Loading...
HomeMy WebLinkAboutItem 11May 12, 2014 Item No. APPROVE PURCHASE AGREEMENT WITH LAKEVILLE LAND LTD FOR FUTURE LIQUOR STORE SITE June 2, 2014 City Council Meeting Proposed Action Staff recommends adoption of the following motion: Move to approve a purchase agreement with Lakeville Land LTD for the purchase of Lot 2 Block 1, and Lot 3 Block 1 of the Lakeville Commerce Center. Adoption of this motion will result in the purchase of land located on the northwest corner of the County Road 70, and 1-35 Interchange for a future municipal liquor store. The negotiated price of these two parcels is $1,967,490 for 4.52 acres, equating to $10.00 per square foot. Overview At the May 19 Council Meeting, the City Council took action to approve a purchase agreement for purchase of Lots 2 and 3, Block 1 of the Lakeville Commerce Center. The approval included a stipulation which was not accepted by the seller. Subsequent discussions with the seller have resulted in new language in the purchase agreement intended to address concerns expressed by the City Council. Should the Council approve the new purchase agreement, the City will enter the due diligence period and seek to satisfy all contingencies. Primary Issues to Consider How has the purchase agreement changed? When would this site be built? Why the need to purchase both parcels? How will this be funded and what other costs are estimated to close? Supporting Information Aerial view of lots to be purchased • Conceptual site plan Redlined Purchase agreement with Lakeville Land LTD • Signed Purchase agreement with Lakeville Land LTD Declaration of Covenants, Conditions and Restrictions May 1997, October 1998, .lune 2003 anq August 2011 I Brenda Visnovec Liquor Operations Director Financial Impact: $1,967,490 Budgeted: Y/N Y Source: _ Liquor Fund Related Documents (CIP, ERP, etc.): Purchase Agreement Notes: STAFF ANALYSIS OF PRIMARY ISSUES APPROVAL OF PURCHASE AGREEMENT WITH LAKEVILLE LAND LTD FOR FUTURE LIQUOR STORE SITE • How has the purchase agreement changed? Subsequent to the May 19 meeting, new language was proposed in section 12 of the purchase agreement seeking pre -approval of the plans by the seller. Seller did not accept the change and further discussions commenced. New language was added to section 11 stating that approval of plans and subsequent modifications will be approved prior to closing on the property. To satisfy this requirement, the City will deliver the Galaxie Store plans to the Seller who has stated that he will approve the plans. And therefore agrees that modifications which are consistent with the quality called for in Section 6 of the declarations will be approved. When would this site be built? It is anticipated that this site will be built in the next 2-5 years. However, city staff has been monitoring this area over the past few years following a feasibility study by an outside firm that determined this area would be a strong viable location to provide service to the population on the southern portion of the city. With the economy improving and commercial business starting to thrive again, staff understood the importance of acquiring the land before all opportunities were lost. Why the need to purchase both parcels? The purchase of both parcels allowed city staff to negotiate a much lower price for the land. In addition: • As shown in the conceptual site plan, we can maximize the efficiency of the future liquor store site, increasing the adjacent property to nearly a 2 acre parcel. ® A two acre parcel will be much more conducive to a wider variety of users than the existing 1.18 acre site. • Ponding and drainage for both parcels can be placed on the secondary lot. Thus the city is not paying for land designated for storm water ponding. • The topography of the land will require extensive grading. By owning both lots, we can grade excess soils to the secondary lot eliminating the need to export soil. • The need to establish access points for both parcels within city ordinance requirements will allow the city the ability to establish and design a shared entrance between the two parcels. • The city will be able to ensure that the secondary lot would be sold to a business that would be conducive to our customer base and vice versa. • Ultimately, the city would sell the remaining property as a pad ready site that will recoup some of the purchase costs and providing a return on the cities investment. How will this be funded and what other costs are estimated to close? The Liquor Fund currently allows $2 million for future location land acquisition. Additional costs to get to close include: surveys, borings and grading plans as well as conceptual layouts at an estimated cost of $23,500. Dakota County, MN 224434001020 � 224434001031 LAKEVILLE LAND LTD LAKEVILLE LAND LTD Disclaimer. Map and parcel data are believed to be accurate, but accuracy is not guaranteed. This is not a Map Scale legal document and should not be substituted fora title search appraisal, survey, or for zon/ng I Inch = M faO verification. Dakota County assumes no legal responsibility for the information contained in this data. 4/25/2014 .... . . .... 0 co 14 z z CITY OF LAKEVILLE DAKOTA COUNTY, MINNESOTA RESOLUTION NO. 14-43 RESOLUTION APPROVING THE ACQUISITION OF REAL PROPERTY AND DISPENSING WITH STATUTORY REQUIREMENTS FOR REVIEW BY PLANNING COMMISSION OF DISPOSAL OF PROPERTY WHEREAS, the City is proposing to acquire certain property ("Property") legally described on the attached Exhibit "A" under the terms of the proposed purchase agreement between Lakeville Land, Ltd. Limited Partnership ("Seller") and the City of Lakeville ("Purchase Agreement"); WHEREAS, Minn. Stat. § 462.356, subd. 2 requires that the Planning Commission review the City's proposed acquisitions and dispositions of property, and; WHEREAS, Minn. Stat. § 462.356, subd. 2 provides for an exception from the Planning Commission review requirement upon 2/3 vote of the City Council dispensing with the requirement and finding that the acquisition or disposal of the property has no relationship to the comprehensive municipal plan. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Lakeville: 1. The City Council finds that the acquisition of the Property under the Purchase Agreement has no relationship to the comprehensive municipal plan. 2. Review by the Planning Commission of the acquisition of the Property is hereby dispensed with, the proposed transaction is hereby approved, and the Mayor and City Clerk are authorized and directed to execute all documents, and take all appropriate measures to convey the Property under the terms of the Purchase Agreement. ADOPTED this 19th day of May, 2014, by a 2/3 vote of the City Council of the City of Lakeville. CITY OF LAKEVILLE BY: Ma Little, Mayo ATTEST: lene Friedges, City 1762810 EXHIBIT A Legal Description Lots 2 and 3, Block 1, Lakeville Commerce Center, Dakota County, Minnesota according to the recorded plat thereof VACANT LAND PURCHASE AGREEMENT THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement"), dated for reference purposes only the 19th day of May, 2014 (the "Effective Date"), between LAKEVILLE LAND, LTD. LIMITED PARTNERSHIP, a Minnesota limited partnership ("Seller"), and the CITY OF LAKEVILLE, a Minnesota municipal corporation ("Purchaser"). 1. PROPERTY. In consideration of the mutual promises, covenants, and agreements hereinafter contained, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from Seller, upon the terms and conditions hereinafter set forth, Seller's right, title, interest in that real property located within the City of Lakeville, Dakota County, Minnesota as legally described in Exhibits A attached hereto and incorporated by reference herein, together with all attached improvements and fixtures, easements, and other real property interests appurtenant thereto, if any (hereinafter referred to as the "Property"). 2. PURCHASE PRICE. The purchase price for the Property shall be approximately One Million Nine Hundred Sixty -Seven Thousand Four Hundred Ninety and 00/100 Dollars ($1,967,490.00), determined as follows. The final purchase price shall be Ten and 00/100 ($10.00) per square foot as determined by the ALTA survey obtained by Purchaser in accordance with the terms of this Agreement ("Purchase Price"). If the total square feet of the Property is greater or lesser than 196,749 square feet, the Purchase Price shall be adjusted accordingly. The Purchase Price shall be paid by Purchaser to Seller as follows: (a) The sum of Ten Thousand and 00/100 Dollars ($10,000) earnest money (the "Deposit"), shall be deposited with the Title Company (as hereafter defined) within two business days of execution of this Agreement by both parties. The Deposit shall be held in escrow by the Title Company in an interest bearing account with interest credited to the Purchaser. (b) The remaining balance of the Purchase Price, subject to closing adjustments and pro - rations and after crediting the Deposit, shall be paid by wire transfer of immediately available funds at the Closing to an account designated by Seller. 3. DEPOSIT. If Closing is completed as provided in this Agreement, the Deposit shall be credited to the balance of the Purchase Price at Closing. If Purchaser defaults under this Agreement and fails or refuses to close the sale as provided in this Agreement or if Purchaser terminates this Agreement at any time following the expiration of the Due Diligence Period, then Seller may retain the Deposit as liquidated damages for Purchaser's failure to close this sale in accordance with the terms of this Agreement, subject to the provisions of Section 21. 4. BROKERS' FEES. Except for Purchaser's broker, Mike Sims, Mid America LLC, ("Purchaser's Broker"), and Seller's broker, Jonathan Adam, Silverstone Realty and Development LLC, each party warrants that it has not dealt with any broker or other person in connection with the sale of the Property in any manner that could give rise to a claim for commission or similar fee. Purchaser's broker fees shall be paid by Seller in accordance with a 17601415 separate agreement executed by and between Seller and Purchaser's Broker. Seller's broker fees shall be paid by Seller in accordance with a separate agreement executed by and between Seller and Seller's Broker. Except as otherwise provided under this section, each party agrees to indemnify and hold the other harmless against and from all claims for real estate commissions and other fees with respect to the procurement and closing of this Agreement made by any person with whom they have dealt other than as provided herein. 5. CLOSING. Unless terminated earlier, the date for closing the sale and purchase of the Property (the "Closing") shall be September 5, 2014. Closing shall be held at the office of the Title Company, or at such other time, date or place as the parties may mutually agree. The Closing shall occur through an escrow with the Title Company, whereby the Seller, Purchaser and their attorneys need not be physically present at the Closing and may deliver documents by overnight air courier or other means. 