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HomeMy WebLinkAboutPrivate road document , /.3�UZ7 ,�3YZ2 C�-�7�.5 1�` �d :, � Doc No 9032754 08/31/�07 03:51 PM Certified filed and or rec ded on above date: Office of the C nty Recorder Hennepin unty, Minnesota Michael H. C nniff, County Recorder TranslD 339252 Deputy 26 Fees $35.50 DOC $10.50 SUR $46.00 Total � ��� a�t:��� �'r���ti T;`�S ��l�� r�cP�a�E�s��v���� `TRANS��� �iVT���C AUG � ? Z00� ��t�� �v-�r.��res�. � �- �� , PRIVATE ROAD, EASEMENT AND MAINTENANCE DECLARATION This Private Road, Easement and Maintenance Declaration ("this Declaration") is made this;�t! day of u�,G � , 2007, by and between Brucc 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 County, Minnesota, legally described as Lots 1 and 3, Block 1, 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") for 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. 1008333v5 NOW, THEREFORE, in consideration of the facts stated above and for other good and valuable consideration, the receipt and sufficiency of which 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 required by Section 6 below. 3. Definitions. The following words, when used in this Declaration, shall have the following meanings: (a) "Assessment": a Common Expense tixed and established by the Owners in accordance with Section 10. (b) "Common Area": Outlots A and B of the Plat. (c) "Common Expense": any expenditure made and liability incurred by or on behalf of the Owners as provided in Section 9. (d) "Lot": any of the following: Lot l, 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 far deed shall have been cancelled or otherwise shall have terminated. (g) "Person": a natural individual, corporation, limited liability 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°a Addition, Hennepin County, Minnesota. (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. �ooss�3�s 2 (k) "Storm Water Facilities": the rain gardens and other facilities, now ar hereafter located within the Storm Water Facilities Area, far 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 subject 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 benetit of the City, far 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 authority 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-exclusive 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 corparation. 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, eauses 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�3�s 3 claims, actions, causes of action and damages arising from the use of the Common Area by the indemnifying Owner or 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 Bracketts 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 ihan 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 ot; 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. 11. 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 1008833v� C} 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 fareclose, 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. "I'he 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 sueh 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 fareclosure 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, including 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 ar otherwise impair the Lot Assessment lien, nor extinguish ar 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 prior 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 perfarm any of their obligations pursuant to this Declaration and such obligations were imposed by or for the benefit 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. �oosa3��s 5 15. Delegation of Authority. The Owners, from time to time, may delegate to one ar 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 ar in equity, all easements, covenants, conditions, restrictions and charges now or 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 irreparable 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 Minnesota, 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, eYpert 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. iooss3��s 6 , . . � IN WITNESS WHEREOF, Declarants have executed this Declaration on the day and year first above w 'tten, but effective as provided above. ,� , / f,`� !, � � Bruce Paddock Mark C. Headrick ���� • �� ����� 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 . l TANYA DUD�'CHA SignatureofNotaryPublicorOt Official ��,'� ; �,�� � �F_ �� ,,�,� ���T,. �c� ��; .,�,�„� � �,,�:,. �,�� ., ��: STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this l�U day of � , 2007, by Mark C. Headrick and Laurie S. Headrick, husband and wife. �.,..s.��.+�. TAIJYA DUDYCHA �.���� :f�iF PJE°,LI'.� 411'�IMFSOI%1 ��.� ;�, „ „ Fx,>, � ,,,�, ,� �o,� Signature of Notary Public �- �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 i ooas»�s 7