CR 2003-169 Approve Snow Storage Site Lease-Supervalu PropertyHOPKINS
November 14, 2003 Council Report 2003 -169
Approve Snow Storage Site Lease — SuperValu property
Proposed Action.
Staff recommends adoption of the following motion: Move that Council approve
snow storage site lease agreement between the City of Hopkins and SuperValu,
Inc.
Overview.
The SuperValu property just east of Highway 169 and north of 2 Street NE is
available for the city's use as a snow dump site. This is the same property that
the city was working to acquire as a part of the Medica HQ project north annex
site development agreement. SuperValu has agreed to lease this land to the city
at a cost of $15,000 /year on a yearly basis. City use would be limited to October
15 — April 15. The terms and conditions include that the city clean up the debris
left behind after the snow melt, automatic renewal with 30 -day notice of
cancellation by Tenant, with conditions. SuperValu has used this site as a snow
dump for many years. The City Attorney drafted the proposed agreement.
SuperValu has reviewed it and will sign the agreement. Language will be added
that requires the tenant to reimburse the city in the event of an early termination.
Primary Issues to Consider.
Supporting information.
• Proposed agr -ement
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• Agreement terms
fsite
Steven J. Stadler, Public Works Director
The term is from October 15 — April 15 each year. The cost is $15,000 per year
payable on or before October 15. Debris is to be removed each year after most
of the snow has melted. City use is limited to activities related to snow plowing
and snow removal.
Financial Impact: $ 15,000 Budgeted: Y/N _Y Source: General Fund
Related Documents (CIP, ERP, etc.):
Notes:
SNOW STORAGE LEASE
This Snow Storage Lease ( "Lease ") is made and entered into by and between the
Landlord and Tenant identified in Paragraph 1 of this Lease, effective October 15, 2003.
Reference is made to that certain Redevelopment Agreement between Landlord and Tenant,
dated as of July 20, 1998, as amended by a First Amendment to Redevelopment Agreement,
dated February 18, 2003 (collectively the "Redevelopment Agreement "). This Lease is the
Lease referred to in Paragraph (d) of Section 3.9 of the Redevelopment Agreement.
1. Parties. The parties to this Lease are SUPERVALU INC., a Delaware
corporation, hereinafter called "Landlord" and the City of Hopkins, a municipal corporation
under the laws of the State of Minnesota, hereinafter called "Tenant."
2. Demise and Premises. Subject to the terms and conditions stated in this Lease,
Landlord hereby leases to Tenant, and Tenant leases from Landlord, during the term specified in
Paragraph 3 of this Lease, that certain tract of land ( "Real Property ") legally described in Exhibit
A attached hereto and incorporated herein by reference. The Real Property is sometimes
hereinafter also referred to as the "Premises."
3. Term and Conditions of Use. The initial term of this Lease shall commence on the
15 day of October, 2003, and shall, subject to the terms of this Lease hereinafter provided,
expire on the 15 day of April, 2004. In addition, provided this Lease is not otherwise
terminated, the term of this Lease shall automatically renew for successive six - month periods
commencing on the 15 day of October of each year following the initial term of this Lease and
expiring on the 15 day of April of each following year.
Tenant shall be entitled to the exclusive use of the Premises during the initial term
of this Lease and any renewal term, but solely for the use and purposes and during the times
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specified in Paragraph 5 of this Lease, during the entire term of this Lease. Specifically, Tenant
shall be entitled to the exclusive use of the Premises for the purposes described in Paragraph 5 of
this Lease at all times during the term of this Lease in which Tenant is performing snow removal
work or any other work consistent with or necessary to carry out the use of the Premises as
described in Paragraph 5. Landlord shall be entitled to enter upon and use the Premises for other
purposes during the term of this Lease and any renewal term, but only during those times in
which Tenant is not using the Premises for the uses and purposes described in Paragraph 5 of this
Lease; in addition, Landlord shall be entitled to the exclusive use of the Premises during the
period of April 16 through October 14, inclusive, of each year, subject to the provisions of
Section 6 below. Landlord shall not, however, during the term of this Lease, construct any
improvements upon or otherwise alter the Premises so as to prevent or hinder the use thereof by
Tenant for the use and purposes described in Paragraph 5 of this Lease.
Notwithstanding anything to the contrary contained in this Agreement, Landlord
may terminate this Agreement at any time by providing written notice of termination to Tenant,
which termination shall be effective 30 days following the date of such notice, if (a) Landlord is
not reasonably able to store snow on the property owned by Landlord near the Premises and
commonly known as the "North Annex Property ", or (b) Landlord transfers title to the North
Annex Property to a third party, or (c) Landlord obtains all final governmental approvals needed
for redevelopment of the North Annex Property by Landlord, or (d) Landlord transfers title to the
Premises to a third party in connection with a transfer of the North Annex Property. In addition,
notwithstanding anything to the contrary contained in this Agreement, Tenant may terminate this
Agreement at any time by providing written notice of termination to Landlord, which termination
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shall be effective 30 days following the date of such notice. On the effective date of any such
termination, this Lease, Tenant's right to the use of the Premises and all renewal provisions set
forth in this Lease shall terminate.
