HomeMy WebLinkAbout3033Transfer Entered
Dec 2, 2019 2:47 PM
Hennepin County, Minnesota
Mark Chapin
County Auditor and Treasurer
Doc No T05666329
Certified, filed and/or recorded on
Dec 2, 2019 2:47 PM
Office of the Registrar of Titles
Hennepin County, Minnesota
Martin McCormick, Registrar of Titles
Mark Chapin, County Auditor and Treasurer
Deputy 98
Document Recording Fee
Pkg ID1913317C
$46.00
Document Total $46.00
Existing Certs
1457559
This cover sheet is now a permanent part of the recorded document.
Transfer Entered
Dec 2, 2019 2:47 PM
Hennepin County, Minnesota
Mark Chapin
County Auditor and Treasurer
Deputy 98
Doc No A10730266
Certified, filed and/or recorded on
Dec 2, 2019 2:47 PM
Office of the County Recorder
Hennepin County, Minnesota
Martin McCormick, County Recorder
Mark Chapin, County Auditor and Treasurer
Pkg ID1913317C
Document Recording Fee $46.00
Document Total $46.00
This cover sheet is now a permanent part of the recorded document.
EASEMENT AND MAINTENANCE AGREEMENT
(Market Street Trash Facility)
THIS EASEMENT AND MAINTENANCE AGREEMENT (this “Agreement”) is made and
entered into November 1, 2019 (“Effective Date”), by and between the CITY OF EDINA, MINNESOTA,
a Minnesota statutory city (the “City”), and EDINA MARKET STREET EEC, a Minnesota limited
liability company (the “Developer”).
RECITALS
WHEREAS, the Housing and Redevelopment Authority of the City of Edina, Minnesota, a public
body corporate and politic organized and existing under the laws of the State of Minnesota (the
“Authority”), the City, and Developer have entered into a Redevelopment Agreement (the “Contract”)
dated June 27, 2017, as amended; and
WHEREAS, such Contract is intended to provide for the redevelopment of certain land within the
City’s 50th & France District located on Market Street (formerly known as 49 1/2 Sti-eet) by the
Developer in coordination with the Authority and with the cooperation and assistance of City, including
that certain land legally described on Exhibit A attached hereto (referred to herein and in the Contract as
the “South Site”): and
WHEREAS, the Contract provides for the expenditure of public and other funds to assist with the
construction of certain improvements to the South Site (referred to herein and in the Contract as the
“South Site Vertical Improvements”); and
WHEREAS, the South Site Vertical Improvements include two shared trash facilities (the
“Market Street Trash Facility”: defined in the Contraet as the Shared Trash Facility), which such Market
Street Trash Facility is located on those portions of the South Site depicted in Exhibit B attached hereto;
and
WHEREAS, the City and the Developer have agreed in the Contract that the Developer will grant
an easement to the City pursuant to which the City may access and use the Market Street Trash Facility
and grant licenses for access to and use of the Market Street Trash Facility to the owners, tenant and
subtenants of certain buildings within the 50th & France District pursuant to the terms and conditions of
this Agreement; and
WHEREAS, the Developer has agreed to operate, manage, and maintain the Market Street Trash
Facility pursuant and subject to the terms and conditions of the Contract and this Agreement, and
WHEREAS, the City and Developer deem it to be in their interest and in furtherance of the
economic development and redevelopment plan for the South Site to enter into this this Agreement with
respect to the Market Street Trash Facility; and
WHEREAS, all capitalized terms used herein without definition shall have the respective
meanings aseribed to them in the Contract.
NOW, THEREFORE, in consideration of the premises and the mutual obligations of the parties
hereto, each of them does hereby covenant and agree with the others as follows:
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Article I.
GRANT OF EASEMENTS
Section 1.1. Easement Premises. Developer hereby grants and conveys to the City, for the
benefit of the City, its employees, contractors, and agents, (i) a non-exclusive, perpetual easement over,
across and upon those portions of the real property depicted on Exhibit B attached hereto situate in the
City of Edina, County of Hennepin, State of Minnesota (the “Trash Facility Premises”) for the purpose of
disposing of, collecting, storing, and facilitating the removal of trash, refuse, debris, filth, recyclable
materials (including organic recycling materials) and such other ordinary waste products generated by the
“Licensed Parties” (as defined below) within the “Serviced Buildings” (collectively “Waste”), in
accordance with and subject to the terms and conditions of this Agreement and (b) a non-exclusive,
perpetual easement over, across, upon and through all exterior means of pedestrian and vehicular access
to and from public rights of way, streets, alleys, public spaces, and easements appurtenant and/or used in
connection with the Trash Facility Premises immediately adjoining or contiguous to the Trash Facility
Premises, which such driveways, exterior sidewalks, alley ways, woonerfs and corridors providing such
means of access to the Trash Facility Premises from the Serviced Building are as depicted on Exhibit B
attached hereto (collectively, the “Access Premises”, and together with the Trash Facility Premises,
collectively the “Easement Premises”), all in accordance with and subject to the terms and conditions of
this Agreement. Subject to the terms of this Agreement, the City may grant licenses for the use of the
Easement Premises to the owners, tenants, and subtenants of the UG Parking Element, the North Ramp
(including the North Ramp Improvements), the Shared Plaza Element, the North Site Commercial
Elements, the South Site Commercial Elements and, subject to Section 2.2 below, the existing buildings
located on the city block bordered by 50th Street, Halifax Avenue, Market Street and France Avenue
(collectively, the “Serviced Buildings”) (each a “Licensed Party”, and collectively, the “Licensed
Parties”). Before any Licensed Party is given the means to access the Easement Premises and use Market
Street Trash Facility, the Licensed Party must sign a reasonable license agreement which shall obligate
such Licensed Party to use the Market Street Trash Facility in accordance with the terms and conditions
of this Agreement and shall include reasonable indemnification provisions by which such Licensed Party
will be responsible for all claims, demands, actions, damages, costs, expenses, attorneys’ fees, and
liability (including costs of “Maintenance Work”) arising from the negligence, willful misconduct, or
violation of the requirements of this Agreement or the license agreement by such Licensed Party, its
employees, agents, and invitees in connection with the use of the Easement Premises.
