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HomeMy WebLinkAboutJune 6, 1994 Special MeetingCITY OF COLUMBIA HEIGHTS 590 40th Avenue N. E. Columbia Heights, MN 55421-3878 (612) 782-2800 June 3, 1994 Mayor Joseph Sturdevant Councilmembers Donald G. Jolly Bruce G. Nawrocki Gary L. Peterson Robert W. Ruettimann City Manager Patrick Hentges The following is the agenda for the special meeting of the City Council to be held at 8:00 PM on Monday, June 6, 1994, in the City Council Chambers of City Hall at 590 40th Avenue NE, Columbia Heights, Minnesota. The City of Columbia Heights does not discriminate on the basis of disability in the admission or access to, or treatment or employment in, its services, programs, or activities. Upon request, accommodation will be provided to allow individuals with disabilities to participate in all City of Columbia Heights' services, programs, and activities. Auxiliary aids for handicapped persons are available upon request when the request is made at least 96 hours in advance. Please call the City Council Secretary at 782-2800, Extension 209, to make arrangements. (TDD/782-2806 for deaf only) 1, Call to Order and Roll Call 2. Pledge of Allegiance Public Hearings/Ordinances & Resolutions a. Continuation of Public Improvement Hearing: Erosion Control on East Bank of LaBelle Park RECOMMENDED MOTION: Move to close the Public Improvement Hearing for the LaBelle East Bank Erosion Control Project. b. Other Ordinances and Resolutions New Business a. Authorization to Seek Quotes for Rubber Surfaced Crossing Material RECOMMENDED MOTION: Move to authorize Staff to seek quotes for the purchase of rubber surfaced crossing material. b. Other New Business RECOMMENDED MOTION: Move to adjourn. Pat Hentges, City Manager 94/57 WORK SESSION SCHEDULED TO FOLLOW REGULAR COUNCIL MEETING 'SERVICE IS OUR BUSINESS" EQUAL OPPORTUNITY EMPLOYER THE CITY OF COLUMBIA HEIGHTS DOES NOT DISCRIMINATE ON THE BASIS OF DISABILITY IN EMPLOYMENT OR THE PROVISION OF SERVICES CITY' COUNCIL LE3~'ER Meeting of: 6/6/94 AGENDA SECTION: ORDINANCES & RESOLUTIONS ORIGINATING DEPARTMENT: CITY MANAGER NO. ~'~ PUBLIC WORKS ITEM: CONTINUATION OF PUBLIC IMPROVEMENT BY: M. Winson fl~ BY: i~.)~f~ ~.~. NO. HEARING: EROSION CONTROL ON EAST DATE: 6/3/94 DATE: . .... BANK OF LABELLE PARK At the May 23,1994 Council Meeting, the Public Hearing was continued to a June 6, 1994, special Council meeting in order for staff to present "Slope Erosion" easements to the property owners along the LaBelle east bank for consideration. Park. The easement documents were sent out to the property owners on May 25, 1994. Contacts with several of the property owners indicates an unwillingness to to sign the easements primarily due to the feeling that having such an easement would make it difficult to sell the properties in the furore. Staff has contacted Anoka County Soil and Water Conservation. They have agreed to extend the deadline for having a contract inplace to mid-September in order to receive the 1992 grant. Staff suggests that the Public Improvement Hearing be closed after all interested parties have had an opportunity to speak and further discuss options at a work session. RECOMMENDED MOTION: Move to close the Public Improvement Hearing for the LaBelle East Bank Erosion Control Project. MAW:jb 94-333 COUNCIL ACTION: CITY OF COLUMBIA HEIGHTS Public Works Department TO: FROM: SUBJECT: DATE: PAT HENTGES CITY MANAGER / ^. w sos ?u , ic wo s omcro ,cm, ^s'r ,osio e ,o cr o oss JUNE 3, 1994 From contacts I've made with property owners on Circle Terrace, it would appear that most are not willing to sign the slope erosion easements due to a concern over how this easement would appear to future property purchasers. The Anoka County Soil and Water Conservation Service has agreed to give us an extension to mid September for having a contract in place to retain the 1992 matching grant. I suggest that the Council consider the following options before taking action on this project: Option 1 Do nothing. The City has some legislative immunity with regard to future claims over erosion damage as was explained in the City Attorney's memo. Although the Council has identified to the residents that there may be a future problem with erosion, the property owners have stated at the Public Hearings that they feel there is not a problem. As these comments are recorded in the minutes of the hearings, I would think that the immunity is still in place. Additionally, any future problems would most likely be caused by action or inaction of the property owners with regard to proper maintenance of their properties. Cost: $0 Option 2 Abandon the project but install a fence along the bottom of the slope with some dressing of the area immediately adjacent to the path. This option provides some protection to the slope from foot traffic and a deterrent to people using the wooded area for parties. Also, it would improve the appearance of the area immediately adjacent to the path. Cost: $30,000 +/- (City funds) Memorandum to Pat Hentges June 3, 1994 Page 2 Option 3 Fence bottom of slope and do erosion control project to lower 1/2 to 2/3 of the slope. No work on private property. There is a natural shelf part way up the slope which would be a good stopping point for an erosion control project. This option would utilize the matching grants, improve the appearance of the slope and indicate that the City has made some effort to correct a potential problem. Additionally, the lower slope areas have the greatest chance of success with the erosion control solution proposed due to the amount of sunlight that will reach the ground. After observing how well the slope erosion works the residents maybe more willing at some future time to become involved in an expanded project and also improve the chances for getting future grants to complete the project. Staff would monitor the condition of the top of the slope and utilizing existing (or perhaps new ordinances passed in the mean time) to obtain compliance from the property owners with regard to erosion from their properties. The issues regarding debris on the private slopes to the north could be handled through ordinance enforcement. Cost: $130,000 +/- ($65,000 grant, $65,000 City) Option 4 Force project as proposed. Perhaps drop out the properties where the slope is all on private property and pursue ordinance enforcement in order to clean up the private slopes. Cost as proposed: $264,000 ($132,000 grant, $51,000 assessed, $81,000 City) Cost w/o 4 private properties: $220,000 +/- ($110,000 grant, $39,000 assessed, $71,000 City) I suggest that the Council close the Public Heating on June 6 and discuss these options some time in June at a work session before taking action. MAW:jb 94-334 Mayor Joseph Sturdevant Councilmembers Donald G. Jolly Bruce G. Nawrocki Gary L. Peterson Robert W. Ruettimann City Manager Patrick Hentges May 27, 1994 CITY OF COLUMBIA HEIGHTS 590 40th Avenue N. E. Columbia Heights, MN 55421-3878 (612) 782-2800 Dear Property Owner: Subject: LaBelle East Bank Project & Slope Easement The Columbia Heights City Council, at their May 23, 1994 meeting, continued the Public Hearing on the La. Belle East Bank Erosion Project until 8:00 P.M. on June 6, 1994 in the City Council Chambers. The hearing was continued in order for City Staff to provide you with information regarding the project and the enclosed "Slope Easement" for you to consider and, if appropriate, agree to. As you may not have been able to attend all the hearings on this project, I will briefly recap the proposed project to-date. History A few years ago, due to the concerns of some residents, the City began studying what could be done to solve various erosion problems along the slope on the east side of LaBelle Pond. The erosion was being caused by storm water mn-off from the properties located at the top of slope and on occasion from mn-off in the street that overflowed the storm sewer system. The City made improvements to the storm sewer system that appear to have eliminated the street mn-off problem. As the continued mn-off from the buildings, driveways and parking pads on the properties, along with the rainfall falling on the slope, would over a period of years continue to erode the slope, the City has been looking for long term solutions to protect the buildings and parking areas along the top of slope. One solution was a retaining wall which was rejected due to the cost of approximately $500,000. The current proposal is to do the following: Selectively remove enough of thc existing trees to allow sunlight to reach thc slope and allow vegetation to grow. After repairing eroded gullies, install an organic erosion control mat to hold the soil while vegetation is established. "SERVICE IS OUR BUSINESS" EQUAL· OPPORTUNITY EMPLOYER Letter to Residents May 27, 1994 Page 2 Vegetate the area with a shade tolerant, dense ground cover to hold the soil in place. Install a 6' fence around the slope area to prevent foot traffic on the slope. The estimated cost of this project is approximately $264,000. The City obtained a grant from the Anoka County Soil and Water Conservation District for one-half ($132,000). Of the remaining $132,000, it is proposed that 17 properties along the top of the slope would be assessed a maximum of $3,000 each ($51,000) and the City the remainder ($81,000). The City is proposing to assess the properties for a portion of the cost for two reasons: The improvement will help to protect the buildings, parking areas and other improvements along the top of slope from eventual collapse if the erosion is not controlled. The mn-off that is or could cause the erosion is coming from the properties at the top of the slope. A number of property owners have expressed the opinion at thc Public Hearings that they are not experiencing problems with erosion on the slope and feel that the project is not justified. It is generally tree that at this time there are not currently any serious erosion problems with the slope and that if proper improvements are made and maintained by the individual property owners, erosion problems will not occur. The City Council is providing an opportunity for the property owners to avoid the potential assessment and disruption that this project would cause by agreeing to maintain their properties in a fashion that would reduce erosion. Enclosed you will find a Slope Easement Agreement and drawing showing your property and the location of the proposed easement. If all the property owners agree to provide the City with the easement, the City Council would abandon the slope erosion project but would probably install a fence along the bottom of the slope. If a majority of the property owners grant the easement, the City may order a smaller slope erosion project and potentially assess only those properties benefitting from the project. Letter to Residents May 27, 1994 Page 3 Thc area covered in thc easement is generally that portion of your property starting 10 feet from the top of slope and going to the rear or side property line. By granting a slope easement over this area, you are not giving up the right to construct any