HomeMy WebLinkAbout2019-06-18 HRA Special Meeting PacketAgenda
Edina Housing and Redevelopment Authority
City of Edina, Minnesota
Council Chambers
Tuesday, June 18, 2019
7:00 PMSpecial Meeting - Immediately following the City Council Meeting
I.Call to Order
II.Roll Call
III.Approval of Meeting Agenda
IV.Adoption of Consent Agenda
All agenda items listed on the consent agenda are considered routine and
will be enacted by one motion. There will be no separate discussion of such
items unless requested to be removed from the Consent Agenda by a
Commissioner of the HRA. In such cases the item will be removed from the
Consent Agenda and considered immediately following the adoption of the
Consent Agenda. (Favorable rollcall vote of majority of Commissioners
present to approve.)
A.Approve Encroachment Agreement for 3930-3944 Market Street
B.Approve Declaration of Reciprocal Easements for 3930-3944 Market Street
V.Adjournment
The Edina Housing and Redevelopment Authority wants all participants to be
comfortable being part of the public process. If you need assistance in the way of
hearing ampli0cation, an interpreter, large-print documents or something else,
please call 952-927-8861 72 hours in advance of the meeting.
Date: June 18, 2019 Agenda Item #: IV.A.
To:Chair & Commissioners of the Edina HRA Item Type:
Report / Recommendation
From:Bill Neuendorf, Economic Development Manager
Item Activity:
Subject:Approve Encroachment Agreement for 3930-3944
Market Street
Action
Edina Housing and Redevelopment
Authority
Established 1974
CITY OF EDINA
HOUSING & REDEVELOPMENT
AUTHORITY
4801 West 50th Street
Edina, MN 55424
www.edinamn.gov
ACTION REQUESTED:
Motion approving encroachment agreement for 3930-3944 Market Street.
INTRODUCTION:
This item pertains to the construction of the North Parking Ramp located at 3930-3944 Market Street. Upon
review of the final construction drawings, it was noted that a portion of the canopy located above the western
retail space extends over the public right-of-way.
This condition was anticipated when the North Ramp Expansion and Nolan Mains/Center Ramp projects were
approved in June 2017.
The encroachment agreement is required to transfer clean title of the western retail space to a private developer.
The agreement has been prepared by Dorsey & Whitney - the legal counsel advising the Housing and
Redevelopment Authority on the redevelopment of the North P arking Expansion.
Staff recommends that the encroachment agreement be approved.
ATTACHMENTS:
Description
Encroachment Agreement
1
4835-8394-6648\5
ENCROACHMENT EASEMENT AGREEMENT
(Market Street)
THIS ENCROACHMENT EASEMENT AGREEMENT (this “Agreement”), dated as of June ___,
2019 (this “Agreement”), is entered into by and between the CITY OF EDINA, MINNESOTA, a Minnesota
statutory city, its successors and assigns, as grantor (Grantor), and the HOUSING AND
REDEVELOPMENT AUTHORITY OF EDINA, MINNESOTA, a public body corporate and politic
organized and existing under the laws of the State of Minnesota, its successors and assigns, as grantee
(“Parking Ramp Owner”), and EDINA MARKET STREET, LLC, a Minnesota limited liability company,
its successors and assigns, as grantee (“Commercial Unit Owner”; and with Parking Ramp Owner, each a
“Grantee”, and collectively “Grantees”).
Recitals:
A. Parking Ramp Owner owns certain real property legally described as Tract A, RLS
[______], Hennepin County, Minnesota (the “Parking Ramp Parcel”).
B. Commercial Unit Owner owns certain real property legally described as Tract B, RLS
[______], Hennepin County, Minnesota (the “Commercial Parcel”, and together with the Parking Ramp
Parcel, each a “Grantee Parcel” and collectively, the “Grantee Parcels”).
C. A portion of the building located on the Grantee Parcels, namely a portion of an entry
canopy forming part of such building and serving each of the Parking Parcel and the Commercial Parcel
(the “Canopy”) and a portion of the below-grade structural footings and foundation of such building (the
“Footings”), encroach over (with respect to the Canopy) and under (with respect to the Footings) a portion
of the Market Street public right-of-way adjoining the Grantee Parcels (the “Right-of-Way”), in the area
legally described on the attached Exhibit A (the “Easement Area”).
D. Grantees request and Grantor desires to grant easements to permit such encroachments of
the Canopy and the Footings in the Right of Way, and the use of certain areas on, around and below the
Canopy (collectively, the “Encroachments”) for the purposes specified herein, each in accordance with the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as set forth below:
AGREEMENT
1. Grant of Easements. Subject to the terms of this Agreement, Grantor hereby:
(a) consents to the Encroachments;
(b) grants to Parking Ramp Owner an exclusive easement over, in, and through the
Easement Area for the Encroachment of the Canopy;
(c) grants to Parking Ramp Owner and Commercial Unit Owner an exclusive
easement over, in, and through the Easement Area for the Encroachment of the Footings;
(d) grants to the Commercial Unit Owner an exclusive easement for the installation,
maintenance, and operation of signage, speakers, lighting, cameras and other fixtures related to the
promotion and operation of the business(es) located within the Commercial Parcel to be attached
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to the underside, front fascia or top of the Canopy, provided no such fixture may extend beyond
the outside face of the Canopy by more than 12 inches and such fixtures shall be subject to
applicable City ordinances and other applicable law; and
(e) grants to the Commercial Unit Owner a non-exclusive easement over that portion
of the Easement Area reasonably necessary to accommodate the installation and maintenance of a
future Footing to be installed to support and serve an additional customer entrance to the
Commercial Parcel, which entrance shall comply with applicable building code and be no wider
than eight feet, together with access to the Easement Area for operation and maintenance of said
additional entrance and the right for the door of such entrance to swing into the Easement Area
(and such portions of the Right-of-Way as are necessary for said door swing).
2. Maintenance; Repair; Construction. Grantees, at their own expense, shall be responsible
for maintaining, or causing to be maintained, the Encroachment in good condition and repair for the duration
of this Agreement (except in the case where such maintenance items are otherwise performed in the area
by Grantor or another entity as part of a district maintenance program or otherwise). Grantees may repair,
modify, and/or replace any Encroachment so long as such actions (a) do not cause such Encroachment to
extend outside of the Easement Area beyond such reasonable areas as are reasonably necessary to access
and utilize the Easement Area or the easements granted hereunder; (b) are performed in accordance with
applicable City ordinances and other applicable law; and (c) do not create a safety hazard for the users of
the Right-of-Way located below or adjacent to the Easement Area. All improvements, equipment, furniture,
fixtures or personal property installed on the Canopy or otherwise within the Easement Area shall remain
the sole property of the installing party and no other party shall have any right or claim thereto.
3. Termination. This Agreement and the Easements created hereby will automatically
terminate if Grantee completely removes the Encroachments from the Easement Area and does not re-
install the Encroachment or a replacement thereof in the Easement Area within 12 months after such
complete removal (provided that such period shall be extended an additional 12 months in the case of
substantial damage to the building referenced herein). If this Agreement and the Easement are so
terminated, each party, upon request of any other party, shall promptly enter into a termination of this
Agreement and the Easement, in recordable form.
4. Runs with the Land. Subject to the terms of this Agreement, easements and covenants
contained in this Agreement shall run with the land, and shall inure to the benefit of, and be binding upon,
the parties hereto, their respective successors and assigns, and persons claiming under them
5. Miscellaneous. This Agreement may be executed in any number of counterparts, all of
which are considered one and the same Agreement notwithstanding that all parties hereto have not signed
the same counterpart. This Agreement may be amended or altered only by written agreement executed by
both parties. This Agreement, and the rights and obligations of the parties hereto, must be construed and
enforced in accordance with the laws of the state of Minnesota.
[Remainder of page intentionally left blank; signatures on following page(s)]
[Signature Page to Encroachment Easement Agreement (Market Street)]
IN WITNESS WHEREOF, Grantor and Grantees have executed this Agreement as of the date first
written above.
CITY OF EDINA, MINNESOTA
By: _____________________________
James B. Hovland, Mayor
By: _____________________________
Scott Neal, City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ____ day of June, 2019, by James B.
Hovland and Scott Neal, the Mayor and City Manager respectively, of the City of Edina, Minnesota, on
behalf of the City of Edina.
Notary Public
[Signature Page to Encroachment Easement Agreement (Market Street)]
HOUSING AND REDEVELOPMENT
AUTHORITY OF EDINA, MINNESOTA
By: ______________________________
James B. Hovland, Chair
By: ______________________________
Michael Fischer, Secretary
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ____ day of _____________, 2019,
by James B. Hovland and Michael Fischer, the Chair and Secretary, respectively, of the Housing and
Redevelopment Authority of Edina, Minnesota, on behalf of said Authority.
Notary Public
[Signature Page to Encroachment Easement Agreement (Market Street)]
EDINA MARKET STREET LLC,
a Minnesota limited liability company
By: EDINA MARKET STREET MANAGER LLC,
a Minnesota limited liability company,
its Managing Member
By:
Name:
Its:
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me as of this ____ day of ____________, 2019, by
__________________________, the _________________________ of Edina Market Street Manager
LLC, a Minnesota limited liability company, the Managing Member of Edina Market Street LLC, a
Minnesota limited liability company, on behalf of such limited liability company.
Notary Public
THIS DOCUMENT WAS DRAFTED BY:
Dorsey & Whitney LLP
50 South Sixth Street
Suite 1500
Minneapolis, MN 55402-1498
[Exhibit A to Encroachment Easement Agreement (Market Street)]
4835-8394-6648\5
Exhibit A
Legal Description of the Easement Area
An encroachment area over and across that part of Market Street adjoining Lot 1, Block 1, EDINA
MARKET STREET, according to the recorded plat thereof, Hennepin County, Minnesota which lies
easterly, northerly and westerly of a line described as commencing at the southwest corner of said Lot 1;
thence on an assumed bearing of North 89 degrees 40 minutes 58 seconds East, along the south line of said
Lot 1, a distance of 11. 71 feet to the point of beginning of the line to be described; thence South 0 degrees
14 minutes 07 seconds East 1.56 feet; thence North 89 degrees 38 minutes 01 second East 76.73 feet; thence
North 0 degrees 28 minutes 15 seconds West 5.34 feet to said south line of Lot 1 and said line there
terminating.
