Loading...
HomeMy WebLinkAboutContract 1526PARKING CERTIFICATE THIS PARKING CERTIFICATE ("Certificate") is made as of July 10 ,2000, by the CITY OF COLUMBIA HEIGHTS, a Minnesota municipal corporation (the "City"), whose address is 590 40* Avenue NE, Columbia Heights, Minnesota 55421, Attention: City Manager, in favor of PRESIDENTIAL BANK, FSB, a federal savings bank ("Lender"), whose address is 4600 East-West Highway, Suite 415, Bethesda, Maryland 20814. RECITALS A. Lender has agreed to make a loan (the "Loan") to LAKE-STATE PROPERTIES, INC., a Minnesota corporation ("Borrower") which will be evidenced by a Promissory Note dated June 2, 2000 in the principal amount of $2,800,000.00 executed by Borrower, as maker, and payable to the order of Lender (the "Note"). The Note will be secured by certain documents (collectively with the Note, the "Loan Documents"), including without limitation, the Mortgage, Security Agreement, Assignment of Leases and Rents, and Fixture Financing Statement dated June 2, 2000, executed by Borrower to Lender and encumbering the property (real and personal) described therein, including the real property described in Exhibit A attached hereto (the "Office Building Parcel"). B. The City and Borrower are the current parties to the following agreements (collectively, "Parking Agreements"): 1. the Management Agreement for Parking Facilities and Lease of Plaza Property dated July 20, 1982, originally executed between The Housing and Redevelopment Authority in and for the City of Columbia Heights and Terry Evenson CEvenson") relating to the construction and use of a parking garage facility (the "Parking Garage") on certain real property (the "Parking Garage Parcel") described in Exhibit B attached hereto and the lease of certain real property (the "Walkway Parcel"), as described in Exhibit C attached hereto, to Evenson for the construction of an enclosed overhead pedestrian walkway (the "Walkway", and collectively with the Parking Garage, the Parking Garage Parcel and the Walkway Parcel, the "Parking Property") between the Parking Garage and the Office Building Parcel; and 2. the Agreement between the City of Columbia Heights and Zaidan Holdings Inc., for the Operation of the Parking Ramp dated June 30, 1988, originally executed between the City and Zaidan Holdings, Inc. ("Zaidan"), as subsequently modified by the Agreement for Modification of Management Agreement for Parking Facilities dated February 11, 1991, originally executed between the City and Zaidan. AGREEMENTS NOW THEREFORE, for the purposes aforesaid and in consideration of the covenants and agreements herein contained, the parties hereto agree as follows: 1. A true and complete copy of each of the Parking Agreements and ail assignments, amendments, aiterations, supplements or modifications thereto is attached hereto as Exhibit D. The Parking Agreements constitute the entire agreement between the City and Borrower with respect to the Parking Property, and each is in full force and effect and is enforceable against the City and Borrower in accordance with their respective terms. 2. The City is the owner and holder of fee simple title to the Parking Garage Parcel and the Walkway Parcel. The City has not transferred its interest under the Parking Agreements. 3. The lease of the Walkway Parcel has commenced and the term thereof expires on November 30, 2081, unless sooner terminated or extended pursuant to the Parking Agreements. 4. As of the date hereof, the City and, to the best of the City's knowledge, Borrower are in full performance of all covenants of the ?arking Agreements, including, but not limited to, the payment of all rents, charges and amounts due to the City. There is no existing default or claimed default by either the City or, to the best of the City's knowledge, Borrower under the Parking Agreements. No event has occurred which, with the passage of time or the giving of notice, or both, would constitute a default by either the City or, to the best of the City's knowledge, Borrower under the Parking Agreements. Neither the City nor, to the best of the City's knowledge, Borrower have any existing defenses or offsets against the other party's enforcement of the Parking Agreements, and there are no unresolved or pending disputes between the City or, to the best of the City's knowledge, Borrower with respect tot he Parking Agreements and the Parking Property. 5. The City unconditionally consents to Borrower's assignment and mortgage of the Parking Agreements and the Parking Property in connection with the Loan. In the event of any default in any of the Loan Documents, Lender may exercise any and ail fights and remedies available to it, subject however to this Certificate. 6. Without the prior written consent of Lender, which shall not be unreasonably withheld or delayed, none of the Parking Agreements nor the rights and estates created therein may be modified in any materiai manner, canceled or terminated (including without limitation, any termination of or right to terminate all or any of the Parking Agreements in the event of any casuaity or condemnation and any termination upon notice to City of an intent not to renew). 7. I/Lender or another entity (each, and their successors and assign, a "Grantee") succeeds to the interest of Borrower under the Parking Agreements and in and to the Parking Property pursuant to a foreclosure of the Loan Documents or a deed-in-lieu thereof, such Grantee, subject to the terms hereof, shall be bound by the Parking Agreements a_qer the date (the "Transfer Date") such Grantee succeeds to the Borrower's interests in the Parking Property under the Parking Agreements and has acquired title to and possession of the Waikway Parcel, and may thereafter assign, sell, transfer or mortgage any or all of such rights, title and interest in, to and under the Parking Agreements and in and to the Walkway Parcel. Lender as such Grantee shall not be~ ao obligated to assume any obligations or liabilities pursuant to the Parking Agreements accruing prior to the Transfer Date; or bo subject to any offsets or defenses available to the City which accrued prior to the Transfer Date; or Co bound by any material modification of any Parking Agreement made without its consent; or do' bound by or liable under any provision of any Parking Agreement providing for any indemnification of the City by Borrower (including without limitation, any such provision relating to any environmental condition of the Parking Property), other than as such provisions relate to actions of Lender during any period of time when Lender is exercising Borrower's interests in the ?arking Property under the Parking Agreements or is in possession of the Walkway Parcel; or liable under the Parking Agreements for any amounts in excess of its interest in the Parking Property or beyond the period of time it is in possession of the such interest. 8. Lender has not assumed and will not become liable under the terms of any of the Parking Agreements by reason of Lender's acceptance of this Certificate or any lien or security interest encumbering the Parking Agreements or the Parking Property. 9. Upon any default by Borrower under the Parking Agreements: ao the City shall provide Lender with notice thereof in the same manner in which the City must provide Borrower with such notice under the Parking Agreements, and Lender shall have all rights of Borrower under the Parking Agreements, including but not limited to the right to cure such default as if Lender were the Borrower. In addition to the foregoing, if Borrower fidis to cure any default under the Parking Agreements within any applicable cure period, then Lender shall have an additional thirty (30) days within which to cure such default, or if such default cannot be cured within that time, then such additional time as may be necessary if within such thirty (30) days Lender has commenced and is diligently pursuing the cure or such default (including, without limitation commencement of foreclosure proceedings), in which event the City shall not exercise any of its rights and remedies (including any rights of self-help except in an emergency situation) under the Parking Agreements nor shall the Parking Agreements be terminated. 10. In the event all or any portion of the Parking Garage or the Walkway are damaged or destroyed by fire or other casualty or be taken through eminent domain proceedings, then all resulting net insurance or condemnation proceeds payable to Borrower pursuant to theParking Agreements, shall be paid to Lender and be held, applied and disbursed by Lender in accordance with the Loan Documents and subject tot he Parking Agreements. 11. Without the written consent of Lender, there shall be no merger of any estate or interest in any of the Parking Property (whether leasehold, fee, mortgage lien or otherwise) by reason of the fact that any such estate or interest may be owned or held, directly or indirectly, by or for the benefit of any person who now or hereafter owns or holds any one or more other estate or interest in all or part of the Parking Property. 12. Any notice, coy of notice, request, demand or statement made hereunder shall be in writing, signed by the party giving such notice, delivered to the intended recipients at the addresses set forth in this Agreement (or such other address as may be provided by such recipient to the other parties hereto in writing from time to time), and shall be deemed properly given only if given by one or more of the following: a. if hand delivered, when actually received; bo if delivered by a national overnight delivery service, one (1) business day after delivery to such overnight delivery service; and if delivered by U.S. mail, certified with return receipt requested and postage prepaid, three (3) business days depositing the same with the U.S. postal service. 13. This Certificate contains the final and entire agreement between the parties hereto with respect to the subject matter hereof. If any provision of this Certificate or any application thereof is or becomes, to any extent, invalid or unenforceable, the remainder of this Certificate and any other application of such provision are not to be affected. The rule of construction that any ambiguities are to be resolved against the drafting party shah not be employed in the interpretation of this Certificate. This Certificate shall be binding upon and shall inure solely to the benefit of the parties hereto and their respective heirs, legal representatives, successors, and assigns. Any waiver related to this Certificate must be in writing and shah only relate to the matter described in such waiver. No delay or on~.ssion in the exercise of any right or remedy shall impair such right or remedy or be construed as a waiver. A consent to or approval of any act shah not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act. Any waiver given by a party shall be null and void if the party requesting such waiver has not provided a complete and accurate disclosure of aH material facts relevant to the waiver requested. 