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HomeMy WebLinkAboutEDA AGN 09-21-15CH COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY AGENDA SPECIAL MEETING 1. Call to Order 2. Roll Call MONDAY, SEPTEMBER 21, 2015 11:00 am City Hall Conference Room 1 590 401" Avenue NE Columbia Heights, MN 55421 BUSINESS ITEM 3. Resolution 2015 -20: First Amendment to the Site Lease Agreement and the Easement Agreement for Parkview Villa Cell Tower Motion: Move to waive the reading of Resolution 2015 -20, there being ample copies available to the public. Motion: Move to adopt Resolution 2015 -20, Resolution Approving the First Amendment to the Site Lease Agreement and the Easement Agreement for the Cell Tower at Parkview Villa (965 40`h Avenue NE). 4. Adjourn Please note; this meeting is critical to the sale of Parkview Villa. If you are unable to attend this meeting, please notify Joe Hogeboom at 763 - 706 -3675 as soon as possible. The next regular EDA meeting will be October 5`h, 2015 at City Hall CH COLUMBIA HEIGHTS AGENDA SECTION BUSINESS ITEMS ITEM NO. 3 MEETING DATE SEPTEMBER 21, 2015 CITY OF COLUMBIA HEIGHTS — ECONOMIC DEVELOPMENT AUTHORITY ITEM: First Amendment to the Site Lease Agreement and Easement Agreement for Cell Tower at Parkview Villa DEPARTMENT: Economic Development Authority CITY MANAGER'S APPROVAL: BY /DATE: Joe Hogeboom, September 17, 2015 BY /DATE: BACKGROUND: As part of the negotiation for the sale of Parkview Villa, the City /EDA will be retaining lease revenue from the Parkview Villa cellular antenna. The current lease between the EDA and T- Mobile commenced on January 1, 1997 and will expire on December 31, 2016. The First Amendment to the Site Lease Agreement will authorize the term of January 1, 2017 through December 31, 2027, during which time the EDA will continue to receive all lease revenue from the cell tower. Lease revenue generally increases in amount every year. In 2014, total lease revenue from the Parkview cell tower was $23,375. In order to maintain access to the antenna through the duration of the lease, the EDA must obtain an easement from Aeon. The attached resolution authorizes the approval of the amendment to the lease, as well as the implementation of the easement. Staff was notified on September 17, 2015 that Aeon's funders are requiring that the easement and lease are approved prior to the sale of Parkview Villa. It had previously been stated that these items would need to be adopted prior to the current lease expiration in 2016. The sale of Parkview Villa is scheduled to occur on Thursday, September 24`h, so it was necessary that this special meeting of the EDA be called to immediately address these items. STAFF RECOMMENDATION: Staff recommends approval of Resolution 2015 -20, authorizing approval of the First Amendment to the Site Lease Agreement and the Easement Agreement for the cell tower at Parkview Villa. RECOMMENDED MOTIONS: Motion: Move to waive the reading of Resolution 2015 -20, there being ample copies available to the public. Motion: Move to adopt Resolution 2015 -20, Resolution Approving the First Amendment to the Site Lease Agreement and the Easement Agreement for the Cell Tower at Parkview Villa (965 40`h Avenue NE). ATTACHMENTS: 1. Resolution 2015 -20 (3 pages) 2. First Amendment to Site Lease Agreement (5 pages) 3. Antenna Easement Agreement (8 pages) COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY RESOLUTION NO. 2015-20 RESOLUTION APPROVING FIRST AMENDMENT TO SITE LEASE AGREEMENT AND EASEMENT AGREEMENT FOR CELL TOWER ANTENNA BE IT RESOLVED By the Board of Commissioners ('Board ") of the Columbia Heights Economic Development Authority ( "Authority") as follows: Section 1. Recitals. 1.01. The Authority previously entered into a Site Lease Agreement with APT Minneapolis, Inc., dated December 4, 1996 (the "Lease "), for the installation and maintenance of a cell tower antenna on rooftop space located at the building known as Parkview Villa North (the "Facility"). 1.02. Subsequent to entering into the Lease, APT Minneapolis, Inc. transferred its interest in the cell tower antenna and Lease to T- Mobile Central LLC (the "Tenant'). 1.03. The Housing and Redevelopment Authority in and for the City of Columbia Heights (the "HRA ") now intends to convey the Facility to Aeon ( "Aeon'), but to allow the Authority to retain its interest in the Lease through a First Amendment to Site Lease Agreement (the "First Amendment'), which will ensure the receipt of lease proceeds by the Authority for an additional I I - year term. 1.04. Because the HRA will convey its ownership interest in the Facility to Aeon, the Authority and Aeon will also enter into an Easement Agreement (the "Easement'), pursuant to which the Authority will retain its leasehold interest in the Facility for the term of the First Amendment. 1.05. The Board has determined that execution of the First Amendment and Easement as described in this resolution is in the best interest of the City and its residents. Section 2. First Amendment and Easement Aonroved• Further Proceedings. 