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HomeMy WebLinkAbout2527Duplicate JAN I F Filing Certificate EASEMENT AGREEMENT 1} v `246032 L4, r,. UTY THIS EASEMENT AGREEMENT ( "Agreement") is made as of 1999, between BERTRAM L. MINER, a single individual ( "Miner "), and the CITY OF EDINA, a Minnesota municipal corporation (the "City"). RECITALS: A. Miner owns a parcel of real estate legally described as Lot 1, Block 1, South Edina Development Addition, according to the recorded plat thereof (the "Miner Parcel ") B. The City owns a parcel of land adjacent and east of the Miner Parcel legally described as Outlot C, The Coventry At Centennial Lakes 2nd Addition (the "City Parcel "). The Miner Parcel and the City Parcel are sometimes collectively referred to herein as the "Parcels ". C. The City plans to construct certain improvements upon the City Parcel as part of a park renovation project, which improvements are planned to encroach upon a portion of the Miner Parcel, and the City also needs to install an underground water main connection to service the City Parcel, which connection must be located on a portion of the Miner Parcel. D. The City wishes to obtain easements over portions of the Miner Parcel to facilitate the City's park renovation project and Miner wishes to grant to the City such easements on the terms and conditions provided herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties hereto, Miner and the City agree as follows: 1. Grant of Easements. Miner grants to the City for the benefit of the City Parcel: (A) a perpetual, non - exclusive easement (the "Park Facilities Easement ") over a portion of the Miner Parcel legally described on Exhibit A attached hereto and identified and shown crosshatched on Exhibit B attached hereto as the Permanent Park Facilities Easement area, for the construction, use and maintenance of certain public park facilities on the Miner Parcel, (B) a temporary, non - exclusive easement (the "Construction Easement ") over that portion of the Miner Parcel legally described on Exhibit A attached hereto and identified and shown crosshatched on Exhibit B attached hereto as the Temporary Construction Easement area, to facilitate construction of the Improvements (as defined in Section 2(A) hereof), and (C) a perpetual, non- exclusive easement (the "Utility Easement ") over a portion of the Miner Parcel legally described on Exhibit A attached hereto and identified and shown crosshatched on Exhibit B attached hereto as the Permanent Utility Easement area, for purposes of installation, maintenance and use of a water main connection serving the City Parcel. The Park Facilities Easement, Construction Easement and Utility Easement are collectively referred to herein as the "Easements." 2. Use of Easements. In using the Easements, the City will comply with all applicable laws and regulations and will not do or permit to be done anything which would or might result in Miner becoming liable for any increased costs, damages, fines or penalties under any such law or regulation. The City will allow no liens of any nature to attach to the Miner Parcel as a result of the City's use of or activity related to the Easements. Use of the Easements will not materially interfere with the use of or access to the Miner Parcel by Miner or Miner's tenant(s), or the employees, customers or invitees of any of them, or with the use by the holder of any other easement rights over the Miner Parcel of such rights. In addition: A. Park Facilities Easement. The Park Facilities Easement will be used only for purposes of construction, reconstruction, maintenance, repair and replacement of landscaping, sprinkler systems, public walkways, lighting, signage and related park improvements (collectively, the "Improvements ") in under and across that portion of the Miner Parcel burdened by the Park Facilities Easement. The Improvements will be constructed, reconstructed and replaced within the Park Facilities Easement only pursuant to plans and specifications approved in writing by Miner prior to commencement of any such work, which approval shall not be unreasonably withheld, conditioned or delayed, and will be deemed given if not granted or denied within 15 days after the City requests such approval. The Improvements will be constructed (i) at the City's sole expense, (ii) in a manner as to not unreasonably interfere with the normal use and enjoyment of the Miner Parcel, (iii) in full compliance with all applicable statues, codes, ordinances, rules and regulations, (iv) using materials and equipment, and design and engineering standards, equal to or better than those originally used for improvements existing within the Park Facilities Easement as of the date hereof, and (v) in a good and workmanlike manner. If the City must remove or destroy any landscaping, sodding, lighting, sprinkler systems, irrigation systems, walkways or related improvements in connection with the permitted use or uses of the Park Facilities Easement, the City at its sole cost and expense, and as soon as reasonably possible, shall restore, replace or repair such improvements to the condition as existed prior to the removal or destruction to the extent reasonably possible in light of the Improvements installed by the City. Miner shall not construct (or allow construction of) any improvements upon Miner Parcel which would materially interfere with the use of the Park Facilities Easement or the Improvements at any time constructed therein. -2- B. Construction Easement. The Construction Easement will be used exclusively for equipment and supply staging purposes to facilitate construction of the Improvements within the Park Facilities Easement and installation of the underground water utility system within the Utility Easement, which construction, subject to the conditions contained in this Agreement, will be completed no later than November 15, 2001 (the "Construction Deadline "). For the duration of the Construction Easement, the City will keep the Construction Easement area in a secure, clean and sightly condition. C. Utility Easement. The Utility Easement will be used exclusively for underground water utility system purposes, including the right to enter upon the Miner Parcel, by itself or its assigns, agents or contractors, for purposes of installing, constructing, maintaining, altering, repairing, reinstalling and reconstructing a water main connection to connect the City Parcel to the existing water utility system. The utility improvements will be constructed (i) at the City's sole expense, (ii) in a manner as to not unreasonably interfere with the normal use and enjoyment of the Miner Parcel, (iii) in full compliance with all applicable statues, codes, ordinances, rules and regulations, (iv) using materials and equipment, and design and engineering standards, equal to or better than those originally used within the Utility Easement area, and (v) in a good and workmanlike manner. If the City must remove or destroy any driveways, walkways or related improvements in connection with the permitted use of the Utility Easement, the City, at its sole cost and expense, and as soon as reasonably possible, shall restore, replace or repair such improvements to the condition as existed prior to the removal or destruction to the extent reasonably possible. 3. Maintenance of Park Facilities Easement Area. The City will, at the City's sole expense, maintain all Improvements in a safe, structurally sound, clean and sightly condition, it being understood that neither Miner nor any of Miner(s) tenant(s) shall have any maintenance or repair obligations pertaining to the Improvements. 4. Indemnification. The City will indemnify, defend and hold harmless Miner and all tenant's and mortgagees of the Miner Parcel, from any claims for persbnal injury and third - party claims for property damage arising from the use of any of the Easements or any of the Improvements, unless such claims arise from the negligence of Miner or any of Miner's tenants or mortgagees. Miner will promptly notify the City of any claim subject to the provisions of this Section after Miner receives notice of such claim. 