4 14. The City executes this Certificate for the benefit of Lender with full knowledge that Lender is relying on this Certificate in making the Loan to Borrower. CITY OF COLUMBIA HEIGHTS, a Minnesota municipal corporati~ ~Its Mayor / By: Walter Fehst, ' Its City Manager STATE OF MINNESOTA ) ) SS. COUNTY OF ANOKA ) ~The foregoing instrument was acknowledged before me this 10~day of~ 2000, by ~_~'),' and WALTER FEHST, the Mayor and City Manager, respecfiv,~y, ~'n behalf of the City of Columbia Heights, Minnesota, a Minnesota municipal corporation. 5 Lc0~ ~:2, BIocI( 6, Reee~vo£r ~e~r~~l ~hen~e ~her~y on · LLne ~I.00 f~- Wee~ o~ and ~araXleX 1Lne of ~ 23, · dLs~an~ o~ 87.0~ fee~ ~henee ~ a e~ra~gh~ 1Lfle 6 ~u~d ~Lnt bu~8 18.~ ~.et rut f~ ~. Southeast eo~r of ~t ~ ef sa~4 Sleek I. ~a~tou's harraus~ntj three uort~r~y on a line 18.~ fee~ vest of ~hoee~a~ts ~! ],els ~7 rhroush 31, Sleek S. h,,ervot~: II1114 end those per~e of Relevto~z ItLI]~ end..of:che ~aca~ed alloy ebuttinl Block le "S/alton°e Rearren$of,~nt vL~n e~ follwinS.dev0T~b~ tracc~ C~e~e~,S sc · ps,nc on the, gooch line b~mLr E~b. · ~eenoL~s of ~be mt mud vest ~nes of th~ elo~ ~5.~ fee~ of tho ~se Z~,~ fee~ el .aSd bt ~3. Ibek !. rs~e~re~ Eo a~ ~he "City"), and ~aidan ~oldlngs Inc., a (sometimes hereina~c referred eo as ~he "Opera,or"). ~ITNg~£TH Tg-~T, in e~nsi~era~lon o~ the mutual cove- nan,s heeein conta~ne~ bhe ~a~ties hereto ~ciee an~ agree ~ucsuan~ ~ a certain ~jnage~en~ ~;c~emen~ for Facilities an~ ~ease o~ ~he ~taza pro~er~y b~ an~ between the ~ousing an~ aedevulopmen~ Au~hoc~b~ in ~nd ~ec ~he Ci~7 Columbia Relgh~s {~he "~uthorl~') an~ Te~gy ~,1~nson, ~a~ed the Cl~y, has ~een a, sl~me~ ~ ~he Cia? and T~rcy ~uenson agt~e~ :h~c exchange ~or the riqh~ to u~ during certain wamp (bbs ~ar~ln9 Ramp'] ovne~ b~ ~he Cl~y and located BeL ~s, v~ul~.be ~,~onstble ~y means O~ ~his A~reement,.. ~..e ~oustng AUbhor~y ~n an~ (~ bhee et~y) ~ Columb~a Bel~hbS hereby cen~rac~s vtbh ~he Operator ~or ~he per~ot~nce 0~ alt City's obligation under the tvens~n Contza~ Eec ~he opera,ion and ~l~tenanee o[ ~he ~a~klng ~R~XC~ l Section 1.1. ~. The te~m o~ bh~s Agceement ~hail be S years and I day beginning en June 30, 198~ and ending on June 30, 1992, unless said ~erm shall be ~erminated or ex~en~e~ a~ provided herein. e~ec~rici~?, n 3.2 . ~e O{e~ate{ a~ceee t~ ~ee~X~ ' ~ ........ and $~00 ~tveen ~he ~re et .,vv -.-. ~he ~a~ktnq ~ .......... -, - s~J~e and f~ezaX ~e~aX ~daye. ~eru o~XL ~e n~ e~z~e foz ~f~nq a~ presefl~ and ~nt~l the ~tato~ if .otL~i~ ethervis*. .~be ~4~aeor a!rues ~ CLty and ~he ho~de~ e~ T~t~Y ~veflsen's ~nterest uflde~ the tvenscfl a~ rater egkabX~fhed shall beene effective eR the -2- m I ....... I I*-- Slcycle$ shall be allowed to be parked tac~s as ate provLded by Ehe CLty ..... repairs -hich a~e suh~ect ~o ~he ~om~etl~[ve bl~d~n~ requirements el ~LDDAL~ /~L~.~, Section 47X.34~. The ~ecacoz age,es 'uin~aln ~he ~lrklng RamP, ~he e~u~men~ ~zov~d~d by_th~ al~ paz~s ~he~o~ ~n goad condition aec zepa~z an~ ~n al sacs vheel block~ ..... bolb~ and (e) Ma~n~aLn arid care ~o~ all p~antlng~. (d) Maintain all pa~k~ng equ~pmlnt ~nclu~tng all ga~et, batticade~, ticket spitfire, etc. .(e) ~ain~aIn ~he premises'In a clean, p[esen~able ~ond~tion an~ no~ alloy glr~, paper~ oc ~ash ot an accumulate u~n the pc~m~es~ and remove Snow, Ice a.~ other r~moved, shall floe be pl~ed u~fl ~he public ~Elon thezeoE. (~) ~ slnoc neeessar~ repairs to Ehe structure, pZumbtng~ lighting an~ he~tlflg (~) NaLntalfl and ~eep In good vor~lng necessary Eo insure compliance wt~h ~he above obllga~Lons~ and all york, labor and materials shall be charged to and paid ~or by -- t-l-I T----IT Section 4.3. · ,.e~l,n '.~- ~~; (a, X, and vh.m ac ~ncn ~oea~xon ~n~ ..... --- -~- ~lete ~nezo~ ac cn~ ~mqs ~o fe~ ~p and maintain accurate (s) ~' °m~~'t"' _~- ,- .. ~.o., ,.a ~o~- de.ed ,~.~,a,y.~ ~.~',.~o~ds ,hetX bo preyS=,4 an? eomqnc/nq ~anuary I. s~tio- 2.6. ~~~. mk. ciey shal~ ~ndu~ am a~ua~ audi~. ~~. ?he Opeca~ot shall make no Section 2.7. sat] ~emtsas and aFpurte~nees l~e~attou oe addLe/onf ~o _ . Z... .,;' ., Lo, ~o,-.-, oe ,~- c~tY:__3LJ2. ,=p,,,,t~ ,~,,,d lo~ced iff and ee~ia the pea~r~y oE eh4 Cl~y. -4- A~reemen't, by an~ ~erson, ~rm or corporlt£on vh~ch has ~rovide~ section 2.9. or agent o~ the O;erator shal! contract directly O~ tndtrectLy~ written approval o~ the Ct~y. Section 2.10. D_~Aa.~A..~__C}~,X~.~=C- The Operator s~al~ caused by ~he negligence se. Lis employees. Such cost o~ repair shall ne~ be a reimbursable operattng expense. · ~ectlon 2.11. &q~Lqll_~,._~ ~ej~atl~Z- Nothing Ln thls Agrueme~t shall be co--as c.ea~n9 a tenancy be~een have ~h~ rlgh~ o~ occupancy ~o ~he ~mlse~ a~ any ~gt ~h~eo~. Section 3.t. ~~- ~he O~e~tor agrees to secure, gu~nlsh, train afl~ pay Eot all personne, as ara reason- ably necessary to be em~loyed in the success!al ap/ration o~ the Parkin~ ~a~. Any ~n~ all e~pl~ees of ~ha O~eEator, er o~her persons vhlie engaged lA the performance o~ any work or services required by ~he C~erator under this Agreement shal! be considered employees o~ ~he O~eza~or 'only~ an~ ,or employees o~ the C~y have an! contractual re~at£onahL~ vtth ~he C~tys and any and claims that may er might arise under the Workers' Co~pensa~l~ Act o~ the graco of Ntnnaso~a, or similar sec on behalf, el s&xa employees or other persons vhile So engaged In york o~ services provided ta be rendered herein, shall ::Y th. mole obligation and res~onsLb~lity o! ~he Operator. ICa~l lad locl~ la~s and ~egulaclans ~er~a/ning to dlscrlmina~Lon shall be ~nstd~ed a ~z~ a~ Agree~en~ as t~ more [ully se~ forth herein. Section 3.3. ~Onfle~~on~. The Operator -5- ...................... I '1l-1' i --II .... secvtcw adequate ~ mee~ ~ar~n~ 1~. : (bi ~o ~u~n~sh sa~d service ~n a fate, equal, and (el ~o salfl~ifl a ~iose ~nsu~ ~ha~ they sha~l d£scha~e ~'teL~ du~es tn · sa~e, p~em~ses ~QC ~he p~r~ee (a) ~c:~e~d~nac~ eepa~e and ~fleen~flcu o~ the latk~n~ R~ and - bede due any and tn~rr~ T .. - ~ ..... --,d4 of she tn~qres~ ef ce all such expenditures to the City on each Hatch l, September and December ! during the term oE this A~teement. Section S.~. ~n4g~. The Operator covenants g s n o ~ct oe the Opera,or an aeqLlgen~ act cc deed or any omis io t .... orYan~-se~ant, agent, or employee o~ the Operator tn cannect~on wi~h the operation oe the Perking Ramp undar this kgreemen~. The Operator eovenanes and agrees to deeend, lndemn£e¥, save, and keep the City hazmless agaLnst all liabilities, loeses, (inciudin~ eout~ and stenegraphlc costs and an amount in reimbursement o~ attorneys' tees1, damages, expenses, causes o~ action, suits claims dee.ends and ~udgments o~ any kind ct ~ ' ~ot nature vha~soeve: which may in anywise come agains~ t~e or :', eccoun~ of ~ersonal injuries or death, gro~ing out cc any ne~!.:~nt act cc ~eed or omission to act on the Operato~ servant, agent ct e~ptoyees o~ the Opera,ar lA t~e operation ce the ~atk[ng Ram~ under this Agreement. Section e.2. ~_a..~. The Opeta~ot Ihai~ procure and malnea/n coneinuo~sly in eeeect, during ~he ~erm o{ Agtae~ene, insurance o~ She ~lna and amoune ,,,eeielen~ t~ ce Minnesota. ~uch insurance required in this section shall be take, out and ma~n~a/ne4 tn cespensibls Insurance companies In the g~atm o~ Minnesota. ~eca~ar shall ~urnlsh the Cl~y a t~spectiv~ insutecs stating that such insurance is in ~otc~ and etEeet. ~TlCb~ VII ~~OH shell surrender and e~rn over ~ssession o~ the Parking Ra~ premises ~o the Ciey in the same manner ant condition as received ~he premlsee, excepting reasonable ueat and teat and damage by agreed between ~he parties hereto ~a~ in ~ne even~ ~he Ramo tS deset~ed, vacated, or abandoned, or tt t~e Operaeot lhall -7- .............. l"1-1 I Ii .......... fe~.l, oa 7 3 ......... - &nQ~he~. latdln [old,sql Zne. . '! Y ........... 'el or demand, tt eh~l ~e vlth thi. Agreement and all ~avs a~d ordinances Iff e~tect which may hereaE~er be adopted b? and for the tit? ee Columbia .Belghts. £veflgon ~nder the 8venice Contrast, ~utluane ~o ~he ~venson ~.C', ,hleh ,ul.. and t,gul.tion, may ,tom ~£ma eo ~lm. b, chanqed. not be assigns' or ~tans~er~ed In ~hole or In pat~ vit~oqt the ma vtthou~ ~etml'slon o~ the City. sectto, s.s. &aa.L~ma~b.U~~;L:t_~:__ ~e City's option m~y be assigned cc ~can~err~d in whole or La par~ Opera~ot. term cE this Agreement, all or any part o: t~e be destroyed cc damaged Etom any cause, ~he City eay~ ae option, cance~, modify, cc suspend 'the operation o! t~ls Agree- ment upon three days notice eo the Operator. ~o~ a petioa ~ f~ ~ - · ..... e~a~ot a~tee* that the days' no, lee et sucm rtn~az.~_J~_~,n o~ ~iS Agteemen~ extend The O~ecator agrees ~ha: by eneec[nq ln~o ~h~s ~gtee- ddl~onxl tLgh~S cc pt~vilege* tn ~he men~ Lc obtains no a ....... ,-- e--m~ and aero-, ~hat eno City has fle~ vaive~ or abrogated any ~wer -g- ,tn~i 'l l'l'l, ) 9S ) - A~'lUe~e"kfleW"J~ ~011, t~C~D~C, Ikl'XoM Of be~;eeu oho pt~ S-etlon 1. ~e~. ~e rem e[ thi* Nedi[ieeelen Agr~,men~ ~h*ll b~in en ch4 da~e hetee~ ted ,hall ez~e.d for ~h, ~emmtmin~ dursclon of ~hm Msnmqem~n~ Agreem~ne ................... I I"-! I II ~o ~mi~mn ~on rea,test o~ ~aAdan. f ..... t'-l-! 'I riO. ANOKA COUN~ MINNESOTA 0 ~t~ ~m WA~ ~Y REcOno~. ~OW~ Al. ABSTRACT ].295199.0 JI~B E~ TRJItC~T ANOKA COUNTY MINNESOTA FILE IN TORRENS IqETRO I-EGAL-SEIIVJ:CES ZNC THE T Oltl ! iqPLS,, IqN 55401 "EXHIBIT D" ~: .... TABLE OF coIrrENTS PREAMBLE RECI'FAI,S Page 1 PART I LF, ASE OF TIlE PLAZA PROPERTY ARTICLE I DEMISE OF WALKWAY PROPERTY Section 1.01. l)cmise of Walkway Property ARTICLE II TERM AND RENTAL Section 2.01. Term .... Section 2.02. Rental payments. Section 2.03. Sale to Redeveloper . Section 2.04. First Refusal Rights. AR'FICLE 111 USE OF WALKWAY pROPER'FY Section 3.01. Ocnernl fl ...... Sect%on 3.02, AdvcrtLMn~t gn~ ............. Sect{on 3.03, Compllnncc w}th [,nwa .... . .... ' ' ' $¢c{{on 3.04, Right to Contest Laws . · . ......... 4 ¢ ARTICLE IV MAINTENANCE AND REPAIR Section 4.01. Maintenance ....... Section 4.02. Repairs and Replacements · · · Section 4.03. Alterations · ' Section 4,04. Damage by Redeveloper ..... Section 4.05. Repairs and Replacements Done by Agency Section 4.06. Damage by Agency · · ' 6 6 6 7 7 $ ARTICLE V 'FAXES AND UTILITIES Section 5.01. Payment o[ Utilities. Section 5.02. Tnxes nnd Assessments . Section 5.03. (~ontestr; 9 ARTIICLE VI INSURANCE Section 6.01. Ins,rnnce .... Section 6.02. Insurance Proceeds; Restoration Section 6.03. l,iability Insurance · Section 6.04. General Requirements , · 9 9 10 10 ,ARTICLE VII EMINENT DOMAIN Section 7.0I. Total 'raking . Section 7.02. Partial 'Faking Section 7.03. Other Damages Section 7.04. Right to Appear . 10 ll II ll (ii) PART II MANAGEMENT PROVISIONS ARTICI,E t CONS'I'I~.UCTION AND USE OF PARKING RAMI:' Section 1.01. Construction of Parking Ramp ...... Section t.02. Use of Parking Ramp ........ 12 12 ARTICLE II MAINTENANCE'AND REPAIR Section 2.01. Maintenance, Repairs or Replacements Done by Redeveloper ........ Section 2.02. Damage by Redeveloper .... Section 2.03. Maintenance, Repairs and Replacements Done by Agency · · · ' ' ' Section 2.04. Payment by Redeveloper ...... ARTICLE III INSURANCE Section 3.01. Insurance ...... ' n Section 3.02. Insurance Proceeds; Restoratlo · Section 3.03. l,iability Insurance · · Section 3.04. General Requirements · · · 13 13 13 14 14 14 15 15 ARTICLE IV EMINENT DOMAIN Section 4.0l. Taking by City or Agency · · · Section 4.02. 