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HomeMy WebLinkAboutContract 21382138 EASEMENT MAINTENANCE AGREEMENT THIS AGREEMENT, made as of this ~ day of ~ Cl". , 20(x, by and between the CITY OF COLUMBIA HEIGHTS, a Minnesota municipal corporation (hereinafter the "City") and GR:AIrtD CENTRAL COMMONS LLC, a Minnesota limited liability company (hereinafter the "Redeveloper"). WITNESSETH: WHEREAS, the Columbia Heights Economic Development Authority (the "Authority} and the Redeveloper have entered into a Contract for Private Redevelopment dated - ~ . , , 2008 (the "Contract"}, and WHCEREAS, the capitalized terms used, but not defined, in this Agreement have the meanings given in the Contract; and WHEREAS, the Contract is intended to provide for the construction of the Minimum Improvements by the Redeveloper on the Commercial Property in coordination with the Authority and with the cooperation and assistance of the Authority; and WHEREAS, the Contract provides for the expenditure of public funds for the certain costs related to the Minimum Improvements to assist in the redevelopment of the Commercial Property; and WHEREAS, the Redeveloper has agreed under the Contract to build a Parking Ramp on the Commercial Property in connection with the Minimum Improvements, and to grant a public parking easement in favor of the City regarding such Parking Ramp; and WHEREAS, the Redeveloper has agreed to operate, manage, and maintain the Parking Ramp pursuant to the Contract; and WI~[EREAS, the Authority and the Redeveloper deem it to be in their vital interest and in the best interest of the Authority, the Authority and the State of M7umesota and in furtherance of the economic development and redevelopment plan for the Minimum Improvements Area to enter into this Easement and Maintenance Agreement (hereinafter this "Agreement") with the Redeveloper with respect to certain lands included within the Minimum Improvements Area on which the Parking Ramp will be constructed; I-1 NOW THEREFORE, in consideration of the premises and the mutual agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which arc hereby ac~no:-,riedged, the parties hereto agree as folloYvs: ARTICLE I GRANT (7F EASEMENT Section 1.1. Easement Premises -Subject to Section 2.1, the Redeveloper hereby grants and conveys to the Authority anon-exclusive public parking easement (the "Easement") over and across those portions of the Commercial Property upon which the Parking Ramp will be constructed, and in the Parking Ramp, which consists of two levels of parking and all related access areas depicted on the crosshatched area on Exhibit A, which are situated in the Authority of Columbia fIeights, County of Anoka, State of Minnesota (the "Easement Premises"}. Section 1.2. Easement Purpose -The Easement is granted for the purpose of vehicular parking, vehicular ingress and egress, and parking-related pedestrian traffic over and across the Easement Premises. Section 1.3. Releases and Reservations (a) The Redeveloper reserves in, over, under, above, across and upon the Easement Premises the right to use the Easement Premises for any and all uses and purposes provided that such use does not obstruct or materially interfere with the intended purpose of the Easement, including without limitation: (i) the right of support for the Minimum Improvements; (ii) the right of access for ingress and egress through the Easement Premises; (iii} the right to bring utilities, materials, and other facilities through the Easement Premises; (v) the right to grant easements in, over, under and across the Easement Premises for the purpose of installation, use and operation of utilities; (vi) the right to perform all construction, maintenance and repair of the Parking Ramp and adjoining improvements; and <<~;;> w;th nrinr ennce~t by the C;ity_ which consent shall not be unreasonably withheld, the right to enter into licenses, or leases or other agreements (collectively, "Commercial Parking Agreements"} with owners or tenants of the Commercial Improvements within the Commercial Property, providing for use of the Parking Ramp or specified portions thereof for use by customers of such owners or tenants; provided that in no event shall Commercial Parking Agreements materially impair I-2 ar interfere with use by the general public of the Park Ramp for its