6. CONVEYANCE OF PROPERTY. Upon performance by Purchaser, Seller shall execute and deliver a Limited Warranty Deed conveying marketable title of record, subject to all of the following (collectively, "Permitted Exceptions"): (a) Reservations of minerals or mineral rights by the State of Minnesota, if any; (b) Local, state and federal laws, ordinances or governmental regulations, including, but not limited to, building and zoning laws; (c) Easements, rights-of-way, reservations, covenants and restrictions of record, except those easements, rights-of-way, reservations, covenants and restrictions of record objected to by Purchaser during the period for objections to title under Section 8; (d) Any matter that would be disclosed on an ALTA land survey of the Property if the Purchaser does not obtain one; (e) All non -delinquent property taxes and assessments, which shall be prorated at Closing as provided herein; (f) That certain Declaration of Restrictions executed by Seller and recorded on or about August 30, 2011 and that certain Declaration of Covenants, Conditions and Restrictions dated May 9, 1997, recorded May 28, 1997, as Document Number 1422893 ("Original Declarations"), as amended by that certain Declaration of Covenants, Conditions and Restrictions dated October 15, 1998, recorded February 18, 1999, and Corrective Declaration of Covenants, Conditions and Restrictions dated June 25, 2003, recorded July 1, 2003, as Document Number 208626, affecting the Property 2817192; (g) Matters listed in Schedule B, Section Il of the Title Commitment (as hereinafter defined) to which Purchaser does not object pursuant to Section 8; 2 17601415 (h) All matters created by or on behalf of Purchaser, including, without limitation, any documents or instruments to be recorded as part of any financing for the acquisition of the Property by Purchaser. 7. SURVEY. Purchaser shall have the Property surveyed as determined by Purchaser, in Purchaser's sole discretion and at Purchaser's expense. If the survey shows any discrepancies or conflicts in boundary lines and encroachments which materially decrease the value of the Property based on Purchaser's intended use, which Seller is unable or unwilling to cure, then Purchaser's sole remedy shall be to terminate this Agreement by notice to Seller, given no later than the expiration of the Due Diligence Period, whereupon the Deposit shall be refunded, otherwise the defects shall be deemed to be waived. 8. EVIDENCE OF TITLE. (a) Within twenty (20) days after the execution of this Agreement by the parties, Seller shall deliver to Purchaser most recent surveys of the Property in Purchaser's possession as prepared by MFRA, Inc., Plymouth, Minnesota, and, at Seller's expense, a title insurance commitment ("Commitment") written by Old Republic Title Insurance Company, 400 Second Avenue South, Minneapolis, Minnesota (Attention: Rick Zilka) (612) 371-1178 (rzilka(-,oldrepublictitle.com) for an ALTA Owner's Form policy in an amount equal to the Purchase Price, which shall commit to insure good and marketable fee simple title to the Property in Purchaser upon Closing. The Commitment shall be issued with the following commitments: (1) Insures that at Closing Purchaser shall have marketable and insurable title of record to the Property, free and clear of all liens, encumbrances, leases, claims and charges, all material easements, rights-of-way, covenants, conditions and restrictions and any other matters affecting title, and deleting all exceptions, except for Permitted Exceptions and such matters as are approved by Purchaser in writing. (2) Waives or insures against the following standard exceptions: (i) Facts which would be disclosed by a comprehensive survey of the Property; (ii) Rights and claims of parties in possession; and (iii) Mechanic's, contractor's and material liens and lien claims. (b) Purchaser shall have twenty (20) business days following receipt of the Commitment, but in no event no later than the expiration of the Due Diligence Period, within which to deliver to Seller a notice setting forth any objections to title, other than the Permitted Exceptions, which render title unmarketable ("Objections"); otherwise, Purchaser shall be conclusively presumed to have approved the title to the Property. 3 176014x15 (c) Seller shall, within ten (10) days of receipt of Purchaser's written Objections, notify Purchaser of its intent to cure Objections prior to the end of the Due Diligence Period and shall use reasonable efforts to do so. Pending cure of Purchaser's Objections and in the event Seller shall notify Purchaser of the need for additional time to cure Objections, the Seller shall have up to an additional sixty (60) days, if necessary; to cure Objections; provided, however, that Seller shall pursue cure of Objections in a diligent manner. Upon failure of Seller to provide notice of intention to cure Objections, or if notice is furnished but the Due Diligence Period expires without Objections being cured within the allowable periods, the Deposit shall be refunded to Purchaser, and neither party shall have any further rights or obligations hereunder other than those rights and/or obligations which are expressly stated to survive expiration or termination of this Agreement. If neither party terminates this Agreement as provided in the paragraph, then the parties shall proceed to closing and Purchaser shall be deemed to waive any objections to title. Nothing contained herein shall obligate Seller to cure any Objections other than as specifically provided herein. 9. REAL ESTATE TAXES AND SPECIAL ASSESSMENTS (a) Taxes Shall Be Prorated. Real estate taxes attributable to the Purchaser's Property due and payable in the year of closing shall be prorated based on land value to the date of closing. Real estate taxes attributable to the Purchaser's Property and due and payable in years prior to the year of closing, including but not limited to any deferred real estate taxes under Minnesota Statutes, the so-called "Green Acres Recapture", catch-up or adjustment in future taxes due as a result of Purchaser's Property having been classified under any designation authorized by law to obtain a special low ad valorem tax rate or receive either an abatement or deferment of ad valorem taxes, shall be paid by Seller. Real estate taxes attributable to the Purchaser's Property and due and payable in the years following closing shall be paid or assumed by Purchaser. (b) Special Assessment. All levied assessments due and payable in the year of Closing relating to Purchaser's Property shall be pro -rated between Purchaser and Seller as of the date of Closing. All levied assessments payable for the years prior to Closing shall be paid by Seller and all levied assessments due and payable after the year of Closing shall be paid by the Purchaser. 10. POSSESSION. Seller shall deliver possession of the Property to Purchaser on the date of Closing. 11. DUE DILIGENCE PERIOD. (a) Except as otherwise extended pursuant to the terms of this Agreement, Purchaser shall have until 5:00 P.M. (C.S.T.) on July 7, 2014 ("Due Diligence Period") within which to perform any and all studies or inspections it deems necessary or desirable on the Property, including any environmental studies, to secure all governmental approvals necessary for Purchaser's intended use, and to terminate this Agreement, upon written notice to Seller on or before the expiration of the Due Diligence Period and receive a full refund of the Deposit if any conditions are deemed unsatisfactory to Purchaser at Purchaser's discretion. During the Due Diligence Period, Purchaser may present to Seller the plans and specifications for the proposed structure to be built 4 176014v15 on the Property. If plans and specifications are provided to Seller, Seller, acting as Declarant, shall provide to Purchaser, on er- be€efe- the -expiration of the Due Diligenee Period, written notification of the approval or denial of such plans and specifications and any in satisfaetion n or before the Peel expiration of the Due Diligence Period. If the plans are approved such approval andwaiver- requirements u naor Paragraphs ' "`'shall also state that any modifications of such plans which are consistent with the quality of the approved plans and Paragraph 6 of the 0 gid -Declarations, as swill be approved. In the event the plans Seller or -fails to provide a written notification of approval of the foregoing together with any appropriate waivers grantedto Purchaser's sole satisfaction, in both form and substance, Purchaser shall have the right to terminate the Agreement whereupon the Deposit shall be immediately returned to Purchaser and the parties shall have no further rights or obligations hereunder except as expressly set forth herein. Except as otherwise provided under Sections 8 and 21 of this Agreement, Purchaser shall have no right to terminate this Agreement after the Due Diligence Period (or the extension of the Due Diligence period provided under Section 11(b)) for matters required to be addressed during the Due Diligence Period. If Purchaser shall fail to timely notify Seller in writing of its election to terminate this Agreement on or before the expiration of the Due Diligence Period, time being of the essence, the termination right described in this Section I I (a) shall be immediately null and void and of no further force or effect and Purchaser shall be deemed to have accepted the financial and physical condition of the Property and the Deposit shall be deemed non-refundable except in the event of Seller's default hereunder. Purchaser's failure to provide such notice on or before the end of the Due Diligence Period shall constitute Purchaser's waiver of the herein -described termination right. (b) In the event Purchaser has not concluded its inspections or secured all necessary governmental approvals within the Due Diligence Period, then Purchaser may, at its option, extend the Due Diligence Period for one 30 day period. Notice of Purchaser's intent to extend the Due Diligence period shall be accompanied by a deposit into escrow of an additional Ten thousand and no/100 ($10,000.00) Dollars ("Additional Deposit"). The Additional Deposit shall be treated as the Deposit for purposes of the terms of this Agreement, except that the Additional Deposit is non-refundable if the Agreement is terminated for any reason other than Seller's default. (c) During the Due Diligence Period, Purchaser shall have the right, at Purchaser's expense, to select licensed engineers, contractors, and/or other qualified professionals to make inspections concerning the Property, including but not limited to tests of soils, geologic hazards, utility lines and systems, and possible environmental hazards. The transaction contemplated herein is contingent upon Purchaser's full, complete and sole satisfaction of its review of the foregoing. (d) Any time prior to Closing, Purchaser or its authorized agents shall have the right to enter upon the Property, at Purchaser's expense, for any lawful purpose, including without limitation making surveys, site analysis, test borings, and engineering studies and to erect such signs as Purchaser may deem necessary. (e) If not already provided to Purchaser by Seller, promptly after execution of this Agreement by both parties, Seller shall within five (5) days after execution of this Agreement, 5 176014v15 provide Purchaser copies of the following, at no cost to Purchaser: surveys of the Property prepared by MFRA, Inc.; soil tests prepared by Braun Engineering Co.; easements, covenants or restrictions, or encumbrances affecting the Property; and such other information pertaining to the Property that Purchaser may reasonably request. (f) Purchaser agrees to indemnify, defend and hold Seller, its partners, officers, directors, employees, agents, attorneys and their respective successors and assigns, harmless from and against all claims, demands, suits, obligations, payments, damages, losses, penalties, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or resulting from the Purchaser's or its agents' actions taken in, on or about the Property in the exercise of the inspection right granted pursuant to Section 11. This Section I I(f) shall survive the Closing and/or any termination of this Agreement for a period of one (1) year. 12. REPRESENTATIONS OF SELLER. Seller does hereby covenant, warrant and represent to the Purchaser, to the best of its knowledge, as follows: (a) Seller has