HomeMy WebLinkAboutPrivate road document , ,
/`�SO ,��'Q C��� d�f- /�
:,
��.:
Doc No 9032754 08/31/�07 03:51 PM
Certified filed and or rec �ed on above date:
Office of the C nty Recorder
Hennepin unty, Minnesota
Michael H. C nniff, County Recorder
f TranslD 339252 Deputy 26
Fees
$35.50 DOC
$10.50 SUR
$46.00 Total
i I,I
I,
�
i
��
i
� �
,
. ,
�G'D a�i:�� �ri:t�r a�.���i�i�:
r,vcPAv�� s��v�c��
Y�Atvs���? �tv�'����
�u� � 1 �oa�
�F�ra �v�r�ti�v�v.
, ,�" -•-�T��
PRIVATE ROAD, EASEMENT AND MAINTENANCE DECLARATION
This Private Road, 'Easement and Maintenance Declaration ("this Declaration") is made
this.�� day of u�r��,� , 2007, by and between Bruce Paddock, also known as Bruce G.
Paddock ("Paddock"), a single person, and Mark C. Headrick and Laurie S. Headrick
(collectively,the "Headricks"),husband and wife, and is based on the following facts:
A. Paddock is the fee owner of real property situated in Hennepin Gounty,
Minnesota, legally described as Lots 1 and 3, Block l, Bracketts Point(the "Paddock Property").
B. The Headricks are the fee owners of real property situated in Hennepin County,
Minnesota, legally described as Lot 2, Block 1, Bracketts Point (the "Headricks Lot").
C. Paddock has applied to the City of Orono, Minnesota(the "City")far approval of
a subdivision of the Paddock Property into two residential buildable lots and two outlots in
accordance with the plat of Bracketts Point 2°d Addition (the "Plat"), and for vacation of that part
of Bracketts Point Road, as said road was dedicated to the public in the plat of
REARRANGEMENT OF ORONO POINT, which lies southerly of a line drawn from the most
westerly corner of Lot l, Block 1, BRACKETTS POINT, to the most northerly corner of Lot 3,
said Block 1.
D. The portion of said Bracketts Point Road to be vacated by the City currently
serves both the Paddock Property and the Headricks Lot.
E. The City has agreed to vacate that part of Bracketts Point Road as said road was
dedicated to the public in the plat of REARRANGEMENT OF ORONO POINT, which lies
southerly of a line drawn from the most westerly corner of Lot 1, Block 1, BRACKETTS
POINT, to the most northerly corner of Lot 3, said Block 1, and to approve the Plat, subject to
certain terms and conditions, including without limitation the condition that Paddock and the
Headricks (collectively, "Declarants") execute and deliver this Declaration and cause it to be
duly recorded in the office of the County Recorder in and for Hennepin County, Minnesota.
F. Declarants wish to comply with the condition to the City's approval of the Plat
and vacation of that part of said Bracketts Point Road, and to set forth in writing the terms of
their agreement with respect to the foregoing.
1008833v5
\ �
NOW, THEREFORE, in consideration of the facts stated above and for other good and
valuable consideration, the receipt and sufficiency of wh2ch are hereby acknowledged,
Declarants hereby declare and agree as follows:
1. Recitals Incorporated. The facts stated above are hereby incorporated into this
Declaration and made a part of this Declaration by this reference.
2. Effective Date. This Declaration shall be effective immediately upon recording,
in the office of the County Recorder in and for Hennepin County, Minnesota, of both the Plat
and the deed rec�Liired by Section 6 below.
3. Definitions. The following words, when used in this Declaration, shall have the
following meanings:
(a) "Assessment": a Common Expense fixed and established by the Owners in
accordance with Section 10.
(b) "Common Area": Outlots A and B of the Plat.
(c) "Common Expense": any eYpenditure made and liability incurred by or on
behalf of the Owners as provided in Section 9.
(d) "Lot": any of the following: Lot 1, Block 1 of the Plat; Lot 2, Block 1 of
the Plat; and Lot 2, Block 1, Bracketts Point.
(e) "Lot Assessment": that portion of the Common Expense assessed against a
Lot.
(� "Owner": one or more Persons who or which holds fee title to a Lot;
provided, however, that if a Lot is being sold pursuant to a contract for deed, the contract
purchaser(s) entitled to possession of the Lot shall be the Owner unless and until the contract for
deed shall have been cancelled or otherwise shall have terminated.
(g) "Person": a natural individual, corporation, limited liabiliry company,
partnership (whether general, limited or limited liability), trustee, or any other legal entity
capable of holding title to real property in the State of Minnesota.
