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3.5. SR 10-18-2010REQUEST FOR ACTION TO ITEM NUMBER Ma or and Ci Council 3.5. AGENDA SECTION MEETING DATE PREPARED BY Consent October 18, 2010 ustin Femrite, P.E. - Ci En ~ eer ITEM DESCRIPTION REVIEWED By Lions Park Drive Easement and License Agreement Lori ohnson, Ci Administrator REVIEWED BY ACTION REQUESTED Approval of the attached Easement and License Agreement BACKGROUND/DISCUSSION This item is being brought forward at the request of the Elk River Housing Associates Limited Partnership who are the owners of the Dovetree Apartments. The Dovetree Apartments are located directly east of the Loins Park Pavilion. The street/driveway which serves the apartment building and the Lions Park pavilion is situated on the park property and owned by the City. It is not a dedicated public right-of--way and thus a formal easement must be signed and recorded to allow the use of the park property for access and drainage purposes to the Dovetree Apartment property. The "Houlton Park Gift Agreement", pursuant to which Lions Park was donated to the City, provided that the City would grant easements for access to and drainage from the apartment property, but agreements were never entered into. This agreement cleans up that oversight. The attached agreement will allow the apartment property access via the same street/driveway that currently exists. No access improvements are being proposed through the approval of this agreement. The vehicle access and storm water drainage patterns will continue as they have since the apartment was constructed in 1994. FINANCIAL IMPACT The costs for the drafting and recording of the Easement and License Agreement will be paid by the Dovetree Apartment property owner. No City costs are expected. ATTACHMENTS ^ Easement and License Agreement Action Motion by Second by Vote FOllow Up C:\Documents and Settings\XPMUser\Local Settings\Temporary Internet Files\OLK66\Dovetree RFA 10.18-10.doc This document was prepared by, and after recording, return to: Winthrop & Weinstine, P.A. Suite 3500 225 South Sixth Street Minneapolis, Minnesota 55402-4629 Attention: John M. Stern EASEMENT AND LICENSE AGREEMENT .This Easement and License Agreement ("Agreement") is made as of the _ day of October, 2010, (the "Effective Date") by the City of Elk River, a municipal corporation under the laws of the State of Minnesota ("Grantor") and Elk River Leased Housing Associates Limited Partnership, a Minnesota limited partnership ("Grantee"). RECITALS WHEREAS, Grantor owns certain real property legally described on Exhibit A attached hereto and incorporated herein ("Grantor Property"): WHEREAS, Grantee owns certain real property which property is legally described on Exhibit B attached hereto and incorporated herein ("Grantee Property"). WHEREAS, Grantor desires to grant an easement and a license to Grantee on the terms and conditions outlined herein. NOW THEREFORE, in consideration of the Recitals, which are hereby incorporated herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantor and Grantee, for themselves, their successors and assigns hereby agree, covenant and promise as follows: 1. Grant of Easement for Street, Utility and Drainage Purposes. Grantor hereby grants to Grantee, a perpetual, non-exclusive easement for street, utility and drainage purposes (the "Street, Utility and Drainage Easement") over, under and across a portion of the Grantor Property legally described on Exhibit C attached hereto and incorporated herein ("Easement Area"), including without limitation the right of pedestrian and vehicular ingress and egress over and across the same. 2. Grant of License for Storm Water Drainage Purposes. Grantor hereby grants to Grantee, a perpetual, nonexclusive license for storm water drainage purposes (the "Storm Water Drainage License"). The Storm Water Drainage License shall authorize Grantee to discharge storm water from the Grantee Property to the Grantor Property in the location of the existing storm water line, which storm water line crosses the boundary line between the Grantee Property and the Grantor Property in the location described on attached Exhibit D. Grantor shall have the right to designate an alternate storm water discharge location from the Grantee Property at any time, but Grantor, at its sole expense, shall be responsible for the installation of all storm water drainage facilities necessary, including facilities on the Grantee Property to implement the new discharge location. 3. Maintenance. Grantor and Grantee shall each be responsible for the maintenance and repair of their respective property. Grantor shall, at its expense, perform all maintenance (including snow and ice removal), and minor repairs on the Easement Area during the term of this Agreement. Grantor also shall, at its expense, perform all maintenance and minor repairs to the portion of the storm sewer system (including any drainage ponds or other drainage systems) located on the Grantor Property in order to facilitate proper storm water drainage from the Grantee Property to the Grantor Property. Grantor agrees that neither it, nor anyone claiming a right through Grantor, shall in any way block, obstruct or delay Grantee's use of the Easement Area or the drainage facilities now or hereafter existing on Grantor Property for the purposes set forth herein. 