8385078-v7-Declaration for Venue (Chanhassen)
DECLARATION OF EASEMENTS, COVENANTS AND RESTRICTIONS FOR
VENUE
Chanhassen, Minnesota
Registered Land Survey No. ______, Carver County, Minnesota
________, 2017
TABLE OF CONTENTS
DECLARATION OF EASEMENTS, COVENANTS AND RESTRICTIONS FOR
VENUE
Page
RECITALS 1
1. DEFINITIONS AND RULES OF CONSTRUCTION 3
1.1 Definitions 3
(a) “ADA” 3
(b) “Aldi” 3
(c) “Aldi Lease” 3
(d) “Affiliate” 3
(e) “Apartment Building” 3
(f) “Authorized Parties” 4
(g) “Benefited Owner” 4
(h) “Benefited Parcel” 4
(i) “Building Maintenance” 4
(j) “Burdened Owner” 4
(k) “Burdened Parcel” 4
(l) “Commercial Building” 4
(m) “Commercial Parcel” 4
(n) “Commercial Parking Easement Area” 4
(o) “Common Area” 4
(p) “Common Area Costs” 4
(q) “Common Area Costs Budget” 5
(r) “Common Area Maintenance” 5
(s) “Common Area Responsible Owner” 5
(t) “Common Parcel” 5
(u) “Common Support Facilities” 5
(v) “Critical Access Drives” 5
(w) “Declaration” 5
(x) “Defining Amendment” 5
(y) “Developer” 6
(z) “Development” 6
(aa) “Development Freestanding Sign” 6
(bb) “Future Parking Deck” 6
(cc) “Land Lease” 6
(dd) “Owner(s)” 6
(ee) “Parcel(s)” 6
(ff) “Parking Garage” 6
(gg) “Person” 6
(hh) “Property” 6
(ii) “Residential Parcel” 6
(jj) “Retail Grocery Store” 6
(kk) “Short-Term Parking Spaces” 6
(ll) “Site Improvements” 6
(mm) “Surface Parking Areas” 6
(nn) “Support Facilities” 7
(oo) “Taxes” 7
(pp) “Truck Dock Facility” 7
(qq) “Utility Service Lines and Equipment” 7
1.2 Rules of Construction 7
(a) Exhibits 7
(b) Recitals and Captions 7
(c) Severable Provisions 7
2. EASEMENTS 7
2.1 Easements for Vehicular Access 7
(a) Residential Parcel General Vehicular Access 7
(b) Commercial Parcel General Vehicular Access 8
(c) Critical Access Drives 8
(d) Limitations on Easements for Access 8
2.2 Easements for Vehicular Parking 8
(a) Non-Exclusive General Parking 8
(b) Exclusive Commercial Parking 8
(c) Short-Term Parking 9
(d) Designated ADA Parking 9
(e) Parking Garage 9
2.3 Easements for Pedestrian and Bicycle Access and Use 10
2.4 Easements for Utility Service Lines and Equipment 10
2.5 Easements for Development Freestanding Sign 11
2.6 Easements for Support Facilities 11
2.7 Easements for Apartment Building 11
2.8 Easements for Incidental Encroachments 11
2.9 Easements for Construction and Maintenance 12
2.10 Obligations of All Benefitted Owners 13
2.11 Documenting Easements 13
3. SIGNS 13
3.1 Restrictions on Signs 13
3.2 Directional, Way Finding and Parking Signs 13
3.3 Building Signs and Awnings 13
3.4 Development Freestanding Sign 14
3.5 Maintenance of Signs and Compliance with Laws 14
4. UTILITY SERVICES 14
4.1 Residential Parcel and Commercial Parcel Utility Services 14
4.2 Common Area 14
4.3 Trash and Recycling 14
5. RESTRICTIONS 15
5.1 MCIOA Restriction 15
5.2 Use Restrictions Applicable to the Property 15
(a) Retail Grocery Store Restriction 15
(b) General Use Restrictions 15
(c) No Sales within the Common Area 15
5.3 No-Build Area 15
5.4 Height and Roof Restrictions 16
5.5 Rules and Regulations 16
5.6 Compliance with Law and Nuisance 16
5.7 Hazardous Substances 16
5.8 Impairment of Structural Integrity of Building or Parking Garage 16
5.9 Enforcement of Restrictions, Rules and Regulations 17
6. MAINTENANCE, REPAIRS AND REPLACEMENT 17
6.1 Maintenance of Buildings, Support Facilities and Building Improvements 17
6.2 Maintenance of Common Area 17
6.3 Performance of Maintenance Obligations 18
6.4 Reporting Necessary Maintenance 18
6.5 Damage Resulting from Negligence or Intentional Misconduct 18
6.6 Excusable Delays 18
7. ALLOCATION OF COMMON AREA COSTS 18
7.1 Allocation of Common Area Costs to Parcel Owners 18
7.2 Common Area Costs Budget 19
7.3 Payment of Common Area Costs and Reconciliation 19
7.4 Records and Audit Rights 20
8. PROPERTY TAXES 20
8.1 Property Taxes 20
(a) Residential Parcel Taxes 20
(b) Commercial Parcel Taxes 20
(c) Common Parcel Taxes 20
8.2 Allocation of Taxes for the Common Parcel to Parcel Owners 21
9. INSURANCE 21
9.1 Property Insurance on the Building and Other Improvements 21
9.2 Claims and Allocation of Proceeds 21
9.3 Other Property Insurance 21
9.4 Liability Insurance 22
9.5 General Insurance Requirements 22
9.6 Self-Insurance 22
10. RELEASE AND INDEMNITY 22
10.1 Release of Claims to the Extent of Insurance 22
10.2 Indemnity by the Common Area Responsible Owner 22
10.3 Indemnity by Benefitted Owner 22
11. ALTERATIONS AND SUBDIVISION 23
11.1 Alterations 23
11.2 Approval Process for Certain Alterations 24
11.3 Indemnification for Alterations 24
11.4 Subdivision 24
12. AMENDMENTS TO DECLARATION AND TERMINATION OF ALDI RIGHTS 24
12.1 Amendment by Owners and Aldi 24
12.2 Recording of Amendment 25
12.3 Termination of Aldi Rights 25
13. ESTOPPEL CERTIFICATES 25
13.1 Estoppel Certificates 25
14. CASUALTY AND EMINENT DOMAIN 25
14.1 Casualty 25
14.2 Eminent Domain 26
15. DEFAULTS AND REMEDIES 26
15.1 Defaults 26
15.2 Remedies 27
15.3 Easements to Continue Notwithstanding Breach 27
15.4 Interest on Amounts Due 27
16. GENERAL PROVISIONS 27
16.1 Easements and Covenants Run with the Land 27
16.2 Notices and Payments 28
16.3 No Partnership 29
16.4 Approval Rights 29
16.5 Miscellaneous 29
16.6 No Merger 29
EXHIBITS
EXHIBIT A-1 Current Legal Description
EXHIBIT A-2 Previous Legal Description
EXHIBIT B Depiction and Description of Critical Access Drives
EXHIBIT C Depiction and Description of Commercial Parking Easement Area
EXHIBIT D Short-Term Parking Spaces
EXHIBIT E General Use Restrictions Within the Property
EXHIBIT F No-Build Area
EXHIBIT G Development Freestanding Sign
EXHIBIT H Aldi Construction Staging and Storage Area
[RESERVED FOR RECORDING DATA]
DECLARATION OF EASEMENTS, COVENANTS AND RESTRICTIONS FOR
VENUE
Chanhassen Frontier LLC, a Delaware limited liability company (“Developer”) makes this Declaration of Easements, Covenants and Restrictions for Venue (“Declaration”) as of ________,
2018.
RECITALS
Developer is the fee owner of three separately subdivided parcels of land located at 525 West 78th Street, Chanhassen, Minnesota, and to the south of West 78th Street and the north of
Market Street, in Carver County, that are currently legally described as set forth in Exhibit A-1, and were previously legally described as set forth in Exhibit A-2. These three parcels
are further described as follows.
The “Residential Parcel” contains land that is legally described as Tract A, Registered Land Survey No. _____, Carver County, Minnesota, and includes a multi-family residential apartment
building (“Apartment Building”) with a basement level parking garage containing approximately ____________ parking spaces (“Parking Garage”).
The “Commercial Parcel” contains land that is legally described as Tract B, Registered Land Survey No. _____, Carver County, Minnesota, that is being leased to Aldi Inc. (Minnesota),
a Minnesota corporation (“Aldi”) under a lease dated __________________, 2017 (“Aldi Lease”), and includes the commercial building (“Commercial Building”) being constructed by Aldi
and an adjacent truck dock facility (“Truck Dock Facility”) being constructed by Developer, all in accordance with the Aldi Lease. For all purposes under this Declaration, the term
“Aldi” shall include all successors and assigns of Aldi, as permitted under the Aldi Lease.
The “Common Parcel” contains land that is legally described as Tract C, Registered Land Survey No. _____, Carver County, Minnesota, and includes all surface parking spaces within the
Common Parcel (“Surface Parking Areas”), entrances, access drives, driveways, sidewalks, patios, freestanding sign, landscaped areas and other site improvements within the Common Parcel
(collectively, the “Site Improvements”). The Common Parcel has two different areas, the first one to the north of the Apartment Building and Commercial Building to West 78th Street
(“North
Common Parcel”), and a second one to the south of the Apartment Building and Commercial Building to Market Street (“South Common Parcel”).
The Residential Parcel, the Commercial Parcel and the Common Parcel, together with the Apartment Building, Parking Garage, Commercial Building, Truck Dock Facility, Surface Parking Areas
and Site Improvements make up a development commonly known as Venue (“Development”).
This Declaration sometimes refers to the Residential Parcel, the Commercial Parcel and the Common Parcel individually, as a “Parcel” or collectively, as the “Parcels” and sometimes refers
to the Residential Parcel, the Commercial Parcel and the Common Parcel collectively as the “Property.”
The Apartment Building wraps around the east and south sides of the Commercial Building. The Apartment Building and Commercial Building are separate buildings immediately adjacent to
each other that share load bearing walls on the east and south sides of the Commercial Building. As a result, the east and south walls of the Commercial Building are shared with the
Apartment Building, and the north and west walls of the Commercial Building are exclusively for the Commercial Building. The roof of the Commercial Building ties into the two shared
load bearing walls.
The Apartment Building will have approximately 130 market rate residential apartment units with an east wing connected to a south wing that are perpendicular to each other. The east
wing will have six (6) levels above ground containing apartments and apartment facilities and the south wing will have a combination of five (5) and six (6) levels above ground containing
apartments and apartment facilities.
The Commercial Building will contain initially approximately 19,054 square feet and is initially being constructed for the operation of a select assortment retail grocery store, including
the sale of alcoholic beverages for off-premises consumption to the extent permitted by law. The entrance to the Commercial Building is initially intended to be on the north side of
the Commercial Building and the Truck Dock Facility is initially intended to be located to the west of the Commercial Building.
The Parking Garage is located below both the Apartment Building and the Commercial Building and is for the exclusive use of the Apartment Building residents only. The ceiling of the
Parking Garage will serve as the structural foundation and floor for the Commercial Building and will determine the lower vertical boundary of the Commercial Parcel.
