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LAW OFFICES NEAL, GERBER & EISENBERG LLP TWO NORTH LA SALLE STREET CHICAGO, ILLINOIS 60602 -3801 (312) 269 -8000 www.ngelaw.com JONATHAN C. ROMICK (312) 269 -5396 January 27, 2005 VIA FEDERAL EXPRESS City of Edina 4801 West 50th Street Edina, MN 55424 Attention: City Manager FAx: (312) 429 -3572 JROMICK @NGELAW.COM Re: Easement Agreement dated June 14, 2001 and recorded as Document No. 3424125 To Whom it May Concern: Reference is made to that certain Easement Agreement dated June 14, 2001, between Concordia Properties, LLC a Delaware limited liability( "Concordia "), Mervyn's, a California corporation and the City of Edina, a Minnesota municipal corporation (the "Agreement "). Pursuant to Section 10 of the Agreement, please find enclosed herein a fully executed copy of the Assignment and Assumption of Easement Agreement dated January 25, 2005, between Concordia and Concordia Properties III, LLC, a Delaware limited liability company and the Assignment and Assumption of Easement Agreement dated January 25, 2005, between Concordia and Concordia Properties II, LLC a Delaware limited liability company. Please let me know if you need anything else at this time. Sincerely, , Jonathan C. Romick Enclosures cc: Richard Taylor (w /o enclosures) Thomas Henry, Esq. (w /o enclosures) NGEDOCS: 017790.0507: 1 124402.1 Above Space For Recorders Use Only ASSIGNMENT AND ASSUMPTION OF EASEMENT AGREEMENT THIS ASSIGNMENT AND ASSUMPTION OF EASEMENT AGREEMENT (this "Assignment ") is made and entered into as of this 'V5 day of January, 2005, by and between CONCORDIA PROPERTIES, LLC, a Delaware limited liability company (the "Assignor "), and CONCORDIA PROPERTIES II, LLC, a Delaware limited liability company (the "Assignee "). Recitals A. Simultaneously herewith, Assignor has transferred to Assignee a portion of the real estate commonly known as Southdale Mall, Edina, Minnesota, which portion is legally described on Exhibit A attached hereto and made a part hereof (such portion the "Property "). B. Assignor desires to assign to Assignee all of Assignor's right, title and interest in, to and under the easement agreement set forth on Exhibit B attached hereto and made a part hereof (the "Easement Agreement "), and Assignee desires to accept said assignment and assume certain obligations of Assignor under the Easement Agreement upon the terms, covenants and conditions set forth in this Assignment. NOW, THEREFORE, in consideration of the recitals set forth above and the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee covenant and agree as follows: 1. Assignor hereby assigns, conveys, transfers and sets over unto Assignee all of Assignor's right, title and interest in, to and under the Easement Agreement, together with all rights and privileges thereunder, and subject to the covenants and conditions therein mentioned, including, without limitation, any warranties or guaranties with respect to any work performed pursuant to the Easement Agreement, to have and to. hold the same unto Assignee, its successors and assigns. NGEDOCS: 1120231.1 IN WITNESS WHEREOF, this Assignment has been executed by Assignor and Assignee as of the 2<"�N day of January, 2005. ASSIGNOR: CONCORDIA PROPERTIES, LLC, a Delaware limited liability company By: Name: Gary M. mers Title: Vice President, Treasurer and Secretary ASSIGNEE: CONCORDIA PROPERTIES II, LLC, a Delaware limited liability company By: �, �- Name: Gary M. Sumers Title: Vice President, Treasurer and Secretary_ NGEDOCS: 1120231.1 STATE OF NEW YORK ) ) SS. COUNTY OF NEW YORK ) I, Jl' l�l/} D , a notary public in and for said County, in the State aforesaid, D6 HEREBY CERTIFY that Gary M. Sumers, personally known to me to be the Vice President, Treasurer and Secretary of Concordia Properties, LLC, a Delaware limited liability company, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the said instrument, on behalf of said limited liability company, as Vice President, Treasurer and Secretary of said limited liability company, as his free and voluntary act, and as the free and voluntary act of said limited liability company, for the uses and purposes therein set forth. GIVEN under my hand and seal this My commission expires: RYLVIA M. NORFORD Notary Public, State of New York No OIN04884880 Qualified in New York County Commission Expires Fabruary 2. 200 NGEDOCS: 1120231.1 0. CIAO u" day of , 2005. NOTARY PUBLIC STATE OF NEW YORK ) ) SS. COUNTY OF NEW YORK I,� 7> , a notary public in and for said County, in the State aforesaid, M HEREBY CERTIFY that Gary M. Sumers, personally known to me to be the Vice President, Treasurer and Secretary of Concordia Properties II, LLC, a Delaware limited liability company, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the said instrument, on behalf of said limited liability company, as Vice President, Treasurer and Secretary of said limited liability company, as his free and voluntary act, and as the free and voluntary act of said limited liability company, for the uses and purposes therein set forth. GIVEN under my hand and seal this bX day of )2005. NOTARY PUBLIC My commission expires: 4jt i (, U 7 THIS INSTRUMENT WAS PREPARED BY: Audrey E. Selin, Esq. Neal, Gerber & Eisenberg LLP Two North LaSalle Street, Suite 2200 Chicago, Illinois 60602 (312) 269 -5250 AFTER RECORDING MAIL TO: Audrey E. Selin, Esq. Neal, Gerber & Eisenberg LLP Two North LaSalle Street, Suite 2200 Chicago, Illinois 60602 (312) 269 -5250 NGEDOCS: 1120231.1 SYLVIA M. NORFORD Notary Public, State of New York", No.OIN04884880 Qualified in New York County Commission Expires February 2, 20 -x'77 Above Space For Recorders Use Only ASSIGNMENT AND ASSUMPTION OF EASEMENT AGREEMENT THIS ASSIGNMENT AND ASSUMPTION OF EASEMENT AGREEMENT (this "Assignment ") is made and entered into as of this QV' day of January, 2005, by and between CONCORDIA PROPERTIES, LLC, a Delaware limited liability company (the "Assignor "), and CONCORDIA PROPERTIES III, LLC, a Delaware limited liability company (the "Assignee "). Recitals: A. Simultaneously herewith, Assignor has transferred to Assignee that certain real estate commonly known as Southdale Mall, Edina, Minnesota, which is legally described on Exhibit A attached hereto and made a part hereof (the "Property "). B. Assignor desires to assign to Assignee all of Assignor's right, title and interest in, to and under the easement agreement set forth on Exhibit B attached hereto and made a part hereof (the "Easement Agreement "), and Assignee desires to accept said assignment and assume certain obligations of Assignor under the Easement Agreement upon the terms, covenants and conditions set forth in this Assignment. NOW, THEREFORE, in consideration of the recitals set forth above and the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee covenant and agree as follows: 1. Assignor hereby assigns, conveys, transfers and sets over unto Assignee all of Assignor's right, title and interest in, to and under the Easement Agreement, together with all rights and privileges thereunder, and subject to the covenants and conditions therein mentioned, including, without limitation, any warranties or guaranties with respect to any work performed pursuant to the Easement Agreement, to have and to hold the same unto Assignee, its successors and assigns. NGEDOCS: 1121964.1 IN WITNESS WHEREOF, this Assignment has been executed by Assignor and Assignee as of the a-V' day of January, 2005. ASSIGNOR: CONCORDIA PROPERTIES, LLC, a Delaware limited liability company By: /�� Name: Gary M. Sumers Title: Vice President, Treasurer and Secretary ASSIGNEE: CONCORDIA PROPERTIES III, LLC, a Delaware limited liability company By: Name: Gary M. Sumers Title: Vice President, Treasurer and Secretary NGEDOCS: 1121964.1 STATE OF NEW YORK ) ) SS. COUNTY OF NEW YORK ) I, �i &IIg ao t e' a, a notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that Gary M. Sumers, personally known to me to be the Vice President, Treasurer and Secretary of Concordia Properties, LLC, a Delaware limited liability company, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the said instrument, on behalf of said limited liability company, as Vice President, Treasurer and Secretary of said limited liability company, as his free and voluntary act, and as the free and voluntary act of said limited liability company, for the uses and purposes therein set forth. GIVEN under my hand and seal this --2 O day of January, 2005. J-Z NOTARY PUBLIC My commission expires: �Z I�o--7 SYLVIA M. NORFORD Notary Public, State of New York No. 01N048848, Qualified in New York County i,ommission Expires Feb -u;'v 2. 