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1 Purchase Agmt Pauly Pony SiteMEMORANDUM CITYOF CHANHASSEN 7700 Market Boulevard PO Box 147 Chanhasser MN 5531/ Aflminislrati0n Phone: 952227 1100 Fax: 95, 22~ 1110 Building Inspections Phoqe 952227 1180 Fax: 9522271190 Engineering Phone: 952 227 1160 Fax,: 952 227 !170 Finance Phone: 952227 1140 Fax 952 227 1110 Park & Recreation Phone: 952227 1120 Fax 9522?71110 RecreatJo ~ Center 2310 Oouiter Boui~zvara Phone: 952 227 1400 Fax 9522271404 Planning & Natural Resources Phon~ 952227 !130 Fax 952227' 1110 Public Works 1591 Park Road Phone: 9522271300 Fax 9522271310 Senior Center PPone: 952227 !125 Fa,x 9522271110 Web Site vw,,'v,, ci~ har hassen rnu us TO: Todd Gerhardt, Executive Director FROM: DATE: RE: Justin Miller, Assistant to the Executive Director % .~' August 18, 2004 Purchase Agreement for Lot 1, Block 1, Old Village Hall (formerly known as Pony-Pauly-Przymus property) BACKGROUND In April 2004, staff presented a development concept to the Chanhassen Economic Development Authority for City-owned land adjacent to Old Village Hall. The City acquired this land as part of the downtown redevelopment process and for realignment of W. 78th Street and Great Plains Boulevard. The concept presented in April included an 8,000 square foot daycare and a 1,800 square foot freestanding coffee shop with a drive-thru. The EDA gave staff direction to continue negotiations with the developer and if possible to return with a purchase agreement. Since the April EDA meeting, staff has met with the developer and daycare franchisee numerous times. In the end, it was determined that locating both the daycare and coffee shop on this site would be very difficult. Therefore, the proposed purchase agreement includes only the daycare, but staff is working with the coffee shop to find another suitable location in the general area. Highlights of the proposed purchase agreement include: · Purchase price of $598,950 ($11.00 per square foot) · $10,000 in earnest money will be deposited at the time of signing the agreement. This money will be applied against the purchase price at the time of closing. If the City performs all its duties outlined in the agreement, and the buyer does not conclude the purchase, the City may retain the earnest money. · Goddard Learning Centers will build an 8,000 square foot daycare building · Site plan review by the Planning Commission and City Council will occur this fall · Parking for the Chamber of Commerce and Homestead Church (tenants of Old St. Hubert's Church) will be maintained · Re-Max Action West will continue to have a cross-access easement across the property for access to their building · Closing is to be held 60 days from the execution of the purchase agreement (contingent on site plan approvals). The closing date can be · :r play The City of Chanhassen o A growing 60Fn[11[Jrlli~ v¥itil ,ulear: akes ,:;rial: ,~ s,Thc,;)ls l ?/!armincl co¢,rlto'3r~ !!IriVii1!l bLisIn(ss{55 ¢,, Nd [1(] ',ru, !ir] br, s ;i itl ?a:ks q ,l'r af pice t(, i've work ~ i extended by 90 days if contingencies are not met, but the agreement may be cancelled if closing has not occurred within 180 days. The timeline for this project is very tight, and in order for closing and groundbreaking to occur this year, the applicant has agreed to the following timetable: September 3 · October 5 · October 11 · Prior to October 27 Deadline for site plan submittal Planning Commission review City Council review Closing Staff believes that a daycare is a good use for this site for a number of reasons. First, the parking demand will coordinate with the other uses of the parking lot. While the daycare will need spaces during weekdays, the church needs parking at nights and on the weekends. Second, a daycare is a "two trip" use, meaning that parents will need to make two trips to downtown Chanhassen each day (one to drop off their children and another to pick-up). This will help the downtown businesses as more visits are made to the area. Third, Chapel Hill Academy is across the street and adding a pre-school to the area will complement the elementary school users already in the area. RECOMMENDATION (approval requires a simple ma. iority) Staff recommends that the Chanhassen Economic Development Authority approve the attached purchase agreement with Fred and Valaire Riese for Lot 1, Block 1, Old Village Hall and confirm that the sale of this land is in accordance with the City of Chanhassen Comprehensive Plan. REAL ESTATE PURCHASE AGREEMENT THIS AGREEMENT (the "Agreement") made and entered into this __ day of August, 2004, by and between FREDERICK C. RIESE and VALAIRE RIESE, whose address is 9154 Sunnyvale Drive, Chanhassen, Minnesota 55317 (referred to herein as the "Buyer"), and the ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF CHANHASSEN, a public body corporate and politic under the laws of the State of Minnesota, with offices at 7700 Market Boulevard, P.O. Box 147, Chanhassen, Minnesota 55317 (referred to herein as the "Seller"). IN CONSIDERATION of the mutual covenants and agreements herein, it is hereby mutually agreed by Seller and Buyer as follows: SECTION 1. SALE AND PURCHASE OF LAND AND GRANT OF EASEMENTS 1.1) Seller shall sell to Buyer and Buyer shall purchase from Seller, upon the terms and conditions hereof, the following property shown on the proposed plat of "Old Village Hall" ("Plat") attached hereto as Exhibit "C" and hereinafter referred to as the "Subject Property": 1.1.1) The land in Carver County, Minnesota, to be legally described as follows: Lot One (1), Block One (1), Old Village Hall, according to the plat thereof now on file and of record in the Office of the County Recorder, Carver County, Minnesota. Seller agrees that it will file and record the Plat prior to the closing at its sole cost 1.2) and expense. SECTION 2. PURCHASE PRICE 2.1) The purchase price for the Subject Property ("Purchase Price") shall be Eleven and no/100 Dollars ($11.00) per square foot ("Per Square Foot Price") which, assuming the Subject Property consists of 1.25 acres, the Purchase Price would be an amount equal to Five Hundred Ninety-eight Thousand Nine Hundred Fifty and No/100 Dollars ($598,950.00) and shall be payable by Buyer to Seller as follows: 2.1.1) Ten Thousand Dollars ($10,000.00) earnest money ("Earnest Money"), to be deposited with Seller (as hereinafter defined). The Earnest Money shall be distributed to Seller (i) at the time of closing to be applied against the Purchase Price, or (ii) as liquidated damages and as Seller's sole remedy, in the event the Seller performs all of its obligations under this Agreement and Buyer fails to close as required in this Agreement. The Earnest Money shall be returned to the Buyer in the event of (i) refusal of the Seller to perform its obligations under this Agreement, or (ii) Buyer's termination of this Agreement within the Contingency Period, as hereinafter set forth. Buyer's sole remedy if Seller refuses to perform its obligations shall be to have the Earnest Money returned. 