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9.b. Developer Contract for The Rosemount at Steeple Center
ROSEMOUNTEXECUTIVE SUMMARY CITY COUNCIL City Council Regular Meeting: March 18, 2014 AGENDA ITEM: Motion to Approve the Contract for Private Development for The Rosemount AGENDA SECTION: at Steeple Center by and among the New Business Rosemount Port Authority and the City of Rosemount and Rosemount Senior Living Associates I, LLC PREPARED BY: Kim Lindquist, Community Development AGENDA NO. b, Director ATTACHMENTS: Draft Contract, January 21, 2014 City APPROVED BY: Council Minutes and Memorandum Opi RECOMMENDED ACTION: Motion to Approve Contract with the Ability to Revise Appendix F Relating to the Link. BACKGROUND The City and Port Authority have been working for several years to attract a developer at the Steeple Center site to construct a senior assisted living project. On City Council agenda is the planning approval requests for The Rosemount at Steeple Center, a 90-unit senior housing project that will be located along the north and west portion of the site. Along with the planning approvals, the Contract for Private Development is needed. The contract lays out the agreement for performance by the City and the developer,Rosemount Senior Living I,LLC. At the January 21 City Council worksession, and Port Authority meeting, the draft agreement was discussed. The following was the highlight of the main topics in the agreement: • The property will be sold for$1 to the developer. • Park dedication will not be required for the memory care and care suite units which are estimated to be 30. • Any SAC credits over and above what is needed for the City's public Activity Center will be allocated to the private senior housing project. • The developer will have access to some of the LCDA grant monies, particularly $200,000 for the underground stormwater storage facility, so long as they comply with all LCDA requirements. During the meeting, the Council asked several questions.They were interested in allowing the credit for park dedication fees for the 30 memory care and care suite units but wanted a lump sum payment for$20,000 for senor activity equipment to be located in the vicinity. Staff requested the developer make the $20,000 contribution which is reflected in the revised contract before the Council. The other item of concern was the commencement of construction date and project completion date. The agreement moved the commencement date to August 30,2014 but continues to maintain the completion date of December 2015. Please note that there is a fair amount of information relating to an enclosed walkway link between the senior housing and the activity center in the development agreement Appendix F.The City and developer continue to discuss if the link is a necessary element of the project.With the changes in the lower level layout in the senior housing,the public space will now be immediately adjacent to living space. That means the public will have to go through a residential corridor to access the services in the private senior housing project. The impetus for the link was when the City was negotiating with the Doran Company about the senior housing project.At that time,Doran was interested in using a portion of the public activity center for programming for their residents. The City was also interested in having easy access to some of the services that would be available in the housing project,and also the potential to have catering from the housing project. Under the current project, the senior housing building contains space for programming of their own activities. The new activity center will have kitchen facilities which will be a great improvement as compared to the current condition at the Steeple Center. The change makes it questionable how much catering would come from the senior housing building. There were also some grade issues that could be improved upon if the housing was not attached to the public building.At this point a final decision about the link has not been made. If the Port Authority and City Council have a strong opinion about including the link, or not,they should make that known at this meeting. Because the agreement currently includes language about the link, rather than bring the item back to the Port Authority and City Council, staff is asking the item be approved allowing for deletion of the items relating to the link, should the link be removed from the site plan in the near future. CONCLUSION Motion to approve Contract with the ability to revise appendix F should the link feature be deleted from the plans. 9ROSEI\40L[NT EXECUTIVE SUMMARY CITY COUNCIL City Council Work Session Date: January 21, 2014 AGENDA ITEM: Draft Development Agreement-Steeple AGENDA SECTION: Center Senior Housing Discussion PREPARED BY: Kim Lindquist, Community Development AGENDA NO. Director 2.0. ATTACHMENTS: Draft Agreement APPROVED BY: OA) RECOMMENDED ACTION: Discussion Item Only ISSUE The City has been working with Wally Johnson and more recently Mark Appelbaum to redevelop the Steeple Center site to include a private assisted senior housing project.They continue to work on drawings for Planning Commission submittal with a tentative date of February 25,2014 for Commission review and Council review in March. Meanwhile,staff and the City Attorney have been working on the development agreement which is attached.While the template is somewhat similar to the development agreement for Waterford Commons,there is no TIF associated with the project and therefore the agreement is simplified. DISCUSSION Staff wanted to bring this item to the Council for discussion prior to the Council being asked to take final action on the project.This item is also on the Port Authority agenda as both the Council and Port Authority own land associated with the project.There are four main financial items found in the agreement • The property will be sold for$1 to the developer. • Park dedication will not be required for the memory care and care suite units which are estimated to be 30. • Any SAC credits over and above what is needed for the City's public Activity Center will be allocated to the private senior housing project. • The developer will have access to some of the LCDA grant monies,particularly$200,000 for the underground stormwater storage facility,so long as they comply with all LCDA requirements. It is unclear if all of the above issues were discussed with the Council when staff last brought a development agreement to the Council;when the City was partnering with Doran. In response to the City's commitment,the developer is stating(in the agreement) that they will build a senior housing facility(minimum improvements) generally consistent with the plans that the Council has already viewed.Depending upon when the drawings for the Commission review come into the City,these may be added to the Agreement as the attachments. The process of approving the development agreement prior to final site and rezoning approval does not reduce the City's ability to require modifications to the site plan should the Council deem it appropriate.Rather,the agreement clarifies what the two parties are willing to do in the partnership, should both perform consistent with the agreement. There are a few items yet to be determined.These issues are generally related to the maintenance of shared improvements such as the building link or the underground stormwater tank.A final decision needs to be made as to where the property line is located between the future two newly created properties.And a discussion about shared maintenance for site improvements such as landscaping, parking,and irrigation needs to be explored.These items are noted in the development agreement- that the City and Developer agree to work toward a maintenance agreement. RECOMMENDATION Prior to being asked to approve the development agreement,staff wanted the Council to have an opportunity to review the document and discuss the financial considerations in the agreement. 2 EXCERPT OF MINUTES CITY COUNCIL SPECIAL WORK SESSION JANUARY 21, 2014 2.8. Draft Development Agreement- Steeple Center Senior Housing Community Development Director Lindquist provided information about the draft development agreement and process for moving forward on the project. Discussion was held about the park dedication fees required. Council Member Shoe-Corrigan suggested that all pay for the fee even though not all use the parks. She suggested they donate money towards senior equipment at Central Park. City Administrator Johnson expressed concern about demanding fees not supported by law from the developer. Council Member Shoe-Corrigan stated the property was sold only for a $1 and the request was not significant. Staff provided other updates on the project to date. Discussion was held about the start date of November, 2014 and completion by December, 2015. Council Member Weisensel concerned about that length. He wanted to know who picked the November deadline. Ms. Lindquist explained that many variables may be involved but that the developer was planning to submit applications within the next week. Council Member Shoe-Corrigan requested that staff inquire if the developer would be willing to install $20,000 in senior amenities at a nearby park to benefit residents. She agreed that the memory care units would not be included in the park dedication fees. Mayor Droste requested that staff provide monthly updates on the project. Ms. Lindquist noted that the developer would be applying for Planning Commission approvals in the next week. DRAFT CONTRACT FOR PRIVATE DEVELOPMENT FOR THE ROSEMOUNT AT STEEPLE CENTER By and Among THE ROSEMOUNT PORT AUTHORITY and THE CITY OF ROSEMOUNT and ROSEMOUNT SENIOR LIVING ASSOCIATES I,LLC This document drafted by: KENNEDY&GRAVEN,CHARTERED 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis,MN 55402 (612)337-9300 438026 RS230-60 TABLE OF CONTENTS PAGE PREAMBLE 1 ARTICLE I Definitions Section 1.1. Definitions 1 Section 1.2. Exhibits 3 Section 1.3. Rules of Interpretation 3 ARTICLE II Representations and Warranties Section 2.1. Representations by the Authority and the City 3 Section 2.2. Representations and Warranties by the Developer 3 ARTICLE III Acquisition of Development Property Section 3.1. Purchase of Property by Developer 4 Section 3.2. Title and Examination 4 Section 3.3. Taxes and Special Assessments 5 Section 3.4. Soil Conditions and Hazardous Wastes 5 Section 3.5. Site Clearance and Subdivision 5 Section 3.6. Other Preconditions to Closing 5 Section 3.7. Closing 6 Section 3.8. Closing Costs 6 Section 3.9. Sewer and Water 6 Section 3.10. ISTS Disclosure 6 Section 3.11. Well Disclosure 6 Section 3.12. Easement Agreement 6 ARTICLE IV Construction of Minimum Improvements Section 4.1. Construction of Minimum Improvements 7 Section 4.2. Construction Plans 8 Section 4.3. Commencement and Completion of Construction 8 Section 4.4. Certificate of Completion and Release of Forfeiture 8 Section 4.5. Required Insurance 8 438026 RS230-60 i ARTICLE V Business Subsidy Act Requirements Section 5.1. Business Subsidy 10 ARTICLE VI Events of Default Section 6.1. Events of Default Defined 10 Section 6.2. Remedies on Default 10 Section 6.3. Revesting Interest in the Authority and the City upon Happening of Event of Default Subsequent to Conveyance to Developer 11 Section 6.4. No Remedy Exclusive 12 Section 6.5. No Additional Waiver Implied by One Waiver 12 ARTICLE VII Restrictions on Sale; Subordination Section 7.1. Restrictions on Sale or Assignment 12 Section 7.2. Subordination 14 ARTICLE VIII Additional Provisions Section 8.1. Conflict of Interests;Representatives Not Individually Liable 14 Section 8.2. Restrictions on Use 15 Section 8.3. Provisions Not Merged With Deed 15 Section 8.4. Notices and Demands 15 Section 8.5. Counterparts 15 Section 8.6. Disclaimer of Relationships 15 TESTIMONIUM 16 SIGNATURES 16-18 EXHIBIT A LEGAL DESCRIPTION OF CITY/AUTHORITY PROPERTY EXHIBIT B PRELIMINARY PLAN DOCUMENTS EXHIBIT C FORM OF CERTIFICATE OF COMPLETION AND RELEASE OF FORFEITURE EXHIBIT D SKETCH OF DEVELOPMENT PROPERTY EXHIBIT E FORM OF PROPERTY DEED EXHIBIT F FORM OF PARKING,ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT 438026 RS230-60 ii CONTRACT FOR PRIVATE DEVELOPMENT FOR THE ROSEMOUNT AT STEEPLE CENTER This Contract for Private Development for The Rosemount At Steeple Center (the "Agreement"), made this day of , 2014, by and among the Rosemount Port Authority, a public corporation under the laws of Minnesota (the "Authority"), the city of Rosemount, a Minnesota municipal corporation (the "City"), and Rosemount Senior Living Associates I,LLC,a Minnesota limited liability company(the"Developer"). WITNESSETH: WHEREAS, the Authority and the City are the fee owners of certain land legally described on Exhibit A attached hereto(the"City/Authority Property"); and WHEREAS, the Developer desires to purchase the portion of the City/Authority Property depicted on Exhibit D attached hereto (the "Development Property") and construct improvements (the"Minimum Improvements")thereon;and WHEREAS, the Authority and the City believe that the sale and development of the Development Property and the fulfillment generally of this Agreement are in the vital and best interests of Rosemount and the health, safety,morals,and welfare of its residents. NOW, THEREFORE, in consideration of the covenants and the mutual obligations contained herein, the Authority, the City and the Developer hereby covenant and agree with each other as follows: ARTICLE I Definitions Section 1.1. Definitions. In this Agreement the following terms shall have the meanings given unless a different meaning clearly appears from the context: "Agreement" means this Agreement, as the same may be from time to time modified, amended,or supplemented. "Authority" means the Rosemount Port Authority, a public corporation under the laws of Minnesota. "Certificate of Completion and Release of Forfeiture" means a certificate in the form attached hereto as Exhibit C by which the Authority acknowledges that the Developer has met its obligations regarding construction of the Minimum Improvements. 