HomeMy WebLinkAboutRedlined DOCS-#185188-v1-Dock_and_Access_Easement_Orono_Barkley
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (“Agreement”) is made and entered into this ____ day of ____________, 201__, by and between Jacob J. Barkley and Maureen L. Barkley, as joint tenants (collectively,
“Grantor”), James B. Seals and Victoria M. Seals, as joint tenants (collectively, “Seals”), and Mark R. McCutcheon and Jayme A. McCutcheon, as joint tenants (collectively, “McCutcheon”).
Seals and McCutcheon are referred to herein, individually and collectively, as the “Grantees”.
WHEREAS, Seals is the owner of certain real property located in Hennepin County, Minnesota, legally described on the attached Exhibit A (the “Seals’ Property”);
WHEREAS, McCutcheon is the owner of certain real property located in Hennepin County, Minnesota, legally described on the attached Exhibit B (the “McCutcheon’s Property”), and the Seals’
Property and the McCutcheon’s Property is referred to herein collectively as the “Grantee’s Property”;
WHEREAS, Grantor is the owner of certain real property located in Hennepin County, Minnesota, legally described on the attached Exhibit C (the “Grantor’s Property”);
WHEREAS, Grantor’s Property consists of three separate parcels of real property: (1) a parcel on which a house is located, which parcel lies north of Bayside Road; (2) a parcel lying
southerly of Bayside Road and lying partly above and partly below the waterline of Stubbs Bay (the “Shoreline Parcel”); and (3) a small triangularly shaped parcel lying south of Bayside
Road, but northerly of the Shoreline Parcel (the “Middle Parcel”).
WHEREAS, the Shoreline Parcel and Middle Parcel are legally described on the attached Exhibit D;
WHEREAS, the west half of the Middle Parcel is subject to an easement for the benefit of Seals and Seals’ Property for ingress and egress from Stubbs Bay and for the erection and maintenance
of a small private dock, by virtue of Document No. T1154647, filed October 3, 1975 (the “Old Easement”);
WHEREAS, the Middle Parcel is separated, in part, from the shore of Stubbs Bay by the Shoreline Parcel;
WHEREAS, until on or about the date hereof, the Shoreline Parcel was owed by the City of Orono, a Minnesota municipal corporation (the “City”);
WHEREAS, on or about the date hereof, the Grantor purchased the Shoreline Parcel from the City;
WHEREAS, the Grantor granted the City a scenic easement over the Shoreline Parcel recorded with the Hennepin County Registrar of Titles on or about the date hereof (the “New Scenic Easement”)
and Grantor’s predecessor-in-interest previously granted the City a scenic easement over the Middle Parcel by virtue of Document No. T1144484, filed July 2, 1975 (the “Old Scenic Easement”)
(such scenic easements are collectively referred to herein as the “Scenic Easements”);
WHEREAS, Grantees wish to obtain an easement from Grantor to have the right of ingress and egress from Stubbs Bay over a portion of the Shoreline Parcel and the Middle Parcel, and to
place one or more docks on a portion of the Shoreline Parcel; and
WHEREAS, Grantor is willing to grant such an easement to Grantees on the terms and conditions set forth hereinafter.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Grantor and Grantees, it is agreed as follows:
Grant of Easement. Subject to the terms and conditions herein, Grantor hereby grants and conveys to Grantees the following easements:
Dock Easement. A perpetual easement over the west half of the Shoreline Parcel (the “Dock Parcel”) for purposes of ingress and egress from Stubbs Bay and for the purpose of erecting
and maintaining one or more two small, inconspicuous, private boat docks (individually and collectively, a “Dock”) on and upon the Dock Parcel to be used for non-commercial fishing,
swimming, and docking purposes and for the exclusive benefit of the Grantee’s Property (collectively, the “Dock Easement”).
Access Easement. A perpetual easement over, across and upon the Dock Parcel and the west half of the Middle Parcel for purposes of pedestrian ingress and egress between the public right-of-way
for Bayside Road and the shore of Stubbs Bay and for purposes vehicular ingress and egress between the public right-of-way for Bayside Road and the shore of Stubbs Bay as may be necessary
for constructing, installing, maintaining, repairing replacing, and utilizing a Dock (collectively, the “Access Easement”).
The Dock Easement and the Access Easement shall be referred to herein, collectively and individually, as the “Easements” and the property subject to the Easements shall be referred to
as the “Easement Property”. The Easements shall be appurtenant to and for the exclusive benefit of Grantee’s Property and shall be binding on, enforceable against, and burden Grantor’s
Property.