2.1.2) The balance of the Purchase Price in cash on the "Closing Date" (as defined below), subject to the adjustment set forth in Section 2.1.3 below. 2.1.3) Seller shall deliver to Buyer a preliminary plat of the Subject Property which shall certify to both Seller and Buyer the area in square feet included in the Subject Property. The area shall include only that portion of the Subject Property included in Lot One (1), Block One (1), Old Village Hall and not any land dedicated for roads, streets or other public use. Upon receipt of the preliminary plat and surveyor's certificate, the Purchase Price shall be adjusted to an amount determined by multiplying the Per Square Foot Price by the actual area in square feet of Subject Property. SECTION 3. TITLE MATTERS 3.1) Seller shall caused to be furnished to Buyer within twenty (20) days of execution hereof by Seller an endorsement to the Commitment for Title Insurance attached hereto as Exhibit "D" for the issuance of an ALTA Form B owner's policy of title insurance (the "Commitment") issued by Chicago Title Insurance Company by its agent Carver County Abstract and Title Insurance Company ("Title Company") in the proposed amount of the 2 Purchase Price, committing to insure that Buyer will have good and marketable title to the Subject Property, except for the following: (a) Declaration of Covenants, Conditions, Restrictions and Easements Agreement to be recorded a copy of which is attached hereto as Exhibit "A" ("Covenants"), subject to Buyer's fight to approve the Covenant in accordance with Section 7.5 hereof; (b) Declaration and Grant of Easement for Access Purposes to be recorded a copy of which is attached hereto as Exhibit "B" ("Access Easement"), subject to Buyer's fight to approve the Access Easement in accordance with Section 7.5 hereof; (c) Drainage and utility easement as shown on the proposed Plat of Old Village Hall in favor of the City of Chanhassen; and (d) zoning and all other governmental ordinances, regulations, requirements and laws. Buyer shall have twenty (20) days after receipt of the Commitment to make any objections to the matters disclosed in the Commitment. Such objections to be made in writing or deemed to be waived. 3.2) In the event any exceptions are listed in the Commitment other the items listed in Section 3.1(a), (b), (c) and (d), if the same results from any voluntary action by the Seller after the date hereof, the Seller shall cause the exception to be removed on or before the Closing Date. With regard to any other exceptions, if the Seller fails to remove the same within the time allowed for closing on the Subject Property, the Buyer shall have as its sole remedy the right to terminate this Agreement. 3.3) Seller shall furnish to Buyer a copy of any surveys of the Subject Property that Seller has in its possession within ten (10) days of the execution of this Agreement. SECTION 4. CLOSING 4.1) The closing (the "Closing") shall be at a location designated by Seller, and shall occur on or before sixty (60) days from the date of execution of the Agreement by the City ("Closing Date"). Notwithstanding any other provision herein to the contrary, Buyer may extend the Closing Date for an additional ninety (90) days if all of the contingencies set forth in Section 7 (Buyer's Contingencies) and other conditions set forth in Sections 8, 9 and 10 have not been satisfied, provided Buyer is diligently pursuing the satisfaction thereof. If the Closing is not completed on or before one hundred eighty (180) days from the date of execution of this Agreement by the City, this Agreement may be cancelled at the election of Seller or Buyer by the party canceling this Agreement giving the other party fifteen (15) days written notice. In the event of such cancellation by either Seller or Buyer, the Earnest Money shall be returned promptly to Buyer and neither party shall have any further rights under this Agreement and the Buyer agrees to provide Seller with a Quit Claim Deed to the Subject Property. 4.2) On the Closing Date, Seller shall deliver to Buyer possession of the Subject Property "as is". 4.3) On the Closing Date, Seller shall execute and deliver to Buyer: 4.3.1) A duly executed limited warranty deed, subject only to the exceptions listed in the Commitment that are consented to by Buyer and subject to the right of reversion held by Seller under Minnesota Statutes, Section 469.105(5) and the covenants running with the Subject Property pursuant to Minnesota Statutes Section 469.090 - 469.1081; and 4.3.2) A customary affidavit that there are no unsatisfied judgments of record, no actions pending in any state or federal courts, no tax liens, and no bankruptcy proceeding filed against Seller, and no labor or materials have been furnished to the Subject Property for which payment has not been made, and that to the best of Seller's knowledge there are no unrecorded interests relating to the Subject Property. 4.3.3) Documents evidencing compliance with Minnesota Statutes Section 469.090 - 469.1081. 4.4) Seller shall pay at Closing all general real estate taxes levied against the Subject Property due and payable for all years prior to and including the year of Closing, if the Closing occurs in 2004, together with the unpaid balance of levied and pending special assessments due in all years prior to and including the year of Closing. Seller and Buyer shall prorate general real estate taxes due and payable in the year of Closing if the Closing occurs on or after January 1, 2005. Buyer shall be responsible for payment of all assessments levied against the Subject Property after the Closing. Such assessments shall include, but not limited to, assessments associated with Buyer's anticipated development of the Subject Property. Buyer shall pay for all general real estate taxes due and payable in years subsequent to the year of Closing. 4.5) Seller shall pay at Closing: 4.5.1) state deed tax; 4.5.2) all costs associated with obtaining a title insurance commitment, including name searches, tax searches, bankruptcy searches, and property inspection fees; 4.5.3) recording fees for corrective instruments required to remove encumbrances and place marketable title in Buyer's name; 4.5.4) one-half of the Closing fee charged by the title company; and 4.5.5) all costs associated with the platting of the Subject Property. 