for the berm referenced herein. The plans shall consist of a berm surrounding the Plaintiff's property located at 4025 Sibley Memorial Highway, Eagan, Minnesota as generally depicted on Exhibit _ hereto ("Property"). The Parties acknowledge that Exhibit A is for illustrative purposes only and in and of itself is not a constxuction plan. The construction plan shall include a timeline for the anticipated construction and completion of the berm and a description for the work to be performed by the Parties hereunder, which work shall be consistent with the terms of tke-this Agzeement. The timeline shall include the following dates, provided that while the Parties shall work to diligent meet the dates, the failure to do so will not be 4 considered a material breach of this Agreement provided that the parties aze diligently pursuing the work under this Agreement and provided further that all work required under this Agreement is completed no later than August 1, 2006: Construction Design: MnDOT work (as described in 1.DNOTE: what about a potential conflict with section I.D.3 as to usine any excess material from Pond AP-6 (below 795.5) for use in plaintiff'sportion of the berm? City work (as described in 1.C ) August 1, 2006 Nolan work (as described in 1.A) Substantial completion of all work: : Au ust l 2006 Once the construction plans aze approved by the Parties, they shall be initialed and attached to and made a part of this Agreement. It is acknowledged by the Parties that the scheduling will require the mutual coordination and efforts by all Parties and their respective contractors and engineers. The Parties shall instruct their respective contractors and engineers to work together towazd the completion of the work hereunder. Mn/DOT will build Mn/DOT's portion of the berm on Mn/DOT's property to an elevation of 809. The Plaintiff shall build its portion of the beim up to elevation 809 to match MnDOT's berni and may build its por[ion of the berm M-to-an elevation 811, e- ...,,?te..°- °,°..?`:?? 5 eheeses on its properry or the Ciry right of way only. The Plaintiff's and Mn/DOT's two portions will connect at the parties' property line as described herein. As referenced herein all elevations refer to elevations above sea level. 2. Materials for the construction of the Plaintiff's portion of the berm may come from the excavation of the pond that the City of Eagan is required to construct te-btri}A-and from Mn/DOT, if necessary (see below). a. If a sufficient quantity and/or quality of material is not available from the City's pond construction (as generally shown on Exhibit A) (hereinafter "City Pond"), the Plaintiff may request a quantity of material from Mn/DOT's Pond bottom for the Plaintiffls portion of the berm construction. To the extent that material is available in MnDOT's Pond (as generally shown on Exhibit A)(hereinafter "MnDOT Pond" or "Pond AP-6")), MnDOT will permit the Plaintiff to use the materiaL Any excavation and removal of material from the MnDOT Pond shall be coardinated by the respective contractors and engineers of the Parties. Plaintiff shall not be required to accept any material from the MnDOT Pond that Plaintiff does not desire for its construction. Prior to accepting any material, Plaintiff shall have the right to conduct any testing and analysis it deems necessazy or appropriate prior to accepting any material. The Plaintiff shall not (without coordinating with 6 MnDOT's conuactors and engineers), on its own, enter Mn/DOT's right of way and remove any materials from Mn/DOT's property. b. Once the Plaintiff accepts material from the City and/or Mn/DOT by receipt, the Plaintiff shall be fully responsible for that material, and for the transport, collection and disposal of said material, which will be placed at a designation to be determined by the City and Mn/DOT, on the City's property. NOTE: "...on the Ci!y's propertv" contlicts with section I.ll.2 c. Any material supplied by the City and/or by Mn/DOT is for the sole purpose of constructing the Plaintiffs portion of the berm azound the PlaintifPs property. By providing said material, the CiTy and/or Mn/DOT aze not warranting the yuality and/ox suitability of said material for any purpose and/or use and/or intended purpose and/or use by the Plaintiff. 3. When Plaintiff builds its portion of the berm, the Plaintiff's portion of the berm may spill over onto Mn/DOT's property, but not beyond Mn/DOT's construction fence (see below), which will be located one (1) foot closer to Pond AP-5 iw r:an ss viic ,r ? vcrxz •c8x ,«,. so -rw.e z-racc e ??? u,.a............ .. ...,-,,..,.,,i ?i,...t,., o r..,...? ----l i-r?- -- ?.,? ....... t.,.,,..:,.., ano ,.., a.,... ,.,..,., v..e r,.,..,Fn„ .,,:.t, ci .-°:4. NOTE: DoeSri't make sense as stated Reword?. a. The Plaintiff will maintain an edge of property elevation of 809A within rough construction tolerances. 7 b. The Plaintiff shall take reasonable efforts to ensure that its renters and others having business at EZ Mini Storage do not cross the construction fence or enter Mn/DOT's Right of Way during constnxction. 4. Plaintiff is responsible for desieninQ, providing and constructing the outlet structure, which may drain onto Mn/DOT's pond, for the purpose of perpetuating the natura] drainage from Plaintiff's property. a. The Plaintiff is responsible for obtaining any required permits and for maintaining the outlet structure and any appurtenances. MnDOT will grant any such permits requested by the Plaintiff provided that the requested permits are consistent with the terms of this Agreement. b. The outlet structure into AP-6 cannot be any lower than 795.5 C. The Plaintiff's outlet pipe shall be designed to withstand Mn/DOT's construction activities of its portion of the berm. Any damage to the outlet structure due to Mn/DOT's construction activities for its portion of the berm shall be repaired by the Plaintiff at the Plaintiff's expense, except for damage caused by the intentional or reckless actions by MnDOT, Yhe City and/or the Contractors of either MnDOT or the City. d. The Plaintiff s outlet pipe sball extend a sufficient distance into the pond to ensure that Mn/DOT's construction of its portion of the berm will not interfere with the operation of the outlet pipe. If 8 lengthening of the Plaintiff's outlet pip is required, all related costs sha11 be borne by the Plaintiff. e. Describe second outlef structura: What "second outlet stxucture"? 5. The Plaintiff shall be responsible for its own desi n. construction and maintenance costs. MnDOT and the City shall be responsible for their own desien, construction and maintenance and-costs. 6. Except as set forth herein, the Plaintiff shall indemnify and hold harmless Mn/DOT and the City from any flood'mg and/or other damage to y , ,. 4'-7 nr:..i c.,...,,,.a : o,,.ty t,.,..,+va :.. vi:,,nn???inr-;-the {3Propeft ,t Eagan, due to the improper operation, and/or failure of PlaintifPs portion of the berm, an&er-Plaintiffls outlet structure and/or PlaintifPs overall inlernal drainage svstem. 7. Plaintiff agees to hold harmless and indemnify Mn/DOT and the City during any wark that is done by Plaintiff to implement the terms of this Settlement Agreement. Plaintiff s indemnity obligation in this paragraph shall not apply to any work performed by MnDOT and/or the City and/or their respective contractors or engineers. 8. Except for damage caused by the City and/or MnDOT, the Plaintiff shall also be responsible for its own maintenance of its portion of the berm at a11 times, including but not limited to during its construction and thereafter. 9. The Plaintiff shall be solely responsible for addressing any permits needed from the gas line company and/or any other entity, including but not lnnited to Mn/DOT, related to its own construction. The Plaintiff will 9 need a construction easement from Mn/DOT to construct Plaintiff's portion of the berm. Any permits or easements required from MnDOT hereunder shall be granted by MnDOT provided they aze consistent with the terms of this Agreement. MnDOT and the City will support any permit requests by the Plaintiff of any other governmental or regulatory agency with jurisdiction necessary to perform the work under this Agreement. In the event that a governmental or regulatory agency with jurisdiction does not grant permits that are necessary for the work under this Ageement, the Parties will take diligent efforts to effectuate the intent of this Agreement including but not limited to the construction of the berm as set forth herein under such terms and conditions as may be acceptable to the governmental or regulatory agency with jurisdiction. 10. The Plaintiff shall notify Gopher Staie One Call System prior to engaging in any land disturbing activities. 11. The Plaintiff may conshuct a drainage system on the Property that prohibits water from Pond AP 6 from flowing back onto Plaintiff's property, and meets with the City's requirements. The City shall permit the construction of the drainage system referenced herein. a. The Plaintiff shall be responsible for the operation, and maintenance of its own drainage system An iis prepe-las described herein. b. The Plaintiff shall indemnify and hold harmless Mn/DOT from any flooding on Plaintiff's property due to the improper operation, or 10 failure of the Plaintiff's own drainage system, except for damage caused by MnDOT and/or the City. 12. The Plaintiff shall design and install a private culvert and water diverter under its private driveway within public right of way and regrade a portion of public right of way as necessary to convey excess overland flow directly to the City's or to Mn/DOT's pond (all as shown generally on Exhibit A). The Plaintiff must obtain a permit to drain into Mn/DOT's Pond and must meet the City's requirements to drain into the City's Pond. The City and MnDOT agree to grant any such permits. 13. The Plaintiff sha11 also hold harmless and indemnify the City and Mn/DOT during the work described herein. C. The City of Eagan's Specific Terms of Settlement. 1. The City shall construct the City Pond on its right of way providing for 1.9 acre feet of storage, including an outlet to Pond AP-6, as approved by Mn/DOT (as generally shown on Exhibit A). The construction of the City Pond shall be commenced and completed as set forth above in pazagraph I.B.1 2. The City shall address surface water runoff from Old Siblev Memorial Highwati°h° C;*v s*°°°* °.a °a;°e°^*-? by directing it into the City's newly constructed City Pond (referred to in part I. C. 1 above) where ran ctical• 3. The City shall be responsible for the cost of construction of the City Pond and outlet to AP-6 (MnDOT Pond). 11 4. The City shall also be responsible for its own maintenance of the City Pond at all times; including but not lixnited to during its construction and thereafter. a. The City and Mn/DOT will determine how the City Pond will be connected to Pond AP 6. b. Should a permit be required to dischazge the City's new storm water into Pond AP-6, the City will obtain that permit from Mn/DOT. 5. The Ciry shall allow the Plaintiff to use the material from the construction of its pond for the purpose of constructing Plaintiffls portion of the berm. 6. The Plaintiff shall apply for, and the Ciry will grant an easement or permit to the Plaintiff to allow it to connect its portion of the berm along the City's right of way adjacent to Plaintiff's property as generally shown on Exhibit A. 7. The City shall notify Gopher State One Ca11 System prior to engaging in any land disturbing activities. 8. The City shall supply Mn/DOT w'ater Resources En in¢ eer (WRE) with the City's XPSWMM model and suppor[ing computations (Reports, drainage azea maps, hand computations, descriptions of - CN, Time of Concentrations, Links, Nodes, etc.,) in sufficient detail to allow Mn/DOT's staff sufficient understanding of the model and the assumptions applied to develop the model «o °.am:.,° othe_ s.p.,...._..l ,.,.,,..,.,.. .,. «we d..,,:.,.,rto .. .s.o.., ? • 12 D. Mn/DOT's Specific Terms of Settlement. 1. Within one month after receipt of a copy of this fully-executed Settlement Agreement and a Stipulation of Dismissal with Prejudice, Mn/DOT shall commence the process of engaging in the following activities: a. Removing all trees and shrubs around Pond AP-6; b. Updating the outlet structure of Pond AP-6 which updating will include removal of the gate, wingwalls, and box culvert structure back to the circulaz outlet culvert. A new concrete end section structure will be constructed to aid outflow rates. 2. In connection with the construction of Plaintiff s portion of the berm and notice that the Plaintiff must produce to the parties prior to commencement of any work (see part I.B.1 above), Mn/DOT w711 excavate Pond AP6 to an elevation of 795.5 and will deposit the material from that excavation at a place accessible to the Plaintiff to be mutually determined by Mn/DOT and the City, on Mn/DOT's property as described in Section B.2 above (Plaintiffls Specific Terms of Settlement). 3. Mn/DOT shall lower Pond AP 6 to an elevation of 792.5 feet by the end of the fiscal yeaz of 2006(June 30. 2007?) NOTE: How does this fit into the comoleUOn dates ui 1 B 1 if anv of it is to be used for the Plaintift's benn construction?. Since work for this project requires bidding and letting of contracts, Mn/DOT requires this additional time to address the issues of manpower, finances, and time involved in this portion of the agreement. a) Disposition of material? Reference to I.B2 a? Conflict? 13 4. Mn/DOT's portion of the berm sha11 run on Mn/DOT's right of way, adjacent to aleag the Property's northefn property line corrunencino at the northwest come*WTOT',. `I.r ,.r . .,d .ho nl..:.,.;cE-s -evkveen prape#3? and ending approximately 100 feet €aefn-east? of the northeast comer of the Aaifitiff!"Property (Northem Berm); and commencing at the northwest corner abutting the °1ai~-PProperty line and going southwest approximately 300 feet, adjacent to Trunk Highway 13 (Western Berm). Plaintiffs portion of the berm and Mn/DOT's portion shall connect. a. Mn/DOT shall construct its portion of the berm on Mn/DOT's property to match Plaintiffs portion of the berm at an elevation of 809 along the property line. b. Mn/DOT will commence and complete its work as set forth above in pazagraph I.B1 5. Prior to the Plaintiff's construction of its portion of the berm, Mn/DOT shall take down the existing fence between the Plaintiffs property and Mn/DOT's right of way and replace that fence when Mn/DOT's berm construction is complete. 6. Prior to the Plaintiffs construction on its portion of the berm, Mn/DOT shall put up a construction fence and a silt fence on Mn/DOT's property at Mn/DOT's expense. The construction fence will serve as the boundary between the Plaintiffs property and Mn/DOT's as described under Plaintiffs Specific Settlement Terms herein. 14 7. Mn/DOT shall be responsible for its own construction and maintenance costs of the work set forth herein. 8. After the conclusion of the construction, Mn/DOT shall be responsible for the maintenance of its portion of the berm and of Pond AP-6. 9. Mn/DOT shall not participate in the requests for any permits not associated with its own construction. 10. Mn/DOT will grant a temporary construction easement to the Plaintiff for the purpose of and during Plaintiff's construction of its portion of the berm. 11. Mn/DOT shall notify Gopher State One Call System prior to engaging in any land disturbing activities. 12. MnDOT will maintain the MnDOT Pond so as not to permit the material change in the storase capacity or rate of discharge from the MnDOT Pond after the completion of the Work herein. II. Oth¢t ACKNOWLEDGEMENTS AND AGREEMENTS. A. The Parties acknowledge and agree that activities and other work related to Pond AP-6 and building Mn/DOT's portion of the berm on Mn/DOT's properry shall be deemed "construction" and not maintenance for purposes of this Se?'a;ei:.enrAgreement. Any other work that Mn/DOT does relative to Pond AP-6 shall be construed in accordance with the law applicable at the time. B. The parties further acknowledge and agree that prior to construction of their respective work, they will designate a contact person for coordination purposes. 15 C. The parties also acknowledge and agree that any materials supplied by the City I and by Mv/DOT shall be for the sole purpose of Plaintiff's construction of its portion of the berm D. The parties further acknowledge and agree that utility disturbances shall be the responsibility of the party performing the land disturbing activities. E. The parties also acknowledge and agree that each of them will be responsible for providing erosion control and vegetation re-establishment on their respective portion of the berm. F. The parties also acknowledge and agree that the Plaintiff's release of claims does not include any damages for floods caused in the future by the failure of Mn/DOT to maintain Pond AP 6 and its portion of the berm or of the City to maintain its newly created 1.9 acre #'eel foot pond. G. This Agreement shall run with the land and be binding on the Parties and their successors and assigns, provided that nothing contained herein shall be construed as a restraint on Plaintiff's ability to sell, convey or transfer the Property. In the event that Plaintiff does sell, convey or transfer the Property, the rights and obligations of the Plaintiff hereunder shall inure to the benefit of the purchaser or transferee and Plaintiff shall have no continuing obligations or liability hereunder. III. RELEASE AND SETTLEMENT OF ALL CLAIMS. A. Except as set forth herein and except as necessary to enforce the terms of this Agreement, this Agreement represents a complete and final settlement of any and all causes of action, disputes, claims, cross-claims, counter-claims, controversies, petitions for mandamus, and lawsuits in any venue that may currently exist and that could be brought now and in the future by 16 the Plaintiff against Mn/DOT, and/or against any and all former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; by the _ Plaintiff against the City and/or against any and all former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; and by Mn/DOT and the City against each other related to and azising out of the facts and circumstances set forth in the above-entitled lawsuit. B. By executing this Agreement, the par[ies acknowledge and agree that all causes of action, disputes, claims, cross-claims, counterclaims, controversies, petitions for mandamus, and lawsuits in any venue that may currently exist and that could be brought now and in the future by the Plaintiff against Mn/DOT, and/or against any and all former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; by the Plaintiff against the City and/or against any and all former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; and by Mn/DOT and the City against each other related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit, completely and finally settled. C. In retum for the good and valuable consideration provided by the City and Mn/DOT as set forth herein, the Plaintiff hereby waives and releases the City and/or any and all of its former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities, and the State/Mn/DOT, and/or any and all of its former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities, from any and all causes of action, disputes, claims, cross-claims, counter- claims, controversies, peYitions for mandamus, and lawsuits in any venue that may currently exist and that could be brought now and in the futwe, whether known or unknown, or sounding in law 17 or in equiry, and specifically including but not limited to Plaintiff's petition for mandamus for inverse condemnation, and claims based upon state and federal ]aw, including but not limited to statutes, contracts or agreements of any kind, fiduciary relationships, the Minnesota State Constitution, the United States Constitution, and Common Law, related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit. D. The City and Mn/DOT hereby waive and release each other, and their respective former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities, from any and all causes of action, disputes, claims, cross-claims, counterclaims, controversies, petitions for mandamus, and lawsuits in any venue that may currently exist and that could be brought now and in the future, whether known or unknown, or sounding in law or in equity, and specifically including but not ]imited to Plaintiff's petition for mandamus for inverse condemnation, and claims based upon state and federal law, including but not limited to statutes, contracts or agreements of any kind, fiduciary relationships, the Minnesota State Constitution, the United States Constitution, and Common Law, related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit. E. This Agreement does not prevent or preclude the City and Mn/DOT from engaging in any other Agreements relative to Pond AP-6 and/or the City's Storm Sewer System conceming terms and conditions not otherwise stated herein, provided that any such agreements shall not place the Plaintiff s property at any additional or material risk F. Notwithstanding anything herein to the contrazy, none of the releases, waivers, discharges set forth herein shall be construed to waive or release any claims that the Plaintiff may have in the event that this Agreement is breached or in the event that the City and/or MnDOT materially change or alter the infrastructure or lands in the azea of the Property such that 18 additional surface water or storm water is diverted to, through or over the Property. Nothing contained herein shall be construed as a waiver of any defense that MnDOT and/or the City may have in the event Plaintiff asserts such as claim. G. Each and every permit or approval that is required to be granted hereunder by either the City and/or MnDOT shall not be unreasonably withheld conditioned or delayed. In the event that a permit or approval is required by any other governmental or regulatory body with jurisdiction, MnDOT and the CiTy agree to support any such permit or approval required. IV. NON-ASSIGNMENT OF RICHTS. A. The Plaintiff represents and acknowledges that it has not assigned, sold or otherwise transferred the right to pursue any claim it has or may have related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit. B. Except as set forth above in pazagraph, II.G, the parties to this Agreement 'represent and acknowledge that they will not assign, sell, or transfer this Agreement to anyone else, unless all of the parties to this Agreement agree to such terms in writing. V. DISMISSAL OF CLA[MS. Subject to pazagraph III.F. above, the Plaintiff understands and agrees that the parties to this Agreement may use this document to secure the dismissal with prejudice of any federal, state, or local chazges, claims, and other causes of action that the Plaintiff may commence now and/or in the future related to and arising out of the facts and circumstances set forth in the above-entitled lawsuit. The Plaintiff further understands that a copy of this Agreement may be sent to the Ciry, Mn/DOT, and to any other State agency that has a reason to know of this settlement. Except as set forth herein, the Plaintiff further agrees to waive the right to receive any monetary 19 damages or other legal or equitable relief awazded by any court or governmental agency related to such claims not otherwise set forth herein. - VI. NON-ADMISSION. A. Nothing in this Settlement Agreement is intended to be, nor will be deemed to be an admission of liability by the State, Mn/DOT, and any and all of their former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities, that it has violated any state or federal law, including but not limited to statutes, the state and federal constitution, regularions, local ordinances, or principle of common law or equity, or that it has engaged in any wrongdoing. B. Nothing in this Settlement Agreement is intended to be, nor will be deemed to be an admission of liability by the City, and any and all of its former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities, that it has violated any state or federal law, including but not limited to statutes, the state and federal constitution, regulations, local ordinances, or principle of common law or equity, or that it has engaged in any wrongdoing. VII. USE OF THIS SETTLEMENT AGREEMENT. The Parties understand and agree that they may use this t Agreement to secure the subsequent dismissal with prejudice of the above-entitled lawsuit, and of any pending and/or future claims of indemnification and/or subrogation, and any other lawsuit that could be commenced in the future, related to andlor arising out of the same facts and circumstances and • alleged claims. VIIL NON-PRECEDENCE. 