2.01. The First Amendment and Easement as presented to the Board are hereby in all respects approved, subject to modifications that do not alter the substance of the transaction and that are approved by the President and Executive Director, provided that execution of the Agreement by such officials shall be conclusive evidence of approval. 2.02. Authority staff and consultants are authorized and directed to deliver the executed First Amendment and Easement to the HRA in connection with the conveyance of the Facility to Aeon. Approved by the Board of Commissioners of the Columbia Heights Economic Development Authority this 21 st day of September, 2015. President ATTEST: Secretary EXHBIT B Subject Parcels 4606 Polk Street NE PID: 25- 30 -24 -33 -0030 LOT 13 EX N1 /2 & N 30 FT OF LOT 14, BLK 2; SHEFFIELDS SECOND SUB; EX RDS; SUBJ TO EASE OF REC 4636 Polk Street NE PID: 25- 30 -24 -33 -0025 LOT 5 EX N 35 FT, ALL OF LOT 6 & N1 /2 OF LOT 7 BLK 2 SHEFFIELDS 2ND SUB 4641 Tyler Street NE PID: 25- 30 -24 -33 -0038 ALL OF LOT 25 & S 20 FT OF LOT 26, BLK 2, SHEFFIELDS 2ND SUB 4600 Polk Street NE PID: 25- 30 -24 -33 -0031 ALL OF LOT 14 EX N 30 FT & ALL OF LOT 15 BLK 2 SHEFFIELDS 2ND SUB 4648 Polk Street NE #1 PID: 25- 30 -24 -33 -0023 S1 /2 OF LOT 2 & ALL OF LOT 3 BLK 2 SHEFFIELDS 2ND SUB 4618 Polk Street NE PID: 25- 30 -24 -33 -0028 LOT I 1 & N 10 FT OF LOT 12, BLK 2, SHEFFIELDS 2ND SUB FIRST AMENDMENT TO SITE LEASE AGREEMENT THIS FIRST AMENDMENT TO SITE LEASE AGREEMENT (the "First Amendment ") is made this day of 2015 by and between Columbia Heights Economic Development Authority, a public body corporate andgolitic and political subdivision of the State of Minnesota, as the lessor, whose address is 590 40 Avenue NE, Columbia Heights, MN 55421 (hereinafter referred to as "Landlord "), and T- Mobile Central LLC, a Delaware limited liability company, whose address is 12920 SE 38th Street, Bellevue, WA 98006, as successor in interest to APT Minneapolis, Inc. (hereinafter referred to as "Tenant "). RECITALS WHEREAS, Landlord and Tenant are parties to a Site Lease Agreement, dated December 4, 1996 (the "Lease ") whereby Landlord has leased to Tenant and Tenant has leased from Landlord approximately 250 square feet of rooftop space (the "Leased Premises ") on a certain building located at 965 40th Avenue NE, Columbia Heights, Minnesota, legally described in Exhibit A attached hereto (the "Property "); WHEREAS, the Lease provides for an Initial Term commencing on approximately January 1, 1997 and expiring December 31, 2001, with rent commencing at $12,000 for the initial year and increased each year by the greater of (i) 4% of the previous year's annualized rent, or (ii) an amount equal to the increase in the Consumer Price Index ( "CPI "), all as more fully described in paragraph 2 of the Lease, subject to three (3) Renewal Terms of five (5) years each at a rental rate for each Renewal Term consistent with the terms of the Initial Term; WHEREAS, Tenant exercised its right to extend the Initial Term of the Lease for each of the three Renewal Terms; WHEREAS, Landlord and Tenant desire to extend the Term of the Lease for an additional 11 -year renewal term from January 1, 2017 through December 31, 2027 (the "Additional Renewal Term "); WHEREAS, Landlord and Tenant have agreed on a rental rate for such Additional Renewal Term; and WHEREAS, Landlord intends to convey fee title to the Property to Aeon, a Minnesota nonprofit corporation (or its successor or assign, as applicable, being hereafter referred to as "Property Owner ") and will be granted a non - exclusive easement (the "Easement ") to the Leased Premises for a period equal to the Additional Renewal Term, along with certain rights of ingress and egress thereto through the Property, subject to Property Owner's reasonable security requirements and the rights of tenants at the Property. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, Landlord and Tenant hereby amend the Lease as follows: 462511 v I MNI CL160 -82 1. Additional Renewal Term. The Lease is hereby extended for the Additional Renewal Term, which shall run from January 1, 2017 through December 31, 2027. 2. Additional Extensions. A. The parties acknowledge that upon the expiration or earlier termination of the Additional Renewal Term, the Easement will expire and, as a result, Landlord will no longer have the right to occupy the Property for the purposes of providing Tenant its rights under the Lease. Accordingly, the following extension provisions are subject to the Owner Approval (as hereafter defined) and, in connection therewith, Property Owner's consent to its replacement of Landlord as the landlord under the Lease. B. The parties further agree that Tenant shall have the option to request extensions of the Lease for two (2) additional five -year Renewal Terms commencing, respectively, on January 1, 2028 and January 1, 2033, by providing Property Owner written notice of Tenant's request for renewal (the "Renewal Request ") at least eighteen (18) months prior to the expiration of the Additional Renewal Term or the first