CR 2004-009 Approve 11th ave. Trail Easement•
January 20, 2004
Proposed Action.
Staff recommends the following motion: "Move that Council approve an easement for public trail
purposes over property owned by the Meadow Creek Condominiums along 11 Avenue, and
authorize the Mayor and City Manager to sign said easements."
Overview.
In conjunction with the reconstruction of 11 Avenue the trail along the east side of the road was also
reconstructed. This trail was outside of the Right of Way for the street. In order to retain rights for a
public trail to remain in this location an easement document was drafted. In fact along this stretch of
1 1 th Avenue three such documents were needed, as there are three different property owners the
City was dealing with. Two of these easements have been obtained and recorded. This easement
deals with the last of the three needed. It is the most southerly of the three easements. It covers an
area along the east side of 11 Avenue from Smetana Road to 10 Street South crossing the
Meadow Creek Condominium property. The Easement was approved, and has been signed by the
President of Meadow Creek Condominiums. Approval of this easement requires the City of Hopkins
to maintain and repair the trail at no expense to the Meadow Creek Condominiums.
Staff is recommending the Council approval of the Trail easement, and authorize the Mayor and City
Manager to sign said easement.
Supporting Information
• Location Map
• Trail Easement
John M. Anderson, P.E.
Assistant City Engineer
G \TY Op
&OPKINs
APPROVE 11 AVENUE TRAIL EASEMENT
Council Report 2004 -009
Financial Impact: N/A Budgeted: YIN Source:
Related Documents (CIP, ERP, etc.):
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Meadow Creek
Condominiums
823 Old Settlers Trail, Suite 101 • Hopkins, MN 55343
January 6, 2004
Mr. John M. Anderson, P.E.
Assistant City Engineer
City of Hopkins
1010 First Street South
Hopkins, MN 55343
Re: Easement for 11 Avenue Trail
Dear John:
Enclosed is the final version of the easement that we have been working on. The easement has been
signed by the President of Meadow Creek Condominiums on. behalf of the Association.
Please send me a copy of the easement after it has been executed by the City. I am assuming that
you will arrange for filing the easement with the County.
Please call me with any questions (651- 402 - 7824).
Sincerely,
Douglas . Strandness
Property Manager
Enclosure
Managed by Dunbar Strandness, Inc.
(952) 935 -9565
Fax (952) 935 -9269
E - mail: office@ meadowcreekcondos.com
EQUAL HOUSING
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DECLARATION OF EASEMENT
THIS DECLARATION OF EASEMENT, made and entered into this sixth day of
January, 2004, by and between Westbrooke Condominium Association, d/b /a Meadow Creek
Condominiums, a Minnesota non -profit corporation ( "Meadow Creek "), and City of Hopkins, a
Minnesota municipal corporation ( "City of Hopkins "), collectively referred to as the "Party" or
"Parties" hereto.
RECITALS
WHEREAS, Meadow Creek is a unit owners association as defined in Minnesota Statutes
Chapter 515B, and as such has authority for the administration of certain real property located in
the City of Hopkins, Hennepin County, Minnesota, which property is legally described on Exhibit
A attached hereto (the "Burdened Tract "). Meadow Creek has the authority to grant the easements
described herein on, over and across the Burdened Tract by virtue of Minnesota Statues § 515B.3-
102(a)(9) ; and,
WHEREAS, City of Hopkins has requested that Meadow Creek grant to City of Hopkins, a
permanent easement over a portion of the Burdened Tract for public utility purposes and for
purposes of building and maintaining a permanent bituminous pedestrian and biking trail thereon,
which easement area is legally described on Exhibit B attached hereto ( "Easement Area "); and,
WHEREAS, Meadow Creek is willing to grant such easement subject to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Meadow Creek hereby declares that the Burdened Tract shall be held, sold, used
and conveyed, subject to the following easements, covenants, conditions and restrictions, which
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shall run with the title to the Burdened Tract and shall be binding on all parties having any right,
title or interest in and to the property, or any part thereof, their heirs, successors and assigns.
ARTICLE I
CREATION OF EASEMENT RIGHTS
1.1 Grant of Easement. Meadow Creek hereby grants and conveys to City of
Hopkins, a permanent easement upon, over and across Easement Area for public utility purposes
and for purposes of building and maintaining a permanent pedestrian and biking trail.
ARTICLE 11
CONSTRUCTION, RECONSTRUCTION, MAINTENANCE AND REPAIR
2.1 Construction of Permanent Bituminous Pedestrian and Biking Trail. City of
Hopkins shall have the sole responsibility for constructing, building and maintaining a permanent
pedestrian and biking trail (known as City of Hopkins City Project No. 00 -10) ( "Project ") on the
Easement Area for the purposes as defined herein.
2.2 Restoration of Easement Area. Upon completion of the Project City of Hopkins
shall restore the Easement Area and all other portions of the Burdened Tract that are disturbed, if
any, to substantially the same condition which existed when such construction was commenced.
