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II I
III
Doc No T5031979
Certified, filed and/or recorded on
1/10/13 3:10 PM
Office of the Registrar of Titles
Hennepin County, Minnesota
Rachel Smith, Acting Registrar of Titles
Mark V. Chapin, County Auditor and Treasurer
Deputy 55
Doc Name: Easement
Document Recording Fee
Attested Copy or Duplicate
Original
Document Total
sing Certs
136004
Pkg ID 907597C
$46.00
$2.00
$48.00
New Certs
This cover sheet is now a permanent part of the recorded document.
EASEMENT AGREEMENT
between
THE CITY OF EDINA, MINNESOTA
and
SOUTHDALE LIMITED PARTNERSHIP
for construction, operation, maintenance and use of
WATER TREATMENT IMPROVEMENTS
THIS EASEMENT AGREEMENT (this "Agreement"), made as of this /8 day of
rg 4.— 2012, by and between the CITY OF EDINA, MINNESOTA, a Minnesota statutory
city (hereinafter the "City") and SOUTHDALE LIMITED PARTNERSHIP, a Delaware limited
partnership (hereinafter, "SLP").
WITNESSETH:
WHEREAS, SLP is the owner of the real property situated in Hennepin County,
Minnesota, legally described on Exhibit A attached hereto (the "Mall Property"); SLP, in its
capacity as the owner of the Mall Property, and each successor owner of the Mall Property, is
referred to herein as the "Redeveloper"; and
WHEREAS, the Housing and Redevelopment Authority of the City of Edina, Minnesota
(the "Authority), the City, and the Redeveloper have entered into the Southdale Center
Redevelopment Agreement (the "Contract") dated April 18, 2012, a memorandum of which will
be recorded in the real estate records of Hennepin County, Minnesota; and
WHEREAS, the Redeveloper has agreed to provide the City with an easement for the
Water Treatment Improvements (hereinafter defined) to be located on the Mall Property; and
WHEREAS, the City and the Redeveloper deem it to be in their vital interest and in the
best interest of the City, the Authority and the State of Minnesota and in furtherance of the
economic development and redevelopment plan for the Southdale Center (the "Mall") to enter
into this Agreement with respect to certain lands included within the Mall Property;
NOW THEREFORE, in consideration of the premises and the mutual agreements
herein contained and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
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ARTICLE I
GRANT OF EASEMENT
Section 1.1 Easement Premises; Access The Redeveloper hereby grants and conveys
to the City a non-exclusive permanent easement (the "Easement") for the purpose described in
Section 1.2 below, over and across those portions of the Mall Property described and depicted on
Exhibit B, which are situated in the City of Edina, County of Hennepin, State of Minnesota (the
"Easement Premises"). Redeveloper hereby grants to the City a non-exclusive, permanent
easement for vehicular and pedestrian ingress to and egress from the Easement Premises over
those areas designated as "[access]" on Exhibit B. Redeveloper shall have the right from time to
time and without the consent of the City, to modify the route of the ingress and egress easement
granted herein, provided that any such modification shall provide the City with reasonable access
to the Easement Premises and the City will be provided with reasonable prior written notice of
such modification. The City will execute such amendments to this Agreement in recordable form
as may be reasonably requested by Redeveloper to show the modified routes of ingress and
egress to the Easement Premises, however execution of such instruments is not necessary to
effect the modifications described in this Section 1.1.
Section 1.2 Easement Purpose - The Easement is granted for the purpose of
constructing, maintaining, and operating, on, within and under the Easement Premises, a ground
water treatment plant and related facilities and improvements, including, but not limited to,
driveways, curbs, landscaping, utility lines, and appurtenances thereto (the "Water Treatment
Improvements") and for no other purpose.
Section 1.3 Releases and Reservations
(a) The Redeveloper reserves in, over, under, above, across and upon the
Easement Premises:
(i) the right of support for all adjoining land and improvements;
(ii) the right to bring utilities, materials, and other facilities through the
Easement Premises and
(iii) the right of access for ingress and egress, and the right of access
for maintenance, repair, replacement and removal of utilities, materials and other
facilities of the Redeveloper located within the Easement Premises from time to
time.
(b) Upon request by the Redeveloper, the City must execute and deliver
instruments to evidence the Redeveloper's reservation of rights under section (a),
however execution of such instruments is not necessary to effect the reservations in this
Section.
(c) All provisions in this Section 1.3 are subject to any planned unit
development agreement affecting the Mall Property, and applicable City Code.