or as of the date of Closing will have marketable and insurable title to the Property of record, free and clear of all liens, encumbrances, leases, claims and charges, all material easements, rights-of-way, covenants, conditions and restrictions and any other matters affecting the title, except for the Permitted Exceptions. (b) To Seller's actual knowledge, the conveyance of the Property pursuant hereto will not violate any applicable statute, ordinance, governmental restriction or regulation, or any private restriction or agreement to which Seller is a party. (c) To Seller's actual knowledge, as of the date of Closing there will be no outstanding or unpaid claims, actions or causes of action related to any transaction or obligation entered into or incurred by Seller with respect to the Property prior to the date hereof. (d) To Seller's actual knowledge, there are no underground storage tanks or wells on the Property, it being understood that the representation as to wells shall be recited in the deed to be delivered by the Seller at Closing. (e) Seller is not a foreign person as defined in §1445(f) (3) of the Internal Revenue Code or regulations issued thereunder. (f) To Seller's actual knowledge, Seller has not received any written notice of any current action, litigation, investigation, condemnation or other proceedings of any kind pending or threatened against Seller with respect to the Property. (g) Seller warrants and represents to Purchaser that from the date it acquired the Property until the date of the Closing, Seller has not, at any time: (1) "released" or actively or passively consented to the "release" or "threatened release" of any Hazardous Substance (as defined below) from any "facility" or "vessel" located on or used in connection with the Property or adjacent tracts in violation of applicable laws; or 6 176014v15 (2) taken any action in "response" to a "release" in connection with the Property or adjacent tracts; or (3) otherwise engaged in any activity or omitted to take any action which could subject Purchaser to claims for intentional or negligent torts, strict or absolute liability, either pursuant to statute or common law, in connection with Hazardous Substances (as defined below) located in or on the Property or adjacent tracts, including the generating, transporting, treating, storage, or manufacture of any Hazardous Substance (as defined below) in violation of applicable law. The terms set within quotation marks above shall have the meaning given to them in the Comprehensive Environmental Response and Liability Act, 42 U.S.C. Sec. 9601 et seq., as amended ("CERCLA") and any state environmental laws. (h) Protected historical sites. [Select either (1) or (2) below:] (1) Seller represents that Seller does not know if there are historical, native American, or archeological materials on or in the property that might be protected by law. (2) X Seller represents to the best of Seller's knowledge that the property A does not have any American Indian burial grounds, other human burial grounds, ceremonial earthworks, historical materials, and/or other archeological sites that are protected by federal or state law. Purchaser's obligation to close is contingent upon Purchaser determining to Purchaser's satisfaction that the property does not have any American Indian burial grounds, other human burial grounds, ceremonial earthworks, historical materials, and/or other archeological sites that are protected by federal or state law. 13. NOTICES. Any notice which may be or is required to be given pursuant to the provisions of this Agreement shall be given in writing and shall be effective for all purposes if hand delivered or sent by: (a) personal delivery; or (b) by nationally recognized commercial or United States Postal Service overnight prepaid courier service, with proof of delivery; or (c) by certified or registered United States mail, postage prepaid, each addressed as follows (or at such other address and person as shall be designated from time to time by any party hereto in a written notice delivered to the other parties in the manner provided for in this section): Seller: Lakeville Land, Ltd. Limited Partnership 7 176014v15 • 13. NOTICES. Any notice which may be or is required to be given pursuant to the provisions of this Agreement shall be given in writing and shall be effective for all purposes if hand delivered or sent by: (a) personal delivery; or (b) by nationally recognized commercial or United States Postal Service overnight prepaid courier service, with proof of delivery; or (c) by certified or registered United States mail, postage prepaid, each addressed as follows (or at such other address and person as shall be designated from time to time by any party hereto in a written notice delivered to the other parties in the manner provided for in this section): Seller: Lakeville Land, Ltd. Limited Partnership 7 176014v15 c/o CRICO of Lakeville, Inc. 11200 Rockville Pike, Suite 300 Rockville, MD 20852 Fax: (301) 231-0251 Copy to: William O. Cooley 236 Fairview Road Palm Beach, FL 33480 Purchaser: City of Lakeville 20195 Holyoke Avenue Lakeville, MN 55044 Attn: City Administrator Copy to: Campbell Knutson, P.A. 1380 Corporate Center Curve Suite 317, Eagandale Office Center Eagan, MN 55121 Attn: Andrea McDowell Poehler 14. BENEFIT. This Agreement shall be binding upon and inure to the benefit of Seller and Purchaser and their respective successors and assigns. 15. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties with respect to the transaction hereinabove set forth and may not be amended or modified in whole or in part except with the consent of both of the parties hereto in writing. 16. TIME OF THE ESSENCE. Time shall be of the essence with respect to the performance by the parties of their respective obligations hereunder. 17. EXPENSES. Except as otherwise provided herein, the parties shall be liable for expenses as follows: (a) Real Estate Deed Tax. Seller shall pay real estate transfer tax due as a result of this transaction under applicable state law. (b) Recording Fees. Seller shall pay for any and all recording fees for any corrective instruments required to remove exceptions to title other than the permitted exceptions. Seller shall pay the recording and conservation fee for the Limited Warranty Deed. (c) Title Insurance. Seller shall pay the cost of providing title insurance as required in Section 8 above. (d) Survey. Purchaser will pay the cost of an ALTA land survey or any additional survey work ordered or by Purchaser under Section 8, above. 8 176014v15 (e) Due Diligence. Except as otherwise provided herein, Purchaser will pay all costs associated with its due diligence under Section 11. (f) Escrow, Closing and Other Fees and Expenses. Seller shall pay for any escrow or closing fees charged by Title Company. As to all other closing costs and expenses, each party shall pay its respective expenses, taxes, charges and liabilities incurred in connection with or arising out of the exercise of their respective rights or obligations under this Agreement and the transfer of title from Seller to Purchaser. 18. CLOSING DOCUMENTS. (a) At the Closing, Seller shall execute and/or deliver to Purchaser the following (collectively the "Closing Documents"): (1) Limited Warrant. A Limited Warranty Deed in recordable form satisfactory to Purchaser and Title, containing the legal description as shown on the Commitment and the Survey, and conveying the Property to Purchaser, free and clear of all encumbrances, except encumbrances acceptable to the Purchaser and except Permitted Encumbrances and including the Well Certification statement in accordance with Minnesota law; (2) Seller's Affidavit. A standard form affidavit by Seller indicating that on the date of Closing there are no outstanding, unsatisfied judgments, tax liens or bankruptcies against or involving Seller or the Property; that there has been no skill, labor or material furnished to the Property (other than at the request of Purchaser) for which payment has not been made or for which mechanic's liens could be filed; and that there are no other unrecorded interests in the Property. (3) Non -Foreign Person Certification. A certification in form and content satisfactory to the parties hereto and their counsel, properly executed by Seller, containing such information as shall be required by the Internal Revenue Code, and the regulations issued thereunder, in order to establish that Seller is not a "foreign person" as defined in §1445(f)(3) of such Code and such regulations. (4) Storage Tanks. If required, an affidavit with respect to storage tanks pursuant to Minn. Stat. § 116.48. (5) Well Certificate. If there is a well located on the Property, a well disclosure certificate in form and substance true to form for recording. (6) Certification. A certification that the representations and/or warranties made by Seller are the same as were in existence on the date of this Agreement; 9 176014v15 (7) Releases. Satisfactions or releases in recordable form of any mortgages or contracts that remain unsatisfied as of the date of the closing; (8) Bring -Down Certificate. A "bring down certificate" confirming that all of Seller's express representations and warranties under Section 12 of this Agreement remain true and correct in all material respects as of Closing, or, to the extent applicable, stating how any such representation or warranty is no longer materially true and correct. (9) Other Documents. A closing statement and all other documents reasonably determined by either party or Title Company to be necessary to transfer and provide the Alta Owner's form policy for the Property required under Section 8. (b) At the Closing, Purchaser shall execute and deliver to Seller the following: (1) A closing statement and all documents reasonably determined by either party and the title insurance company to be necessary to provide title insurance for the Property; and (2) Payment of the balance of the Purchase Price. 19. ASSIGNMENT. Purchaser shall not assign this Agreement or its rights hereunder without the express written consent of Seller, which may be withheld by Seller in its sole discretion. 20. MINNESOTA LAW. This contract is governed by the laws of the State of Minnesota. 21. DEFAULT; REMEDIES. If Seller has performed or is ready, willing and able to perform all obligations required by this Agreement and Purchaser shall fail or refuse to perform this Agreement within the time and in the manner provided, then Seller may terminate this Agreement by giving written notice thereof to Purchaser, and upon giving such written notice, Seller shall be entitled to receive the Deposit as liquidated damages, the parties recognizing that Seller's actual damages in the event of Purchaser's default will be difficult to ascertain, in which case the parties shall have no further rights and obligations hereunder other than those rights and/or obligations which are expressly stated to survive expiration or termination of this Agreement. If Purchaser has performed or is ready, willing and able to perform all obligations required by this Agreement and Seller shall fail or refuse to perform this Agreement within the time and in the manner provided, then Purchaser, at its option: (a) may elect to enforce the terms hereof by action for specific performance to the extent allowed by law; or (b) may terminate this Agreement by giving written notice thereof to Seller and receive a full refund of the Deposit, in which case the parties shall have no further rights and obligations hereunder other than those rights and/or obligations which are expressly stated to survive expiration or termination of this Agreement. 