HomeMy WebLinkAbout3052SIDEWALK EASEMENT AGREEMENT
(4500 France)
THIS S4EWAL EASEMENT AGREEMENT (this "Agreement') is made and entered
into this ay of _ , 2020 ("Effective Date'), by and between ORION 4500
FRANCE, LLC, a Delaw'g limited liability company ("Owner'), and the CITY OF EDINA,
MINNESOTA, a Minnesota statutory city (the "City').
RECITALS:
A. Owner is the owner of the real property legally described on Exhibit A attached
hereto and incorporated herein (the "Property').
B. The Property is subject to that certain Redevelopment Agreement by and among
Owner, City 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 (the
"Authority'), dated December 18, 2018 (as amended, the "Contract').
C. Pursuant to the Contract, Owner has agreed to grant the City an easement over,
upon and across the surface of that portion of the Property legally described on the attached
Exhibit B-1 and depicted on the attached Exhibit B-2 (the "Sidewalk Property') for sidewalk
and public access purposes, on the terms and conditions provided in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual obligations of the
parties hereto, each of them does hereby covenant and agree with the others as follows:
1. Easement Premises. Owner hereby grants and conveys to the City, for the benefit
of the City and the general public a non-exclusive, perpetual public easement over, across, upon
and through the Sidewalk Property, together with and including all (a) surface improvements
now or hereafter located thereon, including, without limitation, all paving, sidewalks, pathways,
retaining walls, and other hardscapes and (b) all amenities, components, and fixtures now or
hereafter located thereon, including, without limitation, all transit stops, benches, trash
receptacles, and landscaping, (collectively, the "Easement Premises'), for the purpose of the
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4845-8912-6591\1
general public utilizing the Easement Premises and its components for their respective intended
purposes, including for the passage and access of pedestrians, in accordance with and subject to
the terms and conditions of this Agreement. Owner hereby reserves the right to (i) place within
the Easement Premises moveable patio furniture and fixtures such as tables, chairs, umbrellas.
• 1. f i • r c f ) • ) )
purposes. so long as the foregoing items do not materially impair the free flow of pedestrian
1 I • ,-11 the Easement Premises:
replace permanuilmproyementmayincidelltalleacroackintothe_Eas
so long_as_such improvements do not materialbLimpairAheAktflowapeckstrian access and
passaoe.
2. Term. The easements granted hereby, and each reservation, covenant, condition
and restriction contained in this Agreement, shall be effective as of the date hereof, shall be
perpetual, and shall remain in effect until affirmatively released by the City. Such release shall be
evidenced by the recording of a release or termination of this Agreement in the real estate records
of Hennepin County, Minnesota, at which time this Agreement shall terminate, subject to
reconciliation of expenses and obligations incurred through the date of release or termination and
the continuation of those provisions that specifically survive termination of this Agreement, and
the Easement Premises shall thereafter belong to and be under the sole control of Owner.
3. Operation and Control of Easement Premises. During the term of this Agreement,
Owner shall operate the Easement Premises for sidewalk and public access purposes and other
related or incidental purposes consistent with Section 1 above and in accordance with this
Agreement and all applicable governmental laws, ordinances, regulations and orders, at Owner's
sole cost and expense.
4. Maintenance. At all times during the term hereof, Owner, at its cost and expense,
shall keep and maintain the Easement Premises in good condition and repair, which such
maintenance shall include, without limitation, the following:
(a) all repairs, replacements, renewals, alterations, additions and betterments
thereto, as may be necessary to keep the Easement Premises in the condition and repair
required by this Agreement, and which do not impair the City's or the public's rights to
use of the Easement Premises as set forth in this Agreement;
(b) the maintenance of all pedestrian surfaces to a smooth and evenly-covered
condition, which obligation includes, without limitation, the cleaning, sweeping, repairing
and resurfacing of such pedestrian surfaces;
(c) periodic removal of all papers, debris, filth, refuse, ice and snow, provided
all sweeping shall be at appropriate intervals during such times as shall not unreasonably
interfere with the use of the Easement Premises;
(d) maintaining and replacing all landscaping and other vegetation;
(e) placing, keeping in repair, replacing and repainting any appropriate
directional signs or• markers within or associated with the Easement Premises; and
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4845-8912-6591145.