5. Events of Default. If the City fails in any obligation hereunder which can be cured by the payment of money, and such default is not cured within 30 days after written notice thereof is given to the City, or if the City defaults in any other obligation under this Agreement and such default continues for 30 days after written notice thereof is given to the City (or if such default cannot with reasonable diligence be cured in 30 days but can be cured, then such 30 -day -3- period shall be extended for the period reasonably necessary to cure the default as long as reasonable efforts are being made to cure the same), then Miner or then owners of the Miner Parcel may exercise any one or more of the remedies set forth in Section 6 below. 6. Remedies. Upon the occurrence of a event of default under Section 5 above, Miner or any then -owner of the Miner Parcel may exercise one or more of the following remedies: A. Cure the default and charge the cost thereof, including reasonable fees of experts and attorneys, to the City, and all such costs shall be payable to Miner on demand; and B. specific enforcement, injunctive relief or any other remedy available at law or in equity, specifically excluding, however, the recovery of monetary damages or cancellation of this Agreement. No monetary damages shall be sought or be recovered hereunder by any party. Any action seeking one or more forms of relief shall not be a bar to an action at the same or subsequent time seeking other forms of relief. The costs of any such action(s), including the reasonable attorneys' fees of Miner or the then -owner of the Miner Parcel, shall be paid by the City. 7. Binding Effect. This Agreement shall run with the land and shall bind and benefit the parties hereto and their respective successors and assigns. If at any time either Miner or his heirs, successors or assigns, or the City or its respective successors or assigns, sells or otherwise conveys the Parcel owned by such party, the selling or conveying party will be released from all personal obligations under this Agreement except for those obligations arising before the date that the subject Parcel was sold or conveyed. It is expressly agreed that no breach of this Agreement shall entitle either party hereto to cancel, rescind or otherwise terminate this Agreement. However, such limitation shall not affect in any manner any other rights or remedies which such party may have hereunder, or at law or in equity, by reason of such breach. 8. Notices. Any notice required or permitted hereunder shalf be given by personal delivery upon an authorized representative of a party hereto; or if mailed in a sealed wrapper by United States registered or certified mail, return receipt requested, postage prepaid; or if transmitted by facsimile copy followed by mailed notice; or if deposited cost paid with a nationally recognized, reputable overnight courier, properly addressed as follows: in If to Miner: Mr. Bertram L. Miner 950 Sheridan Road Glencoe, IL 60022 Facsimile No.: (847) 835 -4711 With a copy to: Rosenthal and Shanfield 55 East Monroe Street, 46th Floor Chicago, IL 60603 Attn: Marvin Cohn Facsimile No.: (312) 236 -7274 If to the City: City of Edina 4801 West 50th Street Edina, MN 55424 Attn: Gordon Hughes, City Manager Facsimile No.: (612) 826 -0390 Notices shall be deemed effective on the earlier of the date of receipt or the date of deposit, as aforesaid; provided, however, that if notice is given by deposit, the time for response to any notice by the other party shall commence to run one business day after any such deposit. Any party may change its address for the service of notice by giving notice of such change 10 days prior to the effective date of such change. 9. Enforcement. The parties hereto may enforce the agreements contained herein through all legal action available at law or in equity. In any proceeding for the enforcement of rights hereunder or for the breach of this Agreement, the prevailing party in any such proceeding will be entitled to recover from the other party or parties its reasonable attorneys' fees in any such action. 10. No Waiver. No waiver of any default by either party hereto will be implied from the failure by the non - defaulting party to take any action in respect of such default. No waiver of any default in the performance of any provision of this Agreement will be deemed a wavier of any subsequent default in the performance of the same provision or any other provision. No consent to or approval of any act or request by any party hereto will be deemed to waive or render unnecessary the consent to or approval of any subsequent similar act or request. 11. Counterparts. This Agreement may be executed in any number of counterparts, each when considered together shall be deemed one document. 12. Consent to Easements. This Agreement will only be valid upon receipt of written consent to the terms hereof by Southern Farm Bureau Annuity Insurance Company, a Mississippi corporation, General Cinema Corp of Minnesota, Inc., a Minnesota corporation, and France Med Associates Limited Partnership, a Minnesota limited partnership. -5- 10/20/99 WED 15:53 FAX 612 340 7800 DORSEY & WHITNEY 1N WITNESS WHEREOF, the parties hereto have caused this Agreement to be made as of the date first above stated. Q003 NIiNER: ,5� � - )A, BERTRAM L. MINER S'T'ATE OF 1WRREKOTA ) /� <) ss. COUNTY O. ) The g fore oin instrument was acknowledged before me this of day of ��« ;� ✓ foregoing 1999, by Bertram L. Miner, who appeared before me and executed the foregoing on his own behalf No ta OFFICIAL. SEAL" LINDA O'DONNELL Notary Public, State of Illinois My Commission Expires Oct. 5, 2002 -6- Q CONSENT THE UNDERSIGNED hereby joins in the attached Easement Agreement to evidence its consent thereto agrees to be bound the terms contained therein; provided, however, that this consent shall not limit or modify any rights of the undersigned under its lease with Bertram Miner dated August 2, 1989. I V . .t.f. COMMONWEALTH OF MASSACHUSETTS COUNTY OF NORFOLK GENERAL CINEMA CORP. OF MINNESOTA, INC. ) ss. cpDoo The forgoing consent was acknowledged before me this5"'�day of 4999-by iL the of General Ci ma Corp. of Minnesota, Inc., i-nnesota corporation, on behalf of the corporation. Notary Public BARBARA DAGGETr, Notary Public My Commission Expires Sept. 29, 2o06 i' 4/ ) ss. cpDoo The forgoing consent was acknowledged before me this5"'�day of 4999-by iL the of General Ci ma Corp. of Minnesota, Inc., i-nnesota corporation, on behalf of the corporation. Notary Public BARBARA DAGGETr, Notary Public My Commission Expires Sept. 29, 2o06 r CONSENT THE UNDERSIGNED hereby joins in the attached Easement Agreement to evidence its consent thereto Dated: FRANCE MED ASSOCIATES LIMITED PARTNERSHIP r By— s neral Partner . r STATE OF MINNESOTA ) ALTA M. GARG SS. t' NOTARY PU'! i HENNE COUNTY OF HENNEPIN ) Mvcommis } t` bAM.'7 >o The foregoing instrument was acknowledged before me this)? day o 1499, by Lb�K Cz 6c6rhu5 , a General Partner of France Med Associ e�Liite� Partnership, a Minnesota limited partnership, on behalf of the limited partnership. Notary Public STAT �MINNESOTA ) ss. COUNTY OF HE IN ) The foregoing instrument acknowledged before me this day of , 1999, by 11 General Partner of France Med Associates Limited Partnership, a Minnesota limited partnership, behalf of the limited partnership. in Notary CITY: CITY OF EDINA, a Minnesota municipal corporation Its City Clerk And By Its Mayor STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) Th regoing instrument was acknowledged before me this d ` day o�)?c e�, bg- 1999, by ""-vim A A,14X)6C/U , the City Clerk of the City of Edina, a Minnesota municipal corporation, on behalf of the municipal corporation. DARLENE R. WALLIN ~ r NOTARY PUBLIC - MINNESOTA . HENNEPIN COUNTY My Commission Expires Jan. 31, 2000 Notary Public STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) foregoing instrument was acknowledged before me this day �1�4� 1999, by c1, L" -0 1%v�Z� Ion , the Mayor of the City of Edina, a Minnesota municipal corporation, on behalf of the municipal corporation. Ff-,, NO Acv NL� twliJNES A HENNEPIN COUNTY My Comrnlssron Expires Jan. 3 , 2 This document drafted by: Dorsey & Whitney LLP (tlm) 220 South 6th Street Minneapolis, MN 55402 612/340 -2600 -7- Public 091;13199 MON 11:34 FAX 612 340 7800 DORSEY &WHITNEY CONSENT The undersigned hereby joins in the attached Easement Agreement to evidence its consent thereto_ Dated: t l — � a1 " , 1999 STATE OJF " ) ) ss. COUNTY OF ) SOUTHERN FARM BUREAU ANNUITY INSURANCE COMPANY c By Its PHILIP H QUE VICE PRESIDENT REALTY INVESTMENTS- The forgoing consent was acknowledged before me this1 day of 4- ; 1999 by .