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HomeMy WebLinkAbout2016-02-03 PACKET 04.I. TIMOTHY J. KUNTZ DANIEL J. BEESON *KENNETH J. ROHLF STEPHEN H. FOCHLER JAY P. KARLOVICH ANGELA M. LUTZ AMANN *KORINE L. LAND *DONALD L. HOEFT DARCY M. ERICKSON DAVID S. KENDALL BRIDGET McCAULEY NASON TONA T. DOVE BRADLEY R. HUTTER HAROLD LEVANDER 1910-1992 ARTHUR GILLEN 1919-2005 MEMO ROGER C. MILLER 1924-2009 * ALSO ADMITTED IN WISCONSIN ALSO ADMITTED IN NORTH DAKOTA ALSO ADMITTED IN MASSACHUSETTS ALSO ADMITTED IN OKLAHOMA TO: Mayor Bailey and Members of the Cottage Grove City Council FROM: Kori Land, City Attorney DATE: January 27, 2016 RE: Restrictive Easement Agreement As you know, as of November 1, 2015, the Cottage Grove EDA became the owner of the Home Depot parcel. Although the plans are in place to sell the Home Depot parcel to Grove-Rainbow in the near future, with our current ownership, we have the unique opportunity of being a party to the Restrictive Easement Agreement (REA) that has limited the redevelopment of this shopping center area since 2002. The parties involved in the new development of the shopping center have prepared a revised REA and submitted it to our office and City Staff for review and approval. It is important to remember that restrictive covenants run with the land for 25 years, so this will not expire until 2041. A summary of the REA, is provided as follows: PARTIES : HyVee Grove-Rainbow (Mall EDA Fairfield (division of Grove-Rainbow) (Starbucks) Merchants Bank 7180 Point Douglas (Noodles/Chipotle) City of Cottage Grove PARCEL RESTRICTIONS: Exclusive for HyVee Grocery (Does not include incidental sales of less than 1,000 square feet) Gas and convenience store Pharmacy/Drug Store Exclusive for HyVee, Merchants and Noodles/Chipotle but not allowed on HD, Mall or Starbucks Off-sale Liquor Over the Counter drugs (except vitamins) Dollar Stores -451--450-7384 OFFICE ALSO LOCATED IN SPOONER, WISCONSIN Sam-type store Caribou Bakery Exclusive for HD Home Improvement/Hardware, but cannot be greater than 40,000 sq. ft. pursuant to RCA signed with Home Depot (RCA restriction expires 12/1/2030) (Does not include incidental sales) Physical Fitness Hobby Store Nail Salon (except existing Turbo Nails) Sporting Goods Exclusive for Mall Hair salon Spa Tanning Beauty supplies Exclusive for Bank Commercial and personal banking (Does not include ATMs or currency exchange as incidental to the business) RESTRICTIONS OVER ALL PARCELS (strike through shows what was in the 2002 REA and underlined shows what is new in the 2016 REA) No bowling alley No theater within 300 ft. of Home Depot (but no adult theater at all) No cafeteria (i.e. Old Country Buffet) in store next to Rainbow No Bingo other than in spot next to Rainbow No flea market No billiard hall No night club (unless includes a restaurant) No on-sale liquor (as a primary use) No arcade No physical fitness center No recreation/amusement center (which does not include movie theater or physical fitness center) No buildings with more than 1 story except Rainbow and Noodles/Chipotle building unless pre- existing No laundromat/dry cleaning No Adult Uses No banquet hall No tattoo establishments No antique store No schools No weight loss clinics Restricted Use Area (next to Home Depot) additional restrictions: No restaurant No school 2 No weight loss clinic No offices No off-track betting No hair or tanning salon PARKING Cross-parking easements for all parcels over the entire shopping center. Please note that there is language that this cross-parking easement requirement in the REA cannot change without the prior written consent of the City. Requirement that Grove-Rainbow remove the garden center build at least 64 stall on the Home Depot site Please note that the City is added as a party to the REA to confirm that all lots comply with parking requirements as of the date of execution of the REA. All of the parcels have been through the appropriate zoning approvals, so we can confirm that they all comply. However, if any uses change so that the new use requires parking requirements and go through the process to obtain those approvals. STORMWATER DETENTION POND All property owners (except the EDA) are responsible for the maintenance, repair and replacement of the Stormwater Detention Pond through a cost-sharing arrangement, based the square footage of each lot. SIGNS shall be maintained by HyVee, with expenses to be shared by those with permission to use the sign. allocated between HyVee and the Mall tenants, with HyVee on top. The monument sign will be shared between HyVee (top), Noodles/Chipotle (middle) and HD (bottom). The size of the Noodles/Chipotle portion of the sign will not change and HyVee and HD will have to share the remainder of the sign. It is important to note that not all parties have agreed to the terms of the REA so there may be a few changes prior to execution. RECOMMENDATION: Approve REA and authorize its execution, subject to minor modifications approved by the City Attorney. 3 SECOND RESTATED DECLARATION OF RESTRICTIONS AND EASEMENTS THIS SECOND RESTATED DECLARATION OF RESTRICTIONS AND EASEMENTSAgreement (this is made as of the day of ___________, 2016 (the EffectiveDate , by and among HY-VEE, INC., an Iowa corporation, of 5820 Westown Hy-Vee , the COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY, a body corporate and politic under the laws of Minnesota, of EDA 12800 Ravine Parkway South, Cottage Grove, MN 55016 the CITY OF COTTAGE GROVE, MINNESOTA, a body corporate and politic under the laws of Minnesota, of 12800 City Ravine Parkway South, Cottage Grove, MN 55016, Cottage Grove, MN 55016 , GROVE-RAINBOW, L.P., a Minnesota limited partnership, c/o EBL&S Property Management, Grove-Rainbow rd Merchants MERCHANTS NATIONAL BANK of 102 3 St. E., Winona, MN 5598 7180 POINT DOUGLAS LLC, a Minnesota limited liability company, of 11115 Excelsior Boulevard, 7180 Hopkins, MN 55343 ), and FAIRFIELD GREENWOOD ASSOCIATES, L.P., a New York limited partnership, c/o EBL&S Property Management, Inc., 200 South Broad Street, Suite Fairfield 415, Philadelphia, PA . WITNESSETH: RECITALS WHEREAS , Hy-Vee is the owner of that certain property locally known as 7280-7300 East Point Douglas Road South, Cottage Grove, Washington County, Minnesota, legally Hy-Vee Tract ; and WHEREAS , EDA is the owner of that certain property locally known as 7210-7240 East Point Douglas Road South, Cottage Grove, Washington County, Minnesota, legally described on on Grove Tract WHEREAS, attached hereto and incorporated herein by this reference, and visually depicted on the Site Plan WHEREAS, Grove-Rainbow is the owner of that certain property locally known as __________ East Point Douglas Road South, Cottage Grove, Washington County, Minnesota, D Grove-Rainbow Tract vi WHEREAS , Merchants is the owner of that certain property locally known as 7200 East Point Douglas Road South, Cottage Grove, Washington County, Minnesota, legally described on Eattached hereto and incorporated herein by this reference, and visually depicted on BankTract WHEREAS , 7180 is the owner of that certain property locally known as 7180 East Point Douglas Rd. South, Cottage Grove, Washington County, Minnesota, legally described on Exhibit F 7180 Tract nd WHEREAS , Fairfield is the owner of that certain property locally known as 7190 East Point Douglas Rd. South, Cottage Grove, Washington County, Minnesota, legally described on G Fairfield Tract WHEREAS, , the Hy-Vee Tract, the Grove Tract, Outlot Athe Grove-Rainbow Tract, the Bank Tract, the 7180 Tract and the Fairfield Tract are collectively hereinafter referred to as the ShoppingCenter WHEREAS , The Shopping Center is subject to that certain Restated Declaration of Restrictions and Easements dated June 12, 2002, and recorded in the office of the County Office Recorder for Washington County, Minnesota on June 12, 2002, as t DocumenNo. 3243180; as amended by that certain First Amendment to Restated Declaration of Restrictions and Easements dated September 17, 2002, and recorded April 9, 2003, as Document No. 3325481; and as further amended by that certain Second Amendment to Restated Declaration of Restrictions and Easements dated March 3, 2003, and recorded on April 9, 2003, as Document No. 3325482; and as further amended by that certain Third Amendment to Restated Declaration of Restrictions and Easements dated March 24, 2004 Document No. 3438700 and as consented to by Kensington Cottage Corporation of Rochester, II, a Minnesota corporation, also known as KCR Corporation (predecessor-in-interest to 7180 in Original Restated REA and to the 7180 Tract) and WHEREAS, Hy-Vee, EDA, Grove-Rainbow, Merchants, 7180 and Fairfield desire that the Hy-Vee Tract, the Grove Tract, Outlot A,the Grove-Rainbow Tract, the Bank Tract, the 7180 Tract and the Fairfield Tract continue to be operated as an integrated commercial Shopping Center, that the Original Restated REA be restated in its entirety, and that the Hy-Vee Tract, the Grove Tract, Outlot A,the Grove-Rainbow Tract, the Bank Tract, the 7180 Tract and the Fairfield Tract be subject to the easements and the covenants, conditions and restrictions hereinafter set forth. NOW, THEREFORE , for the purpose of providing for the continued use and operation of the Hy-Vee Tract, the Grove Tract, Outlot A,the Grove-Rainbow Tract, the Bank Tract, the 7180 Tract and the Fairfield Tract as an integrated Shopping Center, and in consideration of the promises, easements, covenants, conditions, and restrictions set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Hy-Vee, EDA, Grove-Rainbow, Merchants, 7180 and Fairfield do hereby agree as follows: 2 1.Recitals. The Recitals are hereby incorporated herein by this reference. 2.Restatement of Original Restated REA. Except as otherwise specifically provided in this Agreement, the Original Restated REA is hereby restated in its entirety and the following easements, covenants, conditions and restrictions are substituted, imposed and established in their place and stead. 3.Definitions. (a) Bank Tract Prime Parking Area-Vee Tract that is visually depicted as such on the Site Plan. (b)Lot conveyed and is separately assessed for real estate taxation purposes, whether a numbered Lot, an outlot, or any portion thereof, as they may exist from time-to-time. (c)OccupantOwners, tenants, subtenants, licensees, concessionaires and other occupants, whether by ownership, lease, sublease, license, concession agreement or other occupancy right, of any Lot, or any portion of any Lot, within the Shopping Center. Owner Shopping Center. (e) Pre-existing Storm Water Detention Facility-Vee Tract that is visually depicted as such on the Site Plan, as well as any storm sewer trunk(s) and/or extensions or piping that carry storm water to the Pre-existing Storm Water Detention Facility from any other O (f) Primary Access DriveCenter that is visually drive. (g) Signage Easement Area 1-Vee Tract that is visually (h) Signage Easement Area 27180 Tract that is visually (i) Site Planthe visual depiction of the Shopping Center attached hereto as Exhibit Hin by this reference. (j) Underground Storm Water Detention Facility water detention facility to be installed upon, under and through the Hy-Vee Tract by Hy-Vee, as well 3 as any storm sewer trunk(s) and/or extensions or piping upon the Hy-Vee Tract that carry storm water to the Underground Storm Water Detention Facility from any other O 4.Use Restrictions - General. Buildings in the Shopping Center shall be used for commercial purposes of the type normally found in a retail shopping center, including, without limitation, service shops, offices, and retail stores. No portion of the Shopping Center shall be used as a coin operated laundry facility; a dry cleaning plant (provided, a dry cleaning drop-off only location is not prohibited hereby); a -a flea market; a banquet hall; a funeral parlor; an off-track betting establishment; a tattoo parlor; an antique store; a billiard parlor; a bingo parlor; a night club; or any operation whose primary business is the sale of alcohol for on-premises consumption (provided the same is not intended to restrict restaurants or sports bars); a video arcade; a bowling alley; a manufacturing or industrial facility (except as specifically provided in Section 6(e) herein); a training or educational facility (including without limitation, a beauty school or barber college, a reading room or a school or other facility catering to students and/or trainees); a weight loss clinic; or, except for the physical fitness center exclusive in favor of the Grove Tract, as provided in Section 5(d)(ii) of this Agreement, any other place of recreation or amusement. Notwithstanding the prohibition against a place of public recreation or amusement, the prohibition of any place of public recreation or amusement will not be deemed or construed to prohibit a movie at the Shopping Center, provided however that any movie theatre shall be prohibited from displaying, projecting, transmitting or reproducing any image or series of images, the content of which has been rated The Owners recognize that said businesses may inconvenience their customers and Occupants and adversely affect their respective businesses and the businesses of their respective Occupants. 