Date: June 18, 2019 Agenda Item #: IV.B.
To:Chair & Commissioners of the Edina HRA Item Type:
Report / Recommendation
From:Bill Neuendorf, Economic Development Manager
Item Activity:
Subject:Approve Declaration of Reciprocal Easements for
3930-3944 Market Street
Action
Edina Housing and Redevelopment
Authority
Established 1974
CITY OF EDINA
HOUSING & REDEVELOPMENT
AUTHORITY
4801 West 50th Street
Edina, MN 55424
www.edinamn.gov
ACTION REQUESTED:
Approve the Declaration of Easements, Restrictions and Covenants for the property located at 3930-3944 Market
Street and authorize staff to implement upon the sale of the commercial parcels to a private developer.
INTRODUCTION:
This item pertains to the redevelopment of the North P arking Ramp at 50th and France. In June 2017, the City
and HRA entered into a Redevelopment Agreement with Edina Market Street LLC.
This private developer is made up of two local firms - Buhl Investors and Saturday Properties. This development
team was selected through a competitive process in December 2016.
This Agreement required the Edina HRA to include 10,000 square feet of commercial space on the street level
that would be sold to the developer for $1 million plus construction costs upon completion. The expansion of the
North Ramp, including the shell construction of the commercial space was substantially completed in October
2018.
Over the last several months, the completed project has been surveyed and is in the process of being subdivided
so that the commercial parcels can be sold. The final subdivision was approved by the Edina City Council
on June 4, 2019 with the real estate transaction anticipated to close the last week of June 2019.
A reciprocal easement agreement has been prepared by the HRA's legal counsel and is attached for your
consideration. This "declaration" identifies rights, obligations and responsibilities for both the Edina HRA and the
private developer pertaining to shared elements of the property.
The developer is agreeable to the terms identified in this agreement and is ready and willing to acquire the
commercial parcels.
Staff recommends that this Declaration of Easements, Restrictions and Covenants be approved by the Edina
HRA.
ATTACHMENTS:
Description
Declaration of Reciprocal Easements - North Ramp
1
4810-9700-2609\13
DECLARATION OF EASEMENTS, RESTRICTIONS AND COVENANTS
(Market Street North Ramp)
This Declaration of Easements, Restrictions and Covenants (this “Declaration”) is made effective
the _____ day of June, 2019, by the HOUSING AND REDEVELOPMENT AUTHORITY OF EDINA,
MINNESOTA (the “Authority”) and EDINA MARKET STREET LLC, a Minnesota limited liability
company (“Developer”, the Authority and Developer are sometimes together hereinafter referred to as
“Declarant”).
RECITALS
A. The Authority and Developer, respectively, are the current owners of certain tracts of real
property (the “Property”) situated in Hennepin County, Minnesota and legally described as Tracts A, B,
and C, Registered Land Survey No. [______] (the “RLS”, and each such tract within the RLS, a “Tract”),
a copy of the RLS being attached hereto as Exhibit A.
B. The Authority is the fee owner of Tract A of the RLS, which such Tract is improved with
a four-story parking ramp and related vehicular and pedestrian access areas (the “Parking Parcel”).
Developer is the fee owner of (i) Tract B of the RLS, which such Tract is located on the westerly end of
the Property, is improved with a commercial space, and is a legally distinct parcel, but is physically
integrated within the Parking Parcel (the “West Commercial Parcel”) and (ii) Tract C of the RLS, which
such Tract is located on the easterly end of the Property, is improved with a commercial space, and is a
legally distinct parcel, but is physically integrated within the Parking Parcel (the “East Commercial
Parcel” and together with the West Commercial Parcel, collectively, the “Commercial Parcels”, and
together with the Parking Parcel, collectively, the “Project”).
C. Declarant desires to grant, establish and convey certain easements, restrictions, and
covenants on the Project which will benefit and burden its constituent Parcels.
NOW, THEREFORE, in consideration of the foregoing, the covenants and agreements contained
herein, and for other valuable consideration, Declarant, as applicable, hereby declares that the Property
and the Project, shall be held, transferred and used subject to and together with the following easements,
covenants and restrictions:
1. Definitions. In addition to the words and phrases defined above, the following words and
phrases when used in this Declaration shall have the following meanings.
(a) “Additional Service Door” has the meaning set forth in Section 10(b).
(b) “Alter” or “Alteration” means any work to any portion of the Project under
Section 10, or any other alterations, changes, modifications, additions, installations,
improvements and demolitions of or to the Project, including installation of Easement
Improvements, but excluding Operation and Maintenance and the initial construction of the
Project.
(c) “Alteration Owner” has the meaning set forth in Section 10, as applicable.
(d) “City” means the City of Edina, Minnesota, a Minnesota statutory city.
(e) “Commercial Parcel Owner” means the Owner or Owners of one or both of the
Commercial Parcels and their successors and assigns.
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(f) “Common Facilities” means collectively, the Support Facilities, Common Walls,
and the Roof and Skin Facilities.
(g) “Common Walls” means collectively, the shared walls separating the
Commercial Parcels and Parking Parcel, generally depicted and identified as “Common Walls”
on Exhibit B-1 (with respect to the West Commercial Parcel) and Exhibit B-2 (with respect to
the East Commercial Parcel) attached hereto, as constructed. “Common Walls” as used in this
Declaration shall include (i) the concrete deck serving as the ceiling of each Commercial Parcel
and the boundary between each Commercial Parcel and the Parking Parcel and (ii) all elements of
the Project that are part of the Common Walls, including, without limitation, the concrete
foundation and footings of the Project under the Common Walls, if any.
(h) “Consent Alteration” means any Alteration involving (i) any portion of the
Common Facilities (excluding Alterations to Common Walls which do not encroach upon or
materially adversely affect another Parcel) or (ii) any Exclusive Utility Facilities serving (A) the
Parcel of any Owner other than the Alteration Owner or (B) the Parcel of the Alteration Owner
and located within in Easement area located on another Owner’s Parcel; provided, however,
Consent Alteration does not include replacements of existing Easement Improvements which
have already been approved by the approving Owner and which such replacements are similar, in
all material respects, to the size, type, location, and installation method of the existing Easement
Improvements.
(i) “Declaration” means this Declaration, including the Exhibits attached hereto and
made a part hereof:
(j) “Easements” means the perpetual, appurtenant easements which are declared,
established or defined in this Declaration.
(k) “Easement Improvements” means all improvements (including fixtures and
equipment) placed or installed by an Owner outside of such Owner’s Parcel, but within an
Easement area appurtenant to such Owner’s Parcel pursuant to which such Owner has rights to
install such improvements hereunder (e.g., Exclusive Utility Facilities serving a Parcel, but
located outside of such Parcel pursuant to the Easement granted under Section 2(d)).
(l) “East Commercial Canopy” the portion of the Parking Parcel that overhangs the
south boundary of the East Commercial Parcel and is generally depicted and identified as the
“East Commercial Canopy” on Exhibit C-2 attached hereto.
(m) “East Commercial Parcel Owner” means the Owner of the East Commercial
Parcels and its successors and assigns.
(n) “Emissions Management Equipment” means grease and odor removal facilities,
fire-control facilities, and other emissions equipment, including any related lines, pipes, conduit,
exhaust ducts and ductwork.
(o) “Exclusive Utility Facilities” mean any Utility Facilities that are located wholly
within and exclusively serve a Parcel, together with the Utility Facilities that are ancillary thereto
and located on another Owner’s Parcel (e.g. utility lines supplying utility services to such Utility
Facilities, such as domestic water and fire sprinkler water, and ductwork and vents for HVAC or
exhaust systems).
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(p) “HVAC Equipment” means heating, ventilation and cooling equipment, and
related air-handling equipment (e.g. make up air units) including any related lines, pipes, conduit,
exhaust ducts and ductwork.
(q) “Legal Requirements” means all laws, statutes, codes, acts, ordinances, orders,
judgments, decrees, injunctions, directions and requirements of all governmental authorities,
foreseen and unforeseen, ordinary or extraordinary, then applicable to or required in connection
with the Project or any part thereof.
(r) “Mortgagee” means the owner of any recorded mortgage of a Parcel and the
successors or assigns of such Mortgagee or any Person named as vendor or seller under any
contract for deed of a Parcel and the successors or assigns of such vendor.
(s) “Occupant” means any Person from time to time entitled to the use and
occupancy of any portion of the Project under an ownership right or any lease, sublease or other
similar written agreement.
(t) “Operation and Maintenance” means ordinary, day-to-day operation,
maintenance, and repairs of a non-structural nature, testing, cleaning, sanitation, or pest and
rodent control with respect to any portion of the Project.
(u) “Owner” means any one or more of the East Commercial Parcel Owner, the West
Commercial Parcel Owner, and the Parking Parcel Owner, as the context indicates. “Owner” or
“Owners” as used herein shall be deemed to mean the record fee simple owner of any of the
Parcels as listed in the Office of the Hennepin County Registrar of Titles.
(v) “Parcel” or “Parcels” means any one or more of the Commercial Parcels and the
Parking Parcel, as the context indicates, together with all improvements now or hereafter located
thereon.
(w) “Parking Parcel Owner” means the Owner or Owners of the Parking Parcel and
their successors and assigns.
(x) “Permitted Alteration” means any Alteration which is not a Consent Alteration.
(y) “Permittee” means all Occupants and the officers, directors, employees, agents,
contractors, customers, vendors, suppliers, visitors and invitees of Occupants to the extent their
activities relate to the intended development, use and occupancy of the Project, as limited by this
Declaration.
(z) “Person” means any individual, partnership, firm, association, corporation,
limited liability company, trust, or any other form of business or governmental authority.
(aa) “Project” means the Commercial Parcels and the Parking Parcel.
