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HomeMy WebLinkAbout2046DRIVEN;'; AND UTILITY EA'SEMENTS l THIS INSTRUMENT, Made this '� � day of iAA 1978, by and between CITY OF EDINA, a Minnesota municipal corporation, party of the first part [hereinafter called "Edina "], and JERRY'S ENTERPRISES, INC., a Minnesota corpora- tion, GRANDVIEW CONSTRUCTION COMPANY, a Minnesota corporation, and GERALD A. PAULSEN and SHIRLFY N. PAULSEN, husband and wife, parties of the second part (hereinafter together called "Owners "]. WITNESSETH, THAT: WHEREAS, Edina is the fee owner of certain property within the City of Edina legally described as follows: Lots 7 through 10, inclusive, Block 3, Grand View Heights, according to the plat thereof on file or of record in the office of the Register of Deeds, in and for Hennepin County [hereinafter called "Edina Property "]; and WHEREAS, Owners are the fee owners of certain property within the City of Edina legally described as follows: Lots 19 and 20, Block 3.Grand View Heights, according to the plat thereof on file or of record in the office of the Register of Deeds in and for Hennepin County [hereinafter called "Owners Property "]; and WHEREAS, Owners are improving Owners Pr(:.perty and in connection therewith need an easement for driveway and an easement for utility purposes under and across a portion of the Edina Property giving access to the public street known as Brookside Avenue; and WHEREAS, Edina has previously granted a driveway ancl utility easement to Owners by document entitled Driveway and Utility Easement, dated May 2, 1977, and filed as Document No. 4303500 in the office of the Coianty R,�cor6er, F;enn(� pin County, and as Document No. 1261.899 in the office of the Registrar of Titles, C1t Iln`Gin Co -.'.: y i the "Or gina E l ;e�:1�?2i] i an'. "'TRANSFER ENTERED OCT 161978 FINANCE DIVi&J d H�EJNJNE(PM COUNTY, MIAN. BY ! /�� F�}.A DEPUTY i 10 delinquent taxes and transfer entered FINANCE DIVISION NENNE-PIN COUNTY, MINK,, OCT 16 1978 �119�' 1ti'� 9i9i510N DIRECTOR EP'u'>w16 This cerfiflt en do,, not "163'9 to taxes the'curreRt:yregr ,Which may R3r r1THq. RMt qA 1p�ittl: �l'.����� WHEREAS, Edina and Owners now desire to terminate and cancel the Original Easement and to enter into a new agreement whereby Owners are granted an easement for driveway and an easement for utility purposes under and across portions of the Edina Property, all on the terms and conditions hereinafter set out. NOW, THEREFORE, for and in consideration of One ($1.00) Dollar and other good and valuable consideration, to each of the parties hereto in hand paid by the other parties hereto, the receipt and sufficiency of which is hereby acknowledged by all parties hereto, the parties hereto do hereby agree as follows: 1. Edina and Owners do hereby agree to terminate and cancel, and do hereby terminate and cancel, completely and in its entirety, the Original Easement. 2. Edina does hereby grant, bargain, quitclaim, and convey to Owners, for the benefit of Owners Property, perpetual nonexclusive easements for the purposes below stated and over those portions of the Edina Property below described, to -wit: "a. An easement for the construction, reconstruc- tion, maintenance, repair, and use of a driveway for pedestrian and vehicular passage [the "Driveway Easement "], on and across that part of the Edina Property described as follows: The North 10.67 feet of Lot 10, Block 3, and the South 10.66 feet of Lot 9, Block 3, all in Grand View Heights, according to the recorded plat thereof, Hennepin County, Minnesota. b. An easement for the construction, reconstruc- tion, maintenance, and repair of underground electrical power lines, water pipes, sanitary sewer pipes, gas lines, and tele- phone lines [the "Utility Easement "], under that part of the Edina Property described as follows: -2- Part I: The South 21.33 feet of Lot 10, Block 3, except the East 70.5 feet thereof; Part II: The East 105 feet of the North 21.33 feet of the South 49.33 feet, and the West 34.5 feet of the East 105 feet of the North 6.67 feet of the South 28.00 feet of Lot 10, Block 3; all in Grand View Heights, according to the recorded plat thereof, Hennepin County, Minnesota. 3. The Driveway Easement and Utility Easement are hereby made subject to the following terms and conditions, to which Edina and Owners hereby mutually agree: a. All construction, reconstruction, maintenance, and repair [the "Work "] of any of the lines and pipes -under the Utility Easement and of the driveway on the Driveway.Easement shall be done at the sole cost and expense of Owners, and Owners jointly and severally agree to hold Edina, and its successors and assigns, and all future owners and occupiers of the Edina Property, harmless from and indemnified against any loss, cost, damage, or expense, including attorneys' fees, due to any claims or demands, including, but not limited to, mechanics' or material - men's liens filed or claimed against all or any part of the Edina Property, arising out of, or claimed to have arisen out of, the Work. All such Work shall be done so as to cause as little as possible inconvenience to and interruption of the use of the Edina Property. b. Before undertaking any of such Work on either the Driveway Easement or the Utility Easement, Owners shall advise the Edina Property Owner [the "Edina Property Owner" shall mean the record owner of any portion of the Edina Property subject to an easement granted by this document who, is such owner as of the time when any Work or other activity relative to that easement is to be done pursuant hereto] of the extent of the Work and the estimated cost thereof, and the Edina Property Owner, at its option, as a condition to commencing the Work, may require that Owners first deposit with the Edina Property Owner security, in -3- form and substance, and in amount, reasonably acceptable to the Edina Property Owner, to insure that the Work will be completed and that the cost thereof will be paid in full. Waiver by the Edina Property Owner of, or failure by the Edina Property Owner to insist on compliance with, the provisions of this paragraph, no matter how often, shall not be deemed to be a waiver of the right to insist on compliance with the provisions of this para- graph in connection with any subsequent Work. c. The easements hereby granted shall be for the benefit of, and