HomeMy WebLinkAbout2499FIRPTA CERTIFICATION
Section 1445 of the United States Internal Revenue Code (the "Code ") provides that a
transferee of a "United States real property interest" (as defined in the Code) must withhold tax if
the transferor is a "foreign person" (as defined in the Code). To inform City of Edina (the
"Transferee ") that withholding of tax is not required on our disposition of a United States real
property interest by Yorkdale Shoppes Partners, LLC, a Minnesota limited liability company (the
"Transferor "), the undersigned hereby certifies as follows:
1. Transferor is not a Foreign Person, including, without limitation, a foreign
corporation, foreign partnership, foreign trust, or foreign estate (as those terms are
defined in the Code and in United States Income Tax regulations);
2. Transferor's United States employer identification number is 41- 1840505; and
Transferor's office address is c/o Welsh Companies, Inc., 8200 Normandale
Boulevard, Suite 200, Bloomington, Minnesota 55437.
Transferor understands that this certification may be disclosed to the Internal Revenue
Service by Transferee and that any false statement contained herein could be punished by fine,
imprisonment or both.
Under penalties of perjury, I declare that I have examined this certification and to the best
of my knowledge and belief, it is true, correct and complete, and that I have the authority to sign
this document on behalf of Transferor.
Dated: December ,,�O , 1996.
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
YORKDALE SHOP ES PARTNERS, LLC
By:
Its: Chi 4er
This instrument was acknowledged before me on December 17 , 1996, by Robert N.
Shadduck, the Chief Manager of Yorkdale Shoppes Partners, LLC, a Minnesota limited liability
company, on behalf of the company.
THOMAS P. STOLTMAN
NOTARY PUSUC - MINNESOTA
My commission Expires
January 31, 2= otary Public
0257843.01
Form No. 9 -M - WARRANTY DEED
Corporation or Partnership to
Corporation or Partnership
No ciclinquent taxes Ind transfer entered; Certificate
of Real Estate Value ( ) filed ( ) not required
Certificate of Real Estate Value No.
-- , 19
by
County Allclitor
Deputy
S'J'ATE DEED TAX DUE HEREON: $
Date: December J 1996
blinncsula Unil��rni Conucyrutcinc Blanks (1973)
reserved for recorclinu; clata
FOR VALUABLE CONSIDERA'T'ION, YORKDALE S1101'PES PARTNERS, LLC, a limited liability company under
the laws of Minnesota, Grantor, hereby conveys Intl warrants to CITY Ol, EDINA, a municipal corporation Under the
laws of Minnesota Grantee, real property in I- lennepin County, NIIIIlnesota, described as follows:
Lot 1, Blocl( 1, Yorkdale Shoppes, according to the duly recorded plat thereof,
(ihmore space is needed, continue on back)
together with all hereditall]entS and appurtenances belonging thereto, subject to the following exceptions:
(t1) Easement for Utility and drainage purposes filed as Document No. 5341 15; and
(b) Rcciprocal Easement Agreement filed as Document No.
The Seller certifies that Seller does not I(now of any Wclls on the described real property.
Affix Deed Tax Stamp Here
S 'T'ATE OF MINNESOTA )
) ss.
COUNTY Or I-IENNEPIN )
YORKDALE SHOPPES PARTNERS, LLC
1331:
Robert -. Sl ( dcluck
Its: Chief Manager
'File foregoing instrument was acknowledged belorc me this /7fA clay ofDeeember, 1996, by Robert N.
Shadduck, the Chicf Manager of YORKDALE S1-IOPPES PARTNERS, LLC, a limited liability company, under the Jaws
Of Minnesota, on behalf of the limited liability company.
AM I, OR SFAL (OR 0 'I•I1111i12 • I.1•L1-" OR RANK)
0 THOMAS P. STOLTMAN
NOTARY PUBLIC - MINNESOTA
My Commission Expires
!R - - — — — — — — — —
January 31, 2000
THIS lNST UIv1ENT WAS DRAFTED BY:
LARKIN, HOFF'MAN, DALY &, L,INDGREN, LTI).
1500 NORWEST FINANCIAL C1 N'I'L fZ
7900 XERXES AVENUE SOUTI I
BLOOMINGTON, MINNESOTA 55,131
(6 12) 835 -3800
02 .57753.01
Nil I•URI.; O 1'I1-'RSON TAKING ACKNOWIXDGMEN'1'
rax Sl;dcmcnls fur the real property described in this instrument sijould be
sail to (include name and address ol'Gr ntee):
City oP Edina
1501 Wcst 501h Strut
Edina, Minnesota 55421 -1394
.5/e,
RELOCATION
AND
FINANCIAL GUARANTIES
AGREEMENT
THIS AGREEMENT, made and entered into this X64 day of
December, 1996, by and among JERRY'S ENTERPRISES, INC. a Minnesota
corporation, (hereinafter called "Jerry's "), YORKDALE SHOPPES PARTNERS, LLC, a
Minnesota limited liability company, (hereinafter called "Yorkdale "), and the CITY
OF EDINA, a Minnesota municipal corporation (hereinafter called the "City ").
WITNESSETH, THAT:
WHEREAS, pursuant to and in accordance with the terms of a Real
Estate Exchange Agreement (the "Exchange Agreement ") dated Ugzz g
1996, the City conveyed to Yorkdale a certain parcel of real propertf located in the
City of Edina, Hennepin County, Minnesota described on Exhibit A attached hereto
and made a part hereof (herein referred to as the "Old Liquor Store Parcel ") and
Yorkdale has conveyed to the City a certain parcel of real property located in the City
of Edina, Hennepin County, Minnesota described on Exhibit B attached hereto and
made a part hereof (herein referred to as the "CUB Liquor Store Parcel "); and
WHEREAS, as an inducement for the City to enter into the Exchange
Agreement and to consummate the transactions provided for therein, Yorkdale is
willing to grant the City an option to relocate the City's York Avenue liquor store
now or soon to be located on the CUB Liquor Store Parcel to the parcel of real
property located in the City of Edina, Hennepin County, Minnesota described on
Exhibit C attached hereto and made a part hereof (herein referred to as the
"Hirshfield Liquor Store Parcel ") and to grant and give to the City certain financial
guarantees concerning the amount of gross sales at the City's York Avenue liquor
store located on the CUB Liquor Store Parcel.
I
NOW, THEREFORE, in consideration of the above premises, the
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which consideration is hereby
acknowledged by the parties hereto, the parties hereto hereby agree as follows:
1. If the Gross Sales at the City's liquor store located on the CUB
Liquor Store Parcel in 1997, and in any subsequent calendar year to and including
the earlier of (a) the calendar year in which the City opens a liquor store on the
Hirshfield Liquor Store Parcel to the public for business or (b) 2002, are less than the
Imputed Gross Sales applicable to such calendar year as set forth on Exhibit D
attached hereto and made a part hereof (such difference being herein referred to as
the "Gross Sales Deficit "), Jerry's and Yorkdale jointly and severally agree to pay to
the City immediately upon the demand an amount equal to the Gross Sales Deficit
multiplied by ten percent (10 %); provided, however, that if the City's liquor store is
relocated from the CUB Liquor Store Parcel to Hirshfield Liquor Store Parcel, the
Imputed Gross Sales for such calendar year shall be pro rated based upon the
number of days in such calendar year that have elapsed prior to the closing for
business of the City's liquor store located on the CUB Liquor Store Parcel; and
provided further, however, that the terms, covenants and provisions of this
Section 1 shall terminate and be of no further force and effect if a liquor store (as
hereinafter defined in this Section 1) is located within one -half mile of the CUB
Liquor Store Parcel or if the City sells the liquor store located on the CUB Liquor
Store Parcel to a private party. For purposes of the foregoing proviso, a "liquor
store" is defined as a store (whether municipally or privately owned) that sells
distilled spirits in addition to wine and beer. The City covenants it will operate the
City's liquor store located on the CUB Liquor Store Parcel in substantially the same
manner as the City's liquor store located as of the date of this Agreement at
5013 Vernon Avenue, Edina, Minnesota (herein referred to as the "Vernon Avenue
Liquor Store "). In the event grocery stores are authorized by law to sell wine, and
the store located on Lot 2, Block 1, Yorkdale Shoppes, Hennepin County, Minnesota
does not sell wine, the wine component of the Imputed Gross Sales set forth on the
attached Exhibit D shall be reduced by an amount equal to such wine component
multiplied by the percentage, if any, that the wine sales at the City's Vernon Avenue
Liquor Store declined during the first full calendar year after the effective date of
such law.
For purposes of this Agreement, the term "Gross Sales" is hereby
defined to mean the aggregate dollar amount of all sales from all business conducted
upon or from the liquor store located on the CUB Liquor Store Parcel, whether such
sales be evidenced by cash, check, charge, credit or otherwise. Gross Sales shall be
reduced by sales for which cash has been refunded, or allowances made on items
claimed to be defective or unsatisfactory, provided such sale or item shall have been
included in Gross Sales when originally sold; and there shall be deducted from
Gross Sales the sale price of an item returned by customers for exchange provided
such item shall have been included in Gross Sales when originally sold and that the
sales price of such item delivered to the customer in exchange shall have been
included in Gross Sales. Gross Sales shall not include the sales price of goods
transferred by the City to another store or returned to suppliers or manufacturers.
Gross Sales shall not include the amount of any sales, use or gross receipts tax
imposed by any federal, state, municipal or governmental authority directly on sales
and collected from customers, provided that the amount thereof is paid to such
governmental authority.
2. The City is hereby granted the right and option (herein referred
to as the "Option "), exercisable in the City's sole and absolute discretion, to relocate
the City's liquor store now or soon to be located on the CUB Liquor Store Parcel to
the Hirshfield Liquor Store Parcel. (The City's liquor store located on the Hirshfield
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Liquor Store Parcel is herein referred to as the "New Liquor Store" and the City's
liquor store located in the CUB Liquor Store Parcel is herein referred to as the
"Existing Liquor Store "). This Option shall be exercised, if at all, by the City giving
notice to Yorkdale exercising this Option on or before April 30, 2002 (the "Exercise
Date "). If the City shall fail to exercise the Option as herein provided, than the
Option shall terminate.
3. If the City exercises the Option and upon the earlier of (a) the
expiration or termination of the lease in effect as of the date of this Agreement
covering the Hirshfield Liquor Store Parcel or (b) December 1, 2002, Yorkdale shall
promptly commence the design of the New Liquor Store and shall diligently,
continuously and expeditiously pursue and complete the design and construction of
the New Liquor Store so that the City can relocate its York Avenue liquor store from
the CUB Liquor Store Parcel to the Hirshfield Liquor Store Parcel as soon as
reasonably possible after the City exercises the Option. Yorkdale shall pay or
reimburse the City for all direct and out -of- pocket costs and expenses associated with
the design and construction of the New Liquor Store and the documents and
transactions described or referred herein, including the transfer of the CUB Liquor
Store Parcel and the state deed tax due in connection with such transfer, the
removal, moving, relocating and installing of the inventory, operations,
equipment, fixtures, systems, and other property from the Existing Liquor Store to
and in the New Liquor Store, and the acquisition and installation of fixtures, signage
and all other equipment and items necessary to operate the New Liquor Store, and
all other direct and out -of- pocket costs associated with the New Liquor Store and the
transfer of the Existing Liquor Store, including but not limited to all surveying and
planning costs, attorneys' fees and charges, recording fees, state deed tax, the cost of
the Registered Property Abstract and any other documents or information the City is
obligated to furnish or provide under this Agreement, the Title Policy (as defined in
Section 8 (a) hereof), the costs of soil and environmental tests, studies, reports or
other investigations and all architects, engineers and consultants fees and charges.
The City shall have the right (but not the obligation) to remove from the Existing
Liquor Store all inventory, operations, equipment, fixtures, systems and other
property; provided, however, that to the extent feasible fixtures and systems will be
relocated from the Existing Liquor Store to the New Liquor Store and the City and
Yorkdale shall mutually agree on the fixtures and systems of the Existing Liquor
Store to be relocated to and installed in the New Liquor Store. All private or lateral
utility lines and other private utility systems and services located within the
Building Envelope (as said term is used and defined in the Reciprocal Easement
Agreement dated of even date herewith and referenced on the attached Exhibits E
and F) applicable to the Hirshfield Liquor Store Parcel, including, but not limited to
water, sanitary, sewer, gas, electricity, telephone and cable, shall be separated from
and shall not be shared with any other person, party or entity and shall serve only
the New Liquor Store. The move and relocation from the Existing Liquor Store to
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the New Liquor Store shall occur and shall be made with no or minimal loss of
hours of operation at the City's York Avenue liquor store.
4. The City and Yorkdale agree that the Existing Liquor Store and
the New Liquor Store will be of approximately equal value when developed,
completed and used, pursuant to and in the manner provided in this Agreement.
5. On the Date of Closing, as hereinafter set forth, the City agrees to
convey to Yorkdale fee title to the CUB Liquor Store Parcel, and Yorkdale agrees to
convey to the City fee title to the Hirshfield Liquor Store Parcel, subject to and upon
the terms and conditions herein contained. The City shall be entitled to possession
of the CUB Liquor Store Parcel for up to two (2) days after the Date of Closing to
complete the removal, moving and relocating of the inventory, operations,
equipment, fixtures, systems and other property from the Existing Liquor Store to
the New Liquor Store.
6. Subject to postponement pursuant to Paragraph 14 hereof, the
Date of Closing, as used herein, shall be 10:00 o'clock A.M. on a regular business day
designated by the City; provided, however, that the Date of Closing shall not be
earlier than December 1, 2002 and to the extent reasonably possible, the Date of
Closing shall be on the date, or the business day immediately proceeding the date,
the New Liquor Store opens for business. The closing of the transactions described
in this Agreement shall occur at the offices of Dorsey & Whitney in Minneapolis,
Minnesota or at such other place agreed upon by the City and Yorkdale.
7. On or before the Date of Closing, Yorkdale shall pay all real estate
taxes payable in the year in which the Date of Closing occurs and in all prior years
with respect to the entire tax parcel of which the Hirshfield Liquor Store Parcel is a
part. In addition, Yorkdale shall pay in full all real estate taxes, if any, payable with
respect to the Hirshfield Liquor Store Parcel in the year immediately following the
year in which the Date of Closing occurs. Yorkdale shall pay all special assessments
levied, pending or constituting a lien against the Hirshfield Liquor Store Parcel,
including, without limitation, any installments of special assessments, including
interest, payable with general real estate taxes in the year in which the Date of
Closing occurs except that the parties hereto hereby agree that the amount of special
assessments levied, pending or constituting a lien against the Hirshfield Liquor
Store Parcel or allocated to the Hirshfield Liquor Store Parcel equal to the amount, if
any, of the special assessments levied, pending or constituting a lien against the
CUB Liquor Store Parcel shall be assumed by the City. Yorkdale agrees to obtain the
consent of all other owners and any party owning or holding an interest in the
parcel of which the Hirshfield Liquor Store Parcel is a part to such allocations. It is
the intention of this Agreement that the City will not pay any real estate taxes with
respect to the Hirshfield Liquor Store Parcel and that the Hirshfield Liquor Store
Parcel shall not be subject to a lien for any special assessments that were levied,
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pending or constituting a lien against the Hirshfield Liquor Store Parcel or the parcel
of which the Hirshfield Liquor Store Parcel is a part on or prior to the Date of
Closing, other than as above described. The special assessment against the CUB
Liquor Store Parcel for the York Avenue street and sewer project, if any, shall be
assumed by Yorkdale. General real estate taxes and installments of special
assessments payable therewith with respect to the CUB Liquor Store Parcel payable
in the year immediately following the year in which the Date of Closing occurs and
all subsequent years shall be paid by Yorkdale.
8. On the Date of Closing, and on the condition that the City has
then fulfilled its obligations hereunder, Yorkdale shall convey the Hirshfield Liquor
Store Parcel to the City by Warranty Deed free and clear of all encumbrances except
those set forth on Exhibit E attached hereto and made a part hereof and shall execute
and /or deliver to the City the following documents, all in form and content
reasonably satisfactory to the City:
(a) Title Policy. Yorkdale will furnish to the City at closing
the title policy ( "Title Policy ") issued by Title pursuant to
the Title Commitment, or a suitably marked Title
Commitment initialed by Title obligating Title to issue
such a Title Policy in the form required by the Title
Commitment as approved by the City.
(b) Seller's Affidavit. An Affidavit of Title by Yorkdale
indicating that on the Date of Closing there are no
outstanding, unsatisfied judgments, tax liens or
bankruptcies against or involving Yorkdale or the
Hirshfield Liquor Store Parcel; that there has been no skill,
labor or material furnished to the Hirshfield Liquor Store
Parcel for which payment has not been made or for which
mechanics' liens could be filed; and that there are no
other unrecorded interests in the Hirshfield Liquor Store
Parcel, together with whatever standard owner's affidavit
and /or indemnity (ALTA Form) which may be required
by Title to issue an Owner's Policy of Title Insurance with
the standard exceptions waived.
(c) FIRPTA Affidavit. A non - foreign affidavit, properly
executed, containing such information as is required by
Internal Revenue Code Section 1445(b)(2) and its
regulations.
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(d) Owner's Duplicate Certificates of Title. The owner's
duplicate certificates of title regarding the Hirshfield
Liquor Store Parcel.
(e) IRS Form. A Designation Agreement designating the
"reporting person" for purposes of completing Internal
Revenue Form 1099 and, if applicable, Internal Revenue
Form 8594.
(f) Well Certificate. A Certificate signed by Yorkdale
warranting that there are no "Wells" on the Hirshfield
Liquor Store Parcel within the meaning of Minn. Stat.
§ 103I or if there are "Wells ", a Well Certificate in the
form required by law.
(g) Survey. A survey addressed to the City and Title, certified
to a date not more than ten (10) days prior to the Date of
Closing, prepared by a registered land surveyor and
complying with Minimum Standard Detail Requirements
for ALTA /ACSM Land Title Surveys (Class A Urban)
(1992) including items 1 through 4 and 6 through 13 of
Table 3 thereof and such other information and
containing such other matters as the City may reasonably
request. Said survey may include property other than the
Hirshfield Liquor Store Parcel.
(h) Other Documents. All other documents reasonably
determined by the City to be necessary to transfer the
Hirshfield Liquor Store Parcel to the City free and clear of
all encumbrances except those set forth on the attached
Exhibit E.
9. On the Date of Closing, and on the condition that Yorkdale has
then fulfilled its obligations hereunder, the City shall convey the CUB Liquor Store
Parcel to Yorkdale, free and clear of all encumbrances except those set forth on
Exhibit F attached hereto and made a part hereof.
In addition, on the Date of Closing, and on the condition that Yorkdale has then
fulfilled it's obligations hereunder, the City shall execute and /or deliver to Yorkdale
the following documents, all in form and content reasonably satisfactory to
Yorkdale:
(i) Seller's Affidavit. An Affidavit of Title by the City
indicating that on the Date of Closing there are no
outstanding, unsatisfied judgments, tax liens or
bankruptcies against or involving the City or the CUB
Liquor Store Parcel; that there has been no skill, labor or
material furnished to the CUB Liquor Store Parcel for
which payment has not been made or for which
mechanics' liens could be filed; and that there are no
other unrecorded interests in the CUB Liquor Store Parcel,
together with whatever standard owner's affidavit and /or
indemnity (ALTA Form) which may be required by Title
to issue an Owner's Policy of Title Insurance with the
standard exceptions waived.
(ii) FIRPTA Affidavit. A non - foreign affidavit, properly
executed, containing such information as is required by
Internal Revenue Code Section 1445(b)(2) and its
regulations.
(iii) Owner's Duplicate Certificates of Title. The owner's
duplicate certificates of title regarding the CUB Liquor
Store Parcel.
(iv) IRS Form. A Designation Agreement designating the
"reporting person" for purposes of completing Internal
Revenue Form 1099 and, if applicable, Internal Revenue
Form 8594.
(v) Well Certificate. A Certificate signed by the City
warranting that there are no "Wells" on the CUB Liquor
Store Parcel within the meaning of Minn. Stat. § 103I or if
there are "Wells ", a Well Certificate in the form required
by law.
(vi) Other Documents. All other documents reasonably
determined by Yorkdale to be necessary to transfer the
CUB Liquor Store Parcel to Yorkdale.
10. All costs of operating the CUB Liquor Store Parcel will be
allocated between the City and Yorkdale as of the Date of Closing so that the City
pays that part of such operating cost attributable to the period of time prior to the
Date of Closing and Yorkdale pays that part of such operating costs attributable to the
period of time on and after the Date of Closing. All operating costs of the Hirshfield
Liquor Store Parcel will be allocated between the City and Yorkdale as of the Date of
Closing so that Yorkdale pays that part of such operating costs attributable to the
WA
period before the Date of Closing and the City pays that part of operating costs
attributable to the period on and after the Date of Closing.
11. Jerry's warrants and represents to the City that Jerry's is duly
incorporated and is in good standing under the laws of the State of Minnesota;
Jerry's has the requisite power and authority to enter into and perform this
Agreement; this Agreement has been duly authorized by all necessary action on the
part of Jerry's; the execution, delivery and performance of this Agreement does not
and will not conflict with or result in the violation of its Articles of Incorporation or
By -Laws or any judgment, order or decree of any court or arbitrator to which Jerry's
is a party; and this Agreement is a valid and binding obligation of Jerry's and is
enforceable in accordance with its terms.
