CR 05-41 Easement Agreements with HCRRA
C\IY OF
March 28, 2005
-
HOPKINS
Council Report 2005-041
.
EASEMENT AGREEMENTS WITH HCRRA
Proposed Action
Staff recommends approval of the following motion: authorize the mayor and city manager to
execute the following agreements with the Hennepin County Regional Railroad Authority:
. Easement agreement, Eighth Avenue extension (Agreement 73-33009)
. Easement agreement for transportation uses (Agreement 73-33009C)
With this action, the above agreements will be executed with the County. It is understood staff is
authorized to make minor revisions to the agreement that do not affect the overall intent.
Overview
As part of the process of Rudy Luther's Hopkins Honda relocation to the former Knox property,
a traffic study was completed. This study detailed that it would be beneficial to have a secondary
access to this site from Excelsior Boulevard via an Eighth Avenue extension. To facilitate
construction on this roadway, an easement across the HCRRA right-of-way is necessary.
The easement agreement for the Eighth Avenue extension grants the necessary right-of-way to
facilitate construction ofthe roadway. As part of the PUD/Development agreement that has been
executed by the Rudy Luther Companies for their proposed project, they assume responsibility
for all the requirements detailed in the easement agreement.
The easement agreement for transportation uses provides for an easement east of Eighth Avenue
and north of the HCRRA property (presently part ofthe Met Transit Park/Ride site). This
easement is provided at no cost to HCRRA. This agreement allows the HCRRA to utilize the
easement property for transportation uses in conjunction with the use of their adjacent right-of-
way property. The HCRRA board conditioned their granting of the easement for the Eighth
Avenue extension upon the City's granting of an easement on its property for transportation
purposes.
The City Attorney and the Public Works director have both reviewed these agreements and
found them acceptable. The specifics of each easement are detailed in an attached memo from
the City Attorney.
Supportin2 Documents
. Agreement 73-33009
. Agreement 73-33009C
. Site map of the easement areas
. Memo/~ City Attorney Jerry Steiner
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MILLER, STEINER & CURTISS, P.A.
ATTORNEYS AT LAW
400 WELLS FARGO BANK BUILDING
1011 FIRST STREET SOUTH
HOPKINS, MN 55343
JEREMY S. STEINER*
WYNN CURTISS
JASON T. HUTCHISON
*Real Property Law Specialist, certified
by the Minnesota State Bar Association
JERRE A. MILLER (RETIRED)
(952) 938-7635
FAX (952) 938-7670
Writer's Direct Dial No. (952) 938-6219
To:
I
Jim Kerrigan vi
Steve Stadler
MEMORANDUM
From:
Jeremy Steiner
Date:
March 18,2005
Re:
Easement Agreements Between City of Hopkins and
Hennepin County Regional Railroad Authority ("HCRRA")
You have requested that I submit this Memo summarizing the terms and conditions of the two
Easement Agreements to be entered into between the City and the HCRRA in connection with the
Hopkins Honda Redevelopment of the former Knox Lumber site. The proposed Easement
Agreements between the City and the HCRRA will establish an easement in favor of the City for the
extension of Eighth A venue across the HCRRA transportation corridor (the "Eighth A venue
Extension Easement") and a transit station easement in favor of the HCRRA ("Transit Station
Easement") across the adjacent property owned by the City.
EIGHTH A VENUE EXTENSION EASEMENT
The substantive terms of the Eighth A venue Extension Easement are:
1. The Eighth A venue Extension Easement grants the City a non-exclusive 80 foot wide
easement over the HCRRA right-of-way for public road crossing purposes for the purpose
of extending Eighth Avenue to the north boundary line of the Luther property. It also
includes the right to extend underground utilities across the easement area to the Hopkins
Honda property. The Eighth A venue Extension Easement can be terminated under certain
conditions as discussed below.
2. The Easement requires the City to use the Easement area so as not to unreasonably interfere
with the HCRRA's use of its right-of-way for transportation purposes and to modify or
relocate the public road crossing if the HCRRA' s use of its right-of-way for light rail or other
transportation uses requires such modification or relocation. The Easement also contains
provisions requiring the City to obtain prior approval from the HCRRA of all plans for road
C:\hopci v\kerrigan4.mem
Jim Kerrigan
-2-
improvements to be constructed within the Easement and requires the City to indemnify the
HCRRA from any liabilities resulting from the City's use of the Easement area. In regard
to these provisions, you will recall that the PUDlDevelopment Agreement between the City
and The Luther Company Limited Partnership ("Luther") requires Luther to pay all costs of
street improvements constructed within this Easement, assume all liabilities placed on the
City by the Eighth Avenue Extension Easement and indemnify the City from all liabilities
to the HCRRA under the Easement.
3. Paragraph 9 of the Easement gives the HCRRA the right to require the City to modify or
relocate road improvements constructed within the Eighth Avenue Extension Easement upon
120 days notice should the HCRRA's use of its right-of-way for light rail or other
transportation purposes require such relocation or modification. If the HCRRA notifies the
City it has elected to require construction of a grade separated crossing for Eighth A venue,
the City has reserved the right to terminate the Eighth A venue Extension Easement in lieu
of constructing a grade separated crossing. Again, under the Development Agreement with
Luther, Luther has assumed these obligations and agreed to indemnify the City from liability.
4. Paragraph 15 of the Eighth Avenue Extension Easement states the Easement will
automatically terminate if the Easement is not used as a public road crossing for a period of
12 consecutive months or if a new public street access is opened to the Hopkins Honda
property.