4. Rent. Tenant agrees to pay Landlord, at the address stated in Paragraph 13 of this
Lease, rent in the amount of Fifteen Thousand Dollars ($15,000.00) for each six -month term of
this Lease, whether the initial term or any renewal term. Rent for the initial six -month term shall
be payable upon execution of this Lease, and rent for each six -month renewal term shall be
payable on or before each and every October 15 during the term of this Lease . Rent shall be
paid without demand therefor or deduction or set off.
5. Use of Premises. Tenant shall use the Premises only for the storage and disposal of
snow, ice and other materials removed by Tenant from streets, alleys, parking lots, sidewalks and
other areas as a result of or in connection with the Tenant's municipal snow plowing and snow
removal activities. Such use and Tenant's rights under this Lease shall include the right of entry
upon the Premises by Tenant's agents and employees, including the operation of dump trucks,
snow removal equipment and other equipment as necessary for the conduct of the permitted use
described in the preceding sentence. Tenant shall comply with all applicable state and local
laws, ordinances and regulations in its use of the Premises.
6. Maintenance of Premises. Landlord shall have no obligation whatsoever to Tenant
maintain, repair, restore, replace or improve the Premises during the term of this Lease . Tenant
is not relying on any representation or warranty of Landlord or other person concerning the
Premises, including, without limitation, the condition of the Premises or its fitness for any
particular use or purpose, and Tenant is leasing the Premises based upon its own investigation
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and inquiry; Tenant hereby waives, and Landlord hereby disclaims, all warranties of any type or
kind whatsoever as to the Premises, express or implied, including those of fitness for a particular
purpose, tenantability, habitability, and use. Tenant is leasing the Premises in its "AS IS,
WHERE IS" physical condition and in an "AS IS, WHERE IS" state of repair. Tenant shall be
responsible, at Tenant's sole expense, for removing any debris and other materials which are
deposited at the Premises, and for repairing any damage to the Premises, which are caused by
Tenant or Tenant's employees or agents or contractors, or which are dumped at the Premises
during the initial term or any renewal term of this Lease. Without limiting the generality of the
foregoing, no later than the 15 day of April of each year during the initial term and any renewal
term of this Lease, Tenant shall remove all debris and other materials from the surface of the
Premises that were deposited or disposed of on the Premises since October 14 of the previous
year, all at Tenant's sole expense; provided, however, that if there exists a material amount of
unmelted snow at the Premises as of April 15 such that it would be unreasonably difficult for
Tenant to remove such debris and other materials from the surface of the Premises, Tenant shall
have until the later of (i) five days after most of such snow has melted or (ii) May 15 of the same
year in which to remove such debris and other materials from the surface of the Premises, and
Tenant shall have the right to enter the Premises during such period for the limited purpose of
removing such debris and other materials. If physical damage is caused to the Premises or any
improvements located on the Premises by Tenant or Tenant's employees or agents or contractors,
Landlord may notify Tenant of such damage, including a description of the damage, and Tenant
shall thereafter proceed to repair such damage, at Tenant's sole expense. If Tenant fails to
commence repair of any damage caused by Tenant, or Tenant's employees or agents or
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contractors, within thirty (30) days of delivery of such notice from Landlord, or should Tenant
fail to proceed with reasonable diligence to complete the repair of any damage caused by Tenant,
Landlord may repair such damage, and Tenant shall reimburse Landlord for all reasonable costs
and expenses incurred in completing such repairs.
7. Alterations. No alteration or modification or improvement (including signs) shall be
made by Tenant in or to the Premises without the prior consent of Landlord in writing, which
consent may be granted or withheld in Landlord's sole discretion.
8. Destruction of Premises. [Intentionally deleted].
9. Subleasing and Assignment. Tenant shall not assign its rights under this Lease or
sublet the Premises without the prior written consent of Landlord, which consent may be granted
or withheld in Landlord's sole discretion.
10. Non - liability of Landlord; Indemnity of Landlord by Tenant. This Lease is
made on the express condition that, except for injury or damage caused by Landlord's negligence
or willful misconduct, the Landlord shall be free from all liabilities, claims, obligations and
damages for or by reason of any injury or injuries to any person, persons or property of any kind
of nature whatsoever resulting from the use of the Premises by Tenant, or Tenant's agents or
employees or contractors, from any cause or causes whatsoever during the term of this Lease,
whether occasioned by any occupancy or use of the Premises or any activity carried on by the
Tenant, or Tenant's agents or employees or contractors. The Tenant further covenants and
agrees to indemnify, save, hold harmless and defend the Landlord from all liabilities, claims,
obligations, damages, charges, expenses and costs (including, but not limited to, Landlord's
reasonable attorney's fees) arising out of or resulting from the use of the Premises by Tenant, or
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Tenant's agents or employees or contractors, including, but not limited to, the liabilities, claims,
obligations and damages referred to the foregoing provisions of this paragraph.