(bb) “Property” means Tracts A, B, and C, Registered Land Survey No. [______],
Hennepin County, Minnesota.
(cc) “Roof and Skin Facilities” means the Project’s exterior facade, sheathing,
perimeter walls, roofs, roof membranes, and related improvements, but excluding the Storefronts.
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(dd) “Storefronts” means the curtain walls, windows, doors, signage, and related
improvements (including any ventilation systems located on such walls), installed from time to
time as part of each Commercial Parcel.
(ee) “Support Facilities” means those portions of the Project to the extent such
portions provide structural support for any other portion of the Project, and include the footings,
foundations, columns, walls, and other structural support components of the Project.
(ff) “Utility Facilities” means utility delivery systems and facilities providing utility,
heating, ventilating, exhaust, or air conditioning, monitoring, communication, video and data
services, including sanitary sewers, storm sewers and drains; water and gas mains and feeder
lines; electrical power trunk lines and feeder lines; telephone trunk lines and feeder lines; video
and data transmission lines; lines and facilities providing heated water and chilled water;
monitoring and control devices; and lines for energy and utility consumption, fire, other
emergency and monitoring, and any other lines, ducts, shafts, machinery, hangers, fasteners, and
equipment (including those affording connections to sources outside the Project) for such
purposes; and including all meters, pumps, switches and generators and chutes, shafts, rooms or
other enclosures and other component parts of such systems, together with all replacements of
such facilities. Utility Facilities include HVAC Equipment and Emissions Management
Equipment.
(gg) “West Commercial Canopy” the portion of the Parking Parcel that overhangs the
south boundary of the West Commercial Parcel and is generally depicted and identified as the
“West Commercial Canopy” on Exhibit C-1 attached hereto.
(hh) “West Commercial Parcel Owner” means the Owner of the West Commercial
Parcels and its successors and assigns.
2. Declaration of Reciprocal Easements in Favor of all Owners and all Parcels. Subject to
the covenants, restrictions, terms and conditions set forth in this Declaration, Declarant, as applicable,
hereby grants, conveys, declares, and establishes the following Easements in, over and through each of
the Parcels for the benefit of each Owner, and its Occupants, as applicable:
(a) Easement for Encroachments. Non-exclusive Easements for (i) encroachments
upon each Parcel caused by the construction, reconstruction, repair, shifting, settlement or
movement of any part of any other Parcel and any improvements thereto (including without
limitation, any Common Walls) as constructed; and (ii) the use, enjoyment and maintenance of
any part of each Parcel or any improvement to a Parcel which encroaches upon any other Parcel
as a result of any of the aforementioned causes.
(b) Easements for Structural Support. Non-exclusive Easements for Support
Facilities, including without limitation, structural support in and to all footings, foundations,
walls (including without limitation, Common Walls), columns, beams, joists, girders and other
structural components as constructed and located in or passing through any Parcel for the support
of any other Parcel and any improvements thereto.
(c) Easements for Common Facilities. Non-exclusive Easements for access to and
the use and benefit of the Common Facilities located within the Parcels for their respective
intended purposes and subject to such security restrictions as the Owner of the servient Parcel
may reasonably impose.
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(d) Easements for Utility Facilities. Exclusive Easements for the installation, use,
operation, and maintenance of the Exclusive Utility Facilities serving any Parcel to the extent
located on any other Parcel, including utility lines serving a Parcel from the service entry to the
Project, and other utility systems serving a Parcel that are located in any other Parcel, together
with reasonable access therefor subject to the terms and conditions of Section 7. In addition to the
foregoing, each Parcel shall have non-exclusive Easements through the ceiling plenum, shafts,
risers, conduit and other areas of the other Parcels that are designed for housing utility lines, for
the installation, operation, use, maintenance, repair and replacement of utility lines serving one or
more of the Parcels. Notwithstanding any language contained herein to the contrary, the actual
boundaries of such Easements for Exclusive Utility Facilities shall be confined, vertically and
horizontally, to the space actually occupied by such Exclusive Utility Facilities from time to time,
and if any Exclusive Utility Facilities needs to be replaced, the replacement may be located in
substantially the same location as it previously existed and such Easement shall be modified
accordingly. For avoidance of doubt, such Easements for Exclusive Utility Facilities shall cover
the following Exclusive Utility Facilities:
(i) the stormwater line serving the Parking Facility Parcel which is
constructed and installed in certain below-grade portions of the West Commercial Parcel,
in the area generally depicted and identified as the “Location of Existing Exclusive
Utility Facilities Serving Parking Parcel” on Exhibit B-1;
(ii) the gas lines, sanitary sewer lines and/or grease traps serving the West
Commercial Parcel and the East Commercial Parcel, respectively, which are constructed
and installed in certain below-grade portions of the Parking Parcel, and gas lines and gas
meters serving the West Commercial Parcel and the East Commercial Parcel,
respectively, which are constructed and installed in certain above-grade portions of the
Parking Parcel, in the areas generally depicted and identified as the “Location of Existing
Exclusive Utility Facilities Serving Commercial Parcels” on Exhibit B-1 (with respect to
the West Commercial Parcel and Exhibit B-2 (with respect to the East Commercial
Parcel);
(iii) the Easements for Exclusive Utility Facilities granted pursuant to
Sections 3(a) and 4(a).
(e) Easements for Access. Non-exclusive Easements for reasonable means of
pedestrian ingress, egress, and access over the Parcel of another Owner for purposes obtaining
access to or use of each Owner’s respective Parcel or Easement Improvements, and for purposes
of exercising Easement rights and obligations under this Declaration, including without
limitation, sidewalks, walkways, corridors, and passageways. Such Easements include such
pedestrian ingress, egress, and access for Operation and Maintenance of each Owner’s respective
Parcel and Easement Improvements (including periodic rolling of the dumpsters from the trash
facilities located within the Commercial Parcels to Market Street and/or the “Trash Truck
Easement Area” (pursuant to Section 4(b)) for emptying and pick-up), but excludes access for
Alterations (which is addressed in Section 7).
3. Declaration of Easements in Favor of the West Commercial Parcel. Subject to the
covenants, restrictions, terms and conditions set forth in this Declaration, and without limiting the
generality of the Easements set forth in Section 2, Declarant hereby grants, conveys, declares, and
establishes the following Easements for the benefit of the West Commercial Parcel, the West Commercial
Parcel Owner, and its Permittees, as applicable:
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(a) Easements for HVAC Equipment.
(i) Easements in, over, and through those portions of the Parking Parcel
generally depicted and identified as the “HVAC Equipment Easement Areas” on Exhibit
B-1 for the installation, use, operation, and maintenance of Exclusive Utility Facilities
consisting of any HVAC Equipment reasonably necessary to serve the West Commercial
Parcel and its Occupants (which is anticipated to be three to four overhead supply lines
within the parking and drive areas of the Parking Parcel and three to four corresponding
condenser units installed overhead within the interior areas of the Parking Parcel or
overhead or at grade in exterior areas of the Parking Parcel). Such HVAC Equipment
must be installed at a height sufficient to provide (i) a minimum overhead clearance of 6
feet, 10 inches for vehicular traffic within the parking and drive areas of the Parking
Parcel, and (ii) a minimum overhead clearance of [_____] [NTD: to be confirmed by
Public Works] for maintenance vehicles in exterior areas of the Parking Parcel. For
purposes of clarity, subject to the foregoing specifications, the installation of any such
HVAC Equipment shall otherwise be a Consent Alteration hereunder; provided, however,
the Parking Parcel Owner hereby consents to the location of such HVAC Equipment as it
exists as of the date of this Agreement.
(ii) Easements in, over, and through those portions of the Parking Parcel
generally depicted and identified as the “Dedicated Utilities Facility Easement Areas”
and the “Future Utility Facilities Easement Areas” on Exhibit B-1 for the installation,
use, operation, and maintenance of Exclusive Utility Facilities consisting of any HVAC
Equipment and/or Emissions Management Equipment reasonably necessary to serve the
West Commercial Parcel and its Occupants. The “Dedicated Utilities Facility Easement
Areas” refer to the existing ventilation shafts integrated into the Project as part of its
initial construction and providing a dedicated, vertical route from the West Commercial
Parcel to the roof of the Project for such Excusive Utilities Facilities. Notwithstanding
any language contained herein to the contrary, the installation of any Excusive Utilities
Facilities within the “Dedicated Utilities Facility Easement Areas” shall not be a Consent
Alteration hereunder; but, for purposes of clarity, the installation of any Excusive
Utilities Facilities within the “Future Utility Facilities Easement Areas” shall be a
Consent Alteration hereunder.
(b) Easement over the West Commercial Canopy. An exclusive Easement in, over,
and through the vertical faces, underside, and inside of the West Commercial Canopy for the
installation, maintenance, and operation of Easement Improvements consisting of signage,
speakers, security cameras, lighting (and wiring), and other fixtures related to the promotion and
operation of the business(es) located within the West Commercial Parcel (the “West Canopy
Fixtures”), provided that no West Canopy Fixture may extend beyond the outside face of the
West Commercial Canopy by more than 12 inches. All improvements, equipment, furniture,
fixtures or personal property installed on the West Commercial Canopy or otherwise within the
West Commercial Outdoor Area shall remain the sole property of the installing party and no
other party shall have any right or claim thereto.
(c) Easement for Additional Entrance Frost Footing and Door-Swing. An Easement
in, over, and through one section of that portion of the Parking Parcel generally depicted and
identified as the “Future Frost Footing Easement Area” on Exhibit B-1 no larger than necessary
to accommodate the installation and maintenance of an Easement Improvement consisting of a
future frost footing to be installed to support and serve an additional customer entrance to the
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West Commercial Parcel, which such entrance shall be no wider than eight feet. This Easement
shall also include the right for the door of such entrance to swing into the Parking Parcel.
