HomeMy WebLinkAboutShared driveway easement/covenants � • � - � � ?�q�5 No� S�O�. t��
' Transfer Entered
Oct 20, 2016 4:30 PM
Hennepin County, Minnesota
Doc No A10374395
Mark Chapin Certified, filed and/or recorded on
County Auditor and Treasurer Oct 20, 2016 4:30 PM
Office of the County Recorder
Hennepin County, Minnesota
Martin McCormick, County Recorder
Mark Chapin, County Auditor and Treasurer
Deputy 71 Pkg ID 1466812M
Document Recording Fee $46.00
Document Total $46.00
This cover sheet is now a permanent part of the recorded document.
DECLARATION
OF
SHARED DRIVEWAY EASEMENT
AND
RELATED COVENANTS
THIS DECLARATION is made as of September 23, 2016, by B. John Lindahl, Jr.
and Sarah B. Lindahl, husband and wife (the "Lindahls" or the "Declarants").
RECITALS :
A. The Lindahls own two adjoining parcels of real estate situated in Hennepin
County, Minnesota (together, the "Parcels" and individually, a "Parcel"). The Parcels
are located befinreen Lake Minnetonka to the south and County Road No.51, also known
as North Shore Drive, to the north. A survey of the Parcels, which survey shows (i) the
new dividing line between the Parcels, and (ii) the location of the Driveway Easement
described below is attached hereto for reference as Exhibit A.
B. The easterly Parcel is commonly known as 2465 North Shore Drive, and
the westerly Parcel is commonly known as 2485 North Shore Drive. The legal
descriptions for the Parcels are as set forth on Exhibits B and C hereto.
C. The Parcels share a common driveway that provides access to County
Road No. 51, also known as North Shore Drive, which lies along the northerly boundary
of the Parcels.
D. Currently, the Parcels are subject to and benefited by a driveway
easement (the "Old EasemenY') described in Deed Document No. 3127283, filed with
the Hennepin County Recorder. The Old Easement is also referred to in Document
Nos. 3841046 and 3874406.
E. Declarants desire to terminate the Old Easement, and to create a new
shared driveway easement (the "Driveway Easement"), as further described below, for
vehicular and pedestrian access purposes to and from the Parcels to and from North
Shore Drive, over the following described portions of the Parcels (the "Driveway
Easement Area"), for the use and benefit of the Parcels:
The Driveway Easement (Driveway Easement Area) is a strip of land 12
feet in width within the Parcels, the center line of said Driveway Easement being
described as follows: Commencing at a point in the center line of County Road
No. 51 which point is 437.4 feet due West of a point in the East line of said
Section 9, distant 1260 feet South of the East quarter corner of said section;
thence North 63 degrees 08 minutes West along the center fine of said county
road a distance of 50 feet; thence North 61 degrees 17 minutes West along the
center line of said road 38.0 feet to the point of beginning; thence South 38
degrees 07 minutes West, a distance of 78 feet; thence Southwesterly along a
tangential curve to the right with a radius of 180 feet, a distance of 103.0 feet;
thence South 70 degrees 54 minutes 06 seconds West, a distance of 85.25 feet,
to the intersection with said "Line Z," said point of intersection being hereinafter
referred to as "Point A"; thence continuing South 70 degrees 54 minutes 06
seconds West, a distance of 20.70 feet; thence Southerly along a tangential
curve to the left with a radius of 25 feet, a distance of 43.06 feet; thence South 27
degrees 46 minutes 31 seconds East, a distance of 5.53 feet to the intersection
with said "Line Z" and said line there terminating. The sidelines of said Driveway
Easement shall be extended or shortened to terminate at the centerline of
County Road No. 51 and said "Line Z."
F. The shared driveway is referred to herein as the "Driveway," and the area
and location of the Driveway Easement are referred to herein as the "Driveway
Easement Area." The legal description of the Driveway Easement Area is as set forth
above.
