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HomeMy WebLinkAboutDeclaration of Reciprocal Easements 06.0807 2006 1 :01 PM NO. 1215 P. 2 Doc. No. A 748834 OFFICE OF THE COUNTY RECORDER SCOTT COUNTY, MINNESOTA Certified Filed and/or Recorded on • 08-21-2006 at 11:00 Receipt:576229 Pat Boeckman, County Recorder• • o� Fee: $ 46.00 • • DECLARATION OF RECIPROCAL EASEMENTS i By this Dedlaration made as of thA4'^day o , 2006, SHEPHERD OF THE LAKE EVANGELICAL LUTHERAN CHURCHO a Minnesota nonprofit corporation, and SHEPHERD'S PATH SENIOR HOUSING, INC., a Minnesota nonprofit corporation, do hereby declare that the real property described in Paragraph 1.10 shall be held'and conveyed subject to the terms, easements, covenants, restrictions and conditions herein, each of which shall run with the 'title to the land, and which shall be binding on and;inure to the benefit of all Persons (as!defined below) having o; acquiring any right, title or interest in the property, or any portion thereof, and their heirs, representatives, successors and assigns. • • 1. DEFINITIONS. The following words, when!used in this Declaration, unless the context indicates otherwise, shall have the following meanings: 1.01 "Declarant"or"Declarants" mean either, or both, of Shepherd of the Lake Evangelical Lutheran Church or Shepherd's Path Senior Housing, Inc., or their respective succes9ors or assigns who take title to any portion of the Property and are designated as a Declarant in a recorded instrument executed by an immediately preceding Declarant. • 1.02 "Declaration"means this document, including amendments. .1.03 "Government Regulations" means federal, State, county or municipal laws, rules, ordinances,;regulations, directives, orders, permits and requirements now or hereafter in force!with respect to the Property. • 1.04 "Lot" or"Lots" mean either, or both, of Lots 1 and 2, Block 2, Shepherds Path Addition, Stott County, Minnesota. 080806 RETURN TO... First American Title Insurance Co. National Commercial Services t 900 Midwest Plaza 1 ' ' 101 NIcollet Mall °MInneapolts, MN 65402 ICS-14,1*ot MPLS (JG) J. 2006 1 : 02PM N0, 1215 P. 3 Y I , 1.05 "Mortgagee"means any Person owning a mortgage on any Lot, which mortgage is first inipriority upon foreclosure to all other mortgages that encumber such Lot. • 1.06 "Occupant" means a Person, other than the owner, in possession of any portion of a Lot. • 1.07 "Owner" means one or more Persons who own a Lot, but excluding contract for deed sellers, Mbrtgagees and other secured parties. The term "Owner"includes, without limitation,;contract for deed purchasers, holders!of life estates and the lessee under a"Ground tease" (as defined hereafter). A"Gro.nd Lease"shall mean a lease with a term (including renewal or extension rights) of not less than 25 years and the lessee, rather than the lessor, shall be responsible for constructing any building or other improvements to tie occupied thereon. 1.08 "Person"means an individual, corporation,:limited liability company, partnership, trustee, personal representative, guardian, conservator, governmental subdivision or agency, or other legal entity. 1.09 "Permittee"means all Occupants or Owners of the Lots and their respective officers, directors,;employees, servants, agents, partners, contractors, mortgagees, customers, visitors, invitees, licensees, tenants or subtenants and consessionaires. 1.10 "Property"means Lots I and 2, Block 2, Shepherds Path Addition, Scott County, Minnesota. 1.11 "Proportionate Share"means 5000% for each Lot, 2. EASEMENTS. • 2.01 Grant. Subject to the terms and conditions:of this Declaration and any reasonable rules and regulations adopted for the use of each Lot by the Owner thereof, Declarant hereby declares, establishes and grants the following nonexclusive perpetual easements (the easements established by this Section 2 being collectively referred to as the"Easements")j which shall be for the use and benefit of the OWners and their respective Permittees: (a)Access. For vehicular ingress, egress and access to and from the public streets adjacent tel the Lots, and between the Lots, over those portions of each.Lot improved by the Owner thereof from time to time for vehicular accessways as such . portions may be reduced, increased or relocated from time to time by each,such Owner. • • 2 J. 2006 1 : 02PM NO. 1215—P. 4 • • (b) Pledestrian. For pedestrian access upon those portions of each.Lot which are improved by the Owner thereof from time to time for,pedestrian walkways and made available by each Such Owner for general use, as such portions may be reduced, increased or relocated from time to time by such Owner. (c) Plarking. For the parking of vehicles upon those portions of each Lot which are improved by the Owner thereof from time to time for general parking purposes, as such portions May be reduced, increased or relocated from time to time by each such Owner. • • (d) Common Components. For the purpose of furnishing connection, support and attachment to walls, footings, foundations, Slabs, roofs and other structural systems of any improvement now or hereafter constructed on each Lot ("Common Components"), th encroachment of such Common Cozriponents, and the maintenance, repair and replacefnent of any Common Components; .limited,however, to those portions of each Lot on whiich an improvement is