Article II.
TERM
Section 2.1. Term. The easements granted hereby, and each reservation, covenant, condition
and restriction contained in this Agreement, shall be effective as of the date hereof, shall be perpetual, and
shall remain in effect until affirmatively released by the City. Such release shall be evidenced by the
recording of a release or termination of this Agreement in the real estate records of Hennepin County,
Minnesota, at which time this Agreement shall tenuinate, subject to reconciliation of expenses and
obligations incurred through the date of release or termination and the continuation of those provisions
that specifically survive termination of this Agreement, and the Market Street Trash Facility and any other
areas of the Easement Premises shall thereafter belong to and be under the sole control of Developer.
Section 2.2. Partial Release of Adjoining Properties. Notwithstanding anything to the
contrary contained herein, the easements granted herein shall terminate (and corresponding licenses shall
be revoked) with respect to any of the Serviced Buildings located on the city block bordered by 50th
Street, Halifax Avenue, Market Street and France Avenue in the event such propeity is demolished or
4845-4067-6681\5
otherwise redeveloped in a manner sufficient to support its own trash facility, or otherwise redeveloped or
repurposed in such a manner that materially increases the volume or intensity of such property’s Waste or
use of the Easement Premises hereunder. Upon such change in building or use, the Developer and City
shall jointly execute and record a partial termination of this Agreement with respect to such parcel.
Article III.
USE OF EASEMENT PREMISES
Section 3.1. Operation and Control of the Market Street Trash Facility. During the term
of this Agreement, the Developer shall operate the Market Street Trash Facility, in accordance with this
Agreement and all applicable governmental laws, ordinances, regulations and orders, subject to the
reimbursement provisions contained herein. Subject to the terms of this Agreement, the Developer shall
have full authority and control over the management, operation, and use of the Market Street Trash
Facility. Except as specifically set forth herein, the Developer shall be entitled to make all decisions and
to execute all agreements, in its sole discretion, with respect to the Market Street Trash Facility so long as
such decisions and agreements do not violate the provisions of this Agreement, the Contract, the approved
Final Development Plan, or any applicable governmental laws, ordinances, regulations or orders, as each
of the foregoing may be amended and so long as each of the foregoing remains in effect. The Developer
shall establish (and modify from time to time) such hours of operation, rules, and regulations as it deems
advisable, necessary, or appropriate in the Developer’s reasonable discretion for the safe, efficient, and
orderly use and operation of the Market Street Trash Facility, including maintenance and management of
(a) a system of secured, controlled access to the Market Street Trash Facility by the Licensed Parties only
by key, key card, key fob or other secured means as authorized and issued by or through the City
(“Secured Access System”) and (b) a security system with cameras and related recording equipment to
reasonably monitor the use and access of the Market Street Trash Facility (“Security System”).
Section 3.2. Waste; Nuisance. Neither the City nor the Developer shall knowingly or
willfully commit or suffer to be committed any waste or damage in or upon the Easement Premises, or
any disfigurement or injury to any improvements hereafter erected or located upon the Easement
Premises, or any part thereof, or the fixtures and/or equipment thereof The City in its use and occupancy
of the Easement Premises, shall not knowingly and willfully commit or suffer to be committed any act or
thing which constitutes a nuisance. Usual and normal wear and tear, storage of trash, recycling or organic
recycling materials (provided organic recycling is provided at the Market Street Trash Facility), damage
by the elements, unavoidable casualty or depreciation and diminution over time shall not be considered
“waste,” “nuisance,” “damage,” “disfigurement,” or “injury.”
Article IV.
CONSTRUCTION AND MAINTENANCE OF THE EASEMENT PREMISES
Section 4.1. Construction of Market Street Trash Facility. In accordance with the
provisions of the Contract and this Agreement, the Developer is responsible, at its sole cost and expense,
to initially build, construct, and install the Market Sfteet Trash Facility, consisting of (a) all walls, floors,
curbs, ceilings, vents, and all other structural and finish elements required to create a fully enclosed space
and (b) all components and fixtures located thereon, including, without limitation, the Secured Access
System, the Security System, all lighting, doors, gates, locks, shelving, and required electrical, plumbing,
and mechanical systems and signage. The size, location, and design of the Market Street Trash Facility
must be as approved in the Final Development Plans. In addition, the Developer is responsible for initial
construction and ongoing maintenance for the term of this Agreement of a subsurface structural support
4845-4067-6681\5
system capable of supporting the Market Street Trash Facility and the ongoing operation, maintenance,
and repair thereof.
Section 4.2. Developer Maintenance. The Developer shall, at all times during the term
hereof, at its initial cost and expense, subject to the reimbursement provisions hereof, keep, maintain, and
repair the Market Street Trash Facility (including the Access Premises) in good condition and repair in a
first-class manner. Such maintenance and repair work shall include the following (collectively
“Maintenance Work”):
(a) all interior and exterior non-structural repairs, replacements, renewals, alterations,
additions and betterments thereto, ordinary and extraordinary, and foreseen and unforeseen, all as may be
necessaiy to keep the Market Street Trash Facility in the condition and repair required by this Agreement;
(b) maintenance, repair or replacement of all structural elements of the Market Street Trash
Facility, including structural components of all walls, ceilings, and roofs, and foundations, foundation
walls, floor slabs, support walls, and waterproofing systems; and
(c) replacement, repair, or correction of any structural or other construction defects;
(d) maintaining in good working order (including cleaning and painting as necessary),
repairing, and replacing as necessary all Access Facilities; and
(e) maintaining in good working order, repairing, and replacing as necessary all domestic
water, sewer, storm water, gas, electricity, power, heat, telephone, other communications service and any
and all other utility or similar services used, rendered, or supplied, upon, at, from, or in connection with
the Market Street Trash Facility.