subsequent Renewal Term thereafter. Property Owner may approve or reject Tenant's Renewal Request in writing within 60 days after Property Owner's receipt of the Renewal Request for any reason or for no reason whatsoever; provided, however, any failure of Property Owner to respond to a Renewal Request shall be deemed a rejection of the Renewal Request. Property Owner's acceptance of a Renewal Request is referred to as an "Owner Approval." If Property Owner does not provide its Owner Approval in response to a Renewal Request, the Lease shall terminate in accordance with the terms upon the scheduled termination of the then - current term. If a Renewal Request for the first Renewal Term is either not delivered or rejected, the second subsequent Renewal Term will be void. 3. Rent for Additional Renewal Term. The rent for the Additional Renewal Term and any subsequent Renewal Term shall continue without interruption; provided that the rent shall be increased each year on January 1 by 3% of the previous year's annualized rent. After the termination of the Additional Renewal Term, if the Lease is extended as provided herein, rent shall be payable to Property Owner at the address provided in Section 6 below. 4. Lease of Landlord's Interest in Easement. Landlord and Tenant agree that the Lease is a lease only of Landlord's interest in the Leased Premises during the Additional Renewal Term. Landlord and Tenant agree that, for the Additional Renewal Term, Property Owner is a third party beneficiary under the Lease, as modified hereby, and has the right to directly enforce all of the duties and obligations of Tenant under the Lease if Landlord fails to do so within the time periods required under the Lease. Upon any extension after the Additional Renewal Term, Property Owner will become the landlord under the Lease and, accordingly, a direct beneficiary, obligee, and obligor thereunder. Landlord and Tenant agree that all rights of Property Owner under this First Amendment shall inure to the benefit of its successors in title to the Property. Further, Tenant agrees that it shall name Property Owner as an additional insured under the applicable liability insurance which Tenant is required to maintain under the Lease. Landlord and Tenant agree that all warranties and indemnities set forth in the Lease shall inure to the benefit of Property Owner and that each of Landlord and Tenant will exercise its rights under 462511v1 MNICLI60 -82 2 the Lease in such a manner so as to not injure or damage the property of Property Owner or its tenants and so as to comply with Property Owner's reasonable security and other rules respecting the Property so as to not interfere with the right of quiet enjoyment of the tenants at the Property. 5. Recitals. The Recitals provisions are incorporated herein by this reference. 6. Notice and Cure. Tenant agrees to give Property Owner written notice of any defaults by Landlord under the Lease and an opportunity, at Property Owner's option, to cause the cure of such default within the cure periods set forth in the Lease, prior to exercising any remedies under the Lease. All notices to Property Owner shall be sent in accordance with the procedures for delivering notice under the Lease as follows: Parkview Limited Partnership Attn: Eric Schnell, Chief Operating Officer 901 North Third Street, Suite 150 Minneapolis, MN 55401 or to such alternate address or attention as Property Owner shall notify Tenant and Landlord in writing pursuant thereto. 7. Liens and Claims. Each of Landlord and Tenant agrees that it will not cause or permit any mechanic's or materialmen's liens or claims to be filed against the Property, or any part thereof, including, without limitation, the Leased Premises and shall indemnify Property Owner and its partners, and hold them harmless, from and against any and all mechanic's or materialmen's liens or claims or any other claims, whether third party claims or otherwise, arising from the Lease or the actions or omissions of Landlord or Tenant thereunder. 8. Easement Agreement. Tenant acknowledges that the Easement will be granted pursuant to a certain Easement Agreement between Landlord and Property Owner to be recorded in the Anoka County real estate records upon conveyance of fee title to the Property to Property Owner (or its successor or assign) (the "Easement Agreement "), and agrees that Tenant's operations under the Lease, as amended hereby, will be in accordance with the recorded Easement Agreement and that, to the extent the Easement Agreement conflicts with the Lease the Easement Agreement will control. During the Additional Renewal Term, and notwithstanding anything to the contrary in the Lease, Easement Agreement or this First Amendment, (i) Landlord shall be solely responsible for performing all duties and obligations of Landlord under the Lease, and (ii) except as otherwise expressly provided herein, Tenant shall communicate solely with Landlord, and not Property Owner, with respect to all matters relating to the Lease and Tenant's use of the Leased Premises. 