12. Yorkdale warrants and represents to the City as follows:
(a) Yorkdale is duly formed and is in good standing under the
laws of the State of Minnesota; Yorkdale has the requisite
power and authority to enter into and perform this
Agreement and those documents to be signed by Yorkdale
as provided in this Agreement; this Agreement and such
other documents have been duly authorized by all
necessary action on the part of Yorkdale; the execution
and delivery of this Agreement and all documents to be
executed and delivered by Yorkdale pursuant to this
Agreement and the performance by Yorkdale of such
documents does not and will not conflict with or result in
the violation of the documents forming and governing
Yorkdale or any judgment, order or decree of any court or
arbitrator to which Yorkdale is a party; and this
Agreement and such documents are valid and binding
obligations of Yorkdale and are enforceable in accordance
with their terms.
(b) To the best of Yorkdale's knowledge, no toxic or
hazardous substances or wastes, pollutants or
contaminants (including, without limitation, asbestos,
urea formaldehyde, the group of organic compounds
known as polychlorinated biphenyls, petroleum products
including gasoline, fuel oil, crude oil and various
constituents of such products, and any hazardous
substance as defined in any Environmental Law
(collectively, "Hazardous Substances ") have been
generated, treated, stored, transferred from, released or
disposed of, or otherwise placed, deposited in or located
on the Hirshfield Liquor Store Parcel in violation of any
Environmental Law, nor has any activity been
undertaken on the Hirshfield Liquor Store Parcel that
would cause or contribute to the Hirshfield Liquor Store
Parcel becoming a treatment, storage or disposal facility
within the meaning of any Environmental Law. The term
"Environmental Law" shall mean any and all federal,
state and local laws, statutes, codes, ordinances,
regulations, rules, policies, consent decrees, judicial
orders, administrative orders or other requirements
relating to the environment or to human health or safety
associated with the environment, all as amended or
modified from time to time. To the best of Yorkdale's
knowledge there has been no discharge, release or
threatened release of Hazardous Substances from the
Hirshfield Liquor Store Parcel, and there are no
Hazardous Substances or conditions in or on the
Hirshfield Liquor Store Parcel that may support a claim or
cause of action under any Environmental Law. The
Hirshfield Liquor Store Parcel is not now, and to the best
of Yorkdale's knowledge never has been, listed on any list
of sites contaminated with Hazardous Substances, nor
used as landfill, dump, disposal or storage site for
Hazardous Substances.
(c) FIRPTA. Yorkdale is not a "foreign person ", "foreign
partnership ", "foreign trust" or "foreign estate" as those
terms are defined in Section 1445 of the Internal Revenue
Code.
(d) Wells. Yorkdale certifies and warrants that Yorkdale does
not know of any "Wells" on the described Hirshfield
Liquor Store Parcel within the meaning of Minn. Stat.
§ 103I. This representation is intended to satisfy the
requirements of that statute.
(e) Storage Tanks. To the best knowledge of Yorkdale after
due inquiry, no above ground or underground tanks, are
located in or about the Hirshfield Liquor Store Parcel, or
have been located under, in or about the Hirshfield Liquor
Store Parcel and have subsequently been removed or
filled.
(f) Reports. Seller has delivered to Buyer copies of all
environmental reports and studies relating to the
Hirshfield Liquor Store Parcel which are in the possession
of Seller.
(g) Individual Sewage Treatment Systems. Solely for
purposes of satisfying the requirements of Minn. Stat.
§115.55 Sellers represents that there is no "individual
sewage treatment system" (within the meaning of that
statute) on or serving the Hirshfield Liquor Store Parcel.
Yorkdale will indemnify, defend, hold harmless the City from and against all costs,
expenses, liabilities, damages losses, including attorneys' fees, charges and court costs
that the City incurs because of the breach of any of the above representations and
warranties whether such breach is discovered before or after closing.
Consummation of this Agreement by the City with knowledge of any breach by
Yorkdale will not constitute a waiver or release by the City of any claims due to such
breach.
13. Yorkdale is acquiring the CUB Liquor Store Parcel based upon its
own investigation and inquiry and is not relying on any representation of the City
or any other person and is agreeing to accept and acquire the CUB Liquor Store
Parcel "as is, where is ", except for the express warranties contained in the Warranty
Deed covering the CUB Liquor Store Parcel to be delivered by the City to Yorkdale.
The City warrants and represents to Yorkdale as follows:
(a) The City is a duly formed municipal corporation and is in
good standing under the laws of the State of Minnesota;
The City has the requisite power and authority to enter
into and perform this Agreement and those documents to
be signed by the City as provided in this Agreement; this
Agreement and such other documents have been duly
authorized by all necessary action on the part of the City;
the execution and delivery of this Agreement and all
documents to be executed and delivered by the City
pursuant to this Agreement and the performance by the
City of such documents does not and will not conflict with
or result in the violation of the documents forming and
governing the City or any judgment, order or decree of
any court or arbitrator to which the City is a party; and this
Agreement and such documents are valid and binding
obligations of the City and are enforceable in accordance
with their terms.
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(b) FIRPTA. The City is not a "foreign person ", "foreign
partnership ", "foreign trust" or "foreign estate" as those
terms are defined in Section 1445 of the Internal Revenue
Code.
(c) Wells. The City certifies and warrants that the City does
not know of any "Wells" on the CUB Liquor Store Parcel
within the meaning of Minn. Stat. § 103I. This
representation is intended to satisfy the requirements of
that statute.
(d) Storage Tanks. To the best knowledge of the City after
due inquiry, no above ground or underground tanks, are
located in or about the CUB Liquor Store Parcel, or have
been located under, in or about the CUB Liquor Store
Parcel and have subsequently been removed or filled.
(e) Reports. The City has delivered to Buyer copies of all
environmental reports and studies relating to the CUB
Liquor Store Parcel which are in the possession of the City.
(f) Individual Sewage Treatment Systems. Solely for
purposes of satisfying the requirements of Minn. Stat.
§115.55 the City represents that there is no "individual
sewage treatment system" (within the meaning of that
statute) on or serving the CUB Liquor Store Parcel.
The City will indemnify, defend, hold harmless Yorkdale from and against all costs,
expenses, liabilities, damages losses, including attorneys' fees, charges and court costs
that Yorkdale incurs because of the breach of any of the above representations and
warranties whether such breach is discovered before or after closing.
Consummation of this Agreement by Yorkdale with knowledge of any breach by the
City will not constitute a waiver or release by Yorkdale of any claims due to such
breach.
14. As soon as possible after the City exercises the Option, Yorkdale
shall furnish the City with (a) a Title Insurance Commitment ( "Title
Commitment ") for an ALTA Form B 1990 Owner's Policy of Title Insurance
insuring title to the Hirshfield Liquor Store Parcel, deleting standard exceptions and
including affirmative insurance regarding contiguity, appurtenant easements and
such other matters as may be identified by the City, in the amount of the fair market
value, as reasonably determined by the City, of the Hirshfield Liquor Store Parcel
and all fixtures, buildings and improvements located thereon or a part thereof,
issued by Chicago Title Insurance Company ( "Title "), (b) a survey prepared by a
IBM
registered land surveyor and complying with Minimum Standard Detail
Requirements for ALTA /ACSM Land Title Surveys (Class A Urban) (1992)
including items 1 through 13 of Table 3 thereof and such other information and
containing such other matters as the City may reasonably request, and (c) a Phase I
Environmental Site Assessment addressed to the City, dated subsequent to the date
the City exercises the Option, prepared by an entity approved by the City and in form
and content satisfactory in all respects to the City. The City and Yorkdale shall be
allowed twenty (20) days after receipt of the Title Commitment and the above -
described survey for purposes of examination of title and the making of any
objections thereto, said objections to be made in writing or deemed to be waived. If
any objections are so made, Yorkdale shall be allowed one hundred twenty (120)
days to make such title marketable. Pending correction of title the Date of Closing
shall be postponed, but upon correction of title, and within ten (10) days after
written notice, the parties shall perform this Agreement according to its terms.
Yorkdale represents and agrees that it will use its best efforts to provide good and
marketable title to the Hirshfield Liquor Store Parcel. If title to the Hirshfield Liquor
Store Parcel is not marketable, or is not made so within said one hundred twenty
(120) day period, then the City shall have the election either to (i) declare this
Agreement terminated, whereupon this Agreement shall be null and void and no
party hereto shall be liable to any other party for any performance or damages in
connection herewith, or (ii) waive any such objections and proceed to close
pursuant to this Agreement. Such election shall be made by written notice to
Yorkdale given within ten (10) days after the end of said one hundred twenty (120)
day period, and if no such notice be given, option (i) shall be deemed to have been
elected.
If such Phase I Environmental Site Assessment reveals, discusses or
contains any reference to the possibility of any toxic or hazardous substance, waste,
pollutant or contaminant (including, without limitation, asbestos, urea
formaldehyde, the group of organic compounds known as polychlorinated
biphenyls, petroleum products including gasoline, fuel oil, crude oil and various
constituents of such products (herein collectively referred to as "Hazardous
Substances ")), being released, disposed of, or otherwise placed, deposited in or
located on the Hirshfield Liquor Store Parcel, including but not limited to any
ground water located on, under or flowing through or across the Hirshfield Liquor
Store Parcel, the City shall have the option to declare this Agreement terminated,
whereupon this Agreement shall be null and void and no party hereto shall be
liable to any other party for any performance or damages or the City shall have the
right to require Yorkdale, at Yorkdale's sole cost and expense, to undertake and
obtain any and all additional tests, studies, investigations or other work or activities
recommended by such Phase I Environmental Site Assessment as reasonably
required by the City. Unless such tests, studies, investigations or other information
establishes to the sole and exclusive satisfaction of the City that there are no
Hazardous Substances in, on or under the Hirshfield Liquor Store Parcel, including
-12-
any ground water located on, under or flowing through or across the Hirshfield
Liquor Store Parcel, the City shall have the option to declare this Agreement
terminated, whereupon this Agreement shall be null and void and no party hereto
shall be liable to any other party for any performance or damages.
15. Any notice or demand permitted or required to be given or
made pursuant to this Agreement shall be deemed given or made when delivered
personally or when deposited in the United States mail, registered or certified mail,
postage prepaid and addressed as follows:
If to the City: City of Edina
4801 West 50th Street
Edina, MN 55424 -1394
If to Yorkdale: Yorkdale Shoppes Partners, LLC
c/o Jerry's Enterprises Inc.
5101 Vernon Avenue
Edina, Minnesota 55436
If to Jerry's: Jerry's Enterprises, Inc.
5101 Vernon Avenue
Edina, Minnesota 55436
16. Each party hereto warrants that it has not incurred any real estate
brokerage fees, finders' fees, loan brokerage fees, or any other fees to any party in
connection with the exchange contemplated by this Agreement. In the event any
party institutes a legal action in an effort to recover such fees, the parties jointly
shall defend such action. If a judgment is obtained, the party or parties responsible
for breach of this warranty shall reimburse the other party or parties for their
attorneys' fees, court costs and shares of the judgment.
17. The terms, conditions and covenants hereof shall extend to, be
binding upon and inure to the benefit of the parties to this Agreement and their
respective heirs, personal representatives, successors and assigns, except that such
heirs, personal representatives, successors or assigns shall not have any liability
under Section 1 of this Agreement.
-13-
IN WITNESS WHEREOF, the parties hereto have caused these
presents to be duly executed as of the day and year first above written.
-14-
YORKDALE SHOPPES PARTNERS,
LLC
By jts. C f janager
CITY OF EDINA
Its:
And:
Its:
JERRY'S ENTERPRISES, INC.
By:
Its: Prks d2dt
IN WITNESS WHEREOF, the parties hereto have caused these
presents to be duly executed as of the day and year first above written.
YORKDALE SHOPPES PARTNERS,
LLC
Its:
CITY OF EDINA
By:
Am
JERRY'S ENTERPRISES, INC.
-14-
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this I ff t day of December,
1996, by Robert N. Shadduck, the Chief Manager of YO ALE SHOPPES PARTNERS,
LLC., a Minnesota limited liability company, on behal of said YORKDALE SHOPPES
PARTNERS, LLC.
THOMAS P. STOLTMAN
NOTARY PUSUC - MINNESOTA
lie 'OPP My Commisslon Expire0
January st, 2000 Not Public
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of December,
1996, by . and , the
and , respectively of the CITY OF
EDINA, a Minnesota municipal corporation, on behalf of the CITY OF EDINA.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged be re me this I � day of December,
1996, by Robert N Shadduck, the President of JERRY S ENTERPRISES, INC., a Minnesota
corpora ' — NTERPRIS S, INC.
STOLTUM
IC - MINN69Mf11
salon
i S'!, 20
otary Public
THIS INSTRUMENT WAS DRAFTED BY:
Dorsey & Whitney LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, Minnesota 55402
0263229.01
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledged before me this day of
December, 1996, by , the of YORKDALE
SHOPPES PARTNERS, LLC, a Minnesota limited liability company on behalf of said
YORKDALE SHOPPES PARTNERS, LLC.
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing- was acknowledged before me this/ A a of
Dece ber, 1996, b � °��and ��' e- ��'`� he���1� z
and n' MO l �z , respectively of the CITY OF EDINA, a Minnesota
municipal corporate n on behalf of the CITY OF EDINA.
RLENE J. - MINNES
RY PUBLIC - MINNESOT
HENNEPIN COUNTY
E�jCk-o:: m{ssio n Expires Jan. 31, 2000
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this day of
December, 1996, by ' the of JERRY'S
ENTERPRISES, INC., a Minnesota corporation on behalf of said JERRY'S
ENTERPRISES, INC.
This instrument was drafted by:
Dorsey & Whitney LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, MN 55402
-15-
EXHIBIT A - Old Liquor Store Parcel
EXHIBIT B - CUB Liquor Store Parcel
EXHIBIT C - Hirshfield Liquor Store Parcel
EXHIBIT D - Imputed Gross Sales
EXHIBIT E - Encumbrances on the Hirshfield Liquor Store Parcel
-16-
EXHIBIT A
The Westerly 270 feet of the following described parcel:
All that part of Tract F, Registered Land Survey No. 629, Files of Registrar of Titles,
County of Hennepin lying South of a line drawn parallel with and 40 feet South of
as measured at right angles to the South line of vacated West 68th Street as
dedicated in the plat of "York Terrace" and its Westerly extension and lying
Northerly of a line drawn parallel with and 140 feet South of as measured at right
angles to said South line of vacated West 68th Street and its Westerly extension.
EXHIBIT B
Lot 1, Block 1, Yorkdale Shoppes, according to the recorded plat thereof, Hennepin
County, Minnesota.
EXHIBIT C
Lot 4, Block 1, Yorkdale Shoppes, according to the recorded plat thereof, Hennepin
County, Minnesota.
EXHIBIT D
Calendar Year Imputed Gross Sales
1995
2,381,348.00
1996
2,452,788.44
1997
2,526,372.09
1998
2,602,163.25
1999
2,680,228.15
2000
2,760,634.99
2001
2,843,454.04
2002
2,928,757.66
EXHIBIT E
Easement in favor of Northern States Power Company for electric transmission
lines dated October 12, 1965, filed October 20, 1965 as Document No. 825204. (Affects
Tract 2, Parcel 1 only).
Easement in favor of the City of Edina for utility and drainage purposes dated
August 25, 1965, filed December 30, 1965 as Document No. 834115. (Affects Tracts 2
and 3 only).
Reciprocal Easement
Agreement dated
. as Document No.
Registrar of Titles, Hennepin County, Minnesota.
_ and filed
in the Office of the
EXHIBIT F
Subject to Section 7 of the Agreement to which this Exhibit is attached, real estate
taxes and installments of special assessments payable in the year in which the Date
of Closing occurs and in all subsequent years.
A reservation by the City of an easement for utility and drainage purposes,
including sanitary sewer, storm sewer and water lines as set forth in an Easement
dated August 25, 1965 and filed December 30, 1965 as Document No. 834115 in the
Office of the Registrar of Titles, Hennepin County, Minnesota.
Reciprocal Easement Agreement dated
as Document No.
Registrar of Titles, Hennepin County, Minnesota.
_ and filed
in the Office of the
CONSENT TO RELOCATION AND
FINANCIAL GUARANTIES AGREEMENT
The undersigned holder of that certain Combination Mortgage, Security Agreement and
Fixture Financing Statement dated June 28, 1996 and filed June 28, 1996 as Document
No. 2719727, hereby consents to and agrees to be bound by that certain Relocation and Financial
Guaranties Agreement between Jerry's Enterprises, Inc., Yorkdale Shoppes Partners, LLC, and
the City of Edina, dated December, 1996 and attached hereto, provided, however, that the
undersigned shall in no event have any obligation to perform any of the financial obligations
contained in Section 1 of the Relocation and Financial Guaranties Agreement.
FIRST BANK NATIONAL
ASSOCIATION
Dated: December/-09,11996 By:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
Theo goin 'nstrum nt was acknowledged before me this day of December,
1996, by , the QL,4 ,, of FIRST
BANK NATI ,0NXL AS CIATION, a national b nk g association, on behalf of the
association.
1
� �f1
of Public
THIS INSTRUMENT WAS DRAFTED BY:
LARKIN, HOFFMAN, DALY & LINDGREN, LTD.
1500 NORWEST FINANCIAL CENTER KAREN ANN OLSON t
7900 XERXES AVENUE SOUTH "_'- NOTARY PUBLIC - MINNESOTA
+�' HENNEPIN COUNTY
BLOOMINGTON, MINNESOTA 55431 My Commission SMoires Jan '.
(612) 835 -3800
0262635.01
O/P-tj emj-"
101101?6
REAL ESTATE EXCHANGE AGREEMENT
THIS AGREEMENT, made and entered into this QP day of June,
1996, by and between YORKDALE SHOPPES PARTNERS, LLC, a Minnesota limited
liability company, (hereinafter called "Yorkdale "), and the CITY OF EDINA, a
Minnesota municipal corporation (hereinafter called the "City ").
WITNESSETH, THAT:
WHEREAS, The City owns a certain parcel of real property (hereinafter
called the "City Parcel"), located in the City of Edina, Hennepin County, Minnesota,
described on Exhibit A attached hereto and made a part hereof; and
WHEREAS, Yorkdale owns a certain parcel of real property (hereinafter
called the "Yorkdale Parcel "), located in the City of Edina, Hennepin County,
Minnesota, described on Exhibit B attached hereto and made a part hereof; and
WHEREAS, Yorkdale desires to redevelop the Yorkdale Parcel, the City
Parcel and other adjacent property by, among other things, demolishing the Country
Store located on the Yorkdale Parcel and the City's York Avenue liquor store located
on the City parcel and constructing on the Yorkdale Parcel and the City Parcel a new
CUB Foods store and a new liquor store;
NOW, THEREFORE, In consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the receipt
and sufficiency of which consideration is hereby acknowledged by the parties hereto,
the parties hereto hereby agree as follows:
1. Unless this Agreement has been terminated by the City or
Yorkdale as herein provided, Yorkdale shall construct a new liquor store (herein
referred to as the "New Liquor Store ") to replace the City's existing liquor store now
located on the City Parcel (the "Existing Liquor Store ") and a new CUB Foods store.
The New Liquor Store and adjoining parking area (herein referred to as the "New
Liquor Store Parcel ") and the new CUB Foods store and adjoining parking area shall
be located approximately as shown on the site plan attached hereto as Exhibit C and
made a part hereof. The New Liquor Store shall contain not less than 8,000 square
feet of gross building area (excluding exterior walls). The exterior walls of the New
Liquor Store shall have different brick look, treatment and appearance so that the
New Liquor Store is easily distinguishable from the new CUB Foods store. None of•
the exterior walls of the New Liquor Store shall be a party wall or common wall
with, provide any structural support of or protection for the CUB Foods store, except
that the east wall of the New Liquor Store may have a common footing with the
CUB Foods store.
2. Yorkdale shall pay or reimburse the City for all direct and out -of-
pocket costs and expenses associated with the design and construction of the New
Liquor Store, this Agreement and the documents and transactions described or
referred herein including the transfer of the City Parcel and the state deed tax due in
connection with such transfer, the removal, moving, relocating and installing of the
inventory, operations, equipment, fixtures, systems, and other property from the
Existing Liquor Store to and in the New Liquor Store, and the acquisition and
installation of fixtures, signage and all other equipment and items necessary to
operate the New Liquor Store, and all other direct and out -of- pocket costs associated
with the New Liquor Store and the transfer of the Existing Liquor Store, including
but not limited to all surveying and planning costs, attorneys' fees and charges,
recording fees, state deed tax, the cost of the Registered Property Abstract and any
other documents or information the City is obligated to furnish or provide under
this Agreement, the Title Policy (as defined in Section 9 (a) hereof), the costs of soil
and environmental tests, studies, reports or other investigations and all architects,
engineers and consultants fees and charges; provided, however that the City shall
reimburse Yorkdale for the costs set forth on Exhibit D attached hereto and made a
part hereof. Yorkdale may request the City to reimburse Yorkdale for other costs but
the City shall have the sole and absolute right to determine whether it will
reimburse Yorkdale for such costs. The City shall have the right (but not the
obligation) to remove from the Existing Liquor Store all inventory, operations,
equipment, fixtures, systems and other property; provided, however, that the City
and Yorkdale shall mutually agree on the fixtures and systems of the Existing Liquor
Store to be relocated to and installed in the New Liquor Store. All private or lateral
utility lines and other private utility systems and services located within the
Building Envelope (as said term is defined in the Reciprocal Easement Agreement)
applicable to the New Liquor Store Parcel, including but not limited to water,
sanitary, sewer, gas, electricity, telephone and cable, shall be separated from and shall
not be shared with any other person, party or entity and shall serve only the New
Liquor Store. The move and relocation from the Existing Liquor Store to the New
Liquor Store shall occur and shall be made with no or minimal loss of hours of
operation at the City's York Avenue liquor store.