5. While not specifically stated in the Easement Agreement, the HCRRA will require payment
of an acquisition fee for the Easement. The Development Agreement with Luther requires
Luther to pay this acquisition fee.
TRANSIT AND STATION EASEMENT
1. By this Easement, the City will grant the HCRRA a permanent easement over part of the City
owned property immediately north of the HCRRA right-of-way for "public transportation
uses including a bus turnaround, passenger parking facility and a transit station and related
facilities". The HCRRA's right to use the Transit Station Easement does not go into effect
until a future date on which the HCRRA has actually elected to construct the Transit Station
improvements. At that time, the HCRRA must serve notice on the City that it intends to
"implement transportation uses" of the Easement area.
2. Section 3 of the Easement Agreement requires the HCRRA to deliver its plans for
construction of Transit Station improvements to the City for "review, comment and
approval" prior to construction. Paragraph 3 then describes the process by which the City
and the HCRRA will attempt to resolve any differences regarding the design of Transit
Station improvements, but the HCRRA will make the final determination as to any
unresolved design issues.
3. HCRRA will not pay the City an acquisition fee to acquire the Transit Station Easement.
However, under Section 4 of the Easement Agreement, if the Eighth A venue Extension
Easement is terminated before the HCRRA has constructed a Transit Station, the City will
C:\hopciv\kerrigan4.mem
Jim Kerrigan
-3-
then have the right to require the HCRRA to pay an easement extension fee to the City to
extend the Transit Station Easement. If the HCRRA elects not to pay the easement extension
fee, the Transit Station Easement will terminate. Section 4 of the Easement Agreement also
provides the Transit Station Easement will terminate on December 31,2050 if the HCRRA
has not implemented its use of the Transit Station Easement by that date.
4. In Section 8 of the Transit Station Easement, the City has reserved the right to use part of the
Transit Station Easement area for the purpose of extending underground utilities and
providing driveway access to the adjacent City owned property located east of the Transit
Station Easement and west of Fifth A venue.
Please call me if you have any questions.
JSS
JSS/jw
C:\hopciv\kenigan4.mem
Agreement No. 73-33009
EASEMENT AGREEMENT
8th Avenue Extension
THIS AGREEMENT, made this _ day of ,2005, by and between Hennepin
County Regional Railroad Authority, a political subdivision and local government unit of the State of
Minnesota (hereinafter referred to as "HCRRA"); and the City of Hopkins, a municipal corporation
under the laws of the State of Minnesota (hereinafter referred to as ("CITY").
RECITALS
A. H CRRA acquired that certain Chicago and North Western Transportation Company railroad
right of way that traverses through the City of Hopkins, County of Hennepin, State of
Minnesota, in the vicinity of Excelsior Boulevard and 8th Avenue South, for future
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 (hereinafter referred to as "Corridor").
B. In the vicinity of 8th A venue South and Excelsior Boulevard in the City of Hopkins, the
Corridor runs parallel to, and southerly of, Excelsior Boulevard.
C. The CITY is the owner in fee simple of certain real property (hereinafter referred to as "City
Property") located between Excelsior Boulevard and the Corridor. The City Property is
adjacent to and contiguous with the Corridor. The City Property is legally described in
Exhibit A attached hereto and incorporated herein by this reference.
D. The CITY desires to extend 8th Avenue in the City of Hopkins southward across Excelsior
Boulevard, over that portion ofthe City Property that is burdened with a perpetual easement
for public street, drainage and utility purposes by Declaration of Easement dated February 1,
2005 and filed for record as Document No. 407460 with the Hennepin County Registrar of
Titles (hereinafter "8th Avenue Roadway Area"), and southerly over a portion ofthe
Corridor (hereinafter referred to as "Easement Area") to the "Adjacent Property" described
in Recital Paragraph E. The Easement Area is legally described in Exhibit B attached
hereto and incorporated herein by reference.
E. In connection with an impending commercial development located on real property situated
immediately to the south ofthe Easement Area (hereinafter referred to as "Adjacent
Property"), the CITY has determined that it is necessary to extend 8th Avenue South across
the Corridor for the purposes of providing public access to the Adjacent Property. The
Adjacent Property is legally described in Exhibit C attached hereto and incorporated herein
by reference.
F. HCRRA is agreeable to an extension of 8th Avenue South across the Corridor in a manner
that is consistent with HCRRA's current and future intended use ofthe Corridor.
G. HCRRA has granted permission to the Suburban Hennepin Regional Park District (now
known as Three Rivers Park District) pursuant to Permit Agreement No. 73-33001 dated
July, 1992, to use the Corridor on an interim basis for a recreational trail from the City of
Hopkins to Highway 212 in Chaska, Minnesota (hereinafter referred to as "Trail").
H. In a separate Easement Agreement between the CITY and HCRRA dated
, 2005, recorded , 2005 as Document No.
and identified as Agreement No. 73-33009C
("Transportation Use Easement"), CITY has granted to HCRRA an easement for public
transportation uses over the City Property.
