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HomeMy WebLinkAbout3055PUBLIC ACCESS EASEMENT AGREEMENT between THE CITY OF EDINA, MINNESOTA and ORION INVESTMENTS EDINA, LLC Datpa,as of VPIO ,2020 THIS DOCUMENT WAS DRAFTED BY: Dorsey & Whitney LLP 50 South Sixth Street, Suite 1500 Minneapolis, MN 55402-1498 4818-6264-461615 PUBLIC ACCESS EASEMENT AGREEMENT At.4 . THIS PUBLIC ACCESS EASEMENT AGREEMENT (this "Agreement") is dated , 2020, and is made by and between the CITY OF EDINA, MINNESOTA, a Mil sota statutory city (the "City"), and ORION INVESTMENTS EDINA, LLC, a Minnesota limited liability company ("Owner"). RECITALS: A. Owner owns certain land located in Hennepin County, Minnesota, legally described on Exhibit A (the "Owner Property"). B. The Housing and Authority of Edina, Minnesota, the City, and Orion 4500 France, LLC, a Delaware limited liability company ("Developer"), entered into that certain Redevelopment Agreement dated December 18, 2018, as amended, for the redevelopment by Developer of certain property adjoining the Owner Property, and legally described on Exhibit B (the "Redevelopment Property"). C. Owner wishes to grant to the City a permanent, public easement for ingress, egress, and access to and from the public right of way known as France Avenue and the Redevelopment Property, in the location described on Exhibit C-1 and depicted on Exhibit C-2 (the "Easement Area") pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the others as follows: ARTICLE I GRANT OF EASEMENT Section 1.1 Easement Premises. Owner hereby grants and conveys to the City, for the benefit of the City and the general public, a non-exclusive, perpetual public easement (the "Easement") over, across, upon and through the Easement Area, together with and including all ancillary amenities, components, and fixtures which may be located thereon and therein (collectively, the "Easement Premises"), for the purposes of vehicular and pedestrian ingress, egress and access to and from France Avenue and the Redevelopment Property, all in accordance with and subject to the terms and conditions of this Agreement. ARTICLE II TERM Section 2.1 Term. The Easement granted hereby, and each reservation, covenant, condition and restriction contained in this Agreement, shall be effective as of the date hereof, shall be perpetual, and shall remain in effect until affirmatively released by the City. Such release shall be evidenced by the recording of a release or termination of this Agreement in the real estate records of Hennepin County, Minnesota, at which time this Agreement shall terminate, subject to 2 4818-6264-4616\5 reconciliation of expenses and obligations incurred through the date of release or termination and the continuation of those provisions that specifically survive termination of this Agreement, and the Easement Area and any other areas of the Easement Premises shall thereafter belong to and be under the sole control of Owner. ARTICLE III USE OF EASEMENT PREMISES Section 3.1 Operation and Control of Easement Premises. During the term of this Agreement, Owner shall operate the Easement Premises in accordance with this Agreement and all applicable governmental laws, ordinances, regulations and orders, at Owner's sole cost and expense. Subject to the terms of this Agreement, Owner has full authority and control over the management, operation, and use of the Easement Premises. Section 3.2 Waste, Nuisance, Damage, Disfigurement or Injury to Easement Premises. Neither the City nor Owner shall knowingly or willfully commit or suffer to be committed any waste or damage in or upon the Easement Premises, or any disfigurement or injury to any improvements hereafter erected or located upon the Easement Premises, or any part thereof, or the fixtures and/or equipment thereof. Owner, in its use and occupancy of the Easement Premises, shall not knowingly and willfully commit or suffer to be committed any act or thing which constitutes a nuisance. Usual and normal wear and tear, damage by the elements, unavoidable casualty or depreciation and diminution over time shall not be considered "waste," "nuisance," "damage, "disfigurement," or "injury." Section 3.3 Owner's Reservation of Certain Rights. The City's easement rights under this Agreement shall be subject to the following reservations, as well as the other applicable provisions contained in this Agreement: (a) Owner reserves the right to close-off any portion of the Easement Premises for such reasonable period of time as may be necessary, in the opinion of Owner, to prevent the acquisition of prescriptive rights by anyone; provided, however, that prior to closing- off any portion of the Easement Premises, Owner shall