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HomeMy WebLinkAbout20070521 - VI-14VI-14 Memo To: Mayor Hicks and City Council From: John Hinzman, Planning Director Date: May 21, 2007 Subject: Authorize Signature: Ingress and Egress Easement - #2006-53 -Twin Cities Habitat for Humanity\Dakota CDA -Pleasant Acres 2"d Addition\Hastings Family Housing REQUEST The City Council is asked to authorize signature of the attached ingress and egress easement. The document modifies the existing roadway easement between the City and Dakota CDA (Hastings Family Housing -Pleasant Hill Townhomes) as follows: • Allows access to the Habitat for Humanity homes of Pleasant Acres 2"d • Modifies the legal description of the roadway to eliminate a 4-5 foot overlap between the eastern boundaries of Lots 1-4, Block 1 Pleasant Acres 2"d Addition. RECOMMENDATION Staff has reviewed the changes and recommends signature of the document ATTACHMENTS • Ingress and Egress Easement • Site Map -~--+ Q ~ O •- -~--+ O U _ O C~ -J ~ (~ L z 3 AMENDED AND RESTATED INGRESS AND EGRESS EASEMENT THIS EASEMENT is given this day of , 2007, by the City of Hastings, a Minnesota municipal corporation (``Grantor") in favor of Hastings Family Housing Limited Partnership, a Minnesota limited partnership ("HFHLP'") and (ii) Twin Cities Habitat for Humanity, Inc., a Minnesota corporation ("TCHFH"). HFHLP and TCHFH shall collectively be refen-edto as "Grantee. RECITALS: A. Grantor is the owner of certain property located in the City of Hastings, Dakota County, Minnesota, legally described on Exhibit A attached hereto (the "Burdened Property"). B. HFHLP and TCHFH, respectively, are the owners of certain property located in the City of Hastings, Dakota County, Minnesota, legally described on Exhibit B attached hereto (collectively, the `Benefited Property'). C. Grantor intends to impose an easement over a portion of the Burdened Property for the benefit of the Benefited Property to facilitate development and use of the Benefited Property legally described and depicted on Exhibit C attached hereto (the "Access Easement"); NOW, THEREFORE, Grantor hereby declares that certain easements, conditions, restrictions, charges and liens as hereinafter set forth shall be established over the Burdened Property for the benefit of the Benefited Property. ARTICLE I EASEMENT Declaration of Ingress and Egress Easement. Grantor hereby declares and there shall exist in, on, and over that portion of the Burdened Property described on Exhibit C attached hereto and incorporated herein, an exclusive easement for vehicular and pedestrian ingress and egress for the benefit of the Benefited Property (the `'Access Easement"). The Access Easement is to be used solely by the owners of the Burdened and Benefited Properties, their tenants, employees, contractors, and invitees exclusively for vehicular and pedestrian access to the Burdened and Benefited Properties. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or declaration of all or airy portion of the easement hereby created, or portions thereof, to the general public. No Encroachments. The Access Easement shall not be encroached upon by filling, excavation, erection of buildings or permanent enclosures which would obstruct ingress or egress by vehicles and pedestrians. ARTICLE II OPERATION OF EASEMENT Operating and Maintenance Expenses. The owner of the HFHLP portion of the Benefited Property shall pay all costs associated with installing, operating, maintaining, and replacing all improvements in the easement area, with the contractor performing such work, the construction contract and specifications and all other aspects of the work acceptable to the owner of the HFHLP portion of the Benefited Property in its sole discretion. ARTICLE III GENERAL PROVISIONS Severability. invalidation of any one of the covenants or restrictions contained herein by judgments or court order shall in noway affect any other provision which shall remain in full force and effect. Default. If any party defaults in any obligation hereunder which can be cured by the payment of money, and such default is not cured within thirty (30) days after written notice thereof is given to such defaulting party by any other aggrieved party, or if any party defaults in any other obligation in this Easement and such default continues for thirty (30) days after written notice thereof is given to such defaulting party by any other aggrieved party, (or if such default is of a kind that cannot with reasonable diligence be cured in thirty (30) days but can be cured, then such thirty (30) day period shall be extended for the period reasonably necessary to cure the default as long as reasonable efforts are being made to cure the default), then any aggrieved party, after additional notice given to the defaulting party, may exercise