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HomeMy WebLinkAbout5.b. Master Transmission Access Easement Agreement - 472830v2 FINAL (2) 1 460999v1 RS220-359 ______________________________________________________________________________ EASEMENT AGREEMENT (Ingress and Egress) THIS EASEMENT AGREEMENT (this “Agreement”) is made this ____ day of _________, 20___, by and between the Rosemount Port Authority, a Minnesota public body corporate and politic (the “Port Authority”) and MASTRO, LLC, a Minnesota limited liability company (“MASTRO”). RECITALS A. The Port Authority is the owner of property legally described on the attached Exhibit A (the “Port Authority Parcel”); and B. MASTRO is the owner of property legally described on the attached Exhibit B (the “MASTRO Parcel”); and C. The Port Authority Parcel and the MASTRO Parcel are adjacent to one another; and D. There is a driveway that exists on the Port Authority Parcel and the MASTRO Parcel that is shared by the Port Authority and MASTRO (the “Driveway”); and E. The parties desire to create and grant pursuant to the terms hereof an easement in, on, over and across the Port Authority Parcel and the MASTRO Parcel for the purposes of ingress and egress for the Driveway, and also to allocate construction and maintenance responsibilities among the parties regarding such Driveway, subject to the terms and conditions set forth below; and NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby declare as follows: 2 460999v1 RS220-359 1. Recitals. The foregoing recitals are true and correct and incorporated herein by reference. The term “Owner,” as used in this Agreement, shall mean the then current owner of fee simple title to a Parcel. The term “Parcel” shall mean the MASTRO Parcel, the Port Authority Parcel, or any future parcel created by the combination of the Port Authority Parcel with other parcels, in each case as the context requires. 2. Grant of Easement for Ingress/Egress. The parties hereby establish, grant and convey a perpetual, non-exclusive driveway easement for vehicular and pedestrian ingress, egress and access purposes over, on, through and across that portion of Port Authority Parcel and the MASTRO Parcel legally described on Exhibit C and depicted on Exhibit D attached hereto (the “Driveway Easement Area”). The Driveway Easement Area may be used by the Owners of the MASTRO Parcel and the Port Authority Parcel, along with their tenants, subtenants and occupants, and their respective employees, customers, agents and invitees in accordance with the terms of this Agreement. Other than as reasonably required in connection with repair and replacement activities, no noxious or offensive odor, appearance or activity or hazardous materials or substances shall be maintained or permitted within the Driveway Easement Area, and no vehicles, equipment, trailers or other portable or temporary structures or equipment shall be repaired or parked within or on the Driveway Easement Area. No obstructions shall be erected or permitted within the Driveway Easement Area that would prevent, restrict, or otherwise inhibit the passage of vehicles within the Driveway Easement Area or on a Parcel, except for temporary obstructions or closures for maintenance, repair and replacement purposes in accordance with Section 3, below. The Parties hereby acknowledge that: (a) the Driveway Easement Area is within a portion of the platted drainage and utility easements for the MASTRO Parcel and the Port Authority Parcel, and (b) various utility lines may be located below the Driveway Easement Area and within the platted drainage and utility easements for the MASTRO Parcel and the Port Authority Parcel. 3. Maintenance of the Driveway. (a) The Driveway has been constructed by MASTRO at no cost to the Port Authority. (b) MASTRO or the Owner of the MASTRO Parcel (as those parties mutually agree, and subject to the cost allocation as hereafter provided), shall keep and maintain the entire Driveway Easement Area as reasonably required to keep such area in good order and condition. Such maintenance work shall include, without limitation, removal of dirt, ice and snow, removal of trash and debris, patching and sealing the driveway surface, removing and replacing the surface within the Driveway Easement Area as may be required from time to time, and trimming and maintaining any landscaping located within the Driveway Easement Area. All reasonable, out-of-pocket costs and expenses incurred to maintain, repair and replace improvements within the Driveway Easement Area (collectively, the “Maintenance Costs”) shall be allocated to and paid as follows: Owner of the MASTRO Parcel: 50 percent Owner(s) of the Port Authority Parcel: 50 percent (the “Port Authority Parcel Share”) 3 460999v1 RS220-359 Unless paid directly to the applicable provider, the Owner of the Port Authority Parcel shall, within 30 days after receipt of an invoice from the Owner of the MASTRO Parcel setting forth the maintenance, repair and replacement costs incurred by the Owner for the Driveway Easement Area, reimburse the Owner of the MASTRO Parcel for its share of such costs according to