HomeMy WebLinkAbout3035Doc No T05666327
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
Pkg ID 1913317CDeputy 98
Document Recording Fee
Multiple Certificates Affected Fee
$46.00
$60.00
Document Total $106.00
Existing Certs
1457559, 1493007, 1493008, 1490832
This cover sheet is now a permanent part of the recorded document.
Deputy 98
Doc No A10730264
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 ID 1913317C
Document Recording Fee $46.00
Document Total $46.00
This cover sheet is now a permanent part of the recorded document.
AGREEMENT
FOR
LIGHTING ENCROACHMENT OVER PUBLIC RIGHT-OF-WAY
/C^
^ jflThis Lighting Encroachment Agreement (the “Agreement”) is made this / b> day of
, 2019 (the “Effeetive Date”), by and among the CITY OF EDINA, a Minnesota
municipal corporation, with a principal office located at 4801 W. 50* St. Edina, Minnesota, 55424
(“City”), the EDINA HOUSING AND REDEVELOPMENT AUTHORITY, a public body
corporate and politic under the laws of the State of Minnesota , with a principal office loeated at
4801 W. 50th St. Edina, Minnesota, 55424 (“HRA”) and EDINA MARKET STREET LLC, a
Minnesota limited liability company, with a principal office located at 5100 Eden Avenue, Suite
317, Edina, Minnesota 55436 (“Developer”).
RECITALS
A. Developer is the fee owner of eertain real property located in the City of Edina,
Minnesota whieh is loeated at 3925 Market Street and legally described in Exhibit A (“South Site
Developer Property”); and
B. Developer is also the fee owner of certain real property located in the City of Edina,
Minnesota which is located at [3930 and 3944] Market Street and legally described in Exhibit A
(“North Site Developer Property”, and colleetively with the South Site Developer Property, the
“Developer Property”); and
C. The HRA is the fee owner of certain real property located in the City of Edina,
Minnesota located at [3940] Market Street and legally described in Exhibit B (“HRA Property”);
and
D. The South Site Developer Property is separated from the North Site Developer
Property and the HRA Property by Market Street and publie sidewalks located within right-of-
way dedieated to the public (collectively referred to herein as the “Right of Way”); and
E. Developer proposes to install and maintain decorative lights eonneeted to braekets
(“Lighting”) installed on (a) the North Site Developer Property and HRA Property on the north
side of the Right of Way, and (b) the South Site Developer Parcel on the south side of the Right of
Way, and extending over the Right of Way between such parcels, as deseribed and depicted on
Exhibit C attaehed hereto (“Lighting Eneroachment Area”); and
E. The City is the road authority for the Right of Way located within the City of Edina.
NOW, THEREFORE, in eonsideration of the foregoing recitals and other good and
valuable consideration, the receipt of whieh is hereby acknowledged the Parties agree as follows:
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Gommercia! Partners Titia, L1.C
200 South Sixth Street ^ \Suite 1300 Ay
■ Minneapolis, MM 55402
1. City hereby grants Developer, and its successors and assigns, the right to encroach
over the public right of way, in the Lighting Encroachment Area for the purposes of installing,
operating, and maintaining the Lighting, subject to the following terms and conditions:
A. Developer may install the decorative lighting within the Lighting Encroachment
Area at its sole cost. For the purpose of this agreement, the Lighting shall include
the bulbs, wiring, guidewires, connecting clips, timers, sensors and other equipment
necessary for the Lighting to be fully functional.
B. The Lighting shall be installed in accordance with City approved plans,
specifications and permits and, once installed, shall not obstruct or interfere with
the public’s use of the Right of Way, subject to the terms hereof
C. The Lighting must be at least 16 feet clear above the Public Street and public
sidewalk within the Right of Way and must be attached to guidewires mounted to
the building(s) located on Developer Property and the North Parking Ramp located
on the HRA Property. Installation of Lighting within or over the Right of Way shall
not begin without the prior written approval of the City’s Director of Public Works
or his or her designee (“Director”), such approval not to be unreasonably withheld,
conditioned or delayed, and once approved shall occur only in conformance with a
City approved traffic management plan and any other reasonable conditions set by
the Director for such activities, which conditions may be modified as reasonably
deemed necessary by the Director during the period of construction. Disruption of
the normal use of Right of Way during construction shall be minimized as much as
is reasonably feasible.
D. Developer shall be responsible for the cost of modifying, repairing, relocating,
restoring, reinstalling and providing electricity for the lights, in a City approved
fashion and location.
E. After installation, the Lighting must remain in operable condition with non
functional bulbs promptly replaced until such time that the Lighting is removed in
its entirety.
Developer shall be responsible for maintaining the appearance and safety of the
Lighting in top quality condition. Developer shall also be solely responsible for the
cost of all maintenance, repairs or alterations to the Lighting.