any one or more of the remedies set out in Article Ill, Section 3 hereof. Remedies; Waiver. Upon the occurrence of a default under this Easement and the expiration of any period to cure without a curing of such default, any aggrieved party shall be entitled to one or more of the following remedies: (i) to cure the default of any defaulting party and charge the cost thereof, including reasonable fees of experts and attorneys, to the defaulting party, and all such costs shall be payable on demand; and (ii) specific enforcement, injunctive relief, damages, or any other remedy available at law or in equity. Any action seeking one or more forms of relief shall not be a bar to an action at the same or subsequent time seeking other forms of relief. The costs of any such action, including reasonable attorneys' fees of the prevailing party or parties, shall be paid by the party or parties not prevailing. Any delay in realizing, or failure to realize, on any remedy herein for a default hereunder shall not be deemed a waiver of that default or any subsequent default of similar or different kind, and no waiver of any right or remedy hereunder shall be effective unless in writing and signed by the person against whom the waiver is claimed. Singular and Plural. Whenever required by the context of this Easement, the singular shall include the plural, and vice versa, and the masculine shall include the feminine and neuter genders, and vice versa Negation of Partnership. None of the terms or provisions of this Easement shall be deemed to create a partnership between or among the owners of the Benefited Property and the Burdened Property, in their respective businesses or otherwise, nor shall such terms or provisions cause them to be considered joint venturers or members of any joint enterprise. No party shall have the right to act as an agent for another party unless expressly authorized Yo do'so herein or by separate written instrument signed by the party to be charged.. Amendments. This Easement may be amended only by an instrument signed by all of the owners and mortgagees of the Benefited Property and the Burdened Property. Enforcement by Associations; Authority of Associations. Only an owner of the Benefited Property or Burdened Property may enforce the provisions of this Easement. If a parcel consists of a condominium or townhouse, no owner of a unit shall have khe right to enforce any provision of this Easement; but any right of enforcement shall be exercised by the association of which such owners are members acting through its officers and board of directors. An association, acting through its respective officers and board of directors, shall represent all owners of units in a condominium or townhouse project governed by that association, and shall act for all such owners, and the act of such association, acting througJl their officers and board of directors, shall be binding on all owners in that association. Minimization of Damages. In, all situations arising out of this Easement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of any other party or occupant. Agreement Shall Continue Notwithstandin Bg reach. It is expressly agreed that no breach of this Easement shall entitle any party to cancel, rescind or otherwise terminate this Easement. However, such limitation shall not affect in any manner any other rights or remedies which such party may have hereunder, or at law or in equity, by reason of any such breach. Arbitration. All questions, differences, disputes or controversies arising hereunder shall be settled by arbitration in accordance with the then existing rules of the American Arbitration Association. Such arbitration shall be conducted at the request of any party before three arbitrators (unless the disputing parties agree to one arbitrator) designated as follows: the party requesting the arbitration shall designate in writing, within fifteen (15) days of such request, the name of an arbitrator who is a member of the American Arbitration Association and knowledgeable in the issues being arbitrated. The remaining owners shall make a similar designation within the same period of time. Within twenty (20) days after the designation as aforesaid, the arbitrators so designated shall select and designate one additional arbitrator knowledgeable in the issues being arbitrated. In the event the arbitrators designated by the party or parties are unable to agree upon an additional arbitrator, then the additional arbitrator shall be designated by the Chief Judge of the District Court of Dakota County as soon thereafter as possible. A majority of the arbitrators designated and acting under this Easement shall make the award. Any such award shall be binding upon the parties and enforceable by any court exercising jurisdiction over the parties. Each party involved in