5.Use Restrictions - Competing Businesses. (a)Shopping Center Restrictions For the Benefit of the Hy-Vee Tract. For the benefit of the Hy-Vee Tract only (and therefore only the Owner of the Hy-Vee Tract may enforce the same), no portion of the Shopping Center other than the Hy-Vee Tract (and the Bank Tract if Hy-Vee becomes the Owner or Occupant thereof on or after the Effective Date) may be used for any of the following, to-wit: (i) the sale of groceries, meats, poultry, seafood, dairy products, fruits, vegetables or baked goods for off-premises consumption (provided, however, the foregoing shall not prohibit on any other Lot in the Shopping Center (A) the operation of a home meal replacement business, such as Boston Market, Hearth Express, Kenny Home Rogers Roasters, Old Country Buffet, Home Town Buffet or similar users Meal Replacement Business Replacement Business, or (B) the sale of the foregoing items as an incidental part of any other (other than an Occupant operating a Home Meal Replacement Business) business, provided that such sales of any other Occupant (other than an Occupant operating a Home Meal Replacement Business) are conducted from not more 4 than 1,0, exclusive of aisle space); and/or (ii) a grocery store, supermarket, or specialty food store (by way of example - Mart Express, Aldi, Trader Joes, Whole Foods Mar , Fresh Thyme); and/or (iii) a convenience store (with or without gas) and/or gasoline station, including any type of business that sells diesel fuel, ethanol fuel, bio-fuel or any other type of fuel used to power motorized vehicles designed primarily for use on public streets and highways. Nothing contained in this Subsection 5(a)(ii) shall be deemed or construed to prohibit the sale on the Grove Tract of propane, white gas or other fuel (other than motor vehicle fuel) in connection with the home improvement center and hardware store exclusives in favor of the Grove Tract provided in Section 5(d)(i) of this Agreement; and/or (iv) a pharmacy and/or drug store (by way of example only, and not in limitation: CVS, Walgreens, Rite Aid, Medicap, Health Mart, The Medicine Shoppe);. Notwithstanding the restrictions in Subsections 5(a)(i) 5(a)(ii), 5(a)(iii) and 5(a)(iv), Hy-Vee Starbucks acknowledges that the lease with Starbucks Corporation on the Fairfield Tract Starbucks Lease , and the lease with Kim T. Vuong and Heng Chea, d/b/a Turbo Nails Turbo NailsTurbo Nails Lease Fairfield does not prohibit either Starbucks Premises or Turbo Turbo Nails Premises for any of the uses (other than, with respect to Starbucks on the Starbucks Premises, the sale of baked goods than 200 square feet of the Starbucks Premises) to total sales, as specifically provided in the Starbucks Lease) restricted by Subsections 5(a)(i), 5(a)(ii), 5(a)(iii) and/or 5(a)(iv), and the restrictions contained in Subsections 5(a)(i), 5(a)(ii), 5(a)(iii) and 5(a)(iv), shall not be applicable to the Starbucks Premises and the Turbo Nails Premises during the term of the Starbucks Lease and Turbo Nails Lease, respectively, including (A) any option or renewal term currently granted to Starbucks in the Starbucks Lease and Turbo Nails in the Turbo Nails Lease, if any, (B) any additional option or renewal terms granted to Starbucks and Turbo Nails by way of amendment to or modification of the Starbucks Lease and/or Turbo Nails Lease, respectively, during the term (including any current option or renewal term provided in the Starbucks Lease and/or Turbo Nails Lease, if any) of the Starbucks Lease and Turbo Nails Lease, respectively, or (C) any new lease of the Starbucks Premises granted to Starbucks on the Fairfield Tract or any new lease granted to Starbucks on the Grove Tract or the Grove-Rainbow Tract, and/or any new lease of the Turbo Nails Premises granted to Turbo Nails on the Fairfield Tract, at the expiration or earlier termination of the term (including any current option or renewal term or any additional 5 option or renewal terms granted to Starbucks and/or Turbo Nails) of the Starbucks Lease and/or Turbo Nails Lease. (b)Grove Tract, Grove-Rainbow Tract and Fairfield Tract Restrictions For the Benefit of the Hy-Vee Tract. For the benefit of the Hy-Vee Tract only (and therefore only the Owner of the Hy-Vee Tract may enforce the same), no portion of the Grove Tract, no portion of the Grove-Rainbow Tract, and no portion of the Fairfield Tract, may be used for any of the following, to-wit: (i) the sale of (A) edible perishable products for off-premises consumption (by way of example only, and not in limitation: meats, poultry, seafood, dairy products, fruits, vegetables or baked goods) (provided, however, the sale of edible perishable products for off-premises consumption shall be permitted upon the Grove Tract, the Grove-Rainbow Tract and the Fairfield Tract, provided the same (1) is not sold from an area containing greater than 1,000 sq. ft. of floor space, inclusive of aisle space, and (2) does not exceed five percent (5%) of the gross sales of any such business (collectively, Grocery Sales Restriction Limitation , and provided further that the sale of baked goods shall be permitted by Starbucks in the Starbucks Premises on the Fairfield Tract or in any new premises leased to Starbucks on the Grove Tract or the Grove-Rainbow Tract, as specifically provided in Section 5(a), without any limitation on the percentage of gross sales generated by the sale of baked goods); (B) alcoholic beverages for off-premises consumption; and/or (C) prescription and over-the-counter pharmaceuticals (provided, however, the sale of vitamins, health supplements, non-prescription drugs and other products customarily sold by nutrition supplement stores (by way of example only and not in limitation, GNC and Vitamin Shoppe) shall be permitted upon the Grove Tract, the Grove-Rainbow Tract and the Fairfield Tract); provided, however, the restrictions set forth in this Subsection 5(b)(i) are not intended to prohibit a restaurant, sports bar, or other business that sells alcoholic beverages for strictly on-premises consumption; (ii) way of example only, and not in limitation: Dollar General, Family Dollar, Dollar Tree, 99 Cents Only, Five Below); (iii) a retail and/or club and/or wholesale store that sells non-food merchandise that also includes a grocery section or department the sales of edible perishable products from which would exceed the Grocery Sales Restriction Limitation (by way of example only, and not in limitation: Wal-Mart, Wal-Mart Supercenter, Target, Super Target, Costco, ; (iv) a Caribou or Starbucks branded coffee shop; provided, however that any Starbucks or Caribou branded coffee shop operating on the date hereof shall not be deemed a violation hereof and the same may be relocated upon the Fairfield Tract, the Grove-Rainbow Tract or the Grove Tract; 6 (v) a retail store marketed as any type of bakery; Notwithstanding the restrictions in Subsections 5(b)(i), 5(b)(ii), 5(b)(iii), 5(b)(iv), and 5(b)(v), Hy-Vee acknowledges that neither the Starbucks Lease nor the Turbo Nails Lease prohibits Starbucks from using the Starbucks Premises and/or Turbo Nails from using the Turbo Nails Premises for any of the uses restricted by those Subsections, and the restrictions contained in Subsections 5(b)(i), 5(b)(ii), 5 (b)(iii), 5(b)(iv), and 5(b)(v) shall not be applicable to the Starbucks Premises and the Turbo Nails Premises, during the term of the Starbucks Lease and the Turbo Nails Lease, respectively, including (A) any option or renewal term currently granted to Starbucks in the Starbucks Lease, and Turbo Nails in the Turbo Nails Lease, if any, (B) any additional option or renewal terms granted to Starbucks and/or Turbo Nails by way of amendment to or modification of the Starbucks Lease and/or Turbo Nails Lease, respectively, during the term (including any current option or renewal term provided in the Starbucks Lease and/or Turbo Nails Lease, if any), or (C) any new lease of the Starbucks Premises granted to Starbucks on the Fairfield Tract, and/or any new lease of the Turbo Nails Premises granted to Turbo Nails on the Fairfield Tract, or any new lease granted to Starbucks on the Grove Tract or the Grove-Rainbow Tract at the expiration or earlier termination of the term (including any current option or renewal term or any additional option or renewal terms granted to Starbucks and/or Turbo Nails) of the Starbucks Lease and/or the Turbo Nails Lease. (c) Shopping Center Restrictions for the Benefit of Home Depot U.S.A., Inc. (i) In connection with purchase by the EDA of the Grove Tract from Home Home Depot Depot U.S.A., Inc., a Delaware and as a material inducement for Home Depot to sell the Grove Tract to EDA, the EDA recorded (or caused to be recorded) against the Grove Tract that certain Restrictive Covenant Agreement dated November 2, 2015, by and between Home Depot and EDA (the Restrictive Covenant Agreement recorded on November 20, 2015, 4048861. Among other restrictions encumbering the Grove Tract as provided in the Restrictive Covenant Agreement, the Restrictive Covenant Agreement prohibits EDA and any other Owner, Occupant, person or entity which has or obtains an interest in the Grove Tract, or any portion thereof, or any right to occupy or use the Grove Tract, or any part thereof, from agreeing to, allowing, providing or otherwise taking any action (directly or indirectly, in any manner whatsoever) with respect to (i) any agreement that would serve Home Improvement Restriction against the entire Shopping Center, as provided in Section 6 of the Original Restated REA, or (ii) any waiver or consent to or with respect to the Original Restated REA that would allow any use on the Shopping Center that is prohibited by the Home Improvement Restriction in the Original Restated REA. The Restrictive Covenant Agreement also prohibits the EDA and any other Owner, Occupant, person or entity which has or obtains an interest in the Grove Tract, or any 7 portion thereof, or any right to occupy or use the Grove Tract, or any part thereof, from allowing or permitting any violation of the Home Improvement Restriction in favor of Home Depot, by any other Owner or Occupant of any portion of the Shopping Center. (ii) As a material inducement to EDA to enter into this Agreement, Hy-Vee, EDA, Grove-Rainbow, Merchants, 7180 and Fairfield each acknowledge and agree that the Home Improvement Restriction in favor of Home Depot in Section 6 of the Original Restated REA prohibits (subject to any existing leases as of the date of the Original Restated REA) any portion of the Shopping Center (other than the Grove Tract) to be used for (A) a home improvement center, (B) the sale, display, use or distribution of lumber, hardware items, plumbing supplies and fixtures, electrical supplies and fixtures, paint, cabinets, siding, ceiling fans, gardening supplies, nursery products, flowers, and artificial plants, Christmas trees, household appliances, pool supplies and other related items customarily carried by a home improvement center, or (C) the sale, display, lease or distribution of items or material related to hard and soft floor covering (including, tile, wood flooring, rugs and carpeting); interior design services; kitchens or bathrooms or components thereof (including tubs, sinks, faucets, mirrors, cabinets, showers, vanities, countertops and related hardware); indoor and outdoor lighting; window treatments (including draperies, curtains and blinds); wallpaper and wall coverings; patio furniture and patio accessories; kitchen appliances (including countertop and small appliances); and closet organizing systems. Notwithstanding anything contained in this Agreement to the contrary, as a further inducement to EDA to enter into this Agreement and as consideration for EDA entering into this Agreement, Hy-Vee, EDA, Grove-Rainbow, Merchants, 7180 and Fairfield hereby agree that the Home Improvement Restriction in Section 6 of the Original Restated REA and as set forth in this paragraph, is (1) incorporated into and made a part of this Agreement for all purposes, and (2) shall bind the Hy-Vee Tract, the Grove Tract, Outlot A,the Grove-Rainbow Tract, the Bank Tract, the 7180 Tract and the Fairfield Tract. Hy-Vee, for itself, its successors, assigns, any Owner and any Occupant of the Hy-Vee Tract; EDA, for itself, its successors, assigns, any Owner and any Occupant of the Grove Tract and/or Outlot A; Grove-Rainbow, for itself, its successors , assigns, any Owner and any Occupant of the Grove-Rainbow Tract, Merchants, for itself, its successors, assigns, any Owner and any Occupant of the Bank Tract; 7180, for itself, its successors, assigns, any Owner and any Occupant of the 7180 Tract, and Fairfield, for itself, its successors, assigns, any Owner and any Occupant of the Fairfield Tract, covenant and agree to and for the benefit of EDA, its successors, assigns, any Owner and any Occupant of the Grove Tract, that they shall not use any portion of the Shopping Center owned or leased by them in violation of the Home Improvement Restrictions. Notwithstanding the terms of the Home Improvement Restriction, the incidental sale of items or