20 -'q NGEDOCS: 1121964.1 STATE OF NEW YORK ) ) SS. COUNTY OF NEW YORK I, (vl / wog fl a notary public in and for said County, in the State aforesaid, DO HEREBY CERTIFY that Gary M. Sumers, personally known to me to be the Vice President, Treasurer and Secretary of Concordia Properties III, LLC, a Delaware limited liability company, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the said instrument, on behalf of said limited liability company, as Vice President, Treasurer and Secretary of said limited liability company, as his free and voluntary act, and as the free and voluntary act of said limited liability company, for the uses and purposes therein set forth. GIVEN under my hand and seal this My commission expires: '�4j2 THIS INSTRUMENT WAS PREPARED BY: Audrey E. Selin, Esq. Neal, Gerber & Eisenberg LLP Two North LaSalle Street, Suite 2200 Chicago, Illinois 60602 (312) 269 -5250 AFTER RECORDING MAIL TO: Audrey E. Selin, Esq. Neal, Gerber & Eisenberg LLP Two North LaSalle Street, Suite 2200 Chicago, Illinois 60602 (312) 269 -5250 NGEDOCS: 1121964.1 • 0 day of January, 2005. NOTARY PUBLIC SYLVIA M. NORFORD Notary Public, State of New York No OIN04884880 Qualified in New York County commission Expires February 2. 20]Q 7 01/28/2005 14:45 FAX 312 269 1718 NEAL GERBER ti 4�US F.iSFMIIV'r A6RPrEMEIVi TM ,4GR>3Yl, made and etaaed itim thisLday of June. 2001("}rffecdve Wei by a� bemt:oa Concordia Properpes, f f.C. a belaaata limited IiabiRty etxnpauy C �� �i "1. Ma' WIL A California corporation Cumno'e j, and the CRY of Edlea. a M ivicsota municipal corporation jdm "City'). Pd o� WrMESSETH: P- 6 tai WIiOiA' % Concordia is the owner o[ certain Property locoed in the City of Edina. Rm>teplo County, vc4 maoraau, regally desmud oh g'Y� oa2chod, barb (the "Oooeerdia Parcel'x -e PS aaS WHISIZA5. MaVo's is the owner of teruia prmperly htcaltd in the Coy Of Fdim- Heaoepim County, ,,p.4o� h ianesota, legally described on E.zhibit B attached henx0 (she "M�ya's Fareel'�: and r1� 1103 FAS, the Coy dosiln to obtain certain easmiteats aver mat -,'Gm the Comcot wamd find the Mavyds pucel (said pacts colleedvdy heteinzfter rabarod m as'Sombdale") for use by pedrsirians and man vansiv busses (dre "Busses') to be owned at operated by or for the City or dic Housing card Rodeveloprnoa Authority ofEdia, bfionosota, a bodypolitic ad roiporare tauter the laws of this Site of M massom (the "IAA ")', and NAW. TmREFO&E. Concordia, Mvvyds apt the City. for bee t] Lv MOM and othc good nod valmble eomsldem4an to each in hoed paid. the tetaipt and suffidmey of which is bomby admowledged by each of the pardes harm, do lumaby agree as follows: 1. GmntoFPm Coocoght hereby grants mid tvarratte in the City as to the Ceeeorda peed, and Mwvyn's hereby grants and wmtams to the City As to the Mervyit's Pastel. the Sobvtiv8 eammenw. 1 v (a) A lcoa- Fitchtsive F.asatierrt for Mm Transit Blass and Pedosniams (the —cummc rl d Easetnan. a depicted on r1hibit C accident hereto, ova and across a strip of land 40.00 leer io width, the U aemarths of said mazagn -"t being described as follows; 2 W - That part of Tw H. k4mcd Lend Stuvey No. 629 ad that part of Tract B, Registered land dc Survey No. 1641. film of *t Regimm of ivies In and for Hennepin County, Mioomm, desttlbed as follows: ,j Commeamn� at the Soadumi corner of said Tract ii them Sorah gS degms 52 mimuas 5a seem& Wes. ip < asanMW hearing, along the Smith line of said T=t i1. dim= of 10.00 foss, a the m wl point of begimning of the (t catedine of said tasemem to be desalbetl: ft= North OD degrees 07 rtdnums 06 arm West. a distance of r fz 49.00 fpm and there hffmina ft. ..1 tR k is undotsmod omd aWead iba the abmdamiWd levamice F.asarrA% will extend fkom Weal a 45-4 am Shoos, a public semat oo die South end of dw easammC to AN e9 WFW drive alsw oil SOulhdale, and nut such eoneecdon Sao said poblia seat to a drive viola on Soafyutale is to be mAivm W mt 41 dates. Therefbm if tiro 9 QI drive auks m 5tuuhdale ere evm•teaGgaed or telorwd � that the Fo47flee l:nseraent door not extetrd m and give x� aciam to the Hussars and pedestrians. for do JUN 40,00 foss width of the F.ntesnea besemaat Atsrm stirJt public stroa �O r to a drive aisle than Concordia. Metvv, v's and rho City agree to amend &a Ag read t by usima, mcordable amendm11n6 to grant a mesa cork Melee tit (ft 'Naw Psnvma:a Eaaammm) of *a hind Wanted by this puageaph i(a) &o r) over mid ogress such portion of the Comwilill Prod as Is mootzsaiy to eogtraat soil public soar. at the grate poita r 9 of cotupicsion on wat d9" Start and of the .wm width As described above in trim paragraph I(s). to s drive Aisle oa ti (0 H the Comotdia Peel, and die description of the New Eouaane Easemem is such amoodraem. trace rewRted, shall u► LQf be the Mo.,- Eusarauit as bereia refercorrA • G (b) A aoneaalusivc rosamen4 as dapi* en, h h D MUCIad IMAM- Ibr me by the DUUM for 0) passage through and around Soudiduie. and from and to the public samm adjoining Soadidair, ova and ae:osa 4 those porpons of the Cuncmdta psraet and tme Mer.ryn s Pacel which Pow a heemfuer are improved with drive alsit s dgsigmed for use by passenger vabicim, or with tutiamm from or alts to the public satin adjoining N M Q0I2 � 31 01/28/2005 14:46 FAX 312 269 1718 NEAL GERBER 1 01 Southda6 czdv ings "Imddm. batting docirs and delivery lanes, and 01 bsdiull and ucwgdbhg passengers a Passenger Arm (as decided pug menc to paragraph 2 beteol), (c) A doe.exeludve =%an = kr use by Vzom a7 of the Busses over and aett79i those p WAS of the Coneaft Parcel and the Mcrvyds Parcel which now or hereafter are improved wish adewalba. (d) A phupexual Ba Ctom for SaailerY Sewer Purposes (the "5ewor gasameat'), ss depleted on EZ anaahad hereto, over ad ersas the folbwieg dear abed property. Cgmmeeeing at the Sowheeat Corner of Tract D. Rq ftwW Land Survey No. 1641. said chum also being a carter cam= with Tract B, Registered Land Survey .,1641.54 strobe OSI M 01Tidhs�nL Rhin r the lcnapia Cowuy, lhThOttesort *a= Moab 89 deres Soush ilea of s idTc=B. a du7 cans of 9119 fea; duaxa Nosh 21 degrees 19 minims 54 se_osdsWO , It distance of 14145 feet, W the neoW past of beginning of said emwevu to to described: thence North 21 dgpw 19 minutes 54 seconds West, s diaumce of 26.00 key ehCUCC SOLO 54 &41M 07 minutes 00 seconds West a dim= of 4137 feat: thence South 89 de13aes 57 rairhuens S3 aeeonds feet. a ego, ca of 42.89 kec more or lhm, m the point of b 2 fPwldnEClZixhrte lbw, k (e mrdaxx d and agreed Ilmt the Susses will drive through and around SovdWale, and will load and stead passengers at varlo&s I Mdoes OR the Coaaadla Parcel only ( the "Passsngo' ArcLej to be determined and dmngc& from elms m tree, by the City to respond m pz,eaager pavetns and demands. Coneotdls and Mavyn's shall have no ob6gadou or duty under tits Agteemad to h:oaem um oWnWo ce Ids dly anysueh Pupegaf Amax, it befog the khteat of We City mtanly to use whatever Wlptias ate Ovailabla at any such Passenger A&eas- if a Passenger Arcs is dGersaimd by Concordia or Mauna's, in either of their remomble opWoa to be loomed so as m mr mWOMy lOwfuc with pedestrian or motor vehicle passage bun add out of 5ouddnk and retail esmblishmems of Smdlsftle, the City, within a reasonable time after aodum is even to the City by Coocord'u or Mervyn's shall relorare such Passengrs Area. No Pusehrgor An- vrlll be bmW on the MwM's Pared unless Mha vyO's COMICI ha to the same in writing nod no s'dW for Busses Of paste+ Wp of the same will ever be oota;rtucard on die Mervyn o Pemd. In no event A9 96 Ap amal be coosattad as g =dug coy dghtto park vehieies Of W= of the Susses Olt any portion of Soudtdale. Ter the Event that Concordia or Ddervyn's maim a good faith demnoin von that a pereae Otter than ■ cum mar or other lice t of Concordia or Mervyn's hu paused a vehicle in the Soudndals pmtldna mi. ramp ororher eotamon &tea, trey Conrordu or Me ryn's sbadl have the tight to remove such vehicle 6om its rerpatve parcel and to obtain reimburscr rnr for the expense of such hemovdl frost the owner of the vehicle. 