10 17601405 22. SIGNATURES BY COUNTERPARTS/FACSIMILE. This Agreement may be executed in counterparts. Signatures may be transmitted via facsimile or in "PDF" format via e- mail. 11 17601405 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above, in multiple counterparts, each of which shall be deemed an original and all PURCHASER: CITY OF LAKEVILLE 131A AND Matt Little, Mayor Charlene Friedges, City Clerk SELLER: LAKEVILLE LAND, LTD. LIMITED PARTNERSHIP By: H&W Family Limited Liability Limited Partnership, a Minnesota limited partnership, general partner By: H&W Holding, LLC, a Nevada limited liability company, general partner William O. Cooley, Member 12 176014v15 EXHIBIT A Legal Description Lots 2 and 3, Block 1, Lakeville Commerce Center, Dakota County, Minnesota according to the recorded plat thereof. 13 176014v15 VACANT LAND PURCHASE AGREEMENT THIS REAL ESTATE PURCHASE AGREEMENT ("Agreement"), dated for reference purposes only the 19'h day of May, 2014 (the "Effective Date"), between LAKEVILLE LAND, LTD. LIMITED PARTNERSHIP, a Minnesota limited partnership ("Seller"), and the CITY OF LAKEVILLE, a Minnesota municipal corporation ("Purchaser"), 1. PROPERTY. In consideration of the mutual promises, covenants, and agreements hereinafter contained, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from Seller, upon the terms and conditions hereinafter set forth, Seller's right, title, interest in that real property located within the City of Lakeville, Dakota County, Minnesota as legally described in Exhibits A attached hereto and incorporated by reference herein, together with all attached improvements and fixtures, easements, and other real property interests appurtenant thereto, if any (hereinafter referred to as the "Property"). 2. PURCHASE PRICE. The purchase price for the Property shall be approximately One Million Nine Hundred Sixty -Seven Thousand Four Hundred Ninety and 00/100 Dollars ($1,967,490.00), determined as follows. The final purchase price shall be Ten and 00/100 ($10.00) per square foot as determined by the ALTA survey obtained by Purchaser in accordance with the terms of this Agreement ("Purchase Price"). If the total square feet of the Property is greater or lesser than 196,749 square feet, the Purchase Price shall be adjusted accordingly. The Purchase Price shall be paid by Purchaser to Seller as follows: (a) The sum of Ten Thousand and 00/100 Dollars ($10,000) earnest money (the "Deposit"), shall be deposited with the Title Company (as hereafter defined) within two business days of execution of this Agreement by both parties. The Deposit shall be held in escrow by the Title Company in an interest bearing account with interest credited to the Purchaser. (b) The remaining balance of the Purchase Price, subject to closing adjustments and pro - rations and after crediting the Deposit, shall be paid by wire transfer of immediately available funds at the Closing to an account designated by Seller. 3. DEPOSIT. If Closing is completed as provided in this Agreement, the Deposit shall be credited to the balance of the Purchase Price at Closing. If Purchaser defaults under this Agreement and fails or refuses to close the sale as provided in this Agreement or if Purchaser terminates this Agreement at any time following the expiration of the Due Diligence Period, then Seller may retain the Deposit as liquidated damages for Purchaser's failure to close this sale in accordance with the terms of this Agreement, subject to the provisions of Section 21. 4. BROKERS' FEES. Except for Purchaser's broker, Mike Sims, Mid America. LLC, ("Purchaser's Broker"), and Seller's broker, Jonathan Adam, Silverstone Realty and Development LLC, each party warrants that it has not dealt with any broker or other person in connection with the sale of the Property in any manner that could give rise to a claim for commission or similar fee. Purchaser's broker fees shall be paid by Seller in accordance with a 176014v15 separate agreement executed by and between Seller and Purchaser's Broker. Seller's broker fees shall be paid by Seller in accordance with a separate agreement executed by and between Seller and Seller's Broker. Except as otherwise provided under this section, each party agrees to indemnify and hold the other harmless against and from all claims for real estate commissions and other fees with respect to the procurement and closing of this Agreement made by any person with whom they have dealt other than as provided herein. 5. CLOSING, Unless terminated earlier, the date for closing the sale and purchase of the Property (the "Closing") shall be September 5, 2014. Closing shall be held at the office of the Title Company, or at such other time, date or place as the parties may mutually agree. The Closing shall occur through an escrow with the Title Company, whereby the Seller, Purchaser and their attorneys need not be physically present at the Closing and may deliver documents by overnight air courier or other means. 6. CONVEYANCE OF PROPERTY. Upon performance by Purchaser, Seller shall execute and deliver a Limited Warranty Deed conveying marketable title of record, subject to all of the following (collectively, "Permitted Exceptions"): 176014x15 (a) Reservations of minerals or mineral rights by the State of Minnesota, if any; (b) Local, state and federal laws, ordinances or governmental regulations, including, but not limited to, building and zoning laws; (c) Easements, rights-of-way, reservations, covenants and restrictions of record, except those easements, rights-of-way, reservations, covenants and restrictions of record objected to by Purchaser during the period for objections to title under Section 8; (d) Any matter that would be disclosed on an ALTA land survey of the Property if the Purchaser does not obtain one; (e) All non -delinquent property taxes and assessments, which shall be prorated at Closing as provided herein; (f) That certain Declaration of Restrictions executed by Seller and recorded on or about August 30, 2011 and that certain Declaration of Covenants, Conditions and Restrictions dated May 9, 1997, recorded May 28, 1997, as Document Number 1422893 ("Original Declarations"), as amended by that certain Declaration of Covenants, Conditions and Restrictions dated October 15, 1998, recorded February 18, 1999, and Corrective Declaration of Covenants, Conditions and Restrictions dated June 25, 2003, recorded July 1, 2003, as Document Number 208626, affecting the Property 2817192; (g) Matters listed in Schedule B, Section 11 of the Title Commitment (as hereinafter defined) to which Purchaser does not object pursuant to Section 8; 2 (h) All matters created by or on behalf of Purchaser, including, without limitation, any documents or instruments to be recorded as part of any financing for the acquisition of the Property by Purchaser. 7. SURVEY. Purchaser shall have the Property surveyed as determined by Purchaser, in Purchaser's sole discretion and at Purchaser's expense. If the survey shows any discrepancies or conflicts in boundary lines and encroachments which materially decrease the value of the Property based on Purchaser's intended use, which Seller is unable or unwilling to cure, then Purchaser's sole remedy shall be to terminate this Agreement by notice to Seiler, given no later than the expiration of the Due Diligence Period, whereupon the Deposit shall be refunded, otherwise the defects shall be deemed to be waived. S. EVIDENCE OF TITLE. (a) Within twenty (20) days after the execution of this Agreement by the parties, Seller shall deliver to Purchaser most recent surveys of the Property in Purchaser's possession as prepared by MFRA, Inc., Plymouth, Minnesota, and, at Seller's expense, a title insurance commitment ("Commitment") written by Old Republic Title Insurance Company, 400 Second Avenue South, Minneapolis, Minnesota (Attention: Rick Zilka) (612) 371-1178 'zi-'lz's ,ol'PF3� ;tip ttl�c� ) for an ALTA Owner's Form policy in an amount equal to the Purchase Price, which shall commit to insure good and marketable fee simple title to the Property in Purchaser upon Closing. The Commitment shall be issued with the following commitments: (1) Insures that at Closing Purchaser shall have marketable and insurable title of record to the Property, free and clear of all liens, encumbrances, leases, claims and charges, all material easements, rights-of-way, covenants, conditions and restrictions and any other matters affecting title, and deleting all exceptions, except for Permitted Exceptions and such matters as are approved by Purchaser in writing. (2) Waives or insures against the following standard exceptions: (i) Facts which would be disclosed by a comprehensive survey of the Property; (ii) Rights and claims of parties in possession; and (iii) Mechanic's, contractor's and material liens and lien claims. (b) Purchaser shall have twenty (20) business days following receipt of the Commitment, but in no event no later than the expiration of the Due Diligence Period, within which to deliver to Seller a notice setting forth any objections to title, other than the Permitted Exceptions, which render title unmarketable ("Objections"); otherwise, Purchaser shall be conclusively presumed to have approved the title to the Property. 3 176014v15 (c) Seller shall, within ten (10) days of receipt of Purchaser's written Objections, notify Purchaser of its intent to cure Objections prior to the end of the Due Diligence Period and shall use reasonable efforts to do so. Pending cure of Purchaser's Objections and in the event Seller shall notify Purchaser of the need for additional time to cure Objections, the Seller shall have up to an additional sixty (60) days, if necessary; to cure Objections; provided, however, that Seller shall pursue cure of Objections in a diligent manner. Upon failure of Seller to provide notice of intention to cure Objections, or if notice is furnished but the Due Diligence Period expires without Objections being cured within the allowable periods, the Deposit shall be refunded to Purchaser, and neither party shall have any further rights or obligations hereunder other than those rights and/or obligations which are expressly stated to survive expiration or termination of this Agreement. If neither party terminates this Agreement as provided in the paragraph, then the parties shall proceed to closing and Purchaser shall be deemed to waive any objections to title. Nothing contained herein shall obligate Seller to cure any Objections other than as specifically provided herein. 9. REAL ESTATE TAXES AND SPECIAL ASSESSMENTS (a) Taxes Shall Be Prorated. Real estate taxes attributable to the Purchaser's Property due and payable in the year of closing shall be prorated based on land value to the date of closing. Real estate taxes attributable to the Purchaser's Property and due and payable in years prior to the year of closing, including but not limited to any deferred real estate taxes under Minnesota Statutes, the so-called "Green Acres Recapture", catch-up or adjustment in future taxes due as a result of Purchaser's Property having been classified under any designation authorized by law to obtain a special low ad valorem tax rate or receive either an abatement or deferment of ad valorem taxes, shall be paid by Seller. Real estate taxes attributable to the Purchaser's Property and due and payable in the years following closing shall be paid or assumed by Purchaser. (b) Special Assessment. All levied assessments due and payable in the year of Closing relating to Purchaser's Property shall be pro -rated between Purchaser and Seller as of the date of Closing. All levied assessments payable for the years prior to Closing shall be paid by Seller and all levied assessments due and payable after the year of Closing shall be paid by the Purchaser. 10. POSSESSION. Seller shall deliver possession of the Property to Purchaser on the date of Closing. 