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2009-05-06 Declaration of Easement & Maintenance DECLARATION OF EASEMENT AND MAINTENANCE OBUGATIONS THIS DECLARATlO'n~ BASEMENT AND MAlNTBNANCE OBUGATIONS (this "Declarationtt) is made this day of May, 2009, by WBLLBRSON, UJt, a Minnesota limited liability partDcrship ("Dccl8l8D.ttt). REelT ALS WHBREAS, Declanmt is the owner of those certain parcels of real property in the County of WriaJtt, State of MiDnesota, lelally described as Lots I, 2, and 3, and Outlota A and B, Niemeyer Trailer Sales, acamting to the plat of record in the Wright County Reconler's Office, Wriaht County, MiDnesota (the "Subject Property"); WHEREAS, Owner desires to CIeate certain easements, rights and obliptions with r5pect to the Lota (defined below) located on the Subject Property to provide for the mainten,oce of various storm sewer and drainage facilities and the mainteDance of a private street located on the Subject Property; NOW, 11mREFORB. in considaation of the foregoing, the parties do hereby grant, impose, create and establish the easementa and covenants, set forth below. ARTICLE I DefIDItIoDs Soction 1.1 ~. Tho tcml UCity>>' shall mean the City of Albertville. Minnesota , a public body corporate and politic. Section 1.2 Devol~t Apeement. The term "Development Ageement" means that certain City of Albertville P18D1led Unit Development Agreement dated ~q between tho City, Declarant and Ground Lessee. ~. Section 1.3 Drai~~ And Storm Sower Facilities. The term "Drainage and Storm Sower Facilities" shall mean any and all storm water ponds, infiltration basins, retaining walls, eJrainaae swales, emergency overflows and storm sewer systems and any accessory devices appurtenant and/or accessory to such facilities and systems located OD tho Subject Property. Section 1.4 Effective Date. The "Effective Date" is the date first set forth above, upon which dato all tenDS and conditiODS of this Declar8ti0ll1l'C in full force and effect. Section 1.5 arolnvl Lease. The term "Ground lase means that certain Ground Lease Agreement between Decluant, as ground lessor, and Ground Lessee dated September 18, 2008. Section 1.6 nmnnd Lessee. The term "Ground Leaaec" means Niemeyer Properties, ~, a Minnesota limited liability company. Section 1.7 Lot and Lots. '1bc term "Lot" shall mean: (i) initially, each of Lots 1,2,3. Outlot A and Outlot B of the Subject Propaltyi and (Ii) tbtnafter, IS and at such times as such Lots may be further subdivided, a separately subdivided parcel of land within the Subject Property. Section 1.8 Lot 3 Owner. The term "Lot 3 Owner" shall mean the record owner, whether one or more persons, of a fee simple interest in that c:ertaiD. parcel of land 1cp1ly described as Lot 3, Block 1 Niemeyer Trailer Salea ('CWt 3", but excluding in all casca any party holding such an interest as security for the performance of an obligation. Section 1.9 ~ant. The term "Occupant" shall mean any Person from time to time entitled to the use and occupancy of any portion of any Lot. including the Owner of such Lot, the employees, lessees, guests and invitees of such Owner or the employees, lessees, guests and invitees of such lessees. Section 1.10 Owner. The term "Owner" shall mean the record owner from time to time. whether one or more Persons, of a fee simple interest in a Lot, but excluding in all cases any party holding such an interest as security for the performance of an obligation. Section 1.11 Emx. The term ''P8rty" refers to any Owner IIIld their respective successors and assigns. Bach Party shall be liable for the performance of all covenants, obligations and undertakings herein set forth with respect to the Lot owned by it which accrue during the period of such ownership, and such liability shall continue with respect to any portion transfeD:ed until the notice requirement set forth below is complied with. at which time the transferring Party's liability for future obliptions aball tenrJi"atc. Section 1.12 Person. The term "Person" shall mean an individual, corporation, partnership, limited liability company, trust or other legal entity. Section 1.13 Private Street. The term "Private Strm" means Outlot A. Niemeyer Trailer Salea. ARTICLED GRANT 01' EASEMENTS, MAINTENANCE Section 2.1 Onmt of Basement. The Owner of Lot 3 hereby grants, for the benefit of Lots 1 and 2, a non-exclusive oaaemeDl and covenant for the drainage of water upon. and retention of water within that portion of Lot 3 shown on Exhibit A attached hereto and made a 8354O-OOI\I55861.doo 2 part hereof designated as "Depression Area", "Pond