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HomeMy WebLinkAbout24566011006 EASEMENT AGREEMENT THIS AGREEMENT, Made as of the 4th day of August, 1992, between EDINA PROPERTIES, INC., a Minnesota corporation (herein called "Grantor "), and the CITY OF EDINA, a municipal corporation under the laws of the State of Minnesota (herein called "Grantee "), WFTNESSETH, That Grantor, in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration to it in hand paid by Grantee, the receipt and sufficiency whereof is hereby acknowledged by Grantor, does hereby Grant, Bargain, Sell, Convey and Warrant unto Grantee, its successors and assigns, Forever, the following: 1. A permanent exclusive easement over, under and across the tract of land situated in the City of Edina, Hennepin County, Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof (hereinafter called the "Easement Area "), for the following purposes: (a) A public walkway; (b) Construction, reconstruction, installation, erection, alteration, maintenance, and repair of a walkway, a roof over such walkway, a lighting system, signs of a public nature, and a drainage system, on, under, over and along the Easement Area, all as more fully described in the construction plans and project manual for construction described on Exhibit B hereto and made a part hereof; and (c) TRANSFER P�t-q s DEFT. Of "$ I?`c, PI TAX DEC 18 1992 Construction, reconstruction, installation, erection, alteration, maintenance, and repair of such structures and improvements on, under, over or along the Easement Area that Grantee deems necessary or desirable to accomplish any one or more of the purposes of this easement, and all to be of such size, shape, kind, design, and quality as Grantee from time to time shall determine. �V & 2. A permanent non - exclusive easement to use that portion of the walls which abut or adjoin the Easement Area of any of the buildings (the "Buildings ") now or hereafter situated on all or any part of the property described on Exhibit C attached hereto and hereby made a part hereof (the 'Building Land "), and also to use a portion of the roofs of such Buildings (said abutting or adjoining walls and said roofs are hereinafter sometimes called the "Walls" and the 'Roofs ") to the extent deemed necessary or desirable by Grantee for the following purposes: (a) Installing, reinstalling, maintaining, repairing and altering signs of a public nature, which signs shall be mutually approved as to design and location, and a lighting system for the Easement Area, such signs and lighting system to be of such quantity, and of such kind, design and quality as Grantee from time to time shall determine. (b) Supporting any roof (the "Easement Roof') which may now or hereafter be constructed, reconstructed, installed or erected on or over the Easement Area, such roof to be of such size, shape, type, design and quality as Grantee from time to time shall determine, including the right to attach to or build into such Roofs or Walls such braces, brackets, supports, cables, beams and other devices or materials as may be necessary or convenient for the construction, installation, erection or maintenance of such Easement Roof. (c) Receiving any rain, water, snow, melting snow and ice draining from the Easement Roof and on to the roofs of such Buildings. (all of the purposes listed at 1 and 2 above are herein together called the "Public Purposes "). Notwithstanding the foregoing, the Grantor reserves the right to construct doors or windows on the Walls beneath the Easement Roof subject to compliance with the requirements of the building codes of the Grantee and to have 5A temporary easements over, under and across the Easement Area for the purpose of any such construction. Grantor and Grantee, for themselves and their respective successors and assigns, for the foregoing considerations, further warrant, represent and agree with respect to the rights and easements above granted as follows: A. Imlrovements. No improvements, structures or signs of any kind shall be constructed, placed, erected or installed by Grantor, its successors or assigns, in on or over all or any part of the Easement Area, or in or on the Walls, without, in each instance, first receiving the prior written consent of Grantee, its successors or assigns. However, Grantor shall have free use of all doors and windows now or hereafter constructed in the Buildings owned by the Grantor facing the Easement Area. Grantor shall promptly repair, without cost or charge to Grantee, any and all damage to the Easement Area, Walls or any property, equipment or devices of the Grantee which is due to the construction of such improvements, structures or signs or the construction of any doors or windows on the Walls. B. Storage. No goods, equipment, refuse, garbage, property or material of any nature, kind, or description shall be kept, stored or placed in, on or along the Easement Area, temporarily or permanently, except such as may belong to or be under the control of Grantee, and then only if used or usable for one or more of the Public Purposes. Provided, however, Grantor may place on the Easement Area, for use by the general public, chairs, tables, benches and decorative plantings, but only after first receiving, in each instance, the written approval of the Grantee, which -3- approval may restrict or prescribe the location, duration of use, quantity and kind of such items to be placed on the Easement Area by Grantor. C. Maintenance. Any improvements, structures or signs, or chairs, tables, benches or plantings, constructed, placed, erected or installed by Grantor, with the consent of Grantee, pursuant to Paragraphs A. or B. above, when and if constructed, placed, erected or installed, shall be maintained by Grantor and Grantor's successors and assigns, at Grantor's and their own cost and expense, at all times in a neat, clean and safe condition and in good state of repair. D. Right of Entry; Waiver. Grantee may enter upon the Easement Area and the Walls and Roofs of the Buildings owned by the Grantor with such personnel, equipment, and materials as the Grantee deems necessary for the purpose of doing or fulfilling any of the Public Purposes. Any such entry on the Easement Area or such Walls or Roofs of the Buildings owned by the Grantor by the Grantee shall be without liability or obligation of any kind to Grantor or any owner or occupant of the Easement Area or such Walls or Roofs for trespass or damage to the Easement Area or Buildings owned by the Grantor or for loss of business or business interruption, or any other cause, all of which liability and obligation is hereby waived by Grantor, and if any person makes any claim against the Grantee or its officers, officials, employees, agents or contractors for loss or damage to property or business with respect to the Buildings owned by the Grantor due to such entry, Grantor agrees to hold the Grantee, and its officers, officials, employees, agents and contractors harmless from and indemnified against any loss, cost, damage or -4- expense, including reasonable attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to the Grantee, upon demand of the Grantee, any such loss, cost, damage or expense, including reasonable attorneys' fees, suffered or incurred by the Grantee or its officers, officials, employees, agents or contractors, with interest at twelve percent (12 %) per annum from the date demanded until paid; provided, however, that the foregoing waiver and indemnity shall not apply to damage or loss caused by the negligent act of the Grantee, or its officers, officials, employees, agents or contractors, or caused by the violation by the Grantee, or its officers, officials, employees, agents or contractors, of any applicable law, statute or regulation. E.. Drainage From Easement Roof. The Easement Roof may be designed so as to cause rain, water, snow, melting snow and ice to drain from the Easement Roof and onto the roofs of said Buildings. Grantee, its successors and assigns, shall have no liability for any loss or damages caused by snow accumulating or water draining from the Easement Roof and onto the roofs of said Buildings or by snow and ice accumulating thereon. Grantor hereby warrants, represents and agrees, that a suitable drainage system has been constructed to the Buildings owned by the Grantor, and will be hereafter constantly maintained in a good condition and state of repair, so as to cause such rain water and melting snow and ice to be removed from the Easement Roof and the roofs of said Buildings and to prevent any damage from occurring to the Easement Roof or any supports therefor, or to the public walkway on the Easement Area, by reason thereof. -5- F. Property of Grantee; Repair. Any and all signs and lighting equipment, and any and all materials or devices provided or paid for by Grantee for support of the Easement Roof or for any of the other Public Purposes, which may be placed on the Walls, Roofs or Easement Area pursuant to this Agreement, and the Easement Roof itself, shall be and remain the property of Grantee and may be removed and replaced at any time and from time to time by Grantee. With the exception of any damage caused by drainage from the Easement Roof on to roofs of Buildings owned by the Grantor and snow accumulation on such roofs, Grantee agrees to repair promptly any and all damage done to any Wall or Roof as a result of or in connection with the use thereof by Grantee for any of the Public Purposes. G. Removal of Equipment. If, on the termination of the easements hereby granted, Grantee has not removed all of its signs, lighting equipment and Easement Roof support devices, and any and all other materials or devices placed by Grantee on the Walls, Roofs or Easement Area pursuant to this Agreement, then all of such materials, equipment and devices not so removed shall become the property of Grantor and may be removed and disposed of as Grantor sees fit, without compensation to Grantee, and without any liability of Grantee for any costs incurred by Grantor in connection with such removal and disposal. H. Destruction of Buildings. The easements hereby granted shall continue notwithstanding the destruction or removal of the Buildings. If the Buildings are hereafter destroyed or removed and if there shall thereafter be constructed or placed on the Building Land a new or different building or buildings, IM then the rights and easements granted by this Agreement shall be revived and shall extend and apply to the wall or walls of any such new or different building or buildings which abut or adjoin the Easement Area, and also shall apply to the roofs of such building or buildings. I. Notices. All notices, reports or demands required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when delivered personally to any officer of the party to which notice is being given, or two business days after deposit in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To Grantor: 1450 West Lake Street MinneapoliN Minnesota 55408 Attention: u-55,aj T l.0 a To Grantee: 4801 West 50th Street Edina, Minnesota 55424 Attention: Manager Such addresses may be changed by either party upon notice to the other party given as herein provided; provided, that no notice of a change of address shall be effective unless actually received by the addressee. J. Limited Liability. Grantor, and any successor of all or any part of the Easement Area or Building Land, shall be liable under this Agreement only for the obligations and liabilities which accrue while a record owner of all or any part of the Easement Area or the Building Land, and once Grantor, and each such successor owner, is no longer such a record owner, the liability hereunder of Grantor and each -7- such successor owner shall cease and terminate except for obligations which accrued during such record ownership. However, the foregoing provision shall not prevent exercise by the Grantee of the right to enter upon the Easement Area, Walls and Roofs pursuant to Paragraph M. hereof even if for a failure of a then prior record owner. K. Running Covenants. It is expressly intended and agreed by Grantee and Grantor for themselves, and their respective successors and assigns, that each of the agreements and covenants in this Agreement shall be construed to be, deemed, and are hereby declared to be, covenants running with the Easement Area and Building Land, and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, be binding, to the fullest extent permitted by law in equity for the benefit of, and in favor of, and be enforceable by, the Grantee, and its successors and assigns, and any successor in interest to the easements hereby granted, against Grantor, its successors and assigns, and every successor in interest to the Easement Area and Building Land, or any part of either thereof, and any interest therein, and any party in possession or occupancy of the Easement Area or Building Land or any part of either thereof. Each and every transferee by any contract, lease, conveyance or other instrument hereafter executed, covering or conveying all or any part of the Easement Area or Building Land shall conclusively be held to have agreed to, assumed, and to have acquired such interest subject to, the covenants and agreements of this Agreement regardless of whether or Sa not such covenants and agreements are set forth or referred to in such document or are specifically agreed to or assumed by such transferee. L. Warranties and Representations. Grantor warrants and represents that the execution and delivery of this Agreement has been duly authorized by all necessary corporate and shareholder action, the terms and conditions hereof are binding on Grantor and enforceable against it in accordance with the terms hereof, and that it is well seized in fee of the Easement Area and Building Land free from all encumbrances except as noted on Exhibit C hereto, and that Grantor has good right to grant the easements and rights hereby granted to Grantee. M. Violations; Remedies. If Grantor, its successors or assigns, shall violate, or attempt to violate, any of the provisions of this Agreement, or to impede, prevent or impair the full use and enjoyment by Grantee, its successors and assigns, of the easements and rights hereby given to Grantee, then it shall be lawful for Grantee, its successors and assigns, to enter upon the Easement Area and the Walls and Roofs, to the extent deemed necessary by Grantee, its successors or assigns, to remedy or prevent such violation or such impeding, preventing or impairing, and the provisions of Paragraph D. hereof shall apply to such entry. Grantee, its successors and assigns, in addition, shall have any and all other remedies then available at law or in equity, including specific performance, mandatory injunction and damages. All of the foregoing remedies shall be usable and enforceable by the Grantee separately or concurrently as the Grantee shall determine, and the use of one remedy shall not waive or preclude the use of any one or more of the other 0 remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder, shall not preclude the Grantee from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Grantor agrees to pay to the Grantee, upon demand of Grantee, any and all costs and expenses incurred by the Grantee in enforcing this Agreement by the use of the remedies above set out or by other remedies or means available to the Grantee at law or in equity, including reasonable attorneys' fees whether suit be brought or not, and costs of collection (including reasonable attorneys' fees) of any monies due to the Grantee from Grantor, pursuant hereto, and with interest on all such costs and expenses at the rate of twelve percent (12 %) per annum from the date demanded by the Grantee until paid. N. Sprinkler System. Grantor shall have and reserves the right to use the Easement Area and Walls to construct, reconstruct, install, reinstall, and maintain, without cost or charge to Grantee, a sprinkler system for the Buildings owned by the Grantor. Such system shall be constructed, reconstructed, installed and reinstalled only pursuant to plans and specifications which have been approved in writing by Grantee prior to any such work being done. Grantor shall at all times maintain said system in good condition and state of repair, without cost or charge to Grantee. Grantor shall promptly repair, without cost or charge to Grantee, any and all damage to the Easement Area, Walls or any property, equipment, material or devices of Grantee which is due to the construction, reconstruction, installation, -10- reinstallation or maintenance of such system, or the failure to maintain such system. O. Successors and Assigns. This Agreement shall be binding on, and inure to the benefit of, the parties hereto, and their respective successors and assigns, and all future owners of the rights and easements hereby granted, and all future owners and occupiers of the Easement Area and Building Land. This Instrument is Exempt from State Deed Tax. TO HAVE AND TO HOLD THE SAME, Together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to the Grantee, its successors and Assigns, Forever. IN TESTIMONY WHEREOF, The said Grantor and Grantee have caused these presents to be duly executed as of the day and year first above written. EDINA PROPERTIES, INC. N0ow1 , -- CITY OF EDINA By Its Mayor And Its Manager -11- STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) T# The foregoing instrument was acknowledged before me this 8 day of August, 1992, by 4-zc i Cu iuc7 , the PA, 3t06�uT of Edina Properties, Inc., a Minnesota corporation, on behalf of said corporation. ROBEPT N. FREDRICKSON KOIAP1Y PUAK- -miN ESCTA DAKOTA COUNTY MY comrnsion expires 9 -11-9 �s 7 STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) Notary Public before me this day of ,1992 by i r'-rtc -lc J„ f t c!40u,**-- the Mayor and d he Manager of the CITY OF EDINA, a Minnesota municipal corporation, on behalf of said corporation. THIS INSTRUMENT DRAFTED BY: Dorsey & Whitney (JPG) 2200 First Bank Place East Minneapolis, Minnesota 55402 Notary Public Eii- -12- �oNNNNNLENE J. RITTMILLER TARY PUBLIC - MINNEnSOTA ENNEPIN COU`,TY ommission Expires Oet. >;.1996 EXHIBIT A (Easement Area) All that part of Lots 26 and 27, Auditor's Subdivision No. 172, Hennepin County, Minnesota, according to the recorded plat thereof lying westerly of the following described line: Beginning at a point in the south line of said Lot 27, distant 60.00 feet west of the southeast corner thereof when measured along said south line; thence northerly to a point on a line drawn parallel with and 31.0 feet north of the south line of said Lot 27, which point is 59.86 feet west of the east line of said Lot 27 when measured along said parallel line; thence westerly along said parallel line a distance of 2.65 feet, thence northerly to a point in the north line of said Lot 26, distant 61.41 feet west of the northeast corner thereof when measured along said north line, and there terminating; and The north 10.22 feet of the east 55.00 feet of Lot 28, Auditor's Subdivision Number 172, Hennepin County, Minnesota, according to the recorded plat thereof; and The east 55.00 feet of the south 3.00 feet of Lot 29, said Auditor's Subdivision Number 172, Hennepin County, Minnesota. -13- r EXHIBIT B (Description of Easement Roof and Public Purposes) Construction Plans and the Project Manual for Construction for the 50th and France Skylight Canopy prepared by BRW Architects, Inc. and dated July 1, 1992, as amended by Addendum No. 1 thereto dated July 10, 1992, and Addendum No. 2 thereto dated July 13, 1992, including the following: Sheet No. Title AO Cover Sheet Al Roof Plan A2 Sections/ Elevations A3 Sections/ Elevations and Details -14- EXHIBIT C (Building Land) Lot 28 and the South 3 feet of Lot 29, Auditor's Subdivision Number 172, Hennepin County, Minnesota, according to the recorded plat thereof. SubJect to: 1. Real estate taxes and installments of special assessments due and payable in the year 1992 and thereafter. -15- 6011066 LSEEC3213 54 B6011066 BCD $2.00 MEC922.54 B6011066 DOC $16.00 •7 GR 92 DEC 13 P 1: 58 60 1066 M.RECORDER REC FEE COPY FEE EASEMENT AGREEMENT THIS AGREEMENT, Made as of the 4th day of August, 1992, between EDINA PROPERTIES, INC., a Minnesota corporation (herein called "Grantor "), and the CITY OF EDINA, a municipal corporation under the laws of the State of Minnesota (herein called "Grantee "), WITNESSETH, That Grantor, in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration to it in hand paid by Grantee, the receipt and sufficiency whereof is hereby acknowledged by Grantor, does hereby Grant, Bargain, Sell, Convey and Warrant unto Grantee, its successors and assigns, Forever, the following: 1. A permanent exclusive easement over, under and across the tract of land situated in the City of Edina, Hennepin County, Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof (hereinafter called the 'Basement Area "), for the following purposes: (a) A public walkway; (b) Construction, reconstruction, installation, erection, alteration, maintenance, and repair of a walkway, a roof over such walkway, a lighting system, signs of a public nature, and a drainage system, on, under, over and along the Easement Area, all as more fully described in the construction plans and project manual for construction described on Exhibit B hereto and made a part hereof; and (c) Construction, reconstruction, installation, erection, alteration, maintenance, and repair of such structures and improvements on, under, over or along the Easement Area that Grantee deems necessary or desirable to accomplish any one or more of the purposes of this easement, and all to be of such size, shape, kind, design, and quality as Grantee from time to time shall determine. 2. A permanent non - exclusive easement to use that portion of the walls which abut or adjoin the Easement Area of any of the buildings (the "Buildings ") now or hereafter situated on all or any part of the property described on Exhibit C attached hereto and hereby made a part hereof (the 'Building Land "), and also to use a portion of the roofs of such Buildings (said abutting or adjoining walls and said roofs are hereinafter sometimes called the "Walls" and the 'Roofs ") to the extent deemed necessary or desirable by Grantee for the following purposes: (a) Installing, reinstalling, maintaining, repairing and altering signs of a public nature, which signs shall be mutually approved as to design and location, and a lighting system for the Easement Area, such signs and lighting system to be of such quantity, and of such kind, design and quality as Grantee from time to time shall determine. (b) Supporting any roof (the "Easement Roof ") which may now or hereafter be constructed, reconstructed, installed or erected on or over the Easement Area, such roof to be of such size, shape, type, design and quality as Grantee from time to time shall determine, including the right to attach to or build into such Roofs or Walls such braces, brackets, supports, cables, beams and other devices or materials as may be necessary or convenient for the construction, installation, erection or maintenance of such Easement Roof. (c) Receiving any rain, water, snow, melting snow and ice draining from the Easement Roof and on to the roofs of such Buildings. (all of the purposes listed at 1 and 2 above are herein together called the "Public Purposes "). Notwithstanding the foregoing, the Grantor reserves the right to construct doors or windows on the Walls beneath the Easement Roof subject to compliance with the requirements of the building codes of the Grantee and to have -2- temporary easements over, under and across the Easement Area for the purpose of any such construction. Grantor and Grantee, for themselves and their respective successors and assigns, for the foregoing considerations, further warrant, represent and agree with respect to the rights and easements above granted as follows: A. Improvements. No improvements, structures or signs of any kind shall be constructed, placed, erected or installed by Grantor, its successors or assigns, in on or over all or any part of the Easement Area, or in or on the Walls, without, in each instance, first receiving the prior written consent of Grantee, its successors or assigns. However, Grantor shall have free use of all doors and windows now or hereafter constructed in the Buildings owned by the Grantor facing the Easement Area. Grantor shall promptly repair, without cost or charge to Grantee, any and all damage to the Easement Area, Walls or any property, equipment or devices of the Grantee which is due to the construction of such improvements, structures or signs or the construction of any doors or windows on the Walls. B. Storage. No goods, equipment, refuse, garbage, property or material of any nature, kind, or description shall be kept, stored or placed in, on or along the Easement Area, temporarily or permanently, except such as may belong to or be under the control of Grantee, and then only if used or usable for one or more of the Public Purposes. Provided, however, Grantor may place on the Easement Area, for use by the general public, chairs, tables, benches and decorative plantings, but only after first receiving, in each instance, the written approval of the Grantee, which -3- approval may restrict or prescribe the location, duration of use, quantity and kind of such items to be placed on the Easement Area by Grantor. C. Maintenance. Any improvements, structures or signs, or chairs, tables, benches or plantings, constructed, placed, erected or installed by Grantor, with the consent of Grantee, pursuant to Paragraphs A. or B. above, when and if constructed, placed, erected or installed, shall be maintained by Grantor and Grantor's successors and assigns, at Grantor's and their own cost and expense, at all times in a neat, clean and safe condition and in good state of repair. D. Right of Entry; Waiver. Grantee may enter upon the Easement Area and the Walls and Roofs of the Buildings owned by the Grantor with such personnel, equipment, and materials as the Grantee deems necessary for the purpose of doing or fulfilling any of the Public Purposes. Any such entry on the Easement Area or such Walls or Roofs of the Buildings owned by the Grantor by the Grantee shall be without liability or obligation of any kind to Grantor or any owner or occupant of the Easement Area or such Walls or Roofs for trespass or damage to the Easement Area or Buildings owned by the Grantor or for loss of business or business interruption, or any other cause, all of which liability and obligation is hereby waived by Grantor, and if any person makes any claim against the Grantee or its officers, officials, employees, agents or contractors for loss or damage to property or business with respect to the Buildings owned by the Grantor due to such entry, Grantor agrees to hold the Grantee, and its officers, officials, employees, agents and contractors harmless from and indemnified against any loss, cost, damage or ..r. expense, including reasonable attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to the Grantee, upon demand of the Grantee, any such loss, cost, damage or expense, including reasonable attorneys' fees, suffered or incurred by the Grantee or its officers, officials, employees, agents or contractors, with interest at twelve percent (12 %) per annum from the date demanded until paid; provided, however, that the foregoing waiver and indemnity shall not apply to damage or loss caused by the negligent act of the Grantee, or its officers, officials, employees, agents or contractors, or caused by the violation by the Grantee, or its officers, officials, employees, agents or contractors, of any applicable law, statute or regulation. E. Drainage From Easement Roof. The Easement Roof may be designed so as to cause rain, water, snow, melting snow and ice to drain from the Easement Roof and onto the roofs of said Buildings. Grantee, its successors and assigns, shall have no liability for any loss or damages caused by snow accumulating or water draining from the Easement Roof and onto the roofs of said Buildings or by snow and ice accumulating thereon. Grantor hereby warrants, represents and agrees, that a suitable drainage system has been constructed to the Buildings owned by the Grantor, and will be hereafter constantly maintained in a good condition and state of repair, so as to cause such rain water and melting snow and ice to be removed from the Easement Roof and the roofs of said Buildings and to prevent any damage from occurring to the Easement Roof or any supports therefor, or to the public walkway on the Easement Area, by reason thereof. -5- F. Property of Grantee: Repair. Any and all signs and lighting equipment, and any and all materials or devices provided or paid for by Grantee for support of the Easement Roof or for any of the other Public Purposes, which may be placed on the Walls, Roofs or Easement Area pursuant to this Agreement, and the Easement Roof itself, shall be and remain the property of Grantee and may be removed and replaced at any time and from time to time by Grantee. With the exception of any damage caused by drainage from the Easement Roof on to roofs of Buildings owned by the Grantor and snow accumulation on such roofs, Grantee agrees to repair promptly any and all damage done to any Wall or Roof as a result of or in connection with the use thereof by Grantee for any of the Public Purposes. G. Removal of Equipment. If, on the termination of the easements hereby granted, Grantee has not removed all of its signs, lighting equipment and Easement Roof support devices, and any and all other materials or devices placed by Grantee on the Walls, Roofs or Easement Area pursuant to this Agreement, then all of such materials, equipment and devices not so removed shall become the property of Grantor and may be removed and disposed of as Grantor sees fit, without compensation to Grantee, and without any liability of Grantee for any costs incurred by Grantor in connection with such removal and disposal. H. Destruction of Buildings. The easements hereby granted shall continue notwithstanding the destruction or removal of the Buildings. If the Buildings are hereafter destroyed or removed and if there shall thereafter be constructed or placed on the Building Land a new or different building or buildings, then the rights and easements granted by this Agreement shall be revived and shall extend and apply to the wall or walls of any such new or different building or buildings which abut or adjoin the Easement Area, and also shall apply to the roofs of such building or buildings. I. Notices. All notices, reports or demands required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when delivered personally to any officer of the party to which notice is being given, or two business days after deposit in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To Grantor: 1450 West Lake Street Minneapoli , Minnesota 55408 Attention: u55e It T LA-P t Tr,' To Grantee: 4801 West 50th Street Edina, Minnesota 55424 Attention: Manager Such addresses may be changed by either party upon notice to the other party given as herein provided; provided, that no notice of a change of address shall be effective unless actually received by the addressee. J. Limited Liability. Grantor, and any successor of all or any part of the Easement Area or Building Land, shall be liable under this Agreement only for the obligations and liabilities which accrue while a record owner of all or any part of the Easement Area or the Building Land, and once Grantor, and each such successor owner, is no longer such a record owner, the liability hereunder of Grantor and each IVA such successor owner shall cease and terminate except for obligations which accrued during such record ownership. However, the foregoing provision shall not prevent exercise by the Grantee of the right to enter upon the Easement Area, Walls and Roofs pursuant to Paragraph M. hereof even if for a failure of a then prior record owner. K. Running Covenants. It is expressly intended and agreed by Grantee and Grantor for themselves, and their respective successors and assigns, that each of the agreements and covenants in this Agreement shall be construed to be, deemed, and are hereby declared to be, covenants running with the Easement Area and Building Land, and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, be binding, to the fullest extent permitted by law in equity for the benefit of, and in favor of, and be enforceable by, the Grantee, and its successors and assigns, and any successor in interest to the easements hereby granted, against Grantor, its successors and assigns, and every successor in interest to the Easement Area and Building Land, or any part of either thereof, and any interest therein, and any party in possession or occupancy of the Easement Area or Building Land or any part of either thereof. Each and every transferee by any contract, lease, conveyance or other instrument hereafter executed, covering or conveying all or any part of the Easement Area or Building Land shall conclusively be held to have agreed to, assumed, and to have acquired such interest subject to, the covenants and agreements of this Agreement regardless of whether or 12 not such covenants and agreements are set forth or referred to in such document or are specifically agreed to or assumed by such transferee. L. Warranties and Representations. Grantor warrants and represents that the execution and delivery of this Agreement has been duly authorized by all necessary corporate and shareholder action, the terms and conditions hereof are binding on Grantor and enforceable against it in accordance with the terms hereof, and that it is well seized in fee of the Easement Area and Building Land free from all encumbrances except as noted on Exhibit C hereto, and that Grantor has good right to grant the easements and rights hereby granted to Grantee. M. Violations; Remedies. If Grantor, its successors or assigns, shall violate, or attempt to violate, any of the provisions of this Agreement, or to impede, prevent or impair the full use and enjoyment by Grantee, its successors and assigns, of the easements and rights hereby given to Grantee, then it shall be lawful for Grantee, its successors and assigns, to enter upon the Easement Area and the Walls and Roofs, to the extent deemed necessary by Grantee, its successors or assigns, to remedy or prevent such violation or such impeding, preventing or impairing, and the provisions of Paragraph D. hereof shall apply to such entry. Grantee, its successors and assigns, in addition, shall have any and all other remedies then available at law or in equity, including specific