10-23-1989 - Agenda Packet City Council - regular meeting

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Craig M. Mertz, Esq. October 3, 1989 Page 2 Upon receipt of your letter and upon further inquiry by Larry aerg of Fredrikson & Byron, who represents the Wayzata County Club, we understand that it will be difficult for eithat your client or Larry's to obtain the necessary consents. Nevertheless, as I an, sure you understand, our duty is to ensure that any interest granted to the City of Orono will be a valid one. In light of the difficulties you and Mr. Berg expect will be encountered if you are asked to obtain tiie requested consents, we have researched Minnesota case law on the issue. we had hoped to conclude that the lack of language of exclusivity in the grant of an easement necessarily meant that such an easement was nonexclusive. However, it appears that the case law is uncertain (see Thompson v. Germania Life Insurance Co., a copy of which is enclosed). This case in icates that in or er to conclude that an easement is non-exclusive, it is necessary to make a factual inquiry into the intent of the parties. From your letter, it appears that you have made the factual inquiries necessary to conclude that the easement in question is, in fact, a nonexclusive easemen�. we have neither made.these inquirie_ nor been authorized to do so. In light of the existing case law, the factual inquiries made by your office and the difficulty in obtaining the requested consents, 4e are prepared to suggest that the City accept the grant of an easement over proposed Outlots B anct .. provided that the City receive a formal legal opinion from your -aw firm and that of Fredrikson & Syron that such an easement is valid and enforceable notwithstanding the lack of the consents, and further provided that the City receive an indemnification agreement from your client and from the country club to defend and hold harmless the interests of the City in the proposed easement. The indemnification agreement would includ6 indeminfication for attorneys fees and costs of defense and would provide that in the event that the easement is ever deemed invalid, unenforceable or is otherwise rendered not :sable, your client and the country club would grant a new easement to the City in a location mutually acceptable to the parties. As to the easement in favor of the Minnesota Gas Company (which encumbers the same northerly 16.5 feet) created by Document Nos. 4337043 and 4337044, the property owners should either obtain Minnegasco's consent to the easement to be granted to the City or the opin+.on letter should opine that this easement, too, is non-exclusive. 600*39hd SIdW RICH WCHdOd WO83 80:dI 68. 6 IDO