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CC Staff Report 7-13-09 CITY OF CHANHASSEN 7700 Market Boulevard PO Box 147 Chanhassen, MN 55317 Administration Phone: 952.227.1100 Fax: 952.227.1110 Building Inspections Phone: 952.227.1180 Fax: 952,227.1190 Engineering Phone: 952,227,1160 Fax: 952.227,1170 Finance Phone: 952,227,1140 Fax: 952.227,1110 Park & Recreation Phone: 952,227.1120 Fax: 952.227.1110 Recreation Center 2310 Coulter Boulevard Phone: 952,227.1400 Fax: 952.227.1404 Planning & Natural Resources Phone: 952.227.1130 Fax: 952.227.1110 Public Works 1591 Park Road Phone: 952.227.1300 Fax: 952,227.1310 Senior Center Phone: 952.227.1125 Fax: 952,227.1110 Web Site www.ci.chanhassen.mn.us ~ MEMORANDUM TO: Todd Gerhardt, City Manager FROM: Angie Kairies, Planner I DATE: oW' July 13, 2009 SUBJ: Revocation of Nick's Storage and Parking CUP 87-2 and IUP 92-1 1900 Stoughton Avenue - Planning Case #08-10 PROPOSED MOTION: "The City Council moves to table the revocation of CUP 87-2 and IUP 92-1 until the September 14, 2009 City Council meeting, to enable the applicant the opportunity to provide a resolution for all outstanding issues." City Council approval requires a majority of City Council members present. EXECUTIVE SUMMARY Staff is recommending revocation of the Conditional Use Permit 87-2 and Interim Use Permit 92-lfor Nick's Storage and Parking unless action is taken to meet the conditions of approval. Section 20-237 of the Chanhassen City Code states that failure to comply with any condition set forth in a conditional use permit shall be a misdemeanor and shall also constitute sufficient cause for the revocation of the conditional use permit by the City Council following a public hearing. The property owner shall be notified in advance of the city council's review of the permit. BACKGROUND May 4, 1987 Conditional Use Permit 87-2 was granted to allow a three-phase mini-storage facility located on 16.29 acres at 1900 Stoughton Avenue known as Progress Valley Mini Storage with conditions including, but not limited to, landscaping requirements, a detention basin designed to limit the on-site runoff to the predevelopment rate for a 100-year storm event, no outdoor storage, and a chain link fence of 6 feet around the perimeter. Chanhassen is a Community for Life - Providing for Today and Planning for Tomorrow Todd Gerhardt Nick's Storage and Parking July 13, 2009 Page 2 February 10, 1992 City Council approved an amendment to Conditional Use Permit #87-2 to allow the rental of no more than 20 trucks and 4 trailers, with no trucks exceeding 26 feet in length, provide 100 percent screening at the southwest comer of the site and be confined to the area shown as Phase III on the site plan, and have a gravel surface. February 24, 1992 The City Council approved a Zoning Ordinance Amendment to Allow Screened Outdoor Storage as an Interim Use Permit in the Business Fringe (BF) District, Second Reading. The City Council also approved Interim Use Permit 92-1 to allow screened outdoor storage for the storage of the truck and trailer rental. October 2004 The 16.29 acre parcel was divided into two parcels ofland: the mini storage located on Parcel A, and the green space and "ponding area" located on Parcel B. The Conditional Use Permit was not amended when the parcel was subdivided; therefore, the Conditional Use Permit continues to govern the entire 16.29 acres, providing the green space for the site. Being that the pond was never installed, it is the applicant's responsibility to provide adequate ponding to accommodate the mini-storage facility. Todd Gerhardt Nick's Storage and Parking July 13, 2009 Page 3 On October 13, 2008 The City Council approved Planning Case 08-10 for an amendment to Conditional Use Permit 87-2 for Nick's Storage and Parking to allow a total of 60 outdoor parking spaces to be located in Phase III of the site. The approval was subject to conditions 1-15 ofthe Amended and Restated Conditional Use Permit, which includes removal of illegal signs, landscape screening, and construction of a pond in the northern portion of Parcel B, with a drainage and utility easement encompassing the pond dedicated to the City. Prior to adding the conditions pertaining to the location and construction of the pond and the dedication of the drainage and utility easement, the applicant stated that the two parties (owners of Parcel A & B) had come to an agreement to locate the pond on Parcel B in its original location as shown above and designed to meet NURP standards by McCain and Associates Engineering. CURRENT STATUS The conditions of approval stated that the pond must be installed no later than November 15, 2008. Due to the time of year, McCain and Associates, on behalf of Nick's Storage and Parking, requested an extension in writing to have the pond installed not later than four weeks after the road restrictions were lifted in 2009. The restrictions were lifted on April 20, 2009. The installation deadline was May 18, 2009 and the pond was not installed. Following several conversations with the applicant to bring the site into compliance, it came to the City's attention that the agreement between the property owners of Parcel A and B was not executed by all parties involved. Parcel B is owned by both Gary Dungey and Gary Brown; however, the agreement was signed solely by Mr. Dungey on behalf of Parcel B and Mr. Brown was not included in the agreement. To date, Gary Brown has not agreed to the drainage and utility easement or the construction of the pond on Parcel B. Therefore, the conditions pertaining to the pond have not been met. Staffhas formally notified the applicant of the revocation public hearing via email and a certified letter dated June 8, 2009. Staffhas been in contact with Gary Brown to help alleviate any concerns he may have regarding the construction of the pond to assist the applicant. While talking with Mr. Brown, he stated that the pond is already constructed. However, the topography of the ponding area is relatively flat and dry. Additionally, when McCain and Associates conducted their review of the site to develop the approved pond model, they never mentioned existing conditions that reflect a pond currently on the site. Todd Gerhardt Nick's Storage and Parking July 13,2009 Page 4 June 17,2009 Site inspection Conclusion: The following conditions have not been met: 1. The 60 parking stalls for various vehicle storage shall be confined to the area labeled Phase III in the staff report and the area shall have a gravel or grass surface. As of June 17,2009 one school bus is currently located on the east side of the property. 2. Drainage and utility easement is shown but must be revised to include: a. Add ten feet of width for a total of 20 feet of easement between the drive entrance and the pond easement. b. Provide drainage and utility easement description and drawing. c. Drainage and utility easement must cover entire 944 contour on the east side of the pond. This condition has been met. However, the Drainage and Utility Easement has not been signed and submitted to the City for recording. 3. The pond must be completed no later than November 15.2008. Previous extension request extended installation deadline to May 18,2009. This condition has not been met. 4. A detailed erosion control plan will be needed. At a minimum, this plan shall include: a. Erosion control blanket (category 3) on all slopes 3: 1 or steeper. This includes the ponds. b. Perimeter silt fence needs to be shown. c. A re-vegetation plan for all disturbed areas. Deep-rooted woody vegetation is encouraged north of the outdoor storage area. d. An inspection of erosion control must be conducted prior to construction commencement. This condition has not been met. Todd Gerhardt Nick's Storage and Parking July 13, 2009 Page 5 RECOMMENDA TION Staff is recommending the City Council adopt the following motion: "The City Council moves to table the revocation of CUP 87-2 and !UP 92-1 to the September 14, 2009 City Council meeting to enable the applicant the opportunity to provide a resolution to all outstanding issues. ATTACHMENTS 1. Copy of Notice of Revocation Letter dated June 8, 2009. 2. Copy of Memorandum to defer pond construction from McCain and Associates, Inc. dated November 4, 2008. 3. Drainage and Utility Easement document and Legal description and drawing of the proposed pond. 4. Copy of Applicant's Cooperation Agreement with Parcel B. g:\plan\2008 planning cases\08-10 nick's storage & parking\6-22-09 executive summary. doc CITY OF CHANHASSEN 7700 Market Boulevard PO Box 147 Chanhassen, MN 55317 Administration Phone: 952.227.1100 Fax: 952.227.1110 Building Inspections Phone: 952.227.1180 Fax: 952.227.1190 Engineering Phone: 952.227.1160 Fax: 952.227.1170 finance Phone: 952.227.1140 Fax: 952.227.1110 Park & Recreation Phone: 952.227.1120 . Fax: 952.227.1110 Recreation Center 2310 Coulter Boulevard Phone: 952.227.1400 Fax: 952.227.1404 . Planning & Natural Resources Phone: 952.227.1130 Fax: 952.227.1110 Public Works 1591 Park Road Phone: 952.227.1300 Fax: 952.227.1310 Senior Center Phone: 952.227.1125 Fax: 952.227.1110 Web Site www.ci.chanhassen.mn.us 6 ~ -to June 8, 2009 CERTIFIED MAIL Mr. Jacques Gibbs Nick's Storage and Parking 6921 Beach Road Eden Prairie, MN 55344 Re: Revocation of CUP Amendment for Nick's Storage & Parking Located at 1900 Stoughton Avenue - Planning Case 08-10 Dear Jacques: On October 13, 2008, the Chanhassen City Council approved an amendment to Conditional Use Permit #87-2 to permit a total of 60 outdoor storage spaces to be located in Phase ill of the site, subject to conditions 1-15 (see Amended and Restated CUP 87-2, lUP 92-1 attached). Over the past eight months, staff has had numerous correspondences with you to ensure the site is brought into compliance. However, nPt>t.ogress has been made to date. As such, this application will be forwarded to th~Oit)'Council with a recommendation to revoke the Conditional Use Permit('fhe,ii\mended and Restated Conditional U~T;l?e~t87::2, Planning Case 08-10, is'sphed1.iledfor City Council review for revqcatioilonJiilY13, 2009. ',- ," .... :". --: ',',-,.',"'" .-.-, '",.'.- ." .' 'Thp fI"\11I"\m1nd';'R1i111f.1Hn:hQS~hAf}l;hgh<"" pt. ..... ......_ ......................., Y'f .....L..I.b..