3. TraMCRu1e2_3ierd. (a) The Hanes sban be subject to an rules and rrgWAdona ambllsh4 from time to dme, in smehdalafar the Memel and resrdarion ofonffic zed mores vehicles in Southdale: bur Concotdia and Mavyn's " not Impose say rules and negultams on the Sasses which ere mow onaoua or restrictive tun dross' ffipOind gameaally on trafBe sod meow vaWdes In Soathdate. (b) The City and MRA may poa on 5outFAvIc and the improvemante tureen, at tbdr esperu' such Signs Ltauch loh:sam as they or either of them deems necessary or desirable w advise passengers of the touts std time haabrduh:a of the Bus=, and the location of Passenger Areas No such sign may be pasted without the ON WMvd of Caecor&6 as to a sign to be posted on the Concordia Parcel. and of Nlmv"'s. as to a alpph ro be posted vO theMervya's Yareel. which approval shall tax be VWc=aably withheld. codidoned ter delayed. 4, Construction ad Mainmeeyaa �f Rnasirrs Enernene. The City and ERA shaU have the right to enter by themelves, or their employees.• agents, cotasctms end SabCOntra MM upetn the pypsteace Fosannent, and upon such penims of d,e Concordia Pared acgohtng the Enwanee Fsamnert an may be masorwAy necessary. with such equipment, amreid and workers as is reasonably mcol ry, for the propose of cemavetintt. insatllirre, ecee nctIng. mkw lliq, aln ring, mpmbg and mslntairong a driveway ood sidewyks on nhe Entrance Fsoruant. InkW COnsuucton of she ):w== Easement shall be done by the Cky. apd or M& at its or *air sole coat and 1ih 003 01/28/2005 14:46 FAX 912 269 1718 NEAL GERBER espouses sad at such tiv m as the City or HRA determincL The driveway and sidewalk shall be bunt P nom to such plant and spedFeaticas sa tae City or MA shall dot ermine, but such spcci6cmions shall be egtol to or bow tba the speeiiicaDOSa p"" which other driveways and aiidlwalb have beat brill on Souddale. Onca the Entraox Easearsat het brain raa+seiMI by the Clry or M& it shell be maintained ad MWOOk hr lift maw and debris rramval, by Concordia whbout cost or amp to thin City or ERA. is the Same MMW and ro the same caem m other drivevrgys and sidev+alla on 5otshdale are ambntained Provided, however, dwit he City or BRA may, At their sole runt sod expense, at may rime, by thetowhICS. or tb* aaployem. Writs. comacwrs or sabeastreano: enemy upon the FAME= Easenhrnt 10 do MY or all synch nwiwerop- Iaeduding scow and debrii mmavaL All work dens by or for rbe CkY or MA or Concordia on the lanauwe Saaement shall be done, in such atsnnet n Co not ytaressotuNy iatafem with the named flow of weltkala or pedestrian traffic at Southds c to rho use of Cbe flrhatitiro liaramneat by the Btissm. tf ma drive aisles on the Concordia Pared are ever rvdomtod or raligrmd as to made is a New Entrance Ea&amcat. Al 11011113 provided, than Coardtdha wail estmd or ramie ua the driveway and sldewitAts on dye Ww Bolmm Easernrat $o as Io Cannes the pubiic strut !torn Chc saran point of aonrirrdaa and of the same width as Clio Ferruaeo Easement Co the drive motes 00 the Coemrdla Parcel, without amt or Mane to the City or HM or Mcrga'a and PhsawnC to 21pecb6callm at 104 equal m those used by Cho C ty or HRA for construction of the driveway and aldeweUa dien co the 8aarance Ea comR. 5. a way wino ae,l ailmnaas of Qs.ihme'SLSewea>;i?etaear_ 7W City shall have the tight W conaavct. operates use, malnmis and hElbat»irarx a esnitary sewer aasgncas io, on sad above rha real p mp" described in paragraph L(d). 'lice City shall have %be right of btgras to and egress from the Sanitary Sewer Easamctit over m jeecor lands of hhe t7oacord'w Parcel, and lying between pubirc rinds and the Saaimry Server 1 asamenr. such rigid to be e=ited In a mow dowradaed by the City to accrosion 1110 least pracdable damage and incoev dame to Concordia are BEUVII's. 6. 3A3lRiAIM bdamnifrca the City gelfLirwnes its opera kips Puy" r to the requirements of Nannism Stuns. The My hereby h4ranir m. def ends sad h" both Conncordis and A4"'s hermku from and against any and all claim demands sad damages caused by the City's use of any casemmx grantad Wain or by the C4'E breach of this AgtezoCeaC provided, however, that this (nderlgd( Ado& Will Wt aPpi7 m my Ck demand or damage caund by the 13egli®enee or sift sahcondom of the pmrty seckkS iodwUlMestion hereunder. 7. MSImgm=• Concordia or l dews &hall repair and mainsvn. indi disig snow and debris mton al. drive &ales, sldcwaft ftftancas and emits as shall be arrz®a'y to ICM them in good repair and condition. Coneor&a or ldevya's hasy erect mq wady borrieadeA aaoas pardons of die ,.•.maic sea& tot (a) repair. r°plax or rtmlatain the eamrni= crass. (b) prevent the aogulahfo13 of Pmscdptive rights by anyone, or (c) repair; top'= and msipoia udlldrs a0rvieirs SoutluWc, provided drat tae City is providai With a ressmu bra alta'aldve mute (or rho Busses when inch barricade we used. 8. I.s<m n of Rights Nothing co dained in this Agrcetaeat shall be coursed to ptevcm Concordia as to dye Coeeerdia Pared, and lliervyn'a, to m die MaNyD's Pined. without tbo emant or Approval of the C1CY or HRA (eampt fm aeh approval as maybe required of the City pursuant to dwth applbeAhle ordinances. coda at rcoAriaas), fto mlo arft radt.-d6OM& espallilali 0nd rumodng those Parrs of the Concordia Petal std Adervyn's Panel rAw or btyatftar Improved *kh drive slides, mangy exits, Patoenger Arms or Adeorallcr- nor shall any such rtel(>CydM t>adesiprSt n. cgwAIN or =oval be deemed an emandmant or sddeadum in tides Agatetam it being scltstpwledged and understood ddaa die eaurrients as forth in paragraph 1 hetad (oXeePL however, as to the SUWM tl Easement) are not )awided to impose any obligation oa Cotrcadia or )Yfravyn'S to provide any d*a aides, ratrarces, wits, Passat►ger An= or sldewalb many given Iecvliorl, DOC SAY ro make available for use by the CIV and ®6A (or die Busses and padmCrisas. the ume and anJoyraaa of tahch drive Wilm stances, adim. Pasmagw Arent sad zWewaAa as they 640 Crum rims to doe on Snub Wc' Provided. bowlver. that the fareg0hng pro"don"Put negate the provision& of puagrapb 1(a) or of paragraph 6 relative 10 rite Pantuhce mummery. VAthoiht limihioa the (brgeleg. Concordia and hd rvy'n'a reason the right ffi any time and 4oan time to times in eeelwk and rwoala from using lhm sweamau grsmnd basin snit Perm who is engaged la asvlc. Public. clurimble or political activities. indhatlag but limited to (A) esbibiling any plarnrd, sign or widArt (b) dbMbQ*m IM 004 01/28/2005 14:46 FAX 312 269 1718 NEAL GERBER say dwWor, handbilL placmd or booklet; (e) sdieitm8 meatbetsbO or teotr9bodc" for private, civic. pablir. chaeimbie or political Purposes, nod (d) pauseg, piclretiag