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1181886 EAS
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FIRST AMERICAN TITLE-NICOLLET MALL
1900 MIDWEST PLAZA VVEST
801 NICOLLET MALL
MINNEAPOLIS MN 55402
JOINT EASEMENT AND MAINTENANCE AGREEMENT
1181886
111 '11 IILII 11111
Certified Filed and/or recorded on:
12/11/2007 4:32 PM
1181886
Certificate #: 64779
64780
Office of the Registrar of Titles
Property Records & Taxpayer Services
Washington County, MN
1< jn .1 Corhid, LotinLy Recorder
This Joint Easement and Maintenance Agreement is made and entered into as of this
day of , 2007, between and among VSSA BOUTWELLS LANDING, LLC, a
Minnesota limited liability company ("Boutwells"), and VSSA CARE CENTER, LLC, a
Minnesota limited liability company ("Care Center").
WITNESS:
WHEREAS, Boutwells is the present owner of the real property legally described on the
attached Exhibit A ("Boutwells Parcel"); and
WHEREAS, Care Center is the present owner of the real property legally described on
the attached Exhibit B on which is to be located an approximate 108 unit skilled nursing care
facility and other improvements ("Care Center Parcel"); and
WHEREAS, Boutwells is the present owner of the real property legally described on the
attached Exhibit C, which shall be transferred at a later date to a special purpose entity formed to
own such real estate ("Memory Care"), and on which is to be located an approximate 20 unit
memory care facility and other improvements ("Memory Care Parcel"); and
WHEREAS, each of the Boutwells Parcel, the Care Center Parcel and the Memory Care
Parcel are sometimes hereinafter referred to individually as a "Parcel" and said parcels are
sometimes hereinafter referred to collectively as "Parcels", and each of Boutwells, Care Center
and Memory Care are sometimes hereinafter referred to as an "Owner", and said owners are
sometimes hereinafter referred to collectively as "Owners"; and
WHEREAS, there is located on the Boutwells Parcel a senior housing campus commonly
known as "Boutwells Landing" consisting of separate single family and multi-family
independent living facilities and/or assisted living facilities; and
WHEREAS, there are located or to be located on each of the Boutwells Parcel, the Care
Center Parcel and the Memory Care Parcel certain integrated common amenities, which shall or
may include, but not be limited to, a conservatory, theater, commercial laundry, courtyard,
I1CS-11-MPLS (JOY)
RETURN TO:
First American Title insuranc
1900 Midwest Plaza West
801 Nicollet Mali
Minneapolis, MN 55402
11
II
activity center, physical therapy area and pool, kitchen(s), dining room(s), game room,
barber/beauty shop, library, chapel, art studio and other amenities, including the `Town Center"
located on the Boutwells Parcel, Care Center Parcel and Memory Care Parcel (collectively
"Common Amenities ") and common driveways, walkways and hallways benefiting the Owners
of all of the Parcels; and
WHEREAS, Boutwells desires to grant to Care Center and Memory Care easements over
portions of the Boutwells Parcel for purposes of use of the Common Amenities and certain
common walkways and hallways located or to be located on the Boutwells Parcel; and
WHEREAS, Care Center desires to grant to Boutwells and Memory Care easements over
portions of the Care Center Parcel for purposes of use of the Common Amenities and certain
walkways and hallways located or to be located on the Care Center Parcel; and
WHEREAS, Memory Care desires to grant to Boutwells and Care Center an easement
over portions of the Memory Care Parcel for purposes of the use of the Common Amenities and
certain walkways and hallways located or to be located on the Memory Care Parcel; and
WHEREAS, Boutwells, Care Center and Memory Care desire to grant the other Owners
easements for party wall purposes over the portion of the Boutwells Parcel, Care Center Parcel
and Memory Care Parcel on which common walls connecting the buildings on such parts are
located; and
WHEREAS, Boutwells desires to grant to Care Center and Memory Care an easement for
ingress, egress and surface parking purposes over a portion of the Boutwells Parcel; and
WHEREAS, Care Center desires to grant to Boutwells and Memory Care an easement for
ingress, egress and surface parking purposes over a portion of the Care Center Parcel; and
WHEREAS, Boutwells, Care Center and Memory Care desire to grant each other
easements for the installation and maintenance of certain private utility lines and systems to be
located on their respective Parcels; and
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein-
after set forth, Boutwells, Care Center and Memory Care agree as follows:
1. Boutwells grants to Care Center and Memory Care, and their respective
employees and residents and their invitees, a permanent, non - exclusive easement for access to
and the use of the Common Amenities and all common walkways and hallways located on the
Boutwells Parcel.