be appurtenant to, Owners Property and the im- provements now or hereafter located in whole or in part thereon. d. The Edina Property Owner may require Owners to relocate the Driveway Easement, at their sole cost and ex- pense, to another location on the Edina Property then owned by such Edina Property Owner [which other location is hereinafter called the "Substitute Driveway Easement Area"] on the following terms and conditions: M The Driveway Easement shall be relocated upon notice given by the Edina Property Owner to Owners, which notice may be given at any time and without reason or cause therefor. (ii) In the event notice is given to owners pursuant hereto to move the Driveway Easement, Owners shall have such time as is reasonably necessary with the prompt exercise of due diligence to relocate the Driveway Easement, but, in any event, not more than ninety (90) days from the giving of such notice. (iii) The Edina Property Owner, with any such notice given pursuant hereto, shall grant and quitclaim to Owners, by written document, an easement on and over the Sub- stitute Driveway Easement Area, fully executed and in recordable form, containing the same terms and conditions as set out in -4- i form and substance, and in amount, reasonably acceptable to the Edina Property Owner, to insure that the Work will be completed and that the cost thereof will be paid in full. Waiver by the Edina Property Owner of, or failure by the Edina Property Owner to insist on compliance with, the provisions of this paragraph, no matter how often, shall not be deemed to be a waiver of the right to insist on compliance with the provisions of this para- graph in connection with any subsequent Work. c. The easements hereby granted shall be for the benefit of, and be appurtenant to, Owners Property and the im- provements now or hereafter located in whole or in part thereon. d. The Edina Property Owner may require Owners to relocate the Driveway Easement, at their sole cost and ex- pense, to another location on the Edina Property then owned by such Edina Property Owner [which otner location is hereinafter called the "Substitute Driveway Easement Area "] on the following terms and conditions: (i) The Driveway Easement shall be relocated upon notice given by the Edina Property Owner to Owners, which notice may be given at any time and without reason or cause therefor. (ii) In the event notice is given to Owners pursuant hereto to move the Driveway Easement, Owners shall have such time as is reasonably necessary with the prompt exercise of due diligence to relocate the Driveway Easement, but, in any event, not more than ninety (90) days from the giving of such notice. (iii) The Edina Property Owner, with any such notice given pursuant hereto, shall grant and quitclaim to Owners, by written document, an easement on and over the Sub- stitute Driveway Easement Area, fully executed and in recordable form, containing the same terms and conditions as set out,in -4- this easement as to the Driveway Easement (including, but not limited to, the right of the Edina Property Owner to thereafter again relocate the Driveway Easement from the Substitute Drive- way Easement Area to another location or locations on the Edina Property), but describing the then Substitute Driveway Easement Area, and each such Substitute Driveway Easement Area shall be on and over a strip of land no less than twenty -one (21) feet in width and connecting Brookside Avenue in the city of Edina with the east boundary line of Owners Property, but otherwise in any such location or locations on the Edina Property as may be designated by the Edina Property Owner, including, without limitation, on and over the Utility Easement (in its original or relocated position). (iv) Owners promptly shall pay all costs of relocating the Driveway Easement, including, but not limited to, the cost of restoring all portions of the Edina Property from which the Driveway Easement is moved to as nearly as possible the condition it was in before any Work was done thereon pursuant hereto. (v) Within fifteen (15) days of receipt of written notice given pursuant to (i) herein, Owners shall file with the Edina Property Owner security, in form and substance, and in an amount, reasonably acceptable to the Edina Property Owner, to insure that the relocation and restoration work is completed by Owners and that all costs thereof ate paid in full. (vi) Upon the expiration of ninety (90) days from the recording by either the Edina Property Owner or Owners of the easement for the Substitute Driveway Easement Area, all of the right, title, and interest of Owners to use all or any part of the Edina Property other than the Substitute Drive- way Easement Area as then located (and subject to relocation pursuant hereto) and the Utility Easement as then located (and subject to relocation pursuant hereto) shall expire and cease -5- r r" without further act by any party hereto, and Owners agree to deliver to the Edina Property Owner, on the date of such expira- tion as herein provided, a fully executed, recordable quitclaim deed, releasing all of the right, title, and interest of the Owners in and to the Edina Property except as above provided, but such right, title, and interest of Owners shall terminate pursuant hereto notwithstanding failure or refusal of Owners to give such quitclaim deed. (viii) The Edina Property Owner may require relocation of the Driveway Easement pursuant hereto from time to time, without restriction as to the number of times such relocations may be made, and each location on the Edina Property to which said Driveway Easement is relocated from time to time shall be included within the phrase "Substitute Driveway Ease- ment Area" for purposes of this agreement. e. The Utility Easement shall be for underground lines and pipes only, and no such lines and pipes shall be con- structed or maintained on or over the Utility Easement. Also, the Edina Property Owner may require Owners to relocate Part II of the Utility Easement as described in paragraph 2.b hereof [the "Relocatable Portion "], on the following terms and conditions: (i) The Relocatable Portion shall be relocated upon notice given by the Edina Property Owner to Owners, which notice may be given at any time after the building now lying southerly of the Relocatable Portion of the Utility Easement and on said Lot 10 