1 438026 RS230-60 "City"means the city of Rosemount,a municipal corporation under the laws of Minnesota. "City/Authority Property" means the real property legally described in Exhibit A attached hereto. Parcels 1 and 3 are owned by the City. Parcel 2 is owned by the Authority. "Construction Plans"means the final plans for construction of the Minimum Improvements to be submitted by the Developer and approved by the Authority and by the City. "County"means Dakota County,Minnesota. "Developer" means Rosemount Senior Living Associates I, LLC, a Minnesota limited liability company. "Development Property"means the portion of the City/Authority Property to be acquired by the Developer and upon which the Minimum Improvements will be constructed. The Development Property is depicted in Exhibit D attached hereto. "Event of Default" means an action by the Developer or the Authority or the City listed in Article VI of this Agreement. "Minimum Improvements"means a senior housing complex having approximately 90 units and related services constructed in accordance with the Construction Plans. After completion of the Minimum Improvements, the term shall mean the Development Property as improved by the Minimum Improvements. "Preliminary Plans" means, collectively, the plans, drawings and specifications for the construction of the Minimum Improvements that are attached hereto as Exhibit B. "Property Deed" means the quit claim deed in the form attached hereto as Exhibit E by which the Authority and the City will convey the Development Property to the Developer. "Sale" means any sale, conveyance, lease, exchange, forfeiture or other transfer of the Developer's interest in the Minimum Improvements or Development Property,whether voluntary or involuntary. "State"means the state of Minnesota. "Substantial Completion" means completion of the Minimum Improvements to the degree allowing issuance of a certificate of occupancy by the City's building official. "Unavoidable Delays" means delays that are the direct result of unanticipated adverse weather conditions; strikes or other labor troubles; fire or other casualty to the Minimum Improvements; litigation commenced by third parties that, by injunction or other similar judicial action, directly results in delays; or any acts or omissions of any federal, State or local governmental 2 438026 RS230-60 unit that directly result in delays in construction of the Minimum Improvements, except those of the City or the Authority reasonably contemplated by this Agreement. Section 1.2. Exhibits. The following exhibits are attached to and by reference made a part of this Agreement: Exhibit A. Legal Description of City/Authority Property Exhibit B. Preliminary Plan Documents Exhibit C. Form of Certificate of Completion and Release of Forfeiture Exhibit D. Sketch of Development Property Exhibit E. Form of Property Deed Exhibit F. Form of Parking,Access and Pedestrian Link Easement Agreement Section 1.3. Rules of Interpretation. (a) This Agreement shall be interpreted in accordance with and governed by the laws of Minnesota. (b) The words "herein" and "hereof' and words of similar import, without reference to any particular section or subdivision, refer to this Agreement as a whole rather than any particular section or subdivision hereof. (c) References herein to any particular section or subdivision hereof are to the section or subdivision of this Agreement as originally executed. (d) Any titles of the several parts,articles and sections of this Agreement are inserted for convenience and reference only and shall be disregarded in construing or interpreting any of its provisions. ARTICLE II Representations and Warranties Section 2.1. Representations by the Authority and the City. The Authority and the City make the following representations as the basis for the undertakings on their parts herein contained: (a) The Authority and the City are public bodies under the laws of Minnesota, each with the power to enter into this Agreement and carry out its obligations hereunder. (b) The persons executing this Agreement and related agreements and documents on behalf of the Authority and the City have the authority to do so and to bind the Authority and the City,respectively,by their actions. Section 2.2. Representations and Warranties by the Developer. The Developer makes the following representations as the basis for the undertakings on its part herein contained: 3 438026 RS230-60 (a) The Developer is a limited liability company, duly organized and in good standing under the laws of Minnesota and is-not in violation of any provisions of its articles of organization or by-laws. The Developer has the power to enter into this Agreement and carry out its obligations hereunder. The persons executing this Agreement and related agreements and documents on behalf of the Developer have the authority to do so and to bind the Developer by their actions. (b) Following conveyance of the Development Property to the Developer, the Developer will construct, operate and maintain the Minimum Improvements on the Development Property in substantial accordance with the terms of this Agreement,the Construction Plans and all local, State and federal laws and regulations, including, but not limited to, environmental, zoning, building code and public health laws and regulations. (c) The Developer will apply for and use its best efforts to obtain, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, the requirements of all applicable local, State and federal laws and regulations that must be obtained or met before the Minimum Improvements may be lawfully constructed or used for their intended purpose. (d) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of, the terms, conditions or provisions or any restriction or any evidence of indebtedness, agreement or instrument of whatever nature to which the Developer is now a party or by which it is bound, or constitutes a default under any of the foregoing. ARTICLE III Acquisition of Development Property Section 3.1. Purchase of Property by Developer. The Authority and the City agree to sell the Development Property to Developer and the Developer agrees to purchase the Development Property from the Authority and the City in an "as-is" condition. The Authority and the City agree to convey the Development Property to the Developer by one or more quit claim deeds in the general form of the Property Deed attached hereto as Exhibit E. The deeds to the Developer will contain the right of reverter required in Section 6.3. The purchase price for the Development Property, payable at Closing, will be One Dollar ($1.00) ("Purchase Price"). Section 3.2. Title and Examination. Within 10 days after execution of this Agreement by all parties, the Authority and the City shall deliver to the Developer a commitment for title insurance covering the City/Authority Property. The Developer shall have 20 days from the date it receives such title commitment to raise any objections to title to the Development Property it may have. Objections not made within such time will be deemed waived. The Authority and the City shall have 90 days from the date of such objection to effect a cure; provided, however, that the Authority and the City shall have no obligation to cure any objections, and may inform Developer of such. The Developer may then elect to close notwithstanding the uncured objections or declare this Agreement null and void, and the parties will thereby be released from 4 438026 RS230-60 any further obligation hereunder. Section 3.3. Taxes and Special Assessments. The Development Property is currently tax exempt because it is part of the City/Authority Property. Real estate taxes for the Development Property will be prorated between the Authority and the City, as vendors, and Developer, as vendee, as of the date of closing. Although there are currently no special assessments levied or pending against any portion of the City/Authority Property, the Authority and the City will pay all special assessments levied against the Development Property prior to the date of closing. Section 3.4. Soil Conditions and Hazardous Wastes. The Developer acknowledges that the Authority and the City make no representations or warranties as to the conditions of the soils on the Development Property, its fitness for the construction of improvements or any other purpose for which the Developer may use the Development Property, or regarding the presence of hazardous wastes on the Development Property. The Authority and the City will allow reasonable access to the Development Property for the Developer to conduct such tests regarding soils conditions and hazardous wastes as the Developer may desire. Permission to enter the Development Property to conduct such tests must be given in writing under reasonable terms and conditions established by the Authority and the City. The Developer shall have 60 days from the date of this Agreement to conduct such tests, investigations and inspections of the Development Property as it deems prudent. The Developer must notify the Authority and the City in writing on or before 60 days from the day of this Agreement if the Developer finds the Development Property unsatisfactory based on the results of the tests, investigations and inspections and wishes to terminate this Agreement. Failure by the Developer to notify the Authority and the City within said 60 days shall constitute a waiver of the environmental contingency. Section 3.5. Site Clearance and Subdivision. The Authority and the City will be responsible for clearance of all buildings as required to prepare the Development Property for development and securing a lawful subdivision, making the Development Property a legally subdivided lot. All other site preparation is the responsibility of Developer. Subject to the reasonable exercise of its discretion and compliance with all procedural requirements, the City agrees to vacate easements necessary to accommodate the Minimum Improvements. The Developer agrees to cooperate with the City in relocating such easements if necessary and requested by the City. Section 3.6. Other Preconditions to Closing. Closing may not take place until: (a) the Developer has submitted and the Authority and the City have approved the Construction Plans; (b) the Developer has demonstrated to the satisfaction of the Authority and the City that it has secured financing adequate to construct the Minimum Improvements; (c) the Authority and the City have completed subdivision of the City/Authority Property, creating the Development Property as a separate parcel of record; 5 438026 RS230-60 (d) the Authority and the City have conducted all hearings and proceedings and have made findings required by law as condition to conveyance of the Development Property and approval of this Agreement, all in the absolute and sole discretion of the City and the Authority; and (e) Developer has secured all land use permits and approvals required for development of its project and construction of the Minimum Improvements including, but not limited to, approval of the Construction Plans. (f) Developer is satisfied regarding the status of title and with regard to soils conditions and hazardous waste as provided in sections 3.2 and 3.4 of this Agreement. Section 3.7. Closing. Closing must take place on or before August 1, 2014 ("Closing Date"), or such other date as may be agreed to by the Developer, the Authority and the City in writing. Section 3.8. Closing Costs. The Developer will pay: (a)the closing fees charged by its title insurance company or other closing agent, if any, utilized to close the transaction for the Developer; (b) fees for the title services chosen by the Developer pursuant to Section 3.2 above, including the premium for title insurance policy, if any, and (c) the recording fees for the Agreement and the Property Deed. The Authority and the City will pay all other fees normally paid by sellers, including (a) any transfer taxes, and (b) fees and charges related to the filing of any instrument required to make title marketable. Each party shall pay its own attorney fees. Section 3.9. Sewer and Water. The Authority and the City warrant that city water is available at the lot line and city sanitary sewer is available at the curb of the Development Property. The water and sanitary sewer service lines are adequate in size to accommodate the Minimum Improvements as well as anticipated improvements on the portion of the City/Authority Property not acquired by the Developer. Section 3.10. ISTS Disclosure. The Authority and the City are not aware of any individual sewage treatment system on the Development Property. Developer is responsible for all costs of removing any individual sewage treatment system that may be discovered on the Development Property. Section 3.11. Well Disclosure. The knowledge of the Authority and the City of wells on the Development Property is disclosed in Exhibit E. Section 3.12. Easement Agreement. At closing the parties shall execute in recordable form the Parking, Access and Pedestrian Link Easement Agreement in the form attached hereto as Exhibit F. 6 438026 RS230-60 ARTICLE IV Construction of Minimum Improvements Section 4.1. Construction of Minimum Improvements. (a) If the Developer purchases the Development Property, the Developer agrees that it will construct the Minimum Improvements on the Development Property in accordance with the Construction Plans. The Developer recognizes that it is because the Developer has agreed to construct the Minimum Improvements that the Authority and the City are willing to sell the Development Property and offer the assistance outlined in this Agreement. The Developer acknowledges that, in addition to the requirements of this Agreement, construction of the Minimum Improvements will necessitate compliance with other reviews and approvals by the City and the Authority and possibly other governmental agencies and agrees to submit all applications for and pursue to their conclusion all other approvals needed prior to constructing the Minimum Improvements. Developer will secure all required permits and pay all permit and development fees and charges for the Minimum Improvements, except that a) Developer will not be required to pay the City park dedication fee for units constructed for memory care and care suite units which are estimated to be 30 units and b) sewer availability charges ("SAC") fees payable by Developer will be reduced by any credits for SAC fees given in recognition of previously existing development on the City/Authority Property,less any such credits needed to pay SAC fees for the Activity Center. The Developer agrees to pay the City a fee of $20,000 at the time of issuance of a building permit for the Minimum Improvements. In addition to any other standards of construction imposed by the City or the Authority, the Minimum Improvements shall also include the following and meet the following standards: (i) As a part of Minimum Improvements, Developer shall construct, at Developer's expense, a surface level, climate controlled, walkway connection (the "Pedestrian Link") between the Developer's Senior Center and the City's Activity Center as depicted on Exhibit D attached hereto. (ii) As a part of Minimum Improvements, Developer shall construct all parking lots and landscaping shown in Exhibit D attached hereto on both the Development Property and the City/Authority Property. Developer shall prepare Construction Plans and specifications for such parking lots and landscaping in consultation with the Authority and the City and subject to approval by the City. Bidding documents for parking lots and landscaping shall be designed to allow determination with reasonable certainty the portion of construction costs allocable to the City for that part of the parking lot improvements and landscaping lying within City/Authority Property that is not included in the Development Property. Upon completion of parking lot and landscaping improvements in accordance with approved construction documents, Developer will invoice City for the City's share of such costs, which the City will pay to Developer within thirty (30) days of receipt of an invoice therefor, together with such other documentation of costs as the City may reasonably require. The Developer and the City and the Authority agree to development of a long- term maintenance agreement which will lay out payments and expectations for site improvements such as underground stormwater system, landscaping, parking, and other items mutually beneficial to each party. 