(f) the inspection, repair, replacement, and maintenance of all interior finish surfaces to a
smooth and evenly covered condition;
(g) the inspection, repair, replacement, maintenance, and management of the Secured Access
System, the Security System and any required ventilation system;
(h) periodic janitorial, cleaning and pest control services necessary to keep the Market Street
Trash Facility in a clean, orderly and sanitary condition;
(i) providing or arranging for the provision of all necessary and proper containers for the
storage of all Waste (e.g., trash cans, dumpsters, compactors, etc.) (“Waste Containers”); and
(j) periodic removal or causing the periodic removal of all Waste deposited by the Licensed
Parties in the Market Street Trash Facility at such intervals necessary to prevent the accumulation such
Waste beyond the capacity of the Waste Containers.
Section 4.3. Manner of Performance. All Maintenance Work shall be done: (i) in such
manner as to not unreasonably interfere with the normal use and enjoyment of the area on which such
work is being done; (ii) in full compliance with the provisions of this Agreement and the Contract; (iv) in
full compliance with all applicable statutes, codes, ordinances, rules and regulations; (v) with respect to
reconstruction, maintenance, repair, alterations or modifications, the Maintenance Work shall use
materials, equipment and design and engineering standards, equal to or better than those originally used;
(vi) in a good and workmanlike manner; (vii) in such manner as not to unreasonably adversely affect,
impair or destroy the structural soundness or integrity, aesthetic appearance or functional utility of the
4845-4067-6681\5
Market Street Trash Facility; (viii) with all due diligence; and (ix) in such a manner so as to clean the area
and restore the affected portion of the area on which the Maintenance Work was done to a condition equal
to or better, to the extent practical, than the condition which existed prior to the commencement of such
Maintenance Work. The Developer may, from time to time, select and hire one or more third parties to
perform the Maintenance Work, provided that the Developer shall remain responsible at all times for the
performance of each such Maintenance Work. Notwithstanding anything to the contrary contained herein,
to the extent that any Maintenance Work is required due to damage or destruction caused by the
negligence or willful misconduct of the City, the Developer, or their respective employees, agents, or
invitees, including the Licensed Parties as licensees of the City, the cost and responsibility for the repair
of such damage or destruction shall be borne by the party whose negligence or willful misconduct (or
whose employee, agent or invitee’s negligence or willful misconduct) caused such damage or
destruction.SOth & France District Maintenance Assessments. The Developer acknowledges and
agrees that nothing in this Agreement will be deemed to limit the City’s right to recoup its share of the
Maintenance Costs hereunder by including such costs in the 50th & France District commercial area
maintenance assessments, including assessments levied upon property owned by the Developer, all as
specified and in accordance with the City Code.
Section 4.5, Liens. The Developer will not permit any mechanic’s or materialmen’s liens to
stand against the Easement Premises on account of improvements authorized by Developer (and will
promptly discharge (by payment, bonding over or otherwise) the same upon their occurrence); provided,
however, the Developer may in good faith and at its expense contest any such lien in which event such
lien may remain undischarged and unsatisfied during the contest and any appeal, provided the Developer
shall file a bond or deposit cash or other reasonable security in the amount of such lien with the court or
with a mortgagee of the Market Street Trash Facility to secure the payment of such lien if finally
determined to be valid.
Section 4.6. Third Party Maintenance Providers. The Developer shall have the right, from
time to time, to select and hire a third party to perform the Maintenance Work, provided that the
Developer shall remain responsible at all times for the performance of the Maintenance Work. If the
Developer selects such third party to perform, supervise or coordinate the Maintenance Work (the
“Property Manager”), such Property Manager must be a recognized professional commercial property
management company. The Developer may hire companies affiliated with it to perform the Maintenance
Work, but only if the rates charged by such companies are competitive with those of other companies
furnishing similar service in the Minneapolis-St. Paul metropolitan area, it being agreed that this
provision regarding affiliated companies shall be construed strictly against the Developer. Any contract
with a Property Manager, and the amounts to be paid such Property Manager under such contract, shall be
subject to the City’s prior review and approval, which approval shall not be unreasonably withheld,
conditioned or delayed. All such contracts shall be no longer than one (1) year in duration (but may
provide for automatic renewal).
Section 4.7. Maintenance Costs; Budget.
(a) Subject to the Excluded Costs set forth in Section 4.8 below, all costs and expenses in
connection with the Maintenance Work (“Maintenance Costs”) shall be the responsibility of the City
(subject to reimbursement under Section 4.4 above or such other reimbursement as the City may obtain
from the Licensed Parties). Maintenance Costs shall also include an administrative or overhead fee of the
Developer or the Property Manager (if applicable), but not both (“Administrative Fee”) to cover arranging
such maintenance and billing, but such Administrative Fee shall not exceed three percent (3%) of the
Maintenance Costs exclusive of such Administrative Fee.