(d) Easement for Outdoor Area. An Easement in, over, and through that portion of
the Parking Parcel generally depicted and identified as the “West Commercial Outdoor Area” on
Exhibit B-1 (the “West Commercial Outdoor Area”) for the purposes of uses ancillary to the
primary use of the West Commercial Parcel, including, a customer patio and seating area,
benches, plants, displays, and similar items, and the installation and maintenance or related
Easement Improvements to be installed to support and serve an additional customer entrance to
the West Commercial Parcel, provided that in exercising its rights under this Easement, the West
Commercial Parcel Owner shall ensure that there remains at all times at least five feet horizontal
clearance in all locations on the sidewalk/walkway between the south face of the West
Commercial Parcel and Market Street in order to accommodate pedestrian access and passage.
(e) Easements for Fastening and Securing (Ceiling). An Easement in, over, and
through that portion of Parking Parcel located directly above the West Commercial Parcel and
consisting of a portion of the concrete deck serving as the ceiling of the West Commercial Parcel
and the boundary between the West Commercial Parcel and the Parking Parcel for the purpose of
the West Commercial Parcel Owner and its Occupants using such concrete deck for the purpose
of installing and placing such fasteners as may be reasonably required to install and hang interior
improvements inside the West Commercial Parcel.
(f) Easement for Fastening and Securing (Over Street Improvements). An Easement
in, over and through that portion of south face of the Parking Parcel for the purpose of installing
and placing of Easement Improvements consisting of such fasteners, supports, electric supply and
related improvements as may be reasonably necessary to install and hang cables and related
lighting and signage to hang above Market Street (provided the West Commercial Parcel Owner
acknowledges that any encroachment of such cables and lighting over the Market Street public
right-of-way must be pursuant to a separate agreement with the City).
4. Declaration of Easements in Favor of the East Commercial Parcel. Subject to the
covenants, restrictions, terms and conditions set forth in this Declaration, and without limiting the
generality of the Easements set forth in Section 2, Declarant hereby grants, conveys, declares, and
establishes the following Easements for the benefit of the East Commercial Parcel, the East Commercial
Parcel Owner, and its Permittees, as applicable:
(a) Easements for Exclusive Utility Facilities.
(i) Easements in, over, and through that portion of the Parking Parcel
generally depicted and identified as the “HVAC Equipment Easement Areas” on Exhibit
B-2 for the installation, use, operation, and maintenance of Exclusive Utility Facilities
consisting of any HVAC Equipment reasonably necessary to serve the East Commercial
Parcel and its Occupants (which is anticipated to be three to four overhead supply lines
within the parking and drive areas of the Parking Parcel and three to four corresponding
ground-mounted condenser units within the exterior areas of the Parking Parcel). Such
HVAC Equipment must be installed (i) at a height sufficient to provide a minimum
overhead clearance of 6 feet, 10 inches for vehicular traffic within the parking and drive
areas of the Parking Parcel and (ii) only within exterior areas of the Parking Parcel which
are not designated for vehicular parking purposes. For purposes of clarity, subject to the
foregoing specifications, the installation of any such HVAC Equipment shall otherwise
be a Consent Alteration hereunder; provided, however, the Parking Parcel Owner hereby
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consents to the location of such HVAC Equipment as it exists as of the date of this
Agreement.
(ii) Easements in, over, and through those portions of the Parking Parcel
generally depicted and identified as the “Dedicated Utilities Facility Easement Areas”
and the “Future Utility Facilities Easement Areas” on Exhibit B-2 for the installation,
use, operation, and maintenance of Exclusive Utility Facilities consisting of any HVAC
Equipment and/or Emissions Management Equipment reasonably necessary to serve the
East Commercial Parcel and its Occupants. The “Dedicated Utilities Facility Easement
Areas” refer to the existing ventilation shafts integrated into the Project as part of its
initial construction and providing a dedicated, vertical route from the East Commercial
Parcel to the roof of the Project for such Excusive Utilities Facilities. Notwithstanding
any language contained herein to the contrary, the installation of any Excusive Utilities
Facilities within the “Dedicated Utilities Facility Easement Areas” shall not be a Consent
Alteration hereunder; but, for purposes of clarity, the installation of any Excusive
Utilities Facilities within the “Future Utility Facilities Easement Areas” shall be a
Consent Alteration hereunder.
(b) Easement for Vehicular Access to Trash Room. An Easement in, over, and
through those portions of the Parking Parcel generally depicted and identified as the “Trash Truck
Easement Area” on Exhibit B-2 for vehicular access to and from the east vehicular entrance to
the Parking Parcel (which is adjacent to the trash facility located within the East Commercial
Parcel).
(c) Easement over the East Commercial Canopy. An exclusive Easement in, over,
and through the vertical faces, underside, and inside of the East Commercial Canopy for the
installation, maintenance, and operation of Easement Improvements consisting of signage,
speakers, security cameras, lighting (and wiring), and other fixtures related to the promotion and
operation of the business(es) located within the East Commercial Parcel, provided that no such
fixture may extend beyond the outside face of the East Commercial Canopy by more than 12
inches. All improvements, equipment, furniture, fixtures or personal property installed on the East
Commercial Canopy or otherwise within the East Commercial Outdoor Area shall remain the sole
property of the installing party and no other party shall have any right or claim thereto.
(d) Easement for Additional Entrance Frost Footing and Door-Swing. An Easement
in, over, and through one section of that portion of the Parking Parcel generally depicted and
identified as the “Future Frost Footing Easement Area” on Exhibit B-2 no larger than necessary
to accommodate the installation and maintenance of an Easement Improvement consisting of a
future frost footing to be installed to support and serve an additional customer entrance to the
West Commercial Parcel, which such entrance shall be no wider than eight feet. This Easement
shall also include the right for the door of such entrance to swing into the Parking Parcel.
(e) Easement for Outdoor Area. An Easement in, over, and through that portion of
the Parking Parcel generally depicted and identified as the “East Commercial Outdoor Area” on
Exhibit B-2 (the “East Commercial Outdoor Area”) for the purposes of uses ancillary to the
primary use of the East Commercial Parcel, including, a customer patio and seating area, benches,
plants, displays, and similar items, and the installation and maintenance of related Easement
Improvements to be installed to support and serve an additional customer entrance to the East
Commercial Parcel.
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(f) Easements for Fastening and Securing (Ceiling). An Easement in, over, and
through that portion of Parking Parcel located directly above the East Commercial Parcel and
consisting of a portion of the concrete deck serving as the ceiling of the East Commercial Parcel
and the boundary between the East Commercial Parcel and the Parking Parcel for the purpose of
the East Commercial Parcel Owner and its Occupants using such concrete deck for the purpose of
installing and placing such fasteners as may be reasonably required to install and hang interior
improvements inside the East Commercial Parcel.
(g) Easement for Fastening and Securing (Over Street Improvements). An Easement
in, over and through that portion of south face of the Parking Parcel for the purpose of installing
and placing Easement Improvements consisting of such fasteners, supports, electric supply and
related improvements as may be reasonably necessary to install and hang cables and related
lighting and signage to hang above Market Street (provided the East Commercial Parcel Owner
acknowledges that any encroachment of such cables and lighting over the Market Street public
right-of-way must be pursuant to a separate agreement with the City).
5. Common Walls. The following provisions apply to the Common Walls.
(a) To the extent not inconsistent with this Declaration, general rules of law
regarding party walls and liability for property damage due to negligence or willful acts or
omissions shall apply to the Common Walls.
(b) Each Owner shall be responsible at its sole expense for maintenance and repair of
the non-structural portion of the Common Walls located upon its Parcel (including painting and
wall coverings) and each Owner shall have the right to install installation and/or a vapor barrier
and other reasonable waterproofing to the portion of the Common Walls located upon its Parcel);
provided, however, subject to the provisions of Section 9(b) and Section 13 hereof, the adjacent
Owners shall be responsible, jointly and severally, for the cost of structural repairs and the cost of
replacing and restoring the Common Walls between their respective Parcels in good order,
condition and repair, and for the restoration thereof following any damage or destruction thereto,
to the extent necessary to rebuild the Common Walls in the same location and size as exist as of
the date hereof and using the same or similar materials of like quality as the original Common
Walls. All such work shall be performed in accordance with all applicable Legal Requirements.
Notwithstanding the foregoing to the contrary, to the extent the need for any such maintenance,
repairs, replacement, or restoration arises out of the negligent act or omission or willful
misconduct of an Owner, any person occupying or using such party’s Parcel, or any contractor
working on such party’s Parcel or working on the Project at the direction of such party
(collectively, the “Responsible Party”), the Responsible Party shall be responsible for the cost of
such work.
6. Easement Restrictions. Unless otherwise agreed in writing by the Owners, the use of the
areas subject to the Easements shall be expressly limited to the purposes specified in this Declaration and
no use shall be permitted which impairs the use of such areas for their intended purposes. Recognizing the
mixed-use nature of the Project and that the exercise by a benefited party of the easement rights
established herein may affect the use and operation of the Property by others, the rights provided by the
Easements shall be exercised only in a reasonable and cooperative manner and only for the intended
purposes, so as to promote the full and efficient use and operation of the Project and other portions of the
Property and to minimize interference with the reasonable use and enjoyment of the Project and the
Property by the Owners. Without limiting the foregoing, the following additional restrictions and
limitations shall apply:
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(a) Utility Facilities. Any Owner may hereafter from time to time at its expense
install within the Utility Facilities to which the foregoing Easements extend any other or further
conduits, devices or other apparatus if and to the extent the same do not (i) endanger the servient
Parcel or increase insurance thereon, (ii) use a disproportionate or inequitable portion of the
Utility Facility in question, such as the space available within a conduit or chase or (iii) interfere
with the then or reasonably anticipated future use and operation of the servient Parcel. If an
Owner being served by Utility Facilities discontinues use of a Utility Facility then upon
reasonable request of the Owner of the servient Parcel, the party which has discontinued such use
shall remove by appropriate procedures the wires, conduit and other apparatus which is no longer
used. The Easements granted with respect to Utility Facilities shall not be fixed as to location, but
shall be located or relocated by the Owner of the servient Parcel, but only in such manner as will
not disturb or interfere with the use or enjoyment of the benefitted Parcel and Project and the
operation of the business conducted on the benefited Parcel, except in accordance with clause (b)
below.
