HomeMy WebLinkAbout2003-07-02 Robert Brackey Ltr to OPHRobert L. Bracket'
80 E. Arlington Avenue
St. Paul, Minnesota 55117
1 Phone: 651- 488 -6113 Fax: 651 - 489 -1405
July 2, 2003
Mr. Eric Johnson
City Administrator — City of Oak Park Heights
P.O. Box 2007
Oak Park Heights, MN 55082
Dear Mr. Johnson;
I own the 6 acre parcel that lies adjacent and to the immediate west of the Menard's store
in Oak Park Heights. Menard's has applied to the City to construct an outdoor expansion
of their store on the east 3 acres of my 6 -acre parcel. As you may know, my land is
subject to a development agreement between the city and me, and one of the provisions
of that agreement requires me to submit a roadway design as part of any further
development of my 6 -acre parcel.
In p revious years, I had worked with Kris Danielson, former Community Development
Director to work out a private roadway easement design from 58 street, across my
property and across the Oak Park Ponds parking lot and exiting on Neal Street. Even
though the owner of Oak Park Ponds was required to grant a private cross - easement
across its parking lot as a condition of City approval for the Rainbow gas station, I wa
never able to obtain an irrevocable easement from the owners of Oak Park Ponds.
I attended a City staff meeting on Menard's proposal on June 18, 2003, and one of the
issues raised at that meeting concerned our efforts to obtain the Oak Park Ponds
easement. Since I cannot force the granting of such an easement, it will fall upon the
City to enforce the easement condition imposed as part of the gas station permit. (In the
absence of such an easement from Oak Park Ponds, I am willing to provide a private
roadway on my 6 acre parcel using a cul-de-sac design.)
It seems clear to me that obtaining an irrevocable easement from the owners of Oak Park
Ponds ( which is subject, in turn, to agreement by the new owners of the Rainbow store
lease) cannot be accomplished in the time required by Menard's schedule for their
expansion. I would suggest that the city defer its requirement for a roadway design until
after the Menard's expansion is complete inasmuch as the Menard's expansion requires
zero access into or out of the 6 acre parcel.
In an y event, for your reference and background, and in connection with the issues raised
at the staff meeting on June 18, 2003 concerning the private roadway across Oak Park
Ponds (Rainbow), I enclose the following documents:
Memo to Keith Ulsted, Oppidan 27, X001 � � pp idan Investment with a copy to Kris
Danielson referring to the April 24, 2001 city council meeting;
May 23, 2003 - Memo to Bob Brackey and Kris Danielson informing them of an
agreement reached with Keith Ulsted of Oppidan Investments.
November 20, 2001 w Letter to Kris Danielson informing her of the status of the Cross
Easement and our communication with Oppidan Development.
January 07, 2003 - Letter to Kris Danielson updating her on the status of the Cross
Easement.
August 15, 2003 - An additional letter to Kris Danielson giving her an additional
update on the status of the easement.
October 07.2002- A letter written to David A. Scott (attorney for Fleming), with a
cop y forward to Kris Danielson, informing Fleming why the changes they had made to
the easement were unacceptable.
If you have any additional questions or comments, please do not hesitate to give me a
call.
Sincerely,
7)
Robert L. Brackey
CC: Mark Vierling -- Oak Park Heights, City Attorney
Scott Richards --r- Oak Park Heights City Planner
MEMORANDUM
To: Keith Ulsted, Oppidan Investment Company and Robert Brackey
FROM: Jim McGovern
DATE: April 27, 2001
Re: Cross easement
At the City Council meeting in Oak Park Heights Tuesday night, Keith Ulsted and I discussed
the most efficient way to satisfy the City's condition for a cross - easement across the Oak Park
Ponds Shopping Center and Outlot A of Brackey's 2nd Addition.
Keith told me (and the City Council) that Oppidan would agree to a cross easement but would
not agree to spend any money to construct or maintain a roadway on either Oak Park Ponds or
the Brackey property. 1 told Keith (and the City Council) that Bob would also agree to a cross
easement, and would pay for any costs to construct and maintain a. roadway, but only those costs
for that portion of the roadway on Outlot A.