4845-4067-6681\5
(b) Unless the parties agree to a different budgeting process, no later than September 1 of
each year, the Developer shall submit to the City an estimated annual budget of the Maintenance Costs for
the following calendar year, and the parties will cooperate in good faith to finalize such budget no later
than October 1 of each year (“Annual Budgef’). The Developer shall submit the first Annual Budget to
the City, covering the initial partial year of operation of the Market Street Trash Facility, no later than
sixty (60) days prior to the anticipated date the Market Street Trash Facility will available for use by the
Licensed Parties. Each Annual Budget shall be subject to the City’s review and prior written approval,
which approval shall not be unreasonably withheld, conditioned or delayed. City and Developer agree that
Maintenance Work that is included in the applicable Annual Budget, including any allowances therein,
and any Maintenance Work that is otherwise considered necessary or prudent under industry standards for
the safe operation and long-term preservation of first-class indoor trash collection facilities (collectively
“Nondiscretionarv Maintenance Work”) shall be performed by Developer in accordance with the terms
hereof and the cost thereof included in Maintenance Costs. All Maintenance Work other than
Nondiscretionaiy Maintenance Work is referred to herein as “Discretionary Maintenance Work”. The
City shall be entitled to reject or approve, in whole or in part (if partial rejection is feasible in Developer’s
reasonable opinion), in its sole and absolute discretion, and the City may modify the Annual Budget to
account for any Discretionary Maintenance Work so rejected by the City.
(c) Unless the parties agree to a different payment and reimbursement process, the City shall
pay to the Developer one twelfth (1/12) of the City’s pro rata share of Maintenance Costs as set forth in
the approved Annual Budget in monthly Installments no later than thiity (30) days following invoice
thereof from the Developer (and paid in arrears if required by City policy). If the Effective Date is a day
other than the first day of a calendar month, the City’s share of the costs for this month shall be a prorated
portion of the monthly estimation, based upon a thirty (30) day month, and shall be due and payable on
the Effective Date. Any payment not received when due hereunder shall accrue interest at a rate of twelve
percent (12%) per annum.
(d) Within sixty (60) days after the end of each calendar year, the Developer shall provide
the City with a certified statement, together with supporting material upon request of the City, as to the
actual Maintenance Costs paid by it during the preceding calendar year, together with an accounting of
the Administrative Fee. If the amount paid by City for such calendar year shall have exceeded its share,
the Developer shall promptly refund the excess to the City at the time such certified statement is
delivered, or if the amount paid by the City for such calendar year is less than its share, the City shall pay
the balance of its share to Developer within sixty (60) days after receipt of such certified statement.
(e) Within one (1) year after receipt of any such certified statement, the City shall have the
right to inspect the Developer’s books and records pertaining to Maintenance Costs for the calendar year
covered by such statement. The Developer shall provide a complete copy of such books and records to the
City in electronic form In the event that such inspection shall disclose any error in the determination of
Maintenance Costs or in calculating the City’s share of such costs, an appropriate adjustment shall be
made forthwith. Alternatively, the City may cause a third-party auditor to conduct such inspection,
provided as a condition of any third-party audit, City and Developer agree that only auditors compensated
on an hourly or fixed fee basis (expressly excluding any auditors compensated on a contingent basis) shall
be permitted and prior to any such audit City shall provide evidence of same by deliveiy to Developer of
a copy of the City’s engagement letter with the auditor. In the event that such audit shall disclose any
error in the determination of Maintenance Costs or in calculating the City’s share of such costs, an
appropriate adjustment shall be made forthwith. The cost of any such audit shall be assumed by the City
unless the City shall be entitled to a refund in excess of ten (10%) percent of the amount calculated by the
Developer as its share of such costs for such calendar year, in which case the Developer shall pay the cost
of such audit, without reimbursement, not to exceed $2,000.00. The Developer shall keep, and present.
4845-4067-6681\5
upon request, all invoices, bills or statements of costs or expenses incurred in connection with the
Maintenance Costs for a period of two (2) years.
Section 4.8. Exclusions to Maintenance Costs. Notwithstanding anything in this Agreement
to the contrary, the City shall not be obligated to pay any portion of Maintenance Costs expended by
Developer with respect to the following items, which such Maintenance Costs shall be the Developer’s
sole cost and expense and not subject to reimbursement from the City (collectively “Excluded Costs”):
(a) The repair or replaeement of any structural element of the Market Street Trash Facility,
including the foundation, foundation walls, floor slabs, exterior walls, and waterproofing systems related
to the foregoing;
(b) replacement, repair, or correction of any structural or other construction defect;
(c) Taxes, except Separate Taxes, if any, pursuant to Section 6.1 below;
(d) Policies of insurance required to be carried by the Developer pursuant to Article VII,
except the City’s Propeily Insurance Contribution pursuant to Section 7.1 below;
(e) Maintenance Work related to the repair of any damage caused by the Developer, its
contractors and agents (provided, however, the City will pay one hundred percent (100%) of the cost of
repair of any damage caused by the City or the Licensed Parties (other than Developer), or employees or
agents thereof;
(f) With respect to Maintenance Work performed by a party related to Developer, then any
cost therefor in excess of what would be chargeable in an arms-length transaction;
(g) Discretionary Maintenance Costs not approved by the City in writing; and
(h) Maintenance Costs which are extraordinary costs and which are not reasonably necessary
for the operation, maintenance and insurance of the Market Street Trash Facility, including, without
limitation, (i) any late charges or fees; (ii) any entertainment, transportation, meals or lodging charges, of
anyone; or (iii) any profit, administrative and overhead costs (other than the Administrative Fee), such as
rent, legal, supplies, utilities and wages or salaries paid to management or supervisory personnel, except
as otherwise provided in this Agreement.
Article V.