I," "Pond 2" and related storm sewer pipiDa (c::ollectivcly, the "Retention Area") subject to the terms and concIitiODS hereof. The Lot 3 Owner shall. at its sole COlt, excavate and grade the Retention Area in ICCOl'dance with the Development Apeement and all applicable laws, codes and ordinmces and install related storm water piping, and thereafter, operate and tnaintRin the drainage and retention facUities OIl Lot 3 in IlCCOIdance with all applicable laws, codes and ordb1lucea. Upon the substantial completion of such excavation. gradina, and storm water piping installation. no Owner shall alter or permit to be altered the c:ootoun aDd depth of the Ietention parcel facilities in the Retention Area or otherwise on the Subject Property. A perpetUal, non-exclusive easement and covenant is hereby granted and established by Declarant. to and for the benefit of the Subject Property. over, across and under the Subject Property for the purpose of ingress and egress for maintenance and repair of the Drainage and Storm Sewer FacUities. Soction 2.2 ),fa1ntJmance Obliptiona. The Lot 3 Owner shall perform all maintenance. repair and replaccmcnt of the Drainage and Storm Sewer Facilities. Bach Owner shall reimburse the Lot 3 Owner for the cost of the Work (the "MaiDtenance Costs"). The Lot 3 Owner may bill each Owner for the coat of the Wort, from time to time. whcm such costs are incurred. Each such bill shall be itemized and shall include copies of such invoices or other source documents 1eU0nably necessary to verify the nature and amount of such coats. Payment of each bill shall be due within thirty (30) days after the date of delivery thereof. The Lot 3 Owner may ioclucle. as a coat of the Work. an "Administrative Charge" not to exceed five percent ('~) of the costs of said Wotk. which charge sball be in lieu of any other charge for JDIlD&&CIIlfA1t. adminiAtration. supervision. ovedJ.cacl or profit or similar item. The term "W0lk" shall mean any construction, iDstallation, mainteuance. repair, cleaniDg, replacement. alteration, modification. demolition. IeCODStrUCtion or reiDstaUation of any Drainage and Storm Sewer Facilities. Section 2.3 P1q)ortinn8M Sh~ of Ma;nten811Cf!l Coata. The Mainteoance Costs shall be allocated to, and paid by, the Owner of each Lot based such Lot's Proportionate Share. The initial proportionate share of cac:h Lot is Lot 3, SO~, Lot 1, ZS,*, and Lot 2, ZS~ (the "Proportionate Share"). ARTICLE m PRIVATE STREET Scction3.1 MaiD1:f!n~ The Lot 3 Owner shall mltwmn and repair the Private Street in a commercially reasonable manner. All reasonable costs and expcases incurred by the Lot 3 Owner in paying real estate taxes on Outlot A and performing the mainteDance and repair obligations set forth in this Section 3.1 shall be defined herein. collectively, as the "Private Street MamterJ.-nce Costs". The obligation to share in the payment of the MainteDanCe Costs shall be allocated as fonows: (a> The Mainf8n8nce Costs shall be alloca1ed to, and paid by, the Owners of each Lot that has acc:ess to the Private Street in accordance with each such Lot's respective Proportionate Share. IJ354O.ClOt--.doo 3 (b) Periodically, (but not more frequently than once per calendar quarter) the Lot 3 Owner shall provide each 0wDcr with an invoice designating the total amount of Maintenance Costs incurred for such period and the amount of such Owner's Proportionate Share thereof. Bach such Owner shall reimburse the Lot 3 Owner for such Owner's Proportionate Share of Maintcuance Costs within thirty (30) days after receipt of such invoice. Section 3.2 Termination. The obliaatiOl18 of the Parties pursuant to this Article m shall termin.tf! as of the date the Private Street is dedicated to the City pmuant to the Development Agreement and accepted by the City. ARTICLE IV PP4ULT: F.4.n..!JRR TO PAY AMOUNTS DUE. Section 4.1 Default. If an Owner fails to mate any payment when due to the I.Dt 3 Owner, as required under this Agreement. and such failure continues for a period of fifteen (IS) days after written notice by the Lot 3 Owner, then the Owner failing to make such payment shall be in default of this Ageement. Section 4.2 Default: Failure to Perfopn: Self-He1p Remedy. If an Owner fails to perform or comply with any term. condition or obligation of this Agreement, other than a payment default pursuant to Section 4.1 above, and such failme continues for thirty (30) days after receipt of written notice from any other Owner (or such longer period as may be reasonable under the circumstances if the failure caDDOt be CUIed within thirty (30) days