Easement Doc. No. A244418Document No.
U"lUt= OF THE
COUNTY RECORDER
^241418
CARVER COUNTY, MINNESOTA
1111111111111111111111111
IN 1111
Filing Fee: 521.50 ChecW. 34157
Certified filed and recorded
on 02-16.1M at o2:30 ❑ AME�PM
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EASEMENT AGREEMENT
THIS AGREEMENT, is made and entered into this 17h day of 1999,
by and between Loscheider Custom Homes, Inc., a Minnesota corporation, ("Loscheider"), and
Joseph J. Morin and D. Gayle Morin, husband and wife, ("Morin") (coIlectively referred to as
the "Party" or 'Parties" hereto).
RECITALS
WHEREAS, Losehcider is the owner of certain real property located in the City of
Chanhassen, Carver County, Minnesota, which property is legally described as Lot 1, Block 3,
and Lots 8, 9, and 10, Block 2, Whitetail Cove (the "Loscheider Tract"), and,
WHEREAS, Morin is the owner of certain real property located in the City of
Chanhassen, Carver County, Minnesota, which property is legally described as:
That part of Government Lot 5, Section 2, Township 116, Range
23, Carver County, Minnesota, described as follows:
Commencing at the northeast corner of said Government Lot 5;
thence westerly along the north line of said Government Lot 5 a
distance of 308.34 feet to the point of beginning; thence continue
westerly along the north line of said Government Lot 5 a distance
of 180.08 feet; thence southerly, parallel with the west line of said
Section 2 to the shore line of Lake Lucy; thence easterly along said
shore line to the intersection with a line parallel with the west Iine
of said Section 2 and passing through the point of beginning;
thence northerly, parallel with the west line of said Section 2, to
the point of beginning. (The "Morin Tract"); and,
WHEREAS, the property of Loscheider and Morin are contiguous (the 'Properties"); and,
WHEREAS, the Parties have requested that the other Party grant to them, their heirs,
successors and assigns, certain easements over, under and across their respective Tracts for
certain purposes; and,
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WHEREAS, the Parties are agreeable to grant such easements subject to the terms and
conditions set forth herein; and,
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Loscheider and Morin hereby declare that their properties identified herein
shall be held, sold, used and conveyed, subject to the following easement, covenants, conditions
and restrictions, which shall run with the respective properties and shall be binding on all parties
having any right, title or interest in and to the properties, or any part thereof, their heirs,
successors and assigns.
ARTICLE I
CREATION OF EASEMENT RIGHTS
I.1 Grant of Driveway Easement. Loscheider hereby grants and conveys to Morin,
their heirs, successors, assigns, guests, and invitees, a permanent driveway easement to provide
pedestrian, vehicular and construction vehicle ingress and egress, over, under and across Outlot
A, Whitetail Cove, Carver County, Minnesota, (The "Driveway Easement Area").
1.2 Grant of Sewer Easement. Morin hereby grants and conveys to Loscheider, its
successors, and assigns, and to the City of Chanhassen, a municipal corporation, an easement for
sanitary sewer purposes, described as:
A 20 foot wide permanent easement and a 40 foot wide temporary
easement over, under and across part of Government Lot 5, Section
2, Township 116, Range 23, Carver County, Minnesota, the
centerline of said easement is described as follows:
Commencing at the northeast corner of Outlot A, WFIMETAIL
COVE, according to the recorded plat thereof, thence South 00
degrees 23 minutes 43 seconds West, assumed bearing, along the
east line of said W1U=AIL COVE a distance of 15.00 feet to
the actual point of beginning of the centerline to be described;
thence North 89 degrees 59 minutes 20 seconds East a distance of
16.68 feet; thence South 19 degrees 21 minutes 08 seconds East a
distance of 102.44 feet; thence South 32 degrees 49 minutes 46
seconds East a distance of 233.03 feet to the southwest corner of
Lot 6, Block 1, POINTB LAKE LUCY, according to the recorded
plat thereof and said centerline there terminating.
The side lines of said easement shall be prolonged or shortened to
terminate at said east line of WHITETAIL COVE and the west line
of said POINTE LAKE LUCY. (The "Sewer Easement Area").
