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CR 09-015 Approve Second Amendment to HCRRA Lease AgreementOITY OF N OPKINS February 12, 2009 Council Report 2009 -015 Approve Second Amendment to HCRRA Lease Agreement Nos. 73 -34044 and 73 -34011 Proposed Action. Staff recommends adoption of the following motion: Move that Council approve the second amendments to HCRRA lease agreement Nos. 73 -34044 and 73- 34011. Overview. Since 1999, the City has had lease agreements with HCRRA allowing limited City use of two sections of HCRRA property along the north segment Southwest LRT regional trail (aka Lake Minnetonka LRT regional trail) through central Hopkins. The uses are defined as: trash hauling, school bus turn - around, alley and snow plow purposes. Specifically, the segments are located along the HCRRA property between 7th and 8th Avenues (along the north edge of the MarketPlace & Main redevelopment property) and a short section at the north end of 18th Avenue North where it dead -ends at the trail. The first amendment to these leases was approved in 2004 and simply extended the term to March 31, 2009. This second amendment extends the term another 60 months to expire on March 31, 2014 and increases the insurance limits, which had not increased since the original lease in 1999. There is no cost to the City for these leases. Staff recommends approval of the second amendments. Supporting information. Proposed second amendment to lease agreements Aerial photos showing easement areas J. Stadler, PubIOWorks Director Financial Impact: $ 0 Budgeted: Y/N Source: Related Documents (CIP, ERP, etc.): Notes: SECOND AMENDMENT TO LEASE AGREEMENT NO. 73 -34011 THIS AGREEMENT, entered into by and between the HENNEPIN COUNTY REGIONAL RAILROAD AUTHORITY, a Minnesota political subdivision, hereinafter referred to as the "HCRRA ", and City of Hopkins, 1010 First Street South, Hopkins, Minnesota 55343 a municipal corporation under the laws of the State of Minnesota, hereinafter referred to as the "TENANT'; - WITNESSETH: WHEREAS, HCRRA and TENANT entered into a certain Lease Agreement bearing Contract No. 73- 34011, as amended by First Amendment to Lease Agreement No. 73- 34011, dated March 16, 1999, for trash hauling, school bus turn around and alley purposes, said Lease and First Amendment to Lease Agreement No. 73 -34011 being set for in Exhibits 1-1" and " I -2 attached hereto and made a part hereof by reference; WHEREAS, HCRRA and TENANT desire to amend the Lease in certain particulars; NOW, THEREFORE, the parties mutually agree as follows: 1. Clause III of the Lease ( "Term and Termination ") is hereby amended by substituting the following therefor: 111. TERM AND TERMINATION TENANT acknowledges that the Premises were acquired by HCRRA specifically and solely for the purpose of constructing a light rail transit, or other transportation system, and its associated facilities and that it is HCRRA's intention to lease the Premises only until they are needed for that purpose. Nothing in this Lease shall be deemed to evidence any change by HCRRA of its intended use of the Premises for light rail transit purposes or other permitted transportation purposes. Rather, HCRRA has agreed to the terms of this Lease to provide a temporary income - producing use for the Premises during the time required for further planning and development of the light rail transit system or other transportation system. The term of this Lease shall be extended for a period of six 60 months commencing on April 1, 2009 and terminating at 2400 hours on March 31, 2014 HCRRA or TENANT may terminate this Lease or any renewal, at any time, or for any reason, by giving thirty (30) days' written notice to the other party. Thirty (30) days' after service of said notice, this Lease and all rights and obligations hereunder shall terminate except for such rights as may have accrued to either party prior to such termination. At the termination of this Lease, by notice or upon expiration of the Lease term, within thirty (30) days without further notice or demand, TENANT shall deliver possession of the Premises to the HCRRA and shall remove all personal property, including without limitation, buildings, sheds, fences, paving and . other tenant improvements located on the Premises. If it shall fail to remove such property, its right to do so shall cease at the option of the HCRRA, and TENANT's title thereto shall be forfeited and the same shall belong to the HCRRA, or in such case, if the HCRRA so elects, it may, at any time after the termination, tear down and /or remove any or all such property at the expense of TENANT without any liability for damages or other compensation. TENANT shall thereupon promptly reimburse HCRRA for all expenses incurred in such removal. Upon termination by notice of this Lease, rent shall be paid by the TENANT to the date of termination fixed by said notice, and if rent has been paid in advance, HCRRA shall refund to TENANT the unearned portion for the period extending beyond such date of termination, and TENANT shall have no further rights under this Lease. 