HomeMy WebLinkAbout2686'i
DRIVEWAY EASEMENT AGREEMENT
This Driveway Easement Agreement (this "Agreement ") dated June _, 2007 is among
(i) Pentagon Park Quads LLC, a Delaware limited liability company ( "Quads "), (ii) John F.
Walsh, as Trustee of the John F. Walsh Revocable Trust dated April 28, 1998 ( "Contract
Purchaser "), and (iii) Udell L. Larson as Trustee of the Udell L. Larson Revocable Living Trust
dated February 27, 1989 and Mildred A. Larson as Trustee of the Mildred A. Larson Revocable
Living Trust dated February 27, 1989 ( "Fee Owners ") (collectively, Contract Purchaser and Fee
Owners are "Walsh ").
1. Driveway Easement. Quads owns the real property in Edina, Minnesota that is
legally described on the Exhibit A attached to this Agreement (the "Burdened Parcel "). Quads
hereby grants for the benefit of the parcel that is legally described on the Exhibit B attached to
this Agreement (the "Benefited Parcel ") a non - exclusive perpetual easement (the "Easement ")
over the portion of the Burdened Parcel that is legally described on the Exhibit C attached to this
Agreement (the "Easement Area ") for ingress and egress between the Benefited Parcel and
West 77th Street by Walsh and each other owner from time to time of all or any part of the
Benefited Parcel (collectively, the "Benefited Parcel Owner "), the tenants and occupants of the
Benefited Parcel, and their employees, agents, contractors, customers, guests, and other invitees
(Benefited Parcel Owner and such other persons are, collectively, the "Permitees ") in
connection with the ownership, use, maintenance, repair, and/or replacement of all or any part of
the Benefited Parcel. Quads reserves and retains for the benefit of itself, each future owner of
fee title to all or any part of the Burdened Parcel (collectively, the "Burdened Parcel Owner "),
and the Burdened Parcel, all rights to use the Easement Area that do not materially interfere with
Benefited Parcel Owner's right to use the Easement under this Agreement, including but not
limited to the right to repair, replace, reconfigure, relocate, and /or otherwise alter the driveway,
curb, sidewalks, other improvements, and landscaping in the Easement Area and/or in the right
of way of West 77th Street (collectively, the "Driveway ") from time to time in any manner
whatsoever in its sole discretion, to expand or alter the use of the Burdened Parcel at any time or
times in any manner, and to grant to others the right to use the Easement Area for any purpose
that does not materially interfere with Benefited Parcel Owner's rights to use the Easement,
provided that Burdened Parcel Owner may not relocate the Driveway outside of the Easement
Area without the express written consent of Benefited Parcel Owner. Benefited Parcel Owner
may not increase the usage of the Easement Area as the result of either any expansion or
alteration of the use of the Benefited Parcel, or by using or permitting the use of the Easement
N: \PL \SCC \605876.doc 1 Driveway Easement Agreement
3 �
Area for access to any land other than the Benefited Parcel (a "Change in Use ") unless the
increased total usage of the Driveway (including usage for access to the Burdened Parcel) will
comply with all applicable governmental standards, will not exceed the usage then permitted
under commonly -used design standards that would apply to the construction of a new
development, and will not otherwise materially adversely affect Burdened Parcel Owner or the
Burdened Parcel. If Benefited Parcel Owner desires to make any Change in Use that would not
comply with the limitations in the preceding sentence without altering the Driveway, Benefited
Parcel Owner may alter the Driveway so as to comply with the limitations in the preceding
sentence, at Benefited Parcel Owner's sole cost and expense, provided that Benefited Parcel
Owner obtains Burdened Parcel Owner's prior written consent to plans for such alterations to the
Driveway within the Easement Area (which consent Burdened Parcel Owner will not
unreasonably withhold) and constructs the alterations in accordance with the plans that Burdened
Parcel Owner has approved. Except pursuant to the preceding sentence, Benefited Parcel Owner
has no right under this Agreement to install or use any public or private utilities of any nature in
the Easement Area, or to otherwise use the Easement Area for any purpose other than the
permitted purposes stated in this Agreement. Neither Burdened Parcel Owner nor Benefited
Parcel Owner shall permit the Driveway to be blocked or otherwise permit any interference with
the use of the Driveway for access between either the Benefited Parcel or the Burdened Parcel to
West 77th Street, except as necessary for maintenance, repairs, and/or replacements, provided
that reasonable temporary alternate access is maintained.
