s 1- Ann McGiil Kutak Rock LLP 1650 Farnam Street Omaha, NE 68102-2186 (402) 346-6000 JV\N R 3 2 6 8 5 1 Recorded Sep 05,2013 at 12:20 o'clock #4'*' In Book 274 of Misc. on Page Cj Q 1*\ SEAL :*J j uii e D Risty, Register of Deeds %%.. ^ Minnehaha Countv, South Dakota DECLARATION OF RESTRICTIONS Sioux Falls, SD (60 m & Marion) Store No. 4865 THIS DECLARATION OF RESTRICTIONS (this "Declaration") is made and executed as of the yi^day of SPpt-ZtrnbiZr-. 2013, by SIOUX FALLS DEVELOPMENT ) FOUNDATION, INC., a South Dakota non-profit corporation, hereafter referred to as "Declarant". WHEREAS, Declarant is the owner of that certain real property more particularly described in Exhibit A attached hereto and incorporated by reference herein, which real property is hereafter referred to as the "Wal-Mart Property"; WHEREAS, Declarant is also the owner of that certain real property more particularly described in Exhibit B. attached hereto and incorporated by reference herein, which property is hereafter referred to as the "Burdened Property"; WHEREAS Declarant has previously conveyed or will convey the Wal-Mart Property to Wal-Mart Real Estate Business Trust, a Delaware Statutory Trust, and/or Wal-Mart Stores, Inc., a Delaware corporation (collectively, "Wal-Mart"), pursuant to a separate deed dated on or about the date of this Declaration; and WHEREAS, Declarant desires to establish certain restrictions upon the Burdened Property for the benefit of the Wal-Mart Property;
NOW, THEREFORE, Declarant for itself, its successors and assigns does hereby declare that the Burdened Property shall be subject to and shall be used in conformance with the following covenants, restrictions and agreements: The ownership, development and use of the Burdened Property and any and all buildings, structures or other improvements (each an "Improvement" and collectively, the "Improvements") shall be restricted, burdened and subject to all of the limitations as set forth below. a. b. c. In developing and using the Burdened Property, the owner of the Burdened Property and any portions thereof shall continuously provide and maintain parking ratios on such Burdened Property as follows: (i) with respect to any Burdened Property or portion thereof containing Improvements used as a restaurant or for any entertainment purpose, which Improvements contain 5,000 or more gross square feet, such Burdened Property or portion thereof must conform with the zoning ordinances of the City of Sioux Falls in effect at the date this Declaration is recorded with the Register of Deeds for Minnehaha County, South Dakota; and (ii) with respect to any Burdened Property or portion thereof containing Improvements used for any use other than a restaurant or other entertainment purpose, such Burdened Property or portion thereof must contain five (5) legally-conforming parking spaces for every 1,000 gross square feet of Improvements located upon such Burdened Property. In addition, every owner and lessee of the Burdened Property and any portion thereof shall cause landscaping areas to be added and maintained on such Burdened Property in conjunction with any Improvement constructed on the Burdened Property. All of the Burdened Property shall be kept neat, orderly, planted with grass and trimmed at all times; provided, however, that this limitation shall not apply to any Burdened Property used for agricultural purposes or which is subject to a farm lease. Subject to the prior written consent of Wal-Mart, the Burdened Property shall be used for retail purposes only; provided, however, that no Burdened Property may be used as a theater, night club, bowling alley, health spa, cafeteria, porn shop, billiard parlor or other place of recreation or amusement, a business or facility used in growing, delivering, transferring, supplying, dispensing, dispersing, distributing or selling marijuana, whether by prescription, medical recommendation or otherwise, and whether consisting of live plants, seeds, seedlings or processed or harvested portions of the marijuana plant, or as a business serving or selling alcoholic beverages, or as a discount department store or as a variety, general or "dollar" store. Notwithstanding anything to the contrary contained herein, restaurants with sit-down table service, whether as a standalone facility or as located within a hotel, including room service, and which otherwise satisfy the requirements set forth in this Declaration, including but not limited to any parking requirements, may be situated upon the Burdened Property without the prior written consent of Wal-Mart and such restaurants may serve alcoholic beverages-for consumption on the premises provided that sales of such alcohol do not account for more than 50% of such restaurant's gross
d. sales in a twelve-month period. In addition, notwithstanding anything to the contrary contained herein, gas stations which otherwise satisfy the requirements set forth in this Declaration, may be situated upon the Burdened Property without the prior written consent of Wal-Mart and such gas stations may sell alcoholic beverages for off premise consumption, provided that sales of such alcohol do not account for more than 50% of such gas stations' gross sales in a 12-month period. No Burdened Property shall be conveyed to, leased to, occupied by or used as (i) a grocery store or supermarket, as hereinafter defined below, (ii) a wholesale club operation similar to that of a 'Sam's Club' as owned and operated by Wal-Mart, (iii) a discount department store or other discount store, as hereinafter defined, (iv) a pharmacy, (v) a convenience store unless such convenience store is part of a retail gas station operation or (vi) an automobile service station. As used in this Declaration, "grocery store" and "supermarket" shall mean a food store or a food department containing more than 10,000 square feet of gross leasable area for the purpose of selling food for consumption off of the premises, which shall include but not be limited to the sale of dry, refrigerated or frozen groceries, meat, seafood, poultry, produce, delicatessen or bakery products, refrigerated or frozen dairy products, or any other grocery products normally sold in such stores or