The Common Parcel is for the common use of the Apartment Parcel and the Commercial Parcel for parking, ingress and egress of vehicular and truck traffic and pedestrian use, except for
certain areas of the North Common Parcel, which are for the exclusive use of Aldi, and as otherwise specifically set forth to the contrary in this Declaration. The South Common Parcel
may include a possible future parking deck (“Future Parking Deck”) which may be constructed by the owner of the Common Parcel.
Developer’s subjection of the Property to the terms of this Declaration causes the Property to satisfy the statutory definition of a common interest community set forth in Minnesota
Statutes § 515B.1-103(10), but Minnesota Statutes Chapter 515B does not apply to the Property because Section 5.1 limits the use of the Property to non-residential uses alone or in combination
with residential rental uses in which individual dwellings do not constitute units, as defined in Minnesota Statutes § 515B.1-103(35) or other separate parcels of real estate.
Minnesota Statutes § 500.20, Subd. 2a and Minnesota Statutes § 541.023 do not apply to the easements, covenants and restrictions set forth in this Declaration by virtue of Minnesota
Statues § 500.20, Subd. 2a (5).
NOW, THEREFORE, Developer hereby declares as follows:
AGREEMENT
DEFINITIONS AND RULES OF CONSTRUCTION
Definitions. The capitalized terms used in this Declaration have the meanings set forth in this Section 1.1.
“ADA” means Americans with Disabilities Act.
“Aldi” has the meaning defined in the recitals.
“Aldi Lease” has the meaning defined in the recitals.
“Affiliate” of a Person is a Person who controls, is controlled by, or is under common control with that Person. A Person “controls” another Person if the Person: (i) is a general partner,
director, governor, officer, manager, or employer of the other Person; (ii) directly or indirectly or acting in concert with one or more other Persons, or through one or more subsidiaries,
owns, controls, holds the power to vote, or holds proxies representing, more than 20% of the ownership voting interest in the other Person; (iii) controls in any manner the election
of a majority of the directors of the Person; or (iv) has contributed more than 20% of the capital of the other Person. A Person is “controlled by” another Person if the other Person:
(i) is a general partner, director, governor, officer, manager or employer of the Person; (ii) directly or indirectly or acting in concert with one or more other Persons, or through
one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing, more than 20% of the ownership voting interest in the Person; (iii) controls in any
manner the election of a majority of the directors of the Person; or (iv) has contributed more than 20% of the capital of the Person. Control does not exist if the powers described
in this paragraph are held solely as a security interest and have not been exercised.
“Apartment Building” has the meaning defined in the recitals or any other building constructed within the Residential Parcel.
“Authorized Parties” means the tenants, occupants, customers, employees, agents, contractors, guests and invitees of an Owner, and the occupants, customers, employees, agents, contractors,
guests and invitees of a tenant of an Owner.
“Benefited Owner” means the Owner of a Benefited Parcel.
“Benefited Parcel” means a Parcel that an easement declared and imposed in Section 2 benefits.
“Building Maintenance” means the maintenance, repair and, as reasonably necessary, replacement of the Support Facilities (including the Support Facilities of both the Commercial Building
and the Parking Garage) and the portion of any Utility Service Lines and Equipment that serves more than one Parcel.
“Burdened Owner” means the Owner of a Burdened Parcel.
“Burdened Parcel” means a Parcel that an easement declared and imposed in Section 2 burdens.
“Commercial Building” has the meaning defined in the recitals or any other building constructed within the Commercial Parcel.
“Commercial Parcel” has the meaning defined in the recitals.
“Commercial Parking Easement Area” means all parking spaces located within the easement area depicted and described in the attached Exhibit C that is located within the North Common
Parcel, except for any designated ADA parking spaces located within this area.
“Common Area” means: (1) the Common Parcel and the improvements and fixtures located on the Common Parcel, including, but not limited to the Surface Parking Areas and Site Improvements;
and (2) Utility Service Lines and Equipment serving only the Common Parcel and that portion of the Utility Service Lines and Equipment serving more than one Owner or Authorized Parties,
wherever located.
“Common Area Costs” means expenditures the Common Area Responsible Owner makes and liabilities the Common Area Responsible Owner incurs: (1) for Common Area Maintenance; (2) for utilities
services for the Common Area including, without limitation, water and electricity used to operate and maintain the irrigation systems, storm water management systems and lighting systems
serving the Common Area; (3) to provide security services for the Common Area; (4) to remove snow from the Truck Dock Facility; (5) for Taxes due and payable with respect to the Common
Parcel as set forth in this Declaration; (6) to obtain and maintain commercial general liability insurance for the Common Area as set forth in this Declaration; and (7) to engage a
property manager to manage the performance of Common Area Maintenance. If the Common Area Responsible Owner engages one property manager to manage the Commercial Parcel and/or the
Residential Parcel in addition to managing the performance of Common Area Maintenance, the compensation paid to the property manager must be equitably allocated between the manager’s
duties with respect to the other Parcels and the manager’s duties with respect to Common Area Maintenance and only the compensation allocable to Common Area Maintenance duties may be
included in Common Area Costs.
“Common Area Costs Budget” has the meaning set forth in Section 7.2.
“Common Area Maintenance” means the installation, operation, maintenance, repair and, as reasonably necessary, replacement of the Common Area; the improvements and fixtures located
within the Common Area, including, but not limited to: (1) Surface Parking Areas; (2) Site Improvements; (3) site improvements with the Commercial Parking Easement Area (except for
any improvements required by Aldi, the Commercial Parcel Owner or their Authorized Parties that regulate these areas or are specific to their business (i.e. shopping cart improvements));
(4) Utility Service Lines and Equipment serving only the Common Area, wherever located; (5) that portion of the Utility Service Lines and Equipment serving more than one Owner or Authorized
Parties, wherever located; (6) patios and related improvements; (7) driveways, drive lanes and sidewalks; (8) lawns, landscaping and irrigation systems; (9) directional, way finding
and ADA parking signs; (10) freestanding sign described in Section 3.4 (but not the sign panels located on the freestanding sign); and (11) and other improvements or fixtures located
within the Common Area not specifically the responsibility of the Residential Parcel Owner or the Commercial Parcel Owner under this Declaration. Common Area Maintenance includes sweeping
and removing snow from the driveways, drive lanes, sidewalks, patios, walkways and parking spaces located within the Common Parcel.
“Common Area Responsible Owner” means the Owner of the Residential Parcel or such other Owner agreed upon by all Owners.
“Common Parcel” has the meaning defined in the recitals and includes the North Common Parcel and the South Common Parcel, all as defined in the recitals.
“Common Support Facilities” means the structural support components of the walls shared by the Apartment Building and the Commercial Building, which walls are the east and south walls
of the Commercial Building, and the ceiling slab and other components of the Parking Garage that provide the structural support and floor for the Commercial Building. Common Support
Facilities do not include any framing, sheet rock, wallboard, paint, wallpaper, carpet, finished floor, flooring or other decorative or non-structural improvements that are a part of
or attached to the Common Support Facilities. Improvements defined as Common Support Facilities are separate and distinct from improvements defined as Support Facilities.
“Critical Access Drives” mean the drive lanes located within the Common Parcel that are depicted and described in Exhibit B.
“Declaration” has the meaning defined in page one.
“Defining Amendment” has the meaning defined in Section 2.11.
“Developer” has the meaning defined in page one.
“Development” has the meaning defined in the recitals.
“Development Freestanding Sign” means the freestanding monument sign adjacent to West 78th Street and within the Common Parcel at the approximate location shown in Exhibit G. The Development
Freestanding Sign will identify the Development as “Venue” and will include a two sided sign panel for Aldi as depicted in Exhibit G.
“Future Parking Deck” has the meaning defined in the recitals.
“Land Lease” means a lease of an entire Parcel with an initial term of twenty (20) years or more. For clarity such term includes the Aldi Lease.
“Owner(s)” means the Person or Persons identified as the fee owner of a Parcel on the current Certificate of Title for the Parcel unless a contract for deed or a memorandum of or other
instrument (each a “Contract”) evidencing a Land Lease is memorialized on the Certificate of Title for the Parcel. In the event of such a Contract and for so long as said Contract remains
in full force and effect of record, then the “Owner” is deemed to be the vendee under said Contract, in lieu of said fee owner (except for purposes of amending or modifying this Declaration,
in which case both the fee owner and the vendee are deemed to be the “Owner”). In the event of a Land Lease and for so long as said Land Lease remains in full force and effect of record,
then “Owner” is deemed to be both the fee owner and the lessee (including any successors and assigns) under the Land Lease (unless this Declaration provides otherwise). The term “Owner”
does not include the holder of an interest in a Parcel as security for an obligation.
“Parcel(s)” has the meaning defined in the recitals.
“Parking Garage” has the meaning defined in the recitals.
“Person” means an individual, corporation, limited liability company, partnership, trustee under a trust, personal representative, guardian, conservator, government, governmental subdivision
or agency or other legal or commercial entity capable of holding title to real estate.
“Property” has the meaning defined in the recitals.
“Residential Parcel” has the meaning defined in the recitals.
“Retail Grocery Store” has the meaning defined in Section 5.2(a)
“Short-Term Parking Spaces” have the meaning defined in Section 2.2(c).
“Site Improvements” has the meaning defined in the recitals.
“Surface Parking Areas” has the meaning defined in the recitals.
“Support Facilities” means the structural support components of the Apartment Building, Commercial Building and Parking Garage, including, but not limited to, the footings, foundation,
exterior walls, interior walls and columns, roofs, floors and ceilings of the Apartment Building, Commercial Building or the Parking Garage, but
excluding Common Support Facilities. Improvements defined as Support Facilities are separate and distinct from improvements defined as Common Support Facilities.
“Taxes” means all ad valorum real estate taxes due and payable with respect to a Parcel; all installments of special assessments or other fees and charges due and payable with respect
to a Parcel and certified for payment with such ad valorum real estate taxes; and any other governmental taxes, fees, or charges levied against and constituting a lien up on Parcel
or otherwise due and payable with respect to the Parcel.
“Truck Dock Facility” has the meaning defined in the recitals.
“Utility Service Lines and Equipment” means any equipment, wires, conduit, pipes, vents or similar improvements or fixtures that are a part of or are associated with: fire suppression
systems; HVAC systems; systems that deliver domestic water, sanitary sewer, electricity, and natural gas; systems that transmit cable television signals and electronic data; and the
systems that drain storm water and snowmelt.
Rules of Construction.
Exhibits. The Exhibits attached to this Declaration are incorporated in and a part of this Declaration
Recitals and Captions. The Recitals set forth at the beginning of this Declaration are intended to be a part of this Declaration and are incorporated herein by this reference. Section
headings are included in this Declaration for reference purposes only and are not intended to expand or limit the meaning or effect of the Sections.
Severable Provisions. Each provision of this Declaration is intended to be severable. If any term or provision herein is illegal or invalid for any reason whatsoever, such illegality
or invalidity does not affect the validity of the remainder of this Declaration.
EASEMENTS
Easements for Vehicular Access.
Residential Parcel General Vehicular Access. Developer hereby declares and imposes a perpetual, non-exclusive, appurtenant easement within the Common Parcel in favor of the Residential
Parcel to permit the Residential Parcel Owner and its Authorized Parties to use the driveways and drive lanes that are located within the Common Parcel for vehicular ingress and egress
to and from West 78th Street and Market Street, subject to certain limitations that follow.