Section 1.4 Traffic Regulations and Enforcement — All vehicular and pedestrian traffic
on the Easement Premises shall be subject to applicable local, state and federal laws.
ARTICLE II
UTILITIES
Section 2.1 Utility Charges - The City will pay, or cause to be paid, when the same
become due, all charges for water, sewer usage, gas, electricity, power, heat, telephone, or other
communications service and any and all other utility or similar services used, rendered, supplied,
or consumed in, upon, at, from, or in connection with the Easement Premises, or any part thereof.
The City will be responsible for the cost of any utility relocations and submetering expenses
incurred in connection with the construction of the Water Treatment Improvements.
ARTICLE III
[INTENTIONALLY OMITTED.]
ARTICLE IV
USE OF EASEMENT PREMISES
Section 4.1 Construction of Water Treatment Improvements —
The City plans to build, construct, modify, alter, or reconstruct, on and under the
Easement Premises, the Water Treatment Improvements. The Water Treatment Improvements
will include a single, fully-enclosed water treatment plant with a footprint of no more than 75
feet by 75 feet (the "Building") plus a below ground recycle basin measuring no more than 65
feet by 65 feet. The Redeveloper will have the right to review and approve the exterior building
design (including building materials), building location, building height, and site plans
(including, without limitation, parking, ancillary structures, fencing, barricades, screens and
landscaping). The City will submit any architectural drawings and plans ("Architect
Documents") and any site plans and drawings ("Site Plans") to the Redeveloper as soon as
reasonably possible. The Redeveloper will be deemed to have approved the Architect
Documents and the Site Plans unless the Redeveloper delivers written objections to the City
within thirty (30) business days after the Redeveloper's receipt thereof. If the Redeveloper
objects, then the City shall submit revised Architect Documents and/or Site Plans to the
Redeveloper within thirty (30) business days after receipt of the Redeveloper's objection(s), and
the Redeveloper shall approve or disapprove the revised Architect Documents and/or Site Plans
in accordance with the same procedures set forth in this Section 4.1.
The Water Treatment Improvements shall be located only as designated on the Site Plans
approved (or deemed approved as provided above) by Redeveloper. While the City shall have
no obligation to commence construction of the Water Treatment Improvements, once the City
has commenced construction of the Water Treatment Improvements, the City must complete the
Water Treatment Improvements within a reasonable time. All of the Water Treatment
Improvement work must conform to all applicable law, the building maintenance standards of
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Southdale Center and the requirements of any reciprocal or operating easement agreement or
planned unit development agreement affecting the Mall Property from time to. time.
The City will be the owner of the Water Treatment Improvements. The City, its
employees, agents, contractors and subcontractors shall have the right to enter upon the
Easement Premises as may be necessary and, upon the prior written consent of the Redeveloper
for the purposes of staging for construction of the Water Treatment Improvements, upon portions
of the Mall Property adjoining the Easement Premises, with such equipment, materials, supplies
and workers as is necessary for the purposing of constructing, installing, reconstructing,
reinstalling, altering, repairing and maintaining the Water Treatment Improvements. The City
will promptly repair any damage to the Mall Property (including all improvements, roadways,
parking areas and landscaping) caused by constructing, installing, reconstructing, reinstalling,
altering, repairing or maintaining of the Water Treatment Improvements. Notwithstanding
anything to the contrary provided herein, the City shall not construct the Water Treatment
Improvements and shall not modify, alter, or reconstruct, on and under the Easement Premises,
except in the event of an emergency affecting human health or safety, during the months of
October, November, December or January.
Section 4.2 Liens Neither the City nor the Redeveloper will permit any mechanic's
or materialmen's liens to stand against the Easement Premises or the Mall Property on account of
improvements authorized by such party, including the Minimum Improvements and the Water
Treatment Improvements, provided, however, that either party may in good faith and at its sole
cost and expense contest any such lien in which event such lien may remain undischarged and
unsatisfied during the contest and any appeal, provided that the contesting party files a bond or
deposits cash or other reasonable security in the amount of such lien with the court or with a
mortgagee of the premises encumbered by such lien to secure the payment of such lien if finally
determined to be valid.