contiguous to an improvement constructed on another Lot. Any!Owner of a Lot ("Benefitted Lot") which desires to claim the benefit of, the foregoing easement for Common Components and encroachments will be entitled to exercise such right on the following conditions; (i)The Owner of the Benefitted Lot will submit plans and spedifications showing the Common Component proposed to be constructed on the Benefitted Lot to the Owner of the Lot("Burdened Lot") which will be burdened by the easements hereby created for approval of such plans and specifications by the Owner of the Burdened Lot. (ii)Approval of such plans and specifications by the Owner of the Burdened Lot will'constitute a designation of the portion(s) of the Burdened Lot!to be used for the purposes therein described. • (iii) The construction of the Common Components on the Benefitted Lot!will be diligently prosecuted by the Owner thereof with due care and in accordance with sound design, engineering and construction practices in a maim er which is customary for such imprlovements and which will not unreasonably interfere with the use of the&Burdened Lot or the improvements thereon or impose an unreasonable load on such improvements. • (iv) The Owner of the Benefitted Lot shall indemnity, defend and hold the Owner of the Burdened Lot harmless from all loss, cost, damage and'expense (including reasonable attorneys' fees) arising from the construction of the Common Components on the Benefitted Lot and the exercise of the rights of the Owner of the Bene,fitted Lot hereunder. When the exercise of the rights hereby granted tb the Owner of the Benefitted Lot requires entry upon the Burdened Lot or the improvements thereon, the 3 .J. 2006 1 : 02PM NO. 1215—P. 5 Owner of the Benefitted Lot will give due tegard to the use of the Burdened Lot and the improvements thereon in the exercise of such rights and will promptly repair, replace or restore any andall improvements on the Burdened Lot which are damaged or destroyed in the exercise of such rights. (v) Absent a definitive agreement to the contrary, subsequent to the • completion of the improvements to the Benefitted Lot, the Owner of the Burdened Lot and the Owner of the Benefitted Lot shall pay their respective Proportionate share of the cost of maintenance,repair and replacement of any Common Component constructed by dither of them. (vi)The Owner of the Burdened Ldt agrees on the written request of the Owner of the Benefitted Lot, to execute and deliver an instrument in recordable form legally sufficient to evidence the grant of the easements herein described, th,e location thereof and sucde,other conditions affecting the grant of such easements, as might have been approved by such Owners. (e) Maintenance and Emergency Access. For maintenance of, and emergency access to, any improvements now or hereafter, located on the Lots over those portions of the Easterly 5.00 feet of Lot 1 and the Westerly 25.00 feet of Lot 2 not occupied by Common Components. (f) Self Help Easement. To enter upon the Lou for all purposes reasonably necessary to enable any other Owner of a Lot to perform any of the provisions of this Declaration which a defaulting Owner has failed to perform. 2.02 Restrictions. The Easements are subject to the following general restrictions: (a) Barriers. No barricade or other divider shall be constructed between the Lots, and the Owners will do nothing to prohibit or discourage the free and uninterrupted flow of vehicular or pedestrian traffic between the Lots in the areas designated for such purpose by the Owner of each Lot;provided that each Owner will have the right to temporarily erect barriers to avoid the possibility of dedicating such areas for public use or creating prescriptive rights therein. (b) Rules, Each Owner specifically reserves the right, at any time and from time to time, to promulgate such rules and regulations applicable to the Owner's Lot as might be reasonably imposed to promote the health, safety, welfare and security of such Lot, the improvements located thereon, and the Permittees of such Owner. • (c) Unauthorized Use. Each Owner may,.at any time and from time to time, remove, exclude and restrain any Person from the use, occupancy or enjoyment of any of the Easements or the area covered thereby for failure to:observe the reasonable rules and regulations established as provided herein. If unauthorized use is being made of any of 4 .x. 2006 1 :02PM NO. 1215 P. 6 the Easements by any of the Owners or their respective Permittees, such unauthorized use may be restrained or terminated by appropriate proceedings after written notice to the defaulting Owner or Permittee, and failure to abate such Unauthorized use within a reasonable time. 3. MAINTENANCE. Except to the extent that stttcb, areas might be operated and maintained by public authorities or as otherwise provided in Paragraph 2.01(d)(v), the Owner of each burdened Lot will operate and maintain all of the areas of the burdened Lot which are subject to the Easements in sound commercially reasonable structural and operating condition and repair at the sole expense of the Owner of the burdened Lot. Maintenance items include, without limitation, the surface of the Easements,the bituminous or other underlay, curbs, gutters, lighting facilities, striping,markers and directional signs. 4. RESTRICTIONS. 