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1.3 Grant of Turn Around Easement. Morin hereby grants and conveys to
Loscheider, its successors, and assigns, and to the City of Chanhassen, a municipal corporation,
an easement for the purpose of turning around vehicles, over and across that tract of land
described as:
A permanent easement over, under and across that part of
Government Lot 5, Section 2, Township 116, Range 23, Carver
County, Minnesota, described as follows:
Beginning at the northeast comer of Outlot A, WHITETAIL
COVE, according to the recorded plat thereof; thence South 00
degrees 23 minutes 43 seconds West, assumed bearing, along the
east line of said WHITETAIL COVE a distance of 27.21 feet;
thence South 30 degrees 00 minutes 40 seconds East a distance of
67.61 feet; thence North 59 degrees 59 minutes 20 seconds East a
distance of 31.25 feet; thence North 30 degrees 00 minutes 40
seconds West a distance of 59.12 feet; thence North 00 degrees 23
minutes 43 seconds East, parallel with said east line, a distance of
79.04 feet; thence North 89 degrees 36 minutes 17 seconds West
a distance of 31.25 feet to said east line, thence South 00 degrees
23 minutes 43 seconds West, along said east line, a distance of
60.32 feet to the point of beginning. (The "Turnaround Easement
Area").
1.4 Benefltted Tracts. The easement created in Section 1.1 is solely for the benefit
of the Morin Tract and shall be appurtenant thereto. The easement created in Section 1.2 is
solely for the benefit of the City of Chanhassen and the Loscheider Tract, and shall be
appurtenant thereto. The easement created in Section I.3 is solely for the benefit of the City of
Chanhassen and the Loscheider Tract and shall be appurtenant thereto.
1.5 Non -obstruction. No one shall cause or permit any encroachment upon or
obstruction of the Easement or otherwise cause or permit any condition to exist upon said
Easement, whether temporary or permanent, which shall in any way interfere with the purposes
and uses of said Easement, as set forth herein.
1.6 Effect of Restrictions. The provisions of this section shall constitute restrictions
and covenants running with and binding upon the Properties identifier! herein.
1.7 Termination of Temporary Portion of Sewer Easement. The portion of the
Sewer Easement designated as "temporary" shall expire on January 1, 2000, without any further
action of the parties.
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ARTICLE li
CONSTRUCTION, RECONSTRUCTION, MAINTENANCE AND REPAIR
2.1 Construction by Loschelder. Loscheider, its successors and assigns, shall have
sole responsibility for constructing the sanitary sewer facilities, vehicle turn around, and driveway
on the Easement Areas. In order to allow for the preservation of existing trees, Loscheider will
have the sanitary sewer easement area staked by a surveyor prior to the commencement of
construction and will cooperate with the Morins to reasonably protect existing trees during the
course of construction of the sewer. Special care will be taken by Loscheider, and at its direction
its sewer contractor, to minimize the cutting of roots or other damage to a large oak near the
pond and a large ironwood tree located north of the oak, both of which are on the Morins'
property and have been specifically identified by the Morins. The sewer easement is located
between the two trees. Loscheider agrees to use an iron box and other equipment to minimize
the damage to said trees and their roots.
2.2 Restoration of Easement Areas. Upon completion of construction of the sewer,
vehicle turn around, and driveway, Loscheider agrees to fill and grade the Easement Areas and
where the Easement Areas were previously maintained lawn, reseed the lawn.
2.3 Maintenance of Easements Areas. Until such time as the Morins have platted
or otherwise subdivided their property, the maintenance, paving repair, and snowplowing costs
of the Driveway and Vehicle Turnaround Easements shall be solely bome by Loscheider, its
successors and assigns, with one quarter of the cost thereof being paid by the owners of each of
Lot I, Block 3, and Lots 8, 9, and 10, Block 2, WHITETAIL COVE. .Upon the platting or
subdivision of the property of Morin, the cost of maintenance of the Vehicle Turnaround
Easement shall be solely borne equally by each of the owners of the then created lots adjacent
to the Vehicle Turnaround Easement in the subdivided property of Morin and said owners shall
also bear a pro rata share of the cost of maintenance of the Driveway Easement with the owners
of Lot 1, Block 3, and Lots 8, 9, 10, Block 2, WHITETAIL COVE.