of the Edina Property has been removed from said Lot 10. (ii) In the event notice is given to Owners pursuant hereto to move the Relocatable Portion of the Utility Easement, Owners shall have such time as is reasonably necessary with the prompt exercise of due diligence, but, in any event, le not more than ninety (90) days from the giving of such notice, to relocate such portion to that part of said Lot 10 described as follows: The East 70.5 feet of the South 21.33 feet of said Lot 10, [the "New Portion "]; it being the intent and purpose hereof, once the said portion is so relocated, to have said Utility Easement exist only under the South 21.33 feet of Lot 10 of the Edina Property. (iii) The Edina Property Owner, with any such notice given pursuant hereto, shall grant and quitclaim to Owners, by written document, another easement under the New Portion, fully executed and in recordable form, containing the same terms and conditions as set out in this - easement as to the Utility Easement, but not including any further or additional rights to again relocate all or any part of the Utility Easement as then relocated to the New Portion. (iv) Owners promptly shall pay all costs of relocating the Utility Easement, including, but not limited to, the cost of restoring all portions of the Edina Property from which the Utility Easement is moved to as nearly as possible the condition it was in before any Work was done thereon pur- suant hereto. (v) Within fifteen (15) days of receipt of written notice given pursuant to (i) herein, Owners shall file with the Edina Property Owner security, in form and substance, and in an amount, reasonably acceptable to the Edina Property Owner, to insure that the relocation and restoration work is completed by Owners and that all costs thereof are paid in full. (vi) Upon the expiration of ninety (90) days from the recording by either the Edina Property Owner or Owners of the easement for the New Portion of the Utility Easement, -7- all of the right, title, and interest of Owners to use all or any part of the Edina Property other than for the Utility Ease- ment as then relocated and except for the Driveway Easement as it is then located (and subject to relocation pursuant hereto) shall expire and cease without further act by any part hereto, and Owners agree to deliver to the Edina Property Owner, on the date of such expiration as herein provided, a fully executed, recordable quitclaim deed, releasing all of the right, title, and interest of the Owners in and to the Edina Property except as above provided, but such right, title, and interest of Owners shall terminate pursuant hereto notwithstanding failure or refusal of Owners to give such quitclaim deed. 4. The parties hereto understand and agree that Owners, and future owners of any or all of Owners Property, and all occupiers of any or all of Owners Property, shall not use the Utility Easement or Driveway Easement,as either may from time to time exist (in their original or relocated positions),for any purpose other than as herein set forth, and specifically shall not park vehicles on, place structures of any kind on, or store any property, material, or equipment of any kind whatsoever on, either of said easements. The parties hereto further understand and agree that Edina, and any future owner of all or any part of the Edina Property, may place or construct buildings and other structures on, over, and under all or any part of the Edina Property not then subject to the Utility Easement or the Drive- way Easement, as either may then exist (in their original or relocated positions) on the Edina Property , even though such buildings or structures block or prevent use of, from the Edina Property side, any openings or doors into buildings or structures now or hereafter placed or constructed upon all or any part of Owners Property. This paragraph is intended as a clarification of, and not in any way as a restriction on, the right of the owners of the Edina Property to use the Edina Property in any way such owners deem desirable that is not inconsistent with the easement rights hereby granted. 5. In the event that the then owner or owners of Owners Property, on or before May 2, 1982, enter into a pur- chase agreement for the purchase of all of the Edina Property, or that portion of the Edina Property that includes the then location or locations of the Driveway Easement and the Utility Easement, then, and in that event, and only in that event, such owner or owners shall be entitled to a credit against such purchase price in the amount paid by Owners for this ease- ment, Ten thousand four hundred fifty three and 10 /100 ($10,453.10) Dollars. However, there shall be no obligation created hereby for Edina, or its successors or assigns, or any future owner of all or any part of the Edina Property, to sell the Edina Property, or any portion thereof, to Owners or any other person, nor shall any restriction be created hereby upon the terms or conditions of any sale of all or any part of the Edina Property. 6. All notices or demands required or permitted to be given under or pursuant to this easement shall be in writing and shall be deemed to be given when delivered personally to the party, or any officer of the party, to which notice is being given, or when deposited in the United States mail in a sealed envelope;. with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: If to Edina, at: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager. If to Owners, at: 5125 Vernon Avenue South Edina, Minnesota 55436 Attention: Mr, Gerald A. Paulsen. Such addresses may be changed by either party upon notice to the other party given as herein provided. 7. As additional compensation herefor, Owners shall pay all state deed taxes and recording fees in connection with this instrument and all documents hereafter executed and delivered pursuant hereto. cm 8. The terms and conditions hereof shall run with the title to the Edina Property and the Owners Property and bind and inure to the benefit of all present and future owners of such properties. THIS INSTRUMENT IS EXEMPT FROM STATE DEED TAX. IN TESTIMONY WHEREOF, the parties hereto have caused these presents to be duly executed the day and year first above written. JERR ENTERP SES, N by Its and Its GRANDV W CONSV11 ION COMPANY by Its and is ar.074mra-r. This instrument drafted by- DORSEY, WINDHORST, HANNAFORD, WHITNEY & HALLADAY (TSE) 2300 First National Bank Building Minneapolis, Minnesota 55402 -10- STATE OF MINNESOTA ] COUNTY OF HENNEPIN ] The foregoing instrument was acknowledged before me this day a ,./ 1978, by JAMES VAN VALKENBURG and FLORENCE B. HALLBERG, Mayor and Clerk, respectively, of the CITY OF EDINA, on behalf of the City of Edina. PIP STATE OF MINNESOTA ] COUNTY OF HENNEPIN ] XAAA,AAAAAAAWA A 1,t �.l s /. A r ► 1 1. � A� FRANCES J. GRINLEY NOTARY PUBLIC • MINNESOTA HENNEPfN COUNTY My Commission Expires June 28. 