departments. As used in this Declaration, "discount department store" and/or "discount store" shall mean a discount department store or discount store containing more than 35,000 square feet of gross leasable area for the purpose of selling a full line of hard goods and soft goods, including but not limited to clothing, cards, gifts, electronics, garden supplies, furniture, pharmacy items, lawnmowers, toys, health and beauty aids, hardware items, bath accessories and auto accessories in a retail operation similar to that of Wal-Mart. "Pharmacy", as that term is used herein, shall mean any retail or wholesale store or operation of any size which sells or dispenses prescription drugs or pharmaceuticals whether or not such activities are primary to such store or operation. "Gas station/convenience store" as used herein shall mean any retail store or operation of any size dispensing motor fuels or fuel additives by pump, container, or any future method of dispensing and introducing fuel into automobiles, trucks, or other transportation devices whether or not such activities are primary to such store or operation. Any other uses not specifically restricted by this Declaration shall be permitted on the Burdened Property. By way of illustration, and not by limitation, the following uses shall be permitted on the Burdened Property: (i) retailers that are primarily engaged in the sale of soft goods such as Kohl's, Bed, Bath and Beyond, Marshall's, Ross, TJ Maxx and Belk; (ii) department store uses such as Dillard's, Sears, Macy's, JCPenney and Belk; (iii) sporting goods stores such as Big 5, Sports Authority, Joe's Sportsman's Warehouse, Dick's, and Golf Galaxy; (iv) office supply stores such as Office Max, Office Depot, and Staples; (v) home improvement stores such as Lowes, Home Depot, and Menards; (vi) craft and hobby stores such as Craft Warehouse, Hobby Lobby, Joann Stores, and Michaels;
(vii) furniture and electronic stores such as Best Buy, Circuit City, RC Wiley and Ashley Furniture; (viii) clothing and soft goods stores such as Steinmart, Toys r Us, Babies r Us, Old Navy, PetSmart and PetCo; and (ix) farm and ranch supply stores such as Tractor Supply and Fleet Farm. 2. None of the restrictions contained in this Declaration shall restrict the use of any Burdened Property which is zoned for industrial use during the time that such Burdened Property is zoned for industrial use. Any of the foregoing restrictions may be waived, amended, modified, released or terminated at any time and from time to time by Declarant; provided, however, that Declarant shall not waive, amend, modify, release or terminate this Declaration without the prior written consent of Wal-Mart during any time that Wal-Mart or any affiliate of Wal-Mart owns or occupies any portion of the Wal-Mart Property. In the event that neither Wal- Mart nor any affiliate of Wal-Mart owns or occupies any portion of the Wal-Mart Property, then in such event all rights and appurtenances created by this Declaration shall inure to the benefit of the single owner of the largest amount, collectively, of linear square footage of the lands included in the Wal-Mart Property, and all references in this Declaration shall be thereafter be deemed to refer to such owner. The foregoing covenants, restrictions and agreements (a) are imposed upon the Burdened Property for the benefit of the Wal-Mart Property and all portions thereof, (b) shall be effective in perpetuity, except as otherwise set forth herein and (c) shall be deemed restrictive covenants running with the land and shall be binding upon the Burdened Property and any person who may from time to time own, lease or otherwise have an interest in the Burdened Property or any portion thereof. In the event of a breach or threatened breach of any term of this Declaration, Wal-Mart shall have the right to exercise any and all remedies afforded under law and at equity, including, without limitation the right to obtain injunctive relief. This Declaration is made in and shall be construed pursuant to the laws of the state in which the Burdened Property is located.
IN WITNESS WHEREOF, the undersigned has executed this Declaration as of the day and year above set forth. DECLARANT: SIOUX FALLS DEVELOPMENT FOUNDATION, INC., a South Dakota nonprofit corporation By Slater Barr President STATE OF Cfei ) )SS. COUNTY OF W i e KA ka ) The foregoing instrument was acknowledged before me on 2013 by Slater Barr, President of Sioux Falls Development Foundation, Inc., a South Dakota nonprofit corporation, on behalf of the corporation. JULIE A. HANSEN ujlcl CI. NOTARY PUBLIC m SOUTH DAKOTA % /^Mbtary Public My Commission Expires: S~ / J J (p
MORTGAGEE'S CONSENT The undersigned mortgagee hereby consents to the creation of the easements and other rights created by the foregoing instrument respecting the parcels of land described therein and further agrees that the same shall not be terminated upon any foreclosure of any parcel of land encumbered by said instrument. FIRST.PREMIER BANK, a By Name, ft/j Title v\o&- "i) U r \'- ACKNOWLEDGEMENT STATE OF ) ) ss. COUNTY OF ). The forgoing instrument was acknowledged before me on this^ day of [M+fArts.. 2013 by O /r 4 of First Premier Bank, a AD. on behalf of the vhe-ji.. My Commission Expires: /d-1 'Jail Notary PuWlc 7 1 aw'w AIMIM BRENDAN W. REILLY 1/^frfN NOTARY PUBLIC SO" DAKOTA If! fl H f i*«*^
EXHIBIT A WAL-MART PROPERTY LEGAL DESCRIPTION Lot 1, Outlot A and Outlot B, in Block 7 of Sioux Empire Development Park 7 Addition to the City of Sioux Falls, Minnehaha County, South Dakota. 4814-2060-3665 2
EXHIBIT B BURDENED PROPERTY LEGAL DESCRIPTION That part of the SW1/4 of Section 25, T102N, R50W of the S 01 PM, Minnehaha County, South Dakota, lying north of proposed W 62 nd Street N right of way, lying west of N Annika Avenue right of way and lying east of N Marion Road right of way. AND That part of the E1/2 of the SW1/4 of Section 25, T102N, R50 W of the 5,h P.M., Minnehaha County, South Dakota, located north of the W. 60 th Street N. right of way, east of the N. Annika Avenue right of way and south of the W. 61 Street N. right of way except that part of Sioux Empire Development Park 7 Addition contained therein. RECEIVED SEP 0 5 21)15