'Faking by State and Federal Government. Section 4.03. Other Damages ..... Section 4.04. Right to Appear · 15 16 i7 17 TERM, Section 5.0l. Initial Term Section 5.02. Renewal Options ..... Section 5.03. Redeveloper's Option to Purchase ARTICLE V OPTION TO PURCHASE 17 17 (iii) PART III GENERAl., PROVISIONS A RTIC I,E I SPECIAI, COVEI'IANTS Section 1.01. Nondiscrimin~]tion · · Section 1.02. Warranty by the Agency · Section 1.03. Conflict of Interest · Section 1.04. Termination by Redeveloper · Section 1.05. Rele~tse of Claims · Section 1.06. Extent of Obllgations of Agency a~(l City ....... Section 1.07. E.,(,ent of Obligations of Redeveloper . 19 19 19 lg 20 20 20 Section Section Section Section Section Section Section Section ARTICLE Ii I.)EFAUIYI' AND ADDrFIONAL PROVISIONS 2.91. I)efault · . · ' 2.02. No Remedy Exch,sive .... 2.03. 1'~o AdditionM Waiver Implied b'~ One Waiver. · 2.04. Conflict of Interests; Agency Representative Not Individually Liable ...... 2.05. Hotices and Demands 2.06. Duty to Act Reasonably. 2.07. Severability ..... ' ' ' 2.0~. As.~ignable by Agency; SUccessors and Assigr~s; References. 21 21 21 21 22 22 22 Signatures Aeknowledglnen Ls Exhibit A l,egnl Description of the Parking Land Exhibit B I,egal l)eserlption of the Walkway. Land Exhibit C Map of Parking Land and Walkway Land ' (iv) MANAGEMENT AGREEMENT Al,ID LEASE ,OUS G ACt) Au" - AND R 'IIF CITY OF COLUMBIA }IEIGIITS, a pubhc body corporate established p~u-~tlant to Laws of Mimmsota 1947, Chapter 487, ns amended, being Minnesota Statutes, Sections 462.411 - 462.711, and having its principal office nt 5 -40th Avemm Northeast, Columbia Height, Minnesota, its successors ". g '. .... :._ ,,._ ~,.~ ~r Minnesota and with his business address at 35S0 Lexinglon Aven,e North, Suite 104, Saint Paul, Minnesota ~112 (hereinnfter referred ~o ns the "Redeveloper"). WlTNESSETII 'rtlAT, In consideration of U~e mutual eovennn~s heroin contained, the parties hereto recite end agree as follows: Recitals and Redeveloper have hereto[ore entered into a certain _ . T.he. .... , -,ne,,t-dated Ju,e l, 198 (the Contract lOt urivute ~u~-~. -' ...... , --~.,t in the City ol ,, ' etlon wit~ a reaeveloplnent F-vJ~ ~ - Contract ). m conne ' '. · net lleigllts, ~li,{nesota, known as the Downtown C.BD. Rev~tnl~zntion Pro] (hereinafter referred to as the "Project"). Pursunnt to the Redevelopment Contract the parties have, inter alia, nEreed that the AEc,mY slmll constrtict a 369-stall parking ramp (the 'q~t'~]",~' Ralnp") upon the land described on Exhibit A attached hereto and made a part hereof (said land is hereinnfter referred to as the "Parking Land" and the Parking l,nnd and Parking Ra~,p are l~ereinafter collectively referred to as the "Parking Property"), together with an open pedestrian walkway (the "Pedestrian Walkway") connecting said Parking Ramp to the adjacent improvements to be conslructcd by Redeveloper, upon the land described in Exl~ibit B attached hereto nmi made a part hereof (said land is hereinafter referred to as the "Walkway Land" and thc Walkway l,and and Pedestrian Walkway are hereinafter collectively referred to n~ the "Walkway proper fy"). Also pursuant to said Redevelopment Goat}act the Redeveloper has agreed to build upon certain lands adjacent to the site of the Parking Property and Walkway property certain improvements, designated therein as the "Minimum [inprovelnents." The parties have further agreed pursuant to said Redevelopment Co~trnct that the Agc,,cy and the Redeveloper shall agree upon the terms of a [nann~cmcnt agreement, to be entered into between the parties upon completion of of said Parking Ramp and pedestrian Walkway. In order to of[er adequate parking space for thc tenants, t)usine:;:; in,.,itecs, licensees, agents, employees, [uests, or other persons lawfully having acccs~ to the office building which is a part of the Minimum Improvements as defined in tho l~tedevelopme,]t Contract, it IR necessary for the Agency to provide for the construction of the Parking Ramp and Pedestrian Walkway, to provide for the management of the Parking Ran]p, and to provide for the lease of the Pedestrian Walkway 1o the Redeveloper. The Agency and the Redeveloper are desirous that the Pedestrian Wall,,way to be constructed by the Agency as an open plaza area, and the Parkin.F, Ftnmp, and any other elements of the Parking Property and Wetlkwny Prope.'ty shall be operated n,~d maintained in n fashion satisfactory to both parties. Each of the parties has authority to enter into this Mnnngemenl Agreement for Parking Facilities nad Lense at' the Plaza Property and has taken all actions necessary to nt, thorize its e×eeution and delivery. pART ! I,EASEOF TIIE ?LAZA PROPERTY A RTICI.,F~ I I)emise of Walkway_?_~pert~ · l)emist' of Walkway~' The Age.ey agrees to a,d Section 1.01 ~~~~~eveloper agrees to and hereb~ does tnk~ hereby does lense to ........ - . and accept from the Agency, the Walkway Propert~ situated in the County of Anokn~ State of Mhmesotn, nil ns more fully described in Exhibit B nttnehed hereto . with all buildings, structures nnd other im rovements now or n~rea),ter ..... inn Walkway, upon and suolect tu P . er which constitum u,e t-eaesw '~ --d sublect to the easements, thereund ....... t oa, ditions herein ex?esseo,.a- - , in E,-hibit B termS, covennn~ ?i .... '~'~"-er matters, if ~y, which are set forth encumbrancos rlglltS 8~ ou~. "" hereto. ARTICLE II Term and Rental Section 2.01. Ter~n. To have and to hold the Walkway Property unto the Redeveloper, [or an {niti~ term (the "Term") at ninety-nine (99) Lensehohi Years beginning on the 1st day of December, 1982, and contimdng from such date beginning through the 30thdayof November, 7081. Leasehold Year mennsnperi°d of twelve (12) consecutive months beginning on the date of commencement of the Term or beginning on nny mmiversnry.thereof- ental payments. The Redeveloper shall pay to the Agency as Section 2.02. ~a~ ~e Walkway Property the sum o[ One I~o}lar rent for the use and ' ($1.00) pe~ I~casehold Year, payable h~ advance, on or before the and every Lensebold Year o[ the Term, commench~g on the First 0ay o[ the Term hereof, and, thereafter, on each anniversary of said date. . er. If, during the term of tiffs AgrCcment, · ~ Sale to lledey~ . t in the Walkway p~;pcrty, or Secbon 2.0.. _ _--~- wnerslu lnteres ~ s desirouS~ selling ~ts o P .. - - .... nhd thc Agency can ed COlldJ Lions, the A~ency .... r ,,,Ira er or not upon preserlo ill writin~ of its any portion tl.:r.v., ..... th Agency lawfully sell },he same, the Agency sl~ notify the Redeveloper interest insm.h asnle- The Redeveloper may elect to negotiate with the delivering written notice to the a wn Property by ' of the nbove- urchnse of the W lk Y . n s after receipt for the p. ', _,~;~,,, within thirty (30) d y ......... ~ n,o Rcdcvelopor nnd ..%~..c~__., written notice Irom me ~b~?~J'__r ~.-ood faith relerenceu · ..... ~;.t~ t e termS lllereuL -~ B., . ~o ~h.ll n t ~,~,mv a~ree TO n~v,,~-~ _h ... -:~,~ ~'t,;s Section z.uo ~,,,.y ..o .~;. 7~.~j:~m~i,,g n sale, if reasonably.po~s~'~:~ ~ of Columbia lle,ghts, r,-o,,, to (the "City) or ns:;igmnent o~ uns ~ 'on 2.04. First RefusalS- Befor. e the Agency tranSfer~ the title all or nny p,u~ ,, ~ Property to a thwd party, it shall, in writing to the /:"l~¢developcr, offer to transfer all or such port thereof to ihe Redcvel(~i'~:r same terms under which the Walkway Property or such part thereof would be transferred Io such third party. If, within sixty (60) d~ys ~[ter the Redeveloper receives such offer in w~iting, it notifies the Agency of its desire to purchase the Walkway Pr~)l~'~rtY or such p~rt lhereof on such terms, then the Agency shall sell the Redevclcp('r thc W~lkway ~ropcrty or such part thereof and shall convey title thereto to tim Redeveloper, oil on such terms. If the Redeveloper doe~; not notify the AEencY within snid sixty (G0) dnys that it desires to pnrohnse pllr~;~lant hereto~ the A~ency m~y sell to su~:h third party on the terms offered to the but if any clmnge is made in such terms the ~alkwey Property or such part thereof as would be trnnsferred sh~ll ~ain be offered to the Redeveloper for the period and in the rammer herein stated end on such changed terms. If the eonsidernlion which the Agency is prepared to accept for the transfer of title to the ~nlkwny Property or s~ch pnrt thereof to o third ~rty is of a nature that the ~edevnloper ~ener~ily could not be expected to duplicate it~ then that consideration will be converted into a c~sh equivalent and the ~edeveloper will be ~iven the opportunity to purchase ll~e Wnlkway Property or s~eh pert thereof, bnsed on llmt equivalent. This right of first refusol shall not apply to any transfers between the Agency end lhe Redeveloper or the A~eney ~nd the City, but shnll ~pi~ly to transfers by the Agency to m~y other party or p~rties. This right of first ref~mnl slmll be bindi~ upon all successors and assigns of the A~ency, and sl~nll eontin~m in force as to ~ll such successors end essi~ns~ even though it is not exercisal~le or exercised ~s to nny one or more transfers. Anything herein to the nntwithst~n, li~, no such offer to transfer need be made by the A~ency t~) the lledeveloper while an Event of Default by Redeveloper exist:; n~d~.r A~reement. Anyimrt(or ~11) of the Walkway Property transferred to n tldFd p~rty nfter offerin~ lhe snme to the Redeveloper pursuant hereto shnll yet be s~l,j~t to this A~reement. This Section S.04 shew not apply.to ~ conveyance of the Walkway property to the City or ~i~nment of this A~reement from the Agency to the (;ity. ARTICLE Use of Walkway_pro. per_tY . Section 3.0l. General. During the Term, the RedeveloPer shall ,,~;o and maintain the Walkway }~Y in the manner and only for the purposes ns provided in .this A~reement. The Redeveloper shall at all times allow the free usc and enjoyment of the l, edestrian Walkway by the general public and shall not restrict the public nc(:css thereto, subject to such reasonable rules and regulations a~ the Redeveloper shall establish for such accel, use and enjoyment. The ~edeveioper shall, at its sole cost and expense, keep the Pedestrian Walkway area free from trash and debris and remove all ice and snow from the Pedestrian Walkway and shall keep nnd maintain trees ond other landscape vegetation thereon trimmed, watered, and in good appearance and condition. Secti(m 3.02. Advertisin~gns- The Redeveloper shall not place or permit to be placed or mainta[~{~ ~lacard, lettering or advertisinK matter nny s~gn, COU]ll]erc~nl i]ntHrc u~on or in any building, structure, or other portio'ns of the Walkway property except as shall have been first approved i'n writing 1.,y the Agency, except that the Redeveloper Inay sign the Walkway Pro~erty in such ' t manner ~ it determines necessary or desirable for effic~en operation and ma}ntenanee tl~ereof. '/ ct~oa 3 03 Compliance 'with LawS. Subject to the provisions of S~.,,.:tion Se ' ' '.