4.6) Buyer shall pay at Closing: 4.6.1) all recording fees and charges relating to the filing of the deed; 4.6.2) title insurance fees and premiums; 4.6.3) one-half of the Closing fee charged by the title company. SECTION 5. COVENANTS~ REPRESENTATIONS~ AND WARRANTIES OF SELLER 5.1) Seller, as an inducement to Buyer to enter into this Agreement, and as part of the consideration therefor, represents, warrants, and covenants with Buyer and its successors and assigns that: 5.1.1) There are no leases, options, purchase agreements, rights to redeem, tenancy agreements, written or verbal, and no person or party has, or will have any rights of adverse possession, regarding the Subject Property except as set forth in Section 3.1 (a) through (e); 5.1.2) Seller will maintain in force insurance against public liability from such risk and to such limits as in accordance with prudent business practice and suitable to the Subject Property from the date hereof to the Closing Date; 5.1.3) To the best knowledge of Seller, no entity or person has, at any time: i) "released" or actively or passively consented to the "release" or "threatened release" of any Hazardous Substance (as defined below) from any "facility" or "vessel" located on or used in connection with the Subject Property or adjacent tracts; or ii) taken any action in "response" to a "release" in connection with the Subject Property or adjacent tracts; or iii) otherwise engaged in any activity or omitted to take any action which could subject Seller or Buyer to claims for intentional or negligent torts, strict or absolute liability, either pursuant to statute or common law, in connection with Hazardous Substances (as defined below) located in or on the Subject Property or adjacent tracts, including the generating, transporting, treating, storage, or manufacture of any Hazardous Substance (as defined below). The terms set within quotation marks above shall have the meaning given to them in the Comprehensive Environmental Response and Liability Act, 42 U.S.C. Sec. 9601 et seq., as amended ("CERCLA") and any state environmental laws. 5.1.4) Seller, used, or removed any Property; and or any other person or entity, has not, at any time, ever installed, underground storage tank on or in connection with the Subject 5.1.5) There are no wells located upon the Subject Property. 5.1.6) Seller has the present full authority and power to execute this Agreement and to close the sale of the Subject Property. 5.2) The covenants, representations, and warranties contained in Section 5 shall be deemed to benefit Buyer and its successors and assigns and shall survive any termination or expiration of this Purchase Agreement or the giving of the Deed. All of Seller's covenants, representations and warranties in this Agreement shall be true as of the date hereof and of the Closing Date, and shall be a condition precedent to the performance of Buyer's obligations hereunder. If Buyer discovers that any such covenant, representation, or warranty is not true, Buyer may elect prior to Closing, in addition to any of its other rights and remedies, to cancel this Agreement, or Buyer may postpone the Closing Date up to ninety (90) days to allow time for correction. SECTION 6. ENVIRONMENTAL/SOIL INVESTIGATION AND TESTING 6.1) Buyer and its agents shall have the right, at the sole option of Buyer and at Buyer's cost and expense, to enter upon the Subject Property without charge and at all reasonable times from the date of the execution of this Agreement to perform such inspections of the Subject Property, environmental investigation and soil tests as Buyer may reasonably deem appropriate. If Buyer investigates and tests the Subject Property pursuant to this section, Buyer shall pay all costs and expenses of such investigation and testing and shall hold Seller harmless from all costs and liabilities arising out of Buyer's activities. If the purchase and sale contemplated by this Agreement is not closed, Buyer shall, at its own expense, repair and restore any damage to the Subject Property caused by Buyer's investigation and testing, and shall return the Subject Property to substantially the same condition as existed prior to such entry. Buyer shall contract for any inspections of the Building, environmental investigations and soil tests within twenty (20) business days from the date of execution of the Agreement by the Seller and complete all inspections and testing within sixty (60) days of the execution of this Agreement by the Seller and shall inform Seller in writing within ninety (90) days after the execution of this Agreement by Seller whether or not Buyer is satisfied in its sole discretion with the results of the inspections, environmental investigation and/or soil test and whether or not Buyer waives this contingency. If Buyer does not object to the Building's condition, environmental condition of the Subject Property or the soil condition within said ninety (90) day period, Buyer will be deemed to have waived its right to object thereto. If Buyer is not satisfied with the environmental condition or the condition of the soil as it relates to construction of the improvements contemplated by Buyer, Buyer may terminate this Agreement and shall be entitled to a refund of the Earnest Money. 6.2) Within ten (10) days from the date of execution of the Agreement by Seller, Seller shall deliver to Buyer complete copies of all environmental reports and soil tests in Seller's possession or control. SECTION 7. BUYER'S CONTINGENCIES The obligations of Buyer under this Agreement are contingent upon each of the following: 7.1) Buyer obtaining a survey of the Subject Property at Buyer's sole cost and expense, on or before the 15th day of October, 2004 ("Survey"). 7.2) Buyer, Buyer's lender and Title Company determining on or before the 15th day of October, 2004, that they are satisfied with the results of the matters disclosed by the Survey of the Subject Property and the Commitment, both as referenced in this Agreement. 7.3) The use of the Subject Property as contemplated by the Buyer for a 8,000 square foot building for a day care center ("Improvements") shall have been approved by the City of Chanhassen on or before the Closing Date. All costs associated with the obtaining of the approval by the City of Chanhassen shall be paid by the Buyer. 