give as much written notice as reasonably practicable of its intention to do so. (b) Owner reserves the right to temporarily erect or place barriers in and around areas on the Easement Premises which are being constructed and/or repaired in order to ensure either safety of persons or protection of property. (c) Owner reserves the right to adopt and enforce reasonable rules and regulations for the safe, efficient, and orderly use and operation of the Easement Premises, so long as such rules and regulations are applied on a non-discriminatory basis, do not adversely impact the City's or the public's rights to use of the Easement Premises as set forth in this Agreement, and are mutually agreed to by Owner and the City Manager (d) Owner reserves the right to access and use the Easement Premises and grant rights to other parties the right of access and use of the Easement Premises at all times and 3 4818-6264-4616\3 in any manner, and grant additional rights therein, so long as such access, use, or grant is not inconsistent with the rights granted to the City and general public hereunder. ARTICLE IV MAINTENANCE OF THE EASEMENT PREMISES Section 4.1 Maintenance. At all times during the term hereof, Owner, at its cost and expense, shall keep and maintain the Easement Premises in good condition and repair in a first- class manner, which such maintenance shall include, without limitation, the following: (a) all repairs, replacements, renewals, alterations, additions and betterments thereto, structural and non-structural, ordinary and extraordinary, and foreseen and unforeseen, all as may be necessary to keep the Easement Premises in the condition and repair required by this Agreement, and which do not adversely impact the City's or the public's rights to use of the Easement Premises as set forth in this Agreement; (b) maintaining all sidewalk and driveway surfaces in a smooth and evenly- covered condition, which maintenance work shall include repairing and resurfacing the same; (c) periodic removal of all papers, debris, filth, refuse, ice and snow, provided all of the foregoing shall be performed at appropriate intervals during such times as shall not unreasonably interfere with the use of the Easement Premises; (d) placing, keeping in repair, replacing and repainting any appropriate directional signs or markers, within or associated with the Easement Premises. Section 4.2 No Obligation of the City to Repair or Maintain. The City shall have no obligation of any kind, expressed or implied, to repair, rebuild, restore, reconstruct, modify, alter, replace, or maintain the Easement Premises or any part thereof. ARTICLE V TAXES AND ASSESSMENTS Section 5.1 Payment of Taxes and Assessments. Owner shall pay, or cause to be paid, before becoming delinquent, all real estate taxes, charges, assessments, and levies, assessed and levied by any governmental taxing authority during the term of this Agreement against the Easement Premises. Nothing contained in this Agreement shall require Owner to pay any franchise, estate, inheritance, excise, succession, capital levy, or transfer tax of the City or any income, excess profits or revenue tax payable by the City under this Agreement. Owner shall have the right and option, at any time but solely at Owner's expense, to pay any real estate taxes or assessments in installments or under protest or in a similar manner, or to contest the levy or amount of the same in appropriate legal or administrative proceedings. 4 4818-6264-4616\5 ARTICLE VI INDEMNIFICATION, INSURANCE Section 6.1 Indemnification of the City. Except to the extent caused by the willful misconduct or negligence of the City, its employees or agents, or the general public, or arising out of the default by the City and its officers, employees or agents, of obligations made pursuant to a contract with Owner, including this Agreement, Owner hereby covenants and agrees to assume and to permanently indemnify and save harmless the City and its employees and agents from and against any and all claims, demands, actions, damages, costs, expenses, reasonable attorneys' fees, and liability in connection with the loss of life, personal injury and/or damage to property, to the extent arising from or out of the design or initial construction, maintenance and operation of the Easement Premises, or in connection with the use or occupancy of the Easement Premises, or any part thereof, by Owner, or to the extent arising out of the breach of Owner's obligations hereunder. Section 6.2 Property Insurance. At all times during the term hereof, Owner, at its sole cost and expense, shall keep the Easement Premises, and all alterations, extensions, and improvements thereto and replacements