and the Owner failing to perform commences to cure within such time period aud diligently and continuously prosecutes such cure to completion), then the Owner failiDg to perform shall be in default of this Agreement. Upon such default, the Owner providiDg written notice hereunder may proceed to cure the default by payment or performance. The defaulting Owner shall imm~iately reimburse the Owner curing the default for all reasonable costs and expenses incurred to cure the default. The thirty (30) day notice period shall not be required in the event of an emergency condition. in wbich event the OWDel' curing the default shall give whatever notice is reasonable under the circumstances. Nothing contained in this Section shall create any obligati~ on the part of any Owner to exercise the rights granted herein or perform another Owner's obligations. Section 4.3 Reimburs~t. Lien Richts. An Owner shall have a lien in its favor upon the Lot of an Owner who is in default of this Agreement to secure all amounts payable hereunder. The lien shall attach upon filing or recordina of a notice or statement thereof in Office of the County Recorder of Wright County. Section 4.4 Costa and Attornevs' Fees. In the event any Party shall institute any action or proceediDg against another Party relating to the provisions of this Declaration. or any default thereunder or to collect any amounts owing hereunder, or an arbitration proceedinS is c:om~ by agreement of the Parties to any dispute, then and in such event the unsuccessful litigant in such action or proceeding agrees to reimburse the successful litigant in such action or ~i"g for the IC8SOnable oxpeoses of attorneys' fees and disbursements incumcl therein by 8SS400001\85S161.c1oc 4 the 8uccessfullitigant. including such costs and expellses incumd in connection with any such action or pI'OCeefting and any appeals therefrom. Section 4.S Remedies. All remedies are cumulative and shall be deemed additional to any and all other IeJDCdies to which an Owner may be entitled to at law or in equity. Bach Owner shall also have the ri&ht to restrain by injunction any violation or threatened violation by another of the terms, covenants or oonditiOllS of this Agreement. or to obtain a decree to compel perfOl'DW1Ce of any such term, coveDIDt or condition, it being agreed that the remedy at law for a breach of any such term. coveDaDt or condition (except those, if any, requiriDa the payment of a liquidated sum) is not adequate. No default UDder this Agreement shall entitle any Person to cancol. resciDd. or otherwise termin* this Asreement. Notwithatendblg anythiq to the contrary contaiDcd herein, in the event an Owner recovers a money judgment against a defaulting Owner undor this Agreement. the Juttpeot shall be satisflecl OIIIy out of the right, title and interest of the defaultina Owner in the Property; provided that the foregoing shall DOt limit any right that an Owner might have to obtain iqjunctive relief or to maintain any suit or action in connection with the enfOlCelDellt or collection of damages to the extent that such damages lie payable under policies of liability iDaurancc TrIIintaiPOd by an Owner. Bach Owner aarees that there shall be no individual liability of any partners, officas. directon, shareholders or employees of an Owner with respect to any cl8ima under this Apeement and expressly waives any and all rights to proceed against such parties. ARTICLE V NO LIENS Section S.l lJa. No Party (for purposes of this Section 3.1. a ''ContractiD& Party") shall permit, cause or suffer any mechauic's or materialmen's lien to be filed against any other Lot in connection with or 88 a result of any work performed or supplies provided at the behest of the Contracting Party. Without limiting the foregoing, if any such lien is filed, the Contracting Party pemntting, causing or suffering such lien to be so filed sha1I cause the lien to be discharged within fifteen (IS) days after entry of fiDaI judgmePt (after all appeals) for the foreclosure of the lien. Upon request of any Owner whose Lot is subject to a filed mechanic's or materialmen's lien, the ContractiDg Party permiUiDa or causing such lien to be so filed shall cause the lien to be reIcued and discharged of record. either by paying the iDclebtcdneas which gave rise to the lien or by poating a bond or other security 88 IeqUired by law to obtain such release and discharge. Proviclecl that such Contractina Party 80 posts such bond or other secu.rity. the ContractiDg Party sba11 have the right to contat the validity, amount or applicability of any such lien