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Reserved for Recording Data
This instrument was prepared by
and after recording return to:
D. Albert Daspin
McBride Baker & Coles
One Mid America Plaza
Suite 1000
Oakbrook Terrace, Illinois 60181
AMENDED AND RESTATED
DECLARATION OF RECIPROCAL
EASEMENTS, COVENANTS, CONDITIONS AND RESTRICTIONS
THIS AMENDED AND RESTATED DECLARATION OF RECIPROCAL
EASEMENTS, COVENANTS, CONDITIONS AND RESTRICTIONS (this "Declaration")
is made as of Juiy ri L , 2001, by Edina Housing and Redevelopment Authority, a
public body corporate and politic formed under the laws of the State of Minnesota (the "HRA"),
R.E.C., Inc., a Minnesota corporation doing business as Ron Clark Construction ("Clark"), Opus
Northwest, L.L.C., a Delaware limited liability company ("Opus"), and the' City of Edina,
Minnesota, a Minnesota municipal corporation (the "City"). The City, the HRA, Opus and Clark
are sometimes individually hereinafter referred to as a "Declarant" and sometimes hereinafter
collectively referred to as "Declarants".
RECITALS
A. Pursuant to that certain Contract for Private Redevelopment dated as of August
15, .2000 (as amended from time to time, the "Redevelopment Contract"), by and between
Grandview Square, L.L.C., a Delaware limited liability company ("Grandview"), and the HRA
recorded on September 27, 2000 in the office of the Hennepin County Recorder as recorded
document number 7360330, and recorded on September 25, 2000 in the office of the Hennepin
County Registrar of Titles as recorded document number 3317689, Grandview agreed to cause
the acquisition and development of the Minimum Improvements, consisting of, among other
things, approximately 40 residential condominium units ("Residential Phase I") and a building
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containing approximately 93,000 square feet of office space ("Office Building"), and the HRA
agreed to develop the HRA Improvements, consisting of, among other things, a senior center of
approximately 20,000 square feet and a library of approximately 20,000 square feet (sometimes
hereinafter collectively referred to as the "Senior Center/Library"), all within the Redevelopment
Area (as defined herein), and to provide tax increment financing to induce Grandview to cause
the redevelopment of certain portions of the Redevelopment Area.
B. In accordance with the Redevelopment Contract, the HRA and Clark have caused
those certain parcels of land depicted as Lot 1, Lot 2, Lot 3, Lot 4 and Lot 5 and Outlot A on the
site plan attached hereto and made a part hereof as Exhibit A (the "Site Plan") to be subdivided,
in two phases, into five separate lots and one outlot, all as shown on the Site Plan. Each of the
five separate lots is hereinafter referred to as Lot 1, Lot 2, Lot 3, Lot 4 and Lot 5 and legally
described on Exhibit B attached hereto and made a part hereof. Lot 1, Lot 2, Lot 3, Lot 4 and
Lot 5 are sometimes hereinafter individually referred to as a "Lot" and collectively, as the "Lots."
The outlot is hereinafter referred to as "Outlot A" and legally described on Exhibit B. The Lots
and Outlot A are sometimes hereinafter individually referred to as a "Redevelopment Lot" and
collectively referred to as either the "Redevelopment Area" or the "Redevelopment Lots."
C. In accordance with the Redevelopment Contract, (i) Lot 1 has been conveyed to
Opus to develop the Office Building, (ii) Lot 2 has been retained by the HRA as a public square
with related amenities, (iii) Lot 3 and Lot 4 have been conveyed to Clark to develop Residential
Phase I and certain other improvements as part of the balance of the Residential Development,
(iv) Lot 5 has been retained by the HRA to develop the HRA Improvements, and (v) Outlot A
has been assembled by and for the City for use as Sherwood Park, a public park facility.
D. Pursuant to that certain Declaration of Reciprocal Easements, Covenants,
Conditions and Restrictions dated as of September 13, 2000 ("Original Declaration"), and
recorded on September 27, 2000 in the office of the Hennepin County Recorder as recorded
document number 7360335, and recorded on September 25, 2000 in the office of the Hennepin
County Registrar of Titles as recorded document number 3317696, Declarants (i) imposed
certain easements, covenants, conditions and restrictions upon certain portions of certain Lots
then owned by the Declarants for the purpose of facilitating the econothic and related
development of such portions, (ii) implemented the Redevelopment Contract, and (iii)
memorialized Declarants' intent to extend the scheme of easements, covenants, conditions and
restrictions created by the Original Declaration to the remainder of the Redevelopment Area
upon Declarants' acquisition of the same.
E. By this Declaration, Declarants desire to amend and restate the Original
Declaration in its entirety, and to extend the scheme of the easements, covenants, conditions and
restrictions created by the Original Declaration to the entire Redevelopment Area as
contemplated by the Original Declaration.
F. Unless otherwise specified herein, all capitalized words and terms herein shall
have the same meanings ascribed to such words and terms in the Redevelopment Contract.
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NOW, THEREFORE, in connection with the development of the Redevelopment Area
and to implement the Redevelopment Contract, Clark, the HRA and Opus hereby declare that
each of the following grants, easements, covenants, conditions and restrictions shall exist at all
times hereafter and be binding upon, and inure to the benefit of the Lots.
1. ORIGINAL DECLARATION. This Declaration amends, restates and
supersedes, in its entirety, the Original Declaration and the Original Declaration is of no further
force or effect.
2. EASEMENT DECLARATIONS AND GRANTS.
(a) Access. Subject to the conditions and limitations hereinafter set forth, Opus,
Clark and the HRA hereby declare and grant for the benefit of each of the Lots and the City a
nonexclusive easement appurtenant to each of the Lots upon, over and across the access and
perimeter driveways and identified as "Driveways" on the Site Plan (collectively, the
"Driveways"), the interior driveways identified as "Roadways" on the Site Plan (the
"Roadways"), and sidewalks, walkways and trailways on the Lots as the same may exist from
time to time, for the sole and exclusive purpose of providing the City, and the owner from time
to time of each Lot and its tenants and such owners' and tenants' respective occupants,
employees, customers, agents, contractors and invitees having business in or using the Lots (the
City, and such tenants, occupants, employees, customers, agents, contractors and invitees are
sometimes hereinafter collectively referred to as "Permittees"), with vehicular and pedestrian
ingress and egress to, from and between each Lot and use of the Driveways and Roadways for
access to Eden Avenue and Sherwood Road.
It is anticipated that the Roadways and the Driveways will be constructed in the locations
shown on the Site Plan, and following any such construction, Grandview (or Opus and Clark
together) may cause legal descriptions to be prepared for the Roadways and the Driveways and
record an amendment to this Declaration referring to this Paragraph 2(a) and Paragraph 2(h)
below and setting forth the legal description of the Roadways and the Driveways so constructed.
No Lot owner may close, block, alter, modify or change the location, alignment, configuration or
any other aspect of the Roadways and/or the Driveways without the prior vvritteh4onsent of the
other Lot owners, except to the extent required by law or in case of emergencies.
(b) Parking.
Subject to the conditions and limitations hereinafter set forth, the HRA as
the owner of Lot 5 hereby declares and grants for the benefit of Lot 3 and Lot 4. a nonexclusive
easement appurtenant to Lot 3 and Lot 4 upon, over and across the surface parking areas on the
north and south sides of the east-west Driveway located within Lot 5, as the same may exist from
time to time, for the sole and exclusive purpose of providing the owner(s) from time to time of
Lot 3 and Lot 4 and their Permittees with parking upon such surface parking areas.
(ii) Subject to the conditions and limitations hereinafter set forth, Clark, as the
owner of Lot 3, hereby declares and grants for the benefit of Lot 4- a nonexclusive easement
appurtenant to Lot 4 upon, over and across the surface parking areas located within Lot 3, as the
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same may exist from time to time, for the sole and exclusive purpose of providing the owner(s)
from time to time of Lot 4 and its Permittees with parking upon such surface parking areas.
(iii) Subject to the conditions and limitations hereinafter set forth, Clark, as the
owner of Lot 4, hereby declares and grants for the benefit of Lot 3 a nonexclusive easement
appurtenant to Lot 3 upon, over and across the surface parking areas located within Lot 4, as the
same may exist from time to time, for the sole and exclusive purpose of providing the owner(s)
from time to time of Lot 3 and its Permittees with parking upon such surface parking areas.
(iv) Subject to the conditions and limitations hereinafter set forth, Opus, Clark
and the HRA hereby declare and grant for the benefit of the City a nonexclusive easement upon,
over and across the parking spaces located within the Roadways and Driveways, as the same
may exist from time to time, located within the Lots for the sole and exclusive purpose of
providing the City with parking upon the parking spaces located within the Roadways and
Driveways.
Except for the parking easements established by this Paragraph 2(b), this Declaration does not
create, and shall not be construed to have created, any parking easements between or among any
Lots. No owner of any Lot shall prohibit overnight parking in the Roadways and/or Driveways
located within such Lot owner's Lot.
