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Home My WebLink Aboutalley easement agreement . � �9� �� , ,� Doc No 9069476 11/30/2007 10:36 AM Certified filed and or recorded on above date: Office of the County Recorder Hennepin County, Minnesota Michael H. Cunniff, County Recorder S � TranslD 359086 Deputy 18 - Fees - $35.50 DOC $10.50 SUR - $2.00 COPY $48.00 Total . �.-.tk:;.�.�.;. :,. � � ..X �<<��ry �t-' ' `�Z;l ��CU-Vn�i� � �� t�1 �� r v�uti l .�"-P{ • 5 t�; . ��i�� "v�flj ��Ci"rc.-�'+G'n �r�i I S _ :� �7-S � �T�i e„�',,},t1 L'��5<'trney�f C� `{'�'� � � �3w I(o fi�c.- l�a�� I (:t t'� ,<<'�+e- K"C 6U yi �e;�u2, �/'G'�'r r'�"'�y �yr C�y s�k ( �GZf.f ICi�c�tL� �r , , ' r ` . {�" ,-- f� ',,�e `F rj�h ._ ... / . _ L.�� C.r,��-.,�,_�'__�. .� �RAN�� EP�Ti �� NENNEPIN COUNTY TAXPAYER SERVICt�' NOV � � ZU� � H PIN C�J ' �, � � �� / � ! Agreement No. 73-37379 ALLEY EASEMENT AGREEMENT THIS EASEMENT AGREEMENT made on this �) { � day of i�l.�{, (:;,jj,l�, t , 20 C;' , by and between the Hennepin County Regional Railroad Authority (HCRRA), a political subdivision and local government unit, under the laws of the State of Minnesota (hereinafter referred to as "GRANTOR"), and the City of Orono, a municipal corporation under the laws of the State of Minnesota, (hereinafter referred to as "GRANTEE"). WITNESSETH: WHEREAS, GRANTOR is the owner of certain right of way (by fee, easement, (icense, joint use agreement, governmental grant or other interest) located in the County of Hennepin, State of Minnesota, commonly referred to as the Dakota Fiail Corridor (hereinafter referred to as "Corridor"), formerly owned by the Burlington Northern Railroad Company and Dakota Rail, Inc.; WHEREAS, GRANTOR acquired the Corridor for transportation purposes, including without limitation, rail, bus, bicycle and foot travel, for the location of communication facilities, including fiber optics lines, and for other future transportation uses; WHEREAS, GRANTEE maintains that certain public roadway, generally known as Crystal Bay Road located in the City of Orono. Crystal Bay Road connects to that certain public roadway in the City of the Village of Minnetonka Beach generally known as Northview Road. Both public roadways are located in the vicinity of the Corridor. WHEREAS, Seven (7) single family residences are located in the City of Orono facing Crystai Bay Road to tne nortn and the Corridor to the south on those certain parcefs of iand legally described in Exhibit A (hereinafter referred to as "Alley Access Parcels"). Traffic from the south lot lines of the Alley Access Parcels currently access Northview Road by encroaching upon a portion of GRANTOR's Corridor that runs upon and is parallel to the Carridor. WHEREAS, GRANTEE has requested and GRANTOR has agreed to grant to GRANTEE a nonexclusive public alley easement over that portion of the Corridor legally described on "Exhibit B" (hereinafter referred to as the "Easement Area") for ingress and egress from 1 _ . . � ( - Northview Fioad to the Alley Access Parcels for such time that such access is consistent with GRANTOR's current and future intended use of the Corridor; WHEREAS GRANTEE wishes to make certain guarantees to GRANTOR in exchange for the grant of easement. NOW THEREFORE, GRANTOR and GRANTEE agree to the following: 1 . GRANTOR, in consideration of the sum of Eighty Four Thousand Eight Hundred Seventy Nine and 81/100 Dollars ($84,879.81 ), the "Cost" of this easement, and other good and valuable consideration to GRANTOR from GRANTEE, receipt of which is acknowledged, grants unto GRANTEE, a nonexclusive easement for a public alley (hereinafter referred to as "Alley") over that portion of the Corridor legally described on "Exhibit B" (hereinafter referred to as the "Easement Area") and depicted on "Exhibit C" for ingress and egress from the south lot lines of the Alley Access Parcels to Northview Road for such time that such access is consistent with GRANTOR's current and future intended use of the Corridor as determined by GRANTOR in its sole discretion. Included in this grant of easement is the right to construct, maintain and sign the Alley, in such manner that does not conflict with GRANTOR's use of the Corridor as solely determined by GRANTOR, and as limited by the terms of this easement agreement. 