UTILITIES
Section 5.1. Utility Charges. Developer shall cause the utilities serving the Market Street
Trash Facility to be separately metered (together with the utilities for the Shared Plaza Element) and the
City will pay, or cause to be paid, when the same become due, all charges for water, sewer usage, storm
water, gas, electricity, power, heat, telephone, or other communications service and any and all other
utility or similar services used, rendered, supplied, or consumed in, upon, at, from, or in connection with
the Easement Premises, or any part thereof.
.7
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Article VI.
TAXES AND ASSESSMENTS
Section 6.1. Payment of Taxes and Assessments. Developer shall pay, or cause to be paid,
before becoming delinquent, all real estate taxes, charges, assessments, and levies (collectively “Taxes”),
assessed and levied by any governmental taxing authority during the term of this Agreement against the
Market Street Trash Facility. Notwithstanding the foregoing, if (i) the Market Street Trash Facility is ever
subdivided such that it becomes a separate tax parcel and such parcel is deemed to be subject to Taxes, or
(ii) records of the tax assessor provide reasonable evidence that the Market Street Trash Facility is
deemed to be subject to Taxes, the City shall pay directly to the relevant taxing authority any such Taxes
(“Separate Taxes”).
Article VIE
INDEMNIFICATION, INSURANCE, IMMUNITIES
Section 7.1. Property Insurance. At all times during the term hereof, the Developer shall
keep the South Site Vertical Improvements (including the Market Street Trash Facility), and all
alterations, extensions, and improvements thereto and replacements thereof, insured, in the amount of the
full replacement cost thereof and with such deductibles as the Developer deems appropriate, against loss
or damage by fire and against those casualties covered by extended coverage insurance and against
vandalism and malicious mischief and against such other risks, of a similar or dissimilar nature, as are
customarily covered with respect to buildings and improvements similar in construction, general location,
use, and occupancy to the South Site Vertical Improvements. The City shall pay with its first monthly
installment of its pro rata share of Maintenance Costs following the approval of each Annual Budget an
amount equal to the cost of such insurance which is directly attributable to the Market Street Trash
Facility, taking into account the use, nature, and/or value of the Market Street Trash Facility (and not
merely as a percentage of the total of such insurance costs) as reasonably detennined by the parties and
the applicable insurer prior to the City’s approval of each Annual Budget (the “City’s Property Insurance
Contribution”).
Section 7.2. Indemnification of Developer. Except to the extent caused by the willful
misconduct or negligence of the Developer or its employees or agents, or arising out of the default by
Developer of its obligations hereunder, the City hereby covenants and agrees to assume and to
permanently indemnify and save harmless Developer and its employees and agents, from, and against any
and all claims, demands, actions, damages, costs, expenses, attorneys’ fees, and liability in connection
with the loss of life, personal injuiy and/or damage to propeily arising from or out of any occurrence in,
at, upon, or from the use or occupancy of the Easement Premises by any party other than Developer and
its employees or agents.
Section 7.3. Indemnification of the City. Except to the extent caused by the willful
misconduct or negligence of the Licensed Parties or arising out of the default by the City and its officers,
employees or agents of obligations made pursuant to a contract with Developer, including this
Agreement, Developer hereby covenants and agrees to assume and to permanently indemnify and save
harmless the City and its employees and agents from and against any and all claims, demands, actions,
damages, costs, expenses, attorneys’ fees, and liability in connection with the loss of life, personal injury
and/or damage to property arising from or out of any occurrence in, at, upon, or from the Easement
Premises or to the extent arising from or out of the design, construction, maintenance and operation of the
Easement Premises by the Developer, or in connection with the use or occupancy of the Easement
4845-4067-6681\5
Premises, or any part thereof, by the Developer, or to the extent arising out of the breach of Developer’s
obligations hereunder
Section 7.4. Liability Insurance. The Developer and the City shall procure and maintain
continuously in effect (or shall cause the same to occur), policies of insurance of the kind and minimum
amounts as are customarily maintained with respect to facilities and improvements similar to the Market
Street Trash Facility, to be reviewed from time to time by the parties and adjusted in accordance with the
requirements of Minnesota Statutes Section 466.04, as follows:
(a) Insurance against liability (including passenger elevator liability) for injuries to or death
of any person or damage to or loss of propeity arising out of or in any way relating to the condition of the
Market Street Trash Facility. Developer (and Developer’s lender and property manager) shall be named
as additional insureds on the City’s such policy of insurance and the City shall be named as additional
insured on the Developer’s such policy of insurance.
(b) Liability insurance including coverage for:
(i) fire and explosion;
(ii) theft (of entire vehicle); and
(iii) riot, civil commotion, malicious mischief, and vandalism.
(c) To the extent reasonably available, insuring the indemnifications expressed in 7.2 and 7.3
hereof (as applicable).
Section 7.5. General Insurance Requirement. All insurance required in this Agreement
shall be placed with financially sound and reputable insurers licensed to transact business in the State of
Minnesota. The Developer shall, within a commercially reasonable time following the City’s request
therefor, furnish the City with copies of policies evidencing all such insurance or a certificate or
certificates of the respeetive insurers stating that such insurance is in force and effect. Each policy of
insurance herein required shall contain a provision that the insurer shall not cancel it without giving
written notice to the City at least thirty (30) days before the cancellation becomes effective. The insurance
coverage herein required may be provided by a blanket insurance policy or policies.
Section 7.6. Immunities. Nothing herein shall be deemed or constitute a waiver by the City
of any statutory limitations on liability, statutory or common law immunities or any defenses that would
otherwise be available to it in claims by third parties, including specifically the maximum liability amount
contained in Minnesota Statutes Section 466.04. To the extent that the Developer performs construction,
operation, maintenance, repair, or replacement of any part of the Market Street Trash Facility, pursuant to
the terms of this Agreement, it is the intention of the parties that the Developer is entitled to the
immunities provided pursuant to Minnesota Statutes Section 466.03, or any successor statute.