Section 4.3 Legal and Regulatory Compliance; Control of Premises - The City will
operate and maintain the Water Treatment Improvements on the Easement Premises for the
benefit of the public in accordance with all applicable governmental laws, ordinances,
regulations and orders pertaining to the Water Treatment Improvements generally from time to
time but only for the purposes and uses described in this Agreement. Subject only to the express
provisions of this Agreement and any planned unit development agreement affecting the mail
Property, the City will have full authority and control over the management, operation, and use
of the Easement Premises and may operate the Water Treatment Improvements in any manner
the City deems appropriate and/or necessary. The City will be obligated to conform the
operation and maintenance of the Water Treatment Improvements and all other facilities located
on the Easement Premises to all applicable law, the building maintenance standards of Southdale
Center and the requirements of any reciprocal or operating easement agreement or planned unit
development agreement affecting the Mall Property from time to time. The City will maintain
the Water Treatment Improvements in a first class condition, and will not (i) create obnoxious
odors, excessive noise or air discharges (ii) store any materials outside of the Building or
(iii) permit the overnight parking of vehicles or equipment on the Easement Premises.
Section 4.4 Hours of Operation, Rules and Regulations - The City may establish,
subject to the terms of any and all operations and reciprocal easement agreements affecting the
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Mall Property, reasonable hours of operation, rules, and regulations as it deems advisable,
necessary, or appropriate for the safe, efficient, and orderly use of the Water Treatment
Improvements.
Section 4.5 Contractors - The City may engage such employees, agents, or
independent contractors as it may deem advisable to conduct the management, repair,
maintenance, and operation of the Easement Premises from time to time. The City may make all
decisions and execute all agreements, in its sole discretion, with respect to the Water Treatment
Improvements so long as such decisions and agreements do not violate any provisions.of this
Agreement or the Contract during the term thereof.
Section 4.6 No Fees - The Easement Premises may be used by the City for the
purposes described herein without fee or charge to the City.
Section 4.7 No Interference — The Redeveloper shall take reasonable steps to avoid
materially interfering with the use, occupancy and operation of the Easement Premises or Water
Treatment Improvements by the City, its employees and agents.
Section 4.8 No Waste or. Damage - Neither the City nor the Redeveloper may
knowingly or willfully commit or suffer to be committed any waste or damage or nuisance in or
upon the Easement Premises, or any disfigurement or injury to the Water Treatment
Improvements. Usual and normal wear and tear, damage by the elements, unavoidable casualty
or depreciation and diminution over time will not be considered "waste," "nuisance," "damage,
"disfigurement," or "injury." The City shall maintain the Easement Premises in a first class
manner in accordance with Section 4.3 and the standards of maintenance applicable to the Mall
Property generally.
Section 4.9 Signage - No signage shall be placed on the Easement Premises or Water
Treatment Improvements unless constructed solely for the purpose of identifying the City and
the Water Treatment Improvements. Redeveloper will have the right to approve, in its sole and
absolute discretion, all other signage on the Easement Premises or Water Treatment
Improvements.
ARTICLE V
INDEMNIFICATION, INSURANCE
Section 5.1 Property Insurance - The City, at its sole cost and expense, must keep all
Water Treatment Improvements, and all alterations, extensions, and improvements thereto and
replacements thereof, insured against loss or damage by fire and against those casualties covered
by extended coverage insurance and against vandalism and malicious mischief and against such
other risks, of a similar or dissimilar nature, as are customarily covered with respect to buildings
and improvements similar in construction, general location, use, and occupancy to the Water
Treatment Improvements. The City hereby releases and waives for itself, and any party that may
claim by, through or under it (by way of subrogation or otherwise), the Redeveloper from any
liability for any loss or damage to the Water Treatment Improvements, which loss or damage is
of the type covered or coverable by the insurance required to be maintained under this Section
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5.1, irrespective of the amount of such insurance required or actually carried, including any
deductible or self insurance reserve.
Section 5.2 Personal Property - All property of every kind and character which the
City may keep or store in, at, upon, or about the Easement Premises will be kept and stored at the
sole risk, cost, and expense of the City.
Section 5.3 Indemnification by the City - Except to the extent caused by the willful
misconduct or gross negligence of the Redeveloper, and its employees or agents, the City hereby
covenants and agrees to assume and to indemnify and save harmless the Redeveloper and its
officers, members, partners, parents, subsidiaries, employees and agents (collectively, the
"Redeveloper Parties"), of, from, and against any and all claims, demands, actions, damages,
costs, expenses, attorneys' fees, and liability in connection with the loss of life, personal injury
and/or damage to property arising from or out of any occurrence in, at, upon, or from the
Easement Premises or the Water Treatment Improvements. This provision will survive any
termination of this Agreement.
Section 5.4 Liability Insurance - The City will procure and maintain continuously in
effect (or cause the same to occur), liability policies of insurance or self-insurance of the kind
and minimum amounts, as are customarily maintained with respect to the Water Treatment
Improvements.