1. The location of the Corridor, Trail, Easement Area, City Property (including the 8th Avenue
Roadway Area and the Transportation Use Easement Area), Excelsior Boulevard and the
Adjacent Property are depicted on Exhibit D, attached hereto and made a part of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated in and
made a part of this Agreement, and in consideration ofthe sum of One and N 0/1 00 Dollars ($1. 00)
and other good and valuable consideration, the receipt of which is hereby acknowledged, HCRRA
hereby grants to CITY, its successors and assigns the following:
1. A nonexclusive easement (hereinafter "8th Avenue Extension Easement") for public road
crossing purposes, over, under and across the Easement Area, as legally described in Exhibit B
attached hereto, in accordance with the terms of this Agreement. The easement rights granted include
the right to construct and maintain a public road crossing over the Easement Area for the purposes of
providing street access to the Adjacent Property. This grant of easement includes the right to place
underground utility crossings within the Easement Area running from the City Property to the
Adjacent Property. All references to "public road crossing" in this grant of easement and the
obligations hereunder equally apply to all utility crossings placed within the Easement Area. The 8th
Avenue Easement shall continue in effect indefinitely until its termination in accordance with either
Section 9 or 15 of this Easement Agreement.
2. CITY shall exercise the rights granted by this Easement Agreement in such a manner as to
be compatible with the use ofHCRRA's Corridor for and shall not unreasonably interfere with the
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 lines, and for other
future transportation uses. CITY's use of the Easement Area is subservient to all federal laws and
regulations governing rail operations on the Corridor.
3. In the event that use of the Corridor for light rail transit or other transportation uses, at
HCRRA's sole discretion, requires modification or relocation of the public road crossing, said
modification (including without limitation construction of a grade separated crossing) or relocation
shall be at the CITY's sole cost, and not at HCRRA's, unless CITY elects to terminate the 8th
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Avenue Extension Easement created by this Agreement in lieu of paying for the cost of construction
of a grade separated crossing in accordance with the terms of Section 9.
4. CITY shall give HCRRA at least three working days' advance written notice prior to entry on
to the Easement Area for purposes of constructing, repairing, or replacing the public road crossing or
where such entry involves excavation or other physical alteration of the Easement Area or otherwise
will interfere with safe passage along the Corridor. For each entry, the notice shall identify the date,
time, location and the precise nature of the activities to be conducted on the Easement Area. CITY
shall take all reasonable precautions to assure the safety of passage along the Corridor.
5. CITY and its contractors shall not interfere with operations upon the Corridor except with the
consent ofHCRRA which consent shall not be unreasonably withheld.
6. No work shall be done or obstruction placed over any track or pathway on the Corridor unless
CITY has arranged to furnish, at the CITY's or its contractors' expense, such flagging as HCRRA
deems necessary for the protection of railroad or other transportation operations on the Corridor. Such
flagging shall not relieve the CITY or its contractors from any liability.
7. Construction equipment and related equipment shall not be placed closer than 10 feet from the
nearest rail of any track, pathway or trail located on the Corridor without CITY taking all reasonable
precautions to protect the safety of passage along the Corridor.
8. Prior to construction of any public road crossing, or modification or relocation thereof, CITY
shall submit its plans to HCRRA for review and comment. HCRRA reserves the right to reject any
plans for construction proposed by CITY by written notice to the CITY within thirty (30) days of
submission of plans by the CITY on the grounds, in HCRRA's sole discretion, that said plans are
inappropriate or incompatible with its present and future use of the Corridor. Such notice shall state
HCRRA's basis for rejection of the plans. In the event HCRRA rejects plans for modification or
relocation, the Completion Period as defined in Section 9 shall be extended by sixty (60) days. The
CITY may submit revised plans upon rejection ofthe plans by HCRRA, but there shall be no further
extension of the Completion Period unless the parties mutually agree to the extension. However, the
CITY and HCRRA shall cooperate with one another in resolving objections to the proposed plans.
HCRRA's failure to notify the CITY within thirty (30) days of the submission of the plans and/or
revised plans to HCRRA shall be deemed acceptance of such plans.
9. In the event modification or relocation is required pursuant to Section 3, upon one hundred
twenty (120) days' written notice from HCRRA to CITY ("Modification Notice"), which notice shall
state the specific modification or relocation to be accomplished, CITY shall complete the relocation
or modification in accordance with plans submitted by CITY to HCRRA and agreed to by HCRRA.
In lieu of paying for the cost of construction of a grade separated crossing to accommodate light rail
transit or other transportation uses on the Corridor required by HCRRA, CITY may elect to terminate
the 8th Avenue Extension Easement created by this Agreement by delivering to HCRRA a release of
CITY's easement rights suitable for recording (hereinafter "Release of Easement for the 8th Avenue
3
Extension") within sixty (60) days of receiving the Modification Notice from BCRRA. Upon
BCRRA's receipt of the CITY's Release of Easement for the 8th Avenue Extension, CITY shall have
no further obligations to HCRRA under Sections 3,8 and 9 of this Agreement for relocation or
modification of the Easement Area. In the event CITY fails to complete any required relocation or
modification within one hundred twenty (120) days ("Completion Period") and has not timely
released the 8th Avenue Extension in accordance with this section, HCRRA may enter upon the
Easement Area and modify and relocate the public road crossing in such a manner as to be
compatible with use ofthe Corridor for transportation purposes, provided the Completion Period
shall be extended for such period oftime, but no longer than sixty (60) days, ifthe CITY is unable to
proceed with relocation or modification ofthe public road crossing due to inclement weather or other
circumstances beyond the control of the CITY. CITY shall pay to BCRRA the cost of modification
or relocation incurred by BCRRA within thirty (30) days of written invoice of the cost from HCRRA
to CITY.