-'>J'u.~!-'_~:y.......S,,J.....~:"-~,;....~...,"":.v_v.-...,.I.,:IQ.':''''.. ," '.-.,"- -,'.:' ,- :,-,', ,:.::,,,",,, -:.,-::'-:' -,,--,.-...,:'-<:::- " "" -,' ,.:-::,--',',' ':", -"'-.-,':-,' "',' -:._,:,-.- ,-,.-" ..',. ','_'_', 'c. . "-"'-:_'""'-'.', , ".__O''' ,,,: ",""'--, .', "'_:", '-,.,', ....,,:".---:, ''-:,-:..-,'' -'".' -;.' ,'-. ,.'-' - ',-: 1. The 60 parki#~s!~lsifo]1\1iu'i~u.s<;v~!i~~l~;stQrages~al1becohfihed lathe area labeled Phase III ill tl1e>st:iffrepoftalldtheare~$hal1ha:ye::tgravelorgrass '. surface. . .,. .< ............."........... .' . . .. . ..' . . ,,' " ',': . ,," " ' " ,. . :- .,-..:':-;- .,'--, .'>-', ,,':- '-'::.:::,,:'\. --- ,',,' ". 2. This conditiollhdsnlJtbeettmet~ '.':',- "..,."':",-::>:,':.:--,'-:'_:::;:"'--'.""','.::-,:':','.:,':'-,-:, ',.:-:-,:::, "-.,-'-,, :,', , :.-"::::'.__-,.;;...._::::\:':',-.:,,::'-':- .:'" ..:...,-',.':'::'/:/.:'-,:.::,'::.:C-::::',:,:._i,/:'-._,';:.'",:_:-,-"- :",,:-':--,-; 3. The appliCan!..~h~~...pr~~~~~l~;~l#()~~~lS~~~CP~;a1()!1g,tl1~'.fence .line..to.' provide 1 OO'Pt!rc~tltsc~~~llip.~of~Il~;~.t,l~(lt?Pr;;st9r~g~;9f~a; .'.," . ", - -. .- " .,- . "--:.. "'---. ,---;-'- '.-'-,. ", .-,'" - '.' . .-,'- -' ,.' 'YenJi.~(Jii~nT:~q~ited. .... :."::"'__'::,;.<...-,;_ .'<:_,;~.- ,c-.:.-',:.._--'. '.','. -. '._, ,_,>'" .._c..', ':,':_-',.: _:-_,_ _ .:' ."__' ,',.' 4. .' ..ffia1rl~g~aridUtilitYea~~fuehtjs.shb"'llbutIl1tlstber~visedCt8include: ,',', --,' ," ','., -, -', ',-' ,.-,_.,'''-'', " " '-.. -' -" ,,,' ','-', '- ",...., '-,-'.'.',-,' ,,','" . . '" -':: ---''':..",'. ,':. ,-'." -.'-,-", . . ',--- ....-.._-.' .'.-' " .:.:.".:'_:':":_,'" '." ':-:_'-.-,;: ,,: ,'-:'::'::'---,,:":',,-.-:. ,:,_::-": .,:., ),:::_',::::::..:,,,':::.;":-/-'::: ,".~\'~';'_:, -:,"-",,':- ....::.:..., .-, ,.',',,-' , ",' - ,-: a. Add te1rfeet ofwidtl1fof.alotal of2f) Jeet of easement between the drive entrance~dthepolldeasemellK ......; '-': '- ,.". -, .':-. .'. :'." '. b. Provide drainage and utilityeasementdescription and drawing. c. Drainage and utilityeasementmus(c;over entire 944 contour on the east side of the pond. This condition has not been met. Drainage and Utility Easement has not been submitted to the City for recording. SCANNED Chanhassen is a Community for Life - Providing for Today and Planning for Tomorrow " Mr. Jacques Gibbs June 9, 2009 Page 2 - 5. The pond must be completed no later than November 15.2008. Previous extension request extended installation deadline to May 18, 2009. This condition has not been met. 6. A detailed erosion control plan will be needed. At a minimum; this plan shall include: a. Erosion control blanket (category 3) on all slopes 3:1 or steeper. This includes the ponds. b. Perimeter silt fence needs to be shown. c. A re-vegetation plan for all disturbed areas. Deep-rooted woody vegetation is encouraged north of the outdoor storage area. d. An inspection of erosion control must be conducted prior to construction commencement. This condition has not been met. Please plan on attending the July 13, 2009 City Council meeting. If you have any questions, please feel free to contact me at (952) 227-1132. Sincerely, ft7~ Angie Kairies Planner I Enclosure cc: CUP File 87-2 IUP File 92-1 Planning Case File 08-10 ec: Kate Aanenson, Community Development Director Terry'Jeffery, Water Resources Coordinator Joe Shamla, Project Engineer g:\plan\2008 planning cases\08-10 nick's storage & parking\revocation notice.doc tt.:}~/;~~ih;:'~ CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA .. t AMENDED AND RESTATED CONDITIONAL USE PERMIT #87-2 INTERIM USE PERMIT #92-1 1. Permit. Subject to the terms and conditions set forth herein and with the Conditional Use Permit 87-2/ Interim Use Perinit 92-1 recorded with Carver. County. on April 23, 1992, Document No. 134346, the City of Chanhassen hereby grants: a) A Conditional Use Permit for a mini-storage facility. b) Interim Use Permit for screened outdoor storage. 2. Property. The permit is for property situated in the City of Chanhassen, Carver County, Minnesota, and legally described as shown on the attached Exhibit A. 3. Conditions. The permit is issued subject to the following conditions: a. The 60 parking stalls for various vehicle storage shall be confined to the area labeled Phase ill in the attached Exhibit B and the area shall have a.gravel or grass surface. b. The applicant shall provide 15 Black Hills Spruce along the fence line to provide 100 percent screening of the outdoor storage. area. 1 . Th~ a~"""l;"'a....f- shall 1:1"'h~':+ '!l: l.of.+p....,,~ __.0,.1':+ f._ __'no._ +J.,.~ __..,,+ t'~ "!"!"\^-t:O.~.n.l :'!"'!!~+nnf"l!,+;ro:..~ ~~A ~ ..i.. .i..U'-' YY.l.iv -iii. .il -.i..i uUv.iijii. u. lvi.i.""j Vi vivUH. '-V \.Jv."j \.1...... '-'\JOt. Vi Ji.l(i."'-'.lJC:ii iJI01.W.l(i"JVl1 auu a one-year warranty. c. Drainage and utility easement is shown but must be revised to include: 1. Add ten feet of width for a total of 20 feet of easement between the drive entrance and the . pond easement. 2. Provide drainage and utility easement description and drawing. 3. Drainage and utility easement must cover entire 944 contour on the east side of the pond. d. Update sheet 2 of 2 skimmer detail to show a berm elevation of 744. e. Plans and report must be signed by a registered engineer registered in the state of Minnesota. f. Security of $12,000 must be provided to the City for the construction of the pond and maintenance of erosion control. . g. The pond must be completed no later than November 15, 2008. 1 h. A detailed erosion control plan will be needed. At a minimum, this plan shall include: 1. Erosion control blanket (category 3) on an slopes 3:1 or steeper. This includes the ponds. 2. . Perimeter silt fence n~ds to be shown. 3. A re-vegetation plan for all disturbed areas. Deep-rooted woody vegetation is encouraged north of t4e outdoor storage area. 4. An inspection of erosion control must be conducted prior to construction commencement. L Any additional development to Parcel A or Parcel B shall require additional stormwater ponding. (This would include Phase III of Pareei A). j. The 60 outdoor storage units shall not increase the hard surface coverage on the site. k. The outdoor storage shall be removed from the site upon completion of Phase III of the mini- storage facility. 1. Sign 2, the ground low profile along Old Highway 212, must be removed. ID. Sign 4, the directional sign at the corner of Old Highway 212 and .Stoughton A venue, must be removed. . n. Sign 1, the entrance sign along Stoughton Avenue: 1. Shall meet the definition of a ground low profile sign in that it must be in contact with the ground; 2. . May not exceed 64 square feet of sign display area; .3. May not be greater than 8 feetin height; 4. A sign permit must be.approved prior to. alterations and Signs 2 and 4 must be removed prior to sign permit approval. o. Sign 3, the pylon sign along Old Highway 212 - A sign permit must be approved prior to alterations and Signs 2 and 4 must be removed prior to sign permit approval. 4. Termination of Permit. . The City may revoke the permit following a public hearing for v1ohtion of the terms of this T"_o.nn1t ...& .&___.... _.a. ....,a_ ._....."',11 _.. _.... y_........._... 5. Lapse. If within one year of the issuance of this permit the .authorized construction has not .been substantially completed or the use commenced, this permit shall lapse, unless an extension is granted in accordance with the Chanhassen Zoning Ordinance. 2 '"' ~ j 4: . , 6. Criminal Penalty. Violation of the terms of this conditional use permit is a criminal misdemeanor. Dated: October 13, 2008 CITY OF CHANHASSEN . (SEAL) AND: Gerhardt, City Manager STATE OF MINNESOTA ) (ss COUNTY OF CARVER ) The foregoing instrument was acknowledged before me thig..t7~y of~200K. by Thomas A. Furlong, Mayor, and by Todd Gerhardt, City"Manager, of the City of Chanhassen, a Minnesota municipal corporation, on behalf of. the corporation and pursuant to the authority granted by its City Council. . l.r-... /} !' KAREN J. ENGELHARDT , Notary Public-Minnesota My comm\S8lOR ExpileS Jan 31. 2010 DRAFilVBY: City. of Chanhassen P. O. Box 147 7700 Market Boulevard Chanhassen, MN 55317 (952) 227-1100 3 !'C., '".p' , tI' EXllIBIT A "i Alltbat part of tbe ~ 114 of the SW ,1/4 of Section 34. 'township 116. Range 23. Carver County, HiineaCflij deacrib&cl as follows: ". " Co1lllllencing at the SE corner of sald S1l1/4 Section 34-116-23 .running thence North along 1/4 line to tbe South' line of right of vay of Hilwauta;e and St. 1.ouis Railway Co . thence Southwesterly along South line of Baid r1Bht of way to South line ;r said Section 34; thence Rest aloDg said SectioD line to place of beginning. Being all that part of SE 1/4 of SlI 1/4 aaid Section lying South of rigbt of way of said Hilwaukee and St. Louis Railway Co.. and con- taining t 1/2 acres. AND The SV 1/4 of tbe SE 1/4 of Section 34. Tovnship 116. Range 23, lying southerly of the Southeasterly right of lIay line of the Chicago and Northwestern Railway cOllIpany, Carver (hunty, KinneBota. EXCEPTING therefrom the following described .parcels : Parcel 1: A strip of land over and across the SlI 1/4 of SE 1/4 Section .34-116-23 being 53 feet in width on each side of center line of rrunk Highway No. 51. and said.center line being. described as follovs: From a point o~ East line of said Section dist~nt 874.8 feet Northerly from the Southeast corner of said Sectioo; thence runnint in a Southwesterly direction at an ant1e of 82-54' lIitb said Section line for.. distance of 1000.5 feet to a point; thence deflect to the right '.00' on curve Vith delta angle of 57807' and radius of 716.8 feet for a distance of 441.4 feet DOre or less to the East line of said SlI 1/4.of SR 1/4; thence continuing on said curve for a distance of 172.6 feet to . point; thence on 8 tangent to 8,aid curve for Ii distance of 172.6 feet to a point; thence on a tangent to said curve for 8 distance of.819.6 feet to a point; thence deflect to the left on a 15.00' curve with delta angle of 95826' and radius of 383.1 feet for a distance of 393 feet more or less to the North and" South 1/4 line of said Section and there terminati~g excepting thererrom that part of the right of way of Hinneapolis and St:. Louis Railway