2.4 Payment of Maintenance Expenses. The Parties to this Agreement shall
designate an agent (the "Designee") to receive invoices for maintenance of easement areas, and
to bill, collect and pay for maintenance expenses. Maintenance bills shall be payable thirty (30)
days after receipt. In the event of nonpayment, the Designee shall hire an attorney to collect said
unpaid sums, with costs of collection and attorney's fees to be paid by the delinquent Party. Any
resulting Judgment or arrearage may be recorded as a lien upon the delinquent Party's parcel of
land.
2.5 Payment of Taxes. The owners of Lot 1, Block 3, and Lots 8, 9, and 10, Block
2, WHITETAIL COVE are each owners as tenants in common of an undivided twenty-five
percent (25%) of Outlot A, WHITETAIL COVE. Each owner shall pay twenty-five percent
(25%) of the real estate taxes due and payable each year for said Outlot and the owner of Lot
1, Block 3, is hereby designated as an agent for the other owners to receive tax statements and
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otherwise represent the interests of the other owners with the County for tax purposes only with
regard to said Outlot.
2.6 Installation of Utility Service. As part of the consideration for the grant of
easement by the Morins, Loscheider agrees to install, at its sole cost, sewer and water service to
the existing home of the Morins. In addition, Loscheider shall install, at no further cost to
Morins, two sewer access stubs, for future connection to two residences, at locations to be
designated by the Morins during the construction of the sanitary sewer. Future costs for Sewer
Access Charges or Water Access Charges, chargeable to the Morins or their successors or
assigns, at the time of and for the final connection of any residence constructed in the future on
the Morin parcel, connecting to said sewer access stubs, shall be at Morin's cost.
ARTICLE III
MISCELLANEOUS PROVISIONS
3.1. Arbitration.
(a) Any controversy or claim arising between the Parties hereto relating to this
Agreement and/or obligations and rights as specified herein shall be resolved by binding
arbitration. This agreement to arbitrate shall continue in full force and effect despite the
termination of this Agreement. All arbitration shall be undertaken pursuant to the rules
of the American Arbitration Association, and the decision of the arbitrator shall be
enforceable in any Court of competent jurisdiction. The Parties hereto, for themselves
and their successors and assigns, knowingly and voluntarily waive their rights to have
their dispute tried and adjudicated by a judge or jury. The arbitrator shall apply the law
of the State of Minnesota, and the arbitration shall be held in Hennepin County,
Minnesota. Any Party hereto, or their successor or assign, may demand arbitration by
sending written notice to the other Parties.
(b) The arbitrator shall have the authority to award actual money damages
(with interest on unpaid amounts from the due date), specific performance and injunctive
relief, but the arbitrator shall not have the authority to award exemplary, punitive,
consequential or loss of use damages, and the Parties hereto expressly waive any claim
or right to such damages. The costs of arbitration, but not the costs and attorney's fees
of the arbitrating parties, shall be shared equally by the arbitrating parties. If any Party
fails or refuses to proceed with arbitration, unsuccessfully challenges the arbitration
award, or fails to comply with the arbitration award, the other arbitrating Party is entitled
to costs, including reasonable attorney's fees incurred compelling arbitration, defending,
enforcing and collecting the award.
(c) Notwithstanding the above, the Parties hereto recognize that certain
unforeseen facts or similar circumstances could give rise to the need for one of the Parties
or more to seek emergency, provisional or injunctive relief to protect real or personal
property from injury. If the District Court elects to retain jurisdiction, the Parties hereto
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shall be entitled to pursue such rights and remedies for emergency, provisional, temporary
injunctive relief; however, the Parties hereto agree that immediately following the
issuance of any emergency, provisions, temporary injunctive relief, the Parties will
consent to the stay of any further judicial proceedings pending arbitration of all
underlying claims between the Parties.