Commercial Parcel General Vehicular Access. Developer hereby declares and imposes a perpetual, non-exclusive, appurtenant easement within the Common Parcel in favor of the Commercial
Parcel to permit the Commercial Parcel Owner and its Authorized Parties to use the driveways and drive lanes that are located within the Common Parcel for vehicular ingress and egress
to and from West 78th Street and Market Street, subject to certain limitations that follow.
Critical Access Drives. Developer hereby declares and imposes a perpetual, non-exclusive, appurtenant easement within the Critical Access Drives in favor of all Owners and their Authorized
Parties to use the Critical Access Drives and the improvements located thereon for unrestricted vehicular and pedestrian ingress and egress, and maneuvering space for delivery trucks
and trailers (including, without limitation, WB 67 semi-tractor trailer trucks).
Limitations on Easements for Access. The easements for vehicular access are at all times subject to and limited by the following: (1) exclusive parking within the Commercial Parking
Easement Area declared and imposed in Section 2.2(b); and (2) non-exclusive short-term parking as set forth in Section 2.2(c); and (3) non-exclusive use of designated ADA parking spaces
within the Commercial Parking Easement Area as set forth in Section 2.2(d); and (4) construction staging and storage areas as set forth in Section 2.9 and Exhibit H; and (5) alterations,
additions, improvements or changes as set forth in Section 11.1; and (6) rules and regulations that may be established under Section 5.5.
Easements for Vehicular Parking.
Non-Exclusive General Parking. Developer hereby declares and imposes a perpetual, non-exclusive, appurtenant easement within the Common Parcel in favor of the Residential Parcel and
the Commercial Parcel to permit the Residential Parcel Owner, Commercial Parcel Owner and Common Parcel Owner and their Authorized Parties to use the then existing parking spaces located
in the Common Parcel, all on a first come, first served basis, and all as the same may from time to time exist, and subject to certain limitations that follow. The easements for non-exclusive
parking are at all times subject to and limited by the following: (1) exclusive parking within the Commercial Parking Easement Area declared and imposed in Section 2.2(b); and (2)
exclusive parking within the Parking Garage as set forth in Section 2.2(e); and (3) non-exclusive short-term parking as set forth in Section 2.2(c); and (4) non-exclusive use of designated
ADA parking spaces as set forth in Section 2.2(d); and (5) construction staging and storage areas as set forth in Section 2.9 and Exhibit H; and (6) alterations, additions, improvements
or changes as set forth in Section 11.1; and (7) the rules and regulations that may be established under Section 5.5.
Exclusive Commercial Parking. Developer hereby declares and imposes a perpetual, exclusive, appurtenant easement within the Commercial Parking Easement Area in favor of the Commercial
Parcel to permit the Commercial Parcel Owner, Aldi and their Authorized Parties to exclusively use the parking spaces located within the Commercial Parking Easement Area, subject to
certain limitations that follow. The Commercial Parking Easement Area is located within the North Common Parcel. Aldi, the Commercial Parcel Owner or their Authorized Parties may,
in their discretion and at its cost, control, monitor and enforce its exclusive rights in the Commercial Parking Easement Area in a manner that complies with Minnesota law and the ordinances
of the City of Chanhassen. The Residential Parcel Owner, Common Parcel Owner and the Common Area Responsible Owner shall not have any obligation to control, monitor and enforce the
exclusive rights in the Commercial Parking Easement Area. The easement for exclusive commercial parking within the Commercial Parking Easement Area is at all times subject to and limited
by the
following: (1) easement rights to use the driveways, drive lanes and Critical Access Drives that are located within the Common Parcel declared and imposed in Sections 2.1 and 2.2; and
(2) non-exclusive use of designated ADA parking spaces within the Commercial Parking Easement Area as set forth in Section 2.2(d); and (3) construction staging and storage areas as
set forth in Section 2.9 and Exhibit H; and (4) alterations, additions, improvements or changes as set forth in Section 11.1; and (5) rules and regulations that may be established
under Section 5.5.
Short-Term Parking. The Residential Parcel Owner may designate the five (5) surface parking spaces depicted in Exhibit D as non-exclusive short-term (up to 30 minutes) parking for use
by the Owners and their Authorized Parties (“Short-Term Parking Spaces”). The Short-Term Parking Spaces are located within the North Common Parcel but outside of the Commercial Parking
Easement Area. The Residential Parcel Owner may, at Residential Parcel Owner’s sole cost, cause the Common Area Responsible Owner to install signs designating the Short-Term Parking
Spaces. The Residential Parcel Owner and the Common Area Responsible Owner may, in their discretion and as a Common Area Costs, control, monitor and enforce the short-term parking
within the Short-Term Parking Spaces in a manner that complies with Minnesota law and the ordinances of the City of Chanhassen. The Commercial Parcel Owner shall not have any obligation
to control, monitor and enforce the short-term parking within the Short-Term Parking Spaces.
Designated ADA Parking. Designated ADA parking spaces, wherever located in the Common Parcel (including within the Commercial Parking Easement Area), are for the non-exclusive use by
the Owners and their Authorized Parties for ADA parking purposes. The Common Area Responsible Owner will, as a Common Area Costs, install and maintain signs designating ADA parking
spaces as required by law. Upon the agreement of the Commercial Parcel Owner and Residential Parcel Owner, the Common Area Responsible Owner will, as Common Area Costs, relocate or
designate ADA parking spaces within the Surface Parking Areas to the extent allowed by law.
Parking Garage. Notwithstanding anything to the contrary in this Declaration, the parking spaces in the Parking Garage are for the exclusive use of the Apartment Building Owner and
its Authorized Parties. The structure of the Parking Garage will serve as the structural foundation and floor for the Commercial Building and will determine the lower vertical boundary
of the Commercial Building.
Easements for Pedestrian and Bicycle Access and Use. Developer hereby declares and imposes perpetual, non-exclusive, appurtenant easements within the portions of the Common Parcel that
are improved as sidewalks, walkways, non-exclusive patios, steps, driveways, drive lanes, parking areas and landscaped areas for the benefit of each Parcel to permit Owners and their
Authorized Parties to use these portions of the Common Parcel for pedestrian and bicycle access and use, including, but not limited to, the right to store shopping carts on the sidewalk
to the north of the Commercial Building and within the Commercial Parking Easement Area.
Easements for Utility Service Lines and Equipment. Developer hereby declares and imposes perpetual, non-exclusive, appurtenant easements for the benefit of each Parcel to
permit Owners and their Authorized Parties to install, run, lay, use, monitor, meter, inspect, maintain, repair, and replace Utility Service Lines and Equipment serving a Parcel and
the improvements located thereon within the following easement areas: (a) underground within the Common Parcel; and (b) within the Parking Garage; subject to certain limitations that
follow. This easement includes the right to enter onto a Burdened Parcel for the purpose of access to the easement areas and exercising easement rights.
The easements for Utility Service Lines and Equipment are at all times subject to and limited by the following: (1) Owners and their Authorized Parties must exercise these easement
rights in a manner that minimizes, to the extent reasonably possible, any adverse impacts on the use of the Burdened Parcel including, without limitation, the use of the such easement
areas by the Owner of the Burdened Parcel for its own Utility Service Lines and Equipment; (2) Owners and their Authorized Parties may only exercise these easement rights at reasonable
times and after reasonable prior notice to the Owner of the Burdened Parcel (except in the event of an emergency, in which event notice is sufficient if it is given to the occupant
and, if applicable, the Owner of the Burdened Parcel, as promptly as reasonably possible); (3) Owners and their Authorized Parties exercising these easement rights will, at their cost,
complete construction and installation of the Utility Service Lines and Equipment as quickly as possible, promptly clean the surface area and restore the affected portion of the Burdened
Parcel to a condition equal to or better than the condition which existed prior to the commencement of the work, including, but not limited, proper surface and/or subsurface restoration;
(4) Owners and their Authorized Parties exercising these easement rights will obtain, at their cost, all permits and approvals for the construction and installation of the Utility Service
Lines and Equipment from utility service providers and governmental authority; and (5) the Owner of the Burdened Parcel may elect to require its representative accompany the Owners
and their Authorized Parties exercising these rights when accessing the Burdened Parcel.
Each Owner or its Authorized Parties will have the right at any time to relocate any Utility Service Lines and Equipment located within it Parcel upon 30 days prior written notice to
the Owner and its Authorized Party using the Utility Service Lines and Equipment being relocated; provided, however, that such relocation, (i) does not materially interfere with, diminish
or unreasonably impair the usefulness or function of the utility services being provided by the Utility Service Lines and Equipment being relocated; (ii) will be performed at the cost
of the Owner or its Authorized Parties relocating the Utility Service Lines and Equipment; (iii) is completed using materials and design standards which equal or exceed those originally
used; (iv) is approved by the provider of such service and the appropriate governmental or quasi-governmental agencies having jurisdiction.
Easements for Development Freestanding Sign. Developer hereby declares and imposes a perpetual, non-exclusive, appurtenant easement within the Common Parcel in favor of the Commercial
Parcel and Residential Parcel to permit the Commercial Parcel Owner, Residential Parcel and their Authorized Parties to use, operate, access, construct, install, maintain, repair, replace
and remove: (a) the Development Freestanding Sign; (b) the sign panels located on the Development Freestanding Sign; (c) the Utility Service Lines and Equipment serving the Development
Freestanding Sign; and (d) any landscaping or illumination or other surface improvements for the Development Freestanding Sign; all as set forth in Section 3.4. This
easement for the Development Freestanding Sign includes the right to reasonable access to the Development Freestanding Sign.
Easements for Support Facilities. Developer hereby declares and imposes non-exclusive, appurtenant easements within each Parcel for the benefit of each other Parcel for structural support
of the Apartment Building, Commercial Building and Parking Garage, which includes easements for the Support Facilities and Common Support Facilities, and includes the right of an Owner
to have in place, to access and to maintain in sound condition and repair its Support Facilities and the Common Support Facilities as set forth in this Declaration. No Owner may, without
the written approval of the other Owners, alter its Parcel or impose any weight on the Apartment Building, Commercial Building or the Parking Garage that would require enlarging, modifying,
strengthening or augmenting in any way the Support Facilities or the Common Support Facilities.
Easements for Apartment Building. Because the third story and above of a portion of Apartment Building extends into the air space of the Commercial Parcel constructed as approved by
all Owners and Aldi, the Developer hereby declares and imposes non-exclusive, appurtenant easements within the Commercial Parcel for the benefit of the Apartment Parcel for such portions
of the Apartment Building that extend into the air space of the Commercial Parcel, and includes the right of the Apartment Parcel Owner to have in place, to access and to maintain in
sound condition and repair such portions of the Apartment Building.
Easements for Incidental Encroachments. Developer hereby declares and imposes non-exclusive, appurtenant easements within each Parcel for the benefit of each other Parcel for any incidental
encroachment of improvements that are intended to be located on one Parcel but encroach onto another Parcel because of: (a) the construction or reconstruction of a portion of the Apartment
Building, Parking Garage or the Commercial Building outside the boundaries of the applicable Residential Parcel and the Commercial Parcel, including but not limited to Support Facilities
and Common Support Facilities; (b) the construction or reconstruction of Surface Parking Areas and Site Improvements outside the boundaries of the Common Parcel; or (c) the settlement
or shifting of the Apartment Building, Parking Garage, Commercial Building, Support Facilities, Common Support Facilities, Surface Parking Areas and Site Improvements. The easement
automatically terminates if the encroaching improvement is torn down or otherwise removed. Notwithstanding the forgoing, no easement exists for an encroachment if such encroachment
occurred due to the willful misconduct of any Owner or its Authorized Parties.