the above allocation. Notwithstanding anything in the contrary contained in this Agreement, except in the case of an emergency, the incurrence of any Maintenance Cost in excess of $5,000 shall require the reasonable consent of the Owner of the Port Authority Parcel. (c) Notwithstanding anything to the contrary contained in this Agreement, in the event of the failure of MASTRO or an Owner (as the case may be) to perform all or any portion of its responsibilities under this Section 3 with respect to the Driveway Easement Area within 30 days after written notification of such failure from the other Owner, or such lesser period as is required in an emergency or due to weather conditions, such as accumulated snow or ice, or if not reasonably capable of cure within 30 days, such longer period as is reasonably required to perform the same with due diligence, the non-defaulting Owner may cause such responsibilities to be performed at the allocated expense of the other Owner as allocated above, and shall be reimbursed to the non-defaulting Owner within 30 days after receipt of an invoice therefore. In the event an Owner performs such work and is not reimbursed with such 30 day period, the Owner shall have the right to off-set any amounts so owed to it together with interest at the rate of five percent per annum (compounded monthly), until fully paid. 4. Insurance. The Owner of the MASTRO Parcel and the Owner of the Port Authority Parcel shall each maintain at all times its own commercial general liability insurance against claims for personal injury or death and property damage on its respective Parcel in amounts deemed prudent and reasonable according to industry standards. The Owner of the MASTRO Parcel and the Owner of the Port Authority Parcel shall also each maintain or cause to be maintained on behalf of itself and any mortgagees, commercial general liability insurance with combined single limit coverage for bodily injury, personal injury and pro perty damage of not less than $1,000,000, and which shall include contractual liability and indemnity coverage, with respect to the Driveway Easement Area. 5. Indemnification; Waiver of Subrogation. It is expressly understood and agreed that the parties do not assume any liability for the negligent acts or willful misconduct of any other party or such party’s agents, servants, successors and assigns as it relates to this Agreement and the operation, repair, replacement or maintenance of the Driveway Easement Area. Each party shall indemnify, protect, defend and hold harmless the other parties, their agents, employees, customers, invitees and related persons and entities from and against any and all losses, damages, liabilities, suits, obligations, judgments, injuries, claims, demands, costs and expenses, including without limitation legal and consultant expenses of any kind whatsoever, due to loss of life or injury to persons or property, which may arise out of or relate to the indemnifying party’s use of the Driveway Easement Area or any third party claiming through or under such indemnifying party’s use of the Driveway Easement Area, except only to the extent any such losses, damages, liabilities, suits, obligations, judgments, injuries, claims, demands, costs and expenses arise out of or relate to the negligence or willful mi sconduct of the indemnifying party or anyone claiming through or under such party. The indemnities and 4 460999v1 RS220-359 assumptions of liabilities provided in this Section 5 shall continue in full force and effect notwithstanding the termination of this Agreement or the easement granted herein, whether by expiration of time, by operation of law, or otherwise. Notwithstanding anything to the contrary contained herein, the parties hereby release one another and their respective officers, directors, agents, and employees from any and all liability (to the other or anyone claiming through or under them by way of subrogation or otherwise) for any loss or damage covered by property or liability insurance, even if such loss or damage was caused by the fault or negligence of such party, or anyone for whom such party may be responsible. 6. Notice. Any notice required or permitted to be given by any party upon another party is given in accordance with this Agreement if it is directed to the applicable party and mailed by United States registered or certified mail, return receipt requested, postage prepaid; or if deposited cost paid with a nationally recognized, reputable overnight courier, properly addressed as follows: MASTRO: MASTRO, LLC 14805 S Robert Trail Rosemount, MN 55068 Attention: _____________________ Port Authority: Rosemount Port Authority 2875 145th Street West Rosemount, MN 55068 Attention: Executive Director A party may change its address for notice purposes by written notice to the other parties in accordance with the requirements set forth above. The date of such notice will be deemed to have been the date on which such notice is delivered or attempted to be delivered as shown by the certified mail return receipt or a commercial delivery service record. All notices shall be addressed to the current address of record for an Owner as indicated on the property tax records maintained by the Dakota County Assessor’s office for the MASTRO Parcel and the Port Authority Parcel. 