9. No Other Changes. Except as specifically provided herein, the Lease remains unchanged and in full force and effect. Capitalized terms not otherwise defined in this First Amendment shall have the meanings ascribed to them in the Lease. 4625110 MNI CL160 -82 3 IN WITNESS WHEREOF the undersigned have executed this instrument the day and year first referenced above. LANDLORD: STATE OF MINNESOTA ) ) ss. COUNTY OF ANOKA ) COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY By: Its President By: Its Executive Director The foregoing instrument was acknowledged before me this _ day of 2015 by and , respectively the President and Executive Director of the Columbia Heights Economic Development Authority, on behalf of the authority. TENANT: STATE OF ) ss. COUNTY OF Notary Public T- MOBILE CENTRAL LLC The foregoing instrument was acknowledged before me this _ day of 2015 by the liability company, on behalf of the company. 46251M MNl CL160 -82 4 of T- Mobile Central LLC, a Delaware limited Notary Public EXHIBIT A Description of the Property Tenant's leasehold interest in Landlord's easement rights granted in the following described property, pursuant to Easement Agreement recorded as Document No. in the land records of Anoka County, Minnesota: Tract A: That part of the South 1/2 of Lot 13, lying Northwesterly of the following line: Beginning at the Northeast corner of the South 1/2 of Lot 13; thence Southwesterly to a point on the South line of said Lot 13, said point being 2 feet Easterly of the Southwest Cornets of Lot 13; the South 241 feet of Lot 14; then south 1/2 of Lot 15; Lot 39 except the West 30 feet thereof; Lots 40, 41, 42 and 43 and the West 1/2 of Lot 44, all in Block 5 Reservoir Hills, Columbia Heights, Anoka County, Minnesota (Abstract) Tract B: The East 40 feet of the South 1/2 of Lot 16, Block 5, Reservoir Hills, Columbia Heights, Anoka County, Minnesota. (Torrens) 46251Iv6 NINI CL160 -82 A -1 EASEMENT AGREEMENT (Cellular Antenna Facilities) This Easement Agreement (this "Agreement ") is made as of this _ day of , 2015, by and between the Columbia Heights Economic Development Authority, a public body corporate and politic in the State of Minnesota (the "EDA ") and Aeon, a Minnesota non - profit corporation ( "Owner "). WHEREAS, the Columbia Heights Housing and Redevelopment Authority (the "HRA ") was the owner of certain real property known as Parkview Villa North and Parkview Villa South, located at 965 40th Avenue Northeast in Columbia Heights, Anoka County, Minnesota which is more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property "); and WHEREAS, pursuant to that certain Site Lease Agreement dated December 4, 1996, as amended by that certain First Amendment to Site Lease Agreement dated 2015, and as may be further amended, restated or replaced from time to time (the "Lease "), T- Mobile maintains directional antennas, connecting cables, equipment, cabinets, an accessory building and appurtenances (collectively, the "Facilities ") as depicted on Exhibit C hereto (the "Plans ") on the roof of the Parkview Villa North building; and WHEREAS, concurrently with the execution of this Agreement, the HRA has conveyed the Property to Owner; and WHEREAS, prior to such conveyance the HRA assigned the Lease to the EDA; 457413v8 S1S CL160 -82 WHEREAS, the EDA desires an easement from Owner that will allow the EDA, or its tenant under the Lease, to continue to operate, maintain, repair and reconstruct the Facilities on the roof of the Parkview Villa North building; and WHEREAS, Owner agrees to grant a certain limited -term easement as provided in this Agreement; and NOW, THEREFORE, in consideration of one dollar ($1.00), the conditions, covenants and mutual agreements hereinafter set forth, the receipt and sufficiency of which is hereby acknowledged by Owner, the parties hereto agree as follows: 1. ANTENNA EASEMENT. Owner does hereby grant and convey to the EDA, for the Term (as defined herein), a non - exclusive antenna easement over and upon the portion of the roof of the Parkview Villa North building described on the attached Exhibit B and incorporated herein by reference (the "Easement Area ") for the construction, use, operation, maintenance and repair (including reconstruction) of the Facilities, subject to all governmental rules and regulations with respect to such facilities. 2. INGRESS AND EGRESS EASEMENT. Owner also does hereby grant and convey to the EDA, for the Term, a nonexclusive ingress and egress easement over the Property in order to gain reasonable and necessary access to the Easement Area. Owner reserves the right to change or limit the location of ingress and egress easement to the Easement Area to complement its residential development activities, provided that such access shall be reasonably located and not unduly interfere with the Facility operations. The EDA may not enter any buildings on the Property. The EDA may not build on the Property other than to construct, use, operate, maintain, repair or reconstruct the Facilities as depicted on the Plans. 