(b) Impairment of Structural Integrity. Nothing shall be done, placed, installed, or
erected in any Parcel which would impair the structural integrity of the Project as a whole or any
other Owner’s Parcel.
(c) Restoration. Following installation and upon removal of any Easement
Improvements, the installing Owner shall, at its sole cost and expense, repair and restore the other
Owner’s Parcel to the condition that existed prior to the installation of such Easement
Improvements, reasonable wear and tear excluded.
(d) Access Routes. Access routes utilized in connection with the exercise of any
Easements rights under this Declaration shall be limited to the most direct and least disruptive
routes through the Property, taking into consideration the type and amount of materials or
equipment which must be transported and the number of personnel involved.
(e) General Provisions.
(i) All Easements granted herein are non-exclusive and are irrevocable and
perpetual, except as otherwise provided in this Declaration.
(ii) All Easements herein shall be easements appurtenant to the Parcels
owned by the respective Owners and are not easements in gross.
(iii) Each Owner agrees not to obstruct or interfere in any way with the use of
the Easements or the Easement areas for the purposes designated herein, except that each
Owner reserves the right to close off Common Facilities on its Parcel for such reasonable
periods of time as may be necessary to perform installation, maintenance, repair and
removal of any Permitted Alterations; provided, however, each of the other Owners and
its Permittees must at all times be permitted to access its Parcel and utilize the Easements
granted to such Owner under this Declaration.
(iv) Except for the rights expressly granted in this Declaration, all rights in
and to the Easement areas upon a Parcel are hereby reserved to the Owner(s) of the
servient Parcels, who may use the Easement areas for all uses and purposes not
inconsistent with the rights expressly granted to the grantees.
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7. Temporary License for Maintenance and Construction. Declarant hereby declares that
during the period of any construction, installation, replacement, major repair, maintenance, restoration, or
Alteration to any Parcel, Easement Improvements, or Common Facilities, each Owner hereby grants to
each other Owner and such Owners’ architects, engineers, contractors, subcontractors, materialmen, and
others engaged in directing and performing such work for them, a temporary license to use portions of the
respective Parcel of the licensor, as and to the extent reasonably necessary for the purpose of performing
the work in question; provided that each such license as to any particular Parcel benefited thereby shall
automatically end (unless terminated earlier) when the work that gives rise to such license shall be
completed. In addition:
(a) No Owner shall exercise a license herein provided until it has given at least 10
business days’ notice to the licensor (except in the case of emergency, in which case notice shall
be given as soon as practicable). Each Owner shall diligently proceed with all work and shall
exercise the license during such hours, in such places and in such a manner as will interfere with
the operation or enjoyment of the burdened Parcel to the minimum extent possible. All work shall
be in conformance with all Legal Requirements. At the request of the licensor, the licensee shall
provide plans and meet and consult with the licensor with respect to the foregoing matters and
shall be obligated to follow such reasonable requirements, including alternate methods or means
of performing the work (with or without exercise or more limited exercise of the temporary
license), as the licensor may reasonably prescribe, and establishment of a schedule for the work
and periodic construction progress meetings or reports as the licensor may reasonably require,
including specific notice or warning of any known or anticipated problems. The licensee shall in
no event interrupt any business being conducted on the burdened Parcel during normal business
hours without the prior consent of the licensor.
(b) Upon completion of any work as to which a temporary license or right was
enjoyed pursuant to the provisions of this Section 7(b), the licensee shall promptly, at its own cost
and expense, repair or restore the Parcel on which the license was exercised and any facilities
thereon to the same or as good condition as existed immediately before the license was exercised.
Such licensee covenants that it will defend, indemnify and save the licensor harmless from and
against any and all claims, liabilities and demands of any nature whatsoever arising from injury or
death to persons or damage to the Parcel of licensee or licensor or personal property contained
therein, and any liens, growing out of or resulting from maintenance, repair, or Alteration or other
activity done pursuant to this Section 7(b), except to the extent such claims, liabilities and
demands arise from the negligence or willful misconduct of the licensor.
8. Restrictions and Covenants
(a) Permitted Uses. The Parking Parcel shall be used solely as a parking ramp and
for no other purposes, provided, Parking Parcel Owner may permit the City to hold periodic
public events and activities within portions of the Parking Parcel so long as such event and
activities do not unreasonably interfere with rights of the Commercial Parcel Owners under this
Declaration. The Commercial Parcels shall be used solely for commercial purposes which are
permitted under applicable Legal Requirements, which shall include, without limitation, retail,
eating and drinking establishments, music or entertainment venues, office (including veterinary,
medical or dental office), gym or other fitness use, spa, or salon.
(b) Commercial Parcel Canopies.
(i) Subject to clauses (ii) and (iii) below, the West Commercial Parcel
Owner shall be responsible, at its sole cost and expense, to maintain, repair, and replace
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the Roof and Skin Facilities which form a part of the West Commercial Canopy and the
East Commercial Parcel Owner shall be responsible, at its sole cost and expense, to
maintain, repair, and replace the Roof and Skin Facilities which form a part of the East
Commercial Canopy, in each case, in accordance with the applicable terms and
conditions of this Declaration. Any such maintenance, repair, or replacements shall be
performed in accordance with Section 7.
(ii) The Parking Parcel Owner currently holds 20-year, original construction
warranties covering the roof membranes for the West Commercial Canopy and the East
Commercial Canopy. The Parking Parcel Owner shall use commercially reasonable
efforts to assign such warranties to the West Commercial Parcel Owner and the East
Commercial Parcel Owner, as applicable, and obtain the consent to such assignments
from the grantor(s) of such warranties. To the extent the Parking Parcel Owner is unable
to properly assign such warranties, the Parking Parcel Owner shall enforce such
warranties as necessary for the benefit of the applicable Commercial Owner.
(iii) The Parking Parcel Owner shall exercise good faith and commercially
reasonable efforts to prevent damage and excessive wear and tear to such Roof and Skin
Facilities forming a part of the West Commercial Canopy and the East Commercial
Canopy. To the extent of any damage to such Roof and Skin Facilities is caused by the
Parking Parcel Owner or any of its Permittees, the Parking Parcel Owner shall be
responsible for the repair of such damages at its sole cost and expense. If the damage or
excessive wear and tear requires full replacement of such Roof and Skin Facilities earlier
than would otherwise be required, the Parking Parcel Owner shall be responsible for a
portion of such replacement cost in an amount proportional to the damage and wear and
tear reasonably attributable to the Parking Parcel Owner or any of its Permittees.
(c) Compliance with Laws. No use shall be made of any Parcel or Easement which
would violate any applicable Legal Requirements, nor shall any act or use be permitted which
could cause waste to the Property, cause damage to or impair the Common Facilities, any other
building system or the weather-tight soundness or safety of the Project, cause a material increase
in insurance rates on any Parcel, or otherwise cause any unusual liability, health or safety risk, or
expense for the Owners.
(d) Leases. All leases for space within the Property shall be in writing and shall be
subject to this Declaration. Any failure of the tenant to comply with the terms hereof shall
constitute a default hereunder by the tenant and the Owner of the Parcel or portion thereof subject
to such lease.
(e) Hazardous Materials. No Owner or Occupant shall use, or permit the use of
Hazardous Materials in, on, or about its Parcel, except in small quantities that may be used in the
ordinary course of its usual business operations conducted thereon and in connection with
performance of construction, reconstruction, maintenance, repair, cleaning or janitorial work, and
any such use shall at all times be in compliance with all Legal Requirements (including
Environmental Laws). Each Owner and Occupant (by its occupancy of the Property subject to
this Declaration) agrees to defend, protect, indemnify and hold harmless each other Owner and
Occupant from and against all claims or demands, including any action or proceeding brought
thereon, and all costs, losses, expenses and liabilities of any kind relating thereto, including but
not limited to costs of investigation, remedial response, and reasonable attorneys’ fees and cost of
suit, arising out of or resulting from any Hazardous Material used or permitted to be used by such
indemnifying Owner or Occupant, whether or not in the ordinary course of business. For the
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purpose of this Section, the term (i) “Hazardous Materials” shall mean: petroleum products,
asbestos, polychlorinated biphenyls, radioactive materials and all other dangerous, toxic or
hazardous pollutants, contaminants, chemicals, materials or substances listed or identified in, or
regulated by, any Environmental Law, and (ii) “Environmental Laws” shall mean: all applicable
federal, state, county, municipal, local and other statutes, laws, ordinances and regulations which
relate to or deal with human health or the environment, all as may be amended from time to time.
(f) No Operating Covenant. This Declaration is not intended to, and does not, create
or impose any obligation on an Owner or Occupant to operate, continuously operate, or cause to
be operated a business or any particular business at the Project.
(g) Emissions Management Equipment. The Owner of any Parcel containing a
commercial kitchen, laboratory, or other operation in the Project which emits odors or fumes in
any significant quantity must initially install and subsequently operate, maintain, repair, and
replace Emissions Management Equipment that is designed to minimize, to the extent
commercially reasonable, the impact on any other Parcels in the Project of odors, fumes, and
grease that are related to the emission of odors, fumes and grease or the operation of Emissions
Management Equipment. Emissions Management Equipment must be located within the
Easement areas for Exclusive Utility Facilities described in Section 3(a) and 4(a). The Owner of
the Parcel requiring such Emissions Management Equipment shall ensure that no discharge,
waste and/or residue related to such Emissions Management Equipment is permitted to
accumulate in any portion of the Project, specifically within any area of the Parking Parcel used
by Permittees for parking-related purposes, and such Owner shall promptly cause any such
discharge, waste and/or residue to be promptly removed if it so accumulates.
9. Maintenance and Operation. The maintenance and operational authority and related
obligations with respect to the Property shall be as follows:
(a) General Responsibility. Unless otherwise provided herein, each Owner shall, at
its sole cost, maintain, repair, and take good care of (i) its Parcel, including all improvements
thereon, (ii) all Easement Improvements, and (iii) any exterior building signage or displays for
such Parcel, and shall at all times keep the same in first-class order and condition, ordinary wear
and tear excepted, make all necessary repairs thereto, interior and exterior, structural or non-
structural, and keep the same in compliance with all Legal Requirements.