or denwaroZ** The ass of dte asamenta 11antcd batda will not menially hdwf= with the area by Coneoofi& bleaTyn's, their respective heoaam or isvioorS or dtdf tpi m' kvitms or with the use by do holder of any odor "SM9 t eighti ova my porrion of sandtdale of such eights g with . The City will ore. and Will Croat lcs OMPloYam Ww end iavi= w um the easetoerub 0=24 hmeuadaia ctimpiiiata with all applicablk htws and WFladoos and the City will not do or parnit m be does mydtiag which would or mlgk result in Coneeedla or Mervyn's becoming liable for cal, lecrassed casts; damage., lines or peadda under am arch laws or regulations 10. Assiume nL This Agawam may be assigned by Conca dlla or Mcrvyds w any tiaw aeI*= the prior me," of the City. Thin Agmangeat may be ussiggad by the City without the prior cons he of Connor& ad IVleevy:i•s only in the emit of wFalling auolber Pam or eodty to operate the susm provide4 however, that The City will at all times remain primarily,apdmstlria m Cooeordii and Mervyi'a for performance of ibo City. obligations hareardar. Any other asaignosm by die City will require dm pda wriavm eonsant of Concordia and McB+eya'& which caussit rball not be mmcasombly aemuld, eoadldoeed or delayed. The assipee under vey assiemn u permined by this Seedati Ahdi am= to writing the pb►igatloos of da assigning Putt hereunder 6om and &for the eF=dve dace of the aaAp=nt. and do eon aasWiC parties shell eeealve a Silly —001 011 copy of such amigmnew and assumpdoo apeeaiaerK wiehln 5 days AW its effwdve dale. rf ao such agtectaw a eemmad and delivored as cequirod bavby, Un LvAphmera shall nor he valid and da aselgputg party Will mmaie obligated .eerier the was of ibis Agrvmftt No assignment permitted hereby will release eidna Pessp hereto fmm ire respective obtipfines and 1'ia lies under this Apexmeo6 11, 111nermy Effect: Duradon. TWs Ag memeta shall tan with the Iced wel 9 II bind and beoefit dte potties be= and their mq=dve suohsswn and saiget 1f ere aqy dm Concordia, Mpvyo's or their tespeedva fatcoraWO or assigns toil or otherwim convey their respective parcels. the selliq of eonveymg patty will be released from All pwsanel obligodoea under thin Agrem mu tatoePI for those obligations arising before the date that the respective paeeol was sold of tomeyeeL IL &WjW Any codce regmtwi or pas aheee to be given by any parry banof upon or to any other pug ham shell be to writing and shell be deemed &Ivan iq =code= with this Age If h 1s makd, by United Sutra recWtored or cs+dMW snail, rowro noedprrequcAnd. p sap Prepaid, or if %4 can paid with a nadooally mcvVA3%d overnight cow W. Peopedy sdderraod as IbUovw. It a Caumnliac Concordia Pmpe3dm LLC. 5methdak Camay 10 SawhdokCemer Ethic. MN 55435 Alta; Christopher L C4mmiits If to Mervyn re TWISIM's No Taw Ceuporadon Awe Piopage Admiubtadoo low NIcoUei Mill Adinnevour, UN W02 Ifm the Ciu or HIM, City ofRON ago 1 west 50 Street F,dins, MN 55624 Arm: Ciitybienzaar Philter "I be efYargva our bualnear day afkr melting or deposidne in the above manna. Any party oraY change itr address for die service of mtice by gaving v.daaa notice cf such ehango m dto other pasty in the manner 4 [a 005 01/28/2005 14:46 FAX 312 269 1718 NEAL GERBER 006 above specified. U. No (Nft or Dedieadtto. Nothing hullo COaulned dWj he doomed w be a gift or dedication of the eastmou haft created, or any portion dwrw4 to ow gmrd peb0c. even though some of the easemeata hsMbY etmlal may be used for or by tba 81=1111 public 14. AjmndnwsL This Agri may be ameaded by a written jV=SM e%cc, by de then owners of dto Coterot %Faroe! and the Mavyc's P=01, cad by the city. All ameadmeots to In effWdue. as= dWY signed. shah be rt 01" or Fled in Ratnepin County, bGmtesota, in titer same office in ud►ich this Agreement is tvardad or filed to give ammucdve notice dMIML 1S. F, The paid a how utay rafatm the agtoanents cootained basin duough all hsgal action available at law or in equity. in auy pmcmdmg for the etllbts mw of eipm hereunder or for; the bm d of ibis Ag wffm%% due p<evma1°g pen in nay sudh pig win be entitled to P=ver from the other pum or parties its Rmmnable attoroeye Am is any such MCOL L8. SLEW=. No waiver of any defwit by any pang hum will be inpMW ire® the White by the ma- ddaultiug posty to talae any anion in respect Of such default. No waiver of any ddm& in the performance of aay provision of this Ag umum wiR be deaned a rawer of any suboaluent default in the Pwftmmu Of the same provision or any other ptovisttm. No coo"ltt to Or Lpp pal of any mt or request by an party baeto vial be deemed to .naive or reoda muw=sary rho crosere to or approval of any subuyuent Autgar act or request. 17. Counoe This Agrmnont may be gs,"cd in any mmdw of cmumpis" arch when coUcla ed toodw mull be deama can document . IN WrMS WHEREOF. the parties hereto bave ewsed this Wmz=ear in ha duly a=atod as of the date first writtea above err ifs: ay: Jrsr By: Its. 8r Its. U. Its.. By: By- Its., 5 Conoongs Pan&ng. LLC Managing M=bcr AtV Pantashipr LP. managmgmember Argo Maoagemcm Company. LP. Cxnerat Panic D'Comm Capad Panes, LP. Gent al Parmer o,c mtar Capital buoucraled General Pauc /,W, *,.-- �.� coaaerdls Fuedlag b LLC lbomems M-alm 01/28/2005 14:46 FAX 312 269 1718 NEAL GERBER 8y Arlo Pwmastrip IL L.R. lro MamgH+87Kcmber By: Argo II M=vmo u Company. Ly. im General Psrmv - By, VCntmor CIPila! aFUMML L.P. lu: Geem'al Farmer By: o•Com w Capiw It Ioc- PuRosd BE cromw PUUW rAa,4--- By i� STATP OP M ) as COT]M'Y OF �Vlull og partner ocWtul a Parma% L.P. as puud p mr of Alp II MaarSomem Compsay. LP.. as poc al Farmer of Argo Parttip li, LP. ber Q LM as matmiAa6 member of Coeeordla Progenies LLC, and by the eaertea' c+plral ]ae«porsmod, on behalf of the carpmadoo as scu rrl Former of r CE�Pmv o graeral P °r°1er of Rego managcmenr Company, LP„ w giro-9 Former of kp Parmasldp, L.P. is mansgins mother of Caeeordia Funding, LLC, as martagirg mmbe[ of Concoaft Prpperdm LLC. a Notary Pub y Md" P&ft P4" Yom ~ IraddIInmSAMkry cow* p� 6 16 007 I i� I I I I' 01/28/2005 14;46 FAX 312 268 1718 NEAL GERBER [ERVYN's A. Neteaa Ptesldoat SLATE OF bMWFSOTA ) COUN7 i►OFF ENNEPI T On dtis 2odt day of J®e, 2oo I, befao me, a Notary Poblia wWb and hr said Couney, petsoaelly So= A. Nelson, to me pwwolly kwm74 who, deft Mu by me duly swan, did say that he b a Vito Ptaadrnt of Mavya's a Ca6fomia mtpumdm ad a dtdy atathotlmd akmwy of said wtp mdoa4 and that to finegpbtg iowaomvtas i Fwd by h® as wwr of said etttpoeafma by amhaeny at its Ba W of Daectom and Seat A. Nebaa ae]mmAsW Wd htomeor to be the See ad and read of sand ea> VarAoo. a A LINDA B. JOHNSON NoMTPU tuwaultaeorn Nasty Publie WM at sms • iww�twir� i+ Q 008 01/28/2005 14:47 FAX 312 289 1718 NEAL GERBER STATE MMNESUTA ) COUNTY OF 9ROMM ) The �� ckaowwgcd before me tbi day of lime, 2001, by e Mayor and City MsnaSa, respeceTvely, of the City ofEdioa, a Mmaesota municipal corporation, = behalf oftbe wrporatioa. "d�w— W � '-'' c Notary Public jM DARLM Fl. wauw VIEW This hwm=ent DrsW 9y: Morrison FWWW 5mid 3el an 8c Blustin, P.A. 1125 Couary Goad 101 Suite 102 Muumro=dg MN 55345 (952)575-0050 lih 009 01/28/2005 14:47 FAX 312 269 1718 NEAL GERBER £l0i18n' A C:ONC0R=FAWM X03 Parcel It lbai pets dTmctG. BegiatwA L=d qwv&y No. 43:, h"°6U%wly of iiw foliotvlpg dwcmlyd H= i3g pe®t®t1g as paint an the Mstaly One c(Tract C, Registered Land Smyey Ne.1641, drat 211JO fa Notch a(0e SMLbma - ' 'Of acid Ttact Q draw bddwdy aioag raid buftt line aad 8s Smtm y atmsion a dtAaaoe of 285M feat; tbeaco somberly io the ivartheaa caterer aPTma D. aaid Rto toted La+d Survey W 1641 and dote letmi- o9. Pond aY;acra G mtd M PogWmmdLaad Smwry Na W. ?