(h) "Plat": the recorded plat of Bracketts Point 2"d Addition, Hennepin
County, Minriesota.
(i) "Private Road": the roadway and other improvements now or hereafter
located on Outlot B of the Plat, including without limitation any underground utilities now or
hereafter constructed or installed thereon, therein or thereunder.
(j) "Property": The Lots and the Common Area.
1008833v> 2
I ,
(k) "Storm Water Facilities": the rain gardens and other facilities, now or
hereafter located within the Storm Water Facilities Area, for drainage and retention of surface
water on the Property, whether constructed by Paddock or the City.
(1) "Storm Water Facilities Area": the portion of Outlot A of the Plat that is
subj ect to a utility and drainage easement wider than ten (10)feet; and the portion of Lot 2,
Block 1 of the Plat that is subject to a utility and drainage easement east of the utility and
drainage easement surrounding the circular portion of Outlot B of the Plat.
4. Private Road Easement. Paddock hereby declares and creates a perpetual, non-
exclusive private road easement over Outlot B of the Plat, for the benefit of and appurtenant to
each of the Lots and benefiting each current and future Owner of each of the Lots, for use by
each such Owner, and the guests and invitees of such Owner, for pedestrian and vehicular
ingress and egress, and underground utility purposes, between such Lot and Bracketts Point
Road as dedicated pursuant to the Plat. No fence shall be installed on any Lot within ten (10) feet
of the paved surface of the Private Road. The Private Road shall be continuously maintained,
including snow removed, to the full width of the paved surface to permit adequate access by
emergency and other vehicles.
5. Public Access to Private Road. Paddock hereby declares and creates: a
perpetual, non-exclusive easement over Outlot B of the Plat, for the benefit of the City, for
public ingress, egress and access, for road, drainage and utilities purposes and uses, including the
right to construct and maintain the same, including but not limited to a full and free right and
authoriry to enter upon Outlot B of the Plat to construct, install, maintain, operate and repair a
sanitary sewer interceptor, lift station, main or line, a water main or line, gravel or paved road,
and any and all appurtenances, including drainage control structures, incidental and related
thereto; and a perpetual, non-e�clusive easement over Outlot B of the Plat, for the benefit of the
public, for access over and across Outlot B of the Plat.
6. Ownership of Common Area. Ownership of the Common Area shall be shared
equally among the Owners from time to time of the Lots, such that the Owner of each of the Lots
from time to time also shall be the owner of an undivided one-third (1/3) interest in the Common
Area. Ownership of the Common Area shall not be separated from ownership of the Lots unless
and until, and except to the extent that, the Owners of the Lots unanimously agree in writing to
create a non-profit corporation under Minnesota law to own all or part of the Common Area and
convey their respective interests therein to such corporation. Contemporaneously with the
recordation of this Declaration, Paddock shall cause to be duly recorded a deed from Paddock to
the Headricks to an undivided one-third (1/3) interest in and to the Common Area.
7. Use of Common Area. Outlot A of the Plat shall be used by the Owners of the
Lots solely for tennis court and related recreational purposes, and Storm Water Facilities. Each
Owner shall be responsible for defending and paying all claims, actions, causes of action and
damages arising from the use of the Common Area by that Owner and the guests and invitees of
that Owner, and each Owner shall indemnify and hold the other Owners harmless from all
�ooss»�s 3
claims, actions, causes of action and damages arising from the use of the Common Area by the
indemnifying Owner ar the guests or invitees of the indemnifying Owner.
8. Use of Storm Water Facilities Area. The Storm Water Facilities Area shall be
used solely for purposes of drainage and retention of surface water, and shall be maintained by
the Owners in perpetuity, free from mowing or other vegetative disturbance, fertilizer
application, yard or other waste disposal,placement of structures, or any other alteration that
impedes the function of the Storm Water Facilities in protecting the quality of water or flows
downstream.