(b) Damage. If damage is caused to any Parcel or any Easement Improvements, then
to the extent an Owner, its Occupant, contractor or agent (or the employee or agent of any of the
foregoing), caused such damage, then such Owner is responsible for such damage and is liable, at
its expense, for the repair of such damage. Subject to Sections 12(c) (Waiver of Claims) and
Section 13 (Casualty), if such damage was caused by any other Permittee, then the Owner of the
damaged Parcel or damaged Easement Improvement shall be responsible, at its expense, for the
repair of such damage.
(c) Traffic Coating; Waterproofing. Without limiting the generality of clause (a)
above, the Parking Parcel Owner shall cause annual inspections of the traffic coating and
waterproofing systems which are located above the upper limits of the Commercial Parcels to be
performed by a qualified professional with experience and knowledge about industry best
practices for proper maintenance of traffic coating and waterproofing systems in a multi-use
projects comparable to the Project. The Parking Parcel Owner will use commercially reasonable
efforts to timely address any repairs or maintenance items identified in such annual inspection
which are presented as “required” (but not immediately), “recommended”, or similarly
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categorized. The Parking Parcel Owner will timely address any repairs or maintenance items
identified in such annual inspection which are presented as “critical”, “urgent”, “required”
(immediately), or similarly categorized, or which are necessary to maintain the waterproof
surface on the roof of the Parking Parcel.
(d) Trash Removal. Each Owner shall also be responsible for the removal and
disposal of all garbage and recycling, generated from its Parcel; provided, however, neither the
Parking Parcel Owner nor any of its Permittees shall be entitled to have access to or use of the
trash facility located within each Commercial Parcel for the disposal of garbage and recycling.
(e) Snow Removal. Except to the extent the City of Edina undertakes to perform
snow and ice removal from the sidewalk and other exterior areas on the Property as part of the
50th and France District commercial maintenance assessment program, or such program’s
successor or replacement, each Owner shall otherwise, at its sole cost, perform snow and ice
removal from the portion of such sidewalks and exterior walkways, drives and other exterior
surfaces located on its Parcel, except that the East Commercial Parcel Owner shall be responsible
for and shall, at its sole cost and expense, perform snow and ice removal from the East
Commercial Outdoor Area and the West Commercial Parcel Owner shall be responsible for and
shall, at its sole cost and expense, perform snow and ice removal from the West Commercial
Outdoor Area.
(f) Repair; Standards. The term “repairs” as used in this Section 9 shall include, but
not be limited to, all repairs, replacements and renewals and all necessary or appropriate
alterations, additions and betterments, necessary or appropriate to put and keep the Parcel in first-
class condition.
(g) Implementation. All repairs shall be (i) made in accordance with the provisions
of Section 10 and other applicable provisions of this Declaration, including without limitation, all
applicable Legal Requirements, (ii) equal in quality and class to the original work, (iii) effected
with all due diligence and in a workmanlike manner, and (iv) promptly and fully paid for by the
Owner of the Parcel in question.
10. Alterations
(a) Parcels. Each Owner (the “Alteration Owner”) may make Permitted Alterations
to its Parcel, as it may from time to time determine, without the consent or approval of any other
Owner.
(b) Consent Required. No Consent Alteration shall be made to any part of the Project
without the prior written consent of each of the Owner(s) of the Parcel(s) affected or impacted by
such proposed Consent Alteration.
(i) Notwithstanding the foregoing, the Parking Parcel Owner shall, if
requested by either or both Commercial Parcel Owners, grant its consent to the
installation of one new service door (each an “Additional Service Door”) per Commercial
Parcel located, in each case, in the Common Wall dividing each Commercial Parcel from
the Parking Parcel to provide access between each respective Commercial Parcel and the
Parking Parcel, provided the following conditions are satisfied:
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(1) any Additional Service Door is no larger than four feet wide by
nine feet tall and Additional Service Door is of a quality, construction, and finish
consistent with the other service doors located in the Project;
(2) any Additional Service Door does not eliminate or interfere with
a designated parking stall within the Parking Parcel;
(3) any Additional Service Door does not open into or otherwise
interfere with a vehicular drive aisle in the Parking Parcel; and
(4) the Alteration Owner otherwise complies with the terms and
conditions of this Section 10 with respect to the installation of any Additional
Service Door.
(c) Plans and Specifications, etc. Each Consent Alteration shall be made under the
supervision of a licensed architect, engineer, or contactor selected by the Alteration Owner (and,
in the case of Alterations to the Support Facilities and/or Roof and Skin Facilities, each of which
shall be an Person with demonstrated expertise in the applicable subject matter); shall be made in
accordance with detailed plans and specifications prepared by such architect, engineer, or
contractor; and shall be made pursuant to a contract with a licensed contractor reasonably
approved by the approving Owners which incorporates such plans and specifications. Copies of
all such plans and specifications shall be delivered by the Alteration Owner to the approving
Owners for their approval before commencement of the applicable Alterations.
(d) Other Requirements. No Alteration shall be made except in compliance with, and
each Alteration Owner hereby covenants that it will comply with, each of the following
provisions when making Alterations:
(i) All Alterations shall be made with reasonable diligence and dispatch
(subject to force majeure) in a first-class manner and with materials and workmanship at
least as good as the original construction of the Project.
(ii) Before any Alterations are begun, the Alteration Owner shall procure, at
its expense, all necessary licenses, permits, approvals and authorizations from all
governmental authorities and, except in the case of a Permitted Alteration, shall deliver
photocopies thereof to the other Owners. Upon request, the other Owners shall join in the
application for such licenses, permits, approvals and authorizations whenever such action
is necessary, and the Alteration Owner covenants that they will not suffer, sustain or
incur any cost, expense or liability by reason thereof.
(iii) All Alterations shall be made and completed in accordance with all Legal
Requirements.
(iv) Each Owner performing Alterations shall promptly discharge any
mechanic’s liens filed against any other Owner’s Parcel on account of such Alterations.
11. Taxes and Assessments. Each Owner shall pay, or cause to be paid before delinquency,
all taxes and assessments with respect to its Parcel, and any personal property owned or leased by such
Owner, provided that if the taxes or assessments or any part thereof may be paid in installments, such
Owner may pay each such installment as and when the same becomes due and payable.
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12. Insurance.
(a) Owner Insurance. Each Owner (as to its Parcel and its Easement Improvements
only) shall maintain or cause to be maintained in full force and effect at least the minimum
insurance coverages set forth below:
(i) Commercial general liability insurance with a combined single limit of
liability of $5,000,000.00 for bodily injury, personal injury and property damage, arising
out of any one occurrence and $5,000,000.00 general aggregate. Said liability insurance
shall specifically include contractual obligation coverage, by endorsement or otherwise,
so as to include the indemnification provisions set forth below. The other Owners shall be
“additional insureds” under such policy as it applies to the insuring Owners’ liability. The
above limits of liability insurance can be met with both primary and excess insurance
pursuant to underlying insurance, plus umbrella/excess liability insurance. An Owner
may satisfy the foregoing insurance obligations by causing any of its Occupants to carry
such insurance.
(ii) A policy of fire and extended coverage, vandalism and malicious
mischief coverage insurance, on the “Special Form” (formerly the all-risk form) covering
the full replacement cost of the improvements on such Owner’s Parcel and any facilities
and equipment owned by such Owner within or outside its improvements (including
Easement Improvements).
(b) Policy Requirements. Each liability policy will list as an additional insured the
Owner of the other Parcel and any tenants, managing agents and Mortgagees as may from time to
time be designated by the other Owner in writing. Each property policy will permit the waiver of
subrogation set forth below. Each insurance policy or certificate of coverage will be deposited
with the Owner of each Parcel upon the execution of this Declaration and at least 10 days’ before
the expiration of the previous policy.
(c) Waiver of Claims. Anything herein to the contrary notwithstanding, but subject
to each Owner’s obligation to repair, at its expense, any damage caused to any Parcel or any
Easement Improvements by such Owner, its Occupant, contractor or agent (or the employee or
agent of any of the foregoing), as described in Section 9(b) hereof, each Owner and Occupant
hereby waives and relinquishes all claims it may have against the Owner or Occupant of another
Parcel for any loss or damage to a Parcel due to a peril insured against by casualty insurance
required to be carried by Section 12 of this Declaration to the extent of the insurance proceeds
recovered under all such policies of insurance, whether or not the damage is caused by the
negligence of the Owner or Occupant of the other Parcel or its agents, officers, or employees;
provided, however, that this waiver shall not apply to vandalism or malicious mischief.
(d) Construction and Alteration. Before commencing any construction or Alteration,
each Owner shall obtain or require its contractor to obtain, and thereafter maintain so long as such
construction or Alteration is occurring, at least the minimum insurance coverages set forth below;
provided, however, for Alterations performed by a tenant or other Occupant, the Owner may
satisfy its obligation by causing its tenant or other Occupant to obtain such insurance, and if a
tenant or other Occupant is required to obtain such insurance, then the tenant or other Occupant
may satisfy its obligation by causing its contractor to obtain such insurance:
(i) workers’ compensation and employer’s liability insurance: Workers’
compensation insurance as required by Legal Requirements;
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(ii) General liability insurance: Commercial General Liability insurance with
a $2,000,000.00 combined single limit covering all operations by or on behalf of the
contractor and subcontractors;
(iii) Comprehensive Automobile Liability Insurance, with $1,000,000.00 for
each accident; and
(iv) All-risks Builder’s Risk Insurance for the full insurable value of the
Alterations.
All of the above limits of liability insurance can be met with both primary and excess
insurance pursuant to underlying insurance, plus umbrella/excess liability insurance. If
the construction or Alteration by or on behalf of an Owner occurs on another Owner’s
Parcel, subject to the terms of this Declaration, then such other Owner shall be named as
additional insured on a certificate of insurance delivered to such other Owner. If the
construction or Alteration involves the use of any Common Facilities then all other
Owners, or of any other Parcel then the Owner thereof, shall be named as additional
insureds on certificates of insurance which shall delivered to such Owners upon request.