(c) Storm Water Drainage. Opus, Clark, the HRA and the City hereby declare and
grant for the benefit of each Redevelopment Lot, a non-exclusive easement appurtenant to each
Redevelopment Lot:
over, across, upon and under those portions of the Redevelopment Lots
(the "Storm Sewer Easement Area") located within the Roadways and Driveways and those areas
identified as "drainage and utility easement" dedicated on the Plat of Subdivision of Grandview
Square (the "Initial Plat") recorded in the office of the Hennepin County Recorder and in the
office of the Hennepin County Registrar of Titles, and the Plat of Subdivision of Grandview
Square 2nd Addition (the "Subsequent Plat") recorded in the office of the Hennepin County
Recorder and in the office of the Hennepin County Registrar of Titles, for the soie,.and exclusive
purpose of running and transferring water accumulating and originating on each Redevelopment
Lot to the subsurface storm sewer and drainage lines and surface drainage ways to be located
within the Storm Sewer Easement Area (collectively, the "Storm Sewer System"), together with
the right of access to the Storm Sewer Easement Area and the areas adjacent thereto as may be
reasonably and temporarily necessary for purposes of installing, maintaining, repairing,
replacing, removing, enlarging and renewing the non-public portion of the Storm. Sewer System,
if any, subject to the conditions that:
(A) The owner of each Redevelopment Lot shall not permit the flow of toxic
or hazardous substances or any other substance from such Redevelopment
Lot into the Storm Sewer System which is not permitted to be discharged
into the public storm sewer serving the Redevelopment Area by any
applicable law, statute or regulation or otherwise;
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(B) The owner of each Redevelopment Lot shall not permit any other party or
property to discharge water onto the Redevelopment Area and no right to
transfer or run water is granted hereunder other than to the owner(s) of
each Redevelopment Lot for water accumulating and originating on such
Redevelopment Lot;
(C) No such running or transferring of water shall result in water being
discharged at a rate or in a volume in excess of that permitted by the
design standards applicable to the Storm Sewer System; and
(ii) over, across, upon and under each of the Redevelopment Lots for the sole
and exclusive purpose of permitting the natural flow and drainage of stormwater accumulating
and originating on each Redevelopment Lot over and across the surface of each of the other
Redevelopment Lots, subject to the effect of any buildings or improvements presently located or
hereafter constructed on such Redevelopment Lots.
Following the construction of the Storm Sewer System, neither any Declarant nor any
other Redevelopment Lot owner may modify, alter or otherwise change the location, alignment,
configuration, capacity or any other aspect of the Storm Sewer System without the prior written
consent of the owner of the Redevelopment Lot(s) which are affected by such modification,
alteration or other change, which consent shall not be unreasonably withheld, delayed or
conditioned. Nothing contained in this paragraph shall limit or restrict the construction of the
HRA Improvements, any improvements to be constructed in Lot 2 or any appurtenant
improvements; provided, however, that none of the foregoing improvements shall be constructed
within any area which is burdened by any easement contemplated by or referred to in this
Declaration, except any easement contemplated by Paragraph 2(f) hereof.
(d) Gas, Electric, Telephone, Cable Television and Communication. Opus, Clark and
the HRA hereby declare and grant for the benefit of each Lot, a non-exclusive easement
appurtenant to each Lot under, along and across those portions of the Lots (the "Utility Easement
Area") located within the Roadways and Driveways and those areas identified as "drainage and
utility easement" dedicated on the Initial Plat and the Subsequent Plat as md.ST:;be reasonably
necessary for the sole and exclusive purposes of installing, maintaining, repairing, replacing, and
renewing utility lines or systems serving any Lot (collectively, "Utility Lines"), for gas,
electrical, telephone, cable television and communication service (and any other utility and/or
service facilities that may be required by the City or reasonably necessary for the orderly
development and operation of the improvements from time to time located within the Lots) to
any Lot and not otherwise previously created by any applicable plat of subdivision, subject to the
condition that all Utility Lines shall be underground except:
ground mounted electrical and telephone transformers and junction boxes
and temporary emergency generators;
(ii) as may be necessary during periods of construction, repair or temporary
service;
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(iii) as may be required by governmental authorities having jurisdiction over
the Redevelopment Area;
(iv) as may be required by the provider of such service; and
(v) fire hydrants.
(e) Water. Opus, Clark and the BRA hereby declare and grant for the benefit of each
Lot, a non-exclusive easement appurtenant to each Lot, over, across, upon and under those
portions of the Lots (the "Water Easement Area") located within the Roadways and Driveways
and those areas identified as "drainage and utility easement" dedicated on the Initial Plat or the
Subsequent Plat as may be reasonably necessary for the sole and exclusive purpose of permitting
the flow of water through the water lines and related appurtenances to be located within the
Water Easement Area (collectively, the "Water System"), together with the right of access to the
Water Easement Area and the areas adjacent thereto as may be reasonably and temporarily
necessary for the sole and exclusive purposes of installing, maintaining, repairing, replacing,
removing, enlarging and renewing the non-public portion of the Water System, if any.
Following the construction of the Water System, neither any Declarant nor any other Lot
owner may modify, alter or otherwise change the location, alignment, configuration, capacity or
any other aspect of the Water System without the prior written consent of the owner of each Lot
affected by such modification, alteration or other change, which consent shall not be
unreasonably withheld, delayed or conditioned. Nothing contained in this paragraph shall limit
or restrict the construction of the HRA Improvements, any improvements to be constructed in
Lot 2 or any appurtenant improvements; provided, however, that none of the foregoing
improvements shall be constructed within any area which is burdened by any easement
contemplated by or referred to in this Declaration, except any easement contemplated by
Paragraph 2(f) hereof.
(f) Future Additional Utility Easements. In the event the City, within the Driveways
and/or Roadways, or an owner of any Lot reasonably requires an easement for new or additional
gas, electrical, telephone, cable television and communication service (or any othe4:, utility and/or
service facilities that may be reasonably necessary for the orderly development and operation of
the improvements from time to time located within the Lots), the owner of the Lot to be
benefitted by the required easement ("Grantee") shall, at least thirty (30) days prior to exercising
any required easement right contemplated by this Paragraph 2(f), provide the owner of the Lot to
be burdened by the required easement contemplated by this Paragraph 2(f) ("Grantor") with a
written statement describing the need for such easement and identifying the proposed location
and width of any such proposed Utility Line. The location and width of any such proposed
Utility Line shall be subject to the prior approval of the Grantor, which approval shall not be
unreasonably withheld or delayed. The easement area shall be no wider than reasonably
necessary to satisfy the requirements of a private or public utility. Within thirty (30) days after
the determination of the location of any such easement area, the Grantor shall grant the required
easement and the Grantee shall, at its sole cost and expense, record a written declaration
executed by Grantor and Grantee referring to this Paragraph 2(f) and setting forth the legal
description of such easement area. Further, the Grantee shall, at its sole cost and expense,
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promptly following installation of any such Utility Line, provide the Grantor with a copy of an
as-built survey showing the location of such Utility Line. The Grantor shall have the right at any
time to relocate the required easements granted pursuant to this Paragraph 2(f), provided that (i)
the, easements so relocated will be of substantially equivalent usefulness for the purposes stated
herein, (ii) all costs to effect such relocation shall be paid by the Grantor, (iii) the Grantor shall
interfere with the business being operated on the Grantee's Lot as little as reasonably possible in
the exercise of the Grantor's rights under this Paragraph 2(f), and (iv) there shall be no resulting
material interruption in the furnishing of utilities and services during normal business hours.
(g) Signs.
The HRA hereby declares and grants for the benefit of Lot 1, Lot 3 and
Lot 4 a non-exclusive easement appurtenant to such Lots over, under, along and across the area
of Lot 5 depicted and described as "North Monument Sign Easement Area" on the Site Plan and
legally described on Exhibit C attached hereto and made a part hereof as may be reasonably
necessary for the purposes of illuminating, maintaining, repairing, replacing, and renewing a
monument sign and appurtenant landscaping (collectively, the "North Monument Sign").
(ii) The HRA hereby declares and grants for the benefit of Lot 1, Lot 3 and
Lot 4 a non-exclusive easement appurtenant to such Lots over, under, along and across the area
of Lot 5 depicted and described as "West Monument Sign Easement Area" on the Site Plan and
legally described on Exhibit C as may be reasonably necessary for the purposes of constructing,
installing, illuminating, maintaining, repairing, replacing, and renewing a monument sign and
appurtenant landscaping (collectively, the "West Monument Sign").
(iii) The HRA hereby declares and grants for the benefit of Clark a temporary,
non-exclusive easement over, under, along and across the area of Lot 5 depicted and described as
"Marketing Sign Easement Area" on the Site Plan and legally described on Exhibit C as may be
reasonably necessary for the purposes of constructing, installing, maintaining, illuminating,
repairing, replacing, and renewing a temporary marketing sign and appropriate landscaping
(collectively, the "Marketing Sign"). The temporary easement granted by this Paragraph 2(g)(iii)
shall, by its terms and without further act of Declarants or any other party, autqmtically expire
on the earlier to occur of (i) the date the Marketing Sign is required to be removed pursuant to
any applicable laws, regulations, codes and ordinances of any governmental entity having
jurisdiction over the Marketing Sign, and (ii) July 31, 2006.
(iv) Nothing contained in this Declaration shall constitute a waiver by the City
of any applicable City code or ordinance restriction or requirement, except as may be specifically
waived herein.