I,
operating, keeping in repair, cleaning and replacing when necessary such
Easement Premises lighting facilities as may be reasonably required to reasonably
illuminate the Easement Premises, including, without limitation, all lighting within the
Easement Premises.
5. No Obligation of the City to Repair or Maintain. The City shall have no obligation
of any kind, expressed or implied, to repair, rebuild, restore, reconstruct, modify, alter, replace, or
maintain the Easement Premises or any part thereof.
6. Payment of Taxes and Assessments. Owner shall pay, or cause to be paid, before
becoming delinquent, all real estate taxes, charges, assessments, and levies, assessed and levied
by any governmental taxing authority during the term of this Agreement against the Easement
Premises. Nothing contained in this Agreement shall require Owner to pay any franchise, estate,
inheritance, excise, succession, capital levy, or transfer tax of the City or any income, excess
profits or revenue tax payable by the City under this Agreement. Subject to the terms of the
Contract so long as the same remains in effect, Owner shall have the right and option, at any time
but solely at Owner's expense, to pay any real estate taxes or assessments in installments or under
protest or in a similar manner, or to contest the levy or amount of the same in appropriate legal or
administrative proceedings.
7. Indemnification and Insurance.
(a) Indemnification of the City. Except to the extent caused by the willful
misconduct or negligence of the City, its employees or agents, or the general public, or
arising out of the default by the City and its officers, employees or agents of obligations
made pursuant to a contract with Owner, including this Agreement, Owner hereby
covenants and agrees to assume and to indemnify and save harmless the City and its
employees and agents from and against any and all claims, demands, actions, damages,
costs, expenses, reasonable attorneys' fees, and liability in connection with the loss of life,
personal injury and/or damage to property, to the extent arising from or out of the design
or initial construction, maintenance and operation of the Easement Premises, or in
connection with the use or occupancy of the Easement Premises, or any part thereof, by
Owner, or to the extent arising out of the breach of Owner's obligations hereunder.
(b) Property Insurance. At all times during the term hereof, Owner, at its sole
cost and expense, shall keep the Easement Premises and all alterations, extensions, and
improvements thereto and replacements thereof, insured, in the amount of the full
replacement cost thereof and with such deductibles as Owner deems appropriate, against
loss or damage by fire and against those casualties covered by extended coverage
insurance and against vandalism and malicious mischief and against such other risks, of a
similar or dissimilar nature, as are customarily covered with respect to improvements
similar in construction, general location, use, and occupancy to such improvements.
(c) Liability Insurance. During the term of this Agreement, Owner shall
procure and maintain continuously in effect (or shall cause the same to occur), the
following policies of insurance of the kind and minimum amounts as are customarily
maintained with respect to facilities and improvements similar to those located on the
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4845-8912-6591\45
Easement Premises, at commercially reasonable coverage levels, to be reviewed from
time to time by Owner: insurance against liability for injuries to or death of any person or
damage to or loss of property arising out of or in any way relating to the use, occupancy,
or condition of the Easement Premises, or any part thereof, including insuring the
indemnification obligations set forth in Section 7.1 above. Such insurance shall provide
that the City is an additional insured.
(d) General Insurance Requirement. All insurance required in this Agreement
shall be placed with financially sound and reputable insurers licensed to transact business
in the State of Minnesota. Upon written request of the City, Owner shall furnish the City
with a certificate or certificates of the respective insurers stating that such insurance is in
force and effect. The insurance coverage herein required may be provided by a blanket
insurance policy or policies.
8. Casualty and Condemnation. In the event that all or any part of the Easement
Premises are destroyed by fire or other casualty, and subject to a determination by the relevant
mortgage lender, Owner shall promptly rebuild, reconstruct and/or restore the same to the extent
insurance proceeds are available or, in the event insurance proceeds are not sufficient to
reconstruct and/or restore the same, to the extent insurance proceeds combined with any
contributions by Owner toward reconstruction are available. If all of the Easement Premises is
taken, acquired, or condemned by eminent domain for any public or quasi-public use or purpose,
this Agreement shall terminate as of the date of vesting of title in the condemning authority. Each
party shall make its own claim in the condemnation proceeding based upon the value of its
respective interest in the Easement Premises.