%cd 3: 7hd B, 8egistaalLand Serrty Na L641, Farrel4,T act D. Regiaaotl Lind Swvay No. 164L 9 11 010 �i 01/28/2005 14:47 FAX 312 269 1718 i NEAL GERBER SXFIIHIT H MvY'N'S PAWEL rmUP Tr=A. PmgL and Laud Swwy No, 1642, Filar of dR Re Lww efTkIcs, County of lic=VtN. �u Io � or1 I l O CR • r v EXCLUSIVE EASEMENT FOR USE BY MASS TRANSIT BUSSES AND PEDESTRIANS '71 . r • N N r y r %c' Q z lygp r RING ROAD ❑ TFac NO. 629 ' amv! lOR u 'ro ALS W.00r• s Y/55 tltlWlR 61R�! AN9 S11W19 • !d'!0!'JM'N" Mo !•'6° ,1 i Wt YF OI/4f !. Rlf� 107, li•1 a•YROPERIY WE .EL S UNE OF W= K ELL NC. !2{J 'a• 0 -&Ev & It WES 69TH STREET • IOIO 1.%.N. mWan 4.0f wa Wma f � NOTErk mrrwaffomm• cJL WARM a m.rm.a an 1) ALL 0 1 SHMI ME ASSUMEO DOW 2 R.IS. OENniES Rk7HYtERm U�yO SiJRVEY. OENOlES P01[i1 OE 8E1OORNG. i •.+r ..+er w w...� �m . c r COUSM a �mcuMM, INC, .e ► •r . wr r... sr aaa�r ®►some No ma role % ~.d m ... a� more ] P -0 8. 4 • OEWES PROPE RlY CO WER. tt�..a lad uw� yea+ u. �.n d id Nba.01k 4:F a�.m.ra war. ' �7AlAI IYQY. a /1]/•1 �ysiTn mod •• ' O CA 01/28/2005 14:47 FAX 312 268 1718 NEAL GERBER fj015 1 SOUTH DALE �ENTER EXH161T 'A' SKETCH OF NON— EXCLUSNE EASEMENT FOR MASS TRANSff BUSSES FOR PASSAGE THROUGH do AROUND SOUMDALE ON THE DWNG RING ROAD � a e� now �r .. �,er� eyes ,,,o uq -a !IVJ e . xe�,r..maur mom fi� 0 6 RLS M. INI, 1i.s Ail y W W PW' . ad �IIeaR` Mpoel. pL G a �Q R ■ MN. A so 4Nse+ d ISO M M I b..r .dw m oY i v e _ w_ w�e�es A, Aacnn ►ice_ nre. SKETCH OF PROPOSED EASEMENT FOR SANITARY SEWER PURPOSES . F � Ia In r - -�---- -- -- ow �bN Li 7 %% a � PGA r aSa V� Ltd a . J SMO AM MAIM '1101 ACT H ILS 140. e99 1 \ \ .. a ti o_ PaTSI'N ! f SaoroTi•'e WEST I&L 1 SIMM AIIE A35UMM akyum. R�.S DENOTES RE6ISRREO LMW 9l1RNCV. P.0.B, WNORES Pall f OF ammINO. 4 • DMIM PRaPERIV C6iiFdM F� r 69TH STREET �. avm �� xwn a Tar wo �enn+r •. !' mn•••rpml. •,L Cost, A raaoiva are �■ �..a4r a.r w. p.. •. C. L CY�9,• s�.uo y. �iyj�j, min rw aw e. IN O 01/28/2005 14:48 FAX 912 269 1718 NEAL GERBER 0 018 6b / CONSENT a Back One,14ational Association, formedy known as T bg Frrst Nadonal Bmk of Chico, bolder of a mortgage on the Coucmdia Parse[ as described m the Eascruent Agreetaeru between Concordia Properties, U.C. Mervyn's and the City Edina to which this Consent is armched, does hereby consent to the execution and delivery of said Easenum Agrament by Conomdia Pmpwiez, LLC, and does hereby agree that the lien of tare af=wndontd mortgage shall be subordinate to cad infcrioe to the eaaemenra end alibis created by acid Basemmt Ap-um tt. Sack Onc. National Association, formerly knowa as The First National Bank of Chicago / By, tCErrw �ICNARDSON hL VIM PRMOMT STATE OF 1LL]NOIS i ) MINTY OF COOK ) The felt scimg uas was a 4mmledged befte me this,0 day of A � 2001, by N 11.1 WCF�1 , the molF oaminna of Back 0m Wational Assoeisuem. totmaiy)=a as The Fast National Bank of Chicago, ou bebelf of the Notary publk �a►Ptctwaur,• CMUt Pndi CnVo ' Nouglubllc9e<merlglool+ sty coal Dppkw loom TRANSFER ENTERED COwMTW-- w...C. AU 21 waCe 0 a w a z 00 m N r - 9Se�',3 v3 orfl�or��as�w- g� CPTI7LE9 HE�WEp�ig0{JKIY.1 C,MMED ALAD CM AUG 2 12001 1,1wo Ati 4rmrus 8Y t!1'Y N +-I N4 I Pk 0 0 N 00 N ri O _w it I 3424125 Q ��Al EASEMENT AGREEMENT THIS AGREEMENT, made and entered into this - day of June, 2001 ("Effective Date ") by and between Concordia Properties, LLC, a Delaware limited liability company ( "Concordia" ), Mervyn's, a California corporation ( "Mervyn's'�, and the City of Edina, a Minnesota municipal corporation (the "City "). P14 bn� WITNESSETH: � WHEREAS, Concordia is the owner of certain property located in the City of Edina, Hennepin County, Minnesota, legally described on Exhibit A attached hereto (the "Concordia Parcel"); and 0�S WHEREAS, Mervyn's is the owner of certain property located in the City of Edina, Hennepin County, �P_ Minnesota, legally described on Exhibit B attached hereto (the " Mervyn's Parcel' 5; and WHEREAS, the City desires to obtain certain easements over and across the Concordia Parcel and the Mervyn's Parcel (said parcels collectively hereinafter referred to as "Southdale ") for use by pedestrians and mass transit busses (the "Busses ") to be owned or operated by or for the City or the Housing and Redevelopment Authority of Edina, Minnesota, a body politic and corporate under the laws of the State of Minnesota (the "HRA "); and NOW, THEREFORE, Concordia, Mervyn's and the City, for One Dollar ($1.00) and other good and valuable consideration to each in hand paid, the receipt and sufficiency of which is hereby acknowledged by each of the parties hereto, do hereby agree as follows: 1. Grant of Easement. Concordia hereby grants and warrants to the City as to the Concordia Parcel, and Mervyn's hereby grants and warrants to the City as to the Mervyn's Parcel, the following easements: v(a) A Non - Exclusive Easement for Mass Transit Busses and Pedestrians (the "Entrance rF 4 Easement "), as depicted on Exhibit attached hereto, over and across a strip of land 40.00 feet in width, the p U centerline of said easement being described as follows: 2 That part of Tract H, Registered Land Survey No. 629 and that part of Tract B, Registered Land Survey No. 1641, files of the Registrar of Titles in and for Hennepin County, Minnesota, described as follows: j; Commencing at the Southeast corner of said Tract H: thence South 89 degrees 52 minutes 54 seconds West, iy assumed bearing, along the South line of said Tract H, distance of 10.00 feet, to the actual point of beginning of the centerline of said easement to be described; thence North 00 degrees 07 minutes 06 seconds West, a distance of d O 49.00 feet, and there terminating. P1 It is understood and agreed that the above�described Entrance Easement will extend from West 0, ? 69b Street, a public street on the South end of the easement, to an existing drive aisle on Southdale, and that such A connection from said public street to a drive aisle on Southdale is to be maintained at all times. Therefore. if the drive aisles on Southdale are ever realigned or relocated so that the Entrance Easement does not extend to and give access to the Busses and pedestrians, for the full 40.00 feet width of the Entrance Easement, from such public street 7 to a drive aisle, then Concordia. Mervyn's and the City agree to amend this Agreement by written, recordable !� amendment, to grant a new easement (the "New Entrance Easement") of the kind granted by this paragraph 1(a) OD over and across such portion of the Concordia Parcel as is necessary to connect said public street, at the same point �9 r� of connection on West 69'b Street and of the same width as described above in this paragraph 1(a), to a drive .aisle on ? the Concordia Parcel, and the description of the New Entrance Easement in such amendment, once recorded, shall v1 be the Entrance Easement as herein referenced. .01 (b) A non- exclusive easement, as depicted on Exhibit D attached hereto, for use by the Busses for jo ( (i) passage through and around Southdale, and from and to the public streets adjoining Southdale, over and across Q . 