(h) Maintenance Access. Subject to the conditions and limitations hereinafter set
forth, Opus, Clark and the HRA hereby declare and grant for the benefit of the City a non-
exclusive easement upon, over and across those portions of the Lots as may be reasonably and
temporarily necessary for purposes of providing the City access to, from and between each Lot
for the sole and exclusive purpose of performing the City's maintenance obligations required
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hereunder, including, without limitation, those maintenance obligations required by Paragraph
5(a)(iii).
(i) Sanitary Sewer. Subject to the conditions and limitations hereinafter set forth,
Opus, Clark and the BRA hereby declare and grant for the benefit of each Lot, a non-exclusive
easement appurtenant to each Lot, over, across, upon and under those portions of the Lots
("Sanitary Sewer Easement Area") located within the Roadways and Driveways and those areas
identified as "drainage and utility easement" dedicated on the Initial Plat or the Subsequent Plat
in which sanitary sewer lines and related appurtenances (collectively, the "Sanitary Sewer
System") may be installed, for the sole and exclusive purpose of permitting the flow of
wastewater, sewage and related materials through the Sanitary Sewer System.
Following the construction of the Sanitary Sewer System, neither any Declarant
nor any other Lot owner may modify, alter or otherwise change the location, alignment,
configuration, capacity or any other aspect of the Sanitary Sewer System without the prior
written consent of the owner of each Lot affected by such modification, alteration or other
change, which consent shall not be unreasonably withheld, delayed or conditioned. Nothing
contained in this paragraph shall limit or restrict the construction of the HRA Improvements, any
improvements to be constructed in Lot 2 or any appurtenant improvements; provided, however,
that none of the foregoing improvements shall be constructed within any area which is burdened
by any easement contemplated by or referred to in this Declaration, except any easement
contemplated by Paragraph 2(f) hereof.
(j) Temporary Construction. Subject to the conditions and limitations hereinafter set
forth, Declarants hereby grant to the City and to its contractors, materialmen and laborers, a non-
exclusive temporary construction easement upon, over and across the Lots for the sole and
exclusive purpose of access and passage over and across those portions of the Lots as shall be
temporarily and reasonably necessary for the City to construct the HRA Improvements as
required by the Redevelopment Contract; provided, however, (i) the City may exercise the
easement rights granted under this subparagraph only during periods when actual construction is
being performed, (ii) the exercise of the easement rights granted under this subparagraph shall
not unreasonably interfere with the use and operation of any of the Lots by the 6-Whers thereof or
of the business conducted on any of the Lots, (iii) construction vehicles shall only be permitted
to use the Roadways and Driveways and no other portion of the Redevelopment Area outside the
Lot being served by such construction vehicles, and (iv) in the event the City exercises the
easement rights granted under this subparagraph, the City shall be deemed to be a Constructing
Owner (as defined in Paragraph 4(a) hereof) and shall satisfy and comply with and be subject to
all requirements and obligations of a Constructing Owner set forth in Paragraph 4(a) hereof. At
least five (5) days prior to exercising the rights granted under this subparagraph, the City shall
provide the owners of the Lots with a written statement describing the need for such exercise,
and shall furnish a certificate of insurance showing that its contractor has obtained the minimum
insurance coverage required hereunder. The temporary easement granted by this Paragraph 2(j)
shall, by its terms and without further act of Declarants or any other party, automatically expire
on the earlier to occur of (i) substantial completion of the HRA Improvements and (ii) December
31, 2002.
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(k) Environmental Remediation. Subject to the conditions and limitations hereinafter
set forth, Declarants hereby grant to the HRA and the City and to their respective contractors,
materialmen and laborers, a non-exclusive temporary license upon, over and across the Lots for
the sole and exclusive purpose of access and passage over and across those portions of the Lots
as shall be temporarily and reasonably necessary for the HRA and the City to perform certain
environmental remediation work (the "Environmental Work") as required by Section 6.5 of the
Redevelopment Contract; provided, however, (i) the BRA and the City may exercise the rights
granted under this subparagraph only during periods when actual Environmental Work is being
performed, (ii) the exercise of the rights granted under this subparagraph shall not interfere in
any material respect with the use and operation of any of the Lots by the owners thereof or of the
business conducted on any of the Lots, and (iii) in the event the BRA and/or the City exercises
the rights granted under this subparagraph, the BRA and the City, as the case may be, shall be
deemed to be a Constructing Owner (as defined in Paragraph 4(a) hereof) and shall satisfy and
comply with and be subject to all requirements and obligations of a Constructing Owner set forth
in Paragraph 4(a) hereof. At least five (5) days prior to exercising the rights granted under this
subparagraph, the HRA and/or the City, as the case may be, shall provide the owners of the Lots
with a written statement describing the need for such exercise, and shall furnish a certificate of
insurance showing that its contractor has obtained the minimum insurance coverage required
hereunder. The temporary license granted by this Paragraph 2(k) shall, by its terms and without
further act of Declarants or any other party, automatically expire on the earlier to occur of (i)
substantial completion of the Environmental Work and (ii) July 31, 2001.
(1) Sitework. Subject to the conditions and limitations hereinafter set forth,
Declarants hereby grant to Grandview and its general contractor, Opus Northwest Construction
Corporation, a Minnesota corporation ("ONWCC"), and to their respective contractors,
materialmen and laborers, a non-exclusive temporary license to enter upon, over and across the
Redevelopment Lots for the sole and exclusive purpose of access and passage over and across
those portions of the Redevelopment Lots as shall be temporarily and reasonably necessary for
ONWCC to perform certain grading and related site improvement work (the "Sitework") as
contemplated by the Redevelopment Contract; provided, however, (i) Grandview or ONWCC
may exercise the rights granted under this subparagraph only during periods when actual
Sitework is being performed, (ii) the exercise of the rights granted under this subparagraph shall
not interfere in any material respect with the use and operation of any of the Redevelopment Lots
by the owners thereof or of the business conducted on any of the Redevelopment Lots, and (iii)
in the event Grandview or ONWCC exercises the rights granted under this subparagraph,
Grandview or ONWCC shall be deemed to be a Constructing Owner (as defined in Paragraph
4(a) hereof) and shall satisfy and comply with and be subject to all requirements and obligations
of a Constructing Owner set forth in Paragraph 4(a) hereof. At least five (5) days prior to
exercising the rights granted under this subparagraph, Grandview or ONWCC shall provide the
owners of the Redevelopment Lots with a written statement describing the need for such
exercise, and shall furnish a certificate of insurance showing that they or their contractors have
obtained the minimum insurance coverage required hereunder. The temporary license granted
by this Paragraph 2(1) shall, by its terms and without further act of Declarants or any other party,
automatically expire on the earlier to occur of (i) substantial completion of the Grading Work
and (ii) December 31, 2001.
64003/00242/297886.4 9
(m) Landscape and Sidewalk Areas in Outlot A. Subject to the conditions and
limitations hereinafter set forth, the City, as the owner of Outlot A, hereby declares and grants
for the benefit of Lot 4, a non-exclusive easement appurtenant to Lot 4, over, across, upon and
under the area of Outlot A depicted and described as the "Landscape and Sidewalk Easement
Area" on the Site Plan and legally described on Exhibit D attached hereto and made a part hereof
as may be reasonably necessary for the purposes of installing, maintaining, repairing, replacing
and illuminating a sidewalk, retaining wall, fence, landscaping and sprinkler system in the
Landscape and Sidewalk Area.
(n) Miscellaneous. The owner of each Lot, in the exercise and use of the rights and
privileges herein granted, will not create a nuisance or do any act which would materially and
adversely affect the Redevelopment Area or part thereof. Except as otherwise expressly
provided herein, the easements granted in Paragraphs 2(c), 2(d), 2(e), 2(f) and 2(i) herein are
located in and restricted to the area below the surface of the ground, and this Declaration grants
no right to use, occupy or alter any area of the ground surface above said easement areas except
as reasonably and temporarily necessary to afford access to said easement areas.
3. DURATION. The easements, covenants, conditions and restrictions herein
contained shall be perpetual (except for the easements granted by Paragraph 2(g)(iii), Paragraph
2(j), Paragraph 2(k) and Paragraph 2(1) of this Declaration, which such easements shall expire on
the dates specified therein), shall create mutual benefits and covenants running with the land and
shall be binding upon any owner or Permittees of the Redevelopment Area and their respective
heirs, personal representatives, successors and assigns.
4. CONDITIONS AND RESTRICTIONS CONCERNING CONSTRUCTION,
LANDSCAPING AND BUILDING MAINTENANCE. Use and enjoyment by any
Redevelopment Lot owner of the easement rights and declarations herein granted shall be subject
to the following terms, covenants and restrictions.