materials set forth in clauses (B) and (C) of this Subsection (which restate clauses (b) and (c) of the Home Improvement Restriction in the Original Restated REA) shall be permitted in the Shopping Center provided that the sale of any such items or materials are merely incidental in nature to the business of an Owner or other Occupant of any portion of the Shopping Center operating a business in the 8 Shopping Center. By way of example only of the incidental sale of any of the items in clauses (B) and (C) as incidental in nature to the business of an Owner or Occupant of any portion of the Shopping Center, the sale of gardening supplies, nursery products, flowers, artificial plants and Christmas trees as part of the normal operations of a grocery store, such as a Hy-Vee grocery store, including the sale of such items in an outdoor seasonal sales area, shall be considered merely incidental to the business of such Owner or Occupant. (iii) If at any time after the Effective Date, any Owner, Occupant or other person or entity which then has an interest in the Hy-Vee Tract, Outlot A, the Grove- Rainbow Tract, the Bank Tract, the 7180 Tract and/or the Fairfield Tract shall violate, or intend to violate, the Home Improvement Restriction, the then Owner of the Grove Tract shall have the right to sue for and obtain a prohibitive or mandatory injunction or any other equitable remedy to prevent the breach of, or to enforce compliance with, the Home Improvement Restriction by the Owner or Occupant violating, or intending to violate, the Home Improvement Restriction. Further, the Owner of the Grove Tract shall also have the right to pursue any other rights available to prevent the violation of, or the intention to violate, or to enforce compliance with, the Home Improvement Restriction. All such rights and remedies in favor of the Owner of the Grove Tract may be pursued successively or concurrently, and the exercise of any one remedy shall not be construed as, or constitute a bar to, the exercise of any other remedy. The prevailing party in any such action shall pay to the non-prevailing party all costs and expenses of litigation at any determine the prevailing part party. paid. (iv) If at any time after the Effective Date, Home Depot brings any claims, demands, actions, causes of action, suits or other proceedings against the Owner of the Grove Tract as the result of the violation, or intended violation, of the Home Improvement Restriction by the Owner or Occupant of the Hy-Vee Tract, the Bank Tract, Outlot A, the Grove-Rainbow Tract, the 7180 Tract and/or the Fairfield Tract, as the case may be, the then Owner of the Hy-Vee Tract, the Bank Tract, Outlot A, the Grove- Rainbow Tract, the 7180 Tract and/or the Fairfield Tract, as applicable, that violated, or intended to violate, or whose Occupant violated, or intended to violate, the Home Improvement Restriction, shall, to the fullest extent permissible by law, indemnify, defend (with counsel reasonably acceptable to the Owner of the Grove Tract) and hold harmless the Owner of the Grove Tract from and against, and shall reimburse the Owner of the Grove Tract for, any and all claims, demands, debts, actions, causes of action, liabilities of any kind or character whatsoever, known or unknown, suspected or 9 unsuspected, foreseeable or unforeseeable, present or future, liquidated or unliquidated, matured or un-matured, direct, indirect or derivative, fixed or contingent, including without limitation, such claims as economic loss, investment loss, loss of business opportunity, breach of contract, exemplary, punitive, consequential or other damages asserted against, imposed upon, suffered by, incurred by, sustained by, or paid by the Owner of the Grove Tract, as the result of a breach, or an alleged breach, of the Home Improvement Restriction. Any amounts covered by the foregoing indemnification shall bear interest from the date incurred to the date of payment at the rate of twelve percent (12%) per annum or the maximum rate permissible by applicable law, whichever is lower Default Rate The rights, remedies and indemnities in favor of the Owner of the Grove Tract as provided in this Subsection 5(c)(iv) shall be in addition to any other form of security, or any other indemnity or remedy in favor of the Owner of the Grove Tract, available under this Agreement or any other agreement, or available at law or in equity. (v) If at any time after the Effective Date, Home Depot brings any claims, demands, actions, causes of action, suits or other proceedings against the Owner of the Hy-Vee Tract, the Grove Tract, Outlot A, the Grove-Rainbow Tract, the Bank Tract, the 7180 Tract and/or the Fairfield Tract as the result of the violation, or intended violation, of the Home Improvement Restriction by the then Owner or any Occupant of the Hy-Vee Tract, the Grove Tract, Outlot A, the Grove-Rainbow Tract, the Bank Tract, the 7180 Tract and/or the Fairfield Tract, Home Depot shall have the right to sue for and obtain a prohibitive or mandatory injunction or any other equitable remedy to prevent the breach of, or to enforce compliance with, the Home Improvement Restriction. Further, Home Depot shall also have the right to pursue any other rights available to prevent the violation of, or the intention to violate, or to enforce compliance with, the Home Improvement Restriction. All rights and remedies available to Home Depot may be pursued successively or concurrently, and the exercise of any one remedy shall not be construed as, or constitute a bar to, the exercise of any other remedy. Home Depot is an intended beneficiary of the provisions of this Subsection 5(c)(v). (vi) The Home Improvement Restriction shall automatically terminate without any action or the recording of any other documents by the Owner of the Hy-Vee Tract, the Owner of the Grove Tract, the Owner of Outlot A, the Owner of the Grove-Rainbow Tract, the Owner of the Bank Tract, the Owner of the 7180 Tract or the Owner of the Fairfield Tract, on December 1, 2030. (d) Shopping Center Restrictions for the Benefit of the Grove Tract. For the benefit of the Grove Tract only (and therefore only the Owner of the Grove Tract may enforce the same), except for the right of Starbucks to use the Starbucks Premises (or any other premises leased to Starbucks on the Grove Tract or the Grove-Rainbow Tract) for any lawful retail use, Turbo Nails Premises Fairfield Tract for any lawful retail use, no portion of the Shopping 10 Center, except the Grove Tract, may be used for any of the following, to-wit: (i) Home Improvement Center or Hardware Store. Subject to the terms and limitations of the Restrictive Covenant Agreement, a home improvement center and a retail hardware store, including without limitation, the sale, display, lease or distribution of (1) hardware items, (2) tools (including, without limitation, hand tools, power tools, cutting and abrasive tools, machine and metal working tools, cleaning tools and gardening tools), (3) plumbing supplies and fixtures, (4) electrical supplies and fixtures, (5) nails, screws, nuts, bolts, washers, latches, hinges, locks and similar implements and devices, (6) paint and paint supplies, (7) ladders, (8) tool boxes, (9) work benches, (10) hand trucks, (11) storage sheds, (12) ceiling fans, (13) chains, (14) indoor and outdoor lighting, (15) pool supplies, (16) gardening supplies, (17) nursery products, (18) kitchens, bathrooms and components thereof, including tubs, sinks, faucets, mirrors, cabinets, showers, vanities, countertops and related hardware, (19) window treatments, (20) wall coverings (including curtains, blinds and draperies), (21) items and materials related to hard and soft flooring (including tiles, wood flooring, rugs and carpeting), (22) lumber, and (23) patio furniture and patio accessories. Notwithstanding the terms and provisions of this Section 5(d)(i) to the contrary, and as provided in the Home Improvement Restriction, the incidental sale of items or materials set forth in clauses (b) and (c) of the Home Improvement Restriction and enumerated in Subsections (B) and (C) of Section 5(c)(ii) of this Agreement, shall be permitted on the Hy-Vee Tract, the Bank Tract, the Grove-Rainbow Tract, the 7180 Tract and the Fairfield Tract, provided that the sale of any such items are merely incidental in nature to the business of an Owner or Occupant of any portion of the Shopping Center operating a business in the Shopping Center. Additionally, except as otherwise specifically provided in this Subsection 5(d)(i), the sale of any items listed in this Subsection 5(d)(i) may only be sold in an area on any Lot (other than the Grove Tract) containing, in the aggregate for all of the items included in this Subsection 5(d)(i) (and not for individual items), not more than 1,000 square feet, inclusive of aisle space. Notwithstanding the provisions of the immediately preceding sentence of this Section 5(d)(i) and subject to the other terms of this Agreement, the Owner of the Hy-Vee Tract shall have the absolute right to sell any of the items listed in numbers (16) (gardening supplies), (17) (nursery products) and (23) (patio furniture and patio accessories) only, in any area of the Hy-Vee Tract, and without any limitation on the amount of area in which such products may be sold, the amount of gross sales that may be generated by the sale of such products, or any other restrictions with respect to those specific products. An example of the incidental use of the items in clauses (b) and (c) of the Home Improvement Restriction is described in the last full sentence of Section 5(c)(ii) of this Agreement; (ii) Physical Fitness Facility and/or Club. As used in this Subsection 5(d)(ii), a physical fitness facility and/or club shall mean a fitness center, health club or gym, including without limitation, the use of such facility for aerobics, yoga, Pilates, a dance studio offering fitness oriented classes such as Zumba, spinning/cycling, circuit training, 11 personal training, basketball, boxing, mixed martial arts, cardiovascular or jazzercise operations, swimming, racquetball, squash, and all other recreational activities, recreational amenities and recreational services of the nature typically made, operated and/or provided, as the case may be, by national or regional fitness or health club operators, such as, without limitation, L.A. Fitness, 24 Hour Fitness, Life Time Fitness, Planet Fitness, Bally Total Fitness, YMCA or YWCA. Any physical fitness facility or club on any portion of the Grove Tract shall have the absolute right to use a portion of the Grove Tract approved by the Owner of the Grove Tract for the placement of a temporary trailer for purposes of pre-opening membership sales, provided that any such temporary trailer shall be removed from the Grove Tract no later than the day that the physical fitness facility or club opens for business to the public. (iii) Hobby or Craft Store. As used in this Subsection 5(d)(iii), a hobby or craft store shall mean stores such as, for example, Jo-Ann Fabric, Hobby Lobby, Michaels or At Home Stores. Notwithstanding the foregoing provision of this Subsection 5(d)(iii), the incidental sale of hobby and/or craft items or materials of the type typically sold in a hobby or craft store (and not applicable to the home décor-type items) shall be permitted on any other Lot in the Shopping Center provided that the sale of any such items or materials are merely incidental in nature to the business of an Owner of Occupant of the Lot and provided further that any such items or materials may be sold in an area on such Lot (other than the Grove Tract and/or the Hy-Vee Tract (and the Bank Tract if owned by the Owner of the Hy-Vee Tract)) containing in the aggregate for all such items and materials (and not for individual items), not more than 1,000 square feet, inclusive of aisle space. (iv) Nail Salon or Nail Bar. As used in this Subsection 5(d)(iv), a nail salon or nail bar shall mean a store that primarily offers nail care services such as manicures, pedicures and nail enhancements. No other Lot in the Shopping Center other than the Grove Tract or the Fairfield Tract, shall be permitted to use the Lot, or any part thereof, for the sale of nail care services such as manicures, pedicures and nail enhancements. Notwithstanding the foregoing provisions of this Subsection 5(d)(iv), nothing contained in this Subsection 5(d)(iv) shall be deemed or construed to prevent any other Lot from being used for (A) spa services, (B) the sale of makeup, (C) makeup lessons, (D) tanning salons, (E) the sale of hair care products, (F) the sale of beauty supplies and products, (G) massage therapy, or (H) similar uses. (v) Sporting Goods Store. As used in this Subsection 5(d)(v), a sporting goods store mean shall stores like Sporting Goods, Inc., Sports Authority, Academy Sports, and similar users that sell, lease and/or distribute, either singly or in any combination, primarily (A) fitness, exercise or other fitness or exercise related equipment, (B) sporting goods and sporting equipment and accessories, including, but not limited to, (1) baseball, basketball, football, soccer, golf, tennis, fishing, boating, weightlifting, boxing, wrestling, 