7 438026 RS230-60 (b) The City applied for a Livable Communities Development Account("LCDA") grant in 2011 and has received the requested funding, which will be used, in part, to benefit the Minimum Improvements. Specifically,the LCDA grant provides $200,000 for an on-site stormwater detention system and associated engineering which will reduce the Developer's costs associated with the construction of the Minimum Improvements, so long as the work performed is consistent with the rules and regulations of the LCDA grant program. The City will not reimburse stormwater design and construction costs not eligible for reimbursement under the LCDA grant program and will not reimburse for costs in excess of the grant allocation. Section 4.2. Construction Plans. Within 60 days after execution of this Agreement, the Developer shall submit dated Construction Plans to the Authority and the City. The Construction Plans shall provide for the construction of the Minimum Improvements and shall be in substantial conformity with the Preliminary Plans and this Agreement. Section 4.3. Commencement and Completion of Construction. Subject to Unavoidable Delays, the Developer shall commence construction of the Minimum Improvements no later than September 1, 2014. Subject to Unavoidable Delays, the Developer shall have substantially completed the construction of the Minimum Improvements no later than December 31, 2015. All work with respect to the Minimum Improvements to be constructed or provided by the Developer on the Development Property shall be in conformity with the Construction Plans. Section 4.4. Certificate of Completion and Release of Forfeiture. After substantial completion of the Minimum Improvements in accordance with the Construction Plans and all terms of this Agreement, the Authority and the City will furnish the Developer with a Certificate of Completion and Release of Forfeiture in the form attached hereto as Exhibit C. Such certification by the Authority and the City shall be a conclusive determination of satisfaction and termination of the agreements and covenants in this Agreement with respect to the obligations of the Developer to construct the Minimum Improvements. The Certificate of Completion and Release of Forfeiture shall only be issued after issuance of a certificate of occupancy by the City. The Certificate of Completion and Release of Forfeiture provided for in this section 4.4 shall be in such form as will enable it to be recorded in the proper County office for the recordation of deeds and other instruments pertaining to the Development Property. Section 4.5. Required Insurance. (a) The Developer itself or through its general contractor agrees to provide and maintain at all times during the process of constructing the Minimum Improvements and, from time to time at the request of the Authority, furnish the Authority with proof of payment of premiums on: (i) Builder's risk insurance, written on the so-called `Builder's Risk — Completed Value Basis," in an amount equal to 100 percent of the insurable value of the Minimum Improvements at the date of completion, and with coverage available in non- reporting form on the so called"all risk"form of policy; (ii) Comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations and contractual liability 8 438026 RS230-60 insurance) together with an Owner's Contractor's Policy with limits against bodily injury and property damage of not less than $1,000,000 for each occurrence (to accomplish the above required limits,an umbrella excess liability policy may be used);and (iii) Workers' compensation insurance,with statutory coverage. The policies of insurance required pursuant to clauses (i) and (ii) above shall be in form and content reasonably satisfactory to the Authority and shall be placed with financially sound and reputable insurers licensed to transact business in Minnesota. The policy of insurance delivered pursuant to clause (i) above shall contain an agreement of the insurer to give not less than 30 days' advance written notice to the Authority in the event of cancellation of such policy or change affecting the coverage thereunder. (b) Upon completion of construction of the Minimum Improvements, the Developer shall maintain, or cause to be maintained, at its cost and expense, and from time to time at the request of the Authority shall furnish proof of the payment of premiums on,insurance as follows: (i) Insurance against loss and/or damage to the Minimum Improvements under a policy or policies covering such risks as are ordinarily insured against by similar businesses, including (without limiting the generality of the foregoing) fire, extended coverage, vandalism and malicious mischief, heating system explosion, water damage, demolition cost, debris removal, collapse and flood, in an amount not less than the full insurable replacement value of the Minimum Improvements. No policy of insurance shall be so written that the proceeds thereof will produce less than the minimum coverage required by the preceding sentence, by reason of coinsurance provisions or otherwise, without the prior consent thereto in writing by the Authority. The term "full insurable replacement value" shall mean the actual replacement cost of the Minimum Improvements and shall be determined from time to time at the request of the Authority, but not more frequently than once every three years, by an insurance consultant or insurer, selected and paid for by the Developer and approved by the Authority; and (ii) Such other insurance, including worker's compensation insurance respecting all employees of the Developer, in such amount as is customarily carried by like organizations engaged in like activities of comparable size and liability exposure; provided that the Developer may be self-insured with respect to all or any part of its liability for worker's compensation. (c) All insurance required in this Section 4.5 shall be taken out and maintained in responsible insurance companies selected by the Developer that are authorized under the laws of Minnesota to assume the risks covered thereby. The Developer agrees to deposit annually with the Authority copies of policies evidencing all such insurance, or a certificate or certificates or binders of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Section 4.5, each policy shall contain a provision that the insurer shall not cancel nor materially modify it without giving written notice to the Developer and the Authority at least 30 days before the cancellation or modification becomes effective. Not less than 15 days prior to the 9 438026 RS230-60 expiration of any policy, the Developer shall furnish the Authority evidence satisfactory to the Authority that the policy has been renewed or replaced by another policy conforming to the provisions of this Section 4.5, or that there is no necessity therefore under the terms of this Agreement. In lieu of separate policies, the Developer may maintain a single policy, blanket or umbrella policies, or a combination thereof,having the coverage required herein, in which event the Developer shall deposit with the Authority a certificate or certificates of the respective insurers as to the amount of coverage in force upon the Minimum Improvements. ARTICLE V Business Subsidy Act Requirements Section 5.1. Business Subsidy. This Agreement provides assistance for housing and is therefore not subject to the requirements of Minnesota Statutes, Sections 116J.993 to 116J.995. ARTICLE VI Events of Default Section 6.1. Events of Default Defined. Each and every one of the following shall be an Event of Default under this Agreement: (a) Failure by the Authority or the City or the Developer to proceed to closing on the Development Property after compliance with or the occurrence of all conditions precedent to closing; (b) Failure by the Developer to commence and complete construction of the Minimum Improvements pursuant to the terms, conditions and limitations of this Agreement, including the timing thereof,unless such failure is caused by an Unavoidable Delay; (c) Failure by the Developer to pay real estate taxes or special assessments on the Development Property or Minimum Improvements constructed on the Development Property as they become due; or (d) Failure by any party to observe or perform any material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. Section 6.2. Remedies on Default. Whenever any Event of Default referred to in section 6.1 of this Agreement occurs, any non-defaulting party may take any one or more of the following actions after providing 30 days written notice to the defaulting party of the Event of Default, but only if the Event of Default has not been cured within said 30 days or, if the Event of Default is by its nature incurable within 30 days,the defaulting party does not provide assurances to the non-defaulting party reasonably satisfactory to the non-defaulting party that the Event of Default will be cured and will be cured as soon as reasonably possible: 10 438026 RS230-60 (a) Suspend its performance under this Agreement, including refusing to close on the Development Property, until it receives assurances from the defaulting party, deemed adequate by the non-defaulting party, that the defaulting party will cure its default and continue its performance under this Agreement; (b) Terminate or rescind this Agreement; (c) If the default occurs prior to completion of the Minimum Improvements, the Authority and the City may withhold the Certificate of Completion and Release of Forfeiture; (d) If the default occurs prior to issuance of the Certificate of Completion and Release of Forfeiture, revest title to the Development Property in the name of the Authority and the City pursuant to Section 6.3 of this Agreement;and (e) Take whatever action, including legal or administrative action, that may appear necessary or desirable to any non-defaulting party to collect any payments due under this Agreement, or to enforce performance and observance of any obligation, agreement, or covenant of the defaulting party under this Agreement. Section 6.3. Revesting Interest in the Authority and the City upon Happening of Event of Default Subsequent to Conveyance to Developer. In the event that subsequent to conveyance of the Development Property to the Developer and prior to the issuance of a Certificate of Completion and Release of Forfeiture for the Minimum Improvements: (a) the Developer, subject to Unavoidable Delays, fails to begin construction of the Minimum Improvements in conformity with this Agreement and such failure to begin construction is not cured within 30 days after written notice from the Authority and the City to the Developer to do so;or (b) subject to Unavoidable Delays, the Developer, after commencement of the construction of the Minimum Improvements, fails to carry out its obligations with respect to the completion of construction of the Minimum Improvements(including the nature and the date for the completion thereof), or abandons or substantially suspends construction work, and any such failure, abandonment, or suspension shall not be cured, ended, or remedied within 30 days or such longer period as may reasonably be necessary but not to exceed 120 days after written demand from the Authority and the City to the Developer to do so;or (c) the Developer shall fail to pay real estate taxes or assessments on the Development Property when due, or shall place thereon any encumbrance or lien unauthorized by this Agreement, or shall suffer any levy or attachment to be made, or any materialmen's or mechanic's lien, or any other unauthorized encumbrance or lien to attach, and such taxes or assessments shall not have been paid, or the encumbrance or lien removed or discharged or provision satisfactory to the Authority and the City made for such payment,removal, or discharge,within 30 days after written demand by the Authority and the City to do so or such longer period, not to exceed 60 days, as may reasonably be necessary to remove said lien or encumbrance; provided, that if the Developer shall first notify 11 438026 RS230-60 the Authority and the City of its intention to do so, it may in good faith contest any mechanics' or other lien to remain undischarged and unsatisfied during the period of such contest and any appeal, but only if the Developer provides the Authority and the City with a bank letter of credit or other security in the amount of the lien, in a form satisfactory to the Authority and the City pursuant to which the bank will pay to the Authority and the City the amount of any lien in the event the lien is finally determined to be valid or, as an alternative to such forms of security,has made a deposit with the district court in the manner provided in Minnesota Statutes, section 514.10. During the course of such contest, the Developer shall keep the Authority and the City informed respecting the status of such defense; then the Authority and the City shall have the right to re-enter and take possession of the Development Property and to terminate and revest in the Authority and the City the interest of the Developer in the Development Property; provided, however, that any exercise by the Authority and the City of their rights or remedies hereunder shall always be subject to and limited by, and shall not defeat, render invalid or limit in any way the lien of any mortgage or other encumbrance specifically and previously authorized by the Authority and the City in writing under this Agreement or any rights or interests provided in this Agreement for the protection of the holders of an approved encumbrance. Section 6.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to the parties is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Authority and the City or the Developer to exercise any remedy reserved to them, it shall not be necessary to give notice, other than such notice as may be required in Article VIII of this Agreement. Section 6.5. No Additional Waiver Implied by One Waiver. In the event any covenant or agreement contained in this Agreement should be breached by any party and thereafter waived by any other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent,previous or subsequent breach hereunder. ARTICLE VII Restrictions on Sale; Subordination Section 7.1. Restrictions on Sale or Assignment. The Developer represents and agrees that its purchase of the Development Property and its other undertakings pursuant to this Agreement, are, and will be used, for the purpose of development of the Development Property and not for speculation in land holding. The Developer represents and agrees that: (a) Prior to issuance of the Certificate of Completion and Release of Forfeiture for the Minimum Improvements, except security for, and only for, the purpose of obtaining 12 438026 RS230-60 financing necessary to enable the Developer to purchase the Development Property, perform its obligations with respect to the Minimum Improvements under this Agreement, and any other purpose authorized by this Agreement, the Developer has not made or created and will not make or create or suffer to be made or created any total or partial Sale in any mode or form of or with respect to the Minimum Improvement or the Development Property or any part thereof or any interest therein, or any contract or agreement to do the same, without the prior written approval of the Authority and the City unless the Developer remains liable and bound by this Agreement in which event the Authority's and City's approval is not required. Any such Sale shall be subject to the provisions of this Agreement. (b) In the event the Developer,upon Sale of the Development Property or any portion thereof, seeks to be released from its obligations under this Agreement as to the portions of the Minimum Improvements or Development Property that is subject to the Sale, the Authority and the City shall be entitled to require, except as otherwise provided in the Agreement, as conditions to any such Sale that: (i) Any proposed transferee shall have the qualifications and financial responsibility, in the reasonable judgment of the Authority and the City, necessary and adequate to fulfill the obligations undertaken in this Agreement by the Developer as to the portion of the Minimum Improvements or Development Property subject to the Sale. (ii) Any proposed transferee, by instrument in writing satisfactory to the Authority and the City and in form recordable among the County land records, shall, for itself and its successors and assigns, and expressly for the benefit of the Authority and the City, have expressly assumed all of the obligations of the Developer under this Agreement as to the portion of the Minimum Improvements or Development Property subject to the Sale and agreed to be subject to all the conditions and restrictions to which the Developer is subject as to such portion; provided, however, that the fact that any transferee to, or any other successor in interest whatsoever of, the Minimum Improvements or Development Property, or any part thereof, shall not, for whatever reason, have assumed such obligations or so agreed, and shall not (unless and only to the extent otherwise specifically provided in this Agreement or agreed to in writing by the Authority and the City) deprive the Authority and the City of any rights or remedies or controls with respect to the Development Property or any part thereof or the construction of the Minimum Improvements; it being the intent of the parties as expressed in this Agreement that (to the fullest extent permitted at law and in equity and excepting only in the manner and to the extent specifically provided otherwise in this Agreement) no Sale of, or change with respect to, ownership in the Minimum Improvements or Development Property or any part thereof, or any interest therein, however consummated