Section 5.5 General Insurance Requirement - All insurance required in this Agreement
must be placed with financially sound and reputable insurers rated by Best's Rating Guide not
less than A--/X and licensed to transact business in the State of Minnesota. The insurance
coverage herein required may be provided by a blanket insurance policy or policies.
Section 5.6 Environmental Indemnification — The City further agrees that the
Redeveloper will bear no responsibility or liability to the City for any Hazardous Material
identified within the Easement Premises which are located thereon prior to the date of
conveyance of this easement. The City agrees to indemnify and hold harmless the Redeveloper
Parties against all claims, costs, and liabilities arising out of the presence or Release of any
Hazardous Material on the Easement Premises due to the City's use, development or operation of
the Easement Premises. The City further agrees to indemnify the Redeveloper Parties against
any Remediation Costs incurred by the Redeveloper Parties to comply with applicable
Environmental Laws within the Easement Premises due to the City's use, development or
operation of the Easement Premises. In the event that a Redeveloper Party is named as a
defendant in any legal or administrative action alleging liability against the Redeveloper due to
the presence'of any Hazardous Material on or about the Easement Premises in violation of any
Environmental Law, the City shall indemnify and hold the Redeveloper harmless from any
judgments, damages and liabilities of any kind deteiinined in such legal or administrative action
to be due and owing by the Redeveloper. If the City fails to defend the Redeveloper, the
Redeveloper shall have the right, but not the obligation, to undertake the defense of, and to
compromise or settle the claim or other matter, for the account of and at the risk of the City. The
indemnification provided in this paragraph, including if the City fails to defend attorneys' fees
incurred by the Redeveloper related to defense of claims is limited to the monetary limits on
liability provided in Minnesota Statutes, chapter 466 and, further, nothing in this Agreement
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shall be construed to waive the immunities or liability limits provided in Minnesota Statutes
chapter 466 or other applicable state or federal law. In the event that the City fails to defend, all
attorneys' fees incurred by the Redeveloper related to such defense shall be paid for by the City.
This provision will survive any termination of this Agreement.
ARTICLE VI
ASSIGNMENT, SUBORDINATION
Section 6.1 Assignment by the City - The City may not assign or transfer all or a
portion of its interest under this Agreement without the prior written consent of the Redeveloper,
which consent may be withheld in the sole and absolute discretion of Redeveloper, and the City
shall not permit the use or occupancy of the Easement Premises or the Water Treatment
Improvements by any third party.
Section 6.2 Assignment by the Redeveloper - The City will recognize and accept any
successors or assigns of the Redeveloper. Any successor or assignee to that portion of the Mall
Property which includes the Easement Premises shall succeed to the interest of the Redeveloper
herein. Each party who becomes Redeveloper hereunder shall be liable for the performance of
only those covenants, obligations and undertakings hereunder that accrue during its period of
ownership of the Mall Property.
ARTICLE VII
MAINTENANCE OF THE EASEMENT PREMISES
Section 7.1 Maintenance - Prior to the Transfer Date (as hereinafter defined), the
Redeveloper, at its cost and expense, must maintain all of the Easement Premises in good
condition and repair. It is distinctly understood that the preceding does not require maintenance
and/or repair of the Easement Premises in perfect condition or in a condition equal to new at all
times, but the Redeveloper must keep and maintain the same (a) in such condition as to
minimize, so far as is practicable, by reasonable care, maintenance, replacement, and repair, the
effects of use, decay, injury, and destruction of the Easement Premises or any part thereof, and
(b) in accordance with Section 4.3 and the standards required of the Mall Property generally.
The "Transfer Date" is the date identified by the City in a written notice to the Redeveloper after
which date the City will assume the Redeveloper's obligations under this Section 7.1 in
connection with the City's election to construct the Water Treatment Improvements. The City is
under no obligation whatsoever to either or both (i) construct the Water Treatment
Improvements; or (ii) assume the Redeveloper's obligations under this section. However, if the
City elects to build the Water Treatment Improvements, the City must, prior to the date on which
the City begins construction of the Water Treatment Improvements, assume the Redeveloper's
obligations under this section and thereafter maintain the Easement Premises and the Water
Treatment Improvements in the condition required for maintenance of the Easement Premises
pursuant to this Section 7.1.
Section 7.2 Delegation of Maintenance Obligations. The City may delegate to one or
more contractors or agents responsibility for maintaining the Easement Premises and Water
7
Treatment Improvements, but such delegation shall not relieve or release the City from its
obligations hereunder.
