Parking, Access and Utility Easement 05-27-04
PARKING, ACCESS AND IJTILITY EASEMENT
THIS EASEMENT AGREEMENT (this "Agreement") is made and ent~red into
as of the 2..:1 day of May, 2004, by and between Arboretum Exchange LLC
("Arboretum"), a Minnesota limited liability company, and Minnstar Builders, Inc.
("Minnstar"), a Minnesota Corporation.
Recitals
WHEREAS, Arboretum .o\vns the parcel of land legally described on Exhibit A
and made a p31i hereof and shown as "Lot 1" on Exhibit B attached hereto and made a
part hereof;
WHEREAS, Minnstar owns the parcel of land legally described on Exhibit A-I
attached hereto and made a part hereof and shown as "Lot 2" on Exhibit B;
WHEREAS, Lots I and 2 are herein individually referred to as a "Lot" and
collectively referred to as the "Entire Premises"; and
WHEREAS, Arboretum and Minnstar desire to establish certain easements in
respect to Lots J and 2 and to the Entire Premises.
NOW, THEREFORE, in consideration of mutual covenants herein contained, the
parties hereto agree as follows:
AGREEMENT
1. Recitals. The above Recitals are incorporated herein by reference as if
fully set forth herein.
2. Definitions. As used in this Agreement, the term "party" shall refer to any
present or future owner or owners of legal or equitable title to all or any portion of the
Lots or the Entire Premises, and any mortgagee of the Lots or the Entire Premises, and
their respective successors and assigns during any period of O\vnership. As of the
effective date of this Agreement, the OVvner of Lot 1 is Arboretum Exchange, LLC and
the Ovvner of Lot 2 is Minnstar Builders, Inc.
3. Ingress and Egress. Each party to this Agreement hereby grants and
conveys to the other party, for their use and the use by their respective agents, employees,
tenants, contractors, customers and invitees, a non-exclusive easement appurtenant to and
for the benefit of each Lot for the ingress and egress by vehicular and pedestrian traffic
upon, over and across the parking areas, drive\vays, curb cuts and sidewalks (collectively,
the "Parking and Access Facilities") located on the respective Lots; provided, however,
that no material changes, closing or relocation shall occur on the Parking and Access
Facilities as depicted on Exhibit C attached hereto and made a part hereof without the
prior consent of all parties hereto; provided further, that no fence or other barrier which
would unreasonably prevent or obstruct the passage of pedestrian or vehicular travel for
purposes herein permitted shall be erected or permitted within or across Parking and
Access Facilities.
4. Parking. Each party to this Agreement hereby grants and conveys to
the other party, for their use and the use by their agents, employees, tenants, contractors,
customers and invitees, a non-exclusive easemcnt for vehicular parking on that portion of
the Parking and Access Facilities to be developed for parking purposes as shown on the
attached Exhibit C, such easement to be appurtenant to and for the benefit of each Lot;
provided, however, Minnstar hereby grants and conveys to Arboretum an exclusive
easement for employee parking in the fourteen spaces located on the west side of the car
\vash on Lot 2 and shown cross-hatched on Exhibit C.
5. Indemnification and Insurance.
5.1 Indemnification. Each Owner benefited by any easement or
liccnse granted herein shall hold harmless and indemnify the burdened party, its
agents, and their respective employees, successors and assigns, from and against
all loss, costs, damage, actions, suits, judgments and expense, including
reasonable attorneys' fees, arising out of or due to, the use by such benefited
Owner or its employees, agents, contractors, invitees or permittees, of the
easement or license, except to the extent due to or a result of, the negligence or
willful misconduct of the burdened Owner or its employees, agents, contractors,
invitees or permittees.
5.2 Insurance. Each Owner shall maintain comprehensive general
liability insurance against claims for bodily injury, death and property damage
OCCUlTing in or upon such Owner's property and appurtenant easements, including
contractual liability coverage for claims made pursuant to the indemnity
provisions of this Agreement, in such amounts as may be carried from time to
time by prudent owners of similar properties in the Minneapolis/St. Paul
metropolitan area, but in all events to afford protection for limits of not less than
$2,000,000.00 combined single limit for bodily injury or property damage. At the
request of an Owner from time to time, the other Owner shall provide the
requesting Owner a certificate of insurance evidencing that the coverages required
hereunder are in force. All polices used to provide the coverage required by this
Agreement shall (a) be endorsed to require the insurer to provide at least ten (10)
days notice to the other Owner prior to cancellation, substantial modification, or
non-renewal, and (b) be issued by financially sound companies having an A.!\.1:
Best Company rating of at least A:VlI. Each Owner shall name the other Owner
as additional insured under all such policies.