20 The parties agree that this Agreement will not constitute a precedent. The parties to this Agreement shall not ever assert or claun that this Agreement is a precedent in any current or future personnel action or administrative procedure or litigation of any kind. IX. SEVERABILITY AND INTERPRETATION. In the event that any provision of this Agreement is held invalid by a court of competent jurisdiction, the remaining provisions shall nonetheless be enforceable according to their terms. Further, in the event that any provision is held to be overly broad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provisions enforceable according to applicable law, and enforced as amended. X. GOVERNING LAW AND JURiSD1CTION. The validity, enforceability, construction and interpretation of this Settlement Agreement shall be govemed by the laws of the State of Minnesota. Jurisdiction on any legal dispute arising in relation to the subject matter addressed in this Agreement sha11 be vested in the courts of the State of Minnesota or in a federal court whose jurisdiction covers the State of Minnesota. The parties agree that any legal action filed, if at all, shall be filed exclusively in those courts. XI. KNOWING EXECUTION AND VOLUNTARY EXECUTION. The parties to this Agreement represent and certify that they (a) have received a copy of this Settlement Agreement for review and study; (b) have had an adequate time to consider the terms of this Agreement, to consult with and to review with counsel the terms of this Agreement; (c) have been given a full and fair opportunity to discuss and negotiate the terms of this Agreement; (d) fully understand the provisions of this Agreement; (e) have been advised by an attorney of all of the rights and obligations of this Agreement; (f) have determined that it is in their best interests to enter into this Agreement; (g) have not been influenced to sign this 21 Agreement by any statement or representation by Defendants not contained in this Agreement; and that (h) they enter into this Agreement knowingly and voluntarily. XII. MODIFICATION OF THIS AGREEMENT AFTER EXECUTION. No modification of this Agreement sha11 be binding unless set forth in writing and signed by all parties to this Agreement. XIII. ENTIRE AGREEMENT. The parties agree that this Agreement (along with the plans referenced in pazagraph I.B.1, constitutes the entire agreement between them conceming the matters discussed herein and fully supersedes any and all prior agreements, representations or understandings between them pertaining to the subject matter contained herein. Except as described in this Agreement, there were no inducements or representations leading to the execution of this document. IN THE WITNESS WHEREOF, the Parties have executed this Agreement on the dates set forth below. Date: , 2005. Subscribed and sworn to before me this day of , 2005. Notary Public FOR AND ON BEHALF OF NOLAN AND NOLAN By: 22 AS TO FORM AND EXECUTION MALKERSON GILLILAND MARTIN LLP Date: . 2005. Date: .2005. BRUCE D. MALKERSON Atty. Reg. No. 1900 Pillsbury Center 220 South Sixth Street Minneapolis, Minnesota 55402-4511 (612) 344-1111 ATTORNEYS FOR PLAINTIFF FOR AND ON BEHALF OF THE CITY OF EAGAN By: AS TO FORM AND EXECUTION 7ARDINE, LOGAN & O'BRIEN, PLLP Date: , 2005. JAMES G. GOLEMBECK Atty. Reg. No. 179620 8519 Eagle Point Boulevazd Suite 100 Lake Elmo, Minnesota 55042-8624 (651) 290-6500 ATTORNEYS FOR DEFENDANT CITY OF EAGAN 23 FOR AND ON BEHALF OF MN/DOT y Date: , 2005. Date: , 2005. AGN1519124-v1 BY= AS TO FORM AND EXECUTION ON BEHALF MN/DOT MIKE HATCH Attorney General State of Minnesota MARSHA ELDOT DEVINE Assistant Attorney General Ariy. Reg. No. 192922 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 (651) 282-5713 (Voice) (651) 296-1410 (TTY) ATTORNEYS FOR DEFENDANT MN/DOT 24 L-!, /31 S-x fLJ lnC 0 4-rk qd2r 5. S /ay LoGnn? e? RECE1dED MAY 12 2006 sos« ioo 8519 F,agle Point Boulevard Lake Elmo,M\ 55042 Picm (651) 290-6500 F. (651) 223-5070 E-Mail `rILnlmv@jlolaw.com VVCD6tCC lVtt^A,?IOI2W.COO] ceaIa M. Linouhaa- eu., R. va.a,& Jo6n M Kennedy, Jr.' Eugcvc J. SGck` C6arlcs E. Giltin' famcs J. Gulmxn' Pieva N. Rcgniu Mack A. Fanku, ' GeorKe W. Kuchncr Pa[[i J. Skoglund " Scan E. Hade " Timodrv S. Crom' Lawmnce M. Roche£ocd * James G. Golembeck ` Joseph E. Flynn" Jladene S. Ga?va' Thom;U L_ Cummivgs Mary P. 2o.ve )esica E. Schvrie Susan S.Tice Thomas J.1Viisvrck Leonard J. Schweich Matthcw P. Bundr' Eli,a M. Hatlevig Jasov A Koch Pe.ec W. Wenning John R. O'Brinn - 9dmitted 3n Wismnsin, emerime Minneso?a, cetired Some membus also admiacd ro pructim law in Wiscoiisin", Nw[h Uakorn, Sou[h Dekota, and Iowx Shanvor. Banasuwski Admmisnamc EACaAN ENGINEERING DEPARTMENT May 10, 2006 PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY-CLIENT RELATIONSHIP ANll WORK-PRODUCT DOCTRINE ?>IR THOMAS A COLBERT PUBLIC WORKS DIRECTOR CITY OF BAGAN 3830 PILOT KNOB ROAD EAGAN MN 55122 MR MICHAEL DOUGHERTY SEVERSON SHELDON DOUGHERTY ET AL 7300 WEST 147TH STREET APPLE VALLEY MN 55124 Re: No1an and Nolan, a Minnesota Partnership, vs. City of Eagan and Minnesota Department of Transportation Our File No. 31543 (872) Gentlemen: Enclosed for your file, please find a fully-executed copy of the Order Of Dismissal with Prejudice And Judgment in the above-referenced matter. Dov I have requested the settlement draft from the LMCIT and should be receiving it ald M.Javdine (19li-2005) i?n. r. Lop. (1923-1983) shortly. I will then forward it to Plaintiff's attorney whereupon I will close my file in this matter. I would like to thank Mr. Colbert for all his work in resolving this matter. It was a pleasure working with such a fine professional staff from the City of Eagan. Established 1918 Equal Opportttnity Employer- PRIVILEGED AND CONFIDENTIAL COMMUNICATION PURSUANT TO ATTORNEY-CLIENT RELATIONSHIP AND WORK-PRODUCT DOCTRINE MR THOMAS A COLBERT May 10, 2006 Page 2 If you have any quesrions concerning this matter, plPase cantact me. Very huly yours, JARDINE, LOGAN & O'BRIEN, P.L.L.P. mes ?GGolembcck DirectDial: (651) 290-6567 JGG:IIs Enclosure « t STATE OF MINNESOTA COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT HASTINGS, MINNESOTA 55033 In Re: NOLAN AND NOLAN, A MINNESOTA PARTNERSHIP vs. EAGAN, CITY OF, A MINNESOTA MUNICIPAL CORPORATION et al. Case Number: 19-C9-02-009121 JAMES GERALD GOLEMBECK SUITE 100 8519 EAGLE POZNT BOULEVARD LAKE ELMO MN 55042 N O T I C E O F F I L I N G O F O R D E R You are hereby notified on May 5, 2006 an ORDER OF DISMISSAL WITH PREJUDICE AND JUDGMENT was filed in the above entitled matter. A true and correct copy of this notice has been served by mail upon the parties named herein at the last known address of each, pursuant to the Minnesota Rules of Civil Procedure. Sue Lawrence, Chief Deputy gy DCB Dated: May 5, 2006 Y . STATE OF MINNESOTA COUNTY OFDAKOTA Case Type: Condemnation/Property Damage Nolan and Nolan, a Minnesota Partnership, DISTRICT COURT FIRST JUDICIAL DISTRICT File No. C9-02-9121 Plaintiff, vs. ORDER OF DISMISSAL WITH PRENDICE City of Eagan; a Minnesota municipal AND JMGMENT corporation, and Minnesota Department of Transportation, Defendants. This matter comes on before this Court upon the submission of the parties' Stipulation of Dismissal with Prejudice. Plaintiff Nolan and Nolan, a Minnesota Partnership, is represented by Howard A. Roston, Esq., Malkerson Gilliland Martin LLP, 1900 Pillsbury Center, 220 South Sixth Street, Minneapolis, Minnesota 5 5402-45 1 1. Defendant City of Eagan, a Minnesota municipal corporation, is represented by James G. Golembeck, Esq., Jardine, Logan & O'Brien, P.L.L.P., 8519 Eagle Point Boulevard; Suite 100, Lake Elmo, MN 55042-8624. Defendant Minnesota Deparhnent of Transportation is represented by Assistant Attomey General Marsha Eldot Devine, 1100 BRM Tower, 445 Minnesota St;eet, St: Paut; Minnesota 55:01 -2728. This Court, having reviewed the parties' Stipulation of Dismissal with Prejudice finds, as follows: 1. The Parties have reached a complete and final settlement of any and all causes of action, disputes, claims, cross-claims, counter-claims, controversies, petitions for mandamus, and lawsuits in any venue that may cunently exist and that could be brought now and in the future, f1tF0 6AKOiACOUNTY VAN A. BROi6TROM, Caki Adminigrxtor MAY 2006 n By DEPUTY known or unknown, by (a) the Plaintiff against Mn/DOT, and/or against any and all former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; (b) the Plaintiff against the City and/or against any and ail former and current employees, agents, representatives, successors ar assigns, individually and/or in their official capacities; and by (c) Mn/DOT and the City against each other, related to and arising out of the facts and circumstances set forth in this lawsuit; 2. Pursuant to the parties' stipulations and agreements, all causes of action, disputes, claims, cross-claims, counter-claims, controversies, petitions for mandamus, and lawsuits in any venue that may cucrently exist and that could be hrought now and in the future by the Plaintiff against Mn/DOT, and/or against any and all former and cunent employees, agents, representatives, successors or assigns, individually and/or in their official capacities; by the Plaintiff against the City and/or against any and al] former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities; and by Mn/DOT and the City against each other, related to and arising out of the facts and circumstances set forth in this lawsuit are completely and finally settled. 3. ln retum for the good and valuable consideration provided by the City and Mn/DOT as set forth in and subject to the Parties' stipulations and agreements, the Plaintiff nereby waives and releases the City and/or any and a:; af its farnier and current employees,' agents, representatives, successors or assigns, individually and/or in their official capacities, and the State/MnlDOT, and/or any and all of its former and current employees, agents, representatives, successors or assigns, individually and/or in their official capacities, from any and all causes of action, disputes, claims, cross-claims, counter-claims, controversies, petitions for mandamus, and lawsuits in any venue that may currently exist and that could be brought now 2 f unrelated to the Parties' settlement and unrelated to the facts and circumstances related to and giving rise to this lawsuit. IT IS HEREBY ORDERED THAT: 1. This matter is dismissed with prejudice and in its entirety, including but not limited to all claims and causes of action against Defendant City of Eagan and Defendant Minnesota Department of Transportation previously dismissed by this Court conceming this matter, and those claims, causes of action, and cross-claims remaining after this Court's ruling on the parties' respective summary judgment motions, and any and all disputes, claims, cross- claims, counter-claims, controversies, petitions for mandamus for inverse condemnation, and claims based upon state and federal law, including but not limited to statutes, contracts or agreements of any kind, fiduciary relationships, the Minnesota State Constitution, the United States Constitution, and Common Law. 2. This dismissal with prejudice is without any costs, disbursements, or attorneys fees to any party, with the exception of the mediator's fee, which the parties stipulated would be home and paid by them in an equal amount. 3. This dismissal with prejudice shall be immediately entered and docketed without undue delay. 4. At the Court Administrator's convenience, a copy of this Order of Dismissal with Prejudice, along with a notice that it has been entered and docketed shall be sent to counsel for each of the parties. BY THE COURT: Dated: 2006. JUDQ:W"cN7 i H?Y CEqTIFY TI{AT?h'c?BO4E.OROER T?b iH' JU03t61EJT OF 2HI9 COURI: 'f A. 7flOMr ?.'7U t67MTOR er onreo: . !&FPI1 Ju ge of District Court v Y3 ?-ie..'r` /Z pC I ,.r G- 4 ! LOc;nN U% O' B ii i r: N'.. sui« ino 5579 Cnylc Point Rnulcvard Lekc F.Imn, \7n 55092 Rirm (cs>) zvaesno F. (651)223-5070 E-Mail Jlolawt!jlnlaa..om Websitc Gerald Af. Linuihan' Alan R. \'an:nek John Nl. KennedyI, ?.' Eugcnc J. Flick • . Chades E Ciilin' JamcsJ. Galmxn' Picrre N. Rcynier nl ,.k n. F?uk, . ^ Grorgc W. Kuchncr Parti J. SkoGlund' Snn E. Hadc' Timothv S Gom' Lawrcncc D1. Rochclinrd Jamcs G. Golcmbcck' Ja'epn E. ei) „„ • A7edenc S. Cnrvie" Thomm L. Cumming.a Mary P. Ro,?e Jcssin E. Schwic $usan S.Tiae Thomas J. Misurck Leonerd J. Schwcich llatdicw P BxnAt" Elisa AI. 1 Ltkviq Jamn A. Koch Pcrer \N. \Nsnning Jahn R. O'llrim - Admincd in wisaonsiq cmcrinic N7inncsn[a,rttimd RECEIYED 17, 2006 MAY 18 2006 EHGAN Mx xoWaRn a xOSTON ENGINEERING DEPARrMEN7 MALKERSON GILLILAND MARTIN LLP 1900 U.S. BAI*IK\PLAZA SOUTH TOWER 220 SOUTH SIX2H\STREET MINNEAPOLIS MN \ \5•5402 Re: Nolan and Nolan vs. City of Eagan and MnDOT Our File No. 31543 (872) Dear Mr. Roston: Enclosed please find a settlement check for the City of Eagan's portion of the settlement in the aniount of $25,000.00, made payable to Nolan And Nolan, a Minnesota parfiership And Their Attorney, Bruce D. Malkerson. Very truly yours, JARDINE, LOGAN & O'BRIEN, P.L.L.P. ?esG Golembeck Direct Dial: (651) 290-6567 JGG:IlS Enclosure Some members also admiued " ? ropnctircl:nvln\1?iscnnsin , _. \orth llrkore, $outh Dakoia, ''- '°' l°W' MS MARSHA ELDOT DEVINE ASSISTANT ATTORNEY GENERAL Shannon Han.,szcwski Adminisn:nar SUITE 1100 445 MINNESOTA STREET n.ia ni_ i"a;,,, n915-2005i ' ST PAUL MN 55101 Jcac F Lngan (1923-1983) A COLBERT KS DIRECTOR CITY OF?EAGAN 3830 PILOT?KNOB ROAD EAGAN MN45122 E. t crhl islted 19 / r' ('qucrl OpporlunrtV I;nrplnrer tNO 4-e?/Ltrs l-y WO,"- IA-7 Pat Geagan MAVOR Peggy Carlson Cyndee Fields Mike Maguire Meg Tilley COUNCIL MEMBERS Thomas Hedges CITV ADMINISTflATOii MUNICIPAL CENTER 3830 Pilot Knob Road Eagan, MN 55122-1810 651.675.5000 phone 651.675.5012fax 651.454.6535 TDD MAINTENANCE FACILITV 3501 Coachman Point Eagan, MN 55122 651.675.5300 phone 651.675.5360fax 651.454.8535 TDD www.cityofeagan.com THE LONE OAK THEE The symbol of strength and growth in our community. May 3, 2006 Mr. E. Buck Craig Metro Permits 1500 West County Road B2 Roseville, MN 55113 -J 174 Re: Apptication for Miscellaneous Work on Trunk Highway Right-of-Way Trunk Highway 77 at Trunk Highway 13, Old Sibley Memorial Hwy. City Contract No. 06-02 0 6/_F,a-< c w Deaz Mr. Craig: Enclosed please find a completed application form (TP-1723) and plan depicting the City of Eagan's proposed construction of a dry pond and pipe oudet within rigttt-of-way of Old Sibley Memorial Highway (Old Highway U) neaz the intersection of TH 77 and TH 13. We understand that Lisa Freese, MNDOT Area Manager, has informed of this proposed construction, in conjunction with a settlement agreement between the adjacent property owner, EZ Mini-Storage and the City of Eagan/ MNDOT regarding pond impacts of the EZ Mini-Storage property. All work will be completed to MNDOT standards for drainage, erosion control, traffic control, and in compliance with the settlement agreement. Please let me know if you require any further information. You can contact me at 651- 675-5646 or jgorder(?a,citvofeagan.com. Sincerely, Yohn Gorder Assistant City Engineer C: Tom Colbert, Director of Public Works (w/out enclosures) Russ Matthys, City Engineer (w/out enclosures) encl 3.'_/03/2995 THU 18:42 FAX $12 366 1414 HALAER$ONGILLILANDHARTIN E002/022 L l, 13 1 S ai W% K 0 ` yu ,X s- s, s /? y 14-te? /? MALKERSON GILLILAND MARTIN LLP 1900 U.S. BANK PLAZA SOUTH TOWER 220 $pUTH SIXTH STncET MINNEAPGLi9, MiHnE50TA SSCOZ TELEPMON6 812•364•1171 FAcsiritE 612-344•1474 Brucc D. Malkerson, Esq. 612.344.1699 bdm@mgmllp.com November 3, 2005 CONFIDENTIAL SE'!'i'LEMENT DTSCUSSION NOT ADMIS5A13LE PLTRSUANT TO 1VIINN. R. EVID. 408 Marslia Eldot Devine, Esq. Sfate ofMinnesota Assistant Attomey General 445 Minnesota SUreet, Suite 1100 St. Paul, MN 55101 James G, Golembeck, Esq. Jazdine, Logan & O'Brien, P.L.L.P. 8519 Eagle Point Boulevazd, 5uite 100 Lake Elmo, MN 55402 VIA E-MAIL AND FACSIlVIILE (651.282.5832) VIA E-h4AIL AND FACSINIILE (651.223.5070) RE: Nolan and Nolan v, City of Eagan and MnDOT Court File No. 19-C9-02-9121 Our File No, 1032.008 Dear Ms. Devine and Mr. Golembeck: I. INTRODUCTION Set forth is an overview of thc Plaintiff's 5nancial losses due to the actions oF the MnDOT and the City of Eagan. The information in the charts is the same information we would provide to you in answers to futuze interrogatories from you, if any, which requested such information. In the interim, if you want, we will have Charles Nolan provide an affidavit to that effect. T understand that tomorrow we will receive the information we had requested at tlxe mediation and as outlined to you in our lctter dated November 2, 2005. Wc did receive the topographic map £rom the City tius morning, VJe will not be submitting a settlement demand at this time, as we still need to anaiyze the information you are providing to us tomorrow before eompleting such a settlement demand. 103317.DOC;3 11/03/2405 THV 18:03 FAX $12 966 1416 HALNER$ONGILLILANDMARTIN Marsha Eldot Devine, Esq. James Cr. Golembeck, Esq, Nvvember 3, 2005 Page 2 H. OVERVIEW OF PLAINTIFF'S FINANCIAL LOSSES A. EXTENT pF FLOODING 1. Plaintiff constructed the initial phase of the Eagan mini-storage facility in 1977. Due to the snccess of the husiness, Plaintiff constracteci additional mini-storage buildings. Uoo3/ozz 2. The business conrinued to thrive until July 7, 2000, when it was flooded. The floodwater reached an elevation o£ 808.1'. Every building on the property was flooded to a depth of several inches to four feet (4'). Attached hereto as EXHI$IT A is A topographioal map showing thc buildings by number. Based upon the topography shown and the Plaintiff s knowledge, the flooding was generally as foliows: a. Building No, l is 5,000 square feet in size (30' x 170' - ]00 sf carve out at one corner). The west inside floor elevation is 805.7' and it drops to an elevation of 804.9' on the east end. The flooding inszde the building was from 2.4' to 3.2'. b. Building No. 2 is 16,404 square feet in size (30' x 550' - ]00 sf carve out at one comer). The onsite manager's residencc is on the east end of this building. The west inside flopr elevAtion is 804.4' and it rises to an elevation of 807.8' on the east end. The flooding inside the building was from 3.3' to11'. c. Buildiag No. 3 is 6,200 square feet in size (30' x 210' - ]00 sf of carve out at one corner). The west inside floor elcvarion is 805.7' and it drops to an elevation of 804,9' on the east end. The flooding inside Hie building was from 2.4' to 31'- d. Building No. 4 is 13,200 squarc feet in size (30' x 4405). The west insidc floor elevaiion is 804,4' and it rises to an elevation of 807.0° on the east eud. The flooding inside the building was from 3,3' to 1.1'. e. Building No. 5 is 7,400 square feet in size (30' x 250' -100 sf carve out at one comer). The west inside floor elevation is 806.4' and it drops to an elevation of 805.1' on the east end. The flooding iaside the building was from 1.7' to 3.0'. £ Building No. 6 is 11,400 square feet in size (30' x 380'). The west inside floor elevarion is 804.4' and it rises to an elevation of 806.4' on thc east end. Tlae flooding inside the building was from 3.3' to 1.7'. g. Building No. 7 is 9,300 square feet in size (30' x 310'). The west inside floor elovation is 804.5' and we need clarification as to the east inside elevation. The flooding inside the building was 3.6' ut the deepest. I03317.DOC;3 IS/03/2005 THU 18:03 FAX $12 366 1616 NALRER$ONGILLILANDMARTIN Marsha Eldot Devine, Bsq. James G. Golembeck, Esq. November 3, 2005 Page 3 h. 13uilding No- 8 is 8,100 square feet in siu (30' x 270'). The west inside floor elevation is 804.2' and it rises to an elevation of 805.9' on the east end. The flooding inside the building was from 3.9' to 2.2'. i. ]inilding No. 9 is 6,300 square feet in size (30' x 2I0'). The west inside floor elevarion is 804.3' and it rises to an elevation of 8053' on the east end. The flooding inside the building was from 3.8' to 2.8'. j. Total Square Footage of Buildings: 83,300 square feet, 100% o£ which wfts flooded in Jqly 2000. Uooaia2z 3. In the southwest corner of the property there are approximatcly 1.96 acres of vacant land, which were zntended for build-out with two udditional mini-storage buildings. The buildable area of the land is at an elevarion of 805.4' to 807.6'. T7ie flooding thereon was from 2.7' to 0.5'. B. 2. OCCUYANCY At the time of the July 2000 flood fliere were, and still axe, from 657 to 663 mini-storage rental units available for rentAl in a variety of sizes (83,300 total squuc fcet minus the on-site manager's residence and other unrentable area = 78,850 square fcet of rentable area). The 1997-2004 occupancy rates aze shown in the chart below. Tn June 2000, a few days before the flood, the occupancy was 102.64%. Occupancy above 100% can be achieved because leases are month-to-month; tenants pay a monihly rental fee tFuough ihe end of the month, and when teuants leave before the end of the month's term, the Plaintiff is able to re-lease ihose same units for the balance of the month to new tenants, thereby generating additional income and higher occupancy rates. Pre-Flood and Post-Flood Occupancy Rates - Eagan ntoom 1997 iM 1999 2000 zooi zooa 2003 2004 .lanna 91.82 95.59 92.96 98.13 G8.90 74.94 76.14 7922 CeOrm 91.15 96.80 92.07 98.63 6626 74.14 74.11 78.40 March 94.01 96.61 92.96 104.00 69.70 75.38 77.41 80.86 ril 97.63 96.16 95.50 10121 7436 76.37 77.67 92.37 Ma 10124 100,47 9727 100.57 76A3 7735 80.19 83.45 Jone 101.49 100.92 98.54 102.64 79.64 78.94 84.02 83.42 Jul 100.44 101.81 100.60 97.1 90.18 8021 84.34 83.67 Au uct 101.40 103.77 102.10 75.06 80.56 8203 96.15 86.34 Sc tember 98.64 98.95 102.45 72,74 8323 84.05 85,61 8319 Octo6er 97,a3 98.99 102.80 70.08 8a,05 SI.O7 83.70 51.73 Nuvembcr 96J3 95.69 100.29 71.66 79.73 77.A6 84.69 78.14 ncrcmber 96.86 91.25 96.41 6830 )6.S1 74.32 82.47 75,22 AVE r 97.39 98.10 77J5 58.36 76.32 78.24 8137 81.34 3. Prior to the July 2000 flood, annual occupancy for the faeility averaged close to 100%. Looking at the above occupaacy chart, one can see that the winter months of January, 103317.DOC;3 11/03/2005 THU 18a03 FA% 612 346 1416 HALABR$ONGILLILANOKARTIN 1&005/022 Marsha Eldot Devine, Esq. James G. Golembeck, Esq. November 3, 2005 Page 4 Fcbruary, and Ivlarch are typically the lowest occupancy months. Plaintiff s other pmperties also experience this reduced level of occapancy dunng the winter inonths. However, in 2000, the Eagan facility was doing so well, that the winter month occupancies were the highest ever. After the flood, the tenants were still under lease for the remainder of the month of ]uly, which accounts for the high occupancy rate in July. 4. Immediately following the July 2000 flood, the Plainfiffls employees and others worked day and night for aearly two months assisting the tenants in their efforts to save what could be saved of the tenant's stored possessions. The Plainriff did so becAUSe many of the tenants could not do ihe work by themselves and the Plaintif'f hoped to convince as many tenants as possible to stay at its facility. Thc Plainriff spent a considerable amount of money in repairing itcros destroyed by the 7uly 2000 flood. Attached Iiereto as EXFIBTT B is a summary of those expenses, which totaled $190,585.01. Unf'ortunately, as can be seen in the above occupancy xate chart, occupancy plumineted to less than 70% by December 2000. Since the July 2000 flood, Plaintiff has worked hard to inerease occupancy, keep the tenants who have stayed, and generate new rentals by: a, Maintaining rental rates b. Providing free rent or other incentives c. Incrcasing advertising And marketing cosU 5. Plaintiff has been involved in the mini-storage industry since the 1970's. Plaintiff and its related compenies own and manage nine (9) facilities in the Twin Cities azca and 50 additionel facililies nationsilly. It knows what the mini-storage mazket is, whaY adversely impacis the market, and how to attract and keep tenants. While Plaintift'has endured noxmal market cycles and problems, none of the facilities it or its related entities own has been so adversely impacted and for such an extended period of time, as this property in Eagan has been impacied. 6. As can also be seen in the above ocCUpancy chart, the loss of occup2xtcy due to tiie July 2000 flood was immediate and continues unabated to 11vs day. Many tenants who wexe leasing at the rime of the 7uly 2000 flood did not renew their leases bccause they no longer had any possessions m store due to the extent of the flood damage and the resulting need to throw those possessions Away. Others left due to the 1'ear of another flood. In the yeazs since the July 2000 flood, numerous prospective tenants have called to obtain rental information in response to signage or advertising, and often they ask if tlus facility was the one that flooded in 2000. The Plaintiff's rental agent cannot lie about that fact and so those prospective tenants lease units elsewhere. Periodically, prospective tenants have stated that the Plaintiff's competitors told them that this facility had flooded when those prospective tenants called the competitors to obtain rental information as part of their shopping for rental terms prior to leasing. 103317.DOC;3 11/03/2005 SHU 18:93 FAX $12 366 1416 HALAER$ONGILLILANDMAASIN Marsha Eldot Devine, Esq. James G. Golembeek, Esq. November 3, 2005 Page 5 7. Thc PlainfifFs closest compefitors before and after the July 2000 flood remazn the sauie. They aze: a, Public Storage (Comxerly Secure Mini Storage) in Eagan b. ACORN Mini Storage in Eagnn c. Comerstone at Eagan Town Square No additional mini-storage facilities have been bailt in the mttrket area sinee the July 2000 flood. The population continues to grow in the market, so there is no other reason why oceupancy at Plaintiff s property has fatlen so far except for the July 2000 flood and the resulting loss of cenants at that time, the stigma related thereto, and fears of prospective tenants of future flooding. 8. As shown in the occupancy rate charts below, two of the Plaintiff's facilities that aze siuular (in size and other c3iaracteristies) to the Bagan facility have continued to enjoy high occupancies. 71te St. Louis Park and New Brighton mini-storage facilities haue 637-638 and 561-563 storage units, respectively. St. Louis Pazk U006/922 Moaih 1997 1798 1999 2000 2001 2002 2003 2004 Janua 92.81 69_02 98.21 97.57 97.84 95.73 89.69 87.77 Februo 9335 87.83 100.10 98.58 96.40 95.03 89.47 89.24 March 94.66 91.02 100.48 100.61 97.20 95.83 69.81 88.44 A ril 97.76 95.43 100.03 100.67 98.13 93.46 92.73 90.72 Mn 99.33 97.44 10038 101.73 100S3 933u 90.47 9421 7une 97.15 9930 1D1.25 103.01 100.00 95.41 91.23 96.01 ]ul 97.76 10020 100.99 100.86 98.64 99.55 91.26 97.54 Au us[ 9" 100,45 102.95 101.02 99.96 100.00 92.83 96.69 St tem6er 97.12 L0077 1Q1.63 ]00.35 9921 96.86 02.41 94,17 October 97.97 100,49 19D35 101.09 97.75 95.45 91.68 97.76 Narcmbcr 92.23 99.49 100.19 9939 95.76 9491 90.33 ?JZ.57 Deum6er 90_96 97,41 49A1 47.07 94,11 4123 8924 912b AVE r 95.79 96.57 )OOAG I00.26 98.02 95.56 90,92 `YLJO New Brighton Muoth 1997 1998 1499 2000 2001 2002 2003 2004 Jaoaa 87_85 96.62 95.92 9235 93.13 9232 87.38 92.55 Februa 89.99 95.44 95.63 93.71 93.03 91_16 87.70 92.37 Merch 95.13 96_17 9$.91 94.29 96.18 92.23 93.37 94.91 A ril 97.38 9828 47.81 99A5 98.16 95-89 95.80 97.04 Ma 100.40 101.01 100.85 101.31 100.13 96.89 96.59 99.94 Jnoe 101.79 102.30 101.13 100.30 100.04 97.82 96.71 96.78 Jul 100.53 102.09 100.77 10090 9296 97.53 98.41 92.91 Au uat 102.21 302.27 100.56 100-4 96.99 97.66 91.69 93A0 Se embcr 101-38 30020 99.06 99.9] 97.91 5-19 93.62 88.55 (ktnbcr 101.58 99,48 97.00 9R.76 94.58 96.07 91.29 89.79 Noveoi6er 99.80 95.14 96.65 96.66 94.62 91.2d 9329 93.02 Dcccmbcr 96.Sfi 95.1U 93.08 94.SG 9235 89.11 9232 39,87 AVE r 47.88 98.66 97.71 97.70 96S8 94,47 93.68 93.31 103317.DOC;3 11/03/2005 THU 18:03 FAX $12 366 1616 HALRERS ONG=LLILANOMARTIN Ivlazsha Eldot Devinc, Esg. JAmes G. Golembeck, Esq. November 3, 2005 Page 6 The market did soften slightly after September i l, 2001, wlvch of course was not foreseeable as of the date of the Iuly 2000 flood, yet occupancy remained strong for the above similaz facilities. Absent the July 2000 flood, there is no reason why average annual occupancy at the Eagan facility woutd not have been at least as strong each year as was the occupancy at the St. Louis Pazk and New Brightozt facilities. C. REDUCTiON IN ANNIJAL NET OPERATING iNCOME ("NOi") A.ND IiESULTING REDUCTION OF VALUE 0oo7iozz The net anuual operating inwme for the Eagan facility is a product of subtracting the normal annual operating expense from the gross revenues from all sources at the property each year. For example, for the yeazs shown in the following chart, Plaintiff has not included in the total operating expenses, those costs and expenses that should be capitalized (e.g., a new roof, or the uniquc costs attributable to the cleaa up, etc., after the flood (approximately $190,000 as discussed above). 2004 2003 2002 3001 2000 7uly-Dec 2000 dxo'Tune 1999 1998 1997 Revenac 52U86 517,246 511,840 494,835 222,224 361,143 657,263 613,047 585,861 AdmFnislrxlive 34,272 28,814 27,207 25.600 11.444 9,616 19,545 13.229 13,435 O erztin 6a nu 45022 38,542 39,107 35936 17,184 15,617 35.146 32.477 29,897 MaiotennnaEx ime 18,396 25378 27467 35,489 10,725 13_520 23,747 19,473 20392 TuEz enae 62,482 82.839 82,454 82,526 30.154 30096 60,295 62,004 83337 Mene emrntFcc 5% 36,419 25,862 25,592 74.742 11 lll I, 57 32,863 30,652 29,293 R? Ifcem¢ntReserve 2% 1056R iD.3a5 10 37 9R99 a.aaa 7,223 13145 1 2fi 1 Tom10 enGo F,a naes 227.161 211,780 212.06i 214.190 R5,1164 93,129 184,741 170096 1 R8,087 NetO entin incomc 301,225 ?OS,466 299.776 290645 737.1G0 268,01.4 472,522 442,951 797.770 It should be noted that operating expenses remain sxlmost constant regazdless of occupancy. 2. As can be seen in die chart above, the NOI for the Eagan facility has dropped substantially due to the reduction of occupancy due to the July 2000 flood, the resulting inability of P1ainCiff to increase rental rates each year as the Pltrintiffhas been able to do in the years before the July 2000 flood at this facility, and as the Plaintiff has been able to do before and aRer 7uly 2000 at its other faciliries, as best shown by the results at the two comparable faciIities. In the Cnoss Potential Reni chart on the next page, the Gross Potential Rcnt for each year shows what the Plaintiffhad established at the beginning of each year as the increase in rents per square foot for all of the units on average in each facility. For exaznple, in Eagan, before 2000, Plaintiff increased on Average, the per square foot rental rates for 2000 by 5.66% over the actual 1999 per squazc foot average rental rates. Howover, due 103317.DOC3 11/03I2005 THU 18:03 FAX $12 366 1416 HALAER$ONGILLILANDMARTIN Marsha Eldot Devine, Esq. 7ames Cr. Golembeck, Esq. November 3, 2005 Page 7 10oosiozz to the July 2000 flood, you can see Plaintiff decided it could not raise the average per syuare foot rental rates thereafter, except to the 1'united amount as shown. For 2001 through the beginning of 2005, the average annual per square foot rental inerease is 3.4%. The average annual per square foot renttil incresisc for the same period in the St. Louis Park and New Brighton facilities was 18.9% and 17.5%, respecfively. As to Eagan, for the three years before the July 2000 flood, Ylaintiff was able to increase the annual per square foot rental rates by 5.11 % to 5.9%. Gross Potential Rent Locatioe Number of Tolal Munthly AauuN Average Averagc Anaual •/ C4aage Renfable Renm6le Crox. Grose Monthly Monthly Avcragc in Gross UniW Arco PottntlN Potcnlial RcntPer RentPSF Reu[PSF Po[eoGnl Uok 2005 Eagan 657 78.850 $64 552 $774,624 59825 $0.82 $9.82 O.18% 2004 ea an 656 78.700 564.433 $773,196 598.22 S0.92 $9.82 328% 2003 E an 656 78,700 562,397 $74&644 E95.10 50.79 $9.51 O.UO'/i 2002 Eagm 656 78,700 S62,387 S7<9fi44 $95.10 $0-79 59.51 0.00% 2001 En :un 662 78,700 562.387 S74R,644 $94.24 50.79 59.51 -0-02^ 2000E ?aa 662 78.700 $62400 S748,800 89426 80.79 $9.51 5.86°h 1999Fa nn 662 78.700 $58,9" 5707,328 $89.04 $0.75 F8.99 5.11% 1998 Eu un 663 711,950 $56081 567 972 $84.59 S0.71 38053 5.90°/a 1997Es a¢ 663 78,850 $52,959 $635,496 579.88 E0.67 $8.06 20055tLovisPatk 637 78100 $78917 5947004 S123.89 S1.01 S12.13 3.57% 20045tI.ouisPock 637 78.100 576,196 SSI4,352 S119.62 50.98 $11.71 3,48%. 2003 SL Louis Park 637 72,100 573,631 5883.572 $115.59 $0.94 $1131 0.01 % 2007.SS.leuisPark 637 78,100 S73_52l $8R3451 $115.57 $0.94 $11.31 SS8% 20DI Si Loui3 Pork 637 78 100 569,733 5836796 5109.47 $0.89 410.71 6.27%u 2WUSLLouisPadc 637 78,050 365618 5789,a16 $103.01 30.84 $10.09 9.05% 1999 SL Louix Park 637 78 USO SG ,174 572?086 594.46 $0.77 59.25 7.45% 199R SL Louis Perk 638 78,U50 556,000 S67 000 S87.71 SQ.72 58.59 4.60% 1997 St. Louis Parl: 638 78,050 $53 37 SW],444 583.91 $0.68 S9.22 2005Newyrin 563 62,150 S60.691 5728,292 Y107.80 50.98 $1172 522% 2004 NcwBri mn 562 GI 850 y57.680 5692,160 $302.63 50.97 S11.19 4.62%. 2003NcwHri=i[on 562 61,850 $55,030 5660360 f97.92 $0.89 $10.611 0.000% 20WMINN?Rn' 562 61850 $55.030 $660 60 S97.92 $6.89 SI0.68 1.72"k 562 61.850 S54,IOD Eb49,200 596.26 50.87 $10.50 5.70% 562 6I.880 S51,181 S614,172 S91.07 50.83 $9-93 5.30Y U 562 61,R80 548,603 5583 36 S86 .48 $0.79 T9.43 5.53% 561 67.780 $46,057 $552.684 582.10 $0_75 $8.95 4.473'0 3 561 61,780 544.087 5529,Ud4 578.59 50.71 S.Sfi As one can see in the chaxt in Secdon 2.C.1 on Page 6, the NOI before 2000 was: 1999 - $472,522 1998 - $442,951 1997 - $397,790 103317.DOC;3 1.1/03I2005 THU 18:03 FAR 612 366 1616 MALHERSONGILLILANDHARTIN Marsha Eldot Devine, Esq. James G. Golembeck, Esq. November 3, 2005 Page 8 The NOI for the years Pollowing the July 2000 flood was as follows: 2001 - $280,645 2002 - $299,776 2003 - $305,466 2004 - $301,225 4, The reduction in NOI is permanent unless a solution is provided so the facility nevet floods again and Plaintiff can honestly state to prospective tenants who call that it will never flood. Uoosiozz Even if a permanent solution is found so the property witl not flood, there remains a tong- temm stigma and resulting loss of NOT due to the fact that some prospecrive tenants will remember this facility flooded and/or will be so told by competitors, and because it will take years to build up the occupancy. 6. The more accuxate way to determine the loss of NOI (and resultinS loss in value to Plaiatiff's property) due to the July 2000 flood is to determine as of 7uly 1, 2000 what a knowledgeable buyer and selier of the pmperty would Agree is the fair market value of the property as of that date (pxe-flood). Since this in an income-producing property, diey would look at the Iast three years of revenue, expenses and NOI, and projeCt what the NOI would probably be in the future and decide what, therefore, a reasonable stabilized NOI would be. As can be seen in the chad in Section 13.2 on Page 3, occ;upancy at the Eagan facility in 2000 was the srxongest ever izz the fust half of the yeaz (January - June). As can be seen in the chart in Section C.1 on Page G, the NOI of $268,014 for the flrst half of 2000 cleazly shows that 2000 wou(d have been ttee best yeaz ever, thus resultzng in the highest value of the property. The IVOl for fhe first six months of 2000 was $268,014, which indicates the NOI for the entire year would hnve been at least as higl-4 if not higtrer, since as shown in the above occupancy chart, the second half-yeaz occupancy is typically stronger than dhe first hAlf. Therefore, the NOI for 2000 wotdd have been at Ieast $536,028 ($268,014 x 2), absent the July 2000 flood. For purposes oF analysis in tfus letter, we will use the NOI of $500,000 as the stabilizedNOI (even though 2000 would have been much higher, absent the July 2000 flood), As stated above, the NOT in the fall years following the Ju1y 2000 flood, was as follows: 2001 -$280,645 2002 - $299,726 2003 - $305,466 2004 - $301,225 103317.DOC;3 1-1/03I2005 THU 18t04 FAX $12 366 1616 HALAERSONGILLILANDMAATIN Marsha Eldot Devine, Esq. James G. Golembeck, Esq. November 3, 2005 Page 9 For purposes of this analysis, we will use the higlxest annual NOI after the July 2000 flood of $305,466. Eoioiozz Wtvle we realize that the testunony at tria] will be as to the Before Flood Value and the ARer Flood Value, a simpLe way to deterrnine the approximate loss in value is to take the difference in stabilized pre-flood NOI and the stabilized post-flood NOT and apply a capitalization rate to it. Appraisers may differ on approximate capitalization rates, but for now we will assume 7.5%. Therefore the loss in value is: $500,000 - $305,466 = $194,5341oss in NOI $194,534 w 7.5% capitalization rate =$2,593,7861oss in value The above loss in vtilue assumes there will not be another flood because a solution has been implemented. If there is no solution, the loss will be much greater now and even greater, perhaps a total loss, when it floods again. III. PROPOSED SOLUTTONS BX MNDOT AND THE CrTY OF EAGAN PItOVIDE LTTTLE BENEFIT TO PLAIIVTIFT AND ll0 NOT SOLVE THE PROBLEMS CREATED BY THE INADEQUATE STORM ARAINAGE SYSTEM AND RESUY,TING 2000 FLOOD When MnDOT built Highway 13 at its ptesent location, it forever altered the natural drranage ways in the area. Before t6e MnDOT project, stornt water in the area would flow northerly into the Miancsota River valley. MnDOT stopped the flow of storm water except to the extent it could flow out the MnDOT pipe under the road at an elevation of 795.5'. MuDOT should have provided a much lazger pipe for such outflow and an emergency spillway so the Plaintiif's property would not be subject to periodic flooding_ MnDOT and the City sfiould have planned, constructed and maintained a storm water drainage system so that Plaintiff's propezty would not he flooded in the future, as was the ca.se before the construction of MaDOT's Highway 13 project. 2. This is not just a question of whether MnDOT azid the City can rely on 100 Year Stoxm events far desigrung of the typical pond to Shield them from the financial consequences of their actions. Even if that were the case, MnDOT's and the City's failure to build and muintAin thc current system to handle a 100 Year Storm caused the flooding of Plaintiff's property in July 2000 and the resalting adverse impact on the value thereto rzmains the same, whether it be as a result of a 100 Year Storm or the strnm in July 2000, wluch was of greater magnitude. Portions of each building would have flooded thezt (and now) if there had only been a 100-Yeaz Storm, due to the failurc to build and maintain the storm sewer system as designed. The loss of occupancy and NOT would have been the same, 103317.DOC;3 1.1/03I2005 THU 18f04 FAX 612 346 1416 NALAER60NGILLILANDNARTIN Mazsha Eldok Devine, Esq. James G. Golembeck, Esq. November 3, 2005 Page 10 because tenants would assume that they were at the same risk if die flood had only bcen into a portion of each building. 3. We rcalize that MnDOT and ihe City may disagree with Plaintiff as to many facts and legal issues, but there should be no disagreement that the 2000 flood caused Plaintiffto lose substantial profits, from then to now, and imo the future, and that the value of the property has been substantially reduced. 4. Pronosed Solution No. 1 The solution proposed by Mn170T and the City is simply to temove the trees and brush that have grown up in Pond AY-6 since 1977 and to remove the silt down to elevation 795.5. As we stated at the mediation, that is required maintenauce in any event and wi11 orily perhaps add a minor amouni of additional storm water holding azeA, pzesupposing MnDOT maintains the azea in the future, 5. Proposed 5olution No. 2 Upll/022 This solution proposed by MnDOT and the City is similaz to Solution No. 1 with the addition of excauating Pond AP-6 down tkuee additional feet. We understand this wi[1 be a`wvet pond" for desired water quality reasons mandated by the State or Federal Government, sud thereforo no additional storm water holding is provided (if that is not the case, please advise). We agree that perhaps the silting in of this deeper pond may therefore take longer than in the past until it reaches 795,5', but silt removal is part of normal inaintenance in any evem. The only benef ciaries of tlus solution aze the City and MnT70T to the extent that they aze required to upgrade water quslity discharges from this pond in any event, IV. SUIVIMARY OF PLAINTIFF'S FINANCTAL LO5SES As we noted at the outset, the Plaintiff and its experts are now analyzing the above numbers in mare detail and changes will likely be made in the fizture. In any event, the numrezs are compelling and show how the July 2000 flood caused substtzntial financial losses, suminazized as follows: 1. $190,585 in direct costs related to clean up and repairs after July 2000 flood, not included in normal operating expenses, plus 20% for Plaintiffls overhead and administrative time, etc. 2. A suhstantial loss ofN01 from the July 2000 flood to present using a stabilized NOT from 2000 (assuming no flood). 103317.170C7;3 ?1/03/2005 THU 18106 FAX $12 346 1616 NALABA$ON61LLILANDMARTIN Marsha Eldot Devine, Esq. James G. Golembeck, Esq. November 3, 2005 Page t 1 3, A substantial loss of NOI from the Jnly 2000 flood to present, using a reasonab]e projected growth ofNOI as of date of July 2000 flood, which would have been anticipated, 4. Plaintiff's cost to cure - to be determined once we know what MnDOT and the City will allow as to use of MnDOT's and City's properlies. 5. Permanent loss of value if no solution is implemented. 6. Remaining loss in value due to stigma, even if a permanent solution is implemented. V. CONCLUSION T'he Pltiintiffs origiaal Claims were as follows: Trespass 2. Nuisance 3. Negligence 4, Inverse Condemnation 5. Due Process Violation The trial court dismissed all of the Claims. The Court of Appeals reinstated Ciaim No. 3 and CLaim No. 4 above. The trial court then dismissed the reinstated Claim No. 4 0£ Adverse Possession, leaving Clai.m No. 3 of Negligence. We wi]I make an offer of proof as to Claim No. 4 at trial. At the conclusion of the jury trial, regazdless of the verdict, we will appeal the trial court's dismissal of that Claim to the Minnesoia Court of Appeals because of tha significant damages and permanent loss of value to the property, even if a solution is implemented. There is no maximum damage limitation under inverse condemnation. We expect to prevail at the Court of Appeals and NIinnesota Supreme Court, if necessary, Upon remand, we expect to win a substantia] jury award as to Claim No. 4, and Claim No. 1 azid Claim No. 2 if the Minnesota Supreme Courc reinstates those Claims. If no solution is implemented and Plaintiff s property is flooded again, Plaintiff will sue again, not only for damages then sustained but also for a permanent taking of a flowage easement over the enNre property (if the AppellAte Courts had not already ruled in Plaindff's favor based on the two floods to date). 