Based on my understanding of the comments of the City attorney, Mark Veirling, at the City
Council meeting, the cross easement condition only required Oppidan to agree to allow the cross
easement, and the issue of cost of construction and maintenance would be left to the landowners
to negotiate. Of course, the issues of Bob's consent to the cross easement and his obligation for
the costs of construction and maintenance were not technically part of Tuesday night's agenda.
It is my further understanding that Rainbow foods intends to begin construction of their fuel
service facility next week. While it appears that Rainbow can proceed with construction without
the cross easement in place, both Keith and I agreed that the time to resolve all the issues
connected with the cross easement would be now.
I therefore propose that we meet as soon as possible to work out such an agreement. It seems to
me the only open issues are costs of construction and maintenance, inasmuch as both landowners
have informally agreed to the location of the easement, 1Vlore over, since Bob will agree to pay
for the costs of the easement on his land, and since a road way exists on Oppidan's land, the costs
of construction to Oppidan (connecting the existing roadway to Oppidan's east boundary line)
should be minimal. The costs to Oppidan of future maintenance of the roadway across
Oppidan's land should likewise be minimal inasmuch as Oppidan is now obligated to maintain
the existing roadway whether or not a cross easement is granted,
With all this in mind, would each of you call me to set up a time to meet? l can be reached at
651-276-4319.
1 am sending a copy of this memo to Tom Melena and Kris Danielson at Oak Park Heights. If
any of you think I have misunderstood or misstated the situation, please let me know.
MEMORANDUM
TO: Robert Bracket' and Kris Danielson ()1 ° 4 39—
FROM: Jim McGovern
DATE: May 23, 2001
Re: Cross easem: nts for roadway across Brackey's Second Addition and
Oak Park Ponds
Keith Ulsted and I have reached an agreement on the terms and conditions of
the above- referenced easement. Under the terms of our agreement, Bob is
responsible for preparing and filing the easement with the city and county.
In order to accomplish that, our attorney needs the "as- built" survey of the
Oak Park Ponds Addition.
Keith thought that HKS .Architects prepared the Oak Park Ponds "as -built
survey ", but Don Schaeffer at H told me that he prepared the site plan,
but not the survey, and he doesn't know who did. For that reason, I asked
Kris if the City could supply us with a copy of the survey. In a later
conversation with Julie Hultman at the City, I was told that the Building
Inspector is in charge of the as -built surveys, and Kris is having difficulty
connecting with he Building Inspector, but she would contact me as soon as
she obtained the information from the Building Inspector.
As I mentioned to Kris and to Keith, I think it is important to reduce the
easement to writing and file it while the agreement is fresh in everyone's
mind and before personnel or circumstances change.
I will very much appreciate a response from the Building Inspector as soon
as possible.
ROBERT L. BRACKEY
1336 Jackson Street
St. Paul, Minnesota 55117
Phone: 651 - 488 -6113 Fax: 651 - 489 -1405
November 20, 2001
Kris Danielson
Community Development Director
City of Oak park Heights
14168 N. 57 Street
Oak Park Heights, M 55082
Re: Cross Easements for Roadway across Brackey's Second Addition and Oak Park Ponds
Dear Kris:
As you know, the City Council required the owners of the Oak Park Ponds shopping center to
grant a cross easement for roadwa3i purposes across a northern portion of its property as a
condition for the issuance of a Conditional Use Permit for the Rainbow gas station. At that time,
1 also agreed to grant such an easement across my property.
The Conditional Use Permit was granted in April, but we have been unable to obtain the cross
easement from Oppidan Development despite repeated attempts. For your reference, I enclose
copies of the following documents that reflect that effort:
1. A memorandum to Keith Ulsted of Oppidan Development Company dated April 27, 2001
summarizing our conversations following the City Council Meeting the night the
Conditional Use Permit was granted;
2. A letter from my attorney, Fred Kueppers, to me dated October 8, 2001 enclosing the
final form of the cross easement for signature.
3, A letter from me to Oppidan Development dated October 11, 2001, enclosing the cross
easement for signature, with a request that it be returned to me by October 19, 2001.
1 have not included memoranda detailing many telephone calls with Mr. Ulsted concerning this
matter. 1 do not believe there is anything further 1 can do to put the cross easement in place. Of
course, I stand ready to sign the easement as soon as 1 receive a signed copy from Mr. Ulsted.