C01llpany which lies lIithin said strip. . Parcel 2: Beginning, at point 20..00 chains Vest from SE corner of uid Section 34 running thence North 4.06 chain8 to center of Chaska and Shakopee 'Road; thence South 64-30' West 8.93 c:ladn.; thence Ree!: 8.16 ehains to place of begiiJiliug. Containing i.6S acres. - Part:el 3: Co_encing at SE corner of S1l 1/4 of SB 1/4; thence North 4.06 chains to center of Cbaska and Shakopee Road, the point of beginning of tract to ~e conveyed herewith; thence Soutb 64830' West 170 feet to point of center of said road; thence North and parallel to. East line of said S1l 1/4 of SE 1/4 to 'South line of Trunk Highway No. 51; thence Southeasterly along South line Truck" Highway No. 51 to point where same intersects East line of said SV 1/4 of. SE 1/4; thence South along aaid East line to place of beginning. COntaining 1/2 acre, more or le.8. " Parcel 4: Co_eoeing at the point of intersection of the Bast line of the ~w 1/4 of the SI 1/4 of Section 34-116--23, and the Northerly right of way line of U.S. Trunk Highway #21~, a. the 88111e presently exists and runs tbrou&h said S~ 1/4 of SE 1/4 of Section 34, vhicb said point of intersection is the place of beginning of the land to be herein described; thence running Northwesterly along said Northerly right of l18Y line a distance of 292 feet to a point thereon; thence turning and running East parallel to the South Section line of Said Section 34. a distance of 329 feet. mo~e or leas to the said East .Une of the SW 1/4 of t;he SE 1/4 of Section 34; tbence turning and running South along said East line ~ dbtance of 312 feet more or lesa to the place of. 'beginning, .lying and b.e.iJii io the SW 1/4 of SR 1/4 of Section 34-116-23 and cOn- taining 1.10 acres of land. 1IlOre or leBs. . .... .; <:'.-': ::.;.=~;::.;~ i ,n; cul~1 ~ ffi ~ :::?jl il'i f o ~ L it II l II ,i Ie. i ,. " ! ;'11 "1-"'1 J I I ~ I ]i I ]1 $ -- ~ .... ..... .0 .- .d ~ l%l 0<6 - \D McCain and Associates.lnc.tD ~9.lNEERS & SCIENTISTS 7(/UJt(Jt::;r" CtJIllhtmwd. SerPic&. Memorandum Date: November 4, 2008 To: Angie Auseth From: John McCain Re: Request for Deferral of Pond Construction - Progress Valley Storage Per our telephone conversation this afternoon, I am recommending on behalf of Progress Valley Storage that construction of the storm water pond on the Dungey/Brown property be deferred until the Spring 2009 construction season. Since there is not a compelling reason to put the pond into service immediately (there will be no disturbance to the site that would create an additional sediment load), it is my opinion that it would be imprudent to attempt to construct the pond this late in the construction season, especially given the near-term forecast for rain. While it is possible that the pond construction could be completed this fall, it is equally likely that weather conditions could prevent its completion with the associated potential for increased sediment loading downstream due to construction disturbance of existing vegetation. Progress Valley Storage agrees to construct the pond within four weeks of the lifting of 2009 spring road restrictions. If acts of nature prevent construction of the pond during this time frame, and is confirmed by the City, the applicant will request an extension and provide a reasonable deadline for the completion of this work. Thank you for your consideration of this request. P:\Projects\NS1\NST 0701\Corresp\11 0408.Rl Auseth memo.doc PO Box 429,5300 Highway 12 Maple Plain, MN 55331 tel 1952-346-3900 fax 1952-346-3901 www.mccainassociates.com SCANNED (reservedfor recording information) GRANT OF PERMANENT EASEMENT FOR PUBLIC DRAINAGE & UTILITY PURPOSES GARY W. DUNGEY AND GARY L. BROWN, LLP, a Minnesota limited liability partnership, d/b/a Progress Valley Storage, hereinafter referred to as "Grantor", in consideration of One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby grant unto the CITY OF CHANHASSEN, a municipal corporation organized under the laws or the State or Minnesota, the Grantee, hereinafter referred to as the "City", its successors and assigns, forever, a permanent easement for public drainage and utility purposes over, across, on, under, and through land situated within the County of Carver, State of Minnesota, legally described on the attached Exhibit "A" and depicted on the attached easement sketch. INCLUDING the rights of the City, its contractors, agents, servants, and assigns, to enter upon the easement premises at all reasonable times to construct, reconstruct, inspect, repair, and maintain said public drainage and utility systems over, across, on, under, and through the easement premises, together with the right to grade, level, fill, drain and excavate the easement premises, and the further right to remove trees, bushes, undergrowth, and other obstructions interfering with the location, construction, and maintenance of said public drainage and utility systems. 143297vOl SRN:Ol107/2009 CHANlNick's Storage & Parking Site (1875 Flying Cloud Drive) The above named Grantor, its successors and assigns, does covenant with the City, its successors and assigns, that it is well seized in fee title of the above described easement premises; that it has the sole right to grant and convey the easement to the City; that there are no unrecorded interests in the easement premises; and that it will indemnify and hold the City harmless for any breach of the foregoing covenants. IN TESTIMONY WHEREOF, the Grantor hereto has signed this easement this day of ,2009. GRANTOR: GARY W. DUNGEY AND GARY L. BROWN, LLP By: Gary W. Dungey, Partner And Gary L. Brown, Partner STATE OF MINNESOTA ) ( ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2009, by Gary W. Dungey and by Gary L. Brown, the partners of Gary W. Dungey and Gary L. Brown, LLP, a Minnesota limited liability partnership, on behalf of the partnership. NOTARY PUBLIC DRAFfED BY: CAMPBELL KNUTSON 'Prrl.fhcocoi",:r,.,nl A """,r>;n+irul'l .A ,VJe..-"'......V'H...&..I..l......,V'-'H.-f,....'-",... 317 Eagandale Office Center 1380 Corporation Center Curve Eagan, Minnesota 55121 Telephone: (651) 452-5000 SRN :rns 143297vOl SRN:01/0712009 CHAN/Nick's Storage & Parking Site (1875 Flying Cloud Drive) EXIDBIT 'A" TO GRANT OF PERMANENT EASEMENT Easement Description: An easement for drainage and utility purposes over, under and across that part of the Southwest Quarter of the Southeast Quarter of Section 34, Township 116, Range 23, Carver County, Minnesota, described as follows: Beginning at the intersection of the southeasterly right-of-way line of the Chicago and Northwestern Railroad with the southwesterly right-of-way line of U.S. Trunk Highway Number 212; thence South 51 degrees 19 minutes 00 seconds West, assumed bearing along said southeasterly railroad right-of-way line, a distance of 149.59 feet; thence South 38 degrees 41 minutes 01 seconds East a distance of 80.91 feet; thence South 84 degrees 15 minutes 11 seconds East a distance of 204.21 feet; thence North 29 degrees 32 minutes 42 seconds East a distance of 61.71 feet to its intersection with a line distant 20.00 feet southwesterly of and parallel with said southwesterly right-of-way line of U.S. Trunk Highway Number 212; thence South 59 degrees 07 minutes 14 seconds East, along said parallel line, a distance of 38.68 feet; thence North 30 degrees 52 minutes 46 seconds East a distance of 20.00 feet to said southwesterly right-of-way line; thence North 59 degrees 07 minutes 14 seconds West, along said southwesterly right-of-way line, a distance of 245.71 feet to the point of beginning. [ABSTRACT PROPERTY] 143297vOl SRN:Ol/07f2009 CHAN/Nick's Storage & Parking Site (1875 Flying Cloud Drive) Ilf ~ I / 1/ I / 1// I * I // I * I / / * / * / ~ ffi ::!i ::!i ljj C jO ~ ffi ~ ;;: ~ ~ ~ o 11. ~ 11. E9 -~- . < ~ d i~~ ~~~ h~ ~~~ ~~~ i~1 ~.~ ~~. ~.5 ~n ~i~ ..0 ~ ~~ i~ i! ffi~ ~~ ~~ II ~~ I U ~ Ri ~lJ "~ ~a: ~~ ~~ i~ ~~ .~ ~i J ~~ U ~~~i ~:i ~~~. 3~ ~~~~ g~~~~h 5F~...l:Sffit f~~g~i~ g~~~~hlg ~~~~~"~ 8fE",oi~1S ~~n~U ~~~~~~g dU~i; ~m8!i~~~ ~oSS.H t8~~I~~~G g~~!~5~~ ~-..~,,- -...'"..''' ,......_-Zlll91lop~~ - ~ ~ ~ !~~ ~w3 g3. ~ r cr: w ::!i ::!i 52 ~~ z _~ m w .. ~ ~ 0 ~ z 0--- CL ~.- - :Z o M en EB S~ ~" if C Z o 11. ffi ~ !;( ;;: " ~ ~ cr: ~ g ~ 5 en 0 . :Z :5 11. EB I ! I w ~ ~ lD Z o ~ w > o cr: ~ ] ;;: ::!i Ii; cr: w o ~ ~ ~ z . o ti w en @ ~! ~3 ~~ Ii I ) J _~o_ ~ "n ~ ~ ~iU ~ ~ ~ .st ffi ~ ro - F 11. 01 ~. ~ (.)~ ::;: C ;2:1! a: III ca ~ 0 ~ rJ) ~ ~ Q. if~ ~:i ~i h u>" ~ Z 5 -' 'J /' .~J 08-ID COOPERA nON AGREEMENT ~ Agreement made this /3 day of October, 2008 between Gary W. Dungey and Gary L Brown, LLP, a Minnesota Limited liabiliTY Partnership, (hereinafter Dungey/Brown), and Progress Valley Storage ofMimlesota. LI,C, a Minnesota Limited Liability Company, (hereinafter Progress Valley). Whereas it is proposed that Progress Valley would. for the mutual benefit of the parties hereto, construct certain utility, pond, and drainage improvements upon certain real property owned by Dungey/Brown, Now, therefore, the parties hereto, each in consideration of the representations, covenants and agreements of the other, as set forth herein. mutually represent, covenant and agree as follows; Section '1 Recitals 1.1 In 2004 Progress Valley purchased from Dungey/Brown certain real property which is located in the City of Chanhassen, County of Carver, State of Minnesota, commonly known al) t 900 Stoughton Avenue, Chaska, MN 5531 R (hereinafter the "Progress Valley Property"). The legal description of the Progress Valley Property is set forth on Exhibit A anachednereto and made a part hereof 1.2 Excluded from the above described 2004 purchase transaction was certain real property which was J:'etained by Dungey/Brown and continues to be owned by Dungey/Brown, which property is comrnopJy known as 1910 Stoughton Avenue, Chaska. MN 55318 (hereinafter the "Dungey/Brown Property"). The legal description of the Dungey/Brown Property is set forth on Exhibit B attached hereto and made a part hereof. 1.3 While both the Dungey/Brown Property and the Progress Valley Property have "Chaska mailing addresses" both properties are located within the municipal boundaries of the City ofChanhassen. 