or occurring, and whether voluntary or involuntary, shall operate, legally or practically, to deprive or limit the Authority or the City of or with respect to any rights or remedies or controls provided in or resulting from this Agreement with respect to the Minimum Improvements or Development Property that the Authority or the City would have had, had there been no such Sale. In the absence of specific written agreement by the Authority and the City to the contrary, no Sale or approval by the Authority or the City thereof shall be deemed 13 438026 RS230-60 to relieve the Developer, or any other party bound in any way by this Agreement or otherwise with respect to the construction of the Minimum Improvements, from any of its obligations with respect thereto. (iii) Any and all instruments and other legal documents involved in effecting the Sale of any interest in this Agreement or the Minimum Improvements or Development Property governed by this Article VII, shall be in a form reasonably satisfactory to the Authority and the City. (c) Any notice of rejection shall contain detailed reasons for the rejection. The Authority's and the City's approval of any Sale shall not be unreasonably withheld. In the event the foregoing conditions are satisfied, the Developer shall be released from its obligation under this Agreement as to the portion of the Minimum Improvements or Development Property that is subject to the Sale. (d) After issuance of the Certificate of Completion and Release of Forfeiture for the Minimum Improvements, the Developer may transfer or assign any portion of the Development Property or the Developer's interest in this Agreement for which a Certificate of Completion and Release of Forfeiture has been issued, without the prior written consent of the Authority or the City. The Developer shall submit to the Authority and the City written evidence of any such transfer or assignment, including the transferee or assignee's express assumption of the Developer's obligations under this Agreement. If the Developer fails to provide such evidence of transfer and assumption, the Developer shall remain bound by all it obligations under this Agreement. Section 7.2 Subordination. The Authority and the City agree that, upon request by the Developer, the Authority and the City will subordinate their interests under this Agreement to the mortgage lien for construction financing and the permanent first mortgage and associated assignment of leases and rents made with respect to the Development Property and the Minimum Improvements. Such subordination shall be evidenced by an agreement in form and substance satisfactory to the Authority and the City. ARTICLE VIII Additional Provisions Section 8.1. Conflict of Interests: Representatives Not Individually Liable. No officer, official, or employee of the Authority or the City shall have any personal financial interest, direct or indirect, in this Agreement, nor shall any such officer, official, or employee participate in any decision relating to the Agreement that affects his or her personal financial interests, directly or indirectly. No officer,official, or employee of the Authority or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach or for any amount that may become due or on any obligation under the terms of this Agreement. 14 438026 RS230-60 Section 8.2. Restrictions on Use. The Developer,for itself and its successors and assigns, agrees to devote the Development Property and Minimum Improvements only to such land use or uses as may be permissible under the City's land use regulations. Section 8.3. Provisions Not Merged With Deed. None of the provisions of this Agreement is intended to or shall be merged by reason of delivery of the Property Deed and the Property Deed shall not be deemed to affect or impair the provisions and covenants of this Agreement. Section 8.4. Notices and Demands. Except as otherwise expressly provided in this Agreement, any notice, demand, or other communication under the Agreement or any related document by any party to any other shall be sufficiently given or delivered if it is dispatched by registered or certified United States mail, postage prepaid, return receipt requested, or delivered personally to: (a) in the case of the Authority: Rosemount Port Authority 2875— 145th Street W. Rosemount,MN 55068 Attn: Executive Director (b) in the case of the Developer: Rosemount Senior Living Associates I, LLC (c) in the case of the City: City of Rosemount 2875— 145th Street W. Rosemount,MN 55068 Attn: City Administrator or at such other address with respect to any such party as that party may, from time to time, designate in writing and forward to the others as provided in this section 8.4. Section 8.5. Counterparts. This Agreement may be executed in any number of counterparts,each of which shall constitute one and the same instrument. Section 8.6. Disclaimer of Relationships. The Developer acknowledges that nothing contained in this Agreement nor any act by the Authority or the City or the Developer shall be deemed or construed by the Developer or by any third person to create any relationship of third-party beneficiary, principal and agent, limited or general partner, or joint venture between or among the Authority or the City and the Developer. ***************** 15 438026 RS230-60 IN WITNESS WHEREOF, the Authority, the City and the Developer have caused this Agreement to be duly executed in their names and behalves on or as of the date first above written. ROSEMOUNT PORT AUTHORITY By: Jeff Weisensel,Chair By: Dwight Johnson,Executive Director STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) The foregoing instrument as acknowledged before me this day of , 2014, by Jeff Weisensel and Dwight Johnson, the Chair and Executive Director, respectively, of the Rosemount Port Authority, a public corporation under the laws of Minnesota, on behalf of the Authority. Notary Public 16 438026 RS230-60 CITY OF ROSEMOUNT By: William Droste,Mayor And: Amy Domeier,City Clerk STATE OF ) ss. COUNTY OF ) The foregoing instrument as acknowledged before me this day of , 2014, by William Droste and Amy Domeier, Mayor and City Clerk, respectively, of the city of Rosemount,a municipal corporation under the laws of Minnesota,on behalf of the City. Notary Public 17 438026 RS230-60 ROSEMOUNT SENIOR LIVING ASSOCIATES I,LLC By: Its: STATE OF ) )ss. COUNTY OF ) The foregoing instrument was executed this day of , 2014, by the of Rosemount Senior Living Associates I, LLC, a Minnesota limited liability company, on behalf of the limited liability company. Notary Public 18 438026 RS230-60 EXHIBIT A LEGAL DESCRIPTION OF CITY/AUTHORITY PROPERTY The City/Authority Property is located in Dakota County, Minnesota, and is legally described as follows: Parcel 1: Lot 1,Block 1,Kilcumreragh Addition,Dakota County,Minnesota Parcel 2: Lot 1, 2, the South 10 feet of Lot Five (5) and all of Lot Six (6) and the North 8 feet of Lot Seven (7)in School Addition to the City of Rosemount,Excepting therefrom the Easterly 6 feet of said Lot 1 measured parallel to and with the Easterly lot line of said Lot 1,Dakota County,Minnesota. Parcel 3: Lots 3, 4, and all of Lot 5 except the Southerly 10 feet, School Addition to the City of Rosemount, Dakota County,Minnesota. Abstract Property A-1 438026 RS230-60 EXHIBIT B PRELIMINARY PLAN DOCUMENTS Site Plan C2.0 dated 1/28/14 Grading Plan C3.0 dated 1/28/2014 Utility Plan C4.0 dated 1/28/2014 SWPPP C5.0-5.1 dated 1/28/2014 Details C6.0-6.2 dated 1/28/2014 Landscape Plan L1.0-1.1 dated 1/28/2014 Lighting Plan L2.0 dated 1/28/2014 Floor Plans A300-A304 dated 1/28/2014 Building Elevations A500-501 dated 1/28/2014 Building Section A600 dated 1/28/2014 B-1 438026 RS230-60 i Tc o - _ — r j gg( „A ir —r Ell k,E1 41 1W / I 4) 9 1 it– , ' It 41 1 ' , II rosave.. .----... .4.-- - pjp, , , tMii,,- KA �e. 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W.w �5 o i UMC, m,,., MOM POO.a... • _• First FIT PYn e - _ C Building Section - I A600 o vr.r2) EXHIBIT C FORM OF CERTIFICATE OF COMPLETION AND RELEASE OF FORFEITURE WHEREAS,the Rosemount Port Authority and the City of Rosemount(the"Grantors"), by a deed recorded in the office of the County Recorder in Dakota County, Minnesota, as Document No. , has conveyed to , a under the laws of the State of (the "Grantee"), the following described land in County of Dakota and State of Minnesota,to-wit: and WHEREAS, said deed was executed pursuant to that certain Contract for Private Development by and between the Grantors and the Grantee dated the day of ,2014 and recorded in the office of the County Recorder in Dakota County, Minnesota, as Document No. , which Contract for Private Development contained certain covenants and restrictions regarding completion of the Minimum Improvements; and WHEREAS, said Grantee has performed said covenants and conditions in a manner deemed sufficient by the Grantors to permit the execution and recording of this certification. NOW, THEREFORE, this is to certify that all construction of the Minimum Improvements specified to be done and made by the Grantee has been completed and the covenants and conditions in the Contract for Private Development have been performed by the Grantee therein and that the provisions for forfeiture of title and right to re-entry for breach of condition subsequent by Grantors is hereby released absolutely and forever, and the County Recorder in Dakota County, Minnesota is hereby authorized to accept for recording and to record the filing of this instrument, to be a conclusive determination of the satisfactory termination of the covenants and conditions relating to completion of the Minimum Improvements. 438026 RS230-60 C-1 Dated: ,201_. ROSEMOUNT PORT AUTHORITY By: Jeff Weisensel, Chair By: Dwight Johnson, Executive Director STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) The foregoing instrument as acknowledged before me this day of , 201_, by Jeff Weisensel and Dwight Johnson, Chair and Executive Director, respectively, of the Rosemount Port Authority, a public corporation under the laws of Minnesota, on behalf of the Authority. Notary Public CITY OF ROSEMOUNT By: William Droste,Mayor And: Amy Domeier, City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) The foregoing instrument as acknowledged before me this day of , 201_, by William Droste and Amy Domeier, Mayor and City Clerk, respectively, of the City of Rosemount, a municipal corporation under the laws of Minnesota, on behalf of the City. Notary Public 438026 RS230-60 C-2 EXHIBIT D SKETCH OF PROPERTY C0.0 Boundary and Topographic Survey dated 1/28/2014 D-1 438026 RS230-60 cr. -)(,\(16A-1 C) Boundary and Topographic Survey for: KAAS WILSON ARCHITECTS ro • T\ A \ 1 14 D S EIEET � r. ��p ,.. ° -_ { 1,IerfrsrE 720,88 gip_. \\;1 \ ,. • �., _�. ' m�►rv.s..r �!ia. .�yge 1 N ''{;i LiiL '�'prill t1 p, "' = EXHIBIT E FORM OF PROPERTY DEED Quit Claim Deed STATE DEED TAX DUE HEREON: $ Date: FOR VALUABLE CONSIDERATION, the Rosemount Port Authority and the City of Rosemount, Minnesota, both municipal corporations under the laws of the State of Minnesota, Grantors, hereby convey and quitclaim to , a under the laws of ,Grantee,real property in Dakota County,Minnesota,described as follows: (if more space is needed,continue on back) together with all hereditaments and appurtenances. This deed is subject to that certain Contract for Private Development between Grantors and Grantee, dated , 20_(the "Contract"), recorded , 20_, in the office of the Dakota County Recorder/Registrar of Titles as Document No. . The Contract provides that the Grantee's rights and interest in the real property described above are subject to the Grantors' right to re- enter and revest in Grantors title to the Property under conditions specified therein, including but not limited to termination of the Grantors' right to re-enter and revest upon issuance of a Certificate of Completion as defined in the Agreement. OThe Seller certifies that the seller does not know of any wells on the described real property. ❑A well disclosure certificate accompanies this document. ❑I am familiar with the property described in this instrument and I certify that the status and number of wells on the described real property have not changed since the last previously filed well disclosure certificate. E-1 438026 RS230-60 ROSEMOUNT PORT AUTHORITY By Jeff Weisensel, Chair By Dwight Johnson, Executive Director STATE OF MINNESOTA ss. COUNTY OF HENNEPIN The foregoing was acknowledged before me this day of , 2014, by Jeff Weisensel and Dwight Johnson, the Chair and Executive Director, respectively, of the Rosemount Port Authority, a public corporation under the laws of Minnesota, on behalf of the Authority, Grantor. NOTARIAL STAMP OR SEAL(OR OTHER TITLE OR RANK) SIGNATURE OF PERSON TAKING ACKNOWLEDGMENT E-2 438026 RS230-60 CITY OF ROSEMOUNT By: William Droste,Mayor And: Amy Domeier, City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) The foregoing instrument as acknowledged before me this day of , 2014, by William Droste and Amy Domeier, Mayor and City Clerk, respectively, of the City of Rosemount, a municipal corporation under the laws of Minnesota, on behalf of the City. NOTARIAL STAMP OR SEAL(OR OTHER TITLE OR RANK) SIGNATURE OF PERSON TAKING ACKNOWLEDGMENT Check here if part or all of the land is Registered(Torrens)❑ Tax Statements for the real property described in this instrument should be sent to (include name and address of Grantee): This instrument drafted by: Kennedy& Graven, Chartered 470 U. S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 E-3 438026 RS230-60 EXHIBIT F FORM OF PARKING,ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT This Agreement is entered into by City of Rosemount, a Minnesota municipal corporation ("City") and Rosemount Senior Living Associates I, LLC, a Minnesota limited liability company ("Developer"), as of the day of , 2014 (the"Execution Date"). RECITALS: A. City is the owner of certain land located in Dakota County, Minnesota, which is, or will be, improved and operated by the City as the Steeple Center, a conference and event center, and a senior Activity Center(the"City Tract" as hereinafter defined). B. Developer is the owner of certain unimproved land located in Dakota County, Minnesota, located immediately adjacent to the City Tract, which it acquired this date from the City and the Rosemount Port Authority (the "Developer Tract" as hereinafter defined), and which it intends to develop and operate as a senior housing facility (the "Senior Housing Facility" as hereinafter defined). C. City and Developer desire to create certain reciprocal parking rights on the City Tract and the Developer Tract and to provide for the mutual use and enjoyment of certain shared access driveways and an enclosed pedestrian link to be constructed on the City Tract by Developer. D. In order to encourage the common use and operation of their respective properties, City and Developer desire to enter into certain covenants and agreements as a part of a general plan, and to grant to each other certain easements, in, to, over, and across their respective properties as herein set forth. AGREEMENT: City and Developer agree as follows: 1. Definitions 1.1. Activity Center. The "Activity Center" shall mean the public facility to be used primarily for senior activities located on the City Tract, as depicted on Exhibit A. 1.2. City Tract Parking Lot Area. The "City Tract Parking Lot Area" shall mean that part of the Shared Driveway and Parking Area lying within the City Tract, as described on Exhibit E. 1.3. City Tract. The "City Tract" shall mean the property that is legally described on Exhibit B and depicted on Exhibit A. F-1 438026 RS230-60 1.4. City Tract Shared Driveway Area. The "City Tract Shared Driveway Area" shall men that part of the City Tract so designated as depicted on Exhibit A and legally described on Exhibit H. 1.5. Developer Tract Parking Lot Area. The "Developer Tract Parking Lot Area" shall mean that part of the Shared Parking Lot area lying within the Developer Tract, as described in Exhibit D. 1.6. Developer Tract. The "Developer Tract" shall mean the property that is legally described on Exhibit B, and depicted on Exhibit A. 1.7. Developer Tract Shared Driveway Area. The "Developer Tract Shared Driveway Area" shall mean that part of the Developer Tract so designated as depicted on Exhibit A and legally described on Exhibit G. 1.8. Development Agreement. The "Development Agreement" shall mean that certain Contract for Private Development dated March 18,2013 by and between the City,the Rosemount Port Authority and Developer relating to the acquisition and development of the Developer Tract and the City Tract, as the same may be amended, supplemented and extended from time to time. 1.9. Easement Areas. The "Easement Areas" shall mean the Shared Driveway and Parking Area and the Pedestrian Link Corridor Area. 1.10. Facility or Facilities. A "Facility" or "Facilities" shall mean the Senior Housing Facility,the Activity Center and the Steeple Center. 