If you have any suggestions or questions, please call me. At this point, however, I believe 1 have
done everything 1 can do to satisfy the City's request.
Very Truly Yours,
Robert L. Brackey
MEMORANDUM
To: Keith Ulsted, Oppidan Investment Company and Robert Brackey
FROM: Jim McGovern
DATE: April 27, 2001
Re: Cross easement
At the City Council meeting in Oak Park Heights Tuesday night, Keith Ulsted and 1 discussed
the most efficient way to satisfy the City's condition for a cross-easement across the Oak Park
Ponds Shopping Center and Outlot A of Brackey's 2nd Addition.
Keith told me (and the City Council) that Oppidan would agree to a cross easement but would
not agree to spend any money to construct or maintain a roadway on either Oak Park Ponds or
the Brackey property. 1 told Keith (and the City Council) that Bob would also agree to a cross
easement, and would pay for any costs to construct and maintain a roadway, but only those costs
for that portion of the roadway on Outlot A.
Based on my understanding of the comments of the City attorney, Mark Vreirling, at the City
Council meeting, the cross easement condition only required Oppidan to agree to allow the cross
easement, and the issue of cost of construction and maintenance would be left to the landowners
to negotiate. of course, the issues of Bob's consent to the cross easement and his obligation for
the costs of construction and maintenance were not technically part of Tuesday night's agenda.
It is my further understanding that Rainbow foods intends to begin construction of their fuel
service facility next week. While it appears that Rainbow can proceed with construction without
The cross easement in place, both Keith and 1 agreed that the time to resolve all the issues
connected with the cross easement would be now.
1 therefore propose that we meet as soon as possible to work out such an agreement. It seems to
me the only open issues are costs of construction and maintenance, inasmuch as both landowners
have informally agreed to the location of the easement. More over, since Bob will agree to pay
for the costs of the easement on his land, and since a road way exists on oppi dam's land, the costs
of construction to Oppidan (connecting the existing roadway to oppidan's east boundary line)
should be minimal. The costs to Oppidan of future maintenance of the roadway across
Oppidan's land should likewise be minimal inasmuch as Oppidan is now obligated to maintain
the existing roadway whether or not a cross easement is granted.
With all this in mind, would each of you call me to set up a time to meet? 1 can be reached at
651-276-4319.
I am sending a copy of this memo to Torn Melena and Kris Danielson at Oak Park Heights. If
any of you think 1 have misunderstood or misstated the situation, please let me know.
OCT-08w -2001 11:22
.ED A. NVEPPE 'tS, J'R.
Cola: M. Kh.0 E E L
JOSEPH F. Ku.EpPen.7
KUEPPERS HRCKELE UEv,
K.UEPPERS, HACKEL & KIJEFFERS
Arr o rn E'Y S AT LAW
SUITE Boa
101 EA 5T rIFTH STREET
S I PAUL, MINNESOTA 55101
(651) 226 -1104
FAX (651) 297.6599
October 8, 2001
Mr. Robert L. Brackey
1336 Jackson Street
St.Paul,MN 55117
Re: Our File No. 6S8235
Roadway Easement on Rainbow Parcel
Post -it° Fax NO 7671
Dear Bob:
• expressed concern that the draft which we submitted was set
The attorneys for Oppidan, empress ° � ng. To meet that concern we
' Deed form, and that may have been on a Quit Claim bn m
have redrafted edrafted the easement so that it is clearly not a Quit Claim Deed, but is simply a grant of a
non-exclusive easement for roadway, copy and
oadwa , A y of the new is enclosed for your review an
�
approval..
We have also updated the Consent and Subordination forms which must be signed. by Fleming
Companies and by First National Bank of Omaha.
• this, there must be a further request that Oppidan Oppidan, Inc. is willing to go forward with x
pP First National Bank of Omaha sign the Consent forms. arran e to have Fleming Companies and Easement.
g attached to it a
Each of those forms must have attic photocopy of the signed Grant of Ease F
attome s for Oppidan, Inc., they also suggested that
In our telephone conversations with the attorneys P suggested a rovitl
s be handled in the easement document. In particular, they sug$
some other' detail b � little portion of roadway neca
you, as the beneficiary of the easement, would install the i
soon that y � connects to our property. How-
t make the easement useful at its Eastern end, where
c y + P
essary o
. unnecessary from Oppidan's point of view, because this
ever that provision teems to us to be �' with re-
obligation of Oppidan to do anything ation on the part o
Grant of Easement does not create any g � future maintenance. It is
t strip, or the installation of surfacing or curbing or fu
gird. to the Basemen p}
• easement, Anything n which you will have to do to make the easerneut
simply a simple grant of an Bayern � g will y been promised by Oppidan, and therefore w�ii have to
useful (such as a connecting link) has not �e P �' p
be your own responsibility.