improvements (buildings, parking pads, etc.) in this area, but you are agreeing to review with and get approval of your plans from the City before consumcting the improvement. This is to assure that any improvements will not cause more erosion. The City will also meet with you to suggest improvements you can make to keep erosion from damaging your property and the property down-slope. By agreeing to grant the easement and taking the responsibility for maintaining the area in a manner that reduces the possibility of erosion, you will be agreeing to hold the City harmless for any damage resulting to your property from erosion of the slope. You are requested to review the enclosed Slope Easement Agreement. You may wish to have an attorney review the document. If you wish to sign the agreement, please contact me at 782-2882 so that I cam make arrangements for you to do so. As a portion of the Anoka County Water and Soil Conservation District Grant will be lost if the City Council does not authorize the project in a timely manner, it is important for you to inform the City Council of your intent on the agreement in person at the Public Hearing on June 6, 1994 or in writing before the Hearing. ff you have questions, please feel free to contact me at 782-2882. Sincerely, Mark A. Winson, P.E. Public Works Director/City Engineer MAW:jb 94-319 Enclosure SLOPE EASEMENT This Agreement, made and entered into this ~ day of by and between David J. and Kathr3m R. Lange "GRANTORS" and the City of Columbia Heights (hereafter "GRANTEE"). ,199 (hereafter WHEREAS, GRANTEE is the fee owner having title to real property legally described as follows: The southerly 185' of Lots 5 and 6, and all of Lots 41 and 42, Block 4, Reservoir Hills, except that part platted as Circle Terrace 2nd Addition, together with the vacated right-of- way for 41st Avenue N.E. from the northerly extension of the west line of Lot 8, Block 5, Reservoir Hills, to the west line of Circle Terrace 2nd Addition, together with Outlot 2, Circle Terrace, together with that part of Lot 8, Block 5, Reservoir Hills, lying north of the north right-of-way line of Circle Terrace Boulevard, Circle Terrace, all in Anoka County, Minnesota; the above described property being a portion of LaBelle Park. WHEREAS, GRANTOR is the fee owner having title to real property legally described as follows: Lot 8, Block 1, Circle Terrace, Columbia Heights, Anoka County, Minnesota WHEREAS, GRA~ desires to obtain a slope erosion protection (slope erosion protection easement for the purpose of this Agreement is defined as an area in which, due to existing topography, soil condition or runoff patterns, special measures must be taken to protect the areas within the easement and adjoining properties from erosion), in, over, across, upon and under the following described real property: That part of Lot 8, Block 1, Circle Terrace, described as follows: Beginning at a point on the West property line a distance of 68' South of the Northwest corner of said Lot 8; thence North along the West property line a distance of 68'; thence East along the North property line to the Northeast corner of said Lot 8; thence South along the East property line a distance of 13'; thence in a southwesterly direction to the point of beginning. (hereafter "the property") WHEREAS, GRANTOR is the fee owner of the property; WHEREAS, GRANTOR is desirous of protecting its property from the effects of erosion and recognizes that its actions or inaction, can and will have an effect on its own and adjoining property, including property owned by GRANTEE: WHEREAS, GRANTEE has or will offer technical assistance to GRANTOR with regard to improvements in the slope erosion protection easement that will mitigate the effects of erosion. Slope Easement Page 2 NOW, THEREFORE, IN CONSIDERATION OF THE SUM OF $ 1.00 PAID BY GRANTEE TO THE GRANTOR, THE RECEIPT WHEREOF IS HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS: GRANT OF EASEMENT. GRANTOR agrees to grant and hereby grants to GRANTEE, its successors and/or assigns a permanent easement over, across, under, and upon the following described real property, together with the full and free right for it, and its tenants, servants, visitors, and licensees, in common with all others having the like right, at all times hereafter for, to enter said property or construct improvements upon said property, for the purpose of slope erosion protection and control: That part of Lot 8, Block 1, Circle Terrace, described as follows: Beginning at a point on the West property line a distance of 68' south of the Northwest comer of said Lot 8; thence North along the West property line a distance of 68'; thence East along the North property line to the Northeast comer of said Lot 8; thence south along the East property line a distance of 13'; thence in a southwesterly direction to the point of beginning. CONSENT FOR IMPROVEMENTS TO EASEMENT PROPERTY. GRANTOR hereby covenants that for itself, its heirs, successors, and/or assigns, that it shall refrain from causing any improvements to be made upon the property without f'u'st obtaining the prior written consent of GRANTEE, which consent shall be limited to approval or disapproval of the design(s) and construction of said proposed improvement. HOLD HARMLESS PROVISION. GRANTOR hereby covenants for itself, its heirs, successors, and assigns, that it will save and hold GRANTEE harmless for any and all damage resulting from runoff, deterioration, collapse, or erosion to GRANTOR'S property. GRANTEE nor any of its successors, associates, assigns, grantees, licensees or any person, firm or corporation operating partially or wholly under contract with said GRANTEE, its successors, associates, assigns, grantees or licensees shall at any time become liable to the GRANTOR or GRANTOR'S heirs, assigns or successors in interest for damages on account of any injuries or damages to land herein described or any building, structures, improvements or property of any kind or character now or hereafter located upon said land or to any owners, occupants or other persons in or upon said land resulting from or in any way connected with the erosion, deterioration, or other gradual or sudden collapse of earth or earthen material in, on, under, abutting, or adjacent to said described land. Slope Easement Page 3 o COVENANT NOT TO SUE. GRANTOR for itself and for its heirs, legal representative(s), assigns and successors in interest, do waive and release the GRANTEE, its successors, associates, assigns, grantees, licensees or contractors, from any and ail claims for damages and all liability by reason of damages either to persons or property (real or personal) which may in any way be caused or occasioned at any time heretofore or hereafter, directly or indirectly, by the erosion, deterioration, or other gradual or sudden collapse of earth or earthen material in, on, under, abutting, or adjacent to said described land and GRANTOR does for itself and for those who may hold title to any of said real estate under or through them covenant not to sue for any of said injuries or damages. It is hereby expressly acknowledged between the parties that this covenant shall rrm with the land, that the covenant not to sue is so bound up with GRANTOR'S use and enjoyment of its land so as to touch and concern the said land, and that it is the GRANTOR'S express intention that the covenant not to sue mn with the land, so as to be binding upon all future successors or assigns. GRANTEE agrees to provide GRANTOR with technical assistance in the design and construction of improvements undertaken by the party of the first part with the aforesaid slope erosion protection easement. , Grantor , Grantor STATE OF MINNESOTA ) COUNTY OF ANOKA ) The foregoing was acknowledged before me this day of ,19 ,by , Grantors. Notary Public 1207 355 '134-9 TO: FROM: DATE: RE: CITY OF COLUMBIA HEIGHTS CONFIDENTIAL MAYOR AND CITY COUNCIL PAT HENTGES, CITY MANAGER MAY 6, 1994 LA BELLE HOLD HARMLESS AGREEMENT PROPOSAL Attached please find a memorandum from City Attorney's office regarding liability and assessment issues on La Belle East Bank Project. In summary, the agreement concludes as follows: 1) A valid covenant must be passed to an assignee and run with the land. It is questionable whether a hold harmless agreement can run with land. Minnesota has no case law on the question, and case law from other states does not necessarily support this concept. In the event a hold harmless agreement is developed, it must be in the form of an easement and in turn provide for some level of consideration. There still remains a question if all the owners will actually provide an easement of this nature. There is some question whether the City will be able to justify the assessment, in that the current state of the erosion may not pose an immediate or substantial risk to the health and safety of the public. It appears that the City does possess discretionary immunity relevant to the liability imposed by the current erosion condition. However, the question still remains whether or not the City would be liable on the theory that now that it has knowledge of a potentially dangerous condition existing on the laud, and there is a duty owed to the. general public to fix it. I will discuss this further with the City Attorney and possible outside counsel to determine if there is a clear cut answer and solution to the problem. cb To: From: Date: P,.e: IVIEMORANDUM Pat Hent~es Mark Sunberg, Assistant City Attorney May 6, 1994 Labelle Park/Hold Harmless Agreement Proposal INTRODUCTION This memorandum was requested by the City Manager. In reViewing and considering the Labelle Park Special Assessment program, the issue of whether' or not it is legally permissible to obtain "hold harmless" agreements from each individual landowner, has been raised. The central ~omplaint by the landowners seems to be one of payment for the fencing improvement as proposed by the City. Upon its own vOlition, the City proposed that the landowners give the City an easement for the supportive fencing along with an agreement from .the landowners prohibiting them, and their successors and/or assigns, from suing the City should : any damage come to their private property from the fencing improvement. It is specifically acknowledged herein that the City possesses the power to assess the property to fmance the project. Therefore, a principal question arises as to whether the City's agreement to refrain from the assessment can serve as legal consideration for the covenant not to sue.. That question is addressed below. Two final questions' face the City relative to. this project. One, is their legal basis for making the assessment. And,:two, is their legal basis for a private individual injured by falling erosion to bring an action against the City for failing to construct the protective fencing. I. WILL AN AGREEMENT BY THE INDIVIDUAL LANDOWNERS NOT TO SUE THE CITY FOR DAMAGES ARISING FROM THE FENCING IMPROVEMENT "RUN WITH THE LAND" SO AS TO BIND SUCCESSOR LANDOWNERS? One of the issues facing the City is the question of whether an agreement li~niting the fights of the