(a) The City or each Redevelopment Lot owner (each, a "Constructing Owner")
which engages in construction, repair or maintenance related to its Redevelopment Lot or within
any of the easements granted herein located on another Redevelopment tot, (collectively,
"construction" or "construction operations") shall pay all reasonable costs and expenses incurred
by any other Redevelopment Lot owner due to damage to such other Redevelopment Lot owner's
Redevelopment Lot arising from or related to such Constructing Owner's construction operations
at such Redevelopment Lot. After completion of the initial construction of the Roadways and
Driveways to be located within the Redevelopment Area (which, for purposes of this
Declaration, shall mean that the same have been substantially completed in accordance with the
plans and specifications therefor approved by the City, as certified by ONWCC or Grandview),
no Constructing Owner shall unreasonably obstruct the free flow of pedestrian or vehicular
traffic upon and across the Roadways and Driveways during any period of construction at such
Constructing Owner's Redevelopment Lot or at any time thereafter. During such period of
construction, the Constructing Owner shall cause the Roadways and Driveways to be maintained
free of all materials and supplies arising out of or resulting from such Redevelopment Lot
owner's construction and otherwise in a neat and orderly condition undisturbed by such
Redevelopment Lot owner's construction operations. Any vehicle or equipment used in such
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construction or any materials used in such construction shall be parked or stored only on an area
within the Constructing Owner's Redevelopment Lot, but not in the Roadways, Driveways or any
platted easement areas. Each Redevelopment Lot owner shall defend, indemnify and hold
harmless each other Redevelopment Lot owner and its tenants and occupants from and against
any and all loss, cost, damage, liability, claim or expense (including, without limitation,
reasonable attorneys' fees and costs) arising from or relating to such Redevelopment Lot owner's
construction operations. No Redevelopment Lot owner shall permit or suffer any mechanic's
liens claims to be filed or otherwise asserted against any part or all of the Redevelopment Area in
connection with such owner's construction operations, and such owner shall promptly discharge
the same in case of the filing of any claims for liens or proceedings for the enforcement thereof,
or in the event such owner in good faith desires to contest the validity or amount of any
mechanic's lien, such owner shall have the right to contest the validity or amount of any such
mechanic's lien, provided that (i) such owner deposits with the owner of the Redevelopment Lot
affected by such mechanic's lien cash or a letter of credit or other security reasonably acceptable
to such affected owner in an amount equal to one hundred fifty percent (150%) of the amount of
said lien to insure payment and prevent any sale or forfeiture of any part of the affected
Redevelopment Lot by reason of nonpayment; (ii) neither the affected Redevelopment Lot nor
any part thereof or interest therein would be in any substantial danger of being sold, forfeited, or
lost, (iii) such affected owner would not be in any substantial danger of any civil or criminal
liability for failure to comply therewith; and (iv) such owner promptly notifies such affected
owner, in writing, of such contest. Any such contest shall be prosecuted with due diligence and
such owner shall promptly after the final determination thereof pay the amount of any such lien,
together with all interest, penalties and other costs payable in connection therewith. Any such
letter of credit deposited hereunder shall be issued by a national bank reasonably acceptable to
such affected Redevelopment Lot owner. Each Redevelopment Lot owner and its Permittees
shall be solely responsible for the transportation, safekeeping and storage of materials and
equipment used in connection with construction operations on such Constructing Owner's
Redevelopment Lot, and for the removal of waste and debris resulting therefrom. In the event
any construction operations related to a Redevelopment Lot detrimentally affect the condition of
any portion of the Redevelopment Area, such owner shall restore the Redevelopment Area, or
part thereof, to its condition existing prior to commencement of such construction operations,
including without limitation, any filling and compacting of all excavations, r8p6ing of paved
areas and replacement of landscaping. No such construction operations shall result in a labor
dispute or encourage labor disharmony. Prior to commencement of construction operations
related to a Redevelopment Lot, such Constructing Owner shall obtain, at its sole cost and
expense, and maintain during the performance of such owner's construction operations
commercial general public liability insurance for the mutual benefit of Declarants and such
owner with limits not less than the amounts set forth in Section 7 hereof, all risk builder's risk
insurance for full insurable value covering any improvements constructed and workers
compensation insurance covering all persons directly employed in connection with such
construction operations and with respect to which death or injury claims could be asserted
against Declarants, such Constructing Owner, the Redevelopment Area or any interest therein as
required by applicable laws and regulations. All such insurance shall be written by solvent
insurance companies currently licensed in the State of Minnesota and all such policies of
insurance or certificates of insurance shall be delivered to Declarants prior to commencement of
such construction operations.
64003/00242/297886.4 11
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(b) Once permanent improvements have been constructed on a Redevelopment Lot,
each Redevelopment Lot shall be landscaped in accordance with a landscaping plan approved by
the City. Landscaping shall be kept in a neat and attractive condition and appearance including,
without limitation, lawns mowed, edges trimmed, and trees, shrubs and other landscape
treatment properly maintained. No Lot shall be fenced (unless such fence acts as a temporary
barrier to a construction zone during construction on such Lot and except for such fencing as the
owners of Lot 3 and Lot 4 desire to install between such Lots on the one hand, and Outlot A on
the other; provided, however, any such fencing material shall be subject to review and approval
by the City, not to be unreasonably withheld, delayed or conditioned so long as the same is
consistent with the design intent of the Redevelopment Area) or obstructed in any way but shall
be kept open at all times for the free use thereof, except that curbs, landscaping or bumper stops
may be erected on any Lot in order to define the boundaries of such Lot. Any dumpster or trash
receptacle on the Lots shall be screened (other than dumpsters used during temporary
construction operations) as required by the City, or if no such City requirements exist, then in a
manner approved by Declarants, not to be unreasonably withheld or delayed, which approval
shall be obtained prior to installation of the same. Each owner of a Redevelopment Lot shall
maintain the exterior of all buildings located on such Redevelopment Lot in good condition and
state of repair, including without limitation, maintaining all perimeter and building walls and
retaining walls, keeping the exterior surface clean, replacing any cracked or broken glass, and
each such owner shall remove and cause to be transported to a location outside of the
Redevelopment Area all snow and ice accumulating on such owner's Redevelopment Lot;
provided, however, each Redevelopment Lot owner may store such snow and ice upon such
owner's Redevelopment Lot provided such storage does not block the Roadways and Driveways
or impede the reasonable passage of motor vehicles and pedestrians through the Roadways and
Driveways and sidewalks of the Redevelopment Lots.
Each Declarant (other than the City in its capacity as owner of Outlot A) hereby reserves
unto itself the right to cure any failure of any owner of a Redevelopment Lot to make such
repairs, maintenance or restoration as are required under the aforesaid covenants, conditions and
reservations and as required under Sections 5 and 8 hereof; provided, however, that each
Declarant shall not be entitled to cure any such failure unless such party hitS:;first given the
Redevelopment Lot owner written notice of such failure and such owner has not cured such
failure within thirty (30) days of such notice or, in case such cure cannot be effected within said
30-day period and such owner is diligently pursuing such cure, such additional period as may be
reasonably necessary to effect such cure; and provided further that, with respect to a failure by a
Redevelopment Lot owner to maintain insurance set forth in Paragraph 4(a) and Section 7 hereof
or with respect to any event, fact or circumstance which involves imminent threat of injury or
damage to persons or property, the aforesaid cure period shall not apply. All reasonable costs
incurred by the curing Declarant in performing such repairs, landscaping, maintenance or
restoration shall be due from any such defaulting Redevelopment Lot owner upon demand, and,
in addition, such owner shall pay interest on such costs from the date of expenditure by the
curing Declarant until the date of reimbursement by any such defaulting owner, at an interest rate
equal to two percent (2%) per annum in excess of the published prime rate of interest of U.S.
Bank National Association (or similar institution if said bank shall cease to exist or to publish
such a prime rate) provided that such rate shall not exceed the highest rate permitted by
64003/00242/297886.4
12
applicable law. The amount due from any Redevelopment Lot owner under this Section 4 shall
be secured by a lien upon such owner's Redevelopment Lot, effective upon the recording and a
statement thereof in the Office of the County Recorder (or if the defaulting owner's
Redevelopment Lot is registered property, in the office of the Registrar of Titles) of Hennepin
County, Minnesota. Any such lien may be foreclosed upon in the same manner as provided for
enforcement of mechanics liens under Minnesota law.
5. REPAIRS AND MAINTENANCE; COMPLIANCE WITH LAWS, ET AL.
(a) Repairs and Maintenance.
(i) Generally. Each owner of a Redevelopment Lot shall keep such owner's
Redevelopment Lot free of obstruction (other than the improvements contemplated by this
Declaration), clean, swept and in good repair and replace any portions thereof as necessary, shall
remove snow and ice from the Roadways and Driveways (except as otherwise specifically set
forth herein), sidewalks and parking areas located on such owner's Redevelopment Lot, and shall
maintain all site improvements including all signs (except as otherwise specifically set forth in
this Paragraph 5), detention areas, storm ponds and hardscape areas located on such owner's
Redevelopment Lot in good order, condition and repair. All maintenance and repairs shall be
done as quickly as possible and at such times and in such a manner as shall minimize any
inconvenience to the business conducted, or residences located, in the Redevelopment Area.
Any work to be performed in connection with the easement rights granted herein shall be subject
to the provisions of Paragraph 4(a) hereof. Each owner of a Redevelopment Lot shall maintain
any private utility lines located on its respective Redevelopment Lot (and, if required by the
public utility, any public utility located on its respective Redevelopment Lot) except if said
utility lines are used exclusively by another Redevelopment Lot owner, in which event said other
owner shall be responsible for maintenance of said utility lines; if any such Redevelopment Lot
owner fails to maintain such utility lines, then any other Redevelopment Lot owner whose
Redevelopment Lot is benefited by such utility lines shall have the same rights and remedies of a
curing Declarant as set forth in the last paragraph of Section 4.