7. Default and Remedies. In the event of any violation by a party of any of the provisions of this Agreement, in addition to the right to collect damages, the non-violating party will have the right to enjoin such violation in a court of competent jurisdiction. Before commencement of any such action, written notice of the violation will be given to violating party specifying the claimed violation. In addition, in the event that a party fails to perform any of the provisions of this Agreement or violates any of the provisions hereof, the non-defaulting party may cure such default; provided, however, that written notice of such intention, specifying the nature of the alleged default and the actions to be performed, has been given to the defaulting party not less than 30 days prior to the commencement of such action or such lesser time if, in the reasonable judgment of the non-defaulting party, such default is emergency in nature. If the non-defaulting party elects to perform the action to have been performed by the defaulting party, on completion of such action, an itemized statement of the costs thereof will be submitted to the 5 460999v1 RS220-359 defaulting party, and the amount thereof will be immediately due and payable by the defaulting party to the non-defaulting party, with interest at the rate of five percent per annum (compounded monthly), until paid. 8. Third Party Approvals. Except for the parties, there are no tenants, owners, or mortgagees, and there are no leases, agreements or other encumbrances of any nature whatsoever affecting title to a Parcel that would require the consent of any third party to this Agreement. 9. No Dedication. Nothing contained in this Agreement shall be deemed to be a gift or dedication of any portion of either Parcel to the general public or for any public use or purpose whatsoever, it being the intention of the parties that nothing in this Agreement, express or implied, shall confer upon any person, other than the parties and their successors and assigns, any rights or remedies under or by reason of this Agreement, provided that the foregoing is not intended to limit the rights of each Owner to use the Driveway Easement Area for the purposes expressed above. 10. Invalidity. If any provision of this Agreement, or portion thereof, or the application thereof to any person or circumstances, shall, to any extent be held invalid, inoperative or unenforceable, the remainder of this Agreement, or the application of such provisions or portion thereof to any other person or circumstances, shall not be affected thereby; it shall not be deemed that any such invalid provision affects the consideration for this Agreement; and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 11. Governing Law; Successors and Assigns. This Agreement shall be construed in accordance with the laws of the State of Minnesota. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties, it being the intent hereof that the rights and obligations hereunder shall follow the ownership of the MASTRO Parcel and the Port Authority Parcel, respectively. This Agreement shall run with the land and bind the title to the MASTRO Parcel and the Port Authority Parcel. 12. Modifications; Merger Not Intended. This Agreement may be amended, modified, or terminated at any time by an agreement in writing, executed and acknowledged by the Owners of the Parcels. Common ownership of any Parcel shall not cause this Agreement to be extinguished by operation of merger in whole or in part. 13. Release. Upon the assignment, conveyance, sale or other transfer by an Owner of its Parcel (“Transferor”) of its entire right, title and interest in such property (a “Transfer”), the Transferor shall be released from the obligations of this Agreement arising after the date on which the instrument effectuating such Transfer is recorded in the official records of Dakota County, Minnesota (the “Record Date”). The Transfer shall not result in the release of the Transferor from any obligations of the Transferor arising under this Agreement prior to the Record Date, including, without limitation, payment of any amounts which may then be due and owing hereunder. The transferee (“Transferee”) shall not be personally liable for any default under this Agreement that occurred or accrued, without regard to any applicable cure periods, prior to the Record Date. Upon such Transfer, the Transferee shall execute and file in the 6 460999v1 RS220-359 appropriate land records in Dakota County, Minnesota, a statement setting forth the name of the Transferee, the address of the Transferee to which all notices for the purposes of this Agreement shall be sent, the nature of the interest held by the Transferee, and the date that such interest was acquired. The Transferee of any Parcel or any portion thereof, by acceptance of a deed conveying title thereto or the execution of a contract for the purchase thereof, whether from an original party or from a subsequent Owner of such Parcel, shall accept such deed or contract upon and subject to each and all of the easements, covenants, conditions, restrictions and obligations contained herein. By such acceptance, any such Transferee shall for itself and its successors and assigns, covenant, consent, and agree to keep, observe, comply with, and perform the obligations and agreements set forth herein with respect to the Parcel so acquired by such Transferee. 