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CR 92-223 Easement Agreement National Handicap Housing \ y o . October 21, 1992 ~ y c, o P K \ ~ Council Report 92-223 . ,,~ USE AND EASEMENT AGREEMENT NATIONAL HANDICAP HOUSING INSTITUTE PROJECT proposed Action. Staff recommends adoption of the following motion: Approval of License and Use Agreement and Easement Aqreement for National Handicap Housinq Institute proiect at County Road 3 and Fifth Avenue and authorize the Mayor and city Manaqer to execute these aqreements. with approval of this action these documents will be executed by both parties. It is further understood that staff is authorized to make minor changes in the agreement that do not change the overall intent. Overview The City councilfHRA has approved all of the necessary actions and entered into a redevelopment agreement to facilitate the construction of a 24 unit handicap housing project at County Road 3 and Fifth Avenue. The developer of this project is National Handicap Housing Institute, Inc. . In conjunction with the approval of this project it was stated that there would need to be a Use and Easement Agreement executed. The Use Agreement deals with basically the maintenance and construction of landscaping and signage improvements on the public property owned by the City and HRA both north and south of the NHHI project. The easement is for the use of the southerly portion of the driveway into the NHHI property which will also be used to provide access to the HRA parking lot. Primary Issues to Consider o Has this agreement been reviewed by the City Attorney? This agreement was prepared by Jerry steiner and has been reviewed by both community Development and Engineering. o What do these agreements require? These agreements require the following: The City to install the landscaping and signage on the city owned property. The developer is required to undertake the following: * Maintain the landscaping on the City property, maintain the landscaping on the HRA property north of the project adjacent to the HRA parking lot. * Construct a sidewalk on the public right of way adjacent to the project. The City would pay for the sidewalk and assess the cost to the developer. * Provide an easement across the developer's driveway for use by the HRA. . Supportinq Information o Use A~reement o Eas~ent Agr ement >/ '} / ~_____<,,/ . / I , . Jamep o. K r~igan~p & Economic Development Director . Draft 11/03/92 LICENSE AND USE AGREEMENT This License and Use Agreement (this "License Agreement") is made and entered into this ____ day of , 1992, by and between the City of Hopkins, a municipal corporation under the laws of the State of Minnesota (the "City"), The Housing and Redevelopment Authority in and for the City of Hopkins, a public body corporate and politic (the "HRA") and the National Handicap Housing Institute, Inc., a Minnesota nonprofit corporation (the "License Holder"). RECITALS A. Pursuant to that certain Contract for Private . Redevelopment (the "Redevelopment Contract") by and between the HRA and License Holder dated August 31, 1992, License Holder is or shall be the owner and developer of land (the "License Holder's Land") situated in the City of Hopkins, Hennepin County, Minnesota, legally described lD Exhibit'A attached hereto and incorporated herein by reference. B. The City owns certain land (the "City Land") situated within the right-of-way of Second Street South in the City of Hopkins, Hennepin County, Minnesota, legally described in Exhibit B attached hereto and incorporated herein by reference. C. The BRA owns certain land (the "HRA Land") situated in the City of Hopkins, Hennepin County, Minnesota, legally described in Exhibit C attached hereto and incorporated herein by reference. D. In connection with the development of the License Holder's . . e e Land, the City, the HRA and the License Holder have agreed to enter into this License Agreement for the purpose of permitting and requiring the License Holder to use the City Land and the HRA Land in accordance with the terms and conditions of this License Agreement. NOW, of the in consideration of the foregoing recitals and conditions hereinafter set forth, the parties THEREFORE, terms and agree as follows: 1. The City and HRA hereby authorize the License Holder to use the City Land and HRA Land on a nonexclusive basis for the uses and on the terms and conditions set forth in this Agreement. The right of use established by this License Agreement shall constitute a revocable license for such use subject to all the terms and conditions stated herein and subject to the rights of the public in the right-of-way of Second Street South. 