0Q12/022 103317.nOC;3 il/03/2005 THU 18106 FAR 612 366 1616 NALAER$ONGILLILANOKARTIN 2013/022 Mazsha Eldot Devine, Esq. 7ames G. Golembeck, Fsq. November 3, 2005 Page 12 As we stated at the mediation session, the Plaintiff is not in a posi6on at this lime to make a settlement demand since Plaintiff does not know if MnDOT will allow the dikes to be built on MnDOT's propexty and if the City will agree to the improvements needed on City property. If the above are allowed, Plaintiff can then calculate the cost thereof, and make its demand. Plaintiff asks that IvtnDOT and the City do not spend any money on Solution Nos. 1 and 2 since they are of no or limited benefit to Plaiatiff. Plaintiff would ratlter have that xnoney available to lielp implemem a permanent solutioa and help pay for its losses to date. Please advise anyone to whom you provide a copy of this letter, or to whom you provide any oF the data herein, that the data is subject to a Protective Order, dated Decemtber 2004. If you ]aave any questions conceming the above, please call. Very huly yours, Bruce D. Malkerson BDM:dIm ce: The Honorable Robert G. Schiefelbein- VT.A Ft1CSIMILE AND U.S. MAIL Chazles Nolan Howerd A. Ros[on 103317.WC;3 ? ??? IIL ?.?? QL ? QF IXS-/-a???a-Mf ? ? ? ?v°L ws cv °? ar . - ? N ?--4v y° i-- PIPE UNE EASN£NT PfR OOC No 5Ja5B5 -- i ??'.axx .?or.s '" .?ae .msr .ws .mv . evsr .r.ae .wa+ .e?? .?.saxs? s : •?y"_? 1 D' -? ?r ?s ? }?r`'? VP ne° °?ts , ??•'. ,, a+.ec c Is1? sJ LOT 1 l u, voo sA a?ouvc a ?` i-?, ma? .aco ? ?'eov •e5T3 .eots .ana? •'?f .3af . acc? ' `W^s -`?- 1 n?., ?? ? •EGf1 •DCA! l02/ y? •W4l •OWS i1fl./ •!QS( .TEO •161)? • O •?I t?? ?? ?? 5 ? ' =' ' ..?. ? g?,m?N?3? -?,a?sa t ?? 13,a•o?? ?? B??,N? ,?? BLOCK 1 ? , y wus mst ? ? m?.s Ma?_- " s4!' _ " hS! ' ' fes --?•'--?-''-'-adtj'- .e¢a .eoc7 ew •?u.s ?? .mcz .em8? ? ?.•i, ?. ,q, /,/'7 •ms.t .msr ana \ aws ?, . .ems ? .rou • , ??.. .,a, l,'?, "•, ,? / Ay ? y,^ ues ' • ,-,V? ? f ?` BUL07NGS 7t `Aao3R ? h, 4oosR ? ? BCtlLDJNG Ip ? ? 0 ? 'm"i ? aa> kil mso mso ?s ? ? -? •:'?-=--Ek 1 " Sm Sa7 aLae???""'"""&?T .ea+a acda ,axr .aw.s •\`eo.2a ? .ecaa .saa .aw,? •eme ar.a .Qaao \ eutt aw??vosrnwl?'»J \ .ear.o ?' w? i: u??. V :ii:: ?,B(NLDlNC ? 4VQDSA J ? ?°°i' .?.a `• Ia° . `. a ?amr ?e?ws 'ew.? ?e°a+cs eoar ??e .axv/ /? ? ma0 / ewz mv ° roxaf? ??/oaa# Hl.9LDlNC & ?. /? ?' ' •tor. •4Y.6 ? ,? .? •.m? ? ___.? m.: .w.. =v .w, .w. 9 r ryk ? ? \`' .?r ? •amce-ew':.°-y.?7'_ ? .ra.r .evae 4as0 ? 4e3wr-e BCQLDING 4' ? ? ?/ /i 00,p0? sic '°'r-??? g9QticF • .Dw-? 1 .m.sr II?? f ? °?'e'2eas• .sww •°?w? , 4C?M1°' g •7 AM - `_- - '_`-?__ _- ------------ J ? \ yma? -sw, ..ooer. d4T •__,? ?"- ? ? MtiSdB'15'38'E 58?7'!4'10'£ .. Y O W N N H 2 C ? -? GS ? di?l P ?-ans.a_?? •uxa "'??y? Y N i lOL1 ?l./ .ml.f I. QR? .V? W OM.I M].J ? ?V? p P M1D CJ).l ?'Y F? ps ' ? t- oc x? ?`ll \9. axs ?e x ??? knJ. °?? cn ad1Q'° ?a'? /? p / A ?•? ? / N ?m,.e ?. • i ? i?? ? ,q • H 'c. 0 Y P N Eagan Flood Costs 2000-2004 ? ? ? r. ?i Cd Year 2000 2001 2002 2003 2004 Flood Expensas 2000 - 2004 YTD Nate; These expenes do not inctude legal costs Total 170,453.00 8,345.01 5,819.00 4,968.00 0,00 190,585.01 eagan flood no legal cosLxls Page 1 Month Vendor July AspLaltResto[ationTechnology July Restoration Cleaning July DazrenAune July DarrenAune July DacrenAuae July Regional Manager July Sandra Lachman July Operatioas Coordi.oazot July Foss Sweepine & Plowing July Hiawatha Reddy Rents July Kowski Roil-Off Semicc JUIy OPM Pallet Rxycling Division July OPM Pallet Rxycling Division July CD Nolan & Sans July HiawathaReddyRenls July IliaivathaReddyRents July OPMPaIIetRecyclingDivision July Manager July Manager July Labar Ready July LaborReady JUIy Seasonal Landworks July Delta Protective Services July Da1laProtecliveSen2ces July TimberN-Turf July MADistrictD4aoager July MADismictManager July Area Menager July CD Moian Bc Sons August City o£Eagau August EcolabPestElimination August Delta Prokctiva Sen•ices August SpeedR•aySuperAmerica August Seasonat Landworks August HcrizEquipmeneRental August Manager Augusi 1vIAAegionalManegei Eagan Flood 2000 Expenses Description Total Asphal[ Repair 1,505.00 Apt Cazpet Extraclion - Flood 240.00 Labor- Flood 700.00 Boxas - Flood 3,792.00 Mileage - 70 Miles - Flood 23.00 . Halp, Walkie Talldes, Film, Food - Flood 450.00 Squeegee- Flood 18.00 Boxes, Paper, b4ileage - Flood 219.00 Sn•eeping Lot - Flood 675.40 Tape, Paper - Flood 74.00 Gazbage Removal - 7,9-I4 - Flood 8,327.00 438 Pallets • Flood 1,633.00 20 Pallets - Flood 746.00 Lunch - Flood Letters - Flood 11.00 Rent Dryeis for Apt Rugs - Flood 166.00 Ren1 Dollies, Boxes, Tape, Paper - Flood 856.00 100 Pallets - Flood 373.00 Bags, I,abor, Lunch, Waler, BLrs - Flood 270.00 Lunch, Gas, Sobcat fluel, Deod • Flood 252.00 CIean Up Labor • 7110-14 - Fload 3,561.00 Clean Up La6or- 7/14-20 - Flood 2,744.00 Bobcat Clean Up - Flood 1,998.00 Securiiy Officer - 7/9-10 - Flaad 1,318.00 Security 015cer- 7/10-15 - Flood 2,669.00 Loader, Dump Labor - 7!I I-15 - Flood 2,966.04 Clean Up Help • Iiolel, Car, Pkg - Flood 439.00 Clean Up Help - Fbod - Flood 61.00 Clean Up Fxpeuses - Flood 1,504.00 7/31 Pay- Bonus - Flood 892.00 PoGce Covernge - Flood 7,076.00 Replaca Rodent Packages - Flood 59.00 7/16,7124 Securiry Officer-flood 4,510.00 6/23,7/20 Gas - Flood 132.00 7/17,21 Bohcat- Gazbage Cleanup Flood 1,633.00 7110,20 Skid I.flader - Flood 1,430.06 Odo Ban, LgiBulbs, Lunc6, Mopa-Flood 164.04 Car Rent,Gas,Dinner,Hotel,Park - Flood 197A0 eagan flood no legal cost.xls Page 2 August ChiefFinancialOf}icer August Cluef Finaucial OfScer August K'vby Stewart August CD No[an & Sons August HiawathaReddyReais August Kowski Roll-OffSen-ice August La6orReady-LaborForceofMN AtlguSl D4anager August SeasonalLandworks August VaskoRubbishRemoval August Galfery ofFloors August Rowe Landscape August SpeedmaySupcrAtntrica August CD Nalan & Sons August CD Nolan & Sons August La6orReady-LaborForceofMN August Manager August EZ A'u Pazk Iac_ August Its Appliance August Maneger August Manager August North Country Conccete, Inc August EZ Air Pazk Inc. August EZ Air Pazk Fnc. August AegionalManager August Regianal hlanager August Regional hlanager August Home Depot August Home Depoc August Home Depot August Manager August Speadiasy Super America September Bannecs co Go September Chazles D. ITOIau September (,Lrt Callister September Clean Sweep Plus Inc. September Vaslo Rubbish Removal, Inc. September Area b4aaager Septernber A:eabtauager September MazshaRoaenhorst Octobet Gazeiick Steel Co. Inc. Oclober LaborReady-taborForceofMN October Labor Ready-Labor Force of MN Bmces - Flood 954.00 Mileage to Eagan - Flaod 22.00 Dry WaII Apc, and office - Flood 850.00 Air Park Help - Encigh[, Wlritaker- Flood 1,025.00 Boxes, Tape - Flood 375.00 7/15,7/19 Pick up Trash - Flaod 2,832.00 7/21,7128 Labor - Flood 999.00 Ice, Water, Luuch - Flood 125.00 7/26,8i4 Clean Up - Flood 3,290.00 7/10,713I Dumpsier - Flood 18,187.aG 1/2 CarpetslLinoleum - Flood 1,022.00 SO hrs. Bobcat - Flood 4,000.04 Correction on Invoice totel - Flaad -1.04 8115 Temp Help - Flood 450.04 8115 &xtra Ma'sntenance Wages - Flood 35.00 7l31,814 Clean up Labor- Ftood 1,026.00 (ce, Water, Lunch - Flood 72.00 Pay Back Workera at Eagan - Flood 402.00 32 Appliances - Flood 320.00 Dehuwidifie{ Appiisace Disposal-Flaod 190.00 Ice, Gloves - Flaod 39,00 Aprou Repair/Replacement • ivash out 4,065.00 2 People work at Flood Cleanup 58.00 Bobcat- Gas Air Park- Ga, SA Card-flood 11.00 Flood Boxes - Flood 123.00 Room Chazges, Managers - Flood 1,042.00 Camper Dzp & Reu(al - Atanagers-Fload 262.00 Floor Dry - Flood 19.00 Gloves - Flood 7.00 Sprayer for Odor Ban - Flood 9.00 PJater - Flood 29.00 7/23,8)22 Gas - Flovd 17.00 "No Tiash" Sigas - Flood 32.00 d{otal Exp-MI People - Halp Fload 2,458.00 7i9,10, 1142 Milea . Help@ 17 • Flaad 14.00 Duct Ckaning - Flood 170.00 V00 (FfoodRegair) 3,503.00 Odo-Ban - Flood 10.00 Cleaning ApL atber flood i08.00 Pictures of Flood 10.00 Repair Rusted U-Chaonel in UniLs 146.00 9/22 Clean Units, Move Pallets - Flaod 203.00 eagan FlobZs no?e°gar ost.xQs e Pallets-FIood 459.00 Page 3 October Odober October October October octoQer October October October October November Novamber December Jufy - Dec July - Dec July - Dec Ju1y - Dec July - Dec July - Dec July - Dec July - Dec July - Dec Vaskn Ru6bish Removal Galfery af Floors Mitchell Painting Inc. Ron Olhaan NolanBras. ofTexas Home Depot Home Depot Home Depot Mazchrom Vasko Norih Country Cancrete Inc Arclritechual Sheet 1vIefal Co. John Nolan 9(00 (flood repair) Carpet,Lino-0ffce/Apt - F[ood PainUOffice/Reshnom - Flood Paneling, Dusk Mask, - Flood NBTX Emp3oyees Labor & Tcavel•Flood Office \Vall Repair (flood) Of&ce Renavation (fload) Floar Cleaning Suppfies Lawning Mowing - Due to Equipmenc Damsge 9/25 & IO,n Extra Trasb Pick Up - Flood Tenants Apron Repairs Galvanized Angle - Rpr. WaILs 1/2 Airfaze for Pat & Skve (Flood) MiSCELLANEOUS COSTS..... Rcofal for EZ Mini Storage Bob Cat Labor for EZ A1ini Stoiage Staff: Labor for EZ Mini Sw:age Staff: Labor fot EZ Mini Storage SlafE Labor for E"L Mini Storage Staff: Labor for EZ r4ini Storage Staff: Labor for EZ 1liini Smrage Staff: Labor for EZ Mini Smrage StafE Labor for EZ Mini Storage Slaff; Rental - 8 wceks @ $728 wk (Reddy Rent Rate) Tom Witt - 6 waeks @ $953 (Maintenance) Iton Olima¢ - 8 weeks @739 (Mainlenauce) Danette Hill - 1 month (Supervisor) Patty Vold - 1 monlh (Supervisor) Charlie No[an 80 hours Q$20o/HR (Owuer) John Nolan- 40 hwrs @ $200rHR (pamer) Darrca Aune - 40 hours @ ^y 1001HR (CFO) Jody Hudson, 80 hours To[al Flood Eaptlcse 2000 eagan flood no legal cost.xls 814,00 1,262.00 549.00 273.60 4,775.00 16.00 24.00 22.00 320.00 58.00 1,318.00 54.00 362.00 5,824.00 5,718,00 4,434.00 7,092.00 5,118.00 i6,OD0.Q0 B,Ua0.00 4,000.00 1,818.00 17Q453.Q11 Page 4 Eagan Flood 2001 Expenses Manth Vendor Description Tola1 March TomWitt ApplianceDisposal-Le80verFmmFlood SO.W April Vaska Flood - Gazbage Left Over 90152 February AomeDepot WataHeatetReplacement-FloodRelated 326.96 April Nordic Fumace Repair • Flood Related 70350 August MiortesoraRoadways AsphaltRepair-SurFaceDamageFmmFtood 2,735.00 hlovember Baznum Gate Gate Replacement - Flood Related 2,90938 November City View Ga1e Replacement Electrical -Flood Rckted 326.00 December Bamum Gatc Gafe Switches - Gele Replacement 21.15 DeCember Bamum Gate Chain Bolt- Gate Replacement 195.63 Agril Labor Rcady F1ood - GarbageJlabor Lo ltemove 918.00 April Danerte Hill Door Replacment - Flood Relatod 255.87 Tn(a! Flood Eapense 2001 9,345.01 eagan ilood no legal cost.xls Page 5 Eagan Flood 2002 Expenses Month Vendor Description 7otal December Danette Hill Hote1 Room - Aparnnent Mo1d Due lo Flood 588.41 July Indoor Air Specialists Vent Clean Out - Mold due to Flood 266.20 November Tme Seal America Apron Itepairs - Weekened Aprons 3,345.00 November Home Depol S¢pplies Io Clean Apt. Mold - Flood Relafed 70.53 November Home Depot Supplies to Clean Apt, Mold - Flood Related 117.73 November Tom tiVitt Rent a Vent- Mo1d in Ofiice & Apt - Flood Related 159.79 November Home Depat Dehumidifyer- b4old in Apt Office - Flood Ralated 169.34 October Nauci Bloom UPS Delivery Charge - VFiS Tape to Attay 837 October Nenci Bloom Duplieate VHS Tape 34.03 Octohef ReiuFiofer Asphalt biaintenance Asphalt Repairs - Weakened Surface -Flood 1,100.00 TatalFTood Srpesse 2001 5,8I9.DD eagan Ilood no legal cost.)ds Pa9e 6 Eagan Flood 2003 Expenses Month Sepiember Vendor Reinhofer AspLati blainGenance Description Asphalt Repairs - Flood Surfaca Damage Tatat Fload Espense 2003 eagan flood no legal cosf.xis Total 4,968.00 4,968.00 Page 7 Eagan Flood 2004 Expenses Month Vendor Descriptlon 2004 Tatal Flood Cost eagan flaod no legal cosLxls Total 0.00 Page 8 1/ip ?jc?Ri6-S L/UaS? S: ?/<5 l.GLe.^*- lo4?, I STATE OF MINNESOTA IN COURT OF APPEALS A03-616 Nolan and Nolan, a Minnesota Partnership, Appellant, vs. City of Eagan, Respondent, Minnesota Department of Transportation, Respondent. Filed December 30, 2003 Affirmed in part, Reversed in part, and Remanded Kalitowski, Judge Dakota County Disri-ict Court File No. C9-02-9121 Michael C. McCarthy, David F. Herr, Maslon Edelman Borman & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402; and Howard A. Roston, Bruce D. Malkerson, Malkerson Gilliland Martin, LLP, 1750 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402 (for appellant) James G. Go]embeck, Jardine, Logan & O'Brien, P.L.L.P., 8519 Eagle Point Boulevard, Suite 100, Lake Elmo, MN 55042 (for respondent City of Eagan) Mike Hatch, Attorney General, Marsha Eldot Devine, Ann K. Bloodhart, Assistant Attorneys General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondent Department of Transportation) Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge. SYLLABUS 1. When it is uncertain whether a landowner who alleges the government caused its property to flood can establish that the flooding constitutes a taking, the landowner can simultaneously petition for a writ of mandamus seeking inverse condemnation, and, in the alternative, file a complaint alleging tort claims. 2. The statute of limitations provision in Minn. Stat. § 541.051, subd. 1(a) (2002), applies to claims against a property owner for trespass, nuisance, and negligent construction and design, but not to claims alleging negligent maintenance, operation, or mspechon. OPINION KALITOWSHI, Judge Appellant challenges the district court's dismissal of both its mandamus action and its tort claims for failure to state a claim upon which relief can be granted, arguing that the district court erred by determining that: (1) appellant failed to state a takings claim; (2) appel]anYs mandamus action failed because appellant had an adequate remedy at law; (3) as a matter of law appellant was prohibited from pursuing mandamus and tort claims simuitaneously; and (4) the statute of limitations barred appellanYs trespass, nuisance, and negligent construction, design, maintenance, operation, and inspection claims. FACTS Appellant Nolan and Nolan, a Minnesota Partnership, owns and operates EZ Mini Storage on property abutting Sibley Memoria] Highway in the City of Eagan. EZ Mini Storage rents space to tenants for the storage of personal property. Appellant has owned 2 the property for more than 20 years. At approximately the same time appellant was constructing the storage business on its property, respondent Minnesota Department of Transportation (MnDOT) began constructing Sibley Memorial Highway. In connection with its construction, MnDOT constructed a storm sewer system. In its complaint and petition for a writ of mandamus, appellant alleged that MnDOT and the City caused numerous incidents of flooding on appellant's property, and that the flooding has been and will continue to be frequent, regular, and permanent. Specifically, appellant alleged that MnDOT and the City's negligent design and construction of their storm sewer systems, and their failure to exercise reasonable care in the maintenance, repair, and operation of those systems caused the flooding. Appellant alleged its property most recently flooded on July 8, 2000, causing damage to its building, the building's contents, and its tenants' personal property. On July 3, 2002, appellant filed a petition for a writ of mandamus, seeking an order requiring MnDOT and the City to initiate inverse condemnation proceedings. In the alternative, appellant filed a complaint alleging trespass, negligence, nuisance, and violation of due process. On November 27, 2002, the district court granted MnDOT's motion to dismiss all of appellant's claims against MnDOT for failure to state a claim upon which relief can be granted. The City remained a party. Subsequently, the City and appellant stipulated to dismiss the case without prejudice and this appeal followed. ISSUES 1. Did the district court err in dismissing appellanYs inverse condemnation claim on the -plzadings? 3 A. Did appellant adequately state a takings claim? B. Did the district court err in dismissing appellant's taking claim on the ground that appellant had an adequate remedy at law? C. Did the district court err in concluding that appellant could not pursue tort claims and a writ of mandamus simultaneously? 2. Did the district court err in concluding the statute of limitations barred all of appellant's tort claims? ANALYSIS When reviewing a dismissal for failure to state a claim upon which relief can be granted, an appellate court must only determine whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997). This court accepts the facts in the complaint as true and makes all reasonable and favorable inferences in favor of the plaintiff. Pullar v. Indep. Sch. Dist. No. 701, 582 N.W.2d 273, 275-76 (Minn. App. 1998). Whether the plaintiff can prove the facts alleged is immaterial. Stead-Bowers v. Langley, 636 N.W.2d 334, 338 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002). An appellate court will not uphold a dismissal for failure to state a claim "if it is possible on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded." tllartens v. Minnesota Mining & A1fg. Co., 616 N.W.2d 732, 739-40 (Minn. 2000) (citing N. States Power Co. v. Fraitklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963)). 4 I. The Minnesota Constitution requires the government to compensate a property owner when it takes the owner's property. Minn. Const. art. 1, § 13. A"taking" is any interference "with the possession, enjoyment, or value of private property." Minn. Stat. § 117.025, subd. 2(2002). When the government has taken property without formally using its eminent domain powers, the property owner has a cause of action for inverse condemnation. Alevizos v. Metro. Airports Comm'n of Minneapolis & St. Paul, 298 Minn. 471, 477, 216 N.W.2d 651, 657 (1974). Actions for inverse condemnation must be brought to the court through an action in mandamus. Thomsen v. State, 284 Minn. 468, 474, 170 N.W.2d 575, 580 (1969). A district court reviewing a petition for a writ of mandamus must decide whether a taking of property has occurred in the constitutional sense. Gibson v. Comm'r of Highways, 287 Minn. 495, 498-99, 178 N.W.2d 727, 730 (1970). While either party may request a jury trial on the issues of fact, the couR ultimately decides whether a taking has occurred. Alevizos v. Metro. Airports Comm'n, 317 N.W.2d 352, 359-60 (Minn. 1982). A. Did appellant adequately plead a takings claim? Appellant argues that the district court erred by conciuding it failed to state a takings claim. Appellant contends that its claim of frequent, regular, and permanent flooding in its complaint was sufficient to survive a motion to dismiss on the pleadings. We agree. "Whether occasiona] flooding is of such frequency, regularity, and permanency as to constitute a taking and not merely a temporary invasion for which the ]andoumer 5 should be left only to a possibie recovery of damages is a question of degree, and each case must stand on its own peculiar facts." Nelson v. Wilson, 239 Minn. 164, 172, 58 N.W.2d 330, 335 (1953) (concluding that a taking occurred where state's construction of dams resulted in periodic flooding and land remained wet and flooded for several years). Flooding is permanent if it imposes "a servitude of indefinite duration," even if intermittent. Spaeth v. Ciry of Plymouth, 344 N.W.2d 815, 822 (Minn. 1984) (citations omitted). Thus, intermittent flooding may, under some circumstances, constitute a taking. See id. (concluding that flooding by construction of storm water holding pond constituted a taking where landowner's property had remained flooded for past three years and it appeared likely flooding would continue); Caponi v. Carlson, 392 N.W.2d 591 (Minn. App. 1986) (concluding that a taking occurred where city utilized landowner's ]and as a storm water holding pond, land was permanently flooded, and landowner had no use of property), reviewed denied (Minn. Oct. 29, 1986); see also Wilson v. Ramacher, 352 N.W.2d 389, 394-95 (Minn. 1984) (allowing landowner to amend complaint to include inverse condemnation claim where landowner claimed the city's diversion of surface waters rendered his land unfit to use). Other cases have concluded ihat intermittent flooding did not constitute a taking. See Yern Reynolds Constr., Inc. v. Ciry of Champlin, 539 N.W.2d 614, 619 (Minn. App. 1995) (concluding that because evidence indicated all parties viewed drainage easement as temporary, landowner had tort claim rather than inverse condemnation claim), review denied (Minn. Dec. 20, 1995). But, significantly, this case was decided on summary judginent and judgment on mandamus, not on the pleadings. Id. at 615. 