~ _,.._i__ ,t.,. ~rm of this Agreement, shall promptly ,, ' ' ws. ordinances, orders, rules, regulations and reqmrements of nil .,y.j w~th nil la . federal, state nnd local governmentM authorities, boards, and commissions and departments thereof (all being herein together called the "Laws"), which are applicable to the maintenance, operation, use and occupancy of the Walkway Property. Section 3.0,t. Right to Contest Laws. fa) Notwithstanding any provisions this Agreement to the Contrary, including, without limitation, Section 3.03 hereof, the Redeveloper shall have tile right to contest by appropriate le[nl proceedings the validity or application to the Redeveloper or the Walkway Property, of nny l,nws of the nnture referred to in Section 3.03 hereof pa~ed, adopted, enforced promulgated by any authority other than City, or by uny board, commission or department other than those of City; provided: (i) the Redeveloper shall u~e its best efforts lo notify the City in writing not less than ten (10) calendar days before initiating such proceedings and give fur details as to the tribunal in which the proceedings are to be filed, the provision or req, irement to be eonles.te(t nnrl the nature of the contest; (ii) the legal proceedings shall be conducted without cost or expense to the City or the Agency; (iii) compliance with the Law or l.n~'zs to be contested will be legally held in abeyance during the proceedings, and/or the City nnd the Agency will not be subjected, during the proceedings, to any civil ii,bility, or the risk of any criminal liability whatsoever, for the failure to therewith, n,d no lien or charge of any kind shah be incurred against the Property or nny interest of the City and/or the A~eney or the Redeveloper therein during the procee(lings; (iv) the proeeedii~Es shall be prosecuted with 'all due diligence; ~nd (v) tlpon final judgment in or settlement of the proceedings, the Redeveloper will comply with such Law or Laws so contested io the e~tent required by the final judgment or settlement, and witl pay any lien or charge against the Walk,uny Property or any interest of the City and/or the Agency of the Redeveloper therein, nnd will pay or perform any civil liability a~ninst the City and/or the Agency or the Redeveloper resulting from such contest, all pars,mat to such final jud~,,ent or settlement. (b) Notwithstnndin~ any provision of this Agreement to the Contrary, including, without limitation, Section 3.03 hereof, the Redeveloper shall have the right to contest the validity of or application to the Redeveloper or the Walkway Property of any I,nws of the ~mture referred to in Section 3.03 hereof, which may hereafter be adopted, passed, enforced or promulgated by the City, or any of its boards, commissioners or departments which eonfUct with, or nullify in whole or in part, any provision of this Agreement, or which will impose an additional burden or additionnl liability on the Redeveloper. (e) The Redeveloper shah not be in default under this A~l-ecmcnt for noncompli,nce with any one or more Laws while the Redeveloper is contesting stlch Laws pursun~t to this Section 3.04. ARTICLE IV Maintenance and Repai__r Section 4.01. Maintenance. During the Term, Redeveloper assumes the and sole respo,~sibilitv for ~i~ndition, repair and m~intenance of ~he Walkway Property, whether structur~l or nons~ructural, ordinary or extrnordi~mrY, and whelher foreseen or unforeseen. Sectio~ 4.02. Re nits ~nd R~ements. (a) Duri~g ~heTerm, Redeveloper shall be responsible ~ ~ary rep~and replncemen~ Io ~he Wnlkwa~ Properly, including the structural elements ~hereo[; subject, however, to the provisio~m of ~ections 4.OS and 4.08 hereof. All repairs ~nd replacements shall be at ~e~st equal in q.nJity to the original and performed in ~ workmanlike m~nner. ..... ,:-- tram the Agency th,t it (b) UD n receipt at nut ........ ~, v lo ltlltllt of Redeveloper under th~s m~eement, a,u ~ J °bligati°nSo[ and timing of such repairs or replacements, the Redeveloper agrees of, extent (if such repairs or replacements are the obligation of Redeveloper Under this Agreement), that it ,hill, subject to Unavoidable Delays, cause the same to be accomplished within the time periods set forth in said notice, unless within fifteen (15) days after receipt by it of such notice gives written ~otiee to the Agency that Redeveloper objects to the need for, extent of or timing of the repairs or replacements set forth in the notice from the Agency. If Redeveloper so objee~, and if the Agency and Redeveloper cannot agree on the need for, eztent of or timing of any structural repairs or replacements, then Redeveloper m~d Agency shall each se!eel a professional engineer registered and licensed in Minnesota, nnd the two engineers sha~ select a third engineer registered ~nd licensed in Minnesota · rmine the need, if any, for such repairs or and such third e~neer.sh~'~ ~e~in~ thereof, ,nd Redeveloper ~nc.~ the shall be barred by tl~e repor~ o~ ~-,,, ~,,~ ...... , '-; ' such repair nnd replacement if deei.ded by said engineer to be ~eee~ry, nnd to the extent nnd within the time period or periods determined by said engineer, subject, however, to Unavoidable Delays; provided, Redeveloper shall have no ot)ligntions to make any such repairs ~:replneements which, by such report, are to be clone subsequent to expiration' 6f the Term. The Redeveloper shall pay the east of obtaining Stl~:h report from such engineer. This Section 4.g2(b) shall not apply to repairs or replacements required to be done b~ the Age~ey purstmnt to Sections 4.05 or 4.06 of this Pert I of this Agreement. Unavoidable Delays men,~s which sre the direct result of casualties, war, civil commotion, embargo, strikes, litigation a~lt] all other causes or events which are beyond the rensonnble control of the Redeveloper or the Agency. (e) The Agency shall have no responsibility for repairs or replacements except as specifically herein provided. Nor shall the Agency have any obligation hereunder to inspect U~e Walkway Property to determine the neeessiW of repairs or replacements. . . 03 Alterations (a)Monstructural AlteratienP' Section 4. · ~~' ~ · - edestrian sh~l have the right to do nonstruetur~ remodehng of the P to make nonstruetural substitutions, additions, modifications, deletlons and improven~ents to the W~lkway Property, from time to time as tt, in its discretion, .'/~,~a~ deem to be necessary or desirable, provided, however, that the u:;e$ nnd purposes of the Walkway Property shall not be ehan~ed. The costs of such remodelin~,.substitutions, additions, m~ificatlons end improvements shall be paid by Redeveloper, .nd such substitutions, additions ~nd improvements slmll be included under the terms of this Agreement as p~rt of the Walkway Property and shall become the property of the Agency, but as between the Agency nnd the Redeveloper, the Redeveloper shall retain all available tax credits, deduction~ and benefits thereof. (b) Structurnt Alterations. The Redeveloper shall not m~ke or do nny structural remodeling or m~ke ~ny structural alterations, mod~fieation~ or additions in or to the WMkw~y Property without the prior written ~pproval of the Agency and then only in accordance with such technical specifications, prnetiees and other conditions as may be re~smmbly required by the City Engineer. Ail structural alterations, modifications or additions in and to the Walkway Property shall be deemed a p,rt of the Walkway Property and become the property of the Agency, in the absence of ~greement 'to the contrary or unless the Agency shall require, at the time of granting its approval, that Redeveloper shall remove the same at the end of the Leasehold Term and restore the Leesed Premises to its prior originally existing condition. In ~ny event, as between Agency and Redeveloper, Redeveloper shall retain all available tax credits, deductions and benefits thereof. Section 4.0.1. Damage ~y Redeveloper. The R~developer, sul,jcct 'to Un~voidablc Delays, sh~ll repair promptly any damage to the W~Ikwny Property e~used by the negligence or intentional ~et of its employees or agents netinff within the scope of their employment or performance of their duties on belmlf of the Redeveloper. Section 4.85. Repairs and Replacements Done by Agency. If the Agency is legally req~dred to m~ke or do any repairs or replacements to the Walkway Property ~which the Redeveloper is obligated, by this A~eement, to make or do, then the Redeveloper agrees that the Agency may make or do such repairs or replacements. If repair or replacernent is done or e~used to be done by Agency pursuant hereto, (i) it shall be at least equal in quality to the originnl nnd ~lmll be done in a workmanlike manner, (ii) the Redeveloper shall have the right to ~pprove the plans ~nd specifications for the work before approval thereof by Agency, to inspect ~nd ~pprove the work before acceptance by Agency, to inspect and approve the work whell completed before final ~ceeptanee by Agency, and to approve work schedules to avoid unnecessary interference with the operations of the Walkway Property and Minimum Improvements, (iii) the Redeveloper shall provide the Agency with monies sufficient to pay the reasonable cost of such repair or replacement, ~nd (iv) the Agency shall cause such repair ~nd/or replacement to be promptly al,ne, subject to Unavoidable Delays. If the Agency is ready and willing to ~pprove mini accept any part of the work, or to give its final ~cceptance of the work, but the Redeveloper withholds its ~pproval ~nd ~cceptance, then the Agency ~grees not to give its approval and acceptance until the Redeveloper also cgrees to give its approval and acceptance. The Redeveloper agrees to hold the Agency lmrmless from any loss, cost, damage or expense, including mechanics' liens, arising out of the withholding by the Agency of its approval ~nd acceptnnce d~e to the Redeveloper':; withholding of its approval and acceptance. . la s at its own expShse shaH: (a) repai~, replace or restore any portion of the is re o ed or dismanUed by the City or tl)e ~gency..m wamway r,~t~,,~ ' ' --meats to or eonstructinff or reconst,'ucting, me making any repmrs or replace , existing City utilities or future City utilities or to the public streets; and (b) repair or replace any part of the Walkway Property damaged by the negliffene¢ or intentional act of its officers, employees, agen~ or contractors acting within the scope of their employment or performance of their duties on behalf of the Agc,cy. Agency shall use its best effor~ to ensure that repairs, replacements and restoration done by Agency pursuant to this section, will be done with (hte (liliffpnce and in s,ch ,nnnner ns to cause as little interference as possible with the operation of the Walkway Properly and Minimum Improvements. ARTICLE V Taxes and Utilities Section 5.01. Payment of Utilities. Tile Redeveloper shall pay, 'or cause to be paid, promptly before th.e same shall become delinquent, all charges for gas, water, steam, electricity, light, heat, air conditioning, power, telephone or other service or utility used, rendered or supplied upon, or in connection with, tile WMkway Property during the Term and will save the Agency harmless against any liability or expense for any such charge. Section 5.02. Taxes and Assessments. It is specifically up. dersto'od nnd agreed that real estate taxes or ad valorem taxes will be a~sessed, levied and imposed against the Walkway Property during the Term. The Redeveloper agrees to pay, before tile same become delinquent and before any pc,miry, interest or easts may be added thereto for tile nonpayment thereof, ail real estate or ad valorem taxes assessed or levied upou the Walkway Property, or any part thereof, during the Term, and which, if not paid within the Term, wouht be considered delinquent within the Term. 