1984 x rrrrrrryyrrwwr�rrmrrrvrvrrnrrrrx The foregoing instrument was ackn ledged before me this day of GG 1978, by and , as and ,espactiue].y, of JERRY'S ENTERPRISES, INC., on behalf of the corporation. SARA JEAN HARM0N NOTARY PUBLIC —� MINNESOTA ► HENNEPIN COUNTY My Commission Expires Nov. 27, 1979 STATE OF MINNESOTA ] ] COUNTY OF HENNEPIN ] The foregoing instrument was ackn wledged before me this &-/day o 1978 , by V 40 and , as and , r ply, of GRANDVIEW CONSTRUCTION COMPANY, on behalf of the corporation. SARA ;EAN HARM n N NOTARY PUBLIC — MINNESOTA HENNEPIN COUNTY My Commission Expires Nov. 27, 1979 • .v --11- STATE OF MINNESOTA ] ] COUNTY OF HENNEPIN ] The foregoing instrument was acknowledged before me this day of �. / , 1978, by GERALD A. PAULSEN and SHIRLEY N. PAULSEN, husband and wife. "S. SARA JEAN HARMnN % L?i NOTARY PUBLIC— MINNFSOTA #i£NN£P1N COUNTY My COmmission Expires Nov. 27. 2979 -12- *rs CONSENT OF LESSEE The undersigned, SUPER VALU STORES, INC., a Delaware corporation, being the Lessee under that certain lease of part of the Owners Property evidenced by Lease dated February 9, 1968, and filed for record in the office of the County Recorder, Hennepin County, Minnesota, as Document No. 3702602, on February 20, 1968, does hereby consent and agree to all of the terms and conditions of the Driveway and Utility Easements to which this Consent is attached, including, without limita- tion, the release of the Original Easement as therein designated. .IN WITNESS WHEREOF, the undersigned has caused these presents to be duly executed this day of , 1978. SUPER VALU STORES, INC. I by I Homer Ahii s, Vic._,F and Caw /. _ I L - ILs CAOrles D. Dugan,-Jr./ Vice President and Assis ant Secretary STATE OF MINNESOTA j COUNTY OF HENNEPIN J The foregoing instrument was acknowledged before me this day of 1978, by Reiner A. Childs Charles D. Dugan, Jr. and , Vice President and Secretary and Vice President and Assistant Secretary r respectively, of SUPER VALU STORES, INC., a Delaware corporation, on behalf of the corporation. sloes 0 NANCY L. HARTLEP I!". NOTARY PUSLIC - MINNESOT A A HENNEPIN COUNTY Y COnlaalon xpire June t, 1 8 4 __j -13- SUBORDINATION The undersigned, being the owner and holder of the following mortgage: Mortgage in favor of First National Bank of Minneapolis, filed for record in the office of the County Recorder, Hennepin County, Minnesota, as Document No. 4303511, on July 29, 1977, does hereby consent to that certain Driveway and Utility Ease- ments dated .LCwj. a--a , 1978, to which this Subordi- nation is attached and made a part, and does hereby subordinate the lien of such mortgage to said Driveway and Utility Easements and all terms and conditions thereof, including, without limitation, the release of the Original Easement as therein designated. IN WITNESS WHEREOF, the undersigned has caused these presents,to be duly executed this % day of Se riu 1978. FIRST NATIONAL NApTIONAL BANK OFD— MINNEAPOLIS by and STATE OF MINNESOTA J COUNTY OF HENNEPIN J Its The foregoing instrument was acknowledged before me this !$' day of 1978, by�,r �- C� and as mss ;1- 61...fi j-,_c ,��5,-'77`and ommercicl .;. , respectively, of FIRST NATIONAL BANK OF MINNEAPOL a n tional banking institution, on behalf of the bank. t/ WIRI�u :/1AMMMAAM'MAf•I..y.. \1f•.V.. .i.•.. f DIANE E. ATIVIA IN <, i NOTARY PUBLIC - MINNESOTA HENNEPIN COUNTY My Commission Expires Jan. 26.1 983. r -14- j 29S77(7 a'rS, ;7ERED VOL--/�-�LPAGE OFFICE OF THE REGISTRAR OF TITLES HENNEPIN COUNTY. MINNESOTA CERTIFIED FILED ON OCT 16 1978 1,;2, -rte- REGISTRAR OF TITLES BY - DEPUTY OFFICE OF DUSTY RECO"; HENHEPIN COUNTY-M14N CERTIFIED FILED , ' 142 urcokc-fu Z14 1978 OCT 16 PM 2:48 AS DOCUMENT # Ca. otc.39"'.. ;t iy '7 D 0 C U M E 7. E C 0 R D E D ON BOTH CL AND TORRENS edOPEUX Os Li EL r r, Fililag Certificate ti Lu 0� OFFICE OF DUSTY RECO"; HENHEPIN COUNTY-M14N CERTIFIED FILED , ' 142 urcokc-fu Z14 1978 OCT 16 PM 2:48 AS DOCUMENT # Ca. otc.39"'.. ;t iy '7 D 0 C U M E 7. E C 0 R D E D ON BOTH AND TORRENS edOPEUX Os Li r r, Fililag Certificate 25� tofttw r D�2IVE:; Al AND UTILITY EASEMENTS THIS INSTRU TNIENT .Made this , d av of ► 1978, by and between CITY OF EDINA, a Minnesota municipal corporation, party of the first part [hereinafter called "Edina "], and JERRY'S ENTERPRISES, INC., a Minnesota corpora- tion, GP.ANDVIEW CONSTRUCTION COMPANY, a Minnesota corporation, and GERALD A. PAULSEN and SHIRLFY N. PAULSEN, husband and wife, parties of the second part [hereinafter together called "Owners "]. WITNESSETH, THAT: WHEREAS, Edina is the fee owner of certain property within the City of Edina legally described as follows: Lots 7 through 10, inclusive, Block 3, Grand View Heights, according to the plat thereof on file or of record in the office of the Register of Deeds, in and for Hennepin County [hereinafter called "Edina Property "]; and WHEREAS, Owners are the fee owners of certain property within the City of Edina legally described as follows: Lots 19 and 20, Block 3.Grand View Heights, according to the plat thereof on file or of record in the office of the Register of Deeds in and for Hennepin County [hereinafter called "Owners Property "] ; and WHEREAS, Owners are improving Owners PT_ i:- party and in connection therewith need an easement for driveway and an easement for utility purposes under and across a portion of the Edina Property giving, access to the public street known as Brookside Avenue; and WHEREAS, Edina has previously granted a driveway and utility easement to O,•:ners by document entitled Driveway and Utility Easement, dated ?' y 2, 1977, and filed as Docu;rlent No. 4303500 in the office of the Co>Znty Recorder, 11ennpin County, and as Document No. 1261899 in the office of the Registrar [the "l ri 1i1d1 TRANSFER ENTERED Ord- 1- (')1978 HENNEPIN COUNTY, MINN. 8Y lfM ^ „�.