Loading...
HomeMy WebLinkAbout2449350 PARK AVENUE NEW YORK, NEW YORK 10022 (212) 415 -9200 1330 CONNECTICUT AVENUE, N. W WASHINGTON, D. C. 20036 (202)857 -0700 3 GRACECHURCH STREET LONDON EC3V OAT, ENGLAND 01- 929 -3334 36, RUE TRONCHET 15009 PARIS, FRANCE 01- 42-66 -59 -49 FAR EAST FINANCE CENTER HONG KONG 852 -5- 8612555 YII DoiRSEY & WHITNEY A PARTNERsNLP INCLUMNO PROFESSIONAL CORPORATIONS 2200 FIRST BANK PLACE EAST MINNEAPOLIS, MINNESOTA 55402 (612) 340 -2600 TELEX 29 -0605 FAX (612) 340-2868 Marcella M. Daehn Office of the City Clerk City of Edina 4801 West 50th Street Edina, MN 55424 JEFFREY R.BENSON (612) 340 -2757 February 27, 1990 340 FIRST NATIONAL HANK BUILDING ROCHESTER, MINNBSOTA 55903 (507)288 -3156 315 FIRST NATIONAL BANK BUILDING WAYZATA, MINNESOTA 55391 (612)475-0373 1200 FIRST INTERSTATE CENTER BILLINGS, MONTANA 59103 (406) 252 -3800 201 DAVIDSON BUILDING GREAT FALLS, MONTANA 59401 (406)727 -3632 127 EAST FRONT STREET MISSOULA, MONTANA 59802 (406)721 -6025 Re: City of Edina /Jerry's Enterprises, Inc. Easement Agreement Dear Ms. Daehn: Enclosed for the City's files are copies of the above- captioned Easement Agreement which bear the recording data. The Easement has been filed with the Hennepin County Recorder as Document No. 5616040 and with the Registrar of Titles as Document No. 2066925. Very truly yours, Jeffrey R. Benson JRB /hpp cc: Thomas S. Erickson � I N i AND PRIOR TAXES PAID DEPT OF PROPERTY TAX & PUBLIC RECORDS TRANSFER ENTERED JAN 1', MD 2400g EPIN COON yam` EMENT AGREEMENT THIS��,GREEMENT is made as of December 14, 1989 1989, by and between CITY'OF EDINA, a Minnesota ( "City ") and JERRY'S ENTERPRISES, INC., a ( "Jerry's "). RECITALS municipal Minnesota corporation corporation City is the fee owner of that real property described on Exhibit A attached hereto and incorporated herein (the "City Parcel "). Jerry's is the owner of that real property described on Exhibit B attached hereto and incorporated herein (the "Jerry's Parcel "). Jerry's wishes to obtain, and City has agreed to grant, easements for utility purposes across portions of the City Parcel benefitting the Jerry's Parcel. NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00), the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1.) Grant of Easement - City hereby grants to Jerry's for the benefit of Jerry's Parcel, permanent, non - exclusive, appurtenant easements (the "Easements ") across those portions of the City Parcel legally described on Exhibit C attached hereto and incorporated herein (the "Easement Tracts ") for the purposes set forth on Exhibit C hereto. With the exception of the Easement for maintenance and use of electrical and telephone services, all of the Easements will be strictly for the maintenance and use of underground utility lines. The Easement for maintenance and use of electrical and telephone services may be used for aerial utility lines, but Jerry's may not erect any power poles or other support structures within any Easement Tract. Any underground utility lines in Easement Tracts running under any building shall be beneath the basement slab thereof. 2.) Benefits and Burdens - The Easements granted by and the covenants contained in this Agreement shall run with the land and shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 3.) Warranties - The City and Jerry's each hereby warrants and represents that it has full legal authority to execute this Agreement. 4.) Indemnification - Jerry's shall indemnify and hold City harmless from, and indemnify against, any and all losses, damages, costs, expenses, claims, suits, or obligations, including, but not limited to, reasonable attorneys' fees, and including, without limitation, claims by lessees, tenants, agents, employees, contractors, invitees, or licensees of Jerry's, or by the sublessees, agents, employees, contractors, invitees or licensees of any such lessee or tenant of Jerry's, resulting from or claimed to result from (i) the use of the Easements or the Easement Tracts or the construction, placement, operation, or maintenance of any utilities therein, (ii) the cutting off of any utility service or damage to any utility lines due to the location on the Easement Tracts of any buildings or improvements which may now or hereafter be constructed or placed on all or any part of the Easement Tracts or due to the construction, placement, use, repair, maintenance, or operation of such buildings or improvements, or (iii) the violation of any provision of this Agreement. If any such claims are made against the City, Jerry's shall defend the City, without cost to City, by attorneys reasonably acceptable to City. 5.) Service, Repair, and Installation - Jerry's shall promptly repair, at its own cost and expense, any blacktop, paving, or other surface improvements which are disrupted or damaged by Jerry's in the course of any service, repair, installation, or reinstallation of utilities in the Easements. Jerry's shall have no right to disrupt, disturb, or damage any buildings or improvements which may now or hereafter be constructed or placed on all or any part of the Easement Tracts. The service, repair, and installation of any utility lines which run under any buildings or improvements which may now or hereafter be constructed on all or any part of the Easement Tracts shall be accomplished by means that do not require excavation from the surface and which do not disturb or affect the use, function, or