Mr. Robert L. Brackey
October 8, 2001
Page Two
Plcme call us if there are questions about this, and let us know when we are to submit it to
� l
Oppidan.
FA.5 rlpmt
Enclosures
Very truly yours,
KIJEPIp. ;'HACKEL KUEPPERS, P.A.
By-
GAT OF NON- EXCLUSWE ROADWAY EASEMENT
FOR VALUABLE CONSIDERATION, ICU Limited partnership Eleven, a limited part-
nership under the laws of Minnesota, Grantor, hereby grants to Robert L. Brackey, Grantee, a
permanent non - exclusive easement for roadway purpose over and across those portions. of the
lands described below, which lie wholly within Lot 2, Block 1, Oak Park Ponds, to -wit:
Those parts of Lot 1, Block 1, JACOB ADDITION, and Lots 1 and 2, Block 1,
OAK pART.< PONDS ADDITION, according to the recorded plats thereof,
Washington County, Minnesota, described as follows:
Commencing at the northwest comer of said Lot 2, dock 1, OAK PARK PONDS
ADDITION, said corner also being the southeast corner of said Lot 1, Block 1,
JACOB ADDITION; thence on an assumed bearing of North 35 degrees 46 min-
utes 15 seconds East, along the west line of said Lot 1, Block 1, JACOB
ADDITION, a distance of 8.95 feet to the point of beginning of the land to be de-
scribed; thence South 54 degrees 06 minutes 00 seconds East a distance of 5767
feet; thence North S9 degrees 58 minutes 35 seconds East a distance of 591.91
feet; thence North 64 degrees 54 minutes 34 seconds East a distance of 63.42 feet
to the northeast comer of said Lot 2 Block 1, OAK PARK PONDS ADDITION;
thence South 02 degrees 00 minutes 03 seconds East; along the east line of said
Lot 2, Block 1, a distance of 83.11 feet; thence North 69 degrees 43 minutes 54
seconds West a distance of 63.99 feet; thence South 89 degrees 58 minutes 35
seconds West a distance of 5 64.3 5 feet; thence South 35 degrees 54 minutes 00
seconds West a distance of 55.81 feet; thence North 54 degrees 06 minutes 00
seconds West a distance of 100.0 feet to the west line of said Lot 1, Block 1, OAK
PARK PONDS ADDITION; thence North 35 degrees 46 minutes 15 seconds
East, along said west line of Lots 1 and 2, Block 1, OAK PARK PONDS
ADDITION and Lot 1, Block 1, JACOB ADDITION, a distance of 80.00 feet to
the point of beginning.
The easement granted hereby is intended to become and be an appurtenance to Outlat A,
Brackey 2nd Addition in Washington County, Minnesota.
Dated: October , 2001.
STATE OF MINNESOTA )
ss
COUNTY OF HENNEPIN
THIS INSTRUMENT WAS DRAFTED BY:
Kueppers, Hackel & Kueppers, P.A.
Attorneys at Law
Suite 800
101 East Fifth Street
St. Paul, MN 55101
(651) 2281.104
KT,I LIMITED PART ERSHIP ELEVEN
By Oppidan, Inc,
Its Sole General Partner
By
Keith A. Ulstad
Its Vice President
This instrument was acknowledged before me on October 2001, by Keith A. Ul-
stad, as Vice President of Oppidan, Inc. the sole general partner of K.TJ Limited Partnership
Eleven, a limited partnership under the laws of Minnesota on behalf of the limited partnership.