intended purpose. (b) The Redeveloper must repair any damage to the Parking Ramp caused by construction of the Minimum hnprovements and minimize the extent and duration of any interference with the easement rights granted herein. (c} Upon request by the Redeveloper, the City must execute and deliver instruments to evidence the Redeveloper's reservation of rights under sections (a}, however execution of such instruments is not necessary to effect the reservations in this Section.. ARTICLE II TERM Section 2.1. Term -This Easement will become effective upon Redeveloper's receipt of a Certificate of Completion for the Parking Ramp in accordance with the Contract. This Easement will be perpetual. ARTICLE III UTILITIES Section 3.1. Utility Charges -The Redeveloper will pay, or cause to be paid, when the same become due, all charges for water, sewer usage, gas, electricity, power, heat, telephone, or other communications service and any and all other utility or similar services used, rendered, supplied, or consumed in, upon, at, from, or in connection with the Easement Premises, or any part thereof. ARTICLE IV TAXES AND ASSESSMENTS Section 4.1. Pa~m,ent of Taxes and Assessments -The Redeveloper must pay, or cause to be paid, before becoming delinquent, all real estate taxes, charges, assessments, and levies, assessed and levied by any governmental taxing authority against the Easement Premises. Nothing contained in this Agreement requires the Redeveloper to pay any franchise, estate, inheritance, excise, succession, capital levy, or transfer tax of the City or any income, excess profits or revenue tax payable by the City under this Agreement. The Redeveloper has the right and option, at any time but solely at the Redeveloper's expense, to pay any real estate taxes or assessments in installments or under protest or in a similar manner, or to contesi the levy or amount of the same in appropriate legal or administrative proceedings. I-3 ART>fCLE V LTSE DJE F~.S~'1bIE1l~T P'R~11~?SFS Section 5.1. Construction of Parking Ramp -The Developer shall construct the Parking Ramp in accordance with ail terms and conditions of the Agreement. Section 5.2. Liens -The Redeveloper will not permit any mechanic's or materialmen's liens to stand against the Easement Premises on account of improvements authorized by the Redeveloper, provided, however, that the Redeveloper may in good faith and at its expense contest any such lien in which event such lien may remain undischarged and unsatisfied during the contest and any appeal, provided the Redeveloper files a bond or deposits cash or other reasonable security in the amount of such lien with the court or with a mortgagee of the Easement Premises or with the City to secure the payment of such lien if finally determined to be valid. Section 5.3. Leal and Regulatory Compliance; Control of Premises -The Redeveloper must operate and maintain the Parking Ramp on the Easement Premises for public use in accordance with all applicable governmental laws, ordinances, regulations and orders pertaining to Parking Ramp generally from time to time. Subject only to the express provisions of this Agreement and the Planning Contract, the Redeveloper will have full authority and control over the management, operation, and use of the Easement Premises. Section 5.4. No Fees -The Easement Premises must be open to the public for public use without charge or fee. Section 5.5. Hours of Operation, Rules and Re ations -The Redeveloper must establish reasonable hours of operation, rules, and regulations as it deems advisable, necessary, or appropriate for the safe, efficient, and orderly use of the Parking Ramp, subject to prior City approval. Section 5.6. Contractors -The Redeveloper may engage such employees, agents, or independent contractors as it may deem advisable to conduct the management, repair, maintenance, and operation of the Easement Premises from time to time. Redeveloper may make all decisions and execute all agreements, in its sole discretion, with respect to the Parking Ramp so long as such decisions and agreements do not violate any provisions in this Agreement or the Planning Contract. Section 5.7. No Waste or Damage -Neither the City nor the Redeveloper may knowingly or willfully commit or suffer to be committed any waste or damage in or upon the Easement Premises, or any disfigurement or injury to any Parking Ramp. The Redeveloper in its use and occupancy of the Easement Premises, may not xnowmgiy ana wiliru~ly commis or st~ticr to be committed any act or thing which constitutes a nuisance or interferes with the public use and enjoyment of the Parking Ramp. Usual and normal wear and tear, damage by the elements, unavoidable casualty or depreciation and diminution aver time will not be considered "waste," ccnulsance," ccdamage, "dl5figuremerit," OT cciIlJury." - I-4 ARTICLE VI I1~E14~I~EICATI'~'1lT, T.