�TY, i f3u delinquent taxes and transfer entered FINANCE DIVISION HENNEPIN (AUNTY, MINN, ocT 16 1978 FINA E D VISION DIRECT iY WY This certificate does not a to taxes Year Wt' fAA'� tor t.1R crtLRebe 4WIM: DRIVE L"lY AND UTILITY EASEMENTS THIS INSTRUYEENT, Made this �� day of iAA ►A j 1978, by and between CITY OF EDINA, a Minnesota municipal corporation, party of the first part [hereinafter called "Edina "), and JERRY'S ENTERPRISES, INC., a Minnesota corpora- Lion, GRANDVIEW CONSTRUCTION COMPANY, a Minnesota corporation, and GERALD A. PAULSEN and SHIRLFY N. PAULSEN, husband and wife, parties of the second part [hereinafter together called "Owners"]. WITNESSETH, THAT: WHEREAS, Edina is the fee owner of certain property within the City of Edina legally described as follows: Lots 7 through 10, inclusive, Block 3, Grand View Heights, according to the plat thereof on file or of record in the office of the Register of Deeds, in and for Hennepin County [hereinafter called "Edina Property "]; and WHEREAS, Owners are the fee owners of certain property within the City of Edina legally described as follows: Lots 19 and 20, Block 3. Grand View Heights, according to the plat thereof on file or of record in the office of the Register of Deeds in and for Hennepin County [hereinafter called "Owners Property "); and WHEREAS, Owners are improving Owners Property and in connection therewith need an easement for driveway and an easement for utility purposes under and across a portion of the Edina Property giving access to the public street known as Brookside Avenue; and WHEREAS, Edina has previously granted a driveway and utility easement to Owners by document entitled Driveway and Utility Easement, dated May 2, 1977, and filed as Document No. 4303500 in the office of the Coflnty R,:,coider, Hennepin County, and as Document No. 1261899 in the office of the Registrar o4.- Z ^ ales, tie nne i; C o - -nty i the "Original E Itif'"1�?li� "] ; izliu WHEREAS, Edina and Owners now desire to terminate and cancel the Original Easement and to enter into a new agreement whereby Owners are granted an easement for driveway and an easement for utility purposes under and across portions of the Edina Property, all on the terms and conditions hereinafter set out. NOW, THEREFORE, for and in consideration of One ($1.00) Dollar and other good and valuable consideration, to each of the parties hereto in hand paid by the other parties hereto, the receipt and sufficiency of which is hereby acknowledged by all parties hereto, the parties hereto do hereby agree as follows: 1. Edina and Owners do hereby agree to terminate and cancel, and do hereby terminate and cancel, completely and in its entirety, the Original. Easement. 2. Edina does hereby grant, bargain, quitclaim, and convey to Owners, for the benefit of Owners Property, perpetual nonexclusive easements for the purposes below stated and over those portions of the Edina Property below described, to -wit: a.. An easement for the tion, maintenance, repair, and use of and vehicular passage (the "Driveway that part of the Edina Property descr construction, reconstruc- a driveway for pedestrian Easement "], on and across a ibed as follows: The North 10.67 feet of Lot 10, Block 3, and the South 10.66 feet of Lot 9, Block 3, all in Grand View Heights, according to the recorded plat thereof, Hennepin County, Minnesota. b. An easement for the construction, reconstruc- tion, maintenance, and repair of underground electrical power lines, water pipes, sanitary sewer pipes, gas lines, and tele- phone lines [the "Utility Easement "), under that part of the Edina Property described as follows: -2- -,T-, r WHEREAS, Edina and Owners now desire to terminate and cancel the Original Easement and to enter into a new agreement whereby Owners are granted an easement for driveway and an easement for utility purposes under and across portions of the Edina Property, all on the terms and conditions hereinafter set out. NOW, THEREFORE, for and in consideration of One ($1.00) Dollar and other good and valuable consideration, to each of the parties hereto in hand paid by the other parties hereto, the receipt and sufficiency of which is hereby acknowledged by all parties hereto, the parties hereto do hereby agree as follows: 1. Edina and Owners do hereby agree to terminate and cancel, and do hereby terminate and cancel, completely and in its entirety, the Original. Easement. 2. Edina does hereby grant, bargain, quitclaim, and convey to Owners, for the benefit of Owners Property, perpetual nonexclusive easements for the purposes below stated and over those portions of the Edina Property below described, to -wit: a.. An easement for the tion, maintenance, repair, and use of and vehicular passage (the "Driveway that part of the Edina Property descr construction, reconstruc- a driveway for pedestrian Easement "], on and across a ibed as follows: The North 10.67 feet of Lot 10, Block 3, and the South 10.66 feet of Lot 9, Block 3, all in Grand View Heights, according to the recorded plat thereof, Hennepin County, Minnesota. b. An easement for the construction, reconstruc- tion, maintenance, and repair of underground electrical power lines, water pipes, sanitary sewer pipes, gas lines, and tele- phone lines [the "Utility Easement "), under that part of the Edina Property described as follows: -2- -,T-, Part I: The South 21.33 feet of Lot 10, Block 3, except the East 70.5 feet thereof; Part II: The East 105 feet of the North 21.33 feet of the South 49.33 feet, and the West 34.5 feet of the East 105 feet of the North 6.67 feet of the South 28.00 feet of Lot 10, Block 3; all in Grand View Heights, according to the recorded plat thereof, Hennepin County, Minnesota. 