2.3 Repair and Maintenance. City of Hopkins shall retain authority and responsibility
for the maintenance, repair and replacement of Project located on the Easement Area, such
maintenance, repair and replacement to be performed as and when reasonably deemed necessary by
the City of Hopkins. The costs of such construction, repair and maintenance shall be borne by City
of Hopkins. The Parties hereto mutually agree to indemnify and hold each other harmless from any
claims therefor.
ARTICLE III
MISCELLANEOUS PROVISIONS
3.1 Indemnification. City of Hopkins at all times hereinafter agrees to indemnify and
hold Meadow Creek, the fee owners of the Burdened Tract and their successors and assigns
harmless from any and all claims, costs, loses and damages arising out of the use of the easement
described herein, including any temporary use of the Burdened Tract during construction of the
Project. It is however, acknowledged that the City of Hopkins' liability hereunder shall be limited
as provided in Minnesota Statutes § 466.04.
3.2 Arbitration.
(a) Any controversy or claim arising between the Parties hereto relating to this
Declaration and/or obligations and rights herein shall be resolved by binding arbitration.
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This agreement to arbitrate shall continue in full force and effect despite the rescission or
termination of this Declaration. All arbitration shall be undertaken pursuant to the rules of
the American Arbitration Association, and the decision of the arbitrator shall be enforceable
in any Court of competent jurisdiction. The Parties hereto, for themselves and their
successors and assigns, knowingly and voluntarily waive their rights to have their dispute
tried and adjudicated by a judge or jury. The arbitrator shall apply the law of the State of
Minnesota, and the arbitration shall be held in Hennepin County, Minnesota. Any Party
hereto, or their successor or assign, may demand arbitration by sending notice to any other
Party.
(b) The arbitrator shall have the authority to award actual money damages (with interest
on unpaid amounts from the due date), specific performance and temporary injunctive
relief, but the arbitrator shall not have the authority to award exemplary, punitive or
consequential damages, and the Parties hereto expressly waive any claim or right to such
damages. The costs of arbitration, but not the costs and expenses of the arbitrating parties,
shall be shared equally by the arbitrating parties. If any Party fails to proceed with
arbitration, unsuccessfully challenges the arbitration award, or fails to comply with the
arbitration award, the other arbitrating Party is entitled to costs, including reasonable
attorneys' fees incurred compelling arbitration or defending or enforcing the award. Except
as otherwise required by law, the Parties and the arbitrator agree to maintain as confidential
information or documents obtained during the arbitration process, including the resolution
of the dispute.
(c) Notwithstanding the above, the Parties hereto recognize that certain unforeseen facts
or similar circumstances could give rise to the need for one or more of the Parties to seek
emergency, provisional or summary relief to protect real or personal property from injury.
The Parties hereto shall be entitled to pursue such rights and remedies for emergency,
provisional, temporary injunctive or summary relief; however, the Parties hereto agree that
immediately following the issuance of any emergency provisions, temporary injunctive or
summary relief, it will consent to the stay of any judicial proceedings pending arbitration of
the underlying claims between the Parties.
3.3 Notices. All notices, demands, statements and requests (collective "Notice ")
required or permitted to be given under this Declaration must be in writing and shall be deemed to
have been properly given or served as of any of the following dates: (i) on the date of personal
service upon the individual representatives (or their successors) of Meadow Creek or the City of
Hopkins designated below; (ii) on the date the Notice is postmarked by the United States Post
Office, providing it is sent prepaid, registered or certified mail, return receipt requested; or (iii) on
the date the Notice is delivered by a courier service to the address of the person to whom it is
directed, provided it is sent prepaid. All notices shall be delivered to the addresses below:
Westbrooke Condominium Association, d/b /a
Meadow Creek Condominiums
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823 Old Settlers Trail
Hopkins MN 55343
Attention: Douglas D. Strandness
with a copy to :
Todd R. Iliff, Esq.
Thomsen & Nybeck, P.A.
3300 Edinborough Way, Suite 600
Edina MN 55435 -5962
City of Hopkins
10101` Street South
Hopkins MN 55343
Attention: City Engineer
Each party shall have the right from time to time and at any time upon at least ten (10) days
written notice in accordance with the provisions hereof to change its respective address and to
specify any other address within the State of Minnesota; provided, however, notwithstanding
anything herein contained to the contrary, in order for the notice of address change to be effective, it
must actually be delivered. Refusal to accept delivery of a Notice or the inability to deliver a
Notice or the delivery of a Notice to an incorrect address because of an address change which was
not properly communicated shall not defeat or delay the giving of a Notice.
3.4 Interpretation. Whenever required by the context of this Declaration, the singular
shall include the plural and vice versa, the masculine shall include the feminine and neuter genders
and vice versa. Whenever the word "including" shall appear in this Declaration, it shall be deemed
to mean "including without limitation."