'File Redeveloper agrees to comply with the provisions relating to real property taxes contained In tile Redevelopment Contract with the Agency and tile provisions of any Assessment Agreement entered into by the Redeveloper with the City Assessor or other governmental or assessing authority. The Redeveloper shall pay, before they become delinquent, all installments of special assessments and any other governmental charges, general or special, which may be assessed, levied or imposed upon or with respect to tile Walkway Property or Redeveloper's interest therein, during the Terrn, and which, if not paid within the Term, would be considered delinquent within the Term. The P, edeveloper agrees to furnish the Agency within ten (10) days after written request therefor, satisfactory evidence of proof of payment of any tax, assessment or charge to be paid by the Redeveloper hereunder, 'unless the same is being conlested pursua, nt to this Agreement. ,/ Section $.03. Contests. S6bjeet to the limitations set forth in tlw. Redevelopment Contract and nn~ Assessment Agreement between the Redeveloper ond the City Assessor or other ~overnmentnl or n~se~ing authority, the Redeveloper may contest, in good faith and with due diligence, real estate taxc~, special assessments, niility charges and other governmental charges after first notifying the Agency in writing of its intention to do so and furnishing the Agency n bond or other sec~rity reasonably satisfactory to the Agency to protect the Agency against ,ny risk, claim or damages 8rlsing out of such contest, unle~ thc Agency shall reasonably determine that by such contest, and notwithstnnding such security, the interest of the Agency, as owner, in the Walkway Property will be materially endangered or materially adversely affected. The Redeveloper shall not be in defa~t under this Agreement for nonpayment of ~ny tax, assessment or charge hereunder while such payment is being contested I)y the Redeveloper pursuant to this Agreement. ARTICLE VI Insurance Section 6.Ol. Insurance. The Redeveloper~ at its sole expense, shall keep tile Walkway Property insured against direct damage covering all risk of loss, including but not limited to fire, extended damage perils, vandalism and malicious misehio, f, and collapse, on n replacement east basis in ~n amount equivalent to the frill insurable value thereof. Full insurable value shall include tile acttml rel'~lace~ne"t east of the improvements, architectural and engineering fees, without deduction for depreciation. 'File policy shall be subject to a no eo-ihsuranee clause and shall contain no deduction provision. The Agency and the Redeveloper shall be named as insured parties as their interest may npl-,enr, nnd the policy shall provide that it may not be cn,e.eled without at least thirty (30) days prior notice to the Agency and the Redeveloper. Section 6.02. Insurance Proceeds~ Bestoration. (a) If any part of the Walkway Property is damaged.or destroyed by fire or any other insured casualty, tile entire proceeds of rdl insurance which are payable by reason of such damage or destruction shall be used to restore, as promptly ns possible, the Walkway Progerty to as near tile condition which existed immediately before such damage or destruction a.~ is reasonably possible. (b) If the Walkway Property is to be re,tared pursuant to parngrnph (n) above, tile Redeveloper shall promptly proceed to repair and restore tile same to substantially the same condition ms existed before such casualty and shall receive the insurnnce proceeds for such purpose and shall pay all easts incurred therefor from the insm'o_nce proceeds. Any repairs or replacements undertaken pursunnt to this Section 6.02 shall be at least equal in quality to the original and shall be done in a workmanlike manner. The Redeveloper shall be entitled to retain all insurance proceeds paid ns a res~flt of such casualty In excess of tile cost to repair and restore. Neither the Agency nor tile Redeveloper shall be obligate(] to provide any funds or expend troy monies from any source for the pm-pose of such restoration nnd repair, e×cegt amounts received and available for such purpose from insurance proceeds. (e) If the insurance pr.oeeeds paid as a result of such casualty exceed the sum of $5,000.00, tile full amount thereof shall be held by an escrow agent mutually saris, factory to the Agency and tlre Redeveloper and shall be disbursed in connection with repair and restoration in a manner reasonably agreed upon by the Agency and the Redeveloper suitable to insure that the funds will be used for such purposes and that proper and full payment is made therefor. Section 6.03. Liability Insurance. The Redeveloper shall t)roc~,re and maintain continuously in effect, during the term of tills Agreement, policies of insurance of the kind and minimum amount as follows: Comprehensive general liability insurance in amounts of not less than (a) 5300,000 for injury to or death of any one person; (b) 51,000,000 for injuries or deaths arising in any one occurrence; and (e) 51,000,000 for property damage in any one oecurrenee~ occurring on the Walkway Property or arising out of the use thereof, but the policies also may have annual aggregate limits of not less than 51,000,00~. The Agency shall be an insured party and tile policy shall provide that the policy may not be cancelled without at least thirty (30) days prior notice to tire Agency and tile Redeveloper. Seclion 6.04. General Requirements. All insnrance required u~(ler this Article shall be placed and maintained with responsible insurance companies licensed to do business in the State of Minnesota. The Redeveloper shall furnish the Agency with a eertifieate or certificates of insurance evidencing the coverages required and that such insurance is in force and effect. The insurance required may be provided byablanket insurancepolieyorpolieies. EaCh policy of insurgence shall contain a provision that no act or omission of the Agency or the Redeveloper shall effect or limit the obligation of insurer to pay the amount of a'ny loss sustained and shall contain the standard form of waiver of subrogation by tile insurer. The Redeveloper and the Agency each hereby waives any and all rights of recovery against the other,, and against the officers and employees of the other, for loss or damage to the Walkway Property, to the extent of any insurance proceeds realized as a result of such loss or damage. ARTICLE VII Eminent Domain Section 7.01. Total Taking. If, during the term of this Agreement, the entire Walkway Property shall be acquired and taken as a result of the exercise of the power of eminent domain, or if less than tile entire Walkway Property shall be acquired and taken but, in the reasonable judgment of the Redeveloper, tile remainder thereof is no longer useful for its intended purposes or the Pedestrian ~qalkway cannot be rebuilt and used in a practical way for the purposes for which the same was originally constructed, then, without tile further act or deed of any par~y hereto, this Part I of this Agreement shall terminate as of the date tire condemning authority takes physical possession of the Walkway Property or a material portion thereof. If this Agreement is so terminated, the condemnation award shall be divided between the Redeveloper and the Agency as follows: (a) The Agency shall first receive, as its property, a Sum equal to (I) the price paid by the Agency for the purchase of the property on which tile Pedestrian Walkway is located, plus (ii) the direct east paid by tile Agency to suppliers of material, equipment and labor for actual construction of the Pedestrian Walkway. 10 · " (b) Tl~e balance o{ the award, il; any, shall belong to and be paid to the ~-" l~edeveloper a.~ its property. / Section 7.02. Partial Takin_~. If, during the term of this Agree,new, t, lc .... than the entire Walkw'-~-Property shall be acquired and taken as a result of the exercise of the power of eminent domain, and, in the rensonnble Judgment of the Redeveloper, the remainder thereof can be used for its intended purpose and the pedestrisn Walk,ray cnn be rebuilt and used in a practical way for the purpo.~es for which tile Pedestrian Walkway was originally constructed, then the entire proeeed~. the of the eminent domain proceedings shall be made available to restore ?edestrian ~,~/nlkway to ns near the condition which existed Immediately prior to tile taking as reasonably possible in the same manner as provided in pnrngraphs hereof with regard to restoration and repair and(e) of Seeti°n 6.02 will the Redeveloper or the Agency, in restoring the eastmlty. In no event required to expend more money than the proceeds of the pedestrian Walkway, be award in the eminent domain proceedings. If there is any excess of 8wnrd over the east of restorntion, it shall belong t6 and be paid to the Redeveloper as its property. , Section '/.03. Other Damages. The Redeveloper and the AlgencY sh~11 eneh have the right to prove and ~t ~s their own property, damages other than for loss of business, the Pedestrian W~kway, such as~ but without limitation, relocation of business and personal property ~tnd appraisal fees. The Redeveloper also shall be entitled to prove and collect as its own property, all severnn,.:e damages due to severnnee of the Walkway Property ~rom other adjoining p.roperty then leased or owned by the Redeveloper. Sectio~ ?.04. ~' The Agency and the Redeveloper shall each · s e have the right, at their sole cost and expense, to part~mpat by counsel of its ov~n choice in any proceeding regarding the taking by exercise of the power of eminent domain of all or any part of the Walkway Property. pART 1I MANAGEMENT PROVISIONS ARTICLE I Construction and Use of Parkin~ arkln Ramp. The Agency ngreez; to .... ~,, Construction of~ - ._._z_~---. ~,,__ ,~*rkln~ Ramp shall be ~eeuon ~'"~i ~n~ Lan~. ~'~ ~ ~ .... f the ~ uct the Parking ~tamp ~,, ~,i_. ,,.~ ~develoDer and the tenants ~ eo~tructed and ~v~flnble lot use ~y completion ~nd partial initial Minimum Improvements on or before substantial . occupancy of the Minimum Improvements. m If the Redeveloper completes ..... * Use of p~ing~- ~ .... ~,,~ a Certificate ~eeuon ,.-~- .~~men~ and ~Z~=" · ........ aaa if the .~,,strue?o s defined in the ReoevemP"'~"Z~*'3~'X2.; ,t h-reef, then the ~geney Redeveloper is in eompUance ~'~" ~Krees to the following: , (~) tn order to provide for the most efficient use of the pnrki~,g ~nmp the ~ener~l public ~nd to assist in the redevelopment of the Project, bet~,ee,~ the usine~ D~y (~s her?innfter defined) hours of B:00 n.m. an0 ~:00 m. on every B .... ,_~,..~ h~ Redeveloper the year, the entire p~rking ~amp sh~ll, through the promm~. ..... ~ ' ' of re~sonnble rules and regulations, be reserved solely for the use of those members of the generol public ~ho ~re tenants, buslne~ invitees, licensees,-agents, employees, or ~ests of the Minimum Improvements. The term "Busine~ me~ ~ny Mond~y, Tuesday, Wednesday, Thursday or ~riday of nny week if such . or federal legal hoBday, f at any time subsequent to the date n state .I 1o er mutu~ly determine nnd agree d. ,~not eno and the Redev~ .P . embers of the general ~h~ ~reement the Ag Y . - :~ t,,]{~ utihzed by the m Z"-..~_ ~hw Ramo is not oe,.~ .~. in this Section~ public ~eSccibed In this Sect{on during'the periods of t~e described ten the 6~ency Bed the Redeveloper ~Sy eslSbljsh by ~ulunl n~coomont tho therms and conditions for permitting use of a port,on o[ the parkin~ Ramp by nil members of the general public between the hours o[ 6:00 a.m. and 6:00 p.m. on Bus~nessD y... .