2. Care Center grants to Boutwells and Memory Care, and their respective
employees and residents and their invitees, a permanent, non - exclusive easement for access to
and the use of the Common Amenities and all common walkways and hallways located on the
Care Center Parcel, including the future tunnel access contemplated via the Care Center Parcel
under 58 Street to common parking to be located on the parcel directly north of 58 Street.
3. Memory Care grants to Boutwells and Care Center and their respective employees
and residents and their invitees, a permanent, non-exclusive easement over the Memory Care
Parcel for access to and the use of the Common Amenities, and all common walkways and
hallways located on the Memory Care Parcel.
4. The southwest wall, the south wall and the southeast wall of the building located
or to be located on the Care Center Parcel or such parts thereof as shall be required to provide
common walls between the Care Center Parcel and the Boutwells Parcel shall constitute party
walls to the extent the boundary of the walls abuts the property lines of such Parcels, and
Boutwells and Care Center shall each have an easement for party wall purposes over any portion
of the other's Parcel to the extent of any encroachment of its building improvements onto such
Parcel. Boutwells and Care Center, and their successors and assigns, shall each have the right to
modify, enlarge, contract and/or extend the portions of said party walls located on their
respective Parcels at their sole cost and expense, so long as said modification, enlargement,
contraction, and/or extension does not substantially interfere with the use thereof by the other
Owner for the purposes above specified.
5. The northwest wall and southwest wall of the building located or to be located on
the Memory Care Parcel or such parts thereof as shall be required to provide common walls
between the Memory Care Parcel and the Care Center Parcel and Boutwells Parcel, respectively,
shall constitute party walls to the extent the boundary of the walls abuts the property lines of
such Parcels, and Boutwells, Care Center and Memory Care shall each have an easement for
party wall purposes over any portion of the other's Parcel to the extent of any encroachment of
its building improvements onto such Parcel. Boutwells, Care Center and Memory Care, and
their successors and assigns, shall each have the right to modify, enlarge, contract and/or extend
the portions of said party walls located on their respective Parcels at their sole cost and expense,
so long as said modification, enlargement, contraction, and/or extension does not substantially
interfere with the use thereof by the other Owner for the purposes above specified.
6. Boutwells grants to Care Center and Memory Care and their successo rs and
assigns, a permanent non - exclusive easement for parking purposes over surface parking lots
located or to be located on the Boutwells Parcel, as the same may from time to time be
constructed, maintained and relocated and as pictorially shown on the site plan attached as
Exhibit D hereto. Care Center grants to Boutwells and Memory Care and their successors and
assigns, a permanent non-exclusive easement for parking purposes over surface parking lots
located or to be located on the Care Center Parcel, as the same may from time to time be
constructed, maintained and relocated and as pictorially shown on the site plan attached as
Exhibit D hereto. Memory Care grants to Boutwells and Care Center and their successors and
assigns, a permanent non-exclusive easement for parking purposes over surface parking lots to
be located on the Memory Care Parcel, as the same may from time to time be constructed,
maintained and relocated.
7. Each of Boutwells, Care Center and Memory Care grant the other Owners, their
employees and residents and their invitees, permanent, non - exclusive easements for vehicular
and pedestrian access, ingress and egress over and across those portions of their respective
Parcels improved as driveways and parking area drive aisles, as the same may from time to time
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constructed, maintained and relocated for such use for purposes of access to and from their
respective Parcels and to the public streets abutting the Parcels.
8. Each of Boutwells, Care Center and Memory Care grant the Owners, their
successors and assigns hereto permanent, non-exclusive easements over and across those
portions of their respective Parcels (exclusive of any portion located within an area which is
improved for or may be improved for building purposes) necessary for the installation, operation,
flow, passage, use, maintenance, connection, repair, relocation and removal of lines or systems
for utilities serving each of the Parcels, including sanitary sewer, storm drains, water (fire and
domestic), gas, electrical, telephone, chillers, commercial generators, electrical transformers and
communication and technology lines. Except with respect to pad mounted electrical
transformers at the rear of a building, chillers, commercial generators or as may be necessary
during periods of construction, repair, or temporary service, all utilities shall be underground
unless required to be above ground by the utility providing such service. The Owner of any
Parcel shall have the right at any time to relocate any utility or utility line upon thirty (30) days'
prior written notice, provided that such relocation: (a) shall not interfere with or diminish the
utility service to the other parcels; (b) shall not reduce or unreasonably impair the usefulness or
function of such utility; (c) shall be performed without cost of expense to the other Owners; (d)
shall be completed using materials and design standards which equal or exceed those originally
used; (e) shall have been approved by the utility company and the appropriate governmental or
quasi - governmental agency having jurisdiction thereover; and (f) shall be performed in a manner
that causes the least amount of interference with the business being operated on the other Parcels
as is reasonably possible, including but not limited to assuring that access is maintained at all
times. The Owners shall share in the cost of any utilities used by such Owner from any utility
sources located on another owner's Parcel with the system of allocation of costs and mechanism
of billing and collecting for such costs to be determined by the affected Owners.