14. Rights of Lenders. No provision of this Agreement shall in any way defeat or render invalid the lien of any mortgage, deed of trust, or other similar consensual security instrument entered into in good faith and for valuable consideration, whether presently in existence or recorded in the future against any Parcel; however, any lien of this type wil l be subordinate and subject to the provisions of this Agreement. If any Parcel or portion thereof is purchased in connection with a foreclosure of a mortgage or security instrument or is conveyed to the party so secured in lieu of foreclosure, any person so acquiring or purchasing and its successors and assigns will hold any and all real property so purchased or acquired subject to the provisions of this Agreement. 15. Construction. The rules of strict construction shall not apply to this Agreement. This Agreement shall not be interpreted in favor of or against any Party merely because of its respective efforts in preparing it. This Agreement embodies the entire agreement and supersedes any prior oral or written agreements with respect to the matters stated herein. [SIGNATURES ON FOLLOWING PAGES] S-1 460999v1 RS220-359 SIGNATURE PAGE TO EASEMENT AGREEMENT (Ingress and Egress) IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the day and year first above written. MASTRO, LLC By: __________________________________ Its: _________________________________ STATE OF MINNESOTA ) ) ss COUNTY OF ________ ) The foregoing instrument was acknowledged before me this ____ day of _______________, 20___, by _____________________, the _____________ of MASTRO, LLC, a Minnesota limited liability company, on behalf of the company. My Commission Expires: _____________________________ Notary Public _______________________ S-2 460999v1 RS220-359 SIGNATURE PAGE TO EASEMENT AGREEMENT (Ingress and Egress) IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the day and year first above written. ROSEMOUNT PORT AUTHORITY By: __________________________________ Its: Chair By: __________________________________ Its: Executive Director STATE OF MINNESOTA ) ) ss COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before me this ____ day of ______________, 20___, by _________________ and _____________________, the Chair and Executive Director, respectively, of the Rosemount Port Authority, a Minnesota public body corporate and politic on behalf of the Authority. My Commission Expires: _____________________________ Notary Public _______________________ This document was drafted by: Kennedy & Graven, Chartered (SJS) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 A-1 460999v1 RS220-359 EXHIBIT A Legal Description of the Port Authority Parcel Lot 2, Block 1, Evenson First Addition and that part of vacated South Robert Trail, County of Dakota, State of Minnesota. B-1 460999v1 RS220-359 EXHIBIT B Legal Description of the MASTRO Property Lot 3, Block 1, Evenson First Addition, and that part of vacated South Robert Trail, Dakota County, Minnesota. C-1 472830v2 RS230-63 EXHIBIT C Legal Description of the Driveway Easement Areas Port Authority Parcel Driveway Easement Area That part of Lot 2, Block 1, Evenson First Addition and that part of vacated South Robert Trail, all in Dakota County, Minnesota, which lies westerly of the westerly right-of-way line of South Robert Trail and northerly of the south line of said Lot 2 and lies southeasterly of the following described line: Commencing at the southwest corner of said Lot 2; thence South 89 degrees 07 minutes 10 seconds East (assumed bearing) along the south line of said Lot 2 a distance of 97.52 feet to the point of beginning of the line to be described; thence North 00 degrees 52 minutes 50 seconds East 25.00 feet; thence South 89 degrees 07 minutes 10 seconds East 52.97 feet to said westerly right of way line and said line there terminating. MASTRO Parcel Driveway Easement Area That part of Lot 3, Block 1, Evenson First Addition and that part of the vacated South Robert Trail, all in Dakota County, Minnesota, which lies westerly of the westerly right-of-way line of South Robert Trail and southerly of the north line of said Lot 3 and lies northwesterly of the following described line: Commencing at the northwest corner of said Lot 3; thence South 89 degrees 07 minutes 10 seconds East (assumed bearing) along the north line of said Lot 3 a distance of 97.52 feet to the point of beginning of the line to be described; thence South 00 degrees 52 minutes 50 seconds West 8.00 feet; thence South 89 degrees 07 minutes 10 seconds East 49.79 feet to said westerly right-of-way line and said line there terminating. C-2 472830v2 RS230-63 EXHIBIT D Depiction of the Driveway Easement Areas