3. The City shall allow Yorkdale and Yorkdale's agents, access to the
City Parcel without charge and at all reasonable times for the purpose of
environmental investigation and testing of the City Parcel. Yorkdale shall pay all
costs and expenses of such investigation and testing and shall indemnify, defend
and hold harmless the City from and against all costs, expenses and liabilities
relating to Yorkdale's• activities or the activities of Yorkdale's agents, including, but
not limited to attorneys' fees, charges and court costs. Yorkdale shall repair and
restore any damage to the City Parcel caused by or occurring during Yorkdale or
Yorkdale's agents testing and shall return the City Parcel to substantially the same
condition that existed prior to such entry.
-2-
4. The City and Yorkdale agree that the Existing Liquor Store and
the New Liquor Store will be of approximately equal value when developed,
completed and used, pursuant to and in the manner provided in this Agreement.
5. On the Date of Closing, as hereinafter set forth, the City agrees to
convey to Yorkdale fee title to the City Parcel, and Yorkdale agrees to convey to the
City fee title to the New Liquor Store Parcel, subject to and upon the terms and
conditions herein contained. The City shall be entitled to possession of the City
Parcel for up to two (2) days after the Date of Closing to complete the removal,
moving and relocating of the inventory, operations, equipment, fixtures, systems
and other property from the Existing Liquor Store to the New Liquor Store.
6. Subject to postponement pursuant to Paragraph 15 hereof, the
Date of Closing, as used herein, shall be 10:00 o'clock A.M. on a regular business day
designated by the City; provided, however, that to the extent reasonably possible, the
Date of Closing shall be on the date, or the business day immediately proceeding the
date, the New Liquor Store opens for business. The closing of the transactions
described in this Agreement shall occur at the offices of Dorsey & Whitney in
Minneapolis, Minnesota or at such other place agreed upon by the City and
Yorkdale.
7. Prior to the Date of Closing, Yorkdale, at Yorkdale's sole cost and
expense, shall cause to be prepared and recorded in the office of the Hennepin
County Registrar of Titles and, if any portion of the Yorkdale Parcel is not registered
property, in the office of the Hennepin County Recorder, a plat of the Yorkdale
Parcel and the City Parcel. Said plat shall designate the New Liquor Store Parcel as
one complete tract, shall designate the Hirshfield Liquor Store Parcel (as described in
the Relocation and Financial Guaranties Agreement attached hereto as Exhibit E as
one complete tract, shall designate the reminder of the Yorkdale Parcel as one or
more complete tracts and shall be subject to the reasonable approval of the City.
8. On or before the Date of Closing, Yorkdale shall pay all real estate
taxes payable in the year in which the Date of Closing occurs and in all prior years
with respect to the entire tax parcel of which the New Liquor Store Parcel is a part.
In addition, Yorkdale shall pay in full all real estate taxes, if any, payable with respect
to the New Liquor Store Parcel in the year immediately following the year in which
the Date of Closing occurs. Yorkdale shall pay all special assessments levied,
pending or constituting a lien against the New Liquor Store Parcel, including,
without limitation, any installments of special assessments, including interest,
payable with general real estate taxes in the year in which the Date of Closing occurs
exceptAhat the parties hereto hereby agree that $4,000 of the currently pending
special assessments against the Yorkdale Parcel for the York Avenue street_ and
sewer project shall be allocated to the New Liquor Store Parcel and assumed by the
City. The balance of said pending special assessment against the Yorkdale Parcel
-3-
�r
shall be allocated by the City to the remainder of the Yorkdale Parcel other than the
New Liquor Store Parcel. Yorkdale agrees to obtain the consent of all other owners
and any party owning or holding an interest in the Yorkdale Parcel (other than
building tenants) to such allocations. It is the intention of this Agreement that the
City will not pay any real estate taxes with respect to the New Liquor Store Parcel
and that the New Liquor Store Parcel shall not be subject to a lien for any special
assessments that were levied, pending or constituting a lien against the parcel of
which the New Liquor Store Parcel is a part on or prior to the Date of Closing, other
than the $4,000 described above with respect to the currently pending special
assessment for the York Avenue street and sewer project. The City Parcel is and will
be exempt from real estate taxes payable in 1996 and there are no special assessments
levied against the City Parcel. The currently pending special assessment against the
City Parcel for the York Avenue street and sewer project shall be assumed by
Yorkdale. General real estate taxes and installments of special assessments payable
therewith with respect to the City Parcel payable in the year immediately following
the year in which the Date of Closing occurs and all subsequent years shall be paid by
Yorkdale.
9. On the Date of Closing, and on the condition that the City has
then fulfilled its obligations hereunder, Yorkdale shall convey the New Liquor Store
Parcel to the City by Warranty Deed free and clear of all encumbrances, except (a) an
easement in favor of the City for utility and drainage purposes dated August 25,
1965, filed December 30, 1965 as Document No. 834115 and (b) the Reciprocal
Easement Agreement (herein called the "Reciprocal Easement Agreement ") dated of
even date herewith between Yorkdale and the City, and shall execute and /or deliver
to the City the following documents, all in form and content reasonably satisfactory
to the City:
(a) Title Policy. Yorkdale will furnish to the City at closing
the title policy ( "Title Policy ") issued by Title pursuant to
the Title Commitment, or a suitably marked Title
Commitment initialed by Title obligating Title to issue
such a Title Policy in the form required by the Title
Commitment as approved by the City.
(b) Seller's Affidavit. An Affidavit of Title by Yorkdale
indicating that on the Date of Closing there are no
outstanding, unsatisfied judgments, tax liens or
bankruptcies against or involving Yorkdale or the New
Liquor Store Parcel; that there has been no skill, labor or
material furnished to the New Liquor Store Parcel for
which payment has not been_ made or for which
mechanics' liens could be filed; and that there are no
other unrecorded interests in the New Liquor Store
-4-
if
Parcel, together with whatever standard owner's affidavit
and /or indemnity (ALTA Form) which may be required
by Title to issue an Owner's Policy of Title Insurance with
the standard exceptions waived.
(c) FIRPTA Affidavit. A non - foreign affidavit, properly
executed, containing such information as is required by
Internal Revenue Code Section 1445(b)(2) and its
regulations.
(d) Owner's Duplicate Certificates of Title. The owner's
duplicate certificates of title regarding the New Liquor
Store Parcel.
(e) IRS Form. A Designation Agreement designating the
"reporting person" for purposes of completing Internal
Revenue Form 1099 and, if applicable, Internal Revenue
Form 8594.
(f) Well Certificate. A Certificate signed by Yorkdale
warranting that there are no "Wells" on the New Liquor
Store Parcel within the meaning of Minn. Stat. § 103I or if
there are "Wells ", a Well Certificate in the form required
by law.
(g) Su_ r_ey. A survey addressed to the City and Title, certified
to a date not more than ten (10) days prior to the Date of
Closing, prepared by a registered land surveyor and
complying with Minimum Standard Detail Requirements
for ALTA /ACSM Land Title Surveys (Class A Urban)
(1992) including items 1 through 4 and 6 through 13 of
Table 3 thereof and such other information and
containing such other matters as the City may reasonably
request. Said survey may include the entire Yorkdale
Parcel and the City Parcel.
(h) Other Documents. The Termination Agreement, the
Relocation and Financial Guaranties Agreement and all
other documents reasonably determined by the City to be
necessary to transfer the New Liquor Store Parcel to the
City free and clear of all encumbrances.
-5-
e
� r
10. On the Date of Closing, and on the condition that Yorkdale has
then fulfilled its obligations hereunder, the City shall convey the City Parcel to
Yorkdale, subject only to the following:
(a) The Reciprocal Easement Agreement.
(b) A reservation by the City of an easement for utility and
drainage purposes, including sanitary sewer, storm sewer
and water lines as set forth in an Easement dated
August 25, 1965 and filed December 30, 1965 as Document
No. 834115 in the Office of the Registrar of Titles,
Hennepin County, Minnesota.
(c) Restrictions relating to the use and improvement of the
City Parcel as shown in Deed Document No. 995935, filed
with the Registrar of Titles, Hennepin County,
Minnesota.
(d) Subject to Section 8 hereof, real estate taxes and
installments of special assessments payable in the year in
which the Date of Closing occurs and in all subsequent
years.
In addition, on the Date of Closing, and on the condition that Yorkdale
has then fulfilled it's obligations hereunder, the City shall execute and /or deliver to
Yorkdale the following documents, all in form and content reasonably satisfactory to
Yorkdale:
(i) Seller's Affidavit. An Affidavit of Title by the City
indicating that on the Date of Closing there are no
outstanding, unsatisfied judgments, tax liens or
bankruptcies against or involving the City or the City
Parcel; that there has been no skill, labor or material
furnished to the City Parcel for which payment has not
been made or for which mechanics' liens could be filed;
and that there are no other unrecorded interests in the
City Parcel, together with whatever standard owner's
affidavit and /or indemnity (ALTA Form) which may be
required by Title to issue an Owner's Policy of Title
Insurance with the standard exceptions waived.
I Me
I
ii) FIRPTA Affidavit. A non - foreign affidavit, properly
executed, containing such information as is required by
Internal Revenue Code Section 1445(b)(2) and its
regulations.
(iii) Owner's Duplicate Certificates of Title. The owner's
duplicate certificates of title regarding the City Parcel.
(iv) IRS Form. A Designation Agreement designating the
"reporting person" for purposes of completing Internal
Revenue Form 1099 and, if applicable, Internal Revenue
Form 8594.
(v) Well Certificate. A Certificate signed by the City
warranting that there are no "Wells" on the City Parcel
within the meaning of Minn. Stat. § 103I or if there are
"Wells ", a Well Certificate in the form required by law.
(vi) Other Documents. The Termination Agreement, the
Relocation and Financial Guaranties Agreement and all
other documents reasonably determined by Yorkdale to be
necessary to transfer the City Parcel to Yorkdale.
11. On the Date of Closing, the City and Yorkdale shall execute and
deliver to each other (a) an agreement (herein called the "Termination Agreement ")
in form and substance mutually acceptable to Yorkdale and the City terminating the
Easement and Agreement between Northwestern National Life Insurance
Company, the City and Titus, Inc. dated January 4, 1972 and filed with the Registrar
of Titles, Hennepin County, Minnesota on March 9, 1972 as Document No. 1024734
and (b) the Relocation And Financial Guaranties Agreement (herein called the
"Relocation and Financial Guaranties Agreement ") attached hereto as Exhibit E and
made a part hereof. Prior to the Date of Closing, Yorkdale shall obtain the written
consent to such Termination Agreement and to such Relocation And Financial
Guaranties Agreement by First Bank National Association and any other person,
party or entity owning or holding an interest in or lien on the Yorkdale Parcel;
provided, however, that no such person, party or entity shall have any liability
under Section 1 of the Relocation and Financial Guaranties Agreement. If such
consents have not been obtained by the Date of Closing, designated by the City
pursuant to Section 6 hereof, said Date of Closing shall be postponed for up to one
hundred twenty (120) days. If such consents are not obtained within said one
hundred twenty (120) day period, then the City shall have the option to declare this
Agreement terminated, whereupon this Agreement shall be null and void and no
party hereto shall be liable to any other party for any performance or damages in
connection therewith.
-7-
12. All costs of operating the City Parcel will be allocated between
the City and Yorkdale as of the Date of Closing so that the City pays that part of such
operating cost attributable to the period of time prior to the Date of Closing and
Yorkdale pays that part of such operating costs attributable to the period of time on
and after the Date of Closing. All operating costs of the New Liquor Store Parcel will
be allocated between the City and Yorkdale as of the Date of Closing so that Yorkdale
pays that part of such operating costs attributable to the period before the Date of
Closing and the City pays that part of operating costs attributable to the period on
and after the Date of Closing.
13. Yorkdale warrants and represents to the City as follows:
(a) Yorkdale is duly formed and is in good standing under
the laws of the State of Minnesota; Yorkdale has the
requisite power and authority to enter into and perform
this Agreement and those documents to be signed by
Yorkdale as provided in this Agreement; this Agreement
and such other documents have been duly authorized by
all necessary action on the part of Yorkdale; the execution
and delivery of this Agreement and all documents to be
executed and delivered by Yorkdale pursuant to this
Agreement and the performance by Yorkdale of such
documents does not and will not conflict with or result in
the violation of the documents forming and governing
Yorkdale or any judgment, order or decree of any court or
arbitrator to which Yorkdale is a party; and this
Agreement and such documents are valid and binding
obligations of Yorkdale and are enforceable in accordance
with their terms.
(b) To the best of Yorkdale's knowledge, no toxic or
hazardous substances or wastes, pollutants or
contaminants (including, without limitation, asbestos,
urea formaldehyde, the group of organic compounds
known as polychlorinated biphenyls, petroleum products
including gasoline, fuel oil, crude oil and various
constituents of such products, and any hazardous
substance as defined in any Environmental Law
(collectively, "Hazardous Substances ") have been
generated, treated, stored, transferred from, released or
disposed of, or otherwise placed, deposited in or_ located
on the Yorkdale Parcel in violation of any Environmental
Law, nor has any activity been undertaken on the
Yorkdale Parcel that would cause or contribute to the
Yorkdale Parcel becoming a treatment, storage or disposal
facility within the meaning of any Environmental Law.
The term "Environmental Law" shall mean any and all
federal, state and local laws, statutes, codes, ordinances,
regulations, rules, policies, consent decrees, judicial
orders, administrative orders or other requirements
relating to the environment or to human health or safety
associated with the environment, all as amended or
modified from time to time. To the best of Yorkdale's
knowledge there has been no discharge, release or
threatened release of Hazardous Substances from the
Yorkdale Parcel, and there are no Hazardous Substances
or conditions in or on the Yorkdale Parcel that may
support a claim or cause of action under any
Environmental Law. The Yorkdale Parcel is not now, and
to the best of Yorkdale's knowledge never has been, listed
on any list of sites contaminated with Hazardous
Substances, nor used as landfill, dump, disposal or storage
site for Hazardous Substances. Wherever in this
Section 13(b) a representation is made "to the best of
Yorkdale's knowledge ", such representation is based upon
the Phase I Environmental Site Assessment described in
Section 15(c) of this Agreement.
(c) FIRPTA. Yorkdale is not a "foreign person ", "foreign
partnership ", "foreign trust" or "foreign estate" as those
terms are defined in Section 1445 of the Internal Revenue
Code.
(d) Wells. Yorkdale certifies and warrants that Yorkdale does
not know of any "Wells" on the New Liquor Store Parcel
within the meaning of Minn. Stat. § 103I. This
representation is intended to satisfy the requirements of
that statute.
(e) Storage Tanks. To the best knowledge of Yorkdale after
due inquiry, no above ground or underground tanks, are
located in or about the New Liquor Store Parcel, or have
been located under, in or about the New Liquor Store
Parcel and have subsequently been removed or filled.
(f) Reports. Yorkdale has delivered to the City copies of all
environmental reports and studies relating to the New
Liquor Store Parcel which are in the possession of
Yorkdale.
(g) Individual Sewage Treatment Systems. Solely for
purposes of satisfying the requirements of Minn. Stat.
§115.55 Yorkdale represents that there is no "individual
sewage treatment system" (within the meaning of that
statute) on or serving the New Liquor Store Parcel.
(h) All restrictions relating to use and improvement of the
Yorkdale Parcel have been canceled and terminated and
are no longer an encumbrance against the Yorkdale
Parcel.
(i) New Liquor Store. On the Date of Closing the New
Liquor Store will be in full and complete compliance With
all of the terms, covenants, restrictions and provisions of
the Reciprocal Easement Agreement attached hereto as
Exhibit E and there shall be no breaches or defaults
thereunder by the Owner (as defined therein) of the New
Liquor Store Parcel.
Yorkdale will indemnify, defend, hold harmless the City from and against all costs,
expenses, liabilities, damages losses, including attorneys' fees, charges and court costs
that the City incurs because of the breach of any of the above representations and
warranties whether such breach is discovered before or after closing.
Consummation of this Agreement by the City with knowledge of any breach by
Yorkdale will not constitute a waiver or release by the City of any claims due to such
breach.
14. Yorkdale is acquiring the City Parcel based upon its own
investigation and inquiry and is not relying on any representation of the City or any
other person and is agreeing to accept and acquire the City Parcel "as is, where is ",
except for the express warranties contained in the Warranty Deed covering the City
Parcel to be delivered by the City to Yorkdale. The City hereby discloses to Yorkdale
and all of the City's warranties and representations set forth in this Agreement shall
be subject to the City's understanding that there is asbestos in the building
constructed on the City Parcel.
The City warrants and represents to Yorkdale as follows:
(a) The.City.is_a duly formed, municipal corporation and is in
good standing under the laws of the State of Minnesota;
The City has the requisite power and authority to enter
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into and perform this Agreement and those documents to
be signed by the City as provided in this Agreement; this
Agreement and such other documents have been duly
authorized by all necessary action on the part of the City;
the execution and delivery of this Agreement and all
documents to be executed and delivered by the City
pursuant to this Agreement and the performance by the
City of such documents does not and will not conflict
with or result in the violation of the documents forming
and governing the City or any judgment, order or decree
of any court or arbitrator to which the City is a party; and
this Agreement and such documents are valid and
binding obligations of the City and are enforceable in
accordance with their terms.
(b) FIRPTA. The City is not a "foreign person ", "foreign
partnership ", "foreign trust" or "foreign estate" as those
terms are defined in Section 1445 of the Internal Revenue
Code.
(c) Wells. The City certifies and warrants that the City does
not know of any "Wells" on the City Parcel within the
meaning of Minn. Stat. § 103I. This representation is
intended to satisfy the requirements of that statute.
(d) Storage Tanks. To the best knowledge of the City after
due inquiry, no above ground or underground tanks, are
located in or about the City Parcel, or have been located
under, in or about the City Parcel and have subsequently
been removed or filled.
(e) Reports. The City has delivered to Buyer copies of all
environmental reports and studies relating to the City
Parcel which are in the possession of the City.
(f) Individual Sewage Treatment Systems. Solely for
purposes of satisfying the requirements of Minn. Stat.
§115.55 the City represents that there is no "individual
sewage treatment system" (within the meaning of that
statute) on or serving the City Parcel.
The City will indemnify, defend, hold harmless Yorkdale from and
against all costs, expenses, liabilities, damages losses, including attorneys' fees,
charges and court costs that Yorkdale incurs because of the breach of any of the
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above representations and warranties whether such breach is discovered before or
after closing. Consummation of this Agreement by Yorkdale with knowledge of
any breach by the City will not constitute a waiver or release by Yorkdale of any
claims due to such breach.
15. As soon as possible after execution hereof, Yorkdale shall
furnish the City with (a) a Title Insurance Commitment ( "Title Commitment ") for
an ALTA Form B 1990 Owner's Policy of Title Insurance insuring title to the New
Liquor Store Parcel, deleting standard exceptions and including affirmative
insurance regarding contiguity, appurtenant easements and such other matters as
may be identified by the City, in the amount of the fair market value, as reasonably
determined by the City, of the New Liquor Store Parcel and all fixtures, buildings
and improvements located thereon or a part thereof, issued by Chicago Title
Insurance Company ( "Title "), (b) a survey prepared by a registered land surveyor
and complying with Minimum Standard Detail Requirements for ALTA /ACSM
Land Title Surveys (Class A Urban) (1992) including items 1 through 4 and 6
through 13 of Table 3 thereof and such other information and containing such other
matters as the City may reasonably request, and (c) a Phase I Environmental Site
Assessment addressed to the City, dated near the date of this Agreement, prepared by
Nova and in form and content satisfactory in all respects to the City.
The City and Yorkdale shall be allowed twenty (20) days after receipt of the Title
Commitment and the above - described survey for purposes of examination of title
and the making of any objections thereto, said objections to be made in writing or
deemed to be waived. If any objections are so made, Yorkdale shall be allowed one
hundred twenty (120) days to make such title marketable. Pending correction of title
the Date of Closing shall be postponed, but upon correction of title, and within ten
(10) days after written notice, the parties shall perform this Agreement according to
its terms. Yorkdale represents and agrees that it will use its best efforts to provide
good and marketable title to the New Liquor Store Parcel. If title to the New Liquor
Store Parcel is not marketable, or is not made so within said one hundred twenty
(120) day period, then the City shall have the election either to (i) declare this
Agreement terminated, whereupon this Agreement shall be null and void and no
party hereto shall be liable to any other party for any performance or damages in
connection herewith, or (ii) waive any such objections and proceed to close
pursuant to this Agreement. Such election shall be made by written notice to
Yorkdale given within ten (10) days after the end of said one hundred twenty (120)
day period, and if no such notice be given, option (i) shall be deemed to have been
elected.