(3 \ the AL-� ' of Southern Farm Bureau Annuity Insurance Company, a Mississippi corporation, on bchalf -of the corporation. g, LaTO I t4otary public state o`Mls'ss a1 ary st 2002 ` Notary Aublic Fs Garland, Inc. MY Comm • ::> Bonded T hr u -10- 1@013 v EXHIBIT A Legal Description of Easements -11- EXHIBIT B Depiction of Easements -12- � _ 1 EXHIBIT A PERMANENT PARK FACILITIES EASEMENT DESCRIPTION That part of LOT 1, BLOCK 1, SOUTH EDINA DEVELOPMENT ADDITION, according to the recorded plat thereof, Hennepin County, Minnesota, described as follows: Commencing at the most easterly comer in the most southerly line of said LOT 1; thence North 00 degrees 08 minutes 17 seconds East along the easterly boundary of said LOT 1 for 110.00 feet to the actual point of beginning; thence North 89 deg.-ees 41 minutes I 1 seconds West for 4.63 feet; thence North 00 degrees 18 minutes 49 seconds East for 19.89 feet; thence northerly and northeasterly for 11.32 feet along a tangential curve, concave to the southeast, radius, 14.50 feet and central angle 44 degrees 43 minutes 34 seconds; thence North 45 degrees 02 minutes 23 seconds East tangent to last described curve for 52.73 feet; thence northeasterly for 5.38 feet along a tangential curve concave to the northwest, radius 32.79 feet, central angle 09 degrees 24 minutes 10 seconds; thence South 52 degrees 50 minutes 06 East for 20.00 feet to an angle point in the boundary of said LOT 1; thence southwesterly, westerly and southerly along said boundary of LOT 1 to the point of beginning;.. Together with a 20 foot wide permanent easement for public utility purposes. The centerline of said easement is described as follows: Commencing at said most easterly corner in the most southerly line of LOT 1; thence North 00 degrees 08 minutes 17 seconds East along the boundary of said LOT 1 for 71.11 feet to the actual point of beginning-of the centerline to be described; thence South 89 degrees 51 minutes 43 seconds West for 24.50 feet to the westerly line of that certain Utility Easement described in Document No. 5734152, files of the Hennepin County Recorder, and said centerline there terminating. Together with a temporary easement for construction purposes described as follows: Beginning at said most easterly comer in the most southerly line of LOT 1; thence South 89 degrees 51 minutes 43 seconds West along the most southerly line of said LOT 1 for 5.81 feet; thence North 00 degrees 28 minutes 23 seconds East for 110.04 feet; thence South 89 degrees 41 minutes 11 seconds East for 4.63 feet to the easterly boundary of said LOT 1; thence southerly Tong said easterly boundary to the point of beginning. CI- 1lesxxt w -ANGLE POINT IN THE EXHIBIT EASEMENT EXHIBIT M o I/ BOUNDARY OF LOT 1 14-0 90 \ TEMPORARY CONSTRUCTION EASEMENT o ci 04 (, �Ao O,i.�yo NET AREA = 473 SQ. FT. 00 sj� �O:?. PERMANENT UTILITY EASEMENT V 11 1 NET AREA = 190 SQ. FT. J. `S CENTENNIAL PERMANENT PARK FACILITIES EASEMENT 6-1 / NET AREA = 1693 SQ. FT. ♦ �� % LAKES NET AREAS EXCLUDE PORTIONS OF '1% EASEMEgTS LYING WITHIN EXISTING OR LJ NORTH PARK OTHER EASEMENT PARCELS SHOWN HEREON p , lrs° S� 03- —BOUNDARY OF LOT 1 E'LY BOUNDARY LINE Ir- 0 �� O LO ,POB 0 1 of MOST E'LY COR. IN THE 4 ° S00 0817E MOST S'LY LINE OF LOT 1 F N oo ' N84.63 11 W 129.33 -- -- 71.11 -- - - - - -- / �_ ` ' ��- �T • 1; o0.\ \\ \ \ \ \... �` ' - -- ----- 110.04 ::::;; N00 °28 23 E _ _ _. 11.32 `�'-1 9.89 1 : o M CURB (TYPICAL) 'n i Ln R =14.50 N00 018'49"E:Q 1 A =44 °43`34" ' I': —+MOST S LY LINE OF LOT —__ '< ♦r� '' EXISTING UTILITY EASEMENT — PER DOC. NO 5734152 ` ,• • i" I % v ► v mm �m m BRW not WNEAPOM ill, Pw i 1se (r% A DAMES a MOORE GROUP COMPANY mmmmazdml —� 1 INCH = 20 FEET DATE: AUGUST 31, 1999 ! -, ♦`./ ♦ Ln ° 00 v7 .d ♦ P .. , TRANSFER ENTERED HMNEPIN COUNTY TAXPAYER SERVIC& JAN 18 2000 \ �/ 7246033 C0 V TRANSIT SYSTEM EASEMENT AGREEMENT r,� irr rF I,M `Y f E r PDE:R - - , F� 00 . f f3 13 PH 3: 11 ,'7246033 :o. REC. pUTY THIS TRANSIT SYSTEM EASEMENT AGREEMENT ( "Agreement ") is made as of ba � $ ' 1999, between BERTRAM L. MINER, a single individual ( "Miner "), and the CITY OF EDINA, a Minnesota municipal corporation (the "City "). RECITALS: A. Miner owns a parcel of real estate legally described as Lot 1, Block 1, South Edina Development Addition, according to the recorded plat thereof (the "Miner Parcel ") B. The City owns a parcel of land adjacent and east of the Miner Parcel legally described as Outlot C, The Coventry At Centennial Lakes 2nd Addition (the "City Parcel "). The Miner Parcel and the City Parcel are sometimes collectively referred to herein as the "Parcels ". C. The City plans to operate a public transit system servicing the Parcels and various other properties in the southeast Edina area (the "Transit System "). D. The City wishes to locate part of its Transit System route (the "Transit Route ") across a portion of the Miner Parcel, and Miner wishes to grant to the City a perpetual, non- exclusive easement for the same, all on the terms and conditions provided herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknewiedged by the parties hereto, Miner and the City agree as follows: 1. Grant of Easement. Miner grants to the City for the benefit of the South City Parcel a perpetual, non - exclusive easement for vehicular ingress and egress by Transit System public passenger vehicles over and across that portion of the Miner Parcel shown crosshatched on Exhibit A attached hereto (the `Basement Area "). 2. Use of Easement Area. The City may use the Transit Easement Area only for purposes of vehicular ingress and egress as part of its Transit System operation, which use may include picking up and dropping off of Transit System passengers on the Miner Parcel in a location reasonably approved by Miner. In using the easement granted herein, the City will comply with all applicable laws and regulations and will not do or permit to be done anything which would or might result in Miner becoming liable for any increased costs, damages, fines or penalties under any such law or regulation. The Transit System vehicles used by the City in the Easement Area shall not exceed a gross vehicle weight of 28,000 pounds without Miner's prior written consent, which consent will not be unreasonably withheld, conditioned or delayed. 3. Maintenance of Easement Area. Miner may erect temporary barricades across any portion of the Easement Area to: (a) repair, replace or maintain the Easement Area, (ii) prevent the acquisition of prescriptive rights by anyone, or (iii) repair, replace and maintain utilities servicing the Miner Parcel, provided that the City is at all times provided with a reasonable alternate route for the Transit System when such barricades are used. Miner will coordinate any such closings with the City so that Transit Route disruptions are minimized. 4. Relocation of Easement Area. Miner may relocate all or any portion of the Easement Area at any time, at Miner's sole expense, provided that Miner provides the City at all times with a reasonable, alternate easement area within the Miner Parcel that maintains a continuous Transit Route to and from such Parcel. 5. Indemnification. The City will indemnify, defend and hold harmless Miner and all tenants and mortgagees of the Miner Parcel, from any claims for personal injury and third - party claims for property damage arising from the City's use of the Easement Area; provided, however that this indemnification will not apply to any tenant of the Miner Parcel if such claim(s) arise from the negligence of such tenant. Miner will promptly notify the City of any claim subject to the provisions of this Section after Miner receives notice of such claim. 