0( those portions of the Concordia Parcel and the Mervyn's Parcel which now or hereafter are improved with drive W J r aisles designed for use by passenger vehicles, or with entrances from or exits to the public streets adjoining STATE OF MINNESOTA, COUNTY OF HENNEPIN Certified to be a true and correct copy of the original on file and of record In my office OCT 02200i MICHAEL H. CUNNIFF, REGISTRAR OFTMS RV tr: wi N 46 0A �T z Southdale, excluding service drives, loading docks and delivery lanes, and (ii) loading and unloading passengers at Passenger Areas (as defined pursuant to paragraph 2 hereof). (c) A non - exclusive easement for use by passengers of the Busses over and across those portions of the Concordia Parcel and the Mervyn's Parcel which now or hereafter are improved with sidewalks. (d) A perpetual Easement for Sanitary Sewer Purposes (the "Sewer Easement "), as depicted on Exhibit E attached hereto, over and across the following described property: Commencing at the Southeast Corner of Tract D, Registered Land Survey No. 1641, said corner also being a corner common with Tract B, Registered Land Survey No. 1641, files of the Registrar of Titles, in and for Hennepin County, Minnesota; thence North 89 degrees 52 minutes 54 seconds East, assumed bearing, along the South line of said Tract B, a distance of 92.19 feet; thence North 21 degrees 19 minutes 54 seconds West, a distance of 141.85 feet, to the actual point of beginning of said easement to be described; thence North 21 degrees 19 minutes 54 seconds West, a distance of 26.00 feet; thence South 54 degrees 07 minutes 00 seconds West, a distance of 41.27 feet; thence South 89 degrees 57 minutes 53 seconds East, a distance of 42.89 feet, more or less, to the point of beginning. 2. Passenger Areas/Enforcement of ParkingMight to Tow. It is understood and agreed that the Busses will drive through and around Southdale, and will load and unload passengers at various locations on the Concordia Parcel only (the "Passenger Areas ") to be determined and changed, from time to time, by the City to respond to passenger patterns and demands. Concordia and Mervyn's shall have no obligation or duty under this Agreement to construct, maintain or identify any such Passenger Areas, it being the intent of the City merely to use whatever facilities are available at any such Passenger Areas. If a Passenger Area is determined by Concordia or Mervyn's, in either of their reasonable opinion, to be located so as to unreasonably interfere with pedestrian or motor vehicle passage into and out of Southdale and retail establishments of Southdale, the City, within a reasonable time after notice is given to the City by Concordia or Mervyn's, shall relocate such Passenger Area. No Passenger Area will be located on the Mervyn's Parcel unless Mervyn's consents to the same in writing and no shelter for Busses or passengers of the same will ever be constructed on the Mervyn's Parcel. In no event shall this Agreement be construed as granting any right to park vehicles of users of the Busses on any portion of Southdale. In the event that Concordia or Mervyn's make a good faith determination that a person other than a customer or other licensee of Concordia or Mervyn's has parked a vehicle in the Southdale parking lot, ramp or other common area, then Concordia or Mervyn's shall have the right to remove such vehicle from its respective parcel and to obtain reimbursement for the expense of such removal from the owner of the vehicle. 3. Traffic Rules: Signs. (a) The Busses shall be subject to all rules and regulations established, from time to time, in Southdale for the control and regulation of traffic and motor vehicles in Southdale; but Concordia and Mervyn's shall not impose any rules and regulations on the Busses which are more onerous or restrictive than those imposed generally on traffic and motor vehicles in Southdale. (b) The City and HRA may post on Southdale and the improvements thereon, at their expense, such signs at such locations as they or either of them deems necessary or desirable to advise passengers of the routes and time schedules of the Busses, and the location of Passenger Areas. No such sign may be posted without the prior approval of Concordia, as to a sign to be posted on the Concordia Parcel, and of Mervyn's, as to a sign to be posted on the Mervyn's Parcel, which approval shall not be unreasonably withheld, conditioned or delayed. 4. Construction and Maintenance of Entrance Easement. The City and HRA shall have the right to enter by themselves, or their employees, agents, contractors and subcontractors, upon the Entrance Easement, and upon such portions of the Concordia Parcel adjoining the Entrance Easement as may be reasonably necessary, with such equipment, material and workers as is reasonably necessary, for the purpose of constructing, installing, reconstructing, reinstalling, altering, repairing and maintaining a driveway and sidewalks on the Entrance Easement. Initial construction of the Entrance Easement shall be done by the City, and/or HRA, at its or their sole cost and 2 expense, and at such times as the City or HRA determines. The driveway and sidewalks shall be built pursuant to such plans and specifications as the City or HRA shall determine, but such specifications shall be equal to or better than the specifications pursuant to which other driveways and sidewalks have been built on Southdale. Once the Entrance Easement has been constructed by the City or HRA, it shall be maintained and repaired, including snow and debris removal, by Concordia without cost or charge to the City or HRA, in the same manner and to the same extent as other driveways and sidewalks on Southdale are maintained. Provided, however, that the City or BRA may, at their sole cost and expense, at any time, by themselves, or their employees, agents, contractors or subcontractors enter upon the Entrance Easement to do any or all such maintenance, including snow and debris removal. All work done by or for the City or HRA or Concordia on the Entrance Easement shall be done, in such manner as to not unreasonably interfere with the normal flow of vehicular or pedestrian traffic at Southdale or the use of the Entrance Easement by the Busses. If the drive aisles on the Concordia Parcel are ever relocated or realigned as to result in a New Entrance Easement as herein provided, then Concordia shall extend or reconstruct the driveway and sidewalks on the New Entrance Easement so as to connect the public street from the same point of connection and of the same width as the Entrance Easement to the drive aisles on the Concordia Parcel, without cost or expense to the City or HRA or Mervyn's, and pursuant to specifications at least equal to those used by the City or HRA for construction of the driveway and sidewalks then on the Entrance Easement. 5. Construction and Maintenance of Sanitary Sewer Easement. The City shall have the right to construct, operate, use, maintain and reconstruct a sanitary sewer easement in, on and above the real property described in paragraph l(d). The City shall have the right of ingress to and egress from the Sanitary Sewer Easement over adjacent lands of the Concordia Parcel, and lying between public roads and the Sanitary Sewer Easement, such right to be exercised in a manner determined by the City to occasion the least practicable damage and inconvenience to Concordia and Mervyn's. 6. InsgMnce: Indemnification. The City self - insures its operations pursuant to the requirements of Minnesota Statutes. The City hereby indemnifies, defends and holds both Concordia and Mervyn's harmless from and against any and all claims, demands and damages caused by the City's use of any easement granted herein or by the City's breach of this Agreement; provided, however, that this indemnification will not apply to any claim, demand or damage caused by the negligence or willful misconduct of the party seeking indemnification hereunder. 