13. Casualty. To the extent there are insurance proceeds payable due to any damage or
destruction to all or part of the Parcel(s) under any insurance policy maintained pursuant to Section
12(a)(ii), the following shall apply:
(a) In the event of an insured loss that is located entirely within a single Parcel, the
Owner of such Parcel may independently adjust the loss and deposit the insurance proceeds in an
account owned and controlled separately by that Owner. If, notwithstanding the foregoing, the
insurance policies require that other Owners identified as insureds or that Mortgagees identified
as loss payees also agree to the adjustment of the loss, the other Owners and the Mortgagees must
approve the adjustment the Owner of the damaged or destroyed Parcel reaches with the insurer. If
the insurance proceeds are made payable or paid to other Owners or Mortgagees in addition to the
Owner of the Parcel that was damaged or destroyed, the other Owners and Mortgagees must
cooperate with the Owner of the damaged or destroyed Parcel to cause all of the insurance
proceeds to be deposited in an account owned and controlled by the Owner of the damaged or
destroyed Parcel, and the Owner of the damaged or destroyed Parcel must proceed with all due
diligence to restore its Parcel, subject to the following:
(i) Such restoration shall be substantially the same condition as existed
immediately prior to the loss or damage, including without limitation restoration of the
Common Facilities, utility lines, equipment and services, emergency exits, all
components of its Parcel necessary for the Easements granted in Sections 2 through 5 and
all improvements and fixtures within those Easements (collectively, the “Shell”), but
excluding tenant improvements.
(ii) Each Owner shall promptly commence and diligently and continuously
pursue completion of the restoration of its Parcel, including the Shell, in accordance with
construction plans and specifications consistent with the condition of the improvements
immediately prior to the loss or damage. In the event that the plans and specification
deviate from the condition that existed immediately prior to the loss or damage, then such
deviations shall be subject to approval by the other Owners to the extent the construction
of such elements directly affect the Shell or another Owner’s Parcel.
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(iii) Each Owner shall have a temporary construction license to be exercised
in the same manner as the construction license set forth in Section 7.
(b) In the event of an insured loss in more than one Parcel which also directly affects
the Shell, the reconstruction or restoration thereof shall proceed as follows:
(i) Parking Parcel Owner shall promptly enter into a contract with a
qualified builder, such contract and builder to be reasonably acceptable to all Owners,
providing for the reconstruction or restoration of the affected Parcels (including the Shell
located on the Parcel) to substantially the same condition as they existed immediately
prior to the insured loss (except tenant improvements). In the event that the
reconstruction or restoration deviates from the condition that existed immediately prior to
the loss and the construction also directly affects the Shell or another Owner’s Parcel,
then all Owners have a right to approve the plans and specifications for the
restoration/reconstruction.
(ii) Each Owner that is maintaining any insurance policy pursuant to Section
12(a)(ii) (“Insuring Owner”) shall obtain available insurance proceeds and deposit all
insurance proceeds received into an escrow account with a mutually acceptable insurance
trustee. If, notwithstanding the foregoing, the insurance policies require that the other
Owners identified as insureds or that Mortgagees identified as loss payees also agree to
the adjustment of the loss, the other Owners and the Mortgagees (notwithstanding any
other provisions in their mortgage) must approve the adjustment the Insuring Owner
reaches with the insurer. If the insurance proceeds are made payable or paid to other
Owners or Mortgagees in addition to the Insuring Owner, the other Owners and
Mortgagees (notwithstanding any other provisions in their mortgage) must cooperate with
the Owner of the damaged or destroyed Parcel to cause all of the insurance proceeds to be
deposited into the escrow account with the insurance trustee.
(iii) The proceeds placed in escrow shall be used to rebuild and restore any
damage to the affected Parcels, including any damage or destruction to the Shell, in
accordance with the plans, provided that disbursements of proceeds shall be made by the
insurance trustee subject to the following: (A) receipt by the insurance trustee of such
construction statements, list of subcontractors, lien waivers and receipts as it shall
determine to be reasonably appropriate. Disbursements may be periodic or progress
payments, and the insurance trustee may make inspections and withhold such payments
as it deems reasonably necessary to insure compliance with the plans and specifications;
(B) written authorization from the Insuring Owner’s Mortgagee to make the
disbursement; provided, however, that in the case of restoration to the Shell, an Insuring
Owner’s Mortgagee may not withhold such authorization so long as the restoration of the
damage or destruction will return the Shell to the condition that existed prior to the
damage or destruction or the restoration to the Shell is otherwise consistent with plans
approved by the Owners; and (C) the insurance trustee shall be entitled to charge, and the
Owners shall be empowered to pay, a reasonable fee for the services rendered by the
insurance trustee.
(iv) The reconstruction or restoration shall be commenced and completed
with all due diligence.
(v) Each Owner shall have a temporary construction license to be exercised
in the same manner as the construction license set forth in Section 7.
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If at the time of damage or destruction to the portion of Shell under an insurance policy
there is other insurance in the name of an Owner covering the same portion of the Shell covered
by the Insuring Owner’s Policy, the Insuring Owner’s Policy with regard to that portion of the
Shell is primary. If an Owner defaults in any obligation hereunder and the expiration of any
period to cure set forth under Section 14, a non-defaulting Owner shall be entitled to one or more
of the remedies available under Section 14.
(c) Notwithstanding the fact that (A) an Owner fails to keep and maintain insurance
in full force and effect as required in Section 12(a)(ii); (ii) no insurance proceeds are made
available to an Owner; or (iii) the insurance proceeds received by an Owner are insufficient to
cover the full rebuild or restoration cost of the damage or destruction, each individual Owner
shall bear any and all cost and expense necessary to rebuild its Parcel(s) to the condition that
existed prior to the damage or destruction with no rights of contribution from the other Owners.
(d) Notwithstanding any language contained herein to the contrary, if there is
unanimous agreement between the Owners and Mortgagees, not to rebuild or restore the damage
or destruction, then any insurance proceeds available under this Section shall be distributed to
their respective Owners and/or Mortgagees, pursuant to the terms of their respective mortgages.
14. Default
(a) Event of Default. The occurrence of any one or more of the following events
shall constitute an “Event of Default” by the non-performing Owner, as applicable (the
“Defaulting Party”):
(i) The failure of an Owner to make any payment required to be made by
such Owner hereunder within 10 business days after the due date and written notice of
non-payment; or
(ii) The failure of an Owner to observe or perform any of the covenants,
conditions or obligations of such Owner under this Declaration, other than as described in
clause (i) above, within 30 days after notice by another Owner (the “Non-Defaulting
Party”) specifying the nature of the default claimed, or, if such default cannot reasonably
be cured within said 30-day period, such longer period of time as is reasonably necessary
to cure such default, provided the Defaulting Party commences to cure such default
within said 30-day period and diligently continues to prosecute same to completion).
(b) Self-Help. With respect to any Event of Default by a Defaulting Party, any Non-
Defaulting Party shall have the right, but not the obligation, to cure such default by the payment
of money or the performance of some other action for the account of and at the expense of the
Defaulting Party; provided, however, that (i) before curing such default, the Non-Defaulting Party
shall deliver not less than 10 days prior written notice to the Defaulting Party of the Non-
Defaulting Party’s election to cure such default, except in an emergency condition, and (ii) if the
default shall constitute an emergency condition, the Non-Defaulting Party, acting in good faith,
shall have the right to cure such default upon such advance notice as is reasonably possible under
the circumstances or, if necessary in the case of emergency, without advance notice, so long as
notice is given as soon as reasonably feasible thereafter. To effectuate any such cure, a Non-
Defaulting Party shall have the right to enter upon the Parcel of the Defaulting Party to perform
any necessary work or furnish any necessary materials or services to cure the default of the
Defaulting Party. Each Owner shall be responsible for the default of its Occupants or Permittees.
If any Non-Defaulting Party cures a default, the Defaulting Party shall reimburse the Non-
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Defaulting Party within 10 days of receipt of demand, together with reasonable documentation
supporting the expenditures made, for all out-of-pocket costs and expenses incurred in connection
with such curative action, plus 10% thereof as compensation for administration, overhead and
other non-out-of-pocket costs.
(c) Lien. Costs and interest accruing pursuant to Section 14(b) shall constitute a lien
against the Defaulting Party’s Parcel. The lien shall attach and take effect only upon, and have
priority from and after, recordation of a claim of lien against the Parcel in question in the office of
the Registrar of Titles for Hennepin County, Minnesota by the Non-Defaulting Party making the
claim.
(d) Enforcement. Each Non-Defaulting Party shall have the right to prosecute any
proceedings at law or in equity against any Defaulting Party violating or attempting to violate or
defaulting upon any of the provisions contained in this Declaration, and to recover damages for
any such violation or default. Such proceeding shall include the right to restrain by injunction any
violation or threatened violation by another of any of the terms, covenants, or conditions of this
Declaration, or to obtain a decree to compel performance of any such terms, covenants, or
conditions, it being agreed that the remedy at law for a breach of any such term, covenant, or
condition (except those, if any, requiring the payment of a liquidated sum) is not adequate. All of
the remedies permitted or available to an Owner under this Declaration or at law or in equity shall
be cumulative and not alternative.
(e) Interest. Any time an Owner shall not pay any sum payable hereunder to another
within five days after the due date, such delinquent Owner shall pay interest on such amount from
the due date to and including the date such payment is received by the person entitled thereto, at
rate of 12% per annum.
(f) Continuing Validity. No default under this Declaration shall have any effect on
the validity of the Easements, or the covenants, restrictions and rights established hereby, or the
rights of any benefited party to the use or benefit of such Easements, covenants restrictions and
rights.
(g) Indemnification. Each Owner hereby indemnifies and holds harmless the other
Owner(s) from and against any and all liability, damage, expense, cause of action, suit, claim, or
judgment arising from personal injury, death, or property damage if caused by the negligence or
wrongful, fraudulent or criminal act or wrongful omission to act of the indemnifying Owner, its
employees, agents, contractors or Permittees relating to any of the Easements, Utility Facilities,
Common Facilities, breach of this Declaration, and/or the exercise of any rights under this
Declaration, except to the extent occasioned by the negligent or wrongful, fraudulent or criminal
act or wrongful omission to act of the indemnified Owner, its employees, agents, contractors or
Permittees.
