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
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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
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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
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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
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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
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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
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Depiction of Easement Area
40TH AVENUE NE
Scale: 1"=50'
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ANTENNAEASEMENT JalrreS R. Hill, Irc.
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