the arbitration shall bear equally the expense of arbitration proceedings conducted hereunder (other than witness tees and attorneys" fees). All arbitration proceedings hereunder shall be conducted in the Minneapolis-St. Paul metropolitan area. Captions. The captions herein are inserted only for reference, and in no way define, limit or describe the scope of this Easement, or the meaning of any provision hereof. Mutual Best Interests. Not all matters governing the relations between the parties have been set forth herein. It is the intention that the easements hereby created and granted are to be used and operated in a manner consistent with the best interests of all parties. To this end, whenever a matter arises which is not covered by this Easement, such matter will be resolved, to the extent possible, in a manner which will be in the best interests of all parties, and not for the benefit of any specific party. Damage to Road. TCHFH and the City of Hastings shall repair/restore to an as-is condition as of the day before any damage to the private access road, curb and/or sidewalk lying within the Access Easement occurs to the extent such damage is caused by or results from TCHFH"s initial construction of its homes on the Benefited Property or is caused by or results from the City of Hastings' use of the Access Easement. HFHLP, TCHFH and the City of Hastings will jointly and reasonably evaluate the as-is condition of the road before the start of TCHFH construction, identity any damage caused by TCHFH or the City of Hastings or their contractors thereafter, and identify all necessary repairs and approve satisfactory completion of such repair. ARTICLE IV RUNNING COVENANTS, SUCCESSORS AND ASSIC,NS The easement hereby granted, declared and created, and the provisions hereof, shall be perpetual and shall run with the land, without regard to technical classification or designation, legal or otherwise, and be binding upon, to the fullest extent permitted by law and equity, and shall inure to the benefit of, and be enforceable as provided herein by the owner(s) of the Benetted Property and the Burdened Property and their respective heirs, administrators, successors and assigns, and all present and fuhire owners. IN WITNESS WHEREOF, the Grantor and the Grantee have caused this Easement to be executed as of the date first above written. GRANTEE: HASTINGS FAMILY HOUSING LIMITED PARTNERSHIP By: Dakota County Housing and Redevelopment Authority Its: General Partner By: GRANTOR: CITY OF HASTINGS By: Its: Mayor and By: (Print Name) Its: Executive Director (Print Name) Its: TWIN CITIES HABITAT FOR HUMANITY, INC. By: (Print Name) Its: STATE OF MINNESOTA ) ss. COUNTY OF RAMSEY) The foregoing instrument was acknowledged before me this day of May, 2007, by ,the Executive Director of the Dakota County Housing and Redevelopment Authority, a body corporate and politic and a general partner of Hastings Family Housing Limited Partnership, a Minnesota limited partnership, on behalf of said partnership. Notary Public STATE OF MINNESOTA ) ss. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this day of May, 2007, by and ,respectively the Mayor and of the City of Hastings, a Mimiesota municipal corporation, on behalf of said municipal corporation. Notary Public STATE OF MINNESOTA ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of May, 2007, by ,the of Twin Cities Habitat for Humanity, Inc., a Minnesota corporation, on behalf of said corporation. Notary Public DRAFTED BY: Larkin Hoffman Daly & Lindgren Ltd. 1500 Wells Fargo Plaza 7900 Xerxes Avenue South Minneapolis, Minnesota 55431 (952)835-3800 11033522 EXHIBIT A BURDENED PROPERTY City of Hastings Outlot A, Pleasant Acres Second Addition, Dakota County, Minnesota 11033522 EXHIBIT B BENEFITED PROPERTY HFHLP Property: Lot 1, Block 1, Hasting Family Housing, Dakota County, Minnesota TCHFH Property: Lots 1, 2, 3 and 4, Pleasant Acres Second Addition, Dakota County, Minnesota 11033532 EXHIBIT C EASEMENT AREA An easement for ingress and egress over, under and across that part of Outlot A, Pleasant Acres Second Addition, Dakota County, Minnesota described as follows: Beginning at the Southwest corner of said Outlot A, Pleasant Acres Second Addition; thence North 00 degrees 15 minutes 40 seconds West (bearing based on the recorded plat of said Pleasant Acres Second Addition), along the West line of said Outlot A, a distance of 236.10 feet to the Northwest corner of said Outlot A; thence North 89 degrees 54 minutes 02 seconds East, along the North line of said Outlot A, a distance of 46.21 feet; thence South 00 degrees OS minutes 58 seconds East, a distance of 236.10 feet to the South line of said Outlot A; thence South 89 degrees 54 minutes 02 seconds West, along said South line, a distance of 45.54 feet to the point of beginning. 1103322