2. Said easement shall be limited solely to providing public access for up to seven (7} noncommercial seasonal recreational or homestead single family residences, located on the Alley Access Parcels as those parcels are currently configured. The easement shall expire autornatically if use of the Alley Access Parcels changes. The Alley shall have a passage way of not wider than twenty-five (25) feet and shall be located fully within the Easement Area. Upon expiration or other termination of this easement, GRANTEE shall deliver to GRANTOR a release of easement suitable for recordation. 3. This easement is granted with the understanding that plans for the segment of the Corridor affected by this grant of easement are only preliminary. GRANTOR reserves the right without further consideration, at GRANTEE's sole expense, upon two hundred seventy (270) days written notice from GRANTOR to GRANTEE, to terminate the easement and require removal of any Alley improvements or to require relocation or modification of the Alley, if GRANTOR determines that doing so is necessary for implementation of alternate uses on the Corridor. Such uses shall include, without limitation, operations, changed operations or planned operations of any current or future transportation system for rail, bicycle or foot travel or any other public use; and shall include, without limitation, renewal, replacement, repair, alteration or construction of tracks, bridges, culverts, thruway facilities, structures, properties, facilities and appurtenances. In the even� GKi�i�iTEt fails to so reiocate, alter, change, or remove the Afley within two hundred seventy (270) days after notice, GRANTOR may remove, alter or relocate such Alley at GRANTEE's expense, or terminate the easement. In the event that GRANTOR, at GRANTOR's initiative other than as a consequence of GRANTEE default, causes the termination of this easement at any time within Ten (10) years of the commencement date of this easement, GRANTOR shall reimburse GRANTEE for the Cost of this easement as follows: GRANTOR shall pay to GRANTEE the Cost of this easement less ten per cent (10%) per year, or partial year, that has passed since the commencement date of this easement.lf 2 i 1 - 'GRANTOR requires that the Al�ey, or portion of Alley, be changed, altered, or removed for any reason, GRANTEE shall deliver to GRANTOR a release of the easement, or a release of a portion of the easement as applicable, suitable for recordation. GRANTEE acknowledges and agrees that no further processes or vacation proceedings are or will be, necessary to put into effect termination of this easement, and if any is required, GRANTEE hereby unconditionally consents to said vacation or termination as a part of the consideration for the granting of this easement. The granting of this easement shall not be deemed a dedication by statute or common law, nor shall continued use and maintenance of the Easement Area create a roadway accruing to the public or any individual in the meaning of Minn. Stat. Sec. 160.05, subd. 2. GRANTEE, and not GRANTOR, shall be responsible for all maintenance (including without limitation, trash and snow removal, weed control and removal of diseased, dead or hazardous trees), all permitted improvements, special assessments and all costs related thereto, and all other costs related in any other manner to use of the Easement Area or any required relocation of the Alley or termination of the easement. GRANTEE, and not GRANTOR, shall be responsible for the payment, if any, of relocation benefits or costs or just compensation due to third parties resulting from termination of the easement rights granted by this agreement. Notwithstanding the foregoing, this easement agreement is not intended to create rights in third party beneficiaries other than that to the general public for use of the Easement Area as a public alley until such date this easement agreement is terminated by GRANTOR. 4. GRANTEE and its contractors shall not unreasonably interfere with use of the Corridor for transportation or other public purposes except with consent of GRANTOR which consent shall not be unreasonably withheld. GRANTEE'S use of the Easement Area is subservient to all federal laws and regulations governing rail operations on the Corridor. 