3. PAYMENT OF UTILITIES. Prior to the date hereof, the EDA shall separately meter charges for the compensation of electricity and other utilities associated with the Facilities and the EDA's use of the Property and shall promptly and timely pay all costs associated herewith. 4. CONSTRUCTION. MAINTENANCE AND OPERATION. The EDA hereby represents, agrees, and warrants that the Facilities shall be constructed, used, operated, maintained, repaired and reconstructed in accordance with good construction and engineering practices and all applicable federal, state, and local laws, statutes, codes, ordinances, rules and regulations ( "Laws ") including those of the Federal Communications Commission, the City of Columbia Heights and Anoka County, and all applicable federal, state, and local environmental, safety and hazardous materials laws and regulations including but not limited to CERCLA ( "Hazardous Materials Laws "), and materially as depicted on the Plans. The EDA agrees to maintain, at its sole expense, the Facilities located on the Property in good condition and repair, at least equal to the standard of maintenance of the Property, and in accordance with all applicable Laws, and if any portion of the Facilities breaks, malfunctions, or is or becomes in disrepair, the EDA will promptly repair or replace the item or items including any and all damage caused by said breakdown, malfunction or disrepair at its own expense. The EDA agrees that it will not cause or permit any mechanic's or materialmen's liens or claims to be filed against the Property, or any part thereof. Except as depicted on the Plans, the EDA may not 2 US.57828727.11 457413v8 S7S CL160 -82 install any additional facilities or improvements without the prior written approval of Owner, such approval not to be unreasonably withheld, and may be made subject to any further requirements Owner may have, with the exception that the EDA may erect additional Facilities and install additional equipment on a temporary basis not to exceed 90 days to assure continuation of service in the event of a natural or manmade disaster in order to protect the health, welfare and safety of the community. At Owner's request, the EDA will install or cause to be installed a "screening" surrounding the exterior of the Facilities for esthetic purposes, which shall be painted to match the building and otherwise subject to Owner's approval. 5. HAZARDOUS MATERIALS. Except as reasonably used in the ordinary course of the operation of the Facilities, and in accordance with all applicable Laws, the EDA represents and warrants, that the use of the Easement Area and operation of the Facilities will not generate, and the EDA will not permit to be stored, disposed of, or transported to or over the Property, any Hazardous Materials. "Hazardous Materials" shall be interpreted broadly and specifically includes, without limitation, asbestos, fuel, batteries or any hazardous substance, waste or materials as defined in any Hazardous Materials Law. 6. PROPERTY MAINTENANCE; DAMAGE TO PROPERTY. Subject to Section 13 below and the EDA's maintenance and repair obligations set forth in this Agreement, Owner shall be responsible for maintaining the building and any improvements (other than the Facilities) that are located within the Easement Area at its sole expense. Within 15 days after notification by Owner of such damage (or such lesser period of time as Owner deems necessary in the event of an emergency), the EDA will restore, at its sole expense, any damage to the Easement Area or the Property caused during or by the installation, maintenance or operation of the Facilities, including damage to any structures, pavement, landscaping or any other improvements or surface or subsurface conditions, such restoration to be made to the same condition as immediately prior to such disturbance. 7. INTERFERENCE. The EDA shall cause the Facilities to be operated such that they do not unreasonably and materially interfere with Owner's use of the Property. If Owner finds in its reasonable discretion that the Facilities or any part thereof unreasonably and materially interferes with Owner or its tenants' use of the Property (including but not limited to threats to public health or safety), Owner may require the EDA to cause the operation of the Facilities to be temporarily discontinued, except for intermittent operation for the purpose of testing, until the interference has been eliminated. If the operation of the Facilities is discontinued in accordance with this Section and the interference cannot be eliminated within thirty (30) days immediately thereafter, and if the parties are unable to mutually agree on an alternative location on the Property in which to relocate the Facilities in accordance with Section 10 of this Agreement, Owner may terminate this Agreement; provided consent to relocate the Facilities due to an interference under this Section may be withheld by either party in its sole discretion, and the payment for such relocation shall be as mutually agreed by the parties. If Owner determines that a cessation is necessary as a result of an emergency or threat to public health or safety, Owner may require that such cessation be accomplished immediately. 