If such Phase I Environmental Site Assessment reveals, discusses or
contains any reference to the possibility of any toxic or hazardous substance, waste,
pollutant or contaminant (including, without limitation, asbestos, urea
formaldehyde, the group of organic compounds known as polychlorinated
biphenyls, petroleum products including gasoline, fuel oil, crude oil and various
-12-
constituents of such products (herein collectively referred to as "Hazardous
Substances ")), being released, disposed of, or otherwise placed, deposited in or
located on the New Liquor Store Parcel, including but not limited to any ground
water located on, under or flowing through or across the New Liquor Store Parcel,
the City shall have the option to declare this Agreement terminated, whereupon
this Agreement shall be null and void and no party hereto shall be liable to any
other party for any performance of damages or the City shall have the right to
require Yorkdale, at Yorkdale's sole cost and expense, to undertake and obtain any
and all additional tests, studies, investigations or other work or activities
recommended by such Phase I Environmental Site Assessment as reasonably
required by the City. Unless such tests, studies, investigations or other information
establishes to the sole and exclusive satisfaction of the City that there are no
Hazardous Substances in, on or under the New Liquor Store Parcel, including any
ground water located on, under or flowing through or across the New Liquor Store
Parcel, the City shall have the option to declare this Agreement terminated,
whereupon this Agreement shall be null and void and no party hereto shall be
liable to any other party for any performance or damages.
In addition, Yorkdale shall deliver to the City evidence satisfactory to
the City that Yorkdale owns the fee simple title to the Yorkdale Parcel and the
names of all persons, parties or entities owning or holding any right, title or interest
therein or lien or other encumbrance thereon. The City shall have the right to
require that all such persons, parties or entities (other than building tenants) become
a party to or consent to the Reciprocal Easement Agreement attached hereto as
Exhibit E and the Relocation And Financial Guaranties Agreement attached hereto
as Exhibit E; provided, however, that no such person, party or entity shall have any
liability under Section 1 of the Relocation and Financial Guaranties Agreement.
The City hereby acknowledges that (a) the City has approved the title to
the New Liquor Store Parcel as shown by the Title Commitment and (b) the Phase I
Environmental Site Assessment for the New Liquor Store Parcel (as described on
Exhibit F attached hereto and hereby made a part hereof), so that the City has no
further right to terminate this Agreement under this Paragraph 15, unless the status
of title to, or the environmental condition of, the New Liquor Store Parcel changes
prior to the Date of Closing.
16. Any notice or demand permitted or required to be given or
made pursuant to this Agreement shall be deemed given or made when delivered
personally or when deposited in the United States mail, registered or certified mail,
postage prepaid and addressed as follows:
If to the City: City of Edina
4801 West 50th Street
Edina, MN 55424 -1394
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If to Yorkdale: Yorkdale Shoppes Partners, LLC
c/o Jerry's Enterprises, Inc.
5101 Vernon Avenue
Edina, Minnesota 55436
With a copy to: DJD Partners V, LLC
John Johannson
8200 Normandale Boulevard
Suite 200
Bloomington, Minnesota 55437
With a copy to: First Bank National Association
First Bank Place - MPFP0802
601 Second Avenue South
Minneapolis, MN 55402
Attention: Real Estate Banking
Division Head
17. Each party hereto warrants that it has not incurred any real estate
brokerage fees, finders' fees, loan brokerage fees, or any other fees to any party in
connection with the exchange contemplated by this Agreement. In the event any
party institutes a legal action in an effort to recover such fees, the parties jointly
shall defend such action. If a judgment is obtained, the party or parties responsible
for breach of this warranty shall reimburse the other party or parties for their
attorneys' fees, court costs and shares of the judgment.
18. , The terms, conditions and covenants hereof shall extend to, be
binding upon and inure to the benefit of the successors and assigns of the parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have caused these
presents to be duly executed as of the day and year first above written.
YORKDALE SHOPPES PARTNERS,
LLC
By:
Its:
CITY OF EDINA
r
'Maxi#V
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EXHIBIT A
The Westerly 270 feet of the following described parcel:
All that part of Tract F, Registered Land Survey No. 629, Files of Registrar of Titles,
County of Hennepin lying South of a line drawn parallel with and 40 feet South of
as measured at right angles to the South line of vacated West 68th Street as
dedicated in the plat of "York Terrace" and its Westerly extension and lying
Northerly of a line drawn parallel with and 140 feet South of as measured at right
angles to said South line of vacated West 68th Street and its Westerly extension.
EXHIBIT B
Legal Description:
Tract 1:
Lots 5, 6, 7 and 8, Block 2, York Terrace, according to the recorded plat thereof,
Hennepin County, Minnesota.
Torrens Property
Torrens Certificate Nos. 701011 (Lot 5), 779186 (Lot 6), 591119 (Lot 7) and 818773 (Lot
8)
Tract 2:
Parcel 1:
That part of Tract F, Registered Land Survey No. 629, Files of Registrar of
Titles, County of Hennepin lying South of a line drawn parallel to and 140
feet South of and measured at right angles to the South line of vacated West
68th Street dedicated in the plat of "York Terrace" and its Westerly extension
except that part thereof lying South of a line drawn parallel to the South line
of said Tract F and distant 220 feet North of the South line of said Tract F as
measured at right angles to said South line.
Hennepin County, Minnesota
Torrens Property
Torrens Certificate No. 547355
Parcel 2:
All that part of Tract F, Registered Land Survey No. 629, Files of Registrar of
Titles, County of Hennepin lying South of a line drawn parallel with and 40
feet South of as measured at right angles to the South line of vacated West
68th Street as dedicated in the plat of "York Terrace" and its Westerly
extension and lying Northerly of a line drawn parallel with and 140 feet
South of as measured at right angles to said South line of vacated West 68th
Street and its Westerly extension except the Westerly 270 feet thereof.
Hennepin County, Minnesota
Torrens Property
Torrens Certificate No. 547354
Tract 3:
Parcel 1:
All of vacated West 68th Street dedicated in the plat of "York Terrace ", lying
between the extensions across it of the East line of Lot 8, Block 2, "York
Terrace" and the West line of Tract P, Registered Land Survey No. 432, Files
of the Registrar of Titles, County of Hennepin.
That part of said Tract P, Registered Land Survey No. 432, Files of Registrar of
Titles, County of Hennepin and that part of Tract F, Registered Land Survey
No. 629, Files of Registrar of Titles, County of Hennepin and that part of
vacated York Avenue South dedicated in the plat of "York Terrace ", all lying
North of the South line of said vacated West 68th Street and its Westerly
extension and all lying South of the following described line: Beginning at
the Northwest corner of Lot 5, Block 2, "York Terrace ", thence running
Westerly parallel with said South line of vacated West 68th Street and its
Westerly extension to a point in the Westerly line of said Tract F, and there
terminating.
Parcel 2:
That part of Tract F, Registered Land Survey No. 629, Files of Registrar of
Titles, County of Hennepin lying South of the South line of vacated West
68th Street dedicated in the plat of "York Terrace ", and its Westerly extension
and North of a line drawn parallel to and 40 feet South of and measured at
right angles to, the said South line of said vacated West 68th Street and its
Westerly extension.
Torrens Property
Torrens Certificate No. 622109
EXHIBIT C
Site Plan
YORK
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EXHIBIT D
Costs to be reimbursed by the City:
1. Fourth checkout lane and the cash register equipment associated
2. Phone System
1 40% of the cost of a new cooler, including the cost of 8 new doors and racks
4. Security camera system
5. Costs of additional shelving beyond current lineal footage
6. New laydown wine racks
7. Costs of adding a second wall sign to the exterior of the building
8. New shopping carts and baskets
9. Cost of modification to ventilation system for back office
10. Costs of additional internal store signage beyond current configuration
11. Flooring upgrades to tile or mat in place of carpet
EXHIBIT E
RELOCATION
AND
FINANCIAL GUARANTIES
AGREEMENT
THIS AGREEMENT, made and entered into this day of June,
1996, by and among JERRY'S ENTERPRISES, INC. a Minnesota corporation,
(hereinafter called "Jerry's "), YORKDALE SHOPPES PARTNERS, LLC, a Minnesota
limited liability company, (hereinafter. called "Yorkdale "), and the CITY OF EDINA,
a Minnesota municipal corporation (hereinafter called the "City ").
WITNESSETH, THAT:
WHEREAS, pursuant to and in accordance with the terms of a Real
Estate Exchange Agreement (the "Exchange Agreement ") dated
1996, the City conveyed to Yorkdale a certain parcel of real property located in the
City of Edina, Hennepin County, Minnesota described on Exhibit A attached hereto
and made a part hereof (herein referred to as the "Old Liquor Store Parcel ") and
Yorkdale has conveyed to the City a certain parcel of real property located in the City
of Edina, Hennepin County, Minnesota described on Exhibit B attached hereto and
made a part hereof (herein referred to as the "CUB Liquor Store Parcel "); and
WHEREAS, as an inducement for the City to enter into the Exchange
Agreement and to consummate the transactions provided for therein, Yorkdale is
willing to grant the City an option to relocate the City's York Avenue liquor store
now or soon to be located on the CUB Liquor Store Parcel to the parcel of real
property located in the City of Edina, Hennepin County, Minnesota described on
Exhibit C attached hereto and made a part hereof (herein referred to as the
"Hirshfield Liquor Store Parcel ") and to grant and give to the City certain financial
guarantees concerning the amount of gross sales at the City's York Avenue liquor
store located on the CUB Liquor Store Parcel.
NOW, THEREFORE, in consideration of the above premises, the
covenants and agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which consideration is hereby
acknowledged by the parties hereto, the parties hereto hereby agree as follows:
1. If the Gross Sales at the City's liquor store located on the CUB
Liquor Store Parcel in 1997, and in any subsequent calendar year to and including
the earlier of (a) the calendar year in which the City opens a liquor store on the
1-
Hirshfield Liquor Store Parcel to the public for business or (b) 2002, are less than the
Imputed Gross Sales applicable to such calendar year as set forth on Exhibit D
attached hereto and made a part hereof (such difference being herein referred to as
the "Gross Sales Deficit "), Jerry's and Yorkdale jointly and severally agree to pay to
the City immediately upon the demand an amount equal to the Gross Sales Deficit
multiplied by ten percent (10 %); provided, however, that if the City's liquor store is
relocated from the CUB Liquor Store Parcel to Hirshfield Liquor Store Parcel, the
Imputed Gross Sales for such calendar year shall be pro rated based upon the
number of days in such calendar year that have elapsed prior to the closing for
business of the City's liquor store located on the CUB Liquor Store Parcel; and
provided further, however, that the terms, covenants and provisions of this
Section 1 shall terminate and be of no further force and effect if a liquor store (as
hereinafter defined in this Section 1) is located within one -half mile of the CUB
Liquor Store Parcel or if the City sells the liquor store located on the CUB Liquor
Store Parcel to a private party. For purposes of the foregoing proviso, a "liquor
store" is defined as a store (whether municipally or privately owned) that sells
distilled spirits in addition to wine and beer. The City covenants it will operate the
City's liquor store located on the CUB Liquor Store Parcel in substantially the same
manner as the City's liquor store located as of the date of this Agreement at
5013 Vernon Avenue, Edina, Minnesota (herein referred to as the "Vernon Avenue
Liquor Store "). In the event grocery stores are authorized by law to sell wine, and
the store located on Lot 2, Block 1, Yorkdale Shoppes, Hennepin County, Minnesota
does not sell wine, the wine component of the Imputed Gross Sales set forth on the
attached Exhibit D shall be reduced by an amount equal to such wine component
multiplied by the percentage, if any, that the wine sales at the City's Vernon Avenue
Liquor Store declined during the first full calendar year after the effective date of
such law.
For purposes of this Agreement, the term "Gross Sales" is hereby
defined to mean the aggregate dollar amount of all sales from all business conducted
upon or from the liquor store located on the CUB Liquor Store Parcel, whether such
sales be evidenced by cash, check, charge, credit or otherwise. Gross Sales shall be
reduced by sales for which cash has been refunded, or allowances made on items
claimed to be defective or unsatisfactory, provided such sale or item shall have been
included in Gross Sales when originally sold; and there shall be deducted from
Gross Sales the sale price of an item returned by customers for exchange provided
such item shall have been included in Gross Sales when originally sold and that the
sales price of such item delivered to the customer in exchange shall have been
included in Gross Sales. Gross Sales shall not include the sales price of goods
transferred by the City to another store or returned to suppliers or manufacturers.
Gross Sales shall not include the amount of any sales, use or gross receipts tax
imposed by, any, federal, state, municipal or governmental authority directly on sales
and collected from customers, provided that the amount thereof is paid to such
governmental authority.
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2. The City is hereby granted the right and option (herein referred
to as the "Option "), exercisable in the City's sole and absolute discretion, to relocate
the City's liquor store now or soon to be located on the CUB Liquor Store Parcel to
the Hirshfield Liquor Store Parcel. (The City's liquor store located on the Hirshfield
Liquor Store Parcel is herein referred to as the "New Liquor Store" and the City's
liquor store located in the CUB Liquor Store Parcel is herein referred to as the
"Existing Liquor Store "). This Option shall be exercised, if at all, by the City giving
notice to Yorkdale exercising this Option on or before April 30, 2002 (the "Exercise
Date "). If the City shall fail to exercise the Option as herein provided, than the
Option shall terminate.
3. If the City exercises the Option and upon the earlier of (a) the
expiration or termination of the lease in effect as of the date of this Agreement
covering the Hirshfield Liquor Store Parcel or (b) December 1, 2002, Yorkdale shall
promptly commence the design of the New Liquor Store and shall diligently,
continuously and expeditiously pursue and complete the design and construction of
the New Liquor Store so that the City can relocate its York Avenue liquor store from
the CUB Liquor Store Parcel to the Hirshfield Liquor Store Parcel as soon as
reasonably possible after the City exercises the Option. Yorkdale shall pay or
reimburse the City for all direct and out -of- pocket costs and expenses associated with
the design and construction of the New Liquor Store and the documents and
transactions described or referred herein, including the transfer of the CUB Liquor
Store Parcel and the state deed tax due in connection with such transfer, the
removal, moving, relocating and installing of the inventory, operations,
equipment, fixtures, systems, and other property from the Existing Liquor Store to
and in the New Liquor Store, and the acquisition and installation of fixtures, signage
and all other equipment and items necessary to operate the New Liquor Store, and
all other direct and out -of- pocket costs associated with the New Liquor Store and the
transfer of the Existing Liquor Store, including but not limited to all surveying and
planning costs, attorneys' fees and charges, recording fees, state deed tax, the cost of
the Registered Property Abstract and any other documents or information the City is
obligated to furnish or provide under this Agreement, the Title Policy (as defined in
Section 8 (a) hereof), the costs of soil and environmental tests, studies, reports or
other investigations and all architects, engineers and consultants fees and charges.
The City shall have the right (but not the obligation) to remove from the Existing
Liquor Store all inventory, operations, equipment, fixtures, systems and other
property; provided, however, that to the extent feasible fixtures and systems will be
relocated from the Existing Liquor Store to the New Liquor Store and the City and
Yorkdale shall mutually agree on the fixtures and systems of the Existing Liquor
Store to be relocated to and installed in the New Liquor Store. All private or lateral
utility lines and other private utility systems and services located within the
Building Envelope (as said term is used and defined in the Reciprocal Easement
Agreement dated of even date herewith and referenced on the attached Exhibits E
-3-
and F) applicable to the Hirshfield Liquor Store Parcel, including, but not limited to
water, sanitary, sewer, gas, electricity, telephone and cable, shall be separated from
and shall not be shared with any other person, party or entity and shall serve only
the New Liquor Store. The move and relocation from the Existing Liquor Store to
the New Liquor Store shall occur and shall be made with no or minimal loss of
hours of operation at the City's York Avenue liquor store.
4. The City and Yorkdale agree that the Existing Liquor Store and
the New Liquor Store will be of approximately equal value when developed,
completed and used, pursuant to and in the manner provided in this Agreement.
5. On the Date of Closing, as hereinafter set forth, the City agrees to
convey to Yorkdale fee title to the CUB Liquor Store Parcel, and Yorkdale agrees to
convey to the City fee title to the Hirshfield Liquor Store Parcel, subject to and upon
the terms and conditions herein contained. The City shall be entitled to possession
of the CUB Liquor Store Parcel for up to two (2) days after the Date of Closing to
complete the removal, moving and relocating of the inventory, operations,
equipment, fixtures, systems and other property from the Existing Liquor Store to
the New Liquor Store.
6. Subject to postponement pursuant to Paragraph 14 hereof, the
Date of Closing, as used herein, shall be 10:00 o'clock A.M. on a regular business day
designated by the City; provided, however, that the Date of Closing shall not be
earlier than December 1, 2002 and to the extent reasonably possible, the Date of
Closing shall be on the date, or the business day immediately proceeding the date,
the New Liquor Store opens for business. The closing of the transactions described
in this Agreement shall occur at the offices of Dorsey & Whitney in Minneapolis,
Minnesota or at such other place agreed upon by the City and Yorkdale.
7. On or before the Date of Closing, Yorkdale shall pay all real estate
taxes payable in the year in which the Date of Closing occurs and in all prior years
with respect to the entire tax parcel of which the Hirshfield Liquor Store Parcel is a
part. In addition, Yorkdale shall pay in full all real estate taxes, if any, payable with
respect to the Hirshfield Liquor Store Parcel in the year immediately following the
year in which the Date of Closing occurs. Yorkdale shall pay all special assessments
levied, pending or constituting a lien against the Hirshfield Liquor Store Parcel,
including, without limitation, any installments of special assessments, including
interest, payable with general real estate taxes in the year in which the Date of
Closing occurs except-that the parties hereto hereby agree that the amount of special
assessments levied, pending or constituting a lien against the Hirshfield Liquor
Store Parcel or allocated to the Hirshfield Liquor Store Parcel equal to the amount, if
any, of the special assessments levied, pending or constituting a lien against the
CUB Liquor Store Parcel shall be assumed by the City. Yorkdale agrees to obtain the
consent of all other owners and any party owning or holding an interest in the
ME
parcel of which the Hirshfield Liquor Store Parcel is a part to such allocations. It is
the intention of this Agreement that the City will not pay any real estate taxes with
respect to the Hirshfield Liquor Store Parcel and that the Hirshfield Liquor Store
Parcel shall not be subject to a lien for any special assessments that were levied,
pending or constituting a lien against the Hirshfield Liquor Store Parcel or the parcel
of which the Hirshfield Liquor Store Parcel is a part on or prior to the Date of
Closing, other than as above described. The special assessment against the CUB
Liquor Store Parcel for the York Avenue street and sewer project, if any, shall be
assumed by Yorkdale. General real estate taxes and installments of special
assessments payable therewith with respect to the CUB Liquor Store Parcel payable
in the year immediately following the year in which the Date of Closing occurs and
all subsequent years shall be paid by Yorkdale.
8. On the Date of Closing, and on the condition that the City has
then fulfilled its obligations hereunder, Yorkdale shall convey the Hirshfield Liquor
Store Parcel to the City by Warranty Deed free and clear of all encumbrances except
those set forth on Exhibit E attached hereto and made a part hereof and shall execute
and /or deliver to the City the following documents, all in form and content
reasonably satisfactory to the City:
(a) Title Policy. Yorkdale will furnish to the City at closing
the title policy ( "Title Policy ") issued by Title pursuant to
the Title Commitment, or a suitably marked Title
Commitment initialed by Title obligating Title to issue
such a Title Policy in the form required by the Title
Commitment as approved by the City.
(b) Seller's Affidavit. An Affidavit of Title by Yorkdale
indicating that on the Date of Closing there are no
outstanding, unsatisfied judgments, tax liens or
bankruptcies against or involving Yorkdale or the
Hirshfield Liquor Store Parcel; that there has been no skill,
labor or material furnished to the Hirshfield Liquor Store
Parcel for which payment has not been made or for which
mechanics' liens could be filed; and that there are no
other unrecorded interests in the Hirshfield Liquor Store
Parcel, together with whatever standard owner's affidavit
and /or indemnity (ALTA Form) which may be required
by Title to issue an Owner's Policy of Title Insurance with
the standard exceptions waived.
(c) FIRPTA Affidavit. A non - foreign affidavit, properly
executed, containing such information as is required by
-5-
Internal Revenue Code Section 1445(b)(2) and its regulations.
(d) Owner's Duplicate Certificates of Title. The owner's
duplicate certificates of title regarding the Hirshfield
Liquor Store Parcel.
(e) IRS Form. A Designation Agreement designating the
"reporting person" for purposes of completing Internal
Revenue Form 1099 and, if applicable, Internal Revenue
Form 8594.
(f) Well Certificate. A Certificate signed by Yorkdale
warranting that there are no "Wells" on the Hirshfield
Liquor Store Parcel within the meaning of Minn. Stat.
§ 103I or if there are "Wells ", a Well Certificate in the
form required by law.
(g) Survey. A survey addressed to the City and Title, certified
to a date not more than ten (10) days prior to the Date of
Closing, prepared by a registered land surveyor and
complying with Minimum Standard Detail Requirements
for ALTA /ACSM Land Title Surveys (Class A Urban)
(1992) including items 1 through 4 and 6 through 13 of
Table 3 thereof and such other information and
containing such other matters as the City may reasonably
request. Said survey may include property other than the
Hirshfield Liquor Store Parcel.
(h) Other Documents. All other documents reasonably
determined by the City to be necessary to transfer the
Hirshfield Liquor Store Parcel to the City free and clear of
all encumbrances except those set forth on the attached
Exhibit E.