3. The Driveway Easement and Utility Easement are hereby made subject to the following terms and conditions, to which Edina and Owners hereby mutually agree: a. All construction, reconstruction, maintenance, and repair [the "Work "] of any of the lines and pipes under the Utility Easement and of the driveway on the Driveway.Easement shall be done at the sole cost and expense of Owners, and Owners jointly and severally agree to hold Edina, and its successors and assigns, and all future owners and occupiers of the Edina Property, harmless from and indemnified against any loss, cost, damage, or expense, including attorneys' fees, due to any claims or demands, including, but not limited to, mechanics' or material - men's liens filed or claimed against all or any part of the Edina Property, arising out of, or claimed to have arisen out of, the Work. All such Work shall be done so as to cause as little as possible inconvenience to and interruption of the use of the Edina Property. b. Before undertaking any of such Work on either the Driveway Easement or the Utility Easement, Owners shall advise the Edina Property Owner [the "Edina Property Owner" shall mean the record owner of any portion of the Edina Property subject to an easement granted by this document who is such owner as of the time when any Work or other activity relative to that easement is to be done pursuant hereto] of the extent of the Work and the estimated cost thereof, and the Edina Property Owner, at its option, as a condition to commencing the Work, may require that Owners first deposit with the Edina Property Owner security, in -3- form and substance, and in amount, reasonably acceptable to the Edina Property Owner, to insure that the Work will be completed and that the cost thereof will be paid in full. Waiver by the Edina Property Owner of; or failure by the Edina Property Owner to insist on compliance with, the provisions of this paragraph, no matter how often, shall not be deemed to be a waiver of the right to insist on compliance with the provisions of this para- graph in connection with any subsequent Work. c. The easements hereby granted shall be for the benefit of, and be appurtenant to, Owners Property and the im- provements now or hereafter located in whole or in part thereon. d. The Edina Property Owner may require Owners to relocate the Driveway Easement, at their sole cost and ex- pense, to another location-on the Edina Property then owned by such Edina Property Owner (which other location is hereinafter called the "Substitute Driveway Easement Area "] on the following terms and conditions: (i) The Driveway Easement shall be relocated upon notice given by the Edina Property Owner to Owners, which notice may be given at any time and without reason or cause therefor. (ii) In the event notice is given to Owners pursuant hereto to move the Driveway Easement, Owners shall have such time as is reasonably necessary with the prompt exercise of due diligence to relocate the Driveway Easement, but, in any event, not more than ninety (90) days from the giving of such notice. (iii) The Edina Property Owner, with any such notice given pursuant hereto, shall grant and quitclaim to Owners, by written document, an easement on and over the Sub- stitute Driveway Easement Area, fully executed and in recordable form, containing the same terms and conditions as set out in 1XIM 0 form and substance, and in amount, reasonably acceptable to the Edina Property Owner, to insure that the Work will be completed and that the cost thereof will be paid in full. Waiver by the Edina Property Owner of, or failure by the Edina Property Owner to insist on compliance with, the provisions of this paragraph, no matter how often, shall not be deemed to be a waiver of the right to insist on compliance with the provisions of this para- graph in connection with any subsequent Work. c. The easements hereby granted shall be for the benefit of, and be appurtenant to, Owners Property and the im- provements now or hereafter located in whole or in part thereon. d. The Edina Property Owner may require Owners to relocate the Driveway Easement, at their sole cost and ex- pense, to another location,on the Edina Property then owned by such Edina Property Owner [which other location is hereinafter called the "Substitute Driveway Easement Area "] on the following terms and conditions: (i) The Driveway Easement shall be relocated upon notice given by the Edina Property Owner to Owners, which notice may be given at any time and without reason or cause therefor. (ii) In the event notice is given to Owners pursuant hereto to move the Driveway Easement, Owners shall have such time as is reasonably necessary with the prompt exercise of due diligence to relocate the Driveway Easement, but, in any event, not more than ninety (90) days from the giving of such notice. (iii) The Edina Property Owner, with any such notice given pursuant hereto, shall grant and quitclaim to Owners, by written document, an easement on and over the Sub- stitute Driveway Easement Area, fully executed and in recordable form, containing the same terms and conditions as set out in -4- this easement as to the Driveway Easement (including, but not limited to, the right of the Edina Property Owner to thereafter again relocate the Driveway Easement from the Substitute Drive- way Easement Area to another location or locations on the Edina Property), but describing the then Substitute Driveway Easement Area, and each such Substitute Driveway Easement Area shall be on and over a strip of land no less than twenty -one (21) feet in width and connecting Brookside Avenue in the city of Edina with the east boundary line of Owners Property, but otherwise in any such location or locations on the Edina Property as may be designated by the Edina Property Owner, including, without limitation, on and over the Utility Easement (in its original or relocated position). (iv) Owners promptly shall pay all costs of relocating the Driveway Easement, including, but not limited to, the cost of restoring all portions of the Edina Property from which the Driveway Easement is moved to as nearly as possible the condition it was in before any Work was done thereon pursuant hereto. (v) Within fifteen (15) days of receipt of written notice given pursuant to (i) herein, Owners shall file with the Edina Property Owner security, in form and substance, and in an amount, reasonably acceptable to the Edina Property Owner, to insure that the relocation and restoration work is completed by Owners and that all costs thereof are paid in full. (vi) Upon the expiration of ninety (90) days from the recording by either the Edina Property Owner or Owners of the easement for the Substitute Driveway Easement Area, all of the right, title, and interest of Owners to use all or any part of the Edina Property other than the Substitute Drive- way Easement Area as then located (and subject to relocation pursuant hereto) and the Utility Easement as then located (and subject to relocation pursuant hereto) shall