9. Except as expressly provided in this Section 9, each of Boutwells, Care Center
and Memory Care, and their successors and assigns, shall construct, repair, maintain and
reconstruct (if and as necessary) the Common Amenities, party walls, driveways, parking areas
and other improvements located or to be located on their respective Parcels, keeping the same
maintained in first class condition similar to other amenities maintained for elderly housing use
and in compliance with all applicable governmental requirements, so that they may be used for
the purposes intended, have a neat and aesthetically pleasing appearance, and appear as
uniformly one area. Notwithstanding the foregoing, the Owners of Boutwells, Care Center and
Memory Care shall share in the cost of construction, repair, maintenance and reconstruction of
the Common Amenities, driveways and parking areas located on another Owner's Parcel used by
such Owner with the system of allocation of costs and mechanism of billing and collecting for
such costs to be determined in good faith by the affected Owners. All such construction shall be
performed in a manner consistent with the existing paved surface parking lot, and in accordance
with applicable governmental requirements. Owner shall not permit any mechanic's lien to be
filed against any other Owner's Parcel as the result of repair, maintenance or reconstruction
performed on its Parcel.
Notwithstanding the foregoing, the costs and responsibility for such repairs, maintenance
and reconstruction with respect to any Parcel, if reasonably necessitated by the negligence or
intentional acts of one of the Owners, its employees, residents or invitees, shall be paid,
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undertaken, and assumed solely by that Owner, its successors and assigns, and said Owner,
subject to the provisions of Paragraph 11 below, shall compensate the other Owners for any
damages to the other Owners' facilities, Each Owner shall have such right of entry, after
reasonable prior written notice, on the lands and premises of each other Owner as is necessary
for or reasonably incidental to effecting the repair or restoration required of that Owner by the
terms and conditions of this Agreement.
10. Each Owner shall maintain or cause to be maintained public liability insurance
insuring against claims on account of loss of life, bodily injury or property damage that may
arise from, or be occasioned by the condition, use or occupancy of the Common Amenities,
driveways, walkways or party walls contained on such Owners' respective Parcels, and the
residents, agents, contractors, employees, licensees, customers and invitees of such Owner. Said
insurance shall be carried with a reputable insurance company or companies qualified to do
business in the State of Minnesota and shall provide for amounts of not less than 52,000,000.00
for each person and $2,000,000.00 for each occurrence, with such insurance limits to be
modified from time to time in accordance with prudent and customary business practices. Each
Owner shall maintain fire and extended coverage insurance covering the improvements located
upon its Parcel in the amount of the full replacement cost thereof. Such insurance may be carried
under a "blanket" policy or policies covering other properties of the Owner and its subsidiaries,
controlling or affiliated corporations. Each Owner shall, upon written request from any other
Owner, furnish to the Owner making such request and to its mortgagee, if any, certificates of
insurance evidencing existence of the insurance required to be carried pursuant to this section.
Each such certificate of insurance shall provide that the policy or policies described therein may
not be cancelled, terminated or amended for any reason without at least 30 days' prior written
notice to the certificate holder. All such insurance shall include provisions denying to the insurer
subrogation rights against the other Owners to the extent such rights have been waived by the
insured prior to the occurrence of the damage or loss. Each Owner hereby waives any rights of
recovery against any other Owner, its members, directors, officers, employees, agents and
tenants and occupants for any damage or consequential Toss covered by said policies, against
which such Owner is protected by insurance, to the extent of the proceeds payable under such
policies, whether or not such damage or loss shall have been caused by any acts or omissions of
any other Owner or its members, directors, officers, employees, agents, tenants or occupants.
The liability insurance policy shall name all other Owners to this Agreement, their successors
and assigns, as additional insureds. Any proceeds from any insurance claim made by any Owner
resulting from damage to or the destruction of any Common Amenities, or common walkways or
hallways, shall be applied first to repair or restoration thereof.
