HomeMy WebLinkAbout2515MEMORANDUM
TO: Gordon Hughes, City of Edin.
FROM: Tracy L. McGuire, Dorsey & n y� LLP
DATE: October 27,1999
RE: Recorded Transit System Easements
Enclosed please find copies of the recorded Transit System Easement
Agreements for both the France Med property and the Dayton Hudson parcel. I will
get the document number for the Dayton's parcel to you as soon as we receive it from
the county. I am still waiting for Bert Miners signatures on the theatre parcel easements
so that I can forward the documents to the necessary parties for their consent and when
I last spoke to Mary Cohn, he assured me that we should be receiving the executed
documents shortly. If you have any questions at all, please don't hesitate to call me at
343 -2190.
TLM /ml
Enclosures
DORSEY & WHITNEY LLP
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*g o TRANSIT SYSTEM EASEMENT AGREEMENT
Qe Op TRANSIT SYSTEM EASEMENT AGREEMENT ( "Agreement ") is made as of
S �` , 1999, between FRANCE MED ASSOCIATES LIMITED PARTNERSHIP, a
Minnesota limited partnership ( "Associates "), and the CITY OF EDINA, a Minnesota municipal
corporation (the "City ").
RECITALS:
A. Associates owns a parcel of real estate in the City of Edina, Hennepin County,
Minnesota, legally described as Lot 2, Block 1, South Edina Development Addition, according to
the recorded plat thereof in the Office of the Registrar of Titles in and for Hennepin County,
Minnesota (the "Associates Parcel ").
B. The City owns a parcel of land adjacent to and east of the Associates Parcel
legally described as Outlot C, The Coventry At Centennial Lakes 2nd Addition (the "City
Parcel "). The Associates Parcel and City Parcel are sometimes collectively referred to herein as
�- the "Parcels."
. The City plans to operate a public transit system servicing the Parcels and various
other properties in the southeast Edina area (the "Transit System ").
R. The City wishes to locate a part of its Transit System route (the "Transit Route ")
across a portion of the Associates Parcel, and Associates 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, Associates and the City agree as follows:
1. Grant of Easement. Associates grants to the City for the benefit of the City Parcel
a non - exclusive easement (the "Easement ") for vehicular ingress and egress by Transit System
public passenger vehicles over and across that portion of the Associates Parcel shown
crosshatched on Exhibit A attached hereto (the `Basement Area ").
2. Use of Easement. The Easement will be used exclusively by the City for purposes
of vehicular ingress and egress as part of its Transit System operation, which use may include
picking up and dropping off of Transit System passengers on the Associates Parcel in locations
reasonably approved by Associates. Use of the Easement will not materially interfere with the
use by Associates or Associates's invitees of the Associates Parcel or with the use by the holder
of any other easement rights over the Associates Parcel of such rights.
3. Compliance with Laws and Regulations. The City will use, and will cause its
employees, agents and invitees to use, the 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
Associates becoming liable for any increased costs, damages, fines or penalties under any such
law or regulation.
4. Maintenance of Easement Area. Associates acknowledges that the Transit System
provides Associates with certain benefits including increased accessability to, and patronage of,
its business activities. In consideration of these benefits Associates will, at its sole expense,
remove ice and snow from the Easement Area and maintain the Easement Area related
improvements therein 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 .
Associates fails to discharge any obligations under this Section in a timely manner, the City may,
after fifteen (15) days prior written notice to Associates discharge the same and Associates 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). Associates may erect temporary barricades across any portion
of the Easement Area: (a) repair or maintain the Easement Area, (ii) prevent the acquisition of
prescriptive rights by anyone, or (iii) repair, replace and maintain utilities servicing the
Associates Parcel. Associates will coordinate any such closings with the City so that Transit
Route disruptions are minimized.