2. Maintenance, Repairs, and Replacements. Burdened Parcel Owner shall have
the sole right (without any obligation) to perform all maintenance, repairs, and/or replacements
to the Driveway as it determines in its sole discretion, and Benefited Parcel Owner shall have no
obligation to reimburse Burdened Parcel Owner for any maintenance, repairs, or replacements to
the Driveway, except: (i) to the extent Permitees damage the Driveway or cause excessive or
disproportionate wear, or their use requires unusual maintenance of the Driveway, or if any
particular use the Permitees are making of the Driveway requires alterations to the Driveway, or
if the cost of any replacement of the Driveway is increased as a result of Benefited Parcel
Owner's rights under this Agreement (for example, if the depth of the base or pavement layer
must be increased beyond what would be required for the use of the Driveway by Burdened
Parcel Owner and its permittees only in order to accommodate Permitees' use of the Driveway),
Benefited Parcel Owner shall reimburse Burdened Parcel Owner, within 30 days after request,
for Burdened Parcel Owner's equitable share of the cost of any such maintenance, repairs,
alterations, and/or replacements required to the Driveway as a result; and (ii) if Burdened Parcel
Owner does not maintain the Driveway in reasonable condition, Benefited Parcel Owner shall be
entitled, as its sole and exclusive rights and remedies with respect to the condition and
maintenance of the Driveway, be entitled to either sue Burdened Parcel Owner for specific
performance or perform any repairs or maintenance that are necessary to put the Driveway into
reasonable condition, provided that (a) Benefited Parcel Owner must give Burdened Parcel
Owner at least 30 days' written notice of the specific schedule and nature of the maintenance or
repairs it intends to perform pursuant to this Agreement, (b) all such maintenance and repairs
shall be performed at Benefited Parcel Owner's sole cost and expense, (c) all such maintenance
and repairs must be performed in accordance with all applicable laws and regulations, and (d) all
such maintenance and repairs must be performed without materially disrupting or interfering
NAPL \SCC \605876.doc 2 Driveway Easement Agreement
with Burdened Parcel Owner's use of the Easement Area for any purpose this Agreement
permits.
3. Duration. The Easement shall be perpetual.
4. Condemnation. Benefited Parcel Owner hereby waives the right to any award or
other proceeds of any condemnation or taking by eminent domain, or any conveyance in lieu of
condemnation or taking (collectively, a "Taking ") of all or any part of fee title to the Easement
Area. Benefited Parcel Owner shall be entitled to make a claim against the condemning
authority in any Taking for loss of access from the Benefited Parcel to West 77th Street at the
Easement Area, provided that such claim is separate from Burdened Parcel Owner's claim for
loss of access with respect to the Burdened Parcel, and provided that Benefited Owner shall have
no claim against Burdened Parcel Owner with respect to any loss of access that results from any
Taking. If any Taking causes the Easement Area to no longer be usable for vehicular access to
the Benefited Parcel, the Easement and this Agreement shall terminate as of the effective date of
the final order by a court of competent jurisdiction, or the delivery of a deed conveying the
property in lieu of condemnation, as applicable.
5. Insurance. Benefited Parcel Owner shall obtain and maintain in full force and
effect, at all times, general liability insurance covering the use and occupancy of the Benefited
Parcel and the Easement Area. Such insurance shall have a combined single limit of liability of
at least $1,000,000 per occurrence, or such higher amounts as prudent owners of similar
properties generally maintain from time to time in the future (provided that $1,000,000 per
occurrence shall be deemed to be a prudent amount for these purposes as of the date of this
Agreement), and such insurance shall be written to apply to bodily injury, property damage and
personal injury losses. Burdened Parcel Owner shall be an "additional named insured" under
such policy as it applies to the Burdened Parcel, and Benefited Owner hereby waives any and all
claims and demands against Burdened Parcel Owner, regardless of whether Benefited Parcel
Owner is or is claimed to be negligent, but only to the extent Benefited Parcel Owner is covered
by any insurance it maintains or would be covered by the insurance this Section 5 obligates it to
maintain.