Article VIII.
ASSIGNMENT
Section 8.1. General. Due to the public nature of the easement granted herein, the City may
not assign or transfer its interest under this Agreement without the prior written consent of Developer,
which consent shall be granted, conditioned or withheld in Developer’s sole discretion. During the term
of the Contract, the Developer may not assign or otherwise transfer its interest under this Agreement,
4845-4067-6681\5
except as provided in the Contract. The City shall recognize and approve any successors or assigns of
Developer in accordance with the terms and provisions of the Contract. Following the expiration or earlier
termination of the Contract, Developer may freely assign or transfer its interest under this Agreement
without the consent of the City. Notwithstanding anything to the contrary contained herein, the parties
acknowledge and agree that the rights and easements established, granted, conveyed, reserved and
consented to by this Agreement will run with the land and will inure to the benefit of and be binding on
all present and future owners of any applicable portion of the South Site and their respective successors
and assigns.
Article IX.
CASUALTY
Section 9.1. Destruction. Promptly upon any casualty loss or damage to all or any part of the
Market Street Trash Facility (including subsurface structural support elements), the Developer shall
proceed with diligence to restore the Market Street Trash Facility to the condition prior to the casualty
with the insurance proceeds obtained with respect to the loss or damage to the extent the insurance
proceeds recovered allow for such rebuilding; provided, however, the Developer shall not be obligated to
rebuild the Market Street Trash Facility if any of the Developer’s lenders or loan agreements (whether
executed before or after the date hereof do not permit such rebuilding or require that insurance amounts
recovered with respect to any loss or damage to the Market Street Trash Facility be paid directly to the
lender.
Article X.
EMINENT DOMAIN
Section 10.1. Major Condemnation. If all of the Market Street Trash Facility shall be taken,
acquired, or condemned by eminent domain for any public or quasi-public use or purpose, this Agreement
shall tenninate as of the date of vesting of title in the condemning authority. Each party shall make its
own claim in the condemnation proceeding based upon the value of its respective interest in the Market
Street Trash Facility.
Section 10.2. Partial Condemnation. If any portion of the Market Street Trash Facility shall
be taken, acquired, or condemned by eminent domain for any public or quasi-public use or purpose, the
absence of which materially and adversely affects the conduct of business by the City or the Developer,
then either the City or the Developer, at any time within sixty (60) days after it has actual notice of such
proposed acquisition or condemnation, shall have the option to cancel and terminate this Agreement as of
the date of vesting of title in the condemning authority of the acquired or condemned property; provided,
if neither party so terminates the Agreement will continue as to the remaining part of the Easement
Premises not so taken or threatened to be taken. The terminating party, if any, shall exercise its
termination option by giving the other party written notice of the exercise thereof within the foregoing
sixty (60) days’ period, and in the event neither paity furnishes the other party written notice of the
exercise thereof within the time and in the manner herein provided, then this Agreement shall continue in
full force and effect. Each party shall make its own claim in the condemnation proceeding based upon the
value of its respective interest in that part of the Market Street Trash Facility subject to the acquisition or
condemnation, provided, however, that no award to the City based on its easement interest shall be
permitted to the extent such award reduces Developer’s award based on its fee interest.
10
4845-4067-6681\5
Article XI.
DEFAULT AND REMEDIES
Section 11.1. General. It shall be an “Event of Default” hereunder if (a) either paity defaults in
any obligation of this Agreement requiring the payment of money and fails to cure such default within ten
(10) days after receipt of written notice of such default from the other paity or (b) if a party defaults in
any of its other obligations under this Agreement and fails to cure such default within thirty (30) days
after receipt of written notice of such default from the other party (or, if such default reasonably requires
more than thiity (30) days to cure, fails to commence such action as is necessary to cure such default
within such 30-day period and to proceed diligently thereafter to cure such default).
Section 11.2. Remedies. Following an Event of Default hereunder, the non-defaulting party
may: (a) exercise its self-help rights in accordance with Section 11.3 with respect to a default in the
performance of Maintenance Work; (b) pay all or any part of such obligations and charge the amount of
such payment, together with reasonable attorneys’ fees and interest at a rate of twelve percent (12%) per
annum, to the defaulting paity; (c) bring an action for injunctive relief; or (d) enforce the obligations of
the defaulting party by an action at law or in equity. In an emergency, any such payment or performance
may be undertaken or action brought by the non-defaulting paity prior to the giving of any notice or
expiration of any notice period, but the party curing the default will provide such notice as soon as may be
reasonable under the circumstances. If the Developer has failed to cure a default requiring the payment of
money in accordance this section, the City shall have the right to assess the costs incurred by the City to
all or any portion of the South Site as a service charge pursuant to Minnesota Statutes, Section 429.101,
or any successor statute.