10. CITY agrees to indemnify, defend and hold BCRRA 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 way is connected with or
incident to the exercise of CITY's rights on, over, and across the Easement Area. Notwithstanding
the foregoing, this provision does not waive CITY's statutory and common-law rights to limitations
on liability, and CITY shall not be liable for that portion of liability, loss, cost, damage, or expense
arising solely from the intentional or negligent act or omission by HCRRA or, its officers, agents,
employees, contractors, invitees, successors, or assigns.
11. CITY 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 Agreement, any hazardous substance, hazardous waste or pollutant or contaminant,
except in full compliance with all applicable laws, nor shall it create or permit any condition on the
Easement Area that could present a threat to human health or to the environment. CITY agrees to
indemnify, defend and hold HCRRA 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, used, employed, deposited, stored, disposed of, placed or otherwise released on
or from the Easement Area by CITY, its employees, agents, contractors or representatives, including
those released on or from the Easement Area in full compliance with all applicable laws where said
release is the result of an emergency response.
12. The rights herein granted are subject to existing rights of way, whether or not of record, for
roadways, pipelines, canals, laterals, ditches, communication facilities, including fiber optics,
electrical or other transmission lines, and should it, at any time, become necessary because of CITY's
use of the Easement Area to relocate any of said facilities by reason of CITY's exercise of the rights
granted herein, CITY, and not HCRRA, shall bear and pay the cost of so doing.
4
CITY also accepts said 8th Avenue Extension Easement subject to any want or failure at any
time of HCRRA's title to said Easement Area or any part thereof and CITY shall assume any
damages sustained by CITY in connection therewith. CITY also accepts such 8th Avenue
Extension Easement subject to rights of any party, including HCRRA, in and to any roadways,
easements, leases and permits, whether granted, at HCRRA's sole discretion, either prior to or
after the date of this Easement Agreement except that any subsequent grant shall not
unreasonably interfere with CITY's use of the 8th Avenue Extension Easement.
CITY agrees to provide to HCRRA reasonable access over and through the Easement Area
should such access be deemed necessary by HCRRA. CITY accepts said Easement Area subject
to the right of HCRRA, its employees, agents, permittees, lessees, and contractors when
reasonably necessary to walk upon said Easement Area to repair adjacent property and the right
ofHCRRA, its employees, agents, permittees, lessees, and contractors to temporarily place
equipment upon the Easement Area when reasonably necessary for the purpose of maintaining,
repairing, inspecting or constructing upon HCRRA's property, provided the placement of such
equipment shall not unreasonably interfere with the use of the public road crossing.
13. Said 8th Avenue Extension Easement shall be non-exclusive and shall not in any manner
restrict HCRRA from granting for fair market value, other fair consideration or without
consideration, subsequent rights to use of its Corridor for transportation purposes, or other public
purpose consistent with the continued use of the Easement Area as a public road crossing. The
continued use of this 8th Avenue Extension Easement shall not create a roadway dedicated or
accruing to the public or any individual in the meaning of Minn. Stat. Sec. 160.05 or any other
statute or at common law.
14. This Agreement and the 8th Avenue Extension Easement shall run with title to the Easement
Area and the City Property and shall be binding upon the HCRRA and CITY and their successors
and assigns, until terminated by the terms of this Agreement. The terms of this Easement Agreement
are for the benefit of the parties and are not to be construed as creating third party beneficiary rights
and are not to be construed as creating a right in favor of the CITY to assign any of its rights and
obligations created by this Easement Agreement to third parties. However, the CITY shall be
entitled to enter into an agreement with the owner ofthe Adjacent Property allowing the owner use
of the public road crossing and requiring the owner ofthe Adjacent Property to construct and
maintain the road improvements within the Easement Area in accordance with the terms of this
Agreement.
15. This 8th Avenue Extension Easement is limited solely to use as a public road crossing. In
the event the Easement Area is not used as a public road crossing for a period of twelve (12)
consecutive months, this 8th Avenue Extension Easement shall terminate automatically and CITY
shall deliver to HCRRA a Release of Easement for the 8th Avenue Extension within thirty (30) days
ofHCRRA's request to CITY. Any period of time during which the Easement Area is not used to
provide access to the Adjacent Property as a result of the HCRRA's exercise of its rights under
5
Paragraphs 3, 8 and 9 ofthis Agreement shall not be included in the twelve (12) consecutive month
period of time referred to in the immediately preceding sentence. Additionally this 8th Avenue
Extension Easement shall automatically terminate upon the opening of a public street access to the
Adjacent Property other than that created by this Agreement and by that existing access at 5th Avenue
South and CITY shall deliver to HCRRA a Release of Easement for the 8th Avenue Extension within
thirty (30) days of the date of opening of the public street access.
16. Upon delivery by City to HCRRA of CITY's Release of Easement for the 8th Avenue
Extension pursuant to either Section 9 of this Agreement (in lieu of paying for the cost of a grade
separated crossing) or Section 15 of this Agreement (for non-use as a public road crossing or the
opening of an alternative access) the provisions of Section 4 of the Transportation Use Easement
shall apply.
17. Any request, notice or other communication which one party to this Agreement wishes or is
required to give to the other party will be regarded as effective if such notice is in writing and either
delivered personally to such party or such notice is sent by certified mail, return receipt requested
and postage prepaid, addressed as follows:
To Grantor:
Hennepin County Regional Railroad Authority
417 North Fifth Street, Suite 320
Minneapolis, MN 55401-1362
Attention: Manager of Leasing and Land Management
To Grantee:
City of Hopkins
1010 First Street South
Hopkins, MN 55343
Attention: Public Works Director
Either party may change the above address for notices by written notice to the other party
given in the manner provided in this section.