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NOW, THEREFORE, the Declarants, for themselves and their heirs, personal
representatives, successors and assigns, hereby covenant and agree as follows, and
hereby declare and create the following perpetual, driveway access easement and
related covenants, all of which shall run with the Parcels, and be binding upon the
respective owners and occupants (respective�y, the "Owners" and the "Occupants")
from time to time of the Parcels:
1. Termination of Old Easement� Declaration of Driveway Easement� Use of
Easement: Setback Restriction.
1.1 Declarants hereby declare that the Old Easement terminated by
reason the merger of Declarants' fee and easement estates. Declarants hereby
declare and confirm that the Old Easement is and has been terminated; that the
Old Easement shall be without further force or effect; and that the Old Easement
shall no longer be binding upon, or be an encumbrance on, the Parcels or either
of them.
1.2 Declarants hereby declare, grant, transfer and convey to the
Owners of the Parcels, their heirs, personal representatives, successors and
assigns, a perpetual easement (the "Driveway Easement") for private driveway
ingress and egress, both pedestrian and vehicular, for the use and benefit of the
Parcels, and for the use by the Owners and Occupants and their guests and
invitees.
1.3 The use of the Driveway Easement created by this Declaration
shall in each instance be subject to all terms and conditions of this Declaration.
1.4 Except as may be necessary in connection with the maintenance or
improvement of the Driveway Easement Area, no Owner or Occupant shall
obstruct or interfere with the rights and privileges of other Owners or Occupants
in the Driveway Easement Area. No Owner or Occupant shall obstruct or
interFere with the passage of any vehicle over or across the Driveway Easement
Area. No vehicles shall be parked in or on the Driveway Easement Area, except
on a temporary and occasional basis, as, by example, in the case of a social
event or party occurring on one of the Parcels.
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1.5 An Owner may delegate his/her/its right of enjoyment to the
Driveway Easement Area to such Owner's tenants who may occupy such
Owner's Parcel, and to such Owner's guests and invitees.
1.6 No Owner may exempt himself from the liability for paying such
Owner's Cost Share of Driveway Easement Area Costs, as those terms are
hereinafter defined, by waiver of the use or enjoyment of the Driveway Easement
or Driveway Easement Area, or by the abandonment of such Owner's Parcel.
1.7 No building, edifice, structure, monument, fence, sign or other
above grade improvement shall be located, placed, erected or constructed within
ten (10) feet of either side of that portion of the Driveway Easement Area on the
2485 Parcel.
2. Drivewav Installation: Easement Area Costs.
2.1 The Driveway has been installed, and the initial cost of constructing
the Driveway has been paid.
2.2 From and after the date hereof, the Owners, from time to time, of
the Parcels shall pay, in the respective Cost Shares set forth below, all costs,
fees, expenses and other charges and expenditures associated with the
Driveway Easement Area (the "Easement Area Costs"), including, without
limitation (a) all costs of maintaining, repairing and replacing, if necessary, the
Driveway within the Driveway Easement Area to at least the standard of quality
as may be required from time to time by any applicable regulations and
ordinances of the County or Municipality in which the Parcels are located; (b) all
costs of snow plowing and snow removal, sanding and salting, as necessary,
sweeping and the clearing of any debris, lighting, striping and curbing, all as may
be reasonably necessary or as may be required by applicable County or
municipal regulations or ordinances; (c) such liability insurance or other
insurance, if any, as may be required in addition to a standard policy of property
insurance; (d) the expense of such landscaping and grounds maintenance as
may be required from time to time to maintain the Driveway Easement Area and
the landscaping associated therewith in a neat, clean, well maintained and
attractive condition; (e) such capital expenditures as may be reasonably required
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to repair, maintain and replace, if necessary, the Driveway within the Driveway
Easement Area and any related improvements, and to keep the same in good
condition and repair; and (e) any Driveway Easement Area real estate taxes and
special assessments, to the extent the Driveway Easement Area is separately
assessed.