thereof, insured, in the amount of the full replacement cost thereof and with such deductibles as Owner deems appropriate, against loss or damage by fire and against those casualties covered by extended coverage insurance and against vandalism and malicious mischief and against such other risks, of a similar or dissimilar nature, as are customarily covered with respect to improvements similar in construction, general location, use, and occupancy to such improvements. Section 6.3 Personal Property. All property of every kind and character which Owner may keep or store in, at, upon, or about the Easement Premises shall be kept and stored at the sole risk, cost, and expense of Owner as it may determine. Section 6.4 Liability Insurance. During the term of this Agreement, Owner shall procure and maintain continuously in effect (or shall cause the same to occur), the following policies of insurance ofthe kind and minimum amounts as are customarily maintained with respect to improvements similar to those located on the Easement Premises, at commercially reasonable coverage levels, to be reviewed from time to time by Owner: (a) insurance against liability for injuries to or death of any person or damage to or loss of property arising out of or in any way relating to the use, occupancy, or condition of the Easement Premises, or any part thereof, including insuring the indemnification obligations set forth in Section 6.1 above, which such insurance shall provide that the City is an additional insured. Section 6.5 General Insurance Requirement. All insurance required in this Agreement shall be placed with financially sound and reputable insurers licensed to transact business in the State of Minnesota. Owner shall promptly following the City's request therefor, furnish the City with copies of policies evidencing all such insurance or a certificate or certificates of the respective insurers stating that such insurance is in force and effect. Each policy of insurance herein required shall contain a provision that the insurer shall not cancel it without giving written notice to the 5 4818-6264-4616\5 City at least 10 days before the cancellation becomes effective. The insurance coverage herein required may be provided by a blanket insurance policy or policies. Section 6.6 No Obligation of the City for Insurance. At no time and under no circumstances shall the City be required to take out, maintain in force and effect, or pay for any type of insurance coverage with reference to the protection of and/or ownership of and/or occupancy of and/or a suit relating to the Easement Premises and/or any improvements hereafter located thereon. ARTICLE VII ASSIGNMENT Section 7.1 Assignment by the City. During the term of this Agreement, the City may not assign or transfer its interest under this Agreement without the prior written consent of Owner. Section 7.2 Assignment by Owner. Owner may assign or otherwise transfer its interest under this Agreement in connection with any sale or transfer of the Owner Property. ARTICLE VIII CASUALTY Section 8.1 Destruct►on. In the event that all or any part of the Easement Premises are destroyed by fire or other casualty, and subject to a determination by the relevant mortgage lender, Owner shall promptly rebuild, reconstruct and/or restore the same to the extent insurance proceeds are available or, in the event insurance proceeds are not suff►cient to reconstruct the same, to the extent insurance proceeds combined with any contributions by Owner toward reconstruction are available. ARTICLE IX EMINENT DOMAIN Section 9.1 Major Condemnation. If all of the Easement Premises is taken, acquired, or condemned by eminent domain for any public or quasi-public use or purpose, this Agreement shall terminate as of the date of vesting of title in the condemning authority. Each party shall make its own claim in the condemnation proceeding based upon the value of its respective interest in the Easement Premises. ARTICLE X DEFAULT AND REMEDIES Section 10.1 Default by Owner. If Owner fails to perform any of its obligations under this Agreement, and fails to cure such default after 30 days' written notice of such default or, if such default cannot reasonably be cured within such 30 days, fails to commence curative action 6 4818-6264-4616\5 and thereafter diligently complete the same, then, in such case, the City may pursue all available remedies at law and in equity. 