Without limiting the generality of the foregoing, each Redevelopment it,6t owner shall
maintain, repair and replace when necessary the following portions of the Redevelopment Area
in a high class condition, and remove snow, ice and debris therefrom as reasonably necessary,
except as otherwise noted below.
(ii) By Lot 1 Owner' The owner of Lot 1, at such owner's sole cost and
expense, shall maintain, repair and replace when necessary the following areas within the
Redevelopment Area depicted on the Site Plan:
(A) the east-west Roadway (located within Lot 1 adjacent to Lot 3)
including the parking spaces located therein and the cost of illumination, including all street
lights to be initially installed by Grandview and serving such Roadway located therein; and
64003/00242/297886.4 13
• •
(B) sidewalks, irrigation systems and landscaping located on Lot 1,
including any sidewalks, irrigation systems and landscaping situated within any public right-of-
way located within Lot 1.
(C) the North Monument Sign and in accordance with prudent industry
practice and applicable laws, regulations, codes and ordinances of any governmental entity
having jurisdiction over the North Monument Sign.
(iii) By the City. The City, at the City's sole cost and expense, except as
otherwise expressly provided herein, shall perform Normal Maintenance (as hereinafter defined)
of the following areas within the Redevelopment Area depicted on the Site Plan:
(A) the Driveways (including any boulevard medians located within
the Driveways, but excluding snow and ice removal from the surface parking spaces located on
the north and south sides of the east-west Driveway located within Lot 5 adjacent to Lot 4);
(B) the Eden Avenue and Sherwood Road public right of way,
including all sidewalks, lights, boulevards, streets, curbs, gutters and irrigation and similar
improvements located therein;
(C) all improvements, landscaping, sidewalks and irrigation systems
on Lot 2, Lot 5 and Outlot A (other than any of the same located in the Landscape and Sidewalk
Easement Area), including, without limitation, any landscaping, sidewalks and irrigation systems
situated within any public right-of-way located within Lot 5 and Outlot A.
(D) the Storm Sewer System, the Sanitary Sewer System and the Water
System, including water hydrants, within the Redevelopment Area, but excluding sewer and
water service lines extending to any building(s) constructed within the Redevelopment Area; and
(E) all Roadway and Driveway illumination, including, without
limitation, all street lights to be initially installed by Grandview and serving the Roadways and
Driveways; additionally, with respect to the North Monument Sign and the West Monument
Sign, the City shall, as its sole obligation with respect to such signs, furnish, at City's sole cost
and expense, all required electricity for lighting each such sign.
It is understood that the City may be reimbursed for any costs expended in connection
with the performance of the obligations set forth in subparagraph (B) above by special
assessment through the entire Grandview Commercial Area Special Assessment District. It is
understood that the City may be reimbursed for any costs expended in connection with the
performance of the obligations set forth in subparagraph (E) above by special assessment
through the Grandview Area Special Assessment District. It is understood that the City may be
reimbursed for any costs expended in connection with the performance of "large item"
maintenance obligation, such as curb and gutter replacement, repaving, and other roadway
repairs, by special assessment. "Normal Maintenance" shall mean snow plowing per normal
City schedule, street sweeping, seal coating, striping and repair and replacement when necessary
resulting from normal wear and tear.
64003/00242/297886.4
14
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The obligations of the City set forth herein shall be binding upon the City
notwithstanding that Outlot A, Lot 2 and/or Lot 5 may be owned by a party other than the City.
(iv) By Lot 3 Owner. The owner of Lot 3, at such owner's sole cost and
expense, shall maintain, repair and replace when necessary and remove snow, ice and debris as
reasonably necessary from the following areas within the Redevelopment Area depicted on the
Site Plan:
(A) the north-south Roadway (shared by Lot 3 and Lot 4), including
the surface parking spaces located therein and the cost of illumination, including, without
limitation, all street lights to be initially installed by Grandview and serving such Roadway,
located therein; and
(B) sidewalks, other surface parking spaces, storm water retention
pond, irrigation systems, retaining walls and landscaping located on Lot 3, including any
sidewalks, irrigations systems and landscaping situated within any public right-of-way located
within Lot 3.
(v) By Lot 4 Owner. The owner of Lot 4, at such owner's sole cost and
expense, shall maintain, repair and replace when necessary and remove snow, ice and debris as
reasonably necessary from the following areas within the Redevelopment Area depicted on the
Site Plan:
(A) the sidewalks, surface parking spaces, irrigation systems, retaining
walls and landscaping located on Lot 4, including any sidewalks, irrigations systems and
landscaping situated within any public right-of-way located within Lot 4;
(B) the improvements to be constructed by Clark or Grandview within
the Landscape and Sidewalk Easement Area located within Outlot A; and
(C) for purposes of ice and snow removal only, shalt maintain the
surface parking spaces located on the north and south sides of the east-west Driveway to be
located within Lot 5 adjacent to Lot 4.
(D) the West Monument Sign, in accordance with prudent industry
practice and applicable laws, regulations, codes and ordinances of any governmental entity
having jurisdiction over the West Monument Sign.
(vi) By Clark. If the Marketing Sign is constructed and installed, then Clark,
at Clark's sole cost and expense, shall illuminate, maintain, repair, replace, and renew the
Marketing Sign in good order, condition and repair, and in accordance with prudent industry
practice and applicable laws, regulations, codes and ordinances of any governmental entity
having jurisdiction over the Marketing Sign. Prior to the expiration of the temporary easement
for the Marketing Sign, Clark, at Clark's sole cost and expense, shall remove the Marketing Sign
from the Marketing Sign Easement Area and restore the Marketing Sign Easement Area to
64003/00242/297886.4 15
• •
substantially the same condition as the balance of the unimproved areas of Lot 5 in accordance
with applicable laws, regulations, codes and ordinances.
(b) Compliance with Laws, et al. Each owner of a Redevelopment Lot shall comply
with all laws, rules, regulations and requirements of public authorities relating in any manner
whatsoever to such owner's Redevelopment Lot, and shall pay one hundred percent (100%) of
any (i) real estate taxes which are due and payable for each such owner's Redevelopment Lot,
and (ii) repair and maintenance expenses for each owner's Redevelopment Lot. For purposes of
this Declaration, real estate taxes shall include all taxes, installments of assessments and
governmental charges of any kind and nature whatsoever levied or assessed against the
Redevelopment Area and any improvement thereon.
(c) Lot 3 Owner and Lot 4 Owner Obligations. Pursuant to a separate written
agreement, the Lot 3 Owner and/or the Lot 4 Owner may transfer their obligations under this
Section 5 to each other, or delegate such obligations to one or more common interest community
associations to be established for the benefit of the owners of units later created or subdivided
within such lots. Upon recording of such written agreement, this Declaration shall be deemed
amended to provide for such transfer or delegation of obligations under this Section 5.
6. INDEMNIFICATION. Each owner of a Redevelopment Lot shall defend,
indemnify and hold harmless the other Redevelopment Lot owners from and against any and all
claims, actions, damages, fines, liabilities and expenses of every kind, nature and sort whatsoever
(including reasonable attorney's fees, court costs and expenses) which may be imposed upon,
incurred by or asserted against the indemnified Redevelopment Lot owner or its property in
connection with loss of life, personal injury and/or property damage arising from or relating to
any occurrence in, upon or at the indemnified owner's Redevelopment Lot, or any part thereof,
by the indemnifying party, or from exercise of the easement rights granted herein, except to the
extent caused by the willful or negligent acts or omissions of the indemnified party or to the
extent covered by the insurance to be maintained pursuant to Section 7. With respect to any
indemnification provided for hereunder, the indemnifying Redevelopment Lot owner shall
immediately respond and take over the expense, defense and investigation of all such claims
arising under this indemnity. .,
7. INSURANCE. Each owner of a Redevelopment Lot shall cause to be procured
and maintained commercial general liability insurance providing coverage at least as broad as the
current ISO form (including operations, contingent liability, operations of subcontractors,
completed operations and contractual liability insurance) and, during construction of any
buildings or improvements on such owner's Redevelopment Lot, an Owner's Contractor's Policy,
with limits against bodily injury and property damage of not less than $2,000,000.00 for each
occurrence and with an aggregate limitation of not less than $5,000,000.00 (to accomplish the
above-required limit, an umbrella excess liability policy may be used), which policy or policies
shall:
(a) name as an additional insured Grandview, and the owners of each
Redevelopment Lot (subject to the provisions of Paragraph 16 hereof);
64003/00242/297886.4 16
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(b) be written by solvent insurance companies licensed in the State of
Minnesota;
(c) provide that such policy or policies may not be canceled by the
insurer without first giving each additional insured at least thirty (30) days' prior written notice;
and
(d) provide that not less than 15 days prior to the expiration of any
policy Declarants and the additional insureds shall be provided satisfactory evidence that the
required policies have been renewed or replaced by policies conforming to the provisions of this
Section 7.
Any such coverage shall be deemed primary to any liability coverage secured by any
other Redevelopment Lot owner covering such other owner's Redevelopment Lot.
Each owner of a Redevelopment Lot shall also keep any building improvements located
on its Redevelopment Lot insured in an amount equivalent to the full replacement value thereof
(excluding foundation, grading and excavation costs) against loss or damage by fire and such
other risks of a similar or dissimilar nature customarily covered with respect to buildings and
improvements similar in construction, general location, use, occupancy and design to such
building improvements.