7.4) Buyer shall have determined whether all necessary governmental or quasi- governmental permits, licenses and approvals for the construction of the Improvements can be obtained on or before the Closing Date. 7.5) Buyer shall have determined in its sole discretion on or before the 15th day of October, 2004, whether or not the terms, covenants and conditions of the Covenants, Access Easement, and the Easement Agreement are acceptable to the Buyer or that the foregoing have been amended or modified in a form and substance acceptable to Buyer. If the Buyer fails to notify Seller in writing that the covenants and access easement are unacceptable on or before October 15, 2004, the Buyer will have been deemed to have waived their right to object thereto. Buyer shall, within sixty (60) days after the date of execution of this Agreement by the Seller, at Buyer's sole cost and expense, apply for all permits, licenses and approvals necessary for the Buyer to build and construct the Improvements contemplated in this Section upon the Subject Property. Buyer shall further, upon request of the Seller, provide evidence that Buyer has applied for any and all licenses and permits required for the development of the Subject Property and the construction of the Improvements thereon and ordered the Survey. If any of the contingencies have not been satisfied on or before the dates listed above, the Buyer may, at Buyer's option, terminate this Agreement by giving written notice to Seller on or before the respective dates set forth above or Buyer may extend the period of time for the satisfaction of the contingencies set forth in Sections 7.3 and 7.4 for any additional period of ninety (90) days by giving written notice to the Seller on or before ninety (90) days from the date of the execution of this Agreement by Seller. If Buyer elects to terminate this Agreement as a result of any of the foregoing contingencies, neither party shall have any further rights or obligations under this Agreement and the Earnest Money shall be returned to Buyer and the Buyer shall execute and deliver to Seller a Quit Claim Deed at the time of the delivery of the Earnest Money, which Quit Claim Deed shall memorialize the termination of this Agreement. SECTION 8. INTENTIONALLY LEFT BLANK SECTION 9. INTENTIONALLY LEFT BLANK SECTION 10. INTENTIONALLY LEFT BLANK SECTION 11. DEVELOPMENT FEES 11.1) Buyer shall be responsible for all fees normally charged by the City of Chanhassen for development of the Subject Property, including but not limited to sewer area charges (SAC), water area charges (WAC) and hook-up fees, provided however that Buyer shall be given credit for all SAC, WAC and other fees already paid that relate to the Subject Property. Within twenty (20) days after execution of the Agreement by Seller, Seller shall provide Buyer with an estimated schedule of development fees for the Subject Property. Seller shall be responsible for any park dedication or similar fees relating to the Plat. SECTION 12. MISCELLANEOUS 12.1) Any notice, demand, or request which may be permitted, required or desired to be given in connection herewith shall be in writing and sent by certified mail. Any notice shall be deemed effective when delivered to the party to whom it is directed. Unless other addresses are given in writing, notices shall be sent to Seller or Buyer at the applicable address stated on the first page of this Agreement. 12.2) Time shall be of the essence in this Agreement. If any date or time prescribed by this Agreement falls on a Saturday, Sunday or holiday, such date or time shall automatically be extended to the next normal business day. 12.3) Each party hereto shall promptly, on the request of the other party, have acknowledged and delivered to the other party any and all further instruments and assurances reasonably requested or appropriate to evidence or give effect to the provisions of this Agreement. 12.4) This Agreement represents the entire agreement of the parties with respect to the Subject Property and all prior agreements, understandings, or negotiations between the parties are hereby revoked and superseded hereby. No representations, warranties, inducements, or oral agreements have been made by any of the parties, except as expressly set forth herein, or in other contemporaneous written agreements. This Agreement may not be changed or modified except by a written agreement signed by Seller and Buyer. 12.5) If Buyer defaults under any of the terms hereof, Seller shall have the fight to retain the Earnest Money as Seller's sole remedy and shall not have a further fight to such damages or specific performance. 12.6) If Seller defaults under any of the terms hereof, including, without limitation, the delivery of marketable title to the Subject Property as set forth in Section 4 hereof, then Buyer shall have as its sole remedy to seek the right to a retm'n of the Earnest Money. 12.7) if any provision of this Agreement is declared void or unenforceable, such provision shall be deemed severed from this Agreement, which shall otherwise remain in full force and effect. l 2.8) Failure of any party to exercise any right arising out of a breach of this Agreement shall not be deemed a waiver of any right with respect to any subsequent or different breach, or the continuance of any existing breach. 12.9) This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns. 12.10) Except for Suntide Commercial Realty, Inc. and Steven Mosborg, Seller and Buyer represent and warrant to each other that they have not engaged or dealt with any broker or agent with respect to the Subject Property. Buyer shall pa), any real estate commission due Suntide Commercial Realty, Inc. and Steven Mosborg and shall provide Seller with a copy of an agreement relating to the payment of any commission or fees. Notwithstanding the foregoing, Buyer and Seller shall each defend, indemnify and hold the other harmless from and against all claims, losses and liabilities incurred by the indemnified party in connection with any claim or demand by any person or entity from any brokers, finders, or other fee or compensation in connection with the indemnifying party's entry into this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. BUYER: Frederick C. Riese Valaire Riese SELLER: ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF CHANHASSEN By: Its: Executive Director By: Its: Chairman THIS INSTRUMENT WAS DRAFTED BY: CAMPBELL KNUTSON, P.A. 