6
IN WITNESS WHEREOF, the said parties have caused this Agreement to be executed
the day and year first above written.
GRANTOR:
GRANTEE:
Hennepin County Regional
Railroad Authority
City of Hopkins
By:
By:
Its: Board Chair
Its:
Date:
Date:
By:
By:
Its: Deputy/Executive Director
Its:
Date:
Date:
ATTEST:
Deputy/Clerk of Authority Board
Reviewed by County Attorney's Office
Date
7
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
,2005, by and
fue and
of Hennepin County Regional Railroad Authority, a political
subdivision and local government unit of the State of Minnesota, on behalf of the Authority.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
,2005, by and
the and
of the City of Hopkins, a municipal corporation of the State
of Minnesota, on behalf of the CITY.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Hennepin County Regional Railroad Authority
417 North Fifth Street, Suite 320
Minneapolis, MN 55401-1362
8
Exhibit A
Legal Description of City Property
(THIS PARENTHETICAL IS TO BE DELETED IN FINAL EXHIBIT: that
being all of the City Property located between the Corridor and Excelsior Avenue between
the westerly edge of the 8th Avenue Roadway Area to the easterly edge of
.)
That part ofthe South Half ofthe Southeast Quarter of Section 24, Township 117, Range 22
described as follows: Beginning at the intersection of the Southerly right-of-way line of County
Road Number 3, as shown in Book 4 of Highway Plats, Page 4, office of the County Recorder,
with the Southerly right-of-way line ofthe Chicago and North Western Transportation Company,
formerly The Minneapolis & S1. Louis Railway Company; thence Southwesterly 249.23 feet along
the Southerly right-of-way line of said County Road Number 3, which right-of-way line is a
curved line concave to the Northwest having a radius of 1860.08 feet, a central angle of7 degrees
40 minutes 37 seconds and an assumed chord bearing of South 66 degrees 17 minutes 41 seconds
West; thence South 70 degrees 08 minutes West along the Southerly right-of-way line of said
County Road Number 3 a distance of 1224.29 feet, said line hereinafter referred to as line "A";
thence Westerly on a tangential curve to the right along the Southerly right-of-way line of said
County Road Number 3 a distance of971.08 feet, said curve having a radius of2814.77 feet and a
central angle of 19 degrees 46 minutes; thence South 89 degrees 54 minutes West along the
Southerly right-of-way line of County Road Number 3, which line is hereinafter referred to as line
"B" to its intersection with the Northerly extension ofthe East line of Registered Land Survey No.
1316; thence Southerly along said extension and along said East Line to its intersection with a line
drawn parallel with and 100.00 feet Southerly from said line "B"; thence North 89 degrees 54
minutes East along said parallel line and its extension to the intersection with a line drawn parallel
with and 76.00 feet Southeasterly from said line "A" and its Southwesterly extension; thence
North 70 degrees 08 minutes East along the last described parallel line and its extension a distance
of2098.14 feet; thence North 60 degrees 15 minutes 48 seconds East a distance of73.56 feet to a
point which is on a line bearing South 76 degrees 51 minutes 15 seconds East and distant 146.95
feet from the point of beginning; thence along a curve concave to the Northeast, having a radius of
686.62 feet and a central angle of 12 degrees 17 minutes 10 seconds a distance of 147.23 feet to
the point of beginning, except that part thereof embraced within the plat of 10417 Associates
Addition (Torrens Certificate of Title No. 1010683)
Exhibit B
Legal Description of Easement Area
(THIS PARENTHETICAL IS TO BE DELETED IN FINAL EXHIBIT: that
9
being the portion of the Corridor to be occupied by the 8th Avenue Extension.)
Exhibit C
Legal Description of the Adjacent Property
Exhibit D
Depiction
(THIS PARENTHETICAL IS TO BE DELETED IN FINAL EXHIBIT: Same
Depiction as contained in Exhibit A of the Transportation Use Easement)
10
Agreement No. 73-33009C
EASEMENT AGREEMENT
For Transportation Uses
THIS AGREEMENT, made this _ day of , 2005, by and between
Hennepin County Regional Railroad Authority, a political subdivision and local government unit of
the State of Minnesota (hereinafter referred to as "HCRRA"); and the City of Hopkins, a municipal
corporation under the laws ofthe State of Minnesota (hereinafter referred to as ("CITY").
RECITALS
A. HCRRA acquired that certain Chicago and North Western Transportation Company railroad
right of way that traverses through the City of Hopkins, County of Hennepin, State of Minnesota,
in the vicinity of Excelsior Boulevard and 8th A venue South, for future 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 (hereinafter referred
to as "Corridor").
B. In the vicinity of 8th Avenue South and Excelsior Boulevard (also known as "Hennepin
County Road 3") in the City of Hopkins, the Corridor runs parallel to, and southerly of, Excelsior
Boulevard. That part of the Corridor contiguous with the City Property (hereinafter referred to as
the "Benefited Property") is legally described as follows:
That part of HENNEPIN COUNTY REGIONAL RAILROAD AUTHORITY
PROPERTY MAP NO. 28, on file and of record in the office of the County Recorder in
and for said Hennepin County as Document No. 6540294, lying within the Northeast
Quarter of the Northwest Quarter and the Northwest Quarter ofthe Northeast Quarter of
Section 25, Township 117, Range 22, and that part of HENNEPIN COUNTY
REGIONAL RAILROAD AUTHORITY PROPERTY MAP NO. 29, on file and of
record in the office of the County Recorder in and for said Hennepin County as
Document No. 6540295, lying within the Southwest Quarter of the Southeast Quarter and
the Southeast Quarter ofthe Southeast Quarter of Section 24, Township 117, Range 22.