Nothing herein contained shall prevent any Redevelopment Lot owner from taking out
insurance of the kind and in the amount provided for hereunder under a blanket insurance policy
or policies which may cover other properties owned or operated by such owner as well as its
Redevelopment Lot; provided, however, that any such policy of blanket insurance of the kind
provided for shall specify therein the amounts thereof allocated to such Redevelopment Lot or
such owner shall furnish each other Redevelopment Lot owner with a written statement from the
insurers under such policies specifying the amounts of the total insurance allocated to such
Redevelopment Lot, and provided further, that such policies of blanket insurance shall, as
respects such Redevelopment Lot, contain the various provisions required of such an insurance
policy by the foregoing provisions of this. Declaration. The City and the HR:Aiqand not any
successor or assignee of the City or the HRA) may elect to act as a self insurer in respect to the
insurance coverages required to be maintained under this Declaration. Further, if any
Redevelopment Lot owner demonstrates that it has a tangible, net financial worth measured in
accordance with generally accepted accounting principles of at least $100,000,000.00, as
evidenced by financial statements certified by its chief financial officer, such owner may elect to
act as a self insurer in respect to the insurance coverages required to be maintained under this
Declaration. If such owner so elects to become a self-insurer, such owner, other than the City or
the HRA, shall deliver to each other Redevelopment Lot owner notice in writing of the required
coverages which it is self-insuring setting forth the amounts, limits and scope of the self-
insurance in respect to each type of coverage self-insured. Any self-insuring Redevelopment Lot
owner shall defend, indemnify and hold harmless each Redevelopment Lot owner from and
against any loss, cost, damage, expense (including attorneys' fees and court costs), claim, cause
of action or liability that would have been covered by the insurance policy replaced by the self-
insurance.
64003/00242/297886.4 17
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Each owner of a Redevelopment Lot shall deliver certificates or memoranda of such
policies of insurance to Declarants within five (5) days after written request therefor.
8. DAMAGE AND DESTRUCTION. In the event of any damage or destruction to
any buildings to be constructed on any of the Redevelopment Lots, the owner of said
Redevelopment Lot promptly shall remove all rubble and debris resulting from such damage or
destruction and shall commence restoration within six (6) months of such damage or destruction
and shall complete restoration of such damage or destruction within twelve (12) months after the
date thereof, or shall forthwith remove all rubble and debris resulting from such damage or
destruction and restore the site to a safe, orderly and clean condition as soon as possible and
maintain landscaping as required by the City, provided that the time periods described herein
shall be deferred for a period, not to exceed an aggregate of three hundred sixty-five (365) days,
equal to any delay caused by reason of strikes, lockouts, labor disputes, inability to obtain labor,
materials or reasonable substitutes therefor, acts of God, governmental restrictions, regulations or
controls, enemy or hostile governmental action, civil commotion, insurrection, revolution,
sabotage, fire or other casualty, acts or governmental agencies, or other causes (other than lack of
funds) beyond the reasonable control of any such Redevelopment Lot owner.
9. NOT A PUBLIC DEDICATION. Nothing herein contained shall be deemed to
be a grant or dedication of any portion of the Redevelopment Area to the general public or for
the general public or for any public purposes whatsoever, it being the intention of Declarants that
this Declaration shall be strictly limited to and for the purposes herein expressed. Subject to the
conditions and limitations set forth in Paragraph 2(a), each Lot owner shall have the right to
close any portion of its Lot to the extent as may, in such Lot owner's reasonable opinion, be
necessary to prevent a dedication thereof or the accrual of any rights to any person or the public
therein.
10. RIGHTS AND OBLIGATIONS OF LENDERS. If by virtue of any right or
obligation set forth herein a. lien shall be placed upon any one of the Redevelopment Lots, such
lien shall be expressly subordinate and inferior to the lien of any first mortgage lienholder now or
hereafter placed on such Redevelopment Lot except those liens recorded prior ifii:trecordation of
any such first mortgage. Except as set forth in the preceding sentence, however, any holder of a
first mortgage lien on any one of the Redevelopment Lots, and any assignee or successors in
interest of such first mortgage lienholder, shall be subject to the terms and conditions of this
Declaration.
11. PARTIAL INVALIDITY. Invalidation of any of the provisions of the
covenants, conditions and restrictions herein contained, whether by order of court of competent
jurisdiction, or otherwise, shall in no way affect any of the provisions which shall remain in full
force and effect.
12. MISCELLANEOUS. It is agreed and acknowledged by the parties hereto that
the easements granted herein, the covenants, conditions and restrictions established hereby, and
the rights reserved hereunder by the Declarants have been granted, established and reserved by
each of the City, Opus, Clark and the HRA with respect to that portion of the Redevelopment
64003/00242/297886.4
18
• •
Area owned by such party. Anything herein to the contrary notwithstanding, it is agreed and
acknowledged by the parties that all of the representations, warranties, indemnities, covenants,
agreements and undertakings made by Declarants hereunder are several with respect to City,
Opus, Clark and the HRA and not joint, and all obligations and liabilities of Declarants
hereunder are several with respect to City, Opus, Clark and the HRA, and not joint, all in
accordance with the respective ownership interests of Opus, Clark and the HRA in the
Redevelopment Area. All rights of Declarants hereunder shall be exercised by Grandview.
Failure by any Declarant to respond to a request for any approval or consent required of such
Declarant hereunder within fifteen (15) days of such request accompanied by all supporting
documents and materials required to be furnished to such Declarant shall constitute an approval
or consent of the matter requested and for which required supporting documentation and
materials have been furnished. Any Declarant may transfer the rights and responsibilities
reserved to it hereunder to any other person(s) or legal entity by written instrument recorded in
the Office of the County Recorder (or if any part or all of any Redevelopment Lot subject to the
terms and conditions of this Declaration is registered property, in the office of the Registrar of
Titles) of Hennepin County, Minnesota, but only if such instrument specifically gives the
transferee the right to enforce the provisions of this Declaration. Mere purchase of the
Redevelopment Area or any portion thereof shall confer no right to enforce the provisions of this
Declaration. Wherever a transfer occurs in the ownership of any Redevelopment Lot, the
transferor shall have no further liability for breach of covenant occurring thereafter; provided,
however, and notwithstanding a transfer of any part or all of Lot 2, Lot 5 or Outlot A, the City
shall continue and remain liable for all of the terms, covenants, agreements, conditions,
indemnities and undertakings to be kept, performed and observed by the City under this
Declaration. As provided in Section 3 of this Declaration, the easements, covenants, conditions
and .restrictions herein contained shall create mutual benefits and covenants running with the
land and shall be binding upon any owner or Permittees and their respective heirs, personal
representatives, successors and assigns; provided, however, the obligations of the City under this
Declaration shall be personal to the City and shall not be assigned to or assumed by any other
entity. Declarants agree that the partners, directors, officers, members, managers or shareholders
of the owner of any Redevelopment Lot shall never be personally liable for such judgment.
Subject to the provisions of Section 16 and Section 18 hereof, in the event any, Redevelopment
Lot is subdivided after the date hereof, the benefits and burdens created hereby filiM1 benefit and
be binding upon any tract(s) created by such subdivision, and all references herein to any such
Redevelopment Lot shall mean and refer to the tract(s) created by such subdivision, and all rights
and obligations of the Redevelopment Lot owner shall be deemed to be the rights and obligations
of the owner(s) of any tract created by such subdivision. Nothing contained in this Declaration
shall constitute a waiver by the City of any applicable City code or ordinance restriction or
requirement, except that the City represents and warrants that its specific grants and agreements
herein are authorized.
13. RIGHTS RESERVED. Subject to Section 17, Declarant (and any
Redevelopment Lot owner) retains, reserves and shall continue to enjoy the use of the portion of
the Redevelopment Area owned by Declarant (or any Redevelopment Lot owner) for any and all
purposes which do not interfere in any material respect with or prevent the use by any
Redevelopment Lot owner or its Permittees of the easements granted herein.
64003/00242/297886.4 19
•
14. ENTIRE AGREEMENT; AMENDMENT. This Declaration contains the
entire agreement with respect to the subject matter herein contained and all preliminary
negotiations with respect to the subject matter herein contained are merged into and incorporated
in this Declaration and all prior documents and correspondence with respect to the subject matter
herein contained are superseded and of no further force or effect, including, without limitation,
the Original Declaration. This Declaration may be amended from time to time only by written
instrument executed by each of the entities having an ownership interest in any Redevelopment
Lot subject to the terms and conditions of this Declaration at the time of such amendment, which
instrument shall be recorded in the Office of the County Recorder (or if any part or all of any
Redevelopment Lot subject to the terms and conditions of this Declaration is registered property,
in the office of the Registrar of Titles) of Hennepin County, Minnesota.
15. ESTOPPEL CERTIFICATE. Any owner of a Redevelopment Lot shall, upon
the written request (which shall not be more frequent than four times per calendar year) of any
owner of any other Redevelopment Lot, issue to such other owner or its prospective mortgagee,
tenant or purchaser, an estoppel certificate stating, to the best of the issuer's knowledge:
(a) whether it knows of any default under this Declaration by the requesting
Redevelopment Lot owner, and if there are known defaults, specifying the nature thereof;
(b) whether this Declaration has been assigned, modified or amended in any
way by it and if so, then stating the nature thereof;
(c) whether this Declaration is in full force and effect; and
(d) whether there are any sums due and owing by any owner of any
Redevelopment Lot under this Declaration.