4.01 General. Each Lot may be used for lawful purposes in conformance with any restrictions imposed by applicable Governmental Regulations. 4.02 Separation Between Buildings. Except for Common Components that comply with applicable Governmental Regulations, the Owners shall maintain a minimum separation of 30.00 feet between any building's constructed adjacent to the common boundary between the Lots, 5. INDEMNITY. 5.01 Indemnity. Each Owner agrees to indemni..Y, defend and hold harmless each other Owner from all claims arising from the use of the Easements to the extent that such use occurs within the boundaries of the Lot of such Owner. The Owner of each Lot on which construction is performed agrees to indemnify, defend and hold harmless each other Owner and each other Owner's Lot and the improvements located thereon from all loss, cost, damage, and expense (including reasonable attorneys' fees) resulting from the assertion of any mechanics' or other liens. 5.02 Waiver of Subrogation, Each Owner agrees to maintain policies of fire and extended coverage insurance and public liability insurance issued by reputable companies in amounts and on policy terms customary for the improvements of such Owner. Neither Owner shall be liable to the other or to.any insurance company (by way of subrogation or otherwise) insuring the other party for any loss or damage that is covered by fire or extended coverage insurance benefitting the party suffering such loss or damage or was required to be covered by such insurance pursuant to this Paragraph 5.02. This waiver of subrogation controls to the extent it is in conflict with the indemnification provision set forth in Paragraphs 2.01(l)(iv) and 5.01. S d. 2006 1 ;02PM NO. 1215 P. 7 6. NO DEDICATION. This Declaration does not constitute a grant or dedication of any portion of a Lot to the general public or for any ptiblic purpose whatsoever.This is intended to benefit only the Owners and their respective successors and assigns, and is not intended to constitute any Person not an Owner as a third party beneficiary or give such Person any rights hereunder. 7. AMENDMENT. This Declaration may be amended only with the express written consent of all Owners of the Lots. No arnendmeht of this Declaration shall affect the rights of the holder of any mortgage then constituting a lien on any Lot without the consent of the Mortgagee, nor shall any amendment be effective against any Mortgagee acquiring title to a Lot by foreclosure or deed in lieu thereof, unless the Mortgagee has consented thereto in writing. 8. CONDEMNATION. In the event the whole,or any part, of a Lot is 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, an Owner benefitted by any of the Easements shall not share in any award, compensation or other payment made by reason of the taking; and such award, compensation or other payment will belong entirely to the Owner of the Lot which is taken, and such Owner will have no further liability to any other Owner for the loss of such Easements, or portion thereof, located on the Lot so taken. 9. REMEDIES AND ENFORCEMENT. 9,01 Equitable Remedies. In the event of a breach or threatened breach by any Owner or Permittee of any of the terms, easements, covenants,restrictions or conditions hereof, any other Owner shall be entitled to full and adequate relief by injunction and all such other equitable remedies from the consequences of such.breach, including specific performance. 9.02 Self Help. In the event any Owner fails to:perform any of the provisions of this Declaration, any other Owner will have the right, without obligation, to enter upon the Lot of such defaulting Owner and perform the obligations of the defaulting Owner hereunder; provided, however, that written notice of sub.intention, specifying the nature of the alleged default and the actions to be performed, has been given to the defaulting Owners not less than 10 days prior to the commencement of such action or not less thara 24 hours prior to such commencement if, in the reasonable judgment of, the Owner giving notice, such default is of an emergency nature. During such 10-day or 24-hour period, as the case may be, the defaulting Owner will have the right to perform or commence performance of action appropriate to remedy such defad,lt, and provided such action is diligently carried to completion, the right of such other Owner to perform the obligation of the defaulting Owner will terminate. If an Owner elects to perform the action to have been performed by a defaulting Owner, on completion of such action, or from time to time, if the action is of a continuing nature, an itemized:statement of the cost thereof will 6 Ld. 2006 1 :03PM NO. 1215—"P. 8 • be submitted to the defaulting Owner and the amount thereof will be immediately due and payable by the defaulting Owner which amount will beat interest at the rate of 8 percent per annum until paid. 9.03 Force Majeur. If performance of an action by any Owner is prevented or delayed by act of God, war, labor disputes or other cause beyond the reasonable control . of such Owner, the time for the performance of such action will be extended for the period that such action is delayed or prevented by such cause. 9.04 Notice of Default. An Owner will not be in default under this Declaration unless the Owner has received written notice specifying;the nature of such default and has failed to cure or commence appropriate action to cure such default within the times herein provided. 