1.11. Occupant. "Occupant" shall mean any Person from time to time entitled to the use and occupancy of a Facility under an ownership right or any lease, sublease, license, concession, or other similar agreement. 1.12. Owner. "Owner" shall mean each signatory hereto and, after compliance with the notice requirements set forth below, their respective successors and assigns. 1.13. Pedestrian Link. The "Pedestrian Link" shall mean the enclosed one-story, ground level, climate controlled structure to be installed and constructed by Developer on the City Tract and the Developer Tract in accordance with and pursuant to the terms of the Development Agreement providing a pedestrian access corridor between the Activity Center and the Senior Housing Facility. 1.14. Pedestrian Link Corridor Area. The "Pedestrian Link Corridor Area" shall mean the portions of the City Tract and the Developer Tract located within the Pedestrian Link and designated "Pedestrian Link Corridor Area" on the Site Plan and legally described on Exhibit F. 1.15. Permittee. "Permittee" shall mean all Occupants and the officers, directors, employees, agents, contractors, customers, vendors, suppliers, visitors, invitees, licensees, subtenants, and concessionaires of Occupants insofar as their activities F-2 438026 RS230-60 relate to the intended use of the Facilities. Among others, Persons engaging in any of the following activities will not be considered to be Permittees: 1.15.1 Exhibiting any placard, signs or notice. 1.15.2 Distributing any circular, handbill,placard, or booklet. 1.15.3 Soliciting memberships or contributions. 1.15.4 Parading, picketing,or demonstrating. 1.15.5 Failing to follow regulations relating to the use of the Facilities. 1.16. Person. "Person" shall mean any individual, partnership, firm, association, corporation,trust, or any other form of business or government entity. 1.17. Senior Housing Facility. The "Senior Housing Facility" means the senior housing living facility to be constructed on the Developer Tract by Developer, pursuant to the Development Agreement. 1.18. Shared Driveway and Parking Area. The "Shared Driveway and Parking Area" shall mean the portions of the Developer Tract and the City Tract designated "Shared Driveway and Parking Area"on Exhibit A and legally described on Exhibit C. 1.19. Site Plan. The "Site Plan" shall mean the site plan that is attached to this Agreement as Exhibit A. 1.20. Steeple Center. "Steeple Center" means the conference and event center on the City Tract, as depicted on Exhibit A. 2. Term This Agreement shall be effective as of the Execution Date and shall continue in full force and effect until 11:59 p.m. on the date that is 30 years after the Execution Date; provided, however, that this Agreement, and all restrictions and covenants contained in this Agreement, shall be automatically extended on a year to year basis following such date which is 30 years after the Execution Date unless any Owner notifies all other Owners, by notice given at least 4 months prior to the end of any year, that it exercises its option to prevent this Agreement from being so extended; and provided further that, whether or not this Agreement is so extended, the easements referred to in Section 3, and all obligations related thereto, shall continue in force and effect in perpetuity as provided in Section 3, except as otherwise specifically provided in subsections 3.1, 3.2, 3.3, 3.4 and 4.6. Upon expiration of this Agreement, all rights and privileges derived from and all duties and obligations created and imposed by the provisions of this Agreement, except as relates to the easements mentioned above, shall terminate and have no further force or effect; provided, however, that the expiration of this Agreement shall not limit or affect any remedy at law or in equity that an Owner may have against any other Owner with respect to any liability or obligation arising or to be performed under this Agreement prior to the date of such expiration. F-3 438026 RS230-60 3. Easements 3.1. City Tract Parking. The Owner of the City Tract, for itself and its successors and assigns, hereby grants and conveys to the Owner of the Developer Tract for its use and for the use of its Permittees, in common with others entitled to use the same, a perpetual, non-exclusive easement for parking of vehicles and the passage of vehicles and pedestrians over and across the City Tract Parking Lot Area. Such easement rights shall be subject to the following reservations and agreements as well as other provisions contained in this Agreement: 3.1.1 The Owner of the City Tract may at any time make changes to, close off, and/or construct buildings and improvements on, all or any portion of the City Tract Parking Lot Area without the approval of any other Owner, so long as such change, closing or construction does not unreasonably interfere with any of the other easements granted herein, and further provided that all of the following conditions are met: 3.1.1.1 No governmental rule, ordinance or regulation shall be violated as a result of such action, and such action shall not result in the Owner of the Developer Tract being in violation of any governmental rule, ordinance or regulation. 3.1.1.2 The number of remaining parking spaces on the City Tract shall be at least 28 parking spaces. 3.1.1.3 No change shall be made in the access point to Cameo Avenue. 3.1.1.4 At least 30 days prior to making any such substantial change, modification or alteration, the Owner of the City Tract shall deliver to the Owner of the Developer Tract copies of the plans therefor. 3.1.2 The Owner of the City Tract reserves the right to close off any portion of the City Tract Parking Lot Area for such reasonable period of time as may be necessary to make needed repairs or as may be legally necessary, in the opinion of such Owner's counsel, to prevent the acquisition of prescriptive rights by anyone; provided however, that prior to closing off any portion of the City Tract Parking Lot Area materially and adversely affecting parking on the Developer Tract, the Owner of the City Tract shall give written notice to the Owner of the Developer Tract of its intention to do so, and shall attempt to coordinate such closing with the Owner of the Developer Tract so that no unreasonable interference shall occur. 3.1.3 The Owner of the City Tract reserves the right at any time and from time to time to exclude and restrain any Person who is not a Permittee from using the Parking Lot Area. F-4 438026 RS230-60 3.1.4 Parking in the City Tract Parking Lot Area by Permittees of the Owner of the Developer Tract shall be limited to automobiles, motorcycles and pickup trucks; no semitrailers, recreational vehicles, boats, trailers or large trucks will be permitted to park in the City Tract Parking Lot Area; there shall be no overnight parking, except that overnight parking shall be permitted on the City Tract by Permittees of the Owner of the City Tract. 3.1.5 The Owner of the Developer Tract shall use good faith, commercially reasonable efforts to require that all employees of its Occupants park on the Developer Tract and not in the City Tract Parking Lot Area. 3.1.6 The Owner of the Developer Tract shall pay its proportionate share of the costs of repairs, maintenance and replacement of the Developer Tract Parking Lot Area as provided in Section 6.5. 3.2. Developer Tract Parking. The Owner of the Developer Tract, for itself and its successors and assigns, hereby grants and conveys to the Owner of the City Tract for its use and for the use of its Permittees, in common with others entitled to use the same, a perpetual, non-exclusive easement for parking of vehicles and the passage of vehicles and pedestrians over and across the Developer Tract Parking Lot Area. Such easement rights shall be subject to the following reservations and agreements as well as other provisions contained in this Agreement: 3.2.1 The Owner of the Developer Tract may at any time make changes to, close off, and/or construct buildings and improvements on, all or any portion of the Developer Tract Parking Lot Area without the approval of any other Owner, so long as such change, closing or construction does not unreasonably interfere with any of the other easements granted herein, and further provided that all of the following conditions are met: 3.2.1.1 No governmental rule, ordinance or regulation shall be violated as a result of such action, and such action shall not result in the Owner of the City Tract being in violation of any governmental rule, ordinance or regulation. 3.2.1.2 The number of remaining parking spaces on the Developer Tract shall be at least 24 parking spaces. 3.2.1.3 No change shall be made in the access point to Cameo Avenue. 3.2.1.4 At least 30 days prior to making any such substantial change, modification or alteration, the Owner of the Developer Tract shall deliver to the Owner of the City Tract copies of the plans therefor. 3.2.2 The Owner of the Developer Tract reserves the right to close off any F-5 438026 RS230-60 portion of the Developer Tract Parking Lot Area for such reasonable period of time as may be necessary to make needed repairs or as may be legally necessary, in the opinion of such Owner's counsel, to prevent the acquisition of prescriptive rights by anyone; provided however, that prior to closing off any portion of the Developer Tract Parking Lot Area materially and adversely affecting parking on the City Tract, the Owner of the Developer Tract shall give written notice to the Owner of the City Tract of its intention to do so, and shall attempt to coordinate such closing with the Owner of the City Tract so that no unreasonable interference shall occur. 3.2.3 The Owner of the Developer Tract reserves the right at any time and from time to time to exclude and restrain any Person who is not a Permittee from using the Developer Tract Parking Lot Area. 3.2.4 Parking in the Developer Tract Parking Lot Area by Permittees of the Owner of the City Tract shall be limited to automobiles, motorcycles and pickup trucks; no semitrailers, recreational vehicles, boats, trailers or large trucks will be permitted to park in the Developer Tract Parking Lot Area; there shall be no overnight parking, except that overnight parking shall be permitted on the Developer Tract by Permittees of the Owner of the Developer Tract. 3.2.5 The Owner of the City Tract shall use good faith, commercially reasonable efforts to require that all employees of its Occupants park on the City Tract and not in the Developer Tract Parking Lot Area. 3.2.6 The Owner of the City Tract shall pay its proportionate share of the costs of repairs, maintenance and replacement of the City Tract Parking Lot Area as provided in Section 6.5. 3.3. City Tract Driveway Easement. The Owner of the City Tract, for itself and its successors and assigns, hereby grants and conveys to the Owner of the Developer Tract for its use and the use of its Permittees, in common with others entitled to use the same, a perpetual, non-exclusive easement for the passage of vehicles and pedestrians over and across the City Tract Shared Driveway Area. Such easement rights shall be subject to the following reservations and agreements as wells as other provisions contained in this Agreement. 3.3.1 The Owner of the City Tract may make minor changes and improvements to the City Tract Shared Driveway Area without the approval of the Owner of the Developer Tract, so long as such change or improvement does not unreasonably interfere with any of the easements granted in Section 3.3, and further provided that all of the following conditions are met: 3.3.1.1 The accessibility of the Developer Tract Shared Driveway Area is not unreasonably restricted or hindered. F-6 438026 RS230-60 3.3.1.2 No governmental rule, ordinance or regulation shall be violated as a result of such action, and such action shall not result in the Owner of the Developer Tract being in violation of any governmental rule, ordinance or regulation. 3.3.1.3 At least 30 days prior to making any change, modification or alteration to the City Tract Shared Driveway Area, the Owner of the City Tract shall deliver to the Owner of the Developer Tract copies of the plans therefor. 3.3.2 The Owner of the City Tract reserves the right to close off any portion of the City Tract Shared Driveway Area for such reasonable period of time as may be necessary to make needed repairs or as may be legally necessary, in the opinion of such Owner's counsel, to prevent the acquisition of prescriptive rights by anyone; provided however, that prior to closing off any portion of the City Tract Shared Driveway Area, the Owner of the City Tract shall give written notice to the Owner of the Developer Tract of its intention to do so, and shall attempt to coordinate such closing with the Owner of the Developer Tract so that no unreasonable interference shall occur. 3.4. Developer Tract Driveway Easement. The Owner of the Developer Tract, for itself and its successors and assigns, hereby grants and conveys to the Owner of the City Tract for its use and the use of its Permittees, in common with others entitled to use the same, a perpetual, non-exclusive easement for the passage of vehicles and pedestrians over and across the Developer Tract Shared Driveway Area. Such easement rights shall be subject to the following reservations and agreements as well as other provisions contained in this Agreement. 3.4.1 The Owner of the Developer Tract may make minor changes and improvements to the Developer Tract Shared Driveway Area without the approval of the Owner of the City Tract, so long as such change or improvement does not unreasonably interfere with any of the easements granted in Section 3.4, and further provided that all of the following conditions are met: 3.4.1.1 The accessibility of the City Tract Shared Driveway Area is not unreasonably restricted or hindered. 3.4.1.2 No governmental rule, ordinance or regulation shall be violated as a result of such action, and such action shall not result in the Owner of the City Tract being in violation of any governmental • rule, ordinance or regulation. 3.4.1.3 At least 30 days prior to making any change, modification or F-7 438026 RS230-60 alteration to the Developer Tract Shared Driveway Area, the Owner of the Developer Tract shall deliver to the Owner of the City Tract copies of the plans therefor. 3.4.2 The Owner of the Developer Tract reserves the right to close off any portion of the Developer Tract Shared Driveway Area for such reasonable period of time as may be necessary to make needed repairs or as may be legally necessary, in the opinion of such Owner's counsel, to prevent the acquisition of prescriptive rights by anyone; provided however, that prior to closing off any portion of the Developer Tract Shared Driveway Area, the Owner of the Developer Tract shall give written notice to the Owner of the City Tract of its intention to do so, and shall attempt to coordinate such closing with the Owner of the City Tract so that no unreasonable interference shall occur. 