HomeMy WebLinkAbout2359TRANSIT SYSTEM EASEMENT AGREEMENT
THIS TRANSIT SYSTEM EASEMENT AGREEMENT ( "Agreement ") is made as of
September �, 1999, between DAYTON HUDSON CORPORATION, a Minnesota
corporation ( "DHC "), and the CITY OF EDINA, a Minnesota municipal corporation (the
"City„).
RECITALS:
A. DHC owns a parcel of real estate in the City of Edina, Hennepin County,
Minnesota, legally described as Lot 3, Block 7, Yorktown, according to the recorded plat thereof
in the Office of the Registrar of Titles in and for Hennepin County, Minnesota (the "DHC
Parcel ").
B. The City owns a parcel of land adjacent and east of the DHC Parcel legally
described as Outlot B, Yorktown (the "City Parcel "). The DHC Parcel and City Parcel are
sometimes collectively referred to herein as the "Parcels."
C. The City plans to operate a public transit system servicing the Parcels and various
other properties in the southeast Edina area (the "Transit System ").
D. The City wishes to locate a part of its Transit System route (the "Transit Route ")
across a portion of the DHC Parcel, and DHC wishes to grant to the City a perpetual, non-
exclusive easement for the same, all on the terms and conditions provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is acknowledged by the parties hereto, DHC and the City agree as follows:
1. Grant of Easements. DHC grants to the City for the benefit of the City Parcel: (A)
a perpetual, non - exclusive easement appurtenant to the City Parcel (the "Access Easement ") for
vehicular ingress and egress by Transit System public passenger vehicles over and across that
portion of the DHC Parcel shown crosshatched on Exhibit A attached hereto (the "Easement
Area "), and (B) a temporary, non - exclusive easement (the "Construction Easement") over the
Easement Area to allow the City to construct or cause to be constructed a paved driveway area
(the "Driveway ") on the DHC Parcel within the Easement Area, and to facilitate the City's
construction activities on the City Parcel in accordance with Sections 2 and 3 hereof. DHC
reserves the right at any time and from time to time to exclude and restrain from using the Access
Easement and the Construction Easement any person who is engaged in civic, public, charitable
or political activities, including but not limited to (i) exhibiting any placard, sign or notice; (ii)
distributing any circular, handbill, placard or booklet; (iii) soliciting memberships or
contributions for private, civic, public, charitable or political purposes, and (iv) parading,
picketing or demonstrating.
2. Use of Access Easement. The Access Easement will be used exclusively by the
City for purposes of vehicular ingress and egress as part of its Transit System operation, which
will not include picking up or dropping off of Transit System passengers on the DHC Parcel.
Use of the Access Easement will not materially interfere with the use by DHC or DHC's invitees
of the DHC Parcel or with the use by the holder of any other easement rights over the DHC
Parcel of such rights. In no event does the Access Easement include any right to park vehicles of
users of the Transit System on the Access Easement or any other part of the DHC Parcel.
3. Use of Construction Easement. The Construction Easement will be used
exclusively by the City for construction of the Driveway, which construction, subject to the
conditions contained in this Agreement, will be completed no later than November 15, 2001 (the
"Construction Deadline "), and for delivery of personnel, equipment and supplies to the City
Parcel for purposes of facilitating various construction projects on the City Parcel. Use of the
Construction Easement will not materially interfere with the use by DHC or DHC's invitees of
the DHC Parcel or with the use by the holder of any other easement rights over the DHC Parcel
of such rights. No use of the Construction Easement by any party will prevent or in any way
materially interfere with access to and from the DHC Parcel by DHC or DHC's invitees from
access points existing as of the date hereof. The City may not use the Construction Easement
from November 15th through January 31st of any calendar year. The City will promptly repair,
at the City's cost, any damage occurring to the Driveway or the DHC Parcel as a result of the
City's use of the Construction Easement.