3. Cost Shares. The Owners of the Parcels shall pay and be responsible for
the following respective percentage shares ("Cost Share" or "Cost Shares") of the
Easement Area Costs:
The Owner(s) of the 2465 Parcel � 50%
The Owner(s) of the 2485 Parcel 50%
4. Administration. The Owners of the 2465 Parcel and such Owners'
successors and assigns shall administer the provisions of this Declaration until and
unless the Owners of the Parcels both agree to the appointment of a different
Administrator. The Owner then acting as the Administrator of this Declaration (the
"Administrator") shall make all decisions with respect to what Driveway Easement Area
repair or improvement is to be perFormed, what times or frequency the repairs or
improvements are to be made, and what Easement Area Costs are to be incurred and
billed, and what times or frequency the billings are to be made. The Administrator, in
his, her or its reasonable discretion, may determine the procedure for billing the Owners
.
of the Parcels, and may bill the Owners in advance of Easement Area Costs being
incurred. Such costs may be billed for such periods of time, and at such frequency as
the Administrator may reasonably determine from time to time. The Administrator shall
pay any Driveway Easement Area real estate taxes and special assessments, to the
extent the Driveway Easement Area is separately assessed, subject to reimbursement
by the Owners as part of Easement Area Costs, and shall maintain, or cause to be
maintained, the Driveway Easement Area in a neat, clean and attractive manner and in
a manner at least consistent with the applicable provisions of the County's or
Municipality's ordinances. The decisions of the Administrator shall be at the
Administrator's reasonable discretion; provided, however, that an Owner may seek, by
action for declaratory judgment or other appropriate remedy, a determination by the
Hennepin County District Court of the reasonableness of the Administrator's decisions.
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In such event, the Court's decision of reasonabieness shali be determinative, but the
Administrator shall not be liable for damages in the event the Administrator's decisions
are revoked, overruled, supplemented or otherwise amended.
5. Payment of Cost Shares. Each Owner of a Parcel shall pay the
Administrator a sum equal to such Owner's Cost Share, in monthly, quarterly, semi-
annual or annual installments, as determined by the Administrator. Unless otherwise
elected by the Administrator, such installments shall be payable in advance, and shall
be due on the first day of such payment period. Installments not paid within ten (10)
days of the due date thereof shall accrue interest from such due date at the rate of three
percent (3%) per annum above the prime rate published in the Money Rates section of
the Wall Str�eet Joumal (or a comparable substitute rate chosen by the Administrator, if
the Wall Street Jouma/ prime rate is no longer available), or at the highest interest rate
permitted by law, whichever is less (the "Default Rate"). If payable in advance, such
installments shall be based on the Administrator's reasonable estimate of Easement
Area Costs made and given to each Owner of a Parcel at the beginning of each
calendar year or as soon thereafter as may be reasonable. Within sixty (60) days after
the end of each calendar year, or as soon thereafter as may be reasonable, the
Administrator shall furnish an itemized statement of actual Easement Area Costs and
each Parcel Owner's Cost Share thereof. If, at the end of any calendar year, the
amount paid by the Owner of a Parcel during the preceding calendar year is less than
such Owner's Cost Share, as shown on the statement, such Owner shall pay such
deficiency within ten (10) days of notice thereof. In the event such Owner has paid
more than its Cost Share, as shown on the statement, such overpayment shall be
credited against the next payment due the Administrator hereunder. The Administrator
may, in its discretion, and at any time or times, change its billing procedure or change
its estimate of Easement Area Costs to reflect changes in the cost of items constituting
Easement Area Costs.
6. Liabilitv Insurance: Waivers of Claims. The Owners shall carry, for the
benefit of themselves and the Owners of the other Parcel, as a part of their property
insurance, or as a rider thereto, liability insurance relating to their use and enjoyment of
the Driveway Easement Area. Each Owner hereby waives any claims against each
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other Owner for damages resulting from, or in any way related to, the use and
enjoyment of the Driveway Easement Area.