12 swimming and hockey equipment and accessories, (2) hunting and camping equipment and accessories, and/or (3) athletic footwear. Notwithstanding the foregoing provisions of this Subsection 5(d)(v), the incidental sale of the items described in this Subsection 5(d)(v) shall be permitted on any other Lot of the Shopping Center, provided that the sale of any of these items are merely incidental in nature to another business of an Owner or Occupant of such Lot, and provided further that any such items or materials may only be sold in any area on such Lot (other than the Grove Tract and/or Hy-Vee Tract (and the Bank Tract if owned by the Owner of the Hy-Vee Tract)) containing, in the aggregate for all such items and materials (and not for individual items) not more than 1,000 square feet, inclusive of aisle space. (e) Shopping Center Restrictions for the Benefit of the Grove-Rainbow Tract. For the benefit of the Grove-Rainbow Tract only (and therefore only the Owner of the Grove- Rainbow Tract may enforce the same), except for the right of Starbucks to use the Starbucks Premises on the Fairfield Tract for any lawful retail use, and except for the right of Turbo Nails to use the space occupied by Turbo Nails on the Fairfield Tract for any lawful retail use, no portion of the Shopping Center, except the Grove-Rainbow Tract and the 7180 Tract, may be used for the operation of a hair salon/barbershop for men, women, children or any combination of same. Notwithstanding the foregoing terms of this Subsection 5(e), nothing contained in this Subsection 5(e) shall be deemed or construed to prohibit the operation on any Lot in the Shopping Center of any business or department for spa services (including without limitation, the sale of makeup, makeup lessons and massage therapy), tanning salons, the sale of hair care items, the care of beauty products and supplies, or any similar uses. (f) Pre-existing Leases. Subject to the terms of the Starbucks Lease that permit Starbucks to use the Starbucks Premises for any lawful retail or restaurant use, as provided above, and subject to the right of Starbucks to use any space leased to Starbucks on the Grove Tract or the Grove-Rainbow Tract for any lawful retail uses, and further pursuant to the Turbo Nails Lease that permits Turbo Nails to use the Turbo Nails Premises for any lawful retail use, the restrictions set forth in Subsections 5(a), 5(b), 5(d) and 5(e) herein shall not be construed to limit any Occupant upon any Lot within the Shopping Center from using such leased premises for any use which is not prohibited in any such lease on or as of November 1, 2015 for the duration of such O existing term and available renewal options; provided, however, Lot Owners shall not enter into amendments, addendums or substitutions of any such lease during the term of this Agreement which result in any use which is restricted in this Section 5 for the Lot upon which such leased premises is located, being a permitted use within or upon any such leased premises. (g) Shopping Center Restrictions For the Benefit of Bank Tract. For so long as Merchants operates a bank that is open to the public on the Bank Tract, no part of the Shopping Center, other than the Bank Tract, may be used for the provision of retail and commercial banking services to the general public. Notwithstanding the foregoing, this restriction shall not be deemed to limit or prohibit (1) ATM machine (s) from being located and operated upon any 13 Lot within the Shopping Center, and (2) any business operated upon the Hy-Vee Tract from selling, offering for sale and/or advertising any money order, money transfer, check cashing, prepaid-debit and other financial products sold by the business upon the Hy-Vee Tract at other retail stores operated by the Owner and/or Occupant of the Hy-Vee Tract in its trade area. (h) Shopping Center Restrictions on Outlot A. Notwithstanding anything contained in this Agreement to the contrary, for so long as Outlot A is owned by the EDA, or if Outlot A is ever owned by Grove-Rainbow, Merchants, 7180 or Fairfield, Outlot A may only be used for the parking of motor vehicles in any parking spaces now or hereafter located on Oulot A, and for vehicular access within the Shopping Center. 6. Buildings. (a)Building Height. No building within the Shopping Center shall be of more than one-story nor shall the height of any architectural features extending above the roof of any such building exceed forty-six feet (46') in height above finished grade. Buildings existing in the Shopping Center on or as of the date of this Agreement shall be deemed to meet the restriction set forth herein. (b)Fire Protection. Any building constructed in the Shopping Center following the Effective Date shall be constructed and operated in such a manner which will preserve the sprinklered rate on the other buildings in the Shopping Center. Nothing contained in this Subsection 6(b) will be deemed or construed to require the Owner of any Lot to retrofit the sprinkler system in any building to comply with this requirement. (c)Easements. In the event building wall footings encroach from one Lot onto another, despite efforts to avoid that occurrence, the party onto whose Lot the footings encroach shall reasonably cooperate in granting a temporary (for as long as any such encroachment exists) encroachment permit or easement to the party whose building wall footings encroach, provided that any such encroachment (i) is minor, in the reasonable opinion of the party on whose Lot the footings encroach, (ii) will not interfere, in the reasonable opinion of the party on whose Lot the footings encroach, with the present or future development of the Lot on which the footings encroach, and (iii) customary property insurance is maintained by the party whose footings encroach on another Lot in favor of the party on whose Lot the footings encroach, protecting the Owner of the Lot on which the footings encroach from any hazard risks resulting from such encroachment. (d)Building Maintenance. Following completion of construction or reconstruction of any building upon the Shopping Center, such building shall be maintained in good condition and repair including (without limitation) exterior walls, signage, lighting, windows and doors, entry- ways and service areas. Notwithstanding the foregoing terms of this Subsection 6(d), in the event of any destruction of, or damage to, any building on any portion of the Shopping Center, i) 14 cause the building to be repaired, reconstructed and restored as nearly as practicable to the condition existing prior to such destruction or damage, (ii) cause another building to be constructed in the area covered by the destroyed or damaged buildings, which other buildings shall be similar to, compatible with and integrated with the remaining Shopping Center, or (iii) raze the destroyed or damaged building to grade level, removing all debris. The obligations of each Lot Owner under this Subsection 6(d) shall, subject to events of force majeure, be commenced within three (3) months following any such destruction or damage and completed within eighteen (18) months following commencement. (e)Use of Rear of Grove Tract Building. Notwithstanding anything contained in this Agreement to the contrary, the rear of the existing building on the Grove Tract (as such building now exists or may, from time-to-time, be reconstructed) may be used for warehouse facilities, wholesale sales facilities, distribution facilities and/or self-storage facilities. 7.Easements (a)Primary Access Drive. (i)Grant of Easements. Owners of each Lot hereby declare the creation and existence of a nonexclusive easement over, through and upon the Primary Access Drive, for the mutual benefit of all of the Lots within the Shopping Center, for (i) the installation, maintenance, repair, replacement and operation of one or more paved access drives, (ii) vehicular ingress and egress of customers, invitees, licensees, tenants, suppliers and employees of all Occupants of Lots within the Shopping Center, and (iii) overland flowage of surface water. (ii)Minimum Width. The Primary Access Drive shall at all times following the initial construction thereof, be at least wide enough for two-way traffic, provided the actual width thereof shall be as approved from time-to-time by the City. (iii)Limitations on Use. Except as otherwise specifically set forth herein, any activity within the Primary Access Drive other than its primary purpose (which is to provide for ingress and egress for the customers, invitees, vendors, suppliers and employees of all Occupants of the buildings within the Shopping Center, and the overland flowage of surface water) shall not be permitted. Further, no Occupant of a Lot may erect any barriers, barricades or other impediments to the free and uninterrupted movement of vehicles upon the Primary Access Drive; provided, however, the Occupant of any Lot may temporarily re-route that portion of the Primary Access Drive located on such Lot in connection with the maintenance, repair or replacement of such portion of the Primary Access Drive, provided such work is undertaken with reasonable haste so as to minimize the disruption to Occupants of other Lots within the Shopping Center. 15 (iv)Relocation of a Portion of the Primary Access Drive. Notwithstanding anything to the contrary set forth herein, in connection with the planned redevelopment of the Hy-Vee Tract, the Owner of the Hy-Vee Tract may, at the Owner of the Hy-Vee and prior to or simultaneously with completion of the initial redevelopment of the Hy-Vee Tract, relocate that portion of the Primary Access - (v)Primary Access Drive Configuration. Except as set forth in Section 7(a)(iv) herein, the size and location of the Primary Access Drive shall not be modified or deviate from the size and location thereof as set forth herein, including but not limited to the Site Plan. Notwithstanding the foregoing, the Owner of the Hy-Vee Tract, the Owner of the Grove Tract, the Owner of the Grove-Rainbow Tract, and the Owner of the Fairfield Tract may modify the configuration of that portion of the Primary Access Drive that separates the building(s) (as may exist from time-to-time) from the parking areas upon each such Lot, provided that following the completion of any such modification that portion of the Primary Access Drive, as modified, continues to permit two-way traffic. (b)Cross-Access Easement. Notwithstanding anything to the contrary contained in this Agreement, Owners of each Lot (other than the 7180 Tract) hereby declare the creation and existence of a non-exclusive easement over, through and upon the parking and drive aisle areas and all entrances, exits, sidewalks and other facilities that exist, from time-to-time, upon each Lot (except the 7180 Tract) for vehicular and pedestrian ingress and egress for the benefit of all Lots within the Shopping Center, their respective Occupants, customers, invitees, suppliers and employees. (c)Storm Water Easement(s). (i)The Owner of the Hy-Vee Tract hereby grants for the benefit of the Grove Tract, the Grove-Rainbow Tract, the Bank Tract, the 7180 Tract and the Fairfield Tract, a storm water drainage easement over, upon, and through the Pre-existing Storm Water Detention Facility. Notwithstanding the foregoing, this easement shall automatically terminate without further action by any party hereto and/or any Owner of any Lot upon the completion of construction and installation by the Owner of the Hy-Vee Tract of the Underground Storm Water Detention Facility. (ii)Subsequent to the Effective Date, the Owner of the Hy-Vee Tract shall construct and install, at its sole cost and expense, a subsurface storm water detention facility and related storm sewer piping and improvements upon the Hy-Vee Tract, described herein as the Underground Storm Water Detention Facility. Upon the completion of construction and installation of the same, the Owner of the Hy-Vee Tract hereby grants for the benefit of the Grove Tract, the Grove-Rainbow Tract, the Bank 16 Tract, the 7180 Tract and the Fairfield Tract, a storm water drainage easement over, upon and through the Underground Storm Water Detention Facility. (d)Signage Easements. See Section 9 herein. (e)Service Drive Easement. A paved service drive as shown on the Site Plan (which shall be at least twenty-five (25) feet wide) shall at all times be maintained to allow for circular traffic around (i) the existing building (and any replacement thereof or addition thereto) constructed as of the Effective Date on the Grove Tract, (ii) the existing buildings (and any replacement thereof or addition thereto) now or hereafter constructed on the Grove-Rainbow Tract, and (iii) the grocery store building (and any replacement thereof or addition thereto) to be constructed on the Hy-Vee Tract. (f)Cross-Parking Easements. Owners of each Lot hereby declare the creation and existence of a non-exclusive easement over, through and upon the parking spaces as exist, from time-to-time, upon each Lot for vehicular parking for the benefit of all Lots within the Shopping Center, their respective Occupants, customers and invitees. Owners and Occupants of each Lot must use good faith, commercially reasonable efforts, to cause suppliers and employees of any business located within each such Lot to park only in areas located on the Lot upon which such business is located. The Owner(s) of the Grove Tract and Grove-Rainbow Tract shall use good faith efforts to cause employees of businesses upon the Grove Tract and Grove-Rainbow Tract to park on the Northeast (the side) and Southeast sides (the rear) of the building upon the Grove Tract, including, without limitation, including requirements in the lease(s), license(s) and any and all other occupancy agreement(s) of each Occupant of the Grove Tract and Grove-Rainbow Tract that such Occupant use good faith, commercially reasonable efforts to cause its suppliers and employees to park in such areas. Notwithstanding anything contained in this Subsection 7(f) to the contrary, the Owner of the Grove Tract shall not be required to (i) tow vehicles of any , (ii) levy any penalty or fine on any Occupant of the Grove Tra lease, or (iv) otherwise take any measures to enforce compliance with this provision. The terms of this subsection 7(f) may not be modified or amended without the prior written consent of the City, which shall not be unreasonably withheld. 