9. Maintenance of Common Area and Other Storm Water Facilities Area. The
Owners of the Lots shall share equally in the cost of maintaining the Common Area and the
improvements thereon and the Storm Water Facilities Area located outside of the Common Area,
including without limitation the tennis court on Outlot A of the Plat,the Private Road and the
Storm Water Facilities. Such expenses shall include the cost of maintaining, repairing and
replacing, and paying the cost of electricity used by, any and all street lights and other lights
within the Common Area to the extent not maintained by the City; any special assessment levied
by the City against any or all of the Lots for the improvement, reconstruction, repair or
replacement of Qracketts Point Road lying north of the Property, regardless whether such
assessment is levied by the City against all or fewer than all of the Lots, and regardless whether
the City levies such assessment in equal or unequal amounts against the Lots; and any real estate
tax and special assessment levied against any or all of the Common Area. The Owner of each
Lot, by accepting a deed or other instrument of conveyance of a Lot, whether or not it shall be so
expressed in such deed or other instrument, conclusively is deemed to covenant and agree to pay
all Lot Assessments when due pursuant to this Declaration. All Lot Assessments, with interest,
collection costs and reasonable attorney's fees, shall be a lien on a Lot, in favor of the Owners of
the other Lots, from the due date of such Lot Assessment until paid in full. All Lot Assessments,
with interest, collection costs and reasonable attorney's fees, also shall be the personal obligation
of the Owner of the Lot as of the due date of the Lot Assessment and, if more than one person is
the Owner of the Lot, each such person shall be jointly and severally liable therefor. No Owner
of a Lot may waive or otherwise escape liability for Lot Assessments by non-use of the Common
Area or abandonment of a Lot.
10. Manner of Fixing Assessments; Uniform Rate of Assessment. Lot
Assessments shall be fixed at a uniform rate for each of the Lots, and shall be collected on a
monthly, quarterly or annual basis, as determined from time to time by a majority of the Owners
after at least 30 days' prior notice to all Owners. If more than one Person constitutes the Owner
of a Lot, all such Persons shall decide among themselves how to vote in any vote of the Owners
of Lots. The Owner of each Lot shall have one vote. Unless all of the Owners otherwise
unanimously agree in writing, Lot Assessments shall not include the cost to add to, or improve
the quality or character of, the Common Area or the improvements now or hereafter located on
the Common Area, and no such addition or improvement shall be made without such unanimous
consent in writing.
1 1. Effect of Non-Payment of Lot Assessments. Any Lot Assessment not paid
within thirty (30) days after the due date shall bear interest from the due date until paid, at a rate
iooss3��� 4
equal to the lesser of the highest rate permitted by law or eight percent (8%) per annum. Any
Owner(s) may bring an action at law against an Owner who has not timely paid a Lot
Assessment for which such Owner is personally obligated (a"Defaulting Owner"), and/or
foreclose, in the name of the Owner(s) who are not a Defaulting Owner, the lien against the Lot
owned by the Defaulting Owner, to collect any Lot Assessment owed by the Defaulting Owner.
A suit to recover a money judgment for unpaid Lot Assessments and expenses hereunder may be
maintained without waiving the lien securing the same.
12. Lien for Assessments. The lien for a Lot Assessment provided for in this
Declaration shall be superior to all other liens and encumbrances on a Lot except for the lien of
general and special taxes and the lien of any prior mortgage on the Lot. To evidence a lien for a
Lot Assessment, any Owner may prepare a written notice of lien, setting forth the amount of the
Lot Assessment, the due date thereof, the amount remaining unpaid, the name of the Defaulting
Owner and a description of the Lot, and record the same in the appropriate real estate recording
office(s) in and for Hennepin County, Minnesota. Such lien may be enforced by judicial
foreclosure or foreclosure by advertisement in the same manner in which mortgages on real
property may be foreclosed in the State of Minnesota, and each current and future Owner, by
becoming an Owner, hereby grants to the other Owners a power of sale, to enable the other
Owners to enforce the lien hereby created by non-judicial proceedings. In any such foreclosure,
the Defaulting Owner shall be required to pay the costs and expenses of the other Owner(s) in
collecting the Lot Assessment and/or enforcing the lien, all of which shall be secured by the lien
being foreclosed. In order to cause the non-defaulting Owners to discontinue any foreclosure or
other proceedings to collect any Lot Assessment and/or to enforce any lien granted pursuant to
this Declaration, the Defaulting Owner shall be obligated to pay all Lot Assessments against
such Owner's Lot which shall have become due as of the date of such payment, and all costs and
expenses incurred by the other Owners in collecting the Lot Assessment and/or enforcing such
lien, incliiding reasonable attorney's fees. A release of notice of lien shall be executed by the
non-defaulting Owners in recordable form, and may be recorded at the expense of the Defaulting
Owner, upon payment of all sums secured by a lien which has been the subject of the recarded
notice of lien.
13. Continuing Liability. The sale or other transfer of a Lot shall not extinguish or
otherwise impair the Lot Assessment lien, nor extinguish or impair the personal obligation of the
selling Owner for any delinquent Lot Assessment and interest, costs and expenses, until the same
shall have been paid in full. Notwithstanding the foregoing, the personal liability of any Owner
to pay Lot Assessments and any related interest,costs and expenses shall apply only as to any
such Lot Assessments, interest, costs and expenses which were due when the Owner became the
Owner of the Lot or which became due thereafter but priar to the date on which the Owner
ceased to be the Owner of the Lot.