Notary Public
2
U 1" eil i-i•c
CONSENT AND SUBORDINATION
First National Bank
of Omaha, the owner and holder of that certain mortgage executed by
KT.1 Limited Pp
artnershi Eleven as Mortgagor, to First National Bank of Omaha as Mortgagee,
dated June 26, 1997
and recorded in the office of the County Recorder for Washington County
Minnesota on June 27,
1997 as Document No. 636159, does hereby evidence its consent to the
easement granted by Mortgagor d said Mort a or to Robert L. Brackey by an instrument dated October
2001, a copy
of which is attached as Exhibit A hereto; and does further provide and agree
that its rights, , � `tie s and interests as said Mortgagee shall be and are subordinate to the interests
and rights granted by said grant of easement.
Dated: This __-- day of October, 2001
THIS INSTRUMENT WAS DRAFTED BY:
Fred A. Kueppers, Jr., Esq.
Kueppers, Rachel Kueppers, P.A.
101 East Fifth Street, Suite 800
St. Paul, MN 55101
(651) 228-1104
FIRST NATIONAL BANK OF OMAHA.
By:
Its:
Notary Public
STATE of NEBRASKA )
ss
COUNTY OF )
in.s�xent was acknowledged before nee this day of October, 2001,
The foregoing
by
the — of First National Bank of Omaha,
on behalf of said Bank.
U I -- Ob c i �. I
CONSENT AND SUBORDINATION
Fleming Companies, I an Oklahoma corporation, the Lessee under that certain Lease
• d Partnershi Eleven as Lessor and Fleming Companies, Inc. as Lessee,
between ICU Limited p
dated June , Washington 1 1997 and recorded in the office of the County Recorder fo r g County,
,
27 1997 as Document No. 936161, dDes hereby evidence its consent to the
Minnesota on June
easement granted by said Lessor to Robert L. Brackey by an instrume nt dated october .
. `s attached as Exhibit A hereto; and does further provide and agree that its
2001, a copy of which �
rights, titles, �
'tles and interests as said Lessee shall be and are subordinate to the interests
and rights
granted by said grant of easement.
Dated: This day of October, 2001
STATE OF OKLAHOMA )
ss
COUNTY OF )
by
behalf of said Corporation,
r.UL r t .
THIS INSTRUMENT WAS DRAFTED BY:
Fred A. Kueppers, Jr,, Esq.
Kueppers, iackel Kueppers, P.A.
101 East Fifth Street, Suite 800
St. Paul, MN 55101
(651) 2284104
Notary Public
FLEMING COMPANIES, INC.
By:
Its:
The foregoing instrument was acknowledged before me this . day of October, 2001,
g g
the of Fleming Companies, Inc. on
TOTAL P.6E
October 11, 2001
Keith Ulsted
Oppidan Development Company
5125 County Road 101
Suite 20Q
Minnetonka, Minnesota
Dear Keith:
ROBERT L. BRACKEY
1336 Jackson Street 4 4 St. Paul, Minnesota 55117
Phone 651 - 488 -6113 4 Fax 651 - 489 -1405
Re: Cross easements for roadway across Brackey's Second Addition
and Oak Park Ponds
It is my understanding that our attorneys have disagreed on the form of the
easement over Oak Park Ponds, and the costs associated with preparing and
signing the easement and the future maintenance and construction of the
roadway itself. It is my further understanding that you told Jim McGovern
that your primary concern was the farm of the easement and the cost of
preparing and signing the easement document.
For these reasons, I have redrafted the easement document so that it is
clearly not a Quit Claim Deed, but is simply the grant of a non-exclusive
easement of a roadway. A copy of the new draft is also enclosed and must be
signed by Fleming Companies and by First National Bank of Omaha. Each
of these forms must have attached to it a photocopy of the signed Grant of
Easement.
You will notice that this Grant of. Easement does not create any obligation
on the part of Oppidan or the fee owner to construct or maintain the
easement strip. Obviously, neither Oppidan nor the fee owner has prornised
anything that 1 must do to make the easement useful. From my viewpoint,
the enclosed documents merely reflect your agreement to grant a roadway
easement imposed as a condition to obtaining the Conditional Use Permit for
the Rainbow gas station.
Keith Oppidan
October 1l, 2001
Page two
I am aware that your agreement to grant the easement assumed that the
easement would impose no other obligations or costs on your company or
the fee owner. The enclosed documents meet that standard. You may incur
intangible costs in reviewing these documents and circulating them to
tenants and mortgage holders for signature, but I do not think that those
costs can be considered to be a violation of your agreement. In any event, 1
am unwilling to pay those costs.