indiVidual landowners who reside adjacent to Labelle Park from suing the City over damage resulting from the loss of land (even given the fencing improvement) would be enforceable as against subsequent owners of those parcels. Minnesota has never decided that specific question. Other states have, and it is their decisions that form the substance of this discussion. A. WHAT IS A "COVENANT VgHICH RUNS WITH THE LAND?" A real covenant is one that runs with the land. Pelser v. Gingold, 214 Minn. 281,285 (1943). A covenant runs with the land when it touches or concerns real property granted or demised, i.e. thc covenant must concern occupation or enjoyment of land granted or demised and the liability to perform it, and the right to take advantage of it must pass to the assignee. Id. If the covenant is merely collateral to the land, it becomes a personal covenant and the assignee of the land may not be charged with it. Id. at 286. Additionally, the parties must also intend that the covenant run with the land. Matter of Turners Crossroad Development Co., 277 N.W.2d 364, 369 (Minn. 1979). Examples of covenants running with the land include covenants relating to party walls, National L. Ins. Co. v. Lee, 75 Minn 157 (1899); covenants creating easements, Kettle River RR v. Eastern Rr~, 41 Minn. 461 (1899); a covenant reserving to the grantor power from a dam yet to be constructed, Anderson v. Otter Tail Power Co., 175 Minn. 81 (1928); a covenant for partial releases as lots should be sold. Vawter v. Crafts, 41 Minn. 14 (1889). Examples of covenants that do not run with the land include a covenant against the sale of intoxicating liquors, Sjoblom v. Mark, 103 Minn. 193 (1908); a covenant not to sell food or beverages, Matter of Turners Crossroad Development Co. (supra.); a covenant not to compete, Dewey v. Kaplan, 200 Minn,. 289 (1937); a covenant with grantors to assume and to pay personal indebtedness for balances for certain improvements on land, Pelser (supra.). B. $VILI, THE HOLD HARMLESS THE CITY ENVISIONS "RUN WITH THE LAND?" Of the limited number of cases decided on the question of whether an agreement by a city with private property owners restricting the property owners right to sue, those with circumstances similar to the Labelle Park problem have yielded varying results. One case deciding the question of city originated "not to sue" agreements with private parties is County Savings Bank v. Nunziato, 123 Misc.2d 502, 473 N.Y.S.2d 682)(1984). In Nunziato, plaintiff, a mortgage banking operation, brought suit against a city alleging that the city's agreement with the bank's predecessor in interest regarding the assessed value of the property in issue was null and void. The agreement, amongst other things, provided that the owners of the property, their heirs and assigns, could not challenge the assessed value of the property for a certain number of future years in exchange for a reduction in assessed value. Petitioner bank argued that as mortgagees, they were not parties to the original settlement agreements entered into between the private land owners and the city and, therefore, the agreements and covenants "not to sue" contained therein were not binding upon the petitioners and as a matter of law and in the sound discretion of this Court they should be declared null and void. Id. at 503. Furthermore, the bank argued that public policy considerations aside, it is well settled--~at covenants not to sue do not run with the land but are rather personal to the 2 covenantors, notwithstanding any reference to the covenantor's "heirs and assi~s" (Tarantelli v. Tripp Lake Estat.e.s, Inc., 23 A.D.2d 905,' 259 N.Y.S.2d 188 [3rd Dept. 1965]. Id, at 504. The appeal court held that the agreements were, aiter all, null and void. However, the court's basis for their decision seemed, to tum more on the authority of the city to enter into the agreement more than the question of whether the bank was bound by the covenant, inasmuch as the covenant had "nm with the land". A second case of more direct application is Haekensaek Water Company v. Juzelc, t32 N.J. Super. 296' 333 A.2d 544 (App. Div. 1975). In Haekensaek, HaekenSaek, a water company, made application to a local Water Council for approval of condemnation proceedings of certain lands owned by the Suzek's and adjacent to Haekensaek's plans to construct a reservoir. The condemnation was ultimately approved by the Council, with the suggestion by the council that the Juzek's grant Haekensaek an easement along with entering into a private agreement whereby the Juzek's would agree to refrain from suing Haekensaek for flood damage to the Suzek property caused by controlled releases over the dam or by severe storms. Id. at 301. Hackensack was dissatisfied with the decision, of the council, since the council had determined that far less Suzek property would be necessary for the towage easement. Specifically, Haekensaek argued~ that the Council exceeded its authority to substitute a hold-harmless agreement for the right to condemn. In actuality, the Council determined that Haekensaek had the power to acquire by condemnation an easement over the Juzek property for purposes of periodic or occasional flooding and, in conjunction therewith, that the parties should enter into an agreement to hold Hackensaek harmless from any liability resulting from such flooding. This latter ruling was based upon the willingness of the Juzeks to enter into a covenant 'running with the land' to protect Haekensaek from liability for flood damage. Id. at 303. 'The appeals court struck down the private "hold harmless" agreement ~ The court explained: It was not, however, within the implied statutory authority of the Council to dispense with the necessity to provide just compensation for the acquisition of that interest. The damage or injury to land as a result of actual or threatened flooding must be redressed through the award of just compensation. Cf. Trenton Water Power Co. v. Raft, 36 N.J.L. 335, 343 (Sup. Ct. 1873); 26 Am. Jur.2d, Supra, s 195 at 877. It was, therefore, improper for the Council to have "conditioned the approval for the award of an easement for Periodic flooding upon the execution by the property owners of a so-called hold-harmless agreement in the nature of a covenant running with the land. This is not to say that the parties would be otherwise barred from entering voluntarily into an agreement to accommodate their respective interests. -But absent such an agreement-which, in this setting, cannot be directed or dictated by 3 the administrative agency or the court--the grant of the easement to Hackensack and the just compensation which must be paid therefor should be the subject of a condemnation proceeding brought pursuant to statute. Id. at 304. The City of Columbia Heights would most likely argue that consideration for the hold harmless agreements would be the City's agreement to refrain from exercising its powers of assessment in exchange for the landowners agreements to refrain from suit. Hackensack instructs that, given these circumstances, such an agreement may be unenforceable. The unenforcability of the agreement would come from the fact that the landowners would not be justly compensated for the prospective loss they would suffer should any physical harm come to their property as a result of either continuing erosion or problems in the fencing. Hackensack A second case, in contrast, upheld an agreement by a private landowner to refrain from commencing suit. In Phillips v. Altman, 412 P.2d 199 (Okla. 1966), where plaintiff sued defendant alleging damage to property from certain oil deposits generated by defendant's business operations. In Phillips, plaintiffs acquired title to their property under a deed that contained language that both granted an easement to defendant for drainage purposes over plaintiff's land. It likewise contained a promise by plaintiff's predecessor in interest not to sue defendant for such damages caused by the flow of oil over those sections covered by the easement. In holding that the covenant not to sue was valid, the court explained as follows: "The provision including the easement and covenant is contained within a properly executed deed which is presumptively based upon a good consideration. Wilcox v. Wickizer, 266 P.2d 638, 641. It is sufficient as to both form and substance to constitute a covenant running with the land, see 28 C.J.S. Easements s 28, and 21 C.J.S. Covenants ss 54 and 73." Id. at 201. Ostensibly, the court ruled in defendant's favor because the covenant was contained in a deed. Since deeds are generally given incident to the sale of property, the court surmised that the consideration contained within the deed sufficed for consideration supporting the covenant not to sue. In that regard, the Phillips case differs liRle if any from what the City of Columbia Heights intends to do. The similarities lie in that when the landowners do go to sell their property, the covenant should be contained in the deed (most likely will be). To that extent, the covenant not to sue should withstand judicial scrutiny. On the other hand, in the City of Columbia Heights' case, the City will be obtaining the covenants by way of private document. The City's covenant, in the first instance, will not appear in a deed. Accordingly, Phillips would hold that any property owner initially subject to the agreement may be able to sue in the face of the agreement since their is no real consideration for the covenant. The final case for consideration is Waldrop v. Town of Brevard, 233 N.C. 26, 62 S.E.2d 512 (N.C. 1950). There, the Town of Brevard purchased land from I.F. Shipman with the understanding that the land would be used for a garbage dump. Shipman owned all of the land surrounding the newly acquired city land. In the deed from Shipman to the City, Shipman covenanted for himself and anyone who owned any of his property after him that they would refrain from suing the City based upon claims of nuisance arising from the City's operation of 4 the dump. Shipman subsequently subdivided his remaining land. 'None of the deeds from Shipman to the ne.W owners contained the prescription on suing the City. Those persons sued the City alleging nuisance from the dump. In ruling that the new owners of the Shipman property coUld not maintain suit against the City, the court opined: 'A COvenant or agreement may operate as a grant of an easement if it is necessary to give it that effect in order to carry out the manifest intention of the parties.' 17 Am.$ur., See. 27, p. 940. * ":' The grant and release or waiver contained in the deed from I. F. Shipman and wife' to the Town of Brevard, in our opinion, created a right in the nature of an easement in favor of the Town of Brevard, upon the remainder of the lands owned by the grantors. And the waiver or release of any right to make a future claim for damages or other relief, resulting from the use of the premises Conveyed to the defendant as a-garbage dump,-constitutes a covenant not to sue and is binding on the grantors, their heirs and assigns. Consolidation Coal Co. v. Mann, 298 Ky. 28, 181 S,W.2d 394; Brush v. Lehigh Valley Coal Co., 290 Pa. 322, 138 P. 860; $. T. Donohue Realty Co. v. wagner, 154 Md. 588, 141 A. 337; Mayor and Councilmen of City of Troy v. Coleman, 58 Ala. 570; Mayor and Councilmen of Town of Union Springs v: Sones, 58 Ala. 654;' 13 C.:J. s 399, p. 458; 17 C.