11. Insurance. Tenant shall, during the term of this Lease, maintain public liability
insurance insuring against personal injury and property damage occurring as a result of or in
connection with Tenant's use of the Premises in a single limit amount of not less than $1 million
for personal injury or death and not less than $500,000 for property damage. Such insurance
shall name Landlord as an additional insured, and Tenant shall provide Landlord with certificates
evidencing Tenant is maintaining such insurance. Such insurance shall also require the insurer to
give Landlord at least 30 days' prior written notice of the cancellation or termination of the
insurance policy.
12. Default and Termination.
a) Any one of the following events shall constitute an Event of Default:
i) Tenant shall fail to pay any installment of annual rent as provided in
Paragraph 4 of this Lease within thirty (30) days after Tenant receives
notice from Landlord that such installment or payment is due;
ii) Tenant shall violate or fail to perform any of the other terms, covenants or
conditions of this Lease and such default shall continue for thirty (30) days
after notice from Landlord, unless such default cannot be cured in the
exercise of reasonable diligence within said thirty (30) day period, in
which event Tenant shall be allowed such additional time, up to a
maximum of ninety (90) days, as is needed to cure such default with all
due diligence;
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b) If an Event of Default shall have occurred and be continuing, Landlord may at its
sole option by written notice to Tenant terminate this Lease. Neither the passage of time after
the occurrence of the Event of Default nor exercise by Landlord or any other remedy with regard
to such Event of Default shall limit Landlord's right under this Paragraph 12. b).
c) If an Event of Default shall have occurred and be continuing, whether or not
Landlord elects to terminate this Lease, Landlord may enter upon and repossess the Premises
(said repossession being hereinafter referred to as "Repossession ") by force, summary
proceedings, ejectment or otherwise, and may remove Tenant and all other persons and property
therefrom.
d) Neither the termination of this Lease pursuant to Paragraph 12. b) Nor
Repossession of the Premises pursuant to Paragraph 12. c) shall relieve Tenant of its liabilities
and obligations under this Lease, all of which shall survive any such termination or
Repossession.
e) Immediately upon expiration or earlier termination of this Lease, Tenant shall
vacate the Premises, and remove all personal property belonging to Tenant or Tenant's
employees, agents or contractors therefrom.
13. Notices. All notices provided by this Lease shall be in writing and shall be given to
the other party as follows:
To the Tenant: City of Hopkins
Attention: Steven Stadler
1010 First Street South
Hopkins, MN 55343
To the Landlord: SUPERVALU INC.
Attention: Legal Department
11840 Valley View Road
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Eden Prairie, MN 55344
All notices shall be personally delivered to the individual identified above or sent by certified
United States mail, return receipt requested. Personally delivered notices shall be effective as of
the date of delivery. Mailed notice shall be effective two (2) days after the date of mailing.
Either party may change such party's address for notice purposes by written notice to the other as
provided in this Paragraph 13.
14. Applicable Law. This Lease and the rights and obligations of the parties hereunder
shall be interpreted in accordance with the laws of the State of Minnesota.
15. Amendment, Modification or Waiver. No amendment, modification or waiver of
any condition, provision or term of this Lease shall be valid or of any effect unless made in
writing, signed by the party or parties to be bound or a duly authorized representative, and
specifying with particularity the extent and nature of such amendment, modification or waiver.
Any waiver by any party of any default of another party shall not affect or impair any right
arising from any subsequent default. Nothing herein shall limit the remedies and rights of the
parties hereto under and pursuant to this Lease.
16. Entire Agreement. This Lease contains the entire understanding of the parties
hereto with respect to the transactions described herein and supersedes all prior agreements and
understandings between the parties with respect to such subject matter. No representations,
warranties, undertakings or promises, whether oral, implied, written or otherwise, have been
made by either party to the other unless expressly stated in this Lease or unless mutually agreed
to in writing between the parties after the date hereof, and neither party has relied on any verbal
representations, agreements or understandings not expressly set forth herein.
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17. Captions, Headings or Titles. All captions, headings or titles in the paragraphs or
sections of this Lease are inserted for convenience of reference only and shall not constitute a
part of this Lease as a limitation of the scope of the particular paragraphs or sections to which
they apply.
IN WITNESS WHEREOF, the undersigned Landlord and Tenant have executed this
Lease Agreement effective as of the day of , 2003.
LANDLORD: TENANT:
SUPERVALU INC. CITY OF HOPKINS
By By
Its Its
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By
Its
c: hopciv \SuperV alu. SnowStorage
xhibit 1
egal Description of Premises
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