11. DUE DILIGENCE PERIOD. (a) Except as otherwise extended pursuant to the terms of this Agreement, Purchaser shall have until 5:00 P.M. (C.S.T.) on July 7, 2014 ("Due Diligence Period") within which to perform any and all studies or inspections it deems necessary or desirable on the Property, including any environmental studies, to secure all governmental approvals necessary for Purchaser's intended use, and to terminate this Agreement, upon written notice to Seller on or before the expiration of the Due Diligence Period and receive a full refund of the Deposit if any conditions are deemed unsatisfactory to Purchaser at Purchaser's discretion. During the Due Diligence Period, Purchaser may present to Seller the plans and specifications for the proposed structure to be built 176014+15 4 on the Property. If plans and specifications are provided to Seller, Seller, acting as Declarant, shall provide to Purchaser written notification of the approval or denial of such plans and specifications on or before the expiration of the Due Diligence Period. If the plans are approved such approval shall also state that any modifications of such plans which are consistent with the quality of the approved plans and Paragraph 6 of the Declarations, will be approved. In the event the Seller fails to provide a written notification of approval of the foregoing together with any appropriate waivers to Purchaser's sole satisfaction, in both form and substance, Purchaser shall have the right to terminate the Agreement whereupon the Deposit shall be immediately returned to Purchaser and the parties shall have no further rights or obligations hereunder except as expressly set forth herein. Except as otherwise provided under Sections 8 and 21 of this Agreement, Purchaser shall have no right to terminate this Agreement after the Due Diligence Period (or the extension of the Due Diligence period provided under Section I l(b)) for matters required to be addressed during the Due Diligence Period. If Purchaser shall fail to timely notify Seller in writing of its election to terminate this Agreement on or before the expiration of the Due Diligence Period, time being of the essence, the termination right described in this Section 11(a) shall be immediately null and void and of no further force or effect and Purchaser shall be deemed to have accepted the financial and physical condition of the Property and the Deposit shall be deemed non-refundable except in the event of Seller's default hereunder. Purchaser's failure to provide such notice on or before the end of the Due Diligence Period shall constitute Purchaser's waiver of the herein -described termination right. (b) In the event Purchaser has not concluded its inspections or secured all necessary governmental approvals within the Due Diligence Period, then Purchaser may, at its option, extend the Due Diligence Period for one 30 day period. Notice of Purchaser's intent to extend the Due Diligence period shall be accompanied by a deposit into escrow of an additional Ten thousand and 110/100 ($10,000.00) Dollars ("Additional Deposit"). The Additional Deposit shall be treated as the Deposit for purposes of the terms of this Agreement, except that the Additional Deposit is non-refundable if the Agreement is terminated for any reason other than Seller's default. (c) During the Due Diligence Period, Purchaser shall have the right, at Purchaser's expense, to select licensed engineers, contractors, and/or other qualified professionals to make inspections concerning the Property, including but not limited to tests of soils, geologic hazards, utility lines and systems, and possible environmental hazards. The transaction contemplated herein is contingent upon Purchaser's full, complete and sole satisfaction of its review of the foregoing. (d) Any time prior to Closing, Purchaser or its authorized agents shall have the right to enter upon the Property, at Purchaser's expense, for any lawful purpose, including without limitation making surveys, site analysis, test borings, and engineering studies and to erect such signs as Purchaser may deem necessary. (e) If not already provided to Purchaser by Seller, promptly after execution of this Agreement by both parties, Seller shall within five (5) days after execution of this Agreement, provide Purchaser copies of the following, at no cost to Purchaser: surveys of the Property prepared by MFRA, Inc.; soil tests prepared by Braun Engineering 17601415 Co.; easements, covenants or restrictions, or encumbrances affecting the Property; and such other information pertaining to the Property that Purchaser may reasonably request. (fl Purchaser agrees to indemnify, defend and hold Seller, its partners, officers, directors, employees, agents, attorneys and their respective successors and assigns, harmless from and against all claims, demands, suits, obligations, payments, damages, losses, penalties, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or resulting from the Purchaser's or its agents' actions taken in, on or about the Property in the exercise of the inspection right granted pursuant to Section 11. This Section l 1(0 shall survive the Closing and/or any termination of this Agreement for a period of one (1) year. 12. REPRESENTATIONS OF SELLER. Seller does hereby covenant, warrant and represent to the Purchaser, to the best of its knowledge, as follows: (a) Seller has or as of the date of Closing will have marketable and insurable title to the Property of record, free and clear of all liens, encumbrances, leases, claims and charges, all material easements, rights-of-way, covenants, conditions and restrictions and any other matters affecting the title, except for the Permitted Exceptions. (b) To Seller's actual knowledge, the conveyance of the Property pursuant hereto will not violate any applicable statute, ordinance, governmental restriction or regulation, or any private restriction or agreement to which Seller is a party. (c) To Seller's actual knowledge, as of the date of Closing there will be no outstanding or unpaid claims, actions or causes of action related to any transaction or obligation entered into or incurred by Seller with respect to the Property prior to the date hereof. (d) To Seller's actual knowledge, there are no underground storage tanks or wells on the Property, it being understood that the representation as to wells shall be recited in the deed to be delivered by the Seller at Closing. (e) Seller is not a foreign person as defined in §1445(f) (3) of the Internal Revenue Code or regulations issued thereunder. (f) To Seller's actual knowledge, Seller has not received any written notice of any current action, litigation, investigation, condemnation or other proceedings of any kind pending or threatened against Seller with respect to the Property. (g) Seller warrants and represents to Purchaser that from the date it acquired the Property until the date of the Closing, Seller has not, at any time: (1) "released" or actively or passively consented to the "release" or "threatened release" of any Hazardous Substance (as defined below) from any "facility" or "vessel" located on or used in connection with the Property or adjacent tracts in violation of applicable laws; or 176014v15 6 (2) taken any action in "response" to a "release" in connection with the Property or adjacent tracts; or (3) otherwise engaged in any activity or omitted to take any action which could subject Purchaser to claims for intentional or negligent torts, strict or absolute liability, either pursuant to statute or common law, in connection with Hazardous Substances (as defined below) located in or on the Property or adjacent tracts, including the generating, transporting, treating, storage, or manufacture of any Hazardous Substance (as defined below) in violation of applicable law. The terms set within quotation marks above shall have the meaning given to them in the Comprehensive Environmental Response and Liability Act, 42 U.S.C. Sec. 9601 et seq., as amended ("CERCLA") and any state environmental laws. (h) Protected historical sites. [Select either (1) or (2) below:] (1) Seiler represents that Seller does not know if there are historical, native American, or archeological materials on or in the property that might be protected by law. (2) X Seller represents to the best of Seller's knowledge that the property does not have any American Indian burial grounds, other human burial grounds, ceremonial earthworks, historical materials, and/or other archeological sites that are protected by federal or state law. Purchaser's obligation to close is contingent upon Purchaser determining to Purchaser's satisfaction that the property does not have any American Indian burial grounds, other human burial grounds, ceremonial earthworks, historical materials, and/or other archeological sites that are protected by federal or state law. 13. NOTICES. Any notice which may be or is required to be given pursuant to the Provisions of this Agreement shall be given in writing and shall be effective for all purposes if hand delivered or sent by: (a) personal delivery; or (b) by nationally recognized commercial or United States Postal Service overnight prepaid courier service, with proof of delivery; or (c) by certified or registered United States mail, postage prepaid, each addressed as follows (or at such other address and person as shall be designated from time to time by any party hereto in a written notice delivered to the other parties in the manner provided for in this section): Seiler: Lakeville Land, Ltd. Limited Partnership c/o CRICO of Lakeville, Inc. 11200 Rockville Pike, Suite 300 Rockville, MD 20852 Fax: (301) 231-0251 Copy to: William O. Cooley 236 Fairview Road Palm Beach, FL 33480 Purchaser: City of Lakeville 20195 Holyoke Avenue Lakeville, MN 55044 176014v15 7 Attn: City Administrator Copy to: Campbell Knutson, P.A. 1380 Corporate Center Curve Suite 317, Eagandale Office Center Eagan, MN 55121 Attn: Andrea McDowell Poehler 14. BENEFIT. This Agreement shall be binding upon and inure to the benefit of Seller and Purchaser and their respective successors and assigns. 15. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties with respect to the transaction hereinabove set forth and may not be amended or modified in whole or in part except with the consent of both of the parties hereto in writing. 16. TIME OF THE ESSENCE. Time shall be of the essence with respect to the performance by the parties of their respective obligations hereunder. 17. EXPENSES. Except as otherwise provided herein, the parties shall be liable for expenses as follows: (a) Real Estate Deed Tax. Seller shall pay real estate transfer tax due as a result of this transaction under applicable state law. (b) Recording Fees. Seller shall pay for any and all recording fees for any corrective instruments required to remove exceptions to title other than the permitted exceptions. Seller shall pay the recording and conservation fee for the Limited Warranty Deed. (c) Title Insurance. Seller shall pay the cost of providing title insurance as required in Section 8 above. (d) Survey. Purchaser will pay the cost of an ALTA land survey or any additional survey work ordered or by Purchaser under Section 8, above. (e) Due Diligence. Except as otherwise provided herein, Purchaser will pay all costs associated with its due diligence under Section 11. (f) Escrow. Closing and Other Fees and Expenses. Seiler shall pay for any escrow or closing fees charged by Title Company. As to all other closing costs and expenses, each party shall pay its respective expenses, taxes, charges and liabilities incurred in connection with or arising out of the exercise of their respective rights or obligations under this Agreement and the transfer of title from Seller to Purchaser. 