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 shall not be deemed to be a waiver of any subsequent breach or default thereof. No provision of this Agreement shall be deemed to have been waived by any party hereto unless such waiver is in writing and signed by the party charged with any such waiver. Section 11.2 Amendments. Except as otherwise herein provided, and not otherwise, no subsequent alteration, amendment, change, waiver, discharge, termination, deletion, or addition to this Agreement shall be binding upon either party unless in writing and signed by both parties. Owner and the City agree to join in and consent to amendments to this Agreement, to the extent such amendments are reasonably required by Owner's relevant mortgage lender encumbering the Easement Premises and/or Owner Property. Section 11.3 Joinder; Permitted Encumbrance. Except for the mortgagee consent attached hereto, this Agreement does not require the joinder or approval of any other person and each of the parties respectfully has the full, unrestricted and exclusive legal right and power to enter into this Agreement for the term and upon the provisions herein recited and for the use and purposes hereinabove set forth. This Agreement shall constitute a permitted encumbrance under any loan agreement heretofore or hereafter entered into between Owner and any construction lender or permanent lender. Section 11.4 Dedication. Nothing contained in this Agreement will be deemed to be a gift or dedication of any portion of the Easement Premises to the general public, except as explicitly set forth in this Agreement. Section 11.5 Notices. Except as otherwise expressly provided in this Agreement, a notice, demand or other communication under this Agreement by any party to any other shall be sufficiently given or delivered if it is (a) dispatched by registered or certified mail, postage prepaid, return receipt requested, (b) sent by recognized overnight courier (such as Federal Express), or (c) delivered personally, as follows: In the case of Owner: In the case of the City: Orion Investments Edina, LLC Attn: Ted Carlson 4530 West 77th Street, Suite 365 Edina, MN 55435 City of Edina Attn: City Manager 4801 W. 50th Street Edina, MN 55424 7 4818-6264-4616\.5 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 No Third Party Beneficiary. This Agreement is not intended to give or confer any benefits, rights, privileges, claims, action or remedies to any person or entity. Section 11.7 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute one and the same instrument. Section 11.8 Law Governing. This Agreement will be governed and construed in accordance with the laws of the State of Minnesota. Section 11.9 Consents and Approvals. In all cases where consents or approvals are required hereunder, such consents or approvals shall not be unreasonably conditioned, delayed or withheld. All consents or approvals shall be in writing in order to be effective. Section 11.10 No Additional Waiver Implied by One Waiver. If any agreement contained in this Agreement should be breached by any party and thereafter waived by another party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. Section 11.11 Survival. The easements granted hereby and each reservation, covenant, condition and restriction contained in this Agreement will run with the land and will be binding upon, and inure to the benefit of, as the case may be, Owner and the City and their respective successors and assigns. [Remainder of page intentionally left blank; signature pages follow] 8 4818-6264-4616\5 By: 19709467ED9E4C2 . Mayor rDocuSIgned by: ,.....„ ../ IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. CITY: CITY OF EDINA, MINNESOTA -DocuSigned by: / 659BD7941C264A5 City Manager STATE OF MINNESOTA COUNTY OF HENNEPIN Aid The forepirig instr -lent vval acknowledge b=his (Do day of /41a 2020, by3(Ne-.5 cv-i 4, and , the Mayor and C Manager, respectively, of the City of Edina, Minnesota, on behalf of the Ci gth 12110 -- Notary 7'ublic www"AmAwmAAAAmAAAAAA4SHARON M. ALLISON Notary Publio-Minnesota My Cowl:mien Expires Jen 31, 2025 9 [Signature Page to Public Access Easement Agreement] 4818-6264-4616\5 By: ) ss. OWNER: ORION INVESTMENTS EDINA, LLC, a Minnesota limited liability company By: Name: Its: STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of , 2020, by , the of ORION INVESTMENTS EDINA, LLC, a Minnesota limited liability company, on behalf of the limited liability company. Notary Public 10 [Signature Page to Public Access Easement Agreement] 4818-6264-4616\5 EXHIBIT A Legal Description of the Owner Property Parcel A: That part of Block 20, Waveland Park, and that part of the land designated on said plat as "Minneapolis Lyndale and Minnetonka Railway" described as follows: Commencing at a point in the West line of France Avenue distant 260 feet North from the South line of Section 7, Township 28 North, Range 24, \Vest of the Fourth Principal Meridian; thence West parallel with said South