4. Compliance with Laws and Regulations. The City will use, and will cause its
employees, agents and invitees to use, the Access Easement and the Construction Easement in
compliance with all applicable laws and regulations and the City will not do or permit to be done
anything which would or might result in DHC becoming liable for any increased costs, damages,
fines or penalties under any such law or regulation.
5. Construction of Driveway. The City will, at its sole cost and expense and to the
extent not already in place, construct the Driveway upon the Easement Area connecting the
Easement Area to the Transit Route on the City Parcel. The City shall submit to DHC for review
and approval plans and specifications for all work to be undertaken pursuant to this Section.
DHC shall have thirty (30) days to review and approve or disapprove of such plans and if DHC's
approval or disapproval of the same is not given within such 30 -day period, the plans will be
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deemed approved by DHC. All construction work shall be performed in a good, workmanlike
manner pursuant to a schedule reasonably approved by DHC, with minimal disruption to the
Easement Area and business activities upon the DHC Parcel. The City will not permit any
mechanics' or materialmens' liens to attach to the DHC Parcel as a result of construction work
performed pursuant to this Agreement.
6. Maintenance of Easement Area. DHC acknowledges that the Transit System
provides DHC with certain benefits including increased accessability to, and patronage of, its
business activities. In consideration of these benefits DHC will, at its sole expense, remove ice
and snow from the Easement Area and maintain the Driveway and related improvements on the
Easement Area in good and clean condition and repair, it being understood that the City shall
have no maintenance or repair obligations pertaining to the Easement Area. To the extent DHC
fails to discharge any obligations under this Section in a timely manner, the City may, after
fifteen (15) days prior written notice to DHC discharge the same and DHC will reimburse the
City for the reasonable and actual cost of performing such work (except that in the case of ice
and snow removal, the City need only provide 24 hours notice before taking action to remedy the
hazardous condition). DHC may erect temporary barricades across any portion of the Easement
Area: (a) repair, replace or maintain the Easement Area, (ii) prevent the acquisition of
prescriptive rights by anyone, or (iii) repair, replace and maintain utilities servicing the DHC
Parcel, provided that the City is provided with a reasonable alternate route for the Transit System
when such barricades are used. DHC will coordinate any such closings with the City so that
Transit Route disruptions are minimized.
7. Relocation of Easement Area. Subject to the provisions of this Section, DHC may
relocate all or any portion of the Easement Area at any time, at DHC's sole expense, provided
that DHC provides the City at all times with a reasonable, alternate easement area within the
DHC Parcel that maintains a continuous Transit Route to and from such Parcel.
8. Indemnification. The City will indemnify, defend and hold harmless DHC from
any claims for personal injury and third -party claims for property damage arising from the use of
the Access Easement and Construction Easement, unless such claims arise from the negligence
or wilful misconduct of DHC. DHC will promptly notify the City of any claim subject to the
provisions of this Section after DHC receives notice of such claim.
9. Assignment. This Agreement may be assigned by DHC at any time without the
prior consent of the City. This Agreement may be assigned by'the City without the prior consent
of DHC only in the context of engaging another person or entity to operate the Transit System
along the Transit Route; provided, however, that the City will at all times remain primarily
responsible to DHC for performance of the City's obligations hereunder. Any other assignment
by the City will require the prior written consent of DHC, which consent shall not be
unreasonably withheld, conditioned or delayed. The assignee under any assignment permitted by
this Section shall assume in writing the obligations of the assigning party hereunder from and
after the effective date of the assignment, and the non - assigning party shall receive a fully
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executed copy of such assignment and assumption agreement within 5 days after its effective
date. If no such agreement is executed and delivered as required hereby, the assignment shall not
be valid and the assigning party will remain obligated under the terms of this Agreement. No
assignment permitted hereby will release either party hereto from its respective obligations and
liabilities under this Agreement.