9. On the Date of Closing, and on the condition that Yorkdale has
then fulfilled its obligations hereunder, the City shall convey the CUB Liquor Store
Parcel to Yorkdale, free and clear of all encumbrances except those set forth on
Exhibit F attached hereto and made a part hereof.
In addition, on the Date of Closing, and on the condition that Yorkdale has then
fulfilled it's obligations hereunder, the City shall execute and /or deliver to Yorkdale
the following documents, all in form and content reasonably satisfactory to
Yorkdale:
(i) Seller's Affidavit. An Affidavit of Title by the City
indicating that on the Date of Closing there are no
outstanding, unsatisfied judgments, tax liens or
bankruptcies against or involving the City or the CUB
Liquor Store Parcel; that there has been no skill, labor or
material furnished to the CUB Liquor Store Parcel for
which payment has not been made or for which
mechanics' liens could be filed; and that there are no
other unrecorded interests in the CUB Liquor Store Parcel,
together with whatever standard owner's affidavit and /or
indemnity (ALTA Form) which may be required by Title
to issue an Owner's Policy of Title Insurance with the
standard exceptions waived.
(ii) FIRPTA Affidavit. A non - foreign affidavit, properly
executed, containing such information as is required by
Internal Revenue Code Section 1445(b)(2) and its
regulations.
(iii) Owner's Duplicate Certificates of Title. The owner's
duplicate certificates of title regarding the CUB Liquor
Store Parcel.
(iv) IRS Form. A Designation Agreement designating the
"reporting person" for purposes of completing Internal
Revenue Form 1099 and, if applicable, Internal Revenue
Form 8594.
(v) Well Certificate. A Certificate signed by the City
warranting that there are no "Wells" on the CUB Liquor
Store Parcel within the meaning of Minn. Stat. § 103I or if
there are "Wells ", a Well Certificate in the form required
by law.
(vi) Other Documents. All other documents reasonably
determined by Yorkdale to be necessary to transfer the
CUB Liquor Store Parcel to Yorkdale.
10. All costs of operating the CUB Liquor Store Parcel will be
allocated between the City and Yorkdale as of the Date of Closing so that the City
pays that part of such operating cost attributable to the period of time prior to the
Date of Closing and Yorkdale pays that part of such operating. costs attributable to the
period of time on and after the Date of Closing. All operating costs of the Hirshfield
Liquor Store Parcel will be allocated between the City and Yorkdale as of the Date of
-7-
Closing so that Yorkdale pays that part of such operating costs attributable to the
period before the Date of Closing and the City pays that part of operating costs
attributable to the period on and after the Date of Closing.
11. Jerry's warrants and represents to the City that Jerry's is duly
incorporated and is in good standing under the laws of the State of Minnesota;
Jerry's has the requisite power and authority to enter into and perform this
Agreement; this Agreement has been duly authorized by all necessary action on the
part of Jerry's; the execution, delivery and performance of this Agreement does not
and will not conflict with or result in the violation of its Articles of Incorporation or
By -Laws or any judgment, order or decree of any court or arbitrator to which Jerry's
is a party; and this Agreement is a valid and binding obligation of Jerry's and is
enforceable in accordance with its terms.
12. Yorkdale warrants and represents to the City as follows:
(a) Yorkdale is duly formed and is in good standing under the
laws of the State of Minnesota; Yorkdale has the requisite
power and authority to enter into and perform this
Agreement and those documents to be signed by Yorkdale
as provided in this Agreement; this Agreement and such
other documents have been duly authorized by all
necessary action on the part of Yorkdale; the execution
and delivery of this Agreement and all documents to be
executed and delivered by Yorkdale pursuant to this
Agreement and the performance by Yorkdale of such
documents does not and will not conflict with or result in
the violation of the documents forming and governing
Yorkdale or any judgment, order or decree of any court or
arbitrator to which Yorkdale is a party; and this
Agreement and such documents are valid and binding
obligations of Yorkdale and are enforceable in accordance
with their terms.
(b) To the best of Yorkdale's knowledge, no toxic or
hazardous substances or wastes, pollutants or
contaminants (including, without limitation, asbestos,
urea formaldehyde, the group of organic compounds
known as polychlorinated biphenyls, petroleum products
including gasoline, fuel oil, crude oil and various
constituents of such products, and any hazardous
substance as defined in any Environmental Law
(collectively, "Hazardous Substances ") have been
WIN
generated, treated, stored, transferred from, released or
disposed of, or otherwise placed, deposited in or located
on the Hirshfield Liquor Store Parcel in violation of any
Environmental Law, nor has any activity been
undertaken on the Hirshfield Liquor Store Parcel that
would cause or contribute to the Hirshfield Liquor Store
Parcel becoming a treatment, storage or disposal facility
within the meaning of any Environmental Law. The term
"Environmental Law" shall mean any and all federal,
state and local laws, statutes, codes, ordinances,
regulations, rules, policies, consent decrees, judicial
orders, administrative orders or other requirements
relating to the environment or to human health or safety
associated with the environment, all as amended or
modified from time to time. To the best of Yorkdale's
knowledge there has been no discharge, release or
threatened release of Hazardous Substances from the
Hirshfield Liquor Store Parcel, and there are no
Hazardous Substances or conditions in or on the
Hirshfield Liquor Store Parcel that may support a claim or
cause of action under any Environmental Law. The
Hirshfield Liquor Store Parcel is not now, and to the best
of Yorkdale's knowledge never has been, listed on any list
of sites contaminated with Hazardous Substances, nor
used as landfill, dump, disposal or storage site for
Hazardous Substances.
(c) FIRPTA. Yorkdale is not a "foreign person ", "foreign
partnership ", "foreign trust" or "foreign estate" as those
terms are defined in Section 1445 of the Internal Revenue
Code.
(d) Wells. Yorkdale certifies and warrants that Yorkdale does
not know of any "Wells" on the described Hirshfield
Liquor Store Parcel within the meaning of Minn. Stat.
§ 103I. This representation is intended to satisfy the
requirements of that statute.
(e) Storage Tanks. To the best knowledge of Yorkdale after
due inquiry, no above ground or underground tanks, are
located in or about the Hirshfield Liquor Store Parcel, or
have been located under, in or about the Hirshfield Liquor
Store Parcel and have subsequently been removed or
filled.
(f) Reports. Seller has delivered to Buyer copies of all
environmental reports and studies relating to the
Hirshfield Liquor Store Parcel which are in the possession
of Seller.
(g) Individual Sewage Treatment Systems. Solely for
purposes of satisfying the requirements of Minn. Stat.
§115.55 Sellers represents that there is no "individual
sewage treatment system" (within the meaning of that
statute) on or serving the Hirshfield Liquor Store Parcel.
Yorkdale will indemnify, defend, hold harmless the City from and against all costs,
expenses, liabilities, damages losses, including attorneys' fees, charges and court costs
that the City incurs because of the breach of any of the above representations and
warranties whether such breach is discovered before or after closing.
Consummation of this Agreement by the City with knowledge of any breach by
Yorkdale will not constitute a waiver or release by the City of any claims due to such
breach.
13. Yorkdale is acquiring the CUB Liquor Store Parcel based upon its
own investigation and inquiry and is not relying on any representation of the City
or any other person and is agreeing to accept and acquire the CUB Liquor Store
Parcel "as is, where is ", except for the express warranties contained in the Warranty
Deed covering the CUB Liquor Store Parcel to be delivered by the City to Yorkdale.
The City warrants and represents to Yorkdale as follows:
(a) The City is a duly formed municipal corporation and is in
good standing under the laws of the State of Minnesota;
The City has the requisite power and authority to enter
into and perform this Agreement and those documents to
be signed by the City as provided in this Agreement; this
Agreement and such other documents have been duly
authorized by all necessary action on the part of the City;
the execution and delivery of this Agreement and all
documents to be executed and delivered by the City
pursuant to this Agreement and the performance by the
City of such documents does not and will not conflict with
or result in the violation of the documents forming and
governing the City or any judgment, order or decree of
any court or arbitrator to which the City is a party; and this
Agreement and such documents are valid and binding
-10-
obligations of the City and are enforceable in accordance
with their terms.
(b) FIRPTA. The City is not a "foreign person ", "foreign
partnership ", "foreign trust" or "foreign estate" as those
terms are d: fined in Section 1445 of the Internal Revenue
Code.
(c) Wells. The City certifies and warrants that the City does
not know of any "Wells" on the CUB Liquor Store Parcel
within the meaning of Minn. Stat. § 103I. This
representation is intended to satisfy the requirements of
that statute.
(d) Storage Tanks. To the best knowledge of the City after
due inquiry, no above ground or underground tanks, are
located in or about the CUB Liquor Store Parcel, or have
been located under, in or about the CUB Liquor Store
Parcel and have subsequently been removed or filled.
(e) Reports. The City has delivered to Buyer copies of all
environmental reports and studies relating to the CUB
Liquor Store Parcel which are in the possession of the City.
(f) Individual Sewage Treatment Systems. Solely for
purposes of satisfying the requirements of Minn. Stat.
§115.55 the City represents that there is no "individual
sewage treatment system" (within the meaning of that
statute) on or serving the CUB Liquor Store Parcel.
The City will indemnify, defend, hold harmless Yorkdale from and against all costs,
expenses, liabilities, damages losses, including attorneys' fees, charges and court costs
that Yorkdale incurs because of the breach of any of the above representations and
warranties whether such breach is discovered before or after closing.
Consummation of this Agreement by Yorkdale with knowledge of any breach by the
City will not constitute a waiver or release by Yorkdale of any claims due to such
breach.
14. As soon as possible after the City exercises the Option, Yorkdale
shall furnish the City with (a) a Title Insurance Commitment ( "Title
Commitment ") for an ALTA Form B 1990 Owner's Policy of Title Insurance
insuring title to the Hirshfield Liquor Store Parcel, deleting standard exceptions and
including affirmative insurance regarding contiguity, appurtenant easements and
such other matters as may be identified by the City, in the amount of the fair market
-11-
value, as reasonably determined by the City, of the Hirshfield Liquor Store Parcel
and all fixtures, buildings and improvements located thereon or a part thereof,
issued by Chicago Title Insurance Company ( "Title "), (b) a survey prepared by a
registered land surveyor and complying with Minimum Standard Detail
Requirements for ALTA /ACSM Land Title Surveys (Class A Urban) (1992)
including items 1 through 13 of Table 3 thereof and such other information and
containing such other matters as the City may reasonably request, and (c) a Phase I
Environmental Site Assessment addressed to the City, dated subsequent to the date
the City exercises the Option, prepared by an entity approved by the City and in form
and content satisfactory in all respects to the City. The City and Yorkdale shall be
allowed twenty (20) days after receipt of the Title Commitment and the above -
described survey for purposes of examination of title and the making of any
objections thereto, said objections to be made in writing or deemed to be waived. If
any objections are so made, Yorkdale shall be allowed one hundred twenty (120)
days to make such title marketable. Pending correction of title the Date of Closing
shall be postponed, but upon correction of title, and within ten (10) days after
written notice, the parties shall perform this Agreement according to its terms.
Yorkdale represents and agrees that it will use its best efforts to provide good and
marketable title to the Hirshfield Liquor Store Parcel. If title to the Hirshfield Liquor
Store Parcel is not marketable, or is not made so within said one hundred twenty
(120) day period, then the City shall have the election either to (i) declare this
Agreement terminated, whereupon this Agreement shall be null and void and no
party hereto shall be liable to any other party for any performance or damages in
connection herewith, or (ii) waive any such objections and proceed to close
pursuant to this Agreement. Such election shall be made by written notice to
Yorkdale given within ten (10) days after the end of said one hundred twenty (120)
day period, and if no such notice be given, option (i) shall be deemed to have been
elected.
If such Phase I Environmental Site Assessment reveals, discusses or
contains any reference to the possibility of any toxic or hazardous substance, waste,
pollutant or contaminant (including, without limitation, asbestos, urea
formaldehyde, the group of organic compounds known as polychlorinated
biphenyls, petroleum products including gasoline, fuel oil, crude oil and various
constituents of such products (herein collectively referred to as "Hazardous
Substances ")), being released, disposed of, or otherwise placed, deposited in or
located on the Hirshfield Liquor Store Parcel, including but not limited to any
ground water located on, under or flowing through or across the Hirshfield Liquor
Store Parcel, the City shall have the option to declare this Agreement terminated,
whereupon this Agreement shall be null and void and no party hereto shall be
liable to any other party for any performance or damages or the City shall have the
right to require Yorkdale, at Yorkdale's sole cost and expense, to undertake and
obtain any and all additional tests, studies, investigations or other work or activities
recommended by such Phase I Environmental Site Assessment as reasonably
-12-
required by the City. Unless such tests, studies, investigations or other information
establishes to the sole and exclusive satisfaction of the City that there are no
Hazardous Substances in, on or under the Hirshfield Liquor Store Parcel, including
any ground water located on, under or flowing through or across the Hirshfield
Liquor Store Parcel, the City shall have the option to declare this Agreement
terminated, whereupon this Agreement shall be null and void and no party hereto
shall be liable to any other party for any performance or damages.
15. Any notice or demand permitted or required to be given or
made pursuant to this Agreement shall be deemed given or made when delivered
personally or when deposited in the United States mail, registered or certified mail,
postage prepaid and addressed as follows:
If to the City: City of Edina
4801 West 50th Street
Edina, MN 55424 -1394
If to Yorkdale: Yorkdale Shoppes Partners, LLC
c/o Jerry's Enterprises Inc.
5101 Vernon Avenue
Edina, Minnesota 55436
If to Jerry's: Jerry's Enterprises, Inc.
5101 Vernon Avenue
Edina, Minnesota 55436
16. Each party hereto warrants that it has not incurred any real estate
brokerage fees, finders' fees, loan brokerage fees, or any other fees to any party in
connection with the exchange contemplated by this Agreement. In the event any
party institutes a legal action in an effort to recover such fees, the parties jointly
shall defend such action. If a judgment is obtained, the party or parties responsible
for breach of this warranty shall reimburse the other party or parties for their
attorneys' fees, court costs and shares of the judgment.
17. The terms, conditions and covenants hereof shall extend to, be
binding upon and inure to the benefit of the parties to this Agreement and their
respective heirs, personal representatives, successors and assigns, except that such
heirs, personal representatives, successors or assigns shall not have any liability
under Section 1 of this Agreement.
-13-
IN WITNESS WHEREOF, the parties hereto have caused these
presents to be duly executed as of the day and year first above written.
YORKDALE SHOPPES PARTNERS,
LLC
Its:
CITY OF EDINA
Its:
And:
Its:
JERRY'S ENTERPRISES, INC.
-14-
Its:
STATE OF MINNESOTA)
)ss.
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledged before me this day of
June, 1996, by , the of YORKDALE
SHOPPES PARTNERS, LLC, a Minnesota limited liability company on behalf of said
YORKDALE SHOPPES PARTNERS, LLC.
STATE OF MINNESOTA)
)ss.
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledged before me this day of
June, 1996, by and , the
and , respectively of the CITY OF EDINA, a Minnesota
municipal corporation on behalf of the CITY OF EDINA.
STATE OF MINNESOTA)
)ss.
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledged before me this day of
June, 1996, by the of JERRY'S
ENTERPRISES, INC., a Minnesota corporation on behalf of said JERRY'S
ENTERPRISES, INC.
This instrument was drafted by:
Dorsey & Whitney LLP
Pillsbury Center South
220 South Sixth Street
Minneapolis, MN 55402
-15-
EXHIBIT A
(RELOCATION AND FINANCIAL GUARANTIES AGREEMENT)
The Westerly 270 feet of the following described parcel:
All that part of Tract F, Registered Land Survey No. 629, Files of Registrar of Titles,
County of Hennepin lying South of a line drawn parallel with and 40 feet South of
as measured at right angles to the South line of vacated West 68th Street as
dedicated in the plat of "York Terrace" and its Westerly extension and lying
Northerly of a line drawn parallel with and 140 feet South of as measured at right
angles to said South line of vacated West 68th Street and its Westerly extension.
-16-
EXHIBIT B
(RELOCATION AND FINANCIAL GUARANTIES AGREEMENT)
Lot 1, Block 1, Yorkdale Shoppes, according to the recorded plat thereof, Hennepin
County, Minnesota.
-17-
EXHIBIT C
(RELOCATION AND FINANCIAL GUARANTIES AGREEMENT)
Lot 4, Block 1, Yorkdale Shoppes, according to the recorded plat thereof, Hennepin
County, Minnesota.
EXHIBIT D
(RELOCATION AND FINANCIAL GUARANTIES AGREEMENT)
Calendar Year Imputed Gross Sales
1995
2,381,348.00
1996
2,452,788.44
1997
2,526,372.09
1998
2,602,163.25
1999
2,680,228.15
2000
2,760,634.99
2001
2,843,454.04
2002
2,928,757.66
-19-
EXHIBIT E
(RELOCATION AND FINANCIAL GUARANTIES AGREEMENT)
Easement in favor of Northern States Power Company for electric transmission
lines dated October 12, 1965, filed Octcber 20, 1965 as Document No. 825204. (Affects
Tract 2, Parcel 1 only).
Easement in favor of the City of Edina for utility and drainage purposes dated
August 25, 1965, filed December 30, 1965 as Document No. 834115. (Affects Tracts 2
and 3 only).
Reciprocal Easement Agreement dated
as Document No.
Registrar of Titles, Hennepin County, Minnesota.
-20-
_ and filed
in the Office of the
d s �
EXHIBIT F
(RELOCATION AND FINANCIAL GUARANTIES AGREEMENT)
Subject to Section 7 of the Agreement to which this Exhibit is attached, real estate
taxes and installments of special assessments payable in the year in which the Date
of Closing occurs and in all subsequent years.
A reservation by the City of an easement for utility and drainage purposes,
including sanitary sewer, storm sewer and water lines as set forth in an Easement
dated August 25, 1965 and filed December 30, 1965 as Document No. 834115 in the
Office of the Registrar of Titles, Hennepin County, Minnesota.
Reciprocal Easement Agreement dated
as Document No.
Registrar of Titles, Hennepin County, Minnesota.
a�-
_ and filed
in the Office of the
EXHIBIT F
Report entitled "Phase I and Limited Phase II Environmental Assessment,
The Yorkdale Shoppes, 6802 -6821 York Avenue South, Edina, Minnesota"
dated October 20, 1995 prepared by Nova Environmental Services, Inc.
( "Nova ") for Bradley Midwest :Management (Nova Project No. M95 -922),
together with letter dated June 21, 1996, from Nova to First Bank National
Association granting First Bank National Association the right to rely on said
Report.
Report entitled "Operations and Maintenance Program, Asbestos - Containing
Materials, Yorkdale Shoppes" dated June 21, 1996, prepared by Nova for
Welsh Companies.
Report entitled "Phase I Environmental Assessment, 6716 -6728 Xerxes
Avenue, 6775 -6801 York Avenue, Edina, Minnesota" dated June 21, 1996,
prepared by Nova for Yorkdale Shoppes Partners, LLC, First Bank National
Association and City of Edina (Nova Project No. M96 -548)
Report entitled " " dated prepared by Nova for
(Nova Project No. )
a i
a r
RECIPROCAL EASEMENT AGREEMENT
(Yorkdale Shoppes, Edina, Minnesota)
between
Yorkdale Shoppes Partners, LLC
and
The City of Edina
Dated
X: \GROUP\LEGAL\SMITH\PARKS\DOC UMENT\ED INA \REAE. DOC
6!27/96
1 i
T i
f.
RECIPROCAL EASEMENT AGREEMENT
Table of Contents
(Yorkdale Shoppes, Edina, Minnesota)
Section................................................................................. ............................... Pape Number
1. Definitions ................................................................................................. ..............................1
2. Term ........................................................................................................ ............................... 3
3. Easements ................................................................................................ ..............................3
4. Building Improvements ............................................................................. ..............................6
5. Construction ............................................................................................ ..............................8
6. Common Area Maintenance and Repair ................................................... ..............................9
7. Use Restrictions ....................................................................................... .............................12
8. Taxes and Assessments .......................................................................... .............................16
9. Default ..................................................................................................... .............................16
10. Notices ................................................................................................... .............................17
11. Miscel laneous ........................................................................................ .............................17
EXHIBITS:
Exhibit .......... Description of Exhibit ...................... ............................... ........................ Section
Exhibit A ........ Plan of Shopping Center Lots ............... ............................... ...........................1.10
ExhibitB ........ Site Plan ............................................... ............................... ...........................1.11
LOCATION OF DEFINED TERMS NOT CONTAINED IN SECTION 1:
DefinedTerm ........................................................... ............................... ........................ Section
BuildingEnvelopes ...................................................................................... ............................4.1
BusinessOffice ............................................................ ...............................
..........................7.2.8
CAMCharges ...........................................................................................
............................... 6.3
City........................................................ ............................... ....................Introductory
Paragraph
DefaultingOwner .........................................................................................
............................9.2
Developer.............................................. ............................... ....................Introductory
Paragraph
Execution Date ...................................... ............................... ....................Introductory
Paragraph
ForceMajeure .............................................................................................
............................9.1
Non - Defaulting Owner ..............................................................................
............................... 9.2
ReleasedOwner .......................................................... ...............................
...........................11.1
ReleasingOwner ......................................................... ...............................
...........................11.1
RetailOffice ........................................................................................... ...............................