8. INDEMNITY. The EDA agrees to defend, indemnify and hold harmless Owner and its partners, officers, employees, agents and representatives from and against any and all claims, 3 US.57828727.11 457413v8 SJS CLI60 -82 costs, losses, expenses, demands, actions, or causes of action, including reasonable attorneys' fees and other costs and expenses of litigation arising out of the use of the Property by the EDA or its employees, agents, tenants or invitees, except to the extent that the same arise from the gross negligence or willful misconduct of Owner. The indemnity provided herein shall survive the termination of this Agreement. Owner agrees to defend, indemnify and hold harmless the EDA and its officials, employees, agents and representatives from and against any and all claims, costs, losses, expenses, demands, actions, or causes of action, including reasonable attorneys' fees and other costs and expenses of litigation arising out of the use of the Property by Owner or its employees, agents, tenants or invitees, except to the extent that the same arise from the gross negligence or willful misconduct of the EDA. The indemnity provided herein shall survive the termination of this Agreement. 9. OWNER'S USE. Owner hereby reserves to itself the right to use the land included within the Easement Area, including but not limited to use for cellular antenna purposes (provided that any such use must not interfere with or impair the EDA's use of the Facilities and any further lease of the Easement Area by Owner must prohibit a user from interfering with the Facilities), subject to all governmental rules and regulations, and provided that such use will not unreasonably disturb or interfere with the Facilities or prevent reasonable ingress and egress thereto for the purposes of construction, operation, use, maintenance or repair (including reconstruction) thereof. If the intended use by Owner of the Easement Area is for cellular antenna purposes, the EDA may require Owner to obtain an interference study from a professional engineer to determine if the new frequencies will cause harmful interference with the Facilities at Owner's expense. 10. RELOCATION. Owner reserves the right to require the EDA to relocate the Facilities to other portions of the Property acceptable to the EDA in its reasonable discretion. Owner agrees to pay all reasonable costs incurred by the EDA that are reasonably related to such relocation. Owner agrees to give the EDA not less than 180 days' notice of any desired relocation. In the event of any such relocation, this Agreement shall be amended to reflect such relocation so that the EDA has an easement for the relocated Facilities under the same terms and conditions as this Agreement. 11. INSURANCE: RELEASE. The EDA agrees to maintain at all times adequate commercial general liability insurance with respect to its access rights on the Property and the Easement Area and the use and occupancy thereof (in an amount not less than $1,000,000.00 per occurrence), specifically including coverage against claims for bodily injury, death and property damage occurring on or about the Easement Area and the Property, and contractual coverage with respect to the indemnity obligations set forth in this Agreement. The current owner of the Property shall be named as an additional insured on such policy and all insurance policies required to be held by the EDA and the tenant under the Lease. The EDA shall furnish Owner with evidence of such coverage on or before the date of this Agreement, and upon request from time to time thereafter. 12. ABANDONMENT OF EASEMENT. If the EDA shall abandon or no longer use the Easement Area for a period of at least one year, then, notwithstanding any provision herein to the contrary, the Easement shall automatically terminate and the EDA shall, promptly upon request, 4 US.57828727.11 457413v8 SJS CL160 -82 execute a recordable instrument to evidence the termination and release of the easement and this Agreement. 13. EMINENT DOMAIN: CASUALTY. If the Easement Area or any part thereof is taken by eminent domain or conveyed in lieu of eminent domain, then this Agreement shall terminate and any award for such a taking or damages paid as a result of such taking shall be the sole and exclusive property of the owner of the property taken. Without limiting the foregoing, the EDA shall have the right to claim and recover from the condemning authority, but not from Owner, such compensation as may be separately awarded or recoverable by the EDA on account of any and all damage to the EDA's business and any costs or expenses incurred by the EDA in moving/removing its equipment, personal property, Facilities and leasehold improvements. The EDA and Owner agree to execute any instrument of assignment as may be required by the other for the recovery of damages with respect to that party's property. If the Easement Area is damaged by fire or other casualty (whether insured or not), Owner has no obligation hereunder to reconstruct the Easement Area or the building upon which it is located; provided, however, if Owner does perform such reconstruction, the EDA may at the EDA's expense reconstruct the Facilities within the reconstructed Easement Area for operation for the remainder of the Term. If Owner does not reconstruct the Easement Area in its sole discretion, this Agreement shall terminate. 