6. Assignment. This Agreement may be assigned by Miner at any time without the prior consent of the City; provided, however, that any assignee shall assume all obligations of Miner hereunder from and after the effective date of the assignment, and the City shall receive a fully executed copy of such assignment and assumption agreement within 5 days after its effective date. This Agreement may not be assigned by the City without Minor's prior consent (which consent shall not be unreasonably withheld, conditioned or delayed), except that the City may assign this Agreement without Miner's prior consent if the assignee is a person or entity that assumes the City's operation of the Transit System (or a similar common carrier public passenger system) along the Transit Route. The City's assignee shall assume all obligations of the City hereunder from and after the effective date of the assignment, and Miner shall receive a fully executed copy of such assignment and assumption agreement within 5 days after its effective date. If an assignment agreement, as required by this Section, is not delivered to the non- assigning party, the assignment shall not be valid and the assigning party will remain obligated under the terms of this Agreement. 7. Binding Effect. This Agreement shall run with the land and shall bind and benefit the parties hereto and their respective successors and assigns (subject to the terms of Section 6 above). If at any time Miner or his heirs, successors or assigns sells or otherwise conveys the -2- Miner Parcel, the selling or conveying party will be released from all personal obligations under this Agreement except for those obligations arising before the date that the Miner Parcel was sold or conveyed. The City shall be liable only for such obligations of the City as arise during its period of ownership and operation of the Transit System. 8. Notices. Any notice required or permitted hereunder shall be given by personal delivery upon an authorized representative of a party hereto; or if mailed in a sealed wrapper by United States registered or certified mail, return receipt requested, postage prepaid; or if transmitted by facsimile copy followed by mailed notice; or if deposited cost paid with a nationally recognized, reputable overnight courier, properly addressed as follows: If to Miner: Mr. Bertram L. Miner 950 Sheridan Road Glencoe, IL 60022 Facsimile No.: (847) 835 -4711 With a copy to: Rosenthal and Shanfield 55 East Monroe Street, 46th Floor Chicago, IL 60603 Attn: Marvin Cohn Facsimile No.: (312) 236 -7274 If to the City: City of Edina 4801 West 50th Street k Edina, MN 55424 Attn: Gordon Hughes, City Manager Facsimile No.: (612) 826 -0390 Notices shall be deemed effective on the earlier of the date of receipt or the date of deposit, as aforesaid; provided, however, that if notice is given by deposit, the time for response to any notice by the other party shall commence to run one business day after any such deposit. Any party may change its address for the service of notice by giving notice of such change 10 days prior to the effective date of such change. 9. Enforcement. The parties hereto may enforce the agreements contained herein through all legal action available at law or in equity. In any proceeding for the enforcement of rights hereunder or for the breach of this Agreement, the prevailing party in any such proceeding will be entitled to recover from the other party or parties its reasonable attorneys' fees in any such action. 10. No Waiver. No waiver of any default by either party hereto will be implied from the failure by the non - defaulting party to take any action in respect of such default. No waiver of any default in the performance of any provision of this Agreement will be deemed a wavier of -3- 10/20/99 WED 15:53 FAR 612 340 7800 DORSEY & WHITNEY [A 004 _,, .__. __. �. . any subsequent default in the performance of the same provision or any other provision. No consent to or approval of any act or request by any }warty hereto will be deemed to waive or render unnecessary the consent to or approval of any subsequent similar . act or request. 11. Countemarts. This Agreement may be executed in any number of counterparts, each when considered together shall be deemed one document. 12. Consent to Easement. This Agreement will only be valid upon receipt of written consent to the terms hereof by Southern Farm Bureau Annuity insurance Company, a Mississippi corporation, General Cinema Corp of Minnesota, Inc., a Minnesota corporation, and France Med Associates Limited Partnership, a Minnesota limited partnership. IN WTMESS WHEREOF, the parties hereto have caused this Agreement to bc; made as of the date first above stated. MINER: BE 'RAM L. MINER STATE OF t=� ) ss. COUNTY OF &—I�— ) The foregoing instrument was acknowledged before me this Z _"?day of � 1999, by Bertram L_ Miner, who appeared before me and executed the foregoing on his own behalf. /� J 1512 Notary Public "OFFICIAL SEAL" LINDA O'DONNELL Notary Public, State of Illinois My Commission Expires Oct. 5,2W2 STATE OF MINNESOTA ss. COUNTY OF HENNEPIN CITY: CITY OF EDINA, a Minnesota municipal corporation 1 By Its City Clerk i Its Mayor bZ�"c eyr, bP4— The foregoing instrument was acknowledged before me this day of eeteber, 1999, by v-�16ry-;t_ %;?. Aa_Lq "C_ , the City Clerk of the City of Edina, a Minnesota municipal corporation, on behalf of the municipal corporation. DARLENE R. WALLIN NOTARY PUBLIC -MINNESOTA C/v HENNEPIN COUNTY k4i My Commission Expires Jan. 31, 2000 Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) 04 �"bss, The foregoing instrument was acknowledged before me this 0 — day of Aefeher, 1999, by , -� n i_5 P.��7702- � , the Mayor of the City of Edina, a Minnesota municipal corporation, on behalf of the municipal corporation. w.r pARLENE R WALLIN Sri NOTARY PIiBLIc MINNESOTA/ HENNEPIN COUNTY li ` Commission Expires Jan. 31, 2000 My This document Arftaril:' Dorsey & Whitney LLP (tlm) 220 South 6th Street Minneapolis, MN 55402 612/340 -2600 -5- Public CONSENT THE UNDERSIGNED hereby joins in the attached Transit System Easement Agreement to evidence its consent thereto agrees to be bound the terms contained therein; provided, however, that this consent shall not limit or modify any rights of the undersigned under its lease with Bertram Miner dated August 2, 1989. Dated: -3Cn0a '1999 COMMONWEALTH OF MASSACHUSETTS COUNTY OF NORFOLK GENERAL CINEMA CORP. OF MINNESOTA, INC. ss. irk --Q& .. The forgoing consent was acknowledged before me this ,2�2 day of y the'-- (1:t �+ of General Ci lema Corp. of Minnesota, Inc.,�g Minnesota corporation, on behalf of the core ation. 0 1 6, 'z 4 It � Al V, Notary Public Id BARBARA DAGGETT, Notary Public My Commission Expires Sept. 29, 2006 • � ` `X -6- yn. id �i���✓ l� 1 [`.��� 1l NY` CONSENT THE UNDERSIGNED hereby joins in the attached Transit System Easement Agreement to evidence its consent thereto Dated: , STATE OF MINNESOTA ss. COUNTY OF HENNEPIN FRANCE MED ASSOCIATES LIMITED PARTNERSHIP WE E;ener�a au ALTA M GARDNER y '!! NOTARVP!'° I% f!INNESOTA 7 HENNEF1 i;OUNTY ' B, My Commission Expires Jan. 31. 200D C a o U The foregoing instrument was acknowledged before me this )1 day . o e 199, by �Ge- J>igwkul S , a General Partner of France Med Assocs Urnit Partnership, a Minnesota limited partnership, on behalf of the limited partnership. ST OF MINNESOTA ) ss. COUNTY OF EPIN ) The foregoing 1999, by Partnership, a Minnesota limited Notary Public was acknowledged before me this day of , . a General Partner of France Med Associates Limited on behalf of the limited partnership. -7- Notary 09/16/99, THU 14:29 FAX 16123402644 DORSEY WHITNEY CONSENT The undersigned hereby joins in the attached Transit System Easement Agreement to evidence its consent thereto. Dated: I I 1 , 1999 1^ STATE O ) ss. COUNTY OF SOUTHERN FARM BUREAU ANNUITY INSURANCE COMPANY By ��w Its Ma lei 11% VICE PRESIDENT REALTY INVESTMENTS- r*, r Bing consen was ac knowledse o e nine tl day of \ 1999, b l the of Southern Farm Bureau Annuity Insurance Company, a Mississippi corporation, on behalf of the corporation. P 0 F ry P blic PUWIC Stg1e o1 MISSI"IM' At LSW mission BxPIre 200 a: sanuaN Inc. my Bonded ?hru Sri Q010 EXHIBIT A Easement Area '.E e s J + i..H8:.