7. Enforcement.
7.1 Remedies. In the event of any violation or threatened violation of
any of the terms, restrictions, covenants or conditions provided in this
Declaration, any one or more of the Administrator and the Owners of the Parcels,
and any of their respective successors or assigns, shall have the right to enjoin
such violation or threatened violation in a court of competent jurisdiction, as well
as the right to obtain an order compelling specific perFormance of the obligations
set forth herein, and to recover their attorneys' fees and costs incurred in
prosecuting any such action to obtain an injunction or order compelling specific
perFormance. In addition, in the event the Administrator has not cured a default
by it within the notice period provided below, the Owners of the Parcels, and any
of them, may cure such default, and set off the cost of curing such default from
future payments of Easement Area Costs due from the Owner or Owners
effecting such cure.
7.2 Act of God. If performance of any act or obligation hereunder,
except the obligation to pay Easement Area Costs, is prevented or delayed by
act of God, war, labor dispute or other cause or causes beyond the reasonable
control of the party who is to perform such obligation, the time for the
performance of the act or obligation shall be extended for the period that such act
or perFormance is delayed or prevented by any such cause.
7.3 Notice Before Default. An Owner shall not be in default under this
Declaration, except under such provisions as require payment or performance on
or before a specific date or within a specified period of time, unless such Owner
has been given a written notice specifying the default, and fails to cure it within
ten (10) days of such notice, or within such longer period of time as may be
reasonably required to cure such default, up to a maximum of thirty (30) days.
7.4 Collection of Cost Shares. Each present Owner of a Parcel, and
each future Owner of a Parcel, whether or not it shall be so expressed in the
conveyance or assignment to such Owner, hereby covenants with the Owners of
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the other Parcel that such Owner shall pay promptly when due such Owner's
Cost Share of Easement Area Costs. Each Owner's Cost Share of Easement
Area Costs, together with interest at the Defauit Rate, and costs and attorneys'
fees incurred in collection thereof, shall be a lien against such Owner's Parcel
from the date such Cost Share, or any installment payment thereof, becomes
delinquent, and such lien may be enforced by foreclosure thereof in the same
manner as a mortgage either by action or by advertisement, the power of sale
being hereby expressly granted. However, such lien shall be subordinate to the
lien of any first mortgage on a Parcel, and the sale or transfer of a Parcel
pursuant to mortgage foreclosure or any proceeding in lieu thereof shall
extinguish the lien of such Percentage Share as to payments thereof which
became due prior to such sale or transfer. No such sale or transfer shall relieve
a Parcel or its Owner from liability for any installments of Easement Area Costs
thereafter becoming due or from the lien thereof. Any lien claim filed for record
pursuant hereto shall terminate one (1) year after the filing thereof, unless a
foreclosure by advertisement or by action has been initiated before the end of the
one-year period. In addition, each such installment of Easement Area Costs,
together with interest thereon at the Default Rate, and costs and attorneys' fees
incurred in collection thereof, shall be the personal obligation of the person or
entity who was the Owner of the Parcel at the time such installment became
payable. The personal obligation for delinquent payments of Easement Area
Costs shall not pass to such Owner's successors in title unless expressly
assumed by them. Such personal obligations may be enforced by an action at
law and by judgment against the Owner in question.
8. Condemnation. In the event the whole or any part of, or any interest in,
the Driveway Easement Area is or are taken for any public or quasi-public use under
any governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof, the Owner(s) of the Parcel(s) in which the taking occurs
shall be entitled to the entire award, compensation or other payment made by reason of
the taking of the Driveway Easement Area or any part thereof, or any interest therein,
within that Owner's Parcel, as may be determined in such proceeding. Nofinrithstanding
8
the foregoing, each Owner shall be free to pursue independently claims in
condemnation relating to a denial or curtailment of access to such Owner's Parcel or to
the diminution in value of such Owner's Parcel by reason of the loss of access.