performance, mandatory injunction and damages. All of the foregoing remedies shall be usable and enforceable by the Grantee separately or concurrently as the Grantee shall determine, and the use of one remedy shall not waive or preclude the use of any one or more of the other 0 remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder, shall not preclude the Grantee from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Grantor agrees to pay to the Grantee, upon demand of Grantee, any and all costs and expenses incurred by the Grantee in enforcing this Agreement by the use of the remedies above set out or by other remedies or means available to the Grantee at law or in equity, including reasonable attorneys' fees whether suit be brought or not, and costs of collection (including reasonable attorneys' fees) of any monies due to the Grantee from Grantor, pursuant hereto, and with interest on all such costs and expenses at the rate of twelve percent (12 %) per annum from the date demanded by the Grantee until paid. N. Sprinkler System. Grantor shall have and reserves the right to use the Easement Area and Walls to construct, reconstruct, install, reinstall, and maintain, without cost or charge to Grantee, a sprinkler system for the Buildings owned by the Grantor. Such system shall be constructed, reconstructed, installed and reinstalled only pursuant to plans and specifications which have been approved in writing by Grantee prior to any such work being done. Grantor shall at all times maintain said system in good condition and state of repair, without cost or charge to Grantee. Grantor shall promptly repair, without cost or charge to Grantee, any and all damage to the Easement Area, Walls or any property, equipment, material or devices of Grantee which is due to the construction, reconstruction, installation, -10- reinstallation or maintenance of such system, or the failure to maintain such system. O. Successors and Assigns. This Agreement shall be binding on, and inure to the benefit of, the parties hereto, and their respective successors and assigns, and all future owners of the rights and easements hereby granted, and all future owners and occupiers of the Easement Area and Building Land. This Instrument is Exempt from State Deed Tax. TO HAVE AND TO HOLD THE SAME, Together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to the Grantee, its successors and Assigns, Forever. IN TESTIMONY WHEREOF, The said Grantor and Grantee have caused these presents to be duly executed as of the day and year first above written. EDINA PROPERTIES, INC. CITY OF EDINA By S LL-zS, Its Mayor And Its Manager -11- STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN) The fore ping instrument was acknowledged before me this IF day of August, 1992, by I ssez -(— -r. L44tjo = , the 1z63fAtFP-r of Edina Properties, Inc., a Minnesota corporation, on behalf of said corporation. ROBERT N. FRED ICKSON h01.:F:Y 'U,LIG — ;JiiNnESvTA DAKOTA COUNTY AA/ 9 -11 -97 STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN) The fore oin instrument s Notary Public before me this -3 Itd day of , ,19 bb ew is 1c S c-v'zb( the Mayor and c `EGC- t� ass Q z the Manager of the CITY OF EDNA, a Minnesota municipal corporation, on behalf of said corporation. THIS INSTRUMENT DRAFTED BY: Dorsey & Whitney (JPG) 2200 First Bank Place East Minneapolis, Minnesota 55402 -12- Notary Public DARIENE J. RITTMILLER NOTAPY PUBLIC MINNESOTA hIENNEPIN COUNTY My Commission Expires Oct. 15, IM EXHIBIT A (Easement Area) All that part of Lots 26 and 27, Auditor's Subdivision No. 172, Hennepin County, Minnesota, according to the recorded plat thereof lying westerly of the following described line: Beginning at a point in the south line of said Lot 27, distant 60.00 feet west of the southeast corner thereof when measured along said south line; thence northerly to a point on a line drawn parallel with and 31.0 feet north of the south line of said Lot 27, which point is 59.86 feet west of the east line of said Lot 27 when measured along said parallel line; thence westerly along said parallel line a distance of 2.65 feet, thence northerly to a point in the north line of said Lot 26, distant 61.41 feet west of the northeast corner thereof when measured along said north line, and there terminating; and The north 10.22 feet of the east 55.00 feet of Lot 28, Auditor's Subdivision Number 172, Hennepin County, Minnesota, according to the recorded plat thereof; and The east 55.00 feet of the south 3.00 feet of Lot 29, said Auditor's Subdivision Number 172, Hennepin County, Minnesota. -13- EXHIBIT B (Description of Easement Roof and Public Purposes) Construction Plans and the Project Manual for Construction for the 50th and France Skylight Canopy prepared by BRW Architects, Inc. and dated July 1, 1992, as amended by Addendum No. 1 thereto dated July 10, 1992, and Addendum No. 2 thereto dated July 13, 1992, including the following: Sheet No. Title AO Cover Sheet Al Roof Plan A2 Sections/ Elevations A3 Sections/ Elevations and Details -14- t EXHIBIT C (Building Land) Lot 28 and the South 3 feet of Lot 29, Auditor's Subdivision Number 172, Hennepin County, Minnesota, according to the recorded plat thereof. Subject to: 1. Real estate taxes and installments of special assessments due and payable in the year 1992 and thereafter. -15- 1 cr E R r SOTA OR 92 OEC i 3 FM 1: 58 I RECORDER l'- DEPUTY (wilcate Filing CeYtiticate w EASEMENT AGREEMENT THIS AGREEMENT, Made as of the 4th day of August, 1992, between FRANCE AVENUE PARTNERSHIP, a Minnesota general partnership (herein called "Grantor "), and the CM OF EDINA, a municipal corporation under the laws of the State of Minnesota (herein called "Grantee "), WTTNESSETH, That Grantor, in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, to it in hard paid by Grantee, the receipt and sufficiency whereof is hereby acknowledged by Grantor, does hereby Grant, Bargain, Sell, Convey and Warrant unto Grantee, its successors and assigns, Forever, the following: 1. A permanent exclusive easement over, under and across the tract of land situated in the City of Edina, Hennepin County, Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof (hereinafter called the "Easement Area "), for the following purposes: (a) A public walkway; (b) Construction, reconstruction, installation, erection, alteration, maintenance, and repair of a walkway, a roof over such walkway, a lighting system, signs of a public nature, and a drainage system, on, under, over and along the Easement Area, all as more fully described in the construction plans and project manual for construction described on Exhibit B hereto and made a part hereof, and (c) Construction, reconstruction, installation, erection, alteration, maintenance, and repair of such structures and improvements on, under, over or along the Easement Area that Grantee deems necessary or desirable to accomplish any one or more of the purposes of this easement, and all to be of such size, shape, kind, design, and quality as Grantee from time to time shall determine. 2. A permanent non - exclusive easement to use that portion of the walls which abut or adjoin the Easement Area of any of the buildings (the "Buildings ") now or hereafter situated on all or any part of the property described on Exhibit C attached hereto and hereby made a part hereof (the 'Building Land "), and also to use a portion of the roofs of such Buildings (said abutting or adjoining walls and said roofs are hereinafter sometimes called the "Walls" and the "Roofs ") to the extent deemed necessary or desirable by Grantee for the following purposes: (a) Installing, reinstalling, maintaining, repairing and altering signs of a public nature, which signs shall be mutually approved as to design and location, and a lighting system for the Easement Area, such signs and lighting system to be of such quantity, and of such kind, design and quality as Grantee from time to time shall determine. (b) Supporting any roof (the "Easement Roof ") which may now or hereafter be constructed, reconstructed, installed or erected on or over the Easement Area, such roof to be of such size, shape, type, design and quality as Grantee from time to time shall determine, including the right to attach to or build into such Roofs or Walls such braces, brackets, supports, cables, beams and other devices or materials as may be necessary or convenient for the construction, installation, erection or maintenance of such Easement Roof. (c) Receiving any rain, water, snow, melting snow and ice draining from the Easement Roof and on to the roofs of such Buildings. (all of the purposes listed at 1 and 2 above are herein together called the "Public Purposes "). Notwithstanding the foregoing, the Grantor reserves the right to construct doors or windows on the Walls beneath the Easement Roof subject to compliance with the requirements of the building codes of the Grantee and to have -2- temporary easements over, under and across the Easement Area for the purpose of any such construction. Grantor and Grantee, for themselves and their respective successors and assigns, for the foregoing considerations, further warrant, represent and agree with respect to the rights and easements above granted as follows: A. Improvements. No improvements, structures or signs of any kind shall be constructed, placed, erected or installed by Grantor, its successors or assigns, in on or over all or any part of the Easement Area, or in or on the Walls, without, in each instance, first receiving the prior written consent of Grantee, its successors or assigns. However, Grantor shall have free use of all doors and windows now or hereafter constructed in the Buildings owned by the Grantor facing the Easement Area. Grantor shall promptly repair, without cost or charge to Grantee, any and all damage to the Easement Area, Walls or any property, equipment or devices of the Grantee which is due to the construction of such improvements, structures or signs or the construction of any doors or windows on the Walls. B. Stogy. No goods, equipment, refuse, garbage, property or material of any nature, kind, or description shall be kept, stored or placed in, on or along the Easement Area, temporarily or permanently, except such as may belong to or be under the control of Grantee, and then only if used or usable for one or more of the Public Purposes. Provided, however, Grantor may place on the Easement Area, for use by the general public, chairs, tables, benches and decorative plantings, but only after first receiving, in each instance, the written approval of the Grantee, which 54 approval may restrict or prescribe the location, duration of use, quantity and kind of such items to be placed on the Easement Area by Grantor. C. Maintenance. Any improvements, structures or signs, or chairs, tables, benches or plantings, constructed, placed, erected or installed by Grantor, with the consent of Grantee, pursuant to Paragraphs A. or B. above, when and if constructed, placed, erected or installed, shall be maintained by Grantor and Grantor's successors and assigns, at Grantor's and their own cost and expense, at all times in a neat, clean and safe condition and in good state of repair. D. Right of Entry; Waiver. Grantee may enter upon the Easement Area and the Walls and Roofs of the Buildings owned by the Grantor with such personnel, equipment, and materials as the Grantee deems necessary for the purpose of doing or fulfilling any of the Public Purposes. Any such entry on the Easement Area or such Walls or Roofs of the Buildings owned by the Grantor by the Grantee shall be without liability or obligation of any kind to Grantor or any owner or occupant of the Easement Area or such Walls or Roofs for trespass or damage to the Easement Area or Buildings owned by the Grantor or for loss of business or business interruption, or any other cause, all of which liability and obligation is hereby waived by Grantor, and if any person makes any claim against the Grantee or its officers, officials, employees, agents or contractors for loss or damage to property or business with respect to the Buildings owned by the Grantor due to such entry, Grantor agrees to hold the Grantee, and its officers, officials, employees, agents and contractors harmless from and indemnified against any loss, cost, damage or -4- expense, including reasonable attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to the Grantee, upon demand of the Grantee, any such loss, cost, damage or expense, including reasonable attorneys' fees, suffered or incurred by the Grantee or its officers, officials, employees, agents or contractors, with interest at twelve percent (12 %) per annum from the date demanded until paid; provided, however, that the foregoing waiver and indemnity shall not apply to damage or loss caused by the negligent act of the Grantee, or its officers, officials, employees, agents or contractors, or caused by the violation by the Grantee, or its officers, officials, employees, agents or contractors, of any applicable law, statute or regulation. E. Drainage From Easement Roof. The Easement Roof may be designed so as to cause rain, water, snow, melting snow and ice to drain from the Easement Roof and onto the roofs of said Buildings. Grantee, its successors and assigns, shall have no liability for any loss or damages caused by snow accumulating or water draining from the Easement Roof and onto the roofs of said Buildings or by snow and ice accumulating thereon. Grantor hereby warrants, represents and agrees, that a suitable drainage system has been constructed to the Buildings owned by the Grantor, and will be hereafter constantly maintained in a good condition and state of repair, so as to cause such rain water and melting snow and ice to be removed from the Easement Roof and the roofs of said Buildings and to prevent any damage from occurring to the Easement Roof or any supports therefor, or to the public walkway on the Easement Area, by reason thereof. -5- F. ProMerty of Grantee: Repair. Any and all signs and lighting equipment, and any and all materials or devices provided or paid for by Grantee for support of the Easement Roof or for any of the other Public Purposes, which may be placed on the Walls, Roofs or Easement Area pursuant to this Agreement, and the Easement Roof itself, shall be and remain the property of Grantee and may be removed and replaced at any time and from time to time by Grantee. With the exception of any damage caused by drainage from the Easement Roof on to roofs of Buildings owned by the Grantor and snow accumulation on such roofs, Grantee agrees to repair promptly any and all damage done to any Wall or Roof as a result of or in connection with the use thereof by Grantee for any of the Public Purposes. G. Removal of Equipment. If, on the termination of the easements hereby granted, Grantee has not removed all of its signs, lighting equipment and Easement Roof support devices, and any and all other materials or devices placed by Grantee on the Walls, Roofs or Easement Area pursuant to this Agreement, then all of such materials, equipment and devices not so removed shall become the property of Grantor and may be removed and disposed of as Grantor sees fit, without compensation to Grantee, and without any liability of Grantee for any costs incurred by Grantor in connection with such removal and disposal. H. Destruction of Buildings. The easements hereby granted shall continue notwithstanding the destruction or removal of the Buildings. If the Buildings are hereafter destroyed or removed and if there shall thereafter be constructed or placed on the Building Land a new or different building or buildings, M then the rights and easements granted by this Agreement shall be revived and shall extend and apply to the wall or walls of any such new or different building or buildings which abut or adjoin the Easement Area, and also shall apply to the roofs of such building or buildings. I. Notices. All notices, reports or demands required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when delivered personally to any officer of the party to which notice is being given, or two business days after deposit in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To Grantor: 1323 Bohland Place St. Paul, Minnesota 55116 Attention: Klaus C. Freyinger With a copy to: 1100 International Centre 900 Second Avenue South Minneapolis, Minnesota 55402 Attention: John M. Palmer To Grantee: 4801 West 50th Street Edina, Minnesota 55424 Attention: Manager Such addresses may be changed by either party upon notice to the other party given as herein provided; provided, that no notice of a change of address shall be effective unless actually received by the addressee. J. Limited Liability. Grantor, and any successor of all or any part of the Easement Area or Building Land, shall be liable under this Agreement only for the IVA obligations and liabilities which accrue while a record owner of all or any part of the Easement Area or the Building Land, and once Grantor, and each such successor owner, is no longer such a record owner, the liability hereunder of Grantor and each such successor owner shall cease and terminate except for obligations which accrued during such record ownership. However, the foregoing provision shall not prevent exercise by the Grantee of the right to enter upon the Easement Area, Walls and Roofs pursuant to Paragraph M. hereof even if for a failure