7. Maintenance. Concordia or Mervyn's shall repair and maintain, including snow and debris removal, drive aisles, sidewalks, entrances and exits as shall be necessary to keep them in good repair and condition. Concordia or Mervyn's may erect temporary barricades across portions of the easement areas to: (a) repair, replace or maintain the easement areas, (b) prevent the acquisition of prescriptive rights by anyone, or (c) repair, replace and maintain utilities servicing Southdale, provided that the City is provided with a reasonable alternative route for the Busses when such barricades are used. 8. Reservation of Rights. Nothing contained in this Agreement shall be construed to prevent Concordia, as to the Concordia Parcel, and Mervyn's, as to the Mervyn's Parcel, without the consent or approval of the City or HRA (except for such approval as may be required of the City pursuant to then applicable ordinances, codes or regulations), from relocating, redesignating, expanding and removing those parts of the Concordia Parcel and Mervyn's Parcel now or hereafter improved with drive aisles, entrances, exits, Passenger Areas or sidewalks; nor shall any such relocation, redesignation, expansion or removal be deemed an amendment or addendum to this Agreement, it being acknowledged and understood that the easements as forth in paragraph 1 hereof (except, however, as to the Entrance Easement) are not intended to impose any obligation on Concordia or Mervyn's to provide any drive aisles, entrances, exits, Passenger Areas or sidewalks at any given location, but simply to make available for use by the City and HRA for the Busses and pedestrians, the use and enjoyment of such drive aisles, entrances, exits, Passenger Areas and sidewalks as they exist from time to time on Southdale. Provided, however, that the foregoing provision shall not negate the provisions of paragraph 1(a) or of paragraph 4 relative to the Entrance Easement. Without limiting the foregoing, Concordia and Mervyn's reserve the right at any time and from time to time to exclude and restrain from using the easements granted herein any person who is engaged in civic, public, charitable or political activities, including but limited to (a) exhibiting any placard, sign or notice; (b) distributing any circular, handbill, placard or booklet; (c) soliciting membership or contributions for private, civic, public, charitable or political purposes, and (d) parading, picketing or demonstrating. The use of the easements granted herein will not materially interfere with the use by Concordia, Mervyn's, their respective tenants or invitees, or their tenants' invitees or with the use by the holder of any other easement rights over any portion of Southdale of such rights. 9. Compliance with Laws and Regulations. The City will use, and will cause its employees, agents and invitees to use, the easements granted hereunder in compliance with all applicable laws and regulations and the City will not do or permit to be done anything which would or might result in Concordia or Mervyn's becoming liable for any increased costs, damages, fines or penalties under any such laws or regulations. 10. Assignnment. This Agreement may be assigned by Concordia or Mervyn's at any time without the prior consent of the City. This Agreement may be assigned by the City without the prior consent of Concordia and Mervyn's only in the context of engaging another person or entity to operate the Busses; provided, however, that the City will at all times remain primarily responsible to Concordia and Mervyn's for performance of the City's obligations hereunder. Any other assignment by the City will require the prior written consent of Concordia and Mervyn's, which consent shall not be unreasonably withheld, conditioned or delayed. The assignee under any assignment permitted by this Section shall assume in writing the obligations of the assigning party hereunder from and after the effective date of the assignment, and the non - assigning parties shall receive a fully executed copy of such assignment and assumption agreement within 5 days after its effective date. If no such agreement is executed and delivered as required hereby, the assignment shall not be valid and the assigning party will remain obligated under the terms of this Agreement. No assignment permitted hereby will release either party hereto from its respective obligations and liabilities under this Agreement. 11. Binding Effect: Duration. This Agreement shall run with the land and shall bind and benefit the parties hereto and their respective successors and assigns. If at any time Concordia, Mervyn's or their respective successors or assigns sell or otherwise convey their respective parcels, the selling or conveying party will be released from all personal obligations under this Agreement except for those obligations arising before the date that the respective parcel was sold or conveyed. 12. Notice. Any notice required or permitted to be given by any party hereof upon or to any other party hereto shall be in writing and shall be deemed given in accordance with this Agreement if it is mailed by United States registered or certified mail, return receipt requested, postage prepaid, or if deposited, cost paid with a nationally recognized overnight courier, properly addressed as follows: If to Concordia: Concordia Properties, LLC Southdale Center 10 Southdale Center Edina, MN 55435 Attn: Christopher J. Cummins If to Mervyn's: Mervyn's c% Target Corporation Attn: Property Administration 1000 Nicollet Mall Minneapolis, MN 55402 If to the City or HRA: City of Edina 4801 West 501s Street Edina, MN 55424 Attn: City Manager Notices shall be effective one business day after mailing or depositing in the above manner. Any party may change its address for the service of notice by giving written notice of such change to the other party in the manner above specified. 13. No Gift or Dedication. Nothing herein contained shall be deemed to be a gift or dedication of the easements hereby created, or any portion thereof, to the general public, even though some of the easements hereby created may be used for or by the general public. 14. Amendments. This Agreement may be amended by a written agreement executed by the then owners of the Concordia Parcel and the Mervyn's Parcel, and by the City. All amendments to be effective, once duly signed, shall be recorded or filed in Hennepin County. Minnesota, in the same office in which this Agreement is recorded or filed to give constructive notice thereof. 15. Enforcement. The parties hereto may enforce the agreements contained herein through all legal action available at law or in equity. In any proceeding for the enforcement of rights hereunder or for the breach of this Agreement, the prevailing party in any such proceeding will be entitled to recover from the other party or parties its reasonable attorneys' fees in any such action. 16. No Waiver. No waiver of any default by any party hereto will be implied from the failure by the non- defaulting party to take any action in respect of such default. No waiver of any default in the performance of any provision of this Agreement will be deemed a waiver of any subsequent default in the performance of the same provision or any other provision. No consent to or approval of any act or request by an party hereto will be deemed to waive or render unnecessary the consent to or approval of any subsequent similar act or request. 17. Counterparts. This Agreement may be executed in any number of counterparts, each when considered together shall be deemed one document. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed as of the date first written above. CONCORDIA PROPERTIES, LLC, By: Concordia Funding, LLC Its: Managing Member By: Argo Partnership, L.P. Its: Managing Member By: Argo Management Company, L.P. Its: General Partner By: O'Connor Capital Partners, L.P. Its: General Partner By: O'Connor Capital Incorporated Its: General Partner By: cmrd roWgit., Its: By: Concordia Funding II, LLC Its: Managing Member ,/ By: Argo Partnership H, L.P. Its: Managing Member By: Argo II Management Company, L.P. Its: General Partner By: O'Connor Capital 11 Partners, L.P. Its: General Partner By: O'Connor Capital If Incorporated Its: General Partner STATE OFAMV—)!