9. Future Conveyances. The Driveway Easement and the covenants
created and declared by this Declaration shall be incorporated by reference in all future
conveyances, mortgages, assignments and other transfers of the Parcels, or portions
thereof; provided, however, that notwithstanding any failure to incorporate this
Declaration by reference in such future conveyances, mortgages, assignments and
other transfers, such easements and covenants shall run with the Parcels as easements
and covenants appurtenant thereto without the necessity of specific reference thereto or
conveyance, assignment, mortgage or other transfer thereof.
10. No Dedication. Nothing contained in this Declaration shall be deemed to
constitute a gift, grant or dedication of any portion of the Easement to the general public
for any public purpose whatsoever, it being the intention of the Declarants that, except
as otherwise set forth herein, this Declaration shall be strictly limited to the private use
of the Owners and Occupants of the Parcels. This Declaration is intended to benefit the
Owners and their respective successors and assigns, and is not intended to benefit any
person as a third-party beneficiary hereunder or to give any such person any rights
hereunder. '
11. Amendment: Termination. The Driveway Easement and the covenants
created and declared by this Declaration may, at any time and from time to time, be
amended or terminated upon the filing for record in the office of the Hennepin County
Recorder/Registrar of Titles an agreement amending or terminating this Declaration, as
the case may be, executed in the manner required by law for the recording of a
conveyance of real property by all of the then Owners, both legal and equitable, of the
Parcels, and consented to by the mortgagees of the Parcels, if the Parcels are then
subject to a mortgage or mortgages.
12. Term. The covenants created by this Declaration shall continue in full
force and effect for so long as the Driveway Easement created and declared hereby
shall continue.
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13. Warranties of Title. Declarants represent and warrant that they are the fee
owners of the Parcels.
14. Miscellaneous.
14.1 Notices. Any notices and other communications permitted or
required by the provisions of this Declaration shall be in writing and shall be
deemed to have been properly given or served by depositing the same with the
United States Postal Senrice, or any official successor thereto, designated as
registered or certified mail, return receipt requested, bearing adequate postage,
or delivery by reputable private courier, and addressed to the respective
addresses of the Parcels or to a different address within the United States of
America as otherwise designated by an Owner following at least ten (10) days
prior notice thereof to the other Owners. Each such notice shall be effective
upon being so deposited. The time period within which a response to any such
notice must be given shall commence to run one business day after the date the
notice is given. Rejection or other refusal to accept or the inability to deliver
because of changed address of which no notice was given shall be deemed to be
receipt of the notice sent. By giving at least ten (10) days notice thereof, a
Declarant, Owner or Occupant shall have the right from time to time and at any
time during the term of this Declaration to change its address and shall have the
right to specify as its address any other address within the United States of
America.
14.2 No Partnershia. Nothing contained in this Declaration and no
action by the Declarants or Owners shall be deemed or construed by the
Declarants or Owners or by any third person to create the relationship of principal
and agent, or a partnership, or a joint venture, or any association between or
among any of the Declarant or Owners.
14.3 Severabilitv. If any provision of this Declaration is, to any extent,
declared by a court of competent jurisdiction to be invalid or unenforceable, the
remainder of this Declaration (or the application of such provision to persons or
circumstances other than those in respect of which the determination of invalidity
or unenforceability was made) shall not be affected thereby, and each provision
10
of this Declaration shali be valid and enforceable to the fullest extent permitted by
law.
14.4 Governing Law. This Declaration shall be construed in accordance
with the laws of the State of Minnesota.
14.5 Caqtions. The captions of the paragraphs of this Declaration are
for convenience only and are not intended to affect the interpretation or
construction of the provisions herein contained.
14.6 Time. Time is of the essence of this Declaration.
14.7 Bindinq Effect. The provisions of this Declaration shall be binding
on the Owners and their respective successors and assigns.
IN AGREEMENT, this Declaration has been executed by the Declarants effective
as of the date first above written.
DECLARANTS:
B. John Lindahl, Jr.
�a�� - I�
Sarah B. Lindahl
11
State of Minnesota )
) ss.