1.4 On or about May 4, 1987, at time when the Dungey/Brown Property and the Progress Valley Property were one parcel. which encompassed both the Exhibit A legal deSc);ption and the Exhibit B legal description (hereinafter the aUnitary Parcel"), the City of Chanhassen issued Conditional Use Permit ("CUP &7-2), which authorized the conditional use of the Unitary Parcel as a "mini storage facility. " 1.5 CUP 87-2 contemplated that the owners of the Unitary Parcel would construct and maintain thereon, among other things, a storm water detention basin which would limit on-site run-off to a predevelopment rate for a 100 year storm event. 1.6 The files and records of the City ofChanhassen indicate that the location of the above described stonnwater detention basin would be within the boundaries of what is now the Dungey/Brown Property. 1 SCANNED l.7 From and after the date of its 2004 purchase of the Progress V alley Property, Progress Valley Storage ofMillllesoIa, LLC has operated a mini srorage facility on that property. 1.8 On or about August 13,2007 Progress Valley received from the City of Chanhac;sen, a written compliance review, which among other things, asserted a num ber of non-compliance issues in connection with Progress Valley' s use ofthe Progress Valley Property. 1.9 The non-compliance issues raised by the City of Chanhassen ultimately included a demand by the City of Chanhassen that Progress Valley construct certain Slormwater treatment facilities on the Dungey Brown Property in the general vicinity of the detention basin which had been contemplated in CUP 87-2. 1.10 City of Chanhassen has notified Progress Valley {hat bringing its use of the Progress Valley Property into compliance with City requirements would include the construction of certain storm water treatment faciIitie::; on the Dungey/Brown Property, which facilities would serve mini storage facility on the Progress Valley Property. 1.11 The plans and specifications for stonnwater facilities (see Section 1.10 above) are set forth in the McCain and Associates Plans and Storm water Calculations dated August 8, 2008, a copy of which is on file in the office of the City ofChanhassen City PlaMer (hereinafter the "McCain Plans"). 1.12 The McCain Plans contemplate that the stormwater treatment facilities would be: constructed on the Dungey/Brown Property, but within delineated drainage- utility-pond easement area'). Said plans further contemplate that Dungey/Brown would convey to the City of Chanhassen a perpetual easement to construct, operate, and maintain stormwater treatment facilities within the delineated easement areas (hereinafter the "Easement Deed"). 1.13 Progress Valley has offered to construct the stormwater treatment facilities (as described in Ihe McCain Plans) at its sole cost and expense, provided that Dungey/Brown executes the Easement Deed. Section 2 Right ofEntrv DungeylBrown hereby grants to Progress Valley the immediate right to enter upon the DungeylBrown Property and construct the storm water treatment facilities as described in the McCain Plans. Section 3 Construction Costs Progress Valley agrees to construct the stormwate:r treatment facilities as described in the McCain Plans, all at ProgJ;ess Valley's cost, and without reimbursement from DungeylBrown. 2 "'C:J v -. . ( ............. '1/ VV/ '-VVV ". '"7'" ..LJ 'J~" .....11\.4.............0.:''-''11..........11.'-'''....111....' ...'-. '__o,J1II SeCtion 4 Grant of Easement In consideration of Progress Valley's undertaking set forth in Section 3 above, DungeylBrown agrees, that upon the request of Progress Valley (and/or The City of Chanhassen), to execute an easement deed running in favor of the City of Chanha'lsen, its successors and assigns, granting a perpetual easement for drainage, utility, and/or pond purposes and to construct, operate, and maintain SLOrmwater treatment facilities within the easement areas, which are delineated in the McCain Plans, provided that after completion of the storm water treatment facilities described in the McCain plans, any subsequent coW; of maintaining said storm water treatment facilities shall be assumed by the City of Chanhassen, without reimbursement by Dungey/Brown. Section 5 Execution IN WITNESS WHEREOF, the parties hereto have dnly executed this instrument as of the day and year first above written. Gary W. Dungey and Gary L. Brown. LLP. a Minnesota Limited Liability Partnership BY:;)~ W~ Its: fJ J~ Progress Valley Storage of Minnesota, LLC, a Minnesota Limited Liability Comp y By: Its: 3 ~ V 1'-/ vt-v j'Tb WARRANTVDEKIl r;QS ~OJ 40 Id-O CorporJ11on. PilltnCfBhip Of l.hnlltld Llftblll!y Company ~ CotpOfBllo~, PlII11lerllhip Or L1rnlt~ 1.IDblllty CDMpBny No d~lI~qu~llaxes and tt1lll,rcr e'l~; C;nIIl~lci IifRa~ Bsrlllll ~:~"e (>\1ll1c:d ~ ~ertlfi~le orRenl Eslllle Value tJ rh :: D\lt~ IY1 ~ u...~I-"dt~ COlinI}' A kor (3)': ~t1A'~:""J ;:7'-1;'-11 ~ @7 Depal.)' DEEDTAX'pU~:$ S;?rfo.dJ Om; If) - 17 ~ O~ 11 Documant No. OFFICE OF THE A 399p07 COUN1Y RECORDER IllIm.... .~llm.mllmnu CARVER COUNTY. MINNESOTA ""1 UIUmlJ Willi Fee: 5; 19.50 Check#: 110884 CertllleQ Recordecl on 10-21-2004 at 10:90 ~M DPM IIIIIIDIIII =~;, L (l"",,~ Ih< rr':IIIdll\e limo) FOR VALUABLE COhTSIOBRATION. Oary W. DullgGY lIiIHi/lry L. ~Wi). ~!:!" CI.M!n!lGliolll.Limilt:~ !-!~~llY P_~~'!!20.Q~.E,.r..Il9_~ . _. _ ___. -- . tlonycys nnd WamlIIls 10 PtQ~rw.;'Vlll,;y Sloriiji ot Mlnne51ltlt, La::. 11 IVI'MCBlIIa O'nnlCd IJabllil}' Oompany, i1riInlCC. t~1 propcr1y In CaI'Vor Co\>"ll'. MJJlnCSo!D. dcsi:rlbc:d as toJJOw.t1 See nxnlblt hA" llJ:!ael1ed hlll'etD. 1ogelh~r with nil hcrediloll'l~nt5 llna appllrtcnDllcu ~lonBIIIIl lhOlm, wbj~1 to Ibe tbIJowln8 I!l(C:Ol>lJons; rostrietlllM, MJIlmM!!J Dnd reservations of record, ir DDY 8I\d ~JlCllplinll the riahu ~temcd by Q eron Driveway Llc:e1lSe Agrecmw dared Ootobot 6. 2004. by Blld be~ween Gary W. Dqn2~Y and Ol'l'}' L. Brown. LLI'. a MlnneJota Llml~d lillbilily pprmerllhl\) pnd O~rY W. Dungay Bnd Bar!lBrlllJunr:c:y, husbnlld and wife. ChClCk box It ar>PlleabJ~: B The Seller mt1fics ~~t lite Sellu dm>B pot know of any ....o11B oolht!l dM~lbed red property. ^ well dlsclDSll!l: C4lI"llt\calc Clccflll1pUll~ Illl! dOC1Jlllelll. 181 ] am familiar wilh lIIO proper\.Y described in !his hts1rllDmlllllod I cartJlY that tho status 81ld nllmber of walls On \he described reol prapartY hnYO not Chdn{Jed since the IIl.!II previously t1~ well dlsclosuro l:J:Irlmonlll. N03ir~ DB.rJTIil~ 1t!IIII0II oti~CD PIIJO ~..,h I ~ ..f"a'. 1"!~~a~l>~"O ^\ ......." COlllUy or ;..x:.. ~/1f\1ItIiOll F'~'" Arr", IJ...I 'Ill' Sbllllp 11... Gary W. DUJJSCY And OIlT)' L, arown, LLP . ~ l./J14~4 ""-.. - '""',p IlTA TIt 0' M:lNNESO'tA } COUNTY OF c..4 (" If<.r .s. ThIs IlIBlnJlIlellI WllS aeJmo\Vle4ll~ beCbra rnCl on Ihl!! ~ dll)' Dt Dc-Iv ~ . 2004 bY lJary w. Dungq and Gary L, Brown. the partnerl ofGBty W. Dungey BIld Gory L. llrllWl1, LLP, 11 MlnnesolllLlmilcd Liability I'llrtncllihip on bch If (If tIlo ~rtnershlp. R,\i'iK Ill\~ IN!;'JRVM~.N [W.~:; J)k"fol~!lJ f1), {N.'\MH ANIlI\l)lIru~Jj'; Boylp 4r. V03S. p.^, (DWV) 14:; l'arllllJO'Qnl rl~ m 71l3J G1enrDY Road Mj"nI!lajlIlJi3, MN' SSWI (9S2) 837.1000 SIONA 0)1 Carver ct 8. TitlEl, Inc. 411 Chelltnut Slr99! · BoJ( 1.06 OhBJIl<a, MN 55318 95Z.448-5fi70 Cheek hem lfpart or all ofrl1a Ifttld II R~ii~red (TOl'l'Clls) 0 Tax SlJ1\omenls of the fcnl propc\'ty t:l~rtbcd In IhiS lnslrtlmenl should bll sent to (nllme Bnd nddr:sB of Oramce): I'rO[ITO" V~lIcy Slor~ge ofMinneaDlll, LLC 6921 BOBl:h Road EII~ Pllllrlo, MN 35344 i ,9 ll' ~?4 EXHIBIT .{ ~IT "A" That part of the Southwest Quarter of the Southeast Quarter of Section 34, Township 116, Range 23, Carver County. Minnesota, lying southwesterly of the southwesterly right- of wa.y-line of U.S. Trunk Highway No. 212; northwesterly of the northweSterly rightkof.. way of County State Aid Highway No. 10 (Stoughton Avenue formerly the Chaska and Shakopee Road); and easterly and southeasterly of the following described line: Commencing at the southwest comer of said Southwest Quarter of the Southeast Quarter; thence on an assumed bearing of North 89 degrees 11 minutes 32 seconds East along the "sQ:u;h IP.l~ Q(~9,~91.!~~~t Quarter_5lfth~]Q:utheast Quarter a distance of 525,00 feet to the point ofbl\ginning of the line to be described; 'thence North 26 degrees-57 minutes 49 seconds West a distance of 399.00 feet; thence North 62 degrees 19 minutes 46 seconds East a distance of 485.18 feet more Or less to said southwesterly right-of-way line ofU .S- Trunk Highway 212 and there terminating. ,I' EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PARCEL: Commencing at the southeast corner of the Southwest Quarter of the Southeast Quarter; thence North 4.06 chains to center of Chaska and Shakopee Road, the point of beginning of tract to be c.onveyed herewith; thence South 64 degrees 30 minutes West 170 feet to point of center of said road; thence North parallel to East line of said Southwest Quarter of the Southeast Quarter to south line of Trunk Highway No. 51; thence southeasterly along south line Trunk Highway No. 51 to point where sqme intersects East line of said SW ~ ofSE 1/4; thence south along said east line to place of beginning. ---=--~ ), E}(~2:~~:~. ',-' A- i' ,-j2#.!?:",:?::, ~ ;L "f!:I v f"TI vs-v IlfVUf'::"VVU II."'v ..1.ln/\ ......ICoIY..LiCiIUC".....'It;..YU..1..........lIIvl ~~.""'VIII 'Q!:J V Iv{ V.::..V -- WAl'tRAl'F.)' DEED C-rpor.u.u... J' BftIlc-rship or Limited Lbbility Campi"'}" la CotpOrDlion. Pll11lI=hip or Limited LiabilllY Compat.)' No d~Jjnquenll~~ Bnd l1llIl3fer entered; Ccniti~Blc oCReo! Eslale Vahle ( ) filed ( ) bUll"equlred. CcnilicBtc of Real Eslmc Value No. 'L~ .. ,.;. . I . Dme .:.. ,,+1'1 ~. --4 ~~1~.(' .,"1 County Autlllur ....r... -"r.: 1.....- B)'; DeputY DEED TAX DUE; $ Dale:~ (r".mnllior "",,,.al,1 d.nal FOR V ALl1AllU CONSIDEllAnON. 031')' W. Dungey and GlII)' L. BrDwn, LiP, a MifillCSOla Limited Liabilily Pmner>hip, GnlIllQr, hereby conveys ~ml w"nnnl1.IO Gary W. Dungey BIld Gmy L. Brown. UP, a Minncsm& Limited Liability I'llrInel'~bip, (irllntcr; I'c:lll pml'alr in Carver COllnlY, MinllC$ol~ de.sctibed lIS follows: See F.xhibil "A" RUached herda. logether willi all hcn:ui\DlJlenL~ atJd oPflul'lenanc!