6 Here, the district court concluded that appellant's claims of flooding failed to rise to the level of a taking. But the district court's conclusion is not supported by the pleadings, which must be accepted as true. The pleadings allege: (1) MnDOT and the City caused numerous incidents of flooding; (2) the flooding has and will be frequent, regular, and permanent; and (3) the last incident of flooding occurred on July 8, 2000. Because it is possible that appellant could produce some evidence consistent with appellant's theory to grant the relief demanded, we conclude that the district court erred in finding that appellant failed to state a takings claim. B. Must appellant's mandamus action be dismissed because appellant had an adequate remedy at law? Appellant also argues that the district court erred in dismissing its petition for a writ of mandamus on the ground that appeilant's alternative tort claims indicated that appellant had an adequate remedy at law. We agree. "Mandamus is an extraordinary legal remedy awarded, not as a matter of right, but in the exercise of sound judicial discretion and upon equitable principles." County of Swift v. Boyle, 481 N.W.2d 74, 77 (Minn. App. 1992) (quoting State ex rel. Hennepin County Welfare Bd. v. Fitzsimmons, 239 Minn. 407, 422, 58 N.W.2d 882, 891 (1953)), review denied (Minn. Mar. 26, 1992). On appeal, this court will reverse a district court's order on an application for mandamus relief "only when there is no evidence reasonably tending to sustain the trial court's findings." Coyle v. City of Delano, 526 N.W.2d 205, 207 (Minn. App. 1995). When the district court's decision on a petition for a writ of mandamus is Uased solely on a legal determination, this court reviews that decision de -, novo. Demolition Landf:ll Servs., LLC v. City of Duluth, 609 N.W.2d 278, 280 (Minn. App. 2000), revietiv denied (Minn. July 25, 2000). Appellant argues that the district court erred in dismissing the mandamus action on the pleadings because appellant had an adequate ]egal remedy for its alleged injuries. Before a writ of mandamus may be issued, a petitioner must establish: (1) an official has failed to exercise a duty required by law; (2) due to this failure, petitioner is specifically injured by a public wrong; and (3) there is no adequate alternative legal remedy. Coyle, 526 N.W.2d at 207. Here, the district court concluded that appellant was not entitled to mandamus because appellant had an adequate remedy at law, in part because appellant sought damages for trespass, nuisance, and negligence. But appellant petitioned for mandamus to compe] MnDOT to initiate inverse condemnation proceedings. And if the district court determined that the flooding did not rise to the level of a taking, it sought remedies for trespass, nuisance, and negligence. Appellant asserts, and we agree, that legal remedies are necessarily inadequate if a taking occurred. Because we have determined that appeliant has adequately pled a takings claim, we conclude that the court erred in dismissing the mandamus action on the ground that appellant had an adequate legal remedy. C. Can appellant simultaneously pursue a takings claim and tort claims? Appellant argues that the district court erred in concluding that it was not entitled to mandamus because it pursued mandamus and tort claims simultaneously. We agree. As discussed above, mandamus is not available if an adequate legal remedy exists. Minn. Stat. § 586.02 (2002). Vlinnesota law further provides tltat: 8 [n]o pleading or written allegation, other than the writ, answer, and demurrer, shall be allowed. They shall be construed and amended, and the issues tried, and further proceedings had, in the same manner as in a civil action. The demurrer need not be noticed for argument, but the issues raised thereby may be disposed of as are other objections to the pleadings. Minn. Stat. § 586.08 (2002). Thus, the statute provides that pleadings or other written allegations are not permitted in a mandamus proceeding. But the statute is silent on whether a petitioner can jointly petition for mandamus, and alternatively, file a separate complaint alleging tort claims. However, the statute provides that further proceedings should be conducted "in the same manner as in a civil action." Minn. Stat. § 586.08. And Minn. R. Civ. P. 8.05 provides, in relevant part: "A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds or both." While no case has directly addressed this issue, we conclude that caselaw indicates that a petitioner can properly pursue mandamus and tort claims simultaneously. See Wilson, 352 N.W.2d at 394 (stating that "[a] landowner whose property has been flooded by the alleged actions of a municipality has several possible remedies or causes of action, such as negligence, nuisance, trespass, and inverse condemnation"); see also Ciry of Minneapolis v. Meldahl, 607 N.W.2d 168, 172 (Minn. App. 2000) (finding that appellant had not made an inverse condemnation claim even when court liberally construed pleadings); City ofMaple Lake v. Am. States Ins. Co., 509 N.W.2d 399, 404 (Minn. App. 1993) (stating that in any takings claim "the possibility will exist that the claim could 9 have been cast in ternts of trespass or nuisance" (citing Alevizos, 298 Minn. at 483-84 n.l, 216 N.W.2d at 660)), review denied (Minn. Feb. 24, 1994). In YYilson, after determining that the landowner's negligence and trespass claims were barred, the court expressed regret that the landowner had not included an inverse condemnation claim in his complaint. Wilson, 352 N.W.2d at 394-95 ("Unfortunately, plaintiff's complaint, notwithstanding its verbosity, neither alleges a taking nor asks for inverse condemnation."). The court granted the landowner leave to amend his complaint to include an inverse condemnation claim, which necessarily included a petition for mandamus. Id. at 395; see Thomserr, 284 Minn. at 474, 170 N.W.2d at 580 (concluding that actions for inverse condemnation must be brought through an action in mandamus). Judicial efficiency and economy also persuade us that a landowner should be able to seek inverse condemnation by petitioning for mandamus, and alternatively, file a complaint, particularly where, as here, it is uncertain whether the landowner will be successful in establishing that a taking occurred. Because of the Minnesota Supreme Court's decision in Wilson and the interests of judicial efficiency, we conclude that a petitioner is permitted to simultaneously pursue an inverse condemnation claim by way of a petition for mandamus, and alternatively, tort claims. II. Appellant contends the district court erred in concluding all of its tort claims were barred by the s[atute of limitations proeision in Minn. StaL § 541.051 (2002). The statute provides in relevant part: 10 (a) Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property ... shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury ... nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction. Date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or the owner's representative can occupy or use the improvement for the intended purpose. (b) For purposes of paragraph (a), a cause of action accrues upon discovery of the injury... (c) NOthing in this section shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession. Minn. Stat. § 541.051, subd. 1(a)-(c). A party seeking application of a statute of limitations, which is an affirmative defense, bears the burden of establishing that the claims are time-barred as a matter of law. Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988). Construction and applicability of a statute of limitations is a question of law, which appellate courts review de novo. Benigni v. County of St. Louis, 585 N.VV.2d 51, 54 (Minn. 1998). This court construes Minn. Stat. § 541.051 narrowly, but still gives effect to the plain language of the statute. Pac. Iridem. Co. v. ThompsoiT-Yeager, Inc., 260 N.W.2d 548, 554 (Minn. 1977) 11 (superseded by statute on other grounds as stated in O'Brien v. U.O.P., Inc., 701 F. Supp. 714 (D. Minn. 1988)). Here, the district court concluded that appellanYs tort claims were barred by the statute of limitations because appellant was required to bring a tort action within two years of the discovery of the flooding damage, or in any event, no more than ten years after the completion of the construction of the storm sewer system. Appellant first argues that Minn. Stat. § 541.051 does not apply here because the alleged flooding does not arise from a"defective and unsafe condition." We disagree. The question of whether injury to property arises out of a defective or unsafe condition is one that tums on the individual facts alleged in the complaint. Griebel v. Andersen Corp., 489 N.W.2d 521, 523 (Minn. 1992). Appellate courts consider the phrase "defective and unsafe" collectively. Id. An improvement to real property is deemed defective and unsafe if it is incomplete, faulty, dangerous, and/or insecure. Id.; Fivelarid v. Bollig & Sons, Inc., 436 N.W.2d 478, 480 (Minn. App. 1984), review denied (Minn. Apr. 24, 1989). The Minnesota Supreme Court has implicitly found that flooding caused by a storm sewer system constitutes a defective and unsafe condition by determining that the statute of limitations applied to claims of negligent design and construction of these systems. See Capitol Supply Co. v. City of St. Paul, 316 N.W.2d 554, 555 (Minn. 1982); Ocel v. City of Eagan, 402 N.W.2d 531, 534 (Minn. 1987). Therefore, we conclude that appellant's complaint alleged a defective and unsafe condition. 12 We also conclude that a storm sewer system is an improvement to real property as contemplated by Minn. Stat. § 541.051. Improvement is defined as "a permanent addition to or betterment of rea] property that enhances its capital value and that involves the expenditure of la6or and money and is designed to make the properiy more useful or valuable as distinguished from ordinary repairs." Brandt v. Hallwood Mgmt. Co., 560 N.W.2d 396, 400 (Minn. App. 1997) (citing Pac. hzdem. Co., 260 N.W.2d at 554). In determining that the statute of limitations applied to claims of negligent design and construction of storm sewer systems, the Minnesota Supreme Court has implicitly found that storm sewer systems constitute improvements to real property. See Capitol Supply Co., 316 N.W.2d at 555; Ocel, 402 N.W.2d at 534. Appellant also contends that the district court erred in finding that Minn. 5tat. § 541.051 applies to owners of real property. We disagree. Minn. Stat. § 541.051, subd.l(c), provides: "Nothing in this section shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the rea] , property improvement against the owner or other person in possession." Appellant construes this language to mean that claims against a property owner can never fall within the statute of limitations provision ofMinn. Stat. § 541.051, subd. 1(a). But by the statute's plain language, only claims of negligent maintenance, operation or inspection against a property owner are outside the statute of limitations provision. Because the statute of limitations applies to appellant's negligerit design and construction claims, and more than ten years have etapsed since substantial completion of 13 Sibley Memorial Highway, we conclude that the district court properly dismissed these claims. But we conclude that the district court erred in dismissing appellanYs negligent maintenance, repair, and operation claims. Appellant alleges in its complaint that the flooding was caused both by MnDOT's negligent design and construction of the storm sewer system and its failure to exercise reasonable care following fhe construction. As noted above, the district court must construe appellanYs complaint as true. Because respondent bears the burden of showing appellant's claims are time-barred, and because appellant may be able to produce some evidence consistent with its theory, to support the relief demanded, we conclude that the district ened in dismissing appellant's negligent maintenance, operation, and inspection claims. Appellant also argues that the district court erred in dismissing its nuisance and trespass claims. We disagree. Claims of nuisance and trespass arising out of a defective condition of an improvement to real property are govemed by the statute of limitations in Minn. Stat. § 541.051 rather than the six-year statute of limitations in Minn. Stat. § 541.05 (2002). See Minnesota Mut. Fire and Cas. Co. v. Retrum, 456 N.W.2d 7192 722 (Minn. App. 1990) (citing Fagerlie v. City of Willmar, 435 N.W.2d 641, 644 (Minn. App. 1989); Ford v. Emerson Elec. Co., 430 N.W.2d 198, 200-01 (Minn. App. 1988), review denied (Minn. Dec. 16, 1988)). The two-year limitations period under Minn. Stat. § 541.051 "begins to run when an actionable injury is discovered, or with due diligence, should have been discovered, regardless of wnether the precise nature of the defect causing the injury is known." 14 Indep. Sch. Dist. No. 755 v. Holrn Bros. Plumbing and Heating, Inc., 660 N.W.2d 146, 150 (Minn. App. 2003) (citation omitted). "[W]hen reasonable minds may differ about the discovery of the injury or condition, the issue is one for the trier of fact." Metro. Life Lzs. Co. v. A1. A. Mortertson Co., 545 N.W.2d 394, 399 (Minn. App. 1996), review denied (Minn. May 21, 1996) (citation omitted). Here, appellant alleged numerous incidents of frequent, regular, and permanent flooding "over the years" with the most recent occurring on July 8, 2000. We must accept these facts as true. Thus, on the pleadings, the court can determine as a matter of law that the flooding was or should have been discovered within the limitations period. We conclude the district court did not err in dismissing these claims on the pleadings. DECISION Appellant stated a takings claim by alleging frequent, regular, and permanent flooding. Further, because determining whether flooding constitutes a taking is a fact- specific inquiry, appellant could simultaneously pursue mandamus, and alternatively, tort claims. Therefore, the district court erred in dismissing appellant's inverse condemnation claim. The district court also erred in dismissing appellant's negligent maintenance, repair, and operation claims by concluding that the statute of limitations provision of Minn. Stat. § 541.051, subd. 1(a), barred these claims. But the district court properly determined that appellant's negligent construction and design, trespass and nuisance claims are baned by Minn. Stat. § 541.051, subd. 1(a). Affirmed in part, reversed in part, and remanded. ? ,C • ?? c?Pi?.,o t r 13 , Lt? 0'3 15 r ) axi?l? r. LOGAN January 7, 2004 MR THOMAS A COLBERT PUBLIC WORKS DIRECTOR CITY OF EAGAN su;te ino 3830 PILOT KNOB ROAD 8519 Eaglc Point Boulcvard r.ake Eia,,,, n1r ssoaz EAGAN MN 55122 RECEIdED JAN 0 9 2004 EAGAN ENGINEERING C1EPARTMENT Firm (651) 290-6500 0 a Minnesota Partnership, vs. City of Eagan and Re: Nolan and Nolan Fax (esi) 223-507 , E-M.U Minnesota Deparhnent of Transportation jlolawC>jlolaw.com webscte Our File No. 3] 543 (872) wnwv.llola,v.com Dear Mr. Colbert: Ccrald %I. Linnihan' Alun R. Vamuck Johr,M. Ker.,nrjn • Enclosed please find a copy of the Court of Appeals' Decision in regards to the EZ Mini Eugrnc J. Flick' cnA,,es E. c;,llo, • Storage property. Ja??s?J. c?h„an • Yiuv, N. Regnicr "°,k° F°^k°°• At this time, Nolan has dismissed its action against the CiCy of Eagan without George W. Kuehner r,m .r.sk?gh„u,a• prejudice--which means that they can bring an acrion in the future. This Court of s?a. E. rlaae ' h ' 'Ci S C Appeals' Decision will make it more difficult to bring a claim against the City of Eagan moc y rom . ca,.,er«M.Kod,=f.,a- ' in that the Court be1ieves that the design and construction claims are barred by the iamcs G. Golembeck l.s=vh E. Flr?o ' statute of limitations. Nolan can srill bring a takings claim; however, the Court has cited Vladeuc S. Garvis' Tnom?,L.cumminxs the correct law that the flooding must be regular and permanent. I believe Nolan has been flooded only two times. Obviously, the flooding is not permanent. Nolan will ,,u,,Pao„e have a difficult time if it decides to again resurrect this lawsuit. Susan S. Tice ThnmasJ. b7isvek Chricnanna L. Finnern please contact me. After you have had an opportunity to review the Decision NIarl_CIn F. B uby , \7arkJ.Kemper Melanic J. Lerh PuM,k s.C.1im= Very truly yours, Dumien A. Richl l itred m R Be LOV!-11\ & D'BR1LN, P.L.L.P. JHRD1N1J y W ?rnn en?edm , Minoewta,rcnred Somemembers;ils.. aAmiaed roPracrim Iew iv W imorrsin', NorJ, Dalmta, Sou[h Dako,a, ,..?al ",iss.^ J s G. Golembeck Direct Dial: (651) 290-6567 Vicmria U. Smith Adwinvoraror JGG:11S Jccre P. I.ogan (1923-1983) Don:dd \i. Jardinc (Redred) Enclosure c: MR MICHAEL DOUGHERTY SEVERSON SHELDON DOUGHERTY ET AL 7300 W 147TH ST APPLE VALLEY MN 55124 Established 1918 Equal Opportunity Gmplover STATE OF MINNESOTA IN COURT OF APPEALS A03-616 Nolan and Nolan, a Minnesota Partnership, Appellant, vs. City of Eagan, Respondent, Minnesota Department of Transportation, Respondent. Filed December 30, 2003 Affirmed in part, Reversed in part, and Remanded Kalitowski, Judge Dakota County District Court File No. C9-02-9121 Michael C. McCarthy, David F. Herr, Maslon Edelman Borxnan & Brand, LLP, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402; and Howard A. Roston, Bruce D. Malkerson, Malkerson Gilliland Martin, LLP, 1750 Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402 (for appellant) James G. Golembeck, Jardine, Logan & O'Brien, P.L.L.P., 8519 Eagle Point Boulevard, Suite 100, Lake Elmo, MN 55042 (for respondent City of Eagan) Mike Hatch, Attorney General, Marsha Eldot Devine, Ann K. Bloodhart, Assistant Attorneys General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondent Department of Transportation) Considered and decided by Kalitowski, Presiding Judge; Halbrooks, Judge; and Stonebumer, Judge. SYLLABUS 1. When it is uncertain whether a landowner who alleges the government caused its property to flood can establish that the flooding constitutes a taking, the landowner can simultaneously petition for a writ of mandamus seeking inverse condemnation, and, in the alternative, file a complaint alleging tort claims. 2. The statute of limitations provision in Minn. Stat. § 541.051, subd. 1(a) (2002), applies to claims against a property owner for trespass, nuisance, and negligent construction and design, but not to claims alleging negligent maintenance, operation, or mspechon. OPINION KALITOWSHI, Judge Appellant challenges the district court's dismissal of both its mandamus action and its tort claims for failure to state a claim upon which relief can be granted, arguing that the district court ened by determining that: (1) appellant failed to state a takings claim; (2) appellant's mandamus action failed because appellant had an adequate remedy at law; (3) as a matter of law appellant was prohibited from pursuing mandamus and tort claims simultaneously; and (4) the statute of limitations barred appellant's trespass, nuisance, and negligent construction, design, maintenance, operation, and inspection claims. FACTS Appellant Nolan and Nolan, a Minnesota Partnership, owns and operates EZ Mini Storage on property abutting Sibley Memoria] Highway in the City of Eagan. EZ Mini Storage rents space to tenants for the storage of personal property. Appellant has owned 2 the property for more than 20 years. At approximately the same time appellant was constructing the storage business on its property, respondent Minnesota Department of Transportation (MnDOT) began constructing Sibley Memorial Highway. In connection with its construction, MnDOT constructed a storm sewer system. In its complaint and petition for a writ of mandamus, appellant alleged that MnDOT and the City caused numerous incidents of flooding on appellant's property, and that the flooding has been and will continue to be frequent, regular, and permanent. Specifically, appellant alleged that MnDOT and the City's negligent design and construction of their storm sewer systems, and their failure to exercise reasonable care in the maintenance, repair, and operation of those systems caused the flooding. Appellant alleged its property most recently flooded on July 8, 2000, causing damage to its bui]ding, the building's contents, and its tenants' personal property. On July 3, 2002, appellant filed a petition for a writ of mandamus, seeking an order requiring MnDOT and the City to initiate inverse condemnation proceedings. In the alternative, appellant filed a complaint alleging trespass, negligence, nuisance, and violation of due process. On November 27, 2002, the district court granted MnDOT's motion to dismiss all of appellant's claims against MnDOT for failure to state a claim upon which relief can be granted. The City remained a party. 5ubsequently, the City and appellant stipulated to dismiss the case without prejudice and this appeal followed. ISSUES 1. Did the district court err in dismissing appellanYs inverse condemnation claim on thepleadings? 3 A. Did appellant adequately state a takings claim? B. Did the district court err in dismissing appellant's taking claim on the ground that appellant had an adequate remedy at law? C. Did the district court en in concluding that appellant could not pursue tort claims and a writ of mandamus simultaneously? 2. Did the district court err in concluding the statute of limitations barred all of appellant's tort claims? ANALYSIS When reviewing a dismissal for failure to state a claim upon which relief can be granted, an appellate court must only determine whether the complaint sets forth a legally sufficient claim for relief. Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997). This court accepts the facts in the complaint as true and makes all reasonable and favorable inferences in favor of the plaintif£ Pullar v. Indep. Sch. Dist. No. 701, 582 N.W.2d 273, 275-76 (Minn. App. 1998). Whether the plaintiff can prove the facts alleged is immaterial. Stead-Boivers v. Langley, 636 N.W.2d 334, 338 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002). An appellate court will not uphold a dismissal for failure to state a claim "if it is possible on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded." Martens v. Minnesota Mining & Mfg. Co., 616 N.W.2d 732, 739-40 (Nlinn. 2000) (citing N. States Power Ca. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963)). 4 I. The Minnesota Constitution requires the government to compensate a property owner when it takes the owner's property. Minn. Const. art. 1, § 13. A"taking" is any interference "with the possession, enjoyment, or value of private property." Minn. Stat. § 117.025, subd. 2(2002). When the government has taken property without formally using its eminent domain powers, the property owner has a cause of action for inverse condemnation. Alevizos v. Metro. Airports Comm'n of Minneapolis & St. Paul, 298 Minn. 471, 477, 216 N.W.2d 651, 657 (1974). Actions for inverse condemnation must be brought to the court through an action in mandamus. Thomsen v. State, 284 Minn. 468, 474, 170 N.W.2d 575, 580 (1969). A district court reviewing a petition for a writ of mandamus must decide whether a taking of property has occurred in the constitutional sense. Gibson v. Comm'r ofHighways, 287 Minn. 495, 498-99, 178 N.W.2d 727, 730 (1970). While either party may request a jury trial on the issues of fact, the court ultimately decides whether a taking has occurred. Alevizos v. Metro. Airports Comm'n, 317 N.W.2d 352, 359-60 (Minn. 1982). A. Did appellant adequately plead a takings claim? Appellant argues that the district court erred by concluding it failed to state a takings claim. Appellant contends that its claim of frequent, regular, and permanent flooding in its complaint was sufficient to survive a motion to dismiss on the pleadings. We agree. "Whether occasiona] flooding is of such frequency, regularity, and permanency as to constitute a taking and not merely a temporary invasion for which the landowner 5 should be left only to a possible recovery of damages is a question of degree, and each case must stand on its own peculiar facts." Nelson v. Wilson, 239 Minn. 164, 172, 58 N.W.2d 330, 335 (1953) (concluding that a taking occurred where state's construcrion of dams resulted in periodic flooding and land remained wet and flooded for several years). Flooding is permanent if it imposes "a servitude of indefinite duration," even if intermittent. Spaeth v. City of Plymouth, 344 N.W.2d 815, 822 (Minn. 1984) (citations omitted). Thus, intermittent flooding may, under some circumstances, constitute a taking. See id. (concluding that flooding by construction of storm water holding pond constituted a taking where landowner's property had remained flooded for past three years and it appeared likely flooding would continue); Caponi v. Carlson, 392 N.W.2d 591 (Minn. App. 1986) (concluding that a taking occurred where city utilized landowner's land as a storm water holding pond, land was permanently flooded, and landowner had no use of property), reviewed denied (Minn. Oct. 29, 1986); see also Wilson v. Ramacher, 352 N.W.2d 389, 394-95 (Minn. 1984) (allowing landowner to amend complaint to include inverse condemnation claim where landowner claimed the city's diversion of surface waters rendered his land unfit to use). _ Other cases have concluded that intermittent flooding did not constitute a taking. See Vern Reynalds Constr., Inc. v. City of Champlin, 539 N.W.2d 614, 619 (Minn. App. 1995) (concluding that because evidence indicated all parties viewed drainage easement as temporary, landowner had tort claim rather than inverse condemnation claim), review denied (Minn. Dec. 20, 1995). But, significantly, this case was decided on summary judgment and judgment on mandamus, not on the pleadings. Id. at 615. 