Easements for Construction and Maintenance. Developer hereby declares and imposes a non-exclusive easement in gross within the Property for the benefit of each Owner and its Authorized
Parties to permit the initial construction of the Apartment Building, Parking Garage, Commercial Building, Support Facilities, Common Support Facilities, Surface Parking Areas and Site
Improvements in the event the Developer ceases to hold title to all of the Parcels before the Developer completes such construction. This easement for initial construction automatically
terminates upon the completion of the initial improvements.
In addition, after completion of the initial improvements, the Developer hereby declares and imposes a perpetual, non-exclusive, appurtenant temporary construction easement within the
Property to permit each Owner and its Authorized Parties to reasonable ingress, egress and access over and within another Owner’s Parcel as will be reasonably necessary for the construction,
maintenance, repair and replacement of improvements within the Property, including, but not limited to, the following: (a) the Residential Parcel Owner and its Authorized Parties to
perform construction, maintenance, repair and replacement of the Apartment Building, Parking Garage, their Support Facilities, Common Support Facilities, and other improvements within
the Residential Parcel; (b) the Commercial Parcel Owner and its Authorized Parties to perform construction, maintenance, repair and replacement of the Commercial Building, its Support
Facilities, and other improvements within the Commercial Parcel; (c) the Residential Parcel Owner, Commercial Parcel Owner and their Authorized Parties to perform construction, maintenance,
repair and replacement of the Utility Service Lines and Equipment exclusively serving such Owner’s Parcel, wherever located; and (d) the Common Area Responsible Owner and its Authorized
Parties to perform Common Area Maintenance. In exercising their respective rights under the easements described in this Section, an Owner must use commercially reasonable efforts to
minimize the disruption to other Owners and their Authorized Parties. If an Owner reasonably anticipates that its exercise of its easement rights under this Section may be disruptive
to other Owners or their Authorized Parties, the Owner must use commercially reasonable efforts to give the other Owners reasonable advance notice of the nature and duration of the
anticipated disruption. The temporary construction easement will be in effect only during periods when actual construction is being performed, and the use of such easement will not
allow the easement holder to unreasonably interfere with the use and operation of the other Owner’s Parcel.
Each Owner is responsible, at its cost, for the restoration of improvements within another Owner’s Parcel that are damaged or affected as a result of the Owner’s construction activities
to a condition equal to or better than the condition which existed prior to the commencement of the construction, including, but not limited, cleaning the affected area, proper surface
and/or subsurface restoration and the repair or replacement of asphalt surfaces, landscaping and other improvements. Whether or not for initial construction, future remodel or other
construction, maintenance, repair and replacement of improvements, the construction easements set forth in this Section include the temporary staging and storage of materials for construction
within the Common Parcel at a reasonable location agreed upon by all Owners. The construction staging and storage area set forth in Exhibit H for all construction by Aldi is hereby
agreed upon by the Owners. Construction staging and storage area anywhere within the South Common Parcel (except not the Critical Access Drives) for all construction other than by
Aldi is hereby agreed upon by the Owners.
Obligations of All Benefitted Owners. In exercising their respective rights under the easements declared and imposed in this Section 2, Benefitted Owners and, where applicable, their
Authorized Parties must use reasonable care to avoid damaging the Burdened Parcel; must promptly notify the Burdened Owner of any damage they cause to a Burdened Parcel and must, at
its cost (except to the extent of any insurance proceeds available under the policies of insurance described in Section 9), promptly repair any damage they cause to a Burdened Parcel.
Benefitted Owners must defend and indemnify Burdened Owners to the extent provided in Section 10.
Documenting Easements. If the boundaries of an easement declared and imposed in this Section 2 are not specifically defined in this Declaration but are capable of being specifically
defined, or are erroneously defined in this Declaration, an Owner may prepare an amendment to this Declaration that correctly describes the boundaries of the easement (“Defining
Amendment”) and such Defining Amendment shall be subject to the written consent of all other Owners within thirty (30) days after receipt of a copy of the Defining Amendment and reasonable
evidence, such as a registered surveyor’s certification, that the descriptions in the Defining Amendment are accurate. Within this thirty (30) day period, an Owner shall either (a)
consent to and, if requested, execute and acknowledge the Defining Amendment and deliver it to the Owner who prepared the Defining Amendment; or (b) notify the Owner who prepared the
Defining Amendment in writing of its objection to the Defining Amendment as not conforming to the provisions of this Declaration and setting forth the ways in which such Defining Amendment
is so non conforming. The Owner who prepared the Defining Amendment must pay the cost of preparing and filing or recording the Defining Amendment, but each other Owner is responsible
for its own legal and other consultants’ costs, if any, in assuring itself that the descriptions are accurate, complete, conform to and are consistent with the provisions of this Declaration.
Failure of any Owner to respond to a request, as set forth herein, is a default hereunder.
SIGNS
Restrictions on Signs. Owners may only install signs on the exterior of the Apartment Building, Commercial Building or Parking Garage, or within any portion of the Common Parcel, to
the extent permitted under this Declaration.
Directional, Way Finding and Parking Signs. The Residential Parcel Owner or the Commercial Parcel Owner may, at its cost, on the exterior of the building within their respective Parcel,
and the Common Area Responsible Owner may, as a Common Area Costs, within the Common Parcel, and Aldi may, at its cost, within the Commercial Parking Easement Area, install, modify,
use, maintain, repair and replace reasonable directional, way finding and parking signs, provided that no directional, way finding or parking sign may exceed 4 square feet in area.
Building Signs and Awnings. The Residential Parcel Owner and the Commercial Parcel Owner and their Authorized Parties may install, modify, maintain, repair and replace awnings, canopies
and signs on the exterior of their respective buildings; provided the signs comply with all applicable laws, rules and ordinances of all governmental authorities with jurisdiction over
the Property. Building signs on the exterior of the Commercial Building must be approved in writing by the Residential Parcel Owner, except that Aldi buildings signs do not need to
be approved as follows. Notwithstanding the above, Aldi, at its cost, will have the right, without the approval of the Residential Parcel Owner, to do the following: (a) affix to
the exterior of the Commercial Building, Aldi’s prototypical building signage consisting of its corporate logo; (b) change or replace this Aldi building signage from time to time so
that the same shall remain consistent with Aldi’s then-current prototype; and (c) to install on the storefront of the Commercial Building professionally prepared temporary banners announcing
the “Grand Opening”, “Now Hiring” and/or “Coming Soon” of Aldi’s business in the Premises.
Development Freestanding Sign. Developer, at its cost, is constructing the Development Freestanding Sign. Section 2.5 establishes an easement in favor of the Commercial Parcel and
Residential Parcel to permit the Commercial Parcel Owner, Residential Parcel Owner and their Authorized Parties to access and use the Development Freestanding Sign and the sign panels
located on the freestanding sign. The Common Area Responsible Owner is, as Common
Area Costs, responsible for maintaining the Development Freestanding Sign (but not any sign panels). The Commercial Parcel Owner, Aldi and their Authorized Parties have the right to
use the two sided sign panel of the Development Freestanding Sign, and are responsible for the costs to maintain its sign panels. Rights to use the sign panels located on the Development
Freestanding Sign only inure to the benefit of those parties that lease space at or occupy the Development. The Common Area Responsible Owner may modify and change the size, number
and design of the freestanding sign and its sign panels upon the written approval of all Owners and Aldi.
Maintenance of Signs and Compliance with Laws. All signs permitted under this Section 3 must be kept in good order and repair and must comply with all applicable laws, rules and ordinances
of all governmental authorities with jurisdiction over the Property.
UTILITY SERVICES
Residential Parcel and Commercial Parcel Utility Services. All utilities serving the Residential Parcel and the Commercial Parcel including, but not limited to, domestic water, electricity,
natural gas, telephone service, and cable television or other data service will be separately metered. Each Owner is responsible for the paying or causing its Authorized Parties to
pay for all utility services used on its Parcel.
Common Area. All utilities serving the Common Area will be separately metered, will be billed to the Common Area Responsible Owner and will be included in Common Area Costs.
Trash and Recycling. The Owners of the Residential Parcel and the Commercial Parcel will separately contract and pay for trash hauling services serving their respective Parcels. The
Owners of the Residential Parcel and the Commercial Parcel will abide by: (a) the provision of this Declaration for trash and recycling storage and removal; and (b) any rules and regulations
for trash and recycling storage and removal established by the Common Area Responsible Owner in accordance with this Declaration.
RESTRICTIONS
MCIOA Restriction. The Property may only be used for non-residential uses alone or non-residential uses in combination with residential rental uses in which individual dwellings do
not constitute “units,” as defined in Minnesota Statutes § 515B.1-103(35) or constitute other separate parcels of real estate.
Use Restrictions Applicable to the Property. Except for the specific restrictions stated in this Declaration, the Property may be used for any purpose that is allowed under the applicable
zoning code and is consistent with the intent that the Development be as a multi-use residential rental and commercial development. Notwithstanding the foregoing, however, Developer
declares, for the benefit of each of the Parcels, the following:
Retail Grocery Store Restriction. No portion of the Residential Parcel or the Common Parcel will be leased, used or occupied for the operation of a Retail Grocery Store without the
written approval of the Commercial Parcel Owner and Aldi. The term “Retail Grocery Store” means a supermarket, meat market, grocery store, fruit and
vegetable store or stand, frozen or otherwise processed food store and any other store where more than 50 grocery items are sold for off-premises consumption. The term “Retail Grocery
Store” shall not include a delicatessen, or any restaurant wherein prepared food is sold for on-premises consumption, delivery or for “take-out” consumption. Once the Aldi Lease expires
or is properly terminated, the written approval of Aldi shall no longer be needed to lease, use or occupy the Property as a Retail Grocery Store, but such use restriction shall remain
in force and effect, and the written approval of the Commercial Parcel Owner shall continue to be needed to lease, use or occupy the Property as a Retail Grocery Store.
General Use Restrictions. No portion of the Property will be used for any of the purposes set forth in the attached Exhibit E without the written approval of all Owners and Aldi. Once
the Aldi Lease expires or is properly terminated, the approval of Aldi shall no longer be needed to use the Property for any of the uses described in the attached Exhibit E, but such
use restrictions shall remain in force and effect, and the written approval of all Owners shall continue to be needed to use the Property for any of the uses described on the attached
Exhibit E.
(c) No Sales within the Common Area. No products, merchandise or vending machines will be displayed for sale or stored within the sidewalks and other Common Area of the North Common
Parcel without the written approval of all Owners and Aldi, except as allowed under this Declaration.
No-Build Area. No building, structure or other vertical improvements will be constructed or installed within that portion of the North Common Parcel described and depicted in Exhibit
F (“No-Build Area”) without the written approval of Aldi and all Owners; provided that no approval is needed from Aldi or any Owners to construct or install within the No-Build Area
surface parking, access drives, curbing, light poles, freestanding signs, utility equipment or landscaping.