$.S., Contracts, s 104, page 459. 'If the owner of property has charged it with a servitude as to the matter complained of, a subsequent grantee eanr~ot recover damages therefor.' 29 Cye. 1260. Id. at p. 29. As is apparent from the court's language, the court regarde, d the Shipman/City deed as creating an easement right in the City for the incidental fumes associated with the operation of the dump. 'The court then concluded that since this was in the nature of an easement, and since it was recorded, it was, in effect, a recorded easement containing a covenant not to sue. Had the court not regarded the deed as granting an easement, I do not believe that the same result woUld obtain. Waldrop seems to provide only little support for what the City of Columbia Heights intends to do. Indeed, this is not a ease where the City will be acquiring land with benefieiaI covenants attached fo the property. The City will in fact be creating the covenants. To this end, it is difficUlt to say that'the agreement will be in the nature of an easement. On the other hand, there remains the possibility of actually obtaining easements'from the landowners. That question is discussed above in earlier sections. C. WILL THE CITY BE ABI,E TO JUSTIFY THE ASSESSMENT? Chapter 429 of Minnesota Statutes provides the authority for special assessments. Special assessments may be levied only upon those properties benefitted by the improvement. Minn. Stat. 429.051. The benefits obtained from an improvement are calculated by comparing the market value of the land before and after the improvement. Many things may be used as evidence of market value of land, including the cost necessary for continued legal use of the land, or the "cost to cure". See Lunderberg v. City of St. Peter, 398 N.W.2d 579 (Minn. Ct. App. 1986). Although any improvement which benefits the land is presumed valid, the landowner may rebut this presumption with evidence showing that the land value did not rise. Buzick v. City of Blaine, 505 N.W.2d 51 (Minn. 1993). It is difficult to determine the outcome of a challenge to the City's assessment of the property surrounding Labelle Park. No doubt, the proportionate benefit to the surrounding landowners may very well be less than the amount assessed to each individual owner. The only hope of justifying the assessment may come from application of the Lunderberg (supra.) case. There, the City of St. Peter sought to assess business owners along the main street in the City. The work to be done encompassed standard separation of storm and sanitary sewers. The several business owners challenged the assessment, arguing that their property would not be benefitted by an amount equal to the cost of the assessment. In finding against the several business owners, the Minnesota Court of Appeals explained that the "cost to cure" could be a sufficient measurement of the benefit bestowed on each parcel. Accordingly, the court held that the assessment was justifiable. However, it was critical to the case that the business owners admitted that the repairs needed to be completed. The court took special note of their admission in finding that the "cost to cure" logically benefitted the parcels by the amount expended to make the necessary repairs. Here, it is a difficult question whether the land at Labelle Park is in such a state of disrepair that work to alleviate the erosion is "necessary". Without an expert opinion on whether the property poses an immediate and substantial risk to the health and safety of the public, the City is not in a position to argue that the repairs must be completed. Moreover, unlike Lunderberg, it is highly unlikely that any of the landowners will admit that the property needs to be repaired. D. IS TI-W~ CITY PROTECTED BY DISCRETIONARY IMMUNITY SHOULD ANYONE BE INJURED AS A RESULT OF FAILING TO MAKE THE REPAIRS AT LABELLE PARK? The final question facing the City is whether or not it will face the risk of liability should nothing be done on the Labelle Park land and a private individual is injured from falling debris. That question is most properly addressed within the context of a legal theory known as "discretionary immunity". 6 In 1975, the Minnesota Supreme Court abolished sovereign immunity for claims arising after August 1,' 1976. ©stendorfv. Kenyon, 347 N.W.2d 834 (Minn. App. 1984), citing with approval, 'Nieting v. Blondell, 235 N.W.2d 597 (Minn. 1975). As a general rule therefore, the units of government are now responsible to pay compensation for any claims that a private'Person would be liable for Under like circumstances. Minn. Stat. s. 3r736(1). It is widely recognized that the discretionary act exception to the general rule of liability of municipalities for their torts is to be interpreted narrowly: Ir]cad. literally, the discretionary function exception would pres~erve immunity for almost: all government acts because almost everything a government employee does, from driving a snowplow to formulating toxic waste disposal regulations, involves the exercise of some discretion. We haVe reco~ized, however, that the legislature did not intend the discretionary function exception to swallow the general rule of allowing recovery for those 'injuries negligentlY inflicted in the performance of 'government operations. [Citations omitted]. Accordingly in determining whether particular conduct is protected, we have interpreted a diseretionar~ function narrowly and have focused on'the purpose Underlying the exception. Holmquist v. State of Minnesota, z;25 N.W.2d 230, 23t (Minn. 1988)(emphasis added); See also Larson v. I.S.D. No. 314, 289 N.W.2d 112 (Minn. 1979); Hennes v. Patterson, 443 N.W.2d 198, 202 (Minn. App. 1989). The critical question is whether the challenged activity "involved a balancing of policy objectives."' Nusbaum v. Blue Earth ~County., 422 N.W.2d 713, 718'CMinn. 1988). The conduct is protected only where the government entity produces evidence the conduct was of a policy-making nature involving social, political or economic considerations. Id. "Operational level decisions, on the other hand, involve decisions relating to the ordinary day to day operations of the government." Id. However, the implementation of an established policy in a particular fact sitnafion is not usually Within the discretionary function exception, even if that application calls for specialized knowledge, expertise and professional jud~mnent. Id.'(emphasis added). The distin'~fion between planning activities'and operational activities has been'further explained as follows: [p]lanning level decisions are those involving questions of public Policy, that is, the evaluation of factors such as the financial, political, economic and social effects of a given plan or policy. 7 Operational level decisions, on the other hand, involve decisions relating to the ordinary day-to-day operations of the government. Holmquist, supra, at 232; See Nusbaum, 422 N.W.2d 713 (Minn. 1988). The scope of discretionary acts of immunity is difficult to define and has been the subject of considerable litigation. Generally speaking, the "discretionary" label is applied to policy making or legislative functions or judicial decisions. Courts sometimes distinguish "discretionary" acts from "ministerial" acts. See Williamson v. Cain, 245 N.W.2d 242 (Minn. 1976). On other occasions, the distinction is drawn between the "planning" functions and "operational" functions; governmental personnel engaged in "planning" are deemed to be engaged in discretionary acts, but personnel performing at the "operational" level are not. Robinson v. Hollatz, 374 N.W.2d 300 (Minn. App. 1985). At some definitive point however, according to the Minnesota Supreme Court, discretion is exhausted and the execution of a :specific duty arising from designated facts arises. Cairl v. State, 323 N.W.2d 20, 30 (Minn. 1982). In the situation currently facing the City of Columbia Heights, the decision to complete the Labelle Park project is most likely "discretionary". The decision to complete or abandon the project lies wholly within economic and policy concerns of the city council. It would be a stretch of logic to conclude the council was "implementing" a policy decision by deciding to abandon the project. On the contrary, it is the very heart of policy-making and economic concerns which drives the council in its decision. On the other hand, there remains the question of whether the City would be liable on the theory that now that it has knowledge of a dangerous condition existing on land, is there a duty owed to the general public to fix the problem. That question is still in the process of being researched and an answer will be forthcoming. 8 CrFY COUNCIL LETTER Meeting of: 6/6/94 AGENDA SECTION: NEW BUSINESS ORIGINATING DEPARTMENT: CITY MANAGER NO. ,~k PUBLIC WORKS ITEM: AUTHORIZATION TO SEEK QUOTES BY: M. Winson~r~d BY: NO. FOR RUBBER SURFACED CROSSING MATERIAL DATE: 5/31/94 DATE: In conjunction with C.P. Rail System, the Cities of Columbia Heights and St. Anthony are installing a rubberized crossing for the railroad tracks on Stinson Blvd, north of 37th Avenue. The Cities are responsible for supplying the crossing material to C_P. Rail System. C.P. Rail System is installing the crossing at no charge to the cities (a savings of approximately $700.00 per lineal foo0. Staff requests authorization to seek quotes for the rubber surfaced crossing material from the three companies listed on the attached agreement. These companies are approved by C.P. Rail System. RECOMMENDED MOTION: Move to authorize Staff to seek quotes for the purchase of rubber surfaced crossing material. MAW:jb 94-32O Attachment COUNCIL ACTION: 105 South 5th Street Box 530 Minneapolis MN 55440 Tel (612) 347-8OO0 Operating Department Heavy Haul - US CP Rail System December 21, 1993 Engr. File: X-PAY-D05-50-R Mr. Larry Hamer Director Public Works Village of St. Anthony 3301 Silver Lake Road St. Anthony, MN 55418 Dear Mr. Hamer: RE: STINSON BOULEVARD DOT# 688 993P - MILE POST D5.50 MINNEAPOLIS, MN This letter confirms our three-way phone conversation with yourself and Mr. Mark Winson, Director of Public Works for the City of Columbia Heights, on Monday December 20, 1993 concerning a proposed rubber crossing surface at the above location. Soo Line would provide, at its expense: Labor, material and equipment to remove the existing crossing material; reconstruct the rail, ties and ballast through the complete crossing area; install rubber surfaced crossing material through the traveled roadway; provide and install treated hardwood crossing timber through the shoulder and sidewalk areas as required; and remove the abandoned east bound main line from the crossing surface. The City will provide, at its expense: Necessary traffic control, signs, and detours during reconstruction of the crossing; rubber surfaced crossing material; replacement of the asphalt/concrete pavement; and disposal of existing crossing surface. The city should purchase the rubber crossing surface directly. The anticipated cost of rubber crossing material is between $170 and $200 per foot. We suggest you obtain price quotations from the following suppliers which are acceptable to Soo Line Railroad. The rubber crossing would be for Soo Line standard 115 pound continuous welded rail. Tapered end plates are not required. Riedel-Omni Products 3911 Dayton Street McHenry, IL 60050 Phone: 815-344-3100 Mr. Bob Cigrang - Specify either Standard Duty or Heavy Duty full depth rubber Hi-Rail Corporation 600 West Jackson Blvd.