3.5. Pedestrian Link. Each of the Owners of the City Tract and the Developer Tract, for themselves and their successors and assigns, hereby grants and conveys to the other such Owner for its use and the use of its Permittees, in common with others entitled to use the same, a perpetual, non-exclusive easement for the passage of pedestrians over and across the Pedestrian Link Corridor Area of the grantor Owner's Tract. Such easement rights shall be subject to the following reservations and agreements as well as other provisions contained in this Agreement: 3.5.1 Once constructed, no Owner shall make any changes, modifications or alterations to the Pedestrian Link except as provided in subsection 4.2. 3.5.2 Each Owner of the Pedestrian Link Corridor Area reserves the right to close off its portion of the Pedestrian Link Corridor Area for such reasonable period of time as may be necessary to make needed repairs or as may be legally necessary, in the opinion of such Owner's counsel, to prevent the acquisition of prescriptive rights by anyone; provided however, that prior to closing off any portion of the Pedestrian Link Corridor Area, such Owner shall give written notice to the other Owner thereof of its intention to do so, and shall attempt to coordinate such closing with such other Owner so that no unreasonable interference shall occur. 3.5.3 Each Owner of the Pedestrian Link Corridor Area reserves the right at any time and from time to time to exclude and restrain any Person who is not a Permittee from using the Pedestrian Link Corridor Area on its Tract. 3.5.4 No Permittee shall be charged for the right to use the Pedestrian Link Corridor Area. 3.5.5 The Pedestrian Link shall be used only as a pedestrian walkway. F-8 438026 RS230-60 3.6. Temporary Access for Construction. City, for itself, its successors and assigns, hereby grants and conveys to Developer, a temporary, non-exclusive access easement ' over and across such portions of the City Tract as is reasonably necessary for Developer to construct the Pedestrian Link in accordance with and pursuant to the terms of the Development Agreement. 3.7. General Access for Maintenance and Repairs. Each Owner, for itself and its successors and assigns, hereby grants and conveys to each other Owner having an easement over the grantor Owner's Tract a perpetual, non-exclusive easement over the granting Owner's Tract for the purpose of access to and repairing and/or maintaining any of the easement improvements that are located on the granting Owner's Tract but that, pursuant to the provisions of this Agreement,may be repaired and/or maintained by the grantee Owner. Nothing contained in this subsection shall prevent any granting Owner from at any time making changes to, closing off, and/or constructing buildings and improvements on any portion of its Tract not covered by the easements described in Section 3 so long as (a) the other Owners continuously have reasonable use of the easements described herein that are located on the granting Owner's Tract, and (b) such changes, closing and/or construction do not violate any other provisions of this Agreement. 3.8. Access to Certain Buildings. Each Owner, for itself and its successors and assigns, hereby grants and conveys to each other Owner a perpetual, non-exclusive easement over any portion of the granting Owner's Tract that is located within 10 feet of a building on the other Owner's Tract, if any, for the purpose of access to and repairing and/or maintaining the exterior of such building (including, without limitation, the Pedestrian Link); however, the existence of this easement shall not prohibit or restrict the granting Owner from constructing buildings, structures or other improvements within such 10 foot area, in which case the grantee Owner's easement shall not apply to the extent such 10 foot area is occupied by a building, above-grade structure or other improvement. 3.9. Restriction. No Owner shall grant any utility easement for the benefit of any property not within the City Tract or the Developer Tract; provided however, that the foregoing shall not prohibit the granting or dedicating of utility easements by an Owner on its Tract to governmental or quasi-governmental authorities or to public utilities; and provided further, that any Owner may grant a private utility easement to any Person so long as (a) the area of such easement is confined to the granting Owner's Tract and (b) such easement does not include any connection to any common utility lines. 4. Pedestrian Link 4.1. Design. The Pedestrian Link is to be designed and constructed in accordance with and pursuant to the plans and specifications approved by City under the Development Agreement. 4.2. Modifications. No change, modification or alteration in the Pedestrian Link or the F-9 438026 RS230-60 location of the Pedestrian Link Corridor Area may be made by any Owner thereof without the prior approval of the other Owner thereof, provided that each such Owner may make minor non-structural changes to the Pedestrian Link on its Tract that do not affect the exterior physical appearance of the Pedestrian Link without the consent of such other Owner, provided that all of the following conditions are met: 4.2.1 The accessibility of the Pedestrian Link Corridor Area for pedestrian access is not unreasonably restricted or hindered. 4.2.2 No governmental rule, ordinance or regulation shall be violated as a result of such action, and such action shall not result in any other Owner being in violation of any governmental rule, ordinance or regulation. 4.2.3 No change shall be made in the access points between the Pedestrian Link and the Senior Housing Facility or the Pedestrian Link and the Activity Center. 4.2.4 At least 30 days prior to making any such change, modification or alteration, the Owner desiring to do such work shall deliver to such other Owner copies of the plans therefor. Notwithstanding the foregoing, the Owner of the City Tract, may, without the prior written consent of the other Owner, make changes, modifications or alterations to the Pedestrian Link on its Tract provided an enclosed pedestrian access shall be maintained between the Activity Center and the Senior Housing Facility. Each such Owner shall have the right, subject to all applicable laws and the easements and agreements described in this Agreement, to design and construct or expand existing structures on its Tract (other than the Pedestrian Link); provided, however,that any structure so constructed or expanded shall, at a minimum, allow for the repair, maintenance and operation of the Pedestrian Link as contemplated hereby. In the event that an Owner constructs or expands such a structure on its Tract that necessitates an alteration in a previously constructed portion of the Pedestrian Link, any Pedestrian Link alteration shall be solely the expense of the Owner doing the construction or expansion. Any modifications, alterations or changes to the completed Pedestrian Link and connections to the Facilities shall be made in accordance with and subject to all applicable federal, state and local laws,codes and ordinances. 4.3. Certain Operations. The Owner of the City Tract shall be responsible for locking and unlocking the door located in the Pedestrian Link at the common boundary between the City Tract and the Developer Tract. Such door shall be locked at such times as City deems appropriate in its sole discretion. The Pedestrian Link shall have passage doors into the Activity Center and the Senior Housing Facility. Said doors shall remain closed (other than to allow passage of pedestrians, or in the event of emergencies) to avoid interference with efficient and proper operation of the respective heating, ventilating and air conditioning systems located within and/or F-10 438026 RS230-60 serving the Pedestrian Link from the City Tract and the Developer Tract.Each Owner shall be responsible for security in the portion of the Pedestrian Link located on its Tract. The use of the Pedestrian Link shall be subject to such reasonable rules, regulations and restrictions for the equitable use thereof by the Owners thereof and their Permittees as the Owners thereof may, in their reasonable discretion, determine, and such rules, regulations and restrictions shall be enforced in a nondiscriminatory manner. 4.4. Utilities. Any and all utilities and services, including electricity, heating, ventilation and air conditioning, and the equipment necessary for providing the same to the Pedestrian Link shall be installed and provided so that the supply of such utilities and services for the Pedestrian Link shall originate from the Tract on which that portion of the Pedestrian Link is located. In other words, each Owner shall provide such utilities and services from its own Tract to the portion of the Pedestrian Link located on its Tract. The following utilities and systems will serve the Pedestrian Link: electricity, heating, ventilating and air conditioning and security systems. Each Owner shall operate,maintain and repair all utilities, services and systems serving the Pedestrian Link that are located within its Tract, as well as all equipment used to monitor such utilities, services and systems, and the costs of such operation, maintenance and repair shall be paid by such Owner. Each Owner shall pay for all utilities serving the Pedestrian Link on its Tract. 4.5. Ownership. Once the initial construction of the Pedestrian Link has been completed, title to the Pedestrian Link shall vest in the Owner, its successors and assigns, of the Tract on which the Pedestrian Link is located. In other words, each Owner shall own and have title to all of the improvements constituting the Pedestrian Link on its Tract, subject to the terms and conditions of this Agreement and subject to the easements created herein. 4.6. Casualty. In the event the Pedestrian Link or any part thereof is destroyed or partially destroyed by fire or any other casualty or occurrence, the Pedestrian Link shall be repaired and restored by the Owner thereof as soon as possible to the extent that upon the completion of the repair or restoration work, the Pedestrian Link, as so restored, shall be in substantially the same condition as immediately prior to the damage or destruction. Notwithstanding the foregoing sentence, in the event that either the Senior Housing Facility or the Activity Center are destroyed or partially destroyed by fire or other casualty or occurrence and the Owner thereof does not rebuild or restore such Facility as provided in subsection 7.2 (c) (the "non-rebuilding Owner"), the Pedestrian Link need not be restored or repaired and the same shall be promptly demolished and removed and the ground area of the Pedestrian Link shall be restored to a clean, sightly and landscaped condition by and at the expense of the non- rebuilding Owner. In such event the non-rebuilding Owner shall also perform the same work (including removal of the Pedestrian Link and ground area restoration) on the Tract of the other Owner and restore the other Owner's Facility to a complete architectural unit at the non-rebuilding Owner's sole cost and expense. If insurance proceeds are insufficient to cover the expense of such repairing and restoring as required herein, the non-rebuilding Owner shall, nonetheless, be responsible for the repair and restoration and costs thereof. The Pedestrian Link Corridor Area easement shall terminate only in the event of the demolition or substantial destruction of the F-11 438026 RS230-60 Activity Center or the Senior Housing Facility, provided, however, that if an Owner intends to replace its Facility and the same is rebuilt within two years of any such demolition or destruction, the easement over the Pedestrian Link Corridor Area created herein shall remain in full force and effect. The rebuilding or restoring Owner shall pay all construction and restoration costs related to (a) disconnecting the Pedestrian Link from any Facility to be demolished, (b) supporting and securing of the Pedestrian Link during demolition and/or restoration of the replacement Facility, (c) repair or replacement of all Pedestrian Link components damaged by the demolition of a portion of the Pedestrian Link or the damaged Facility, and (d) repair and connection of the Pedestrian Link to the replacement Facility. The Pedestrian Link shall be supported and maintained in good and safe condition pending connection to the replacement Facility or restoration. If construction of a replacement Facility has not been commenced within two (2) years,from the date of demolition or destruction, the easement granted herein over the Pedestrian Link Corridor Area shall terminate on the second anniversary of the demolition or destruction unless otherwise agreed to by the Owners of the Pedestrian Link. 5. Demolition and Construction 5.1. General Requirements. Each Owner agrees that all demolition and construction activities performed by it within the Easement Areas shall be performed in compliance with all laws, rules, regulations, orders, and ordinances of the city, county, state, and federal governments, or any department or agency of any of them, affecting improvements constructed within the Easement Areas. Each Owner further agrees that neither its demolition nor its construction activities shall do any of the following: 5.1.1 Unreasonably interfere with demolition or construction work being performed on any other part of the Easement Areas. 5.1.2 Unreasonably interfere with the use, occupancy or enjoyment of any part of the remainder of the Facilities by any other Owner or its Permittees. 5.1.3 Cause any other Owner to be in violation of any law, rule, regulation, order or ordinance applicable to its Tract of the city, county, state, federal government, or any department or agency of any of them. 5.2. Pedestrian Link Construction. Developer shall be solely responsible for the construction of the Pedestrian Link in accordance with and pursuant to the terms of the Development Agreement. However, City shall have the right to monitor and inspect the construction and construction methods performed on its Tract, and Developer shall use all reasonable efforts to insure that such construction does not unreasonably interfere with access to and the activities of City and its Permittees in the Activity Center. Developer shall coordinate and cooperate with the City in all construction activities on the City Tract to insure minimal interference and damage to the improvements on the City Tract. Developer shall be solely responsible for repairing and restoring any damage to the improvements located F-12 438026 RS230-60 on the City Tract caused by or occurring during such construction. Developer warrants to the City that (a) the Pedestrian Link will be constructed and installed in a good and workmanlike manner without material defects and in accordance with all applicable federal, state and local laws, codes and ordinances and using only all new materials and equipment, and (b) the Pedestrian Link and facilities and improvements to be installed and/or constructed by or under Developer will be free from material defects for a period of one year beginning 30 days following the issuance of a certificate of occupancy for the Pedestrian Link. If any work is found to be defective within said one year period, Developer shall correct, repair and restore such work at its sole cost and expense. Developer warrants to the City that the construction of the Pedestrian Link shall not result in damage or injury to the improvements on the City Tract, other than the work necessarily required for connection of the Pedestrian Link to the Activity Center, which Activity Center shall be restored to substantially the same condition they were in prior to the performance of said work. Notwithstanding the provisions of Section 9 hereof to the contrary, during the construction of the Pedestrian Link, Developer (and not the City) shall procure and maintain builder's All-Risk casualty insurance on the improvements being constructed by Developer, and otherwise maintain in force and effect the insurance required to be obtained by it as provided in the Development Agreement. 