6. Maintenance. Except as provided in paragraph 7 below, each party shall,
at its sole cost and expense, maintain the Parking and Access Facilities on its Lot at all
times in good order, condition and repair, reasonably free of ice, snow and debris.
Arboretum shall maintain the road located on the adjacent property (the "Adjacent
Drive") providing ingress and egress to West 78lh Street shown on Exhibit D in good
order, condition and repair, reasonably free of ice, sno\v and debris until such time a
building permit is issued for construction upon the adjacent property, at which time
maintenance for the Adjacent Drive shall revert to the owner of the adjacent property.
Minnstar shall be responsible for one-half C/2) of the costs incurred by Arboretum in so
maintaining the Adjacent Drive, which shall be payable within ten (10) days after receipt
of an invoice from Arboretum for the amount due.
7. Common Drive. Arboretum shall maintain the area depicted as the
"Common Drive" on Exhibit C in good order, condition and repair, reasonably free of
ice, snow and debris. Minnstar shall be responsible for one-half C/2) of the costs incurred
by Arboretum in so maintaining the Common Drive, \vhich shall be payable within ten
(10) days after receipt of an invoice from Arboretum for the amount due.
8. Utility Easement. Each party hereby grants and conveys to the other
party an easement for utility purposes over, on, across, under and through the Entire
Premises, together with the right of ingress to and egress from the Lots for the purpose of
inspecting, repairing and maintaining any and all utilities.
9. Monument SiQ:l~. Minnstar hereby grants and conveys to Arboretum
an ea~ement on Lot 2 for the purpose of erecting and utilizing a monument sign (the
"Monument Sign") in a 10' by 20' area in the location depicted on the attached Exhibit C
(the "Sign Easement Area"). The Monument Sign shall be solely utilized, operated and
maintained by Arboretum. Arboretum may also use the Sign Easement Area for
installing and maintaining a "Retail Space for Lease" boulevard sign to be used as needed
and at the sole discretion of Arboretum.
10. Legal Eff~g:. Each of the easements and rights created by this Agreement
are perpetual (except as specifically stated herein) and are appurtenant to the Entire
Premises, and run \vith the land, and may not be transferred, assigned or encumbered
except as an appurtenance to such properties. Each covenant contained in this Agreement
constitutes a covenant runl1lng with the land. Each Owner of either Lot 1 or Lot 2
covenants and agrees that on conveyance of all or any part of the fee title to either Lot 1
or Lot 2, the grantee, by accepting such conveyance, will thereby become a new Owner
under, and be bound by, this Agreement. On such acceptance and deemed assumption by
a grantee, the conveying Ovmer of either Lot] or Lot 2 \ViII thereafter be released from
any obligation under this Agreement arising thereafter with respect to either Lot 1 or Lot
2 so conveyed. Each Owner of either Lot 1 or Lot 2 agrees, on written request of the
conveying Owner, to execute and deliver any appropriate documents or instruments to
evidence such release, but failure to obtain such document will not affect the
effectiveness of this release.
11. An~engment. This Agreement and any provision herein contained may be
terminated, extended, modified or amended only with the express written consent of the
then current Owners of the Entire Premises. No amendment, modification, extension or
termination of this Agreement will affect the rights of the holder of any mortgage
constituting a lien on allY of the Entire Premises unless such mortgagee consents to the
same. No tenant, licensee or other person having only a possessory interest in the
improvements on the Entire Premises will be required to join in execution of or consent
to any action taken from time to time by the Owners pursuant to this Agreement.
] 2. Condemnation. If the whole or any part of the Entire Premises is taken for
any public or quasi-public use under any governmental law, ordinance or regulation, or
by right of eminent domain, any Owner benefited by an easement or covenant created by
this Agreement will not share in any award, compensation or other payment made to the
Owner of the parcel tbat was taken by reason of the taking of the parcel or a portion of
the parcel which is subject to such easement or covenant and such award, compensation
or other payment will belong entirely to the Owner of the parcel or that portion of the
parcel to which is taken, and such Owner will have no further liability to any other
Ovmer for the loss of such easements or covenants, or a portion thereof, located on the
parcel (or the leasehold interest therein) so taken.