- · - -nd re~ulati°ns ~nd The A ency slmB promulgate r . for the use of the (b) ~ .... b~ fe~ and charges, ...... ~ ....~n~ Stat= nnd .~-+~.mlne any schedtlle el pB~,,,b . .,: ..... ~,, Saturoay, ~u,,,~-,~, Feder~ holiday and between the hours of 6:00 ~nd their that tenan~ o[ the Minimum Improvements day. Provided, however, to park without charge during any such day °r time except employees shall be ~lowed when the p~}rldng Ramp is closed entirely. . nd charges to be imposed upon users f arkm lees a of this c Any schedule o p ' g - . ~escribed In subsection (a) ' _ (.) ...... ~+ those periods of t~me.o _,.~n he established only as the ~arKmg ,t~,,,v 2Z ~-~nc" or Redeveloper ~"~" ~ _ ....... ~,, be ~te'i~'~ftle~2pr~ffidf~t. ne~o$~kit~g fees or charges of any kind Or natur= ..... imp~ed pursuant to this subsection unless Agency first determines that perking fe~ and charges are necessarY, ~nd obtains the written approval of Redeveloper for such fees and charges. The Agency may ~pply for such approvalby delivering 12 ...','o the Redeveloper in writing an application to apply a schedule of fees /-" charge9 pursunnt to this Section. The application shat[ be accompanied by the proposed schedule of Ices and charges. The Agency shaft provide such additional haII reasonably request with respect to such in[ormation a'.; the Redeveloper s ' ' of Section 2 06 o[ part Iii of.th}s application, t. lotw~thst~,ndIng the provisions '' Agreement, Redeveloper s approval of the applicat~on of the Agency shall be the absolute discretion o[ the Redeveloper. A RTICI,E Il Maintenance ~d Repai~ (a) Dr{chug tl~e ter{n o] tl~s Fart n at mt~ ,,~ ....... at, end sole re~ptmsibilit~ for all repair nnd replacement o~ the structural olements the Pnrkinff Ramp ineluding the foundation, ~etls~ parkinff decks and roof thereof and at the ~h~mbinff, elevators, lighting and he~tinff systems contained therein, whether fore~oen or unforeseen. All such repflirs end replacements shall be at least equal in quality to the originnl end perlormed in a ~orkmnnlike mnnner- Redeveloper'.~ obligations shell in no we~ diminish the Agency's responsibility Section ~.0S below. Upou receipt of notice from the Affeney tlmt it reasonabty deems such repairs or replacements described in subsection (e) o~ this Seetio~ ~.~ll nrc · '. tions o~ Redeveloper under this Agreement, and nece~ury to [uthll the o~iga _ ~ nd timin of such rep. nits c Unnvoid le Delays, cause the renl~ceme~,t~, the Redevet?e~ ..~ ,.~ ..... ;~= set forth in smd notie,, ~a~ne to be accomplished wtthmn u~e ~,,,,< v~ Redeveloper, within fi[teen (15) days after receipt by it of such notice gives written notice to the Agency that Redeveloper objects to the need for, extent at or timing of such repairs or replacements set forth in the notice from the Agency. Redeveloper so objects, and if the Agency and Redeveloper cannot agree on the need for, extent of or timing of any such renairs or replacements then Redeveloper ssion~l engineer registered n,d fiee,~c:d in nnd ~enev shall each select a ~rof~ .... ,, ~,~t ~ ih' d nrofessio,ml engi,,eer ~.._ Ao . ~ , ,,-- ,,.,~ o,,-ineors toffeu~er snail ~<,=~ ..... IF registered and licensed {n Minnesota, and such third engineer shall determine the need, t[ any, [or such repairs or replacements and the extent and timi,g thereof, and Redeveloper and the Agency shall be ~und by the report of said enginecr, and Redevelopcr shall accomplish such repair or replacement i[ decided by said engineer to ~ necessory, to the extent and within the time period or periods determined by said engineer, subject, however, to Unavoidable Delays, as such delays are defined {n Section 4.02 of Part I of this A~eement; p]ovided, Redeveloper shall have no obligation to perform any such repairs or replacements which, by st{ch report, are to be done subsequent to expiration of the Term. The Redeveloper shall pay the cost of obtaining such report from such engineer. {l~e A~encv shah have no responsibility for .such reimirs or (c) '.'. V ~, , ~ ..... ,-~eetion (nj of this Section 2.01. Seetio,~ 2.0~. Dam~e~Redevetop~-The Redeveloper, Unavoidat,le I.)elay~, sba~pai~ pro,nptly~damnge to the-parking Ra,n~ enu.,ed by the negligence or intentional act of Its employees or agents aeti,,g within the seo~e of their employment or performance of their dutl~ on behalf of the Redevelot,er. t3 /' ~' Section 2.03. Maintenance, Repairs and Replacements Done by A_~cy_. (a) During the term of this P~t Il of this Agreement the Agency assumes the full and sole responsibility for the operation and for the eondltio., fei,nh' and maintenonee of the Parking Ramp, Including without limitation, mninte,mnee of pavement markings, bu,nper guards and wheel blocks; melntenanee of gnte~ nnd b~rrie~des; mnlutenance of the premises in ~ elemn, presentable condition; removal of sno~, lee nnd other obstructions from the Parking Ramp and [ro~n driveways nnd sidewalks on the Parking Property; minor necessary repairs to the plumbing, lighting and heating, maintenance of aH direetlon~ ~d ln[orm~tlonal signs located within or on the exterior of the P~rking Ramp. RepMrs ~nd replneement~ undertaken hereunder by the Agency shah be at least equal in quality to the original ~nd shall be done in a workmanlike m~nner, and shall be prompUy undertaken by the Agency, subject to Un~vold~ble Delays, ~s such delays ~re described in Section 4.0~(b) of Part I of this Agreement. The Parking Ramp shall be maintained diligently ~nd in such a manner as to prevent unneeem~ary deterioration of the P~rking Ramp. (b) Upon receipt of notice from the Redeveloper that it reasonably determines that the Agency Is not properly mainlining the Parking Ramp in such a manner as to prevent unnecessary deterioration thereo~, which notice shall set forth specific aetlons that Redeveloper reasonably believes necessary for the proper maintennnee of the Parking R~mp, the Agency agrees that it will mntntnin the Parking Ramp or e~use it to be maintained In ~ manner reasonably acceptable to the Redeveloper. lf, Mter receipt of ~ueh nottee from the Redevelop.er, the Agency fai~ to take the specific actions reasonably requested by the Redeveloper ~nd If the Agency's failure to do so causes unnecessary deterioration of the Parking Ramp, then the Agency sh~ be Bable to the Redeveloper for the costs of repairing such unnecessary deterioration. Section 2.04. ~ment bf Redeveloper. (a) The Agency intends to subcontract its responsibility hereunder for the operation ,md maintenance of the Parking Ramp. Sub]eel to subsection (b), below, and sub]eel to the requirements of ~y applicable public bidding statutes, the Agency agrees to award such subcontract to a ~arty mutually agreed upon by Redeveloper nnd Agency. In such event, Redeveloper shall p~y directly to such party ~ they become due, any and a~ eos~ Incurred by the Agency pursunnt to such subcontract. (? Agency shaU have the rlght to o~erate and maintain th~ Parking , , eat A enev sh~ use l~ best effor~ to operate 'and maintain tn~ rot~,,,s .-_~ ~ ...... ,. ,~. beln~ ineurreo Dy me materially i. gher than the s~u~r...~?~,-,,,~'_'_ ,_ f~ture to the parking Romp. · orkin lacllltles 5lmllflr sl~ ua o erators of private p g , . ~_. ,~. A.~,~.~, the ooeratton and P 11 aH eos~ ~neurreo oy ~.~ ~.~ for Redeveloper sim pay ..... ,- ~.~me due. except to the extent maintenance of the Parking Ramp as suen eo~v 2~---* . .: ·" unreasonably higher than sxmll~r costs then that such eosL~ ~re .... ;__..~... r~-'litles sxmilar in nature to the Parking OWI~OFS OF operators OI private ~ut~x,,~ Rmmp. 14 ARTICLE II1 / Insurance ---------- .. ..... ,.In~ Ramp insured nsurane° The Agency shall ecg the .r,u,~., r. . . kludlng but not llmtted to fire, Section 3.01. lnsuran_~ I risk of loss,. [nc -- · nd collapse, on a ' st irect damage eover,n~ ~1_ ~.~ ~a~cioUS misch~ef, a og~-~_,_~ ~nmn~e ~erils, vanoausm ~"~ '" the fu~ insurable value thereof. ex~enu~ ..... amount equivalent to replacement cost basis In ~ Full Insurable value shall Include the actual replacement cost of the improvements, nrchitectUr~ and engineering fees, without deduction for depreciation. The ~licy shall be subjcct to a no c~insur~nce clause and shah contain no deduction provision. . edeveloper sha~ be named as insured parties as thcir The Agency and tl~e,~ ~ v sh~ provide that it may not be cancelled '- ..... and ~.= ~lico Agency and the Redeveloper- interest may op~=~-, prior notice to the without at least thirty (30) days surance pr°c~est°rati°n' (a) t[ any part of the parking R~mp is damaged or u<~ ~ of such damage or entire proceeds of s~ insurnnee which are payable by reaSOn destruct{on sha~ be used to restore, ns promptly ss possible, the p~rking Ramp to ~ near the condition which existed immediately before such damage or destruction as is reasonably ~ssible. . ~ _ursunnt' to pari~graph e air and restore the same to e parking Ramp is to be res~or-~ v (b) If th . ,, -.~ntlv oroeeed to r p ..... ,,., and shall receive dye the Agene~ sam, p,.y.'~-,~ ~xisted before mmn ~?s~i~ incurred therefor ab-_,~-,iall~ the same condlt~v~, ~ .... e and sh~l pay ~ cw~°_;_,.en nursunnt to StlDS~n~ J ..... oo~ tOF s~cn p~r~ ..... ~lne meats ~Ger~ the insurance p~ d An repairs ut [rom the insurance p~ocee-S. Y . · e original and shall b~ done this Section 3.02 shall be at loast equal in qunhty_L~,t, hho ;,titled to receive insursnee ~ocee~s ~i~ os ~ result o~ s~e~ e~s~Y in e~eess o~ ~he and restore. Meither the Agency nor the Redeveloper shall be obligated to provide any funds or expend any moni~ from any source gar the purpose at such restoration and repair, except amounts received and available for such purpose from insurance p oceeds. . _,..u ~rocure and r anee The gedeveloper ~""" ~ - , i,bllitv Insure- . · .-,- ~-~t II of this Agreem?t, ' 3. ~ ..... OI uu~ [~- ye Sectmn. 3." ._~~ct, during the term ._, .. tallows. Comprehe~t policies of insur.nc= ~' ' ' in any one Insuraneo in amounts ag not less than (a) $300,900 for genera1 liubility -erson; ih) {1,000,000 for Injuries or ~eaths ur~Smgoccurrence; Agency and occurrence; an(J parking Ramp or arising .,.~ ~.. have u~"~tl~1 ..~ ~,,,od on ties and earn pot,cy =,.~ Redeveloper uo~,, ~h least thirty (30) days prior notice to the A~ency and not ~ cancelled without at eRedevel°pe~' · '---uked under this s ons~ble Insurance companies ~o ion 3.0 · . ~ ---:-)- d with re p .... ,.~ furnish the ~ct laeeO and ,,,F,..=lne Tl~e Agency Article sh~t~ ~..~ness in the State ?