Section 7.3 No Obligation of the Redeveloper to Repair or Maintain The Redeveloper
will have no obligation of any kind, expressed or implied, to repair, rebuild, restore, reconstruct,
modify, alter, replace, or maintain the Water Treatment Improvements or any part thereof.
Section 7.4 Destruction - In the event that the Water Treatment Improvements on the
Easement Premises are damaged or destroyed by fire or other casualty, the City may, at its sole
option, repair, rebuild or reconstruct the Water Treatment Improvements, provided, however, that
if the City elects to repair, rebuild or reconstruct the Water Treatment Improvements, such work
shall be subject to approval by Redeveloper pursuant to Section 4.1 as though such work were
the initial construction of the Water Treatment Improvements, and provided further that if the
City will not elect within sixty (60) days to repair or rebuild the Water Treatment Improvements,
the City shall promptly thereafter clean up the portions of the Building and the Easement
Premises affected by such casualty event, remove debris, building frameworks and outer shells
therefrom and do and perform at the City's own cost and expense all that work that will restore
the Easement Premises to a safe and clean condition, and so that the Easement Premises will
appear visually pleasing and attractive to the persons using the Mall Property.
ARTICLE VIII
EMINENT DOMAIN
Section 8.1 Condemnation - If the Easement Premises are taken, acquired, or
condemned by eminent domain for any public or quasi-public use or purpose, then the
Redeveloper, at any time within sixty (60) days next after it has actual notice of such proposed
acquisition or condemnation, will have the option to (i) cancel and terminate this Agreement as
of the date of vesting of title in the condemning authority of the acquired or condemned property,
or to (ii) continue this Agreement as to the remaining part of the Easement Premises not so taken
or threatened to be taken. The Redeveloper may exercise one of the foregoing options by giving
the City written notice of the exercise thereof within the foregoing sixty (60) days' period, and in
the event Redeveloper fails or refuses, for any reason, so to furnish the City written notice of the
exercise thereof within the time and in the manner herein provided, then this Agreement will
continue in full force and effect under option (ii) above.
ARTICLE IX
DEFAULT AND TERMINATION
Section 9.1 Default by the City If the City fails to perform any of its obligations under
this Agreement, and fails to cure such default after thirty (30) days' written notice of such
default, or, if such default cannot reasonably be cured within such thirty (30) days, fails to
commence curative action and thereafter diligently complete the same, then in such case the
Redeveloper may declare the termination of this Agreement and re-enter and take possession of
the Easement Premises, or cure such default on behalf of the City and the City consents to pay to
the Redeveloper any and all such sums as are due and owing on account thereof The
Redeveloper will submit a statement to the City evidencing the costs incurred to cure such
default. In the event of termination, the City agrees to execute and deliver to the. Redeveloper a
written termination of this Agreement in recordable form, which termination agreement will be
filed in the official records of Hennepin County, Minnesota.
Section 92 Default by the Redeveloper - If the Redeveloper fails to perform any of its
obligations under this Agreement, and fails to cure such default after thirty (30) days' written
notice of such default or, if such default cannot reasonably be cured within such thirty (30) days,
fails to commence curative action and thereafter diligently complete the same, then in such case,
the City may cure such default on behalf of the Redeveloper and the Redeveloper consents to pay
to the City any and all such sums as are due and owing on account thereof. The City will submit
a statement to the Redeveloper evidencing the costs incurred to cure such default. If the
Redeveloper has failed to make payment in accordance with the statement within sixty (60) days
after receipt thereof, the City will have the right to assess the costs incurred by the City to all or
any portion of the Mall Property as a service charge pursuant to Minnesota Statutes, Section
429.101., or any successor statute.
ARTICLE X
SURRENDER
Section 10.1 Surrender - Upon any termination of this Agreement, the City will
surrender the Easement Premises to the Redeveloper, including without limitation any and all
buildings, improvements, and fixtures then upon the Easement Premises, and all buildings,
improvements, structures, fixtures, alterations, and other additions which may be made or
installed by or at the instance of either party hereto, in, upon, or about the Easement Premises
will become the property of the Redeveloper upon any termination and will be surrendered to the
Redeveloper by the City without any payment therefor.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Waiver - The waiver by any party hereto of any breach or default of any
provisions anywhere contained in this Agreement does not constitute a waiver of any subsequent
breach or default thereof. No provision of this Agreement is waived unless such waiver is in
writing and signed by the party charged with any such waiver.
Section 11.2 Amendments; Governing Law - Except as otherwise herein provided, no
subsequent alteration, amendment, change, waiver, discharge, termination, deletion, or addition
to this Agreement will be binding upon either party unless in writing and signed by both parties.