5. Prior to construction of any modification or relocation of the Alley, GRANTEE shall submit its plans to GRANTOR for review and comment. GRANTOR reserves the right to reject any plans for construction proposed by GRANTEE on the grounds, in GRAN I OR's sole discretion, that said plans are inappropriate or incompatible with its present or future use of the Corridor. No work shall be done or obstruction piaced over any track or pathway on the Corridor unless GRANTEE has arranged to furnish, at GRANTEE's or its contractors' expense, such flagging as GRANTOR deems necessary for protection of railroad or other transportation operations on the Corridor. Such flagging shall not relieve GRANTEE or its contractors from any liability. 6. The rights granted herein shall be effective upon full execution of this Agreement subject to the rights of those certain parties identified in section 14. 7. GRANTEE agrees to indemnify, defend and hold GRANTOR and its officers, directors and employees harmless from and against all liability, loss, cost, damage or expense of every nature including, without limitation, attorneys' fees, whether or not suit be brought, resulting from injury to or death of persons or loss or destruction to property which arises out of or in any 3 � • way is conriected with or incident to the exercise of GRANTEE'S rights on, over, and across the Easement Area. Notwithstanding the foregoing, this provision is not intended to waive GRANTOR's or GRANTEE's statutory and common-law rights to limitations and defense on liability. 8. GRANTEE hereby covenants and warrants that it shall not use, employ, deposit, store, dispose of, place or otherwise release on the Easement Area, in connection with the exercise of its rights under this Easement, any hazardous substance, hazardous waste or pollutant or contaminant as such terms are defined under any federal, state or local statute, ordinance, rule, code or regulation, nor shall it create or permit any condition on the Easement Area that could present a threat to human health or to the environment. GRANTEE agrees to indemnify defend and hold GRANTOR and its successors and assigns harmless against any and all liability, loss, cost, damage or expense resulting from or due to the release of or threatened release of hazardous substances, hazardous wastes or any pollutants or contaminants or any other environmentally regulated materials, including petroleum products and the various constituents thereof, which were, or are claimed or alleged to have been used, employed, deposited, stored, disposed of, placed or otherwise released on or from the Easement Area by GRANTEE, its employees, agents, contractors or representatives. Notwithstanding the foregoing, this provision is not intended to waive GRANTOR's or GRANTEE's statutory and common-law rights to limitations and defense on liability. 9. GRANTOR reserves the right to use and occupy the Easement Area and shall have the right to agree to other occupations of the Easement Area by one or more persons or firms, provided, however, such uses shall not unreasonably interfere with the easement rights granted hereunder. 10. GRANTEE, and not GRANTOR, is responsible at its sole cost for the design, construction and maintenance of the Alley, including the installation and maintenance of advance warning signs and pavement markings in accordance with the Minnesota Manual on Uniform Traffic Control Devices (MMUTCD) as may be needed at present or in the future due to GRANTOR's adjacent use of the Corridor. 1 1 . ►his grant of easement is conditioned upon the premise that use of the Alley and exercise of the rights granted under this -Agreement shall not adversely affect future transportation uses and other use of the Corridor for transportation purposes including without limitation, rail, bus, bicycle and foot travel, for the location of communication facilities, including fiber optics and for other future transportation uses or other future public uses. 12. The rights herein granted are subject to existing rights of way, whether or not of record, tor highway, roads, raiiroads, pipefines, canafs, la�erais, ditches and fiber optic, electrical or other transmission lines, and should it, at any time, become necessary because of GRANTEE's use of the Easement Area to relocate any of said facilities by reason of GRANTEE'S exercise of the rights granted herein, GRANTEE, and not GRANTOR, shall bear