�& ) ss. COUNTY OF Atej �A) h for going instrument as acknowledged before me this / Va day of [nom_, 2001, by , the Sr— V E of O'Connor Capital II Incorporated, on behalf of the corporation as general partner of O'Connor Capital II Partners, L.P., as general partner of Argo II Management Company, L.P., as general partner of Argo Partnership II, L.P., s ana ' member of Conco dia u ding II, LLC, as managing member of Concordia Properties, LLC, and by , the��f O'Connor Capital Incorporated, on behalf of the corporation as general partner of O' nnor Capital Partners, L.P., as general partner of --- Management Company, L.P., as general partner of Argo Partnership, L.P., as managing member of Cc Funding, LLC, as managing member of Concordia Properties, LLC. aoRMW a GROSM 9*0 Public, State of New 1tbAt No. 4805037 Quallfled in Suffolk County DWOCRU Filed In Me ^1C pp� o Expires . STATE OF MINNESOTA ) SS COUNTY OF HENNEPIN MERVYN'S By: — 0, �- Kco) A. Nelson VtCe President On this 20th day of June, 2041, before me, a Notary Public within and for said County, personally appeared Scott A. Nelson, to me personally known, who, being first by me duly sworn, did say that he is a Vice President of Mervyn's, a California corporation and a duly - authorized signatory of said corporation, and that the foregoing instrument was signed by him on behalf of said corporation by authority of its Board of Directors and Scott A. Nelson acknowledged said instrument to be the free act and deed of said corporation. a ! LINDA E. JOHNSON NOTARY PUBLIC- MINNESOTA My Commission Expires Jan. 31, 2005 r I t ,N I STATE OF MINNESOTA ss, COUNTY OF HENNEPIN CITY OF EDINA By: Its: Mayor By: Its: City Manager The foregoing instrument was acknowledged before me thisq �a/K day of June, 2001, by iVA1t5 /� /!IAL- 7zo!�and . 7the Mayor and City Manager, respectively, of the City of Edina, a Minnesota municipal corporation, on behalf of the corporation. This Instrument Drafted By: Morrison Fenske Sund Seligman & Blustin, P.A. 5125 County Road 101 Suite 102 Minnetonka, MN 55345 (952) 975 -0050 Notary DARLENE R. WALLIN NOTARY PUBLIC - MINNESOTA My cammts*A Evkts Jin V, 2005 EXHIBIT A CONCORDIA PARCEL R Sin Easterly of the following described lino: '�� Parcel l:That part of Tract G, Registered Land Survey No. 432, lying y g 619 Beginning at a point on the Easterly line of Tract C. Registered Land Survey No. 1641, distant 281.80 feet North of the Southeast corner of said Tract C; thence Southerly along said Easterly line and its Southerly extension a distance of 285.00 feet; thence Southerly to the Northeast corner of Tract D, said Registered Land Survey No. 1641 and there terminating. Parcel 2-Tracts G and H, Registered Land Survey No. 629. Parcel 3: Tract B, Registered Land Survey No. 1641. Parcel 4: Tract B, Registered Land Survey No. 1642. 9 0 Gh 3 EXHIBIT B MERVYN'S PARCEL Tract A, Registered Land Survey No. 1642, Files of the Registrar of Titles, County of Hennepin. to EXCLUSIVE EASEMENT FOR USE BY MASS TRANSIT BUSSES AND PEDESTRIANS IN] WEST Tk4CT A. No, Os� 164, TRACT H RING ROAD .20, RLS NO. 629 49 00_, .� 20 �� EXCLUSIVE EASEMENT FOR USE BY NO 7'06 "W ''r„ �, -MASS TRANSrf BUSSES ANO PEQESM NS SSW52'54 W-' ; l i ♦ < < . -S LINE OF TRACT B. R.L.S. N0. 1641 S LINE OF TRACT H. R.L.S. NO. 629--- S. N0. 629 Si CORNER OF TRACT H. ,p• `-R. NOTES; t ALL BEARING SHOWN ARE ASSUMED DATUM. 2 R.L.S. DENOTES REGISTERED LAND SURVEY. 3 P.O.B. DENOTES POINT OF BEGINNING. 4 • DENOTES PROPERTY CORNER. LINE 69TH STREET A PAM UAL CoM110,T ©2M,. CX COMM h AS5oCY1 M W. M+Yb tha n,ti wn+p. via,. a C. X. COULT88 A[ ABSOCIATBS. INC. ,.pat as. p..oe,.a qr re,. ar ,ndv my lfi m uo nvommill w wo d,�d wpevtinn aM prd ! an, a duty Ue«r�d LaeW SurN1x ,ndv the br7 of 1M/ Mr [ fYb d►i n» s . e� ►pnrn.oto. iwe sew kis a. � r►««w -w.-w .z.an. [fJ IF n F- 0 N l S UTH DALE CENTER EXHIBIT "A" SKETCH OF NON— EXCLUSNE EASEMENT FOR MASS TRANSIT BUSSES FOR PASSAGE THROUGH & AROUND SOUTHDALE ON THE EXISTING RING ROAD WEST 88TH STRE NOTE: NON — EXCLUSIVE EASEMENT FOR RING ROAD USE 8T MASS TRANSIT BUSSES CROSSES THE FOLLOWING PROPERTY. Tracts 8 & C. R.LS. No. 1841. Tracts A & 8. R.L.S. Me 1842. end Tracts C & H. R.L.S. No. 610. Fltes of the Rey1slror of Titles In and far Hennepin County. Minnesota I Iweey erdh W this wrvsy p►gn, or Pot dract i—a.�P �aw tthaatt l arn"erduy �uaM..e Lao Sure) er wow the lam of Duts 2/2/61 RM 2/12/01 Ue." 13722 NOTE} 7NIS SURVEY 4L CEATIf1fi a NOT VALID r11110Uf COPVMW © 2001. C.£. CML= At ASSCOMM INC. C. S. COULTER & AS80CUTES. INC. in ni ME a1• t� • f aaaisaad, epmt am by 71W 1iW 1re1t ! soft of 111 rs aaean !eM steal lfNtt R Wands amobwonVA&M >A 21211 w t SKETCH OF PROPOSED EASEMENT FOR SANITARY SEWER PURPOSES O ' o� r i uj j z ; LLI Q LLl z [Y LL Mil .-- - - - - -- 0 Al -df d ,'i _ a- EXISTING SANITARY SEWER AND WATER �rMAIN EASEMENT DOC. NO. 595304 v 92.19 X11 �'p SSW52'54 W-- SOUTH UNE OF TRACT S. R.LS. NO. 1641 `-SE CORNER OF TRACT D. R.LS. NO. 1641 1 ,t -6 UNE OF TRACT 0. R.L.S. NO. 1641 WEST NOTES: I ALL BEARING SHOWN ARE ASSUMED DATUM. 2 R.LS. DENOTES REGISTERED LAND SURVEY. 3 P.O.B. DENOTES POINT OF BEGINNING. 4 • DENOTES PROPERTY CORNER. UNE 69TH \-\o- 1 Mnbr c�rWtr thot I1d� �urwp, plai4 a .d w�pw4fono~iw'yuw�i i mi�+ra„Ijmr Uaew LOW sur"yor .ww the w.o d am d IYnnresa DeU 2 /x/ot UcMe. Irrot m A \ �) N'\ ji RACT H RLS N0. 629 S UNE OF TRACT H. R.L.S. NO. STREET mm. TNS s war commTE is NOT YAUD wffm Uf A RASED SEAL COP"mwa=I. Cm COULTER & At50mom mm aoe C. IL COULTSA 11 ASSOCUTEB. 04C. AD lime urar� us @� w moullowk foxmm as on rwa mA sr srr s no nt as a�rwc tai w tests K way awl w7 CONSENT Bank One, National Association, formerly known as The First National Bank of Chicago, holder of a mortgage on the Concordia Parcel as described in the Easement Agreement between Concordia Properties, LLC, Mervyn's and the City Edina to which this Consent is attached, does hereby consent to the execution and delivery of said Easement Agreement by Y Concordia Properties, LLC, and does hereby agree that the lien of the aforementioned mortgage shall be subordinate to and inferior to the easements and rights created by said Easement Agreement. STATE OF ILLINOIS ss. COUNTY OF COOK Bank One, National Association, formerly known as The First National Bank of Chicago / uv�� By: KEITH RICHARDSON Its: VICE PRESIDENT The foregoing instrument was acknowledged before me this k day of A- v , 2001, by KEITH RICHARDSON , the Urg pRFSI ENT of Bank One, 14ational Association, formerly known as The First National Bank of Chicago, on behalf of the corporation. Notary Public "OFFICIAL SEAL" Geier Frank Castro Notary Public, State of Illinois Cook County My Commission Expires 06/0611005 TRANSFER ENTERED HENNEPIN COUNTY TAk =nvav ^cNtCf5 8Y 4 8 Sta3 v.� /v°334.Co� 1 OMCE OF OF T� S IV $ HENNEPIN COUNTY. MMMSM CERTIFIED FILED ON e AUG 212401 ct°° Arv\ DORSEY & WHITNEY LLP MINNEAPOLIS PILLSBURY CENTER SOUTH BRUSSELS NEW YORK 220 SOUTH SIXTH STREET COSTA MESA SEATTLE MINNEAPOLIS, MINNESOTA 55402 -1498 BILLINGS DENVER TELEPHONE: (612) 340 -2600 FARGO WASHINGTON, D.C. HONG KONG FAX: (612) 340 -2868 NORTHERN VIRGINIA GREAT FALLS www.dorseylaw.com DES MOINES ROCHESTER LONDON TOKYO ANCHORAGE PAMELA M JORGENSEN MISSOULA SALT LAKE CITY (612) 340 -8769 VANCOUVER FAX (612) 340 -2644 jorgensen.pamela@dorseylaw.com SHANGHAI September 27, 2001 David A. Scott Morrison, Fenske, SUnd, Seligman & Blustin 5125 County Road 101 Suite 102 Minnetonka, MN 55345 Re: City of Edina/Southdale Easement Dear Mr. Scott: Enclosed for your files is a certified copy of the Easement Agreement regarding the above - referenced matter, which was recorded on August 21, 2001 as Document No. 3424125. Please feel free to call if you have questions. Very truly yours, Pamela M. Jorgensen g Paralegal EnclosurW cc: 4, Craig Larson (w /enc.) Jo Maloney (w /enc.) H:\Real Estate \UsersUorgensen.Pamela \General Correspondence\David Scott Itr- Edina - Southdale 092701.doc