The Redeveloper and the City agree to join in and consent to amendments to this Agreement, to
the extent such amendments are reasonably required by the Redeveloper's lenders; provided,
however, that the Redeveloper and the City will not be required to enter into such amendments if
the amendments do not adequately protect the legitimate interest and security of the Housing and
Redevelopment Authority of the City of Edina or the City. This Agreement shall be governed by
the laws of the State of Minnesota.
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Section 11.3 Joinder; Permitted Encumbrance - Except for the Consent and
Subordination attached hereto, if any, this Agreement does not require the joinder or approval of
any other person and each of the parties respectfully has the full, unrestricted and exclusive legal
right and power to enter into this Agreement for the term and upon the provisions herein recited
and for the use and purposes hereinabove set forth. This Agreement will constitute a permitted
encumbrance under any loan agreement heretofore or hereafter entered into between the
Redeveloper and any construction or permanent lender.
Section 11.4 Not a Public Dedication. Nothing herein contained shall be deemed to be
a gift or dedication of any portion of the Mall Property or any portion thereof to the general
public, or for use by members of the general public whatsoever. No right, privileges or
immunities of any party hereto shall inure to the benefit of any third-party nor shall any
third-party be deemed to be a beneficiary of any of the provisions contained herein.
Section 11.5 Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand or other communication under this Agreement by any party to any
other shall be sufficiently given or delivered if it is dispatched by registered or certified mail,
postage prepaid, return receipt requested, or delivered personally, and in the case of the
Redeveloper, is addressed to or delivered personally to the Redeveloper at:
Southdale Limited Partnership
Simon Property Group
Development Operations
225 West Washington Street
Indianapolis, IN 46204
with a copy to:
Stefanie N. Galey
Faegre Baker Daniels LLP
90 South Seventh. Street, Suite 2200
Minneapolis, MN 55402
In the case of the City, is addressed to or delivered personally to the City at:
with a copy to:
and
City of Edina
Attention: City Manager
4801 W. 50th St.
Edina, MN 55424
Jay R. Lindgren
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402
Roger N. Knutson
Campbell Knutson
1380 Corporate Center Curve, Suite 317
10
Eagan, MN 55121
or at such other address with respect to any such party as that party may, from time to time,
designate in writing and forward to the other, as provided in this section.
Section 11.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute one and the same instrument.
Section 11.7 Law Governing. This Agreement will be governed and construed in
accordance with the laws of the State of Minnesota.
Section 11.8 Running with the Land - The obligations under this Agreement shall be
binding upon and inure to the benefit of the parties hereto and each of their permitted successors
and assigns to the City and the Redeveloper owning the land subject to this Agreement from time
to time and run with the land.
[Signature pages follow]
11
CITY OF ED
Minnesota s
ESOTA, a
B
Its: Mayor
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
12
By: SIMON-MILLS III, LLC, a
Delaware limited liability company,
its Manager
Y:
Its: „.2/0 fora amt. oroG vip•
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
SOUTHDALE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: SOUTHDALE L.L.C., a Delaware
limited liability company, its general
partner
[Signature Page to Easement Agreement]
STATE OF MINNESOTA
) ss.
COUNTY OF HENNEPIN
,
The foregoing instrument was acknowledged before me this Lf- day of
Ppk- amt & , 2012, by James Hovland and Scott Neal, the Mayor and City Manager,
respectively, of the CITY OF EDINA, MINNESOTA, a Minnesota statutory city, on behalf of
the city.
My. Commission Expires
DEBRA MikNGE14
ILL Novo N ial- c
i;
.4*,:ssikiW; ;IA cormT451°"Ev
tm
es
trs3
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14
ZAIDI AO A
STATE OF 14141,1NESOTA
COUNTY OF721/4/e/0/0
) ss
The foregoing instrument was acknowledged before me this /today of odQ11,3 -
2012, by 4AV; • 0.7)A7TLs , the g.,Ne...om16- V P of Simon-Mills III, LLC, the
Manager of Southdale, L.L.C., the General Partner of Southdale Limited Partnership, a Delaware
limited partnership on behalf of said partnership.
Notary Public
My Commission Expires
This Instrument was drafted by
and when recorded should be returned to:
Dorsey & Whitney LLP (AVD)
Suite 1500
50 South Sixth Street
Minneapolis, Minnesota 55402
CARLA J. ARNOLD
Notary Public, State of Indiana
Marlon County
My Commission Expires
May 14, 2015
.[Signature Page to Easement Agreement]
EXHIBIT A
LEGAL DESCRIPTION OF MALL PROPERTY
Tracts A & B, Registered Land Survey No. 1815, Hennepin County, Minnesota
Together with the rights, privileges and easements granted and reserved to L.S. Donaldson
Company (now merged into Allied Central Stores, Inc., a Missouri corporation) by virtue of
those certain Documents dated as of April 1, 1955 by and between Southdale Center, Inc., L.S.