by appropriato proceedings SO long 88 it diligently prosecutea the canteat in good faith to conclusion. The ContractiDg Party agreea to defend, iJvIP.mnify and hold the Owners and their Lots harmless from and against all claims, costs, liabilities and expenses. including reasonable attorneys. fees. arising out of or reau1tiDg from such lien. ARTICLE VI CITY'S RlGHI'S Section 6.1 Default: Ripta of Ci\y of Albertville. The parties acknowledge and agree that this Declaration is subject to the Development Agreement. If the City believes that the Lot 3 lm4OoQOl\8SS8A.cIoc S Owner bas not performed its obliptioDs pursuant to the Development Asreoment, the City shall live thirty (30) days written notice of such failure (the "Default Notice") to the Lot 3 Owner. If such default is not cured within thirty (30) days after receipt of the Default Notice, the City shall have the ript, but not tho obliptioa. to enter onto the Subject Property and cure such default. Tb.e City may specially asSClIS the Lots, to collect any amounts due to the City in connection with ita cure of a default pulluant to this Section 6.1. ARTICLE VII PERFORMANCE BY GROUND LESSEE Section 7.1 Perform811Cl! by ~ Lessee. It is understood md agreed that all obligations of Declarant and the IAt 3 Owner under this Apement shall be performed by Ground Lessee and DO Owner or any other Person shall have the right to enforce any of the terms of this Declaration against Declarant until such Owner or other Penon has served notice of dofault upon GroUDd Lessee and Ground Lessee has failed to cure such default within the time period permiucd by this Declaration. If, at any time, Ground Lessee purchases the Subject Property from DeclIl'8Dt, Declarant shall be released from its obliptiODS and the obligations of the Lot 3 Owner under this Apement as to matters arising from and after the date of the conveyance to Ground Lessee. ARTICLE vm MISCELLANEOUS Section 8.1 J)indn.r BfJcct: CowmantA Runnin, With l~ Except as expressly set forth herein, the easements, covenants, conditiODl and restrictions described and set forth in this Declaration will be perpetual from. the Bffective Date, UDlesa subaequcntly tenDiDatcd or amended by the un..umous written agreement of the Owners of the Lots and with the ccmaent of the holders of all mortaages, doeda of trust or similar security instruments of !eCOId with respect to such Lots. Except 18 set forth above. DO such termination or amePdment shall require the signature or CODSeI1t of any other Penon, includiDg without limitation, any tenant, subteDaDt or licensee of any portion of the Subject Property. It is the intention of the Parties that the rights and oblisations set forth in this Declaration be construed and CDforced as covenants numing with the Lots described herein, and that they be biDding upon and inure to the benefit of the Owners from. time to time of such Lots and their respective heirs, ropescntatives, successors and assips. Notwi~i~1 any other provision of this Declaration, DO Person shall have any obliption 01' liability under this Declaration except to the extent such obligation or liability arises or accrues during the period of ownership by such Penon of lep! or equitable title to all or any portion of the Subject Proparty. Section 8.2 BnforceabUity. The provisions of thia Declaration are for the benefit of the Owners of Lots as exprcasly set forth herein. No Occupant or other Person (except the Owners and theJr ID01'tppe8 and the City of Albertville) shall have any ripts to enforce, or be deemed a third party or other intended or lmintlonlWl beneficiary of, any of the provisiODS contained herein. Section 8.3 Severability. Invalidation of any of the provisions contained in this Declamtion, or of the application thereof to any Person, by judgment or court order. ahal1 in no 8354Q.OO1\J15S861 doc 6 way affect any of the other provisions of this Declaration or the application to any other Person. and the same shall remain in full force and effect. Section 8.4 Waiver. Pailure to enforce any covenant or condition of this Declaration shall DOt be dccmed to be a waiver of the right to do so thereafter. No waiver by any Person of any covenant or condition of this Dec1amtion shall be effective or biDding on such Person unless made in writing and no waiver shall be implied from any omission by a Penon to take action with respect to such covenant or condition. The express written waiver of any covenant or condition shall not be a waiver of any other coveDaD.t or CODdition or cover any other period of time except fcxo the coveuant or condition