~ISI11~A~CE Section 6.1. Property Insurance -The Redeveloper, at its sole cast and expense, must keep all Parking Ramp, and ali alterations, extensions, and improvements thereto and replacements thereof, insured against loss or damage by fire and against those casualties covered by extended coverage insurance and against vandalism and malicious mischief and against such other risks, of a similar or dissimilar nature, as are customarily covered with respect to buildings and improvements similar in construction, general location, use, and occupancy to the Parking Ramp. Such policy of insurance will affirmatively include the full replacement cast measure of recovery. Section 6.2. Personal Property -Ail property of every kind and character which the Redeveloper may keep or store in, at, upon, or about the Easement Premises will be kept and stored at the sole risk, cost, and expense of the Redeveloper. Section 6.3. Indemnification of the City - (a) The Redeveloper releases and covenants and agrees that the City shall not be liable far and agree to indemnify and hold harmless the City Parties against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Parking Ramp constructed by the Redeveloper to the extent not attributable to the negligence of the City Parties. (b) Except for negligence of the City Parties, the Redeveloper agrees to indemnify the City Parties, now and forever, and further agrees to bald the aforesaid harmless from any claims, demands, suits, costs, expenses (including reasonable attorney's fees), actions or other proceedings whatsoever by any person or entity whatsoever arising or purportedly arising from the actions or inactions of the Redeveloper (or if other persons acting on their behalf or under its direction or control} under this Agreement, or the transactions contemplated hereby or the acquisition, construction, installation, ownership, and operation of the Minimum Improvements and Public Infrastructure Improvements constructed by the Redeveloper. (c) The City in no way waives its right to statutory liability caps under Minnesota Statutes, Section 466.04, as amended. The Redeveloper's liability to the City equals, but does not exceed, the City's statutory liability limits under Minnesota Statutes, Section 466.04. as amended. (d} This provision will survive termination of this Agreement. Section 6.4. Liability Insurance -The Redeveloper, and any successor in interest to the any Redeveloper, shall obtain and continuously maintain insurance on the Parking Ramp and, from time to time at the request of the Authority, furnish proof to the City that the premiums for such insurance have been paid and the insurance is in effect. The Redeveloper must procure and maintain continuously in effect (or cause the same to occur}, policies of insurance of the kind and minimum amounts as are customarily maintained with respect to Parking Ramp and, to be I-5 reviewed from time to time by the parties, such policies must meet the minimum requirements set forth in Minnesota Statutes Section 466.04, and must fizrther include the following: (a) Insurance against liability for injuries to or death of any person or damage to or loss of property arising out of or in any way relating to the condition of the Parking Ramp. Such insurance must provide that the City is an additional insured. (b) To the extent reasonably available, insurance coverage with respect to the indemnification expressed in Section 6.3 hereof. Section 6.5. General Insurance Requirement -All insurance required in this Agreement must be placed with financially sound and reputable insurers licensed to transact business in the State of Minnesota. The Redeveloper must furnish to the City policies evidencing all such insurance or a certificate or certificates of the respective insurers