16. FUTURE DEVELOPMENT OF LOT 3 AND LOT 4. Declarants
acknowledge that Clark (or its successors or assigns) may develop Lot 3 and/or Lot 4 as one or
more common interest community projects. As part of any such development, Clark may create
and establish one or more common interest community associations that shall be itsponsible for
the operation, maintenance, repair and replacement of the utilities on Lot 3 and Lot 4, the West
Monument Sign, the improvements within the Landscape and Sidewalk Easement Area and the
exterior building facades, landscaping, surface parking on or appurtenant to Lot 3 and Lot 4 and
all other areas of Lot 3 and Lot 4 which the individual owners of each of the units within such
project have a common right to use and enjoy. If any such association(s) is created and
established, then the owner of Lot 3 and Lot 4 shall notify the owners of the other
Redevelopment Lots, in writing, thereof, and the owner of Lot 3 and Lot 4 shall have the right to
delegate, pursuant to written notice which shall be recorded in the Office of the County Recorder
(or if any part or all of Lot 3 or Lot 4 is registered property, in the office of the Registrar of
Titles) of Hennepin County, Minnesota, to such association(s) the rights, duties and obligations
related to Lot 3 and Lot 4 set forth in Sections 2, 4, 5, 6, 7, 8, 9, 12, 13, and 15 hereof, and the
same shall not be the responsibility of the individual owners of each of the units, if any,
developed by the owner of Lots 3 and 4. It is the intent of Declarants that if the owner of Lots 3
and 4 causes the creation and establishment of one or more associations, then the rights and
64003/00242/297886.4 20
•
obligations contained in this Declaration shall be the rights and obligations of such association(s)
and not the rights and obligations of each of the individual unit owners; provided, however, each
of the individual unit owners shall be subject to any and all use restrictions and easements set
forth in this Declaration. Notwithstanding anything herein to the contrary, in the event of any
conflict between the terms of this Section 16 and any other terms of this Declaration with respect
to the assignment and/or delegation of rights, duties and obligations as contemplated by this
Section 16, the terms of this Section 16 shall control.
17. USE. The Redevelopment Lots shall be used only for lawful purposes in
conformance with all restrictions imposed by all applicable governmental laws, ordinances,
codes, and regulations, and no use or operation shall be made, conducted or permitted on or with
respect to all or any portion of any Redevelopment Lot which is illegal. No Redevelopment Lot
shall be used, directly or indirectly, for general retail purposes, except for incidental retail
purposes conducted in a grocery store or for retail stores within the Office Building and/or the
Senior Center/Library, or for purposes of a cocktail lounge, bar (provided that the sale of alcohol
as part of a restaurant operation shall not be prohibited), disco, bowling alley, pool hall, billiard
parlor, skating rink, roller rink, amusement arcade, indoor children's play or party facility (except
with respect to Lot 2, Lot 5 and Outlot A), athletic field or facility (except with respect to Lot 2,
Lot 5 and Outlot A), adult book store, adult theatre, adult amusement.facility, any facility selling
or displaying pornographic materials (other than a multi-media book store or public library),
closeout or liquidation store, auction house, flea market, educational or training facility, blood
bank, temporary sleeping quarters or temporary lodging, the outdoor housing or raising of
animals, the sale, leasing or storage of automobiles, boats or other vehicles (other than the
parking of automobiles within the separate Redevelopment Lots by the Redevelopment Lot
owners or Permittees thereof), any industrial use, a car wash, a place of worship, off track betting
establishment, or bingo parlor. Notwithstanding the foregoing, sidewalk sales and other
reasonable outside activities shall be permitted within Lot 2 and Outlot A, subject to the
following criteria: (a) such sales shall only be permitted in the months of March through October
and during the hours of 10:00 a.m. until 8:00 p.m. (inclusive of set-up time); (b) no more than
two (2) such sales shall be permitted in any calendar year, (c) no such sale shall be longer than
two (2) weeks in length and each such sale shall be separated by at least a two (2) week interval
during which no such sales shall occur; (d) at no time shall any merchandise fi'otil such sale be
displayed in any Roadway or Driveway or parking lot area; (e) in conducting such a sale, a
reasonable unobstructed walkway at least eight feet (8') in width shall be maintained throughout
the period of the sale to allow unencumbered flow of pedestrian traffic; (f) such sale shall be kept
clean and orderly; (g) no circuses, carnivals, flea market or tent sales shall be permitted; (h) any
merchandise to be displayed and sold and any such sale shall be new.
Anything in this Section 17 to the contrary notwithstanding, (i) during the period that Lot
5 is owned by the HRA, or any other governmental or quasi-governmental entity, Lot 5 shall be
developed in accordance with the terms and conditions of the Redevelopment Contract and used
solely and exclusively as a senior center, community center and/or public library, (ii) Lot 2 shall
be developed in accordance with the terms and conditions of the Redevelopment Contract and
used solely and exclusively as a public square, and (iii) Outlot A shall be developed in
accordance with the terms and conditions of the Redevelopment Contract and maintained for use
by the public as and for a public park.
64003/00242/297886,4 21
• •
18. HRA CONDOMINIUM DEVELOPMENT. Declarants acknowledge that the
HRA anticipates developing Lot 5 as a condominium project. As part of any such condominium
development, it is anticipated that the HRA shall create and establish a condominium association
comprised of Hennepin County, Minnesota, a municipal corporation, as one member, and City or
the HRA, as the other member. Thereafter, it is anticipated that the second floor of the
Library/Senior Center will be conveyed to Hennepin County, Minnesota and that the first floor
of the Library/Senior Center will be conveyed to the City or the HRA. Such condominium
association shall be responsible for the operation, maintenance, repair and replacement of the
utilities on Lot 5 and the exterior building facades, landscaping and all other areas of Lot 5 which
Hennepin County and the City or the HRA, as the individual owners of each of the
condominiums within such condominium project, have a common right to use and enjoy. If any
such condominium association is created and established, then the owner of Lot 5 shall notify
Declarants, in writing, thereof, and the owner of Lot 5 shall have the right to delegate, pursuant
to written notice which shall be recorded in the Office of the County Recorder (or if any part or
all of Lot 5 is registered property, in the office of the Registrar of Titles) of Hennepin County,
Minnesota, to such condominium association the rights, duties and obligations related to Lot 5
set forth in Sections 2, 4, 5, 6, 7, 8, 9, 12, 13, and 15 hereof, and the same shall not be the
responsibility of Hennepin County and the City or the HRA as the owners of each of the
individual condominiums, if any, developed by the HRA as contemplated by this Paragraph 18.
It is the intent of Declarants that if the HRA causes the creation and establishment of a
condominium association, then the rights and obligations contained in this Declaration shall be
the rights and obligations of such condominium association and not the rights and obligations of
each of the individual condominium owners; provided, however, each individual condominium
and condominium owner shall be subject to any and all use restrictions and easements set forth in
this Declaration.
19. NOTICES. All notices and demands herein required shall be in writing and shall
be sent by United States certified mail return receipt requested, personal delivery, overnight
courier (guaranteeing next day delivery) or facsimile:
a. To Opus:
Opus Northwest, L.L.C.
10350 Bren Road West
Minnetonka, Minnesota 55343-9002
Attention: Vice President
Facsimile Number: (612) 656-4529
with a copy to:
Opus, L.L.C.
10350 Bren Road West
Minnetonka, Minnesota 55343-9002
Attention: Legal Department - Brad J. Osmundson
Facsimile Number: (612) 656-4755
64003/00242/297886.4 22
•
and a copy to:
McBride Baker & Coles
One Mid America Plaza
Suite 1000
Oakbrook Terrace, Illinois 60181
Attention: D. Albert Daspin
Facsimile Number: (630) 954-2112
b. To Clark:
R.E.C., Inc.
7500 West 78th Street
Edina, Minnesota 55439
Attention: Ron Clark
Facsimile Number: (612) 947-3030
With a copy to:
Malkerson Gilliland Martin, LLP
Suite 1500 AT&T Tower
901 Marquette Avenue
Minneapolis, Minnesota 55402-3205
Attention: Kathleen M. Martin
Facsimile Number: (612) 344-1414
c. To the BRA:
Edina Housing and Redevelopment Authority
4801 West 50th Street
Edina, Minnesota 55424
Attention: Gordon Hughes
Facsimile Number: (612) 826-0390
With a copy to:
Dorsey & Whitney, LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402-1498
Attention: Jerry Gilligan
Facsimile Number: (612) 340-2644
d. To the Cityf
64003/00242/297886.4
23
City of Edina
4801 West 50th Street
Edina, Minnesota 55424
Attention: Gordon Hughes
Facsimile Number: (612) 826-0390
With a copy to:
Dorsey & Whitney, LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402-1498
Attention: Jerry Gilligan
Facsimile Number: (612) 340-2644
All notices shall be deemed given two (2) business days following deposit in the
United States mail with respect to a certified or registered letter, one (1) business day following
deposit if delivered to an overnight courier guaranteeing next day delivery or on the same day if
sent by personal delivery or telecopy (with proof of transmission). Attorneys for each party shall
be authorized to give notices for such party. 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.