6 Here, the dish-ict court concluded that appellanYs claims of flooding failed to rise to the ]evel of a taking. But the district court's conclusion is not supported by the pleadings, which must be accepted as true. The pleadings allege: (1) MnDOT and the City caused numerous incidents of flooding; (2) the flooding has and will be frequent, regular, and permanent; and (3) the last incident of flooding occurred on July 8, 2000. Because it is possible that appellant could produce some evidence consistent vvith appellanYs theory to grant the relief demanded, we conclude that the district court erred in finding that appellant failed to state a takings claim. B. Must appellant's mandamus action be dismissed because appellant had an adequate remedy at law? Appellant also argues that the district court erred in dismissing its petition for a writ of mandamus on the ground that appellant's alternative tort claims indicated that appellant had an adequate remedy at law. We agree. "Mandamus is an extraordinary legal remedy awarded, not as a matter of right, but in the exercise of sound judicial discretion and upon equitable principles." County of Swift v. Boyle, 481 N.W.2d 74, 77 (Minn. App. 1492) (quoting State ex rel. Hennepin County Welrare Bd. v. Fitzsimmons, 239 Minn. 407, 422, 58 N.W.2d 882, 891 (1953)), review denied (Minn. Mar. 26, 1992). On appeal, this court will reverse a district court's order on an application for mandamus relief "only when there is no evidence reasonably tending to sustain the trial court's findings." Coyle v. City of Delano, 526 N.W.2d 205, 207 (Minn. App. 1995). When the district court's decision on a petition for a writ of mandamus is based solely on a legal determination, this court reviews that decision de 7 novo. Demolition Landfill Servs., LLC v. City of Duluth, 609 N.W.2d 278, 280 (Minn. App. 2000), review denied (Minn. July 25, 2000). Appellant argues that the district court ened in dismissing the mandamus action on the pleadings because appellant had an adequate legal remedy for its alleged injuries. Before a writ of mandamus may be issued, a petitioner must establish: (1) an official has failed to exercise a duty required by law; (2) due to this failure, petitioner is specifically injured by a public wrong; and (3) there is no adequate alternative legal remedy. Coyle, 526 N.W.2d at 207. Here, the district court concluded that appellant was not entitled to mandamus because appellant had an adequate remedy at law, in part because appellant sought damages for trespass, nuisance, and negligence. But appellant petitioned for mandamus to compel MnDOT to initiate inverse condemnation proceedings. And if the district court determined that the flooding did not rise to the level of a taking, it sought remedies for trespass, nuisance, and negligence. Appellant asserts, and we agree, that legal remedies are necessarily inadequate if a taking occurred. Because we have determined that appellant has adequately pled a takings claim, we conclude that the court erred in dismissing the mandamus action on the ground that appellant had an adequate legal remedy. C. Can appellant simultaneously pursue a takings claim and tort claims? Appellant argues that the district court erred in concluding that it was not entitled to mandamus because it pursued mandamus and tort claims simultaneously. We agree. As discussed above, mandamus is not available if an adequate legal remedy exists. Minn. Stat. § 586.02 (2002). Minnesota law further provides that: 8 [n]o pleading or written allegation, other than the writ, answer, and demurrer, shall be allowed. They shall be construed and amended, and the issues tried, and further proceedings had, in the same manner as in a civil action. The demurrer need not be noticed for argument, but the issues raised thereby may be disposed of as are other objections to the pleadings. Minn. Stat. § 586.08 (2002). Thus, the statute provides that pleadings or other written allegations are not permitted in a mandamus proceeding. But the statute is silent on whether a petitioner can jointly petition for mandamus, and alternatively, file. a separate complaint alleging tort claims. However, the statute provides that further proceedings should be conducted "in the same manner as in a civil action." Minn. Stat. § 586.08. And Minn. R. Civ. P. 8.05 provides, in relevant part: "A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds or both." While no case has directiy addressed this issue, we conclude that caselaw indicates that a petitioner can properly pursue mandamus and tort claims simultaneously. See Wilson, 352 N.W.2d at 394 (stating that "[a] landowner whose property has been flooded by the alleged actions of a municipality has several possible remedies or causes of action, such as negligence, nuisance, trespass, and inverse condemnation"); see also City of Minneapolis v. Meldahl, 607 N.W.2d 168,172 (Minn. App. 2000) (finding that appellant had not made an inverse condemnation claim even when court liberally construed pleadings); City of Maple Lake v. Am. States Ins. Co., 509 N.W.2d 399, 404 (Minn. App. 1993) (stating that in any takings claim "the possibility will exist that the claim could 9 have been cast in terms of trespass or nuisance" (citing Alevizos, 298 Minn. at 483-84 n.l, 216 N.W.2d at 660)), review denied (Minn. Feb. 24, 1994). In Wilson, after determining that the landowner's negligence and trespass claims were barred, the court expressed regret that the landowner had not included am inverse condemnation claim in his complaint. Wilson, 352 N.W.2d at 394-95 ("Unfortunately, plaintiff's complaint, notwithstanding its verbosity, neither alleges a taking nor asks for inverse condemnation."). The court granted the landowner leave to amend his complaint to include an inverse condemnation claim, which necessarily included a petition for mandamus. Id. at 395; see Thomsen, 284 Minn. at 474, 170 N.W.2d at 580 (concluding that actions for inverse condemnation must be brought through an action in mandamus). Judicial efficiency and economy also persuade us that a landowner should be able to seek inverse condemnarion by petitioning for mandamus, and alternatively, file a complaint, particularly where, as here, it is uncertain whether the ]andowner will be successful in establishing that a taking occurred. Because of the Minnesota Supreme Court's decision in Wilson and the interests of judicial efficiency, we conclude that a petitioner is permitted to simultaneously pursue an inverse condemnation claim by way of a petition for mandamus, and alternatively, tort claims. H. Appellant contends the district court erred in concluding all of its tort claims were barred by the statute of limitations provision in Minn. Stat. § 541.051 (2002). The statute provides in relevant part: 10 (a) Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property ... shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury ... nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction. Date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or the owner's representative can occupy or use the improvement for the intended purpose. (b) For purposes of paragraph (a), a cause of action accrues upon discovery of the injury ... (c) Nothing in this section shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the real property improvement against the owner or other person in possession. Minn. Stat. § 541.051, subd. 1(a)-(c). A party seeking application of a statute of limitations, which is an affirmative defense, bears the burden of establishing that the claims are time-barred as a matter of law. Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988). Construction and applicability of a statute of limitations is a question of law, which appellate courts review de novo. Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998). This court construes Minn. Stat. § 541.051 narrowly, but still gives effect to the plain language of the statute. Pac. Indem. Co. v. Thompson-Yeager, Inc., 260 N.W.2d 548, 554 (Minn. 1977) 11 (superseded by statute on other grounds as stated in 0 Brien v. U.O.P., Inc., 701 F. Supp. 714 (D. Minn. 1988)). ' Here, the district court concluded that appellanYs tort claims were barred by the statute of limitations because appellant was required to bring a tort action within two years of the discovery of the flooding damage, or in any event, no more than ten years after the completion of the construction of the storm sewer system. Appellant first argues that Minn. Stat. § 541.051 does not apply here because the alleged flooding does not arise from a"defective and unsafe condition." We disagree. The question of whether injury to property arises out of a defective or unsafe condition is one that turns on the individual facts alleged in the complaint. Griebel v. Andersen Corp., 489 N.W.2d 521, 523 (Minn. 1992). Appellate courts consider the phrase "defective and unsafe" collectively. Id. An improvement to real property is deemed defective and unsafe if it is incomplete, faulty, dangerous, and/or insecure. Id.; Fiveland v. Bollig & Sons, Inc., 436 N.W.2d 478, 480 (Minn. App. 1989), review denied (Minn. Apr. 24, 1989). The Minnesota Supreme Court has implicitly found that flooding caused by a storm sewer system constitutes a defective and unsafe condition by determining that the statute of limitations applied to claims of negligent design and construction of these systems. See Capitol Supply Co. v. City of St. Paul, 316 N.W.2d 554, 555 (Minn. 1982); Ocel v. City of Eagan, 402 N.W.2d 531, 534 (Minn. 1987). Therefore, we conclude that appellant's complaint alleged a defective and unsafe condition. 12 We also conclude that a storm sewer system is an improvement to real property as contemplated by Minn. Stat. § 541.051. Improvement is defined as "a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor and money and is designed to rnake the properiy more useful or valuable as distinguished from ordinary repairs." Brandt v. Hallwood Mgmt. Co., 560 N.W.2d 396, 400 (Minn. App. 1997) (citing Pac. Indem. Co., 260 N.W.2d at 554). In determining that the statute of limitations applied to claims of negligent design and construction of storm sewer systems, the Minnesota Supreme Court has implicitly found that storm sewer systems constitute improvements to real property. See Capitol Supply Co., 316 N.W.2d at 555; Ocel, 402 N.W.2d at 534. Appellant also contends that the district court erred in finding that Minn. Stat. § 541.051 applies to owners of real property. We disagree. Minn. Stat. § 541.051, subd.l(c), provides: "Nothing in this section shall apply to actions for damages resulting from negligence in the maintenance, operation or inspection of the real. property improvement against the owner or other person in possession." Appellant construes this language to mean that claims against a property owner can never fall within the statute of limitations provision ofMinn. Stat. § 541..051, subd. 1(a). But by the statute's plain language, only claims of negligent maintenance, operation or inspection against a property owner are outside the statute of limitations provision. Because the statute of limitations applies to appellant's negligent design and construction claims, and more than ten years have elapsed since substantial completion of 13 Sibley Memorial Highway, we conclude that the district court properly dismissed these claims. But we conclude that the district court eried in dismissing appellant's negligent maintenance, repair, and operation claims. Appellant alleges in its complaint that the flooding was caused both by MnDOT's negligent design and construction of the storm sewer system and its failure to exercise reasonable care following the construction. As noted above, the district court must construe appellanYs complaint as true. Because respondent bears the burden of showing appellant's claims are time-barred, and because appellant may be able to produce some evidence consistent with its theory, to support the relief demanded, we conclude that the district erred in dismissing appellant's negligent maintenance, operation, and inspection claims. Appellant also argues that the district court ened in dismissing its nuisance and trespass claims. We disagree. Claims of nuisance and trespass arising out of a defective condition of an improvement to real property are governed by the statute of limitations in Minn. Stat. § 541.051 rather than the six-year statute of limitations in Minn. Stat. § 541.05 (2002). See Minnesota Mut. Fire and Cas. Co. v. Retrum, 456 N.W.2d 719, 722 (Minn. App. 1990) (citing Fagerlie v. Ciry of Willmar, 435 N.W.2d 641, 644 (Minn. App. 1989); Ford v. Emerson Elec. Co., 430 N.W.2d 198, 200-01 (Minn. App. 1988), review denied (Minn. Dec. 16, 1988)). The two-year limitations period under Minn. Stat. § 541.051 "begins to run when an actionable injury is discovered, or with due diligence, should have been discovered, regardless of whether the precise nature of the defect causing the injury is lmown." 14 Indep. Sch. Dist. No. 755 v. Holm Bros. Plumbing and Heating, Inc., 660 N.W.2d 146, 150 (Minn. App. 2003) (citation omitted). "[W]hen reasonable minds may differ about the discovery of the injury or condition, the issue is one for the trier of fact." Metro. Life Ins. Co. v. M. A. Mortenson Co., 545 N.W.2d 394, 399 (Minn. App. 1996),,review denied (Minn. May 21, 1996) (citation omitted). Here, appellant alleged numerous incidents of frequent, regular, and permanent flooding "over the years" with the most recent occurring on July 8, 2000. We must accept these facts as true. Thus, on the pleadings, the court can determine as a matter of law that the flooding was or should have been discovered within the limitations period. We conclude the district court did not err in dismissing these claims on the pleadings. DECISION Appellant stated a takings claim by alleging frequent, regular, and permanent flooding. Further, because determining whether flooding constitutes a taking is a fact- specific inquiry, appellant could simultaneously pursue mandamus, and alternatively, tort claims. Therefore, the district court ened in dismissing appellant's inverse condemnation claim. The district court also erred in dismissing appellant's negligent maintenance, repair, and operation claims by concluding that the statute of limitations provision of Minn. Stat. § 541.051, subd. 1(a), baned these claims. But the district court properly determined that appellant's negligent construction and design, trespass and nuisance claims are barred by Minn. Stat. § 541.051, subd. 1(a). Affirmed in part, reversed in part, and remanded. , J V N &c"tr 13 , Ld0'3 15 L i,/?i I S k?W i H O 4ti/Li,--S ? NB 2 S S. 6ie y 6yte?,..? (?w? FORM eceived Via: Phone ? pD Other r ; ?---?". City: hon :(Day) Location or Problem Address (If different than Customers Address) ature of IncidenUCom lain/Conce : m lo ee Assi e: Comments/Action Take : .. ate of Res ons : im : Supervisor's Signature: ? CODE Park or Wetland Number 1\P1P1\wstomer revised 07\07\98 (Please turn over). ALL SHADED AREAS MUST BE COMPLETED IN FULL FOR CALL OUTS. aATE BUILDING PERMIT APPLICATION *i Include z sets af plans, 1 site plan w/elevations and 1 set of energy calculationa. ,Pyy XrOfeKfC T To be used for? - ? ? - i Site Address: qD2s valuation O&q- Lot Biock See Sub. Parcel Number ?i9pp pl/ 5D /t/oL19ni Nol/)Al .Sl? -?371?j Ocener?"jf.? G-z /?Telephone ?. ? Addiess SGl?J'7 ?5[7. cGl Contractor Telephone Address Arch. /En4 • ? il /' lephone v11? - Address OFFICE-USE _ Erect Alter Repair Enlarge Move Demolish Grade _ OFFSCE USE Date of Approval & Initial Assessment water/Sewer Police Fire Eng. Planaer Cbuncil 7 Rldg. Off. A.P.C. Occupancy Zoning Fire Zone Type of Const. _ # of Stories Front Depth Perntit FEES , r'b FTater conn. 'Z 700 Surcharge ? OO rlan Gheck _----- 7 ?'?-- SAC f.' ' t4 ter Meter Z ? ? graue.- TOTIaL .?° 6 i 4l'icitV oF eagan 10- THOMASEGAN Mayor Zoning, Comprehensive Plan and Flood Zone DesignationPnraIcIa Awo,o.a SHAWN HUNTER Confirmation Letter SANDRA A. MASIN . THEODORE WACHTER Council Members Subject Prooertv Yn 25- U lal S;d leu bU1 THOMAS HEDGES Ciiy Adminisiwtor E. J. VAN OVERBEKE ciN Clerk ?.?c(u ?Gu15 name c- 'TOUI''L inavi?:i2J V(cr'vtYLS 33o Secono! 4vencAe S 1Yl;4 ncapa/;-s mN street address city state SU/ zip The subject property is Comrehensive Guide Plan -I L `i ro FLOOD INSURANCE RATE MAP Property appears to be in zone C? Shown on map panel # ;2'7015 "3Q0U2'13 Date of Map FS'- l/- 79 Source: Flood Insurance Program - U.S. DepaRment of Housing & Urban Development Federal insurance Adminstration. Signed Q?n??? Date /0 0?4 ? MUNICIPAI CENTER THE LONE OAK TREE MAINTENANCE FACILITY 3630 PILOT KNOB ROAD THE SYMBOI OF STRENGTH AND GROWTH IN OUR COMMUNITY 3501 COACHMAN POINi EAGAN, MINNESOLA 55122.1097 EAGAN. MINNESOTA 55122 PHONE: (612) 681-4600 PHONE: (612) 681-4300 cnX: (612) 681-4612 Equal Oppoitunity/Aftilmative Action Employer pqx: (612) 681-4360 iDD: (612) 454-8535 TDD: (012) 454-8535 A M .S¢ r. /9 a/3 -==C/ COPTilITIONi+L USE PisRI'9IT IQO, CITY OF EaGfiN 3795 PILOT k17CB ROAD MGAN, Ni11VFSOTli 55722 The Council o£ the City of Eagan hereby grants to Nolan & Nolan P O. Box 26599 of G+ r,nn; a Park MN a Conditional Usa Permit Irursuant to application dated 7/7/78 for the following purpose CpE(!TA7. PF.RMTT F(1R T.TVTN(: SPA(`F AT THE F4/Z STORAC,? 4025 _ CTRT.FV A:FMf1RTAT. F;T(_S;L•?AV F.Ar.Ah MN, r3c;1?.2,_AFR nTTaf'I-TFD. (`flNi1TTIONS. ?ated: R?/1 /7R Fees - aid: 100,00 By: .?'-?, ? P%a5-cr yyO Attest:?- ? ' ? ?> ? ' clerk ? ?' C,p,nu I NOLAN AND NOLtiJ - E-Z PffNI STORAGE. Mr. Jean Parranto and Mr. Nolan a'ppeared on behalf of the apPlication of Nolan and Nolan and Slater Estates 'for waiver from subdivieion regulatione for an industrial building permit on unplatted property with variance to allow living quartera. The Advisory Planning Commiseian recommended approval of the waiver and variance subject to conditiona. Wachter moved end Egan seconded the motion, all members voted in favor to approve the appltcation subject to the recomnendations of the APC. p SLATER INDUSTRIAL PARIC AND E-Z MINI STORAGE. The next hearing regarded the ?-e1J~•?i 9 ._ _- . ';?pplication of Nolan and Nolan and the Slater Eetate for temporary waiver of a?C?'p,lat to alloca etorage building on unplatted property and variance from Ordinance fl52.07, Subdiviaion 15A to allow 1lving quartera in an industrial zone. Jeaa Parranto appeared for the applicants and reviewed the proposed plat of Slater Industrial Park. Ae indicated that a request is being made for a temporary waiver of the plat in that MN/Dot does not have the exact allignment of Highway f113. The caretaker for E-Z Minf Storage would live on the site for aecurity purposes. Mr. Parranto also indicated the contract had been entered into between the Slater Estate and the Nolane requiYing that the Nolan property would be included in the plat of Slater Industrial Park. Hedtke moved and Blomquist aeconded the motion, all three memhere voted in favor to recommend approval of r.ho teiuporarp waiver of the plat with the following conditions: 1. The platting would be completed within eix montha after MN/Dot approval of the Highway 4113 right of way. 2. Landacape plan, drainage plari and a lighting plan ahall be approved by the City ataff. 3. That access ahall be approved by MN/Dot. 4. That landscape bond of $1,000 ta be submitted to insure' completion of landscape requirements. 5. That all other ordinance requiremente to be complied with. Blomquist then moved and Harrison aeconded the motion, all members voted yea [o recommend approval of a epecial permit under Ordinance If52 rather than variance to avoid precedent aetting to allow living quarters in an industrial zone. . • != ?;. ' ? . -- I:Xtll:li]T „A" AT7'Al;tZ1E:N'I' TO EARNCST HONNEE,Y CONTRAGT Al:l. that pa7-t of the Noxth one-half (N'-;) oF the Sout'r,west unt--qwrter of Section 19, Ta,mship 27, Range 23, described as folla-is: ;!inni.nry at thc_ inierscction of Uie north line of said south:aest', and the north- c•:?s?er].y richt oE w??y line of. State Trunk flighway ;'13; thenr? wesi alonc saic! ].ir: ?,'Ci `eLi: roro or less tu the southeasterly line of neca State Tnmk Highcvay #13; th^-rlLsouLhwesterly along said right of way line 570 fcet trore or less to aFoint; norldleast=rly 290 feet irore or less to a proposed road; thence northeast,,_r:ly ` a1n-;rt1ie r.ortlierl.y rigtit of way line of said proposed road to apoint on a lire c•.fi ich is parallel with and 60 feet northwesterly of the riqht of way line of State 'crLv?k Hi.c:h;•:ay ;#13, whirh line is also the northwesterly line of a proposed road; thencr nor-Chaasterly along said ric?t of way line of said proposed road 415 feet to ajx?int; thencx southeasterly 60 feet tA the northwesterly right of way line of StaLr Tivil}; Hichway 113; thence northeasterly along the right of wcLy line of State Trunk Elintr::ay „13 to the t,oint of beginninq; resen,inq an ea:errnnt for roaclwav Ausuose.=: n?r?r ? r!1 c....?- ..i.._._ _c ?_ . . . ._ _ . CONDITI(3N1iL USE P.'"RMIT N0. CITY OF EAG/,N 3795 P= HNcB xoAD E?,G?at, YMDa?ysoTa 55122 The Council oP the City of Eagan hereby grants to E Z Mini Storaqe 5607 Cedar Lake Rd _ _of Minneanolis NIN e Conditional Use P=rmit pursuant to epplication dated 9/15/78, Por the fo1Q'cing purpose cn,,d;t;nnal ttG n mi for a ylon sian at-/4025?Sible ?Mamnrial Hiahwa;/,_rgan. MN_ _ - Dated: 11/-)j7R Fees "aid: 125.00 BY: ? ?, 'z?-?,/f?-?-i? N.1yar Attest: -4& , ? ?Clerk '61? ??' MIN ?J AGE E-Z MINI-STORAGE, INC. P.O. Box 26599 ` Minneapolis, Minnesota 55?-4?z6 ? .oflApril 16, 197 6+ ? ? City of Lagan Eagan, MN 55122 Att: Mr, ilale Peterson T M? QPg 17? 