10. DISPUTES. Except with respect to proceedings for injunctive relief under Paragraph 9.01 above, in the event of any dispute concerning the Easements, or otherwise arising out of this Declaration or any provision thereof, the Owners shall first try in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the Americo Arbitration Association, If the dispute is not fully resolved within 30 days of the event causing the dispute, the dispute shall be submitted to binding arbitration under the rules of the American Arbitration Association. The decision of the arbitrator shall be final and conclusive on the questions involved. The Owners shall each pay their respective Proportionate share of the reasonable fees of the mediator and arbitrator 11. TERM. This Declaration shall be effective and in full force and effect for 30 years from the date hereof. At the end of said 30 year period the covenants of this Declaration shall automatically be extended for successive 10 year periods, until or unless the Owners agree in writing and file of record a statement that this Declaration shall not automatically renew at the next expiration date thereof, but rather shall terminate and be of no further force and effect. Notwithstanding anything contained herein to the contrary, the Easements created hereby shall continue in perpetuity. 12. MISCELLANEOUS. 12.01 Non-Merger. The ownership, at any time during the term of this Declaration, of more than one Lot by the same Owner or by an Owner and an affiliate entity of such Owner,'shall not create a merger, of title, estate, or other merger, including any merger of the dominant and servient estate with respect to Easements, and shall therefore not terminate any of the easements, covenants; or other terms or provisions of this Declaration as they apply to the Lots, and all such easements, covenants, and other terms and provisions shall remain in full force and effect for the period provided in this Declaration, regardless of any of the aforesaid common;ownerships now or thereafter existing of any Lots. 7 Ld. 2006 1 :03PM NO. 1215 P. 9 12.02 Notices. All notices, statements, demands;approvals and other communications given pursuant to this Declaration will be in writing and will be delivered in person or by certified or registered mail, postage prepaid to the Owners at the addresses maintained by the Owners on file with the Scott County Auditor for delivery of ad valorem tax statements relating to a Lot until such addresses are changed by notice. 12.03 Attorneys' Pees. If any Owner institutes any action OT proceeding against another Owner relating to the provisions of this Declaration or any default hereunder, the unsuccessful Owner in such action or proceeding will reimburse the successful Owner therein for the reasonable expenses of attorneys' fees and disbursements incurred by the successful Owner. 12.04 Persons Bound. All easements and covenants herein are perpetual and shall run with the land; provided,however, any transfer of ownership of any Lot by any Owner thereof,by conveyance, operation of law or otherwise, shall operate to relieve such transferring Owner from liability for costs or obligationt arising hereunder after the date of such transfer, but such Owner shall remain liable for any costs incurred while such Owner was bound by the terms of this Declaration. 12.05 Severability. If any provision of this Declaration is held invalid, the validity of the remainder of the Declaration shall not be affected thereby. 12.06 Waiver or Default. No provision contained in this Declaration shall be deemed to have been abrogated or waived by reason of any failure to enforce the same. 12.07 Governing Law. This Declaration has been entered into in the State of Minnesota and shall be governed by and construed under the laws of Minnesota. 12.08 Negation of Partnership. None of the terms or provisions of this Declaration shall be deemed to create a partnership between or among the Owners, nor shall this Declaration cause the Owners to be considered joint venturers or members of any joint enterprise. 12.09 Captions. 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. 8 L d. 2006 1 :03 PM NO. 1215—P. 10 SHEPHERD OF THE LAKE EVANGELICAL LUTHERAN CH • iw . ITSP - STATE OF MINNESOTA) COUNTY OF,C211/4t-)ss. k° The foregoing instrument was acknowledged before me this ` qday of August, 2006,by Erik Allen, the President of SHEPHERD OF THE LAKE EVANGELICAL LUTHERAN CHURCH, a nonprofit corporation under tviinraes•ta law, on its behalf. ,//4 KELLY A,AMUNDSON I "/2# i//:i' Aim 1 y,; Notary Public I Notary ' •lic Minnesota My Co�rnnleston Explaa Jen.31,2010 I • 9 Ld. 2006 1 :03PM NO. 1215 P. 11 SHEPHERD'S PATH SENIOR HOUSING, INC. BY________17/2__ ___ ____ • ITS CHIEF FINANCIAL OFFICER • • STATE OF MINNESOTA) $11/11., , )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this "''day of August, 2006,by Mark Meyer, the Chief Financial Officer of SHEPHERD'S PATH SENIOR HOUSING, INC., a nonprofit corporation under Mi ora law, on ' alf. ivw .,` BRYCE D.HUEMOELLER Notary Public '''"*.r7--: . : Notary Public-Minnesota ' lay Commhelon&vim Jr at,2010 This instrument was drafted by: Huemoeller, Bates & Gontarek PLC 16670 Franklin Trail Prior Lake, MN 55372 10