13. DefiwJt; Remedies. If any OViner defaults in any obligation requiring the
payment of money and fails to cure the default within fifteen (15) days after receiving
written notice thereof, or if any Owner defaults in any of its other obligations under any
provision hereof and fails to commence such action as is necessary to cure such default
within thirty (30) days after written notice of default is given by any nondefaulting
Owner, or fails to proceed diligently thereafter to cure such default, the nondefaulting
Owner may enforce such obligations by an action at law or suit in equity, or may perform
or pay all or any part of such obligations and charge the cost of performing or the
payment made, including reasonable attorneys' fees, to the defaulting Owner. The
nondefaulting Owner is hereby granted a right of entry onto the defaulting Owner's
property, with such personnel, materials and equipment 35m3Y be necessary for purposes
of performing any obligation of the defaulting Owner hereunder that has not been
performed within the time allowed. Notwithstanding any1hing to the contrary contained
in this Agreement, in the event of an emergency involving an imminent threat to human
health or safety or the likelihood of substantial property damage, the foregoing right of
entry may be exercised with only such notice as is practical under the circumstances,
which may include notice given after the fact. All indebtedness of an Owner hereunder
shall bear interest from the date incurred at a rate per annum equal to 2% in excess of the
then reference rate as publicly announced from time to time by U.S. Bank National
Association (or any successor national bank), and the indebtedness, interest, and all
reasonable costs of suit or collection thereof, including reasonable attorneys' fees,
whether suit be brought or not, with interest on all such costs at the rate above set fOlih,
shall be payable on demand of the creditor, and shall be enforceable by any remedy then
available at law or in equity. In addition, without the act or deed of any Owner, any such
indebtedness, interest and costs shall constitute a lien against the propeliy O\vned by the
defaulting Owner from and after the date the notice of such lien is filed in the same office
in Carver County, Minnesota in which this Agreement is filed. Such lien shall be
enforceable in the same manner as a lien for labor and materials pursuant to Minnesota
Statutes Chapter 514, as the same may be amended. Failure to enforce any covenants
hereunder shall not be deemed to be a waiver of the right to do so thereafter.
l4. Lien Subordinate to MortQ.aj:les. Any lien granted hereby to secure any
obligations of an Owner shall be subordinate to the lien of any mortgage now or hereafter
placed upon either Lot 1 or Lot 2; provided, howev'er, that such subordination shall apply
only to the obligations which have become due and payable prior to a sale or transfer of
such property or leasehold interest pursuant to a decree of foreclosure, or any other
proceeding in lieu of foreclosure, and the expiration of any redemption period. Such sale
or transfer shall hot relieve such property from liability for any obligations thereafter
becoming due, nor from any lien of any such subsequent obligations.
15. No Right to Terminate Due to Breacl1. No breach of this Agreement \vill
entitle any Owner to cancel, rescind or otherwise terminate this Agreement prov'ided that
the foregoing limitation will not affect, in any manner, any other right or remedy \vhich
any Owner might have by reason of any breach of this Agreement.
16. Miscellaneous.
J 6.1 Notices. All notices, communications, demands and requests permitted or
reqLiired to be given under this Agreement shall be in writing and shall be deemed to be
given when personally delivered, when delivered to a reliable and recognized overnight
courier or messenger service which provide receipts of delivery or when deposited in the
United States mail in a sealed envelope sent by registered or certified mail with postage
prepaid, addressed as follows or to such other address as is set forth in a notice given in
accordance with this Section:
1 r to Arboretum Exchange:
c/o Ron Ciark
7500 West 78th Street
Edina, Minnesota 55439
Fax # 952.947.3030
with copy to:
Foley & Mansfield
250 Marquette A venue
Suite 1200
Minneapolis, I\1innesota 5540 ]
Fax # 612.338.8788
T1'to Minnstar Builders:
Ron Clark
7500 West 78th Street
Edina; Minnesota 55439
Fax # 952.947.3030
with copy to:
Foley & Mansfield
250 Marquette Avenue
Suite 1200
Minneapolis, Minnesota 55401
Fax # 612.338.8788
16.2 Separate Mortgages. The O\vners benefitted by any easement created
hereby and any O\\.'ner owning property subject to any easement created hereby shall
have the right separately to create mortgages, deeds of trust, or other liens upon their
separate estates, such estates being subject to and together with the easements and other
covenants created herein.