2. The City shall, at the City's expense, install landscaping improvements (the "Landscaping Improvements") and construct a City of Hopkins sign on the City Land. The License Holder shall install an irrigation system (the "Irrigation System") on the City Land, at License Holder's expense, to provide irrigation for the Landscaping Improvements. The Irrigation System shall be connected to the water system for the improvements to be constructed on the License Holder's Land. The design, materials and construction of said sign and of the Landscaping Improvements and Irrigation System are to be determined exclusively by the City. The License Holder shall maintain the Landscaping Improvements and Irrigation System in good condition and repair at all times, at License Holder's expense, and -2- . . e shall pay all bills for water supplied to the Irrigation System. Such maintenance and repair shall include, but are not limited to, watering, fertilizing, mowing and trimming the Landscaping Improvements. If the License Holder fails to perform such maintenance work, the City may either revoke this License Agreement In the manner specified in Paragraph 7, below, or cause the necessary maintenance work to be done at the License Holder's expense. If the License Holder fails to pay the City for such maintenance costs, the City may assess said costs against the License Holder's land. The City Land must be kept open to the public at all times. The City reserves the right to replace and/or redesign the Landscaping Improvements at any time, in which case the License Holder shall continue to maintain the replaced or redesigned Landscaping Improvements, or to revoke this License Agreement and remove the Landscaping Improvements. 3. The License Holder agrees ~o install and maintain additional landscaping improvements and an irrigation system (the "Additional Landscaping Improvements") on that part of the License Holder's Land and on that part of the HRA Land lying between the north wall of the building to be constructed on the License Holder's Land and the south edge of the parking lot improvements to be constructed on the HRA Land and lying west of the west line of the driveway easement in favor of the HRA established by that certain Easement Agreement dated , 199___ between the License Holder and the HRA, which Easement Agreement was recorded , 199 , as Hennepin County (Recorder)(Registrar of Titles) Document No. The -3- . Additional Landscaping Improvements shall be designed and installed in a manner acceptable to the City and shall at all times be maintained in good condition. If the License Holder fails to so maintain the Additional Landscaping Improvements, the HRA may either revoke this License Agreement in the manner specified in Paragraph 7, below, or cause the necessary maintenance work to be done at the License Holder's expense. If the License Holder fails to pay the HRA for such maintenance costs, the City may assess said costs against the License Holder's Land. 4. The License Holder shall also construct the following improvements: a. A public sidewalk (the "Sidewalk") in the area lying east of the License Holder's Land and east of the HRA Land and west of the street improvements for Fifth Avenue South, and in the area lying between the Landscaping Improvements to be installed on the City Land and the intersection of Fifth Avenue South and Hennepin County Road 3. License Holder shall construct the Sidewalk to connect to the existing public sidewalk lying north of the HRA Land. . b. A driveway (the "Driveway") over the City Land connecting the driveway and parking improvements to be constructed on the License Holder's Land to Second Street South. The location, design, specifications and materials for the Sidewalk and the Driveway shall be determined by the City. The License Holder shall be responsible for obtaining all required building or construction permits for the construction of the Sidewalk and the Driveway. Upon completion of the Sidewalk and the Driveway and receipt of lien waivers or other evidence of payment acceptable to the City, the City shall pay all costs of construction of the Sidewalk and the Driveway. License Holder e agrees that all of the costs so paid by the City for the -4- . . . construction of the Sidewalk and the Driveway shall be assessed against the License Holder's Land as a special assessment bearing interest at the rate of eight percent (8%) per annum, with said special assessment and interest thereon to be repaid by License Holder in installments over a period of no less than five (5) years but no more than ten (10) years, as determined by the City. License Holder agrees to sign the necessary consents and/or waivers authorizing the City to assess these costs as a special assessment against License Holder's Land. 5. If, in connection with the License Holder's development of the License Holder's Land pursuant