of a then prior record owner. K. Running Covenants. It is expressly intended and agreed by Grantee and Grantor for themselves, and their respective successors and assigns, that each of the agreements and covenants in this Agreement shall be construed to be, deemed, and are hereby declared to be, covenants running with the Easement Area and Building Land, and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, be binding, to the fullest extent permitted by law in equity for the benefit of, and in favor of, and be enforceable by, the Grantee, and its successors and assigns, and any successor in interest to the easements hereby granted, against Grantor, its successors and assigns, and every successor in interest to the Easement Area and Building Land, or any part of either thereof, and any interest therein, and any party in possession or occupancy of the Easement Area or Building Land or any part of either thereof. Each and every transferee by any contract, lease, conveyance or other instrument hereafter executed, covering or conveying all or any part of the Easement Area or Building Land shall 10 conclusively be held to have agreed to, assumed, and to have acquired such interest subject to, the covenants and agreements of this Agreement regardless of whether or not such covenants and agreements are set forth or referred to in such document or are specifically agreed to or assumed by such transferee. L. Warranties and Representations. Grantor warrants and represents that the execution and delivery of this Agreement has been duly authorized by all necessary partnership action, the terms and conditions hereof are binding on Grantor and enforceable against it in accordance with the terms hereof, and that it is well seized in fee of the Easement Area and Building Land free from all encumbrances except as noted on Exhibit C hereto, and that Grantor has good right to grant the easements and rights hereby granted to Grantee. M. Violations; Remedies. If Grantor, its successors or assigns, shall violate, or attempt to violate, any of the provisions of this Agreement, or to impede, prevent or impair the full use and enjoyment by Grantee, its successors and assigns, of the easements and rights hereby given to Grantee, then it shall be lawful for Grantee, its successors and assigns, to enter upon the Easement Area and the Walls and Roofs, to the extent deemed necessary by Grantee, its successors or assigns, to remedy or prevent such violation or such impeding, preventing or impairing, and the provisions of Paragraph D. hereof shall apply to such entry. Grantee, its successors and assigns, in addition, shall have any and all other remedies then available at law or in equity, including specific performance, mandatory injunction and damages. All of the foregoing remedies shall be usable and enforceable by the M Grantee separately or concurrently as the Grantee shall determine, and the use of one remedy shall not waive or preclude the use of any one or more of the other remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder, shall not preclude the Grantee from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Grantor agrees to pay to the Grantee, upon demand of Grantee, any and all costs and expenses incurred by the Grantee in enforcing this Agreement by the use of the remedies above set out or by other remedies or means available to the Grantee at law or in equity, including reasonable attorneys' fees whether suit be brought or not, and costs of collection (including reasonable attorneys' fees) of any monies due to the Grantee from Grantor, pursuant hereto, and with interest on all such costs and expenses at the rate of twelve percent (12%'0) per annum from the date demanded by the Grantee until paid. N. Sprinkler System. Grantor shall have and reserves the right to use the Easement Area and Walls to construct, reconstruct, install, reinstall, and maintain, without cost or charge to Grantee, a sprinkler system for the Buildings owned by the Grantor. Such system shall be constructed, reconstructed, installed and reinstalled only pursuant to plans and specifications which have been approved in writing by Grantee prior to any such work being done. Grantor shall at all times maintain said system in good condition and state of repair, without cost or charge to Grantee. Grantor shall promptly repair, without cost or charge to Grantee, any and all damage to the Easement Area, Walls or any property, equipment, material or -10- devices of Grantee which is due to the construction, reconstruction, installation, reinstallation or maintenance of such system, or the failure to maintain such system. O. Successors and Assigns. This Agreement shall be binding on, and inure to the benefit of, the parties hereto, and their respective successors and assigns, and all future owners of the rights and easements hereby granted, and all future owners and occupiers of the Easement Area and Building Land. This Instrument is Exempt from State Deed Tax. TO HAVE AND TO HOLD THE SAME, Together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to the Grantee, its successors and Assigns, Forever. IN TESTIMONY WHEREOF, The said Grantor and Grantee have caused these presents to be duly executed as of the day and year first above written. FRANCE AVENUE PARTNERSHIP By ` , . Its deneral Partner CITY OF EDINA By Its Mayor And -- Its Manager -11- STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) e foregoing instrument was acknowledged before me this 3 4 day of k4gt, 1992, by John M. Palmer, a general partner of France Avenue Partnership, a Miruiesota general partnership, on behalf of the partnership. Notary Publ� STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) A';; DARLENE J. RITCN'.;L;__R NOTARY PUBLIC - M NU;--CTa HENNEPIN COUNTY My CoffmtW a Expires OCL 15.1998 0The for oin in�trume t s acknowledged before me this day 1992, b S. the Mayor and - the Manager of the CITY OF EDINA, a Minnesota municipal corporation, on behalf of said corporation. THIS INSTRUMENT DRAFTED BY: Dorsey & Whitney (JPG) 2200 First Bank Place East Minneapolis, Minnesota 55402 -12- Notary Public t DARLENE J. RITTMIU_cR 1, NOTARY PUBLIC - MINNESOTA HENNEPIN COUNTY My Cvnas W Expires Oct. 15.1998 EXMBIT A (Easement Area) All that part of Lots 26 and 27, Auditor's Subdivision No. 172, Hennepin County, Minnesota, according to the recorded plat thereof lying westerly of the following described liner Beginning at a point in the south line of said Lot 27, distant 60.00 feet west of the southeast corner thereof when measured along said south line; thence northerly to a point on a line drawn parallel with and 31.0 feet north of the south line of said Lot 27, which point is 59.86 feet west of the east line of said Lot 27 when measured along said parallel line; thence westerly along said parallel line a distance of 2.65 feet; thence northerly to a point in the north line of said Lot 26, distant 61.41 feet west of the northeast corner thereof when measured along said north line, and there terminating. -13- EXHIBIT B (Description of Easement Roof and Public Purposes) Construction Plans and the Project Manual for Construction for the 50th and France Skylight Canopy prepared by BRW Architects, Inc. and dated July 1, 1992, as amended by Addendum No. 1 thereto dated July 10, 1992, and Addendum No. 2 thereto dated July 13, 1992, including the following: Sheet No. Title AO Cover Sheet Al Roof Plan A2 Sections/ Elevations A3 Sections/ Elevations and Details -14- N EXHIBIT C (Building Land) Lots 26 and 27, Auditor's Subdivision Number 172, Hennepin County, Minnesota, according to the recorded plat thereof. Sub; ec� t to: 1. Real estate taxes not yet due and payable for the year 1992 and thereafter. 2. Mortgage and Security Agreement and Fixture Financing Statement dated October 4, 1990 from France Avenue Partnership to Lutheran Brotherhood, filed October 5, 1990 as Document No. 5708960. 3. Assignment of Leases and Rents dated October 4, 1990 from France Avenue Partnership to Lutheran Brotherhood filed October 5, 1990 as Document No. 5708961. -15- CONSENT AND SUBORDINATION The undersigned, being the holder of a mortgage (the "Interest ") on the Building Land as defined in the Easement Agreement to which this Consent and Subordination is attached, the document creating said Interest being dated October 4, 1990, and recorded as Document No. 5708960, in the office of the County Recorder, Hennepin County, Minnesota, does hereby agree and consent to all of the terms and conditions of the Easement Agreement to which this Consent and Subordination is attached, and agrees to be bound by all of the obligations of, and subject to all of the remedies available against, an owner of the Building Land in the event it becomes a record owner of the Building Land (as defined in the Easement Agreement). STATE OF MINNESOTA ) ) ss. COUNTY OF ") ) The foreg ng Consent and Subordination was acknowledged before me this r ttday of L 21,992, by �Y�� ,1 G CI �v ,the t II i u to i of Lutheran Brotherhood, a Minnesota corporation, on behalf of the corporation. ------------------------- PATRICIA A. STEFFEN ^,arIkRY PUBLIC — MINNESOTA tiINGTON COUNTY ::.:.•' , .:,.ission Expires Dec. 22, I= Notary Public t, 92 GEC 18 F3 1: 57 6011065 CO.RECGRUER DEPUTY Duplicate Filing Certificate r EASEMENT AGREEMENT THIS AGREEMENT, Made as of the 4th day of August, 1992, between LUND REAL ESTATE HOLDINGS, a Minnesota general partnership (herein called "Grantor "), and the CITY OF EDINA, a municipal corporation under the laws of the State of Minnesota (herein called "Grantee "), WTTNESSETH, That Grantor, in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration to it in hand paid by Grantee, the receipt and sufficiency whereof is hereby acknowledged by Grantor, does hereby Grant, Bargain, Sell, Convey and Warrant unto Grantee, its successors and assigns, Forever, the following: 1. A permanent exclusive easement over, under and across the tract of land situated in the City of Edina, Hennepin County, Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof (hereinafter called the "Easement Area "), for the following purposes: (a) A public walkway; (b) Construction, reconstruction, installation, erection, alteration, maintenance, and repair of a walkway, a roof over such walkway, a lighting system, signs of a public nature, and a drainage system, on, under, over and along the Easement Area, all as more fully described in the construction plans and project manual for construction described on Exhibit B hereto and made a part hereof, and (c) Construction, reconstruction, installation, erection, alteration, maintenance, and repair of such structures and improvements on, under, over or along the Easement Area that Grantee deems necessary or desirable to accomplish any one or more of the purposes of this easement, and all to be of such size, shape, kind, design, and quality as Grantee from time to time shall determine. 2. A permanent non - exclusive easement to use that portion of the walls which abut or adjoin the Easement Area of any of the buildings (the "Buildings ") now or hereafter situated on all or any part of the property described on Exhibit C attached hereto and hereby made a part hereof (the 'Building Land "), and also to use a portion of the roofs of such Buildings (said abutting or adjoining walls and said roofs are hereinafter sometimes called the "Walls" and the "Roofs ") to the extent deemed necessary or desirable by Grantee for the following purposes: (a) Installing, reinstalling, maintaining, repairing and altering signs of a public nature, which signs shall be mutually approved as to design and location, and a lighting system for the Easement Area, such signs and lighting system to be of such quantity, and of such kind, design and quality as Grantee from time to time shall determine. (b) Supporting any roof (the "Easement Roof ") which may now or hereafter be constructed, reconstructed, installed or erected on or over the Easement Area, such roof to be of such size, shape, type, design and quality as Grantee from time to time shall determine, including the right to attach to or build into such Roofs or Walls such braces, brackets, supports, cables, beams and other devices or materials as may be necessary or convenient for the construction, installation, erection or maintenance of such Easement Roof. (c) Receiving any rain, water, snow, melting snow and ice draining from the Easement Roof and on to the roofs of such Buildings. (all of the purposes listed at 1 and 2 above are herein together called the "Public Purposes "). Notwithstanding the foregoing, the Grantor reserves the right to construct doors or windows on the Walls beneath the Easement Roof subject to compliance with the requirements of the building codes of the Grantee and to have IM temporary easements over, under and across the Easement Area for the purpose of any such construction. Grantor and Grantee, for themselves and their respective successors and assigns, for the foregoing considerations, further warrant, represent and agree with respect to the rights and easements above granted as follows: A. Improvements. No improvements, structures or signs of any kind shall be constructed, placed, erected or installed by Grantor, its successors or assigns, in on or over all or any part of the Easement Area, or in or on the Walls, without, in each instance, first receiving the prior written consent of Grantee, its successors or assigns. However, Grantor shall have free use of all doors and windows now or hereafter constructed in the Buildings owned by the Grantor facing the Easement Area. Grantor shall promptly repair, without cost or charge to Grantee, any and all damage to the Easement Area, Walls or any property, equipment or devices of the Grantee which is due to the construction of such improvements, structures or signs or the construction of any doors or windows on the Walls. B. Stogy. No goods, equipment, refuse, garbage, property or material of any nature, kind, or description shall be kept, stored or placed in, on or along the Easement Area, temporarily or permanently, except such as may belong to or be under the control of Grantee, and then only if used or usable for one or more of the Public Purposes. Provided, however, Grantor may place on the Easement Area, for use by the general public, chairs, tables, benches and decorative plantings, but only after first receiving, in each instance, the written approval of the Grantee, which -3- approval may restrict or prescribe the location, duration of use, quantity and kind of such items to be placed on the Easement Area by Grantor. C. Maintenance. Any improvements, structures or signs, or chairs, tables, benches or plantings, constructed, placed, erected or installed by Grantor, with the consent of Grantee, pursuant to Paragraphs A. or B. above, when and if constructed, placed, erected or installed, shall be maintained by Grantor and Grantor's successors and assigns, at Grantor's and their own cost and expense, at all times in a neat, clean and safe condition and in good state of repair. D. Right of Entry; Waiver. Grantee may enter upon the Easement Area and the Walls and Roofs of the Buildings owned by the Grantor with such personnel, equipment, and materials as the Grantee deems necessary for the purpose of doing or fulfilling any of the Public Purposes. Any such entry on the Easement Area or such Walls or Roofs of the Buildings owned by the Grantor by the Grantee shall be without liability or obligation of any kind to Grantor or any owner or occupant of the Easement Area or such Walls or Roofs for trespass or damage to the Easement Area or Buildings owned by the Grantor or for loss of business or business interruption, or any other cause, all of which liability and obligation is hereby waived by Grantor, and if any person makes any claim against the Grantee or its officers, officials, employees, agents or contractors for loss or damage to property or business with respect to the Buildings owned by the Grantor due to such entry, Grantor agrees to hold the Grantee, and its officers, officials, employees, agents and contractors harmless from and indemnified against any loss, cost, damage or -4- expense, including reasonable attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to the Grantee, upon demand of the Grantee, any such loss, cost, damage or expense, including reasonable attorneys' fees, suffered or incurred by the Grantee or its officers, officials, employees, agents or contractors, with interest at twelve percent (12 %) per annum from the date demanded until paid; provided, however, that the foregoing waiver and indemnity shall not apply to damage or loss caused by the negligent act of the Grantee, or its officers, officials, employees, agents or contractors, or caused by the violation by the Grantee, or its officers, officials, employees, agents or contractors, of any applicable law, statute or regulation. E. Drainage From Easement Roof. The Easement Roof may be designed so as to cause rain, water, snow, melting snow and ice to drain from the Easement Roof and onto the roofs of said Buildings. Grantee, its successors and assigns, shall have no liability for any loss or damages caused by snow accumulating or water draining from the Easement Roof and onto the roofs of said Buildings or by snow and ice accumulating thereon. Grantor hereby warrants, represents and agrees, that