9. Default By Owner. If Owner fails to perform any of its obligations under this
Agreement, and fails to cure such default after 30 days' written notice of such failure or, if such
failure cannot reasonably be cured within such 30 days, fails to commence curative action and
thereafter diligently complete the same, then, in such case, the City may pursue all available
remedies at law and in equity, including curing such failure on behalf of Owner and Owner shall
pay to the City all costs in incurred by the City on account thereof within 30 days after demand
thereof by the City. If Owner fails to make payment within such 30-day period, the City may
assess such costs incurred to all or any portion of the Property as a service charge pursuant to
Minnesota Statutes, Section 429.101, or any successor statute.
10. Miscellaneous.
(a) Waiver. The waiver by any party hereto of any breach or default of any
provisions anywhere contained in this Agreement shall not be deemed to be a waiver of
any subsequent breach or default thereof. No provision of this Agreement shall be
deemed to have been waived by any party hereto unless such waiver is in writing and
signed by the party charged with any such waiver.
(b) Amendments. Except as otherwise herein provided, and not otherwise, no
subsequent alteration, amendment, change, waiver, discharge, termination, deletion, or
addition to this Agreement shall be binding upon either party unless in writing and signed
by both parties.
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4845-8912-659114
(c) Joinder; Permitted Encumbrance. Except for the mortgagee consent
attached hereto, this Agreement does not require the joinder or approval of any other
person and each of the parties respectfully has the full, unrestricted and exclusive legal
right and power to enter into this Agreement for the term and upon the provisions herein
recited and for the use and purposes hereinabove set forth.
(d) Dedication. Nothing contained in this Agreement will be deemed to be a
gift or dedication of any portion of the Easement Premises to the general public.
(e) Notices. Except as otherwise expressly provided in this Agreement, a
notice, demand or other communication under this Agreement by any party to any other
shall be sufficiently given or delivered if it is (a) dispatched by registered or certified
mail, postage prepaid, return receipt requested, (b) sent by recognized overnight courier
(such as Federal Express), or (c) delivered personally, as follows:
In the case of Owner:
In the case of the City:
Orion 4500 France, LLC
Attn: Ted Carlson
4530 West 77th Street, Suite 365
Edina, MN 55435
City of Edina
Attn: City Manager
4801 West 50th Street
Edina, MN 55424
or at such other address with respect to any such party as that party may, from time to
time, designate in writing and forward to the other, as provided in this Section.
(f) No Third Party Beneficiary. This Agreement is not intended to give or
confer any benefits, rights, privileges, claims, action or remedies to any person or entity.
(g) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
(11) Law Governing. This Agreement will be governed and construed in
accordance with the laws of the State of Minnesota.
(i) Consents and Approvals. In all cases where consents or approvals are
required hereunder, such consents or approvals shall not be unreasonably conditioned,
delayed or withheld. All consents or approvals shall be in writing in order to be effective.
No Additional Waiver Implied by One Waiver. If any agreement contained
in this Agreement should be breached by any party and thereafter waived by another
party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent breach hereunder.
11. Survival. The easements granted hereby and each reservation, covenant, condition
and restriction contained in this Agreement will run with the land and will be binding upon, and
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4845-8912-659W5_
inure to the benefit of, as the case may be, Owner and the City and their respective successors
and assigns.
12. Subdivision. The parties acknowledge that the Property may be subdivided by a
Registered Land Survey. Following such subdivision, the fee owner of any portion of the
Property may prepare an amendment to this Agreement to (i) confirm those parcels of the
Property which are burdened or benefitted by the terms and condition of this Agreement, and (ii)
release all other parcels of the Property from the terms and conditions of this Agreement. Such
owner shall deliver the amendment to the all other fee owners of the Property and the City for
execution, and all other fee owners of the Property and the City shall promptly execute and
acknowledge the amendment and return it to the fee owner that prepared the amendment for
recording against title to the Property.