11. if any Owner shall default in the performance of any obligation of such Owner
(such Owner being herein called a "Defaulting Owner "), which default affects any other Owner
to this Agreement (each an "Affected Owner "), such Affected Owner, in addition to all remedies
it may have at law, in equity or hereunder, after twenty (20) days' prior written notice to the
Defaulting Owner (or in the event of an emergency after such notice as is practical under the
circumstances), shall have the right to perform such obligation for maintenance, reconstruction
or other acts on behalf of the Defaulting Owner. In such event, the Defaulting Owner shall
promptly reimburse the Affected Owner for the cost thereof, together with interest thereon from
the date of such expense at a rate equal to eight percent (8 %) per annum, In the event the
Defaulting Owner does not make such reimbursement upon demand, the Affected Owner shall
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have the right to recover the amount of such costs, together with attorneys' fees and expenses
incurred in connection with recovering the same, from the Defaulting Owner.
Any such claim for reimbursement, together with the interest thereon as aforementioned,
shall be secured by a lien on the real property and any improvements thereon owned by the
Defaulting Owner, which lien shall be effective upon recording of a notice in the Office of the
Registrar of Titles, as applicable, of the county in which the property is located. The lien shall
be subordinate to any mortgage now or hereafter affecting the affected Parcel.
In addition, in the event of a breach by a party to this Agreement of any such obligation,
the Affected Owner may bring an action against the Defaulting Owner for damages or may elect
to obtain an order specifically enforcing the performance of such obligation or an injunction
prohibiting any such breach. Any costs and expenses of any such proceeding, including
attorneys' fees in a reasonable amount, shall be paid by the Defaulting Owner.
Notwithstanding the foregoing, the Owners may elect as to any dispute regarding the
necessity for or cost of any repairs, maintenance, reconstruction or other obligations not
performed, to have the matter submitted to arbitration by making written demand therefor upon
the other Owners, their successors or assigns, after thirty (30) days' advance written notice is
given to the other Owners allegedly responsible for such repairs, maintenance, reconstruction, or
other obligations. Each of the Owners involved in the arbitration, its successors or assigns, shall
choose one arbitrator, and the arbitrators so chosen shall jointly choose one additional arbitrator.
The decision of a majority of the arbitrators so chosen shall be binding upon the Owners and
may be enforced in an action at law, in equity, or in connection with the lien rights herein
provided or otherwise existing. If there are an even number of arbitrators, and the arbitrators are
evenly split on their decision, all the arbitrators shall jointly choose one additional arbitrator,
whose decision shall be binding upon all the Owners. Each Owner, its successors and assigns,
shall pay the fees, costs and expenses that become due to the arbitrator it selected and shall pay
its pro -rata share of all the costs of the arbitration based upon the number of Owners to this
Agreement involved in the arbitration; however, in the event any Owner fails or refuses to
comply with the arbitrators' decision, all costs incurred in any subsequent enforcement action,
including costs, disbursements and reasonable attorneys' fees, shall be awarded to the prevailing
Owner(s),
12. The easements, covenants, conditions, restrictions and other provisions herein
contained shall be perpetually binding and enforceable upon the respective Parcels hereinbefore
described, their respective Owners, and their heirs, successors and assigns, forever, and shall
attach to and run with the land.
13. Invalidation of any one or more of the provisions herein contained shall not in any
way affect the validity of the others, which shall remain in full force and effect.
14. When the context in which words are used herein indicates that such is the intent,
words in the masculine gender shall include the feminine and neuter genders and vice versa, and
words in the singular number shall include the plural, and vice versa; provided, however, that for
all purposes hereunder each parcel of real estate shall be deemed to have one owner consisting of
all those having any right, title, claim or other interest therein at any relevant time.
15. This Agreement may be executed in any number of counterparts, each of which
shall for the purposes be deemed to be an original, and all of which are identical. All such
counterparts together shall constitute one instrument.
(SIGNATURE PAGES TO FOLLOW)
h
IN WITNESS WHEREOF, the undersigned have hereunto set their hands this w day of
'Dec-MIX" , 2007.
STATE OF MINNESOTA )
)ss.
COUNTY OF Aenrvin
LINDA M. CROSS
Notary Public-Minnesota
My Commission ExiAres Jan 31, 2009
VSSA BOUTWELLS LANDING, LLC,
a Minnesota limited liability company
By:
Printed Name:
Title:
Notary Public
Z'A 14 //is
t
The foregoing instrument was acknowledged before me this c- day of TiL
2007, by (Y)Cif ME . ‘ar , the Or\tiec- Rnancial inaraclyx of
VSSA Boutwells Landin LLC, a Minnesota limited liability company, on behalf o't the limited
liability company.