2. Clause VI of the Lease ( "Indemnification and Insurance ") is hereby amended by substituting the following therefor: VI. INDEMNIFICATION AND INSURANCE A. Indemnification TENANT shall defend, indemnify, and hold harmless HCRRA, its Commissioners, officers, agents, and employees from any liability, claims, causes of action, judgments, damages, losses, costs, or expenses, including reasonable attorneys' fees, resulting directly or indirectly from any act or omission of TENANT, its contractors, subcontractors, officers, agents, employees, customers or invitees, in the performance of this Lease. B. Insurance In order to protect HCRRA and those listed above under the indemnification section, TENANT agrees at all times during the term of this Lease to have and keep in force the following insurance coverages: 1. Commercial General Liability on an occurrence Limits basis with contractual liability coverage: General Aggregate $2,000,000 Products - Completed Operations Aggregate 2,000,000 Personal and Advertising Injury 1,500,000 6 Each Occurrence - Combined Bodily Injury and Property Damage 2. Automobile Liability — Combined single limit each occurrence for bodily injury and property damage covering owned, non - owned, and hired automobiles. Workers' Compensation and Employer's Liability: 1,500,000 2,000,000 a. Workers' Compensation. Statutory If the contractor is based outside the state of Minnesota, coverage must apply to Minnesota laws. Employer's Liability. Bodily injury by: Accident - Each Accident Disease - Policy Limit Disease - Each Employee 500,000 500,000 500,000 An umbrella or excess liability policy over primary liability coverages is an acceptable method to provide the required insurance limits. The above establishes minimum insurance requirements. It is the sole responsibility of the TENANT to determine the need for and to procure additional insurance that may be needed in connection with this Lease. All insurance policies shall be open to inspection by HCRRA, and copies of insurance policies shall be submitted to the HCRRA upon written request. This Lease shall be valid when the TENANT has obtained required insurance and filed with HCRRA a properly executed certificate of insurance which clearly evidences required insurance coverages. The certificate shall: Name Hennepin County Regional Railroad Authority as certificate holder. and as an additional insured for the Commercial General Liability coverage with respect to operations covered under the Lease. Show that the Hennepin County Regional Railroad Authority will receive 30 days' prior written notice in the event of cancellation, nonrenewal, or material change in any described policies. The TENANT shall furnish to the HCRRA updated certificates during the term of this Lease as insurance policies expire. If the TENANT 3 fails to furnish proof of insurance coverages, the HCRRA may pursue any rights or remedy allowed under this Lease, law, equity, and /or statute. The effective date of this Second Amendment to Lease Agreement No. 73- 34011 is March 31, 2009. Except as herein above amended, the terms, conditions and provisions of Lease Agreement No. 73- 34011, shall apply to and govern the provisions of this Agreement. THIS PORTION OF PAGE INTENTIONALLY LEFT BLANK :N AUTHORITY BOARD APPROVAL The City of having signed this Lease, and the Hennepin County Regional Railroad Authority's Board of Commissioners having duly approved this Lease on the _ day of , and pursuant to such approval, the proper AUTHORITY officials having signed this Lease, the parties hereto agree to be bound by the provisions herein set forth. Reviewed by the HENNEPIN COUNTY REGIONAL County Attorney's Office RAILROAD AUTHORITY A Date: City organized under: Chair of Its Board And: Deputy /Executive Director ATTEST: Deputy /Clerk of Authority Board CITY OF HOPKINS Eugene Maxwell, Mayor Richard Getschow, City Manager Statutory Option A Option B Charter. SECOND AMENDMENT TO LEASE AGREEMENT NO. 73-34011 THIS AGREEMENT, entered into by and between the HENNEPIN COUNTY REGIONAL RAILROAD AUTHORITY, a Minnesota political subdivision, hereinafter referred to as the "HCRRA ", and City of Hopkins 1010 First Street South Hopkins, Minnesota 55343 a municipal corporation under the laws of the State of Minnesota, hereinafter referred to as the "TENANT'; WITNESSETH: WHEREAS, HCRRA and TENANT entered into a certain Lease Agreement bearing Contract No. 73- 34011, as amended by First Amendment to Lease Agreement No. 73- 34011, dated March 16, 1999, for trash hauling, school bus turn around and alley purposes, said Lease and First Amendment to Lease Agreement No. 73 -34011 being set for in Exhibits 1-1" and 1-2" attached hereto and made a part hereof by reference; WHEREAS, HCRRA and TENANT desire to amend the Lease in certain particulars; NOW, THEREFORE, the parties mutually agree as follows: 1. Clause III of the Lease ( "Term and Termination ") is hereby amended by substituting the following therefor: 111. TERM AND TERMINATION TENANT acknowledges that the Premises were acquired by HCRRA specifically and solely for the purpose of constructing a light rail transit, or other transportation system, and its associated facilities and that it is HCRRA's intention to lease the Premises only until they are needed for that purpose. Nothing in this Lease shall be deemed to evidence any change by HCRRA of its intended use of the Premises for light rail transit purposes or other permitted transportation purposes. Rather, HCRRA has agreed to the terms of this Lease to provide a temporary income - producing use for the Premises during the time required for further planning and development of the light rail transit system or other transportation system. The term of this Lease shall be extended for a period of six 60 months commencing on April 1, 2009 and terminating at 2400 hours on March 31, 2014 HCRRA or TENANT may terminate this Lease or any renewal, at any time, or for any reason, by giving thirty (30) days' written notice to the other party. Thirty (30) days' after