stating that such insurance is in force and effect. Each policy of insurance herein required must contain a provision that the insurer may not cancel it without giving written notice to the City at least thirty (30} days before the cancellation becomes effective. A11 policies or certificates of insurance will be approved reasonably as to form and content by the City. The insurance coverage herein required may be provided by a blanket insurance policy or policies. Section 6.6. No Insurance Obligation of City - At no time and under no circumstances will the City be required to take out, maintain in force and effect, or pay for any type of insurance coverage with reference to the protection of and/or ownership of and/or occupancy of and/or a suit relating to the Easement Premises and/or any improvements hereafter located thereon. ARTICLE VII ASSIGNMENT, Si7~3ORDINATION Section 7.1. Assignment by the City -The City may not assign or transfer its interest under this Agreement without the prior written consent of the Redeveloper. Section 7.2. Assig~nent by Redeveloper -The Redeveloper may not assagn or otherwise transfer its interest under this Agreement, except (i) to whomever becomes a permitted assignee of the Redeveloper under the Agreement, (ii) to any lender holding a mortgage on or interest in the Easement Premises, and (iii) assignment of the Redeveloper's maintenance obligation to extent permitted in Section 8.2 herein. The City will recognize and accept any successors or assigns of Redeveloper. ARTICLE VIII MAINTENANCE GF THE EASEMENT PREMISES Section 8.1. Maintenance -The Redeveloper, at its cost and expense, must keep and maintain all of the Easement Premises in good condition and repair. It is distinctly understood that the preceding does not require maintenance and/or repair of the Easement Premises and/or improvements hereinafter erected thereon in perfect condition or is a condition equal to new at _ _ - - I-6 all times, but the Redevelaper must keep and maintain the same in such condition as to nlinunize, so far as is practicable, by reasonable care, maintenance, replacement, and repair, the effects of use, decay, injury, and destruction of the Easement Premises or any part thereof the City recognizing that depreciation and diminution by reason of age, use, and environmental factors is unavoidable and expected. However, notwithstanding anything herein to the contrary, it shall be the obligation of the Redeveloper to maintain, repair and operate the Parking Ramp in a condition which is safe, operation and in accordance with all government agreements. Section 8.2. Assi~ment of Maintenance Obli ag bons -The Redeveloper may assign its maintenance obligations under Section 8.1 to a third party, including an association of property owners, provided that (1) such third parry is determined by the City to have financial resources adequate to fund the Redeveloper's obligations under this Agreement and (ii) such third party and the City have entered into a signed agreement requiring the third party to be bound by the terms of this Agreement, in which event the Redeveloper will be released from further liability with respect to such assigned obligations. Section 8.3. No Obligation of the City to Repair or Maintain -The City will have no obligation of any kind, expressed ar implied, to repair, rebuild, restore, reconstruct, modify, alter, replace, or maintain the Easement Premises or any part thereof. Section 8.4. Entry by City -The City may, after notice and opportunity to cure, enter onto the Easement Premises to repair and maintain the Parking Ramp within the Easement Premises if the City determines, in its sale discretion, that performance of such repairs and maintenance is necessary (i) to cure any default hereunder or (ii) to protect public health, welfare and safety; provided, however, that in case of emergency ar failure of Redeveloper to maintain the Parking Ramp sufficiently to protect the public health and safety, the Easement Premises are subject to entry without notice and at any time, by City or its authorized employees and/or agents and/or by any public safety personnel to perform such maintenance or repairs as City may deem necessary in its sole discretion. The City will submit an invoice for the costs incurred for such maintenance or repairs to the Redeveloper. If