Donaldson Company and others entitiled "Acquisition and Construction Agreement" and
"Operating Agreement" filed on December 22, 1956 as Doc No 519481 respecting the premises
described in said Agreements now designated as Tracts E, F,G, H, I, J, K, L and M, Registered
Land Survey No.432 and Tracts C, D, E, G and H, Registered Land Survey No. 629, and all
rights, title and interest of party of the first part in and to the aforesaid acquisition and
Construction and Operating Agreement as shown in deed Doc No 524648: (now over that part
of above land embraced within Tracts A & B, RLS No. 1642)
Subject to an easement for ingress and egress over and along Tract G, Registered Land Survey
No. 432, as shown in deed Doc No 462685; (now over that part of above Tract A, embraced with
Tract G, RLS No. 432)
Subject to non-exclusive easements as appurtenances to and for the benefit of Tracts A and C,
Registered Land Survey No. 1284 to install, maintain, repair, replace and use underground utility
facilities now across, through and under above Tracts, as shown in deed Doc No 949274; (now
over all of above land, except that part embraced within Tracts A & B, RLS No. 1642)
Together with a non-exclusive perpetual right of way for street purposes as appurtenant to said
Tracts A & B, Registered Land Survey No. 1642 over a parcel of land abutting on said Tract
which parcel is comprised of Tracts D, S and A, Registered Land Survey No. 629, and that
portion of York Avenue South as now platted, lying between said Tracts D and A, Registered
Land Survey No. 629, in the event said portion of said York Avenue South last described shall
hereafter be vacated as a public street, all according to the teinis and conditions of that certain
Doc entitled Easement agreement dated as of February 25, 1957, filed on February 27, 1957 as
Doc No 524085 as shown in deed Doc No 524648; (now over that part of above land embraced
within Tracts A & B, RLS No. 1642)
Subject to an exclusive easement as an appurtenance to and for the benefit of Tract C, Registered
Land Survey No. 1284 to install, maintain, repair and replace underground gasoline tanks in all
those parts of Tract B, said Registered Land Survey No. 1284 which lie within 50 feet of said
Tract C, Registered Land Survey No. 1284, as shown in deed Doc No 949274; (now over that
part of above land embraced within Tract G, RLS No. 629 and Tract B, RLS No. 1641)
Subject to restriction as contained in deed Doc No 462686; (now over that part of above land
embraced within Tract B, RLS No. 1641)
Exhibit A-1
Subject to a perpetual right of way for street purposes as shown in deed Doc No 463070; (Now
over that part of above land embraced within Tract B, RLS No. 1641)
Subject to non-exclusive easement as appurtenances to and for the benefit of Tracts A and C,
Registered Land Survey No. 1284 for ingress to and egress therefrom and including the right to
construct, maintain, repair and replace roadways thereupon,-now over and across above tract, as
shown in deed Doc No 949274; (now over that part of above land embraced within Tract B, RLS
No. 1641)
Subject to a permanent easement for signal purposes now over part of above tract, as shown in
deed Doc No 1394399; (now over that part of above land embraced within Tract B, 1641)
Exhibit A-2
EXHIBIT B
DESCRIPTION AND DEPICTION OF EASEMENT PREMISES
A permanent easement over that part of Tract A, Registered Land Survey No. 1815, as is on file
and of record in the office of the County Recorder, Hennepin County, Minnesota, described as
follows:
Beginning at the northwest corner of Tract F, Registered Land Survey Number 432, as is on file
and of record in the office of the County Recorder, Hennepin County, Minnesota; thence South
89 degrees 56 minutes 00 seconds East, assumed bearing along the north line of said Tract F,
75.00 feet to the northeast corner of said Tract F; thence continuing South 89 degrees 56
minutes 00 seconds East, 31.46 feet; thence North 16 degrees 53 minutes 51 seconds West,
122.47 feet; thence northwesterly and southwesterly, 158.06 feet along a tangential curve,
concave to the south, having a radius of 55.50 feet and a central angle of 163 degrees 10 minutes
09 seconds to the easterly line of Tract C, Registered Land Survey Number 1641, as is on file
and of record in the office of the County Recorder, Hennepin County, Minnesota; thence South
00 degrees 04 minutes 00 seconds East, tangent to the last described curve, along the easterly
line of said Tract C, 155.82 feet to the north line of Tract G, said Registered Land Survey
Number 432; thence South 89 degrees 56 minutes 00 seconds East, along the north line of said
Tract G, 37.50 feet to the westerly line of said Tract F; thence North 00 degrees 04 minutes 00
seconds East, along the westerly line of said Tract F, 55.00 feet to the point of beginning.