F. Pursuant to and in accordance with the provisions of this Section F, the City
reserves the right under this Agreement, or under any applicable laws, to terminate
this Agreement in the event of an uncured material default by Developer and to
abate or remove any hazardous conditions which may occur with respect to the
Lighting and to recover the costs of such abatement or removal, including any
attorney’s fees incurred in the enforcement or implementation of these rights.
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G.
If the City determines that the health or safety of persons are materially and
adversely affected by the condition of the Lighting (a “Safety Default”), Developer
shall, upon receipt of written notice of such condition from the City, immediately
take the necessary corrective actions to abate or remove the unsafe conditions, and,
if unable to do so, shall remove the Lighting if reasonably directed to do so by the
City. In the event that Developer shall fail to correct the conditions as directed by
the City within a reasonable time, the City may, upon not less than three (3)
business day prior written notice to Developer (or such notice as is reasonably
possible under the conditions in the event of imminent threat to the health or safety
of persons) enter upon the Developer Property and so abate or remove such unsafe
conditions, or, if unable to do so, remove the Lighting. If the City determines that
any default other than a Safety Default has occurred. Developer shall, within thirty
(30) days of receipt of written notice of such default from the City, take the
necessary corrective actions to cure the default (or if such cure is not reasonably
feasible to be cured within said thirty (30) day period. Developer shall commence
said cure within said thirty (30) day period and thereafter diligently pursue to
completion), and, if unable to do so, shall remove the Lighting if reasonably
directed to do so by the City. In the event that Developer shall fail to cure the
default within the periods so provided, the City may, upon not less than three (3)
business day prior written notice to Developer, enter upon the Developer Property
and cure such default, or, if unable to do so, remove the Lighting. The City shall
thereafter be entitled to collect the costs incurred in such corrective action,
including any attorneys’ fees incurred in the enforcement or implementation of
these rights. It is agreed that these costs shall be lien against the Developer Property
and that the costs may be collected alternatively by foreclosure of this lien, by
assessment of the costs against the Developer Property, by action on this Agreement
against the owner of the Developer Property, or by any or all of the above, or by
any other method available to the City.
Nothing herein shall require or obligate the City to make any repairs or
modifications to the Lighting.
Developer shall, at all times during the installation of the Lighting and for so long
as the Lighting remains in place, maintain commercial general liability insurance
coverage of the Lighting and Lighting Encroachment in amounts, equivalent, at a
minimum, to the municipal liability limits in effect at any given time under
Minnesota Statutes, Section 466.04, as the same may be amended or replaced.
Developer’s insurance shall be in a form acceptable to the City and HRA, written
by insurers licensed or certified to do business in the State of Minnesota and
acceptable to Developer, sufficient to reasonably protect the Developer, the City,
and the HRA for the work covered by this Agreement and Developer’s use of the
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Lighting Encroachment Area, ineluding workers’ compensation claims and
property damage, bodily and personal injury which may arise from operations and
use under this Agreement, whether such operations and use are by Developer or
anyone directly or indirectly employed by Developer.
Developer’s insurance must be “Primary and Non-Contributory” with respect to the
liability of Developer or anyone direetly or indirectly employed by Developer. The
insuranee policy shall include the City and HRA as additional insureds by
endorsement. A copy of the endorsement shall be submitted upon request of the
City or HRA. Developer shall provide a eertifieate of insurance prior to
commencement of work within the Lighting Encroachment Area.
Developer’s policies and Certificate of Insurance shall contain a provision that
coverage afforded under the policies shall not be cancelled without at least thirty
(30) days’ advanced written notiee to the City and HRA, or ten (10) days’ notice
for non-payment of premium. Developer shall maintain a current certificate of
insurance coverages on file with the City’s Risk Manager.
H. Developer shall have the Lighting and connection brackets attached to the buildings
located on Developer Property and HRA Property inspected for structural integrity
by a qualified third party at least annually. The Developer shall be solely
responsible for any corrective or preventative aetion recommended for immediate
action or otherwise required by this inspection. A copy of the inspection report shall
be provided to the City or HRA upon request.
2. The HRA grants Developer the right to connect the Lights to the brackets that have
been (or will be) installed on the southern face of the North Parking Ramp located on the HRA
Property for this purpose in accordanee with Exhibit C. Connection of the Lighting to any other
element of the North Parking Ramp shall only be permitted if approved in writing in advance by
the Director, such approval not to be unreasonably withheld, conditioned or delayed.
3. Miscellaneous.
A. The respective rights and obligations of the parties under this Agreement shall run
with the Developer Property, the HRA Property and the Right of Way and shall be
binding upon and inure to the benefit of the respective parties, their successors and
assigns, and shall continue in force until such time as the Lighting (or its
replacement) is permanently removed and this Agreement is terminated. This
Agreement shall be recorded against the Developer Property, HRA Property and
Right of Way prior to any work by Developer within the Lighting Encroachment
Area.