C. The CITY is the owner in fee simple of certain real property (hereinafter referred to as "City
Property") located between Excelsior Boulevard and the Corridor. The City Property is adjacent
to and contiguous with the Corridor. The City Property is legally described as follows:
That part of the South Half of the Southeast Quarter of Section 24, Township 117, Range
22 described as follows: Beginning at the intersection of the Southerly right-of-way line
of County Road Number 3, as shown in Book 4 of Highway Plats, Page 4, office of the
County Recorder, with the Southerly right-of-way line of the Chicago and North Western
Transportation Company, fonnerly The Minneapolis & S1. Louis Railway Company;
thence Southwesterly 249.23 feet along the Southerly right-of-way line of said County
Road Number 3, which right-of-way line is a curved line concave to the Northwest
having a radius of 1860.08 feet, a central angle of7 degrees 40 minutes 37 seconds and
an assumed chord bearing of South 66 degrees 17 minutes 41 seconds West; thence South
70 degrees 08 minutes West along the Southerly right-of-way line of said County Road
Number 3 a distance of 1224.29 feet, said line hereinafter referred to as line "A"; thence
Westerly on a tangential curve to the right along the Southerly right-of-way line of said
County Road Number 3 a distance of971.08 feet, said curve having a radius of2814.77
feet and a central angle of 19 degrees 46 minutes; thence South 89 degrees 54 minutes
West along the Southerly right-of-way line of County Road Number 3, which line is
hereinafter referred to as line "B" to its intersection with the Northerly extension of the
East line of Registered Land Survey No. 1316; thence Southerly along said extension and
along said East Line to its intersection with a line drawn parallel with and 100.00 feet
Southerly from said line "B"; thence North 89 degrees 54 minutes East along said parallel
line and its extension to the intersection with a line drawn parallel with and 76.00 feet
Southeasterly from said line "A" and its Southwesterly extension; thence North 70
degrees 08 minutes East along the last described parallel line and its extension a distance
of2098.14 feet; thence North 60 degrees 15 minutes 48 seconds East a distance of73.56
feet to a point which is on a line bearing South 76 degrees 51 minutes 15 seconds East
and distant 146.95 feet from the point of beginning; thence along a curve concave to the
Northeast, having a radius of 686.62 feet and a central angle of 12 degrees 17 minutes 10
seconds a distance of 147.23 feet to the point of beginning, except that part thereof
embraced within the plat of 10417 Associates Addition (Torrens Certificate of Title No.
1010683).
D. A portion ofthe City Property (hereinafter referred to as "Easement Area") is suitable for
public transportation uses, including development of transportation facilities, a bus turnaround,
passenger parking facility or a transit station and related improvements to serve transportation
uses of the Corridor. The Easement Area is legally described as follows:
(insert legal description)
E. A portion of the City Property is burdened with a perpetual easement for public street
drainage and utility purposes by Declaration of Easement dated February 1,2005 and filed as
Document No. 407460 with the Hennepin County Registrar of Titles (hereinafter "8th Avenue
Roadway Area").
F. In a separate Easement Agreement between CITY and HCRRA, dated ,-2005,
recorded , 2005, as Document No. and identified as
Agreement No. 73-33009 ("8th Avenue Extension Easement Agreement"), HCRRA has granted
to CITY an Easement for the extension of 8th Avenue over the Corridor ("8th Avenue Extension
Easement") which may be terminated in accordance with Sections 9 and 15 of the 8th Avenue
2
Extension Easement Agreement upon delivery to HCRRA of CITY'S release of the easement
(hereinafter "Release of Easement for 8th Avenue Extension").
G. The location ofthe Corridor, the Benefited Property, the City Property, (including the
Transportation Use Easement Area and the 8th Avenue Roadway Area) and the 8th Avenue
Extension Easement Area are depicted in Exhibit A attached hereto and made a part of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated in and
made a part of this Agreement, and in consideration of the sum of One and Noll 00 Dollars
($1.00) and other good and valuable consideration, the receipt of which is hereby acknowledged,
the CITY and HCRRA agree as follows:
1. The CITY hereby grants to HCRRA, its successors and assigns an easement on, over, under
and across the Easement Area for public transportation uses including a bus turnaround, passenger
parking facility and a transit station and related facilities but specifically not including or permitting
garages or maintenance facilities, (hereinafter referred to as "Transportation Use Easement") in
accordance with the tenns of this Agreement. The easement rights granted by this Agreement
include the right to construct and maintain improvements for public transportation uses on the
Easement Area. The Transportation Use Easement shall continue indefinitely until its termination
under the terms of Section 4 of this Agreement.
2. Prior to HCRRA's exercise of its easement rights in accordance with the terms of this
Agreement, CITY shall have exclusive control over the Easement Area, except that CITY shall not
improve or permit the improvement of the City Property in such a manner as to conflict with future
use ofthe Easement Area for transportation purposes without the prior written consent ofHCRRA.
HCRRA consents to lease ofthe Easement Area to the Metro Transit Division of the Metropolitan
Council for a "Park and Ride" parking lot and related purposes until such time as HCRRA's
exercises its easement rights over the Easement Area.