~ hclnntitle l],crelO, ~bj.ct ItJ lhe follnwin~ c~erptiDn3: rC5tJiclions, ca3cmCn13 and mCJVUl;gl1s ~t r~rd.lt any. Check bllX if npplitabl.: I8J The Seller ccrtili.."hlllhe Seller docs llollcl1ow cfany wells onlhe dcseti\led teal prw<:rty. o A weD dis~l/~u~ CP31i1iClle ~l:tOlllpaoies this dooometlL . o 1m famJliar with thepropcrty described in Ibis mslrumcnl Bnd I ccrlify lhollhc slBtUS and number of wells Dn the described real prnperty ""v. nal eh3ng.d sinee the )a$! prt'Yiously filed well disdorott cl:t'lifi~l.. Gary W. DUr\gey aod G&Jy 1,.. JJf\>wn, 1.1.1' By~7!:igfla~# 'IS; r~ n~r By: . AllI, Ik"n", ~C1"'P 11"'. STATE OF MINNESOTA } COUNTY OF ... This inslnlmcnl WBS pcknowl~dgerl beroT!' Jf1C an May ,-5', :Z004 by Om w. Dungey ~nrl GBlY L. Brown.lhe pnrmef5' of Gill}' W. Dungey and Gary L Brawn, L11', Jl MinnC!ota Limilcd LiobIllty I'8l'Int!ship on heh~lf of the PlIr1nuship. ",r.l'I...~r'\l. S I^M~ Olt SI,,,1. ,\,Ill ~)TIIP.R 1 .TI,': 011 PMIP; I.~~ MARY K WgEFllCE ,. I<<JTMlY PIIIllJ[;oMMlESUTA' ,., ~CI)lI/TY . ~:..~~~.OW~I-O:~ .~.T~ .-....r......~.. ~..-.."'. ~;6O-~ K {Ju1.AJ~ klG A RE OF ::#ARY PUBLIC Oll OTHER OFfICIAl. TJII5I!'STI\UMCNT W,\S IlR^f'T1m Ill' (:>AMf. A~n ADr>M~~l' Check here lfpllJt I>r all OfU1C lllnll j. Re!;is\J:;red (TOtrCn~) D T~ $131.ments of1bc real property described in this illSmlmelll should be Senl 1<> (nom. 2ml>rldr.~.. ofGmnlee): Bo)'Ie & Voss, P.A. 145 1'lU1U1l0Ulll 1'1=, III 7&J 1 GJenroy Rood . Minn..poli., MN SH39 (9S2) &37-1000 Gilt)' L. B,OWn '831 We:aKoehnen Circle hc~bj"r. MN 55331 .f'lJ ! ~: t"'f= i7 I,," 1..i r:), ij 'i I'::> I '-U UUW&'t. ~ ~~~ ~ e. _L_.~pC~~L! It tit -- - CIty C\BIl'J C&r\ffitlI4ian PIIt$!IllJ11 tn M.S. 272 161 Tho ~ hereby cerline~ ~~ (JI1Q of thll loI1llwing.'l LThtJt."'" ~ ~IK d(lltllt BOOIY 10 .. iAlltllIIDIlfll . _l\lllttM~dMl~bl' tWs i~_U. ~.bt( ~ ~ ttdr d.. cIr rI QMII1aIlllMl. _'lJIat ...... ....4~ tlII h HliJill ana ~ tf... bo6 _tt lane b9lm ,qj~ tw a ~ d ~ 1JI*"iIlg body ollhl ~ of ~s.ren. _ ThaI this inslrument does Ul1! oomPh ~lt mll"icip~l ~tlbdiviJlitJn Il!\lt~clinn5 ~nd llli Il~Clfl' land ~rnl its as!~~~ v:WJltlion 1 .1.~O~I~ ,r.ol flf';'~ Co . 1}~led~Lj- -.. .,. .'"-' . U'.:r'.'~ 1;~,tllmef1 City r;~~ - .~. - .....-... ,.,......~... ..... E)fP.J~~RT p d h UU' ~-> - :um.llilI' ... e e tXHJRIT A That part of the Southeast Quarter of the Southwest Quarter and that part of the Southwest Quarter of the Southeast Quarter of Section 34, Township 116, Range 23, Carver County, Minnesota, lying southeasterly of the southeasterly righ1~of-way line of the Chicago and Northwestern Railroad, southwesterly oftIle southwesterly right-of way- line of U.S. Trunk Highway No. 212 and westerly and northerly .of the following described line: Corrunencing at the southwest comer of sajd Southwest Quarter of the Southeast Quarter; thence on an assumed bearing of North 89 degrees 11 minUles 32 seconds East along the south line of said Southwest Quartet of the Southeast Quarter a distance of 525.00 feet to the point of beginning of the line to be described; thence North 26 degrees 57 minutes 49 seconds West a distance of 399.00 feet; thence North 62 degrees 19 minutes 46 seconds East a distance of 485.18 feet more or less to the southwesterly right-of-way line of said U.s. Trunk Highway No. 212 and there terminating. E'fP ~ ~ [J "Ii ;:; ~\U""i1~D~ I -2_ 3~ ........ .. ..,. ""'t _., v"'" . 1 . . "'" ..... ..., .............................. .......""'............. .._.....,.~...--. ...-. -...,... e-,~. . ...~ - - wAnRAN'lYDJtJ1;D Corpol1llion. Palllw~hip (lr Limiter.! L,.biJil)' Comp'JI)' to (;(l1J'bl'lltion. PilllI1mhip or J.itniled Linbility Cllmpan)' No "elin~Ilt;JlIIallC5 and U1IIl.';fcr entered: Certificple orRepl f-:;lnle V~hle ( ) filed ( ) nol r"llulred. Cenific;,\Ic DfRcn! r;~lnlc Vallie No.,. ~....,'. "\ . ....""'1.: .... 'I tr_.~ 1 .., f..;:':oll ",...... . i-:: ,.)', .i.'-:p?;w: ~,. ..1. ". :.t ',. -(To;. :u:, O;).u !.'~'l'1'~1 ...-,,; "-Ii.. ,', '.'".0' "I1~nl\1otJ1rIl"""11>.7 :. '"'oC: f' ~:trfOl""nnt_.,-., Dllte ,,- .." ;1 'bf::,IIla"t~.,-, ," . -.,;.,ft>lI.jiIO/l:>~.:" '.. ..l'~'lo1[1:~,:"i. . -....,.""",. y. CUtltll)' Audilor Ily: DepUI)' Db1!() 'r AX DUE: S D.le; (r=n-cd /Pr n'.."<N~ Jbtn) FOR V,6J..IlABLl; CONSJDERATION. Gory W. Dungr:y and Gory L fl''''''n, L1..1', B MinncsDID Limiled Liobilil)' I'nnner.;!>;p, Gr.>nlnr, hl<reby eon'\lcy:! and WDll1IIIlS to Gmy W, f)unp,ey and C13ry L. Brown, LtJ>. II MmllCS010 Limired LiDbilily Pll1lI1efl/lip, Gr.mlec, re.1 property In Carver ellunll', Minnesota. described .~ follolYt: See :Elthibll "An anamed hereTO. [beemer w;1h all hcrcdiuuncnls ono ~JlpbrtOlane~ belonging merClll, !Ul>jccl to Ih. {ollowing ex~cplion~; rr::'lridion$, e;\!;'mtnL~ ll1Id r=rvations of r~cor". if DIlY, Che<:k box jf npplbble: I8l The Selletl;<;tt]jjcs thaI the S~]ler doco Dot lQ10w of""y well. on lbe d=,ibecl real prOpCJ'l)'. o ^ wdl diEclosure cenificalc accompilllje~ lhi5 documcnL o llUTl ["",iliar "'Ilh the property de~cribcd in thi~ mrnmcnlllJld] certify !hat the stIItus .nd IJUlT1beT Qrwen~ Qn the prQpcr!y h..vc nOI ehllngcd sInce the lasl previously filed well digclo$1)re r..rti fir.,le. descn'bed ruT Gnry ~n.e.y nnd elIII)' I. nrQW[}, Ll.P By, Gary ~g;; J/.Mj:/ Itsyzal"lAu ,.j\; "'lff'l'l><<4-fl3J.;il.unpltC'lr [l . "1\0<11 II!!: Panner STATE OF MlNNl:SOTA } COUNT1r' OF ".. This inswmeill Wll!l acknowledged before me on May 25' . 20G4 by Gaty W. Dungey and G8l}' L. BrowtJ, the p"""rn of ObI)' W. Duogr:y and Gazy L. BrowiI. LLP, I Minne:;~lII Limited Liabilily PaIlncrship 011 bebatfoflhe PUlil.er!hip. N()1"~~I''.o!~IM~); I~~ MARY K. WElEAKE I ~ rlOT.lIll'~~ CNMH 00U<<Tf UTCOfoIIII:;So<[.lIPIRI;Sl_ .~T"" y..J- ....._..".J"_...a..".y,a.-7~"'.,JV\fvvvv..'V'N. ~.c.~~~1{~A~ Check here if p.rt or nil of Ihe land ;s Registered (Torrcm) 0 TIllS ["I~"TRU~lO'lT W", flfI.ArTCD 1J~'(N''',Il;M'.:r>...nilRr.,s! Tax SlalelncrllS ohhc ,tal prOperty d'='lmbed in this in~fT\lln.nl shlJUltI bt !lenl to (nomc and addr~s of Grankc:); Gary L Brown 1&31 WcslKodmOl Circle El(telsior. MN 55j31 Boyle & Voss, FA 145 Pnramo1>nl PI= m 783] Glen.\>)' }lo.d Minnc~p())js, 1>114 5.54J9 , (932)S)7.1 000t 't!:I v t ~l v...."V ~ "1 VU/ i-vVV ,'.""TU ..&..11'f) Il...-'I...........Io.....nO":....".........II..1..........,IIV. ...~. VVtII e "I ~ DIy CkQ's ~ PlUltMtto M..s.172162 tM ~ l$OOr certl/lErs. . 10*'- OJI/l of IIIllIokMing:) ..:L-lb8l~ ~ ~ 1Io QDt appIJ kllbil irIIti IIIIi at. .' _lIIe4lb1-~~= ~ b, ItIiI ~..... ~ 1Ige . ~ltOd" rd~. _ 'Ud ~lAlll. m IIl8Ihg M)d ~d._ ~ Jl ~ ~ b:lClIl ~ '" a .... flllie !JW!lRlHlg bllliy of ItIi fRy of OIeJ~ 1V-'" _ That this msin",,,,nl does oo! oomptv ~ 11lllniciplll !ttbdivisioll rftliitHoos and.tIt~ alle'le~ land and ,1:> ass~ecl ~'ioll !hOlJltl f.',t hI' ti:Ji4~Co~ ~ Dated fet~.':L ~:'"~ De?uly Glu/dlasseJI CiIr Cklrk . ~v IVI v,-v e EJ(!~HB.iT i3 ~ e-~~ .. - EXHmIT A - That pan of the Southwest Quarter of the Southeast Quarter of Section 34. Township 116, Range 23. Carver County, Minnesota, lying northeasterly of the northeasterly right-of- way line ofD.S. Trunk Highway No. 212 and southeasterly of the southeasterly right-of- way line of the Chicago and Northwestern Railroad. . EXCEPTING THERFROM THE FOLLOWING DESCRIBED PARCEL: That part of the Southwest Quarter of the Southeast Quarler of Section 34, T oWDship 116, Range 23, Carver County, Minnesota; Beginning at the point of intersection of the East line of said Southwest Quarter of the Southeast Quarter and the Northerly Right of Way of U.S. Trunk Highway No. 212; thence northwesterly along said northerly right of way line a distance of 329 feet; thence northeasterly to a point on said East line distant 331.57 fe~t northerly to the point of beginning; thence southerly along said east line a distance of 331.57 feet to the point of beginning. E)fP- H P1I r""""" C3 .' I;"'r h :,.,,-.? ~ Ii j: . i;. ~ tJ ~ ~~ u ~ 1_ - ~""---_. J a -g.<~~.~._~-,~..k r ( ......______'1 ~....L \ /l CAR VER COUNTY ABSTRACT AND TITLE CO._ IN C. Fa.x (952) 448.5155 (952) 448-5570 Randolph Dawdy 411 Chestnut Street North P.O. Bo}( 106 Chaska, MN 55318 David E. Moonen DeceDlber27,2004 Progress Va.1ley Storage of Minnesota, LLC 6921 Beach Road Eden Prairie, Minnesota 55344 RE: Policy Number: 72106-716947 File Number: CA 24211 Property Address: 1900 Stoughton Avenue Chanhassen, Minnesota 55317 Dear Progress Valley Storage of Minnesot~ LLC Your Owner's Policy of Titk lnsurance is enclosed. This is a valuable document and should be kept in a safe place where it will be readily available. If you Jat!;f list your property for sale, call your Broker's attention to your title insurance policy. Since you have an exisling policy, it may be to your advantage to agree to furnish an owner's policy to the new purchaser, in lieu of an abstract of title. For any future title insurance needs (including refinancing) regarding this property, please cOnLact Carver County Abstract and Title Co., Inc., in order to obtain a re-issue credit. rn the event a question concerning the title to your. property arises. please contact us as soon as possible. If we. can be of any further service, plca5e contact us. Sincerely, tori A H llS-~ Carver County Abstract and Title Co., Inc. CACOVER 5/9.~ I .- " ~ I~ 11.. '" "t::J v.,.... ( .......... ....~..l'.::Atl.;'"l"":~i ~';iI/II.II'-""~'.~~ ~L("'-'A:'~.:~';;;;';'';'''~~.;:;:'''-:-:..~~ .,~.'~' .; AMERICAN LAND TITLE ASSOCIATION OWNER'S povey (10-17-92) Policy No. 72106- 7~6947 CHICAGO TITLE INSURANCE COMPANY ,. SUBJECT TO THE 'EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B AND THE CONDITIONS AND STIPULATIONS, CHICAGO TITLE INSURANCE COMPANY, a Missouri corporation, herein called the Company, insures, as of Date of Policy shown in Schedule A. against JOS5 or damage. not exceeding the Amount of Insurance stat<<l in Schedule A. sustained or incurred by the insured by reason of: I. Title to me c:Slate or interesl described in Schedule A being vested other than all !':tated therein: 2. Any defect in or lien or encumbrance on the title: 3. Unmarkclability ofthe title: 4. Lack of a right of acce!':s to and from the land. The Company will also pay the costs. attorneys' fees and expenses incurred in defense of [he titie. as insured. but only to the extent provided in the Conditions and Stipulations, /11 Witness Whereof, CHICAGO TITLE INSURA NCE COMPANY has caused this policy to be signed and sealed as of Date of Policy shown in Schedule A. the pOlicy to become valid when countersigned by an aurborizcd signatory. ltsu~ by. Carver County .9l>>strac.t & f[itle Co" Inc.. - Since 1959. 