16.3 Estoppel Certificates: Each Owner shall, within 15 days afler receiving a
written request from another Owner, which requests may be made from time to time but
no more than three times in any 12-month period, issue an estoppel certificate addressed
to such Owners as may be specified by the requesting Owner stating
(a) whether the Owner to whom the request had been directed knows of any
default under this Agreement, and if there are kno\-'.;n defaults, specifying the nature
thereof;
(b) whether, to the O'vvner's knowledge, tbis Agreement has been modified or
amended in any way (and, if it has, identif-ying such amendments or modIfications);
(c) that, to the Owner's Krlo\vledge, this /\greement is in full force and effect
as of the date oflhe estoppel certificate, or if not, then so stating;
(d) the nature and extent of any setoffs, claims or defenses then being asserted
or otherwise known by the Owner against enforcement of such Owner's obligations
herelmder;
(e) whether, and for what amount, the Owner executing such certificate is
then claiming a right to reimbursement from the Owner requesting such certificate; and
(f) such other matters as may reasonably be required.
Any such estoppel certificate shall act as a waiver of any claim by the Owner executing it
against the Owner or Owners to whom such certificate is addressed, to the extent such
claim is based upon facts contrary to those asserted in the certificate and to the extent the
claim is asserted against a bona fide encumbrancer or purchaser for rent without
knowledge of facts contrary to those contained in the statement, who has acted in
reasonable reliance upon the certificate; however, such certificate shall in no event
subject the Owner furnishing it to any liability whatsoever, unless the certificate was
given in bad faith.
16.4 No Dedication. Nothing contained herein shall be deemed to be a gift or
dedication of all or any portion of the easements herein granted, or any thereof, to or for
the general public, it being the Owners' intention that such easements be for the exclusive
benefit of the Owners.
16.5 Severability. If any provision of this Agreement is, to any extent, declared
by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement (or the application of such provision to persons or circumstances other than
those in respect of which the determination of invalidity or ullenforceability was made)
will not be affected thereby and each provision of this Agreement will be valid and
enforceable to the fullest extent permitted by law.
16.6 Further Liability Limitation. Under this Agreement, the liability of and
their respective successors and assigns will be limited to their respective interests in the
Property and the Adjacent Property, respectively.
16.7 No Merger. If an Owner owns both the fee interest in the Property and the
Adjacent Property, then this Agreement will remain in full force and effect.
16.8 Governing Laws. This Agreement will be construed in accordance with
the internal laws of the State of Minnesota.
16.9 Time is of Essence. Time is of the essence of this Agreement.
16.10 COlmterparts. This Agreement may be executed in any number of
counterpmts, any or all of which may contain the signature of only one of the Owners,
and all of which will be construed together as a single instrument.
IN WITNESS WHEREOF, Arboretum Exchange, LLC and Minnstar Builders,
Inc. have executed this Agreement as of the date first above written.
ARBORETUM EXCHANGE, LIf
By:,~~J E C~~
Name:. R6N.4Lb 1:::, CtAtf!..,c
Its:
MINNSTAR BUILDERS, INC.
By: ./1 CkftJ&J C C2art--L
Name: (0' IV A '-t;. ti ~ C t../)I<I::
Its:
STATE OF MINNESOTA ) lndMaMtL
) ss.
COUNTY OF HENNEPIN ) A-lleAA.
Thefo~e~oingw.strument was ackno'l'le e before me this Z7~y of
May, 2004, by ~k1l3 ()(.lrk: "the of Arboretum
Exchange, LLC, a Minnesota limited liability company, on beha ofthe company.
Basilikoula E. Oetting
Allen County Resident
My Gommission Expires April 2, 2011
~~- (. QttJt fJeJ
~otary Public J
)~a~
) ss.
) A-f~
STATE OF MINNESOTA
COUNTY OF HENNEPIN
Tt::;zrWg ~ment was acknowl.!;dged before me this ~7~y of
May, 2004, by b a.Y~ , the (,f?O. . of Minns tar
Builders, Inc., a Minnesota corporation, on behalf of the corporation.
~~. {)tJ**,~fJt
Notary Public ~J
This instrument was drafted by:
FOLEY & MANSFIELD,P.L.L.P.
250 Marquette Avenue, Suite 1200
Minneapolis, Minnesota 55401
Basilikoula E. Oetting
Allen County Resident
My Commission Expires April 2, 201 1
EXHIBIT A
Lot 1 Legal Description
Lot 1, Block 1, Arboretum Shopping Center, Carver County, Minnesota
EXHIBIT A-I
Lot 2 Legal Description
Lot 2, Block I, Arboretum Shopping Center, Carver County, MilIDesota
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CENTURY BOULEVARD
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