3. HCRRA may exercise the rights granted by this Transportation Use Easement by delivering
to CITY written notice one hundred eighty (180) days prior to the date it intends to implement
transportation uses on the Easement Area (hereinafter "HCRRA's Use Date"). On and after
HCRRA's Use Date, HCRRA's right to use the Easement Area shall be exclusive, except for those
preexisting rights referenced in Section 8. CITY, and not HCRRA, shall be responsible for the
payment of all relocation benefits and just compensation due, if any, to third parties, resulting from
the termination of any and all uses permitted by CITY after the date of this Easement Agreement that
are incompatible with HCRRA's use ofthe Easement Area.
Prior to construction of any improvements within the Easement Area, HCRRA shall_deliver
the plans for such improvements to the CITY for review, comment and approval. Ifthe CITY
determines that said plans are inappropriate or incompatible with the present and future use of the
City Property or other adjacent property, the CITY shall notify the HCRRA of the CITY's
3
disapproval of such plans within thirty (30) days of delivery of plans to the CITY by the HCRRA.
Such notice shall state the CITY's basis for rejection of the plans. The CITY and HCRRA shall
thereafter cooperate and proceed in good faith to agree upon modifications to the plans and resolve
any disputes regarding the CITY's request for revisions to the proposed plans. If the CITY and
HCRRA are unable to resolve any dispute regarding the CITY's request for revisions to the proposed
plans, the HCRRA shall incorporate any agreed-upon revisions in the plans before proceeding with
construction, but the HCRRA's reasonable determination as to any unresolved issues shall be final.
The CITY's failure to notify the HCRRA of objections to any plans within thirty (30) days of
delivery of the plans to the CITY shall be deemed acceptance of such plans.
4. Anytime prior to HCRRA's Use Date, this Transportation Use Easement shall terminate one
hundred twenty (120) days after CITY delivers to HCRRA CITY's Release of Easement for 8th
Avenue Extension in accordance with either Section 9 or 15 of the 8th Avenue Extension Easement
Agreement unless, within such one hundred twenty (120) day period, HCRRA delivers a notice
("Extension Notice") to the CITY notifying the CITY that HCRRA has elected to exercise its right
to have the Transportation Use Easement continue in effect. IfHCRRA delivers the Extension
Notice to the City, HCRRA shall pay an Easement Extension Fee (the "Extension Fee") to the CITY.
The Extension Fee shall be the fair market value of the Transportation Use Easement as of the date
of delivery ofthe Extension Notice to the CITY. In the event HCRRA and the CITY are unable to
agree on the fair market value of the Transportation Use Easement within thirty (30) days after the
CITY has received the Extension Notice, the fair market value shall be determined by the following
appraisal process. Within thirty (30) days after expiration of the thiliy (30) day period for agreement
between HCRRA and the CITY, BCRRA shall select and designate an appraiser and the CITY shall
select and designate an appraiser. The two appraisers shall thereupon determine the fair market
value ofthe Transportation Use Easement and together submit to HCRRA and the CITY within sixty
(60) days after their appointment a written appraisal setting forth their opinion as to the fair market
value ofthe Transportation Use Easement on the date of delivery of the Extension Notice to the
CITY, signed by both appraisers. In the event, said appraisers are unable to agree on the fair market
value of the Transportation Use Easement within this sixty (60) day period, the two appraisers shall
jointly select a third appraiser, and the three appraisers shall submit to HCRRA and the CITY within
sixty (60) days after selection of the third appraiser a written appraisal report signed by any two of
the three appraisers. The costs of any such appraisal shall be born equally by HCRRA and the
CITY. Upon determination of the amount of the Extension Fee, HCRRA shall pay the Extension
Fee to the CITY within thirty (30) business days. IfHCRRA does not deliver the Extension Notice
to the CITY within the one hundred twenty day (120) period specified in this section or pay to CITY
the Extension Fee within the time specified by this section, the Transportation Use Easement and
HCRRA's obligation to pay an Extension Fee shall terminate.
The Transportation Use Easement and this Agreement shall also terminate on December 31,2050
unless prior to that date HCRRA has provided to CITY timely notice ofHCRRA's Use Date and has
implemented transportation uses on the Transportation Use Easement Area.
4
The Transportation Use Easement shall otherwise continue indefinitely unless released by HCRRA,
based upon HCRRA's determination, in its sole discretion, that the Transportation Use Easement is
no longer necessary.
Upon termination of this Transportation Use Easement for any reason in accordance with the terms
ofthis Agreement, HCRRA shall execute and deliver to the CITY a release of this Transportation
Use Easement suitable for recording.
5. Each party agrees that it will be responsible for its own acts and the results thereof, to the
extent authorized by law, and shall not be responsible for the acts of the other party and the results
thereof. Beginning on and after HCRRA's Use Date, the patiies shall indemnify, defend and hold
each other and their respective officials, agents and employees harmless from and against all
liability, loss, cost, damage or expense of every nature including reasonable attorney's fees, resulting
from injury to or death of persons or loss or destruction to property which arises out of or results
from their respective acts and the exercise of their respective rights under this Agreement and the
construction, operation or maintenance of any facilities or improvements within the Transportation
Use Easement Area. The foregoing provisions do not, and are not intended to, act as a waiver ofthe
immunities, defenses and limitations on liability of either of the parties, whether granted by statute,
common law or otherwise, including without limitation by Minn. Statutes Chapter 466. In the event
any real estate taxes or assessments become payable with respect to the City Property or the
Easement Area as a result of the HCRRA's use thereof, the HCRRA shall be solely responsible for
and shall pay all such real estate taxes and assessments, and shall protect, indemnify and hold the
CITY harmless therefrom.