Please let me know if you're willing to have these documents signed as
drafted by Friday, 19, 2001 o If I do not hear from you, or if you are
unwilling to have there signed, I will merely forward a copy of this letter to
the City staff, and I will consider my obligation in the matter complete.
Thank you for your efforts in this mater.
Sincerely,
c I,t .J
Robert L. Brackey
January 7, 2002
Kris Danielson
City of oak Park Heights
14168 57 Street North
P.O. Box 2007
Oak Park Heights, Minnesota 22082
Dear Kris:
RO MT L. BB KEY
956 Prosperity Avenue 4 4 St, Pau!, Minnesota 55103
Phone 651-458-6113 4 Fax 651-489-1405
Re: Cross easement across Brackey's Second Addition and Oak Park Ponds
For your information, and to update your office on the status of the above captioned
matter, I enclose the following correspondence:
1. A letter dated December 19, 2001 from me to Keith Ulsted requesting him to send us
a cross easement agreement in a form that is agreeable to him and with an offer to pay
his attorneys fees for the cost of preparation;
2. A letter dated December 20, 2001 from my lawyer, Fred Kueppers, to Mark Vierling
stating our position on the terms of the cross easement, in response to a letter from
Mark dated December 4, 2002, a copy of which has been sent to you.
Please note that 1 asked Keith to send me his proposed agreement by December 31, 2001
or 1 would assume that he was not interested in an agreement on any terms. Of course,
that date has now passed, and Keith has not responded.
It appears that my only recourse is to proceed with an application to replat Brackey's
Second addition with a cue de sac design for 58 Street ingress and egress. If you have
any other suggestions, comments or questions, please call me.
Thank you for your assistance in this natter.
Sincerely,
%U;t
Robert L. Brackey
December 19, 2001
Keith Ulsted
Oppidan Development Company
5125 County Road 101
Suite 200
Minnetonka, Minnesota.
Dear Keith:
ROBERT 1 !MACKEY
1336 Jackson Street 4 it St. Paul, Nilinnesota 55117
Phone 651-488-6113 4 Fax 651-489-1405
Re: Cross easements for roadway across Brackey's Second Addition
and Oak Park Ponds
In my lever to you dated October 1 1, 2001, I enclosed copies of a supple
grant of easement that imposed no obligations on your company other than
the cost of review and signature. In that letter, I also informed you that if you
were unwilling to sign the easement, I would advise the City of Oak Park
Heights that I would consider my obligations in the matter compete. The
easement, as drafted, remains unsigned.
Since that time, of course, your lawyers have requested that the easement
include provisions concerning the cost of future construction, future
maintenance and your attorney's fees. It was my previous understanding
that you and Jim McGovern had agreed that you would pay for the cost of
fixture maintenance of the existing roadway on your land because you would .
have that expense anyway. I will pay the cost of constructing any extension
of the existing roadway on your land. You did not request that I pay your
attorneys fees until after my October 1 lever.
I have also received a letter from Mark Vierling dated December 4, 2001
addressed to your attorney and mine that suggests that my property is
primarily benefited by the proposed easement and that the City would not
require your company to incur "any cost" in the "placement or maintenance"
of the easement.
Keith Oiiidan
December 19, 200]
Page two
My position on these issues has not changed. First, the easement is no more
beneficial to my and than a cul- de -sa.c roadway totally contained on my
land. in fact, I prefer such a design. The City wants ingress and egress to
my land through your land. Second, 1 am uncertain as to what you now want
incl.uded in the easement a.greeme.nt. After reading your lawyer's letter to
Mark Vierling dated November 26, 2001, it now appears that we do not have
agreement on any issue, including the "scope" of the easement.
Under the circumstances, then, I ask that you prepare an easement that your
company, as owner, would sign. I am willing to pay the new construction
costs that I previously agreed to pay, as described above, and I would also be
willing to pay your attorney's fees in an amount not to exceed 53,000 (if and
only if, an easement is actually signed).
If this is not acceptable to you, please so advise me by December 3 1, 2001.
If I do not hear from you by then, I will assume you are unwilling to enter
into an easement on these terms.
'hank you for your attention to this matter.