`D a F9J'.':',''—r,.aCgh�:'R �FE�w1'If;:S ,a, ",# IIK 2000 Duplicate Filing Certificate TRANSIT SYSTEM EASEMENT AGREEMENT .c NLNN[_:� IkC)!N1Y,kNNt S (,)1N. as 00 IAN 13 PH 3{ 1 I K.. a ; 724GO33 ..r,.fp CO. REC. DEPUTY THIS TRANSIT SYSTEM EASEMENT AGREEMENT ( "Agreement") is made as of 1999, between BERTRAM L. MINER, a single individual ( "Miner "), and the CITY OF EDINA, a Minnesota municipal corporation (the "City "). RECITALS: A. Miner owns a parcel of real estate legally described as Lot 1, Block 1, South Edina Development Addition, according to the recorded plat thereof (the "Miner Parcel ") B. The City owns a parcel of land adjacent and east of the Miner Parcel legally described as Outlot C, The Coventry At Centennial Lakes 2nd Addition (the "City Parcel "). The Miner Parcel and the City Parcel are sometimes collectively referred to herein as the "Parcels ". C. The City plans to operate a public transit system servicing the Parcels and various other properties in the southeast Edina area (the "Transit System "). D. The City wishes to locate part of its Transit System route (the "Transit Route ") across a portion of the Miner Parcel, and Miner wishes to grant to the City a perpetual, non- exclusive easement for the same, all on the terms and conditions provided herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties hereto, Miner and the City agree as follows: 1. Grant of Easement. Miner grants to the City for the benefit of the South City Parcel a perpetual, non - exclusive easement for vehicular ingress and egress by Transit System public passenger vehicles over and across that portion of the Miner Parcel shown crosshatched on Exhibit A attached hereto (the "Easement Area "). 2. Use of Easement Area. The City may use the Transit Easement Area only for purposes of vehicular ingress and egress as part of its Transit System operation, which use may include picking up and dropping off of Transit System passengers on the Miner Parcel in a location reasonably approved by Miner. In using the easement granted herein, the City will comply with all applicable laws and regulations and will not do or permit to be done anything which would or might result in Miner becoming liable for any increased costs, damages, fines or penalties under any such law or regulation. The Transit System vehicles used by the City in the Easement Area shall not exceed a gross vehicle weight of 28,000 pounds without Miner's prior written consent, which consent will not be unreasonably withheld, conditioned or delayed. 3. Maintenance of Easement Area. Miner may erect temporary barricades across any portion of the Easement Area to: (a) repair, replace or maintain the Easement Area, (ii) prevent the acquisition of prescriptive rights by anyone, or (iii) repair, replace and maintain utilities servicing the Miner Parcel, provided that the City is at all times provided with a reasonable alternate route for the Transit System when such barricades are used. Miner will coordinate any such closings with the City so that Transit Route disruptions are minimized. 4. Relocation of Easement Area. Miner may relocate all or any portion of the Easement Area at any time, at Miner's sole expense, provided that Miner provides the City at all times with a reasonable, alternate easement area within the Miner Parcel that maintains a continuous Transit Route to and from such Parcel. 5. Indemnification. The City will indemnify, defend and hold harmless Miner and all tenants and mortgagees of the Miner Parcel, from any claims for personal injury and third - party claims for property damage arising from the City's use of the Easement Area; provided, however that this indemnification will not apply to any tenant of the Miner Parcel if such claim(s) arise from the negligence of such tenant. Miner will promptly notify the City of any claim subject to the provisions of this Section after Miner receives notice of such claim. 6. Assignment. This Agreement may be assigned by Miner at any time without the prior consent of the City; provided, however, that any assignee shall assume all obligations of Miner hereunder from and after the effective date of the assignment, and the City shall receive a fully executed copy of such assignment and assumption agreement within 5 days after its effective date. This Agreement may not be assigned by the City without Minor's prior consent (which consent shall not be unreasonably withheld, conditioned or delayed), except that the City may assign this Agreement without Miner's prior consent if the assignee is a person or entity that assumes the City's operation of the Transit System (or a similar common carrier public passenger system) along the Transit Route. The City's assignee shall assume all obligations of the City hereunder from and after the effective date of the assignment, and Miner shall receive a fully executed copy of such assignment and assumption agreement within 5 days after its effective date. If an assignment agreement, as required by this Section, is not delivered to the non - assigning party, the assignment shall not be valid and the assigning party will remain obligated under the terms of this Agreement. 7. Binding Effect. This Agreement shall run with the land and shall bind and benefit the parties hereto and their respective successors and assigns (subject to the terms of Section 6 above). If at any time Miner or his heirs, successors or assigns sells or otherwise conveys the -2- Miner Parcel, the selling or conveying party will be released from all personal obligations under this Agreement except for those obligations arising before the date that the Miner Parcel was sold or conveyed. The City shall be liable only for such obligations of the City as arise during its period of ownership and operation of the Transit System. 8. Notices. Any notice required or permitted hereunder shall be given by personal delivery upon an authorized representative of a party hereto; or if mailed in a sealed wrapper by United States registered or certified mail, return receipt requested, postage prepaid; or if transmitted by facsimile copy followed by mailed notice; or if deposited cost paid with a nationally recognized, reputable overnight courier, properly addressed as follows: If to Miner: Mr. Bertram L. Miner 950 Sheridan Road Glencoe, IL 60022 Facsimile No.: (847) 835 -4711 With a copy to: Rosenthal and Shanfield 55 East Monroe Street, 46th Floor Chicago, EL 60603 Attn: Marvin Cohn Facsimile No.: (312) 236 -7274 If to the City: City of Edina 4801 West 50th Street Edina, MN 55424 Attn: Gordon Hughes, City Manager Facsimile No.: (612) 826 -0390 Notices shall be deemed effective on the earlier of the date of receipt or the date of deposit, as aforesaid; provided, however, that if notice is given by deposit, the time for response to any notice by the other party shall commence to run one business day after any such deposit. Any party may change its address for the service of notice by giving notice of such change 10 days prior to the effective date of such change. 9. Enforcement. The parties hereto may enforce the agreements contained herein through all legal action available at law or in equity. In any proceeding for the enforcement of rights hereunder or for the breach of this Agreement, the prevailing party in any such proceeding will be entitled to recover from the other party or parties its reasonable attorneys' fees in any such action. 10. No Waiver. No waiver of any default by either party hereto will be implied from the failure by the non - defaulting party to take any action in respect of such default. No waiver of any default in the performance of any provision of this Agreement will be deemed a wavier of -3- 10/20/99 WED 15:53 FAX 612 340 7800 DORSEY & WHITNEY any subsequent default in the performance of the same provision or any other provision. No consent to or approval of any act or request by any party hereto will be deemed to waive or render unnecessary the consent to or approval of any subsequent similar act or request. 