15. Estoppel Certificates. Each Owner shall, from time to time, within 15 days after a written
request from another Owner, or such other Owner’s Mortgagee (or its designee), or to a prospective
Mortgagee or a prospective purchaser of such other Owner, at no charge to the requesting party, execute,
acknowledge and deliver to the requesting party, a certificate stating (a) that this Declaration is
unmodified and in full force and effect, or, if modified, identifying the modification agreement(s); (b) to
the best knowledge of the party executing such certificate, whether there is any existing default, or Event
of Default hereunder by the other party and, if so, specifying the nature and extent thereof; (c) the nature
and extent of any setoffs, claims or defenses then being asserted by the party requesting the certificate or
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otherwise known by the party executing the certificate; and (d) such other matters as may be reasonably
requested with respect to the status, rights and obligations of the parties under this Declaration.
16. Condemnation. If any portion of the Property is to be taken by condemnation or by deed
in lieu thereof, all parties having an interest in the Property shall be entitled to make a separate claim to
the condemning authority for the Property so taken, as their interests may appear. Promptly following any
partial taking of an Owner’s Parcel, such Owner shall proceed with diligence to restore its Parcel to the
condition before the casualty (or such appropriate condition given the status and terms of any lease for
such Parcel).
17. Notices. To be effective, any notice, consent, or other communication required or
permitted under this Declaration must be in writing. A notice or other communication shall be deemed to
have been given to a party, and shall be effective, (i) if delivered by hand, when physically received by an
officer of such party, or other person authorized by the party to receive notice, (ii) if delivered by an
overnight delivery service, on the next business day following the date such notice or other
communication is timely delivered to the overnight service, or (iii) if delivered by mail, on the third
business day following the date such notice or other communication is deposited in the U.S. mail postage
prepaid addressed to the other party, whichever occurs earlier. Notices shall be made to the address of
record for the county as to where real property tax notices are to be sent, with respect to such Owner’s
Parcel, with a copy to any such additional address any Owner provides to the other Owners.
18. No Dedication. Nothing herein contained shall be deemed to be a gift or dedication of
any portion of the Project or the Easements created hereby to the general public.Interpretation. The
provisions of this Declaration shall be liberally interpreted and construed to effectuate its purposes of
creating a uniform plan for the administration, maintenance and operation of the Property. In the event of
any conflict or inconsistency between or among the provisions of this Declaration, or other documents
filed against the Property from time to time, this Declaration shall control to the extent permitted by other
applicable law.
20. Applicable Law. This Declaration shall be construed and enforced in accordance with the
laws of the state of Minnesota. If any portion of this Declaration is unenforceable under Minnesota law,
the balance of the Declaration shall remain in full force and effect if enforcement of the remainder of the
Declaration is reasonably practicable.
21. Relationship of Parties. No provision of this Declaration and no action taken pursuant
hereto shall create any relationship between the Owners other than as specifically set forth herein.
Without limiting the generality of the foregoing, the Owners are not partners of, or joint venturers with, or
agents for, each other.
22. Time. Time is of the essence of this Declaration and each and all of its provisions.
23. Amendment or Modification. This Declaration and any of the covenants, rights, licenses,
restrictions and Easements created hereby may be terminated or amended by an instrument duly executed
by all of the Owners, and no other party (including any Occupant) need join in or consent to any such
termination or amendment to make the same effective, and all such parties (including all Owners and
Occupants) shall be bound by any amendment duly adopted hereunder provided that said amendment is
duly recorded with the Hennepin County Registrar of Titles.
25. Attorneys’ Fees. In any dispute arising with respect to matters covered by this
Declaration, the prevailing party shall be entitled to receive from any opposing party all costs reasonably
incurred (including reasonable attorneys’ fees) in connection with such dispute.
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26. Consents and Approvals. Where any consent or approval is required pursuant to this
Declaration (including any Exhibit hereto), such consent or approval shall not be unreasonably withheld,
delayed or conditioned, except where another standard for granting, withholding or conditioning such
consent or approval is specified. For purposes of this Section, it shall be deemed to be an unreasonable
condition to approval if an Owner attempts to demand payment for its approval or reimbursement of costs
and expenses for review of the matter requiring such Owner’s approval. In the case of any consents or
approvals required hereunder, such request for consent or approval shall be deemed approved if there has
been no response from the approving Owner within 10 business days after the date on which the
approving Owner received the following from the requesting Owner: (a) a written request for approval
from the requesting Owner to the approving Owner properly given in accordance with Section 17 and
other applicable provisions of this Agreement, which written request must reference on the cover page, in
bold print with the use of ALL CAPITAL LETTERS, the requirement for a 10-business day response
period as required herein, (b) all information required under this Agreement with respect such request for
approval (plans, specifications, etc.) and (c) all such other documentation relating to the request for
approval as the approving Owner may reasonably request. For the purposes of clarification, the approving
Owner requesting additional or clarified information, in addition to approving or denying any request (in
whole or in part), shall be deemed a response by approving Owner for purposes of the foregoing.
27. Merger Not Intended. Common ownership of any Parcel shall not cause this Declaration
to be extinguished by operation of merger in whole or in part, and to the extent any of the Easements
created hereby are between Parcels under common ownership, the same shall be an equitable servitude
(but shall be deemed an easement) and shall not be deemed merged in such common ownership, until
such time as the Owners of all the affected Parcels specify in a recorded writing a specific intent to merge
such interests.
28. Waiver. No person or entity having or acquiring any interest in the Property shall have
the right to contest or challenge the Easements, rights, restrictions, covenants and conditions set forth in
this Declaration on the basis of the passage of time. All such persons and entities, by their assertion or
acceptance of any interest in the Property, are hereby estopped from asserting and shall be deemed to
have waived any claim that any provision of this Declaration is invalid or unenforceable in whole or in
part due to the passage of time whether such claim arises or is brought forth under Minnesota Statutes
Section 500.20, Minnesota Statutes Section 541.023, or any other statute or law heretofore or hereafter
enacted.
29. Inapplicability of MCIOA. Declarant, as applicable, does hereby declare that (i) no part
of the Project may be used for residential purposes, and (ii) it does not intend or elect to have the Project
or any part thereof governed by Minnesota Common Interest Ownership Act (“MCIOA”), Minnesota
Statutes Chapter 515B. Accordingly, the terms and provisions of MCIOA shall have no applicability to
any part of the Project and no part of the Project may be subject to the MCIOA or otherwise
condominiumized.
30. Successors and Assigns. This Declaration shall be binding upon, and shall inure to the
benefit of, any successor or assign of any Owner. Declarant, as applicable, does hereby declare that the
Parcels are, and shall be, held, transferred, sold, conveyed and occupied subject to the Easements,
restrictions and covenants of this Declaration, which Easements, restrictions and covenants (a) are for the
purpose of protecting the value, desirability and amenities of the Project and (b) shall operate as equitable
covenants, restrictions, easements and reservations, which shall run with each Parcel and which shall be
binding on all parties having any right, title or interest in the same, their heirs, personal representatives,
successors and assigns.
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31. Severability. If any term of this Declaration or any application thereof shall be invalid or
unenforceable, then the remainder of this Declaration and any other application of such term shall not be
affected thereby.
32. Counterparts. This Declaration may be executed in two or more counterparts, each of
which shall be an original, but all of which together shall constitute one and the same instrument.
[Remainder of page left intentionally blank; signature pages follow]
[Signature Page to Declaration of Easements, Restrictions and Covenants (Market Street North Ramp)]
IN WITNESS WHEREOF, the undersigned has caused this Declaration to be made as of the day
and year first above written
HOUSING AND REDEVELOPMENT
AUTHORITY OF EDINA, MINNESOTA
By:
Chair
By:
Secretary
Reviewed and Approved:
__________________________________
Scott H. Neal
Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ____ day of ____________, 2019,
by _______________ and _______________, the Chair and Secretary, respectively, of the Housing and
Redevelopment Authority of Edina, Minnesota, on behalf of said Authority.
Notary Public
[Signature Page to Declaration of Easements, Restrictions and Covenants (Market Street North Ramp)]
IN WITNESS WHEREOF, the undersigned has caused this Declaration to be made as of the day
and year first above written
EDINA MARKET STREET LLC,
a Minnesota limited liability company
By: EDINA MARKET STREET MANAGER LLC,
a Minnesota limited liability company,
its Managing Member
By:
Name:
Its:
STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me as of this ____ day of ____________, 2019, by
__________________________, the _________________________ of EDINA MARKET STREET
MANAGER LLC, a Minnesota limited liability company, the Managing Member of EDINA MARKET
STREET LLC, a Minnesota limited liability company, on behalf of such limited liability company.
Notary Public
THIS DOCUMENT WAS DRAFTED BY:
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402-1498
[Exhibit A to Declaration of Easements, Restrictions and Covenants (Market Street North Ramp)]
4810-9700-2609\13
Exhibit A
Registered Land Survey No. [______], Hennepin County, Minnesota
[See attached.]
[Exhibit B-1 to Declaration of Easements, Restrictions and Covenants (Market Street North Ramp)]
4810-9700-2609\13
Exhibit B-1
West Commercial Parcel Easements
[See attached.]
[Exhibit B-2 to Declaration of Easements, Restrictions and Covenants (Market Street North Ramp)]
4810-9700-2609\13
Exhibit B-2
East Commercial Parcel Easements
[See attached.]
[Exhibit C-1 to Declaration of Easements, Restrictions and Covenants (Market Street North Ramp)]
4810-9700-2609\13
Exhibit C-1
West Commercial Canopy
[See attached.]
[Exhibit C-2 to Declaration of Easements, Restrictions and Covenants (Market Street North Ramp)]
4810-9700-2609\13
Exhibit C-2
East Commercial Canopy
[See attached.]