8.Development, Maintenance, and Taxes. (a)Development. (i)Addition of Parking Upon the Grove Tract. Prior to any occupancy of the North half of the existing enclosed building upon the Grove Tract by any Occupant of the Grove Tract, the Owner of the Grove Tract must remove the old Home Depot lawn and garden center improvements on the Northeast side of the building and install a paved parking lot with no fewer than 64 parking stalls thereupon. 17 (ii)Parking Requirements. Except as otherwise specifically provided in this Subsection 8(a)(ii), at all times there shall be independently maintained on (a) the Hy- Vee Tract and the Bank Tract, collectively, and (b) the Grove Tract, the Grove-Rainbow Tract, the Fairfield Tract, and the 7180 Tract, collectively, paved parking spaces sufficient to maintain parking ratio compliance with the ordinances of the City, from time-to-time (as modified by variances granted by the City from time-to-time, it being specifically understood and agreed that any Owner may, at any time and from time to time, apply to the City for a variance to reduce the required parking ratio for such ). The foregoing notwithstanding, (1) the Hy-Vee Tract and the Bank Tract, individually or collectively, may not Grove Tract, the Grove-Rainbow Tract, the 7180 Tract and/or the Fairfield Tract, individually or collectively, to meet the requirements of any such parking ratio ordinances,and (2) the Grove Tract, the Grove-Rainbow Tract, the 7180 Tract and the Fairfield Tract, individually or -Vee Tract and the Bank Tract, individually or collectively, to meet the requirements of any such parking ratio ordinances, and (3) the Grove Tract and the Grove Rainbow Tract must maintain compliance with the 2001 Grove Tract and Grove-Rainbow Tract Parking Variance (as defined herein) as described in Subsection 8(a)(iv) herein. The Grove Tract, the Grove- Rainbow Tract, the Fairfield Tract, and the 7180 Tract from each such other tract, if necessary, for compliance with any such parking ratio ordinances. (iii) The City joins in the execution of this Agreement to confirm to the Owner of the Hy-Vee Tract, that as of the Effective Date, the Hy-Vee Tract is in compliance City Parking Requirements as approved in Resolution No. 01-132 passed by the City 2001 Hy-Vee Council of the City of Cottage Grove, Minnesota Parking Variance (iv) The City joins in the execution of this Agreement to confirm to the Owner of the Grove Tract and the Owner of the Grove-Rainbow Tract, respectively, that as of the Effective Date: (A) the variances from the City Parking Requirements granted to the Grove Tract and the Grove-Rainbow Tract, respectively, by Resolution No. 01- 132 passed by the City Council of the City of Cottage Grove, Minnesota on 2001 Grove Tract and Grove-Rainbow Tract Parking Variance ; (B) the Grove Tract and the Grove-Rainbow Tract Parking Variance has been modified and amended to: (1) allocate four hundred and two (402) parking spaces to the 18 Grove Tract, with the additional requirement that the Owner of the Grove Tract provide a minimum of ninety- the Grove Tract; and (2) allocate thirty-one (31) parking spaces to the Grove-Rainbow Tract; (C) the Grove Tract and the Grove-Rainbow Tract, respectively, are each in compliance with all City Parking Requirements; (D) the Grove Tract will remain in compliance with all City Parking Requirements and the Grove Tract and Grove-Rainbow Tract Parking Variance will remain in full force and effect as to the Grove Tract provided: (1) the Grove Tract maintains a minimum of four hundred and two (402) parking spaces and ninety-six (96) proof of parking spaces, and (2) the use of the Grove Tract for retail and service establishments does not change; (E) any additional parking spaces (in excess of the 402 spaces and the 96 proof of parking spaces required to be maintained on the Grove Tract by the Grove Tract and Grove Rainbow Tract Parking Variance) added to the Grove Tract may be allocated by the Owner of the Grove Tract toward the number of parking spaces required by City Parking Requirements (subject to any variance granted by the City) toward the construction of a building on an outlot on the Grove Tract, or toward a new use in the building located on the Grove Tract as of the Effective Date, with higher parking requirements than is required for retail and service establishments; and (F) Grove-Rainbow Tract, the Fairfield Tract and the 7180 Tract will not result in non-compliance by any of those Lots with (I) City Parking Requirements, (II) the Grove Tract and Grove- (v) The City joins in the execution of this Agreement to confirm to the Owner of the Bank Tract, that as of the Effective Date, the Bank Tract is in compliance with all City Parking Requirements. (vi) The City joins in the execution of this Agreement to confirm to the Owner of the 7180 Tract, that as of the Effective Date, (a) the 7180 Tract is in compliance with rom 19 the Grove Tract, the Grove-Rainbow Tract and the Fairfield Tract will not result in non- compliance by the 7180 Tract with City Parking Requirements. (vii) The City joins in the execution of this Agreement to confirm to the Owner of the Fairfield Tract, that as of the Effective Date, (a) the variance from the City Parking Requirements granted to the Fairfield Tract by Resolution No. 04-127 passed by the City 2004 Council of the City of Cottage Grove, Minnesota Fairfield Parking Variance Variance will remain in full force and effect as to the Fairfield Tract provided (1) subject to any applicable variance, the Fairfield Tract maintains sixteen (16) parking spaces, at a minimum, and (2) the use of the Fairfield Tract for retail establishments, service establishments and/or restaurants does not change, and (c) the Fairfield Tract is in compliance with all City Parking Requirements. (viii) No Build Zone. No permanent building improvements may be as visually depicted on the Site Plan. (b) Maintenance. (i)Standards. The Owner of each Lot shall, at its sole cost and expense or at the cost and expense of any Occupant of such Lot, maintain (or cause to be maintained) such O Lot in good condition and repair (and with respect to the Bank Tract, the Owner thereof shall be required to maintain the Bank Tract Prime Parking Area as if the same was a part of the Bank Tract, at the O expense). This maintenance is to include, without limitation, the following: (A)Maintaining all buildings in good condition and repair, including (without limitation) exterior walls, signage, lighting, windows and doors, entryways and service areas; (B)Maintaining the paved driveway (including without limitation that portion of the Primary Access Drive located thereupon), parking and sidewalk surfaces in a level, smooth and evenly-covered condition with the type of surfacing material originally installed or such substitute as shall in all respects be equal in quality, use, and durability. Notwithstanding the foregoing provisions of this Subsection 8(b), (1) the Owner of the Grove Tract will have no obligation to repave, restore or otherwise repair any portions of the Primary Access Drive or any other paved area located on the Grove Tract until (I) the Owner of the Hy- Vee Tract completes any and all improvements to be constructed on the Hy-Vee Tract, (II) the Owner of the Hy-Vee Tract completes the Underground Storm Water Detention Facility, (III) the Owner of the Hy-Vee Tract completes any piping and/or other facilities and connections necessary or required upon or under the Hy-Vee Tract to connect the existing piping and/or any new pipingupon or 20 underthe Hy-Vee Tract to piping connecting the Grove Tract to the Underground Storm Water Detention Facility and for the use of the Underground Storm Water Detention Facility by the Grove Tract, and (IV) until at least fifty percent (50%) of the building now located on the Grove Tract is leased to third party Occupants; (2) the Owner of the Grove-Rainbow Tract will have no obligation to repave, restore or otherwise repair any portions of the Primary Access Drive or any other paved area located on the Grove-Rainbow Tract until (I) the Owner of the Hy-Vee Tract completes any and all improvements to be constructed on the Hy-Vee Tract, (II) the Owner of the Hy-Vee Tract completes the Underground Storm Water Detention Facility, and (III) the Owner of the Hy-Vee Tract completes the initial installation of any piping or other facilities and connections necessary or required upon or underthe Hy-Vee Tract and/or the Grove-Rainbow Tract to connect the Grove-Rainbow Tract to the piping and/or any new piping upon or under the Hy- Vee Tract and for the use of the Underground Storm Water Detention Facility by the Grove-Rainbow Tract, and (3) the Owner of the Hy-Vee Tract will have no obligation to repave, restore or otherwise repair any portions of the Primary Access Drive or any other paved area located on the Hy-Vee Tract until the Owner of the Hy-Vee Tract completes any and all improvements to be constructed upon the Hy-Vee Tract, including without limitation, the Underground Storm Water Detention Facility; (C)Removing all papers, ice and snow, mud and sand, debris, filth and refuse and thoroughly sweeping the area to the extent reasonably necessary to keep the area in a clean and orderly condition; (D)Placing, keeping in repair and replacing any necessary appropriate directional signs, markers and lines; (E)Operating, keeping in repair and replacing, where necessary, such artificial lighting facilities as shall be reasonably required; (F)Maintaining all perimeter and exterior building walls including but not limited to all retaining walls in a good condition and state of repair; (G)Maintaining, mowing, weeding, trimming and making replacements of shrubs and other landscaping on each such Lot; (H)Maintaining utility service lines, including but not limited to, electric lines, natural gas lines, storm sewer pipes and sanitary sewer lines; and (I)Maintaining the irrigation system, if any. (ii) Storm Water Detention Facility. The Owner of the Hy-Vee Tract, the Owner of the Grove Tract, the Owner of the Grove-Rainbow Tract, the Owner of the 21 Bank Tract, the Owner of the 7180 Tract and the Owner of the Fairfield Tract shall be responsible for the maintenance, repair and replacement of storm sewer facilities located upon each such O. Maintenance, repair and replacement of the Pre-existing Storm Water Detention Facility prior to the date of the commencement of operation of the Underground Storm Water Detention Facility, and then once the Underground Storm Water Detention Facility becomes operational, the Underground Storm Water Detention Facility (for purposes of this subsection, the d by any legal or governmental requirement, silt removal, dredging, landscaping, and any other necessary maintenance, shall be performed by the Owner of the Hy-Vee Tract. The installation of the Underground Storm Water Detention Facility, including without limitation, the installation of any piping and other facilities and connections necessary or required upon the Hy-Vee Tract to connect the existing piping upon the Hy-Vee Tract connecting the Grove Tract, the Bank Tract, the 7180 Tract and the Fairfield Tract to the Underground Storm Water Detention Facility and for the use by those Lots of the Underground Storm Water Detention Facility shall be performed by the Owner of the Hy-Vee Tract, at its sole cost and expense and in accordance with generally acceptable commercial standards, during its construction of its building improvements upon the Hy- Vee Tract subsequent to the Effective Date. If the Owner of the Hy-Vee Tract becomes the Owner of Outlot A and the Owner of the Hy-Vee Tract constructs any building(s) on Outlot A, the Owner of the Hy-Vee Tract shall, at its sole cost and expense, install any piping and other facilities and connections necessary or required upon Outlot A to connect the existing piping upon the Hy-Vee Tract to connect Outlot A to the piping on the Hy-Vee Tract and for