11. Counterparts. This Agreement may be executed in any number of counterparts, each when considered together shall be deemed one document. 12. Consent to Easement. This Agreement will only be valid upon receipt of written consent to the terms hereof by Southern Farm Bureau Annuity Insurance Company, a Mississippi corporation, General Cinema Corp of Minnesota, Tne., a Minnesota corporation, and France Med Associates Limited Partnership, a Minnesota limited partnership. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be made as of the date first above stated. MINER_ 8E TRAM L. MINER STATE OF' li!1 004 ) ss. COUNTY OF The foregoing instrument was acknowledged before me this z =�d ay of Vex- ��i��4��/ 1999, by Bertram L. Miner, who appeared before me and executed the foregoing on his own behalf: �' L' '� Notary Pablic ""OFFICIAL SEAL" LINDA O'DONNELL Notary Public, State of Illinois My Commission Expires Oct, 5, 2002 152 CITY: CITY OF EDINA, a Minnesota municipal corporation By ��� oil ti Its City Clerk Mayor And Its STATE OF MINNESOTA ) )Ss. COUNTY OF HENNEPIN ) -2)�r em ,bey' The foregoing instrument was acknowledged before me this day of Oeteber, 1999, the City Clerk of the City of Edina, a Minnesota municipal corporation, on behalf of the municipal corporation. DA' R ENE R. WALLIN ^ NOTARY PUBLIC - MINNESOTA HENNEPIN COUNTY - ` My Commission Expires Jan. 31, 2-000 Notary Public STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) hers by �The foregoing instrument was acknowledged before me this 6 day of Getebef, 1999, G'� n /S f%9P-770.�� , the Mayor of the City of Edina, a Minnesota municipal corporation, on behalf of the municipal corporation. -' WALLIN *y PUBLIC E R. MINNESOTA/ *ya N07ARY PUBLIC - OUNTY l/ HENNEPIN i as Jan. 31' 0 Commission Exp' This document d d'Sy"- : Dorsey & Whitney LLP (tlm) 220 South 6th Street Minneapolis, MN 55402 612/340 -2600 -5- otary Public CONSENT THE UNDERSIGNED hereby joins in the attached Transit System Easement Agreement to evidence its consent thereto agrees to be bound the terms contained therein; provided, however, that this consent shall not limit or modify any rights of the undersigned under its lease with Bertram Miner dated August 2, 1989. Dated: u-":N , 1999 COMMONWEALTH OF MASSACHUSETTS COUNTY OF NORFOLK GENERAL CINEMA CORP. OF MINNESOTA, INC. ss. " psa"m ". UGC, The forgoing consent was acknowledged before me this C3� day of }w "Y '" the fie` ; ck of General CiAema Corp. of Minnesota, Inc., Minnesota corporation, on behalf of the corpXation. otary Public BARBARA DAGGETT, Notary Public My Commission - Expires Sept. 29, 2006 no CONSENT THE UNDERSIGNED hereby joins in the attached Transit System Easement Agreement to evidence its consent thereto Dated: /,% ,� FRANCE MED ASSOCIATES LIMITED PARTNERSHIP lb eneral Partner STATE OF MINNESOTA ) ,0 Z,., ALTA M. GARDNER �6 NOTARV p''_,V. "INNIESOTA ss. HENNEPIN COUNTY COUNTY OF HENNEPIN ) My Commission Expires Jan. 31.2000 ec�ac �!• The foregoing instrument was acknowledged before me this i'Z4� day o -emu 1999, by c-e- rJrj lej ku15 , a General Partner of France Med Associa s Limited Partnership, a Minnesota limited partnership, on behalf of the limited partnership. ST OF MINNESOTA ) ) ss. COUNTY OF PIN ) The foregoing i 1999, by Partnership, a Minnesota limited Notary Public was acknowledged before me this day of , , a General Partner of France Med Associates Limited partners on behalf of the limited partnership. -7- Notary 09/16/991 THU 14:29 FAX 16123402644 DORSEY WHITNEY CONSENT The undersigned hereby joins in the attached Transit System Easement Agreement to evidence its consent thereto. Dated: 10 I , 1999 STATE O ) )s5. COUNTY OF 4,-q-L ) SOUTHERN FARM BUREAU ANNUITY INSURANCE COMPANY By ` )�w Its nil Gahy% VICE PRESIDENT REALTY INVESTMENTS• �e r Bing consen was acknowledge "ore . t . C�, day of 1999, b the of Southern Farm Bureau Annuity Insurance Company, a Mississippi corporation, on behalf of the corporation. P F ary Public Natnrll 1�A Hokl�:, Mde w sss; �At l , a PUWIc State 0 Janu&Vy 8.2002 11 Inc. Y Com mlyylon Ex41te Boded Thru Q 010 (f M EXHIBIT A Easement Area in I F'. •1 7246632 'TRANSFER ENTERED HENNEPIN COUNTY TAXPAYER SERVICES � ✓,, I Or/ JAN 18 2000) A. EASEMENT AGREEMENT THIS EASEMENT AGREEMENT ( "Agreement ") is made as of 9, , 1999, between BERTRAM L. MINER, a single individual ( "Miner "), and the CITY OF EDINA, a Minnesota municipal corporation (the "City "). RECITALS: A. Miner owns a parcel of real estate legally described as Lot 1, Block 1, South Edina Development Addition, according to the recorded plat thereof (the "Miner Parcel ") B. The City owns a parcel of land adjacent and east of the Miner Parcel legally described as Outlot C, The Coventry At Centennial Lakes 2nd Addition (the "City Parcel "). The Miner Parcel and the City Parcel are sometimes collectively referred to herein as the "Parcels ". C. The City plans to construct certain improvements upon the City Parcel as part of a park renovation project, which improvements are planned to encroach upon a portion of the Miner Parcel, and the City also needs to install an underground water main connection to service the City Parcel, which connection must be located on a portion of the Miner Parcel. D. The City wishes to obtain easements over portions of the Miner Parcel to facilitate the City's park renovation project and Miner wishes to grant to the City such easements on the terms and conditions provided herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties hereto, Miner and the City agree as follows: 1. Grant of Easements. Miner grants to the City for the benefit of the City Parcel: (A) a perpetual, non - exclusive easement (the "Park Facilities Easement ") over a portion of the Miner Parcel legally described on Exhibit A attached hereto and identified and shown crosshatched on Exhibit B attached hereto as the Permanent Park Facilities Easement area, for the construction, use and maintenance of certain public park facilities on the Miner Parcel, (B) a temporary, non - exclusive easement (the "Construction Easement ") over that portion of the Miner Parcel legally described on Exhibit A attached hereto and identified and shown crosshatched on Exhibit B attached hereto as the Temporary Construction Easement area, to facilitate construction of the Improvements (as defined in Section 2(A) hereof), and (C) a perpetual, non- exclusive easement (the "Utility Easement ") over a portion of the Miner Parcel legally described on Exhibit A attached hereto and identified and shown crosshatched on Exhibit B attached hereto as the Permanent Utility Easement area, for purposes of installation, maintenance and use of a water main connection serving the City Parcel. The Park Facilities Easement, Construction Easement and Utility Easement are collectively referred to herein as the "Easements." 2. Use of Easements. In using the Easements, the City will comply with all applicable laws and regulations and will not do or permit to be done anything which would or might result in Miner becoming liable for any increased costs, damages, fines or penalties under any such law or regulation. The City will allow no liens of any nature to attach to the Miner Parcel as a result of the City's use of or activity related to the Easements. Use of the Easements will not materially interfere with the use of or access to the Miner Parcel by Miner or Miner's tenant(s), or the employees, customers or invitees of any of them, or with the use by the holder of any other easement rights over the Miner Parcel of such rights. In addition: A. Park Facilities Easement. The Park Facilities Easement will be used only for purposes of construction, reconstruction, maintenance, repair and replacement of landscaping, sprinkler systems, public walkways, lighting, signage and related park improvements (collectively, the "Improvements ") in under and across that portion of the Miner Parcel burdened by the Park Facilities Easement. The Improvements will be constructed, reconstructed and replaced within the Park Facilities Easement only pursuant