to the Redevelopment Contract, it becomes necessary to relocate utility improvements including, but not limited to, sewer, water, electric, gas and telephone, the License Holder shall pay all costs associated with relocation of such utility improvements and provide such utility easements as shall be required by the City or by the BRA. 6. In connection with the License Holder's development of the License Holder's Land pursuant to the Redevelopment Contract, License Holder agrees that it shall replat the License Holder's Land, at License Holder's expense, and that said replat shall provide for: ~ The dedication of an additional two (2) feet of right-of-way along the east side and the southeast side of the existing alley located along the west and northwest lines of the License Holder's Land; and' ~ The dedication of an additional four (4) feet of right-of-way adjacent to the west line of Fifth Avenue South, as presently dedicated. 7 . The License Holder agrees and acknowledges that it is not -5- . . . being granted, nor will License Holder claim, any right, title or interest ln and to the City Land or the HRA Land, and further acknowledges that the City and the HRA are not giving up any of their property rights in the City Land or the HRA Land by entering into this License Agreement. The License Holder agrees to indemnify the City and the HRA for any and all liability for personal injuries, property damage, and for loss of life or property resulting from the performance of the License Holder's obligations under this License Agreement. 8. The City and the HRA specifically reserve the right to discontinue the above-described uses of the City Land and the HRA Land for landscaping purposes at any time and to remove all Landscaping Improvements therefrom without liability to the License Holder. The City and the HRA may cancel and revoke this License Agreement and the License granted to the License Holder under Paragraphs I, 2 and 3, above, upon thirty days' written notice to the License Holder at: National Handicap Housing Institute 4556 Lake Drive Robbinsdale, Minnesota 55422 Such notice shall be deemed to be sufficiently given if personally delivered to an officer of License Holder or if mailed by first class United States Mail. Mailed notice shall be effective two days after the date of mailing. The cancellation and revocation of this License Agreement shall be conclusively established by the recordation of a Statement of Revocation executed by the HRA and by the City. 9. This License Agreement shall run with the title to the -6- . . . License Holder's Land, shall be binding on and shall inure to the benefit of the parties and their respective successors, assigns and Mortgagees. This License Agreement shall not be interpreted to create any rights in third parties as beneficiaries thereof. This License Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall be deemed one and the same document. This License Agreement may be amended only in writing executed by all of the parties hereto. Dated: , 199 City of Hopkins By Its By Its Dated: , 199 The Housing and Redevelopment Authority in and for the City of Hopkins By Its By Its Dated: 199 National Handicap Housing Institute By Its -7- . . . By Its STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) ACKNOWLEDGMENT The day of and the municipal foregoing instrument was acknowledged before me this , 199~, by , the and , respectively of the City of Hopkins, a corporation, on behalf of the City of Hopkins. Notary Public STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) ACKNOWLEDGMENT The foregoing instrument was acknowledged before me this day of , 199~, by and , the and the , respectively of The Housing and Redevelopment Authority in and for the City of Hopkins, a public body corporate and politic, on behalf of The Housing and Redevelopment Authority for the City of Hopkins. Notary Public STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) ACKNOWLEDGMENT The foregoing day of and the Housing Institute, the corporation. instrument was acknowledged before me this ____ , 199 , by ---; the and 1 respectively of the National Handicap a Minnesota nonprofit corporation, on behalf of Notary Public -8- . . . THIS INSTRUMENT WAS DRAFTED BY: vesely, Miller & Steiner 400 Norwest Bank Building 1011 First Street South Hopkins, Minnesota 55343 -9- . . Draft 10/26/92 EASEMENT AGREEMENT THIS EASEMENT AGREEMENT is made as of the day of , 1992, by and between National Handicap Housing Institute, Inc., a Minnesota nonprofit corporation (the ~Grantor~) and The Housing and Redevelopment Authority in and for the City of Hopkins, a public body corporate and politic (the ~Grantee"). RECITALS: A. Grantee is the owner of real property located in Hennepin County, Minnesota, that is legally described on Exhibit A attached hereto (the ~Benefited Property"); and B. Grantor lS the owner of real property located in Hennepin County, Minnesota, that is legally described on Exhibit B attached hereto (the ~Burdened Property~); and C. Grantor and Grantee desire to set forth their agreement concerning the conveyance by Grantor of an easement for driveway purposes for the benefit of the Benefited Property. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Grant of Easement. Grantor hereby grants and conveys unto Grantee a perpetual easement for driveway and access purposes (the "Easement") over and across that certain portion of the Burdened Property described in Exhibit C attached hereto (the "Easement Area" ) for the purpose of maintaining thereon a driveway for . ingress to and egress from a parking lot to be constructed by Grantee on the Benefited Property. . . . 2. Use, Effect and Enforcement of Easement. The Easement is appurtenant to the Burdened Property and the Benefited Property and may not be transferred, assigned or encumbered except as an appurtenance to such properties. Upon a conveyance of all or any part of the fee title to the Burdened Property or the Benefited Property, the grantee, by accepting such conveyance, shall be bound by the Easement. The use of the Easement shall be for the benefit of Grantee and its successors and assigns for driveway purposes, for ingress and egress to and from the Benefited Property. Grantee shall be entitled to permit public use of the Easement and the parking lot to be constructed by Grantee on the Benefited Property as determined by Grantee. Grantor may use the Easement Area for purposes that are not inconsistent with and do not interfere with the intent and purpose of the Easement and this Easement Agreement, provided that such use by Grantor shall be subject in all respects to Grantee's rights under this Easement Agreement, and further provided that Grantor shall not construct any improvements within the Easement Area which may interfere with the present use or intended uses of the Easement Area by Grantee. Failure by any party to enforce rights under this Agreement shall in no event be deemed a waiver of the right to do so thereafter. 3. Construction and Maintenance of Driveway Improvements. Grantor shall construct and complete, at Grantor's expense, the curb cutl approach and driveway improvements (collectively the "Driveway Improvements") to be constructed within the Easement Area, within the south 15 feet of the Benefited Property lying north of the Easement Area and within the adjacent right-at-way of -2- . . . Fifth Avenue South. All costs of repair and maintenance of the Driveway Improvements, including, but not limited to, resurfacing, sealcoating and snow removal, shall be paid by Grantor. In the event Grantor fails to maintain and repair the Driveway Improvements, the Grantee shall be entitled to cause the necessary repair or maintenance work to be done at Grantor's expense and Grantee shall be entitled to cause the City of Hopkins to assess said costs against the Burdened Property as a special assessment. 4 . Duration. The Easement shall commence as of the date hereof and be perpetual in duration. 5. Miscellaneous. This Easement Agreement is intended to be interpreted in accordance with Minnesota law, represents the entire agreement of ~he parties with respect to its subject matter and shall run with the land and be binding upon Grantor and Grantee and their respective successors, assigns and mortgagees to the extent herein provided. THIS EASEMENT AGREEMENT has been executed as of the date first above written. GRANTOR: National Handicap Housing Institute, Inc. By Its By Its -3- . . . GRANTEE: The Housing and Redevelopment Authority in and for the City of Hopkins By Its By Its STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) ACKNOWLEDGMENT The foregoing instrument was acknowledged before me this day of , 199___, by and , the and the , respectively of The Housing and Redevelopment Authority in and for the City of Hopkins, a public body corporate and politic, on behalf of The Housing and Redevelopment Authority for the City of Hopkins. Notary Public STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) ACKNOWLEDGMENT The foregoing day of and the Housing Institute, the corporation. instrument was acknowledged before me this ____ , 19 9 ___, by , the and , respectively of the National Handicap a Minnesota nonprofit corporation, on behalf of Notary Public -4- . THIS INSTRUMENT WAS DRAFTED BY: Vesely, Miller & Steiner 400 Norwest Bank Building 1011 First Street South Hopkins, Minnesota 55343 . . -5- . EXHIBIT A LEGAL DESCRIPTION OF BENEFITED PROPERTY . . . EXHIBIT B LEGAL DESCRIPTION OF BURDENED PROPERTY .. . . EXHIBIT C EASEMENT AREA . .