3.2 Notices. All notices, demands, statements and requests (collective "Notice')
required or permitted to be given under this Agreement must be in writing and shall be deemed
to have been properly given or served as of any of the following dates: (i) on the date of personal
service upon the person to whom the Notice is addressed or, if such person is not available, the
date such Notice is left at the address of the person to whom it is directed•, (ii) on the date the
Notice is postmarked by the United States Post Office, providing it is sent prepaid, registered or
certified mail, return receipt requested; or (iii) on the date the Notice is delivered by a courier
service to the address of the person to whom it is directed, provided it is sent prepaid. The
address of the signatories to this Agreement are set forth below:
LOSCHEIDER CUSTOM HOMES, INC.
1607 Florida Avenue North
Golden Valley, MN 55427
ATTN: Richard A. Loscheider
Joseph J. and D. Gayle Morin
1441 Lake Lucy Road
Chanhassen, MN 55317
Change of address shall be communicated by Certified Mail upon at least ten (10)
days written notice. Refusal to accept delivery of any Notice under this Agreement shall not
defeat or delay the giving of a Notice.
3.3 Interpretation. The singular shall include the plural and vice versa; the masculine
shall include the feminine and neuter genders and vice versa.
3.4 No Partnership. None of the terms or provisions of this Agreement shall be
deemed to create a partnership, joint venture or joint enterprise between or among the Parties
hereto.
3.5 Severability. Invalidation of any of the provisions contained in this Agreement
by arbitration or injunction shall in no way affect any of the other provisions hereof, and the
same shall remain in full force and effect.
3.6 Amendments. This Agreement may be amended by, and only by, unanimous
written Agreement. Any such amendment shall be effective only when recorded in the Office
of the County Recorder of Carver County, Minnesota, with respect to abstract property, and in
the Office of the Registrar of Titles of Carver County, Minnesota, with respect to Torrents
N.
property. Disputes concerning amendment shall be resolved by arbitration in accordance with
Section 3.1 above.
3.7 Capitals and Capitalized Terms. The captions preceding the text of each Article
and paragraph are included only for convenience and reference and shall be disregarded in the
construction and interpretation of this Agreement. Capitalized and bold face terms are also
selected only for convenience of reference.
3.8 Time. Time is of the essence of this Agreement.
3.9 Non Waiver. The failure of any Party to insist upon strict performance of any
of the terms, covenants or conditions hereof shall not be deemed a waiver of any rights or
remedies which that Party may have hereunder or at law or equity and shall not be deemed a
waiver of any subsequent breach or default in any of such terms, covenants or conditions.
3.10 Limitation on Driveway Easement. At such time as the property of Morin is
subdivided, no more then two dwellings or residences may use the Driveway Easement for
purposes of access to their lots.
rN WZTI1lESS WHEREOF, the Parties have caused this Agreement to be duly executed
as of the day and year first above written.
LOSCHEIDER CUSTOM HOMES, INC.
A Minnesota Corporation
By: a
Rtchard A. Loscheider
Its: President
Jo J. rin
D. Gay a rin
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STATE OF caalSnN RUNNIfW oAAcLAv
MINNESOTA ) �ry P„ ego-+►�, "ote
COUNTY OF HENNEPIN ) ss. vY�m E4*66 A i.31. 2000
The foregoing instrument was acknowledged before me this _ 1999, by Richard A. Loscheider, the President of Loscheider Custom Homes,aIInc., �MQnnesota
corporation, on behalf of the corporation,
otary Public
STATE OF MINNESOTA ) CHRIS 1M RUNNING 9APMAV
ss. Notary PubW-Ww�waa
COUNTY OF l "! / l� C ) ILmy caffm expims Jan. 31. 2000
The foregoing instrument was acknowledged before me this��__'__ 1999, by Joseph J. Morin and D. Gayle Morin, husband and wife, day o
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Notary Public
THIS INSTRUMENT WAS DRAFTED BY;
Bruce A. Boeder (9349)
LAMBERT & BOEDER, P.L.L.P.
1000 Superior Boulevard
Wayzata, MN 55391
Telephone (612) 475-3435
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