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Home My WebLink AboutDeclaration/covenants/conditions/restrictions/private road-1998 w w , 7013148 DEC LARATION OF COVENANTS CONDITIONS RESTRICTIONS AND PRIVATE ROADWAY EASEMENT THIS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND PRIVATE ROADWAY EASEMENT ("Declaration") is made effective. , as of 19_9B-1 by James D Render and Denise A. Rendez , husbandand wife ("Declarant"). RECITALS: A. Declarant is fee owner of that certain real property located in Hennepin County, Minnesota legally described on Exhibit "A" attached hereto and made a part hereof (the ."Property"). B. Declarant desires to provide, for the benefit of Lots 1.2 0, Tonkawa Shores (the 11 Lots" an e Y easement for roadway purposes (the "Roadway") over, across, ) and upon Outlot A, Tonkava Sh-res (the "Outlot"), and to further provide for the maintenance, ownership, and restrictions relating to the Roadway and the easement herein granted. NOW, THEREFORE, in consideration of the foregoing, the Declarant hereby declares that the Lots and the Outlot are and shall be held, transferred, sold, conveyed, and occupied subject to the covenants, conditions, restrictions, and easements hereafter set forth, which shall run with the Property and be binding on all parties, now or hereafter having any right, title, or interest in the Property and any part thereof, their heirs, successors, and assigns (each of whom are hereafter referred to individually as an"Owner" or collectively as "Owners"), and shall inure to the benefit of each Owner. 1. Roadwav Easement. Declarant hereby declares and creates a perpetual, non- exclusive private road easement over the Outlot for the benefit of the Lots and use by the Owners and their invitees and other public service providers, such as police, fire, bus and ambulance services. 2. Maintenance of Roadway. 2.1) Each Owner shall pay an equal, proportionate share for any costs for construction, maintenance or repair of the Roadway. Maintenance shall include construction, reconstruction, resurfacing, snow removal, sanding and salting, as necessary, lighting, striping, and curbing as the Owners shall determine necessary; provided, however, that all Maintenance shall be conducted in compliance with all applicable provisions of the City of Orono Municipal Code (the "Code"). Declarant shall be responsible, at his/her expense, for initial construction of the Roadway, which shall in all respects conform to the j requirements of the City of Orono ("City"). All future Maintenance shall be conducted by the Owners or their contractors, at Owners' expense. 1 I 2.2) Each Owner's share of costs for Maintenance shall be due and payable on the date such costs for Maintenance are due and payable to the person or entity rendering an account therefor. Each Owner's share of such costs shall bear interest at a rate of eight percent (8%) per annum from such due date to the date of payment. Any Owner may bring action, on behalf of the non-defaulting Owners, to collect a defaulting Owner's share of such costs which are not paid when due, and shall be entitled to recover such reasonable attorney's fees as the court may allow, together with all necessary costs and disbursements incurred in connection therewith. 2.3) The plans, specifications and the awarding of contracts for Maintenance shall be approved in writing by the Owners of sixty-five percent (65%) of the Lots. 2.4) No Owner may exempt himself from the liability for assessments by waiver of the use or enjoyment of the Roadway or by the abandonment of his Lot. 3. Ownershiu of the Outlot. Each Lot shall be sold, transferred and conveyed together with an undivided one- third ( 1 L3 interest in the Outlot. In the event City shall determine it to be in the public interest to utilize the Roadway as a public street, each Owner shall, after-notice in accordance with applicable provisions of Code and Minnesota law, convey its undivided interest in the Outlot to City for no additional consideration therefor. 4. Prohibitions of Use of Roadway. 4.1) No Owner shall obstruct or interfere whatever with the rights and privileges of other Owners in the Roadway and except for Maintenance of the Roadway, nothing shall be planted, altered, constructed upon or removed from the Roadway. 4.2) No Owner shall obstruct or interfere with the passage of any school bus or emergency vehicle over or across the Roadway. 4.3) No vehicles shall be parked in the Roadway for a continuous period of time greater than twenty-four hours. 4.4) No vehicular repair or maintenance may be conducted in the Roadway. 5. Violation and Enforcement. 