5.3. Indemnity. Each Owner agrees to defend, indemnify and hold harmless each other Owner from all claims, actions, proceedings and costs incurred in connection therewith (including reasonable attorneys' fees and costs of suit) resulting from any personal injury, death or property damage whatsoever occurring to any Person or to the property of any Person arising out of or resulting from the performance of any demolition and/or construction activities performed by and on behalf of such indemnifying Owner, except to extent claims in respect thereto are waived or released herein. The indemnification contained in this subsection 5.3 shall not-include an indemnity for any consequential damages. Nothing in this Agreement shall be deemed a waiver by the City of the limitations on liability provided for by Minnesota Statutes, Chapter 466. 6. Maintenance and Repair 6.1. General Responsibility for Maintenance. Except as may be expressly provided otherwise in this Section 6, each Owner shall repair and maintain all of the portions of the Easement Areas located on its Tract in good order, condition and repair, including capital repairs and any repairs necessitated by fire or other casualty. Such maintenance shall include keeping, and each Owner hereby covenants and agrees to keep, all of the portions of the Easement Areas located on its Tract fully illuminated each day from dusk until dawn, 7 days a week. All repairs and maintenance to be performed by an Owner pursuant to this subsection shall be performed at such Owner's sole expense, except as may be expressly provided otherwise in this Agreement. F-13 438026 RS230-60 6.2. Standards for Maintenance. The minimum standard of maintenance for the Easement Areas shall be comparable to the standard of maintenance followed in first-class housing and public facilities of comparable size in the Minneapolis/St. Paul metropolitan area, and in any event in compliance with all applicable governmental laws, rules, regulations, orders and ordinances, and the provisions of this Agreement. The Easement Area improvements shall be repaired or replaced with materials at least equal to the original quality of the materials being repaired or replaced. The maintenance and repair obligation for the parking and driveways in any event shall include but not be limited to the following: 6.2.1 Road,Driveway and Access Areas. Maintaining all paved surfaces and curbs in a smooth and evenly covered condition which maintenance work shall include cleaning, sweeping,restriping,repairing,resurfacing and overlays. 6.2.2 Debris and refuse. Periodic removal of all papers, debris, filth, refuse, ice and snow to the extent necessary to keep the area in a first-class, clean and orderly condition. 6.2.3 Sign and markers. Placing, keeping in repair, replacing and repainting any appropriate directional signs or markers. 6.2.4 Lighting. Operating, keeping in repair, cleaning and replacing when necessary any lighting facilities. The maintenance and repair obligation for the Pedestrian Link in any event shall include but not be limited to the following: 6.2.5 Corridor. Maintaining all pedestrian ways and corridors in a smooth and evenly covered condition, which maintenance work shall include cleaning, sweeping, recarpeting, retiling and resurfacing. All corridors, doors and glass shall be periodically cleaned. 6.2.6 Signage and Exits. Maintaining, repairing and replacing all directorial signs and emergency exit signage. 6.2.7 Structure. Maintaining, repairing and replacing when necessary the Pedestrian Link, its structural components, roof, drainage facilities and access doors and windows. 6.2.8 HVAC. Maintaining, repairing and replacing when necessary all heating, ventilation and air conditioning systems. 6.2.9 Lighting and Security. Maintaining, repairing and replacing when necessary all lights in the Pedestrian Link, including emergency lighting, and all security systems. 6.3. Payment for Negligence. Notwithstanding the provisions of subsection 6.1 F-14 438026 RS230-60 (entitled "General Responsibility for Maintenance"), but subject to the provisions of subsection 9.4 (entitled "Waiver of Subrogation"), in the event any Parking/Driveway Area or the Pedestrian Link located on an Owner's Tract are damaged or destroyed as a result of the negligence or willful misconduct by another Owner or its contractors, agents, servants, or employees, the Owner who (or whose contractors, agents, servants, or employees) caused such damage or destruction shall reimburse the Owner who owns the Tract on which the damage or destruction occurred for the reasonable cost of the repair of such damage or destruction. 6.4. General Easement Repair Provisions. In addition to any other provisions of this Agreement, any Owner entering another Owner's Tract to perform maintenance or repair pursuant to this Agreement shall comply with the following: (a) any such maintenance and repair shall be performed in such a manner as to cause as little disturbance in the use of the Tract where the repairs and maintenance are being performed as is practicable under the circumstances; (b) the Owner performing such repair and maintenance shall promptly pay all costs and expenses associated with any such repair and maintenance, subject to any provisions for reimbursement which may be expressly contained in this Agreement; (c) the Owner performing such repair and maintenance shall diligently complete such work as quickly as possible; and (d) the Owner performing such repair and maintenance shall promptly clean and restore the affected portion of the easement area to a condition equal to or better than the condition which existed prior to the commencement of such work. 7. Building Improvements 7.1. Standards of Maintenance. After completion of construction, each Owner covenants and agrees to maintain and keep the building improvements, if any, located on its Tract in good condition and state of repair, in compliance with all governmental laws, rules, regulations,orders,and ordinances exercising jurisdiction thereover. 7.2. Casualty. In the event any of the building improvements, other than the Pedestrian Link, are damaged by fire or other casualty (whether insured or not), or if a building on a Tract is being torn down or demolished, the Owner upon whose Tract such building improvements are located immediately shall remove the debris resulting from such event and provide a sightly barrier and within a reasonable time thereafter shall either (a) repair or restore the building improvements so damaged or demolished, or (b) erect other building improvements or improvements in such location, or (c) demolish the damaged portion of such building improvements, remove all debris, and restore the area to an attractive condition. Such Owner shall have the option to choose which of the foregoing alternatives to perform, but such Owner shall be obligated to perform one of such alternatives. Notwithstanding the foregoing to the contrary, the Owner of the Developer Tract may not elect (c) unless such Owner shall pay to the City all costs and expenses paid by the City for the demolition, removal and site restoration of the Pedestrian Link on its Tract. If such payment is not timely paid to the City by the Owner of the Developer Tract, the F-15 438026 RS230-60 Owner of the Developer Tract shall perform the work as described in either(a) or(b) of this paragraph. 8. [Intentionally Omitted] 9. Insurance 9.1. Liability Insurance. Each Owner shall maintain or cause to be maintained in full force and effect with respect to its Tract Commercial General Liability Insurance in the amount of at least $1,000,000 per occurrence, $1,500,000 aggregate for bodily or personal injury or death and for property damage. Such insurance shall include a provision for severability of interests. 9.2. Casualty Insurance. Each Owner shall maintain or cause to be maintained in full force and effect property insurance with All-Risk coverage including but not limited to casualty, loss or damage by fire, lightning, windstorm, hail, collapse, explosion, riot, vandalism, civil commotion, aircraft, vehicle, smoke and other such hazards covering the Pedestrian Link on the Owner's Tract in the amount of the full replacement value thereof, and with a demolition and increased cost of construction endorsement during any reconstruction period or during modifications, alterations or changes to the Pedestrian Link(hereinafter the "Property Insurance Policy"). During any period of Pedestrian Link reconstruction, alteration or modification activity, the constructing Owner shall carry such Property Insurance Policy in Builder's Risk form or comparable coverage written on a completed value basis, and shall include broad form contractual liability, products/completed operations, independent contracts, broad form property damage, personal injury, and with "X", "C" and "U" exclusions deleted. 9.3. Indemnity. Subject to the provisions of subsection 9.4 (entitled "Waiver of Subrogation"), each Owner ("Indemnitor") covenants and agrees to indemnify, defend and hold harmless each other Owner ("Indemnitee") from and against all claims, costs, expenses and liability (including reasonable attorneys' fees and cost of suit incurred in connection with all claims) arising from or as a result of the injury to or death of any Person, or damage to the property of any Person,that is caused by the negligence or willful act of such Indemnitor or its contractors, agents, servants, or employees. Nothing in this paragraph shall be deemed a waiver by the City of the limitations on liability provided for by Minnesota Statutes, Chapter 466. 9.4. Waiver of Subrogation. Notwithstanding anything to the contrary contained in this Agreement, each Owner (the "Releasing Owner") hereby releases and waives for itself and on behalf of its insurer, any other Owner (the "Released Owner") from any liability for any loss or damage to all property of such Releasing Owner located upon any portion of its Tract, which loss or damage is of the type generally covered by property insurance provided under the Comprehensive Replacement Cost Form, irrespective either of any negligence on the part of the Released Owner which may have contributed to or caused such loss, or of the amount of such insurance required or actually carried. Each Owner agrees to use its best efforts to obtain, if needed, appropriate endorsements to its policies of insurance with respect to the foregoing F-16 438026 RS230-60 release; provided, however, that failure to obtain such endorsements shall not affect any release given pursuant to this subsection. 9.5. General Requirements. The insurance required by this Section shall specifically extend to contractual obligations of the insured party arising out of the indemnification obligations set forth in this Agreement. Such insurance may be carried under a blanket policy or policies which include other liabilities, properties and locations of such Owner. All insurance required by this Section shall be procured from financially responsible insurance companies licensed to do business in the state of Minnesota. 10. Taxes and Assessments Each Owner shall be responsible for paying all taxes and assessments relating to its Tract and the buildings and improvements located thereon. 11. Liens In the event any mechanic's lien is filed against the Tract of one Owner as a result of services performed or materials furnished for the use of another Owner, the Owner for whose benefit such services were performed or materials were furnished agrees to cause such lien to be discharged prior to entry of final judgment (after all appeals) for the foreclosure of such lien and further agrees to indemnify, defend, and hold harmless the other Owner and its Tract against liability, loss, damage, costs or expenses (including reasonable attorneys' fees and cost of suit) on account of such claim of lien. Upon request of the Owner whose Tract is subject to such lien, the Owner for whose benefit such services were performed or materials were furnished agrees to cause such lien to be released and discharged of record within 14 days after the filing of such lien, either by paying the indebtedness which gave rise to such lien or by posting bond or other security as shall be required by law to obtain such release and discharge; if the Owner for whose benefit such services were performed or materials were furnished fails to obtain such release and discharge within such 14 day period, the Owner of the Tract against which such lien was recorded may cause such lien to be released and discharged of record, either by paying the indebtedness that gave rise to such lien or by posting bond or other security as shall be required by law to obtain such release and discharge, in which case the Owner for whose benefit such services were performed or materials were furnished shall immediately upon demand reimburse the Owner of such Tract for all costs and expenses incurred in connection with obtaining such release and discharge. Nothing in this Agreement shall prevent an Owner for whose benefit such services were performed or materials were furnished from contesting the validity of such lien in any manner such Owner chooses so long as such contest is pursued with reasonable diligence. In the event such contest is determined adversely (allowing for appeal to the highest appellate court), such Owner shall promptly pay in full the required amount,together with any interest, penalties, costs, or other charges necessary to release such lien. Notwithstanding anything herein to the contrary,the cost of the initial construction of the Pedestrian Link, and any liens resulting therefrom, shall be fully paid by Developer. Notwithstanding any provision of this Agreement to the contrary, Developer shall indemnify, defend and hold harmless the City and the City Tract from all mechanics' liens, claims, actions, proceedings and costs incurred in connection therewith(including reasonable attorneys' fees and costs of suit) resulting from F-17 438026 RS230-60 the construction and installation of the Pedestrian Link, and any warranty work performed by or under Developer, on the City Tract. 12. Consents Unless expressly provided otherwise in this Agreement, whenever consent is required in this Agreement, such consent shall not be unreasonably withheld or delayed. Unless provision is made for a specific time period, consent shall be given or withheld within 30 days of the receipt of the request for consent. If a notice that consent will be refused is not given within the required time period, the requested Owner shall be deemed to have given its consent. If an Owner shall refuse consent, the reasons therefor shall be stated. Except with respect to a consent given by lapse of time, all consents and refusals to consent shall be in writing. Any right to consent contained in this Agreement shall be held by the Owner owning the Tract to which such right relates. Any purchaser of any Tract shall automatically acquire any right to consent at such time as such purchaser becomes an Owner, unless the selling Owner (a) conveys less than all of its ownership interest in the Tract and (b) provides in writing, either in the deed conveying a portion of its ownership interest in the Center or in another agreement executed by the selling Owner and recorded in the Dakota County Registrar of Deeds or Registrar of Title's office prior to or -simultaneously with such deed, that such selling Owner retains the right or rights of consent described in such instrument. Until a purchaser becomes an Owner, and only to the extent the selling Owner does not so retain any right to consent, all rights to consent associated with such Tract shall remain with the selling Owner and its heirs, successors and assigns with respect to the non-conveyed portion of the Tract. 13. Condemnation In the event any portion of either the City Tract or the Developer Tract shall be condemned, the award shall be paid to the Owner owning the land or the improvement taken, except that (a) if the taking includes improvements belonging to more than one Owner, such as utility lines, the portion of the award allocable thereto shall be used to relocate, replace or restore such jointly owned improvements to a useful condition, and (b) if the taking includes easement rights that are intended to extend beyond the term of the Agreement,the portion of the award allocable to each such easement right shall be paid to the respective grantee of such easement. In addition to the foregoing, if a separate claim can be filed for the taking of any other property interest existing pursuant to this Agreement that does not reduce or diminish the amount paid to the Owner owning the land or the improvement taken, then the owner of such other property interest shall have the right to seek an award for the taking of such interest. 