14. ASSIGNMENT. Except for the existing Lease, the EDA may not assign or otherwise transfer, voluntarily or involuntarily, this Agreement without Owner's prior written consent, which may be withheld in Owner's absolute discretion; provided, however, without the consent of Owner, the EDA may assign this Agreement to a governmental entity that succeeds to all of the EDA's responsibilities in the County of Anoka. 15. NO DEDICATION. Nothing contained herein shall be deemed to be a dedication of any part of the Property to the general public, or for the general public or for any public purposes whatsoever. 16. NO PARTNERSHIP. None of the terms or provisions of this Agreement shall be deemed to create a partnership between or among the parties in their respective businesses or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. IT DEFAULT: REMEDIES. If a party hereto defaults under any of its obligations under this Agreement, and such default continues for 30 days after receipt of written notice from the non - defaulting party, then the non - defaulting party may exercise one or more of the following remedies: (a) Cure the default and charge the cost thereof to the defaulting party, and all such costs shall be payable on demand and shall bear interest from the date of demand until paid in full at the rate of 8% per annum; or (b) Apply for injunctive relief and/or specific performance. 5 US.57828727.11 457413v8 SJS CL160 -82 The 30 -day cure period shall not apply (a) in the case of an emergency in which event an immediate cure shall be required, and (b) where a default is not susceptible of cure within 30 days and the defaulting party commences the performance, fulfillment or observance within the 30 -day period and diligently prosecutes the same thereafter. Any action seeking one or more form of relief shall not be a bar to an action at the same or subsequent time seeking other or alternative relief. In any such action, the prevailing party shall be entitled to an award of its costs and reasonable attorneys' fees. No delay or forbearance by a non - defaulting party shall be deemed a waiver of the subject default or any subsequent default of a similar nature, and no waiver of any right and remedy hereunder shall be effective unless in writing and signed by the person against whom the waiver is claimed. 18. NOTICES. Notices in demand required or permitted to be given hereunder shall be given by certified mail, return receipt requested, or by a national overnight express service. In the case of Owner, notices shall be addressed to it at 901 North P Street, Suite 150, Minneapolis, MN 55401, Attn: Caroline Horton, or at such other address as specified in writing by Owner. In the case of the EDA, notices shall be addressed to it at: 590 40`s Avenue Northeast, Columbia Heights, Minnesota 55421, Attn: Executive Director or at such other address specified in writing by the EDA. 19. EXHIBITS. All exhibits referred to herein and attached hereto shall be deemed part of the Agreement. 20. RECORDING. The Agreement shall be recorded in the records of Anoka County, Minnesota. 21. GOVERNING LAWS. The laws of the state of Minnesota shall apply to the Agreement. 22. SEVERABILITY. If any term, provision or condition contained in the Agreement shall, to any extent, be invalid or unenforceable, the remainder of the Agreement (or the application of such term, provision or condition to persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each term, provision or condition of the Agreement shall be valid and enforceable to the fullest extent permitted by law. 23. BINDING ON FUTURE PARTIES. The easement granted herein shall run with the land and shall inure to the benefit of and be binding upon the parties, their successors and assigns for the Term. 24. LEASE. The EDA will enforce its rights under the Lease to the fullest extent and will require the tenant to operate strictly in accordance therewith. The EDA and Owner acknowledge and agree that all of the rights made available to the EDA under the Lease shall be made available to Owner (other than the right to collect rent thereunder), that all warranties and indemnities set forth in the Lease shall inure to the benefit of Owner, and that Owner may, on its own behalf or on behalf of the EDA, enforce, directly against the tenant or any other applicable party under the Lease, all rights afforded to the EDA under the Lease. The Lease may not be amended or otherwise modified without the prior written consent of Owner. Upon termination of the Lease, if the EDA is the landlord under the Lease at the time of its termination, the EDA 6 US.57828727.11 457413v8 S1S CL160 -82 will cause the tenant under the Lease to execute a "Termination of Lease" in recordable form and will cause such document to be recorded in the Offices of the County Recorder and the Registrar for Anoka County, Minnesota. 