structural integrity of the buildings or improvements or otherwise affect the buildings or improvements. Jerry's shall be liable to City for the costs of any repairs or replacements to the buildings or improvements necessitated by damage caused by the location or use of the Easements or the service, repair, installation, or reinstallation of any utilities in any of the Easements. Jerry's shall perform any servics, repair, installation, or reinstallation of utilities in the Easements, and shall repair any damage to buildings or improvements on the City Parcel caused by such service, repair, installation or reinstallation in a good and workmanlike manner, free of mechanic's liens and the claims thereof, in accordance with all applicable laws and ordinances, and in such manner as will not unreasonably interfere with City's use of City Parcel or the buildings or improvements thereon. -2- 6.) Approval and Notice - Jerry's shall secure written approval from City at least thirty (30) days prior to entering all or any part of the Easements or Easement Tracts to perform any installation, reinstallation, or non- routine service or repair in the Easements. City shall not unreasonably withhold or delay such approval. Jerry's shall give City seven (7)*days notice prior to entering all or any part of the Easements or Easement Tracts for the purpose of routine service or repair and such notice as reasonable in the case of emergency service or repair. 7.) Improvements - If City wants to construct or place new buildings or improvements on all or any part of the City Parcel, or do any remodeling or renovations of buildings or improvements now or hereafter on all or any part of the City Parcel, Jerry's shall move or protect, as determined by City and within time limits established by City, the utility lines located within the Easements as required by City and without cost to City. If the City requires any utility lines to be moved, then, at the request of the City, Jerry's and City shall enter into an amendment to this Agreement showing the new location of any relocated Easement Tracts, and Jerry's shall execute and deliver to City a quit claim deed to the City Parcel for the purpose of releasing of record all interest of Jerry's in and to the Easement Tracts from which the utility lines have been moved. 8.) Waiver Jerry's hereby waives any and all claims, demands and causes of action it may now or hereafter have or claim to have against the City, or any officer, agent, official, employee, or contractor of the City, for all causes or reasons except gross negligence or intentional acts, for damage to any utility lines or the cutting off of any utility service, or consequential damages arising or claimed to arise from such utility line damage or the cutting off of any utility service, due to the location on the Easement Tracts of any buildings or improvements which may now or hereafter be constructed or placed on all or any part of the Easement Tracts or to the construction, placement, use, repair, maintenance, or operation of such buildings or improvements. 9.) Remedies; Costs of Collection - The City shall have all remedies which are available to it by this Agreement or at law or in equity, including, without limitation, injunctive relief and damages. If Jerry's fails to perform any of the obligations set forth in this Agreement, City reserves the right to perform such obligations, and Jerry's shall promptly reimburse City for any and all expenses, with interest, incurred by City in performing such obligations, including, without limitation, reasonable attorneys' fees. No -3- remedy granted herein, or otherwise available, shall be exclusive of any other remedy or remedies, but all remedies shall be cumulative, and the exercise of one shall not preclude exercise of any other remedy. No delay in exercising or omission to exercise any right or remedy shall impair such right or be construed as a waiver thereof, but any right or remedy may -be exercised from time to time and as often as may be deemed expedient by the City. Any waiver must be in writing to be effective, and such waiver shall be limited to the particular party and act or breach designated in the writing. Interest on any claim for money shall be computed from the date the claim arises, to and including the date the same is fully paid, at the lesser of (i) the maximum rate allowable by law, or (ii) twelve (12) percent per annum. If Jerry's shall fail to keep or perform one or more of the obligations set forth in this Agreement, or fail to make any payment when due under this Agreement, the City shall be entitled to reimbursement by Jerry's of those reasonable expenses incurred by the City in seeking enforcement of those obligations or payments including, without limitation, all costs of collection, court costs, and attorneys' fees, with interest on all such costs at the lesser of (i) or (ii) above in this section, whether suit be brought or not. 10.) Notices - Any notice, statement, or other writing required or permitted to be given by the terms of this Agreement shall be deemed to have been given on the date the same is delivered to, or on the third (3rd) business day following the date the same is deposited in the United States Mail, certified or registered, postage prepaid, addressed to: If to City: City of Edina 4801 West 50th Street Edina, Minnesota 55424 Attn: City Manager If to Jerry's: Jerry's Enterprises, Inc. 5101 Vernon Avenue South Edina, Minnesota 55436 Attn: Robert Shadduck 11.) Controlling LaA - This Agreement shall be governed by and construed under the laws of the State of Minnesota. -4- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the above date. CITY OF EDINA ,-- n . /I By: SMA-VAPerAft0k, Its:' ttol Its: H4"Kle/ STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) QA Thi 191 ; by the _ M the CITY OF JERRY'S ENTERPRISES, INC. By: instrument was acknowledged before me on�L4., Grt'c �C .f_ l�i c�u >dr and k Hnt A E 4;' I .rL , and of INA, a Minnesota municipal corporation. rrrrrr rrrrrrrrrrrsrrroorrrr ,sroo.