[.M~e~t,~2 .... ncc evidencing the licensed to oo,~,~j oertliieate or eerti[mates oi Redeveloper w~u, ~ ~ 15 The i~uranee -coverages req~lired a~d that such insurance is in force and effect. required may be provided by a blanket instirance policy or policies. Each policy of l~surance shall contain a provision that no act or omission of the Agency or the Redeveloper shall effect or limit the obligation of i~urer to pay the ama,iht of any loss sustained nad shah contain the standard form of waiver of subrogation by the insurer. The Redeveloper and the Agency each hereby waives any and all rights of recovery a[a[nst the other, ~d against fha officers and employees of the other, for 1o~ or damage to the Parking Ramp, to the extent of any insurance proceed~ realized as a result of such loss or damage. A RTIC LE IV Eminent Domain Section 4.01. Taking_by City or A. genc~. (a) If, during the term of this Part II of this Agreement, tile City or Agency acquire Redeveloper's dntire interest in the Parking Ramp by eminent domain, or if less than the entire Parking Ramp shah be acquired and taken, but In ti~e Redeveloper's reasonable ]~,dgment the remainder thereof is no longer useful [or its intended purpose, Redeveloper may terminate this Part It of this Agreement, and Redeveloper shall notify Agency in writing within ninety (90) (lays of such taking whetller it chooses to terminate this Part II of this Agreement. If Redeveloper chooses not to terminate this Pa~'t II of this Agreement, the.par'ties shall proceed ns provided in subsection (b) of this Section 4.01 (b) 1[, during the term of lids Part II of this Agreement, tile Agency or City acquire by condemnation any part or all of Redeveloper's Interest in tile Parking Ramp, and this Part II of this Agreement is not terminated by Redeveloper, Agen.cy1 shall provide Redeveloper with substitute parking spaces, within a commerc)a ly reasonable distance of the Minimum Improvements, the number of whicl~ shall be equal to the number of parking spaces acquired by condemnation. If part or all of Redeveloper's interest in the Parking Ramp is so acquired at any time after the Minimum Improvements are fully occupied, tile number of spaces to be provided by the Agency hereunder shall be decreased by tile number of spaces, if any, which at the time of such condemnation were open to all members of the general public pursuant to the provisions of Section 1.0~(a) of this Part II of this Agreement. (c) Redeveloper shall reimburse Agency, f~)r the cost to tile Agency of providing Redeveloper with additional parking spaces pursuant to subsections (a)'or (b) of tills Section 4.01, but only to the extent of any condemnation award received by Redeveloper for the taking of its [Merest tn th~ Parking Ramp. Redeveloper shall retain the amotmt, if any, by which the condemnation award exceeds the Agency's costs for providing such parking spaces to Redeveloper. To tl~e extent, if exceeds tile at all, that Agency's cost for the additional parking spaces condemnation award, Agency shall be solely responsible for such costs. 15 section 4.02 'l'akinl[b__b~State or Federal Government. (a) If, during the term of this part I! of this Agreement, the entire parking Ramp stroll be acquired end taken by the state or [edera~ government ns a result of the exercise of the power of eminent domain, or if le~ thnn the entire Parking Ramp slmll be acquire~ end taken but, In the reasonable Judgment of the Redeveloper, the remoinder thereof Is no longer useful for its intended purposes or the parking Rnmp cannot be rebuilt and used tn a prsettc~ way for the purposes for which the ~ome was orig[noHY constructed, then Redeveloper shall notify the whether It chooses to · . ' 90 days o[ such condemnation terminate this pnr[ II of Agency w,thm_m~e? ~ ,~ ~reement. If it chooses t~the date the condemning terminate this part ~t o~ ~-~ th,sAgreementsuchterm~nat'°nshallbeeffeet've ~/dtn~mOr a material pert'on ...... ~ion of the parking . 1~ s~eml pos>~ nd nation ~w~rd shall be ~uthoritY lakes P Y . . terminated, the If this Agreement ~s oo U~ereo[. · divided between the Redeveloper ~nd ~he Agency os follows: 0) The Agenc~ shah first receive, ~ its property, a sum equal to (A) the price paid by the Agency for the purchase of lhe property on which the parking the Agency to suppliers of Ramp is located, plus (B) the direct cost paid by o[ the Parking Ramp. material, equipment and labor' for actual construction (ii) The balance of the award, if any, shall belong to and be paid to the Redeveloper as its property. If Redeveloper chooses not to terminate this p~t Il of this Agreement, the parties shall proceed as provided in subsection (b) of this Section 4.02. (b) lf, during the term of this Agreement, lem~ than the entire Parking of Ramp shall be acquired and taken ~ a result o[ the exercise by the state or federal purpose and government o[ the power of eminent domain, and, in the reasonable judgment . ' a tactical way for the purposes for the remainder thereof can be used for its intended the parking Ramp R~mp w~ origin~Y which the Parking ilable to the Agency (i) for the . -~,--~ ~h~ be made Ova .... ~;~ which existed restorahon o~ .u~. ~e l~king as reaSonamY pu~ ... -e-ard lo restoraUon immediately pr~or ~o_ - - ~ of Section 3.0~ hereoi, w~n r g -bl" ~o~sible rovided in paragraphs ~b) and .~ ..... a~r (it) 1o the ex~ent reason, ~ v - ~nd repair as a result et a casua~y, m~. ...... rcia~lv reasonable a ,., "-e Redeveloper or titute oarking spaces withincom~-~-" or,sion o[ .subs . f ......~n I~ ~o event wm ~,,- r ...... ts. ~ substitute parking spnces be the p ' ' m tm rvv: . . Agency~ In testormg ~"~ ' ...... o - e~s o[ the award In the eminent e uired to expend more money than the proee . ..... ~ cost o[ restoration' r q .... -qn~s If there ~s ~Y excess of awa~u ~=- .... be Raid to domain ~roc~:~ o - tt shall belong to and and/or {l)e provision of substitute parking the Redeveloper as its , lo er and the Agency shall each ........ es. The ~edeve g . ~ ..... es outer than Section 4.03. uu~ u~'"~[~ their own property, m.-?~-__ --~o~.ntion o[ ~ ,,.. r;~ht to Dr~ec .... ~_~ loSS of busme5~, · the parking Ramp, =~ .... ' ~Ltand appraisal ices. The Redeveloper also shall be - c]t~e to as its own property, all severance entitled to pr severance of the Parking Ramp from other adjoining property by the Redeveloper- .' "tiaa 4.04. Ri ht to ^ ear. '['he Agency and t'he Redeveloper shall each expense, to participate by counsel of its own · have ihS;fighr, at t,~ of eminent choice in any proceeding regarding the taking by exercise of the power domain of ~tl or any part of the parking Ramp. ARTICLE V ~tion to purchase Section 5.01. Initial Term. The term of this part II of this Agreement shall t~ears beginning on the.Commencement Date. The when be for a period of term .Commencement Date" means the date which is the later of the date the parking Ramp is initially made available for parking or the date when tile Minimum Improvements are Initially occupied by one or more tenants. enewal Options. The Redeveloper shall be permitted to Section 5.02. hR~ an additional period of ten il0)years from above. renew this part I! of t the date of expiration of th.e Initial term referred to tn Section 3.01 Redeveloper will be deemed to have exerelsed such renewal option, unless Redeveloper notifies Agency' of its intention not to renew by delivery of a written notice to the Agency at least ninety i90) days prior to expiration of the initial term of thls Agreement.. Thereaf.ter this part Il of this A~reement shall be for additional ten Il0) year periods upon expiration of any automatically renewed notice is delivered as hereinabov~ provided. In no term of this Agreement unless event shall the cumulative term pi this part ti o! this Agreement exceed {arty/40) years. If Redeveloper exerclnes Serlio . ._ pursuant to Section option to renew Fart u ~, ..... i~°~urehaSe the parking Ramp Property, and the its forty (40) years, then the Redeveloper shall have Il of this Agreement for the full and is hereby granted the option Aizeney hereby agrees to sell the parking Ramp Property t.o Redeveloper at the end o~'the fortieth (40th) Management year upon ninety (90} days written notice to Agency that Redeveloper electS to exercise its option to purchase. The purchase price .slmil be One Dollar ($1.00). Provided, however, that Redeveloper rosy only exercise said option to purchase if Redeveloper ts not in default as described in Section ~Z.0I of part I11 of this Agreement. ' er exercises such option to t ~e Redevelop · i) the he event that .1 t Section 5.03- In t of th s ooa ~ .... ib) . +. subsection !a) _..~ neootlnte in g . purchase PUr?.an'_.:~_.ted by the Agency .~'.~"~"..ie of the ra~p Redeveloper it r.e?,u.~ . whether contlnueu.,~_ -'-n 1 02 (a)ot[ Fart ,-t -~rd to the question .... rsttnnt to ~ect~ _ ; ...... by W1LII t~15,~ * ~)ur OS~ rtI ' ' at tile i~'"t' o~neral public for park.~n~__.:P.+,nt with tile then use ~})-of this Agreement iS the Redeveloper. ./' PART II1 GENERAL PROVISIONS ARTICLE I Special Covenants Section 1.01. Nondiscrimination_. The Redeveloper shall not discriminate oil the basis of race, cai°r, creed, national origin, or sex in the operation and use of the Parking Property or the Walkway Property. Warranty by the ^ eg_~.. The Agency and City warrants to Section 1.02. Upon i~cnce of th~ Certificate of Occupancy the Pedestrian the Redeveloper that Walkway and the Parking Ramp will have been completed in accordance with the I ns and s ecificatlons therefor as such plans and 'specifications have been p a..,._., ~...P ,, order in substantial compliance with all laws and ordinances mooid~u ~,~ chan~,e , relating to building and zoning, and that Redevetoper's use thereof shall not be interrupted due to a [allure by Agency or City to cam'ply with s,,ch l,ws and ordinances. Section 1.03. Con[lict of Interest. The Redeveloper represents that, to the best of Redeveloper's knowledge, no alderman, or other officer or employee of the City or the Agency is directly or indirectly financially Interested in this Agreement or any contract, agreement or job hereby contemplated to be entered Into or hereby undertaken. No official or employee of the City or tile Agency shall have any personal interest, direct o[ indirect, tn this Agreement. Section 1.04. lndemn|t3~- The Redeveloper agrees to indemnify and save the City, the Agency, ani~ their o[ficers and employees harmless from and against any and all claims and demands, and resulting damages, costs and expenses, including reasonable attorneys' fees, of any kind or nature whatsoever arising [rom: · use and occupancy of the Parking Property or Walkway Property (a) 'lite . ~, ...... ~ ~,f the Walkway Property; the . he o erauon or manalg~m~u~ '~ . b the Redeveloper, t P ............ .~-~.. ~.,~,~ ~ such conditions winch Yondition or maintenance ot.tne, wm~:w.ay rr_u~=~ ,;?