B-1
WSB Project No. 1686-280 Date:01104(12 Proposed Water Treatment Plant
Parcel Sketch
••••=r
.,
11114,1,1%IrjaZ City of Edina, Minnesota
CONSENT AND SUBORDINATION
The undersigned, WELLS FARGO BANK, N.A., as TRUSTEE FOR THE
REGISTERED HOLDERS OF BANC OF AMERICA COMMERCIAL MORTGAGE INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-1 (together
with its successors and/or assigns, the "Lender"), acting through its Master Servicer, Bank of
America, N.A., a national banking association (the "Master Servicer"), as holder of (i) that
certain Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing,
dated as of March 7, 2005, and recorded March 15, 2005, as Document No. 4089179 in the
Office of the Registrar of Titles of Hennepin County, Minnesota, as amended by that certain
First Amendment to Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, dated as of January 6, 2012, and recorded January 9, 2012, as Document No.
T4918351 in the Office of the Registrar of Titles of Hennepin County, Minnesota (the
"Mortgage"); and (2) that certain Assignment of Leases and Rents, executed by Southdale
Limited Partnership, dated as of March 7, 2005, and recorded March 15, 2005, as Document No.
4089180 in the Office of the Registrar of Titles of Hennepin County, Minnesota (the
"Assignment"), hereby consents to the foregoing Easement Agreement (the "Easement
Agreement"), and hereby subjects and subordinates the Mortgage and the Assignment and all of
its right, title and interest in the Easement Premises to the Easement Agreement.
Nothing in this Consent and Subordination may be construed to impose on the
undersigned any obligation created by the Easement Agreement, unless and until the undersigned
has acquired fee title to property burdened by the Easement Agreement, and further subject to
Section 6_3 of the Contract (as defined in the Easement Agreement); and further provided, that
neither the undersigned nor any other party that becomes the owner of the Mall Property as a
result of the undersigned's exercise of its remedies under the Mortgage, the Assignment, and/or
any related loan documents (such other party being referred to in this Consent and Subordination
as a "transferee") shall be personally liable for any monetary obligations incurred by
Redeveloper or any other party that precedes the undersigned's or transferee's ownership of the
Mall Property; and no lien that might arise (no consent to any such lien by the undersigned is
hereby implied) out of a breach by Redeveloper or the City (as defined in the Easement
Agreement), of its obligations under the Easement Agreement shall have any priority over the
lien of the Mortgage or Assignment or any other related loan documents as such may have been
amended, renewed or restated from time to time; and no amendment to or modification of the
Easement Agreement shall be binding on the undersigned or a transferee unless the undersigned
or such transferee, as applicable, shall have consented thereto in writing in its sole discretion.
Capitalized terms used but not defined herein shall have the meanings given to such terms in the
Easement Agreement.
[Signature Page to Consent and Subordination of Easement Agreement]
By: Bank of America, N.A., a national banking
association, solely in its capacity as Master
Servicer
By: kr A
Printet1 % R e: James P. McAllister 1
Director
Title:
e. of Person Taking Acknowledgment)
IN WITNESS WHEREOF, Lender has executed and delivered this Consent and
Subordination, to be effective as of the 14 lakay of becem..be_r- , 2012
WELLS FARGO BANK, N.A., AS TRUSTEE
FOR THE REGISTERED HOLDERS OF
BANC OF AMERICA COMMERCIAL
MORTGAGE INC. COMMERCIAL
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2005-1
State of A)Dy-s141 (z419)rolc...)
) ss.
County of
The foregoing instrument was acknowledged before
2012, by Yfrrn•4.--s Pe the-D;c•ce.:Po
no,-4;o-ria--- A/A oe...; yJ ii , on behalf of the Nf•
me this ji day ofl'oe
YOLANDA BONET
Notary Public
Mecklenburg County
North Carolina
My Commission Expires Jun 3, 2013
u 7
This Instrument was drafted by
and when recorded should be returned to:
Dorsey & Whitney LLP (AVD)
Suite 1500
50 South Sixth Street
Minneapolis, Minnesota 55402
[Signature Page to Consent and Subordination of Easement Agreement]