18. CLOSING DOCUMENTS. (a) At the Closing, Seller shall execute and/or deliver to Purchaser the following (collectively the "Closing Documents"): 17601415 8 17601415 (1) Limited Warranty Deed. A Limited Warranty Deed in recordable form satisfactory to Purchaser and Title, containing the legal description as shown on the Commitment and the Survey, and conveying the Property to Purchaser, free and clear of all encumbrances, except encumbrances acceptable to the Purchaser and except Permitted Encumbrances and including the Well Certification statement in accordance with Minnesota law; (2) Seller's Affidavit. A standard form affidavit by Seller indicating that on the date of Closing there are no outstanding, unsatisfied judgments, tax liens or bankruptcies against or involving Seller or the Property; that there has been no skill, labor or material furnished to the Property (other than at the request of Purchaser) for which payment has not been made or for which mechanic's liens could be filed; and that there are no other unrecorded interests in the Property. (3) Non -Foreign Person Certification. A certification in form and content satisfactory to the parties hereto and their counsel, properly executed by Seller, containing such information as shall be required by the Internal Revenue Code, and the regulations issued thereunder, in order to establish that Seller is not a "foreign person" as defined in § 1445(f)(3) of such Code and such regulations. (4) Stor e Tanks. If required, an affidavit with respect to storage tanks pursuant to Minn. Stat. § 116.48. (5) Well Certificate. If there is a well located on the Property, a well disclosure certificate in form and substance true to form for recording. (6) Certification. A certification that the representations and/or warranties made by Seller are the same as were in existence on the date of this Agreement; (7) Releases. Satisfactions or releases in recordable form of any mortgages or contracts that remain unsatisfied as of the date of the closing; (8) Bring -Down Certificate. A "bring down certificate" confirming that all of Seller's express representations and warranties under Section 12 of this Agreement remain true and correct in all material respects as of Closing, or, to the extent applicable, stating how any such representation or warranty is no longer materially true and correct. (9) Other Documents. A closing statement and all other documents reasonably determined by either party or Title Company to be necessary to W transfer and provide the Alta Owner's form policy for the Property required under Section 8. (b) At the Closing, Purchaser shall execute and deliver to Seller the following: (1) A closing statement and all documents reasonably determined by either party and the title insurance company to be necessary to provide title insurance for the Property; and (2) Payment of the balance of the Purchase Price. 19. ASSIGNMENT. Purchaser shall not assign this Agreement or its rights hereunder without the express written consent of Seller, which may be withheld by Seller in its sole discretion. 20. MINNESOTA LAW. This contract is governed by the laws of the State of Minnesota. 21. DEFAULT; REMEDIES. If Seller has performed or is ready, willing and able to perform all obligations required by this Agreement and Purchaser shall fail or refuse to perform this Agreement within the time and in the manner provided, then Seller may terminate this Agreement by giving written notice thereof to Purchaser, and upon giving such written notice, Seller shall be entitled to receive the Deposit as liquidated damages, the parties recognizing that Seller's actual damages in the event of Purchaser's defaultwill be difficult to ascertain, in which case the parties shall have no further rights and obligations hereunder other than those rights and/or obligations which are expressly stated to survive expiration or termination of this Agreement. If Purchaser has performed or is ready, willing and able to perform all obligations required by this Agreement and Seller shall fail or refuse to perform this Agreement within the time and in the manner provided, then Purchaser, at its option: (a) may elect to enforce the terms hereof by action for specific performance to the extent allowed by law; or (b) may terminate this Agreement by giving written notice thereof to Seller and receive a full refund of the Deposit, in which case the parties shall have no further rights and obligations hereunder other than those rights and/or obligations which are expressly stated to survive expiration or termination of this Agreement. 22. SIGNATURES BY COUNTERPARTS/FACSIMILE. This Agreement may be executed in counterparts. Signatures may be transmitted via facsimile or in "PDF" format via e- mail. 176014v15 i0 I IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above, in multiple counterparts, each of which shall be deemed an original and all PURCHASER: CITY OF LAKEVILLE Matt Little, Mayor Charlene Friedges, City Clerk SELLER: LAKEVILLE LAND, LTD. LIMITED PARTNERSHIP By: H&W Family Limited Liability Limited Partnership, a Minnesota limited partnership, general partner By: H&W Holding, LLC, a Nevada limited liability company, general partner ';:V •�.: .- 17601415 11 EXHIBIT A Legal Description Lots 2 and 3, Block 1, Lakeville Commerce Center, Dakota County, Minnesota according to the recorded plat thereof. 176014v15 12 1422893 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS THUS DECLARATION is made and entered into this 9th, day of may _, 1997,..by LAKEVILLE LAND LTD, LIMITED PARTNER§Mp, a Minnesota limited partnership (herein called "Lakeville"). WITNESSETH THAT: WHEREAS, Lakeville is the owner in fee simple of certain real property (herein called the "Subject Property") lying and being in the County of Dakota and State of Minnesota, legally described as follows: t M Lots 1, 2 and 3, Block 1; Lots 1, 2 and 3, Block 2; and Outlots B, C, D and E, all in Lakeville Commerce Center. The North 660.06 feet of the East 660 feet of the Northeast Quarter of Section 3S, ' Township 114, Range 21. and known as Lakeville Commerce Center; and � WHEREAS, Lakeville desires to preserve, protect and enhance the quality and value of the Subject Property, to insure architectural and aesthetic compatibility of improvements developed on the various portions of the Subject Property and to insure that construction on and use of any portion of the Subject Property does not adversely affect any other portion of the Subject Property. NOW, TBEREFORE, Lakeville does hereby declare that the Subject Property shall be held, improved and utilized subject to the following covenants, conditions and restrictions, which shall encumber the Subject Property, shall run with the Subject Property and shall be binding upon all parties having any right, title or interest in the Subject Property or any part thereof, their heirs, successors and assigns. el'r.c C - ?-V ->vG 56 I. Deville Apmv-al of Plans, No improvements shall be constructed, reconstructed, altered or modified upon the Subject Property or any part thereof unless the plans and specifications for the construction, reconstruction, alteration or modification of such improvements shall have been approved by Lakeville, or a designee appointed by Lakeville in a written instrument executed by Lakeville (a "Designee"). If and when the owner of all or any part of the Subject Propeffy desires to construct, reconstruct, alter or modify any such improvements upon the Subject Property, such owner shall, at its cost and expensp, prepare and submit to Lakeville plans and specifications for such improvements, which shall include a site plan, grading plan, architectural design, elevations of proposed structures, lighting plan, parking and traffic circulation plan, landscaping plan, signage plan, screening plan, and a description of exterior materials, textures and colors. The plans and specifications shall depict and specify improvements which shall be of frit quality and which shall comply with the standards set forth in Paragraph 6 of this Declaration of Covenants, Conditions and Restrictions. Such owner shall therewith also submit to Lakeville notice of such owner's mailing address. Lakeville shall, within thirty (30) days after receipt of all of the plans and specifications, as described above, deposit in the YJnited States mail, registered or certified, addressed to such owner, Lakeville's approval of said plans and specifications, or, if such approval is not given, Lakeville's reasons for disapproval, Lakeville's failure to so deposit said approval or reasons for disapproval in the mail within thirty (30) days of Lakeville's receipt of plans and specifications, as described above, shall constitute approval of said plans and specifications. In the event any such plans and specifications are not approved, such owner of the Subject Property or portion thereof may revise and re -submit said plans and specifications for approval, and Lakeville shall, in like fashion, have thirty (30) days after receipt -2- thereof to deposit in the mail its approval or reasons for disapproval with respect to said plans and specifications. After completion of construction in accordance with approved plans and specifications and at the written request of the owner of the Subject Property, Lakeville shall execute and deliver to said owner a certificate in recordable form stating that the improvements constructed on the Subject Property conform to plazas and specifications approved by Lakeville and to the provisions of this Declaration of Covenants; Conditions and Restrictions. 2. Ad r Gs for BMW f rApp lal. Any request for approval which may or shall be given or served upon Lakeville shall be deemed to have been given or served on the date the same is actually received by Lakeville after being mailed in the United States mail, registered or certified, postage prepaid, and addressed to Lakeville Land Ltd. Limited Partnership, c/o CRTCQ of Lakeville, Inc., 11200 Rockville Pike, Rockville, MCaryland, 20852; Attn:' l&. H. William Willoughby, President, or addressed in such other fashion as Lakeville may designate by written instrument referencing this Declaration of Covenants, Conditions and Restrictions and recorded in the land records relating to the Subject Property. 3. Enforc6idl. ' Lakeville shall have the right to enforce the provisions of this Declaration, of Covenants, Conditions and Restrictions through any proceedings, at law or in equity, against any persona or persons violating the provisions of this Declaration of Covenants, Conditions and Restrictions, and to recover any damages (including attorney's fees and expenses) suffered by Lakeville from any such violation thereof. As money damages may be difficult to determine, all future owners of any portion of the Subject Property agrees that Iho provisions of this Declaration of Covenants, Conditioias and Restrictions may also be specifically enforced by suit for specific enforcement and/or for injunction. Neither Lakeville's successors in title to the Subject Property -3- nor occupants of the Subject Property nor any parties, other than Lakeville or its Designee, holding an interest in the Subject Property shall have the right to enforce the provisions of this Declaration of Covenants, Conditions and Restrictions. 4. -Unn. Notwithstanding anything herein. to the contrary, this Declaration of Covenants, Conditions and Restrictions shall expire on March 1, 2037. 5. Miscellan=, The covenants herein contained shall be deemed and construed to be continuing and no waiver of a breach of any of the covenants shall be construed a waiver of any other breach of the same or other of the covenants nor shall failure to enforce- any of the covenants, either by forfeiture or otherwise, be construed as a waiver of any of the other covenants. In the event that -any covenant or any portion thereof is declared to be invalid or void, such invalidity or voidness shall in no way affect any other of the covenants. 