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, MN 55121 Telephone: (651) 452-5000 [JFK] 12 EXHIBIT "C" [EXHIBIT ~C'~ CONSISTS OF THE ATTACHED PRELIMINARY i~LAT OF "OLD VILLAGE HALL"] EXHIBIT "D" [EXHIBIT "D" CONSISTS O1~ THE ATTACHED PRELIMINARY TITLE INSURANCE COMMITMENT.] EXHIBIT "B" THIS DOCUMENT IS NOT FOR SIGNATURE (reserved for recording information) DECLARATION AND GRANT OF EASEMENT FOR ACCESS PURPOSES THIS DECLARATION AND GRANT OF EASEMENT FOR ACCESS PURPOSES ("Declaration") is made effective the day of ., 2004, by the Economic Development Authority in and for the City of Chanhassen, a public body corporate and politic under the laws of the State of Minnesota ("Declarant"). RECITALS A. Declarant is the fee owner of certain real property situated in the City of Chanhassen, County of Carver, State of Minnesota, and legally described as Lot 1, Block 1, OLD VILLAGE HALL ("Property"). B. Declarant may at some point in time transfer title to the Property and desires to establish certain easements on, over and across thc Property as more fully described in each section below. C. Declarant hereby declares that the Propcrty shall be held, sold and conveyed subject to the following easement, for the purposes set forth below. The easement rights and 105677 V3 1 responsibilities described shall run with the land, and shall be binding upon the heirs, successors and assigns of the parties having any right, title or interest in the Property, but only to the extent the easement described below affects any particular Property. EASEMENT 1.1 Declarant hereby declares, establishes and grants a perpetual non-exclusive easement for the ingress and egress by vehicular and pedestrian traffic (but not parking) upon, over and across the land legally described on Exhibit "A" attached hereto and made a part hereof ("Easement Premises") for the purpose of providing access between Great Plains Boulevard and the property described on Exhibit "B" attached hereto and made a part hereof ("Remax Property"). 1.2 The easement burdens the Property, and benefits and runs with the Remax Property. 1.3 The owner of the Remax Property shall have the right to enter upon the Easement Premises at all reasonable times for the construction, inspection, maintenance and repair (including reconstruction) of the Easement Premises. The owner of the Remax Property shall be responsible for all costs and expenses associated with the repair and maintenance of the Easement Premises. 1.4 The easement also benefits any utility company or municipality providing utility services to one or more of the platted lots. 1.5 The easement rights and responsibilities set forth in this Declaration shall run with the Property, and shall be binding upon and inure to the benefit of Declarant and the Owner of the Remax Property and their successors and assigns, and any other person or entity at any time hereafter who shall become the owner of the Property. 105677 V3 2 IN WITNESS WHEREOF, the undersigned has executed this Declaration as of the day and date set forth above. DECLARANT: ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF CHANHASSEN By: Its: Exhibit - Do Not Sign Executive Director By: Its: Chaim~an Exhibit - Do Not Sign STATE OF MINNESOTA ) ) SS. COUNTY OF CARVER ) The foregoing instrument was acknowledged before me this day of ,2004, by ., the Executive Director, and by , the Chairman, of the Economic Development Authority in and for the City of Chanhassen, a public body corporate and politic under the laws of the State of Minnesota, on behalf of the public body. Notary Public THIS INSTRUMENT WAS DRAFTED BY: CAMPBELL KNUTSON Professional Association 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, MN 55121 Telephone: (651) 452-5000 JFK EXHIBIT "A" TO DECLARATION AND GRANT OF EASEMENT FOR ACCESS PURPOSES (Easement Premises Description) A 26.00 foot perpetual easement for ingress and egress purposes over and across part of Lot 1, Block 1, OLD VILLAGE HALL, Carver County, Minnesota, according to the recorded plat thereof. The centerline of said easement is described as follows: Commencing at the Northwest comer of the Northwest Quarter of the Northeast Quarter of Section 13, Township 116, Range 23 of said Carver County; thence on an assumed bearing of South 00 degrees 14 minutes 53 seconds West, along the West line of said Northwest Quarter of the Northeast Quarter, a distance of 282.49 feet; thence South 85 degrees 50 minutes 43 seconds East, a distance of 66.20 feet to a point on the East line of the West 66.00 feet of said Northwest Quarter of the Northeast Quarter, said point being the point of beginning of said centerline; thence North 88 degrees 40 minutes 25 seconds West, a distance of 78.73 feet; thence North 38 degrees 00 minutes 53 seconds West, a distance of 35.97 feet; thence South 53 degrees 21 minutes 49 seconds West a distance of 33.65 feet to the Northeasterly right-of-way line of Great Plains Boulevard and said centerline there terminating. The side lines of said easement shall terminate at the East line of the West 66.00 feet of said Northwest Quarter of the Northeast Quarter and at the Northeasterly right-of-way line of said Great Plains Boulevard. 105677 V3 4 EXHIBIT "B" TO DECLARATION AND GRANT OF EASEMENT FOR ACCESS PURPOSES (Remax Property Description) All that part of the following described property which lies westerly of a line drawn parallel with and distant 66.00 feet easterly from the westerly line of the Northeast Quarter of Section 13, Township 116, Range 23, Carver County, Minnesota: Commencing at a point on the North and South center line of Section 13, Township 116, Range 23 where the noah line of the right-of-way of the Hastings and Dakota Division of the C. M. & St. Paul Railroad strikes said center line thereof, thence easterly along said north line of right-of-way 300 feet to a point; thence north 78 feet to a point; thence west to said center line to a point 128 feet noah of where said center line of Section 13 strikes the north line of right-of- way aforesaid railway; thence south on said center line 128 feet to place of beginning, situated in the Northwest Quarter of the Northeast Quarter of Section 13, Township 116, Range 23 and containing about one-half acre of land, more or less, according to the plat thereof and the record on file in the office of the Register of Deeds in and for the County of Carver, State of Minnesota. Excepting therefrom the following described premises: Commencing at a point on the noah and south center line of Section 13, Township 116, Range 23, where the north line of the right-of-way of the Hastings and Dakota Division of the C.M. & St. Paul Railroad strikes said center line thereof; thence easterly along said north line of right-of-way 300 feet to a point which is the actual point of beginning; thence north 15 feet; thence west 30 feet; thence south to the said noah line of the right-of-way of Hastings and Dakota Division of the C.M. & St. Paul Railroad; thence easterly along said