9'9 Gentlemen: RePerenee our telephone conversation today relative ta the water service t o our E-Z Mini Storage 1'ro ject at Cedar Ave, and Highway #13. Our Manager has been made aware of the fact that there is clorine in the main line which can not really be used for anything other than shower,laundry, bathroon, and etc. He has been advised that he is not to drink or use the water for cooking. For these uses he hsa been instructed t_o purchase distilled water. This letter is written to confirm that we are aware of the problem and will not hold the City of i'=agan re- sponeible for any accident or injury that might result from its use. By the same token, we urge you to make the pe rmanent connection as soon as the Northern Natural Gas Co, wiil perriit, which I understand will be in about (30) days• Very truly yours,, E-Z P•lini Storage Co. By: Charles Nola n cc: Bill Carlson 40 O/9O0 Co ./O ? E-Z biINI STORAGE PARCE?- FILE November 30, 19`J9'_ Consolidated Plumbing, Inc. 1530 East ClifS Road Burnsville, Mi.nnesota 55337 , Attention: R. E. Enright Dear Mr. Enright: Refereuce is made toa a. Inaured: Qity of Eagan ; b. Fzle Numberr 351-L-653000 c. Date of Accident: , 7/24/79 In reference to your letter of Auguet 29, 1979, IctLn appreciate that you are entitled to your opini.on as to whet poaition you are taking on this matter. However, I csn onZy reiterate that this sewer prpjeat was etill imcompleted and not accepte@ by the City. To date* no formal demand baa been mede by E-Z Mini Btorsfl?o €or a monetary aettle- nent, but in the event this does occur, we will decline liability on behalY of the City. Shou2d litigation develop and the City is named, we wi12 bring a Third-Partg aation agai.nBt you. fihe fact that you rePuae to report this to your insurer can^onlg jeopardize your poaition with them and undoubtedly the City wlli hold the pay- meut to you in eacrow until this matter is satisPaotorily resolved. Yery truly yours, Delorea Bergland 1 Field C1Eim &epresentative DBtklr cc: Boneatroom, Roaene, et al 2335 West Highwap 36 -? St. Paul, Minnesota ? City of 8agan 3795 1'ilot Knob Road . Eagan, MinneOOta 55122 Attention= City Manager D/3 50 M b Cr C ?7 /kLs,,+-r ?u?L? nnsrewron L 13? 13 Sn ? ??c.? l. 1 . ? ALcYCE 130LKE rMOrws?EwR . . - ?. . . . - NAI'%Y1tRfiAMTO JIIYES A EMITM TNEOOORB WACMTER . ^ . ?, ??S?b?..i? '? •: . . , . eauwCw Mcraews . . ? PIL?T??^?O? '? _ ?.( G/.?I,. MINr7.?OTA`?•. ?O ? ?.'?.? ..n6us,? . . . ' . 44v T AN 18 L41bv ??11 - ,•?l i-Ti"z??,. 9 January , .1980 Mr..C'narles Nolan •, ? NOLAN AND NOLAN ? E-Z Mini Storage? - P.O. Box 26599 St. Louis Park, Minnesota 55426 Dear Mr. Nolan: We received your letter of January 9th, and as you are no doubt ai.*are, the City has been pursuing your claim against the City',s contractor,Encon Construction Company, since last summer. We are continuing to pureue this matter both'through Eagan's liability insurance carrier and also throughEncon Utilities and we would appreciate your"consideraticn for the time being. jde will attempt to pursue this to a resolution as quickly as possible. Very trulq yours, C\\6-o1?" A4(00m? Thomas fledges, City AdministratoX PHA:cdg cc; Robert Rosene, City Engineer Encnn Conatruction Company • Auguat l8, 1980 GENTLEMEMa We w5.11 appreciate your advising us of the statua of this matter. t^le feel that if the parties irrvolved were serious about settling the matter they awld have stepped forrard' 6y now. Our attorney advises that if the matter ip not reeolved srithin (30) dapat thdn tre sri.ll coirsaenee litigatiaa? on the asaumption that there ia no flarther interest to do so on their part. We,, of course,, will request pagment o£ our legal expensea in additiaat to the damagea suPfered. Very tru],p youras, No]an atd No]an 1, THE LON6 OAK TREE ... THE SYM601. OF STRENGTM AND 6ROWTH 1 ??TY• a?-.- _-,..? :--s??? Y-- - `? - - -- __- -- - - - _- - -CERTIFIED- NOLAN AND NOLAN E-Z MINI-STORAGE P.O.BOX 26599 ST.LOUIS PARK.MINNESOTA 55428 Januar;* 9, 1980 Jq?J??'Fj?? ?o City of Eagan 379 5 Pilot Kr_eb Road cagar, Mirmesota 55121 Gentlemen: ^his letter is written with reference to the var?_ous correspondence re7_ative to the damage to our nroperty caused bg the backup of the City of Ea?an sewer line on Ju13? 23rd, 1979 in the amount ef $2754•66. I woal.d hope you agraed that this matter has dragged on long enoush and should be acted upor_ without iurther delay. With this in mind and because of the substantial dollars involved , unless we receive some indication within ten (10) da?rs oi your intention to reimburse us for the ahove costs, we shall take the necessary legal action. We must then necessarily lock to you for payment of our additianal ccsts i_n interest and lega1 exrense as well. Uery truly yours, Nolan and Plolan R. y ? V -harlds Nolan cc: Leonard and Weinblatt Attorney at Law ?.___..?.. .. SENJ;R: Be aere fe foilow ins}ruc+ions o^ other side PLEASE Fl1RNISH SERVICE(5) INDICATED BY CHECKED BLOCK(S) . (Additioaad eh¢rges re4uired for these aervices) Show adGress ` Deliver ONIY ? where delivered ? to addressee RECEiPT ' Rzeaived fhe num6ered aAiele deseribed 6¢low ? NOLAN AND NOLAN E-2 MINI-STORAGE P. O. 80X 26598 ST.LOU15 VARN.MINNESOTA 55426 @(EN4U lPOC?D ??• 828418 UTAJ & 0 L - CERTTgIe:D - ,. ?:"„ ? 00 UiA ?1 0 VER OLIVER t ' . HOIN.MD6? EyDELL H ES il 1 a?-' . , . . ?`...? . _ .,? ??.. Cit? of EE?an 3795 Pilot Knob Road Eagan, I?innesota 55121 NCc ?N'ASHINGTON c J ??- 1CLAIM CNEC?c ND, ? o? ssr Hona pfJD NOTCE FETURN ?ftpm p9 FIXm 36C8# Juiv 1Bn ?o a(4DO a(3 S? BEA BIOMqU15T MAYOP • ,T ' . , -..\ ? A.) .. CITY OF +EAGAN •WY 3705 ?IPILOT KNOB ROAD,Sry. "- EAGAN.MINNESOTA 36122 ..<£'` . :. r.. PMONE 454-8I00 . •t ;G? y ?,;?' ? f;s' THOMASHEDGE] CIiY ADMINISiPATOP THOMNS EfiAN MARK PARRANTO JAMES A. SMITM THEODORE WACHTER COUNCIL MEMBEPS April 16, 1981 ('HART FS D NOLFIN 5607 SWTfI CIDAR LAKE %OAD MPLS MN 55416 Dear Mr. Nolan: EU6ENEVqNOVERBEKE CITY CLEPH OLJ I have reviewed your application for an advertising sign located at 402 S' ley P7emri_ al Hig_hwav. In reviewing this applicaticn, a waiver of plat was granted for E-Z Muii Storage in 1978. One of the conditions inWsed on this waiver of plat was that the parcel which E-Z Miru-Storage is located be plattecl within one year after the rights-of-aay had been detennined for the nea aligrmient of T.H. 13. It is the City's Lmderstanding that this right -of-way has been detennined and that no application for the platting has been subnitted to the City. There- fore, E-Z Mini-Stnrage is in violatian of the waivex of plat which was grantecl to E-Z Mini-Stnrage in 1978. Before the City can Process the application for the advertising sign, there should be an applicaticn to plat the property in which E-Z Mini-StArage is located. If you will review Ordinance #16, the sign ordinance as it relates to advertising signs, the ordinance only allows one pylon sign, or an advertising sign per parcel. Since E-Z Mini-Storage has a pylon sign advertising their facility, no advertising sign would be allaaed on that parcel. I am returrung your application and the check for $50.00 because the advertising sign would not be perTr;tted on the same Parcel that there is an exis- ting pylon sign. If you have any questions regarding any of the carments stated above, please feel free to.contact me at the Eagan City Hall. Sincerely, Dale C. Ri.uilsle City Planner DCR/jac encs. # „r .;:.. ; : \y??ta : -^ THE LONE OAK TREE ...TNE 4YMBOL OF STRENGTH AND GROWTN IN OUR COMMUNITY. Council Minutes June 19, 1984 Y? ? r? ? A l BZ !IIN"t 3SORAGS - BOILDING PSItlQT A request has been received from Nolan and Nolan to construct an EZ Mini Storage addition to the property on Highway If13 and Cedar Avenue. One of the conditions in granting the EZ Mini Storage permit initially was that the property be platted in conjunetion with the issuance of a building permit. The platting was not completed and the staff now recommended that any approval be sub,ject to platting. Upon motion by Wachter, seconded Thomas, it was resolved that the application be approved sub,ject to complianee with all necessary ordinances and that the platting of the entire pareel be completed prior to oecupancy or use of the premises. All voted in favor. HARVSY BRADN PROPBRTY - Sf0R9GS OBJECTIONS City Council members had received a citizen's complaint from Leonard Walz concerning open storage on the Harvey Braun property adjacent to the Walz property in Drexel Heights. Discussion has taken place between Mr. Braun and Mr. Walz and several neighboring property owners were present at the Council meeting as were Mrs. Mary Braun and Robert Braun, her son. Mr. Braun stated the property was bought in 1951 and that Harvy Braun had operated as a con- tractor from the site for many years. Mary Braun indicated that the corpora- tion has been operating less than 10 years and that the owners would build a fenee if acceptable to the City. Harvey Braun indicated to the Council at an earlier time that he would work out the problems with the neighbors and the Couneilmembers expected the property to be cleaned up some months ago. There was diseussion concerning non-conforming uses and whether the property was a non-conforming use strictly under the City Ordinance. It was noted a number of changes in use had taken place on the property over the years. No action was taken and it was suggested the neighbors attempt to resolve the problem. CONTRACT #83-13 - LE%IPGTON 9VBNUE BoOSTSR st9TI0N The plans and specifications For the Lexington Avenue Booster Station were submitted and it was recommended the council approve them, and further, that the Council authorize a bid opening for 10:30 a.m, on Friday, July 14, 1984 at the Eagan Municipal Center. Wachter moved, Smith seconded the motion to approve the plans and authorize the advertisement of bids. All voted in favor. Wachter then moved, Thomas seconded the motion to provide for the sign on the booster station with quotes to be aequired with future approval by the City Council. All voted yes. 11 Council Minutes June 19, 1984 CAHLE TMBVISION COTIlQSSION OPDATS Couneilman Smith gave a brief update on the status of the Cable Commis- sion, indicating that a full time cable administrator is being proposed. He stated that 25% to 30$ oP the system is expected to be in operation this fall and construction has now etarted within Eagan. Jim Horne was present and was concerned about poles installed by the Cable Commission on the west side of Pilot [Cnob Road. COACfIlIAH ROAD/SII.VSR Bffi.L ROgD - CONTRACT #84-10 The plans and specifications for Contraet Ok84-10 consisting of road improvements for Silver Bell and Coaehman Roads were submitted to the Couneil arid staff recommended approval. Thomas moved, Waehter seconded the motion to approve the detailed plans and authorize the advertisement of bids to be opened at 10:30 a.m. on July 27, 1984 at the City Municipal Center. All voted in favor. R0SIC HIL.L ADDITIOH - CONTRACf 084-12 The bids have now been received for the Rose Hi11 Addition utility and street improvements and the low bidder is Widmer Bros. in the amount of $93,635.50. It was recommended the low bidder be awarded the contract and Wachter moved, Thomas seconded the motion to approve the recommendation. All voted in favor. CUSTOM ENERGY @fklES - OAg CA9SS ADDITION A representative of Custom Energy Homes was present and requested a variance for hardship reasons an an emergency basis of 19 feet from a 30 foot setback on a new home being constructed within Oak Chase. Letters from all neighbors approving the variance, except one neighbor, were submitted. It was noted noted that 5 oak trees would be required to be taken and without the variance the house would be closer to a neighbor whose house is 10 feet from the property line. Smith moved, Thomas seconded the motion to approve the varianee for hardship purposes provided that signatures are submitted from all owners within 200 feet approving the variance, and further sub,ject to the formal hearing process; further, it was understood that construction can commenee as soon as all signatures are acquired. All voted in favor. ? 12 NOLAN AND NOLAN E-Z MINI-STORAGE ^ ? P. O. 80%aG89H ?Cf G?/ 5T. LOUIS PARK, MINNESOTA 55428 Decemher 15, 1986 Mr, Steven Fchwanke Planning Pepartment CitJ of Eagan 3830 Pilot Knob Road Eagan, P4innesota 55121 Dear 5teve; Reference our telephone I requested some documents mortl-age ComPany. Attached appreciate receiving at yo they incLude a "erti£icate Flood Plain Latte*. Thank you, ronversation the other day in which From the City on behalf of our are the documents that we zaculd zr earliest convenience. Specificallyj of Occupancy, Zoning Letter,, and a Very truly yoursp E-Z- Mini Storage Company Atolan and Ilolan, Partners BY Charles Nolan 1 ? LvlaN. 3. Certificate of Occupancy.' A Certificate of Occupancy from the City of Eagan, Minnesota indicating that the premises may be occupied for their completed purpose must be forwarded. 4. Zonin Letter. A letter from the appropriate officer of the City of Eagan, Minnesota stating a) the zoning code affecting the premises, (b) that the premises and their use as miniwarehouse to comply with such zoning code, city ordinances and building and use restrictions, (c) that there are no variances, conditional use per mits or special use permits required for the construction of the improvements on the premises or their use or if they are specifying the same and their terms, (d) that the premises as described comply with the piatting ordinances affecting them and can be conveyed without the filing of a plat or replat of the premises, and (e) if the premises are non-confor ming use setting forth the conditions under which the premises may be restored if they are damaged or destroyed. If the premises fall within any subdivision or platting rules or regulations, we require evidence of compliance with such subdivision rtgulations or waiver of the same by the appropriate officials. 5. Flood Plain: We should receive a letter from the City of Eagan, Minnesota whether the premises are within a"flood plain" as designated by the Federal Insurance Administration. ??,': ,.. OF 3830 PILOT KNOB ROAD. P.O. BOX 27199 . eEn BLOM9uiSf EAGAN. MINNESOTA 55121 nnara PHONE: (612) 454-8100 ' . 1HOMAS EGAN December 23, 198E7 JAMES A. SMIfH NCELLISON nieoooae wACrrtEa Counctl Members 7HOMA5 HEDGES . GiN Achlnineimior ALTON STENSLIE HIGENEVANOVERBEKE NORTH STAR TITLE City C1ek 100 SOUTH STH STREET SUITE 1200 MINNEAPOLIS MN 55402 Re: Dear Mr. Stenslie: Please be advised that the Nolan & Nolan Mini Storage located at 4005 Sibley Memorial Highway (the intersection of Trunk Highways 77 and 13) is located on land presently zoned light industrial. Such uses are permitted in light industrial zoning categories and that there are no variances, conditional use permits or special use permits required for the construction of improvements on said premises. This property has been platted as Lot 1, Block 1 of the S& W Industrial Acres. This site is not located within a flood plain as designated by the Federal Insurance Administration. Please find enclosed a certificate of occupancy issued by the City of Eagan for the Nolan & Nolan Mini Storage, dated April 23, 1979. All sufficient permits have been issued for.the occupancy of buildings constructed to date and for uses prescribed pursuant to the Eagan Zoning Code. Please contact me if you have further questions regarding this matter. Sincerely, Dale C. Runkle City Planner cc: Thomas Schandle, Nolan & Nolan Enclosure DCR/SS/jeh THE LONE OAK TREE. ..iHE SYMBOL OF STRENGTH AND GROWfH IN OUR COMMUNIN ities Diizital Oualitv Control The following image represents the best available image from the original page. Every effort was made to capture the content from the original page. ., . . 1 ?Prfifirtttr of @ rrupttnry BU=IM CNE (Citp of (Eagan BP#rbrtrnritf nf Vuilhi:tg Jtcs;rrrtimt Tbit Certi fitore iuued Pxrrxarrt ro tbe requirementr of Seainn 306 of t!x Uuijn.m gufGjing Cwla tari fpng tbrtt af tbr timt o f ittuanrt thit cNxtture was irs tom pliuna with tbe variout ordinrtnrrt o/ t{x City rrgxluting bxi(ding conttrurtiaa or uit. Far t!x JolloudnK: u,.ch.d.m Storage & Lxael7inq 4968 7????? ?Bhmy? No. ?{oayTyP° FZ TYPCmwccm=?y_RrtZOn. 3 Za1impumc'?? OvmolBUYaeMy N013i1 & I?ly[1 t'---?US. .wa,? Minneanlis. MN B-aawAaa.n, OO S leN ME?rn_ uLn, - a,,: APril 23, 1979 N?i ul n <OYNiCVW? I?nCt . . ? N Building Utnaui - ,?-&5)?d,ala h1EM0 TO: THOMAS L HEDGES, CITY ADMINISTRATOR FROM: DALE C RUNKLE i DATE: JANUARY 30, 1987 ?r ?1aas e`l S16 mtrA 4wl SUBSECT: CHUCK NOLAN'S E-Z MINI STORAGE LOCATED ON TRUNK HWY 13 Mr. Nolan has contacted the Planning Departr.ient in regard to a survey wnich was prepared by Mr. Nolan. It was determined in this survey that there was a variance required adjacent to Trunk Highway 13. The building permits were issued in 1984 and 1985 for the second phase expansion and the setbacks apparently were overlooked at that time. Dir. Nolan is presently proposing to sell the E-Z Mini Storage facility and needs a letter from t:-ie City that all Ordinance requirements are met. At this time, staff cannot issue tha-, letter because of the setbac:c from tne buildings to Trunk Highway 13. At this time, there is nothing that can be done; the buildings are existing and the right-o£-way has been established for Trunk Highway 13. Stafi is aslcing that Council review this item and acknowledqe the error that was made on the setback for these buildings. Ilf anyone has any questions or would like additional information, please contact ne. 1? ' ity? P1 nner DCR/jj oF 3830 PILOT KNOB ROAD, P.O. 80X 27199 EAGAN, MINNESOTA 55121 PHONE: (612) 454-8100 February 12, 1987 ? -. ??- • \ o ? ? r, MR CHARLES NOLAN 5607 S CEDAR LAKE RD ? ST LOUIS PARK MN 55416 4?^ 0? ?I?,Mew?, wr Re: E-Z Mini Storage, T.H. 13, Eagan MN ?• Dear Mr. Nolan: BFA BLOM9UIST n? nHonans EcnN JAMES A. SMRH VIC ELLISON 1HEODORE WACHIER COUxtl Membars nioMns HeDGes CilyAtlmin?r HIGENE VAN OVERBEKE aty Cian On February 3, 1987, the City Council reviewed and approved the approximately 25' variance required from the setback of T.H. 13 to allow your buildings to encroach to 25' from the property line_ Attached is a site plan showing where the variance coas granted. Hopefully, this letter confirms the action taken by the Eagan City Council. If you need any additional information regarding this variance approval, please contact me at the Eagan City Hall. Sincerely, .?? Dale C. Runkle City Planner DCR/jj Enclosure ,s THE LONE OAK TREE.. .THE SYMBOL OF STRENGTH AND GROWfH IN OUR COMMUNItt .? :i u• ,. .aac a. nr??? . R no..mn, ...?.u r. uRK?n.n ?. xo..x..o? , R ` ?` 9 ? _--- - •n• ' ` wrµu. ) k ?yy,ewrt ? lN??rtect e I . rw-sfo?ne[ \ '?? • I i Y u 1 F ?n O Y f • . .. . f. Y I I ( ?' C 6 O?+ m ' ? . ?ao i . ? ? .. .......r. B .._._..,,._...... ry! .s : x u.rr,...n. Z ..u ? ? . . ? S . . .. . . . y ? T ,nn A ? Nn.wo?r w ? :? . ?p'G' '? ? ue v o?. ma? ?w o 9 uiw.sraua[ nn.. v.?. • .. 6 ? . `J' . . <wr v uruwew . , 6 . ? ? 9 a ?P ?? " m• ?.. . ?. _ ? ? ? . . . Y . . e . • . .. a.•- 1 " ? w? ? . . . i . . . ?? i . . ? { ? ? . . y ---------m? { n?ae ? • ! `- . • ? ?ib p F ?0jk. . • '. r + u . r . o r .•,R a ? • r s ? - ? ?• } . ?Y ? ? . ? . , . ? ? ?? • . - . d. _ ?n.?..n 6 . 9 o ?J 9 , a ` ' ' . . . ?s ?.' 1569 `? '^r'y.p o. au. wr rt.c. ? ?r.o 284 31 ' I .. 290.00 MEMO TO: DIANE DOWNBO UTILITY SILLING CLERR FROMs EDWARD J. RIRSCHT, SR. ENGINEERING TECH DATE: JANIIARY 24,, 1991 SIIBJECT: Lot i, Block i, 8 an8 W Industrial Acres Chanqe in R.E.F. for E-Z Mini Storaqe Co. 40254; Sibley Memorial Hiqhway 2 have recomputed the REF's for E-2 Mini Storage Company at 4025 Sibley Memorial Highway. The total REF's should be 34.5 instead of 40.8 REF's. The total net area was increased from 8.5 acres to 8.67 acres and the impermeable surface was reduced from 75$ to 62%. This review is based upon a site plan review and I also reviewed the aerial photograph. Edward J. irscht Sr. Engineering Tech cc: Michael P. Foertsch, Assistant City Engineer Chris Snowaert EJK/jf 4?; city of eagan d/o 01 MEMO TO: DIANE DOWNS FROM: ED KIRSCHT, SR. ENGINEERING TECHNICIAN DATE: JANUARY 24, 1994 SUBJECT: STREETLIGHT ENERGY COST FOR LOT ?1,p BLOCK 1, S& W INDUSTRIAL ACRES 4029?IBLEY MEMORIAL HIGHWAY E-Z MINI STORAGE OWNER - NOIAN AND NOLAN This memo is to inform your department to start to invoice the energy cost of $31.45 per quarter to Lot 1, Block 1, S& W Industrial Acres for one individual 150 watt streetlight effective January 1, 1994. This quarterly rate is based upon the energy rate of one-150 watt streetlight at $31.45 per quarter. Y Ed Kirscht cc: Mike Foertsch Jerry Wobschall 6 ?- --) 90 EJK/je CITY USE ONLY L BL /- RECEIPT #: ? SUBD. ?G(J ? DATE: . 1996 MECHANICAL PERMIT (COMMERCIAL) CITY OF EAGAN 3830 PILOT KNOB RD EAGAN, MN 55122 (612) 681-4675 Please complete for: ? all commercial/industrial buildings. ? multi-family buildings when separate permits are pgi required for each dwelling unit. DATE: 12/2/96 CONTRACT PRICE: 1,000.00 WORK TYPE: NEW CONSTRUCTION INTERIOR IMPROVEMENT DESCRIPTION OF WORK: Close in place 1- 550 gal. U/G Tank FEES: ?$25.00 minimum fee 2[ 1% of contract price, whichever is greater. • Processed piping - $25.00 • State surcharge of $.50 per $7,000 of pg= fee due on all permits. CONTRACT PRICE x 1% 25.00 PROCESSED PIPING STATE SURCHARGE .50 TOTAL 25 , 50 ----- -- p ? SITE ADDRESS: EZ Mini Storage, 4025^Sibley Memorial Highway OWNER NAME: EZ Mini Storage TELEPHONE #: 546-3206 TENANT NAME: (IMPROVEMENTS ONLY) INSTALLER: Griggs Contracting Inc. ADDRESS: 530 Shoreview Park Road, Shoreview, MN 55126 CITY. Shoreview PHONE #: 482-0444 STATE: MN ZIP: 55126 6 SIGNATURE: ? /U SIGNATURE OF PERMITTEE CITY INSPECTOR RECOMMENDED CHANGES IN GAS EQUIPMENT25203 NSP HA8 DETERMINED THAT CHANGES IN YOUp 6A8 EGUIPMENT ARE RECOMMENDED AND Aqyy NING TA6 NAS BEEN PLACED ON YOUR: ... L.?/??? aSL ?GIJ [L!/Y,(,o O MN(iE ? WATEH HEITEp XFIIpNACE ? OTXER THE PR09LEM TO BE CORRECTED IS: - ? DEFEGFIVE VENT PIPE ? OAS PIPING RESTRICiED ? NOT yENiED PROPEFLY ? FAULN ELECTRIC WIRINO ? IMPROPER VENT SIZE ? INADEOUATE CIEAHANCE ? WATEfl LEAK AT APPLIANCE FFiOM COMBUSTIBLES ? APPLIANCE NOT, INSTALLED ? MPHOPERPIPINqCONNELTION3 TO CODE OTHER CONDRION WHICH MAY - ? IMPROPEF SIZED GAS PIPING 'BECOME,HAZARUOUS TEMPORARY REPAIR i SEE REMARKS PHONE 8 :5V6 YOII, NOT NSP, AflE ACCOUNTABLE FOIi ANY 11DVEXSE NCES NESUL7ING FAOM THIS UNSRFE CANUITION NOT BEING COXRECTED I HAVE BEEN ADVISEU BY AN EMPLOYEE OF NSP THAT 7HESE CHANGES SHOULD BE MADE 8Y A QUALIFIEO, LICENSEU PERSON IN ACCORDANCE WITH MANUFACTURER'S INSTFUCTIONS AND IN CONFORMITY WITH LOCAL CODES AND FiEGl1LATIONS. ALTHOUGH THIS EQUIPMENTIPIPING DOES NOT PRESENT AN IMMEDIATE HAZARD, CONTINUED USE WITHOl1T THE A80VE GHANGES IS NOi RECOMM DED. CUSTOMER 31GNATURE TE ? OWNER ? TE&N7 ENT NORTHERN STATES POWER OMPANY Fam 1]-2586 Cswvir.c acwcnu 0 ? 11 city oF eagen THOMASE6AN Mayor PATRICIA AWADA SHAWN HUNTER Zoning, Comprehensive Plan and Fiood Zone DesignationTH oooae'wACHrea Confirmation Letter councii Membars 014 THOMAS HEDGES Subjeat ?