Restrictions on Use of Easement Property. Grantees agree that they shall use the Easement Property only for the purposes set forth in Section 1 above, and shall not store or dispose
of any hazardous substances on the Easement Property, and shall not use the Easement Property in any manner inconsistent with the Scenic Easements or any ordinances, laws or governmental
regulations governing or otherwise affecting the Easement Property. Grantees
shall not alter the grade of the Easement Property in any way, and shall not place or construct structures on or within the Easement Property, except a Dock to the extent permitted by
law and the Scenic Easements, and shall not install any permanent cover surface on the Easement Property without the prior written consent of the Grantor. Without limiting any of
the foregoing, Grantees acknowledge that the Old Scenic Easement purports to limit the right of McCutcheon to place a Dock on the Middle Parcel.
Maintenance of the Easement Property. Grantees shall keep any Dock and the Easement Property in a safe, slightly and well-maintained condition. Grantor and Grantees shall otherwise
work cooperatively to maintain and landscape the Easement Property.
Liability. Except for the willful or negligent acts or omissions of the Grantor, the Grantees shall, jointly and severally, indemnity, defend and hold the Grantor harmless from any
and all loss, costs, liability, damage, injury or expense, which may arise by reason of any violation of law, ordinance or regulation or by reason of injury to or death of a person,
damage to property, or claims of liens that are a direct result of work performed and/or materials or supplies furnished at any Grantee’s request, arising out of or in connection with
any Grantee’s use of the Easement Property, or use of the Easement Property by the family members, guests, or invitees of any Grantee or trespassers.
Duration. The easement rights and obligations set forth herein shall be perpetual unless terminated by the mutual written consent of the parties hereto, or their successors in interest.
Taxes. Seals Owners of the Seals’ Property shall agrees to pay one-quarter of the annual real estate taxes and assessments on the Shoreline Parcel and the Middle Parcel. McCutcheon
Owners of the McCutcheon’s Property shallagrees to pay one-quarter of the annual real estate taxes and assessments on the Shoreline Parcel and the Middle Parcel.
Effect on the Old Easement. The Old Easement shall remain in effect except to the extent of any conflicts between this Agreement and the terms of the Old Easement. This Agreement shall
govern to the extent of any such conflicts.
Effect on Scenic Easements. This Agreement shall be subject to the Scenic Easements and the Scenic Easements shall govern to the extent of any such conflicts.
No Representations or Warranties. Grantor makes no representations or warranties whatsoever that: (i) the Dock Parcel abuts Stubbs Bay without any gaps, gores or intervening strips
of land or that the Easements provide legal access to Stubbs Bay from a public right-of-way; (ii) that the Dock Parcel abuts the west half of the Middle Parcel without any gaps, gores
or intervening strips of land; (iii) that there is a legal right of ingress and egress between the west half of the Middle Parcel and a public right-of-way; and (iv) that any Dock may
be erected and maintained on the Easement Property in accordance with applicable ordinances, law and governmental regulations, and the Scenic Easements.
Rights Reserved. Except for the rights expressly granted herein to Grantee, all rights in and to the Easement Property are reserved to Grantor.
Miscellaneous.
Governing Law. This Agreement shall be governed in accordance with the laws of the State of Minnesota.
Amendment and Waiver. This Agreement may not be modified, waived or terminated except pursuant to an instrument in writing signed by the parties hereto, or their successors or assigns
in interest.
Entire Agreement. The parties hereto acknowledge and represent that there are no other agreement or understanding with respect to the easements and rights described in this Agreement.
Covenants Run With Land. The terms and provisions of this Agreement shall run with the Grantor’s Property and the Grantee’s Property, and shall be binding upon and inure to the benefit
of Grantor and Grantees and their successors and assigns.
Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or declaration of all or any portion of the Easements hereby created to the general public.
Section Headings. The section headings in this Agreement are inserted for convenience of reference only and shall not in any way affect the meaning or construction of the Agreement.
Severability. If any term of this Agreement or any application thereof is invalid or unenforceable, the remainder of the Agreement and any other application of such term shall not be
affected thereby.
Exhibits. All exhibits referred to herein and attached hereto shall be deemed part of the Agreement.
Counterparts. This document may be executed and acknowledged in counterparts, all of which executed and acknowledged counterparts shall together constitute a single document. Signature
and acknowledgment pages may be detached from the counterparts and attached to a single copy of this document to physically form one document, which may be recorded.
[SIGNATURE PAGE(S) ATTACHED]
IN WITNESS WHEREOF, Grantor and Grantees have caused this Agreement to be executed as of the date and year first written above.