6. Miscellaneous.
a. Entire Agreement and Rights. This Agreement supersedes any prior
agreements, representations, negotiations, or correspondence between the parties, and
contains the entire agreement of the parties with respect to the matters it covers, and
Benefited Parcel Owner hereby waives any and all rights of access or other rights over
the Burdened Parcel other than pursuant to the express terms of this Agreement. No
other agreement, statement or promise made by any party that is not in writing and signed
by all parties to this Agreement shall be binding.
b. No Merger. Common ownership of all or any parts of the Burdened
Parcel and the Benefited Parcel shall not cause this Agreement or the Easement to be
extinguished, in whole or in part, by operation of merger.
NA\PL \SCC \605876.doc 3 Driveway Easement Agreement
C. Attorney Fees. If any dispute between the parties results in litigation or
another proceeding, the party who loses shall reimburse the prevailing party for all
reasonable costs and expenses, including, without limitation, actual attorney and expert
fees and costs incurred by the prevailing party in connection with such litigation or other
proceeding, including any appeals.
d. Run With the Land. The Easement and this Agreement shall run with
the land and the Easement shall constitute a servitude in favor of the Benefited Parcel.
The Easement and all rights and obligations under this Agreement shall run with the
Benefited Parcel and the Burdened Parcel (collectively, the "Parcels," and all or any part
of each, a "Parcel "), and may not be transferred, assigned, or encumbered except as an
appurtenance to the relevant Parcel. Each right and obligation under this Agreement shall
bind and inure to the benefit of each person who now owns or hereafter acquires title to
all or any part of either Parcel (an "Owner "). Upon any Owner's conveyance of its title
to all or any portion of either Parcel, the grantee will, by accepting such conveyance,
become a party to, and be bound by, this Agreement, and the conveying Owner will be
released upon such conveyance from any obligation or liability arising under this
Agreement with respect to any period after the conveyance with respect to the Parcel or
portion of a Parcel so conveyed.
e. Subdivision. Burdened Parcel Owner may subdivide the Burdened Parcel
from time to time in any manner Burdened Parcel Owner elects in its sole discretion, and
upon the effectiveness of any such subdivision, any new parcel that results from the
subdivision that does not contain any part of the Easement Area shall automatically be
released from the terms of this Agreement, with the effect that upon and after such
subdivision the Burdened Parcel shall consist only of the parcel or parcels that contain the
Easement Area, and the Burdened Parcel Owner shall consist only of the Owner or
Owners of the parcel or parcels that contain the Easement Area. At any time the
Easement Area is owned by an owners' association for any common interest community,
the owners' association, and not the members of the association, shall be the "Owner" of
that parcel for the purposes of this Agreement.
f. No Dedication. Nothing in this Agreement shall be deemed to be a gift or
dedication of any portion of the Easement Area or any other part of any Parcel to the
general public and Burdened Parcel Owner shall be entitled to make such temporary
closures as may be reasonably necessary to avoid the creation of any public rights.
Nothing in this Agreement shall constitute any person who is not an Owner a third party
beneficiary under this Agreement or to give any such person any rights under or with
respect to this Agreement.
g. Joint and Several. Whenever there is more than one Owner with respect
to a Parcel,.the rights and obligations of such Owners under this Agreement shall be joint
and several.
N:\PL \SCC \605876.doc 4 Driveway Easement Agreement
h. Failure to Enforce. The failure of any Owner to enforce any part of this
Agreement upon its violation shall in no event be deemed to be a waiver of the right to do
so as to any subsequent violation.
Signature Page Follows
N:\PL \SCC \605876.doc 5 Driveway Easement Agreement
Pentagon Park Quads LLC
By: '—.
M.G. Kaminski, it hief Manager
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this —7 day of June, 2007, by
M.G. Kaminski, the Chief Manager of Pentagon Park Quads LLC,. a Delaware limited liability
company, on behalf of Pentagon Park Quads LLC.