north line to the point of beginning. All that part of the former Chicago, Milwaukee, St. Paul and Pacific Railroad Company's real property in the Southwest Quarter of the Southeast Quarter of Section 12 and in the Northwest Quarter of the Northeast Quarter of Section 13, all in Township 116 Noah, Range 23 West in the Town of Chanhassen, Carver County, Minnesota, lying noahwesterly of a line parallel to and distant 50 feet northwesterly of, as measured perpendicular to, the centerline between said Railroad Company's existing main tracks, more particularly described as follows: Beginning at the intersection of the west line of the Northwest Quarter of the Northeast Quarter of said Section 13 with a line parallel to and distant 50 feet northwesterly of, as measured perpendicular to, the centerline between said existing main tracks; thence northeasterly along said parallel line, a distance of 1450 feet, more or less, to a point on the east line of the Southwest Quarter of the Southeast Quarter of said Section 12; thence northerly along the east line of the Southwest Quarter of the Southeast Quarter of said Section 12, a distance of 200 feet, more or less, to a point on the noahwesterly line of said real property; thence southwesterly along the northwesterly line of said real property, a distance of 390 feet, more or less, to a point on the south line of the Southwest Quarter of the Southeast Quarter of said Section 12; thence westerly along the south line of the Southwest Quarter of the Southeast Quarter of said Section 12, a distance of 80 feet, more or less, to a point on the northwesterly line of said real property; thence southwesterly along the noahwesterly line of said real property, a distance of 1060 feet, ~0%77 v3 5 more or less, to a point on the west Fine of the Northwest Quarter of the Northeast Quarter of said Section 13; thence southerly along the west line of the Northwest Quarter of the Northeast Quarter of said Section 13, a distance of 75 feet, more or less, to the point of beginning. EXCEPTING THEREFROM that part thereof which lies east of the east line of the west 401.26 feet of the Northwest Quarter of the Northeast Quarter of said Section 13. g:\eng\forms\easements\remax.doc 1O5677 V3 6 EXHIBIT "A" THIS DOCUMENT IS NOT FOR SIGNATURE DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND GRANT OF EASEMENTS DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND GRANT OF EASEMENT made effective the day of , 2004, by the City of Chanhassen, a Minnesota municipal corporation ("Declarant"). RECITALS WHEREAS, Declarant is the Owner of real property legally described on Exhibit "A" (the "Property); and WHEREAS, in order to create and preserve the quality and harmonious development of the Property and the City of Chanhassen and for the benefit of the Property (as hereinafter defined), Declarant desires to create easements and impose covenants, conditions and restrictions governing matters including the use of the Property and for parking, access, drainage, utilities and maintenance of the Property and individual Parcels therein. NOW, THEREFORE, Declarant hereby grants the easements provided herein and declares that the Property and the individual Parcels shall be owned, held, sold, leased, exchanged, conveyed, occupied, improved, maintained and used subject to and benefited by the covenants, conditions, restrictions and easements herein set forth, all of which shall run with the right, title and interest in and to the Property and any Lots therein, and which shall be binding upon and inure to the benefit of the present and all future Owners of the Property and/or any part or parts thereof and the City of Chanhassen. 1I. RESTRICTIVE COVENANTS AND CONDITIONS The following uses of thc Property are hereby prohibited: 104950 v3 I (a) (b) (d) Liquor, on and off sale; Convenience store; Auto service center; Restaurant, fast food (unless the building is under 2,000 square feet and 50% or more of the sales are derived from the sale of packaged coffee or coffee-related beverages). Convenience store, Auto service center, and Restaurant, fast food, for purposes of this Agreement are defined as follows: Convenience store means a retail establishment which generally sells a limited range of food products, nonprescription drugs, candy and other perishable goods. This includes soda and similar beverage dispensing and food products, which can be heated and/or prepared onsite, and has over four hundred (400) square feet of floor area for retailing of non-automotive goods. Auto service center means an integrated group of commercial establishments or single establishments planned, developed, and managed as a unit with off-street parking provided on site and providing uses engaged primarily in the supplying of goods and services generally required in the operation and maintenance of motor vehicles. These may include sale and servicing of tires, batteries, automotive accessories, replacement items, washing and lubricating services, and the performance of minor automotive maintenance and repair. This does not include major body repair where it is necessary to provide long term storage of cars and body parts. Restaurant, fast.~od means an establishment whose principal business is the sale of food and/or beverages in a ready-to-consume state for consumption: (1) Within restaurant building; (2) Within a motor vehicle parked on the premises; or (3) Off the premises as carry-out orders; and whose principal method of operation includes the following characteristics: (a) Food and/or beverages are usually packaged prior to sale and are served in edible containers or in paper, plastic, or other disposable containers; (b) The customer is not served food at this table by an employee, but receives it at a counter window, or similar facility and carries it to another location on or off the premises for consumption. Ill. EASEMENTS A. Easements Granted. Subject to the terms and conditions of this Declaration, Declarant hereby declares, establishes and grants the following easements, which shall burden the respective Parcel(s) on which the easement is physically located and shall be appurtenant to and for the benefit of all respective Parcels. 