Lhuncia ono 6.)-Oa
STATE OF MINNESOTA )
)ss.
COUNTY OF tiknivo )
1 vivwsAAAAAAAAAAAAAAAvvAAAA
LINDA M. CROSS
Notary Public-Minnesota
10y Commission Expires Jan 31, 2009
DRAFTED BY:
MESSERLI & KRAMER P.A.
1800 Fifth Street Towers
150 South Fifth Street
Minneapolis, MN 55402
(612) 672-3600
VSSA CARE CENTER, LLC,
a Minnesota limited liability company
By:
Printed Name:
Title: (4.
c-Vh
The foregoing i ---
nstrument was acknowledged before me this L.) day of miokr
2007, by Met r 1Y) etj ur , the b'ttei FinCirtmi frarial VSSA
Care Center, LLC, a Minnesota limited liability company, on behalf of the limited liability
company.
nt) akiao
Notary Public
EXHIBIT A
Legal Description of Boutwells Parcel
Tract C, Registered Land Survey No . �f. Washington County, y , � ya
EXHIBIT B
Legal Description of Care Center Parcel
Tract A, Registered Land Survey No. , Washington County, Minnesota.
EXHIBIT C
Legal Description of Memory Care Parcel
Tract B, Registered Land Survey No. , Washington County, Minnesota.
EXHIBIT D
Site Plan of Parcels
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ACKNOWLEDGEMENT AND CONSENT
U.S. BANK NATIONAL ASSOCIATION, a national banking association ( "the
Trustee "), as successor in interest to THE CITY OF OAK PARK HEIGHTS, MINNESOTA, a
municipal corporation duly organized and existing under the laws of the State of Minnesota (the
"Issuer"), and the FEDERAL HOME LOAN MORTGAGE CORPORATION, a shareholder -
owned, government - sponsored enterprise organized and existing under the laws of the United
States of America ( "Freddie Mac" and the Issuer, the Trustee and Freddie Mac are hereinafter
sometimes collectively referred to as the "Holder ") are the Holder of a certain Consolidated,
Amended and Restated Multifamily Mortgage, Assignment of Rents, Security Agreement and
Fixture Financing Statement (Minnesota — Revision Date 5 -11 -2004) dated as of November 1,
2005 (the "Mortgage ") recorded with the Washington County Registrar of Titles' Office on
December 2, 2005, as Document No. 1162816, as assigned to Federal Home Loan Mortgage
Corporation and U,S. Bank National Association, a national banking association, by Assignment
and Intercreditor Agreement dated November 1, 2005, recorded December 2, 2005 as Document
No. 1162817, and encumbering the real property legally described on Exhibit A attached hereto,
hereby consent and agree to this Joint Easement and Maintenance Agreement as set forth in the
document attached hereto. This Consent does not revoke, subordinate or amend the provisions
of the Holder's Mortgage relating to the rights or obligations to reconstruct after casualty loss or
to insurance proceeds or the application thereof, all of which shall continue in effect and shall
control over all provisions of this Agreement.
(SIGNATURE PAGES TO FOLLOW)
STATE OF MINNESOTA
COUNTY OF 1-
4
A
MOLLY K. BEANE
Notary Public
Minnesota
My Go; nrmsslon Expires Januaty 31, 2010
U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By:
Printed Name:
Title:
) ss.
OA 14clki/N.
Assistant Vice President
The foregoing was acknowledged befog day of Oecevkktei2, 2007, by
J 04\ \ , the )1(Q, 54.1t# of U.S. Bank
National Association, a national banking association, on behalf of the banking association.
STATE OF
COUNTY OF
620459.3
FEDERAL HOME LOAN MORTGAGE
CORPORATION,
a shareholder-owned, governrnent-sponsored
enterprise
) ss.
By
Prilited Name:
Title:
Notary Public
Ina T. Conolly
pecia ro Ltt s an rciTTiTrativirector
---
The foregoing was acknowledged before this f ',/ day of j" , 2007, by
( co L1 , the 'i br of Federal Home
Loan Mortgage Corporation, a shareholder-owned, government-sponsored enterprise organized
and existing under the laws of the United States of America, on behalf of the enterprise.
"Or
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G
O Leslie R. Gallahan
c NOTARY PUBLIC
OF i ) Commonwealth of Virginia
My Commission Expires
Dovember 31, 2000