Height and Roof Restrictions. No building within the Commercial Parcel will exceed (a) one story, or (b) 35 feet in height, inclusive of any parapet, architectural embellishments or
rooftop equipment, unless the written approval of the Residential Parcel Owner is obtained. The Commercial Parcel Owner or its Authorized Parties will locate the rooftop equipment
of the Commercial Building at least fifteen (15) feet from its exterior walls. All rooftop equipment on Commercial Building will be reasonably screened if visible from street level
by and at the cost of the Commercial Parcel Owner or its Authorized Parties. If the Residential Parcel Owner requests different or additional screening be installed, the Commercial
Parcel Owner or its Authorized Parties will do so at the cost of the Residential Parcel Owner, and at no cost to Aldi. The roof of the building within the Commercial Parcel needs
to be a gravel ballasted roof system or other system approved by the Residential Parcel Owner and not a white roof. The roof of the building within the Commercial Parcel needs to be
kept clean of debris and no items will be stored on the roof (other than rooftop equipment) by and at the cost of the Commercial Parcel Owner or its Authorized Parties.
Rules and Regulations. The Common Area Responsible Owner may, from time to time, establish reasonable rules and regulations applicable to the Common Area, subject to
prior approval from all Owners and Aldi. All Owners and their Authorized Parties must abide by all rules and regulations established in accordance with this Section. All rules and
regulations must be uniformly enforced and must not unreasonably discriminate and/or differentiate between the Commercial Parcel Owner and its Authorized Parties and the Residential
Parcel Owner and its Authorized Parties. No rules and regulations may be directly contrary to the terms of this Declaration and may not materially deny the practical use and enjoyment
of any easements granted under this Declaration unless agreed upon in writing by all Owners and Aldi.
Compliance with Law and Nuisance. The Property will not be used in a manner that violates federal or state law or municipal ordinances or that constitutes a public or private nuisance.
Hazardous Substances. No one will use any portion of the Property for the generation, storage, treatment, transportation or disposal of any Hazardous Substance except that reasonable
quantities of Hazardous Substances that are reasonably associated with uses of the Property that are permitted under applicable zoning codes and this Declaration may be used and stored
on the Property in connection with such uses so long as the same are used and stored in compliance with all applicable federal or state laws, rule, regulations and municipal ordinances.
Impairment of Structural Integrity of Building or Parking Garage. Nothing may be done, placed, installed, or erected in any Parcel which would impair the structural integrity of the
Apartment Building, Commercial Building, Parking Garage or their Support Facilities, or any Common Support Facilities, or which would structurally change or cause excessive loading
to the same, except as is otherwise provided herein. It is agreed that the Commercial Building constructed by Aldi in accordance with the plans approved by the Commercial Parcel Owner
is acceptable and may be constructed.
Enforcement of Restrictions, Rules and Regulations. The Common Area Responsible Owner may, in its discretion and at its option, enforce any of the provisions restricting the Property
set forth in this Declaration, and any rules and regulations established by the Common Area Responsible Owner. Unless specifically the right or obligation of another Owner under this
Declaration or Aldi, the Common Area Responsible Owner will have the opportunity to first enforce any restrictions, rules and regulations. If the Common Area Responsible Owner does
not enforce, or does not enforce to a level satisfactory to another Owner, then other Owners or Aldi may enforce the restrictions, rules and regulations. The costs of any enforcement
by an Owner in its capacity as the Common Area Responsible Owner will be Common Area Costs. The costs of any enforcement by any other Owner or Aldi not in such capacity will be at
the sole cost of the Person enforcing the restrictions, rules and regulations. Nothing in this Declaration requires any enforcement of restrictions, rules and regulations.
MAINTENANCE, REPAIRS AND REPLACEMENT
Maintenance of Buildings, Support Facilities and Building Improvements. Except for the maintenance of the Common Area as set forth in Section 6.2 and as otherwise set forth in this
Declaration to the contrary, an Owner is responsible for the following maintenance, repair, and replacement obligations: (a) The Residential Parcel Owner is responsible, at its cost,
for the maintenance, repair, and replacement of the Apartment Building and Parking Garage,
including their Support Facilities, building signs, sign improvements, mechanical systems, fixtures and other building improvements, located within the Residential Parcel; (b) The Residential
Parcel Owner is responsible, at its cost, for the maintenance, repair, and replacement of the Common Support Facilities, whether located within the Residential Parcel or outside the
boundaries of the Residential Parcel; (c) The Commercial Parcel Owner is responsible, at its cost, for the maintenance, repair, and replacement of the Commercial Building, including
its Support Facilities, building signs, sign improvements, mechanical systems, fixtures and other building improvements, located within the Commercial Parcel; (d) The Commercial Parcel
Owner is responsible, at its cost, for the maintenance, repair, and replacement of the Truck Dock Facility (except for snow removal) located within the Commercial Parcel; (e) The Common
Area Responsible Owner is responsible, as a Common Area Costs, for the snow removal from the Truck Dock Facility; (f) Each Owner is responsible, at its cost, for the maintenance, repair,
and replacement of any Utility Service Lines and Equipment serving only such Owner’s Parcel, whether located within the Owner’s Parcel or outside the boundaries of the Owner’s Parcel,
and the restoration of improvements within another Owner’s Parcel related thereto as set forth in Section 2.4; (g) Each Owner is responsible, at its cost, for the restoration of improvements
within another Owner’s Parcel that are damaged or affected as a result of the Owner’s construction activities as set forth in Section 2.9; and (h) Each Owner is responsible, at its
cost, for its signs panels on any freestanding signs it is authorized to use under this Declaration. An Owner must perform the maintenance, repair, and replacement obligations under
this Section as reasonably necessary to keep the improvements in a first class condition and state of repair that is consistent with other competing developments in the Minneapolis/St.
Paul metropolitan area.
Maintenance of Common Area. From and after the substantial completion of the Common Area, the Common Area Responsible Owner, as Common Area Costs, must perform Common Area Maintenance
as reasonably necessary to maintain the Common Area and the improvements and fixtures located on the Common Area in a first class condition and state of repair that is consistent with
other competing developments in the Minneapolis/St. Paul metropolitan area. The obligations of the Common Area Responsible Owner to maintain the Common Area are subject to the following
obligations of another Owner for: (a) the restoration of improvements within the Common Area related to the maintenance, repair, and replacement of any Utility Service Lines and Equipment
as set forth in Section ____; (b) the restoration of improvements within the Common Area that are damaged or affected as a result of the Owner’s construction activities as set forth
in Section ____; (c) its negligence or intentional misconduct as set forth in Section 6.5.
Performance of Maintenance Obligations. In performing their obligations under this Section 6, whether as the Common Area Responsible Owner or other Owner, Owners must use all commercially
reasonable efforts to minimize the disruptions to other Owners and their Authorized Parties and the impairment of easement rights declared in this Declaration.
Reporting Necessary Maintenance. Each Owner must promptly report to the Common Area Responsible Owner or to another Owner, as applicable, any defect in or need for repairs to the Common
Area or to the Common Support Facilities.
Damage Resulting from Negligence or Intentional Misconduct. Subject to Section 10.1, if the Common Area or any building improvements are damaged as the result of the
negligence or intentional misconduct of an Owner or its Authorized Parties, the Owner must pay the cost of repairing the damage to extent proceeds from the insurance described in Section
9.1 are not available to pay for the repair of the damage.
Excusable Delays. If an Owner’s performance of one or more of its obligations under this Section 6 is 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 other causes beyond
the reasonable control of the Owner from whom performance is required, then the time for performance as herein specified will be appropriately extended by the length of the delay actually
so caused but this provision does excuse any Owner from the prompt payment of any monies required under this Declaration.
ALLOCATION OF COMMON AREA COSTS
Allocation of Common Area Costs to Parcel Owners. For Common Area Costs that can be passed through to Aldi under the Aldi Lease, Aldi and the Commercial Parcel Owner are liable for forty-five
percent (45.0%) of these Common Area Costs, and the Residential Parcel Owner is liable for fifty five percent (55.0%) of these Common Area Costs. So long as the Aldi Lease is in force
and effect and has not expired or been properly terminated, any Common Area Costs that cannot be passed through to Aldi under the Aldi Lease will be the sole responsibility of the
Residential Parcel Owner. Once the Aldi Lease has expired or is properly terminated, the Commercial Parcel Owner is liable for forty-five percent (45.0%) of the Common Area Costs incurred
thereafter, and the Residential Parcel Owner is liable for fifty five percent (55.0%) of the Common Area Costs incurred thereafter. Taxes, which are included in the definition of Common
Area Costs, are allocated as set forth in Section 8.2 and not as set forth above.
Common Area Costs Budget. At least thirty (30) days before substantial completion of the earlier of the Apartment Building or the Commercial Building, the Common Area Responsible Owner
must prepare and submit to any Owner who is not the Common Area Responsible Owner a budget of the estimated Common Area Costs to be incurred for the remainder of the calendar year in
which the first building is substantially completed and thereafter, at least ninety (90) days prior to the beginning of each calendar year, the Common Area Responsible Owner must prepare
and submit to any Owner who is not the Common Area Responsible Owner a budget of the estimated Common Area Costs to be incurred for the upcoming calendar year (each a “Common Area Costs
Budget”). The Common Area Responsible Owner must use commercially reasonable efforts, where practical, to obtain multiple bids (ideally three) from reputable vendors for the Common
Area Maintenance to ensure the Common Area Costs are incurred at market rates in arms-length transactions most beneficial to the Owners. In the event any Common Area Costs incurred
by the Common Area Responsible Owner relate to maintenance or work performed by an Affiliate of said Common Area Responsible Owner, then any such Common Area Costs in excess of what
would be chargeable in an arms-length transaction may not be included within said Common Area Costs. The Common Area Costs Budget will be deemed approved unless an Owner who is not
the Common Area Responsible Owner makes specific written objection to any portion thereof within fifteen (15) days after receipt thereof. If an Owner who is not the Common Area Responsible
Owner makes a specific objection to any portion of the Common Area Costs Budget, the Common Area Responsible
Owner agrees to negotiate in good faith with such Owner regarding any requested changes to the Common Area Costs Budget. The Common Area Responsible Owner must use diligent and good
faith efforts to maintain the Common Area in accordance with the Common Area Costs Budget.
Payment of Common Area Costs and Reconciliation. Commencing in the year that either the Apartment Building or the Commercial Building is substantially completed and continuing thereafter,
the Common Area Responsible Owner will bill the Residential Parcel Owner and the Commercial Parcel Owner for their respective monthly shares of the estimated Common Area Costs set forth
in the Common Area Costs Budget on or before the first day of each month (or, at the option of the Common Area Responsible Owner, each quarter) of the applicable calendar year. The
Residential Parcel Owner and the Commercial Parcel Owner must pay the amount set forth in those monthly (or quarterly) invoices to the Common Area Responsible Owner within thirty (30)
days after receipt thereof. Within ninety (90) days after each calendar year, the Common Area Responsible Owner must provide the Residential Parcel Owner and the Commercial Parcel
Owner with a reconciliation statement of actual Common Area Costs incurred in such calendar year, together with reasonably acceptable evidence (i.e., invoices, bills or statements)
of the actual costs incurred for Common Area Costs. If the amount paid by an Owner with respect to its Parcel in the prior calendar year exceeds that Owner’s share of the actual Common
Area Costs for that calendar year, the Common Area Responsible Owner must refund or credit the difference to the Owner. If the amount paid by an Owner with respect to its Parcel in
the prior calendar year is less than the Owner’s shares of the actual Common Area Costs for that calendar year, the Owner must pay the balance owing to the Common Area Responsible Owner
within sixty (60) days after the receipt of the annual statement.