Section line 150 feet; thence North parallel with France Avenue to Northwesterly line of abandoned right of way of the Minneapolis Lyndale and Minnetonka Railway Company; thence Northeasterly along said Northwesterly line of said abandoned right of way to West line of France Avenue; thence South 249.25 feet to beginning except that part of the foregoing Tract being hereinafter referred to as Tract A described as follows: That part of said Tract A lying South of a line bearing South 59 degrees 54 minutes 28 seconds West from a point in the West line of France Avenue 145 feet North of the Southeast corner of said Tract A and East of a line hearing North 0 degrees 18 minutes 54 seconds West from a point in the South line of said Tract A, 77 feet Westerly of the Southeast corner of said Tract A. Parcel B: A portion of that part of Block 20, Waveland Park, Hennepin County, Minnesota, commencing at a point in the West line of France Avenue distant 260 feet North from the South line of Section 7, Township 28 North, Range 24 West, of the Fourth Principal Meridian; thence West parallel with said South section line, 150 feet; thence North parallel with France Avenue to Northwesterly line of abandoned right of way of the Minneapolis, Lyndale and Minnetonka Railway Company; thence Northeasterly along said Northwesterly line of said abandoned right of ‘vay to West line of France Avenue; thence South 249,25 feet to beginning, the foregoing tract being hereinafter referred to as Tract A and the portion thereof herein contained being described as tallows; That part of said Tract A lying South of a line bearing South 59 degrees 54 minutes 28 seconds West from a point in the West line of France Avenue 145 feet North of the Southeast corner of said Tract A and East of a line bearing North 0 degrees 18 minutes 54 seconds West from a point in the South line of said Tract A, 77 feet Westerly of the Southeast corner of said Tract A. (Torrens Property) 11 [Exhibit A to Public Access Easement Agreement] 4818-6264-4616\5 EXHIBIT B Legal Description of the Redevelopment Property Parcel 1: Lots 1 and 2 and that part of Lot 6 described as follows: Commencing at the most Northerly corner of said Lot 6; thence South along the East line of said lot; 40.62 feet; thence Northwesterly 30.2 feet to a point on the Northerly line of said Lot 6, distant 27.19 feet Westerly from the point of beginning; thence Northeasterly to the point of beginning, all in Block 2, "Fairbairn's Rearrangement" in Waveland and Waveland Park, including all of the vacated alley which lies North of the South line of said Lot 2 extended West, Hennepin County, Minnesota. (Abstract Property) Parcel 2: Lots 3, 4 and 5; That part of Lot 6, described as follows: Commencing on the Easterly line of said Lot at a point distant 40.62 feet Southerly from the most Northerly corner of said Lot, thence Northwesterly 30.2 feet to a point on the Northwesterly line of said Lot distant 27.19 feet Southwesterly from the most Northerly corner of said Lot; thence Southwesterly along the Northwesterly line of said Lot to the most Westerly corner of said Lot, thence Southeasterly along the Southwesterly line of said Lot to the most Southerly corner of said Lot, thence Northerly along the Easterly line of said Lot to the point of beginning; That part of the alley now vacated, described as follows: Commencing at the point of intersection of the center line of alley, now vacated with the North line of Lot 3 extended Westward, thence East on said extended line to the Northwest corner of said Lot 3, thence along the Easterly line of said alley to the most Southerly corner of Lot 5, thence Southwesterly along an extension of the Southeasterly line of said Lot to the center line of said alley, thence Northwesterly along the center line of said alley to a point of its intersection with a line erected to bisect the angle existing in the Westerly line of said alley, thence Southwest along said line to the West line of said alley, thence North along said West line to a point in said line 40.62 feet South of the most Northerly corner of Lot 6, the same being the point of intersection to said West line of alley with the extension Westward of the North line of Lot 3, thence East along said extended line to the point of beginning; All in Block 2, "Fairbairn's Rearrangement" In Waveland And Waveland Park (Torrens Property) Parcel 3: Lot 7, Block 2, Fairbairn's Rearrangement in Waveland and Waveland Park, Hennepin County, Minnesota. 