411 ChCSQ'lUl Street Norm Chaska. Minnesota 55318 (9S2) 448-5570 · Fll7': (952) 448-5155 CHICAGO TITLE INSURANCE COMPANY 8)': . (lrn~J A'~A;~ L P=i~l By: ATTEsr c~~t_~ ;1 :~I i , , il r.i hl I . I I. & ," ~ $, ., I .. I I :.J:~ . t.L !~ii .j'~1/i'~ l..~-~':''I1IF~j,''~~J<.v.$..~'lIllF',.5-A..W~' ..~ q;!l\U'~ '~\9I...~~;r:I; ';~\~r.Jj ~w:'d ~~1?~. ,'::~i];':~~P~i ~h"''''~''I,:.~..,.,,~.-~ ,,^ ..., I\~\ EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage Of thiS polley 4lInd the Company will not pay los9 or dam~e, costs, i1ttomey.s' fees or expenses whiCh i1rlGe by reClson Qf: 1. (a) Any law, ordinance or governmental reg....ation (including but not limited to building and zoning laws, ordinances, or regulations) restricting, I'9gulatlng. prohibiting or I'9latlng to (I) the occupancy. U'*, or EIIljoYn'lent of the land; (Ii) the Cl1an'tcter, dimeneion$ or location of any Improvement now or hereafter erected on the land; (III) II separation In ownership or It change in the dimensions or area of thi! Ia...d or any parcel of which the land is or was a part; or (iv) environmental protection. or the effect of any violation of these laws, ordinances or governmental teglllatioos, etcept to the extent that a notice of the enforcement thereof or a notice or a defect, lien or encumbrance resulting from a violation or alleged violation affectIng the land has been recorded in the pobllc records at Date of Policy. (b) Any governmental poUce power not excluded by (a) ab0v8, except to the extent that II notice of tile e~t'C1Se thereof or a notice ot a detect. Hen or encumbrance resulting from.. violation or alleged violation affecting the land has been recorded in the public records at Date of Policy. 2. Rights 0-1 eminent domain r,ll'lless notice 0' the exercise thereof has been recorded In the public records at Date of Polley, but not exdudlng tmm coverage any taking which has occurred prior to Date of Policy which woold be binding on the rlghtll of a purehaser for value without knowledge. 3. Oefactu, liens, encurnbrenCe$, adverse clalm:!l or other matters; (a) created, :!Iuffered, aasumed or agreed to by the Insured claimant; (b) not known to the Company, not recorded In the public records at Dllte or Policy, but ~l'Iown to the inaul'9d c:lBlmant and not dllWlulJed in writing to Ule Company by lhe in$tlred claimant prior to the date the insured Claimant ~ame ;In In$ured under this policy; (c) resulting in no loss or damage to the inaured Claimant; (d) attaChing or created subsequent to Date of Policy; or (e) resulting In loss or damage which would oot have been eu&lttlr'led if the in$tJred claimant had paid value ror the e5mte or Interest 'n:!lured by thIs policy. 4. Any dBlm, which arises out of the trunsaction vesting in the Insured the e$l~ or interest insunld by this policy, by - reason or the operation or redeml banlcnlptey, state Insolvency, or similar creditors' rights laws, that is ba5ed on: (i) the transaction creating the estate or interest insured by tl'll$ policy being deemed a fraudulent conveyance Of Inludulent trar'lGter; Of (II) the transaction creating the estate or Interest Insured by this policy being deemed a preferential transfer except where the preferential transfer nDsults from the failure: (a) to timely record the InstNment of transfer; or (b) or 9uch recordatlM to Impan notice to a purchaser for value or a judgment or lien creditor. :~ CHICAGO TITLE INSURANCE COMPANY ~I:[~~i~ll~~~~~t~;[1:\:~l~~~~ili~~~g~~~~11~tfil1~~~{:;: '. "':".:~:,:~~ .:~,~~,\.: :"1~ia1~Rf.~?~~f:~;ij!~~~~~!;~1~~t~~~jj~i~{$?~i~r.f;;!li SCHEDULE A FILE NUMBER Policy Nmnber 72106-716947 DATE OF POllCY . AMOUNT OF INSURANCE October 21, 2004 at 10:30 AM $1,700,000.00 I CA 24211 L Name of Insured: Progress Valley Storage of Minnesota, lLC, a Minnesota limited liability company 2. A fee simple eslale in the land covered by this policy is vested in the insured. 3. The land herein described is encumbered by the following mortgage or tr1l5t deed, and assignmenu: See Schedule A Mortgage Continued. and the mortgages or trust deods, if any shown in Schedule B bereof. 4. The land referred to in this Policy is described 8... follows: See attached Legal Description. 7'1....:... _....1:-....*",'.:,.t ~1..,;.r: c,.......oAnl"'" J:l ;~ I;)f+~r},p.rt ALOF92 ~/1il~ CHICAGO TITLE INSURANCE COMPANY ::;:~t[!~t!j[l';~;~'!!;1~~j[:j~~,t~~!~n~~i~i~f~j~t!l~1y:~'1~~~~~~j:~ql~'~~~lf:: , ....:.:.,:.:"~;,.;:~~~f:tft~irjt~J~i~l~~~~:~~[:!~~~,!;];l~~~!~;~~[;~!~~~li~~~f~~~i~~'~~ Schedule a Mo..tgage Continued File Number; CA 242H Mortgage. Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents dated October 12, 2004 fIled October 21, 2004 as Document No. A399S08, Office of the County Recorder, Carver County, Mimlesota, executed by Progress Valley Storage of Minnesota, I.LC to Community Bank Corporation in the original principal amount of $700,000.00. OP1A4 3/98 ..r ....-r _.......- ....- -~ .... --...........-..........._.._......_....,.~...-. --_. .........,... ~ Y .........{ YL-v CmCAGO TITLE INSURANCE COMPANY f,~.~1;!~mm~ffiw~.t~~.f:~~.~;~:~!~~~~~~~i~~~~~~rfrn~\l~\\W~~~!.~~_i1i::.'......,.."::I!~~11~~~ij~\~~rj1~~~~1;~1~~~f~~~~~[~~i:~~f;~!l;~~~i~1~iif~[r~~~t~!! Schc:dw.e A Legal D~cription Continued File Numbc:r: CA 24211 That part of the SouthWl!lSt Quarter of the Southeast Quarter of Section 34, Township 116, Range 23, Carver County, Minnesota, lying southwesterly of the southwesterly right-of-way-line of U.S. Trunk Highway No. 212; northwesterly of the northwesterly right-of-way of Co1.1D.tY State Aid JJighway No. 10 (Stoughton Avenue foonerly the Chaska and Shakopee Road); alld easterly and southeasterly of the following described line: Commencing at the southwest comer of said Southwest Quarter of the Southeast Quarter; thence on an assumed bearing of North 89 degrees 11 minutes 32 seconds East along the south line of said Southwest Quarter of the Southeast Quarter B distance of 525.00 feet to tbe point of beg;nning of the line to be described; thence north 26 degrees 57 J;ninutcs 49 seconds West a distance of 399.00 feet; thence North 62 degrees 19 minutes 46 seconds East a distance of 485.18 feet more or less to said southwesterly ci~ht-of-way line ofD.S. Trunk Highway 212 and there terminating. EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PARCEL: Commencing at the southeast comer of the Southwest Quarter of the Southeast Quarter; thence North 4.06 chains to center of Chaska and Shakopee Road, the point of beginning of tract to be conveyed h~rewith; thence South 64 degrees 30 minutes W ~st170 feet to point of center of said road; thence North parallel to East line of said Southwest Quarter of the Southeast Quarter to south line of Trunk Highway No. 51; thence southeasterly along south line Trutik Highway No. 51 to point where same intersects East line of said Southwest Quarter of Southeast Quarter; thence south along said east line to place of begin:ai:D.g, according to the plat thereof On file or of record in the office of the County Recorder, Carver County. Minnesota Abstract. OP1A!! 31GB . 'I v OJ I .... v ... ...., ......... .......... ................................................. ............... ... '- . ........., III ~VVI/V~V CmCAGO TITLE INSURANCE COMPANY ;\~i].~~~1~1;;::;f~f;t~:::~t~~[;~~~::~t~j~:~!~'~~~f~i;i~~~~~[;i~~~li~~I:u~:~" . .. .... "':~::::':~:;i~i_~~~~~~t;[~}~;~~~~l!:;~~~!~~~i::~~j:i~:~'~1i~i~:;~,~~;f.~tj~~~~~i~~~~~~~~~~;:i~ Polley Number 72106-716947 SCHEDULE B File Number: CA 24211 EXCEPTIONS FROM COVERAGE This policy does not insure against loss 01' damage (and the Company willllot pay costs, attorney' fees or expenses) which arise by reason of: 1. Real Estate Taxes for the year 2005 and subsequent years. NOTE: Taxes for the year 2004 in the amount of $30,228.00 are paid in full. Property Identification No. 25-0340100. 2. Special assessments hereafter levied. Note: There are no levied or pending assessments now due or payable. 3. Mortgage? Security Agreement, Fixture Financing Statement and Assignment of Leases and Rents dated October 12,2004 filed October 21,2004 as DOCUIllent No. A399509~ Office of the County Recorder, Carver County, Minnesota executed by Progress Valley Storage of Minnesota, LLC to Community Bank Corporation in the original principal amount of $700~OOO.OO. 4. Easement to Minnesota Valley Electric Cooperative dated December 13, 1946, filed December 29l 1946 in Book "47" Deeds, Page 504. Confined to Southerly and Southeasterly 15 feet b)' Partial Release dated July 13, 1987, filed August 6, 1987 as Document No. 89245. NOTE: Power line located outside of easement area, as shown on Valley Surveying Co. Survey dated October 6, 2004, Bituminous driveway along southerly boundary, and encroach~ garage, sbed and occupation line of easterly boundary, as shown by Valley SUlVeymg Co. Survey dated April 13, 2003. 5. 6. 7. Subject to rights of tenants in possession. Terms and Conditions of Encroachment Easement ~reement by Gary W. Dungey and Gary L. Brown, ILP, a Minnesota limited liability partnership doint! business as Progress Valley Storage to Albert Tholen and Audrey _Tholen, husband and WIfe dated October 6, 2004 filed October 21? 2004 as Document No. A399506, Office of the County Recorder, Carver CountYt Minnesota. Countersigned (\ ---- --- .):::c._'J;::;"C:- Authonzetl Signatory A~TAOPB 3/9& . 'r y"oJ~ _y y"oJ ...."oJ ...... .... "oJ..............................'-JI.........."...a.."oJ.~..."oJ1 ...'