expire and cease ME without further act by any party hereto, and Owners agree to deliver to the Edina Property Owner, on the date of such expira- tion as herein provided, a fully executed, recordable quitclaim deed, releasing all of the right, title, and interest of the Owners in and to the Edina Property except as above provided, but such right, title, and interest of Owners shall terminate pursuant hereto notwithstanding failure or refusal of Owners to give such quitclaim deed. (viii) The Edina Property Owner may require relocation of the Driveway Easement pursuant hereto from time to time, without restriction as to the number of times such relocations may be made, and each location on the Edina Property to which said Driveway Easement is relocated from time to time shall be included within the phrase "Substitute Driveway Ease- ment Area" for purposes of this agreement. e. The Utility Easement shall be for underground lines and pipes only, and no such lines and pipes shall be con - structed or maintained on or over the Utility Easement. Also, the Edina Property Owner may require Owners to relocate Part II of the Utility Easement as described in paragraph 2.b hereof [the "Relocatable Portion "], on the following terms and conditions: (i) The Relocatable Portion shall be relocated upon notice given by the Edina Property Owner to Owners, which notice may be given at any time after the building now lying southerly of the Relocatable Portion of the Utility Easement and on said Lot 10 of the Edina Property has been removed from said Lot 10. (ii) In the event notice is given to Owners pursuant hereto to move the Relocatable Portion of the Utility Easement, Owners shall have such time as is reasonably necessary with the prompt exercise of due diligence, but, in any event, No WW not more than ninety (90) days from the giving of such notice, to relocate such portion to that part of said Lot 10 described as follows: The East 70.5 feet of the South 21.33 feet of said Lot 10, [the "New Portion "]; it being the intent and purpose hereof, once the said portion is so relocated, to have said Utility Easement exist only under the South 21.33 feet of Lot 10 of the Edina Property. (iii) The Edina Property Owner, with any such notice given pursuant hereto, shall grant and quitclaim to Owners, by written document, another easement under the New Portion, fully executed and in recordable form, containing the same terms and conditions as set out in this easement as to the Utility Easement, but not *including any further or additional rights to again relocate all or any part of the Utility Easement as then relocated to the New Portion. (iv) Owners promptly shall pay all costs of relocating the Utility Easement, including, but not limited to, the cost of restoring all portions of the Edina Property from which the Utility Easement is moved to as nearly as possible the condition it was in before any Work was done thereon pur- suant hereto. (v) Within fifteen (15) days of receipt of written notice given pursuant to (i) herein, Owners shall file with the Edina Property Owner security, in form and substance, and in an amount, reasonably acceptable to the Edina Property Owner, to insure that the relocation and restoration work is completed by Owners and that all costs thereof are paid in full. (vi) Upon the expiration of ninety (90) days from the recording by either the Edina Property Owner or Owners of the easement for the New Portion of the Utility Easement, -7- all of the right, title, and interest of Owners to use all or any part of the Edina Property other than for the Utility Ease- ment as then relocated and except for the Driveway Easement as it is then located (and subject to relocation pursuant hereto) shall expire and cease without further act by any part hereto, and Owners agree to deliver to the Edina Property Owner, on the date of such expiration as herein provided, a fully executed, recordable quitclaim deed, releasing all of the right, title, and interest of the Owners in and to the Edina Property except as above provided, but such right, title, and interest of Owners shall terminate pursuant hereto notwithstanding failure or refusal of Owners to give such quitclaim deed. 4. The parties hereto understand and agree that Owners, and future owners of any or all of Owners Property, and all occupiers of any or all of Owners Property, shall not use the Utility Easement or Driveway Easement,as either may from time to time exist (in their original or relocated positions),for any purpose other than as herein set forth, and specifically shall not park vehicles on, place structures.of any kind on, or store any property, material, or equipment of any kind whatsoever on, either of said easements. The parties hereto further understand and agree that Edina, and any future owner of all or any part of the Edina Property, may place or construct buildings and other structures on, over, and under all or any part of the Edina Property not then subject to the Utility Easement or the Drive- way Easement, as either may then exist (in their original or relocated positions) on the Edina Property , even though such buildings or structures block or prevent use of, from the Edina Property side, any openings or doors into buildings or structures now or hereafter placed or constructed upon all or any part of Owners Property. This paragraph is intended as a clarification of., and not in any way as a restriction on, the right of the owners of the Edina Property to use the Edina Property in any IFs= way such owners deem desirable that is not inconsistent with the easement rights hereby granted. 5. In the event that the then owner or owners of Owners Property, on or before May 2, 1982, enter into a pur- chase agreement for the purchase of all of the Edina Property, or that portion of the Edina Property that includes the then location or locations of the Driveway Easement and the Utility Easement, then, and in that event, and only in that event, such owner or owners shall be entitled to a credit against such purchase price in the amount paid by Owners for this ease- ment, Ten thousand four hundred fifty three and 10/100 ($10,453.10) Dollars. However, there shall be no obligation created hereby for Edina, or its successors or assigns, or any future owner of all or any part of the Edina Property, to sell the Edina Property, or any portion thereof, to "Owners or any other person, nor shall any restriction be created hereby upon the terms or conditions of any sale of all or any part of the Edina Property. 