the use of the Underground Storm Water Detention Facility by Outlot A. The installation of any piping or other facilities and connections necessary or required in, on, or under any portion of the Grove-Rainbow Tract for storm water drainage, and the initial installation of any piping or other facilities and connections necessary or required upon the Hy-Vee Tract and/or the Grove-Rainbow Tract to connect the Grove-Rainbow Tract to the piping on the Hy-Vee Tract and for the use of the Underground Storm Water Detention Facility by the Grove-Rainbow Tract, shall be paid the Owner of the Hy-Vee Tract, at its sole cost and expense, and in accordance with generally acceptable commercial standards, during construction by Hy-Vee of its building improvements on the Hy-Vee Tract subsequent to the Effective Date. Hy-Vee shall, at its expense, promptly repair any damage to the Grove-Rainbow Tract, and any improvements thereon, as the result of any such installation by or for Hy-Vee. Expenses for maintenance of the Detention Facility are Detention Facility Expenses, the reimbursement obligations for which are set forth in Section 8(b)(iii) herein. (iii) Detention Facility Expenses. The Owner of the Hy-Vee Tract may hire third parties, including companies affiliated with such Owner, to perform any or all maintenance, repair and replacement work for the Detention Facility, provided the rates charged by such companies are competitive with those of other companies furnishing similar services in the market area in which the Shopping Center is located. The Owner 22 of the Hy-Vee Tract, the Owner of the Grove Tract, the Owner of Outlot A, the Owner of the Grove-Rainbow Tract, the Owner of the 7180 Tract and the Owner of the Fairfield Tract shall each be responsible for a portion of the Detention Facility Expenses based on a fraction, the numerator of which is the square footage of the land area of the Hy-Vee Tract, the Grove Tract, Outlot A, the Grove-Rainbow Tract, the 7180 Tract, and the Fairfield Tract, respectively, and the denominator of which is the square footage of the aggregate of the land area of the Hy-Vee Tract, the Grove Tract, Outlot A, the Grove- Rainbow Tract, the Bank Tract, the 7180 Tract, the Fairfield Tract and any other tract or parcel of land, within or outside of the boundaries of the Shopping Center, that utilize the Detention Facility (and if Hy-Vee acquires the Bank Tract during the term hereof, the Hy-Vee Tract shall be deemed to include the square footage of the Bank Tract and the Bank Tract Prime Parking Area). The Owner of the Hy-Vee Tract shall annually invoice the Owners of the Grove Tract, the Grove-Rainbow Tract, the 7180 Tract and the Fairfield Tract for their respective shares of the Detention Facility Expenses (together with documentation supporting such expenses in reasonable detail), and the same shall be due within thirty (30) days following receipt of such invoice. Such reimbursement obligation shall be secured by a lien in favor of the Owner of the Hy-Vee Tract, but such lien shall only be perfected upon the date of filing or recording of an instrument describing the nature of such lien (which instrument may not be filed or recorded against any Lot unless the Owner of such Lot fails to pay its pro rata share of the Detention Facility Expenses within thirty (30) days after receipt of its invoice for same), and upon such recordation or filing, the lien shall accrue interest on the outstanding amount of said lien at the Default Rate. Submittal of an invoice for Detention Facility Expenses shall include reasonable itemization and backup for the charges incurred and the calculation of the Detention Facility Expenses. The Owners of the Grove Tract, the Grove-Rainbow Tract, the 7180 Tract and the Fairfield Tract shall be entitled, not more frequently than annually, to audit the Detention Facility Expenses during normal business hours at an office in Washington County, Minnesota designated by the Owner of the Hy-Vee Tract or designated by the agent designated by the Owner of the Hy-Vee Tract. Notwithstanding the foregoing, the Detention Facility Expenses reimbursement obligations set forth in this Subsection 8(b)(iii) shall be suspended and abated for such period(s) of time that the EDA is the Owner of the Grove Tract; provided, however, in the event the EDA conducts business upon the Grove Tract in any meaningful way, the EDA shall be obligated to make the Detention Facility Expenses reimbursement payments described in this Subsection 8(b)(iii). (c) Taxes. The Owner of each Lot shall pay, or cause to be paid, prior to delinquency, directly to the appropriate taxing authorities, all real property taxes and assessments which are levied against that part of the Shopping Center owned by such Owner. Notwithstanding the foregoing provisions of this Subsection 8(c), if any Owner or tenant (if such tenant is permitted to do so under its lease or occupancy agreement for any Lot) is, in good faith, contesting the existence, amount or validity of any taxes or assessments by proceedings that will prevent the collection of the taxes or assessments so contested and the sale or loss of the Lot or 23 Lots subject to such taxes or assessments, the Owner of the Lot or Lots subject to such taxes or assessments being contested shall not be required to pay the same until the final determination of any such contest. 9.Pylon and Monument Signs. (a)Signage Structure Maintenance, Easement. There exists on or as of the Effective Date, (i) a pylon sign structure and related improvements upon the Hy-Vee Tract and (ii) a monument sign structure and related improvements on the 7180 Tract, referred to herein as Signage Easement Area 1 and Signage Easement Area 2, respectively. From and after the Effective Date, the Owner of the Hy-Vee Tract shall become responsible for the maintenance, repair and replacement of the pylon sign structure and the monument sign structure located in both Signage Easement Area 1 and Signage Easement Area 2, and the Owner of the Hy-Vee Tract shall maintain the same in good repair and condition. The Owner of the 7180 Tract hereby grants for the benefit of the Owner of the Hy-Vee Tract a non-exclusive easement and right of way over the 7180 Tract for ingress and egress to Signage Easement Area 2 for the installation, repair and replacement of an electric line and for any repair, operation, maintenance and/or replacement of the monument sign on Signage Easement Area 2. The Owner of the Hy-Vee Tract shall indemnify, defend (with counsel reasonably acceptable to the Owner of the 7180 Tract), hold harmless and reimburse the Owner of the 7180 Tract for any and all claims, demands, debts, actions, causes of action, suits, judgments, obligations, damages. losses, costs and expenses (including attorneys, disbursements, court costs and all other professional and at any level), and liabilities of any kind and character, known or unknown, suspected or unsuspected, foreseeable or unforeseeable, present or future, liquidated or unliquidated, matured or un-matured, direct, indirect or derivative, fixed or contingent, asserted against, imposed upon, suffered by, incurred by, sustained by or paid by the Owner of the 7180 Tract as the result of the entry by the Owner of the Hy-Vee Tract or any person or entity acting under authority of the Owner of the Hy-Vee Tract, in connection with the easement(s) herein granted; provided, however, the indemnity set forth in this Section shall not apply to entry by any third party arising out of the repair and/or replacement of signage panels as permitted herein. Expenses associated with the maintenance, operation (including, without limitation, expenses associated with the illumination of signage panels thereupon; provided, however, in the event the Owner of any Lot supplies Lot and pays expenses associated therewith directly to the utility provider, then such Owner shall not be responsible for any portion of the expense associated with illumination of any signage panels upon any sign structure), repair and replacement activities for the pylon sign structure and related improvements upon Signage Easement Area 1 and the monument sign structure and related improvements upon Signage Easement Area 2, shall be shared by the Owners of Lots which are entitled to install a sign panel on the pylon sign or the monument sign, as set forth in Section 9(b) herein. The Owner of the Hy-Vee Tract shall annually invoice the Owner of each applicable Lot for its pro rata share of such maintenance, operation, repair and replacement expense (together with documentation supporting such expenses) associated therewith, and the 24 same shall be due within thirty (30) days of the date of receipt of such invoice. Such reimbursement obligation shall be secured by a lien in favor of the Owner of the Hy-Vee Tract, but such lien shall only be perfected upon the date of filing or recording of an instrument describing the nature of such lien (which lien may not be filed or recorded against any Lot unless the Owner of such Lot fails to pay its pro rata share of such expenses within thirty (30) days after receipt of its invoice for same), and upon such recordation or filing, the lien shall accrue interest on the outstanding amount of said lien at the Default Rate. Submittal of an invoice for signage structure maintenance shall include reasonable itemization and backup for the charges incurred related thereto. The Owner of each Lot shall be entitled, not more frequently than annually, to audit the signage structure maintenance charges during normal business hours at the office of the Owner of the Hy-Vee Tract or the office of the agent designated by the Owner of the Hy-Vee Tract. Notwithstanding anything to the contrary set forth in this Subsection 9(a), the Owner of each Lot entitled to install signage panels upon either the pylon sign or the monument sign shall be responsible for the maintenance, operation, repair and replacement of the sign panels at such Lot O Additionally, the Owner of each Lot entitled to install sign panels upon either the pylon sign or the monument sign shall have reasonable access over the Hy-Vee Tract to Signage Easement Area 1 and over the 7180 Tract to Signage Easement Area 2, as applicable, from time to time, for the purpose of installing, maintaining, repairing, removing and/or replacing its sign panels. The Owner of the Hy-Vee Tract, the Owner of the Grove Tract, and the Owner of the 7180 Tract shall work together in good faith, to investigate and, if any such Owner shall so desire, to sub-meter the sign panels on the pylon sign on Signage Easement Area 1 and/or the mon and expense, so that the requesting Owner bears its actual cost of electricity for illumination of its respective sign panel(s), as opposed to an amount based upon a pro rata share calculation. As maintenance, operation, repair or replacement of the pylon sign on Signage Easement Area 1 and/or for the monument sign on Signage Easement Area 2, shall mean the total costs incurred by the Owner of the Hy-Vee Tract to maintain, operate, repair or replace the pylon sign on Signage Easement Area 1 and/or the monument sign on Signage Easement Area 2, as applicable, and to provide electricity to the pylon sign on Signage Easement Area 1 (if the Owner of the Hy- Vee Tract and the Owner of the Grove Tract do not separately meter electricity to their respective panels on the pylon sign) or to the monument sign on Signage Easement Area 2 (if the Owner of the Hy-Vee Tract, the Owner of the Grove Tract and the Owner of the 7180 Tract do not separately meter electricity to their respective panels on the monument sign), multiplied by a fraction. The numerator of the fraction shall be the total square footage of each Owner or such panel(s) on the pylon sign on Signage Easement Area 1 and/or the monument sign on Signage Easement Area 2, as applicable, and the denominator of such fraction shall be the total square footage on the pylon sign on Signage Easement Area 1 and/or the monument sign on Signage Easement Area 2, as applicable, available for identification sign panels for any Owner and/or its Occupants. The Owner of the 7180 Tract acknowledges that under the Original Restated REA, Home Depot had the right to install necessary electrical lines upon or under the 7180 Tract for purposes of 25 illuminating its sign panel on the monument sign on Signage Easement Area 2 (provided that the location of any such lines did not interfere with business operations on the 7180 Tract). The Owner of the 7180 Tract hereby grants the Owner of the Grove Tract the right to use any existing electrical lines from the Grove Tract to the 7180 Tract and an easement to install any new lines for the purposes of illuminating any sign panels of the Owner of the Grove Tract or its Occupants on the monument sign on Signage Easement Area 2, if the existing electrical lines , installed by Home Depot are, in the opinion of the Owner of the Grove Tract insufficient for such purposes, provided that any such new lines do not interfere with business operations on the 7180 Tract. (b)Rights to Sign Panels. (i)Pylon Sign on Signage Easement Area 1. The Owner(s) of the Hy-Vee Tract and the Grove Tract