service of said notice, this Lease and all rights and obligations hereunder shall terminate except for such rights as may have accrued to either party prior to such termination. At the termination of this Lease, by notice or upon expiration of the Lease term, within thirty (30) days without further notice or demand, TENANT shall deliver possession of the Premises to the HCRRA and shall remove all personal property, including without limitation, buildings, sheds, fences, paving and . other tenant improvements located on the Premises. If it shall fail to remove such property, its right to do so shall cease at the option of the HCRRA, and TENANT's title thereto shall be forfeited and the same shall belong to the HCRRA, or in such case, if the HCRRA so elects, it may, at any time after the termination, tear down and /or remove any or all such property at the expense of TENANT without any liability for damages or other compensation. TENANT shall thereupon promptly reimburse HCRRA for all expenses incurred in such removal. Upon termination by notice of this Lease, rent shall be paid by the TENANT to the date of termination fixed by said notice, and if rent has been paid in advance, HCRRA shall refund to TENANT the unearned portion for the period extending beyond such date of termination, and TENANT shall have no further rights under this Lease. 2. Clause VI of the Lease ( "Indemnification and Insurance ") is hereby amended by substituting the following therefor: VI. INDEMNIFICATION AND INSURANCE A. Indemnification TENANT shall defend, indemnify, and hold harmless HCRRA, its Commissioners, officers, agents, and employees from any liability, claims, causes of action, judgments, damages, losses, costs, or expenses, including reasonable attorneys' fees, resulting directly or indirectly from any act or omission of TENANT, its contractors, subcontractors, officers, agents, employees, customers or invitees, in the performance of this Lease. B. Insurance In order to protect HCRRA and those listed above under the indemnification section, TENANT agrees at all times during the term of this Lease to have and keep in force the following insurance coverages: Commercial General Liability on an occurrence Limits basis with contractual liability coverage: General Aggregate $2,000,000 Products - Completed Operations Aggregate 2,000,000 Personal and Advertising Injury 1,500,000 2 Each Occurrence - Combined Bodily Injury and Property Damage 1,500,000 2. Automobile Liability — Combined 2,000,000 single limit each occurrence for bodily injury and property damage covering owned, non - owned, and hired automobiles. 3. Workers' Compensation and Employer's Liability: a. Workers' Compensation. Statutory If the contractor is based outside the state of Minnesota, coverage must apply to Minnesota laws. b. Employer's Liability. Bodily injury by: Accident - Each Accident Disease - Policy Limit Disease - Each Employee 500,000 500,000 500,000 An umbrella or excess liability policy over primary liability coverages is an acceptable method to provide the required insurance limits. The above establishes minimum insurance requirements. It is the sole responsibility of the TENANT to determine the need for and to procure additional insurance that may be needed in connection with this Lease. All insurance policies shall be open to inspection by HCRRA, and copies of insurance policies shall be submitted to the HCRRA upon written request. This Lease shall be valid when the TENANT has obtained required insurance and filed with HCRRA a properly executed certificate of insurance which clearly evidences required insurance coverages. The certificate shall: Name Hennepin County Regional Railroad Authority as certificate holder. and as an additional insured for the Commercial General Liability coverage with respect to operations covered under the Lease. Show that the Hennepin County Regional Railroad Authority will receive 30 days' prior written notice in the event of cancellation, nonrenewal, or material change in any described policies. The TENANT shall furnish to the HCRRA updated certificates during the term of this Lease as insurance policies expire. If the TENANT fails to furnish proof of insurance coverages, the HCRRA may pursue any rights or remedy allowed under this Lease, law, equity, and /or statute. The effective date of this Second Amendment to Lease Agreement No. 73- 34011 is March 31, 2009. Except as herein above amended, the terms, conditions and provisions of Lease Agreement No. 73- 34011, shall apply to and govern the provisions of this Agreement. THIS PORTION OF PAGE INTENTIONALLY LEFT BLANK 4 AUTHORITY BOARD APPROVAL The City of having signed this Lease, and the Hennepin County Regional Railroad Authority's Board of Commissioners having duly approved this Lease on the _ day of , and pursuant to such approval, the proper AUTHORITY officials having signed this Lease, the parties hereto agree to be bound by the provisions herein set forth. Reviewed by the County Attorney's Office HENNEPIN COUNTY REGIONAL RAILROAD AUTHORITY Date: City organized under: Chair of Its Board M And: Deputy /Executive Director ATTEST: Deputy /Clerk of Authority Board CITY OF HOPKINS Eugene Maxwell, Mayor Richard Getschow, City Manager Statutory Option A Option B Charter 5 Page 1 of 1 Hennepin County Oblique Aerials �; Hennepin County Oblique Aerials Page 1 of 1 Hennepin County Oblique Aerials Images courtesy of: Microsoft Virtual Earth 2008 Flight Date: April 2006 http: / /gis.co. hennepin. mn. us /HCPropertyMapBirdseye.aspx ?PID= 2411722430046 2/13/2009