Sincerely,
Robert L. Brackey
CC: Mr. Mark Vierling
Oak Park Heights City Attorney
Dt.L. u -- -eou i i z) rtiutrrt�'� ����r.t� rutr' rH
FEED A. H UEPPERS, JR.
0.63.1 1
41OSEPII F. V L'' 'PPEyiS
Mark J. Vierling, Esq.
Eckberg, Lammers, Briggs, Wolff & Vierling, PLL
1835 Northwestern Avenue
Stillwater, MN 55082
Dear Mark:
KTJEPPERS, HACICEL Kr_TEPP:ERS, ID, A
ATTORNEYS AT LAS,.
SUITE 800
101 EAST Firm STREET
S 1YT PAUL, MINNESOTA 55101
(651) 226 - UU04
FAX ( 51) 267
December 20, 2001
r
f
teW Co* till E T
�a - Fax Nate 7671
Re: Our File No. 6882-35
Cross easements for roadway across Brackey's Second
Addition and Oak Park Ponds
b .i 1
bate r2r,/
Fry
Phone it
Thank you for your letter dated December 4, 2001 concerning the above- captioned matter. In
your letter, you suggest that the owner of the affected properties "reinitiate" conversations to
whether the placement of such an easement" can now be agreed upon_
Mr. Brackey's difficulty in reaching an agreement on the easement turns on his inability to de-
termine Oppidants position on the issues that you identify in your letter. Mr: Brackey understood
that Oppidan had agreed to pay for the cost of future maintenance of the existing roadway on its
land because it would have that expense anyway. Mr. Brackey was always willing to pay for the
cost of constructing any extension of the existing roadway on Oppidan land. Mr. Brackey is also
now willing to pay Oppidants attorneys fees up to $3,000, and has so advised. Mr. Ulsted. Mr.
Brackey has requested Oppidan to send him a proposed easement that would incorporate these
provisions.
Mr. Brackey does not believe that the placement of the proposed ea rent "clearly serves the
R
benefit of his property" to the exclusion of Oppida 's property, as you state in your letter. The
easement would be clearly beneficial if the only ingress and egess to the Brac:key parcel would
be through the proposed cross easement. In fact, Mr. Brackey believes that a cul-de-sac drive-
way wholly contained on his land and accessing 58th Street not only serves the same purpose as
the proposed easement, but also is a superior design. City staff has suggested and recommended
the proposed cross easement.
DEC-20 15:33 KUEPPERS HRCKELaKUEP PR
Mark J. Vier ling, Esq.
December 20, 2001
Page Two
In the circumstances, Mr. Brackey seeks to accommodate the Citygs wishes, but is unwilling to
pay for future maintenance costs on an existing roadway wholly 10 attd on someo else's l
That is coupled with the fact that Mr. Brackey Mil b p the mrainten rice costs for the po "
��'}} the roadway which C'� � 1� will � 1 � Cd T 1 �L construct Y n � ►+4> his land for �t I � �'�� t � Y u use, t n f� `F k t � y�.+s�
ti on of the F C= ad T� .a� �i � hich hw r e ill ha Y e to cons ruct on his laLYd for co L.I uni L 7 includin W
users on the Oppida i parcel. We do not Ind his position =reasonable.
We will keep you informed about the negotiations, but Mr. Brackey reserves the right to request
a design for traffic and circulation patterns which is different from the. cross easement now under
consideration.
F A,.j r /prat
c: Mr_ Robert L. Brackey
ackey
Very truly yours,
KUEPPERS, - HAMEL & KUEPPERS, P.A,
B
b 1 c k:.) C. f t )C.
TOTAL P,02
[ Phone: 651-488-6113 Fax: 651-489-1405
TO:
if
COMPANY NAME:
/7 I FAX FAX NUMBER: DATE:
-
FROM:
NUMBER OF PAGES INCLUDING FAX COVER SHEET:
COMMENTS: ,/),
•
ROBERT L. BRACKEY
956 Prosperity Avenue
St. Paul, Minnesota 55106
FAX COVER SHEET
•
Le-e•
iv
, f 1 :1
i t
y
August 15, 2002
Dear Kris:
Kris Danielson
City of Oak Park Heights
14I68 57 Street North
F.O. Box 2007
Oak Park Heights, Minnesota 22082
11 EMIR KEY
956 Prosperity Avenue 4 + St. Paul, Minnesota 55106
Phone 651 - 488 -6113 4 Fax 651-489-1405
Re: Cross easement across Brackey's Second Addition and Oak Park Ponds
Since our last letter to you concerning the above referenced matter, Jay Mohr has
replaced Keith Ulsted at Oppidan Investment, and the mortgage lender on the property
has consented to the Bross easement. The only interested party that has not yet consented
to the easement is Fleming Foods, parent of Rainbow Foods.