Section 11.3. Self Help; Failure to Maintain. In the event the Developer defaults in its
obligation to perform the Maintenance Work as required by this Agreement, then the City, after
compliance with the notice provisions of Section 11.1 (except in an emergency, in which case the
applicable Maintenance Work may be initiated with whatever notice is reasonable under the
circumstances), shall have the right to enter any portion of the Easement Premises (including subsurface
structural support elements) and perform such Maintenance Work as required herein and charge the costs
of such performance plus ten percent (10%) of such costs for overhead, together with reasonable
attorneys’ fees, to the Developer. The Developer shall promptly pay to the City any and all such costs as
are due and owing on account thereof. The City shall submit a statement to the Developer evidencing the
costs incurred for such Maintenance Work. If the Developer has failed to make payment in accordance
with the statement within sixty (60) days after receipt thereof, the City shall have the right to assess the
costs incurred by the City to all or any portion of the South Site as a service charge pursuant to Minnesota
Statutes, Section 429.101, or any successor statute. The Developer hereby agrees to such an assessment
for maintenance and repair costs, agrees that the South Site assessed for such service charges is benefited
thereby, and waives any rights the Developer or a third party may have to object to an assessment of such
service charges, including any rights of appeal under Minnesota Statutes, Chapter 429. Notwithstanding
anything to the contrary contained herein, the City shall have no obligation of any kind, expressed or
implied, to perform the Maintenance Work or any part thereof
Section 11.4. Remedies Cumulative. Each right, power and remedy provided under this
Agreement will be cumulative and concurrent and will be in addition to every other right, power or
remedy provided for under this Agreement or at law or in equity. The exercise or beginning of exercise of
any one or more rights, powers or remedies will not preclude the concurrent or later exercise of any other
rights, powers or remedies. Failure to enforce any covenant under this Agreement will not be deemed a
waiver of the right to do so thereafter.
n
4845-4067-6681\.5
Section 11.5. Easements Survive. The Developer may not terminate any of the easements
created by this Agreement or discontinue performance of its obligations with respect to maintenance,
repair or replacement of any easement due to a default by the City under this Agreement.
Article XII.
MISCELLANEOUS
Section 12.1. Titles of Articles and Sections. Any titles of the several parts, Articles and
Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in
construing or interpreting any of its provisions.
Section 12.2. Amendments. Except as otherwise herein provided, and not otherwise, no
subsequent alteration, amendment, change, waiver, discharge, termination, deletion, or addition to this
Agreement shall be binding upon the parties to this Agreement unless in writing and signed by such
parties. Developer and the City agree to join in and consent to amendments to this Agreement, to the
extent such amendments are reasonably required by the Developer’s construction lender and/or permanent
lender for the South Site, provided, however, that the Developer and the City shall not be required to enter
into such amendments if the amendments are not eonsistent with the approved Final Development Plan,
as the same may be amended and so long as the same remains in effect, or materially and adversely affect
the interest and security of the City with respect to the South Site, including any increase in obligations or
diminution of rights hereunder.
Section 12.3. Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand or other communication under this Agreement by any party to any other
shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid,
return receipt requested, or delivered personally, and in the case of the Developer, is addressed to or
delivered personally to the Developer at:
Edina Market Street LLC
Attention: Peter Deanovic
5100 Eden Ave., Suite 317
Edina, MN 55424
with a copy to:
with a copy to:
Brent Rogers
Saturday Properties
1400 Van Buren St. NE, Suite 200
Minneapolis, MN 55413
Daniel J. Van Dyk
Briggs and Morgan, P.A.
2200 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
In the case of the City, is addressed to or delivered personally to the City at:
City of Edina
Attention: City Manager
4801 W. 50th ST.
Edina, MN 55424
12
4845-4067-6681\5
with a copy to:
with a copy to:
Edina Housing and Redevelopment Authority
Attention: Executive Director
4801 W. 50th ST.
Edina, MN 55424
Jay R. Lindgren
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402
or at such other address with respect to any such party as that party may, from time to time, designate in
writing and forward to the other, as provided in this Section.
Section 12.4, Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall constitute one and the same instrument.
Section 12.5. Law Governing. This Agreement will be governed and construed in accordance
with the laws of the State of Minnesota.
Section 12.6. Consents and Approvals. In all cases where consents or approvals are required
hereunder, such consents or approvals shall not be unreasonably conditioned, delayed or withheld. All
consents or approvals shall be in writing in order to be effective.
Section 12.7. No Additional Waiver Implied by One Waiver. If any agreement contained in
this Agreement should be breached by any party and thereafter waived by another party, such waiver shall
be limited to the particular breach so waived and shall not be deemed to waive any other concurrent,
previous or subsequent breach hereunder.
Section 12,8. Joinder; Permitted Encumbrance. Except for the consent attached hereto, this
Agreement does not require the joinder or approval of any other person and each of the parties
respectfully has the full, unrestricted and exclusive legal right and power to enter into this Agreement for
the term and upon the provisions herein recited and for the use and purposes hereinabove set forth. This
Agreement shall constitute a permitted encumbrance under any loan agreement heretofore or hereafter
entered into between the Developer and any construction lender or permanent lender.
Section 12.9. Suiwival. The easements granted hereby and each reservation, covenant,
condition and restriction contained in this Agreement will run with the land and will be binding upon, and
inure to the benefit of, as the case may be, the Developer and the City and their respective successors and
assigns.
Section 12.10. Estoppel Certificate. Each party shall, within fifteen (15) days after request
from the other paity hereto, deliver a written statement which may be relied upon by the requesting party,
or any lender or transferee of the requesting party, setting forth (a) whether the requesting party has fully
complied with the provisions hereof, and if not, setting forth in reasonable detail the nature of any
violations; and (b) any other matter reasonably requested by the requesting party.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
13
4845-4067-6681\5
IN WITNESS WHEREOF, the City and the Developer have caused this Agreement to be duly
executed in their names and on their behalf, all on or as of the date first above written.
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
) ss.
)
The foregoing instrument was acknowledged before me this /3 day of Y" , 2019,
by James B. Hovland and Scott Neal, the Mayor and City Manager respectively, of the City of Edina,
Minnesota, on behalf of the City of Edina.
' ‘janTiitiwm ~
COMM.
state of MinnesotaExpires t/atCTgg.Notary'^bli'
[Signature Page to Easement and Maintenance Agreement (Market Street Trash Facility)]
EDINA MARKET STREET EEC,
a Minnesota limited liability company
By: EDINA MARKET STREET MANAGER EEC,
a Minnesota limited liability company,
its Managing Member
Name: ^
Its: _____________________
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)SS.