5.1) In the event the Owners fail to conduct Maintenance, it is agreed by all Owners that City, may undertake such Maintenance and assess each Lot an equal, proportionate share of the Maintenance conducted by the City. Any such Maintenance conducted by the City will not result in the Roadway becoming a 2 public roadway. Each Owner will pay to the City its equal, proportionate cost incurred by the City within thirty (30)days after Owner's receipt of suchcharges, g , or else such charge, including attorneys' fees and costs in collection thereof, shall become a lien upon the Lot for which payment has not been made. 5.2) If an Owner shall violate any of the obligations, covenants, conditions or restrictions contained in this Declaration, the remaining Owners shall have the right to enforce this Declaration, and in the event an Owner's violation results in damage to the Roadway, Owners may restore the Roadway to its prior condition and assess the cost of such restoration 'against the violating -Owner. Any such assessment shall become due and payable upon the demand of any of said remaining Owners. All of the remaining Owners, or any of them, shall have the right and power to enforce this Declaration and to collect the cost of any Maintenance required as a result of an Owners violation, in a legal proceeding for that purpose. The prevailing party in any such legal proceedings shall further be entitled to recover such reasonable attorney's fees as the court may allow, together with all necessary costs and disbursements incurred in connection therewith. Nothing contained in this Section 5.2 is intended to alleviate any obligation of an Owner to pay assessments to City in accordance with Section 5.1 above. In the event any assessments are levied by City as a result of violations of an individual Owner or Owners, then such non-violating Owners may collect such sums paid to City from any violating Owner, in accordance with this Section. 6. Binding Effect. This covenant shall run with the land and shall be binding on and inure to the benefit of the Owners, their heirs, representatives, successors and assigns. 7. No Amendment. This Declaration may be modified or amended only upon the recording of a document setting forth such amendment executed by all of the Owners, their mortgage lenders, City and any other party having a record interest in the Lots. 8. Severability. Invalidation of any covenant, condition, or restriction set forth herein by judgement or court order shall in no way affect any of the other provisions hereof, which shall all remain in full force and effect. 9. Warranties of Title. Declarant represents and warrants that they is/are the lawful owner(s) of the Roadway and the Lots and have full right, title and authority to enter into this Declaration. Any mortgage lender, or other party in interest of the Lots of the Outlot, if any, shall consent to this Declaration, which consent shall be attached and made a part of this Declaration. 3 IN WITNESS WHEREOF, the parties have hereto executed this Declaration and covenant the day and year first above written. STATE OF MINNESOTA ) ss. COUNTY OF Hennipen ) e br was acknowledged before me on this 21st da of y s Qr pm This instrument g 19 98 , by James D Render and Denise H render , husband and wife 00, ��X'Z-1� . Notary Public AUDREY L BLOCK " NOTARY KVJC-MINW= tMMN COUNTY W Com iWon Expires 01-31.00 THIS INSTRUMENT WAS DRAFTED BY: POPHAM, HAIK, SCHNOBRICH & KAUFMAN, LTD. 3300 Piper Jaffray Tower 222 South Ninth Street Minneapolis, MN 55402 (612) 333-4800 /EdAND PRIOR TAXES PAID TAXPAYER SERVICES TRANSFER ENTERED ,24EPIN COUNTY MINN. DEPUTY 4 CONSENT The undersigned("Mortgagee")having an interest as mortgagee in the property described in the foregoing Declaration of Covenants, Conditions,Restrictions and Private Roadway Easement("Declaration"),pursuant to that certain Mortgage dated May 6, 1998, filed May 22, 1998, as as Document No. 6901539,with the County Recorder in and for Hennepin County,Minnesota, ("Mortgage")hereby consents to the Declaration and further agrees that the Mortgage is subject and subordinate to the dedications contained in the Declaration. IN WITNESS WHREOF, the undersigned has caused this Consent to be executed effective as of "- /1" , 1998. MORTGAGEE Eastern Heights Bank BySII I/—I Its `ice STATE OFg�, r?cPa ) COUNTY OF znse ) This instrument was acknowledged b efo ne on_V aPn)zer 1998,by , r1 the �' les, rt_of Eastern Heights Bank, a banking corpo ation under the laws of Minnesota on behalf of the banking corporation. otary Public SALLY J.HAMMER THIS INSTRUMENT WAS.DRAFTED BY: �1ARY PUBN FUMY MY CW=b8ion Expkn t/91=W Hinshaw&Culbertson 3200 Piper Jaffray Tower 222 South Ninth Street Minneapolis,MN 55402 (612)333-3434