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HomeMy WebLinkAboutContract No. 2015-2687.06EASEMENT AGREEMENT Cellular Antenna Facilities) This Easement Agreement (this "Agreement") is made as of this t day of September, 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 Housing and Redevelopment Authority of Columbia Heights, Minnesota the "HRA") was the owner of certain real property known as Parkview Villa North and Parkview Villa South, located at 965 401h 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 P'lans") 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; 4574130 SJS CL 160-82 WHEREAS, the EDA desires an easement frorn 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: I , 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 riot 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 I`.'DA may not 2 US.57828727.11 457413vS SJS C1,160-82 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, t1. 57828727.11. 457413v8 SJS CL 60-82 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 arnended to reflect such relocation so that the EDA has an easement for the relocated Facilities Linder 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 tirne 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 457413vS 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 pail 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 ERA'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 ERA'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. 17. 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 4574]3v8 SJS CI-160-82 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 3rd 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`1i 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 pall 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 I erm. 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 pail), 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 SJS CL 160-82 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] 7 US.57828727.11 457413v8 SJS CI-160-82 IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written, OWNER- AEON By: ACKNOWLEDGMENTS STATE OF MINNESO11, A S.: COUNTY OFRAMSEY I The foregoing instrument was acknowledged before one this %3,4 day of September, 2015 by Caroline Horton, the Chief Financial Officer of Aeon, a Minnesota non-profit corporation, by and on behalf of the corporation. Notary Public/ VARY k4 OLSOt4NOt"Ary Pubhc fir r 'Ora0MSionEX 31 US, 57828727,11 W07.4 1 1 1 K R" ! ' 13 ' 0119111 1111W.1'.00 0 STATE OF MINNESOTA Ss': COUNTY OF ANOKA I The foregoing instrument was acknowledged before me this day of September, 2015 by Gary Peterson, the President of the Columbia Heights Economic Development Authority, a body corporate and politic in the State of Minnesota, by and on behalf of said body. LA di A-111" m cr., Notary Public STATE OF MINNESOTA ss,: COUNTY OF ANOKA I The foregoing instrument was acknowledged before me this 19-1—L-day of September, 2015 by Walter Fehst, the Executive Director of the Columbia Heights Economic Development Authority, a body corporate and politic in the State ofMinnesota, by and on behalf of said body. Document Drafted By: Kennedy & Graven, Chartered (SIS) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 612) 337-9300 457413v7 SJS CL160-62 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 comer 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 Comets of Lot 13; the South 241 feet of Lot 14; then south 1/22 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 Flills, 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, jorrens) A-] US.57828727.11 457413%,g SJS CL„ 160 -82, A Legal Description of Easement Area An easement for antenna purposes ever .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 ofLot 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 N r orth 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.5182872'7.11 4574 130 SJS CL 160-92 Depiction of Easement Area 40TH AVENUE NE DENOTES PROPuSED ANTENNA EASEMENT B-1 4574130 SJS CL 160-92 e. r Hid I OA IQwlrl- B-1 4574 1 3vS SJS 01..164 -8? 1,9 11 -41 1 7X, 4 F 4m, B-1 457413v8SJ9Cl,1682 ArIl" m 457413v8 S JS C1,160-82 APT rAKAA 4\ S t=-- m 457413v8 S JS C1,160-82 APT rAKAA