7.2.8
Table of Contents
XIGROUPLLEGALkSMnWARKSIDOCUMEN TEDINAIREAE.DOC 6127t96
T 1 1
I
1 RECIPROCAL EASEMENT AGREEMENT
2 (Yorkdale Shoppes, Edina, Minnesota)
3 This Agreement is entered into by YORKDALE SHOPPES PARTNERS, LLC, a Minnesota
4 limited liability company ( "Developer") and THE CITY OF EDINA, a Minnesota municipal
5 corporation (the "City "), as of J-.)—. -26 , 1996 (the "Execution Date ").
6 RECITALS:
7 A. The City and Developer are owners of certain property located in Yorkdale Shoppes,
s Edina, Minnesota, which is contiguous and adjacent.
9 B. The City and Developer desire to enter into certain covenants and agreements and grant
10 each other certain easements, in, to, over, and across their respective Tracts.
11 AGREEMENT:
12 Developer and the City agree as follows:
13 1. Definitions
14 1.1 City Try "City Tract" shall mean Lot 1; however, if at any time the City and
15 Developer exchange ownership of Lot 1 with Lot 4, so that the City is no longer the
16 owner of Lot 1 but is the owner of Lot 4, then from and after the date of such
17 exchange the "City Tract" shall be deemed to be Lot 4.
18 1.2 Common Area. "Common Area" shall mean all areas within the exterior boundaries
19 of the Shopping Center, exclusive of buildings and any area immediately adjacent to
20 a building which is used exclusively by an Occupant of such building for sales and /or
21 storage purpose and which is enclosed by a fence or other security barrier.
22 1.3 Developer Tract. "Developer Tract" shall mean Lots 2, 3 and 4, Block 1, Yorkdale
23 Shoppes, according to the plat thereof on file and of record in the Office of the
24 Registrar of Titles of Hennepin County, Minnesota; however, if at any time the City
25 and Developer exchange ownership of Lot 4 with Lot 1 , so that the City is no longer
26 the owner of Lot 1 but is the owner of Lot 4, then from and after the date of such
27 exchange the "Developer Tract" shall be deemed to be Lots 1, 2 and 3, Block 1,
28 Yorkdale Shoppes.
29 1.4 Floor Area. "Floor Area" shall mean the actual number of square feet of space
30 contained on each floor within a building measured from the exterior faces of the
31 exterior walls or store front and /or the center line of any common walls, including any
32 mezzanine or basement space used for retail sales or service purposes or for the
33 storage of merchandise, but excluding any mezzanine or basement space used for
34 office purposes (but any such mezzanine or basement space used for office
35 purposes shall be included in Floor Area to the extent such mezzanine or basement
36 space used for office purposes exceeds five percent of the Floor Area of the building
37 in which such space is located), and excluding any space used for building utilities or
38 mechanical equipment.
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1 1.5 Lot 1. "Lot V shall mean Lot 1, Block 1, Yorkdale Shoppes, according to the plat
2 thereof on file and of record in the Office of the Registrar of Titles of Hennepin
3 County, Minnesota.
4 1.6 Lot 3. "Lot 3" shall mean Lot 3, Block 1, Yorkdale Shoppes, according to the plat
5 thereof on file and of record in the Office of the Registrar of Titles of Hennepin
6 County, Minnesota.
7 1.7 Lot 4. "Lot 4" shall mean Lot 4, Block 1, Yorkdale Shoppes, according to the plat
s thereof on file and of record in the Office of the Registrar of Titles of Hennepin
9 County, Minnesota.
10 1.8 Occupant. "Occupant" shall mean any Person from time to time entitled to the use
11 and occupancy of any portion of a building in the Shopping Center under an
12 ownership right or any lease, sublease, license, concession, or other similar
13 agreement.
14 1.9 Owner. "Owner" shall mean each signatory hereto and their respective successors
15
and assigns who become owners of any portion of the Shopping Center. Each
16
Owner shall be liable for the performance of all covenants, obligations and
17
undertakings set forth in this Agreement with respect to the portion of the Shopping
18
Center owned by it which accrue during the period of such ownership; an Owner shall
19
not be liable for the performance of covenants, obligations or undertakings set forth
20
in this Agreement which accrue after the period of such ownership. An Owner
21
transferring all or any portion of its interest in the Shopping Center shall give notice to
22
all other Owners of such transfer and shall include in such notice at least the
23
following information: (a) the name and address of the transferee; and (b) a copy of
24
the legal description of the portion of the Shopping Center transferred.
25 1.10 Permittee. " Permittee" shall mean all Occupants and the officers, directors,
26 employees, agents, contractors, customers, vendors, suppliers, visitors, invitees,
27 licensees, subtenants, and concessionaires of Occupants insofar as their activities
28 relate to the intended use of the Shopping Center.
29 1.11 Person. "Person" shall mean any individual, partnership, firm, association,
30 corporation, trust, or any other form of business or government entity.
31 1.12 Pro Rata Share, An Owner's "Pro Rata Share" shall mean a fraction, the numerator
32 of which is the number of square feet of Floor Area on the Owner's Tract, and the
33 denominator of which is the total number of square feet of Floor Area in the Shopping
34 Center.
35 1.13 Shopping Center. "Shopping Center" shall mean Lots 1, 2, 3 and 4. Attached hereto
36 as Exhibit is a plan of the Shopping Center showing the location of Lots 1, 2, 3 and
37 4.
38 1.14 Site Plan. "Site Plan" shall mean the Site Plan attached hereto as Exhibit
39 1.15 Supermarket Tract. "Supermarket Tract" shall mean that portion of the Shopping
40 Center legally described as Lot 2, Block 1, Yorkdale Shoppes, according to the plat
X:IGROUP\ LEGAL\ SMITHIPARKS \DOCUMENTEDINA\REAE.DOC Page 2 of 20 W7M
L-
L
1 thereof on file and of record in the Office of the Registrar of Titles of Hennepin
2 County, Minnesota.
3 1.16 Tract. "Tract" shall mean that portion of the Shopping Center owned by an Owner.
4 2. Term
5 This Agreement shall be effective as of the date that the City takes fee title to Lot 1. The
6 easements referred to in Section 3 and in subsection 4.5, and the provisions of
7 subsection 4.4, shall continue in full force and effect perpetually. All other restrictions and
8 covenants contained in this Agreement shall continue in full force and effect until 11:59
9 p.m. on December 31, 2026; provided, however, that such restrictions and covenants shall
10 be automatically extended on a year to year basis following December 31, 2026 unless any
11 Owner notifies all other Owners, by notice given at least four months prior to the end of any
12 year, that it exercises its option to prevent such restrictions and covenants from being so
13 extended. The expiration of this Agreement shall not limit or affect any remedy at law or in
14 equity that an Owner may have against any other Owner with respect to any liability or
15 obligation arising or to be performed under this Agreement prior to the date of such
16 expiration.
17 3. Easements
18 3.1 Inoress and Egress Easements. Each Owner hereby grants and conveys to each
19 other Owner for its use and for the use of its Permittees, in common with others
20 entitled to use the same, non - exclusive perpetual easements for (a) the passage of
21 vehicles over and across the parking and driveway areas of the grantor's Tract as the
22 same may from time to time be constructed and maintained for such use, except that
23 such easement shall always include reasonably direct access to and from both the
24 North bound and the South bound traffic lanes on York Avenue to and from Lot 1 and
25 Lot 4, (b) the parking of vehicles over and across the parking areas of the grantor's
26 Tract as the same may from time to time be constructed and maintained for such
27 use, subject to the restrictions contained in subsection 3.7, and (c) for the passage
28 and accommodation of pedestrians over and across the parking, driveways and
29 sidewalk areas of the grantor's Tract as the same may from time to time be
30 constructed and maintained for such use. Such easement rights shall be subject to
31 the following reservations as well as other provisions contained in this Agreement:
32 3.1.1 No Fences. Except for situations specifically provided for in this Section 3, no
33 fence or other barrier which would unreasonably prevent or obstruct the
34 passage of pedestrian or vehicular travel for the purposes permitted in this
35 Agreement shall be erected or permitted within or across the aforesaid
36 easement areas; provided, however, that the foregoing provision shall not
37 prohibit the installation of convenience facilities (such as mailboxes, public
38 telephones, benches or public transportation shelters), of landscaping, berms
39 or planters, nor of limited curbing and other forms of traffic controls.
40 3.1.2 Staging Area. In connection with any construction, reconstruction, repair or
41 maintenance on its Tract, each Owner reserves the right to create a staging
42 and /or storage area in the Common Area on its Tract at such location as will
43 not unreasonably interfere with access between such Tract and other areas of
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a �
1 the Shopping Center or the public street abutting the Shopping Center..
2 3.1.3 Modifications. No Owner shall make changes to the improved Common Area
3 on its Tract from that shown on the Site Plan without the approval of all other
4 Owners, which approval will not be unreasonably withheld or delayed.
5 Notwithstanding the foregoing, each Owner hereby reserves the right, from
6 time to time without obtaining the consent or approval of any other Owner, to
7 make at its own expense any insignificant change, modification or alteration in
8 its portion of the Common Area, provided that all of the following conditions
9 are met:
10
3.1.3.1 The accessibility of such Common Area for pedestrian and vehicular
11
traffic (as it relates to the remainder of the Shopping Center), is not
12
unreasonably restricted or hindered, subject to the restrictions
13
contained in subsection 3.7.
14
3.1.3.2 No governmental rule, ordinance or regulation shall be violated as a
15
result of such action, and such action shall not result in any other
16
Owner being in violation of any governmental rule, ordinance or
17
regulation.
18 3.1.3.3 No change shall be made in the access points between the Common
19 Area and the public streets.
20
3.1.3.4 At least 30 days prior to making any such change, modification or
21
alteration, the Owner desiring to do such work shall deliver to each
22
other Owner copies of the plans therefor.
23
3.1.4 Closure. Each Owner further reserves the right to close off its portion of the
24
Common Area for such reasonable period of time as may be legally
25
necessary, in the opinion of such Owner's counsel, to prevent the acquisition
26
of prescriptive rights by anyone; provided however, that prior to closing off
27
any portion of the Common Area, such Owner shall give written notice to each
28
other Owner of its intention to do so, and shall attempt to coordinate such
29
closing with each other Owner so that no unreasonable interference in the
30
passage of pedestrians or vehicles shall occur.
31
3.1.5 Exclusion of Non- Permittees. Each Owner reserves the right at any time and
32
from time to time to exclude and restrain any Person who is not a Permittee
33
from using its Common Area.
34
3.1.6 City Tract Parkins. Notwithstanding anything in this Agreement to the
35
contrary, the Owner of the City Tract shall have the right at any time and
36
from time to time to post a sign or signs at one or more points or places
37
anywhere on the City Tract stating among other things that parking on the
38
City Tract is for the exclusive use of patrons of the business located on the
39
City Tract, for liquor store parking only or some similar statement; provided,
40
however, that the City shall not enforce such statement with respect to the
northerly 15 parking stalls on the City Tract.
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� t
� c
1 3.2 Utility Easements. Each Owner hereby grants and conveys to each other Owner a
2 non - exclusive perpetual easement in, to, over, under, along and across those
3 portions of the Common Area (exclusive of any portion located within a Building
4 Envelope, as defined in subsection 4.1) located on the grantor's Tract for the
5 installation, operation, flow, passage, use, maintenance, connection, repair,
6 relocation, and removal of lines or systems for utilities serving the grantee's Tract,
7 including sanitary sewers, storm drains, water (fire and domestic), gas, electrical,
s telephone and communication lines. Except with respect to ground mounted
9 electrical transformers at the rear of a building or as may be necessary during
10 periods of construction, repair, or temporary service, all utilities shall be underground
11 unless required to be above ground by the utility providing such service. Any Owner
12 installing, maintaining, connecting, repairing, relocating or removing utilities pursuant
13 to the provisions of this subsection 3.2 shall pay all costs and expenses with respect
14 thereto and shall cause all work in connection therewith (including general clean -up
15 and proper surface and /or subsurface restoration) to be completed as quickly as
16 possible and in a manner so as to minimize interference with the use of the Common
17 Area. The location and width of any utility easement shall be subject to the prior
18 written approval of the Owner whose Common Area is to be burdened thereby, such
19 approval not to be unreasonably withheld. The easement area shall be no larger
20 than whatever is necessary to reasonably satisfy the utility company, as to a public
21 utility, or five feet (5') on each side of the centerline, as to a private line.
22 3.3 Party Wall Easement. The Owners acknowledge that there is currently a common or
23 party wall between Lot 3 and Lot 4. Developer hereby declares the existence of a
24 party wall easement for the benefit of the Owners of Lots 3 and 4 along the common
25 boundary line of Lots 3 and 4 and to the extent that any building wall is constructed
26 and located on the boundary line between such Tracts. To the extent not
27 inconsistent with the provisions of this subsection 3.3, the general rules of law
28 regarding party walls and liability for property damage due to negligent or willful acts
29 or omissions shall apply thereto. The Owners of Lots 3 and 4 shall be responsible for
30 the maintenance, repair and replacement of the party wall in proportion with their use,
31 provided, however, that any maintenance, repair or replacement necessary due to
32 the acts or omissions of one Owner sharing the party wall shall be paid for by such
33 Owner. No party wall shall be constructed in such easement area more than 12
34 inches from the lot line. If the party wall is destroyed or damaged by fire or other
35 casualty, any Owner who has used the party wall may restore it, and if other Owners
36 thereafter make use of the wall, such Owners shall contribute to the cost of
37 restoration in proportion to such use, without prejudice, however, to the right of any
38 Owner to recover a larger contribution from any other Owner for negligent or willful
39 acts or omissions. Notwithstanding any other provision in this subsection 3.3, any
40 Owner who, by such Owner's negligent or willful act, causes the party wall to be
41 exposed to the elements shall bear the entire cost of furnishing the necessary
42 protection against the elements. The right of any Owner to contribution from any
43 other Owner under this subsection 3.3 shall be appurtenant to such Owner's Tract
44 and shall pass to such Owner's successors and assigns. In the event any dispute
45 arises concerning a party wall, and the same is not resolved within 30 days after the
46 event causing the dispute, the matter shall be submitted to binding arbitration under
47 the rules of the American Arbitration Association, upon the written demand of any
48 Owner that shares the party wall. Each Owner agrees that the decision of the
X \GROUP\ LEGAL\ SMITKPARKS \DOCUMENT\EDINA\REAE.DOC Page 5 of 20 627/96
1 arbitrators shall be final and conclusive on the questions involved. The fees of the
2 arbitrators shall be shared equally by the parties, but each party shall pay its own
3 attorneys' fees or other costs to prove its case.
4 3.4 No Other Easements, No Owner shall grant any easement for any purpose set forth
5 in this Section 3 for the benefit of any property not within the Shopping Center;
6 provided however, that the foregoing shall not prohibit the granting or dedicating of
7 utility easements by an Owner on its Tract to governmental or quasi - governmental
s authorities or to public utilities.
9 4. Building Improvements
10 4.1 Building Envelopes. The Owners hereby agree that all buildings (which for the
11 purpose of this document shall include any appurtenant canopies, supports, loading
12 docks, truck ramps and other outward extensions, as well as attached trash
13 compactors and utility transformers) may be constructed, placed or located only
14 within the Building Envelopes circled in blue on the Site Plan (which Building
15 Envelopes shall include the blue lines on the Site Plan).
16 4.2 Height Restrictions. No building, structure or other improvement on the Shopping
17 Center (exclusive of any free standing sign and except for any building, structure or
18 other improvement on the Supermarket Tract), including mechanical equipment,
19 parapet walls, and other objects or appurtenances, shall: (a) exceed one story in
20 height; (b) have a roof higher than 22 feet above grade, or have any portion of such
21 building, structure or improvement (including HVAC equipment and other mechanical
22 devices or screening or parapet) higher than four feet above such roof (except that
23 any such building, structure or other improvement may have a steel structure up to
24 five feet above its roof and may have arches above entranceways up to five feet
25 above the roof of the remainder of such building); (c) have any rooftop equipment
26 unless such equipment is screened in a manner in compliance with all applicable
27 laws, ordinances and regulations; or (d) have a rooftop sign, except for building
28 facade signage if no part of such signage is higher than 24 feet above grade.
29 4.3 Maintenance and Repair. After completion of construction, each Owner covenants
30 and agrees to maintain and keep the building improvements located on its Tract in
31 first -class condition and state of repair, in compliance with all governmental laws,
32 rules, regulations, orders, and ordinances exercising jurisdiction thereover, and in
33 compliance with the provisions of this Agreement. Each Owner further agrees to
34 store all trash and garbage in adequate containers, to locate such containers so that
35 they are not readily visible from the parking area, and to arrange for regular removal
36 of such trash or garbage. In the event any of the building improvements are
37 damaged by fire or other casualty (whether insured or not), the Owner upon whose
38 Tract such building improvements are located immediately shall remove the debris
39 resulting from such event and provide a sightly barrier and within a reasonable time
40 thereafter shall either (a) repair or restore the building improvements so damaged,
41 such repair or restoration to be performed in accordance with all provisions of this
42 Agreement, or (b) erect other building improvements in such location, provided all
43 provisions of this Agreement are complied with, or (c) demolish the damaged portion
X: IGROUMEGAL�SMr n+PARKS \DOCUMENTEDINA\REAE.DOC Page 6 of 20 W7/96
I I A
1 of such building improvements and restore the area to an attractive condition in which
2 event the area shall be Common Area until a replacement building is erected.
3 4.4 Common Wall. As previously stated in subsection 3.3, the Owners acknowledge that
4 there is a currently a common wall between Lots 3 and 4. The Owners of such
5 Tracts agree that if any such Owner demolishes the building located on its lot, it will
6 reconstruct such wall so that it will serve as an exterior, weather resistant wall for the
7 building on the other lot, which reconstruction shall include any changes to the roof of
s such building on the other lot which may be necessary due to such reconstruction.
9 4.5 Common Footings. In order to accommodate any footings, foundations, columns or
10
walls which may be constructed or reconstructed immediately adjacent to a common
11
boundary line and which may overlap that common boundary line, each Owner
12
grants to each other Owner a non - exclusive easement in, to, over, under, and across
13
that portion of its Tract adjacent to such common boundary line in space not
14
theretofore occupied by any then existing structure for the construction, maintenance
15
and replacement of footings to a maximum distance of five feet (6) onto the grantor's
16
Tract and for the construction, replacement and maintenance of foundations,
17
columns, or walls to a maximum distance of twelve inches onto the grantor's Tract.
18
The grant of easement shall include the reasonable right of access necessary to
19
exercise and enjoy such grant. The easement shall continue in effect for the term of
20
this Agreement and thereafter for so long as the building utilizing the easement area
21
exists (including a reasonable period to permit reconstruction or replacement of such
22
building if the same shall be destroyed, damaged, or demolished) and shall include
23
the reasonable right of access necessary to exercise and enjoy such grant. The
24
Owners acknowledge that it is expected that the building to be constructed on Lot 1
25
and the building to be constructed on the Supermarket Tract will have common
26
footings. Developer hereby declares the existence of a common footings easement
27
for the benefit of the Owners of Lot 1 and the Supermarket Tract along the common
28
boundary line of Lot 1 and the Supermarket Tract and to the extent that any footings
29
are constructed and located on the boundary line between such Tracts. To the
30
extent not inconsistent with the provisions of this subsection 4.5, the general rules of
31
law regarding common footings and liability for property damage due to negligent or
32
willful acts or omissions shall apply thereto. The Owners of Lot 1 and the
33
Supermarket Tract shall be responsible for the maintenance, repair and replacement
34
of the common footings in proportion with their use, provided, however, that any
35
maintenance, repair or replacement necessary due to the acts or omissions of one
36
Owner sharing the common footings shall be paid for by such Owner. No common
37
footings shall be constructed in such easement area more than 12 inches from the lot
38
line. If the common footings are destroyed or damaged by fire or other casualty, any
39
Owner who has used the common footings may restore them, and if other Owners
40
thereafter make use of the common footings, such Owners shall contribute to the
41
cost of restoration in proportion to such use, without prejudice, however, to the right
42
of any Owner to recover a larger contribution from any other Owner for negligent or
43
willful acts or omissions. Notwithstanding any other provision in this subsection 4.5,
44
any Owner who, by such Owner's negligent or willful act, causes the common
45
footings to be exposed to the elements shall bear the entire cost of furnishing the
46
necessary protection against the elements. The right of any Owner to contribution
47
from any other Owner under this subsection 4.5 shall be appurtenant to such
X: \GROUP\ LEGAL\ SMI TKPARKS\DOCUMENTEDINA\REAE.DOC Page 7 of 20 627196
1 Owner's Tract and shall pass to such Owner's successors and assigns. In the event
2 any dispute arises concerning a common footings, and the same is not resolved
3 within 30 days after the event causing the dispute, the matter shall be submitted to
4 binding arbitration under the rules of the American Arbitration Association, upon the
5 written demand of any Owner that shares the common footings. Each Owner agrees
s that the decision of the arbitrators shall be final and conclusive on the questions
7 involved. The fees of the arbitrators shall be shared equally by the parties, but each
8 party shall pay its own attorneys' fees or other costs to prove its case.
9 5. Construction
10 5.1 General Requirements. Each Owner agrees that its construction activities shall not
11 do any of the following:
12 5.1.1 Cause any unreasonable increase in the cost of constructing improvements
13 upon another Owner's Tract.