a suitable drainage system has been constructed to the Buildings owned by the Grantor, and will be hereafter constantly maintained in a good condition and state of repair, so as to cause such rain water and melting snow and ice to be removed from the Easement Roof and the roofs of said Buildings and to prevent any damage from occurring to the Easement Roof or any supports therefor, or to the public walkway on the Easement Area, by reason thereof. -5- F. Property of Grantee; Repair. Any and all signs and lighting equipment, and any and all materials or devices provided or paid for by Grantee for support of the Easement Roof or for any of the other Public Purposes, which may be placed on the Walls, Roofs or Easement Area pursuant to this Agreement, and the Easement Roof itself, shall be and remain the property of Grantee and may be removed and replaced at any time and from time to time by Grantee. With the exception of any damage caused by drainage from the Easement Roof on to roofs of Buildings owned by the Grantor and snow accumulation on such roofs, Grantee agrees to repair promptly any and all damage done to any Wall or Roof as a result of or in connection with the use thereof by Grantee for any of the Public Purposes. G. Removal of Equipment. If, on the termination of the easements hereby granted, Grantee has not removed all of its signs, lighting equipment and Easement Roof support devices, and any and all other materials or devices placed by Grantee on the Walls, Roofs or Easement Area pursuant to this Agreement, then all of such materials, equipment and devices not so removed shall become the property of Grantor and may be removed and disposed of as Grantor sees fit, without compensation to Grantee, and without any liability of Grantee for any costs incurred by Grantor in connection with such removal and disposal. H. Destruction of Buildings. The easements hereby granted shall continue notwithstanding the destruction or removal of the Buildings. If the Buildings are hereafter destroyed or removed and if there shall thereafter be constructed or placed on the Building Land a new or different building or buildings, 0 then the rights and easements granted by this Agreement shall be revived and shall extend and apply to the wall or walls of any such new or different building or buildings which abut or adjoin the Easement Area, and also shall apply to the roofs of such building or buildings. I. Notices. All notices, reports or demands required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when delivered personally to any officer of the party to which notice is being given, or two business days after deposit in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To Grantor: 1450 West Lake Street Minneapolis, innesota 55408 ZY Attention: /l T To Grantee: 4801 West 50th Street Edina, Minnesota 55424 Attention: Manager Such addresses may be changed by either party upon notice to the other party given as herein provided; provided, that no notice of a change of address shall be effective unless actually received by the addressee. J. Limited Liability. Grantor, and any successor of all or any part of the Easement Area or Building Land, shall be liable under this Agreement only for the obligations and liabilities which accrue while a record owner of all or any part of the Easement Area or the Building Land, and once Grantor, and each such successor owner, is no longer such a record owner, the liability hereunder of Grantor and each -7- such successor owner shall cease and terminate except for obligations which accrued during such record ownership. However, the foregoing provision shall not prevent exercise by the Grantee of the right to enter upon the Easement Area, Walls and Roofs pursuant to Paragraph M. hereof even if for a failure of a then prior record owner. K. Running Covenants. It is expressly intended and agreed by Grantee and Grantor for themselves, and their respective successors and assigns, that each of the agreements and covenants in this Agreement shall be construed to be, deemed, and are hereby declared to be, covenants running with the Easement Area and Building Land, and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, be binding, to the fullest extent permitted by law in equity for the benefit of, and in favor of, and be enforceable by, the Grantee, and its successors and assigns, and any successor in interest to the easements hereby granted, against Grantor, its successors and assigns, and every successor in interest to the Easement Area and Building Land, or any part of either thereof, and any interest therein, and any party in possession or occupancy of the Easement Area or Building Land or any part of either thereof. Each and every transferee by any contract, lease, conveyance or other instrument hereafter executed, covering or conveying all or any part of the Easement Area or Building Land shall conclusively be held to have agreed to, assumed, and to have acquired such interest subject to, the covenants and agreements of this Agreement regardless of whether or L not such covenants and agreements are set forth or referred to in such document or are specifically agreed to or assumed by such transferee. L. Warranties and Representations. Grantor warrants and represents that the execution and delivery of this Agreement has been duly authorized by all necessary partnership action, the terms and conditions hereof are binding on Grantor and enforceable against it in accordance with the terms hereof, and that it is well seized in fee of the Easement Area and Building Land free from all encumbrances except as noted on Exhibit C hereto, and that Grantor has good right to grant the easements and rights hereby granted to Grantee. M. Violations; Remedies. If Grantor, its successors or assigns, shall violate, or attempt to violate, any of the provisions of this Agreement, or to impede, prevent or impair the full use and enjoyment by Grantee, its successors and assigns, of the easements and rights hereby given to Grantee, then it shall be lawful for Grantee, its successors and assigns, to enter upon the Easement Area and the Walls and Roofs, to the extent deemed necessary by Grantee, its successors or assigns, to remedy or prevent such violation or such impeding, preventing or impairing, and the provisions of Paragraph D. hereof shall apply to such entry. Grantee, its successors and assigns, in addition, shall have any and all other remedies then available at law or in equity, including specific performance, mandatory injunction and damages. All of the foregoing remedies shall be usable and enforceable by the Grantee separately or concurrently as the Grantee shall determine, and the use of one remedy shall not waive or preclude the use of any one or more of the other 0 remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder, shall not preclude the Grantee from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Grantor agrees to pay to the Grantee, upon demand of Grantee, any and all costs and expenses incurred by the Grantee in enforcing this Agreement by the use of the remedies above set out or by other remedies or means available to the Grantee at law or in equity, including reasonable attorneys' fees whether suit be brought or not, and costs of collection (including reasonable attorneys' fees) of any monies due to the Grantee from Grantor, pursuant hereto, and with interest on all such costs and expenses at the rate of twelve percent (12 %) per annum from the date demanded by the Grantee until paid. N. Sprinkler System. Grantor shall have and reserves the right to use the Easement Area and Walls to construct, reconstruct, install, reinstall, and maintain, without cost or charge to Grantee, a sprinkler system for the Buildings owned by the Grantor. Such system shall be constructed, reconstructed, installed and reinstalled only pursuant to plans and specifications which have been approved in writing by Grantee prior to any such work being done. Grantor shall at all times maintain said system in good condition and state of repair, without cost or charge to Grantee. Grantor shall promptly repair, without cost or charge to Grantee, any and all damage to the Easement Area, Walls or any property, equipment, material or devices of Grantee which is due to the construction, reconstruction, installation, -10- reinstallation or maintenance of such system, or the failure to maintain such system. O. Successors and Assigns. This Agreement shall be binding on, and inure to the benefit of, the parties hereto, and their respective successors and assigns, and all future owners of the rights and easements hereby granted, and all future owners and occupiers of the Easement Area and Building Land. This Instrument is Exempt from State Deed Tax. TO HAVE AND TO HOLD THE SAME, Together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to the Grantee, its successors and Assigns, Forever. IN TESTIMONY WHEREOF, The said Grantor and Grantee have caused these presents to be duly executed as of the day and year first above written. LUND REAL ESTATE HOLDINGS By Its Managing Partner CITY OF EDINA By Its Mayor And Its Manager -11- STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this A? TA day of August, 1992, by Russell T. Lund III, the managing partner of Lund Real Estate Holdings, a Minnesota general partnership on behalf of the partnership. ROBERT N. FREDRICC,ON 7UEL'C -- tr; 'N;:1sCTA DAKOTA COUNTY My co'- ';ission exrires 9.11.97 STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN) fi" AJ_ _ Notary Public The foregoing instrp�n nt was acknowledged before me this a1A-4f day of-A gust, 1992 the Mayor and �i ne-ftt P- 2ds.4 the Manager of the CITY OF EDINA, a Minnesota municipal corporation, on behalf of said corporation. THIS INSTRUMENT DRAFTED BY: Dorsey & Whitney (JPG) 2200 First Bank Place East Minneapolis, Minnesota 55402 04�L&W-L� I ' kllt� Notary Public ,,... DARLENE J. RITT';" ,- - :R M�N NOTARY PUBLIC - Y=SCTA to HENNEPIN COUNTY My Commission EvIm OM 15. t99a -12- EXHIBIT A (Easement Area) All that part of Lots 26 and 27, Auditor's Subdivision No. 172, Hennepin County, Minnesota, according to the recorded plat thereof lying westerly of the following described line: Beginning at a point in the south line of said Lot 27, distant 60.00 feet west of the southeast corner thereof when measured along said south line; thence northerly to a point on a line drawn parallel with and 31.0 feet north of the south line of said Lot 27, which point is 59.86 feet west of the east line of said Lot 27 when measured along said parallel line; thence westerly along said parallel line a distance of 2.65 feet; thence northerly to a point in the north line of said Lot 26, distant 61.41 feet west of the northeast corner thereof when measured along said north line, and there terminating; and The north 10.22 feet of the east 55.00 feet of Lot 28, Auditor's Subdivision Number 172, Hennepin County, Minnesota, according to the recorded plat thereof; and The east 55.00 feet of the south 3.00 feet of Lot 29, said Auditor's Subdivision Number 172, Hennepin County, Minnesota. -13- EXHIBIT B (Description of Easement Roof and Public Purposes) Construction Plans and the Project Manual for Construction for the 50th and France Skylight Canopy prepared by BRW Architects, Inc. and dated July 1, 1992, as amended by Addendum No. 1 thereto dated July 10, 1992, and Addendum No. 2 thereto dated July 13, 1992, including the following: Sheet No. Title AO Cover Sheet Al Roof Plan A2 Sections / Elevations A3 Sections/ Elevations and Details -14- EXHIBIT C (Building Land) Lot 25, Lot 29 except the South three (3) feet thereof, and the East one (1) foot of the North one hundred forty -seven (147) feet of Lot 30, Auditor's Subdivision Number 172, according to the recorded plat thereof, Hennepin County, Minnesota. Subject to: 01 1. Easement in favor of the Village of Edina, filed of record in the Office of the Hennepin County Recorder as Document Nos. 2384699 and 2384700; 2. Real estate taxes and installments of special assessments due and payable in the year 1992 and thereafter. -15- OR 92 DE-C i 3 PH 1: 59 601106'7 CI RECORDER Iz P "'-- DEPUTY Duplicate Filrng �e�i�icate 4 6011065 EASEMENT AGREEMENT THIS AGREEMENT, Made as of the 4th day of August, 1992, between FRANCE AVENUE PARTNERSHIP, a Minnesota general partnership (herein called "Grantor "), and the CITY OF EDINA, a municipal corporation under the laws of the State of Minnesota (herein called "Grantee "), WTTNESSETH, That Grantor, in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration to it in hand paid by Grantee, the receipt and sufficiency whereof is hereby acknowledged by Grantor, does hereby Grant, Bargain, Sell, Convey and Warrant unto Grantee, its successors and assigns, Forever, the following: 1. A permanent exclusive easement over, under and across the tract of land situated in the City of Edina, Hennepin County, Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof (hereinafter called the "Easement Area "), for the following purposes: (a) A public walkway; (b) Construction, reconstruction, installation, erection, alteration, maintenance, and repair of a walkway, a roof over such walkway, a lighting system, signs of a public nature, and a drainage system, on, under, over and along the Easement Area, all as more fully described in the construction plans and project manual for construction described on Exhibit B hereto and made a part hereof; and (c) Construction, reconstruction, installation, erection, alteration, maintenance, and repair of such structures and improvements on, under, over or along the Easement Area that Grantee deems TRANSFER ENTERED necessary or desirable to accomplish any one or more of the DEPT. OF PROPERTY TAX & PUBUC RECORI) purposes of this easement, and all to be of such size, shape, kind, design, and quality as Grantee from time to time shall DEC 18 1992 determine. N CO N Y MINN. R ' DEPL1 2. A permanent non -exclusive easement to use that portion of the walls which abut or adjoin the Easement Area of any of the buildings (the "Buildings ") now or hereafter situated on all or any part of the property described on Exhibit C attached hereto and hereby made a part hereof (the 'Building Land "), and also to use a portion of the roofs of such Buildings (said abutting or adjoining walls and said roofs are hereinafter sometimes called the "Walls" and the 'Roofs ") to the extent deemed necessary or desirable by Grantee for the following purposes: (a) Installing, reinstalling, maintaining, repairing and altering signs of a public nature, which signs shall be mutually approved as to design and location, and a lighting system for the Easement Area, such signs and lighting system to be of such quantity, and of such kind, design and quality as Grantee from time to time shall determine. (b) Supporting any roof (the "Easement Roof ") which may now or hereafter be constructed, reconstructed, installed or erected on or over the Easement Area, such roof to be of such size, shape, type, design and quality as Grantee from time to time shall determine, including the right to attach to or build into such Roofs or Walls such braces, brackets, supports, cables, beams and other devices or materials as may be necessary or convenient for the construction, installation, erection or maintenance of such Easement Roof. (c) Receiving any rain, water, snow, melting snow and ice draining from the Easement Roof and on to the roofs of such Buildings. (all of the purposes listed at 1 and 2 above are herein together called the 'Public Purposes "). Notwithstanding the foregoing, the Grantor reserves the right to construct doors or windows on the Walls beneath the Easement Roof subject to compliance with the requirements of the building codes of the Grantee and to have -2- a temporary easements over, under and across the Easement Area for the purpose of any such construction. Grantor and Grantee, for themselves and their respective successors and assigns, for the foregoing considerations, further warrant, represent and agree with respect to the rights and easements above granted as follows: A. Improvements. No improvements, structures or signs of any kind shall be constructed, placed, erected or installed by Grantor, its successors or assigns, in on or over all or any part of the Easement Area, or in or on the Walls, without, in each instance, first receiving the prior written consent of Grantee, its successors or assigns. However, Grantor shall have free use of all doors and windows now or hereafter constructed in the Buildings owned by the Grantor facing the Easement Area. Grantor shall promptly repair, without cost or charge to Grantee, any and all damage to the Easement Area, Walls or any property, equipment or devices of the Grantee which is due to the construction of such improvements, structures or signs or the construction of any doors or windows on the Walls. B. Stogy. No goods, equipment, refuse, garbage, property or material of any nature, kind, or description shall be kept, stored or placed in, on or along the Easement Area, temporarily or permanently, except such as may belong to or be under the control of Grantee, and then only if used or usable for one or more of the Public Purposes. Provided, however, Grantor may place on the Easement Area, for use by the general public, chairs, tables, benches and decorative plantings, but only after first receiving, in each