the Redevelaper has failed to make payment on the invoice within 60 days, the City will have the right to assess the costs incurred by the City to all or any portion of the Minimum Improvements Area as a service charge pursuant to Minnesota Statutes, Section 429.101, or any successor statute. By execution of this Agreement, the Redeveloper is agreeing to such an assessment for maintenance and repair casts, agreeing that the Minimum Improvements Area assessed for such service charges is benefited thereby, and waiving any rights the Redevelaper or a third party may have to object to an assessment of such service charges, including any rights of appeal under Minnesota Statutes, Chapter 429. Section 8.5. Destruction - In the event that the Parking Ramp on the Easement Premises are destroyed by fire or other casualty, and subject to a determination by any lender hnt~i;nu a mnrt~!a¢e nn the Fasement Premises. the Redeveloper will rebuild or reconstruct the ~__p __ ___ _ _ _O_.0 Parking Ramp to the extent insurance proceeds are available or, in the event insurance proceeds are not sufficient to reconstruct the entire Parking Ramp, to the extent insurance proceeds combined with any contributions by the Redeveloper toward reconstruction are available. If the Redeveloper rebuilds or reconstructs the Parking Ramp, the proceeds from any and all insurance policies covering risks against loss or damage must be used to rebuild or reconstruct. I-7 ARTICLE IX Er.~IINENT Dc~MAIN Section 9.1. Condemnation - If the Easement Premises are taken, acquired, or condemned by eminent domain for any public or quasi-public use or purpose, then the Redeveloper, at any time within sixty (60) days next after it has actual notice of such proposed acquisition or condemnation, will have the option to (i) cancel and ternunate this Agreement as of the date of vesting of title in the condemning authority of the acquired or condemned property, or to (ii) continue this Agreement as to the remaining part of the Easement Premises not so taken or threatened to be taken. The Redeveloper may exercise one of the foregoing options by giving the City written notice of the exercise thereof within the foregoing sixty (60) days' period, and in the event Redeveloper fails or refuses, for any reason, so to famish the City written notice of the exercise thereof within the time and in the manner herein provided, then this Agreement will continue in full force and effect under option (ii) above. ARTICLE X DEFAULT AND TERMINATION Section 10.1. Default by the City - If the City fails to perform any of its obligations under this Agreement, and fails to cure such default after thirty (30} days' written notice of such default, or, if such default cannot reasonably be cured within such thirty (30) days, fails to cormence curative action and thereafter diligently complete the same, then_ in such case the Redeveloper may declare the termination of this Agreement and re-enter and take possession of the Easement Premises. In such case, or at such time as this Agreement is terminated pursuant to Section 2.1 hereof, the City agrees to execute and deliver to the Redeveloper a written termination of this Agreement in recordable form, which termination agreement will be filed in the official records of Anoka County, 1Vlinnesota. In addition, the Redeveloper may exercise all remedies available to it at law or equity. Section 10.2. Default by Redeveloper - If the Redeveloper fails to perform any of its obligations under this Agreement, and fails to cure such default after thirty (30) days' written notice of such default or, if such default cannot reasonably be cured within such thirty (30} days, fails to commence curative action and thereafter diligently complete the same, then in such case, the City may cure such default on behalf of the Redeveloper and Redeveloper consents to pay to the City any and all such sums as are due and awing on account thereof. City will submit a statement to Redeveloper evidencing the costs incurred to cure such default. If Redeveloper has failed to make payment in accordance with the statement within 60 days after receipt thereof, City will have the right to assess the costs incurred by City to all or any portion of the Minimum TmnrnvPm~ntc Area ac ~ service charge pursuant to Minnesota Statutes, Section 429.101, or