6• &MdUdl All improvements constructed upon the Subject Property shall comply with the following requirements: (a) The exterior of any improvements skull be either Brick, stone, precast concrete, block covered with stucco or block upgrades (such as burnished block in earth tones). Metal or plastic siding is. not acceptable. Materials such as tile, metal, or wood may be used as accent materials only. (b) Truck docks, truck loading areas, truck courts and trailer storage must be located on the backs of buildings and not visible from current or proposed streets, unless screened by berming and landscaping that is approved by Lakeville. (c) Outside trash containers and satellite dishes or antennas shall be screened or enclosed as required by Lakeville. Ventilation and air conditioning equipment on the roof shall -4- be hidden from view behind parapets or, if on the ground, shall be screened or enclosed as required by Lakeville. (d) All utility meters shall be screened or located as may be required by Lakeville. Such meters shall not be located on the street side(s) of the Subject Property. (e) Landscaping installation must be accompanied by an underground irrigation system and a one year plant guarantee to cover replacement cost of non surviving plants must be obtained and a copy provided to Lakeville. (f) Materials for the exterior of any improvement, including without limitation screening, and lighting fixtures, shall be in earth tones that harmonize with those of any adjacent structures. (g) With respect to lighting plans, Lakeville may specify the type of fixture and bulb used so that the color of light cast by lighting fixtures throughout Lakeville Commerce Center shall be compatible. (h) With respect to all signage, Lakeville may specify the type, materials, colors, design, location, size and other characteristics of all signage throughout Lakeville Commerce Center so that such signage throughout Lakeville Commerce Center shall be uniform. 7. Waiver of Stasi r e Notwithstanding anything to the contrary contained herein, Lakeville reserves the right to waive the standards set forth in Paragraph 6 above with respect to materials and/or colors if necessary to permit development of a portion of the Subject Property using trademarked exterior elements owned by the owner of such portion of the Subject Property. Further, 'Lakeville reserves the right to waive the standards set forth in paragraph 6 above whenever Lakeville determines, in its sole discretion, that such waiver will not affect the Subject Property in a materially adverse manner. -5- • , 6 IN WITNESS WHEREOF, Lakeville has caused this instrument to be executed as of the day and year first above written. LAKEVILLE LAND LTD, LMTED PARTNERSHIP _ _ ... By CRICO of Lakeville, Inc., its General Partner STATE OF MARYLAND ) ) ss. COUNTY OF MONTGOMERY ) The foregoing insbrument was acknowledged before me this -4 ` t day of 1997, by ,11 it��f.m,�l�il o �Im� k2SUeal of CRICO o Lakeville, Me., as General Partner of LakevilwotW Partnership. C THIS INSTRUMENT WAS DRAFTED BY: Gray, Plant, Mooty, Mooty & Bennett, P.A. (JWT) 3400 City Center 33 South Sixth Street Minneapolis, MN 55402-3796 GPS71338 v3 -6- ,9 R 1580.19 DECLARATION OF COVMOMS, CONDITIONS AND RESTRICTIONS This Declaration of'Covenants, Conditions arld Restrictions" is made: as of this fE"fi, day o OctQ�r, 1998, by Lakeville. Land Ltd. Limited Partriershipt a Minnesota limited. partnership - ("Lakevi2le") . WHEREAS; ` Lakeville 'is the Ofter°.in fee simple of certain "reeal property (herein Called the "Sub jeet.Property").lying,-and being in the County of. Dakota and State of'.Minnesota, - leggal7,.y'.deecxibed as - - follows: Lots 1 and 2, Block 1, and that portion of L(5t-3, Block 1, lying southerly of the following described line. - Commencing -at the. northwest corner 'of said Lot 3; thence South 00. degrees 08 minutes 57 seconds West, assumed bearing,' along the west 1 xre , of said. Lot 3,., a distance of ' 103.84 feet; thence. southerly on'said west _line along a tangential curve concave..to,.the west having a radius of i 420.47 feet, a- central angle of 06 degrees 36 mirrvtes ' 587 seconds, a distance. of ,. 4$x.55 feet' to- the point. of beginning pf ;,the,, line to be described; thence South 84 degrees 57 minutes 20 seconds East a distance of 381.97 feet to .a -point : PA the .eisterl-i line" of said Lot 3' a distance of 396.76 feet soirtbjrlyfrom the .no ' corner.'of said Lot 3 and': -said line there terminating (known ad Parcel $); and ' Lots 1, 2 and 3, Bl'a'ck 2; and Uutlots B,' D and E, all in Lakeville Commerce Center; The..North 660.06 feet' of the East '6.60' feet ,of the -Northeast Quarter of.Section 35, Township 114, Range.21.. and known as Lakeville Commerce. ,C,an.ter; and ' WHEREAS, the 'Subject Property '(and other. -property formerly owned by Owner) is already bound' by that certain Declaration of Covenant's, 'Conditions and Restrictions dated as of May 9, 1997 .and " recorded on May 28,. 1997 in- the office of...the County Recorder of Dakota County, Minnesota, as Do'dumdnt ## 1422893 '(the "Original Declaration"); and WHEREAS, Lakeville intends this Declaration to clarify a portion of the Original Declaration with respect to the„ use of - cert ain.builcling materialas','in Lakeville Commerce'.Centet. NOW, THEREFORE, Lakeville does hereby declare .that the Subject .:- Property shall be held, improved and utilized subject. -to the Original Declaration and this Declaration, which shall en:Cumber the " Sub j ecti Property, shall Arun with :the Subject; P=015ert.y and sbal l Tie binding upon all part�es having any #ght, title or interest in the Subject Property or any part thereof, their heirs, successors and assigns. . _, . - . I. Subparagraph 6(a) of the Original. Declaration shall be deemed to be supplemented. hereby by substituting the following lang4age: _,__. - The exterior wall of any -improvements shall be either brick, stone, precast concreted block covered with stucco. or "block upgrades (such as burnished .block in earth tones). Metal or plastic siding is nbt.acceptable, Materials such as tile, metal, or wood may 'be used as accent materials only, Wood frame exterior walls are not acceptable. Notwithstanding_:_._ the foregoing,- the .. restriction on the use of wood *frame exterior walls shall _.._. not apply to 'any residential units that may be constructed on Outlot B. 2. Except as expressly set. forth .herein, the Original Declaration remains unchanged and i4..full force and effect. IN WITNESS WHEREOF, Lakeville has caused'this instrument to be -• executed as of the day and year first above written. Lakeville Land- Ltd. Limited Partnership By: CRICO of Lakeville; Inc., its Gene ner f I By: H. Wil iam Willoughby W Its: President STATE OF MARYLAND } } COUNTY OF MONTGOMERY ) The foregoing instrument ,was acknowledged before me this , ,,;;• 3; 4_6"6h day of October;" 19 �:, by H. william Willoughby, ; President of CRICO of Lakeville, Inc., as General Partner of Lakeville Land, Ltd. Limited Partne ship. L Notary Publi THIS INSTRUMENT WAS DRAFTED BY: Gray, Plant, Mooty, Mooty & Bennett PA (JWT) 3400 City Center, 33 South 6th Street Minneapolis, MN 55402-3796 My Comm. =xps. 2002 C- v — IJ 0 00 IV zcn � s -tea D F (tam► m lljij c InA m00 Of.a Z7 „z M m mem 0 g n r 2072626 CORRECTIVE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS This Declaration of Covenants, Conditions and Restrictions is made as of this 26-0 day of June, 2003, by Lakeville Land Ltd. Limited Partnership, a Minnesota limited partnership ("Lakeville"). WHEREAS, Lakeville is the Owner in fee simple of certain real property (herein called the "Subject Property") lying and being in the County of Dakota and State of Minnesota, legally described as follows: Lots 1 and 2, Block 1, and that portion of Lot 3, Block 1, lying southerly of the following described line: Commencing at the northwest corner of said Lot 3; thence South 00 degrees 08 minutes 57 seconds West, assumed bearing, along the west line of said Lot 3 a distance of 103.84 feet; thence southerly on said west line along a tangential curve concave to the west having a radius of 420.47 feet, a central angle of 06 degrees 36 minutes 58 seconds, a distance of 48.55 feet to the point of beginning of the line to be described; thence South 84 degrees 57 minutes 20 seconds East a distance of 381.97 feet to a point on the easterly line of said Lot 3 a distance of 196.76 feet southerly from the northeast corner of said Lot 3 and said line there terminating (known as Parcel B); and Lots 1, 2 and 3, Block 2; and Outlots B and D, all in Lakeville Commerce Center; and Outlot F of Morgan Square (formerly the southernmost part of Outlot E of Lakeville Commerce Center); and The North 660.06 feet of the East 660 feet of the Northeast Quarter of Section 35, Township 114, Range 21, and known as Lakeville Commerce Center; and WHEREAS, the Subject Property (and other property formerly owned by Owner) Is already bound by that certain Declaration of Covenants, Conditions and Restrictions dated as of May 9, 1997 and recorded on May 28, 1997 in the office of the County Recorder of Dakota County, Minnesota, as Document #1422893 (the "Original Declaration") and that certain Declaration of Covenants, Conditions and Restrictions dated as of October 15, 1998 and recorded on February 18, 1999 in the office of the County Recorder of Dakota County, Minnesota, as Document #1580119 (the "Second Declaration'); and WHEREAS, Lakeville intends this Declaration to clarify a portion of the Original Declaration and the Second Declaration with respect to the use of certain building materials in Lakeville Commerce Center; and WHEREAS, on or about July 16, 1996, Lakeville sold the portion of Lot 3, Block 1, Lakeville Commerce Center, lying northerly of the line described in the first recital hereof to Flyer's Cafe, LLC; and WHEREAS, on or about September 12, 2002, Lakeville sold the northerly 17.5 acres of Outlot E to Morgan Square, LLC, which parcel together with the remaining southerly portion of Outlot E was simultaneously replatted as Morgan Square; and WHEREAS, Lakeville intended that the restriction on the use of wood frame exterior walls not apply to the Flyer's Cafe, LLC lot or to any residential units that may be constructed on Outlot E (not Outlot B as erroneously stated in the Second Declaration) and desires to correct the designation of the lot in this Declaration. NOW, THEREFORE, Lakeville does hereby declare that the Subject Property shall be held, improved and utilized subject to the Original Declaration, and this Declaration (which shall upon recordation be deemed to replace the Second Declaration), which shall encumber the Subject Property, shall run with the Subject Property and shall be binding upon all parties having any right, title or interest in the Subject Property or any part thereof, their heirs, successors and assigns. 1. Subparagraph 6(a) of the Original Declaration shall be deemed to be supplemented hereby by substituting the following language, which shall correct and replace the language set forth in the Second Declaration: The exterior wall of any improvements shall be either brick, stone, precast concrete, block covered with stucco or block upgrades (such as burnished block in earth tones). Metal or plastic siding is not acceptable. Materials such as tile, metal, or wood may be used as accent materials only. Wood frame exterior walls are not acceptable. Notwithstanding the foregoing, the restriction on the use of wood frame exterior walls shall not apply to that portion of Lot 3, Block 1, lying northerly of the line described in the first recital hereof or to any residential units that may be constructed on what was formerly known as Outlet E (the southerly portion of which is still owned by Lakeville but has been replatted as Outlot F of Morgan Square). Moreover, Lakeville agrees that any residential units constructed on former Outlot E may use vinyl siding with brick or stone trim to meet, but not exceed, City of Lakeville standards. 