instance, the written approval of the Grantee, which -3- approval may restrict or prescribe the location, duration of use, quantity and kind of such items to be placed on the Easement Area by Grantor. C. Maintenance. Any improvements, structures or signs, or chairs, tables, benches or plantings, constructed, placed, erected or installed by Grantor, with the consent of Grantee, pursuant to Paragraphs A. or B. above, when and if constructed, placed, erected or installed, shall be maintained by Grantor and Grantor's successors and assigns, at Grantor's and their own cost and expense, at all times in a neat, clean and safe condition and in good state of repair. D. Right of Entry; Waiver. Grantee may enter upon the Easement Area and the Walls and Roofs of the Buildings owned by the Grantor with such personnel, equipment, and materials as the Grantee deems necessary for the purpose of doing or fulfilling any of the Public Purposes. Any such entry on the Easement Area or such Walls or Roofs of the Buildings owned by the Grantor by the Grantee shall be without liability or obligation of any kind to Grantor or any owner or occupant of the Easement Area or such Walls or Roofs for trespass or damage to the Easement Area or Buildings owned by the Grantor or for loss of business or business interruption, or any other cause, all of which liability and obligation is hereby waived by Grantor, and if any person makes any claim against the Grantee or its officers, officials, employees, agents or contractors for loss or damage to property or business with respect to the Buildings owned by the Grantor due to such entry, Grantor agrees to hold the Grantee, and its officers, officials, employees, agents and contractors harmless from and indemnified against any loss, cost, damage or expense, including reasonable attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to the Grantee, upon demand of the Grantee, any such loss, cost, damage or expense, including reasonable attorneys' fees, suffered or incurred by the Grantee or its officers, officials, employees, agents or contractors, with interest at twelve percent (12 %) per annum from the date demanded until paid; provided, however, that the foregoing waiver and indemnity shall not apply to damage or loss caused by the negligent act of the Grantee, or its officers, officials, employees, agents or contractors, or caused by the violation by the Grantee, or its officers, officials, employees, agents or contractors, of any applicable law, statute or regulation. E. Drainage From Easement Roof. The Easement Roof may be designed so as to cause rain, water, snow, melting snow and ice to drain from the Easement Roof and onto the roofs of said Buildings. Grantee, its successors and assigns, shall have no liability for any loss or damages caused by snow accumulating or water draining from the Easement Roof and onto the roofs of said Buildings or by snow and ice accumulating thereon. Grantor hereby warrants, represents and agrees, that a suitable drainage system has been constructed to the Buildings owned by the Grantor, and will be hereafter constantly maintained in a good condition and state of repair, so as to cause such rain water and melting snow and ice to be removed from the Easement Roof and the roofs of said Buildings and to prevent any damage from occurring to the Easement Roof or any supports therefor, or to the public walkway on the Easement Area, by reason thereof. -5- F. Property of Grantee: Repair. Any and all signs and lighting equipment, and any and all materials or devices provided or paid for by Grantee for support of the Easement Roof or for any of the other Public Purposes, which may be placed on the Walls, Roofs or Easement Area pursuant to this Agreement, and the Easement Roof itself, shall be and remain the property of Grantee and may be removed and replaced at any time and from time to time by Grantee. With the exception of any damage caused by drainage from the Easement Roof on to roofs of Buildings owned by the Grantor and snow accumulation on such roofs, Grantee agrees to repair promptly any and all damage done to any Wall or Roof as a result of or in connection with the use thereof by Grantee for any of the Public Purposes. G. Removal of Equipment. If, on the termination of the easements hereby granted, Grantee has not removed all of its signs, lighting equipment and Easement Roof support devices, and any and all other materials or devices placed by Grantee on the Walls, Roofs or Easement Area pursuant to this Agreement, then all of such materials, equipment and devices not so removed shall become the property of Grantor and may be removed and disposed of as Grantor sees fit, without compensation to Grantee, and without any liability of Grantee for any costs incurred by Grantor in connection with such removal and disposal. H. Destruction of Buildings. The easements hereby granted shall continue notwithstanding the destruction or removal of the Buildings. If the Buildings are hereafter destroyed or removed and if there shall thereafter be constructed or placed on the Building Land a new or different building or buildings, M then the rights and easements granted by this Agreement shall be revived and shall extend and apply to the wall or walls of any such new or different building or buildings which abut or adjoin the Easement Area, and also shall apply to the roofs of such building or buildings. I. Notices. All notices, reports or demands required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when delivered personally to any officer of the party to which notice is being given, or two business days after deposit in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To Grantor: 1323 Bohland Place St. Paul, Minnesota 55116 Attention: Klaus C. Freyinger With a copy to: 1100 International Centre 900 Second Avenue South Minneapolis, Minnesota 55402 Attention: John M. Palmer To Grantee: 4801 West 50th Street Edina, Minnesota 55424 Attention: Manager Such addresses may be changed by either party upon notice to the other party given as herein provided; provided, that no notice of a change of address shall be effective unless actually received by the addressee. J. Limited Liability. Grantor, and any successor of all or any part of the Easement Area or Building Land, shall be liable under this Agreement only for the -7- obligations and liabilities which accrue while a record owner of all or any part of the Easement Area or the Building Land, and once Grantor, and each such successor owner, is no longer such a record owner, the liability hereunder of Grantor and each such successor owner shall cease and terminate except for obligations which accrued during such record ownership. However, the foregoing provision shall not prevent exercise by the Grantee of the right to enter upon the Easement Area, Walls and Roofs pursuant to Paragraph M. hereof even if for a failure of a then prior record owner. K. Running Covenants. It is expressly intended and agreed by Grantee and Grantor for themselves, and their respective successors and assigns, that each of the agreements and covenants in this Agreement shall be construed to be, deemed, and are hereby declared to be, covenants running with the Easement Area and Building Land, and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, be binding, to the fullest extent permitted by law in equity for the benefit of, and in favor of, and be enforceable by, the Grantee, and its successors and assigns, and any successor in interest to the easements hereby granted, against Grantor, its successors and assigns, and every successor in interest to the Easement Area and Building Land, or any part of either thereof, and any interest therein, and any party in possession or occupancy of the Easement Area or Building Land or any part of either thereof. Each and every transferee by any contract, lease, conveyance or other instrument hereafter executed, covering or conveying all or any part of the Easement Area or Building Land shall ff:'! conclusively be held to have agreed to, assumed, and to have acquired such interest subject to, the covenants and agreements of this Agreement regardless of whether or not such covenants and agreements are set forth or referred to in such document or are specifically agreed to or assumed by such transferee. L. Warranties and Representations. Grantor warrants and represents that the execution and delivery of this Agreement has been duly authorized by all necessary partnership action, the terms and conditions hereof are binding on Grantor and enforceable against it in accordance with the terms hereof, and that it is well seized in fee of the Easement Area and Building Land free from all encumbrances except as noted on Exhibit C hereto, and that Grantor has good right to grant the easements and rights hereby granted to Grantee. M. Violations; Remedies. If Grantor, its successors or assigns, shall violate, or attempt to violate, any of the provisions of this Agreement, or to impede, prevent or impair the full use and enjoyment by Grantee, its successors and assigns, of the easements and rights hereby given to Grantee, then it shall be lawful for Grantee, its successors and assigns, to enter upon the Easement Area and the Walls and Roofs, to the extent deemed necessary by Grantee, its successors or assigns, to remedy or prevent such violation or such impeding, preventing or impairing, and the provisions of Paragraph D. hereof shall apply to such entry. Grantee, its successors and assigns, in addition, shall have any and all other remedies then available at law or in equity, including specific performance, mandatory injunction and damages. All of the foregoing remedies shall be usable and enforceable by the M Grantee separately or concurrently as the Grantee shall determine, and the use of one remedy shall not waive or preclude the use of any one or more of the other remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder, shall not preclude the Grantee from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Grantor agrees to pay to the Grantee, upon demand of Grantee, any and all costs and expenses incurred by the Grantee in enforcing this Agreement by the use of the remedies above set out or by other remedies or means available to the Grantee at law or in equity, including reasonable attorneys' fees whether suit be brought or not, and costs of collection (including reasonable attorneys' fees) of any monies due to the Grantee from Grantor, pursuant hereto, and with interest on all such costs and expenses at the rate of twelve percent (12 %) per annum from the date demanded by the Grantee until paid. N. Sprinkler System. Grantor shall have and reserves the right to use the Easement Area and Walls to construct, reconstruct, install, reinstall, and maintain, without cost or charge to Grantee, a sprinkler system for the Buildings owned by the Grantor. Such system shall be constructed, reconstructed, installed and reinstalled only pursuant to plans and specifications which have been approved in writing by Grantee prior to any such work being done. Grantor shall at all times maintain said system in good condition and state of repair, without cost or charge to Grantee. Grantor shall promptly repair, without cost or charge to Grantee, any and all damage to the Easement Area, Walls or any property, equipment, material or -10- devices of Grantee which is due to the construction, reconstruction, installation, reinstallation or maintenance of such system, or the failure to maintain such system. O. Successors and Assi riis. This Agreement shall be binding on, and inure to the benefit of, the parties hereto, and their respective successors and assigns, and all future owners of the rights and easements hereby granted, and all future owners and occupiers of the Easement Area and Building Land. This Instrument is Exempt from State Deed Tax. TO HAVE AND TO HOLD THE SAME, Together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to the Grantee, its successors and Assigns, Forever. IlV TESTIMONY WHEREOF, The said Grantor and Grantee have caused these presents to be duly executed as of the day and year first above written. FRANCE AVENUE PARTNERSHIP By `--N . Its eneral Partner CITY OF EDINA By C Its Mayor And Its Manager -11- STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) e foregoing instrument was acknowledged before me this 3 4 day of , 1992, by John M. Palmer, a general partner of France Avenue Partnership, a Minnesota general partnership, on behalf of the partnership. Notary Pia STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) ' - DARLENE J. RITTV.. s..L =R NOTARY PUBLIC - MINNESOTA HENNEPIN COUNTY My Commission Expires Oct. 15_1998 The for oin in�trume t s acknowledged before me this �3, ..� _ day 0 ,1 992, b s � the Mayor and the Manager of the CITY OF EDINA, a Minnesota municipal corporation, on behalf of said corporation. THIS INSTRUMENT DRAFTED BY: Dorsey & Whitney (JPG) 2200 First Bank Place East Minneapolis, Minnesota 55402 -12- Notary Public If DARLENE J. RITTMILLLR NOTARY PUBLIC - MINNESOTA HENNEPIN COUNTY My CoRrnisabe Expires OCL 15,19M EXHIBIT A (Easement Area) All that part of Lots 26 and 27, Auditor's Subdivision No. 172, Hennepin County, Minnesota, according to the recorded plat thereof lying westerly of the following described line: Beginning at a point in the south line of said Lot 27, distant 60.00 feet west of the southeast corner thereof when measured along said south line; thence northerly to a point on a line drawn parallel with and 31.0 feet north of the south line of said Lot 27, which point is 59.86 feet west of the east line of said Lot 27 when measured along said parallel line; thence westerly along said parallel line a distance of 2.65 feet; thence northerly to a point in the north line of said Lot 26, distant 61.41 feet west of the northeast corner thereof when measured along said north line, and there terminating. -13- EXHIBIT B (Description of Easement Roof and Public Purposes) Construction Plans and the Project Manual for Construction for the 50th and France Skylight Canopy prepared by BRW Architects, Inc. and dated July 1, 1992, as amended by Addendum No. 1 thereto dated July 10, 1992, and Addendum No. 2 thereto dated July 13, 1992, including the following: Sheet No. Title AO Cover Sheet Al Roof Plan A2 Sections/ Elevations A3 Sections/ Elevations and Details -14- r EXHIBIT C (Building Land) Lots 26 and 27, Auditor's Subdivision Number 172, Hennepin County, Minnesota, according to the recorded plat thereof. SubJect to: 1. Real estate taxes not yet due and payable for the year 1992 and thereafter. 2. Mortgage and Security Agreement and Fixture Financing Statement dated October 4, 1990 from France Avenue Partnership to Lutheran Brotherhood, filed October 5, 1990 as Document No. 5708960. 3. Assignment of Leases and Rents dated October 4, 1990 from France Avenue Partnership to Lutheran Brotherhood filed October 5, 1990 as Document No. 5708961. -15- e CONSENT AND SUBORDINATION The undersigned, being the holder of a mortgage (the "Interest") on the Building Land as defined in the Easement Agreement to which this Consent and Subordination is attached, the document creating said Interest being dated October 4, 1990, and recorded as Document No. 5708960, in the office of the County Recorder, Hennepin County, Minnesota, does hereby agree and consent to all of the terms and conditions of the Easement Agreement to which this Consent and Subordination is attached, and agrees to be bound by all of the obligations of, and subject to all of the remedies available against, an owner of the Building Land in the event it becomes a record owner of the Building Land (as defined in the Easement Agreement). STATE OF MINNESOTA) COUNTY OF The foreg( *ng Consent and Subordination was acknowledged before -VI me this ay of zd;!,,J992, by the of Lutheran Brotherhood, a Minnesota corporation, on behalf of the corporation. 000000000000"0010000 -------------------- PATRICIA A. STEFFEN t!OTkRY PUBLIC — MINNESOTA HINGTON COUNTY -'--o-,ission Expires Dec, 22. 1902 Notary Public 117 -C I I Co /ULC., " 6011065 51 $16. CIO L UL RE-C FEE COPY FEE R L L, c2 GEC 13 'll 1: 57 11065 RECORDER .) ----DEPUTY RE-C FEE COPY FEE SKYLIGHT AGREEMENT THIS AGREEMENT, Made as of the 4th day of August, 1992, by and among Edina Properties, Inc., a Minnesota corporation ( "Edina Properties "), France Avenue Partnership, a Minnesota partnership ( "France Avenue Partnership "), Lund Real Estate Holdings, a Minnesota general partnership ( "LREH ") and the City of Edina, Minnesota, a municipal corporation under the laws of the State of Minnesota (the "City "); WHEREAS, Edina Properties, France Avenue Partnership and LREH (Edina Properties, France Avenue Partnership and LREH are hereinafter together referred to as the "Private Parties ") have each entered into separate Easement Agreements, dated as of the date hereof with the City (the "Easement Agreements "), by which such parties granted the following to the City: 1. A permanent exclusive easement over, under and across the tract of land situated in the City of Edina, Hennepin County, Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof (hereinafter called the "Easement Area "), for the following purposes: (a) A public walkway; (b) Construction, reconstruction, installation, erection, alteration, maintenance, and repair of a walkway, a roof over such walkway, a lighting system, signs of a public nature, and a drainage system, on, under, over and along the Easement Area, all as more fully described in the construction plans and project manual for construction described on Exhibit B hereto and made a part hereof; and (c) Construction, reconstruction, installation, erection, alteration, maintenance, and repair of such structures and improvements on, under, over or along the Easement Area that the City deems t" necessary or desirable to accomplish any one or more of the purposes of this easement, and all to be of such size, shape, kind, design, and quality as Grantee from time to time shall determine. 