GRANTOR
____________________________________
JACOB J. BARKLEY
____________________________________
MAUREEN L. BARKLEY
GRANTEES
____________________________________
JAMES B. SEALS
____________________________________
VICTORIA M. SEALS
____________________________________
MARK R. MCCUTCHEON
____________________________________
JAYME A. MCCUTCHEON
STATE OF MINNESOTA )
) SS:
COUNTY OF ____________ )
This instrument was acknowledged before me on the _____ day of ____________, 201_, by JACOB J. BARKLEY.
____________________________________
Notary Public
STATE OF MINNESOTA )
) SS:
COUNTY OF ____________ )
This instrument was acknowledged before me on the _____ day of ____________, 201_, by MAUREEN L. BARKLEY.
____________________________________
Notary Public
STATE OF MINNESOTA )
) SS:
COUNTY OF ____________ )
This instrument was acknowledged before me on the _____ day of ____________, 201_, by JAMES B. SEALS.
____________________________________
Notary Public
STATE OF MINNESOTA )
) SS:
COUNTY OF ____________ )
This instrument was acknowledged before me on the _____ day of ____________, 201_, by VICTORIA M. SEALS.
____________________________________
Notary Public
STATE OF MINNESOTA )
) SS:
COUNTY OF ____________ )
This instrument was acknowledged before me on the _____ day of ____________, 201_, by MARK R. MCCUTCHEON.
____________________________________
Notary Public
STATE OF MINNESOTA )
) SS:
COUNTY OF ____________ )
This instrument was acknowledged before me on the _____ day of ____________, 201_, by JAYME A. MCCUTCHEON.
____________________________________
Notary Public
EXHIBIT A
DESCRIPTION OF SEALS’ PROPERTY
Lot 4, Block 1, Riedel Company Stubbs Bay Addition, Hennepin County, Minnesota
EXHIBIT B
DESCRIPTION OF MCCUTCHEON’S PROPERTY
Lot 3, Block 1, Riedel Company Stubbs Bay Addition, Hennepin County, Minnesota
EXHIBIT C
DESCRIPTION OF GRANTOR’S PROPERTY
Lot 1, Block 1, Riedel Company Stubbs Bay Addition, Hennepin County, Minnesota.
Lot 1, Block 3; Bay View Park, Hennepin County, Minnesota, which lies Southerly of a line 33 feet Southerly of, measured at right angles to and parallel with a line hereinafter referred
to as "Line A", said "Line A" being described as follows: Commencing at the Northeast corner of the Northwest Quarter of Section 5, Township 117 North, Range 23 West of the 5th Principal
Meridian; thence South along the East line of said Northwest Quarter a distance of 1400.28 feet; thence deflecting left 64 degrees 30 minutes a distance of 143.32 feet to the point
of beginning of said "line A"; thence deflecting right 180 degrees along said "Line A" a distance of 100 feet; thence along a tangential curve to the left having a radius of 500 feet
and central angle of 22 degrees 30 minutes a distance of 196.35 feet; thence Westerly tangent to said curve to the West line of the Northeast Quarter of the Southeast Quarter of said
Northwest Quarter, and there ending.
Lot 2, Block 3; Bay View Park, Hennepin County, Minnesota
EXHIBIT D
DESCRIPTION OF THE SHORELINE PARCEL AND THE MIDDLE PARCEL
Shoreline Parcel
Lot 2, Block 3; Bay View Park, Hennepin County, Minnesota.
Middle Parcel
Lot 1, Block 3; Bay View Park, Hennepin County, Minnesota, which lies Southerly of a line 33 feet Southerly of, measured at right angles to and parallel with a line hereinafter referred
to as "Line A", said "Line A" being described as follows: Commencing at the Northeast corner of the Northwest Quarter of Section 5, Township 117 North, Range 23 West of the 5th Principal
Meridian; thence South along the East line of said Northwest Quarter a distance of 1400.28 feet; thence deflecting left 64 degrees 30 minutes a distance of 143.32 feet to the point
of beginning of said "line A"; thence deflecting right 180 degrees along said "Line A" a distance of 100 feet; thence along a tangential curve to the left having a radius of 500 feet
and central angle of 22 degrees 30 minutes a distance of 196.35 feet; thence Westerly tangent to said curve to the West line of the Northeast Quarter of the Southeast Quarter of said
Northwest Quarter, and there ending.
This instrument was drafted by:
Best & Flanagan LLP (TGG)
60 South Sixth Street, Suite 2700
Minneapolis, MN 55402
(612) 341-9717