4. Major Repair or Replacement. If major repairs, reconstruction or replacement of the street, utility and/or drainage facilities in the Easement Area, or drainage facilities on the Grantor Property which provide drainage for the Grantee Property, are deemed necessary, in the sole discretion of Grantor, Grantor shall be responsible for undertaking the necessary repairs, reconstruction or replacement and Grantee shall share in the costs of such repairs, reconstruction or replacement in an amount determined pursuant to the Grantor's assessment policies then in effect. In no event shall Grantee be responsible for more than 50% of the costs of such repairs, reconstruction or replacement, nor shall Grantee pay any costs for relocation drainage facilities on the Grantor Property unless such relocation is necessary due to failure of those drainage facilities. 5. Duration; Termination. This Agreement shall be perpetual in nature. This Agreement shall be recorded and shall constitute covenants and obligations running with the Grantee Property and the Grantor Property and shall be binding and inure to the benefit of future owners, tenants, and holders of any interest in said properties, or any portion thereof, and their successors and. assigns unless and until this Agreement is terminated by written agreement by and between Grantor and Grantee. 6. Notices. Any notice required or permitted to be given by any party upon the other shall be given by certified mail, return receipt requested, by nationally recognized overnight courier, or by personal delivery addressed as follows: If to Grantor: City of Elk River 13065 Orono Parkway Elk River, Minnesota 55330 Attention: City Attorney If to Grantee: Elk River Leased Housing Associates Limited Partnership 2905 Northwest Boulevard, Suite 150 Plymouth, Minnesota 55441 Attention: Armand E. Brachman All notices shall be deemed given three (3) business days following deposit in the United States mail with respect to certified or registered letters, one (1) business day following deposit if delivered to an overnight courier guaranteeing next day delivery and on the same day if sent by personal delivery. Attorneys for each party shall be authorized to give notices for each such party. Any party may change its address for the service of notice by giving written notice of such change to the other party, in any manner above specified. 7. Miscellaneous a) Amendment. The terms of this Agreement may only be amended, terminated or rescinded by a written agreement between Grantor and Grantee. The consent of no other person or entity shall be required for such amendment, termination or rescission of this Agreement or for the amendment, termination or abandonment of such Easement Area. b) Authori The undersigned each represent that they are authorized to act for and bind their respective parties. c) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument. d) Headings. The headings of sections of this Agreement are for convenience of reference only and do not form a part hereof and in no way interpret or construe such paragraphs. e) Integration. This Agreement is the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings between the parties hereto with respect to the subject matter. f) Severability. If any provision of this Agreement is held unenforceable or void, such provision shall be deemed to be severable and shall in no way affect the validity of the remaining terms of this Agreement. [Remainder of Page Left Intentionally Blank. Signature Page to Follow.J IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement as of the above date. GRANTOR: CITY OF ELK RIVER By: Its: Mayor By: Its: City Clerk STATE OF MINNESOTA ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this and City Clerk of the City of Elk River, a Minnesota municipal corporation. day of , 2010 by the Mayor and Notary Public GRANTEE: ELK RIVER LEASED HOUSING ASSOCIATES LIMITED PARTNERSHIP By: DOMINIUM MICHIGAN ONE, LLC Its: General Partner Name: Its: STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of , 2010 by ,the of Dominium Michigan One, LLC, a Minnesota limited liability company, the General Partner of Elk River Leased Housing Associates Limited Partnership, a Minnesota limited partnership. Notary Public EXHIBIT A (Legal Description of Grantor Property) That part of the Southeast Quarter of the Northeast Quarter of Section 33, Township 33, Range 26, Sherburne County, Minnesota, described as follows: Commencing at the intersection of a line parallel with and distant 33 feet East of, as measured at right angles to, the West line of said Southeast Quarter of the Northeast Quarter and the North line of said Southeast Quarter of the Northeast Quarter; thence East along said North line for 735 feet to the point of beginning of the parcel to be described; thence South at right angles to said North line for 410 feet; thence Southeasterly to a point on the East line of said Southeast Quarter of the Northeast Quarter distant 602.09 feet Southerly of the Northeast corner of said Southeast Quarter of the Northeast Quarter as measured along said East line; thence Northerly along said East line for 602.09 feet to said Northeast corner; thence Westerly along said North line for 551.71 feet to the point of beginning. EXHIBIT B (Legal Description of Grantee Property) That part of Lot 4 of the duly recorded plat of Auditors Subdivision No. 3, Sherburne County, Minnesota, also being part of the Southeast Quarter of the Northeast Quarter of Section 33, Township 33, Range 