14 5.1.2 Unreasonably interfere with construction work being performed on any other
15 part of the Shopping Center.
16 5.1.3 Unreasonably interfere with the use, occupancy or enjoyment of any part of
17 the remainder of the Shopping Center by any other Owner or its Permittees.
18 5.1.4 Cause any other Owner to be in violation of any law, rule, regulation, order or
19 ordinance applicable to its Tract of the city, county, state, federal government,
20 or any department or agency of any of them.
21 5.1.5 Violate any laws, rules, regulations, orders, or ordinances of any city, county,
22 state, or federal government, or any department or agency of any of them,
23 with jurisdiction over such construction activities.
24 5.2 Indemnity. Each Owner agrees to defend, indemnify and hold harmless each other
25 Owner from all claims, actions, proceedings and costs incurred in connection
26 therewith (including reasonable attorneys' fees and costs of suit) resulting from any
27 accident, injury or loss or damage whatsoever occurring to any Person or to the
28 property of any Person arising out of or resulting from the performance of any
29 construction activities performed or authorized by such indemnifying Owner.
30 5.3 Staging and Storage. Prior to constructing, reconstructing, remodeling, or enlarging
31 a building or changing the Common Area on its Tract, an Owner shall give the other
32 Owners at least 30 days' prior notice of the proposed location of any staging and
33 storage area. All storage of materials and the parking of construction vehicles,
34 including vehicles of workers shall occur only on the constructing Owner's Tract, and
35 all laborers, suppliers, contractors and others connected with such construction
36 activities shall use only the access point which is nearest to the Owner's Tract and
37 which is not the main access point to the Shopping Center. If substantial work is to
38 be performed, the constructing Owner shall, at the request of any other Owner, fence
39 off the staging and storage area. Upon completion of such work, the constructing
40 Owner shall restore the affected Common Area to a condition at least equal to that
41 existing prior to commencement of such work.
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1 6. Common Area Maintenance and Repair
2 6.1 General Maintenance Requirements. From and after the date upon which the
3 Common Area of the Shopping Center is substantially completed, subject to the
4 provisions of subsection 6.6, Developer shall maintain all Common Area, or cause it
5 to be maintained, in good order, condition and repair. Developer shall have the right,
6 from time to time, to select another person or persons to maintain the Common Area,
7 provided that Developer shall remain responsible at all times for the maintenance of
a the Common Area. If Developer selects another person to maintain the Common
9 Area, such person shall be a recognized professional commercial property
10 management company. Developer may hire companies affiliated with it to perform
11 the maintenance, repair and operation of the Common Area, but only if the rates
12 charged by such companies are competitive with those of other companies furnishing
13 similar service in the metropolitan area where the Shopping Center is located, it
14 being agreed that this provision regarding affiliated companies shall be construed
15 strictly against Developer.
16 6.2 Standard of Maintenance. The minimum standard of maintenance for the improved
17 Common Area shall be comparable to the standard of maintenance followed in power
18 shopping centers in the Twin City metropolitan area which are comparable to the
19 Shopping Center, and in any event in compliance with all applicable governmental
20 laws, rules, regulations, orders and ordinances, and the provisions of this Agreement.
21 All Common Area improvements shall be repaired or replaced with materials at least
22 equal to the original quality of the materials being repaired or replaced so as to
23 maintain the architectural and aesthetic harmony and integrity of the Shopping
24 Center as a whole. The maintenance and repair obligation in any event shall include
25 but not be limited to the following:
26 6.2.1 Drive and parking areas. Maintaining, repairing and replacing (i) the surface
27 and subsurface of the parking lots (including proper striping thereof),
28 sidewalks, driveways and alleys situated on the Common Areas in a level,
29 smooth and evenly covered manner; (ii) Common Area pylon(s), entrance,
30 exit and directional signs, markers and lights as will be reasonably required
31 from time to time; (iii) common storm drains, utility lines, sewers and other
32 utility systems and services located in the Common Areas (including any trunk
33 line portion of utility lines, defined as any line with more than one user); and
34 (iv) all parking area lighting fixtures (including bulbs).
35 6.2.2 Cleanliness. Keep the Common Areas clean, safe and in good repair, with all
36 trash and garbage for the Shopping Center and for all tenants of the Shopping
37 Center screened from view by customers of the Shopping Center (however,
38 each Owner shall maintain at its sole cost in a clean, sightly and sanitary
39 condition the truck loading, dock, and /or ramp areas adjacent to its building,
40 and its refuse or dumpster areas adjacent to its building, if any).
41 6.2.3 Snow Removal. Remove snow and ice from the Common Areas down to the
42 pavement as often as is necessary to prevent any accumulation of more than
43 two inches.
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,
1 6.2.4 Landscaping_. Maintain, replace and care for, including fertilizing, watering,
2 mowing and trimming, all grass, shrubs and landscaping on the Shopping
3 Center and on any rights of way adjacent to the Shopping Center, and
4 maintain, repair and replace automatic irrigation systems and water lines;
5 provided, however, that if any Owner or Occupant requires or installs "special'
6 landscaping (i.e., beyond the landscaping requirements of the remainder of
7 the Shopping Center), the maintenance and cost of such landscaping shall
s not be considered a Common Area cost and Developer shall not be required
9 to maintain same.
10 6.2.5 Traffic Supervision. Provide on -site supervision of traffic at entrances and
11 exits to the Shopping Center as conditions reasonably require in order to
12 maintain orderly and proper traffic flow and ingress and egress.
13 6.2.6 Lighting. Maintain lighting for all Common Areas at a reasonably adequate
14 level at all times when any portion of the Shopping Center is open for
15 business.
16 6.2.7 Insurance. Maintain in full force and effect Commercial General Liability
17 Insurance on the Common Areas, for the benefit of all Owners and
18 Occupants, in the minimum amounts of $1,000,000 per occurrence,
19 $2,000,000 aggregate for bodily or personal injury or death and for property
20 damage, and umbrella liability in the amount of $5,000,000.
21 6.3 CAM Charges. "CAM Charges" shall mean the reasonable and direct out -of- pocket
22 expenses incurred by Developer in performing the Common Area maintenance
23 services specified in subsections 6.1 and 6.2. CAM Charges shall not include any of
24 the following:
25 6.3.1 Late charges or fees.
26 6.3.2 Costs to clean up or repair the Common Area resulting from construction,
27 maintenance or replacement of buildings.
28 6.3.3 Real property taxes and assessments.
29 6.3.4 Profit, administrative and overhead costs to manage, coordinate, administer,
30 arrange or contract for or supervise the Common Area maintenance services
31 specified in subsections 6.1 and 6.2, such as rent, legal, supplies, utilities and
32 wages or salaries paid to management or supervisory personnel, except as
33 provided below.
34 6.3.5 Entertainment, transportation, meals and lodging of anyone.
35 6.3.6 Maintenance or repair of separate utility lines and systems designed for use
36 by a single user or of lateral utility lines designed for use by a single user and
37 extending from or to common lines.
38 CAM Charges may include an administrative fee (whether paid to Developer and /or a
39 third party) to manage, coordinate, administer, arrange or contract for or supervise
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1 the Common Area maintenance services specified in subsections 6.1 and 6.2, of up
2 to a twelve percent of all CAM Charges other than such administrative fee and the
3 mark -up portion of fees paid to third parties who perform the Common Area operation
4 and maintenance on Developer's behalf.
5 6.4 Budget and Payment. Each Owner shall pay on a monthly basis its Pro Rata Share
6
of CAM Charges. Prior to December 1, 1996 and thereafter prior to each December
7
1, Developer shall prepare and deliver to each other Owner a budget for CAM
8
Charges for the succeeding calendar year, based upon the actual CAM Charges for
9
the prior 12 month period (except for the first 12 month period of this Agreement).
10
On the first day of each calendar month during the applicable 12 month period
11
covered by such budget, each Owner shall pay Developer an amount equal to 1112th
12
of such Owner's Pro Rata Share of the budget for CAM Charges. Within 90 days
13
after the end of each calendar year, Developer shall provide to the other Owners an
14
accounting of all CAM Charges for such year. Developer shall keep and maintain
15
and, upon request by any Owner, shall provide, supporting materials including copies
16
of receipted invoices, canceled checks and other documentation necessary to
17
evidence CAM Charges. If the amount of CAM Charges paid by an Owner is
18
different from the Owner's actual Pro Rata Share of CAM Charges, an appropriate
19
adjustment shall be made within 30 days.
20 6.5 Audit. Within five years after payment of any CAM Charges, any Owner shall have
21 the right to audit Developer's books and records pertaining to the operation and
22 maintenance of the Common Area for the period covered by such CAM Charges. In
23 the event that such audit shall disclose any error in the determination of such CAM
24 Charges or in calculating any Owner's share of the same, an appropriate adjustment
25 shall be made forthwith. The cost of any such audit shall be assumed by the Owner
26 on whose behalf such audit was performed unless such Owner shall be entitled to a
27 refund in excess of three percent of the amount calculated by Developer as its share
28 of CAM Charges, in which case Developer shall pay the cost of such audit.
29 6.6 Option for City to Maintain City Tract. The City shall have the right, but not the
30 obligation, upon not less than 30 days' written notice given to Developer, to take over
31 and assume the maintenance of the Common Area upon the City Tract. If the City
32 assumes the maintenance of the Common Area upon its Tract, the Owners agree
33 that following the effective date of such assumption (a) the City will perform all of the
34 functions previously performed by Developer respecting the Common Area upon its
35 Tract, and (b) the City will pay all costs and expenses incurred in connection with the
36 maintenance of the Common Area on its Tract, and (c) Developer thereafter shall
37 continue to maintain the balance of the Common Area in accordance with the
38 standards of this Section 6, and (d) the City will no longer be required to pay any
39 CAM Charges thereafter.
40 6.7 Casualty. In the event any of the Common Area is damaged or destroyed by any
41 cause other than normal wear and tear, whether insured or uninsured, during the
42 term of this Agreement, the Owner upon whose Tract such Common Area is located
43 shall repair or restore such Common Area at its sole cost and expense with all due
44 diligence. Except to the extent limited by subsection 11.1 (entitled "Waiver of
45 Subrogation "), in the event such damage or destruction of Common Area is caused in
X:\ GROUP�LEGAL\ SMMWARKSIDOCUMENrEDINA\REAE.DOC Page 11 of 20 627/96
1 whole or in part by another Owner or third Person, the Owner obligated to make such
2 repair or restoration reserves and retains the right to proceed against such other
3 Owner or third Person for indemnity, contribution or damages.
4 7. Use Restrictions
5 7.1 Use Restrictions on the Shopping Center. No portion of the Shopping Center shall
s be used or operated for any of the following:
7 7.1.1 Unlawful. In violation of applicable laws or ordinances.
a 7.1.2 Hazardous. In a dangerous or hazardous manner.
s 7.1.3 Dump-site. Any dumping, disposing, incineration, or reduction of garbage
10 (exclusive of garbage compactors located near the rear of any building).
11 7.2 Use Restrictions on the Shopping Center (other than the City Tract). No portion of
12 the Shopping Center other than the City Tract shall be used or operated for any of
13 the following:
14 7.2.1 Nuisance. As a nuisance, or as an excessively obnoxious use by reason of
15 unsightliness or excess emission of odors, dust, fumes, smoke, liquid waste,
16 noise, glare, vibration or radiation; provided, however, that nothing contained
17 in this subsection 7.2.1 shall limit or prohibit the operation of a supermarket,
18 floral store or department, video store or department, liquor store or
19 department, bank, or pharmacy on the Supermarket Tract, nor the erection of
20 business communications satellite dishes on the roof of a building.
21 7.2.2 Adult Entertainment. As an adult book store, night club or discotheque,
22 massage parlor, or any other establishment which provides live adult
23 entertainment or which sells, rents or exhibits pornographic or obscene
24 materials, except that this provision shall not prohibit (a) videotape sale and
25 rental stores which sell or rent primarily non-"X"-rated videotapes (that is, "G"
26 to "R" -rated videotapes) but which also rent or sell "X "-rated or non -rated
27 videotapes for off - premises viewing only, provided such "X" -rated or similar
28 videotapes, and the place and procedure for selection thereof, precludes
29 viewing or selection by minors and with no promotional, advertising or other
30 depiction or description in respect of any "X" -rated or non -rated or similar
31 videotape displayed or utilized within or outside the store; or (b) book stores
32 and other stores which sell primarily general audience books and other
33 reading, listening, and /or other materials which are not perceived to be, or
34 hold themselves out as "adult book" stores, but which incidentally sell books,
35 magazines and other periodicals, records, CD's and tapes which may contain
36 pornographic materials so long as such sale is not from any special or
37 segregated section in the store, or drug - related paraphernalia.
38 7.2.3 Bankruptcy Sale. For any fire sale, bankruptcy sale (unless pursuant to a
39 court order) or auction house operation (provided that any tenant that goes
40 out of business shall be entitled to hold one going out of business sale not
41 exceeding four weeks in duration).
X:\ GROUMEGAL% SMITWARKS \DOCUMENnEDINA \REAE.DOC Page 12 of 20 6/27/96
1 7.2.4 Vehicle Facility. As an automobile, truck, trailer or recreational vehicle sales,
2 leasing, or display facility, or as a gas station.
3
7.2.5 Body Shop. As a vehicle body shop or repair facility, except that a "Tires
4
Plus" or similar type store that installs tires sold at such store and does minor
5
automobile repair work shall be permitted so long as (a) such facility has no
6
more than 9 interior stalls, (b) such facility does not use any exterior parking
7
for the parking of vehicles on which repairs or other work shall be or has been
8
performed except for the 10 stalls outlined in pink on the Site Plan, (c) all
9
repair and other work performed on vehicles is performed inside such facility,
10
and (d) the doors of such facility's installation /repair areas are closed at all
11
times except as may be necessary to move vehicles in and out of such areas.
12 7.2.6 Bar or Tavern. As a bar, tavern, restaurant or other establishment whose
13 reasonably projected annual gross revenues from the sale of alcoholic
14 beverages for on- premises consumption exceeds 50% of the gross revenues
15 of such business.
16 7.2.7 Theater. As a theater or cinema or live performance theater or skating rink.
17
7.2.8
Retail Sales. For other than retail sales, "Business Office ", "Retail Office ",
18
restaurants or other commercial purposes. "Business Office" shall mean an
19
office which does not provide services directly to consumers; "Retail Office"
20
shall mean an office which provides services directly to consumers, including
21
financial institutions, real estate, stock brokerages, title company and escrow
22
offices, travel and insurance agencies, and medical, dental and legal clinics.
23
7.2.9
Commercial. Any operation primarily used as a storage warehouse operation
24
and any assembling, manufacturing, distilling, refining, smelting, agricultural,
25
or mining operation.
26
7.2.10
Second Hand Stores. Any "second hand" store or "surplus" store, except that
27
a high class new and used merchandise store (such as "Play It Again Sports ",
28
"Once Upon a Child" and "Funco Land ") shall be allowed.
29
7.2.11
Mobile Home Park. Any mobile home park, trailer court, labor camp,
30
junkyard, or stockyard (except that this provision shall not prohibit the
31
temporary use of construction trailers during periods of construction,
32
reconstruction, or maintenance).
33
7.2.12
Laundry. Dry Cleaning_ Any central laundry, dry cleaning plant, or
34
laundromat; provided, however, this prohibition shall not be applicable to
35
nominal supportive facilities for on -site service orientated to pickup and
36
delivery by the ultimate consumer as the same may be found in retail
37
shopping districts in the metropolitan area where the Shopping Center is
38
located.
39
7.2.13
Residential. Any living quarters, sleeping apartments, or lodging rooms.
40
7.2.14
Mortuary. Any mortuary or funeral home.
X: IGROURLEGALISMITKPARKSIDOCUMENTXEDINAIREAE .DOC Page 13 of 20 6/27196
1 7.2.15 Flea Market. As a flea market, pawn shop, government surplus store,
2 goodwill store, salvage store, Salvation Army Store or liquidation store, except
3 that a high class liquidation store (such as "Tuesday Morning ") shall be
4 allowed.
5 7.2.16 Educational. Any training or educational facility, including: beauty schools,
6 barber colleges, reading rooms, places of instruction or other operations
7 catering primarily to students or trainees rather than to customers; provided
8 however, this prohibition shall not be applicable to on -site employee training
9 by an occupant incidental to the conduct of its business at the Shopping
10 Center or to incidental instruction, such as music lessons, in connection with a
11 retail use.
12 7.2.17 Gambling. Any gambling facility or operation, including: off -track or sports
13 betting parlor; table games such as black jack or poker; slot machines, video
14 poker /black - jack/keno machines or similar devices; or bingo hall.
15 Notwithstanding the foregoing, this prohibition shall not apply to governmental
16 sponsored gambling activities (such as the sale of lottery tickets), or to
17 charitable gambling activities, so long as such governmental and /or charitable
18 activities are incidental to the business operation being conducted by the
19 occupant.
20 7.2.18 Animal Facilities. As any veterinary hospital or animal raising facilities.
21 7.3 Use Restrictions on the Shopping Center (other than the Supermarket Tract and the
22 City Tract). No portion of the Shopping Center, other than the City Tract and /or the
23 Supermarket Tract, shall be used or operated for any of the following:
24 7.3.1 Restaurant. As a restaurant, except that one or more restaurants of up to an
25 aggregate total of 8,000 Rentable Feet may be allowed in the Shopping
26 Center (exclusive of the Premises), as long as any such restaurant does not
27 sell any alcoholic beverages.
28 7.3.2 Food Departments. As a fruit market or department; meat market or
29 department; bakery or bakery department (except that the foregoing shall not
30 apply to a "Bruegger's type" bagel shop, specialty cookie, donut or specialty
31 bun shop or similar specialty store); produce market or department; dairy
32 market or department (except that the foregoing shall not apply to a frozen
33 yogurt shop or ice cream shop); or convenience type food store.
34 7.3.3 Fitness Center. Any health spa, fitness center or workout facility or dance
35 facility.
36 7.3.4 Pharmacy. As a drug store or pharmacy, except that if a pharmacy ceases to
37 be operated in the Supermarket Tract for a period in excess of 365 days, the
38 restriction in this subsection 7.3.4 shall thereafter be null and void.
39 7.3.5 Supermarket. As a supermarket, grocery store or food store, except that if a
40 supermarket ceases to be operated in the Supermarket Tract for a period in
XI GROUMEGALI SMITFWARKS IDOCUMENTIEDINAXREAE.DOC Page 14 of 20 6/27/96
1 excess of 365 days, the restriction in this subsection 7.3.5 shall thereafter be
2 null and void.
3 7.3.6 Miscellaneous, As a circus; carnival; bowling alley; medical or dental health
4 facility; car wash; game room or arcade; billiard or pool hall; unemployment
5 office; Business Office; Retail Office (except that not more than 10% of the
6 total Rentable Feet of the Shopping Center may be used for Retail Office);
7 post office; or lawn and garden center.
s 7.3.7 Non - Retail. For any non - retail use.
9 7.4 Use Restriction on the City Tract. The City agrees that no portion of the City Tract
10 shall be used or operated as a supermarket, grocery store, food store, convenience
11 type food store, food sale department within a store, or gas station. The restriction
12 contained in this subsection 7.4 shall not prohibit the sale of food items at a liquor
13 store operated at the City Tract so long as such sale of food items is only incidental
14 to the primary business. As provided in the definition of the City Tract, the City Tract
15 is initially defined to mean Lot 1, but if at any time the City and Developer exchange
16 ownership of Lot 1 with Lot 4 so that the City is no longer the owner of Lot 1 but is the
17 owner of Lot 4, then from and after the date of such exchange the City Tract shall be
18 deemed to be Lot 4. Therefore, the restriction contained in this subsection 7.4 shall
19 apply to Lot 1 until such time, if any, as the City and Developer exchange ownership
20 of Lot 1 with Lot 4, and following any such exchange in ownership the restriction
21 contained in this subsection 7.4 shall not apply to Lot 1 but shall apply to Lot 4. In
22 addition, following any such exchange in ownership: (a) all other restrictions
23 contained in this Agreement shall apply to Lot 1, except that in the event all or a
24 portion of Lot 1 is used in conjunction with a supermarket, grocery store, food store
25 or convenience type store located on the Supermarket Tract, then any restrictions
26 contained in this Agreement which do not apply to the Supermarket Tract shall also
27 not apply to the portion of Lot 1 so used in conjunction with the Supermarket Tract;
28 and (b) any restrictions contained in this Agreement which do not apply to the City
29 Tract shall not apply to Lot 4.
30 7.5 Use - Remedies. In the event of breach of any of subsections 7.1, 7.2, 7.3 or 7.4,
31 any Owner shall be entitled to injunctive or other equitable relief, in addition to any
32 rights and remedies available to such Owner under this Agreement or at law.
33 7.6 Existing /New Leases. Notwithstanding anything to the contrary contained herein, the
34 restrictions contained in this Section 7 shall not apply during the term of any lease to
35 any tenant of the Shopping Center whose lease was in existence on or before the
36 Execution Date, including any renewal or extension periods provided for in such
37 lease as of the Execution Date, to the extent that such lease allows the tenant
38 thereunder to operate its premises in violation of such restrictions. If any such lease
39 requires Landlord's consent to the tenant thereunder operating its premises in
40 violation of any restriction contained in this Section 7, Landlord agrees to withhold
41 such consent.