12 [Exhibit B to Public Access Easement Agreement] 4818-6264-4616\5 Together with that part of the adjacent vacated alley that accrued thereto by reason of the vacation thereof. (Abstract property) Parcel 4: Lot 8, Block 2, Fairbairn's Rearrangement in Waveland and Waveland Park, Hennepin County, Minnesota less and except that portion described as commencing at the most westerly corner of said Lot 8; thence on an assumed bearing of North 47 degrees 35 minutes 29 seconds East, along the northerly line of said Lot 8, a distance of 12.00 feet; thence South 33 degrees 43 minutes 44 seconds East, parallel with the west line of said Lot 8, a distance of 75.00 feet; thence South 47 degrees 35 minutes 29 seconds West, parallel with said northerly line of Lot 8, a distance of 12.00 feet, to said west line of Lot 8; thence North 33 degrees 43 minutes 44 seconds West, along said west line of Lot 8, a distance of 75.00 feet to the point of beginning. (Abstract property) 13 [Exhibit B to Public Access Easement Agreement] 4818-6264-4616\5 EXHIBIT C-1 Legal Description of the Easement Area An easement over and across the following described property: That part of Block 20, Waveland Park, Hennepin County, Minnesota, and that part of the land designated on said plat as "Minneapolis Lyndale and Minnetonka Railway" described as follows: commencing at a point in the West line of France Avenue distant 260 feet North from the South line of Section 7, Township 28 North, Range 24, West of the Fourth Principal Meridian; thence West parallel with said South Section line 150 feet; thence North parallel with France Avenue to Northwesterly line of abandoned right of way of the Minneapolis Lyndale and Minnetonka Railway Company; thence Northeasterly along said Northwesterly line of said abandoned right of way to West line of France Avenue; thence South 249.25 feet to beginning except that part of the foregoing Tract being hereinafter referred to as Tract A described as follows: That part of said Tract A lying South of a line bearing South 59 degrees 54 minutes 28 seconds West from a point in the West line of France Avenue 145 feet North of the Southeast corner of said Tract A and East of a line bearing North 0 degrees 18 minutes 54 seconds West from a point in the South line of said Tract A, 77 feet Westerly of the Southeast corner of said Tract A. Said easement is described as beginning at the most northerly corner of said Tract A; thence southerly, along the east line of said Tract A, 41.50 feet; thence westerly, at a right angle to said east line of Tract A, 20.73 feet to a line lying 18.00 feet southeasterly of and parallel with the northwesterly line of said Tract A; thence southeasterly, along said parallel line, 115.75 feet; thence northwesterly, at a right angle to said parallel line, 18.00 feet to said northwesterly line of Tract A; thence northeasterly, along said northwesterly line of Tract A, 185.51 feet to the point of beginning. 14 [Exhibit C-1 to Public Access Easement Agreement] 4818-6264-4616\5 MOST NORTItERLY CORNER OF TRACT Am, I CJ PROPOSED t ACCESS E AREA= 654 PUBLIC SEMENT SO. FT. >t• 'OD O tt n, al tel sI 4z, tti CZ:I I— 0 0 7 P3 J 1 ck) In e\.‘„,§- , 4.\-- c,\-\ Nk‘ .7 OC: %.1` "Ai 21','„,. -so;rot LINE Or ‘'... \ ' i (/),7.1 OF TRACT A c) ( \ . /- , • -77. 00-- ' -<7 ' -N89 '4,3151"W 73.00• - • - • - wt. s'lt I1139'4.5,51 LINE PARALLEL WITH 1HE SOLIDT UNE OF THE SC 1/4 OE SEC. 7-- 1 1\ ‘1, V SOUTH LINE Of THE SE 1/4 or SEC. 7 .•-• SE CORNER -' or TRACT A Zi SC CORNER Or TIBC SE 1/4 OF SEC. 7. rOUND 3 RICH CAST IRON MONUMENT— — cy; EXHIBIT C-2 Depiction of the Easement Area PROPOSED PUBLIC ACCESS EASEMENT SHEET 2 OF 2 SHEETS 7017-00—* 642/.13 1.78. R 74. S07 ?Of 10904-14,131.T. LVA. diry (1.,K i MI Lost UlvyniAgtoe, Free•oy MO • StJalt 118 5 5 SUNDE 052-50I-2455 (Fox. 952-688-9526) EroomIngtcn, Wnr.caoto 55420-3435 LAND SURVEYING www•nurido.co," 15 [Exhibit C-2 to Public Access Easement Agreement] 4818-6264-4616\5 CONSENT AND SUBORDINATION The undersigned, SUNRISE BANKS, NATIONAL ASSOCIATION, holder of that certain Mortgage, Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents executed by ORION INVESTMENTS EDINA, LLC, a Minnesota limited liability company, dated October 4, 2016, filed October 4, 2016 as Document No. T05386781, in the office of the Registrar of Titles in and for Hennepin County, Minnesota, hereby consents to the foregoing Public Access Easement Agreement (the "Easement Agreement"), and hereby subjects and subordinates the Mortgage and all of its right, title and interest in and to the Easement Agreement. SUNRISE BANKS, NATIONAL ASSOCIATION, a national banking association, By: Name: Title: STATE OF ) ss. COUNTY OF The foregoing instrument was acknowledged before me this day of 20 , by , the of SUNRISE BANKS, NATIONAL ASSOCIATION, a national banking association, on behalf of the national banking association. Notary Public 4818-6264-4616\5 16