-Suite 580 Chicago, IL 60606 Phone: 312-648-4875 Mr. Larry Schaefer - Specify full depth rubber Goodyear Tire & Rubber Company 5100 West 35th Street Minneapolis, MN 55416 Phone: 612-924-4544 Ms. Angela Field - Specify full depth rubber Mr. Larry Hamer Page 2 December 21, 1993 Soo Line's Assistant Division Manager Engineering, Ed Howard, will be handling the scheduling of the crossing installation. We will be in contact with you at a later date to advise our schedule and when to order the rubber crossing surface. Soo Line is looking forward to working with the City of St. Anthony and Columbia Heights on this crossing improvement and appreciates both city's cooperation. As per our phone conversation, the city's will have separate agreement to equally divide the road authority's expense. If you concur, please sign one original and return to my attention. Very truly yours, Engineer JHK/jmn hc: Mark Winson - Director Public Works 637 - 38th Avenue NE Columbia Heights, MN 55421 Concurrence Its C~."~u mc: L. W. Carroll D. J. Bock R. G. Kutcher J. D. Schmeling CITY OF COLUMBIA HEIGHTS Public Works Department TO: FROM: PAT HENTGES CITY MANAGER MARK A. WINSON ~/~ PUBLIC WORKS DIRECTOR/CITY ENGINEER EAST BANK EROSION PROJECT OPTIONS From col, not willin§ appear to fu has agreed to 1992 matching ,petty owners on Circle Terrace, it would appear that most are n casements due to a concern over how this casement would · . The Anoka County Soil and Water Conservation Service ,o mid September for having a contract in place to retain the I suggest that the Council consider the following options before taking action on this project: Option 1 Do nothing. The City has some legislative immunity with regard to future claims over erosion damage as was explained in the City Attorney's memo. Although the Council has identified to the residents that there may be a future problem with erosion, the property owners have stated at the Public Hearings that they feel there is not a problem. As these comments are recorded in the minutes of the hearings, I would think that the immunity is still in place. Additionally, any future problems would most likely be caused by action or inaction of the property owners with regard to proper maintenance of their properties. Cost: $0 Option 2 Abandon the project but install a fence along the bottom of the slope with some dressing of the area immediately adjacent to the path. This option provides some protection to the slope from foot traffic and a deterrent to people using the wooded area for parties. Also, it would improve the appearance of the area immediately adjacent to the path. Cost: $30,000 +/- (City funds) Memorandum to Pat Hentges June 3,. 1994 Page 2 Option 3 Fence bottom of slope and do erosion control project to lower 1/2 to 2/3 of the slope. No work on private property. Them is a natural shelf part way up the slope which would be a good stopping point for an erosion control project. This option would utilize the matching grants, improve the appearance of the slope and indicate that the City has made some effort to correct a potential problem. Additionally, the lower slope areas have the greatest~chance of success with the erosion 'control solution proposed due to the amount of sunlight that.will reach the ground. After observing how well the slope erosion works the residents maybe more witting at some future time to become involved in an expanded project and als° improve, the chances for getting future grants to complete, the project. Staff would monitor the condition of the top of the Slope · and utilizing existing (or perhaps new ordinances passed in the mean time) to obtain compliance from the property owners with regard to erosion from their-properties;.-: The issues-regarding debris on the private slopes to the north could be handled through ordinance enforcement. Cost: $130,000 +/-~ ($65,000 grant, $65,000. City) Option 4 ForCe project as proposed... Perhaps drop out the properties where the slope .is all on private property and pursue ordinance enforcement in order to clean up the Private slopes. Cost as proposed: $264,000 ($132,000 grant,-$51,000 assessed, $81,000 City) CoSt w/e4 private properties:. $220,000.+/- ($110,000 grant, $39,000 assessed, $71,000 City) I suggest that the Council close the Public'Heating on June 6 and discuss these options some time in June at a work session before taking action. MAw:jb 94-334 Mayor Joseph Sturdevant Couneilmembers Donald G. Jolly Brace G. Nawrocki Gary L. Peterson Robert W. Ruettimann City Manager Patrick Hentges CITY OF COLUMBIA HEIGHTS May 27, 1994 590 40th Avenue N. E. Columbia Heights, MN 55421-3878 (612) 782-2800 ~AY £~.? 1994 Dear Property Owner: Subject: LaBelle East Bank Project & Slope Easement The Columbia Heights City Council, at their May 23, 1994 meeting, continued the Public Hearing on the LaBelle East Bank Erosion Project until 8:00 P.M. on June 6, 1994 in the City Council Chambers. The hearing was continued in order for City Staff to provide you with information regarding the project and thc enclosed "Slope Easement" for you to consider and, ff appropriate, agree to. As you may not have been able to attend all the hearings on this project, I will briefly recap the proposed project to-date. History A few years ago, due to the concerns of some residents, the City began studying what could be done to solve various erosion problems along the slope on the east side of LaBelle Pond. The erosion was being caused by storm water run-off from the properties located at the top of slope and on occasion from run-off in the slreet that overflowed the storm sewer system. The City made improvements to the storm sewer system that appear to have eliminated the street run-off problem. As the continued run-off from the buildings, driveways and parking pads on the properties, along with the rainfall falling on the slope, would over a period of years continue to erode the slope, the City has been looking for long term solutions to protect the buildings and parking areas along the top of slope. One solution was a retaining wall which was rejected due to the cost of approximately $500,000. The current proposal is to do the following: Selectively remove enough of the existing trees to allow sunlight to reach the slope and allow vegetation to grow. After repairing eroded gullies, install an organic erosion control mat to hold the soil while vegetation is established. 'SERVICE IS OUR BUSINESS" EQUAL OPPORTUNITY EMPLOYER Letter to Residents May 27, 1994 page 2 Vegetate the area with a shade tOlerant, dense ground cOver to hold the soil in place. Install a 6' 'fence around the slope area tO prevent foot traffic on the' slope. The estimated cost of this project is approximately $264,000. The City obtained a grant from the' Anoka County Soil and Water ConservatiOn District for one-half ($132,000). of the .remaining $132,000, it is proposed that 17 properties along the top of the slope would' be assessed a maximum of $3,000 each ($51,000) and the City the remainder ($81,000)~ The City is proposing tO assess the properties for a portion of the cost for two repons: The improvement Will help to protect the buildings, parking areas and other improvements along the top of slope from eventual Collapse. ff the erosion is not controlled. The nm-off that is or could cause the erosion is coming from the properties at the tOp of the slope. A number of property owners have expressed the opinion at the Public Hearings that they are not experiencing problems with erosion on the slope and feel that the project is not justified. It is generally true that at this time there are not currently any Serious erosion problems with the slope and that if proper improvements are made and maintained by the individual property owners, er°sion problems will not occur. The City Council is providing an opportunity for the property owners to avoid the potential assessment and disruption that this project would Cause by agreeing to maintain their properties in a fashion that would reduce erosion. Enclosed you will find al Slope Easement Agreement and drawing showing your property and the location of the proposed easement. If all:the property owners agree to provide the City with the easement, the City Council would abandon the slope erosion project but would probably install a fence along.the bottom of the slope. If a majority of the property owners grant the easement, the City may order a smaller slope erosion project and potentially assess only those properties benefitting from the project. Letter to Residents May 27, 1994 Page 3 The area covered in the easement is generally that portion of your property starting l0 feet from the top of slope and going to the rear or side property line. By granting a slope easement over this area, you are not giving up the right to construct any improvements (buildings, parking pads, etc.) in this area, but you are agreeing to review with and get approval of your plans from the City before constructing the improvement. This is to assure that any improvements will not cause more erosion. The City will also meet with you to suggest improvements you can make to keep erosion from damaging your property and the property down-slope. By agreeing to grant thc easement and taking the responsibility for maintaining the area in a manner that reduces the possibility of erosion, you will be agreeing to hold the City harmless for any damage resulting to your property from erosion of the slope. You are requested to review the enclosed Slope Easement Agreement. You may wish to have an attorney review the document. If you wish to sign the agreement, please contact me at 782-2882 so that I cam make arnmgements for you to do so. As a portion of the Anoka County Water and Soil Conservation District Grant will be lost if the City Council does not authorize the project in a timely manner, it is important for you to inform the City Council of your intent on the agreement in person at the Public Hearing on June 6, 1994 or in writing before the Hearing. If you have questions, please feel free to contact me at 782-2882. Sincerely, Mark A. Winson, P.E. Public Works Director/City Engineer MAW:jb 9~-319 Enclosure SLOPE EASEMENT This Agreement, made and entered into this __ day of by and between David J. and Kathrgn IL Lange "GRANTORS" and the City of Columbia Heights (hereafter "GRANTEE"). -, 199._ (hereafter WHEREAS, GRANT'~ is the fee owner having rifle to' real property legally described as follows: The southerly 185' of Lots 5 and 