6. Each party hereby covenants and warrants that it shall not use, employ, deposit, store, dispose
of, place or otherwise release on the Easement Area any hazardous substance, hazardous waste or
pollutant or contaminant, except in full compliance with all applicable laws, nor shall it create or
permit any condition on the Easement Area that could present a threat to human health or to the
environment. Each party agrees that it will be responsible for its own acts and the results thereof, to
the extent authorized by law, and shall not be responsible for the acts ofthe other party and the
results thereof for 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 used, employed, deposited, stored, disposed of, placed
or otherwise released on or from the Easement Area by the party, its employees, agents, contractors
or representatives, including those released on or from the Easement Area in full compliance with all
applicable laws where said release is the result of an emergency response. This provision does not,
and is not intended to, act as a waiver of the immunities, defenses and limitations on liability of
either of the parties, whether granted by statute, common law or otherwise, including without
limitation by Minn. Statutes Chapter 466."
7. The Transportation Use Easement shall run with title to the Benefited Property and the City
Property and shall bind all persons who now or hereafter have any right, title or interest in the
5
Benefited Property or City Property, their successors, assigns and mortgagees, and shall inure to the
benefit of all persons who now or hereafter have any right, title or interest in the Benefited or City
Property and their respective successors, assigns and mortgagees. The Transportation Use Easement
is appurtenant to the City Property and the Benefited Property and may not be transferred, assigned
or encumbered except as an appurtenance to the Benefited Property or the City Property. Upon
conveyance of all or any part of the title to the City Property or the Benefited Property the grantee,
by accepting such conveyance shall be bound by the terms and conditions of this Easement
Agreement. HCRRA's rights under this Agreement and in and to the Transportation Use Easement
may not be transferred to any individual, person, firm, corporation, limited liability company,
partnership or other entity that is not a governmental unit, agency, subdivision or body without the
prior written consent ofthe CITY, which consent may be withheld in the CITY's reasonable
discretion.
8. The Transportation Use Easement and the rights herein granted are subject to existing
easements, rights-of-way, whether or not of record, for roadways, above or underground utilities and
utility improvements, ditches, communication facilities, including fiber optics, electrical or other
transmission lines, and should it, at any time, become necessary because HCRRA's use of the
Easement Area to relocate any of said facilities by reason of HCRRA's exercise of the rights granted
herein, HCRRA, and not CITY, shall bear and pay the cost of so doing. HCRRA also accepts said
Easement subject to any want or failure at any time of CITY's title to said Easement Area or any part
thereof and HCRRA shall assume any damages sustained by HCRRA in connection therewith.
HCRRA also accepts such Easement subject to rights of any party, including CITY, in and to any
roadways, easements, leases and permits, granted prior to the date of this Easement Agreement.
That part of the City Property located east of the Easement Area and west of the right of way
of Fifth Avenue South is referred to herein as the "Residue Property." That part ofthe Easement
Area 50 feet in width, located immediately west of the Residue Property and extending north to the
right of way of Hennepin County Road No.3 is herein referred to as the "County Road 3 Access
Area." Notwithstanding any provision of this Agreement apparently to the contrary, the CITY
retains the following rights in and to the County Road 3 Access Area, namely:
a. The right to extend underground utilities across the County Road 3 Access Area for
the benefit of the Residue Property or for other public purposes.
b. The right to use the County Road 3 Access Area for non-exclusive driveway access to
the Residue Property for ingress and egress to Hennepin County Road No.3.
9. Any request, notice or other communication which one party to this Agreement wishes or is
required to give to the other party will be regarded as effective if such notice is in writing and either
delivered personally to such party or such notice is sent by certified mail, return receipt requested
and postage prepaid, addressed as follows:
To HCRRA:
Hennepin County Regional Railroad Authority
6
417 North Fifth Street, Suite 320
Minneapolis, MN 55401-1362
Attention: Manager of Leasing and Land Management
To CITY:
City of Hopkins
1010 First Street South
Hopkins, MN 55343
Attention: Public Works Director
Either party may change the above address for notices by written notice to the other party
given in the manner provided in this paragraph.
IN WITNESS WHEREOF, the said parties have caused this Agreement to be executed
the day and year first above written.
GRANTEE:
GRANTOR:
Hennepin County Regional
Railroad Authority
CITY OF HOPKINS
By:
By:
Chair of Its Board
Its:
And:
Deputy/Executive Director
By:
Its:
ATTEST:
Deputy/Clerk of Authority Board
Reviewed by County Attorney's Office
Date
7
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
2005, by and
fue ~d
of Hennepin County Regional Railroad Authority, a political
subdivision and local government unit of the State of Minnesota, on behalf of the Authority.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
2005, by and
the and
of the City of Hopkins, a municipal corporation of the State
of Minnesota, on behalf of the Authority.
Notary Public
This instrument was drafted by:
Hennepin County Regional Railroad Authority
417 North Fifth Street, Suite 320
Minneapolis, MN 55401-1362
8
Exhibit A
Depiction
(THIS PARENTHETICAL IS TO BE DELETED IN FINAL EXHffiIT: Corridor, Benefited Property, the
City Property (including the Transportation Use Easement Area, the 8th Avenue Roadway Area, and the
County Road 3 Access Area), the Residual Property), the Adjacent Parcel and the 8th Avenue Extension
Easement Area.)
9