-. ,-,V,OI 'i!:J v v...., v.:...v CONDITIONS ANO STIPUL.ATIONS 1. DEFINITION OF TERMS The 101lowing terms wI'Ien used in this policy mean; {a} "insured": the insured flamed in SehedulB A. and. SUbject 10 arty tights or defenses the Company would have had against the named insured. those who succeed to the interest of tM named 'Muted by op9tation of law as distingulSh$o from purchase including, but not limited 10. heirs. distributees. devisees, $ul'Vivor$, personal representalives. next of kin, or corporate or fldueiaty sueeassots. (b) "insured claimant": an insuted claiming loss Or damage. (e) "lInOW1edge" or "known": actual knowledge. not constructive knowl. edge or notice which may be imputed 10 an insured by reason of the public tBcords as deflnad In this poliCy Or any other records which impart construc- tive notice of matters affecting thll land. (d) "'and"; the land described or referred to in Schedule A, and improve. ments affIxed thereto which by law constitute real property. The term "land" does not include any property beyond the lines of the area described or relerred to in Schedule A. nor any right. tille. intetBSt, estate or e8sement in abutting streets. roads, avenues. alleys. lanes. ways or waterways, but noth. ing herein Shall modify or limit the extent to which a right of access to and from the land is insured by 1his policy. (e) "mortgage"; mortgage, deed of trust. trust deed. or other security instrument. (f) "PUblic records": records established under slate statutes at Date 01 Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value aod wilhout knowledge. With respect to Section 1(a)(iv) oftl'l9 Exelu!;ion:s From Coverage, "public records" shall also inClude environ menIal prOteClion liens fileo in the reCOtdS 01 tM clerk of the Uniled Slates district court lor the district in Whict'! t"e lan(1 is located. (g) "unmar1(etability of the title": an alleged or al'I'atttnt matter affecting the Iille to the land, not eXCllJdeO or excepted from coverage, whict! would entiUe a purchaser of tM estate or interest descrIbed in SChedule A to be released from Ihe obligation to purchase by virtue 01 a contractual condition reqUiring the delivery of marketable tille. 2. CONTINUATlO~ OF INSURANCE AFTER CONVEYANCE OF TITI;;E The coverage of Ihis policy shall conllnue In force as of Date 01 Policy in favor of an insurBd onfy so tong as Ihe insured retains an estate or interest in the land, Or holds an indebtedness secured by a purchase money mortgage given by a purcha$er from the insured, or only so long as the insured shall have liability Dy reason 01 covenants of warranty made by the Insured in any transfer or conveyance of the estate or interest This policy shall not continue In force in favor or any purchaser !rom the insured 01 either (i) an estate Or Intemst in the land, Ot (ii) an indebtedness secured by a purchase money mortgage given to the in$ured. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAfMANT The insured shall nOlify the Company promptly in wriling (i) in case of any 1i1igalion as set forth in Seclion 4(a) below, (ii) in case knowledge shall come to an insured hereunder of any claim of title or interesl which is adverse to the title to the estate or interest, as insured, and whieh might cause loss or dam. age for which the Company may be liable by virtue oflnis policy. or (iii) if title to tM estate Of interest. as insured. is rejected as unmarketable. If prompt notice shall nol be given to the Company, then as to tile insured all liability 01 the Company shallterminalB with regard 10 Ihe matter or matters for which prompt notice is required; provided, however. that failure to nOlify the Company shall in no ease prejudice the rigllts 01 any insured under this policy unle5S the Company shall be pteJU~iMd by lhe lailure anolhen only tQ the extent of lhe prejudice. 4. DEFENSE AND PROSECUTION OF ACTIONS; DUTY OF INSURED CLAIMANT TO COOPERATE (a) Upon wrlttElI"! request by the inSured and subject to the oplions con- taineu in Section a of these COnditions and Stipulations. the Company. at its own COSI and wIthout unreasOnable delay. Shall orovide fOr ttie defense of an iMurad in litigation in wtJich any third pariy asserts a claim adverse to the title or il'lterest as insured, but only as to those stated causes of action alleging a defect, lien or encumbrance or OIMr malle, insured against by this policy. The Company shall have the right to select counsel of Its choice (SUb/ect to the right of the insured to object for reasonable cause) to represent the insured as 10 those slated causes of aclion and shall nol be liable for and will not pay the leea of any olher co~mseL The Company will not pay any fees. cosls or ex~l'lses il'lCurred by Ihe insureo in lhe defenae of those cause/;; 01 action whiCh ~1I~ge ml;lllers not insure<,l against by tt"lIS policy. (b) The Company shall have the right. at its own cost. 10 inslitute and prosecule any aclion or proceec1ing or 10 do any other act which in ila opinion may be necessary Or oesirable to establish the tille 10 the eslOlle Or interesl, as Insurlld, or to prevent or teduce loSS or damage to the IIlSlItect. The Company may take any appropriate action under the terms of thIS policy. whether or not il Shall be liabla hereunder. and stlall not thereby concede liability or wa.ive any provision of Ihls poliey. 1/ Ihe Company shall exercise HI;; rights under this paragraph. it shall do so I1l1igently. (0) Whenevlilr Ihe Company shalt have brought an action or interposoo ~ C1efonsa as r&quired or permineCl by the provisions 01 this policy. the Company may pursue any litigation 10 final determination by a court of competent juriS- diction and el(pressly reserves me right. in its sole discfelion. to appeal from any adverse judgment or order. (d) In all cases where this policy ptllnnits or rsquires the Company to prose. cute or provide for Ihe defense of any action Ot I'roceeding. the Insured shall Secure to the Company the right to so prosecute or provide defense in the $CIiOn Or proceeding, and all appeals therein. and permit tile Company tl) use, at Its option, tha n~me of lhe inSl,Jrar.:! lor ,his plJrpOSR. Whenevflr requested by the Company, the insured, 311he Company's exl'ense, stJallgive the Company all reasonable aid (I) in al'lY aClion or I'tOcseding, securing eVIdence, obla1nlOg witnesses, prosBcuting or defending Ihe action or pro. ceeding. Or effecting settlement. and (ii) in any other lawful act which in the opinion 01 the Company may be necessary or desirable to establish the Htle 10 the eslate or interest as insured. lithe Company is prejudiced by the failure 01 1M msured to furniSh tM required cooperation. the Company's obligations 10 tM Insured under t/'le policy shalllerrninate. including any liability or obliga. lion 10 defend, prosecute, or continue any litigation. with regard to the mallElr Or mallEn'S rerjuiring such cooperation. 5, PROOF OF LOSS OR DAMAGE 10 addition to and aftet the l'Iotiees rerjuited under Seclion 3 of these Condi- li(l~ {lncl Stipulations l1ave been provided the Company. a proof of loss or damage signed and sworn 10 by the insured claimant shall be tumished to ttle Coml)any within 90 dayS after;rhe im;;ureo claiman! :shall .ascertam the f;lets giving rise to the loss or damage. The proof of loss or damaga shall describe the defect in, or lien or encumbrance on the Iille. or other mailer insured agamst by this pOlicy wnich constitlJtes the basis or loss or damage and shall iOItate, to the e)(tent possible. the basis of calculati"g the amount of the loss or damage. lIthe Company is prejudiced by the failure of the insured claimant to provide the reqUired proof of loss or damage. the Company's obligations to tM insured under the policy shall terminate. including any liabifily or obligE!- tion to defend, prosecute. or continue any litigation. with regard to the matter or mattets tequiring sueh proof ollQSS or damttQe. In addition, tM II'I$I,/ted claimant may reasonably be required to submll tl) examinalion under oath by ar'1y auttJOrii:ed repreSentative 01 the Company and shall produce for examlnatlol'l. InsI'eetion and eol'ying, at sueh ttllaso.l'\- able times and places as may be designated by any authoti2:el1 mpMsMtativ~ 01 the Company, all records, books, ledgers. checks, correspondence and memoranda, whether bearing a Clate befOre Or a.fter Dale of Policy, whicn reasonably perlain 10 the lOSS Dr damage. Furthet, If requesteo hy any autho- rized represenlative of the Company. the insured claimant shall grant its permis~ion. in writing. lor any authorized representative ollhe Company to examine, inspecl and copy all records, bool<s, ledgers. checks. correspon. dence al'ld memOrOlnt;la in the custody or control of a third party, which reason- ably pertain 10 the lOSS or damage. All information designated as confidential ny the insured Claimant provided to the Company pursuant to this Section Shall not be disclosed 10 others unless. in the reasonable judgment of lh(~ Company, it is necessary in the administration of the claim. Failure 01 the inSured claimar'lt to Submit for examination under oath. produce other reason- ably reQuested Information Or grant permission to secure reasonably neces- S<lty information from Ihlrd parties as rectuired in this paragraph shallrermi. nale any liability of the Company under this policy as to tMt claim. 6. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY In case of a claim under this policy. the Company shall have the following additiOnal Op\lOI'1S; (p) TO Pey Or Tender Paymeot of the Amouot of Insul'Dnce, To oay or fender payment 01 the amounl of insurance under 1his policy tcigett'ler witl'\ any costs, allorneys' fees and expenses incurred by the insured claimant. whiCh wlitre authorized by the Company. up to the time of paymenl or tender of p~ymenl and wllich Ihe Company is obligated 10 pay. Upon the exercise by the Company ofthis option. aI/liability and obligation!: 10 the insur",r;t under Ihis policy. other than to make the payment required. shall tenninate, incluoing any liability or obligation 10 clefend. prosecute, or con. tlnuB any IfIJgaIlon. andtne policy shall be :!;urtenr;tered 10 the Company lor cancellation. (b) To Payor Otherwise Settle With Parties Other than the Insured or Witt! the Jn~ured Claimant. - (i) 10 pay Or otherwise setlle with other parties lor or in the neme of an insured claimant any cl~lm insured against under thIS POliCY, togeltler with aoy costs. allorneys' lees and expenses ,"cuned by the insurE:d claimant which were. authOrized by Ihe Company up to the lime of payment and which th~ Company is obligaled 10 pay; or (II) 10 payor otherwIse sallie with the ir'l&\.IreCl claimant tM loss or damage provided for under this policy. logether with any CDsls. auorlleys' fees and expenses inClltrad by the insured claimant wtlich wElte authorized by the Company up to Ihe time of payment and which the Company is obligated to I'ay. Upon thE;!, exercise by the Company of either of the options provided for in paragraphs' (b)(i) or (ii). tne Company's obligations to the insP,JrSd under this polley for the claimed lOSS Or damage. other than the paymentS required to be made, shall termlnale, Including eny liability or obligation to defend, prose- cute Qr conlinue any litigation. 