14. Default 14.1. Force Majeure. The time within which any Owner to this Agreement is required to perform any act shall be extended to the extent that performance of such act is delayed by Force Majeure, but only if such delay was beyond that Owner's reasonable control and was not caused by its fault or negligence. "Force Majeure" shall mean acts of god, fire, abnormal weather, explosion, riot, war, labor F-18 438026 RS230-60 disputes, governmental restrictions, inability to obtain necessary materials, or any other cause beyond such Owner's reasonable control. If a delay of performance occurs and such delay is excusable under this provision, the period for performance shall be extended for a time equal to the time lost because of the Force Majeure, but only if the Owner entitled to such extension give, prompt notice to all other Owners of the occurrence causing the delay and if the Owner so excused acts in good faith and uses due diligence to perform. The inability to obtain financing or lack of money shall not constitute Force Majeure. 14.2. Notice; Cure. If any Owner fails to comply with any provision of this Agreement (the "Defaulting Owner"), then any other Owner (the "Non-Defaulting Owner") may upon 30 days' prior written notice to the Defaulting Owner, proceed to cure the default (and shall have a license to do so) by the payment of money or performance of some other action for the account of the Defaulting Owner. The foregoing right to cure shall not be exercised if within the 30 day notice period (a) the Defaulting Owner cures the default, or (b) if the default is curable, but cannot reasonably be cured within that time period, the Defaulting Owner begins to cure such default within such time period and diligently pursues such cure to completion. The 30-day notice period shall not be required if, using reasonable judgment, the Non-Defaulting Owner deems that an emergency exists that requires immediate attention. In the event of such an emergency, the Non- Defaulting Owner shall give whatever notice to the Defaulting Owner as is reasonable under the circumstances. The Defaulting Owner hereby grants to the Non-Defaulting Owner a nonexclusive easement over, across and under any and all parts of the Defaulting Owner's Tract for all purposes reasonably necessary to enable the Non-Defaulting Owner (or its agents, contractors or subcontractors) to perform any of the terms, provisions, covenants or conditions of this Agreement that the Defaulting Owner is obligated to perform but has failed to perform after notice and the opportunity to cure pursuant to this subsection. 14.3. Reimbursement of Costs to Cure; Lien. Within 10 days after written demand (including providing copies of invoices reflecting costs) the Defaulting Owner shall reimburse the Non-Defaulting Owner for any amount reasonably spent by the Non-Defaulting Owner to cure the default, together with interest on such amount. The Non-Defaulting Owner shall have a lien upon the Defaulting Owner's right, title, and interest in and to any portion of the Defaulting Owner's Tract to secure payment of all amounts due to the Non-Defaulting Owner under this subsection. The Non-Defaulting Owner shall have the right, but not the obligation, to record its lien, but at all times its lien pursuant to this subsection shall be subject and subordinate to (a) the lien of any mortgage or deed of trust held by any institutional lender, or any extension, renewal, modification or refinancing thereof, on the Defaulting Owner's Tract; (b) the leasehold estate created by any lease of all or any part of the Defaulting Owner's Tract; (c) any other lien of record against the Defaulting Owner's Tract as of the date that the Non-Defaulting Owner's lien is recorded. The Defaulting Owner shall execute such instruments and documents as the Non-Defaulting Owner may reasonably F-19 438026 RS230-60 request to permit the recordation of such lien. The Non-Defaulting Owner shall have the right to foreclose such lien in the manner provided by laws of the State of Minnesota governing mechanics liens. 14.4. Estoppel. Each Owner shall, within 15 days after written request from another Owner (but not more often than twice in any 12 month period), execute and deliver to the requesting party an estoppel letter certifying whether or not the certifying Owner has filed any liens, as provided in subsection 14.3, against any Tract, and whether or not any other Owner is delinquent in any payments required to be made to the certifying Owner pursuant to this Agreement. 14.5. Interest. Wherever and as often as one Owner shall not have paid any sum payable hereunder to another Owner within five days of the due date, such delinquent Owner shall pay interest on such amount from the due date, through and including the date such payment is received by the Owner entitled thereto, at the lesser of the following: (a) the highest rate permitted by law to be paid on such type of obligation by the Owner obligated to make such payment; or (b) three percent per annum in excess of the interest rate from time to time publicly announced by U.S. Bank National Association ("U.S. Bank"), a national banking association having its main offices in Minneapolis, Minnesota, or its successor, as its reference rate (the "Reference Rate"), even though U.S. Bank, or its successor, may lend funds to its customers at interest rates that are at,above,or below the Reference Rate. 14.6. Minimization of Damages. In all situations arising out of this Agreement, all Owners shall attempt to avoid and minimize the damages resulting from the conduct of any other Owner. Each Owner shall take all reasonable measures to effectuate the provisions of this Agreement. 14.7. Agreement Shall Continue Notwithstanding Breach. It is expressly agreed that no breach of this Agreement shall (a) entitle any Owner to cancel, rescind, or otherwise terminate this Agreement, or (b) defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to any part of a Tract; however, such limitation shall not affect in any manner any other rights or remedies that an Owner may have under this Agreement by reason of any such breach. 15. Notices All notices given under this Agreement shall be in writing and shall be sent postage prepaid by either (a) United States certified mail, return receipt requested, or (b) for delivery on the next business day with a nationally-recognized express courier. All such notices shall be sent to the following addresses, until such addresses are changed by 30 days' notice: To City: City of Rosemount 2875— 145th Street W Rosemount, MN 55068 Attn: City Administrator F-20 438026 RS230-60 To Developer: Rosemount Senior Living Associates I, LLC Notices shall be deemed given as of the date such notice is postmarked, if sent by certified mail, or is placed with an express courier, if sent by express courier. If the last day for giving any notice or taking any action required or permitted under this Agreement would otherwise fall on a Saturday, Sunday, or legal holiday, that last day shall be postponed until the next legal business day. 16. Miscellaneous 16.1. Liability Limitation. Notwithstanding any provisions of this Agreement to the contrary, including without limitation the indemnifications and agreements described in subsections 5.3, 6.3 and 9.3, and the requirements for insurance as described in Section 9, the liability of the City under this Agreement shall be limited as provided in Chapter 466 of Minnesota Statutes in effect from time to time, and nothing contained in this Agreement shall be deemed to constitute a waiver of such limitations or an agreement by the City to its increase or amend its limited liability as described in such statutes. 16.2. Confirmation of Easements. All easements granted under this Agreement shall exist by virtue of this Agreement, without the necessity of confirmation by any other document. Upon the request of any Owner, each other Owner will sign and acknowledge a document memorializing the existence (including the legal description, location and any conditions), or the termination (in whole or in part), or the release (in whole or in part), as the case may be and to the extent applicable, of any easement. 16.3. Negation of Partnership. None of the terms or provisions of this Agreement shall be deemed to create a partnership between or among the Owners in their respective businesses or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. Each Owner shall be considered a separate Owner, and no Owner shall have the right to act as an agent for another Owner, unless expressly authorized to do so in this Agreement or by separate written instrument signed by the Owner to be charged. 16.4. Not a Public Dedication. Nothing contained in this Agreement shall be deemed to be a gift or dedication of any Tract, or of any portion of any Tract, to the general public or for any public use or purpose whatsoever. 16.5. Entire Agreement: Enforceability. This Agreement, including any Recitals and any attached Exhibits, all of which are made a part of this Agreement, and the Development Agreement contains the entire agreement of the Owners concerning this subject matter. This Agreement should be read carefully because only those terms in writing in this Agreement are enforceable. No other terms or oral promises which are not in this Agreement may be legally enforced, and no promises, projections, F-21 438026 RS230-60 inducements or representations made before the Execution Date will change the terms of this Agreement or be binding on any Owner. No promises or other terms shall be implied in this Agreement. If there is a conflict-between the terms of this Agreement and the Development Agreement,the terms of the Agreement will control. 16.6. Amendments. Except as provided otherwise in this Section, this Agreement may only be amended by a written agreement signed by all of the then current Owners. Any amendment of this Agreement shall be effective only when recorded in Dakota County. No consent to the amendment of this Agreement shall ever be required of any Occupant or Person other than the Owners whose consent is required pursuant to the provisions of this Section, nor shall any Occupant or Person other than the Owners whose consent is required pursuant to the provisions of this Section have any right to enforce any of the provisions of this Agreement. 16.7. Binding Effect: No Third Owner Beneficiaries. This Agreement shall both bind and benefit the parties to this Agreement and their respective heirs, personal representatives, successors and assigns who become Owners. The Owners do not intend that there be any third party or other beneficiaries of this Agreement. The easements, covenants, agreements, conditions, terms, obligations, limitations and undertakings in this Agreement shall be construed as covenants running with the land. This Agreement is not intended to supersede, modify, amend, or otherwise change the provisions of any prior instrument affecting the City Tract or the Developer Tract. 16.8. Waivers: Consents. An Owner shall not be deemed to have made a waiver or consent under this Agreement unless it does so in writing, and the mere failure of an Owner to act to enforce any provision of this Agreement shall not be considered a waiver or consent and shall not prevent that Owner from enforcing any provision of this Agreement in the future. Any waiver or consent under this Agreement shall apply only to the matter expressly waived or consented to, and shall not be deemed to be a waiver of or consent to any subsequent breach or of any other provision of this Agreement. 16.9. Time of the Essence. Time is of the essence with respect to all matters provided in this Agreement. 16.10. Severability. The invalidity or unenforceability of one provision of this Agreement will not affect the validity or enforceability of the other provisions. 16.11. Captions. The section numbers and captions are inserted only as a matter of convenience, and do not in any way define, limit, or describe the scope or intent of this Agreement. Any references in this Agreement to a Section or subsection shall refer to such Section or subsection of this Agreement, unless expressly provided otherwise. 16.12. Interpretation of"including" and "day". Wherever the word "including" is used in this Agreement, or in any recital or exhibit to this Agreement, it shall mean "including without limitation." Wherever the word "day[s]" is used in this Agreement, or in any recital or exhibit to this Agreement, and the word "business" F-22 438026 RS230-60 does not appear immediately before such word, such word shall mean "calendar day[s]." 16.13. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. 17. No Offer The submission of this Agreement for examination and negotiation does not constitute an offer to enter into an agreement, and this Agreement shall not be binding on any party until it is executed and delivered by each party to this Agreement. The City and Developer have signed this Agreement below as of the Execution Date. CITY OF ROSEMOUNT By: William Droste, Mayor And by: Dwight Johnson, City Administrator STATE OF MINNESOTA ) ) ss. COUNTY OF DAKOTA ) This instrument was acknowledged before me on, , 201_,by William Droste and Dwight Johnson,the Mayor and City Administrator,respectively, of the City of Rosemount, a Minnesota municipal corporation, on behalf of the City. Notary Public F-23 438026 RS230-60 ROSEMOUNT SENIOR LIVING ASSOCIATES I, LLC By: Its: STATE OF MINNESOTA ) ) ss. COUNTY OF ) This instrument was acknowledged before me on, , 20_, by , the of Rosemount Senior Living Associates I, LLC , a Minnesota limited liability company, on behalf of the limited liability company. Notary Public My Commission Expires: This Instrument was Drafted By: Kennedy & Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 F-24 438026 RS230-60 EXHIBIT A TO PARKING,ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT Site Plan C2.0 dated 1/28/2014 Preliminary plat needed F-A-1 438026 RS230-60 e - Pic ' - E,?r, . ,__ -_r - �w �' OSEMOUNT NOTES: SITE LAYOUT NOTES: 0}I/E' 0 .. i s f 1 00ROd\MO sE0A 01$scant Oa01OCEM NOIE3 I. CORN.LA$0 arm lNn'LaL1a s No 41x6 E MA 91E 1 O ��q(�q{��'DD�p,``���RR f�1L j�J,®,� -.: _.,-., _. ..-__ _ ..:?; k\ �� aaEUn POOR m MORN a01511R,C110N 1lalsc art(MC ONS V JS1l V2LTSl1.NOT . 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GOPHER STATE ONE CALL ...: 1'1 ,i1! 11. �! y'f(ljNj J,. :✓ _ e -1 11 A\ �\ wvM.waxAteuAxm SITE PLAN 45,,�' "cA6uz' .,v.j - ,- _. ... __ 1,nrr ;;;;1,,k;,/,:,/,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,1 ,a n: \\ `\ �128116-0®LGr.S I ,,,,r rii,,,, a I _'' .'` p nnin P<•/,wn,,,, \\I 3 FXISLING 13UI DING C2.0 miiii, M..N1..>s.NP.N EXHIBIT B TO PARKING,ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT Legal description for developer tract Legal description for city tract F-B-1 438026 RS230-60 EXHIBIT C TO PARKING,ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT Easement- Shared Driveway Area-Developer/EDA F-C-1 438026 RS230-60 EXHIBIT D TO PARKING, ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT Legal description for developer tract parking lot area F-D-1 438026 RS230-60 EXHIBIT E TO PARKING,ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT Legal description City tract parking lot area F-E-1 438026 RS230-60 EXHIBIT F TO PARKING,ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT Legal description pedestrian link corridor area F-F-1 438026 RS230-60 EXHIBIT G TO PARKING,ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT Legal description for developer shared drive access F-G-1 438026 RS230-60 EXHIBIT H TO PARKING,ACCESS AND PEDESTRIAN LINK EASEMENT AGREEMENT Legal description for city shared driveway access F-H-1 438026 RS230-60