County of Hennepin )
This instrument was acknowledged before me on September 23, 2016, by B.
John Lindahl, Jr. and Sarah B. Lindahl, husband and wife.
. •
JOHN B. WINSTON
; NOTARY PUBLJC-MpVNESOTA Nota I IC
My Cornm�ssion Expires
January 37,2020
r • • r
THIS INSTRUMENT DRAFTED BY:
John B. Winston
Winston Law Office
815 Wayzata Blvd. East
Wayzata, M N 55391
12
. , . , . ,
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EXHIBIT B
LEGAL DESCRIPTION FOR 2465 NORTH SHORE DRIVE
(THE 2465 PARCEL)
That part of Government Lot 5, Section 9, Township 117 North, Range 23 West
of the 5th Principal Meridian described as follows: Commencing at a point in the center
line of County Road No. 51 which point is 437.4 feet due West of a point in the East line
of said Section 9, distant 1260 feet South of the East quarter corner of said section;
thence North 63 degrees 08 minutes West along the center line of said county road a
distance of 50 feet; thence North 61 degrees 17 minutes West along the center line of
said road, a distance of 100 feet; thence North 59 degrees 11 minutes West along the
center line of said road a distance of 32.96 feet; thence South 33 degrees 22 minutes
29 seconds West, 510.9 feet, more or less, to the shore of Lake Minnetonka, said last-
mentioned line being hereinafter referred to as "Line Z"; thence Southeasterly along
said shore line to its intersection with a line bearing South 40 degrees 07 minutes West
from the point of beginning; thence North 40 degrees 07 minutes East, 523 feet, more
or less, to the point of beginning. For the purpose of this description the East line of
Government Lot 5 is assumed to be a true North and South line, according to the United
States Government Survey thereof and situate in Hennepin County, Minnesota.
14
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+
EXHIBIT C
LEGAL DESCRIPTION FOR 2485 NORTH SHORE DRIVE
(THE 2485 PARCEL)
That part of Government Lot 5, Section 9, Township 117 North, Range 23, West of the
5th Principal Meridian, described as follows: Commencing at a point in the center line of
County Road No. 51, which point is 437.4 feet due West of a point in the East line of
said Section 9, distant 1260 feet South of the East quarter corner of said Section;
thence North 63 degrees 08 minutes West along the center line of said county road, a
distance of 50 feet; thence North 61 degrees 17 minutes West along the center line of
said road, a distance of 100 feet; thence North 59 degrees 11 minutes West along the
center line of said road a distance of 214.6 feet; thence South 40 degrees 07 minutes
West, 465.6 feet, more or less, to the shore of Lake Minnetonka; thence Southeasterly
along said shore line to its intersection with a line drawn South 40 degrees 07 minutes
West from the point of beginning; thence North 40 degrees 07 minutes East, 523 feet,
more or less, to the point of beginning; EXCEPT that part thereof described as follows:
Commencing at a point in the center line of County Road No. 51 which point is 437.4
feet due West of a point in the East line of said Section 9, distant 1260 feet South of the
East quarter corner of said section; thence North 63 degrees 08 minutes West along the
center line of said county road a distance of 50 feet; thence North 61 degrees 17
minutes West along the center line of said road, a distance of 100 feet; thence North 59
degrees 11 minutes West along the center line of said road a distance of 32.96 feet;
thence South 33 degrees 22 minutes 29 seconds West, 510.9 feet, more or less, to the
shore of Lake Minnetonka, said last-mentioned line being hereinafter referred to as
"Line Z"; thence Southeasterly along said shore line to its intersection with a line
bearing South 40 degrees 07 minutes West from the point of beginning; thence North
40 degrees 07 minutes East, 523 feet, more or less, to the point of beginning. For the
purpose of this description the East line of Government Lot 5 is assumed to be a true
North and South line, according to the United States Government Survey thereof and
situate in Hennepin County, Minnesota.
15