6. All notices or demands required or permitted to be given under or pursuant to this easement shall be in writing and shall be deemed to be given when delivered personally to the party, or any officer of the party, to which notice is being given, or when deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: If to Edina, at: 4801 West 50th Street Edina, Minnesota 55424 Attention: City Manager. If to Owners, at: 5125 Vernon Avenue South Edina, Minnesota 55436 Attention: Mr. Gerald A. Paulsen. Such addresses may be changed by either party upon notice to the other party given as herein provided. 7. As additional compensation herefor, Owners shall pay all state deed taxes and recording fees in connection with this instrument and all documents hereafter executed and delivered pursuant hereto. -9- 8. The terms and conditions hereof shall run with the title to the Edina Property and the Owners Property and bind and inure to the benefit of all present and future owners of such properties. THIS INSTRUMENT IS EXEMPT FROM STATE DEED TAX. IN TESTIMONY WHEREOF, the parties hereto have caused these presents to be duly executed the day and year first above written. JERR ENTERP SES, N . by c Its and Its GRANDV W 7MSRU TION COMPANY by d- ts �. �. and is Bc�LG -eu'� G RALD PAUL EN SHIR Y A. PAULSEN This instrument drafted byt DORSEY, WINDHORST, HANNAFORD, WHITNEY & HALLADAY (TSE) 2300 First National Bank Building Minneapolis, Minnesota 55402 -10- M STATE OF MINNESOTA ] COUNTY OF HENNEPIN ] The foregoing instrument was acknowledged before me this day 1978, by JAMES VAN VALKENBURG and FLORENCE B. HALLBERG, Mayor and Clerk, respectively, of the CITY OF EDINA, on behalf of the City of Edina. STATE OF MINNESOTA ] ) COUNTY OF HENNEPIN ] FRANCES J. GRINLEY NOTARY PUBLIC • MINNESOTA HENNEPIN COUNTY M11y Commission Expires June 28, 1984 = 'YYYYYYYYYYYYYYIVIV YYYVTyYY YYYYYYYYY X The foregoing instrument was ackn ledged before me this day of , 1975, by Iz and , as and , respectiuey, of JERRY'S ENTERPRISES, INC., on behalf of the corporation. r SARA JEAN HARMON NOTARY PUBLIC — MINNFSOTA HENNEPIN COUNIY .�� My Commission Expires Nov. 27, 1979 STATE OF MINNESOTA ) ) COUNTY OF HENNEPIN ] The foregoing instrument was ackn wledged before me this 15 17 day o 1978, by and , as YZ_4C - L and , res� �ly, of GRANDVIEW CONSTRUCTION COMPANY, on behalf of the corporation. SARA JEAN HARMON NOTARY PUBLIC — MINNFSOTA F1 HENNEPIN COUNIY My Commissiun Expires Nov. 27, 1979 -11- V-1 STATE OF MINNESOTA ] ] COUNTY OF HENNEPIN ] The foregoing instrument was acknowledged before me this ) Z�� day of -e .- / 1978, by GERALD A. PAULSEN and SHIRLEY N. PAULSEN, husband and wife. ti SARA :LEAN F�ARM0 NOTARY PUBLIC — MINNFSOTA HENNEPIN COUNTY k My Commission Expires Nov. 27, 1979 -12- • v ; CONSENT OF LESSEE The undersigned, SUPER VALU STORES, INC., a Delaware corporation, being the Lessee under that certain lease of part of the Owners Property evidenced by Lease dated February 9, 1968, and filed for record in the office of the County Recorder, Hennepin County, Minnesota, as Document No. 3702602, on February 20, 1968, does hereby consent and agree to all of the terms and conditions of the Driveway and Utility Easements to which this Consent is attached, including, without limita- tion, the release of the Original Easement as therein designated. IN WITNESS WHEREOF, the undersigned has caused these presents to be duly executed this 2Z"P4— day of , 1978. SUPER VA U STORES, INC. `1 by I ,:,Homer hil g, Vice -,p Wit! %%/�.�•�7/l19f_- ! 19 S STATE OF MINNESOTA ) ) COUNTY OF HENNEPIN ) Vice President and Assistant Secretary The foregoing instrument was acknowledged before me this day of 1978, by Homer A. Childs �Charles D. Dugan, Jr. and d , Vice President and Secretary and Vice President and Assistant Secretary respectively, of SUPER VALU STORES, INC., a Delaware corporation, on behalf of the corporation. -13- ,/. . NANCY L. HAR7LEP ,� � MINNESOTA HENNEPIN COUNTY MY Commission Expires June 1, 1984 P --j r* SUBORDINATION The undersigned, being the owner and holder of the following mortgage: Mortgage in favor of First National Bank of Minneapolis, filed for record in the office of the County Recorder, Hennepin County, Minnesota, as Document No. 4303511, on July 29, 1977, does hereby consent to that certain Driveway and Utility Ease- A4 ments dated a �, , 1978, to which this Subordi- nation is attached and made a part, and does hereby subordinate the lien of such mortgage to said Driveway and Utility Easements and all terms and conditions thereof, including, without limitation, the release of the Original Easement as therein designated. IN WITNESS WHEREOF, the undersigned has caused these presents-to be duly executed this day of JP tsa , 1978. FIRStTT NA(�TIONAL BANK OFD- MINNEAPOLIS AX and STATE OF MINNESOTA l COUNTY OF HENNEPIN j is r The foregoing instrument was acknowledged before me this day of �ai�f�'� -6PR j 1978, by�,�� „0, -� L-, � rr^ t1 and } ��� ( `. �J<<r "► , as ohs 3-/769 -t ommercial Banki,,r, r' respectively, of FIRST NATIONAL BANK OF MINNEAPOLI_S,- la} n t�io —n a1 banking institution, on behalf of the bank. 14- ew , cc- (ZI it, '11'N DIANE E. ATIWANN <� NOTARY PUBLIC-MINNESOTA HENNEPIN COUNTY My Commission Expires Jan. 26., 119v 83. r 14- ew , cc- (ZI it, F--- EG*1 E OFFICE OF THE REGISTRAR OF TITLES fJ--NNE1PIN COUNTY. MINNESOTA CERTIFIED FILED ON OCT 16 1978 REGISTRAR OF TITLES DEPUT)d 442()427 OFFICE OF COUNTY RECORD-,; HENNEPIN COUNT Y.MINNESOiA CERTIFIED FILEDAW OR RECORDEr, 014, 1978 OCT 16 PM 2: 48 A AS DOCUMENT # rO RECORDIR By '! .D ► -1 Y THIS DOCUMEI!T IS RECORDEI? ON BOTH ABSTRACT AND TORRENS PROPERTY pillow certif is *'fe 25 CITY OF MRIEDINA 4801 WEST 50TH STREET, EDINA, MINNESOTA 55424 612 -927 -8861 August 6, 1987 Ms. Sheree L. Andersen Dorsey & Whitney 2200 First Bank Place East Minneapolis, Minnesota 55402 Dear Sheree: RE: CITY OF EDINA /HRA /JERRY'S PARKING RAMP Enclosed are fully executed deeds from the City to the HRA for the ramp property. Also enclosed is the Owner's Duplicate Certificate of Title No. 457320 as you requested. Please call if you need additional information. If SiVrdonL. Hughes, ecutive Director Edina HRA GLH /sw Enclosure