3.5 Negation of Partnership. None of the terms or provisions of this Declaration shall
be deemed to create a partnership between or among the Parties hereto, nor shall it cause them to be
considered joint venturers or members of any joint enterprise.
3.6 Severability. Invalidation of any of the provisions contained in this Declaration or
of the application thereof to any person, facts or circumstances by judgment or Court Order shall in
no way affect any of the other provisions hereof or the application thereof to any other person, facts
or circumstances, and the same shall remain in full force and effect.
3.7 Amendments. This Declaration may be amended by, and only by, a written
Declaration signed in accordance with the requirements of the documents governing Meadow
Creek and the City of Hopkins. Any such amendment shall be effective only when recorded in the
Office of the Registrar of Titles of Hennepin County, Minnesota.
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3.8 Captions and Capitalized Terms. The captions preceding the text of each Article
and paragraph are included only for the convenience and reference and shall be disregarded in the
construction and interpretation of this Declaration. Capitalized terms are also selected only for
convenience of reference and do not necessarily have any connection to the meaning that might
otherwise be attached to such terms in a context outside this Declaration.
3.9 Time. Time is of the essence of this Declaration.
3.10 Non Waiver. The failure of one Party to insist upon strict performance of any of
the terms, covenants or conditions hereof shall not be deemed a waiver of any rights or remedies
which that Party may have hereunder or at law or equity and shall not be deemed a waiver of any
such subsequent breach or default in any of such terms, covenants or conditions.
IN WITNESS WHEREOF, the Parties have caused this Declaration to be duly executed
as of the day and year first written above.
WESTBROOKE CONDOMINIUM
ASSOCIATION, DB/A MEADOW CREEK
CONDOMINIUMS, a Minnesota non -profit
corporation
By: cYdigr -4 Yitak)
Its: (/�"r�bi dat
CITY OF HOPKINS,
a Minnesota municipal corporation
By:
Its:
By:
Its:
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STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
On this day of 174-At . z..y , 2004, before me appeared
64,,,j1,0_4- VA; A/1_4. Ore , the P,z,_c1 J — of Westbrooke
Condominium Association, d/b /a Meadow Creek Condominiums, a Minnesota non -profit
corporation, to me personally known to be the person described in and who executed the foregoing
instrument and acknowledged thatsexecuted the same on behalf of Westbrooke Condominium
Association, d/b /a Meadow Creek Condominiums, a Minnesota non -profit corporation.
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
On this day of
and
municipal corporation, to me personally known to
the foregoing instrument and acknowledged that
Hopkins, a Minnesota municipal corporation.
THIS INSTRUMENT DRAFTED BY:
Todd R. Iliff, Esq.
Thomsen & Nybeck, P.A.
3300 Edinborough Way
Suite 600
Edina MN 55435 -5962
952- 835 -7000
fnserltoddl assnlMeadow Greek Easement Agreement
and
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DOUGLAS D. STRANDNESS
NOTARY MAUD • MINNESOTA
MY COMMISSION
EXPIRES JAN. 31, 2005
be the persons described in and who executed
they executed the same on behalf of City of
Notary Public
, 2004, before me appeared
, the
of City of Hopkins, a Minnesota
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EXHIBIT A
BURDENED TRACT
LEGAL DESCRIPTION
Condominium No. 246, Westbrooke Condominium, a condominium located in Hennepin County
Minnesota
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EXHIBIT B
EASEMENT AREA
LEGAL DESCRIPTION
A permanent easement over, under and across that part of CONDOMINIUM NO. 246
WESTBROOKE CONDOMINIUM according to the plat on file and of record in the office of the
County Recorder, Hennepin County, Minnesota described as follows:
Beginning at the southwest corner of CONDOMINIUM NO. 246, WESTBROOKE
CONDOMINIUM; thence North 00 degrees 23 minutes 53 seconds West on an assumed bearing
along the west line of said CONDOMINIUM NO. 246 a distance of 664.56 feet to the North line
of said CONDOMINIUM NO. 246; thence South 88 degrees 50 minutes 29 seconds East along
said north line a distance of 4.00 feet; thence South 00 degrees 23 minutes 53 seconds East a
distance of 202.80 feet; thence North 89 degrees 36 minutes 10 seconds East a distance of 7.50
feet; thence South 00 degrees 23 minutes 50 seconds East a distance of 218.67 feet; thence South
89 degrees 36 minutes 10 seconds West a distance of 7.50 feet; thence South 00 degrees 23
minutes 50 seconds East a distance of 193.10 feet; thence South 44 degrees 32 minutes 24
seconds East a distance of 71.78 feet to the south line of said CONDOMINIUM NO. 246; thence
North 88 degrees 40 minutes 10 seconds West along said south line a distance of 54.02 feet to
the point of beginning and there terminating.
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