2. Except as expressly set forth herein, the Original Declaration remains unchanged and in full force and effect. s IN WITNESS WHEREOF, Lakeville has caused this instrument to be executed as of the day and year first above written. Lakeville Land Ltd. Limited Partnership By: CRICO of Lakeville, Inc. Its: General Partner By: '�► ichael F. Vlurplhy Senior Vice President STATE OF MARYLAND COUNTY OF MONTGOMERY The foregoing instrument was acknowledged before me this (W"'d'ay of June, 2003, by Michael F. Murphy, Senior Vice President of CRICO f Lakeville, Inc., as General Partner of Lakeville Land, Ltd. Limited artne 'p. Hemid M. SpeLaer NMW PON %state of Maryland - • ;,r canmiselonMOEe xpirmN rovenftr �, 2005 No Public r ^ . ' ,� . a .•• .� f: w W ZDZ �2 O Q a�=�W ti.Q $ l ujxx r - W g � = 1 CV W C:) N sh do S R" O w C7 cc O 6 W 06 O U S CNC Q . "UIR x D b Eg f) m � ❑ o � cu'7 cc > x Dakota MN 2817192 Page 1 of 8 Upon Recordina Return to: Erin O'Gara, Esq. Kutak Rock LLP 1660 Famarn Street Omaha, NE 68102-2186 ®tet-e0,20XI Receipt#: 163831 2817192 ABSTRACT FEE $46.00 CONSERVATION $5.0D STATE DEED TAX $1.65 1111111111111 Recorded on: 811/2011 08:57:50AM By: TMB, Deputy Remm fo: COYNOWATALYN LMD TM nwncp MINmEmus, NM MW Joel T. Beckman County Recorder DECLARATION OF RESTRICTIONS Dakota County. MN I Lakeville, MN Store No. 8882-00 THIS DECLARATI N OF RESTRICTIONS (this "Declaration") Is made and executed as of the �ay of � ' 2011, by LAKEVILLE LAND, LTD. LIMITED PARTNERSHIP, a Minnesota limited partnership, hereafter referred to as "Declarant". WHEREAS, Wal-Mart Real Estate Business Trust, a Delaware statutory trust ("Wal- Mart"), is the owner of that certain real property more particularly described in Exhibit A attached hereto and Incorporated by reference herein, which real property is hereafter referred to as the "Wal-Mart Property" and Is depicted onxhE ibit C attached hereto as the "Property"; WHEREAS, Declarant is the owner of that certain real property more particularly described In Exhibit B, attached hereto and incorporated by reference herein, which property Is hereafter referred to as the "Burdened Property' and is depicted on Exhibit C attached hereto as the "Burdened Property"; WHEREAS Declarant has previously conveyed the Wal-Mart Property to Wal-Mart pursuant to a separate deed dated on or about the date of this Declaration; and WHEREAS, Declarant desires to establish certain restrictions upon the Burdened Property for the benefit of the Wal-Mart Property; Return to: Commonwealth Land Tide Insurance Company Attn: Recording, File No. 230762 4821-3848-2698.2 222 South Ninth St., Suite 3060 Minneapolis, MN 55402-3808 Dakota MN 2817992 Page 2 of 8 NOW, THEREFORE, Declarant for itself, Its successors and assigns does hereby declare that the Burdened Property shall be subject to and shall be used in conformance with the following covenants, restrictions and agreements: 1. The ownership, development and use of the Burdened Propo ty and any and all buildings, structures or other Improvements (each an "Improvement" and collectively, the "Improvements") shall be restricted, burdened and subject to all of the limitations as set forth below. a. No part of the Burdened Property shall be conveyed to, leased to, occupied by or used as (i) a grocery store or supermarket, as hereinafter defined below, or (ii) a pharmacy. As used in this Declaration, "grocery store" and "supermarket" shall mean a food store or a food department containing more than 10,000 square feet of building space for the purpose of selling food for consumption off of the premises, which shall Include but not be limited to the sale of dry, refrigerated or frozen groceries, meat, seafood, poultry, produce, delicatessen or bakery products, refrigerated or frozen dairy products, or any other grocery products normally sold in such stores or departments. "Pharmacy", as that term is used herein, shall mean any retail or wholesale store or operation of any size which sells or dispenses prescription drugs or pharmaceuticals whether or not such activities are primary to such store or operation. Notwithstanding the foregoing, the portion of the Burdened Property that is Identified as "Parcel 4" on Exhibit C attached hereto may be used, leased or occupied for use as a Pharmacy as long as the party that is using, leasing or occupying Parcel 4 as a Pharmacy (or any Affiliate of such party) does not have more than 10 retail stores nationwide. "Affiliate" means, with respect to any party, each officer, director, general partner or joint - venturer of such party and any other party that directly or indirectly controls, is controlled by, or is under common control with, such party. b. No part of the Burdened Property shall be conveyed to, leased to, occupied by or used as (1) any adult type bookstore or other establishment selling or exhibiting pornographic materials or paraphernalia for use with illicit drugs, (2) any massage parlor, topless bar, or a club which provides striptease entertainment, X-rated movie theatre or X-rated video shop; (3) any mobile home or trailer court, labor camp, Junkyard or stockyard, land fill, garbage dump or area for the dumping disposing Incineration or reduction of garbage; (4) any off-track betting parlor; (5) any carnival or amusement park (6) any manufacturing, distillation, smelting, refining, industrial, agricultural, drilling, mining or quarrying operation, or (6) any business or facility used in growing, delivering, transferring, supplying, dispensing, dispersing, distributing or selling marijuana, whether by prescription, medical recommendation or otherwise, and whether consisting of live plants, seeds, seedlings or prooessed or harvested portions of the marijuana plant. 2. In the event that Declarant or any Affiliate of Declarant acquires property adjacent to or across any adjacent roadway from the Burdened Property (the "Additional Land"), 4821-3848-2698.2 Dakota MN 2817192 Page 3 of 8 Declarant agrees to place a recorded use restriction on the Additional Land at the closing of the purchase of the Additional Land which subjects the Additional Land to the restrictions set forth In Section 1, above. 3. Any of the foregoing restrictions may be waived, amended, modified, released or terminated at any time and from time to time by Declarant; provided, however, that Declarant shall not waive, amend, modify, release or terminate this Declaration without the prior written consent of Wal-Mart during any. time that Wal-Mart or any affiliate of Wal-Mart owns or occupies any portion of the Wal-Mart Property. In the event that neither Wal-Mart nor any affiliate of Wal-Mart owns or occupies any portion of the Wal-Mart Property, then in such event all rights and appurtenances created by this Declaration shall inure to the benefit of the single owner of the largest amount, collectively, of linear square footage of the lands included in the Wal-Mart Property, and all references in this Declaration shall be thereafter be deemed to refer to such owner. 3. The foregoing covenants, restrictions and agreements (a) are imposed upon the Burdened Property for the benefit of the Wal-Mart Property and all portions thereof, (b) shall be effective for a period of 99 years from the date hereof and (c) shall be deemed restrictive covenants running with the land and shall be binding upon the Burdened Property and any person who may from time to time own, lease or otherwise have an interest in the Burdened Property or any portion thereof. 4. In the event of a breach or threatened breach of any term of this Declaration, Wal-Mart shall have the right to exercise any and all remedies afforded under law and at equity, Including, without limitation the right to obtain injunctive relief. This Declaration is made in and shall be construed pursuant to the laws of the state in which the Burdened Property Is located. As of the date of this Declaration, Declarant hereby states that the Burdened Property is not subject to the rights of any mortgagees or tenants. 4821-3848-2698.2 Dakota MN 2817192 Page 4 of 8 IN WITNESS WHEREOF, the undersigned has executed this Declaration as of the day and year above set forth. DECLARANT: LAKEVILLE LAND, LTD. LIMITED PARTNERSHIP, a Minnesota limited partnership By: CRICO of Lakeville, Inc., a Delaware corporation, general partner By: H. William Willoughby President STATE OF COUNTY OF o Gem r � ss. The foregoing instrument was acknowledged before me on this a3 day of 4011Sr , 2011 by H. William Willoughby, President of CRICO of Lakeville, Inc., a Delaware corporation, a general partner of Lakeville Land, Ltd. Limited Partnership, a Minnesota limited partnership, the Declarant named bove, on be If of he limited partnership. My Commission Expires: DRAFTED BY: Rutak Rock LLP 1650 Farnam Street Omaha, NE 68102 4821-3B48-2698.2 Dakota MN 2817192 Page 5 of 8 EXMIT A WAL-KART PROPERTY LEGAL DESCRIPTION Lot 1, Block 1 of Lakeville Commerce Center Third Addition, Dakota County, Minnesota, according to the recorded plat thereof. 4821-3848-2698.2 Dakota MN 2817192 Page 6 of 8 EX IT B BURDENED PROPERTY LEGAL DESCRIPTION Outlot F, MORGAN SQUARE, according to the recorded plat thereof, Dakota County, Minnesota. MEN Lot 3, Block. 2, LAKEVILLE COMMERCE CENTER, according to the recorded plat thereof, Dakota County, Minnesota. D Lot 2, Block 2, LAKEVILLE COMMERCE CENTER, according to the recorded plat thereof, Dakota County, Minnesota. D Lot 1, Block 2, LAKEVILLE COMMERCE CENTER, according to the recorded plat thereof, Dakota County, Minnesota. 0 Lot 2, Block 1, LAKEVILLE COMMERCE CENTER, according to the recorded plat thereof, Dakota County, Minnesota. ►.r,Le Lot 1, Block 1, LAKEVILLE COMMERCE CENTER, according to the recorded plat thereof, Dakota County, Minnesota. Wa Lot 3, Block 1, LAKEVILLE COMMERCE CENTER, according to the recorded plat thereof, Dakota County, Minnesota, EXCEPT that part lying northerly of the following described line: 4821-3848-2698.2 Dakota MN 2817192 Page 7 of 8 Commencing at the northwest corner of said Lot 3; thence South 00 degrees 08 minutes 57 seconds West, assumed bearing, along the west line of said Lot 3 a distance of 103.84 feet; thence southerly on said west line along a tangential curve concave to the west having a radius of 420.47 feet, a central angle of 06 degrees 36 minutes 58 seconds, a distance of 48.55 feet to the point of beginning of the line to be described; thence South 84 degrees 57 minutes 20 seconds East, a distance of 381.97 feet to a point on the easterly line of said Lot 3 distant I96.76 feet southerly from the northeast corner of said Lot 3 and said line there terminating. AND The North 660.06 feet of the East 660.00 feet of the Northeast Quarter of the Northeast Quarter, as measured along the East and North line of said Northeast Quarter of the Northeast Quarter and along line parallel with said East and North line thereof, in Section 35, Township 114, Range 21, EXCEPT Parcel 30, Dakota County Road Right of Way Map No. 300, all in Dakota County, State of Minnesota. 4821-3848-2698.2 Dakota MN 2817192 Page 8 of 8 V ygiq,�e ExHmrr C Fi+i+i+i+++i+4 * * * 4 ++++* +++ r PROPOM PROPERTY — PARCEL 4 � 1 I � II ( 1¢CM1K AK o 400 SCALE FEET p�q ,00lra WWI D Na y LAKEMLLE, MN UaRMMl11 STORE ff 5984.00 C -150 - NCF� NOR '"" '" EX -C KEOKUK AVE AND COAH 70 1NNpl1 4921-3848-2698.2