2. A permanent non - exclusive easement to use that portion of the walls which abut or adjoin the Easement Area of any of the buildings (the "Buildings ") now or hereafter situated on all or any part of the property described on Exhibit C attached hereto and hereby made a part hereof (the "Building Land "), and also to use the roofs of such Buildings (said abutting or adjoining walls and said roofs are hereinafter sometimes called the "Walls" and the "Roofs ") to the extent deemed necessary or desirable by Grantee for the following purposes: (a) Installing, reinstalling, maintaining, repairing and altering signs of a public nature, and a lighting system for the Easement Area, such signs and lighting system to be of such quantity, and of such kind, design and quality as Grantee from time to time shall determine. (b) Supporting any roof (the "Easement Roof ") which may now or hereafter be constructed, reconstructed, installed or erected on or over the Easement Area, such roof to be of such size, shape, type, design and quality as Grantee from time to time shall determine, including the right to attach to or build into such Roofs or Walls such braces, brackets, supports, cables, beams and other devices or materials as may be necessary or convenient for the construction, installation, erection or maintenance of such Easement Roof. (c) Receiving any rain, water, snow, melting snow and ice draining from the Easement Roof and on to the roofs of such Buildings. (all of the purposes listed at 1 and 2 above are herein together called the "Public Purposes "). -2- WHEREAS, the Private Parties and the City wish to set out their respective responsibilities with respect to the Public Purposes and the payment of the costs thereof; NOW, THEREFORE, the Private Parties and the City in consideration of the covenants and agreements hereinafter contained hereby agree as follows: A. Removal of Existing Roofs Alterations to Buildings; Construction of Public Purposes. (1) The Private Parties shall remove and dispose of, without cost or charge to City, the existing roof over the Easement Area and all braces, brackets, supports, cables, beams and other devices supporting such roof and all other existing equipment, material or property which is necessary or desirable to be removed, as reasonably determined by the City, to allow construction and installation of the new Easement Roof. One -half of the actual, out -of- pocket cost incurred by Private Party or Parties performing such removal and disposal in connection with such removal and disposal, shall be applied as a credit against the special assessment levied against the Assessment Property (as hereinafter defined) of such Private Party pursuant to subparagraph E.(1) hereof, and such one -half shall be paid by the City or the Housing and Redevelopment Authority of Edina, Minnesota from available tax increment funds. Such credit shall be applied as a prepayment of the assessment when such assessment is levied. The Private Party or Parties -3- performing such removal and disposal shall deliver to the City such documents as the City shall reasonably request to evidence such actual, out -of- pocket costs. (2) The Private Party which owns the Buildings located on the east side of the north -south portion of the Easement Area shall alter such Buildings to accommodate that east gable condition for the large skylight currently shown on the drawings of the Easement Roof described on Exhibit B, and shall construct the stairway turret described on the drawings of the Easement Roof described on Exhibit B. (3) Each of the Private Parties shall alter or modify the Buildings owned by such Private Party as recommended in the report dated March 12, 1992 of Dahlmeier Engineering to accommodate snow accumulation and drainage on the roofs of the Buildings which are adjacent to the Easement Roof. (4) The Private Parties shall complete the work under subparagraphs A.(1), (2) and (3) above no later than August 20, 1992. (5) The City agrees that upon compliance by the Private Parties with their obligations under subparagraphs A.(1), (2) and (3) above, the City shall design, construct and install on the Easement Area, Buildings and Walls, a public walkway, the Easement Roof, a lighting system and signs of a public nature. The cost of such design, construction and installation shall be paid, in part, from available tax increments and shall be assessed, in part, all as -4- provided in Paragraph E. hereof. However, each of the Private Parties acknowledges, understands and agrees that the City shall not be obligated to construct, install, do or complete all or any of such Public Purposes unless it receives bids for such work, pursuant to applicable statutory public bidding procedures, acceptable to the City. B. Drainage From Easement Roof. Each of the Private Parties hereby warrants, represents and agrees that suitable provision has been made to the Buildings owned by such Private Party (or will have been made upon completion of the alterations or modifications to the Buildings owned by such Private Party required under subparagraph A.(3) hereof) for snow accumulation and drainage on the roofs of said buildings which are adjacent to the Easement Roof in accordance with the requirements of the building codes of the City. C. Notices. All notices, reports or demands required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when delivered personally to any officer of the party to which notice is being given, or two business days after deposit in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To Edina Properties, Inc.: 1450 West Lake Street Minneapolis Minnesota 55408 Attention: H 55e It T kU.41 Yr -5- To France Avenue Partnership: 1323 Bohland Place St. Paul, Minnesota 55116 Attention: Klaus C. Freyinger With a copy to: 1100 International Centre 900 Second Avenue South Minneapolis, Minnesota 55402 Attention: John M. Palmer To Lund Real Estate Holdings: 1450 West Lake Street Minneapolis 55408 Attention: (I T L U(c IV: To Grantee: 4801 West 50th Street Edina, Minnesota 55424 Attention: Manager Such addresses may be changed by either party upon notice to the other party given as herein provided; provided, that no notice of a change of address shall be effective unless actually received by the addressee. D. Warranties and Representations. Each of the Private Parties warrants and represents that the execution and delivery of this Agreement has been duly authorized by all necessary corporate or partnership action, the terms and conditions hereof are binding on such Private Party and enforceable against it in accordance with the terms hereof. E. Assessments. Each of the Private Parties understands and agrees that the Easement Roof to be constructed pursuant to paragraph A. hereof, has increased considerably in cost since the initial cost estimate by the City, that such increase is due to the desire of the Private Parties, to have a more extensive and more expensive Easement Roof than that proposed by the City. Each of the Private Parties further understands and agrees that the City initially proposed to assess 20% of the cost of constructing and installing the Easement Roof, and of completing the other Public Purposes to be constructed, installed and completed pursuant to Paragraph A. hereof, against all commercial property in the 50th and France commercial area (the "Commercial Property "), with the remaining 80% to be paid by use of tax increment funds. However, due to the added cost, that initial proposal is no longer appropriate. Therefore, the Private Parties and the City agree as follows: (1) The City shall levy a special assessment against the Building Land equal to 50% of the total cost (including capitalized interest and the costs charged by the City Engineer for its services) of designing, constructing and completing the Easement Roof and lighting system (but not the cost of designing, constructing and completing the other Public Purposes), pursuant to paragraph A. hereof, all as reasonably determined by the City. (2) In addition, the City shall levy a special assessment against all Commercial Property (including the Building Land) equal to 20% of 50% of such cost of the Easement Roof and 20% of the full cost of completing the other Public Purposes pursuant to Paragraph A. hereof. (3) The balance of such cost (80% of 50 %) of the Easement Roof and lighting system and the balance (80 %) of the full amount of completing the other Public Purposes shall be paid from available tax increment funds. -7- (4) The assessment at (1) and (2) above shall be levied at such time, at such an interest rate, and over such period as the City shall determine. Also, the assessment at (1) above shall be apportioned among the Building Land in such manner as the owners of the Building Land shall agree in writing, or, if such owners cannot so agree by the time such assessment is to be levied by City, the assessment at (1) above shall be levied in such uniform manner as the City shall determine. Also, the assessment at (2) above shall be apportioned among the Commercial Property in such uniform manner as the City shall determine. (5) If, for any reason, all or any part of the increased assessment resulting to the Commercial Property from the increased cost of the Easement Roof is set aside as to all or any part of the Commercial Property by a court of competent jurisdiction, or if the City determines on the advice of its attorney that the increased assessment, or any part thereof, is or may be invalid for any reason as to all or any part of the Commercial Property, then the Private Parties agree that the City may make a new assessment or a reassessment against the Building Land, using the same interest rate, time period and apportionment formulas as used pursuant to (4) above, of all of any part of the cost of such Easement Roof which would have been assessed against the Commercial Property but for being so set aside or being so determined as being invalid. 10 (6) If the assessments referred to at (1), (2) and (5) above are levied by the City and are apportioned by the City as above provided, the Private Parties shall not object to such assessments in any way or as to any particular, including, without limitation, the amount of the assessments, the apportionment of the assessments among benefitted properties, the hearing process (including the giving of, or failure to give, or errors in giving of, any notice) and shall, and hereby does, waive any and all objections to any and all such assessments and the process to determine the same, including, without limitation, waiver of any and all notices and hearings required by applicable statutes in connection with the making of public improvements or the levying of assessments. F. Counterparts. This Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original, but all of which shall constitute, collectively, one and the same agreement. IN TESTIMONY WHEREOF, The said Private Parties and the City have caused these presents to be duly executed as of the day and year first above written. EDINA PROPERTIES, INC. By 7- Its 10 FRANCE AVENUE PARTNERSHIP By Its General Partner LUND REAL ESTATE HOLDINGS By 9z�2�� :7:1 Its Managing Partner CITY OF EDINA It- By Its Mayor -10- FRANCE AVENUE PARTNERSHIP By Its G ner Partner LUND REAL ESTATE HOLDINGS By Its Managing Partner CITY OF EDINA c By Its Mayor And 5 pr: 5 Its Manager -lo- EXHIBIT A (Easement Area) All that part of Lots 26 and ' according to Subdivision No. 172, he recorded plat thereof Hennepin County, Minnesota, g lying westerly of the following described line: Beginning at a point in the south line of said Lot 27, distant 60.00 feet west of the southeast corner thereof when measured along said south line; thence northerly to a point on a line drawn parallel with and 31.0 feet north of the south line of said Lot 27, which point is 59.86 feet west of the east line of said Lot 27 when measured along said parallel line; thence westerly along said parallel line a distance of 2.65 ft t; thence et northerly to a point in the north line of said Lot 26, west of the northeast corner thereof when measured along said north line, and there terminating; and The north 10.22 feet of the east 55.00 feet of Lot 28, Auditor's Subdivision Number 172, Hennepin County, Minnesota, according to the recorded plat thereof; and The east 55.00 feet of the south 3.00 feet of Lot 29, said Auditor's Subdivision Number 172, Hennepin County, Minnesota. -11- EXHIBIT B (Description of Easement Roof and Public Purposes) Construction Plans and the Project Manual for Construction for the 50th and France Skylight Canopy prepared by BRW Architects, Inc. and dated July 1, 1992, as amended by Addendum No. 1 thereto dated July 10, 1992, and Addendum No. 2 thereto dated July 13, 1992, including the following: Sheet No. Title AO Cover Sheet Al Roof Plan A2 Sections/ Elevations A3 Sections/ Elevations and Details 5IVZ EXHIBIT C (Building Land) Lot 25, Lot 29 except the South three (3) feet thereof, and the East one (1) foot of the North one hundred forty -seven (147) feet of Lot 30, Auditor's Subdivision Number 172, according to the recorded plat thereof, Hennepin County, Minnesota; Lot 26 and Lot 27, Auditor's Subdivision Number 172, Hennepin County, Minnesota, according to the recorded plat thereof; and Lot 28 and the South 3 feet of Lot 29, Auditor's Subdivision Number 172, Hennepin County, Minnesota, according to the recorded plat thereof. -13- 60110 0 EASEMENT AGREEMENT THIS AGREEMENT, Made as of the 4th day of August, 1992, between LUND REAL ESTATE HOLDINGS, a Minnesota general partnership (herein called "Grantor "), and the CITY OF EDINA, a municipal corporation under the laws of the State of Minnesota (herein called "Grantee "), WITNESSETH, That Grantor, in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration to it in hand paid by Grantee, the receipt and sufficiency whereof is hereby acknowledged by Grantor, does hereby Grant, Bargain, Sell, Convey and Warrant unto Grantee, its successors and assigns, Forever, the following: 1. A permanent exclusive easement over, under and across the tract of land situated in the City of Edina, Hennepin County, Minnesota, legally described on Exhibit A attached hereto and hereby made a part hereof (hereinafter called the "Easement Area "), for the following purposes: (a) A public walkway; (b) Construction, reconstruction, installation, erection, alteration, maintenance, and repair of a walkway, a roof over such walkway, a lighting system, signs of a public nature, and a drainage system, on, under, over and along the Easement Area, all as more fully described in the construction plans and project manual for construction described on Exhibit B hereto and made a part hereof; and (c) TRANSFER ENTERID DEPT. OF PROPERTY TAX & PUBLIC RECORDS DEC 18 1992 H � a �^ u Mrry Construction, reconstruction, installation, erection, alteration, maintenance, and repair of such structures and improvements on, under, over or along the Easement Area that Grantee deems necessary or desirable to accomplish any one or more of the purposes of this easement, and all to be of such size, shape, kind, design, and quality as Grantee from time to time shall determine. t" 2. A permanent non - exclusive easement to use that portion of the walls which abut or adjoin the Easement Area of any of the buildings (the "Buildings ") now or hereafter situated on all or any part of the property described on Exhibit C attached hereto and hereby made a part hereof (the 'Building Land "), and also to use a portion of the roofs of such Buildings (said abutting or adjoining walls and said roofs are hereinafter sometimes called the "Walls" and the "Roofs ") to the extent deemed necessary or desirable by Grantee for the following purposes: (a) Installing, reinstalling, maintaining, repairing and altering signs of a public nature, which signs shall be mutually approved as to design and location, and a lighting system for the Easement Area, such signs and lighting system to be of such quantity, and of such kind, design and quality as Grantee from time to time shall determine. (b) Supporting any roof (the "Easement Roof ") which may now or hereafter be constructed, reconstructed, installed or erected on or over the Easement Area, such roof to be of such size, shape, type, design and quality as Grantee from time to time shall determine, including the right to attach to or build into such Roofs or Walls such braces, brackets, supports, cables, beams and other devices or materials as may be necessary or convenient for the construction, installation, erection or maintenance of such Easement Roof. (c) Receiving any rain, water, snow, melting snow and ice draining from the Easement Roof and on to the roofs of such Buildings. (all of the purposes