6, and all of Lots 41 and 42, Block 4, Reservoir Hills, except that part platted as Circle Terrace 2ndAddifion, together with the vacated fight-of- way for 41st Avenue N.E. from the northerly extension 0fthe west line of Lot 8, Block 5, Reservoir Hills, to the west line of Circle Terrace 2ncl Additioni together with Outlet 2, Circle Terrace, together with that part of Lot 8, Block 5, .Reservoir Hills, lying north of the north fight-of-way line of Circle Terrace Boulevard, Circle Terrace, all in Anoka County, MinnesOta; the above described property being a portion of LaBelle Park. WHEREAS, GRANTOR is the fee owner having rifle to real property legally described as follows: Lot 8, Block 1, Circle Terrace, Columbia Heights, Anoka County, Minnesota .WHEREAS, GRANTm:. desires to obtain a slope erosion protection (slope erosion protection easement for the purpose of this Agreement is defined as an area in which, due to existing topography, soil condition or runoff patterns, special measures must be taken to protect the areas within the easement and adjoining properties from erosion), in, over, across, uponand under the following described real property: That part of Lot 8, Block 1, Circle Terrace, described as follows: Beginning at a point on the West property line a distance of 68' South of the Northwest corner of said Lot 8; thence North along the West property linea distance of 68'; thence East along the North property line to.the Northeast corner of said Lot 8; thence South along the East property line a distance of 13'; thence in a southwesterly direction to the point of beginning. (hereafter "the property") WHEREAS, GRANTOR is the fee owner of the property; WHEREAS, GRANTOR is desirous of protecting its property from the effects of erosion and recognizes that'its actions or inaction, can and will have an effect on its own and adjoining property, including property Owned by GRANTEE: WHEREAS, GRANTEE has or will offer technical assistance to GRANTOR with'regard to improvements in the slope erosion protection easement that will mitigate the effects of erosion. Slope Easement Page 2 NOW, THEREFORE, IN CONSIDERATION OF THE SUM OF $. 1.00 PAID BY GRANTEE TO THE GRANTOR, THE RECEIPT WHEREOF IS HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS: GRANT OF EASEMENT. GRANTOR agrees to grant and hereby grants to GRANTEE, its successors and/or assigns a permanent easement over, across, under, and upon the following described real property, together with the full and free right for it, and its tenants, servants, visitors, and licensees, in common with all others having the like right, at all times hereafter for, to enter said property or construct improvements upon said properly, for the purpose of slope erosion protection and control: That part of Lot 8, Block 1, Circle Terrace, described as follows: Beginning at a point on the West property line a distance of 68' south of the Northwest comer of said Lot 8; thence North along the West property line a distance of 68'; thence East along thc North property linc to thc Northeast comer of said Lot 8; thence south along the East property line a distance of 13'; thence in a southwesterly direction to the point of be~nning. CONSENT FOR IMPROVEMENTS TO EASEMENT PROPERTY. GRANTOR hereby covenants that for itself, its heirs, successors, and/or assigns, that it shall refrain from causing any improvements to be made upon the property without first obtaining the prior written consent of GRANTEE, which consent shall be limited to approval or disapproval of the design(s) and construction of said proposed improvement. HOLD HARMLESS PROVISION. GRANTOR hereby covenants for itself, its heirs, successors, and assigns, that it will save and hold GRANTI~ harmless for any and all damage resulting from runoff, deterioration, collapse, or erosion to GRANTOR'S property. GRANTEE nor any of its successors, associates, assigns, grantees, licensees or any person, firm or corporation operating partially or wholly under contract with said GRANTEE, its successors, associates, assigns, grantees or licensees shall at any time become liable to the GRANTOR or GRANTOR'S heirs, assigns or successors in interest for damages on account of any injuries or damages to land herein described or any building, structures, improvements or property of any kind or character now or hereafter located upon said land or to any owners, occupants or other persons in or upon said land ' resulting from or in any way connected with the erosion, deterioration, or other gradual or sudden collapse of earth or earthen material in, on, under, abutting, or adjacent to said described land. SloPe Easement Page 3 COVENANT NOT TO SUE. GRANTOR for itself and for its heirs, legal representative(s), assigns andsuccessors in interest, dO waive and release the GRANTIng, its successors, ass_ociates, assigns, grantees, licensees or contractors, from any and ali c]~im.~ for damages and all liability by reason of d~m.ges either to persons or property (real or personal) which may in any.way be caused or occasioned at any time heretofore or hereafter, directly or indirectly, by the erosion, deterioration, or other gradual or sudden collapse of earth or earthen material in, on, under, abutting, or adjacent to said described land and GRANTOR does for itself and for those whO may hold title tO ally of said real estate under or through them covenant not to'sue for any of said injuries or rl"rn.ges.. It is' hereby expressly acknowledged between the patties that this Covenant shall nm with the land, 'that the covenant no£ to sue is so bound up 'with GRANTOR'S use and enjoyment of its land so as to touch and concern the said land, and that it is the GRANTOR.'S express intention that the covenant not'to sue nm with the land, so as to be binding upon all future successors or assigns. GRANTEE agrees to provide GRANTOR. with technical assistance in' the design and constructiOn of improvements undertaken by the party of the first pan with,the aforesaid slope erosion protection easement, , Grantor STATE OF .MINNESOTA ) coUNTY ANOKA ) '.The foregoing was acknowledged before me this'~ day of. , GrantOrs. ,19 , by Notary Public 1 2~ 5 1207 13~9 TO: FROM: DATE: RE: CITY OF COLUMBIA HEIGHTS CO'NFIDENTIAL MAYOR AND CITY COUNCIL PAT HENTGES, CITY MANAGER MAY 6, 1994 LA BELLE HOLD HARMLESS AGREEMENT PROPOSAL Attached please find a memorandum from City Attorney's office regarding liability and assessment issues on La Belle East Bank Project. In summary, the agreement concludes as follows: 1) A valid covenant must be passed to an assignee and run with the land. 2) It is questionable whether a hold harmless agreement can run with land. Minnesota has no case law on the question, and case law from other states does not necessarily support this concept. 3) In the event a hold harmless agreement is developed, it must be in the form of an easement and in turn provide for some level of consideratio~ There still remains a question if all the owners will actually provide an easement of this nature. 4) There is some question whether the City will be able to justify the assessment, in that the current state of the erosion may not pose an immediate or substantial risk to the health and safety of the public. $) It appears that the City does possess discretionary immunity relevant to the liability imposed by the current erosion condition. However, the question still remains whether or not the City would be liable on the theory that now that it has knowledge of a potentially dangerous condition existing on the land, and there is a duty owed to the. general public to fix it. I will discuss this further with the City Attorney and possible outside counsel to determine if there is a clear cut answer and solution to the problem. cb To: Pat Hentl~es From: Mark Sunberg, Assistant City Attorney Date: May 6, 1994 Re: Labelle Park/Hold Harmless Agreement Proposal INTRODUCTION This memorandum was requested by the City Manager. In reviewing and considering the Labelle Park Special Assessment program, the issue of whether or not it is legally permissible to obtain "hold harmless" agreements from each individual landowner, has been raised. The central ~omplaint by the landowners seems to be one of payment for the fencing · improvement as proposed by the City. Upon its own volition, the. City proposed that the landowners give the City an easement for the supportive fencing along with an agreement from the landowners~prohibiting them, and their successors and/or assigns, from suing the City should any damage come to their private property from the fencing improvement. It is specifically acknowledged herein that the City possesses the power to assess the property to finance the project. Therefore, a principal question arises as to whether the City's agreement to refrain from the assessment can serve as legal consideration for the covenant 'not to sue. That question is addressed below. Two final questions face the City relative to this project. One, is their legal'basis for making the assessment. And, two,' is their legal basis for a private individual injured by falling erosion to bring an action against' the City fOr failing to comet the protective fencing. I. WILL AN AGREEMENT BY THE INDIV~UAL LANDOWNERS NOT TO SUE THE CITY FOR DAMAGES ARISING FROM THE FENCING IMPROVEMENT "RUN WITH THE LAND" SO AS TO BIND SUCCESSOR LANDOWNERS? One of the issues facing the City is the question of whether an agreement li~nlting the fights of the individual landowners who reside adjacent to Labelle Park from suing the City over damage resulting from the loss of land (even given the fencing improvement) would be enforceable as again.et subsequent owners of those parcels. Minnesota ha.q never-decided that specific question. Other states have,, and it is their decisions that form the substance of this discUSsion. A. ~-IAT IS A "COVENANT WHICH RUNS WITH THE LAND?" A real covenant is one that runs with the land. Pelser v. Gingold, 214 Minn. 281,285 (1943). A covenant runs with the land when it touches or concerns real property granted or demised, i.e. the covenant must concern occupation or enjoyment of land granted or demised and the liability to perform it, and the fight to take advantage of it must pass to the assignee. Id. If the covenant is merely collateral to the land, it becomes a personal covenant and the assignee of the land may not be charged with it. Id. at 286. Additionally, the parties must also intend that the covenant run with the land. Matter of Turners Crossroad Development Co., 277 N.W.2d 364, 369 (Minn. 1979). Examples of covenants running with the land include covenants relating to party walls, National L. Ins. Co. v. Lee, 75 Minn 157 (1899); covenants creating easements, Kettle River RR v. Eastern Rry, 41 Minn. 461 (1899); a covenant reserving to the grantor power from a dam yet to be constructed, Anderson v. Otter Tail Power Co., 175 Minn. 81 (1928); a covenant for partial releases as lots should be sold. Vawter v. Craft, 41 Minn. 14 (1889). Examples of covenants that do not nm with the land include a covenant against the sale of intoxicating liquors, Sjoblom v. Mark, 103 Minn. 193 (1908); a covenant not to sell food or beverages, Matter of Turners Crossroad Development Co. (supra.); a covenant not to compete, Dewey v. Kaplan, 200 Minn,. 