14. Governmental Assessments. In the event that the Owners fail to perform any of
their obligations pursuant to this Declaration and such obligations were imposed by or for the
benetit of the City or any other governmental or quasi-governmental entity, such governmental
or quasi-governmental entity shall be entitled to pay and perform the obligations of the Owners
in connection therewith and to levy, impose, enforce and collect the costs so-paid or incurred by
such entity by an equal assessment on each of the Lots, to the fullest extent permitted by law.
iooss�3�s 5
15. Delegation of Authority. The Owners, from time to time, may delegate to one or
more of the Owners the power to arrange for the maintenance, repair and replacement of the
Private Road and the other improvements on the Common Area and to collect and properly
disburse Lot Assessments paid by the Owners.
16. Duration. The covenants, conditions, restrictions and easements in this
Declaration shall run with and bind the Property and shall inure to the benefit of and be
enforceable by and against the Owner of each Lot, and their respective legal representatives,
heirs, successors and assigns. The easements created pursuant to this Declaration shall be
perpetual. Any provision of this Declaration expressly benefiting the City, the County, or any
other governmental or quasi-governmental entity, shall be perpetual unless and until waived in
writing by that entity. All other covenants, conditions,restrictions and reservations created by
this Declaration shall continue for a term of thirty (30) years from the date of this Declaration,
after which time the same shall expire except to the extent preserved in a duly recorded
instrument, signed by all of the Owners, agreeing to extend the duration of all or any part of this
Declaration.
17. Enforcement. Each Owner shall have the right to enforce, by any proceeding at
law or in equity, all easements, covenants, conditions, restrictions and charges now ar hereafter
imposed by the provisions of this Declaration, including the collection of any Owner's pro rata
share of Common Expense. The City, the County, and any other governmental or quasi-
governmental entity, shall have the right to enforce by any proceeding at law or in equity all
easements, covenants, conditions and restrictions created by this Declaration expressly for the
benefit of such entity. In view of the purposes of this Declaration and the unique characteristics
of the Property, it is acknowledged that money damages to any Owner or any other entity in the
event of a violation of any of the terms hereof would be an inadequate remedy, due to the
ineparable and immeasurable harm done thereby. Accordingly, each Owner and any other entity
shall have the right, in addition to any other remedies available at law or in equity, to apply for
and receive from any court of competent jurisdiction in the State of Miru�esota, equitable relief
by way of restraining order, prohibitory or mandatory injunction, or other relief, to prevent and
enjoin a breach of the terms of this Declaration, or by way of specific performance to enforce
performance of the terms of this Declaration. The prevailing party shall be entitled to recover
from the non-prevailing party reimbursement for all costs and expenses of litigation, including
reasonable attorney's fees, witness fees, service of process fees, deposition costs, expert witness
fees, and any other costs incurred in securing such relief.
18. Severability. Invalidation of any provision hereof by judgment or court order
shall not affect any of the other provisions, which shall remain in full force and effect.
19. Amendment. This Declaration may be amended only by an instrument signed by
all of the Owners and any other governmental or quasi-governmental entity required under
Section 16 above.
�ooss3��s 6
, �
IN WITNESS WHEREOF, Declarants have eYecuted this Declaration on the day and
year first above w 'tten, but effective as provided above.
. � �� '
�✓ � ,, �`.
�
Bruce Paddock Mark C. Headrick
L � �
r � ���������
Laurie S. Headrick
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this �day of ,
2007, by Bruce Paddock, also known as Bruce G. Paddock, a sing e .
...�.1,...� l
T�NYA DUDYCHA Signature ofNotary Public or Ot Official
���� ri i;,r; F,ir , r,rr;:�r„ �
�1 ,r�ri �p�,.. i ,1 �_�i�o
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The faregoing instrument was acknowledged before me this ZSU day of � ,
2007, by Mark C. Headrick and Laurie S. Headrick, husband and wife.
..�H,...�.�....
TANYA DUDYCHA
���� ,,rr � �-ue� r�i�,�,r'sorA
��_� ;� ,, „ Fx,, � �,,, �, ��,� Signature of Notary Public k�r Official
�� ��
THIS INSTRUMENT WAS DRAFTED BY:
MOSS & BARNETT (JLW)
A Professional Association
4800 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4129
Telephone: (612) 877-5000
1008333v� 7