Jay informed me last week that he had sent the easement documents to Fleming for their
signature, but . Fleming would not sign the easement until they reviewed minutes of the
Aril 8, 2001 Oak Park Heights City Council meeting, Apparently, Jay told Fleming that
consent to the easement was one of the conditions imposed by the Conditional Use
Permit and Fleming wanted to verify that fact.
I believe I have done everything I can and everything the City wanted me to do in
connection with this easement issue, but Z would appreciate it if you would send me a
copy of the City Council minutes that pertain to the cross easement for my further review.
If I am correct in my assumptions, though, the only way that the cross easement can be
filed is if the City notifies Jay Mohr and Fleming Foods, formally or informally, that
Fleming has not complied with the terms of the conditional use permit for the Rainbow
gas station.
In any event, let me know what you think. (I think Fleming continues to believe that the
cross easement is a condition that I imposed on them, which is of course incorrect.)
Thanks for your attention to this matter.
Sincerely,
Robert . Brackey
2 ED A, KU EPEES, JR.
Your , R&C E L
JOSEPH F_ li ]'LPPERS
FAj rlpmt
Enclosure
c: Robert L. Brackey
Kris Danielson
Jay Moore
1 ,-/ L...1 1 L_.1 \ .r I 1
Dear David:
KUE FF.tLRS, HACKEL 8c KUEPPE
itZTORNEYS AT LAW
David A. Scott, Esq
Morrison Fenske Sund, P.A.
5125 County Road 101, Suite 102
Minnetonka, 1\41.4 55345
SUITE 800
10! EAST FIFTH STREET
SAINT SAIN7 PAUL, MINN!SOTA 55101
(6S1) 2C8 11Q4
FAX 050 297-6559
October 7, 2002
Post -it* Fax Not 7871
L- J I 4J r: J J S • S--I A•
Re: Our File No. 6882.35
Easement Agreement between ICTJ Limited Partnership Eleven,
as Grantor, and Robert L. Brackey, as Grantee
We have received the Roadway Easement executed by all parties, including both the First Na.
tional Bank of Omaha and Fleming Companies, Inc. We are concerned about the
Consent at
tached by Fleming.
Fleming did not sign the Consent and "Subordination" document which we had submitted; Flem-
ing rewrote the document and effectively provided that its rights a Tenant will
� be paramount
to the rights granted by the easement. That is not acceptable. We enclose a copy of t
form signed e � py the Consent
by Fi ruing.
Will you please review this situation with your client, and take the necessary steps
needed Consent signed �s to get the
signed by Fleming.
Very truly yours,
KUEPPERS, HACKEL KUEPPERS, P.A.
By-
OCT-07-2002 15:56
KUEPPERS HPCKELaKUEP , PA
CONSENT
Fleming Comperes, Inc. ( "Fleming an Oklahoma corporation, . the Lessee
certain Lease between KT J Limited Partnership Eleven, as Lessor, and Fleming
as e se recorded or��3�e� Inc, �
Lessee, dated June 13, 1 997 and reco ded in the office of the County Recorder for � o r Washington
County, Minnesota, on June 27, 1997 as Document No. 936161 "Lease"), " �� s hereby
consent to the execution and delivery of the Easement Agreement between KTJ Limited
Partnership Eleven, as Grantor, and Robert L. Bracke to this '
�f o which Consent I s attached, provided Fleming's rights under the Lease shall not be adversely ffected
� by such Easement
Agreement.
STATE OF
COUNTY OF a
QBMKR5291017, I
FLEMING C0MPANEE , INC.
Its: _
The foregoing instrument was acknowledged before me this day
002, by � ..., th,e
of 'le ing
Companies, Inc., on behalf of said corporation,
CASEY BAILEY
Notary Pubic, State of Texas
My Commissi,n Expires
.....:�.. P
6512976599 P.02/02
TOTAL P.02
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