shall each have an equal amount of space for sign panels upon the pylon sign upon Signage Easement Area 1. The Owner of the Hy-Vee Tract shall have the right to the top signage panel position and the Owner of the Grove Tract shall have the right to the bottom signage panel position. Additionally, if permitted by the City or any other governmental entity with jurisdiction, the Owner of the Grove Tract shall have the right to place one or more sign panels between the pillars immediately below the proposed sign panels on the pylon sign; provided, however, the Owner of the Hy-Vee Tract shall have the right to review and approve in advance the plans and specifications for any such additional sign panel between the pillars for structural compatibility with the pylon structure and for aesthetic compatibility with the other sign panels above the pillars on the pylon sign upon Signage Easement Area 1 (which approval shall not be unreasonably or arbitrarily withheld, conditioned or delayed). (ii)Monument Sign on Signage Easement Area 2. The Owners of the Hy-Vee Tract, the Grove Tract and the 7180 Tract shall each have rights to signage panels upon the monument sign upon Signage Easement Area 2 with the Owner of the 7180 Tract having the right to an equivalent size signage panel as the signage panel that is installed upon the monument sign on or as of the date of this Agreement. The remaining area on the monument sign on Signage Easement Area 2 shall be shared equally by the Owners of the Hy-Vee Tract and the Grove Tract. The signage panels upon the monument sign upon Signage Easement Area 2 shall be arranged such that the Owner of the Hy-Vee Tract shall have the right to the top signage panel position, the Owner of the 7180 Tract shall have the right to the middle signage panel position, and the Owner of the Grove Tract shall have the right to the bottom signage panel position. If the City or any other governmental entity with jurisdiction permits the existing Gateway North panel on the monument sign on Signage Easement Area 2 to be removed, the size of the area on the monument sign available for the Owner of the Hy-Vee Tract and the Owner of the Grove Tract shall each be increased by one half (1/2) of the area of the Gateway North panel. (iii)Sublicensing of Signage Panel Space. The Owners of the Hy-Vee Tract, 26 the Grove Tract and the 7180 Tract shall each have the right, from time-to-time, to sublicense Occupants of retail space Lot, provided that each such Owner shall continue to be the party responsible for the installation, operation, repair, maintenance and replacement expenses associated with the pylon sign and monument 10.Indemnification/Insurance. (a)Indemnification. The Owners of each Lot within the Shopping Center shall indemnify and save each other harmless from any and all liability, damage, expense, causes of action, suits, claims, or judgments arising from personal injury, death, or property damage arising out of accidents occurring on or from its own Lot, except if caused by the act or negligence of the Owner or Occupant of any other Lot. (b)Insurance. (i)The Owner of each Lot of shall procure and maintain in full force and effect throughout the term of this Agreement general public liability insurance and property damage insurance against claims for personal injury, death or property damage occurring upon, in or about its Lot, and including contractual liability coverage, and naming the other Lot Owners and Occupants within the Shopping center as additional insureds. E shall afford protection to the limit of not less than $2,000,000.00 for injury or death of a single person, and to the limit of not less than $2,000,000.00 for any one occurrence, and to the limit of not less than $500,000.00 for property damage. The Owner of each Lot shall provide each other Owner with certificates of such insurance (or evidence of the self-insurance capacity of such Owner, if any Owner has the right, and elects to, self-insure, as provided in Subsection (ii) of this Section 10(b), which evidence of self-insurance may be satisfied by a letter from such public accountant confirming the same) from time to time upon written request to evidence that such insurance is in force. Such insurance may be written by additional premises endorsement on any master policy of insurance carried by the party which may cover other property in addition to the Lot covered by this Agreement. Such insurance notice to the additional insureds. (ii)All insurance policies maintained by the Owner of any Lot in the Shopping Center shall (A) state that the insurance maintained is primary insurance and non-contributory with respect to any other insurance carried by any other Owner of a Lot within the Shopping Center, (B) state that the insurer waives all rights of subrogation against any Owner or Occupant of any other Lot, and (C) be on an occurrence policy form. 27 (iii)Notwithstanding anything to the contrary contained in this Paragraph 10, so long as the net worth of the Owner of any Lot shall exceed Three Hundred Million Dollars ($300,000,000.00), and so long as the Owner of any Lot is the Occupant of its Lot within the Shopping Center, that Owner shall have the right to self-insure for any insurance otherwise required to be carried pursuant to this Section 10. Any Owner who has such net worth and elects to self-insure, shall provide to all other Owners proof of such net worth and ability to self-insure, in the manner provided in Subsection (b)(i) of this Section 10. 11.Eminent Domain. (a)Owners Right to Award. Nothing herein shall be construed to give the Owner of any Lot any interest in any award or payment made to the Owner of any other Lot in connection with any exercise of eminent domain or transfer in lieu thereof affecting said other O or giving the public or any government any rights in said Lot. In the event of any exercise of eminent domain or a transfer in lieu thereof of any part of the Primary Access Drive, the award attributable to the land and improvements for any such taking or conveyance shall be payable only to the Owner of the Lot or Lots subject to such taking or conveyance, and no claim thereon shall be made by the Owners of any other Lot within the Shopping Center. (b)Claims. Nothing in this Section 11 shall prevent a tenant or a lender from making a claim against an Owner pursuant to the provisions of any lease between the tenant and Owner, or a mortgage, deed of trust or other encumbrance between a lender and an Owner, for all or any portion of any such award or payment. (c)Restoration of Primary Access Drive, Storm Water Trunk, Detention Facility. The Owner of any portion of the Primary Access Drive so condemned shall promptly repair and restore the remaining portion of the Primary Access Drive within its respective Lot, as nearly as practicable to the condition of the same immediately prior to such condemnation or transfer. The Owner of the Hy-Vee Tract shall promptly repair and restore any portion of the Detention Facility so condemned or transferred, as nearly as practicable to the condition of same immediately prior to any such condemnation or transfer, including the repair, restoration or replacement, as necessary, of any trunk lines or other connections or other facilities on or under the Hy-Vee Tract necessary to connect the Grove Tract, the Grove-Rainbow Tract, the Bank Tract, the 7180 Tract and/or the Fairfield Tract to the Detention Facility and for the use of the Detention Facility by the Grove Tract, the Grove-Rainbow Tract, the Bank Tract, the 7180 Tract and the Fairfield Tract. 12.Rights and Obligations of Lenders. If by virtue of any right or obligation set forth herein a lien shall be placed upon any Lot within the Shopping Center, such lien shall expressly be subordinate and inferior to the lien of any first lienholder now or hereafter placed on such Lot. Notwithstanding the foregoing terms of this Section 12, for so long as the EDA is the Owner of Outlot A, the EDA may not encumber Outlot A in any manner whatsoever. 28 13.Expansion of Shopping Center. The parties agree that in the event the Shopping Center is expanded by ownership, control of any Lot within the Shopping Center, subdivision of any Lot or agreement with a third party, allof the provisions of this Agreement shall apply to the expanded area including (without limitation) restrictions on use, parking ratios and maintenance requirements. 14.Self-Help. In the event the Owner of any Lot (other than the 7180 Tract or the EDA, with respect to Outlot A only) reasonably determines that the Owner of any other Lot (other than the 7180 Tract), or any portion thereof, is insufficiently maintaining all or a portion of any such Lot, then such Owner may, in addition to any other equitable remedy available to such Owner (but not any remedy at law for which monetary damages may be sought), notify the nonperforming Owner in writing of such deficiency, and if such deficiency is not cured within thirty (30) days following receipt of such notice by the nonperforming Owner (or commenced to cure within such thirty (30) day period if cure is not reasonably possible within such thirty (30) day period), then the Owner that initially sent the deficiency notice may take any steps as are reasonably necessary, in the reasonable opinion of the such Owner, to bring any such Lot, or portion thereof, into compliance with the maintenance obligations for Lots within the Shopping Center set forth herein, including paying the costs thereof. The Lot Owner performing a self-help remedy shall bill the Owner of the non-performing Lot for such actual costs to the self-help performing Owner for bringing such Lot into compliance with such maintenance obligations, and the same shall be due within thirty (30) days of the date of receipt of such invoice. Such reimbursement obligation shall be secured by a lien in favor of the self-help performing Owner, as is applicable, but such lien shall only be perfected upon the date of filing or recording of an instrument describing the nature of such lien, and upon recordation or filing, shall accrue interest on the outstanding amount of said lien at the Default Rate, until satisfied. Notwithstanding the foregoing provisions of this Section 14, no such lien may be filed or recorded unless the Owner of the alleged non-performing Lot fails, (a) within the required thirty (30) day reimbursement period, to pay the self-help performing Owner for the actual costs incurred by the self-help performing Owner, or (b) within thirty (30) days following receipt of notice from the self-help performing Owner of said alleged non-performance and the intention of the self-help performing Owner to cure such non-performance, to (i) obtain and serve upon the proposed self-help performing Owner a temporary or preliminary injunction, a restraining order, or other equitable relief prohibiting the proposed self-help performing Owner from taking any such action, or (ii) file (and serve upon the proposed self-help performing Owner) an action for Declaratory Judgment or similar relief to adjudicate performance or non- performance of any such maintenance obligations by the alleged non-performing Lot Owner. 15.Covenant Against Mechanic's Liens. Lot Owners within the Shopping Center shall do all things necessary to prevent the filing of any mO Lot, the Primary Access Drive, the Detention Facility and/or any other Lot within the Shopping Center, by reason of any work, labor or services performed, or any materials supplied or claimed to have been performed or supplied to such Owner, or anyone holding any such Lot, or any part 29 thereof, through or under such Owner. If any such lien shall at any time be filed, such Lot Owner shall either cause the same to be vacated and cancelled of record within twenty (20) days of of the filing thereof or, if such Lot Owner in good faith determines that such lien should be contested, such Lot Owner shall furnish such security by surety bond or otherwise as may be necessary or be prescribed by law to release the same as a lien against the Lot or Lots subject to the lien, and to prevent any foreclosure of such lien during the pendency of such contest. 16.Release from Liability. Any person acquiring fee title to or a leasehold interest in a Lot within the Shopping Center, or any expansion of the Shopping Center pursuant to Section 13, or any portion thereof, shall be bound by this Agreement only as to the Lot or portion of the Lot acquired by such person. In addition, such person shall be bound by this Agreement only during the period such person is the fee or leasehold Owner of such Lot or portion of the Lot, except as to obligations, liabilities or responsibilities that accrue during said period. Although persons may be released under this Section 16, the easements, covenants and restrictions in this Agreement shall continue to be benefits to and servitudes upon said Lots running with the land. 17.Breach. In the event of a breach or threatened breach of this Agreement, the Owner of any Lot (except for the EDA with respect to Outlot A only), or the tenant of such Owner if a tenant holds a leasehold interest in the entirety of any such Lot, shall be entitled to institute proceedings for full and adequate relief from the consequences of said breach or threatened breach, including without limitation, and in addition to any other remedy at law or in equity, temporary or permanent injunctive relief. The unsuccessful party in any action shall pay to the prevailing party a reasonable sum for outside (third-party) attorneys, which shall be deemed to have accrued on the date such action was filed. The court in any such action or proceeding sh non-prevailing party. 