26, said Sherburne County, lying northeasterly of Northeasterly line of the right-of--way of the Burlington Northern, Inc. (formerly Northern Pacific) railway, described as follows: Commencing at the intersection of said northeasterly line of the railroad right-of--way with the East line of the public road (now known as Proctor Avenue and County State Aid Highway No. 1) running North and South along the West line of said Southeast Quarter of the Northeast Quarter (said East line of the public road being a line 33.00 feet east of, as measured at right angles to, the West line of said Southeast Quarter of the Northeast Quarter); thence North along said East line of the public road about 85 feet (73.30 feet, more or less, measured) to intersect the North line of said Southeast Quarter of the Northeast Quarter; thence East along said North line for 735.00 feet to the actual point of beginning of the land to be hereby described; thence running West along said North line for 285.00 feet; thence South at right angles for 469.00 feet; thence West parallel with said North line of the Southeast Quarter of the Northeast Quarter for 16.26 feet, more or less, to intersect said northeasterly line of the railroad right-of--way; thence southeasterly along said railroad right-of--way for 407.29 feet, more or less, to intersect a line drawn south at right angles from the point of beginning; thence North along said line at right angles for 743.09 feet, more or less, to the point of beginning. EXHIBIT C (Description of Easement Area) An easement for general street, utility and drainage purposes, including without limitation ingress and egress over, under and across the North 40.00 feet of the Southeast Quarter of the Northeast Quarter, Section 33, Township 33, Range 26, Sherburne County, Minnesota, lying easterly of a certain tract of land described in Document Number 336176, Sherburne County, Minnesota: Said tract of land is described as follows: That part of the Southeast Quarter of the Northeast Quarter of Section 33, Township 33, Range 26, Sherburne County, lying northeasterly of Northeasterly line of the right-of--way of the Burlington Northern, Inc. (formerly Northern Pacific) railway, described as follows: Commencing at the intersection of the railroad right-of- way with the East line of the public road (now known as Proctor Avenue and County State Aid Highway No. 1), running North and South along the West line of said Southeast Quarter of the Northeast Quarter, (said East line of the public road being a line 33.00 feet, East of as measured at right angles to the West line of said Southeast Quarter of the Northeast Quarter); thence Northerly along said East line of the public road about 85.00 feet, (73.30 feet, more or less measured to intersect the North line of said Southeast Quarter of the Northeast Quarter); thence North 89 degrees 04 minutes 19 seconds East, on an assumed bearing along the said North line for 735.00 feet to the actual point of beginning of the land to be hereby described; thence South 89 degrees 04 minutes 19 seconds West, a distance of 285.00 feet; thence South 00 degrees 55 minutes 40 seconds East, a distance of 469.00 feet; thence South 89 degrees 04 minutes 19 seconds West, a distance of 16.26 feet to the Northeasterly right-of--way of the said Burlington Northern Railroad; thence South 48 degrees 37 minutes 54 seconds East, along said Northerly right-of--way line, a distance of 407.29 feet to the point of beginning of the line to be described; thence North 00 degrees 55 minutes 41 seconds West, a distance of 743.09 feet, more or less, to the point of beginning. EXHIBIT D (Description of Storm Water Outlet) A grant of license for the discharge of storm water drainage purposes onto the Grantor Property, commencing at an area between Points "A" and "B" lying on the easterly line of a certain tract of land described in Document Number 336176, Sherburne County, Minnesota, described as follows; Commencing at the intersection of the northeasterly line of the right-of-way of the Burlington Northern, Inc. (formerly Northern Pacific) railway railroad right-of--way with the East line of the public road (now known as Proctor Avenue and County State Aid Highway No. 1), running North and South along the West line of said Southeast Quarter of the Northeast Quarter, (said East line of the public road being a line 33.00 feet, East of as measured at right angles to the West line of said Southeast Quarter of the Northeast Quarter); thence Northerly along said East line of the public road about 85.00 feet, (73.30 feet, more or less measured to intersect the North line of said Southeast Quarter of the Northeast Quarter); thence North 89 degrees 04 minutes 19 seconds East, on an assumed bearing along the said North line for 735.00 feet; thence South 89 degrees 04 minutes 19 seconds West, a distance of 285.00 feet; thence South 00 degrees 55 minutes 40 seconds East, a distance of 469.00 feet; thence South 89 degrees 04 minutes 19 seconds West, a distance of 16.26 feet to the Northeasterly right-of--way of the said Burlington Northern Railroad; thence South 48 degrees 37 minutes 54 seconds East, along said Northeasterly right-of--way line, a distance of 407.29 feet; thence North 00 degrees 55 minutes 41 seconds West, a distance of 517.26 feet, to said Point "A"; thence continue North 00 degrees 55 minutes 41 seconds West, a distance of 10.00 feet, to said Point "B". 5545011v1