THIS INSTRUMENT WAS DRAFTED BY:
Fabyanske, Westra, Hart & Thomson, P.A.
Suite 1900
800 LaSalle Avenue
Minneapolis, MN 55402
(612) 359 -7600
z ICA R. BAKERotary Public Minnesota ion Expires Jan. 31, 2009
NAPL \SCC \605976.doc Driveway Easement Agreement
)4-tl� WJJ--,
J F. Walsh, as Trustee of the John F. Walsh
ev cable Trust dated April 28, 1998
STATE OF MINNESOTA )
)ss.
COUNTY OF OrnrGp► )
The foregoing instrument was acknowledged before me this 5 {�` day of
7161 , 2007, by John F. Walsh, as trustee of the John F. Walsh Revocable Trust
dated April 28, 1998.
�ti.. LAURIE KAY iNGBERG
Ijl Notary Public
` Minnesota
My Commission Expres January 31, 2010
N.F.R.M.,am. W.�
N: \PL \SCC \605976.doc Driveway Easement Agreement
;V, 6-'0 �f
Udell L. Larson, as Trustee of the Udell L. Larson
Revocable Living Trust dated February 27, 1989
STATE OF MINNESOTA )
)ss.
COUNTY OFi�1)
The foregoing instrument was acknowledged before me this �J ill day of
1Y1,2-- 2007, by Udell L. Larson, as Trustee of the Udell L. Larson Revocable
L ng Trust dated February 27, 1989.
Public
ismy IMBERLY SUE JOHNSON
Notary Public
Min{tesota
commission Expires January 31, 2010
N:\PL \SCC \605976.doc Driveway Easement Agreement
_,7
Mildred A. Larson, as Trustee of the Mildred A.
Larson Revocable Living Trust dated February 27,
1989
STATE OF MINNESOTA )
)ss.
COUNTY OF aL )
The foregoing instrument was acknowledged before me this 5*` day of
2007, by Mildred A. Larson, as Trustee of the Mildred A. Larson
itdvocable Living Trust dated February 27, 1989.
No ary Public
+BERLY SUE JOHNSON Notary Public
Minnesota Expires January 31, 2010
N:\PL \SCC \605976.doc Driveway Easement Agreement
EXHIBIT A
Legal Description of Burdened Parcel
The South 275 feet of the East 380 feet of Tract A, Registered Land Survey No. 679, except that
part which lies Westerly of a line run parallel with and distant 355 feet Westerly of the East line
of the above - described tract; except that part of the remainder thereof which lies Southerly of the
following- described line: Beginning at a point on the East line of the above - described exception,
distant 225 feet South of its intersection with the North line of the above - described tract; thence
run Southeasterly to a point on a line run parallel with and distant 315 feet West of the East line
of said tract distant 20 feet North of its intersection with the South line of said tract; thence run
Southeasterly to a point on the South line of said tract distant 100 feet West of the Southeast
corner thereof and there terminating.
Hennepin County, Minnesota
N:\PL\SCC\605976.doc
I
Driveway Easement Agreement
EXHIBIT B
Legal Description of Benefited Parcel
Tract S, Registered Land Survey No. 679, Hennepin County, Minnesota.
N:\PL \SCC \605976.doe Driveway Easement Agreement
EXHIBIT C
Legal Description of Easement Area
An easement over and across that part of Tract A, REGISTERED LAND SURVEY NO.
679, files of the Registrar of Titles, Hennepin County, Minnesota, described as beginning
at the southeast corner of said Tract A; thence on an assumed bearing of North 0 degrees
10 minutes 30 seconds East, along the east line of said Tract A, a distance of 60.16 feet;
thence South 74 degrees 38 minutes 19 seconds West a distance of 31.25 feet; thence
South 16 degrees 59 minutes 56 seconds West a distance of 39.91 feet; thence South 33
degrees 19 minutes 08 seconds West a distance of 16.22 feet to the south line of said
Tract A; thence South 89 degrees 49 minutes 30 seconds East, along said south line of
Tract A, a distance of 50.53 feet to the point of beginning.
NAPUSM605976.doc Driveway Easement Agreement