and/or period of time specified in such express waiver. Section 8.S N~ ofPartnmshtp or Joint Venture. None of the terms or provisions of this Declaration shall be deemed to create the relationship of principal, agent, partnership or joint venture between or among tho Owners. Section 8.6 Not a Publ~c Dedicati~. Nothins contained herein shall be doomed to be a gift or dedication of any portion of the Subject Property to the general public for any pooRe use or purpose whatsoever, and aU Owners shall take such reasonable measurea as may be necessary to prevent any such dedication. Section 8.7 ~,Law. This Declaration shall in all respects be interpreted. construed and enforced accorctiDg to the laws of the State of MiDnesota, irrespectivo of its choice of law provisions. Section 8.8 Sinaular and Plural. Whenever requJrecl by the context of this Declaration, the sinaular shall include the plural. and vice versa, and. the mucu1ine shall include the feroinine and neuter genders, and vice versa. Section 8.9 C..tiona. The captions and headinp containod in this Declaration are for convenient referonco only and shall not affect the interpretation of this Declaration. Section 8.10 Recitals. The Recitals are intended to be a part of this Declaration as if fully set forth herein. Section 8.11 Amendment. This Declaration may not be amended or terminated without the prior written CODSeI1t of all of the Lot Owners and tho City, and dump to the maintenance obligations established herein may not be made without the prior written consent of the City and the IAt Owners. Section 8.12 Notices. Any and all notices or other communications required or desired to be given under this Declaration shall be in writing and shall be deemed given, effective and received on (a) the date of personal delivery; (b) ten (10) days after deposit in the United States mail, postage prepaid, reptered or certified maiL return receipt requested; or (c) one (1) business day after deposit with a uational overnight courier, fees prepaid to Declarant at the following address: 13540001\855.400 7 WBU..ER.SON UP c/o Peter Larson 2099 66th St. NW Maple Late, Minnesota 55358 Metcalf, Larson & Muth 313 West Broadway Stleet, P.O. Box 446 Monticello. Minnesota 55362 Attention: Bradley V. Larson Copies of all notices to Declarant shall be copied to Ground Lessee at the following address: Declarant: With a copy to: With a copy to: Niemeyer Properties, u..c c/o Tim NiemcF 7918 Troy LIne Maple Grove MN 55311 FabyaDSke, Westra. Hart & Thomson. P.A. 800 LaSalle Avenue, Suite 1900 Minneapolis, Minnesota 5S402 Attention: Judith B. Krow Ground Lessee: Any party may change its address by notice given in accordance with this Section. For the purposes of this Declaration, a "business day" is a day which is not a Saturday. a Sunday or a legal holiday of the State of Mbmesota. [REMAINDER OF PAGE INTENTIONAlLY LEFT BLANK] 83540-001\155868.c1ac 8 SIGNATURE PAGE TO DECLARATION OF EASEMENT AND MAINTENANCE OBLIGATIONS THIS DECLARA nON OF EASEMENT AND MAINTENANCE OBLIGA nONS has been executed and delivered as of the date first above written. Wellerson LLP, a Minnesota limited liability partnership By: Name: Its: STATE OF MINNESOTA ) \,,,0\ ~1:tT ) ss. COUNTY OF ~ ) The ~~oing instrument was acknowl,\1dged pefore me this 4th day of v11~ 2009, by ~A C. Utrsov"\" the i1t:r--t-~ of Weller son, LLP, a MWlesota limited liability partnership on behalf of said limited liability partnership. , .Z;'~' ~~~ N t~ PU ic SALLY B. NELSON Nor,RY PUBLIC - MINNESOTA My CommiScion E)(plr~ Jan, 31,2010 Ill. ~ .:: ._ ~..,," . ". ~T~ JOINDER The undersigned as Ground Lessee hereby joins in the foregoing Declaration of Easement and Maintenance Obligations for the purpose of being bound thereby. Niemeyer Properties, LLC, a Minnesota limited liability company ~~ By' ~ i:s~ %:~JI;- ~-A/,\a 4 ,/tt-- STATE OF MINNESOTA ) )SS. ) COUNTY OF H'ENAleph The foregoing instrument was aclrn. owl edged before.me this ~ ~ay of fl7~ 2009, by JlI.5A -rl>el<tAJJ , the Sz..c. . of NIemeyer PropertIes, LLC, aM sota limited liability company, on behalf of said limited liability company. \' Xf(~., (:\ "", LISA N. THELEN ~:,<~~> NOTAR: PUBLIC. MINNESOTA "j." My Comnlsslon Expires Jan. 31, 2010 &= ~> Notary Public This instrument was drafted by and should be returned to: Fabyanske, Westra, Hart & Thomson, P.A. (JEK) 800 LaSalle Avenue South, Suite 1900 Minneapolis, MN 55402 (612) 359-7600 EXHIBIT A Retention Area I~I ~' . ~ I ,', ~el I,: 2 II 1111~d!I!l!11 ~ I 1;'hIlIUI 1/111....11 "'.... - _\".)I1\"1IU ...-: ....ICn1I.. ... 'I1'WD&'lII~ cO .........