Records and Audit Rights. The Common Area Responsible Owner must keep accurate and complete books and records of Common Area Costs and must maintain all books and records for at least
two years. Books and records may be kept in an electronic format. Within one (1) year after receipt of any reconciliation or year-end statement for Common Area Costs provided by the
Common Area Responsible Owner, any Owner who is not the Common Area Responsible Owner may inspect, request from the Common Area Responsible Owner copies of, or audit the books and records
pertaining to the Common Area Costs for the calendar year covered by such annual statement. The auditing Owner must provide written notification to the Common Area Responsible Owner
of its intent to audit at least fifteen (15) days prior to the date that it desires to conduct such inspection, obtain such copies or audit. If such audit discloses any error in the
determination of Common Area Costs, the Common Area Responsible Owner must make an appropriate adjustment. The reasonable cost of any copies and of any audit must be paid by the auditing
Owner unless the auditing Owner is entitled to a refund in an amount that is more than three (3%) of the amount originally calculated as the auditing Owner’s share for the applicable
calendar year, in which case Common Area Responsible Owner must pay the cost of such copies and such audit and the amount the Common Area Responsible Owner pays may not be treated as
a Common Area Costs.
PROPERTY TAXES
Property Taxes. The Owners are responsible for Taxes as follows:
Residential Parcel Taxes. The Residential Parcel Owner is responsible for the payment of all Taxes for the Residential Parcel and will pay to the proper governmental authority all Taxes
due and payable with respect to the Residential Parcel on or before the date due.
Commercial Parcel Taxes. The Commercial Parcel Owner is responsible for the payment of all Taxes for the Commercial Parcel and will pay to the proper governmental authority all Taxes
due and payable with respect to the Commercial Parcel on or before the date due.
Common Parcel Taxes. The Residential Parcel Owner and the Commercial Parcel Owner are responsible for the payment of all Taxes for the Common Parcel. The Taxes for the Common Parcel
will be allocated between the Residential Parcel Owner and the Commercial Parcel Owner pursuant to Section 8.2. The Residential Parcel Owner and the Commercial Parcel Owner will pay
their allocated share of the Taxes for the Common Parcel to the Common Area Responsible Owner pursuant to Section 7 along with other Common Area Costs. The Common Area Responsible
Owner will make payment of the Taxes for the Common Parcel directly to the proper governmental authority on or before the date due. The Common Parcel Owner will cause Carver County
to send the annual real estate tax statement for the Taxes for the Common Parcel to the Common Area Responsible Owner.
Allocation of Taxes for the Common Parcel to Parcel Owners. The Commercial Parcel Owner is liable for forty-five percent (45.0%) of the Taxes for the Common Parcel, and the Residential
Parcel Owner is liable for fifty five percent (55.0%) of the Taxes for the Common Parcel.
INSURANCE
Property Insurance on the Buildings and Other Improvements. The Residential Parcel Owner or its Authorized Parties must, at its cost, obtain and maintain in force at all times an occurrence
based policy of property insurance insuring the Apartment Building, Parking Garage, Common Support Facilities and all insurable improvements and fixtures located within the Residential
Parcel (other than improvements or fixtures a tenant owns). The Commercial Parcel Owner, Aldi or its Authorized Parties must, at its cost, obtain and maintain in force at all times
an occurrence based policy of property insurance insuring the Commercial Building, Common Support Facilities and all insurable improvements and fixtures located within the Commercial
Parcel. Each policy of property insurance must insure against loss resulting from fire and other perils customarily covered under a current “Causes of Loss - Special Form” (formerly
the “all risk” form) form of policy and including vandalism and malicious mischief coverage insurance for at least the full insurable replacement value of the improvements required
to be insured. Each policy must be issued by a reputable insurance company authorized to do business in the State of Minnesota. Each policy must name each Owner and its lender as
a standard loss payee/mortgagee.
Claims and Allocation of Proceeds. If there is loss, damage or destruction within
the Development for which a claim may be made under a policy of insurance described in Section 9.1, the Owners and Aldi must cooperate with each other in the filing of insurance claims.
Other Property Insurance. The Residential Parcel Owner, Commercial Parcel Owner and Aldi may each maintain their own property insurance insuring any personal property in such amounts
as each such Owner deems appropriate, and the Residential Parcel Owner and the Commercial Parcel Owner may each require their tenants to maintain property insurance insuring any improvements,
trade fixtures or personal property the tenant owns in such amounts as each such Owner deems appropriate.
Liability Insurance. The Commercial Parcel Owner and the Residential Parcel Owner or their Authorized Parties must, at their sole cost, obtain and maintain in full force and effect
an occurrence based policy of commercial general liability insurance covering its Parcel, with the minimum combined limit of liability to be not less than $5,000,000.00. The Common
Area Responsible Owner or its Authorized Parties must, as Common Area Costs, obtain and maintain in full force and effect an occurrence based policy of commercial general liability
insurance covering the Common Area and the liabilities arising out of the ownership of, easement rights in or the maintenance, repair and replacement of the Common Area, with the minimum
combined limit of liability to be not less than $5,000,000.00. Since the commercial general liability insurance for the Common Area is included in Common Area Costs, the cost for the
commercial general liability insurance maintained for the Common Area will be allocated between and paid by the Residential Parcel Owner and the Commercial Parcel Owner as Common Area
Costs. These policies of commercial general liability insurance must specifically include contractual obligation coverage, by endorsement or otherwise, so as to include the indemnification
provisions set forth below. These policies of commercial general liability insurance must name the other Owners as additional insureds.
General Insurance Requirements. The insurance policies this Declaration requires an Owner to carry must be obtained from insurance companies with an AM Best rating of A- VII or better,
as defined in the current edition of Best’s Guide. Upon request by any Owner, any other Owner must produce certificates evidencing compliance with the insurance coverage requirements
as required in this Declaration.
9.6 Self-Insurance. An Owner or its Authorized Parties may self-insure and/or maintain insurance with any commercially reasonable deductible amounts deemed prudent so long as the tangible
net worth of the self-insuring party exceeds $100,000,000, and the self-insuring party is consistently able to meet its financial obligations as they mature. If an Owner or its Authorized
Parties are self-insuring under this provision, then upon written request by any Owner or its Authorized Parties, the self-insuring party shall provide such evidence as is reasonable
under the circumstances that the self-insuring party is consistently able to meet its financial obligations as they mature.
RELEASE AND INDEMNITY
Release of Claims to the Extent of Insurance. The Residential Parcel Owner and the Commercial Parcel Owner, both in their capacities as Owners and in their capacities as the Common
Area Responsible Owner, hereby release one another and their respective directors,
governors, officers, managers, shareholders, members and Authorized Parties from all claims for damage or destruction of real or personal property to the extent of any of the following:
(a) that any Owner is entitled to recover the amount of the Owner’s loss under any property insurance policy or would have been entitled to recover the amount of the Owner’s loss under
any property insurance policy this Agreement obligates the Owner to maintain; or (b) that an Owner or its Authorized Parties self-insure such loss or damage that would have been covered
by a property insurance policy; or (c) that any deductible is maintained for a property insurance policy. This release controls to the extent in conflict with any indemnity or other
obligation set forth in this Declaration.
Indemnity by the Common Area Responsible Owner. The Common Area Responsible Owner agrees to defend, indemnify and hold the other Owners harmless from any third party claims and from
any liability to third parties to the extent the claim or liability arises out of any act or omission of the Common Area Responsible Owner or its Authorized Parties that is associated
with or related to the Common Area Responsible Owner’s performance or non-performance of its obligations under Section 6.2.
Indemnity by Benefitted Owner. A Benefitted Owner and its Authorized Parties that are exercising, or that are permitting its Authorized Parties to exercise, rights under any easement
declared and imposed in Section 2 must defend, indemnify, and hold harmless the Burdened Owner and such Burdened Owner’s governors, directors, partners, officers, managers, shareholders,
members and Authorized Parties from any demands, claims, threatened claims, causes of action, judgment, liabilities, loss, cost, damage or expenses, including, without limitation, mechanics
lien claims, arising from or relating to such Benefitted Owner’s or its Authorized Parties’ exercise of the easement rights declared and imposed in Section 2; provided, however, neither
a Benefitted Owner nor its Authorized Parties are obligated to indemnify an indemnified party or hold an indemnified party harmless from a judgment or other liability imposed by a court
of competent jurisdiction based on the negligence or intentional acts of the indemnified party.
ALTERATIONS AND SUBDIVISION
Alterations. Except as otherwise permitted by this Declaration, no alteration, addition, improvement or change may be made to any of the following without the prior written approval
of the Commercial Parcel Owner, the Residential Parcel Owner, the Common Parcel Owner or Aldi, which approval will not be unreasonably withheld:
The exterior or structural components of the Apartment Building, including, but not limited to (1) changing the design, color or materials of the exterior of the Apartment Building,
or constructing any improvements or floors above the Commercial Building; and (2) making changes that affect the structural support components of the walls shared by the Apartment Building
and the Commercial Building (including, but not limited to, new penetrations through the shared walls).
The exterior or structural components of the Commercial Building, including, but not limited to, changing the design, color or materials of the exterior of the Commercial or adding equipment
on the roof of the Commercial Building; except
that any alterations, additions, improvements or changes to the Commercial Building that are made to remain consistent with the Aldi store then-current prototype may be made without
approval from any Owner.
The exterior or structural components of the Parking Garage, including, but not limited to, making changes that affect the slab of the Parking Garage that is the structural foundation
and floor of the Commercial Building (including, but not limited to, new penetrations through the slab of the Parking Garage where the Commercial Building is located).
The Surface Parking Areas and Site Improvements within the North Common Parcel.
No approval will be needed from an Owner or Aldi for non-material and non-adverse alterations, additions, improvements or changes made by the Common Parcel Owner to the Common Area,
including, but not limited to, the temporary closure or change to parts of the Common Area but only for such periods of time as may be necessary for reasonable repair, maintenance and
traffic regulation and to prevent the public from obtaining prescriptive rights in or to the Common Area. In addition, notwithstanding anything to the contrary in this Declaration,
no approval will be needed from an Owner or Aldi for alterations, additions, improvements or changes related to the: (i) South Common Parcel; (ii) Future Parking Deck; or (iii) building
signs, awnings and canopies.
Approval Process for Certain Alterations. An Owner requesting approval of an alteration, addition, improvement or structural change that requires approval must submit a written request
to the other Owners. The written request must be accompanied by plans and specifications adequate to describe the nature and extent of the proposed alteration, addition, improvement
or change. Unless the Owner who receives the request gives the requesting Owner a notice limiting, qualifying or denying its approval to the request within thirty (30) days after receipt
of the request, the request is deemed approved. Once the other Owners approve or are deemed to have approved a request, the requesting Owner may not materially modify or amend the
plans and specifications for the proposed alteration, addition, improvement or change without the prior written approval (or presumed approval) of the other Owners obtained in accordance
with the application procedure described in this Section and the alteration, addition, improvement or change must be constructed in conformance with the approved plans and specifications.
Notwithstanding the foregoing, no reviewing Owner is responsible for any defects in any plans or specifications or for any defects in the alteration, addition, improvement or change
constructed, whether due to defective design or otherwise. The requesting Owner is solely responsible for the construction standards and specifications relating to the alteration, addition,
improvement or change and the construction work. The requesting Owner must cause the approved alteration, addition, improvement or change to comply with all requirements of any governmental
authority having jurisdiction over the Property.