10. Binding Effect, Duration. This Agreement shall run with the land and shall bind
and benefit the parties hereto and their respective successors and assigns, except that the
Construction Easement shall terminate on the Construction Deadline. If at any time DHC or its
successors or assigns sells or otherwise conveys the DHC Parcel, the selling or conveying party
will be released from all personal obligations under this Agreement except for those obligations
arising before the date that the respective DHC Parcel was sold or conveyed. The City shall be
liable only for such obligations of the City as arise during its period of ownership and operation
of the Transit System.
11. Notices. Any notice required or permitted hereunder shall be given by personal
delivery upon an authorized representative of a party hereto; or if mailed in a sealed wrapper by
United States registered or certified mail, return receipt requested, postage prepaid; or if
deposited cost paid with a nationally recognized, reputable overnight courier, properly addressed
as follows:
If to DHC: Dayton Hudson Corporation
1000 Nicollet Mall
Minneapolis, Minnesota 55402
Attn: Real Property Administration
If to the City: City of Edina
4801 West 50th Street
Edina, MN 55424
Attn: Gordon Hughes, City Manager
Notices shall be deemed effective on the earlier of the date of receipt or the date of deposit, as
aforesaid; provided, however, that if notice is given by deposit, the time for response to any
notice by the other party shall commence to run one business day after any such deposit. Any
party may change its address for the service of notice by giving notice of such change 10 days
prior to the effective date of such change.
12. Enforcement. The parties hereto may enforce the agreements contained herein
through all legal action available at law or in equity. In any proceeding for the enforcement of
rights hereunder or for the breach of this Agreement, the prevailing party in any such proceeding
will be entitled to recover from the other parry or parties its reasonable attorneys' fees in any
such action.
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13. No Waiver. No waiver of any default by either party hereto will be implied from
the failure by the non - defaulting party to take any action in respect of such default. No waiver of
any default in the performance of any provision of this Agreement will be deemed a wavier of
any subsequent default in the performance of the same provision or any other provision. No
consent to or approval of any act or request by any party hereto will be deemed to waive or
render unnecessary the consent to or approval of any subsequent similar act or request.
.14. Counterparts. This Agreement may be executed in any number of counterparts,
each when considered together shall be deemed one document.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
made as of the date first above stated.
WN01
DAYTON HUDSON CORPORATION, a
Minnesota c ati�
Authorized Signatory
STATE OF MINNESOTA )
ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this "day of September,
1999, by E'Ci&-tb-cal T. ,6t er #7ayr the /�tt-(hoyi z-e d S i�h0 d0 -V of Dayton
Hudson Corporation, a Minnesota corporation, on behalf of the corporation.
� KARLA K. KILIAN
NOTARY PUBLIC MINNESOTA D� j
WRIGHT COUNTY t'�
` •.
My Commission Expires 2000
Notary Public
y x
—5—
CITY:
CITY OF EDINA, a Minnesota municipal
corporation
W. Ma.M.."z'
Its City Clerk
And By
Its Mayor
STATE OF MINNESOTA
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this��`�da o��'
1999, b���r ,� . •�h�� e g the City Clerk of the City of Edina, a
Minnesota municipal corporatio , on behalf of the municipal corporation.
DARLENE R. JaALLIN
z NOTARY PUBLIC • MINNESOTA
4 HENNEPIN COUNTY
My Commission Expires Jan. 31, 2000
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
regoing instrument was acknowledged before me thisc:23Y day o�
1999, biU� /S.�E7�?U�l� , the Mayor of the City of Edina, a Minnesota
municipal corporation, on behalf of the municipal corporation.
DARLENE R. WALLIN
NOTARY PUBLIC - MINNESOTA
HENNEPIN COUNTY
E — ------
My Commission Expires Jan. 31, 2000
Notary Public
This document drafted by:
Dorsey & Whitney LLP (tlm)
220 South 6th Street
Minneapolis, MN 55402
612/340 -2600
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