+osos,pe.� MARCELLA M. DAEHN S NOTARY PUBLIC — MINNESOTA HENNEEPIN COUNTY "� .. AAy Comn-is.:ion Expires Apr. 21. 1990 STATE OF MINNESOTA ) SS. COUNTY OF HENNEPIN ) A Atez... Notary Public This instrument was acknowledged before me on QC• zy7N 1989, by W60QtZ~ lJ• 5MWIt i< , the jEX • hO of JERRY'S ENTERPRISES, INC., a Minnesota corporation. RM ��. of • . C V/ L. EASTMAN THIS INSTRUMENT WAS DRAFTED BY: NOTARY PUMIC— MINNES EIENNEPIN COUN uv coMMlssxxu EXPIr1E9 LARKIN, HOFFMAN, DALY & LINDGREN, Ltd. 1500 Northwestern Financial Center 7900 Xerxes Avenue South Bloomington, Minnesota 55431 (612) 835 -3800 -5- EXHIBIT A TO EASEMENT AGREEMENT City Parcel Tracts A and C, Registered Land Survey No. 1393, Hennepin County, Minnesota. EXHIBIT B TO EASEMENT AGREEMENT Jerry's Parcel PARCEL 1: That part of Lot 12, Block 4, Grand View Heights, and that part of the adjacent portion of West Half of vacated Summit Avenue, adjoining said Lot 12, lying between the Easterly extensions across said Avenue of the North and South lines of said Lot 12, all of which lies Easterly of a line parallel with and 90 feet Easterly of the center line of State Highway No. 5, according to the plat thereof on file or of record in the office of the Register of Deeds in and for said County. PARCEL 2: Tract B, Registered Land Survey No. 1393, Files of Registrar of Titles, County of Hennepin. That part of vacated Summit Avenue which lies East of the center line thereof, South of the Southerly right -of -way line of Vernon Avenue (County Road No. 158) and Northerly of the Westerly extension of the South line of Tract B, Registered Land Survey No. 1393, which line is coterminus with the South line of the underlying Lot 25, Block 3, Grandview Heights. Lots 23 and 24, Block 3, Grand View Heights and that part of the adjacent portion of the East Half of vacated Summit Avenue lying Northerly of the Westerly extension of the South line of said Lot 23 across said Summit Avenue and lying Southerly of the Westerly extension of the North line of said Lot 24 across said Summit Avenue, except the South 20 feet of Lot 23 and except the South 20 feet of vacated Summit Avenue. That part of Lots 11 and 12, Block 4, lying East of State Highway No. 5, Grand View Heights, and that part of the adjacent portion'of West Half of vacated Summit Avenue lying between the Easterly extensions across said avenue of the North line of said Lot 11 and the South line of said Lot 12, which lies Westerly of a line parallel with and 90 feet Easterly of the center line of said State Highway No. 5, according to the plat thereof on file or of record in the office of the Register of Deeds in and for said County. EXHIBIT C TO EASEMENT AGREEMENT Easement Tracts 1. Easement for maintenance and use of underground sanitary sewer services under and across the West 15.0 feet of the East 67.5 feet of Tract "A" Registered Land Survey No. 1393. 2. Easement for maintenance and use of underground water services under and across that part of Tract "C" Registered Land Survey No. 1393 lying North of a line beginning at a point on the East line of said Tract "C" a distance of 155.0 feet North of the Southeast corner of said.Tract "C "; thence West at right angles to the West line of said Tract "C" and there terminating. 3. Easement for maintenance and use of underground gas services under and across that part of Tract "A" Registered Land Survey No. 1393 described as being 5.0 feet on either side of a line described as follows: Beginning at a point on the Northwest line 35.0 feet Southwest from the most Northerly corner of said Tract "A "; thence Southerly 35.0 feet to a point 55.0 feet East of the most Westerly line of said Tract "A "; thence Southwesterly to the Southwesterly line of said Tract "A" to a point on the Southwesterly line of said Tract "A" said point being 115.0 feet Northwesterly of the most Southerly line of said Tract "A ". 4. Easement for maintenance and use of electrical and telephone services over, under and across those parts of Tract "A" and Tract "C" Registered Land Survey No. 1393 being 5.0 feet on either side of a line described as follows: Beginning at a point on the East line of Tract "A" 40.0 feet North of the Southeast corner; thence Southwesterly to a point on the Southwesterly line 5.0 feet North of the Southerly line of said Tract "A" together with an easement on Tract "C" lying North of a line beginning at a point on the East line of said Tract "C" a distance of 155.0 feet North of the Southeast corner of said Tract "C "; thence West at right angles to the West line of said Tract "C" and there terminating. 2066925 !% COPY I-. S OFFICE OF THE REGISTRAR OF TITLES HENNEPIN COUNTY, MINNESOTA CERTIFIED FILED ON JAN 1 1 REGISTRAR OF TITLES BY DEPUTY D m c� m -�� x ? C ca R z � CD �(A as> .. ZCD C." �� v C-0 C/) go I j C 3 O CD 03 ;