Indemnification for Alterations. In addition to obtaining the approval of the other Owner if required, an Owner intending to make any alteration, addition, improvement or change to its
Parcel, must indemnify, defend and hold harmless the other Owner from mechanics’ liens or other third party claims or liabilities or any other loss, cost, damage or expense arising
from such alteration, addition, improvement or change. The Owner making any alteration, addition,
improvement or change to a Parcel will, at its cost, promptly repair any damage caused to any Parcel in the construction of such alteration, addition, improvement or change.
Subdivision. No Parcel will be further subdivided unless the written approval of all Owners is obtained. In the event that a Parcel is subdivided, then references in this Declaration
to the subdivided Parcel will collectively include all of the subdivided parcels of the Parcel, and references in this Declaration to the Owner of the subdivided Parcel will collectively
include all of the Owners of the subdivided parcels of the Parcel. All rights, allocations and obligations of a subdivided Parcel or its Parcel Owner under this Declaration will remain
the rights, allocations and obligations of each of the subdivided parcels or its Parcel Owners. It will be the responsibility of the subdivided parcels or its Parcel Owners to further
allocate the rights, allocations and obligations among each other.
AMENDMENTS TO DECLARATION AND TERMINATION OF ALDI RIGHTS
Amendment by Owners and Aldi. This Declaration may be amended pursuant to and only pursuant to a written agreement executed and acknowledged by the Common Parcel Owner, the Residential
Parcel Owner, the Commercial Parcel Owner and, so long as the Aldi Lease is not expired or properly been terminated, Aldi. Other than Aldi, the joinder or approval of any Authorized
Parties or other tenants, occupants or persons is not required for any amendment or change in rights under this Declaration.
Recording of Amendment. Every amendment to this Declaration must be recorded in the office of the Carver County Registrar of Titles, and is effective only when recorded.
Termination of Aldi Rights. All rights of Aldi under this Declaration shall remain in force and effect so long as the Aldi Lease remains in force and effect. All rights of Aldi under
this Declaration, including all rights to enforce the Declaration and grant or withhold approval or consent, shall automatically terminate and be of no further force and effect as of
the date of expiration or proper termination of the Aldi Lease; except that after the date of expiration or termination of the Aldi Lease, Aldi shall continue to be able to enforce
the rights of Aldi that arose under this Declaration prior to the date of expiration or termination of the Aldi Lase and were required to be performed prior to the date of expiration
or termination Aldi Lease. For instance and by example, once the Aldi Lease is expired or properly terminated, no consents or approvals shall be needed from Aldi under this Declaration.
With respect to any provision of this Declaration that commences, terminates or otherwise depends upon the expiration or termination of the Aldi Lease, and the expiration or termination
of the Aldi Lease is disputed for any reason, the Aldi Lease shall not be deemed to have expired or terminated for purposes of this Declaration until such dispute has been fully adjudicated
or settled in writing executed by Aldi and the Owner of the Commercial Parcel. Upon request, Aldi agrees to provide evidence of the expiration or termination of the Aldi Lease in recordable
form.
ESTOPPEL CERTIFICATES
Estoppel Certificates. Upon the request of any Owner or Aldi, any other Owner and Aldi must deliver, within fifteen (15) days of request, an executed estoppel certificate, which
request will not be more frequent than three times per year. The executed estoppel certificate will indicate that as of the date given: (a) whether or not this Declaration is in full
force and effect; (b) whether this Declaration has been amended or modified, and if amended or modified, proper reference to such amendment or modification; (c) whether or not the Owner
or Aldi knows of any uncured violations or defaults of this Declaration, and if there are known violations or defaults, specifying the nature of such; (d) the amounts of any unpaid
Common Area Costs, whether billed or unbilled, and whether owed by or owing to the Owner; (e) a summary of the known payments made and received by an Owner under this Declaration; and
(f) additional information typically in such estoppel certificate. The estoppel certificate will be in a form reasonably acceptable to the party requesting the estoppel certificate
and the party providing the estoppel certificate.
CASUALTY AND EMINENT DOMAIN
Casualty. In the event of any destruction or damage to any improvements upon any portion of the Development, the Owner where the destruction or damage is located shall, at such Owner’s
option: (a) cause such improvements to be diligently repaired, reconstructed and restored within a reasonable time to the condition existing just prior to such destruction or damage
in accordance with all requirements of this Declaration; (b) cause other similar improvements to be diligently constructed on the area destroyed or damaged within a reasonable time
period, which other similar improvements shall be compatible and integrated with the remaining improvements of the Development and shall be in accordance with all requirements of this
Declaration; or (c) if destruction or damage to either the Apartment Building or Commercial Building, cause the building to be diligently razed and then the slab of the Parking Garage
providing the foundation for the building to be in the same condition as originally delivered, and the Owner shall maintain such area; or (d) if destruction or damage to the Parking
Garage, then diligently repair, reconstruct and restore the Parking Garage to a condition so that it provides the foundation and support needed for the Apartment Building or Commercial
Building, if the Owner of the Parcel where a building is located elects to repair, reconstruct and restore such building. In the event of damage to or destruction to the Common Area,
the Common Area Responsible Owner, as Common Area Costs, must repair and replace the Common Area to a condition reasonably consistent with their condition prior to such damage or destruction.
Eminent Domain. In the event any portion of the Development is taken by the power of eminent domain, the award shall be paid to the Owner owning the land or the improvement taken, except
that (a) if the taking includes improvements located within the Common Area, the portion of the award allocable thereto shall be used to relocate, replace or restore such Common Area
to a useful condition if possible, or (b) if the taking includes easement rights, the portion of the award allocable to such easement rights shall be paid to the respective grantee
thereof, or (c) the taking reduces the number of usable parking spaces located within a Parcel, the Owner of the Parcel so affected shall use its best efforts (including using proceeds
from the award or settlement) to restore and/or substitute an equal number of other parking spaces. Best efforts shall not be construed to require such Owner to spend funds in excess
of the award or settlement to acquire land for replacement or substitute parking stalls. If such compliance is not possible, such Owner shall not be deemed in default hereunder and
shall have no further obligations pursuant to this Section. If a separate claim can be filed for the taking of any other property interest existing pursuant to the Declaration which
does not reduce or diminish the amount paid to the Owner of the land or the improvement taken, then the Owner of such other
property interest shall have the right to seek an award for the taking of such interest. The term “eminent domain” shall include the taking or damaging of property by, through or under
any governmental or quasi-governmental authority, and any purchase or acquisition in lieu thereof, whether or not the taking or damaging is by the government or any other Person.
DEFAULTS AND REMEDIES
Defaults. If an Owner defaults in any obligation hereunder which can be cured by the payment of money and such default is not cured within ten (10) days after written notice thereof
is given to such defaulting Owner by any other Owner or if any Owner defaults in any other obligation in this Declaration or unreasonably interferes with a Benefitted Owner’s exercise
of its rights under an easement declared herein and such default or unreasonable interference continues for thirty (30) days after written notice thereof is given to such defaulting
Owner by any other Owner (or in the case of a non-monetary default only, if such non-monetary default is not cured due to excusable delays as provided in Section [6.7] or if it is of
a kind that cannot with reasonable diligence be cured within thirty (30) days but can be cured, then such thirty (30) day period is extended for the period reasonably necessary to cure
the default as long as reasonable and continuous efforts are being made by the defaulting Owner to cure the default), then any non-defaulting Owner may exercise any one or more of the
remedies set forth in Section 15.2.
Remedies. Upon the occurrence of a default under Section 15.1 and the expiration of any period to cure, without a curing of such default, any non-defaulting Owner may exercise one or
more of the following remedies: (i) cure the default of any defaulting party and charge the costs thereof, including reasonable fees of experts and attorneys, to the defaulting Owner,
and all such costs are payable on demand, and for such purposes the non-defaulting Owner has an easement to enter upon the Parcels to do any work necessary to cure such default; and
(ii) commence an action in Carver County District Court seeking specific performance, injunctive relief, damages or any other remedy available at law or in equity, specifically excluding
however the recovery of punitive or consequential monetary damages. No punitive or consequential monetary damages may be sought or recovered hereunder; provided, however, that such
limitation does not prevent the recovery of costs and expenses, including reasonable attorneys’ fees and fees of experts or costs incurred in connection with curing the defaulting Owner’s
default, or direct damages or costs for which a party is entitled to indemnification. Any action seeking one or more forms of relief is not a bar to an action at the same or subsequent
time seeking other forms of relief Costs of any such action, including reasonable attorneys’ fees of the prevailing party or parties, must be paid by the party or parties not prevailing.
Any delay in realizing or failure to realize on any remedy herein for a default hereunder may not be deemed a waiver of that default or any subsequent default of a similar or different
kind, and no waiver of any right or remedy hereunder is effective unless in writing and signed by the Person against whom the waiver is claimed.
Easements to Continue Notwithstanding Breach. It is expressly agreed that no breach of this Declaration entitles any Owner or its successors or assigns to cancel, rescind or otherwise
terminate any easements created hereunder. However, such limitations do not affect, in any manner, any other rights or remedies which such Owner may have hereunder by reason of such
breach.
Interest on Amounts Due. If not otherwise specified herein, all amounts which an Owner owes to another Owner pursuant to this Declaration, if not paid when due, accrue interest at the
rate equal to the lesser of eight percent (8%) per annum or the highest rate allowed by law from the date due to the date of payment.
GENERAL PROVISIONS
Easements and Covenants Run with the Land. The easements, covenants and restrictions that Developer declares and imposes in this Declaration are intended to be appurtenant to all and
any portion of the Property and are intended to run with title to all and any portion of the Property. Developer intends that the Parcels will be owned, sold, conveyed, mortgaged,
leased, possessed and used subject to the terms of this Declaration. The rights and benefits of each easement, covenant and restriction that Developer declares and imposes in this
Declaration are intended to inure to the benefit of each Owner of each Parcel in whose favor the easement, covenant or restriction is declared during his, her, its or their period of
ownership of that Parcel or, if the easement, covenant or restriction is not declared to be for the benefit of one or more specific Parcels, to the benefit of all Owners during their
respective periods of ownership of a Parcel. The burden of each easement, covenant and restriction that Developer declares and imposes in this Declaration is intended to be binding
upon each Owner of each Parcel that is declared to be subject to the easement, covenant or restriction during his, her, its or their period of ownership of that Parcel or, if the no
specific Parcel is declared to be subject to the easement, covenant or restriction, binding upon all Owners during their respective periods of ownership of a Parcel. The obligations
of an Owner under this Declaration with respect its Parcel are terminated upon the sale or other transfer of such Parcel, except that a transferor Owner will remain liable for any obligations
that arise prior to the date of such transfer and were required to be performed prior to the date of such transfer. The benefits and burdens of the easements, covenants and restrictions
declared and imposed in this Declaration may not be assigned or otherwise transferred except in connection with and as a part of a collateral or absolute transfer of title to or a right
to possession of the portion of the Property that is benefitted by or subject to the easement, covenant or restriction. No tenant or other Person other than the Owners and Aldi will
be deemed to have acquired any rights under this Declaration.