/ CiN Administrator Property / Oz S I6f Q L?v n 7'I ?l'4OCI AL '?/wS? E. J. VAN OVERBEKE City Cierk DaV ?0 ?AL.E name Na/trFtERN G, FE TtZ. I00 C?wSHiAu/ioW A-uE. 57,5. POU N1+vru,42au5 ? V17U SSyO/-Z/2/ street address city state zip The subject property is zoned .,L / Z i m , rEio .=rvDvs-l-PlRl, Comrehensive Guide Plan Designation_Z"rv6 L r M r-rEo lNd> usr/tla4 FLOOD INSURANCE RATE MAP Property appears to be in zone c Shown an map panel # Z -? o i b- 30oo Z - ?'S Date of Map 8"- /l - 75i' Source: Flood Insurance Program - U.S. Department of Housing & Urban Development Federal Insurance Adminstration. v 17 MUNICIPAL CENTER 3830 PILOf KNOB ROAD EAGAN. MINNESOTA 55122-1897 PHONE: (612) 681-4600 FAX: (612) 601-4612 iDD:(612) 456-8535 iHE LONE OAK TREE THE SYM80L OF STRENGTH AND GROWTH IN OUR COMMUNITY Equal Opportunity/Affirmatlve Action Employer MAINiENANCE fACILITY 3501 COACHMAN POINi EAGAN. MINNESOiA 55722 PHONE: (612) 681-4300 FAX:(612) 681-4360 TDD:(612) 454-8535 Customer Information Log Rec. No. Date Customer Name Customer Address Sibley Memorial Highway Other Location Nature of Concern Park No. Emplovee Resolution ansnoos 1953G 0722/2003 Jamal Ansan 3945 Sibley Memaial Highway Eagan MN &W in front of reslaurant reeGS pmnln8. 61 Oanwn Trees tmmmed, bucklhom, haneywckle, 5 Wnes rmnvea. at LIn?3i B? St '` i Tr tfG?G t - ?„ ?` " W" ? : _ . re e ?. a on E s _ . .: . :,?. _ , .. ,.?, .: . µ ..: .x. . . , -. - ,: ? _ - , ? _ .?. -cuz . . ?..?.. t1311 06262002 hNTA SibleyMertwrialHighmy Fapan MN CetlarvaleShopqngCV Pole#755sIrceUlghtlsouL Erhart Far.etlXcel. FA?. Streets.Assistanceinformational= ;w.. -??, 58% 05I032007 Patti 4025 SibleyMemonalHiqhway Eagan MN Pnva[eenlronce-wrsareperketlonprlvatetltlve.Wanisasign. ErhaA Owner'srasponsibililylosign - referteCtoEFA. BC` s. .T, ..-: ??:. S - UtiiKies erv Conn.Frozen -- 5183 0P/2fi2001 Huey Dang 3207 SiblryMemonalHighway Eaqan MN Nowater. SLMatlin L=54',R=103'.Frozen-aCVisetl. 10320 03252002 Sleinar Cory. 3255 SibleyMemorialHighway Eagan MN Widstrom 608?6141604-dearserricelim brjpnlservice vnlM13245. 4541 10Y23I7000 Ron 4155 SibleyMemonalHighway Eapan MN CaoleBUilEine Sewerweterbackingup-IUlietsaren9woMing. Borasr ChecketlUS8D5MHS-cilyrreinhee,tlear&floxing.5pokewithbuiltlingmanagerrohave servicecleaned. Theymight want itNtlafterdeaned. 14632 01/302004 KeNn Lynch 3840 SibleyMemaialHighway Eagen MN Water tumofftorrepairs. Hcepner TumeOVrd[erolitorrtpelrs. .. , . . . ,.?;. . . ...._ ? . ? .: ?? ss , . . ..:.. _ .. .?.e- - . _., . _ : . .... ._ _.:. , s?u?llssist., sfan `:-? ?.,?i 10308 03I122002 Dave kalscher 4155 Sibley Memaial Highway Eagan MN CoulEn't run fanera (3" Iln^). Camea hired lo wme oul in am. Bordsh Rewmmentletl vanous excaratars for hartieowner to use. Will metl a tligger. Problen is 45 W1 close to wliere il <onnttls lo main. 071PBf2000 Afni Sto2ge ... SiblryMemoriafHighwey Eagan MN InlerseciionM77&Hwy 13 4999 01/14R007 LaFOntla fteslaurdnl 3fi65 SibleyMemdialHighway Eagan MN Carol - Marager.Sexerbadcup. Baash Che[ke0ourlirie-mnninggootl.HOvistdRobrROOCer.615 13597 09/202003 3992 SibleyMemonalHighway Eagan MN Wa[ercorringuptrom0ooi. Robohm ServicelinehitwhilejackhammenngfioocTUmedwater oHatC.6.&toltlrocellehenfxetl. Page 1 of 1 ' << /z 6 50 -/ 5-/ Project Name: EZ ~ I N I STO ~AG ~ Noian & Nolan ~ i ~/'~d s ~ ~ ~~?P~ . ~NM~NU05 ~ ~ ~ Q 809.2 ~ 809.5 ~ ~ ~ ~g o.¢ ~ _ ~o~E .9 .~80~ ~ a 8os ~ p i ~ ~.3 ~ z 8.9 ~ ~ ~6. J~- '°B~ _ • 806.4 ``°808g. -b ~ 0.8 d,, ~ K 8D5 7"° v, ~ ~ "~0. ~ r * 805°#~--4B 06-.~ ~ 5,, ~ 8d8.3 ~ ~ ~ .y-° ~ = 804.6 `L , 810. 11.0 { 7 ~ . • 806.3 yt ~ ~808.1 * 805.0 , g - ~ ao-° ~ ' ' - _ ~ 810. 11.3 B~ 05.0 ~ ~ ° x 805.1 8' - -m,. x 806.2 $0&.3 - ~ ~ ~ V ~ ~ = 81 . 1.6 Eagan, Minnesota ~ pg^g'~ 8(?:~. i - 805.1 ~ ~ 7 _ ~ K~08.5 f • 805~1 g"" ~ ap8' 4,,, x 806.5° ~ x 81 . ~81. rr.s C ient Name; ~ °''r • 804.9 4 6 ~ ~ 11.9 8~Q9.~ i,,8~6 ' 6' .2 ~ ^ 08.8 ` r ' 9 04.7 . a, • 07.4 ~ 6 s . ~ ~ 8 ~ ti _>x 805.7 ~ he ~ 'ti. 812.3 Malkerson Gilliland Martin, L~P g ~ 895.6 h e~6 ~80~ f ~ ~79 8 7 0 ~ ~``6 6~ °e°~.~ '~~'Le o ' x,~08.6 ~r g ~s,,~ 9 x 96. ~ , 1750 U.S, Bank Plaza South Tower 3uildin ~s g A~os.o ~ x 6 ~G , ~ f ` 79 . 79 ~ f 220 South Sixth Street ~~'~'~~G~~``~076 8129 Minneapolis, Minnes~ta 80~ ~ ~80 `a ~ ~ .s ° ~,sos.s ~ ~ : ~9.2 , 7 3 , gg ~ " . . „ - , P xe~s ~ _ _ ~ ~ ~ . . - = , ~m x807,fJ , . r._ ~ ` . ~ € ~ 79 3 ~ ~'cfl'2, „ 813~ ~f ~4 ~r .4 4 - 7 - \ 806.~ ~ 809.9 80~ ~ ~ 6 0 7 ~ ~F ~~810.4~ ~ ; t ST ~ ~ t `~6~, T('`,~-~ e. U Y 7 3 7 5 : ~~~807.9 ~ ~~~~'~g 4.9 o vwi ~ ,o ,,~JV= 96 ~ .a ! ~ W~~ 8f0, x ! 7 9 z o ~'sos. R s. 7 ~ ~ ° 9 . ~ 1 ~ ~ 812.T~ 7 9 . '4 ~ ~ t ~ ' x 46 ~ ~1 ~ r` ~d _ r 80~4.4 ~ Q W ~r f I g ~~&07.9 ~ ~ ~ 1 8 9 9 • Z~~ 6 .9 ~ ~ 9 ~ ~ eds;~ . o ~4~.1 S~'' ~ 1 = 8~ .7 i ~ „ ~ x 9s. ~ ' G R G P L L C 1 ~ CULV ~ ~ 80 ~ 4, - / f ~r ~p~,A~ ~ ~ Professional Services: ~ A _ ~ INV=800.2 ~a 4 - ~ o - E`, x 805.8 ~ ~ ~ ~ . ~ d„ 807.0 ~ * 810.5 ~ 1 . ~ .~L~__ e 806.2 1 ~ . . , x„~0,`'ks°~ -~n .~~806,7"°806 x 806.3 l067"°806~. 806.3 y°" ~ " 8~ ~ ~ a ~ r , ~ a p - _ r _ ~ ~ 807.1 ~r-M ~80B^°` B13 ~X s ~ ~ ~ ~ ~ - x 806.4 E1E ~ ~GAS E~ ElE ' GAS Gp5 G S ~ E M~°80B-~°" x 8123 l~ A550C oATE , ~8 , E S GAS £L~v~=•--_-____ ELE r - - ~ a~ . 80&.0 805.5 - 't 804J 804.8 804.9 GAS GAS q^ ~ ~ 805.3 805. 806.7'. -t- - _ _ _ OC NO 530585 -m ~ ~ r \ i l~ ~ 815.2 ~ ~ ~ x bl~.3 ,r Planning • Civil Engineering ~ Land Surveying 805,9 x805.6 x805.i , I ~ * 504.8 , Q p , • 804.8 ~ ^ ~ O ~ 805.1 • 805.6 * 905.8-~ ~°'°'806^ ;°'°'806.3 ~ " 806.5 x 806.8 ~ q '6~2•7 landscapeArchitecture •Environmental 0. ~ 3~ ~ 0 804.9 8 805.1 7.4 OZ4 ~f FFf , 805.9 ° ~ ~ ~'P4.7 /~~0.8 ~ ~ ~k~ ~ oy~ BUILDIN~ aoa.s ~ o. ~ r~ ~5 ~ ~ sozq - _ _ _ _BO~t~...._.. i.o... . 1~j~ ya p,,r0 ~12.2 , 2 72D0 Hemlock Lane - Suite 3U0 aF~', ~ 1 6UlLDING ~0 ~ ao~.s ~j i ~ \ ~ ~ = aaa.s o 4. 5 $°F 807.8 ~ Minneapolis, Minne~ota 55369 805.7 ' 4.6 ' , x 805J * 806.1 = 8 . ~ 80Z9 \''r ~ - •805 ~gp¢,g . 80&4 \ Telephone:1763}424-5505 ~ Fax: (763)424-5822 ~ 8.3 x 8 .4 x 804.7 = 805.0 ~ 4 R 805.4 ~ 805.6 ~ s 806.3 807.4 807.8 .808.5 p ` 806. • 805.4 ' 805 . gp4,g 8.3 • 4. ~8~~..~-806,0 x B06.6 '1~ ~ PlPE LlNE EASEMENT ' LlNE EASEMENT www,loucksmclaga~.com ' 0. * 04.6 x gQS.! • 806.2 CURB AND GI~NFR"~(77Pj 808J a 4 ~ 805.5 x sos.s, • 806.5 ~ '19 PER DOC NO 53058~ DOC NO 530585 ~Z~~ ~ ~ ~ 8~ 9 = 807 r gp~ g, p`~ / .C~~ AND DOC NO 45025t oy~ 8UlLD/NG ph~ 6 , 807.6 807.4 ~ Q 808.8 ~ $ 4~ soss ~~E ~F~ ~ ak. y: BUILD/NG y y Q~ ~ DOC NO 450256 CADD ualification; o ~ , 0 1 ; sas.o t~D~ 4FE g E ~y. p6 907.4~ q~~ ~ &08. ~'h~ CADD files prepared by fhe Consultant forthis projed are ir~humente of fhe ConsulYant pmfeasion~ servic~s 805J 805,2 805.0 ~ 4, ~ ~F~' ~4F~ ~4~' k" 0~ E ~ e / ~ ° * 805.3 ' ~ , 07.3 ~ ~ gg~g ~P~ iw use solely wim respacf M ihis pmject. These CADD fdes shali not 6e used on other projecls, fw additlons to this pmject, N m] x 805.1 " 8 x 4. = 806.4 806.4 Q,! ~O 608.7 0. z 4' i = 804.8 • 805.2 x 805.8`°" ~ 806.4 6 08.4 809 or tor compleHon of ihia pmjed by others wlihout v~iHen approvel by the Cansultant. With the ConsuftanPs approval, oihe~s 805~7 ~ 605.3 x BQ5 5 6) x 806.1 806.6 np~ 19• y Z n ~ 7 ~ p 805.8 „.1 .7 x 805.9. B~ •806.4 " ~G~Y 0~~ ~ ~V may 6e permitted to obiain copies of the CADD drawing files for ir~ormati~ and reference only. Ail intenGqnal w unintenGonal ! ~ 805.1 BOS.f g 1 =806.5 n'y ~ 808.2 ~ 0 ~t9 F~' ~ ~ h• 0 ~ 806. 7P.0 ~j \ C ~ F ~ J E ~4 E h. 6. 806.8 ° Y t~ IS tS ~p4 ~ revislons, additions, or deletions lo ihese CADO files shall be made at 1he full dsk of ihat pady making such rewsions, additbne a U L D/ N G F F B U I L D I N G a° a°E~ k 9 so ~~4 t~ 8 0 5.~ a ~ F ~ 0 8. 5 ~ ~ deleliuns and ihat paAy shail hold harmless and indemnify Ihe ~ Consultantirom any & ali rasponsl611iliea, claims, and liabiliti~. ' - ~ ~ - - - - _ _ - - _ . _ ...u' 805.7 . S05:C bC5.0 8 J . ~ - - ~ ~ ~ ~ ~ . , ~ _ P~/ tiJ z` , ~ ~ ' ~ ' ' • • . 8 , 806.9 r 0 _ _ , - ~ ~ _ , _ ~,,,_n~ . ~ - _ S-f:~1~STE2 - _ __rP311 ~ ~ t~ 8~ ~ ~r 805.3 n 805.3 x 804.9 .6 ~ 4. 6 / \ 806.4 x g07.8 ~ 8Q6.4 6.~ , ~ x 804.7 = 805.0 = 905.5 • 805.8 ~ 80 ~ SubmittaL ~ ~ 805 7 05.6 805.4 U A 6 O ~ 4. ~ • 806.0 / / ~ 2-7•05 DRAWING ISSUEIJ 4. i ~ / ~ F 06.4 ~9~78 ~ / ~ ~ x 805.5 Ul~~ING 66.4 g 809.3 ~ = 805.8 805. ~ / U6~.3 t° 808-~, g ~ ,,P / 3 805.2 x 805.9 „ ~ / R 805.3 r" .m« `s` 0 ~ , • 805.3 ~ ~~0~°r„g12 4° • 805.2 ~ 0 804.7 x 805.7 p6`~ " 08.4 ,,,~gi~ / d 0 D B04.8 805.~ B05.6 t8 gg~, ~"8fi,3~ ~~,,gtb~ ~ 0. 8~ Or~ ~ \ a 805.7 806.2 ~1 ~ _m ~ L 1NG y9 .a`a ,r~- 119 ! x 806.6 ~ 06 3 ~~FE f ~ F /l ~ ~ * 806.7 6 ~ ~ 806~5 4• BO .7 f 4. 8 04. = 05. / ~ 1` ` ~ 8 9 8D51 805.5 ~ i~f f o eos. k b \ ~ so ~ / ~ r'.d Dc V ~ x 804.7 ~ ~ 9• *806.2 xso~,~ r,' ~ f * 805.2 ~j x ij, 805.5 ~ 80t6 3. ,f l~ V~~ x 806.8 t /~.~/l~~i 6~ t~ ~ ~ ~8,~: g~FE 806.0 ~ Q ~Q ~ 807.5 s~ F b05. rY ~7. 0 4`~ ~ ~ 8tJ6, 6 } ~ 0. 04 8 ~ 80 .8 x 805.0 ~ f~9 4 i 3 $08. 0 .9 %'n ~j ~ ~ q 4. x 804,7 ~ ~ Y 1 5•2 808.4 x 8~ .3 805.3 05,8 ~ ..8D6-- ~ ~ ~ ~ o,.. ~ 895. ~ Professional Si nature: I hereby certify that this plan, specification or reportwas ~ ~..808-- a,. m°' p = 809.8 = 809, 8 ~ o.. ~ ~ = 81 ~ Q prepared by me or under my direct supervision and that ~ *~J "P~$~ 81 x y ~ ~ 8 I am a duiy Licensed Land Surveyor underthe laws of the Siete of Minnesota. M=S~g 45'38'E =S~974'20"E ° 0 ~ 284.31 ~ ' Richard L Licht - LS 26724 ~ 1-20-05 License No, Date ualit Control: RLS Project Lead: Drawn By: RLL 1-20-05 Checked By: Review Date: icinity: SURVEY LEGEND - EXISTING CONDITIONS > FLARED END SECTION "-STORM SEWER ~ CATCH BASIN > SANITARY SEWER a~ ~ STORM MANHOLE I WATERMAIN SANITARY MANHOLE ~ UNDERGROUND TELEPHONE ~ r ~ 4~ WATER MANHOLE -~AS-UNDERGROUND GAS ~ r oH _ 0 60 120 0 TELEPHONE PEDESTAL OVERHEAD ELECTRIC ~ UGHT POLE -x X-CHAIN LINK FENCE ~ POWER POLE -o--o-WOOD FENCE ~ NORTH Sheet Title. D4 GATE VALVE CONCREfE CURB SCALE IN FEET ~ HYDRANT ~ < a ~ CONCRE7E ~IMITED ~ SIGN 2'°"~``> CONTdUR B~UNDARY & Twg'I TOPOGRAPHIC n~ne Pf1/1T I~II~IIATIl1A1 ~r~i ~~~vnii~iv M= DENOTES MEASURED BEAKINGS P= DENOTES PLAT BEARINGS - SURVEY Pro'ect No.; ' , 04115 Sheet No.: 1 OF 1 Project Name: ~ EZ M I N I STO RAG E ~ ^i~ r 1 ~ i e i i i i Nolan & Nolan _ i~Ai~i n ~ Y' I F! i I 1\ i N h-I I l l! y n ~`i 1\ j ~ i~~i i v i~ i i v r ~ ~ < i ~U~: ,1 .~r ~~e ~q ~Pd P.~.t t~ , 1 ~ ~ ~h N i . ~ U~~ ' ~ ~ ti~ ~ ~ ~i OF BINMIN . 08.8 '809.2 ~809.5 ~d ' ~ i~~i ~~i~''~ . ~ ~D~E .s 8~" ~ ~ t " 809. ~ ~ y, .4 r ~ ~ ..e 8&2.3~ ~ \ ~~f~19 y 8.9 :.v~+o•~r ^ &P5. f-- ._..'.$,~6.2 ~ . 806.4 ~ ``BpB~ ~ 0.9 f °~,l1.?,~ -„'$GS"7`-° e- _ ~ = 805:4~--806--- . \ ~ ~,g, 649.3 J " B96-Z, z, I1.0 f ~ = 904.8 ^.804.G- - '"J ~845 fi- .r @Q4.4~ . 804.7 ` ' 806.3 ~ . r8Q8.1 x 805.0 ~ :d2U'4 0 ~ ~ ~ y " ~BO4+. " 804, 8 ~ ~ r ,.~.m .a.~..~ =w.v,~. ~ ti. 6` • 810. H.3 • ~ ~ x 8~3 6 .r f ~ ~ ' ~a ~ 80?~. _ ~ 1• 805.0 ~ / N - ~ 805.1 P, ~ ~ ` . x 797.3 ~ r9~:7 _ „ 79'P.7-~ "m80p.m»a.~, ~ ~ ~ 6.2 ` ~,3 808.3,r -P P. ^ $03.fi-- ° `'798~.. ~ \ x DDRj .7 e w V r~ ~ ~ x 796.9 ~ `TS,T. ~z*~:a' . r SQS.i ,ti ~ma " BI. IL6 pA:g~ ,i^ 805.1 ~ ~ 8D3.Y ~ P S ,1 °e~ ~ ~ ~ \ e".z",a Eagan, Minnesota c~08. ~ ! ~ I ' " 797.1 ~ 97 6. °o ~ * 805 2 0 !ti ~ 9 C ient Name: 6~8~ "'a. f ~ = ~ ~ \ . / ~Q4.. `a ' 806. ~81. Il9 ~6''` ~ 804,9 / / '.~79696,4 . ~ ~ ~ ~ ~ \ ~ w e°,,~.a'~ ~,0 ,i CULV ~796.2 .~se.~. ~ ~ os. e r i ~ x 796.3 ~ 4. ~ x ~or.4 ~ ~ ? ~ INV=796.4 r 796.3 ~ ~ ' ~ ~ ~ f. e . 's, \ ~ ti , ~ s,2.3 Malkerson Gilliland Martin, ~LP ~ / 805.7 f ,i~ ~ 796.0 "79t3.,~.,, ~r \ . pQ5.6 ~~8 80~ ~ ~ ~ ~g92~ ~ w 796.3 ~ 796.1 ~,796.0 ~ ~ ~ x 4. ~ p~ "796.8 ~ 796.3 796.0 x l~^ ,g°' ,Bp ~s ~~a~.s ~ ,~o~ ~ g~, ~ ~ss. o ` ~P , ~s\8~'`~ 1750 U,S, Bank Plaza South Tower Building . ` ~06.0 r 796./ '1~, e~ \ ~ ~ x / B ? ~ ~ e~ 220 South Sixth Street G ~ ~ ~ ~~07.6 , 8129 f, ~ / .~s; ~ x ~ss.e x ~ss.z = ~ss.a , ~ss.z ~ ~ss.z ``~,co 7~ ~ x 5. 7977 ~ ' , , 6 ~ ~ ~ .6 Minneapoli5, Minnesota ~ ~ , ~ 809rf / ~805 9 _ _ / ,r ~f ~ r~;,~.~s . - ~ ~ . • 796.3 , 796. f ~ ~ ;~1~g~~ ~ , ~ ~eos.s \ f,,~..~ ~ ~ ~ x B _6\ 9.2 l f.' / f ~ 796.4 ~ ~z 807,t1 f ~ ~ ~ f I • 796.3 C~~U ;`1~g~~ ~ . \ ~ ` ~ ~ULV \ ~ t~, et3.a NV=795.5! sos.~ ' s Q4~ 'f/ ~798.4 ~ ~796.4 r} ~ t r~ r e i„ n r~ r- n INV-795.5! \ ! 1 W~ 0~`4 ~ r~i irA~i~ rr~ i i i~ i i r r~- i t 7 9 6. 4 ~ 7 9 6. 4 ~ 7 9 Z 0 809.9 80~5 ~6 ~ . - - ~797 '970 ~797 ~ t ~.81~h4 ~ A / ~ , , r~,,, , ~ ~ + }~s~.a ~ STMN x798.8 7 x 796.2 C`7 8.! ~ , ` '~s,, , TC=806.1 /oti •796.5 ~~ss.s ~ U~ ~J _ / 0 p ~ ~ 796.5 " 796.3 R 796.4 x 796.3 C`79~8.! 1 m o C~q INV-796.8 3 ~ ~ ~ "~ao~s ~ ~ , eia g ~a.s N B10.3 ~x ( x 797,9 w c~ . / ~g RCP . ~ss. ~ ~ ~s~.z ~ 0 809, 89.5 ~~~U ~ x~96'S =796.7 C~~U ~ ~ ~ ~ ~ ~ 797.2 \~,~179~.Q 1 ~ .809.4 , J'~Z 4 "5'i, " - - ~ ~ ~796,8 ~,A,r,„ , A~, ~,r A ~ INV=79 z ~ 1 INV-796.8 ~ INV=796.0~ +~~l~~ ~sozs " , \ r a h,~h f 1\ tv~nt~ ~i ~ ~ rri~,F-~ t_i ir--_ uii ii r f~i it ~ ivi i ~ia_ i ~ J ° ~ ~ ~ ~ i i v ci ~i r e~ i~. r r i ~ r r i'i r i t_ i"i i i v ~i . i.. -h 8i-••~,,,~ a98~-' ~ ~ ~ ~ 9~~f I sO ' ~ ~ _ ~ 2 0; 8 0.9~/~ CULV ~ ~.a .798.6 ~ ~ \ ,,~9 d Z h.. . fSU9, ~ ~ 798•5.79.T, A.. n / ~ x 79b~ ;°°`a • 8~7 / , 79b~ r ~ PrOf8S51011dI SECUIC2S: I /5 ~00,6 ~NU=~~~, ~iy w~ l ~,,r,...._ ~ o `°'~~3°- ~ ~ _ , ~ 73 • ~ss.~ !6 NIGH PRESURE ~AS LtNE PER FIELD LOCA1tON _,,,7yzs_._ e r,,~97~~' q, ~.&Qa~, ~ ~ ~aoa~° / ~ l rr ~c,o ~ ~ , ~ 1 g~ ~ ~ 805~3 ~8 ~ ~°t • 798.4, 7 8.9 _ ~ .~798~ ~ _ . _ _ _ ~ ~ f ~ r. , ~ .^,79~,'v '°'r m,.~*• / --•-8~2°^' f . ~ CULV ~o~ / / -'°x~ea.s f a ~ ~,aoa..~ _ ~ ~ g.~ ~ \ ~ r- i _ ~ ~ ~ . i ~ _ _ - --aoa-- -8~2e.,. ~ ~ / ~ 810.5 ` 1 -804--'' 8070 f , ~ i N V-800. 2 xr~oi~q / aos 80¢e. f ~ 8os r~ so2, s - - - - - -soz- - - i ~ ~ l ~ ~ ..w. l ' ~ x 805 8 ' ~ 802.8 8a2G ; •mm~ ~-•'SU6:2"806°~06.3 Z-806°~06.3 . 8p~° ~ + ` ~ ~ $06.2 / , .,~~.7 _ ~ / ~ / / ~ eD4.9 x 805.~U' ..1 ;~AS..I M-S88°45'3~''t P-S89 1 , „ ` ~ ~ - - - - _ _ I ~20E ~ / _ ° ! ~813.~X ~ ~ ! ti ~ .r f ~ x 806.4 8071 , r _gOB ELE flf fLE ~~AS 6A5 GAS~ GAS CAS--- LE - ^ °808~" ~ _ ~ x 812,3 ~ ASSOC IATES fLE ELE EtE ELE .~'ir ° ' ^..i, ~ CAS- w-,.e ,,..~,~r- GAS ~ GAS FLE GAS ~ Etc' fLE ^ i fLE " EL - ! ~-----~~~L ` - ~ ~ 8/6. ~ 03.6 803.3 r^$Q39 804, CAS CAS GAS " GAS EG~ ~ ~ { 806.0 805,5 804.4 ~ ~ 80 . 80 . GAS ~ _ ~ _ ~ Q r.~ 804.7 804.8 804,9 805.3 805. ,r ~ i ~ ~815.2` ' ~ ~ r---'1 y" ~'3 Planning • Civil Engineering • Land Surveying r- P1PE LINE EASMENT PER DOC NO -"r- .r .r - ~ ~ '~o~a ~n~' ~-goa•~~--_____ 530585 eo6.r ~ 805.9 . 805.6 x 805.1 . 804.8 x 8042 s^ x 804.4 ~ 804.8 O_ ~~Q4.Sa03.0 g g x 805.1 . BOg..g.. 806-"" • 806.5 o / FBiz~ LandscapeArchitecture ~ Environmental i Q~• r 805.6 ~ 806.3 ~ 4 y 806.6 ~ , / ` ~ ~ 804.9 ~04.8 8p4J 804.4 ~ ~ OZ 4 / ~ ~ ~ ~k~~ r~ro.s e i i FFf i ~ 805.! 805.9 806.5 ~ w ~ f 8~ ~ 08r~ ~.........,..,.l.p.. , ~ BUILDING eo4.s i ' 804.4 ~ ~ F~ FFEB 8076 rB ,,a ~iz.z 7200 Hemlock lana - Suite 300 e°5E ~ BUILDIN 0 ~ ~ ~ F, ~oa. ~ / ~ . ~ ~ 3 6~~ Minneapolis, Minnesota 55369 • ~ 804. B~F~' 807.8 ~ ~ i 805.7 804.9 804.~ 903,3 ~ 804.5 x 804.5 • 804.6 • . x 805J , ~ ~ Telephone: (763)424•5505 Faz; (763)424-5822 c~ x 805.1 x 8Q4.9 x 804.6 ~ P4.4 ~ ~ 806.! 806. , 807.9 808.~ ~9 ~r ~ ~ ~ ~ p z 8 0 4. 3 • 8 0 4. 4 0 4. 7 r 8 0 5. 0 x 05.6 ~ 807.4 8 0 7. 8 808.Ci INE E'ASEMENI' Qc 20D4 W'""'~loucksmclagan.com i- x8a54 xso5.a 8 ,~806.0 °806.3 ~ ~ pIP£LINEE'ASEMENI' i"r~\ t~ 806. ~ 805.4 • B04.8 " 8~.9 803.4 ' 804.3 x 804.5 , gp4.6 r, 0.806 x 806.6 CUA' AND~~,~~ /('7'YP) 80bJ ~p ~~9 R DOC NO 530585 ~ ' 804.6 x 805. f = 805.5 • 805.9 ""'{'s" ~6 f'E OC NO 530585 r~ ~ &04.9 ~~~8 804.4 ~ 806.1 x B06.5 x 807! BOZ3 a~~ ANp QOC NO 450256 ~ h~ B(/f(,Q~~l(~ y~ ~ ~ 807.6 807.4 ~~O 808.8 ~ Q~ _ ~OC NO 450256 CADD ualification; _ sos.s w°F~ e°FE f b6 h~ BU~LD/N~ y ~ 809.0 Sk fl• , r~ F ~ } e~4E ~o~, ~ 6• eo~ h soe. ~ , o CADD tlles prepared by ihe Consultsnl for thls project ere irreWmenta af the Consultant pmiessfonal ser~ces o4.s ~ F~ o~' eo E o E ~ / , Q ~ , ~ , ~ ~ FE. F ~ F k o~ ti . ~ , 805.7 805.2 805.0 0 8(I4.8 . 804.2 • ~ . . 8 . , g , ~ ~ 07' ~ ~ ~ GF~ r ~ , for use eole{y wlth resped to thls proJacl. These CADD filas ahall not be used on other proJecte, for additions to ihls project, ~ , i ~ , f - • 805.3 ~ 804.7 ~ ~ • 806.4 + 8D6.4 Q q g0g~g + ~ ~ ; ~ ry ~ ~ 805.1 ~ 804.3 x Oa.3 ~ r 804.5 x ~ 805.2 \ ~~1 6 E09. 7 < 0 or fir campleUon of Ihla project by othera wilhautwdtlen appmval hy the Conaulfanl. With ihe ConsulNanPsapproval, olhers I i ~ ~ ~ 804. t 804.8 x 805.8 z 806.4 ~ ~ 08,4 809 ~ ~ ~ ~r 80 t. 805.3 z&05.5 ) x806.1 806.6 n~V~ ~9 6 77 ~0 1 ~ ~ ~ , ~ o\ 80% ` • 803.3 ~ ~ 4.7 4.5 i 8~6 . 8 6. µ~~V 0~~ ~ ~o t,l~~. ~Yy may 6e permltted to oblaln coplea of the CADp drawing files for Infortna~on and raterenoa only. AW IntenGonal or unfntenfional 80~8 5.! r~ d05.9x ~806.4 p,5 . 1~ ~ A~~ ~ ~ 805. f 805.1 ~ ~ 804.4 b. 1 ~ BOB.2 O ~ b9 r~ ~ revfslons, eddltlone, or deleUons to these CADD files shall be made at Iha (ull riak ot Ihat pady making such revlslons, additlons w , ~ ' ~v' / BUILDlN ~ ~ ~ ~o~ti ~o~~ pha o6b 806. 806.P 9 tP,, ~ i5 , ~ ~ / ~ ~ ~ F 4 B U I L D l N G ~ E e F E c~os.s O., ~ t~` _ deletlans and that party shall hald harmlese and Indemnlfy the Cansultant from any & all reaponslWllties, olalme, and Iiabill6es. ' ~ Q d'JS.~ ~ryod.,n ~ _ _ _ _ E.. _ _ _ : -_.----8~ _ _ _ ~0 . . _ ~ . B~J~.~ ~ . I ~,r'~ V" ~ 1i• ~ " Y~` ~ , h 805.0 805.0 t 804.7 • , r _ ~ ~ 8 ~?a96 c,w~y 1If~9 ~ _ -e_ _ ~ ~ - - - _ _ _ i.~6aB9b ~~~76i9fi'~~fV~ . _ . - , o4i ~ 5=naasi ttt ~j r' x 8oa.2 1 • , . B. B06.9 / ~ o L 8~. , B05.3 x 805.3 804.9 x ~ ` ~ ~ ~ ~ 804.6 80J3 . g04,4 x 804.6 F 806.4 ~ 607.8 Submittal: ~ 806.4 ~ ~ x 804.7 x 805.0 M 805.5 ~ 805.9 \ B p / ~ ~ K", ~ \ ~ 6.d.. B05.7 05.6 805.4 ~ CURs AND GUTTfR (TYP) ~ • 806.0 / ~ i ~ o~ ~74.5 l x ~ / ~ '1~ 8Q~J 8~4.5 8 ~ / t ~ Part of Lot Block 1, S& W Industrial Acres, accord~ng to the recorded plat thereof, Dakota County~ 2•7•OS OKAWiNG ISSUED ~i_ ~ J r FFf l107.8 i• n ~~i lA rr~i ~i r+i e e i~r~ri~ 06.4 ~ , .t ~ni i~~i~i~~• ir-riiii i~1 FfF-. / .i ~it r r i r r~i ~ i. i ~ ~ ~ i'i i'~ r~ .i ~Ul«~N~i 809.J I~, ~ ~ Minnesota. _ •8055 805.8 ` ~ 6.4 80 / / tY! ' ~ 805.8 804,8 F BOB~ ~ / ` G~.3 ~ 8 d.,~ i ~ * { 803.B \ " B~4. ` 8J . 805.2 ~ x 905.9 „ 1 ~ ~ / / ~ x b05.3 ° ~ ~04.D . 804.3 ` 804.5 = 805.3 '°'~!0°°"~,g12 ~~4 / ( , + 8052 ~ ~ ~8~k , 804.0 y B04.7 x 805.7 Bp6~ $II~ x OB.4 ~i r.8~ r„' GENERALINOTES ~ „ 8042 , 804.3 804.8 805•~ 805.6 ~ 8P$. ,,,~~'~,,.r ~8~ ~ ~ I ~ 804. B.3 D~ e ~ 805.7 ~ 804.2 806.2 / ~ f ~ ` ,i • _ ~ 3 . ~ 1) Pfease note thatthis is a partiaf 8oundary, and a[imited topographic survey. ~ ~ ~ BUICDlN h9 ~ ~ 119~8 , , x 806.6 " 06. 803.8 G $pF~' ~ ~ ~ ~ ~ 4 6 ~ 806. 7 8~~. 80 ~3 d/~ ~ + 8~ J i ~ 804,2 8. 804, 8 804.9 805.1 805.5 r 8R5. ~ J 2) The legal description and easements shown hereor~ were obtained from a titie commitment issued by , o , ^ ~ 8G6.7 ~ on~ - ~ ~ ~ ~ 803 6 * 80,~a~r • 804. ~ ~~j QI V Chicago Title Insurance Company, Policy No.10894, first supplemental, dated September 26,1996. , f ~ --804--~. ~ 804.6 • 804.7 ~ . 1 ~ 8047 / / a 807. t f 804. 04.F Og k ~ ~''i ~t~ • 806.2 j 804.J x 805.2 ~ ~ % G x 8076 6P3.8 ~ F~£ 805.5 ~ / ~ R 3) Bearings as shown hereon are based on the Dakota ~:ounty coordinate system, , ~ / ~ 0 z 806.8 ^ ~ soa~ BUILD(!t ~ o~' sas.o 00 0 s~e i g4~ eos. ~ ~o = 807.5 ~ , 4 ~ K 806,6 804.6 804.2 " g04.2 4.~; 804.8 * 805.0 g~~ 4) We have shown buried structures and utilities o,n andlor serving fihe site to the best of our ability, ~ ~,'803.9 8a 808. .9 ~ct~j ' ~ 604.4 ~ 804.4 , T" ~ subject to the following res#rictions. 5.2 804' ~ 808.4 ~ V ' 8D4.9 4.6 905.1 p G~ / H 8~g.3 ~ 805.3 ~ . B ~.806-- ~ ~ _ ~ ~ ~ Professional Si nature: ~ .v 805.8 .._809-- q a) Utility operators do not consistently respond to focate requests through the Gopher State One ~na~ay~a~r~~ha?m~sp~a~,5pa~~r~aua~o~re~~Was prepared by me or under my direct supervisinn end that ~'~0 ~ 809.8 • 8D9.8 , - - - - ~ ~!0 Q ~ ~ m.° ,a,ow ~9l ' / Call service for boundary purposes such as fhis. I am a duly Licensed Land Surveyorunderthe laws 1 ~ ~ ~ ~ M=SB&°45'38 "E P=589 °!4'20 "E ~ 1~,~ o b~ Those utility operators that do respond often ~~rill not locate services ~'rom their main line to the °f`n~s~ta°f""`""Q~~. customer's structure or facility - they consicler those segments private installations that are 0 284.N~ . / r~ i r~ i r- ~ i ~s r. r r rti -r outside their jurisdiction. If a private service ts~ an adjoiner's site crosses this site or a service to R;~ha~a ~;~ht-~s . l F{ t 1-- Y 1 t! t I h I i . ~ 1 L/ L_ L.. I \I l/ ! I ! this site crosses an adjoiner, it may not be ~ocated since most operators will not mark such 26724 ~-zo-os "private" services. ~~~ense No. ~~~e c) Snow and ice canditions during winter months may obscure otherwise visible evidence of a buried structure or utility. ualit ControL• dy Maps provided by operators, either along witf~ a field location or in lieu of such a location, are RLS very often inaccura#e or inconclusive. P,a~~~e,d; n,~W~~y, e) EXTREME CAUTION MUST BE EXERCISEQ ~EFORE AN EXCAVATION TAKES PLACE ON OR RLL 1-24-05 _ _ , ;~~,QR~T~!!S ~~3`E. .~EF~RE ~~~C!€~G, ~0~3 ~i~~: ~~Qi1l~ep BY LA~V T(~ NOTIFY GQPHER STATE cne~k~~,: Ne,,;~,,~,~~e: ONE CALL AT LEAST 48 HOURS IN ADVANCE ~T 651I454-n002. fl Per Gopher State One-Call Ticket No. 50006147, the following utilities and municipalities were ~c~mty: notified: GEND - EXISTiNG CONDITIONS SURVEY LE > FLAREQ END SECTION "-"'STORM SEWER CON9PANY PHONE NUMBER ~ CATCM BASIN > SANITARY SEWER ~ AQUILA 7633980980 Q STORM MANHOLE I WATERMAIN CiTY dF E:AGAN 6516755300 CO~ICAST 6512240413 SANITARY MANHOLE UNDERGROUND TE~.EPHONE: ~ DAKOTA ELE~CTRIC 6514636268 ~ ~ WATER MANHO~E -~AS-UNQERGROUND GAS MINNEC~ASCO 3209638511 ~ ; s oH T ~ a so 1zo p TELEPHONE PEDESTAL OVERHEAD ELEC R1 DEPARTMENT OF TRANSPORT'ATION 5127252310 OCC 6516817325 ~S LIGNT POLE -X X-CHAlN LINK FENCE NORTHERN NATURl~L GAS 6514637128 P LE -o--o-WOOQ FENCE Q1 POWER 0 XCEL E~JERGY 6512292427 NaRTx XGEL EWERGY 6126304366 Sheet Title: D4 GATE VALVE CONCREfE CURB SCALE IN FEET G~WEST 6512244413 (.~M~TED MYDRANT ~ ~ • CONCRE~E ~ ~ BOUNDARY & SIGN ~a~2'"~ CONTOUR TOPOGRAPHIC ~972•5 SPOT ELEVATION M= DENOTES MEASURED BEARINGS BENCHMARtC: SURVEY P= DENOTES PLAT BEARINGS ProjecCNo.: Mnldot Benchmark disc No. 1925E 1980; at the Junctian of Trunk Highway 13 and Trunk Highway 77, in the top of a railing at the northwest corner of west bound 1"runk 04115 Highway 13 Bridge, elevatian = 82$.58 feet (NAVD 29) Sheet Nn.: 1 OF 1 ~s~~~~~£!~ ~ 7~ ~~f1 M ~ __._W_._ . _ _ . ~ . _ ~ ~ _ _ _ . _ _ _ , . ~mw_ ~ .~~F~~~ m:~. . ~ ; , ; ~ ~ ~ ~ ~ ~ ~ ~ ~~~,~s~~;~ ~~d:n; ~'~„~~;~~ax~° an;r;< ~ ~ ~ ~ ~ ~i ; , _.y:: ~w , . ~ . _m , , i ~ ° ~ ' ' ~ ~ ~ ~ ~ ~ . ~~u t ~ ~ ~ ~ ~ c~ ~ ~ ~ ~ i``i~ J7 ~ , , ~ ~ ~ , :.i . : ' ~ ; ~ ~ ~ ~ ~ ~ ~ ` - l ~ ~ ~ ~ s~.- ~ ~ tn ~ ~ . ~ l, ~ , . ~ . . . . 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