listed at 1 and 2 above are herein together called the "Public Purposes "). Notwithstanding the foregoing, the Grantor reserves the right to construct doors or windows on the Walls beneath the Easement Roof subject to compliance with the requirements of the building codes of the Grantee and to have -2- temporary easements over, under and across the Easement Area for the purpose of any such construction. Grantor and Grantee, for themselves and their respective successors and assigns, for the foregoing considerations, further warrant, represent and agree with respect to the rights and easements above granted as follows: A. Im2rovements. No improvements, structures or signs of any kind shall be constructed, placed, erected or installed by Grantor, its successors or assigns, in on or over all or any part of the Easement Area, or in or on the Walls, without, in each instance, first receiving the prior written consent of Grantee, its successors or assigns. However, Grantor shall have free use of all doors and windows now or hereafter constructed in the Buildings owned by the Grantor facing the Easement Area. Grantor shall promptly repair, without cost or charge to Grantee, any and all damage to the Easement Area, Walls or any property, equipment or devices of the Grantee which is due to the construction of such improvements, structures or signs or the construction of any doors or windows on the Walls. B. Stogy. No goods, equipment, refuse, garbage, property or material of any nature, kind, or description shall be kept, stored or placed in, on or along the Easement Area, temporarily or permanently, except such as may belong to or be under the control of Grantee, and then only if used or usable for one or more of the Public Purposes. Provided, however, Grantor may place on the Easement Area, for use by the general public, chairs, tables, benches and decorative plantings, but only after first receiving, in each instance, the written approval of the Grantee, which -3- approval may restrict or prescribe the location, duration of use, quantity and kind of such items to be placed on the Easement Area by Grantor. C. Maintenance. Any improvements, structures or signs, or chairs, tables, benches or plantings, constructed, placed, erected or installed by Grantor, with the consent of Grantee, pursuant to Paragraphs A. or B. above, when and if constructed, placed, erected or installed, shall be maintained by Grantor and Grantor's successors and assigns, at Grantor's and their own cost and expense, at all times in a neat, clean and safe condition and in good state of repair. D. Right of Entry; Waiver. Grantee may enter upon the Easement Area and the Walls and Roofs of the Buildings owned by the Grantor with such personnel, equipment, and materials as the Grantee deems necessary for the purpose of doing or fulfilling any of the Public Purposes. Any such entry on the Easement Area or such Walls or Roofs of the Buildings owned by the Grantor by the Grantee shall be without liability or obligation of any kind to Grantor or any owner or occupant of the Easement Area or such Walls or Roofs for trespass or damage to the Easement Area or Buildings owned by the Grantor or for loss of business or business interruption, or any other cause, all of which liability and obligation is hereby waived by Grantor, and if any person makes any claim against the Grantee or its officers, officials, employees, agents or contractors for loss or damage to property or business with respect to the Buildings owned by the Grantor due to such entry, Grantor agrees to hold the Grantee, and its officers, officials, employees, agents and contractors harmless from and indemnified against any loss, cost, damage or -4- expense, including reasonable attorneys' fees whether suit be brought or not, arising out of such claim, and to pay to the Grantee, upon demand of the Grantee, any such loss, cost, damage or expense, including reasonable attorneys' fees, suffered or incurred by the Grantee or its officers, officials, employees, agents or contractors, with interest at twelve percent (12 %) per annum from the date demanded until paid; provided, however, that the foregoing waiver and indemnity shall not apply to damage or loss caused by the negligent act of the Grantee, or its officers, officials, employees, agents or contractors, or caused by the violation by the Grantee, or its officers, officials, employees, agents or contractors, of any applicable law, statute or regulation. E. Drainage From Easement Roof. The Easement Roof may be designed so as to cause rain, water, snow, melting snow and ice to drain from the Easement Roof and onto the roofs of said Buildings. Grantee, its successors and assigns, shall have no liability for any loss or damages caused by snow accumulating or water draining from the Easement Roof and onto the roofs of said Buildings or by snow and ice accumulating thereon. Grantor hereby warrants, represents and agrees, that a suitable drainage system has been constructed to the Buildings owned by the Grantor, and will be hereafter constantly maintained in a good condition and state of repair, so as to cause such rain water and melting snow and ice to be removed from the Easement Roof and the roofs of said Buildings and to prevent any damage from occurring to the Easement Roof or any supports therefor, or to the public walkway on the Easement Area, by reason thereof. -5- F. Property of Grantee; Repair. Any and all signs and lighting equipment, and any and all materials or devices provided or paid for by Grantee for support of the Easement Roof or for any of the other Public Purposes, which may be placed on the Walls, Roofs or Easement Area pursuant to this Agreement, and the Easement Roof itself, shall be and remain the property of Grantee and may be removed and replaced at any time and from time to time by Grantee. With the exception of any damage caused by drainage from the Easement Roof on to roofs of Buildings owned by the Grantor and snow accumulation on such roofs, Grantee agrees to repair promptly any and all damage done to any Wall or Roof as a result of or in connection with the use thereof by Grantee for any of the Public Purposes. G. Removal of Equipment. If, on the termination of the easements hereby granted, Grantee has not removed all of its signs, lighting equipment and Easement Roof support devices, and any and all other materials or devices placed by Grantee on the Walls, Roofs or Easement Area pursuant to this Agreement, then all of such materials, equipment and devices not so removed shall become the property of Grantor and may be removed and disposed of as Grantor sees fit, without compensation to Grantee, and without any liability of Grantee for any costs incurred by Grantor in connection with such removal and disposal. H. Destruction of Buildings. The easements hereby granted shall continue notwithstanding the destruction or removal of the Buildings. If the Buildings are hereafter destroyed or removed and if there shall thereafter be constructed or placed on the Building Land a new or different building or buildings, then the rights and easements granted by this Agreement shall be revived and shall extend and apply to the wall or walls of any such new or different building or buildings which abut or adjoin the Easement Area, and also shall apply to the roofs of such building or buildings. I. Notices. All notices, reports or demands required or permitted to be given under this Agreement shall be in writing and shall be deemed to be given when delivered personally to any officer of the party to which notice is being given, or two business days after deposit in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the parties at the following addresses: To Grantor: 1450 West Lake Street Minneapolis Minnesota 55408 Attention: 9145-2o. l l T• I.0 n j Tr . To Grantee: 4801 West 50th Street Edina, Minnesota 55424 Attention: Manager Such addresses may be changed by either party upon notice to the other party given as herein provided; provided, that no notice of a change of address shall be effective unless actually received by the addressee. J. Limited Liability. Grantor, and any successor of all or any part of the Easement Area or Building Land, shall be liable under this Agreement only for the obligations and liabilities which accrue while a record owner of all or any part of the Easement Area or the Building Land, and once Grantor, and each such successor owner, is no longer such a record owner, the liability hereunder of Grantor and each Iva such successor owner shall cease and terminate except for obligations which accrued during such record ownership. However, the foregoing provision shall not prevent exercise by the Grantee of the right to enter upon the Easement Area, Walls and Roofs pursuant to Paragraph M. hereof even if for a failure of a then prior record owner. K. Running Covenants. It is expressly intended and agreed by Grantee and Grantor for themselves, and their respective successors and assigns, that each of the agreements and covenants in this Agreement shall be construed to be, deemed, and are hereby declared to be, covenants running with the Easement Area and Building Land, and that they shall, in any event, and without regard to technical classification or designation, legal or otherwise, be binding, to the fullest extent permitted by law in equity for the benefit of, and in favor of, and be enforceable by, the Grantee, and its successors and assigns, and any successor in interest to the easements hereby granted, against Grantor, its successors and assigns, and every successor in interest to the Easement Area and Building Land, or any part of either thereof, and any interest therein, and any party in possession or occupancy of the Easement Area or Building Land or any part of either thereof. Each and every transferee by any contract, lease, conveyance or other instrument hereafter executed, covering or conveying all or any part of the Easement Area or Building Land shall conclusively be held to have agreed to, assumed, and to have acquired such interest subject to, the covenants and agreements of this Agreement regardless of whether or ffa not such covenants and agreements are set forth or referred to in such document or are specifically agreed to or assumed by such transferee. L. Warranties and Representations. Grantor warrants and represents that the execution and delivery of this Agreement has been duly authorized by all necessary partnership action, the terms and conditions hereof are binding on Grantor and enforceable against it in accordance with the terms hereof, and that it is well seized in fee of the Easement Area and Building Land free from all encumbrances except as noted on Exhibit C hereto, and that Grantor has good right to grant the easements and rights hereby granted to Grantee. M. Violations; Remedies. If Grantor, its successors or assigns, shall violate, or attempt to violate, any of the provisions of this Agreement, or to impede, prevent or impair the full use and enjoyment by Grantee, its successors and assigns, of the easements and rights hereby given to Grantee, then it shall be lawful for Grantee, its successors and assigns, to enter upon the Easement Area and the Walls and Roofs, to the extent deemed necessary by Grantee, its successors or assigns, to remedy or prevent such violation or such impeding, preventing or impairing, and the provisions of Paragraph D. hereof shall apply to such entry. Grantee, its successors and assigns, in addition, shall have any and all other remedies then available at law or in equity, including specific performance, mandatory injunction and damages. All of the foregoing remedies shall be usable and enforceable by the Grantee separately or concurrently as the Grantee shall determine, and the use of one remedy shall not waive or preclude the use of any one or more of the other 0 remedies. Also, the failure to exercise, or delay in exercising, any remedy hereunder, shall not preclude the Grantee from thereafter exercising any of its remedies for the same or a subsequent failure or refusal. Grantor agrees to pay to the Grantee, upon demand of Grantee, any and all costs and expenses incurred by the Grantee in enforcing this Agreement by the use of the remedies above set out or by other remedies or means available to the Grantee at law or in equity, including reasonable attorneys' fees whether suit be brought or not, and costs of collection (including reasonable attorneys' fees) of any monies due to the Grantee from Grantor, pursuant hereto, and with interest on all such costs and expenses at the rate of twelve percent (12 %) per annum from the date demanded by the Grantee until paid. N. Sprinkler System. Grantor shall have and reserves the right to use the Easement Area and Walls to construct, reconstruct, install, reinstall, and maintain, without cost or charge to Grantee, a sprinkler system for the Buildings owned by the Grantor. Such system shall be constructed, reconstructed, installed and reinstalled only pursuant to plans and specifications which have been approved in writing by Grantee prior to any such work being done. Grantor shall at all times maintain said system in good condition and state of repair, without cost or charge to Grantee. Grantor shall promptly repair, without cost or charge to Grantee, any and all damage to the Easement Area, Walls or any property, equipment, material or devices of Grantee which is due to the construction, reconstruction, installation, -10- reinstallation or maintenance of such system, or the failure to maintain such system. O. Successors and Assigns. This Agreement shall be binding on, and inure to the benefit of, the parties hereto, and their respective successors and assigns, and all future owners of the rights and easements hereby granted, and all future owners and occupiers of the Easement Area and Building Land. This Instrument is Exempt from State Deed Tax. TO HAVE AND TO HOLD THE SAME, Together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining, to the Grantee, its successors and Assigns, Forever. IN TESTIMONY WHEREOF, The said Grantor and Grantee have caused these presents to be duly executed as of the day and year first above written. LUND REAL ESTATE HOLDINGS By Its MZhaging Partner CITY OF EDINA ,f By 'a S Its Mayor And , P-J'J'�j Its Manager -11- STATE OF MINNESOTA) ) SS. COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this day of August, 1992, by Russell T. Lund III, the managing partner of Lund Real Estate Holdings, a Minnesota general partnership on behalf of the partnership. ROBERT N. FREDRIC KSON W)fAKV PUEL1C -r11N i�j )TA DAKOTA COUNTY My commis, ion expires 9 -11.97 STATE OF MINNESOTA ) ) SS. COUNTY OF HENNEPIN) Notary Public �i- The foregoing instrument was acknowledged before me this -3 2 day of 992, by �d�`ic% �', �%�`� -vas the Mayor and _T 6. os /�-�� , the Manager of the CITY OF EDINA, a Minnesota municipal corporation, on behalf of said corporation. THIS INSTRUMENT DRAFTED BY: Dorsey & Whitney (JPG) 2200 First Bank Place East Minneapolis, Minnesota 55402 -12- Notary Public,,.', DAELENE J- {3lm!"LL =R HENNEPIN COUNTY tdy Commission Expires pot 15, t 998 EXHIBIT A (Easement Area) All that part of Lots 26 and 27, Auditor's Subdivision No. 172, Hennepin County, Minnesota, according to the recorded plat thereof lying westerly of the following described line: Beginning at a point in the south line of said Lot 27, distant 60.00 feet west of the southeast corner thereof when measured along said south line; thence northerly to a point on a line drawn parallel with and 31.0 feet north of the south line of said Lot 27, which point is 59.86 feet west of the east line of said Lot 27 when measured along said parallel line; thence westerly along said parallel line a distance of 2.65 feet; thence northerly to a point in the north line of said Lot 26, distant 61.41 feet west of the northeast corner thereof when measured along said north line, and there terminating; and The north 10.22 feet of the east 55.00 feet of Lot 28, Auditor's Subdivision Number 172, Hennepin County, Minnesota, according to the recorded plat thereof; and The east 55.00 feet of the south 3.00 feet of Lot 29, said Auditor's Subdivision Number 172, Hennepin County, Minnesota. -13- ' . I. (Description of Easement Roof and Public Purposes) Construction Plans and the Project Manual for Construction for the 50th and France Skylight Canopy prepared by BRW Architects, Inc. and dated July 1, 1992, as amended by Addendum No. 1 thereto dated July 10, 1992, and Addendum No. 2 thereto dated July 13, 1992, including the following: Sheet No. Title AO Cover Sheet Al Roof Plan A2 Sections/ Elevations A3 Sections/ Elevations and Details -14- a 1 r EXHIBIT C (Building Land) Lot 25, Lot 29 except the South three (3) feet thereof, and the East one (1) foot of the North one hundred forty -seven (147) feet of Lot 30, Auditor's Subdivision Number 172, according to the recorded plat thereof, Hennepin County, Minnesota. Subiect to: 1. Easement in favor of the Village of Edina, filed of record in the Office of the Hennepin County Recorder as Document Nos. 2384699 and 2384700; 2. Real estate taxes and installments of special assessments due and payable in the year 1992 and thereafter. -15- 6011067 -7 Ll -r7 Wc $16. or-I RTC Lam_ F� A - L COPY FEE 4�/ 3 �,f !7R 92 GEC 18 M M 1: 58 11067 C J. RECORDER IDEPUTY Lam_ F� A - L COPY FEE 4�/ 3 �,f