25. TERM. This Agreement will terminate and be of no further force or effect, except as otherwise provided herein, at 11:59 on December 31, 2027 (the "Termination Date "). Prior to the Termination Date, unless otherwise agreed to by the parties in writing, the EDA must cause the Facilities to be removed from the Property and must restore the Property to a condition as good as or better than that which existed immediately prior to the installation of the Facilities (including the replacement of any landscaping, curbing or paving that has been removed or damaged). If this Agreement is terminated prior to the Termination Date, the EDA must cause such restoration to be completed within 60 days after such termination. [Signature pages follow] US.57828727.11 4574130 SJS CL160 -82 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. OWNER: AEON Un Its: President and CEO ACKNOWLEDGMENTS STATE OF MINNESOTA l ss.: COUNTY OF I( The foregoing instrument was acknowledged before me this day of , 2015 by , the President and CEO of Aeon, a Minnesota non -profit corporation, by and on behalf of the corporation. Notary Public 1 US.57828727.11 457413v8 S1S CL160 -82 EDA: COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY M Its: President 0 Its: Executive Director ACKNOWLEDGMENTS STATE OF MINNESOTA ss I .: COUNTY OF ANOKA The foregoing instrument was acknowledged before me this day of , 2015 by and , the President and Executive Director, respectively, of the Columbia Heights Economic Development Authority, a body corporate and politic in the State of Minnesota, by and on behalf of said body. Notary Public Document Drafted By: Kennedy & Graven, Chartered (SJS) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337 -9300 2 US.57828727.11 457413v8 SJS CL160 -82 EXHIBIT A Legal Description of the Property Tract A: That part of the South 1/2 of Lot 13, lying Northwesterly of the following line: Beginning at the Northeast corner of the South 1/2 of Lot 13; thence Southwesterly to a point on the South line of said Lot 13, said point being 2 feet Easterly of the Southwest Cornets of Lot 13; the South 241 feet of Lot 14; then south 1/2 of Lot 15; Lot 39 except the West 30 feet thereof; Lots 40, 41, 42 and 43 and the West 1/2 of Lot 44, all in Block 5 Reservoir Hills, Columbia Heights, Anoka County, Minnesota (Abstract) Tract B: The East 40 feet of the South 1/2 of Lot 16, Block 5, Reservoir Hills, Columbia Heights, Anoka County, Minnesota. (Torrens) A -1 US.57828727.11 457413v8 S1S CLl60 -82 EXHIBIT B Legal Description of Easement Area An easement for antenna purposes over and across the following described Tracts A and B: Tract A: That part of the South 1/2 of Lot 13, lying Northwesterly of the following line: Beginning at the Northeast corner of the South 1/2 of Lot 13; thence Southwesterly to a point on the South line of said Lot 13, said point being 2 feet Easterly of the Southwest corner of Lot 13; the South 241 feet of Lot 14; the South 1/2 of Lot 15; Lot 39 except the West 30 feet thereof; Lots 40, 41, 42 and 43 and the West 1 /2of Lot 44, all in Block 5, Reservoir Hills, Columbia Heights, Anoka County, Minnesota Tract B: The East 40 feet of the South 1/2 of Lot 16, Block 5, Reservoir Hills, Columbia Heights, Anoka County, Minnesota. Said easement being described as commencing at the southeast corner of the west 30.00 feet of said Lot 39; thence on an assumed bearing of North 00 degrees 22 minutes 12 seconds West, along the east line of said west 30.00 feet of Lot 39 and its northerly extension, said northerly extension also being the west line of the east 40.00 feet of said Lot 16, a distance of 243.80 feet; thence North 89 degrees 43 minutes 46 seconds East a distance of 50.87 feet to the point of beginning; thence continuing North 89 degrees 43 minutes 46 seconds East a distance of 17.10 feet; thence North 00 degrees 16 minutes 14 seconds West a distance of 15.90 feet; thence South 89 degrees 43 minutes 46 seconds West a distance of 17.10 feet; thence South 00 degrees 16 minutes 14 seconds East a distance of 15.90 feet to the point of beginning. B -1 US.57828727.11 457413v8 SJS CL160 -82 s� lei s° x i yy EXHIBIT C Depiction of Easement Area 40TH AVENUE NE Scale: 1"=50' i DENOTES PROPOSED ` ANTENNAEASEMENT JalrreS R. Hill, Irc. B -1 457413v8 SJS CLI60 -82 r l� a n o 0 ?I2 is r.y 11 /y' rr i: EM ED P✓e] �i � �-�.ts °"� ^• APT' w+ f�YEPrwM��atF *iL[C �n.rf A1 CQa8 �G - ]11tB1 68] vlNN YD1R. II `Yil .wroy. rs. Xl. ilk }f ]K -. ]]D • PH3lYfD COI I�O'OYI B -1 4574I3v8 SJS CL160 -82 4 w w C z_ T it . „a oio c c_ x M r M G N"JRrm k scuT MaTdtS Rp.pCi K ? 6nY6J'.JJ A1OCAR 457413v8 S1S CL160 -82 'os I APT1 n.:ILM DANIEL -�—�. i 41. w+ ✓P w+ rn.. n� . YNA'Ft -t] rca upnYw �: 1 >n .a rvn m a w m r m o � c? o+y .g of m 9 :< q -'I Oil2 E ,.•• EAST r WEST UKVAII 4 �j nuoR 0+ � U.613)6 9tW 14x1! _ :M 457413v8 SJS CL160 -82 �bY AP- I