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B. Developer shall comply with all applicable federal, state and local laws and
regulations in the installation, repair, maintenance, operation, removal and use of
the Lighting.
C. If Developer shall not complete the inspections required by Section 1(H) above.
Developer shall be responsible for any and all costs incurred by the City for
reasonable and necessary inspection of the Lighting, including the costs of any
consultants contracted by the City in connection with such inspections.
D. This Agreement shall be governed by Minnesota law.
E. The failure by any party to enforce against another party any term of this Agreement
shall not be deemed a waiver of such party’s right to enforce against the other
parties the same or any other term in the future.
F. Developer agrees to hold harmless, defend, and indemnify the City and the HRA,
and their officers, employees, agents, contractors, and assigns, from and against any
and all claims, liabilities, losses, damages, cost, and expenses (including attorneys’
fees) for property damage or personal injury or death to the extent the same are
caused by the Lighting, its construction, repair, maintenance, use or removal, unless
caused by the negligence or willful misconduct of the City or the HRA, or their
officers, agents, employees, contractors, or assigns.
G. Notices required to be given under this Agreement shall be hand delivered or mailed
to the respective parties at their addresses first described above, or to such other
address as a party may direct by notice similarly given.
H. Developer shall have the right to terminate this Agreement at any time upon not
less than thirty (30) days advance written notice to the other parties. Unless earlier
terminated as provided herein, effective as of the fifth (5*) anniversary of the
Effective Date, this Agreement may be terminated by the City upon not less than
60 days advance written notice to Developer. Upon termination of this Agreement,
the Developer shall remove the Lighting prior to the termination date. Upon the
termination of this Agreement, the parties shall execute and record such reasonable
documents as are necessary to terminate this Agreement of record.
[remainder of page intentionally left blank]
[signature pages to follow]
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IN WITNESS to this Agreement, the parties have eaused this instrument to be executed
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
) ss.
)
he foregoing instrument was acknowledged before me this j ^ day of
, 2019, by James B. Hovland and Scott Neal, respectively the Mayor and City
Manager of the City of Edina, a Minnesota municipal corporation, on behalf of the corporation
and pursuant to the authority granted by its Citw
pi VSAAAAAAAAAAAAAAAAAA/VAAAAAAAAAAA. I
.SHARON M. ALLISON
Notary Public-Minnesofa
' My Commission Expires Jan 31,2020 <
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?cbtt Neal
Its Executive Director
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ^4 day ^
2019, by James B. Hovland and Michael Fischer, respectively, the President and Secretary, of the
Edina Housing and Redevelopment Authority, a public body corporate and politic under the laws
of the State of Miimesota, on behalf of the public body corporate and politic.
JANE NI.TIMM
COMM. #20117396 Notary Public
State of MinnesotaMy Commission Expires i;31/2020
NOT
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EDINA MARKET STREET EEC
By: EDINA MARKET STREET MANAGER
EEC,
a Minnesota limited liability eompany,
its Managing Member
Name: ^ —
Its:
STATE OF MINNESOTA )
) ss.
COENTY OF HENNEPIN )
The foregoing instn^iraent was acknowledged before me this j ( day of
____the__.CE..Q..
I he loregomg mstn^iraent was acknowledged bel
OEjtoWv- , 2019, by^iTtg n .\hr;\) ) r of
Edina Market Street Manager EEC, a Mirmesota limited liability company, the Managing
Member of Edina Market Street EEC, a Minnesota limited liability company, on behalf of the
limited liability company.
JANE M. TIMM
COMM. #20117396 Notary PublicV-:sS.\V/^ State of Minnesota
My Commission Expires 1/31/2020
CevQl, \\\
ARY PUBEIC
DRAFTED BY:
CAMPBEEE, KNUTSON, P.A.
860 Blue Gentian Road, Suite 290
Eagan, MN 55121
Telephone: (651)452-5000
[RNK]
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EXHIBIT A
LEGAL DESCRIPTION OE SOUTH SITE DEVELOPER PROPERTY
Lot 1, Block 2, Edina Market Street, according to the recorded plat thereof, Hennepin County,
Minnesota.
LEGAL DESCRIPTION OE NORTH SITE DEVELOPER PROPERTY
Tracts B and C, Registered Land Survey 1872, Hennepin County, Minnesota.
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EXHIBIT B
LEGAL DESCRIPTION OE HRA PROPERTY
Tract A, Registered Land Survey 1872, Hennepin County, Minnesota.
10
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EXHIBIT C
DEPICTION OF LIGHTING ENCROACHMENT AREA AND ATTACHMENT LOCATIONS
See attached page
11
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