Notices and Payments. Any notice or payments required or permitted pursuant to this Declaration will be in writing and delivered by (a) personal delivery, (b) reputable overnight delivery
service with proof of delivery, (c) United States mail, postage prepaid, either certified or first class mail, or (d) email or facsimile. Any notices by email or facsimile will be
followed by delivery by one of the other means, which delivery by such other means will not be subject to timing deadlines. All notices will be sent to a Person: (i) at the address
set forth below; or (ii) in the case of an Owner, at the address to which Carver County delivers property tax statements for that Parcel; or (iii) in the case of Aldi or other non-Owner
that is a corporation, limited partnership, limited liability company or other business entity, at the Person’s registered address; of (iv) to such other address as last provided to
or known by the Person sending such notice. Refusal to accept delivery of a notice or the inability to deliver a notice because of an address that was not properly given will not defeat
or delay the giving of notice. Notices will be deemed given upon the earlier of the date of actual receipt or (1) at the time of delivery if by personal delivery, or (2) as of the
date of first attempted delivery if by overnight delivery, or (3) upon receipt by email or facsimile as evidenced by a receipt transmission report.
Developer: Chanhassen Frontier LLC
c/o United Properties Development LLC
651 Nicollet Mall, Suite 450
Minneapolis, Minnesota 55402
Attn: Rick McKelvey
Email: rick.mckelvey@uproperties.com
Aldi: Aldi Inc. (Minnesota)
4201 Bagley Ave N.
Faribault, MN 55021
Attention: Andrew Shaw, Director of Real Estate
Fax #: (507) 333-9475
Email: andrew.shaw@aldi.us
No Partnership. If, in the future, the same individual or entity does not own all of the Parcels, this Declaration may not be interpreted as intending to create and may not be deemed
to create a partnership, joint venture, association or similar entity among or between the owners of the Parcels.
Approval Rights. Unless otherwise specifically provided to the contrary in this Declaration, whenever consent or approval is required, such consent or approval will not be unreasonably
withheld, conditioned or delayed.
Miscellaneous. This Declaration will in all respects be interpreted, construed and enforced according to the laws of the State of Minnesota. In the event any provision of this Declaration
is held to be invalid, unenforceable or in conflict with the law of the jurisdiction, the remaining provisions of this Declaration will continue to be valid, enforceable and not be
affected by such holding. No term or condition of this Declaration will be deemed waived unless expressed in writing. The waiver of any condition or the breach of any term will not
be a waiver of any subsequent breach of the same or any other term or condition. No tenant or other Person other than the Owners and Aldi will be deemed to have acquired any rights
under this this Declaration. This Declaration constitutes the entire agreement between the parties with respect to its subject matter and fully supersedes all prior written or oral
agreements between the parties with respect to such matters. The persons executing this Declaration on behalf of a party have been duly authorized to do so, and this Declaration will
be binding and fully enforceable in accordance with its terms upon the parties hereto. Nothing contained herein will be deemed to be a gift or dedication to the general public for
any public use or purpose whatsoever.
No Merger. Pursuant to Minnesota Statutes Section 507.47, the easements, covenants and restrictions declared and imposed in this Declaration are valid notwithstanding the common ownership
of the all of the Property by Developer. The common law doctrine of merger will not apply to extinguish the easements, covenants or restrictions set forth in this Agreement if, after
Developer’s common ownership is severed, all of the Property is again owned by a common owner. The easements, covenants or restrictions set forth in this Agreement may only be extinguished
pursuant to a written instrument that all of the Owners execute and record in the Office of the Carver County Registrar of Titles. If all or any portion of a Parcel is subject to a
lien, the Owners may not terminate this Agreement unless the lien holder executes the written instrument the Owners execute to terminate this Agreement or executes and records a separate
agreement consenting to such termination.
[signature page follows]
IN WITNESS WHEREOF, Developer has caused this Declaration of Easements, Covenants and Restrictions for Venue to be executed as of the day and year recited on the first page hereof.
CHANHASSEN FRONTIER LLC,
a Delaware limited liability company
By: United Properties Development LLC
Its: Manager
By: ______________________________
Print: Keith A. Ulstad
Its: Senior Vice President
By: ______________________________
Print: Richard F. McKelvey
Its: Vice President
STATE OF MINNESOTA )
) ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ____ day of ________, 2018, by Keith A. Ulstad and Richard F. McKelvey, the Senior Vice President and Vice President, respectively,
of United Properties Development LLC, a Minnesota limited liability company, the Manager of Chanhassen Frontier LLC, a Delaware limited liability company, on behalf of the limited liability
companies.
Notary Public
THIS INSTRUMENT WAS DRAFTED BY:
Briggs and Morgan, PA (GPB)
2200 IDS Center
80 South 8th Street
Minneapolis, Minnesota 55402
EXHIBIT A-1
CURRENT LEGAL DESCRIPTION
Tract A, Registered Land Survey No. _____, Carver County, Minnesota (“Residential Parcel”); and
Tract B, Registered Land Survey No. ______, Carver County, Minnesota (“Commercial Parcel”); and
Tract C, Registered Land Survey No. _____, Carver County, Minnesota (“Common Parcel”); and
EXHIBIT A-2
PREVIOUS LEGAL DESCRIPTION
Lot 2, Block 1, Frontier Cinema Addition, Carver County, Minnesota.
And
Outlot A, Frontier Cinema Addition, Carver County, Minnesota, EXCEPT that part thereof now platted into Chanhassen Transit Station, described as follows:
Commencing at the Southeast corner of said Outlot A, Frontier Cinema Addition, Carver County, Minnesota; thence North 00 degrees, 33 minutes, 26 seconds West, an assumed bearing, along
the East line of said Outlot A, a distance of 110.00 feet; thence North 17 degrees 52 minutes 40 seconds East along said East line of Outlot A, a distance of 6.11 feet to the point
of beginning; thence North 11 degrees 09 minutes 45 seconds West a distance of 98.29 feet; thence North 78 degrees 50 minutes 15 seconds East a distance of 31.70 feet to said east line
of Outlot A; thence southerly along said East line of Outlot A to the point of beginning.
And
Lot 3, Block 1, Chanhassen Transit Station, Carver County, Minnesota, EXCEPT that part of said Lot 3 lying southerly of Lot 2, Block 1, said Chanhassen Transit Station, and easterly
of the following described line:
Beginning at the Northeast corner of Outlot A, Frontier Cinema Addition, said Carver County, Minnesota; thence North 00 degrees 33 minutes 27 seconds West, assumed bearing along the
Northerly extension of the East line of said Outlot A, a distance of 40.00 feet; thence South 89 degrees 26 minutes 33 seconds West a distance of 54.37 feet to the southerly extension
of the West line of said Lot 2; thence North 00 degrees 01 minutes 05 seconds West, along said line extended a distance of 78.92 feet to the southern most corner of said West line and
said line there terminating.
EXHIBIT B
DEPICTION OF CRITICAL ACCESS DRIVES
EXHIBIT C
DEPICTION AND DESCRIPTION OF COMMERCIAL PARKING EASEMENT AREA
EXHIBIT D
SHORT-TERM PARKING SPACES
EXHIBIT E
GENERAL USE RESTRICTIONS WITHIN THE PROPERTY
No portion of the Property may be used for any of the following purposes:
(a) a use or operation that is generally considered to be an environmental risk to any portion of the Development or surrounding properties;
(b) a business selling alcoholic beverages for on-premises consumption except for a restaurant with sit down table service as its primary operation in which the sale of alcoholic beverages
does not exceed 50% of its gross sales;
(c) a laundry or dry cleaning establishment, provided, the foregoing restriction shall not include an establishment for dry cleaning drop-off and pick-up only, with no cleaning services
being performed at the subject property;
(d) any establishment which stocks, displays, sells, rents, or offers for sale or rent marijuana or any merchandise or material commonly used or intended for the use with or in consumption
of any narcotic, marijuana, dangerous drug, or other controlled substance (provided that the foregoing is not intended and shall not be construed to prohibit a drug store);
(e) adult book store, an establishment selling or exhibiting pornographic materials or any form of adult entertainment or an operation whose principal use is an exotic dancing and/or
massage parlor (provided this restriction shall not prohibit massages in connection with a beauty salon, health club or athletic facility, or a national massage chain such as Massage
Envy);
(f) a pool or billiard hall, arcade, night club, dance club, movie theater or cinema, gyms or health clubs greater than 5,000 square feet, schools or learning centers having more than
thirty students at any one time, skating rink or bowling alley (provided that this restriction shall not prohibit a billiards or recreational area, movie theatre, fitness centers within
the Apartment Building for use by the residents of the Apartment Building and their guests);
(g) children’s play or party center, telemarketing, poling and surveying center, or office use; however (provided that this restriction shall not prohibit child care, child play area
or office area within the Apartment Building for use by the residents and guests of the Apartment Building);
(h) an abortion clinic; Planned Parenthood;
(i) a pet store;
(j) a gasoline station, auto repair shop or car wash;
(k) a lot for the sale of automobiles;
(l) a mobile home park, trailer court (except that this provision shall not prohibit the temporary use of construction trailers during any periods of construction, reconstruction or
maintenance), mobile home sales lot;
(m) off-track betting establishment, bingo parlor or any gambling use;
(n) a business which would emit or produce noxious fumes, gases, excessive dust, dirt or loud noises;
(o) an assembly, manufacturing, distilling, refining, smelting, industrial, agricultural, drilling or mining operation;
(p) a junk yard, stock yard, animal raising operation, a dump or disposal or any operation for the incineration or reduction of garbage of refuse;
(q) a pawn shop, a thrift store, consignment shop or “re-sell” shop, a “Good Will” or “Salvation Army” type store, flea market or a store dedicated to the sale of tobacco products;
(r) a mortuary or funeral home;
(s) a church or other place of worship, banquet hall, auditorium or meeting hall (provided that this restriction shall not prohibit use of any meeting rooms within the Apartment Building
for use by the residents and guests of the Apartment Building);
(t) no flashing neon signs may be placed in the window or on any buildings greater than 24 inches x 24 inches or on any poles located in the Development;
(u) the outdoor display, sale or storage of seasonal merchandise (Christmas trees, pumpkins, produce, flowers, etc.) and/or the temporary or periodic (i.e., not permanent) outdoor display,
sale or storage of merchandise (art work, novelties, clothing, etc.); and/or
(v) carnival, amusement park, or circus.
(w) tattoo business.
EXHIBIT F
NO-BUILD AREA
EXHIBIT G
DEVELOPMENT FREESTANDING SIGN
EXHIBIT H
ALDI CONSTRUCTION STAGING AND STORAGE AREA
MORTGAGEE’S CONSENT TO
DECLARATION OF EASEMENTS, COVENANTS AND RESTRICTIONS FOR VENUE
BREMER BANK, NATIONAL ASSOCIATION, a national banking association (“Mortgagee”) is the holder and owner of that certain [Mortgage, Security Agreement, Assignment of Leases and Rents
and Fixture Financing Statement] executed by Chanhassen Frontier LLC, a Delaware limited liability company, dated August ______, 2018, recorded at the Office of the Carver County Registrar
of Titles on August ______, 2018, as Document No. _______, which encumbers the Property (as defined in the Agreement). Mortgagee hereby consents to the execution, delivery and recording
of the Declaration of Easements, Covenants and Restrictions for Venue (“Agreement”) to which this Consent is attached, and hereby agrees that all of Mortgagee’s interests in and to
the Property are subject to the terms and provisions of the Agreement.
BREMER BANK, NATIONAL ASSOCIATION,
a national banking association
By: ______________________________
Print: ______________________________
Its: ______________________________
STATE OF MINNESOTA )
) ss
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this ____ day of August, 2018, by ________________________________, the _____________________ of BREMER BANK, NATIONAL ASSOCIATION,
a national banking association on behalf of the association.
Notary Public