X:I GROUMLEGALISMITWARKSI DOCUMENTEDINAIREAE.DOC Page 15 of 20 627/96
1 8. Taxes and Assessments
2 Property taxes and assessments shall not be considered CAM Charges, and so each
3 Owner shall pay all taxes and assessments with respect to its Tract, the buildings, and
4 improvements located thereon and any personal property owned or leased by such Owner
5 in the Shopping Center.
6 9. Defaul
7 9.1 Force Majeure. The time within which any Owner to this Agreement is required to
8 perform any act shall be extended to the extent that performance of such act is
9 delayed by Force Majeure, but only if such delay was beyond that Owner's
10 reasonable control and was not caused by its fault or negligence. "Force Majeure"
11 shall mean acts of god, fire, abnormal weather, explosion, riot, war, labor disputes,
12 governmental restrictions, inability to obtain necessary materials, or any other cause
13 beyond such Owner's reasonable control. The inability to obtain financing or lack of
14 money shall not constitute Force Majeure.
15 9.2 Notice: Cure. If any Owner fails to comply with any provision of this Agreement (the
16 "Defaulting Owner "), then any other Owner (the "Non- Defaulting Owner ") may upon
17 30 days' prior written notice to the Defaulting Owner, proceed to cure the default.
18 The foregoing right to cure shall not be exercised if within the 30 day notice period
19 (a) the Defaulting Owner cures the default, or (b) if the default is curable, but cannot
20 reasonably be cured within that time period, the Defaulting Owner begins to cure
21 such default within such time period and diligently pursues such cure to completion.
22 The 30 day notice period shall not be required if, using reasonable judgment, the
23 Non - Defaulting Owner deems that an emergency exists which requires immediate
24 attention. In the event of such an emergency, the Non - Defaulting Owner shall give
25 whatever notice to the Defaulting Owner is reasonable under the circumstances.
26 Within 10 days after written demand (including providing copies of invoices reflecting
27 costs) the Defaulting Owner shall reimburse the Non - Defaulting Owner for any
28 amount reasonably spent by the Non - Defaulting Owner to cure the default, together
29 with interest on such amount.
30 9.3 Lien. The Non - Defaulting Owner shall have a lien upon the Defaulting Owner's right,
31 title, and interest in and to any portion of the Defaulting Owner's Tract to secure
32 payment of all amounts due to the Non - Defaulting Owner under subsection 9.2. The
33 Non - Defaulting Owner shall have the right, but not the obligation, to record its lien,
34 but at all times its lien pursuant to this subsection shall be subject and subordinate to
35 (a) the lien of any mortgage or deed of trust held by any institutional lender, or any
36 extension, renewal, modification or refinancing thereof, on the Defaulting Owner's
37 Tract; (b) the leasehold estate created by any lease of all or any part of the
38 Defaulting Owner's Tract; (c) any other lien of record against the Defaulting Owner's
39 Tract as of the date that the Non - Defaulting Owner's lien is recorded. The
40 Non - Defaulting Owner shall have the right to foreclose such lien in the manner
41 provided by law.
42 9.4 Interest. Wherever and as often as one Owner shall not have paid any sum payable
43 hereunder to another Owner within five days of the due date, such delinquent Owner
44 shall pay interest on such amount from the due date, through and including the date
X:IGROUP\ LEGAL\ SMITH \PARKS\DOCUMENT\EDINA\REAE.DOC Page 16 of 20 627/96
1 such payment is received by the Owner entitled thereto, at the lesser of the following:
2 (a) the highest rate permitted by law to be paid on such type of obligation by the
3 Owner obligated to make such payment; or (b) three percent per annum in excess of
4 the interest rate from time to time publicly announced by Norwest Bank, Minneapolis
5 National Association, or its successor, as its reference rate, even though Norwest
6 Bank, or its successor, may lend funds to its customers at interest rates that are at,
7 above, or below such reference rate.
8 9.5 Agreement Shall Continue Notwithstanding Breach. It is expressly agreed that no
9 breach of this Agreement shall (a) entitle any Owner to cancel, rescind, or otherwise
10 terminate this Agreement, or (b) defeat or render invalid the lien of any mortgage or
11 deed of trust made in good faith and for value as to any part of the Shopping Center;
12 however, such limitation shall not affect in any manner any other rights or remedies
13 which an Owner may have under this Agreement by reason of any such breach.
14 10. Notices
15 All notices given under this Agreement shall be in writing and shall be deemed
16 given to an Owner when delivered at such Owner's Tract, except that notices to the
i7 Owner of the City Tract shall be deemed given only when delivered to the City at
18 401 West 50th Street, Edina, Minnesota 55424 -1394 or to such other address of
19 which the other Owners have been given notice by the City. If the last day for
20 giving any notice or taking any action required or permitted under this Agreement
21 would otherwise fall on a Saturday, Sunday, or legal holiday, that last day shall be
22 postponed until the next legal business day.
23
24 11. Miscellaneous
25 11.1 Waiver of Subrogation. Each Owner (the "Releasing Owner ") hereby releases and
26 waives for itself and on behalf of any insurer, any other Owner (the "Released
27 Owner ") from any liability for any loss or damage to all property of such Releasing
28 Owner located upon any portion of the Shopping Center, which loss or damage is
29 covered by insurance, irrespective either of any negligence on the part of the
30 Released Owner which may have contributed to or caused such loss.
31 11.2 Estoppel. Each Owner shall, within 30 days after written request from another Owner
32 (but not more often than twice in any 12 month period), execute and deliver to the
33 requesting party an estoppel letter certifying whether any other Owner is delinquent
34 in any payments required to be made to the certifying Owner pursuant to this
35 Agreement.
36 11.3 Not a Public Dedication. Nothing contained in this 'Agreement shall be deemed to be
37 a gift or dedication of any portion of the Shopping Center, or of any Tract, or of any
38 portion of the Shopping Center or any Tract, to the general public or for any public
39 use or purpose whatsoever.
40 11.4 Integration: Enforceability- Except for applicable laws, ordinances, codes, rules,
41 regulations and other governmental rights and actions, (a) this Agreement, including
42 any recitals and any attached exhibits, all of which are made a part of this
XIGROUPILEGALISMITMPARKSIDOCUMENT \EDINAVtEAE.DOC Page 17 of 20 6f27196
I
Agreement, contains the entire agreement between the parties as to the subjects
2
covered in this Agreement, except with respect to utility easements at the Shopping
3
Center and except as such subjects may be covered in other documents executed on
4
the Execution Date or pursuant to a document or documents executed on the
5
Execution Date; (b) no representations, warranties, inducements, promises,
6
understandings, assurances, or agreements relating to the subject covered by this
7
Agreement, except with respect to utility easements at the Shopping Center and
8
except as such subjects may be covered in other documents executed on the
9
Execution Date or pursuant to a document or documents executed on the Execution
10
Date (whether express or implied, or whether oral or written) made before the
11
execution of this Agreement will change its terms or may be legally enforced; and
12
(c) no promises or other terms shall be implied in this Agreement.
13 11.5 Amendments. This Agreement may only be amended by a written agreement signed
14 by all of the then current Owners. Any such amendment shall be effective only when
15 recorded in the county and state where the Shopping Center is located. No consent
16 to the amendment of this Agreement shall ever be required of any Occupant or
17 Person other than the Owners and the holder of any first mortgage on any portion of
18 the Shopping Center.
19 11.6 Binding Effect. This Agreement shall both bind and benefit the parties to this
20 Agreement and their respective heirs, personal representatives, successors and
21 assigns who become Owners. The easements, covenants, agreements, conditions,
22 terms, obligations, limitations and undertakings in this Agreement shall be construed
23 as covenants running with the land. This Agreement is not intended to supersede,
24 modify, amend, or otherwise change the provisions of any other instrument affecting
25 the Shopping Center.
26 11.7 Captions. The section numbers and captions are inserted only as a matter of
27 convenience, and do not in any way define, limit, or describe the scope or intent of
28 this Agreement. Any references in this Agreement to a Section or subsection shall
29 refer to such Section or subsection of this Agreement, unless expressly provided
30 otherwise.
31 11.8 Interpretation of "including ". Wherever the word "including" is used in this
32 Agreement, or in any recital or exhibit to this Agreement, it shall mean "including
33 without limitation."
34 Developer and the City have signed this Agreement below as of the Execution Date.
DEVELOPER:
YORKDALE OP S PARTNERS, LLC
By:
Robert N. duck, its Chief Manager
X:\GROUP\ LEGAL\ SMITMPARKS \DOCUMENTEDINA\REAE.DOC Page 18 of 20 6/271%
THE CITY:
THE CITY OF EDINA
By: By:
Its: 1 ' lu'wnr Its: C", ry%Q r
ACKNOWLEDGMENTS
STATE OF MINNESOTA)
) ss.
COUNTY OF HENNEPIN)
This instrument was acknowledged before me on a , 1996, by Robert
N. Shadduck, the Chief Manager of YORKDALE SHOP S PARTNERS, LLC, a Minnesota
limited liability company, on behalf of the company.
oyatqav�� (f
Notary lic
My Commission Expires:
STATE OF MINNESOTA
) ss.
COUNTY OF HENNEPIN
- - - - - - E _. 0.0 _~9P.00 -
a. MARGARET E. REED MA
My Co m issionExEx�pires
January 31. 2000
This instrument was acknowledged before me on :S,..,, a y , 199 , by
F -&accts S. R: "A& , the r"fte:,,or of
THE CITY OF EDINA, a Minnesota municipal corporation, on behalf of the corporation.
J("�
Notary Public
My Commission Expires:
•`"'�. LORRAINE M PRINDLE
NOTARY PUBIIC MINNESOTA
MY COMMISSION EXPIRES
y...• JANUARY 31 2000
X:\ GROUP\ LEGAL\ SMITH IPARKS\DOCUMENTIEDINA\REAE.DOC Page 19 of 20 627/96
C4 tI-
h 9 vRATCM
r;
STATE OF MINNESOTA
) ss.
COUNTY OF HENNEPIN
This instrument was acknowledged before me on :% a it , 199b , by
KQ��.�h �• 1200a '.d the c', ar- of
THE CITY OF EDINA, a Minnesota municipal corporation, on behalf o the corporation.
My Commission Expires:
This document was drafted by:
SUPERVALU INC. (bhp)
11840 Valley View Road
Eden Prairie, MN 55344 -3691
X:\ GROUP\ LEGAL\ SMITMPARKSIDOCUMENT\EDINAIREAE. DOC
31 -
Notary Public
LORRAINE M PRINDLE~
NOTARY PUBLIC MINNESOTA
MY COMMISSION EXPIRES
`'•••' JANUARY 31 2000
Page 20 of 20
6!27196
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EXHIBIT B
SITE PLAN
(Yorkdale Shoppes, Edina, Minnesota)
Color Guide
[For reference purposes only, Agreement language to control]
Agreement Section Description Color
4.1 building envelopes blue
7.2.5 Tires Plus Parking pink
X\ GROUMEG&\ SMffWARKS \DOCUMENIIEDINA\REAE.DOC Exhibit B
6127/96
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ASSIGNMENT OF REAL ESTATE EXCHANGE AGREEMENT
THIS ASSIGNMENT OF REAL ESTATE EXCHANGE AGREEMENT is
made and executed by YORKDALE SHOPPES PARTNERS, LLC, a Minnesota limited
liability company ( "Borrower "), to FIRST BANK NATIONAL ASSOCIATION, a
national banking association ( "Lender "), as of the '4 3 '' day of �Yu � �.
1996.
WILTNESSETH:
WHEREAS, Lender and Borrower have entered into a Construction
Loan Agreement dated as of -1un-e ag 1996 ( "Construction Loan
Agreement "), pursuant to which Lender has agreed to lend to Borrower up to
$11,000,000.00 to finance acquisition, demolition, construction and equipping of
retail stores, appurtenant parking facilities and related improvements
( "Improvements ") on certain land ( "Land "), which, together with the
Improvements, is referred to herein as the "Premises ", located in the City of Edina,
Hennepin County, Minnesota; and
WHEREAS, in accordance with the Construction Loan Agreement,
Borrower has executed and delivered to Lender its Promissory Note in the face
principal amount of $11,000,000.00, which is secured by, among other instruments, a
Combination Mortgage, Security Agreement and Fixture Financing Statement
covering Borrower's right, title and interest in and to the Premises; and
WHEREAS, Borrower and the City of Edina, a Minnesota municipal
corporation ( "City "), have entered into and executed that certain Real Estate
Exchange Agreement ( "Exchange Agreement ") dated a g . 1996, whereby
Borrower has agreed to convey a portion of the Premises to the City in exchange for
land owned by the City adjoining the Premises, upon the terms and conditions set
forth therein; and
WHEREAS, Lender will not advance funds pursuant to the
Construction Loan Agreement unless and until this Assignment is fully executed;
and
WHEREAS, Borrower desires to execute this Assignment, in
accordance with the terms and provisions hereof, in order to induce Lender to
advance funds pursuant to the Construction Loan Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the
mutual promises contained herein, and for the additional consideration of Ten
Dollars ($10.00), the receipt and sufficiency of which are hereby acknowledged by
Borrower, Borrower hereby agrees that the foregoing recitals are true and correct and
are by this reference hereby made a part hereof as if fully set forth below, and further
covenants and agrees as follows:
1. Borrower hereby assigns its rights, title and interests in, under and
pursuant to the Exchange Agreement to Lender, it being understood and agreed that,
if an event of default (as that term is defined in the Construction Loan Agreement)
does not occur, and the Improvements are completed in accordance therewith, all
amounts advanced by Lender to or for the benefit of Borrower pursuant thereto are
paid in full when due, and all other obligations of Borrower thereunder are fully
performed, then this Assignment shall terminate.
2. If such an event of default does occur, then Lender may, at its
option, take over Borrower's position under the Exchange Agreement. In such
event, Lender shall have all of the rights of Borrower under the Exchange
Agreement.
3. Lender's taking over of Borrower's position under the Exchange
Agreement shall be preceded by at least three (3) Business Days' (as that term is
defined in the Construction Loan Agreement) prior written notice to all other
parties thereto.
4. Borrower shall not permit the Exchange Agreement to be modified
or amended, and Borrower shall not waive any of its rights under the Exchange
Agreement, without the prior written consent of Lender.
5. In addition, Borrower hereby grants to Lender a security interest in
Borrower's rights, title and interests in, to and under the Exchange Agreement, if
and to the extent that a security interest may be granted therein under the
Minnesota Uniform Commercial Code, and Borrower acknowledges that Lender
shall have all of the rights and remedies with respect thereto provided for by the
Minnesota Uniform Commercial Code, in addition to the other rights and remedies
herein granted to Lender, in the event of the occurrence of an event of default
under the Construction Loan Agreement.
6. Subject to the provisions hereof, this Assignment shall be binding
upon Borrower and its successors and assigns, and shall inure to the benefit of
Lender and its successors and assigns. Lender may assign its rights under this
Assignment, without the consent of Borrower, but Borrower may not assign its
obligations under the Exchange Agreement or under this Assignment without the
prior written consent of Lender.
1WR
7. Any notice required or permitted to be given under or pursuant to
this Assignment shall be given in the manner provided for the giving of notice in
the Construction Loan Agreement.
IN WITNESS WHEREOF, Borrower has caused this instrument to be
executed as of the day and year first above written.
YORKDALE SHOPPES PARTNERS, LLC, a
Minnesota limited liability company
Its
Borrower
-3-
CONSENT
The undersigned party to that certain Real Estate Exchange Agreement
dated -S u n 2 a 12 1996 ( "Exchange Agreement "), between Borrower and the
undersigned hereby (i) consents to the foregoing assignment thereof by Borrower to
Lender; (ii) agrees to continue to perform under the terms of the Exchange
Agreement for the benefit of Lender, if Lender elects to and does take over
Borrower's position under the Exchange Agreement, provided that Lender assumes
and performs all of the covenants and obligations of the Borrower under the terms
and conditions of the Exchange Agreement; (iii) agrees to send to Lender a copy of
each notice or other communication sent by it to Borrower pursuant to the terms of
the Exchange Agreement, at the same time the same is sent to Borrower; and (iv)
agrees not to terminate, or accept termination of, the Exchange Agreement without
giving at least thirty (30) days' prior written notice to Lender, provided, however,
that such thirty (30) day notice shall not be required in those instances where the
Exchange Agreement terminates by its terms without further notice, if the
undersigned has provided Lender with a copy of each notice or other
communication required by the Exchange Agreement to be sent to Borrower as a
prerequisite to such termination. Lender, upon receipt of such notice, shall have
the right, but not the obligation, at its option, to take over Borrower's position
under the Exchange Agreement and /or to cure the grounds asserted by the
undersigned for termination of the Exchange Agreement. The undersigned will not
terminate the Exchange Agreement while Lender is promptly, diligently and
actively prosecuting such a cure.
Notwithstanding the foregoing, if Lender elects to and does assume
and perform the covenants and obligations of Borrower under the Exchange
Agreement, including execution of the Relocation and Financial Guaranties
Agreement attached as Exhibit E to the Exchange Agreement ( "Relocation
Agreement "), Lender shall have no liability of any kind whatsoever for payment of
the obligations described in Paragraph 1 of the Relocation Agreement, which are
personal obligations of Borrower and Jerry's Enterprises, Inc. only and not the
obligations of Lender.
All notices and other communications sent by the undersigned to
Lender pursuant hereto shall be sent in the manner prescribed by the Exchange
Agreement addressed as follows:
First Bank National Association
First Bank Place - MPFP0802
601 Second Avenue South
Minneapolis, Minnesota 55402
Attention: Real Estate Banking Division Head.
-4-
The undersigned hereby represents and warrants to Lender, for the
purpose of inducing Lender to enter into the aforementioned Construction Loan
Agreement, that: (a) to the best of the undersigned's knowledge, no default, event
of default or breach of any representation or warranty exists under the Exchange
Agreement; and (b) the undersigned has approved the title (as shown on Exhibit A
attached hereto and hereby made a part hereof) to the New Liquor Store Parcel (as
that term is defined in the Exchange Agreement) and the Phase I Environmental
Site Assessment for the New Liquor Store Parcel (as described on Exhibit B attached
hereto and hereby made a part hereof), so that the undersigned has no further right
to terminate the Exchange Agreement under Paragraph 15 thereof, unless the status
of title to, or the environmental condition of, the New Liquor Store Parcel changes
prior to the Date of Closing (as that term is defined in the Exchange Agreement).
The undersigned also agrees that it will not enter into any amendment
or modification of the Exchange Agreement without the prior written consent of
Lender.
Nothing contained in the foregoing Assignment or in this Consent
shall alter any of the obligations of Borrower under the Exchange Agreement,
including but not limited to the obligation of Borrower to convey title to the New
Liquor Store Parcel on the Date of Closing free and clear of any liens or
encumbrances not approved by the undersigned.
Dated: S- v e z 1996.
Address for notices:
City of Edina
4801 West 50th Street
Edina, Minnesota 55424 -1394
CITY OF EDINA, a Minnesota municipal
corporation
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By — ;?�"- 5 1�
Its
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EXHIBIT A
The only encumbrances shall be
2
Easement in favor of the City of Edina for utility and drainage purposes dated
August 25, 1965, filed December 30, 1965, as Document No. 834115.
2. The Reciprocal Easement Agreement between Yorkdale Shoppes Partner, LLC
and the City of Edina dated of even date herewith.
Exhibit B
• Report entitled "Phase I and Limited Phase II Environmental Assessment,
The Yorkdale Shoppes, 6802 -6821 York Avenue South, Edina, Minnesota"
dated October 20, 1995 prepared by Nova Environmental Services, Inc.
( "Nova ") for Bradley Midwest Management (Nova Project No. M95 -922),
together with letter dated June 21, 1996, from Nova to First Bank National
Association granting First Bank National Association the right to rely on said
Report.
• Report entitled "Operations and Maintenance Program, Asbestos - Containing
Materials, Yorkdale Shoppes, 6805 -6821 York Avenue South, Edina,
Minnesota" dated June 21, 1996, prepared by Nova for Welsh Companies
(Nova Project No. M96 -548).
• Workplan Asbestos Removal, Yorkdale Shoppes, 6805 -6821 York Avenue
South, Edina, Minnesota dated June 27, 1996, prepared by Nova for Yorkdale
Shoppes Partners, LLC (Nova Project No. M96 -549).
• Report entitled "Phase I Environmental Assessment, 6716 -6728 Xerxes
Avenue, 6775 -6801 York Avenue, Edina, Minnesota" dated June 21, 1996,
prepared by Nova for Yorkdale Shoppes Partners, LLC, First Bank National
Association and City of Edina (Nova Project No. M96 -548).
• Letter Report regarding limited subsurface investigation, 6775 York Avenue
South, Edina, Minnesota, dated June 27, 1996, from Nova to Yorkdale
Shoppes Partners, LLC and First Bank National Association (Nova Project
No. M96 -593).
• Report entitled "Asbestos Building Surveys, 6716, 6720, 6724 Xerxes Avenue
South, 6775, 6801, 6803 York Avenue South, Edina, Minnesota" dated June 24,
1996, prepared by Nova for Yorkdale Shoppes Partners, LLC (Nova Project No.
M96 -549).
• Workplan Asbestos Removal At 6716, 6720, 6724 Xerxes Avenue South, 6775,
6801 York Avenue South, Edina, Minnesota" dated June 27, 1996, prepared by
Nova for Yorkdale Shoppes Partners, LLC (Nova Project No. M96 -549).