289 (1937); a covenant with grantors to assume and to pay personal indebtedness for balances for certain improvements on land, Pelser (supra.). Be WII.L TI-IE HOLD HARMI,ESS TI-W. CITY ENVISIONS "RUN WITH THE LAND?" Of the limited number of cases decided on the question of whether an agreement by a city with private property owners restricting the property owners right to sue, those with circumstances similar to the Labelle Park problem have yielded varying results. One case deciding the question of city originated "not to sue" agreements with private parties is County Savings Bank v. Nunziato, 123 Mise.2d 502, 473 N.Y.S.2d 682)(1984). In Nunziato, plaintiff, a mortgage banking operation, brought suit against a city alleging that the city's agreement with the bank's predecessor in interest regarding the assessed value of the property in issue was null and void. The agreement, amongst other things, provided that the owners of the property, their heirs and assigns, could not challenge the assessed value of the property for a certain number of future years in exchange for a reduction in assessed value. Petitioner bank argued that as mortgagees, they were not parties to the original settlement agreements entered into between the private land owners and the city and, therefore, the agreements and covenants "not to sue" contained therein were not binding upon the petitioners and as a matter of law and in the sound discretion of this Court they should be declared null and void. Id. at 503. Furthermore, the bank argued that public policy considerations aside, it is well settled--that covenants not to sue do not run with the land but are rather personal to the 2 covenantors, notwithstanding any reference to.the covenantor's "heirs and assi~s" (Tarantelli v~ THpp Lake Estat.es, Inc., 23 A~D.2d 905, 259 N.Y.S.2d 185 [3rd Dept. 1965]i Id._. at 504. The appeal court held that the agreements were, after all, null and void. -However, the court's basis for their decision seemed to mm more on the authority of the city to enter into the · agreement more than the question of whether the bank was bound by the covenant, inasmuch as the covenant had "nm with the land". A second case of more direct application is Hackensack Water Company v. Juzek, 132 N.$.Super. 296, 333 A.2d 544 (App. Div. 1975). In Haekensaek, Haekensaek, a water company, made application to a local Water Council for approval of condemnation proceedings of certain lands owned~by the/luzek's and adjacent tO' Haekensaek's plans to construct a reservoir. The condemnation was ultimately approved by the Council, with the suggestion.by the council that the Suzek's grant Haekensaek an easement along'with entering into a private agreement whereby the Suzek's would agree to refrain from suing Haekensaek for flood damage to the Suzek property caused by controlled releases over thedam or by severe storms. Ici. at 301. Haekensack was dissatisfied with the decision of the council, since the council had determined that far less Suzek property'would be necessary for the flowage easement. Specifically, Haekensack argued that the Council exceeded its authority to substitute a hold-harmless agreement for therigh~ to condemn. In aetuality~ the Council determined that Haekensaek had the power to acquire bYeondemnafion an easement over the Suzek property for purposes of periodic or occasional flooding and, in conjunction therewith, that the parties should enter into an agreement to hold Hackensaek harmless from any liability resulting from such flooding. This latter ruling was'based UPon the willingness of the Suzeks to enter into a covenant 'running with the land' to protect Haekensaek~ froTM liability for flood damage. Id: at 303. The appeals court struck down the private "hold harmless" agreement. The court explained: It was not, hoWever, within the implied statutory authOrity of the- Council to dispense with the neceSSity to provide just compensation for the acquisition of that interest. The damage or injury to land as a result of actual or threatened flooding must be redressed through the award of just enmpensafion. CT. Trenton Water POwer Co. v. I~,f-f', 36 N:J.L. 335, 343 (Sup. Ct. 1873); 26 Am.ilur.2d~ Supra, s 195 at 877.' It was, therefore, improper for the Council to have:conditioned the approval for the award of an easement for Periodic flooding upon the exeCUtion by the property owners of a so-called hold-harmless agreement in the nature of a covenant running withthe land. This is not to say that the parties would be otherwise barred from entering, voluntarily into an agreement to accommodate ~their'respective interests. But absent such an agreement-whiCh, in this setting, cannot be directed or dictated by 3 the administrative agency or the court--the grant of the easement to Hackensack and the just compensation which must be paid therefor should be the subject of a condemnation proceeding brought pursuant to statute. Id. at 304. The City of Columbia Heights would most likely argue that consideration for the hold harmless agreements would be the City's agreement to refrain from exercising its powers of assessment in exchange for the landowners agreements to refrain from suit. Hackensack instructs that, given these circumstances, such an ~ent may be unenforceable. The unenforcability of the agreement would come from the fact that the landowners would not be justly compensated for the prospective loss they would suffer should any physical harm come to their property as a result of either continuing erosion or problems in the fencing. Hackensack A second case, in contrast, upheld an agreement by a private landowner to refrain from commencing suit. In Phillips v. Airman, 412 P.2d 199 (Okla. 1966), where plaintiff sued defendant alleging damage to property from certain oil deposits generated by defendant's business operations. In Phillips, plaintiffs acquired title to their property under a deed that contained language that both granted an easement to defendant for drainage purposes over plaintiff's land. It likewise contained a promise by plaintiff's predecessor in interest not to sue defendant for such damages caused by the flow of oil over those sections covered by the easement. In holding that the covenant not to sue was valid, the court explained as follows: "The provision including the easement and covenant is contained within a properly executed deed which is presumptively based upon a good consideration. Wilcox v. Wickizer, 266 P.2d 638, 641. It is sufficient as to both form and substance to constitute a covenant running with the land, see 28 C.J.S. Easements s 28, and 21 C.J.S. Covenants ss 54 and 73." Id. at 201. Ostensibly, the court ruled in defendant's favor bemuse the covenant was contained in a deed. Since deeds are generally given incident to the sale of property, the court surmised that the consideration contained within the deed sufficed for consideration supporting the covenant not to sue. In that regard, the Phillips ease differs little if any from what the City of Columbia Heights intends to do. The similarities lie in that when the landowners do go to sell their property, the covenant should be contained in the deed (most likely will be). To that extent, the covenant not to sue should withstand judicial scrutiny. On the other hand, in the City of Columbia Heights' case, the City will be obtaining the covenants by way of private document. The City's covenant, in the first instance, will not appear in a deed. Accordingly, Phillips would hold that any property owner initially subject to the agreement may be able to sue in the face of the agreement since, their is no real consideration for the covenant. The final ease for consideration is Waldrop v. Town of Brevard, 233 N.C. 26, 62 S.E.2d 512 (N.C. 1950). There, the Town of Brevard purchased land from I.F. Shipman with the understanding that the land would be used for a garbage dump. Shipman owned all of the land surrounding the newly acquired city land. In the deed from Shipman to the City, Shipman covenanted for himself and anyone who owned any of his property after him that they would refrain from suing the City based upon claims of nuisance arising from the City's operation of the dump. Shipman subsequently subdivided his remaining land. None of the deeds from Shipman to the ne.W owners contained the prescription on suing the City. Those persons sued the City alleging nuisance from the dump. In ruling that the new owners of the Shipman property could not maintain suit against the City, the-court opined: 'A covenant or agreement may operate as a grant of an easement if. it is necessary to give it that effect ia order to carry out the manifest intention' of the parties.' 17 Am. Jur., Sec. 27, p; 940. * · ' * The grant and release or waiver contained ia the deed from I. F. Shipman and wife to the Town of Brevard, ia our opinion, created a right ia the nature of an easement ia favor of the Town of Brevard, upon the remainder of the lands owned by the grantors. And the waiver or release of any right to make a future claim for damages or Other relief, resulting from the use of the premises conveyed to the defendant as. a garbage dump, constitutes a covenant not to sue and is binding on the grantors, their heirs and assigns. Consolidation Coal Co. v. Mann, 298 Ky. 28, 181 S.W.2d 394; Brush v. Lehigh Valley Coal Co., 290 Pa. 322, 138 P. 860; J. Ti' Donohue Realty Co. v. Wagner, 154 Md. 588, 141 A. 337; Mayor and Councilmen of City of Troy v. Coleman, 58 Ala. 570; Mayor and Councilmen of Town of Union Springs v. Jones, 58 Ala. 654; 13 C.J. s 399, p. 458; 17 C.J.S., Contracts, s 104, page 459. 'If the owner of property has charged it with a servitude as to the matter complained of, a subsequent grantee cannot recover damages therefor.' 29 Cyc. 1260. Id. at p. 29. As is apparent from the Court's language, the court regarded the Shipman/City deed as creating an easement right ia the City for the incidental fumes associated with the operation of the dump. The court then concluded that since this was'in the nature of an easement, and since it was ~ recorded,' it.was, ia effect, a recorded easement eOn~inlng a covenant not to sue. Had the court not regarded the deed as granting an easement, I do not believe that the same result would obtain. Waldrop. seems to provide only little support for what the City of Columbia Heights intends to do. Indeed, this is'not a'ease where the City will be acquiring land with beneficial .covenants attached ~o the property. The City will ia fact be creating the covenants.' To this end, it isdi~cult to say that the agreement will be ia the nature of an easement, iOn the other hand' there remains the possibility of actually obtaining easements from the landowners. That question is discussed above ia earlier sections. 