[Remainder of page intentionally left blank; signature pages follow]
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4845-8912-6591 \5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
OWNER:
ORION 4500 FRANCE, LLC
a Minnesota limited liability company
By: Orion Investments Edina II, LLC,
a Minnesota limited liability
company
Its: Manager
By:
Name:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of , 2020, by
, the of ORION INVESTMENTS EDINA II,
LLC, a Minnesota limited liability company, as the Manager of ORION 4500 FRANCE, LLC, a
Delaware limited liability company, on behalf of the limited liability companies.
Notary Public
7
[Signature Page to Sidewalk Easement Agreement (4500 France)]
4845-8912-659W5
Th regoin 'nstrymentiwas ackno
by )cpk ta-Na , and
resPectively, of the City of Edina, Minnesota, on behal
edgeq pero4e me -us day of AM
, t e Mayor
, 2020,
City Manager,
Notary u lic
CITY:
CITY OF EDINA, MINNESOTA,
a Minnesota statutory city
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THIS DOCUMENT WAS DRAFTED BY:
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402-1498
SHARON M. ALLISON
Notary Polio-Minnesota
My Commission Expirse Jan 31, 2025
8
[Signature Page to Sidewalk Easement Agreement (4500 France)]
4845-8912-6591\-15
By:
By:
EXHIBIT A
Legal Description of Property
Parcel 1:
Lots 1 and 2 and that part of Lot 6 described as follows: Commencing at the most Northerly
corner of said Lot 6; thence South along the East line of said lot; 40.62 feet; thence
Northwesterly 30.2 feet to a point on the Northerly line of said Lot 6, distant 27.19 feet Westerly
from the point of beginning; thence Northeasterly to the point of beginning, all in Block 2,
"Fairbairn's Rearrangement" in Waveland and Waveland Park, including all of the vacated alley
which lies North of the South line of said Lot 2 extended West, Hennepin County, Minnesota.
(Abstract Property)
Parcel 2:
Lots 3, 4 and 5;
That part of Lot 6, described as follows: Commencing on the Easterly line of said Lot at a point
distant 40.62 feet Southerly from the most Northerly corner of said Lot, thence Northwesterly
30.2 feet to a point on the Northwesterly line of said Lot distant 27.19 feet Southwesterly from
the most Northerly corner of said Lot; thence Southwesterly along the Northwesterly line of said
Lot to the most Westerly corner of said Lot, thence Southeasterly along the Southwesterly line of
said Lot to the most Southerly corner of said Lot, thence Northerly along the Easterly line of said
Lot to the point of beginning;
That part of the alley now vacated, described as follows: Commencing at the point of intersection
of the center line of alley, now vacated with the North line of Lot 3 extended Westward, thence
East on said extended line to the Northwest corner of said Lot 3, thence along the Easterly line of
said alley to the most Southerly corner of Lot 5, thence Southwesterly along an extension of the
Southeasterly line of said Lot to the center line of said alley, thence Northwesterly along the
center line of said alley to a point of its intersection with a line erected to bisect the angle existing
in the Westerly line of said alley, thence Southwest along said line to the West line of said alley,
thence North along said West line to a point in said line 40.62 feet South of the most Northerly
corner of Lot 6, the same being the point of intersection to said West line of alley with the
extension Westward of the North line of Lot 3, thence East along said extended line to the point
of beginning;
All in Block 2, "Fairbairn's Rearrangement" In Waveland And Waveland Park
(Torrens Property)
Parcel 3:
Lot 7, Block 2, Fairbairn's Rearrangement in Waveland and Waveland Park, Hennepin County,
Minnesota.
9
[Exhibit A to Sidewalk Easement Agreement (4500 France)]
4845-8912-6591\45
Together with that part of the adjacent vacated alley that accrued thereto by reason of the
vacation thereof.
(Abstract property)
Parcel 4:
Lot 8, Block 2, Fairbairn's Rearrangement in Waveland and Waveland Park, Hennepin County,
Minnesota less and except that portion described as commencing at the most westerly corner of
said Lot 8; thence on an assumed bearing of North 47 degrees 35 minutes 29 seconds East, along
the northerly line of said Lot 8, a distance of 12.00 feet; thence South 33 degrees 43 minutes 44
seconds East, parallel with the west line of said Lot 8, a distance of 75.00 feet; thence South 47
degrees 35 minutes 29 seconds West, parallel with said northerly line of Lot 8, a distance of
12.00 feet, to said west line of Lot 8; thence North 33 degrees 43 minutes 44 seconds West, along
said west line of Lot 8, a distance of 75.00 feet to the point of beginning.