to plans and specifications approved in writing by Miner prior to commencement of any such work, which approval shall not be unreasonably withheld, conditioned or delayed, and will be deemed given if not granted or denied within 15 days after the City requests such approval. The Improvements will be constructed (i) at the City's sole expense, (ii) in a manner as to not unreasonably interfere with the normal use and enjoyment of the Miner Parcel, (iii) in full compliance with all applicable statues, codes, ordinances, rules and regulations, (iv) using materials and equipment, and design and engineering standards, equal to or better than those originally used for improvements existing within the Park Facilities Easement as of the date hereof, and (v) in a good and workmanlike manner. If the City must remove or destroy any landscaping, sodding, lighting, sprinkler systems, irrigation systems, walkways or related improvements in connection with the permitted use or uses of the Park Facilities Easement, the City at its sole cost and expense, and as soon as reasonably possible, shall restore, replace or repair such improvements to the condition as existed prior to the removal or destruction to the extent reasonably possible in light of the Improvements installed by the City. Miner shall not construct (or allow construction of) any improvements upon Miner Parcel which would materially interfere with the use of the Park Facilities Easement or the Improvements at any time constructed therein. -2- L B. Construction Easement. The Construction Easement will be used exclusively for equipment and supply staging purposes to facilitate construction of the Improvements within the Park Facilities Easement and installation of the underground water utility system within the Utility Easement, which construction, subject to the conditions contained in this Agreement, will be completed no later than November 15, 2001 (the "Construction Deadline "). For the duration of the Construction Easement, the City will keep the Construction Easement area in a secure, clean and sightly condition. C. Utility Easement. The Utility Easement will be used exclusively for underground water utility system purposes, including the right to enter upon the Miner Parcel, by itself or its assigns, agents or contractors, for purposes of installing, constructing, maintaining, altering, repairing, reinstalling and reconstructing a water main connection to connect the City Parcel to the existing water utility system. The utility improvements will be constructed (i) at the City's sole expense, (ii) in a manner as to not unreasonably interfere with the normal use and enjoyment of the Miner Parcel, (iii) in full compliance with all applicable statues, codes, ordinances, rules and regulations, (iv) using materials and equipment, and design and engineering standards, equal to or better than those originally used within the Utility Easement area, and (v) in a good and workmanlike manner. If the City must remove or destroy any driveways, walkways or related improvements in connection with the permitted use of the Utility Easement, the City, at its sole cost and expense, and as soon as reasonably possible, shall restore, replace or repair such improvements to the condition as existed prior to the removal or destruction to the extent reasonably possible. 3. Maintenance of Park Facilities Easement Area. The City will, at the City's sole expense, maintain all Improvements in a safe, structurally sound, clean and sightly condition, it being understood that neither Miner nor any of Miner(s) tenant(s) shall have any maintenance or repair obligations pertaining to the Improvements. 4. Indemnification. The City will indemnify, defend and hold harmless Miner and all tenant's and mortgagees of the Miner Parcel, from any claims for personal injury and third - party claims for property damage arising from the use of any of the Easements or any of the Improvements, unless such claims arise from the negligence of Miner or any of Miner's tenants or mortgagees. Miner will promptly notify the City of any claim subject to the provisions of this Section after Miner receives notice of such claim. 5. Events of Default. If the City fails in any obligation hereunder which can be cured by the payment of money, and such default is not cured within 30 days after written notice thereof is given to the City, or if the City defaults in any other obligation under this Agreement and such default continues for 30 days after written notice thereof is given to the City (or if such default cannot with reasonable diligence be cured in 30 days but can be cured, then such 30 -day 11911 period shall be extended for the period reasonably necessary to cure the default as long as reasonable efforts are being made to cure the same), then Miner or then owners of the Miner Parcel may exercise any one or more of the remedies set forth in Section 6 below. 6. Remedies. Upon the occurrence of a event of default under Section 5 above, Miner or any then -owner of the Miner Parcel may exercise one or more of the following remedies: A. Cure the default and charge the cost thereof, including reasonable fees of experts and attorneys, to the City, and all such costs shall be payable to Miner on demand; and B. specific enforcement, injunctive relief or any other remedy available at law or in equity, specifically excluding, however, the recovery of monetary damages or cancellation of this Agreement. No monetary damages shall be sought or be recovered hereunder by any party. Any action seeking one or more forms of relief shall not be a bar to an action at the same or subsequent time seeking other forms of relief. The costs of any such action(s), including the reasonable attorneys' fees of Miner or the then -owner of the Miner Parcel, shall be paid by the City. 7. Binding Effect. This Agreement shall run with the land and shall bind and benefit the parties hereto and their respective successors and assigns. If at any time either Miner or his heirs, successors or assigns, or the City or its respective successors or assigns, sells or otherwise conveys the Parcel owned by such party, the selling or conveying party will be released from all personal obligations under this Agreement except for those obligations arising before the date that the subject Parcel was sold or conveyed. It is expressly agreed that no breach of this Agreement shall entitle either party hereto to cancel, rescind or otherwise terminate this Agreement. However, such limitation shall not affect in any manner any other rights or remedies which such party may have hereunder, or at law or in equity, by reason of such breach. 8. Notices. Any notice required or permitted hereunder shall be given by personal delivery upon an authorized representative of a party hereto; or if mailed in a sealed wrapper by United States registered or certified mail, return receipt requested, postage prepaid; or if transmitted by facsimile copy followed by mailed notice; or if deposited cost paid with a nationally recognized, reputable overnight courier, properly addressed as follows: me If to Miner: Mr. Bertram L. Miner 950 Sheridan Road Glencoe, IL 60022 Facsimile No.: (847) 835 -4711 With a copy to: Rosenthal and Shanfield 55 East Monroe Street, 46th Floor Chicago, IL 60603 Attn: Marvin Cohn Facsimile No.: (312) 236 -7274 If to the City: City of Edina 4801 West 50th Street Edina, MN 55424 Attn: Gordon Hughes, City Manager Facsimile No.: (612) 826 -0390 Notices shall be deemed effective on the earlier of the date of receipt or the date of deposit, as aforesaid; provided, however, that if notice is given by deposit, the time for response to any notice by the other party shall commence to run one business day after any such deposit. Any party may change its address for the service of notice by giving notice of such change 10 days prior to the effective date of such change. 9. Enforcement. The parties hereto may enforce the agreements contained herein through all legal action available at law or in equity. In any proceeding for the enforcement of rights hereunder or for the breach of this Agreement, the prevailing party in any such proceeding will be entitled to recover from the other party or parties its reasonable attorneys' fees in any such action. 