any successor statute. In addition, the City may exercise all remedies available to it at law or equity. I-8 ARTICLE XI SURl2'ENI3ER Section 11.1. Surrender -Upon any termination of this Agreement, the City will surrender the Easement Premises to the Redeveloper, including without limitation any and ail buildings, improvements, and fixtures then upon the Easement Premises, and all buildings, improvements, structures, fixtures, alterations, and other additions which may be made or installed by or at the instance of either party hereto, in, upon, or about the Easement Premises will become the property of Redeveloper upon any termination and will be surrendered to the Redeveloper by the City without any payment therefor. ARTICLE XII MISCELLANE(3US Section 12.1. Waiver -The waiver by any parry hereto of any breach or default of any provisions anywhere contained in this Agreement does not constitute a waiver of any subsequent breach or default thereof. No provision of this Agreement is waived unless such waiver is in writing and signed by the party charged with any such waiver. Section 12.2. Amendments - Except as otherwise herein provided, no subsequent alteration, amendment, change, waiver, discharge, termination, deletion, or addition to this Agreement will be binding upon either party unless in writing and signed by both parties. The Redeveloper and the City agree to join in and consent to amendments to this Agreement, to the extent such amendments are reasonably required by the Redeveloper's lenders; provided, however, that the Redeveloper and the City will not be required to enter into such amendments if the amendments do not adequately protect the legitimate interest and security of the Authority or the City with respect to the Project as defined in the Contract. Section 12.3. Joinder Permitted Encumbrance - Except for the Consent and Subordinations attached hereto, if any, this Agreement does not require the joinder or approval of any other person and each of the parties respectfully has the full, unrestricted and exclusive legal right and power to enter into this Agreement for the term and upon the provisions herein recited and for the use and purposes hereinabove set forth. This Agreement will constitute a permitted encumbrance under any loan agreement heretofore or hereafter entered into between the Redeveloper and any construction or permanent lender. I-9 IN WITNESS WI~~REOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. CITY OF ,CpLUMBI~ HGHTS, a Minnesota (b~munici l ornoration ByR Mayo ~ Its: City Manager "` I-I d IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. GRAND CENTRAL COMMONS LLC, a Minnesota limited liability company ,~ -. Its '-~. _ .~ `rgj ~ r C< F-Cr ...M- !~ I- l l STATE OF MI]VNESOTA ) } ss. CO~,~TY OF~`~, ~~`, ~ The foregoing instrument was acknowledged before me this =:~.. x~ day of C-~~c ~~ " ~ _~ y ~ c~~ ~_~ L. _ `,*~ __ ~ , . ~ _ and ~~ ~,- ~ ~ ~ ~-- ~ the 200 b - - - - - - -~ ~"~`~ ~-.~..~~ ~ and ~~.~;~ - --,.: ~ ~ . , ~.e. ,respectively, of the CITY OF COLUMB HEIGHTS, a Minnesota m cipal corporation, on behalf of the corporation. I-12 STATE OF MI]VNESOTA ) ss. COLiNTY OF ff ~~ ) The foregoing instrument was acknowledged before me this t~ f~ day of C~~~ __ - , 200 by ~.6 ` _ ~~, ,~, ~°~, , theft-~~,~ , -- of GRAND CENTRAL COMMONS LLC, a Minnesota limited liability company, on behalf of the company. uYaTo/V V"W/`+ ~~. hiOtARRI PUBLi~ - MINPSE COBRA ~ EXWRES-tl3i/2dt~ // E Notary Public My Commission Expires ~,~ .;~ 'T'his Instrument was drafted by and when recorded should be returned to: Kennedy & Graven (SJB) 470 South Sixth Street M[inmeapolis, Minnesota 55402 I-13 EXHIBIT A ~.3ES~'RII'TI~N pF FASEM_ENT PREMISES (SEE ATTACHED} I-14 a .~.• .~., .~ NY'Id 3dV~5®NV't a ~ a ~~~= .~ r ~$~ ~~ ~y~yg~ rursemi ~~ Y1653MiIM 'S1H013H YI8flt1'10~ ~ t gA~.. ran .a ,.w~-~r i7~`m~`"t 44 'ON AYMH9{N 7lXNLL 31V15 GNV 311N3AV NlLt ¢ ~~~~"~~ .+..~..••r,+M.u-a~.t 1tl211N3~ aNY21J ~~~~ s aa q M 9 ! ~ ~ # i~~~~ ~ ~~ ~~ ~ Z gd ~~ ~~ ~~ ~ ~ ~~ ~ ~~ ~ ~ ~ ~~ ~ ~ Z #~~~ }~~~~~~~~~~~~ ~~ b~ I ~~ I I I I Sao a ~ w I ~ ggg _._ ._L _.__. _._.-_.__.__.__._ ~__.__. i _~ ~~o R {t - - P _ _-,-~~ 1 A ~ -- -- a ~ I i _ 3nnr 3n~.s ~ F `' ~ ~ - ~ -- -- c ~ ---~r -_ o Dreoa ~ ~ ~ 1 ~ ~ .r ~ ~ ( i t r. ~~: ~ I<,~. ~ , ~ .. 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