(Abstract property)
10
[Exhibit A to Sidewalk Easement Agreement (4500 France)]
4845-8912-6591
EXHIBIT BA
lase-torment Premises
Legal Description of the Sidewalk Property
An easement over and across that part of Block 2, Fairbairn's Rearrangement in Waveland and
as commencing at the most westerly corner of Lot 8, said Block 2; thence on an assumed bearing
of North 47 degrees 35 minutes 29 seconds East, along the northerly line of said Block 2, a
distance o I $
continuing_NOVILOACS 35 minutes 29 seconds East 260.25 fect_thetice—southeasterly_18_49_,
fceialonga nontangential curve concave to the sot& to the eastlint_of saidIllock2.1aving_a_
radius of 25.00 feet, a central angle of 42 degrees 22 minutes 03 seconds and the chord of said
curve bears—South 57 East_theitceSpidirasiegrees 05 minutes
19 seconds 'est alot • said east e of sal( Block 2 a istance
corner of said Block 2; thence South 49 de. rees 28 min rtes 10 seconds West along the southerly
rtneDfsaidMod2,adisianeesAa eesiaA)52 minutes seconds
West 24.31 feet; thence North 48 degrees 00 minutes 00 seconds East 28.02 feet: thence North
00 degrees 00 minutes 00 seconds West 159.92 feet; thence North 65 degrees 59 minutes 53
seconds West 33.83 feet; thence South 48 degrees 00 minutes 00—seconds West 227.83 feet;
thence North 42 degrees 00 minutes 00 seconds West 1.44 feet to the point of beginning.
c
11
[Exhibit B7 k to Sidewalk Easement Agreement (4500 France)]
4845-8912-6591
EXHIBIT B-2
Depiction of the Sidewalk Property
[See attached.]
U
tExhihit B-Lto Sidewalk Easement A greement(4500 Franedi
4845-8912-6591\5
SIDEWALK EASEMENT SKETCH
SIDEWALK EASEMEN I
hereby certify that this sketch, plan, or report was
prepared by me or under my direct supervision and
that I am a duly Licensed Land Surveyor under the
laws of the State of Minnesota.
Dated this 6th day of August, 2020
SUNDE ND
ArIce J. Car on, "'.L.S. Minn. Lic. No. 44900
SURVEYING, LLC.
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9201 East freamington Freeway (3540 • Salta I le
Rionfoington, Minnesota 5F1420 .34.35
2017-.090 f3 T.2e. R.24. 5,137
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4845-8912-6591\i
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1_4
lExhibit B-2 to Sidewalk Easement Aereernent (4500 Franceg
4845-8912-6591\i
) ss.
CONSENT AND SUBORDINATION
The undersigned, Bremer Bank, National Association, a national banking association
("Mortgagee'), holder of that certain Mortgage, Security Agreement, Fixture Financing Statement
and Assignment of Leases and Rents executed by Orion 4500 France, LLC, a Delaware limited
liability company, dated as of July 1, 2019, and recorded with the Office of the County Recorder
in and for Hennepin County, Minnesota on July 15, 2019 as Document No. A10678911, and filed
with the Office of the Registrar of Titles in and for Hennepin County, Minnesota on July 8, 2019
as Document No. T05626060 (the "Mortgage'), hereby consents to the foregoing Sidewalk
Easement Agreement (4500 France) (the "Easement Agreement'), and hereby subjects and
subordinates the Mortgage and all of its right, title and interest in and to the Easement
Agreement.
Bremer Bank, National Association,
a national banking association
By:
Name:
Title:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2020, by , the of Bremer Bank, National
Association, a national banking association on behalf of the national banking association.
Notary Public
15
[Consent and Subordination to Sidewalk Easement Agreement (4500 France)]
4845-8912-6591\15
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Document 2 ID C:\Users\Zach.Sarah\My Documents\ndeloc\Sidewalk
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