1. Ingress and Egress Easement. As a benefit fol' Outlot B and its a burden affecting Lot 1, Declarant hereby grants and conveys to the Owner of Outlot B, for its use 104950 V3 2 and the use by its Permittees, a permanent non-exclusive easement for the ingress and egress by vehicular and pedestrian traffic (but not parking) upon, over and across the parking areas, driveways, curb cuts and sidewalks (collectively, the "Parking and Access Facilities") from time to time located on Lot 1; PROVDED, the Owner of Lot I agrees not to close, materially change or relocate that portion of the Parking and Access Facilities shown hatched on Exhibit B without the prior consent of the Owner of Outlet B; PROVDED, FURTHER, that no fence or other barrier which would unreasonably prevent or obstruct the passage of pedestrian or vehicular travel for purposes herein permitted shall be erected within or across the Parking and Access Facilities. 2. Parking Easement. As a benefit for Outlet B and as a burden affecting Lot 1, Declarant hereby grants and conveys to the Owner of Outlet B, for its use and the use by its Permittees, a permanent exclusive easement for motor vehicle parking upon, over and across the eight parking spaces located on the Parking and Access Facilities and identified by cross-hatch markings on Exhibit B. No other Persons shall be permitted to park motor vehicles in these eight parking spaces without written permission from the Owner of Outlet B. 3. Drainage Easement. As a benefit for Outlet B and as a burden affecting Lot 1, Declarant hereby grants and conveys to the Owner of Outlet B, for its use and the use by its Permittees, a permanent drainage easement in order to enable the continuous drainage of surface waters from Outlet B upon, over and across the Common Area located on Lot 1. 4. Utility Easement. As a benefit for all Parcels and as a burden affecting all Parcels, Declarant hereby grants and conveys to each of the Owners for their use in common with others entitled to use the same, permanent non-exclusive easements appurtenant to the respective Parcels under, through and across the Common Area of each Parcel for installation, maintenance, repair and replacement of water mains and laterals, sanitary sewer mains and laterals, water sprinkler system lines, telephone and electrical conduit systems, gas mains and other public utility facilities necessary for the construction and operation of businesses conducted by Owners and/or Occupants within improvements constructed on the Building Areas on the respective Parcels. All such systems, structures, mains, laterals, conduits, lines and other public utilities shall, to the extent reasonably possible, be installed and maintained below the ground level or surface. IV. MAINTENANCE AND REPAIR A. Maintenance and Restoration of Parking and Access Facilities. All costs and expenses concerning the maintenance of the Parking and Access Facilities, including the area subjected to the parking easement, shall be borne by the Owner of Lot 1. Maintenance shall include but not be limited to the following: 104950 v3 3 1. Removal of all ice, snow, papers, debris, filth and refuse, as soon as practically possible, and sweeping to the extent reasonably necessary to keep the same in a first-class, clean and orderly condition. 2. Placing, keeping in repair and replacing any appropriate directional signs, markers and lines. 3. Striping as appropriate. 4. Maintenance of handicap designated parking spaces. 5. In the event the Owner of Lot 1 fails to maintain the area subjected to the parking easement, the Owner of Outlot B, after thirty (30) days written notice (except in the case of an emergency) shall have the right to perform the maintenance required herein and be reimbursed by the Owner of Lot I upon submission of copies of the statements, invoices, bills and other proof of costs and expenses incurred by the Owner of Outlot B. B. Maintenance and Restoration of Utility Easement Improvements. Utilities servicing improvements made within the building areas of each Parcel shall be maintained and repaired in accordance with the following: 1. Common utility lines (excluding any laterals extending therefrom) used solely for the benefit of two or more Owners shall be maintained and repaired by such Owners jointly, and the cost thereof allocated among them equitably based upon the share of benefits derived. 2. In instances where repairs are necessitated by damage that can be traced to the fault of a particular Owner or Occupant, such Person shall be responsible for the cost of the repairs to the extent of its fault. 3. Any Owner performing maintenance work with respect to utility lines shall promptly pay all cost and expenses associated therewith, to diligently complete such work as quickly as possible, and to promptly clean and restore the affected area of the Property to a condition which is equal to or better than the condition which existed prior to the beginning of such work. 4. Whenever performance is required by an Owner, that Owner shall use all due diligence to perform and take all necessary measures in good faith to perform as soon as possible; provided, however, that if completion of performances shall be delayed at any time by reason of acts of God, war, civil commotion, riots, strikes, picketing or other labor disputes, unavailability of materials or labor, or damage to work or other activity in progress by reason of fire or other casualty, or causes beyond the reasonable control of that Owner, then the time for pert'ormance as herein specified shall be appropriately extended by thc length of the delay actually so caused. The provisions of this section shall not operate Io excuse any Owner fi-om the prompt payment of any monies required by this Declaration. 104950 v3 4 RIGHTS OF THE CITY A. Conveyance of Easements. Declarant grants to the City a right of ingress and egress over the Common Areas to perform police calls, fire calls, rescue and other emergency calls, inspections, animal control, street maintenance and repair, street construction and reconstruction, snow removal, provisions for adequate surface drainage, sanitary sewer, storm sewer, water mains and other utilities, weed control, Dutch Elm disease control, installation of cable television or other public services deemed necessary by the City. The cost of any such work performed pursuant to this section may be assessed against the respective Parcels. The City does not undertake to perform any of the work outlined in this section, but reserves to itself the option to so perform. The title of each respective Parcel Owner in and to its Parcel is made subject to the right of access in favor of the City for the purposes set forth herein. B. City Maintenance. If the City performs maintenance or makes repairs pursuant to any of the terms of this Declaration or constructs any public improvements pursuant to the laws of the State of Minnesota, then the City may assess the cost of said maintenance or repairs or public improvements. VI. TERM A. Term. The covenants of this Declaration shall be effective