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CR 05-155 Approve Snow Storage Site Lease SuperValu Property CiTY OF m HOPKINS November 10, 2005 Council Report 2005-155 Approve Snow Storage Site Lease - SuperValu property Proposed Action. Staff recommends adoption of the following motion: Move that Council approve snow storaqe site lease aqreement between the City of Hopkins and SuperValu, Inc. Overview. The SuperValu property just east of Highway 169 and north of 2nd Street NE remains available for the city's use as a snow dump site. Public Works still hopes that this property can be deeded to the city as a part of the city's redevelopment agreement with OPUS Corporation. In the meantime, SuperValu has agreed to lease this land to the city at a cost of $10,000/year on a yearly basis. City use would be limited to November 15 - May 15. The terms and conditions include that the city clean up the debris left behind after the snow melt, with a 30-day notice of cancellation by Tenant, with conditions. Prior to City use, SuperValu had used this site as a snow dump for many years. This agreement is a continuation of our previous agreement approved by the City in 2004/2005. The City Attorney drafted the original agreement. SuperValu has reviewed it and will sign the agreement. Primarv Issues to Consider. . Agreement terms The term is from November 15 - May 15 each year. The cost is $10,000 per year payable upon execution of the lease. If the lease is terminated by the landlord, the city will be reimbursed $55.56 for each day remaining in the lease. Debris is to be removed each year after most of tJ:1e snow has melted. City use is limited to activities related to snow plowing and snow removal. Supportinq information. Steven J. Stadler, Public Works Director I Financial Impact: $ 10,000 Budgeted: Y/N Y Source: General Fund I SNOW STORAGE LEASE Hopkins, Minnesota (North Annex; Facility 1875) This Snow Storage Lease ("Lease") is made and entered into by and between the Landlord and Tenant identified in Paragraph I of this Lease, effective November 7, 2005. 1. Parties. The parties to this Lease are SUPERV ALU 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 ofland ("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 term of this Lease shall commence on the 15th day of November, 2005, and shall, subject to the terms of this Lease hereinafter provided, expire on the 15th day of May, 2006. Tenant shall be entitled to the exclusive use of the Premises during the term of this Lease, but solely for the use and purposes and during the times 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, 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. 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 shall be effective 30 days following the date of such notice. On the effective date of any such termination, this Lease and Tenant's right to the use of the Premises shall terminate. 4. Rent. Tenant agrees to pay Landlord, at the address stated in Paragraph 13 of this Lease, rent in the amount of Ten Thousand Dollars ($10,000.00) for the six-month term of this Lease. Rent for the six-month term shall be payable upon execution of this Lease. Rent shall be paid without demand therefor or deduction or set off. If Landlord terminates this Lease at any time pursuant to the provisions of Paragraph 3 above, Landlord shall refund to Tenant a portion of the rent for the six month term of the Lease. The amount of the refund to which Tenant is entitled shall be determined by multiplying the per diem amount of $55.56 times the remaining number of days in the term of the Lease from and after the effective date of termination. Such -2 - refund shall be due to Tenant upon the effective date of termination of this Lease. 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 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 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 term of this Lease. Without limiting the generality of the foregoing, no later than May IS, 2006, Tenant shall remove all debris and other materials from the surface of the Premises that were deposited or - 3 - disposed of on the Premises during the term of this Lease, all at Tenant's sole expense; provided, however, that if there exists a material amount of unmelted snow at the Premises as of May IS, 2006 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) June IS, 2006 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 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. -4- 10. Non-liability of Landlord; Indemnity of Landlord bv 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 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) Anyone of the following events shall constitute an Event of Default: - 5- 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; 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. - 6- 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: Steve Stadler 1010 First Street South Hopkins, MN 55343 To the Landlord: SUPERV ALU INC. Attention: Legal Department 11840 Valley View Road 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 -7 - 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. No provision of this Lease shall be interpreted to modify, amend or alter the terms and conditions of that certain Redevelopment Agreement between Landlord and Tenant dated July 20, 1998, as amended by a First Amendment to Redevelopment Agreement dated February 18, 2003, all of which shall remain in full force and effect. 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. - 8- IN WITNESS WHEREOF, the undersigned Landlord and Tenant have executed this Lease Agreement effective as ofthe day of November, 2005. LANDLORD: SUPERV ALU INC. By Stephen P. Kilgriff, its Vice President TENANT: CITY OF HOPKINS By Its By Its - 9 - Exhibit A Le2al Description of Premises Three acre parcel: Lot 1, Block 1, Valu Addition, City of Hopkins, Hennepin County, Minnesota PID No. 19-117-21-23-0101 -~ ~ ~. ...:@Ji' 'I "., ,',. :0':r;:t'~):l:;} , "," ,..:,," '."0'" -t>!. "''''','''",.'. /~t~j,L'" ~!~~~~1{'? i:':':4J,(~,:):,:,'~;;:1~,;;~~ .. .'t:;'.:,: '~2l;{)';; -q"f 2r-:"J:,,?:::2:\;~-<~' J,'j '."- .-.'" j /'i~:'~<:" .i/. /~.. i 1/.". ." i,"" /~ ,f-' I' - ":-'~... J~~ f . J~lJ .'~ Ll ,'~~'_f:t ;:, l'~1 ~~OVW ~~ CS.\+~