10. No Waiver. No waiver of any default by either party hereto will be implied from the failure by the non - defaulting party to take any action in respect of such default. No waiver of any default in the performance of any provision of this Agreement will be deemed a wavier of any subsequent default in the performance of the same provision or any other provision. No consent to or approval of any act or request by any party hereto will be deemed to waive or render unnecessary the consent to or approval of any subsequent similar act or request. 11. Counterparts. This Agreement may be executed in any number of counterparts, each when considered together shall be deemed one document. 12. Consent to Easements. This Agreement will only be valid upon receipt of written consent to the terms hereof by Southern Farm Bureau Annuity Insurance Company, a Mississippi corporation, General Cinema Corp of Minnesota, Inc., a Minnesota corporation, and France Med Associates Limited Partnership, a Minnesota limited partnership. -5- 10/20/99 WED 15:53 FAX 612 340 7800 DORSEY & WHITNEY Q003 IN WITNESS WITEREOF, the parties hereto have caused this Agreement to be made as of the date first above stated. MINER: BERTRAM L. MINER S'T'ATE O1~ ) ss. COUNTY The foregoing instrument was acknowledged before me this yl day of 1999, by Bertram L. Miner, who appeared before me and executed the foregoing on his own behalf_ Nota upFFIC1AL SEAL" LINDA O'DONNELL Natary Public, State of lilin0is My COMMUlon Eores Oct. 5, 2002 -6- CITY: CITY OF EDINA, a Minnesota municipal corporation By.�� 7 Its City Clerk Its Mayor STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) Th regoing instrument was acknowledged before me this day o Ce*n b -e- 1999, by 6 a4 A 6CiU , the City Clerk of the City of Edina, a Minnesota municipal corporation, on behalf of the municipal corporation. r- ,, DARLENF.. R. WALLIN NOTARY PUBLIC - MINNE MINNESOTA HENNEPIN COUNTY .... My commission Expires Jan. 31, 2000 Notary Public STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) T foregoing instrument was acknowledged before me this e — day 1999, by '-MQ E:-�Zd 164-- , the Mayor of the City of Edina, a Minnesota municipal corporation, on behalf of the municipal corporation. ' KA6. NOTARY P1010, IC - MINNESqf A - HENNEPIN COUNTY bi4.• -' My Commission Expires Jan. 3 , 2 0 This document drafted by: Dorsey & Whitney LLP (tlm) 220 South 6th Street Minneapolis, MN 55402 612/340 -2600 -7- Public CONSENT THE UNDERSIGNED hereby joins in the attached Easement Agreement to evidence its consent thereto agrees to be bound the terms contained therein; provided, however, that this consent shall not limit or modify any rights of the undersigned under its lease with Bertram Miner dated August 2, 1989. Dated: fi.r. COMMONWEALTH OF MASSACHUSETTS COUNTY OF NORFOLK GENERAL CINEMA CORP. OF MINNESOTA, INC. ss. QU The forgoing consent was acknowledged before me this54'4'day of � , 9-by rn , �,, A. I they .e � -�, of General Ci ma Corp. of Minnesota, Inc., &Winnesota corporation, on behalf of the corporation. /r;ow z0Xa-V'vV1 Notary Public BARBARA DAGGETT, Notary Public My Commission Expires Sept. 29, 2006 `'m155l8 4� -, p CONSENT THE UNDERSIGNED hereby joins in the attached Easement Agreement to evidence its consent thereto Dated: 1� , . STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN FRANCE MED ASSOCIATES LIMITED PARTNERSHIP By nera'lPartner ALTA M. GAR 0 h� NOTARY Pl LIC'. HENNEP ' ti The foregoin instrument was acknowledged before me this I?'a day o 1s399, by�aYC�rhuS , a General Partner of France Med Associ es Limite Partnership, a Minnesota limited partnership, on behalf of the limited partnership. STAT MINNESOTA ) ) ss. COUNTY OF HE IN ) The foregoing 1999, by Partnership, a Minnesota limited a ", Notary Public acknowledged before me this day of , General Partner of France Med Associates Limited ership, behalf of the limited partnership. 52 Notary 09/13/99 RON 11:34 FAX 612 340 7800 DORSEY & WHITNEY Z013 CONSENT The undersigned hereby joins in the attached Easement Agreement to evidence its consent thereto. Dated: l — , 1999 SOUTHERN FARM BUREAU ANNUITY INSURANCE COMPANY c By Its PHILIP H GUE VICE PRESIDENT REALTY IWESTMENTS- STATE Oi~� ) ) ss. COUNTY OF ) The forgoing consent was acknowledged before me this.' q day of Y - -; 1.999 by �' -" \ _ _the Au of Southern Farm Bureau Annuity In urance Company, a Mississippi corporation, on bqha9,Qf the corporation. , P,4� i At Large Notary notary public State of MlssanUWry 6 2002 ilk e r �j " s Garland, Inc. MY Comrnfsskn x Bonded Tntu -10- EXHIBIT A Legal Description of Easements -11- EXHIBIT A PERMANENT PARK FACILITIES EASEMENT DESCRIPTION That part of LOT 1, BLOCK 1, SOUTH EDINA DEVELOPMENT ADDITION, according to the recorded plat thereof, Hennepin County, Minnesota, described as follows: Commencing at the most easterly corner in the most southerly line of said LOT 1; thence North 00 degrees 08 minutes 17 seconds East along the easterly boundary of said LOT :f. for 110.00 feet to the actual point of beginning; thence North 89 degrees 41 minutes 1 I seconds West for 4.63 feet; thence North 00 degrees 113 minutes 49 seconds East for 19.89 feet; thence northerly and northeasterly for 11.32 feet along a tangential curve, concave to the southeast, radius, 14.50 feet and central angle 44 degrees 43 minutes 34 seconds; thence North 45 degrees 02 minutes 23 seconds East tangent to last described cLu-ve for 52.73 feet; thence northeasterly for 5.38 feet along a tangential curve concave to the northwest, radius 32.79 feet, central angle 09 degrees 24 mirlutes 10 seconds; thence South 52 degrees 50 minutes 06 East for 20.00 feet -lo an angle point in the boundary of said LOT 1; thence southwesterly, westerly and southerly along said boundary of LOT 1 to the point of beginnings. . Together with a 20 foot wide permanent easement for public utility purposes. The centerline of said easement is described as follows: Commencing at said most easterly corner in the most southerly line of LOT 1; thence North 00 degrees 08 minutes 17 seconds East along the boundary of said LOT 1 for 71.11 feet to t1i.e actual point of beginning of the centerline to be described; thence South 89 degrees 51 minutes 43 seconds West for 24.50 feet to the westerly line of that certain Utility Easement described in Docuument No. 5734152, files of the Hennepin County Recorder, and said centerline there terminating. Together with a temporary easement for construction purposes described as follows: Beginning at said most easterly corner in the most o aloe the most 1; thence South 89 degrees 51 num:ltes 43 seconds W g southerly line of said LOT 1 for 5.81 feet; thence North 00 degrees 28 minutes 23 seconds East for 11(:1.04 feet; thence South 89 degrees 41 minutes 11 seconds East for 4.63 feet to the easterly boundary of said LOT 1; thence southerly along said easterly boy indary to the point of beginning c1 -11 es.txt EXHIBIT B Depiction of Easements -12- w ANGLE POINT IN THE EXHIBIT EASEMENT EXHIBIT `- --�--- to I/ BOUNDARY OF LOT 1 4 o I 9 m TEMPORARY CONSTRUCTION EASEMENT o �A O �G NET AREA 473 SQ. FT. A 'G 0 00 N s1' �0o9'Qj- PERMANENT UTILITY EASEMENT � NET AREA = 190 SQ. FT. S J CENTENNIAL PERMANENT PARK FACILITIES EASEMENT ° b'� NET AREA = 1693 SQ. FT. ,•�O ,J9 �+ 0 LAKES NET AREAS EXCLUDE PORTIONS OF EASEMENTS LYING WITHIN EXISTING OR Lu 4�'Q�� ♦sue z NORTH PARK OTHER EASEMENT PARCELS SHOWN HEREON `p v' ti d- 9� ,>9 uSOS�, per' -���-- BOUNDARY OF LOT 1 ELY BOUNDARY LINE I �' v' • c , POB 500008, 17" E MOST E'LY COR, IN THE 0�� `� N N89 °41' 11 "W ; MOST SLY LINE OF L07 1 F 00 63 129.33 71.11 -- - - - - -- - J 110.04 N00 028 23 E - - - r 11.32 = - -19.89 10 I: o _ :I CURB (TYPICAL)' LO R=1 4.50 N0001 ' 18'49 " E I: 1' MOST S'LY LINE OF LOT 1 A =44 °43'34" _-_____ -- � �' , -'� J�'EXISTING UTILITY EASEMENT PER DOC. NO. 5734152 ` J J♦`�i y ` \ If BRW m A DAMES a MOORE GROUP COMPANY 1 INCH = 20 FEET ('. `• f -% v, J ` DATE: AUGUST 31, 1999 � ♦`yJ 1i��J M in Sri d- vi 00 V7 t -- 0