~e~t , from ,~nv act or ~rise from incomplete or laulty original ct, nstruet~on), o_ - . negligence of the Redeveloper, its agents, contractors, servants or employees tn or about the Parking Property or Walkway Property; (b) Breach or default on the part of the Redeveloper o[ any covenant or agreement oil the part of the Redeveloper to be performed pursuant to the terms of this Agreement; (c) Violation of any law, ordinance or regulation affecting the parking Property or Walkway Property, or a part theredf, or the use or occupancy thereof. In case of any action or proceeding brought against the Agency or the City by reason of any such rialto, upon notice from the Agency or the City, the Redeveloper convenants to de[end such action or proceeding by counsel rensonnl)ly satisfactory to tile Agency or the City. 19 The obligation of the Redeveloper hereunder shall not be limited to the extent of Insurance carried by or provided by the Redeveloper or subject to any exclusions from coverage {n ~ny {~urance policy. Sect{om 1.0S. Rele~e of Cla{ms. The Redeveloper does hereby ~{ve uny and e~ claims for, n~ does hereby rei~ase the City, the Agency, nad their officers and employees from any and aH easts, expenses, and damage {ncurred by the Redeveloper to the personal properly of the Redeveloper om the Parking Property or ~alk~ay Property nnd specifically agrees that the City, the Aget]cy, and off,ears nnd employees, shall not be liable ~o the Redeveloper, lis sncces~or~ nnd ass{gas, therefor (except for claims aris{ag ou~ of the negligence of the C%ly or the Agency). eat of Obl{ arians of A~Y nnd C~. AU covenants, Serlio, 1.0H. ~X~ · ~ -~,t-~+{~ o~ the C~{v amd the Agency s lions, romises, ~eemen~ ~no ou,,g~-,[],~ ,~ ...... %. stinulntions, tipul~ - · P~ ......... nt shall be deemed to be ~-= ~ ....... n~, contained In ul~S promises, agreements and obl{Eet{ons of the City and the Agency and not of any off,car or employee of the City or the Agency ~n his or her {nd~v~du~t capdc~ty, no recourse shall be had by the Redeveloper, {~ successors or ~ss{gns, for claim b~ed hereunder ~galnst ~ny off,ear or employee of the C~ty ac the Agency authorizing or executing this ~greement. Sect{on 1.07. Extent 'of Obl{gmt{o~ of Redev~- AH covenants, st{pu%nt%ons, promises, a~eemen~ °bUgat~°ns' ~Redevelopec co{~ta{ned tb~s Agreement shall be deemed to be the covenants, ~t{pulnt{ons, prom{ses, a~reements and obl{gmt{ons of the Redeveloper ~nd not of any employee of the Redeveloper h~ h~s or her individual c~p~e~ty, ~nd no recourse shah be had by the C%ty, the Agency, or their successors or ~sslgns~ for any e}a{m based hereunder ~ga{~t any employee of the Redeveloper authorizing or executing this Agreement. ARTICLE II Default and Addltlon~ Provisions Sect%on <Z.01. Default. If the Redeveloper fails to perform any of the duties imposed upon {t by-{his ~grcement or violates any provision hereo[ nnd such default cont~nu~ for ~ perlod of thirty {30) d~ys ~[ter the Agency has g~ven the Redeveloper ~nd any mortgagee of the l~nd ~nd ~ss{gnee of the Redcveloper's Hghts hereunder (of ~h{ch the Agency has knowledge or not%ce) ~ritten not, ce · ' ' etlon ~.U5 of psrt IH hereof, or If the of in the manner specthed ?.Se · -~- terms end conditions of the the[e . -,--,, ~fautt nursuant to any o~ ~,,~ .. ,- ~-r-,lt thereof In s[oresato {~?=v='~F'~'~__., .... ~;t{nn~ f s~d Redevetopme,~ ~v, .... , violation of the terms ~,u ~ ........... o this :Agreement by deliver[ng to the Agency shall hove the right to terminate Redeveloper nnd any ~foresaid mortg~[ee or assl~ee written notice of termhmtion in the manner set forth in Section 2.05 of Part Ill hereof specifying a date of term{nation not less th~ thirty (30) days thereafter. Provided, however, tint ~f Redeveloper's failure to perform or v[olaHon of any provision of this Agreement is one that c~nnot, through reasonable action, be cured within thirty (30) days but the Redeveloper [s tmking ~ reasonable cotton to cure the same, then such failure of violation will not be deemed to constitute a default under this Section ~.01 ~s long ~ the Redeveloper, within such thirty (30) days, provides evidence reasonably ~/satjsfactory to the Agency that the failure or v.loJation cannot be cured within thirty (30) days but will be cured as soon as reasonably possible, as long as such fnih~re or violation does not affect the s~[ety of the ParkinE Ramp or WaIkway. Se6tion ~.0~. Ho ~em~EXClUsive- Ho remedy herein conferre0 upon reserved to the AgenCY is intended to be e~elusive o[ any other available re~nedy or remedies unless otherwise expressly stated, but each and every such remedy shall be cumnlatlve and shall be in addition to every other remedy given under this A~eement or ~ow or hereafter exlstingatlaworin equity or by statute' [Io delay Iht or ower accruing upon any default shall impair or omission to exercise any r g P .......... ,_~. ~ ....~[ but any such any such right or power or shall be cons~rue~ to oe ~ ~,~- ....... , right and power may be exercised [rom time to time and as often as may be deemed expcdie~t. In order to en~tle [t~e Agency to exercise any remedy reserved to it, it shall not be necess~y to ~ve notice, gther than such notice as may be required in this Article II o[ Part III of this Agreement. Section 2.03. ~o Addition~ Waiver Implied by One Waiver. In.the event any agreement contai~e(~ in this Agreement should ~ ~rcached by~ither party and therealter waived by the other ~arty, such waiver sh~ be limited to the particular breach so waived and shall not be deemed to waive any other concurrent, previous or subsequent breach hereunder. · . J [ Interests: A~enc~ Representativ~ Not Ind~ Section 2.04. ~pnfBct o , ~- "-"~e,, shaii~anY personal I ~o member, o[[lcl~, or . P Y ~ such member, ~!ab ~'- ..... ,-~-~t in the A reement, nor shall any interest, a~rec~ or ,,,~,-~ , ee~ion relating to the Agreement which affects or employee participate tn any detests of any corporation, partnership, or associa- his personal interes~ or the tion in which he is, directly or indirectly, lnterest~. ~o member, official, or employee of the Agency shM1 be person~y Hable to the Redeveloper, or any successor in interest, in the event of any defa~t or breach by the Agency or for an amount which may become due to the Redeveloper or successor or on any ob~igatlo~ under the terms of the Agreement. Motieesand Demands. Except as otherwise expressly provided Section 2.05. ~otihe, demand, or 0[her communication under the A~eemeqt In this A~eemenl, a by either party to the other, shah be sufficiently Wen or delivered dispatched by registered or eertlfied mail, postage prepaid, return receipt re- quested, or delivered person~ly, and r ts ad(Iressed to o~ delivered per- (a) in the ease of the Redevelope , - ,,-~a4 St Paul, Minnesota sonaBy to the Redeveloper at 3550 Lexington North, S~'~ ~ ' ~rand ~ McNary, with a copy to Stephen B. Swartz at. Maslon, Edel~a~, Borman, Suite 1800, Midwest Plaza West Buildmg, Minneapohs, Minnesota 55402; (b) in the case o[ the Agency, Is addressed to or delivered personally to the Agency at 590 - 40th Avenue N.E., Columbia Heights, Minnesota; and ssi nee or mortgagee of th.e Redeveloper's rights (~) in the case of a~y,~ g, ....... q,, to the assignee or mortgagee at hereunder, is addressed to or oenvereu W~,~ ..... ~ - [he address designated in writing b~ such ~iguee or mortgagee~ 21 ior at such other address with respect to either such party as that party may, from time to time, designate in writing end forward to the other as provided in this Section. tion 206 Dut to Act ~' ~herever this Agreement requires - n ruction of the other party, See f,__'.~ to approve ~ ~ - ._, .... will not unreasonnbly the Agency or. ~,,~ ~C~/-~ A~eneV or the ~eoeve~uw~ understood and agreeo ~,a ....... o - withhold such approval. .. an term, eonditi°n or provision o{ this .07. Seversbd~t - .I~ Y ...... ~ umstence shall, to ony ~eot to any persu- ~- Jrc Section ~e appl and the A~eement or . nvatid or unenforceable slmtt not be extent, be held to be inv~ld or unenforceable, the remainder hereof application of such term, provision and condition to perso~ or circumstances other --.~,n ' sh~ be held I ...... ~e.~ nroviSio~ ~nd than those as to w,,~. t[ t ut u~e ~ .... s, ~-~ this A~reement and al .. ,- ~ ~{{eetive end to be effected therebY, s~, In aH ~ther respectS, eontmue ~u ~ ~ conditions hereo[ complied with to the full extent permitted by law. -~tion ~ 08 A~i nabte b ~ .? .... obti-ations or duties under th~s o mn assi~ any or aH of ItS rlgn~ ~ Redeveloper. All of the The Agency Y - . ' . ' is A reement shaft, be binding upon Agreement to the City at any. time without prior notice to ano ,,,u.%_ .,--- used hereto are tug u~.. - ,, ----~ and ~CltlOe assigns. '[ne cnP~'U'l~ _ · ...... ~ ~n ne gender snat~ .,~u . the provision hereo[, t[eie[~-~ .... o genders. It,{ WI'CHESS WIIEREOF, the Agency has caused this Agreement to be duly executed in its name and behalf and its seal t') be hereunto duly afl}xed and tim Redeveloper has executed this Agreement in his own behalf, on or as of the date first above written. STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) +' · '~} '~dn of · . strumen wos acknowledged before me~_t_t~,_~ff__ Y _ ~ The_f_o_re~go.mgAn~s~~ g.~Z~p.E~ - the~~n ~~-., of The Itous- ~, 19~, uy ~ the~mbia Hetghts. ~g a~ Redevelopm~ AUthOrity ~{ary Pub lc STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) :. ,/~. ~ The fore~olnE instrument was acknowledged before me this~z;_ ony of ~~, 19~'~, by Terry Evenson,/an lndtvidu~ residin~ in the State of a ~insle pergon - ~mneso~ ' / 23 EXHIBIT A l.~t~ 23, 25, and 26, Block 6, Reservoir l[ills. ' L~ts 20, 21, and 22, Block 1, ~4al~on's Rearrangement of Lots 33 and 34, B'lock 6, Reservoir }ltlls, and all of the vacated alley adjacent'to said Lots 20, 21, and 22. Ihose parts of Lot 27, Block 6, Reservoir Hills and of Lot 23, Block I, Ualton's Rearrangement of Lots 33 and 34, 'Block 6, Reset-voir Hills and of that part of the vacated ~lley abutting Block 1, "Nalton's Rearrangement of Lots 33 and 34, .Block 6, Reservoir Hills", as dedicated in said plat, which lies westerly:.~[ the northerly extension of the east line of Lot 23, sa~d Block l, lying easterly of the following described line: Beginning at a point on the south line of s~id Block [, Ualton's Rearrangement, said point being 18.00 feet west from the Southeast corner of Lot 23 of said Block ~, Nalton's Rearrangement; thence northerly om a line 18.OO feet west of and parallel with the east line of said Lot 23, to the north line of said Block 6, Reservoir Reserving and subject to easement to the City of Columbia Height'.~ ~or' road~ay' purposes over the north 4.00 feet of the west 232.00 feet of said Block 6, R~crvcir H[lls. EXHIBIT B Those parts of Lots 27 through 31, Block 6, Reservoir lltll~ and those parts of Lots 23 and 24, Block 1, Walton's Rearrangement of Lots 33 and 34, B]oc~: 6, Rese~oir llil].s ~nd o[ the vacated alley abutting Block ]., "Ualto~%'s Re~rrs,]ge,,ent of Lots 33 and 34, Block 6, Rese~ofr }~ills", a~ dedicated, tn sn~d plat, lying within the following.described tract: Co~encfng gt a point on the south line of ~atd Block ~,. I4alton's Rearrangement distant 1.8.00 fe~t west of the southeast corner of Lot 23, maid Block 1, Walt6,'s Rearrangement; thence norther].y om a li~e 18.00 [eet west of and parallel with'the east line of said Lot 23, n d~.st~nce 87.00 feet, to the actual pqtnt of begi6ning of the tract.to be described; ther. ce continuing northerly on the .extension of said line, to the north line of Block 6, Reservoir Hlll~; thence westerly along said north l~ne of Block 6, to a point being ~7.23 feet easterly of the northo'est corner of Lot 30, BlocR 6, Reservoir l{ills; the~ce southeasterly, to the point of beginning. Reserving and subject to easements to the Ci'ty of Columbia Heights for roadway purposes over the north 4.00 feet of the w~t 232.00 feet of said Block 6, Reservoir Hills. Reserving to the City of Columbia Heights a utility easeme~t over, under, and across the east 15.00 feet of the west 22.00 feet of Lot 27, Block 6, Reservoir %~ills, and the east 15.OO feet of the west 22.00 feet of Lot 23, Block ~, Ualton's Rearrangement of Lots 33 and 34, Block 6, Rese~oir ~ills, and that portion the vacated alley abutting Block 1, "I4alton's Rearrmngement of Lots 33 Block 6, Rese~olr Mills", ms dedicated in said plat, lying between tl,e northerly extensions o[ the east and west lines of the east 15.00 feet of the west 22~.OO feet of said Lot 23, Block 1. 5.50