5 C. WlI.I. THE CITY BE ABI.E TO JUSTIFY THE ASSESSMENT? Chapter 429 of Minnesota Statutes provides the authority for special assessments. Special assessments may be levied only upon those properties benefitted by the improvement. Minn. Stat. 429.051. The benefits obtained from an improvement are calculated by comparing the market value of the land before and after the improvement. Many things may be used as evidence of market value of land, including the cost necessary for continued legal use of the land, or the "cost to cure". See LunderberR v. City of St. Peter, 398 N.W.2d 579 (Minn. Ct. App. 1986). Although any improvement which benefits the land is presumed valid, the landowner may rebut this presumption with evidence showing that the land value did not rise. Buzick v. City of Blaine, 505 N.W.2d 51 (M~nn. 1993). It is difficult to determine the outcome of a challenge to the City's assessment of the property surrounding Labelle Park. No doubt, the proportionate benefit to the surrounding landowners may very well be less than the amount assessed to each individual owner. The only hope of justifying the assessment may come from application of the Lunderberg (supra.) case. There, the City of St. Peter sought to assess business owners along the main street in the City. The work to be done encompassed standard separation of storm and sanitary sewers. The several business owners challenged the assessment, arguing that their property would not be benefitted by an amount equal to the cost of the assessment. In finding against the several business owners, the Minnesota Court of Appeals explained that the "cost to cure" could be a sufficient measurement of the benefit bestowed on each parcel. Accordingly, the court held that the assessment was justifiable. However, it was critical to the case that the business owners admitted that the repairs needed to be completed. The court took special note of their admission in finding that the "cost to cure" logically benefitted the parcels by the amount expended to make the necessary repairs. Here, it is a difficult question whether the land at Labelle Park is in such a state of disrepair that work to alleviate the erosion is "necessary". Without an expert opinion on whether the property poses an immediate and substantial risk to the health and safety of the public, the City is not in a position to argue that the repairs must be completed. Moreover, unlike Lunderberg, it is highly unlikely that any of the landowners will _admit that the property needs to be repaired. Dm IS THE crrY PROTECTF. D BY DISCRETIONARY IMMUNITY SHOULD ANYONE BE INJUIH~'.D AS A RESULT OF FAII.ING TO MAKE THE REPAIR~ AT LABELLE PARK~ The f-mai question facing the City is whether or not it will face the risk of liability should nothing be done on the Labelle Park land and a private individual is injured from falling debris. That question is most properly addressed within the context of a legal theory known as "discretionary immunity". 6 In 1975, the Minnesota Supreme Court abolished sovereign immunity for clalrn~ arising after ,august I, 1976. Ostendorfv. Kenyon, 347 N.W.2d 834 (Minn. App. 1984), citing with approval, 'Nieting v. Blondell, 235 N.W;2d 597 (Minp. I975). As a general rule therefore, the unit~ of government are now responsible to pay compensation for any claims that a priVate'person would be liable for under like circum.qtances. Minn~ Stat. s. 3.736(1). It.is widely reco~iYed that the discretionary act exception to the general rule 'of liability of municipalities for their torts is to be interpreted narrowly,: Ir]cad literally, .the discretionary function exception would preserve immunity for almost all government 'acts because almost everything a government employee does, from driving a snowplow to formulating toxic waste disposal regulations, involves the exercise of some discretion. We have reco~iyed, however, that the legislature did not intend the discretionary function exception to swallow the general rule Of allowing recovegt fOr those .injuries negligently inflicted in the p.erformance of government operations. [Citations. omitted]. Accordingiy'in determining whether particular conduct is protected, we have interpreted a discretionary function narrowly and have focused on the purpose. underlying .the exception. H01mquist v. State of Minnesota, 425 N.W.2d 230, 231 (Minn. 19g$)(emphasis addbd); See also Larson v. I.S.D.:No. 314, 289 N.W.2d 112 (Minn. 1979);.Hennes v..Patterson, 443 N.W.2d 198, 202 (Minn. App. 1989). The critical question is whether the challenged activity "involved a balancing of'policy objectives." Nusbaum v. Blue Earth County, 422 N.W.2d 713, 7!8 (Minn. 1988). The conduct is protected only. where the government entity produces evidence the conduct was of a policy-making nature involving social,, political or 'economic considerations. Id. "Operational level decisions, on the other hand, involve decisions relating to the ordinary day to day operations Of the government." Id_.. HoWever, the implementation of an established policy ~n a.particular fact simatlon is not usually within the discretionary function exception, even if that · application calls for specialized knowledge, expertise and professional ~udgrnent. Id. (emphasis added). The distin'ffion between planning activities and operational activities has been fin'ther .explained as follows: [Plinth'lng level decisions are those involving questions of' public policY, that is, the'evalUation of factors such as the f~nancial, political, economic and' Social effects of a given plan' or policy. 7 Operational level decisions, on the other hand, involve decisions relating to the ordinary day-to-day operations of the government. H01mquist, supra, at 232; See Nusbaum, 422 N.W.2d 713 (Minn. 1988). The scope of discretionary acts of immunity is difficult to define and has been the subject of considerable litigation. Generally speaking, the "discretionary" label is applied to policy making or legislative functions or judicial decisions. Courts sometimes distinguish "discretionary" acts from "ministerial" acts. See Williamson v. Cain, 245 N.W.2d 242 (IV[inn. 1976). On other occasions, the distinction is drawn between the "planning" functions and "operational" functions; governmental personnel engaged in "planning" are deemed to be engaged in discretionary acts, but personnel performing at the "operational" level are not. Robinson v. Hollatz, 374 N.W.2d 300 (Minn. App. 1985). At some definitive point however, according to the Minnesota Supreme Court, discretion is exhausted and the execution of a specific duty arising from designated facts arises. Cairl v. State, 323 N.W.2d 20, 30 (Minn. 1982). In the situation currently facing the City of Columbia Heights, the decision to complete the Labelle Park project is most likely "discretionary". The decision to complete or abandon the project lies wholly within economic and policy concerns of the city council. It would be a stretch of logic to conclude the council was "implementing" a policy decision by deciding to abandon the project. On the contrary, it is the very heart of policy-making and economic concerns which drives the council in its decision. On the other hand, there remains the question of whether the City would be liable on the theory that now that it has knowledge of a dangerous condition existing on land, is there a duty owed to the general public to fix the problem. That question is still in the process of being researched and an answer will be forthcoming. 8 of: AGENDA SECTION: NEW BUSINESS ORIGINATING DEPARTMENT: CITY MANAGER NO. ~ PUBLIC WORKS,~_j ~,-~~ ITEM: AUTHORIZATION TO SEEK QUOTES BY: M. Winsou Y'~,~"~ BY: NO. FOR RUBBER SURFACED CROSSINO MATERIAL DATE: $/31Y94 DATE: In conjunction with C_P. Rail System, the Cities of Columbia Heights md St. Anthony are installing a rubberized crossing for the railrgad Uacks on Sfinson Blvd, north of 37~h Avenue. 'rne Cities are respons~le for supplying the crossing material Io C.P, Rail System. C.P. Rail System is ins~lling {he crossing at no charge lo the cities (a savings of a]~mroximately ~/00.00 per lineal foo0. Staff requests authori~mion to seek quotes for Ibc robber surfaced crossing mamial from ~he three companies listed on the attached agreement. These companies are approved by C.P. Rail System, RF.C~~ED MOTION: Move to authorize Staff to seek quotes for the purchase of robber smfaced crossing material MAW 94-320 COUNCIL ACTION: 105 South 5th Street Box 530 Minneapolis MN 55440 Te~ (6t2) 3478000 Operating Department Heavy Haul - US CP Rail System December 21, 1993 Engr. File: X-PAY-D05-50-R Mr. Larry Hamer Director Public Works Village of St. Anthony 3301 Silver Lake Road St. Anthony, MN 55418 Dear Mr. Hamer: RE: STINSON BOULEVARD DOT# 688 993P - MILE POST D5.50 MINNEAPOLIS, MN This letter confirms our three-way phone conversation with yourself and Mr. Mark Winson, Director of Public Works for the City of Columbia Heights, on Monday December 20, 1993 concerning a proposed rubber crossing surface at the above location. Soo Line would provide, at its expense: Labor, material and equipment to remove the existing crossing material; reconstruct the rail, ties and ballast through the complete crossing area; install rubber surfaced crossing material through the traveled roadway; provide and install treated hardwood crossing timber through the shoulder and sidewalk areas as required; and remove the abandoned east bound main line from the crossing surface. The City will provide, at its expense: Necessary traffic control, signs, and detours during reconstruction of the crossing; rubber surfaced crossing material; replacement of the asphalt/concrete pavement; and disposal of existing crossing surface. The city should purchase the rubber crossing surface directly. The anticipated cost of rubber crossing material is between $170 and $200 per foot. We suggest you obtain price quotations from the following suppliers which are acceptable to Soo Line Railroad. The rubber crossing would be for Soo Line standard 115 pound continuous welded rail. Tapered end plates are not required. Riedel-Omni Products 3911 Dayton Street McHenry, IL 60050 Phone: 815-344-3100 Mr. Bob Cigrang - Specify either Standard Duty or Heavy Duty full depth rubber Hi-Rail Corporation 600 West Jackson Blvd.-Suite 580 Chicago, IL 60606 Phone: 312-648-4875 Mr. Larry Schaefer - Specify full depth rubber Goodyear Tire & Rubber Company 5100 West 35th Street Minneapolis, MN 55416 Phone: 612-924-4544 Ms. Angela Field - Specify full depth rubber Mr. Larry Hamer Page 2 December 21.,'1993 Soo Line's-~Assistant Division Manager Engineering, Ed Howard, will be handling the scheduling of the crossing installation. 'We will be in.contact With you.at a later date to advise our schedule and when to order the rubber crossing sur'face_ SooLine is looking forward to working with the City of St. Anthony and Columbia Heights on this crossing improvement and appreciatesboth citY's cooperation. As per our phone conversation, the city's will have separate agreemeRt to equally divide the road aUthority's expense'. If youconcur, please sign one original and return to my attention. Very truly 'yours, . .~~~rc Works Engineer hc: Mark Winson- Director Public Works 637 - 38th Avenue NE Columbia Heights, MN 55421 Concurrence: L. W. Carroll D. J. BOck- R. G. Kutcher -J. D. Schmeling