5. Relocation of Easement Area. Subject to the provisions of this Section,
Associates may relocate all or any portion of the Easement Area at any time, at Associates's sole
expense, provided that Associates provides the City at all times with a reasonable, alternate
easement area within the Associates Parcel that maintains a continuous Transit Route to and from
such Parcel. Notwithstanding the foregoing, Associates shall not relocate that portion of the
Easement Area where the Transit Route crosses the property line between the Associates Parcel
and the City Parcel (as identified on Exhibit A attached hereto), it being understood that this
point of entry onto the Associates Parcel is a critical access point for the Transit Route.
6. Indemnification. The City will indemnify, defend and hold harmless Associates
from any claims for personal injury and third -party claims for property damage arising from the
use of the Easement, unless such claims arise from the negligence or wilful misconduct of
Associates. Associates will promptly notify the City of any claim subject to the provisions of
this Section after Associates receives notice of such claim.
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7. Assignment. This Agreement may be assigned by Associates at any time without
the prior consent of the City. This Agreement may be assigned by the City without the prior
consent of Associates 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 Associates for performance of the City's obligations hereunder. Any
other assignment by the City will require the prior written consent of Associates, 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 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.
8. Binding Effect; Duration. This Agreement shall run with the land and shall bind
and benefit the parties hereto and their respective successors and assigns. If at any time
Associates or its successors or assigns sells or otherwise conveys the Associates 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 Associates 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. This Agreement shall expire on the tenth
anniversary of the date hereof unless prior to such date the City commences and continues
operation of the Transit System within the Easement Area. If the City does commence and
continue to operate the Transit System prior to the tenth anniversary of the date hereof, the City
and Associates will execute an amendment to this Agreement stating that the Easement will not
terminate on the tenth anniversary hereof and that it shall be perpetual in nature.
9. 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
transmitted by facsimile copy followed by mailed notice; or if deposited cost paid with a
nationally recognized, reputable overnight courier, properly addressed as follows:
If to Associates: France Med Associates Limited Partnership
Centennial Lakes Medical Office Center
7373 France Avenue South
Suite 106
Edina, MN 55435
Attn: Del H. Einess, General Partner
Facsimile No.: (612) 91�5= & 56 7
-3-
If to the City: City of Edina
4801 West 50th Street
Edina, MN 55424
Attn: Gordon Hughes, City Manager
Facsimile No.: (612) 826 -0390
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.
10. 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 party or parties its reasonable attorneys' fees in any such
action.
11. 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.
12. 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.
FRANCE MED ASSOCIATES LIMITED
PARTNERSHIP
By /*"
Its G er 1 Partner
By 4L)
It neral Partner
10
STATE, OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The f going instrument was acknowledged before me this c;V day of G' f'
1999, by � L N �� /y4?S5 , a General Partner of France Med Associates Limited
Partnership, a Minnesota limited partnership, on behalf of the limited partnership.
ALTA M. GARDNER
1 NOTARY PUBLIC - MINNESOTA C /'i?�GC�' /R/L4�'�CJ✓
HENNEPIN COUNTY
My Commission Expires Jan. 31.2000
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The f regoing in trument was acknowledged before me this �N day of ®u 1�7?
1999, by JANC -P �1Ll5 , a General Partner of France Med Associates Limited
Partnership, a Minnesota limited partnership, on behalf of the limited partnership.
fs^;� ALTA M. GARDIVER `
NOTARY PUBLIC - MINNESOTA
a� HENNEPIN COUNTY
+�..• My Commission Expires Jan. 31, 2000 Notary Public
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CITY:
CITY OF EDINA, a Minnesota municipal
corporation
By Oak"
Its City Clerk
And By ""44-44` )U�
Its Mayor
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN ) /�j
T foregoing instrument was acknowledged before me thiso2 & day of u1r ic)t36e.
1999, by the City Clerk of the City of Edina, a
Minnesota municipal corporation, on behalf of the municipal corporation.
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
foregoing instrument was acknowledged before me thiso2& day of L11-70-
1999, b_ iUit/i� / , j Z61e , the Mayor of the City of Edina, a Minnesota
municipal corporation, on behalf of the municipal corporation.
This document drafted by:
Dorsey & Whitney LLP (tlm)
220 South 6th Street
Minneapolis, MN 55402
612(340 -2600
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EXHIBIT A
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