and pay the cost of so doing. GRANTEE also accepts said Easement Area subject to any want or failure at any time of GRANTOR's title to said Easement Area or any part thereof and GRANTEE shall assume any 4 � damages sustained by GRA�vTEE in connection therewith. �GRANTEE also accepts such Easement Area subject to rights of any party, including GRANTOR, in and to any roadways, easements, leases and permits, whether granted, at GRANTOR's sole discretion, either prior to or after the date of this Easement Agreement except that any subsequent grant shall not unreasonably interfere with GRANTEE'S use of the Easement Area. GRANTEE agrees to provide to GRANTOR or other tenants of GRANTOR access over across, and through the Easement Area should such access be deemed necessary by GRANTOR. GRANTEE accepts said Easement Area subject to the right of GRANTOR, its employees, agents, permittees, lessees, and contractors when reasonably necessary to walk upon said Easement Area to repair adjacent property and the right of GRANTOR, its employees, agents, permiftees, lessees, and contractors to temporarily place equipment upon the property when reasonably necessary for the purpose of maintaining, repairing, inspecting or constructing upon GRANTOR's property. 13. It is mutually understood and agreed that this instrument covers all the agreements and stipulations between the parties and that no representation or statements, verbal or written, have been made modifying, adding to or changing the terms hereof. 14. The terms of this agreement are subject to the rights of the State of Minnesota contained in Agreement between Hennepin, Carver and McLeod County Regional Railroad Authorities and the State of Minnesota dated December 23, 2002 (MnDot Agreement No. 84001 , HCRRA No. A06072) and Mortgage of Hennepin County Regional Railroad Authority to the State of Minnesota (HCRRA No. A06062) dated November 14, 2002. 15. This easement agreement and the rights and obligations of GRANTEE contained herein shall not be assigned to or assumed by others without the express written consent of GRANTOR. This instrument is exempt from the Minnesota Deed Tax. THIS PORTION OF THE PAGE INTENTIONALLY LEFT BLANK 5 . . ' l. IN WITNESS WHEREOF, the undersigned has caused this instrument to be duly executed as of the [�er�` day of ��-�J(,(�S� i , 20 c�`7. HENNEPIN COUNTY REGIONAL RAILROAD AUTHORIT Reviewed By: � � �' ^ / �-- � ' gY� � Assistar��ur�ty Attomey Chair, Boa d of Commissioners e ��_�.� And: �'� r, �t'j o� eDep.�ty/Executive birector �, ..,r f Attest: "� �� '' eputy/Cler o� HCRRA Board CITY OF ORONO By: e� 1�� Its: a or By: �i-' /'� � F �ts: �� , ,�� Reviewed By: � /�� . L�" By. City Attomey Its: City organized under: Plan A v Plan B Charter This Instrument was drafted by: Hennepin County Regional Railroad Authority 417 North 5�h St., Suite 320 Minneapolis, MN 55401-1362 6 • � I � • STATE OF NIINNESOTA ) ) ss COUNTY OF HENNEPIN ) T e fore s ackn " � g d before me this /�J da of %� r 9 � 9 / � Y .��-�i�' , 200� by ,� � � �,/ ,,�,� C air, Board of Commissioners, Hennepir�ounty Regional Railroad Authority, a political subdivision and local govern ent unit under the laws of the State of Minnesota, on behalf of the Authority. �� '� / '` � i � j�� / / �� , Notary Pu ic ��:�re��w��.°�bw��. STATE OF MINNESOTA } � � �,P,�,�g',��,,�„ �� ) ss '',��irE ?�rx�:��t��o�r,-��bnr��t� � e.sM�' tr��+::er,crora��v�r��'�rp�tr�,a Jsrt 59,2t910 C 0 U N TY O F H E N N E P I N ) �„�,��wa,�,,��r,�,,.4,� �he fo.regoing as ackn wledged before me this y day of �;� , 200 7, by ��°/�/� ,� ��1<Deputy / Executor, Hennepin County Regira�nal Railroad Authority, a political subdivision and local government unit under the laws of e State of Minnesota, on behalf of the Authority. /� � , �� Notary ub�cj ��. r•I�aw�fo��ra�ce�+`+eC�t�1,hFl�, �'3,� STATE OF MINNESOTA ) � °""s� �q�'`�� e��1��.�< �� SS �� .,,.`�'� a�a��,t�""t��J��s3.ae�r�at� COUNTY OF HENNEPIN �`"� �J'�'c°��f��=�aa��>��s��v,�o ) ��,�� N The foregoing was acknowledged before me this I"?�day of ,J'cr �y 200 "� , by ��r��1.�s /�1. (�JH.�-F-e and �('o�w�� J, n?oc�s�_ , the Mayor, and City Admi�nistrator, of the City of Orono, a Minnesota municipal corporation, on behalf of said municipal corporation. � � �� LWDA S.Vtt Notary Public NOTARY PUBLIC-MINNESOTA '°z My Commission Expires Jan.31,2010 7 _