and in full force and effect for thirty (30) years from the date hereof. At the end of said thirty (30) year period the covenants of this Declaration shall automatically be extended for successive ten (10) year periods, until or unless the record Owners of the Property and the City of Chanhassen agree in writing and file of record a statement that the covenants of this Declaration shall not automatically renew at the next expiration date thereof, but rather shall terminate and be of no further force and effect. Notwithstanding anything contained herein to the contrary, all easements created hereby shall continue in perpetuity. VII. MISCELLANEOUS A. Estoppel Certificate. Any Owner may, at any time from time to time, in connection with the sale or transfer of the Owner's Parcel or portion thereof or interest therein, or in connection with the financing or refinancing of the Owner's Parcel deliver written notice to the other Owners, requesting such Owners to execute certificates certifying that the requesting Owner is not in default in the performance of its obligations under this Declaration, or, if in default, to describe therein the nature and amount of any and all defaults. Any Owner receiving such request shall execute and return a certificate within ten (10) days following the request therefor. Such certificate may be relied upon by transferees, and mortgagees in respect of the Parcel or any portion thereof or interest therein. 1o495o v3 5 B. Binding Effect. The covenants, conditions, restrictions, easements and other terms of this Declaration shall be considered covenants running with and appurtenant to the Property, and shall be binding upon the inure to the benefit of the Owners of such Parcels and their respective successors, heirs, personal representatives and assigns who become the owners of the Parcels or portions thereof and the City of Chanhassen. Each Owner now or hereafter owning any portion of the Property shall be liable for performance of all covenants, obligations and undertakings herein set forth with respect to such portion of the Property owned, during the period of ownership, but it is expressly understood and agreed that such liability shall terminate upon termination of ownership. For matters accruing after such termination, any liability arising hereunder prior to such Owner ceasing to be an Owner shall not be terminated but shall continue after the Owner ceases to be an Owner until such liability is satisfied. The covenants and agreements herein contained are enforceable by any Owner against the Owner whose Parcel or Parcels are burdened by the terms hereof. C. Declaration Shall Continue Notwithstanding Breach. It is expressly agreed that no breach of this Declaration shall entitle any Owner to cancel, rescind or otherwise terminate this Declaration without the express written consent of all Owners. However, such limitation shall not affect in any manner any other rights to remedies that such Owner may have hereunder by reason of any such breach. D. Non-Merger. The ownership, at any time during the Term of this Declaration, of more than one Parcel by the same Owner or by an Owner and an affiliate entity of such Owner, shall not create a merger of title, estate, or other merger, including any merger of the dominant and servient estate with respect to easements granted in this Declaration, and shall therefore not terminate any of the easements, covenants, or other terms or provisions of this Declaration as they apply to the Parcels, and all such easements, covenants, and other terms and provisions shall remain in full force and effect during the Term of this Declaration, regardless of any of the aforesaid common ownerships now or thereafter existing of any Parcels. purposes. Recitals. Recitals set forth in Article I shall be incorporated herein for all F. Amendment. This Declaration shall be amended or terminated only by an agreement signed by all of the Owners and the City of Chanhassen. G. Notices. Notices provided for in this Declaration shall be in writing and shall be addressed to any Owner at the address designated in writing by said Owner. Notices addressed as above shall be effective upon the date of hand delivery or the date the notice is deposited in the United States mail, properly addressed with postage prepaid. H. Covenants Running with the Land. All easements, covenants, conditions and restrictions described herein are perpetual and shall run with the land. Provided, however, any transfer of ownership of any property by any Owner hereto, by conveyance, operation or' law or otherwise, shall operate to relieve such transferring Owner from liability for costs or obligations arising hereunder after the date of such transfer, but such Owner shall remain liable for any costs incurred while such Owner was bound by the terms of this Declaration. 104950 V3 6 I. Severability. If any provision of this Declaration is held invalid, the validity of the remainder of the Declaration shall not be affected thereby. J. Failure to Enforce Not a Waiver. No provision contained in this Declaration shall be deemed to have been abrogated or waived by reason of any failure to enforce the same. K. Recording. This Declaration shall be filed against the title to the Parcels and all Owners shall provide whatever documents are necessary to accomplish such filing. L. Governing Law. This Declaration has been entered into in the State of Minnesota and shall be governed by and construed under the laws of the State of Minnesota. M. Enforcement of Covenants, Conditions and Restrictions. The Declarant and/or any Owner may enforce the terms, covenants and conditions of this Agreement. The prevailing party in any litigation necessary to enforce the terms, covenants and conditions of this Agreement shall be entitled to all costs associated therewith including reasonable attorneys' fees. IN WITNESS WHEREOF, the undersigned has executed this Declaration as of the day and date set forth above. CITY OF CHANHASSEN BY: AND: Exhibit - Do Not Sign Thomas A. Furlong, Mayor Exhibit - Do Not Sign Todd Gerhardt, City Manager STATE OF MINNESOTA ) )SS. COUNTY OF CARVER ) The foregoing instrument was acknowledged before me this day of , 2004, by Thomas A. Furlong and Todd Gerhardt, respectively the Mayor and City Manager of the City of Chanhassen, a Minnesota municipal corporation, on its behalf. Notary Public 104950 V3 7 DRAFTED BY: CAMPBELL KNUTSON Professional Association 317 Eagandale Office Center 1380 Corporate Center Curve Eagan, Minnesota 55121 Telephone: 651-452-5000 JFK 104950 v3 8 EXHIBIT A LEGAL DESCRIPTION 1O4950 V3 9 EXHIBIT B SITE PLAN 104950 V3 10