[Signature page follows.]
64003/00242/297886.4 24
•
DARLENE R. VVALLIN
NOTARY PUBLIC-MINNESOT
My Commission Expires Jan. 31, 2O ary Public
Commission Ex
Is ANNAMANAAMANVWVANNAMMAWAM
•
IN WITNESS WHEREOF, Declarants have caused this Declaration to be executed as of
the day and year first above written.
Edina Housing and Redevelopment Authority,
a public body corporate and politic
By: • d2a-f•-,-.‘---C3 fr)t-c-64-e-4
Dennis F. Maetzold
Its: Chairman
B
James B. ovlan
Its: Secretary
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was executed an tiak owledged before me a Notary Public in
and for said County in the State aforesaid on up, (7 , 2001, by Dennis F.
Maetzold and James B. Hovland the Chairman and qcret. 'respectively, of the Edina Housing
and Redevelopment Authority, a public body corporate and politic, on behalf of said authority.
64003/00242/297886.4
25
R.E.C., INC., a Minnesota corporation
By: aJeiee6u.i
Ronald E. Clark
Its: Chief Executive Officer
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was executed
and for said County in the State aforesaid on
the Chief Executive Officer of R.E.C., Inc.
corporation.
and acknowledged before me a Notary Public in
./L./ / , 2001, by Ronald E. Clark,
/a Minnesota corporation, on behalf of said
CHERYL JEANENE WOLD • of,/ 7Z7,//(..' •
• Notary Public
Minnesota Notary Public / f'
My Commission Emirs' .1m. ft 2005 My Commission Expires: /, /1/4.5
64003/00242/297886.4
26
By:
Timothy W. Mumane
Vice President
Heal Estate Development Its:
• •
OPUS NORTHWEST, L.L.C.,
a Delaware limited liability company
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was executed and acknowledged before me a Notary Public in
and for said County in the State aforesaid on , 2001, by
.T\KIDThii[ • Hinatrthe \I't CP (IA: irkit of Opus Northwest, L.L.C., a Delaware
limited liability company, on behalf of said company.
Notary Public
My Commission Expires: R` -CC)
11411141xViMMA.41.4PAIWIWOIAMetwowmn
REBECCA J. BAYERL
NOTARY PUBLIC-MINNESOTA
My Commission Expires Jan. 31, 2005
vx‘A..,,,ovwx,Aoxik,,,wAAA.A.A.AAAAAAAAAAAAA,A,V at
64003/00242/297886.4
Its: Mayor
By:
tary Public
Commission Expi
kiaLet
3l, 2a1.5"-
kw,movonevvyysosmANwmosiwvAmmu
DAR LE N E R. WALLIN
NOTARY PUBLIC-MINNESOT
,#7 My Commission Expires Jan. 31, 2005
• •
CITY OF EDINA, MINNESOTA,
a municipal corporation
By:
af2„._47 /A0c,-75e-cA
Dennis F. Maetzold
ii---- Gordon L. Hughes
Its: City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was executed aw knowledged before me a Notary Public in
and for said County in the State aforesaid o /7 , 2001, by Dennis F.
Maetzold and Gordon L. Hughes, the Mayor an. ity nager, respectively, of the City of
Edina, Minnesota, a municipal corporation, on behalf of said corporation.
64003/00242/297886.4
U.S. BANK NATI
a national bankin
By:
Name: St
AL ASSOCIATION,
sociati
LESLE K. LYNCH
NOTARY PUBUGIANNESCRA
MY COMMISSiON EXPIRES 1414036
WWWAANAWANYNAVAAAANI"Wil
Notary Public
My Commission Expires: ( • I
• •
CONSENT OF MORTGAGEE FOR LOT 1
The undersigned, U.S. Bank National Association, a national banking association, being
the owner and holder of that certain dated , 200_,
recorded in the office of the County Recorder of Hennepin County, Minnesota, as document
number , and filed in the office of the Registrar of Titles of Hennepin County,
Minnesota, as document number , (as now or hereafter increased, amended,
modified, supplemented, consolidated, replaced, substituted, extended and/or renewed, the
"Mortgage") encumbering Lot 1, hereby executes this Agreement to acknowledge its consent to
the terms of the Agreement and to agree that the lien of the Mortgage will be subject to the terms
of the Agreement.
Its: f:I.J-7151--A-74,-t• Qi-et
STATE OF (\nlc(\>n&bark-
COUNTY OF 1-41(\ Ct\
SS.
The foregoing instrument was executed and acknowledged before me a Notary Public in
and for rslaid County in theA isjp aforesaid on 3-1,11.1A n , 2001, by ory-f riA K Abir6 the of U.S. Bank National Association, a
national *banking association, on behalf of said association.
AAAAAAAMAMMAAAAAMAAAAAAAAMAR
64003/00242/297886A 29
By:
Name:
Its: it: t_o_
ublic
y Commission Expires:
ti • •
CONSENT OF MORTGAGEE FOR LOT 3 AND LOT 4
The undersigned, Firstar Bank, National Association, a national banking association,
being the owner and holder of that certain Mortgage dated September 13, 2000, recorded in the
office of the County Recorder of Hennepin County, Minnesota, as document number 7360337,
and filed in the office of the Registrar of Titles of Hennepin County, Minnesota, as document
number 3317701, (as now or hereafter increased, amended, modified, supplemented,
consolidated, replaced, substituted, extended and/or renewed, the "Mortgage") encumbering Lot
3 and Lot 4, hereby executes this Agreement to acknowledge its consent to the terms of the
Agreement and to agree that the lien of the Mortgage will be subject to the terms of the
Agreement.
FIRSTAR BANK, NATIONAL ASSOCIATION,
a national banking association
SS.
The foregoing instrument was executed and acknowledged before me a Notary Public in
an for said county in tilig Stag aforiesai on :ja/y , 2001, by
6 j - /49/ the lb()f lee Firstar Bank, National Association, a
national banking association, on behalf of said association.
JONI HANSON RUIZ
Notary Public
Minnesota
My Commission Expires Jan. 31. 2005
64003/00242/297886.4
4 • •
EXHIBIT B
Legal Description of Redevelopment Lots
Lot 1:
Lot 1, Block 1, Grandview Square, Hennepin County, Minnesota, according to the
recorded plat thereof.
Lot 2:
Lot 2, Block 1, Grandview Square, Hennepin County, Minnesota, according to the
recorded plat thereof.
Lot 3:
Lot 3, Block 1, Grandview Square, Hennepin County, Minnesota, according to the
recorded plat thereof.
Lot 4:
Lot 2, Block 1, Grandview Square 2nd Addition, Hennepin County, Minnesota, according
to the recorded plat thereof.
Lot 5:
Lot 1, Block 1, Grandview Square 2nd Addition, Hennepin County, Minnesota, according
to the recorded plat thereof.
Outlot A:
Outlot A, Grandview Square 2nd Addition, Hennepin County, Minnesota,i'a:61aording to the
recorded plat thereof.
64003/00242/297886.4 B-1
• •
EXHIBIT C
Legal Description for Sign Easement Areas
Northerly Monument Signage Easement
An easement over, under and across that part of the northwesterly 20.00 feet of Lot 1,
Block 1, GRANDVIEW SQUARE 2ND ADDITION, according to the recorded plat thereof,
Hennepin County, Minnesota, lying southwesterly of a line 51.11 feet southwesterly of and
parallel with the most northeasterly line of said Lot 1, and lying northeasterly of a line 71.11 feet
southwesterly of and parallel with said most northeasterly line of Lot 1.
Northerly Marketing Signage Easement
An easement over, under and across that part of the northwesterly 20.00 feet of Lot 1,
Block 1, GRANDVIEW SQUARE 2ND ADDITION, according to the recorded plat thereof,
Hennepin County, Minnesota, lying southwesterly of a line 71.11 feet southwesterly of and
parallel with the most northeasterly line of said Lot 1, and lying northeasterly of a line 91.11 feet
southwesterly of and parallel with said most northeasterly line of Lot 1.
Westerly Monument Signage Easement
An easement over, under and across that part of Lot 1, Block 1, GRANDVIEW
SQUARE 2ND ADDITION, according to the recorded plat thereof, Hennepin County,
Minnesota, lying northerly of a line 68.00 feet north of and parallel with the south line of said
Lot 1, and lying westerly of a line 20.00 feet easterly of and parallel with the west line of said
Lot 1 and its northerly extension.
64003/00242/297886.4
C-1
• •
EXHIBIT D
Legal Description for Landscaping and Easement Area
That part of Outlot A, GRANDVIEW SQUARE 2ND ADDITION, according to the recorded plat
thereof, Hennepin County, Minnesota, described as:
The northerly, northeasterly and easterly 20.00 feet of said Outlot A, except the
southerly 117.72 feet thereof, and the southerly 117.72 feet of the easterly 43.00
feet of said Outlot A.
64003/00242/297886.4 D-1
MONUMENT ASEMENT AREA
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DETAIL B Etl5r2E
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SIGN EASEMENT AREA \. .
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ha,RfITHMICE OF Ml STOKE PYLONS ANO RAIUNGS. INCLLIDNO LLONLIMENT PLAOLIES WINN THE $TCAE PL1014S IS NE RE:P*14518E1TV OF LOT 5 OWNER.
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