)idday of I \jOV _, 2019, by
of Edina Market Street Manager
^ This instrument was aeknowledged before me as of this n)
wjui_ __, the c_g,Q__________
EEC, a Minnesota limited liability company, the Managing Member of Edina Market Street EEC, a
Minnesota limited liability company, on behalf of such limited liability company.
THIS DOCUMENT WAS DRAFTED BY:
Dorsey & Whitney EEP
50 South Sixth Street, Suite 1500
Minneapolis, MN 55402-1498
^ V./i J. J, ^ 0
^ jane M. TIMM
COMM. #2011739* NotatyPublle
State of Minnesota i MffirnimisslonEimims
[Signature Page to Easement and Maintenance Agreement (Market Street Trash Facility)]
EXHIBIT A
LEGAL DESCRIPTION OE THE SOUTH SITE
Lot 1, Block 2, Edina Market Street, Hennepin County, Minnesota
Exhibit A to Easement and Maintenance Agreement (Market Street Trash Facility)
4845-4067-6681\5
EXHIBIT B
DEPICTION OF THE TRASH FACILITY PREMISES AND ACCESS PREMISES
'i.iruEl 1- SiSMENTAFUKIRPlAtJ
SOUTH SITE - WEST BUILDING
NTRASH
AGILITY
PREMISES
4845-4067-668I\5
B-]
Exhibit B to Easement and Maintenance Agreement (Market Street Trash Facility)
16) 16.516.6 lTs(l5 \
IRfEll-S-reMEWCHOORPlA*]
TRASH
FACILITY
PREMISES
SOUTH SITE - EAST BUILDING
B-2
Exhibit B to Easement and Maintenance Agreement (Market Street Trash Facility)
4845-4067-6681\5
4845-4067-6681\5
B-3
Exhibit B to Easement and Maintenance Agreement (Market Street Trash Facility)
CONSENT AND SUBORDINATION BY MORTGAGEE
(Great Western Bank)
Great Western Bank, a national banking association, the holder of that certain
Combination Construction Mortgage, Assignment of Rents, Security Agreement and
Fixture Financing Statement dated January 11, 2018, and filed with Hennepin County
on January 12, 2018, as Document No. A10519040 (Abstract) and Document No.
T05504632 (Torrens) (the “Mortgage”) hereby (i) consents to the foregoing Easement
and Maintenance Agreement (Market Street Trash Facility) and (ii) subordinates the lien
of the Mortgage to said Easement and Maintenance Agreement (Market Street Trash
Facility).
Dated this ^^day of J\2019.
Great Western Bank,
a national banking association
Name: Ste^Block
Its: Market President
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this '2-Z- day of
, 2019, by Steve Block, the Market President, of Great Western Bank, a
national banking association, on behalf of the association.
..''c&s.'J'S*,,
I
JENNIFER R CARLSON
Notary Public
Minnesota
My Commission Expires
Jan 31, 2023
ary Pu
i2136831vl
CONSENT AND SUBORDINATION BY MORTGAGEE
(Bridgewater Bank)
Bridgewater Bank, a Minnesota banking corporation, the holder of that certain
Second Combination Mortgage, Security Agreement, Fixture Filing and Assignment of
Leases and Rents dated January 11, 2018, and filed with Hennepin County on January
12, 2018, as Document No. A10519041 (Abstract) and Document No. T05504633
(Torrens) (the “Mortgage”) hereby (i) consents to the foregoing Easement and
Maintenance Agreement (Market Street Trash Facility) and (ii) subordinates the lien of
the Mortgage to said Easement and Maintenance Agreement (Market Street Trash
Facility).
Dated this day of ., 2019.
Bridgewater B
a Minnesota rporation
Name: ay
Its: Vi'
STATE OF MINNESOTA )
COUNTY OF )
) ss.
mahletkaschenaki
MINNESOTA
-■<'>!SES0I/31/2022?
The foregoing instrument was acknowledged before me this
, 2019, by Tyler Manning, the Vice President, of Bridgewater Bank,
/I /I AMinnesota banking corporation, on behalf of the corporation
day of
a
Notary Public
12136914vl
CONSENT AND SUBORDINATION BY MORTGAGEE
(Housing and Redevelopment Authority of Edina, Minnesota)
Housing and Redevelopment Authority of Edina, Minnesota, a public body
corporate and politic organized and existing under the laws of the State of Minnesota,
the holder of that certain Mortgage, Assignment of Rents, Security Agreement, and
Fixture Financing Statement dated January 11, 2018, and filed with Hennepin County
on January 12, 2018, as Document No. A10519042 (Abstract) and T05504634
(Torrens) (the “Mortgage”) hereby (i) consents to the foregoing Easement and
Maintenance Agreement (Market Street Trash Facility) and (ii) subordinates the lien of
the Mortgage to said Easement and Maintenance Agreement (Market Street Trash
Facility).
Dated thisis// day of 0 _, 2019.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
12137073vl
HOUSING AND REDEVELOPMENT
AUTHORITY OR EDINA, MINNESOTA
a public bo^y\ corporate and politic
organized arid \existing under the laws of
the State of MIjnheWta
Jam^ B. Hovland.^CFTair
By: _j
Michael Fischer, Secretary
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this
i^\vs r. 2019, by James B. Hovland the Chair and Michael Fischer the
Secretary of Housing and Redevelopment Authority of Edina, Minnesota, a public body
corporate and politic organized and existing under the laws of the State of Minnesota.
day of
JANE IV!. TIMM
COMM. #201 17396 Notary Public
state of Minnesota My Commission Expires 1/31 /2020
12I37073vl