18.Rights of Successors. The easements, restrictions, benefits and obligations hereunder shall create mutual benefits and servitudes running with the land. This Agreement shall bind and inure to the benefit of the Owner(s) of all Lots, as well as their respective heirs, successors and assigns. The restrictions, benefits and obligations in Section 5(c) of this Agreement shall bind the Shopping Center and each Owner and Occupant of any Lot until December theHome Improvement Restriction Termination Date 1, 2030 ( . The singular number includes the plural and the masculine gender includes the feminine and neuter. 19.Modification and Termination. This Agreement (including exhibits) may be only amended, modified or terminated by the mutual agreement of all of the record titleholders of all of the Lots within the Shopping Center and their respective mortgagees, if any; provided, however, the use restriction benefiting Home Depot set forth in Section 5(c) herein may not be amended, modified or terminated without the prior written consent of Home Depot. 30 20.Duration. Unless otherwise terminated as provided in Section 19 of this Agreement, this Agreement and all the easements, covenants, rights, restrictions, and provisions herein that create an equitable servitude upon the respective Lots, constitute covenants running with the land, shall bind every person or entity having any fee, leasehold, or other interest in or encumbrance on any portion of the Shopping Center at any time, and shall continue in full force and effect in perpetuity (except for the Home Improvement Restriction, which shall terminate on the Home Improvement Restriction Termination Date). 21.Headings. The headings herein are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of this Agreement nor in any way affect the terms and provisions hereof. 22.Choice of Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota, without regard to conflicts of laws principles. 23.Invalidity. If any of the terms and provisions of this Agreement are declared to be illegal, invalid or unenforceable, it is the intention of all of the Owners that (a) the remainder of this Agreement shall not be affected thereby, and (b) in lieu of each term and provision that is illegal, invalid or unenforceable, there shall be added to this Agreement a term or provision as similar in terms to such illegal, invalid or unenforceable term or provision as may be possible and be legal, valid and enforceable. 24.Terminology. Unless the context of this Agreement clearly indicates a different intent, to this Agree individual, a partnership, a corporation, a trust, a limited liability company, a governmental or quasi-governmental authority, an unincorporated association, or any other type of entity. The 25.Computation of Time. computation of any time in this Agreement, such reference shall mean calendar days. Whenever any period of time is specified in this Agreement for the taking of any action, the giving of any notice or other communication, or otherwise, the period shall be computed by excluding the day upon which the period is specified to commence and by including the last day of the period specified. Whenever time for the performance of an obligation or the giving of any notice or hereinafter defined), the time for performance or the giving of any notice or other communication, or otherwise, shall be extended to the next business day. As used in this and shall exclude Saturday, Sunday and any day that is a United States national holiday or a State of Minnesota holiday. 26.Notice. Any notice, request, demand, consent, approval or other communication Notice 31 be sent either by nationally recognized overnight courier that provides a receipt acknowledging delivery, or by United States mail, certified mail, postage prepaid, return receipt requested. Any Notice shall be deemed received (a) on the date on the receipt from the overnight courier, if sent by nationally recognized overnight courier, or (b) on the date of receipt or rejection, as evidenced by the return receipt card from the United States Postal Service, if sent by United States mail, certified mail, postage prepaid, return receipt requested, in each case addressed to the parties hereto at the addresses set forth on page 1 of this Agreement. Any party to this Agreement (and any party succeeding to the interest of any party to this Agreement) may change is address for Notice by giving written Notice to all other parties to this Agreement in the manner provided in this Section 26. Notice may be given by legal counsel for any party. 27.Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of such counterparts together shall constitute one and the same Agreement. 28.No Partnership. Nothing contained in this Agreement shall be deemed or construed to (a) create or establish a partnership, joint venture or any other relationship between the parties hereto, their successors, assigns, lenders, if any, and Occupants, if any, or (b) except as may otherwise be specifically provided herein, make any party liable for the debts, liability or obligations for any other party. 29.Estoppel Certificates. Within ten (10) days after request by the Owner of any Lot, or any Requesting Lot Owner part thereof , each other Owner of a Lot, or any part thereof, shall execute and deliver to the Requesting Lot Owner, or to the designee of the Requesting Lot Owner, an estoppel certificate, in form and substance reasonably required by the Requesting Lot Owner, certifying (if accurate) (a) that this Agreement is in full force and effect, (b) to the knowledge of the Lot Owner providing the estoppel certificate, that neither the Requesting Lot Owner or any other Lot Owner is in default under this Agreement (or if the Requesting Lot Owner or any other Lot Owner is, to the knowledge of the Lot Owner providing the estoppel certificate, in default, stating the nature of such default), (c) that this Agreement has not been modified or amended (or if this Agreement has been modified or amended, stating the nature of any such modification or amendment), and (d) affirming to the knowledge of the Lot Owner such other factually accurate matters pertaining to the provisions of this Agreement as may be reasonably requested by the Requesting Lot Owner. \[SIGNATURES ON FOLLOWING PAGE(S)\] 32 IN WITNESS WHEREOF , the parties have executed this Agreement on or as of the Effective Date. HY-VEE: HY-VEE, INC., an Iowa corporation By: ___________________________ Jeffrey Markey, Sr. Vice President By: ___________________________ Nathan Allen, Assistant Secretary STATE OF IOWA ) ) ss. POLK COUNTY ) On this day of , 20__, before me, the undersigned, a Notary Public in and for the state of Iowa, personally appeared Jeffrey Markey and Nathan Allen, to me personally known, who being by me duly sworn did say that they are the Sr. Vice President and Assistant Secretary, respectively, of Hy-Vee, Inc., that said instrument was signed on behalf of said corporation by authority of its Board of Directors; and that the said Jeffrey Markey and Nathan Allen as such officers acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. _____________________________ Notary Public in and for the State of Iowa _____________________________ My Commission Expires: 33 EDA: COTTAGE GROVE ECONOMIC DEVELOPMENT AUTHORITY, a public body corporate and politic under the laws of Minnesota By Myron Bailey Its President By Charlene R. Stevens Its Executive Director STATE OF MINNESOTA ) ) SS COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this _____ day of _________, 20___, by Myron Bailey and Charlene R. Stevens, President and Executive Director, respectively, of the Cottage Grove Economic Development Authority, a public body corporate and politic under the laws of Minnesota, on behalf of the Economic Development Authority. Notary Public ________________________________________ My Commission Expires: 34 CITY: CITY OF COTTAGE GROVE, MINNESOTA, a public body corporate and politic under the laws of Minnesota By Myron Bailey Its Mayor By Joseph Fischbach Its City Clerk STATE OF MINNESOTA ) ) SS COUNTY OF WASHINGTON ) The foregoing instrument was acknowledged before me this _____ day of _________, 20___, by Myron Bailey and Joseph Fischbach, Mayor and City Clerk, respectively, of the City of Cottage Grove, Minnesota, a public body corporate and politic under the laws of Minnesota, on behalf of the City of Cottage Grove. Notary Public ________________________________________ My Commission Expires: 35 GROVE-RAINBOW: Grove-Rainbow, L.P., a Minnesota limited liability company By: EBL&S Holding Company II, Inc., a Pennsylvania corporation, its sole general partner By: ____________________ Edward B. Lipkin President COMMONWEALTH OF PENNSYLVANIA COUNTY OF PHILADELPHIA On this ___ day of ________, 2016, before me, the subscriber, a Notary Public in and for the Commonwealth and County aforesaid, personally appeared Edward B. Lipkin, known to me (or satisfactorily proven) to be the President of EBL&S Holding Company II, Inc., a Pennsylvania corporation, the sole general partner of Grove-Rainbow, L.P., a Minnesota limited liability company, and that he as such President, being fully authorized to do so, executing the foregoing instrument on behalf of EBL& Holding Company II, Inc., on behalf of Grove-Rainbow, L.P., for the purposes therein contained. WITNESS my hand and official seal in the above County and Commonweal. _____________________________ Notary Public _____________________________ My Commission Expires: 36 MERCHANTS: : MERCHANTS NATIONAL BANK By: __________________________ ____________________ (print name) Its: __________________________ STATE OF ___________, COUNTY OF ___________, ss: The foregoing instrument was acknowledged before me the _____ day of __________, 20__, by _________________________________, the ___________________________ of Merchants Bank of Winona, a Minnesota banking corporation. ________________________________ Notary Public in and for the State of ________________ My Commission Expires: ___________ 37 7180: 7180 POINT DOUGLAS, LLC, a Minnesota limited liability company By: ______________________ ________________ (print name) Its: ______________________ STATE OF ___________, COUNTY OF ___________, ss: The foregoing instrument was acknowledged before me the _____ day of __________, 20__, by _________________________________, the ___________________________ of 7180 Point Douglas LLC, a Minnesota limited liability company. ________________________________ Notary Public in and for the State of ________________ My Commission Expires: ___________ 38 FAIRFIELD: Fairfield Greenwood Associates, L.P., a New York limited partnership By: Buster Altus Associates, L.P., a Delaware limited partnership its sole general partner, By: Buster, Inc., a Delaware corporation, its sole general partner By: _____________________ Howard M. Levy Vice President COMMONWEALTH OF PENNSYLVANIA COUNTY OF PHILADELPHIA On this _____ day of ______, 20__, before me, the subscriber, a Notary Public in and for the Commonwealth and County aforesaid, personally appeared Howard M. Levy, known to me (or satisfactorily proven) to be the Vice President of Buster, Inc., a Delaware corporation, the sole general partner of Buster Altus Associates, L.P., a Delaware limited partnership, the sole general partner of Fairfield Greenwood Associates, L.P., a New York limited partnership, and that he as such Vice President, being fully authorized to do so, executed the foregoing instrument on behalf of Fairfield Greenwood Associates, L.P., for the purposes therein contained. WITNESS my hand and official seal in the above County and Commonwealth. ______________________ NOTARY PUBLIC My Commission Expires: 39 Attachments: Legal Description of Hy-Vee Tract - Legal Description of Grove Tract - Legal Description of Outlot A D Legal Description of Grove-Rainbow Tract Exhibit E Legal Description of Bank Tract F Legal Description of 7180 Tract G Legal Description of Fairfield Tract 40 LEGAL DESCRIPTION OF HY-VEE TRACT 41 LEGAL DESCRIPTION OF GROVE TRACT 42 LEGAL DESCRIPTION OF OUTLOT A 43 LEGAL DESCRIPTION OF GROVE-RAINBOW TRACT 44 LEGAL DESCRIPTION OF BANK TRACT 45 LEGAL DESCRIPTION OF 7180 TRACT Lot 3, Block 1, Grove Plaza Addition, according to the recorded plat thereof, recorded as Document No. ________, Washington County, Minnesota 46 LEGAL DESCRIPTION OF FAIRFIELD TRACT nd Lot 3, Block 1, Grove Plaza 2 Addition, according to the recorded plat thereof, recorded as Document No. 3243176, Washington County, Minnesota 47 H (Page 1 of 3) SITE PLAN No Build Zone, Bank Prime Parking Area 48 H2 of 3) SITE PLAN Pre-Redevelopment Primary Access Drive 49 H3 of 3) SITE PLAN - Post-Redevelopment Primary Access Drive 50