7. DETERMINATlO~, EXTENT OF LIABILITY AND COINSURANCE Th,s pohcy is a contract of indemnity against actual monetary loss or dam- age sustamed or incurred by 1M insured claimant who has suflen,!d loss or damage by rea~n of mauers insured against by this poliOy and only to the e~tent herein described. (al The liabilily 01 the Company under this policy shall not exceed the least of: (i) the Amount 01 InsuranCe Slated in Scnedule A; or, \ (ii) the difference between the value of the insured e::.lale or interest as insured and tM value (lllhe insured eslate or mlerest SUbjeCIIO the defect. lien or encumbrance insured against by this policy. (b) In the even11he AmOunt of Insurance slated in Schedule A atlhe Dale 01 Policy is le$$ Ihan 80 pefcent 01 the value or Ihe In$ured eslale or interest or the full consideration p.ud for the lancl. whictlever IS less, or 11 subsequent 10 the Date 01 Polieyan improvement is erecled On the land which Increases lhe value of Ihe insured eSlate or il'lterest by at least:ro peroenl over the Amounl of Insvrance staled in Schedule A. tl1eo this Policy ilO sUbJaet to toe following: (i) where no subsequent Improvement has been made. as to any partial 1055. the Company shall only pay the 10S$ pro rata In tne proportion thatlhS amount of insurance at Oate Qf Policy bears to Ihe 10lal value 01 the insured estate or interest at Date 01 Policy: or ('1) where s subsequent improvement l1as been made, as to any Pllrtilll 1055, the company Shall only pay the 10S!;! pro rata In the proportion that 120 perCElI"ll 01 the Amount 01 Insurance IOt."",r;!ln Schedule A bears to the sum 01 Ihe Amount 01 Insurance stated In Scnedule A and the amovnt expended lor the improvement. The provisions of thiS paragrap/1 sl1all not apply to costs, anorneys' fees and expenses for whIch tne Company IS [jab Ie unCler this policy. and shall only apply to that portion or any loss which eKceeds, 11'1 the aggregale. 10 peroent 01 the AmOunt of Insurance stated in Schedvle A. (c) T/1e Company will pay only those costs. attorl'leys' tees and expenses incurred in accordance with Section 4 01 these Conditions and Stipulations. 8. APPORTIONMENT If the Janel dgscribed In Schedule A consists 01 two or more parcels which are not uSed as a single site. and a loss is established affecting one or more 01 the parcels bul not all, the 10$$ shall be compuled and seltled on a pro rata basis as il the amOunl of insurance under this poliOy was dl"l(ted pro rata as to Ihe value on Oatt! 0' Policy of each separate parcel 10 Ihe whole. exclusive of any Improvements made subsequent 10 Date of Policy. unless a Iil>lbillly or value has otMrWise been agreed I,Ipon as to each parcel by the Company and the Insured althe time 01 tile issuance of Ihis policy and shown by an express statement or by an endorsement attached to this policy, 9- LIMITATION OF LIABILITY (a) If lhe Company establishes th~ litle. or removes Ihe alleged defect. lien or encumbrance. or cures toe lack 01 a right or access to or Irom lhe land. or cures l/1e claim of unmarketability 01 Lille. all as Insured. in i;I rt!asonably diligent manner by any method, including litigation and Ihe completion 01 any appeals therefrom, it snail have lully performed ilS obligaliol'lS with respeclto that malter and shall not be liable for any 105::' (lr damage caused thereby, (b) In the event of any lili9allOl1. inCluding Iitigalion by the Companyor Wltl'J the Company'!; consent. tne Company ~harrhave no liability for loss (lr dam- age unlil there has been a final determmatiOrl by a court of COmpetent Jurisdic- lion. anCl disposilion 01 all ..ppeals tnerelrom, advenoe to lhe title as iosureCl (c) The Company shall not 09 liable for 10$$ or damage to any Insured for liabilily voluntanly assl,lmed by lhe insured In settling any claim or suit wllhoul the prior written const!nl of the COmpany. 10. REDUCTION OF INSURANCE; REDUCTION OR TERMIJ'lAilON OF LIABILITY All payments under t!'tiS policy, except payments made ror cosls, altorneys' lees and expenses, shall reduce, the amounl or Itle Insurance pro tanto. 11. LIABILITY NONCUMULATIVE illS expressly understOOd that the amount of insurance under this policy shan ba taducad by any arnCun~ tt1e Compa.ny may pay under any pol;cy insuring III mortgage 10 which eKception I$laken in Schedule B or to whiO/1 the insureCl has agreed, assumed, or taken subject, Or whiCh is Mreafler ex- ecuted by an insured and which 1$ ;;l Charge or lien on Ihe estate Or interest described or relerred 10 in Schedule A, and (he amounl so paId shall be deemed a payment under this policy to the insured owner. 12. PAYMENT OF LOSS (a) No payment shall M made without producin9 this policy lor endorse- ment of the paymeru unless the policy has been lost or destroyed, in which case prool Of losS or destruclion shall be furnished Lo the satisfaction of the Company. (b}. When liability and Ihe elllent olloSil or damage has been definitely lix~d in accordance with Ihese ConditionS and Stipulations. the 10$$ or damage shall be payable Within 30 d..ys thereafter. 13_ SUBROGATION UPON PAYMENT OR SETTLEMENT (a) Tile Company's Right of Subrogation. Whenever t/'le Company shall have settled and palrJ a claim under thls policy, all nght of subrogalion shall vest in the Company unaffected by (my act or the insured claimant The Comi>any shall be subrogated to and be enlltleCl to all rights and remedies which the Insured claimant would have had against any person or ~roperty in respect 10 Iht! claim had this pOliCY not Oeen issued II requested by toe Company. the insured claimanl shall transfer tQ the Company all nghts and remedies against any per!;lOn or property necessary JI'\ order 10 perf~ct l/1is right 01 suorogal1on. Thlilinsured Cla1ml>lnt shall permit the Company 10 sue, compromise or seltle In the name of tne ,nsured claimant and to usa lhe name 01 the Insured claimant in any transaction or litigation Involving these fights or remedies. II a payment on accounl 0' a claim doeS not fully cover the lo~ 01 the msureCl claImant. t/1e Company shall be 5ubrogatad 10 Inese rights and renle- dieS 1I'l Ihe proportion whieh the Company's payment bears to the whllle amOunl ollhe 10$$. If lOSS should result from any act 01 the insured Claimant, as staled above. lhal acl shall not void Ihi!'> policy. but the Company. in Ihat even!. shall be required 10 pay only Ihat part of any 10$$eS insured aga.ns\ by 11'115 pOlicy wl1ich shall el<ceed the amount, if any, 10sltO Ihe Company by reason of the imp~lr' ment by the lI'tsufeo cleimsnl 01 the Company's ngl1l 01 subfog.l1ion (D) The Company's Rights Against Non-in::;ured Obligors. The Company's nghl ot subrogalton against non.msured obligors shall eXIst and shall Include. wilhoullimita\lon, the rignls oll"'e insured 10 indem- nities, guaranties. other poliCIes of inSurance or bonds, notwlthstandrng any terms or conditions conlalned in those Il1struments which prOVide for subrol)a- tion rightS by reason of this poliOy. 14. ARBITRATION UnleSS t)foniOited by appliC~ble faw, either the Company or lhe insured may demand arbitration pursl,lartt to the TItle In~urance Arbllration Rules 01 lhe AmeriCan Arbitration Associalion. Arbitrable maILers may include. bul are nOt limlled LO, any oontroversy or claim between the Company and the insured arising out 01 or relallng 10 1his polioy, any service of the Company in connec- tion wilh its issuance or the bre<lch or a policy prOvisiM or other obligation. All arbitrable matlers when ttle Amount of In~uranc9 is $1,000,000 or less shall be arbitrated altM OPtion of either the Company or tile insureCl. All arbllrable matters when the Amount of Insurilnce is in exce55 ot $1,000.000 shall be arbitrated only when agreed to by bothlne Company ant;llM Insured. Arbitra- tion pursuant 10 thiS pOiicy anr;! under the Rules in affect on the date Iha demand lor arbitration is ml;\de or. at the option 01 lhe IOsured. the Rules In effect at Date of Policy shall be brnding upon the partIes. Tne award may include altorneys' fees only If the laws of the state 11'1 which the land IS localed permil a court to award attorneys' fees to a prevailing pany. Judgment upon the award rendered by the ArbllraIOr(S) may be enlered 11'\ any cour( h<lvu'Ig Jurisdiction tneraof. . The law o'lhe silus of the lanr;l shall apply to an arbitration under Ihe TItle Insurance Arbitration Rules. A copy of 1M Rules may be ot/tamed from the Company upon request. 15. LIABILITY L1MITEO TO YHIS POLICY; POLICY ENTIRE CONTRACT (a) Thill> pOlicy together wilh all endOfsements, if al'ly. attached herelo by 1 he CornparlY is the enlire polil::Y and contract between the insured and Ihe Com. p~ny. In IOterpreling any prOVIsion of this pOlicy, this policy shall ba construed as a WhOle. (b) Any claim 011055 Qr d<lmagc. whether Or not based on neghgl:lnce. and which arises out of the ~latuS of tile title to the estate or inlere$1 covered /1ereoyor by any action asserting such claim, shall be reslncled to tt'lIS policy. (c) No amendment 01 or endorsement to l/1i5 policy can be made except by a writing enr;!orsed hereon or altached hereto signed by Bllher the Presidem. a Vice Presidenl. Ihe Secretary, an Assistant Secretary. or validating ofllOer or authorized signatory of the Company. 16. SEVERABILITY In Ihe event any provision of the pOlicy is held invalid or unenforceable vnder applicable law, the policy shall be deemed not to inClude thai prOVISion and all other provisions shall remElJl'lln full force and effect. 17. NOTICES, WHERE SENT AlIl'lOtiGes required 10 be given Ihe Company and any statement in wri\lng requir9d to be furniShed the Company shall inClude the number Ollhis policy and shall be addres$edlO Ihe COmpliiny at the Issuing office or lo~ Cl1i(l<lgo iiUe 100surance Company ClaIms Departmeflt 171 North Clark Street Chicago, Illinois 60801-3294