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CR 96-85 Snow Removal Agreement - Entertainment ComplexMay 7, 1996 Supporting Documents o Snow rem ,Qval agreement SNOW REMOVAL AGREEMENT—ENTERTAINMENT COMPLEX PROJECT Proposed Action Staff recommends approval of the following motion: Move to approve snow removal agreement between Hopkins Mainstreet, Inc., and the City of Hopkins. Overview In 1995, the Hopkins HRA approved the lease between the Beard Group and Mann Theaters for the entertainment complex project to be built on the former Suburban Chevrolet property. During discussion of this item, staff detailed that the lease stipulated that snow removal would be undertaken by the City from the subject site at no cost to the tenant or developer. Attached is an agreement that has been drafted by the City Attorney's office. The Public Works director has also been involved in the formulation of this document and finds it acceptable. The following is a summary of the terms of the agreement: Hopkins Mainstreet, Inc., will pay an annual fee of $500. Unpaid amounts shall have an interest rate of 12 percent per year simple interest rate. The effective date of the agreement shall be October 1995, and the agreement shall remain in effect until such time as a movie theater no longer operates on the site. The owner shall be required to place snow in an area identified by the City. Site improvements shall be undertaken to accomplish removal of the snow. Snow removal shall be undertaken on dates established by the City. Removal shall be done during the hours when the theater facility is closed. The Public Works department shall give priority to snow removal from public streets and parking areas prior to dealing with this site. Alternatives Based on discussions with the Beard Group and the Mann lease agreement as approved by the HRA, the City's only alternative with this item is to approve an agreement which allows for the City removal of snow on the subject site at no cost to the tenant or developer. If the Council is uncomfortable with the proposed agreement, there may be the ability to incorporate some additional language to reflect identified concerns. James I Kemgan Plannin conomic Development Director Council Report 96 -85 r.V"iletopcivil \snowrem.bop SNOW REMOVAT. AGREEMENT This Agreement is made and entered into as of the day of 1996 by and between Hopkins Mainstreet, Inc., a Minnesota corporation ( "Hopkins Mainstreet") and the City of Hopkins, a municipal corporation under the laws of the State of Minnesota ( "City "). RECITALS A. Hopkins Mainstreet is the owner of certain real property consisting of approximately L88 acres (the "Land ") located at the southwest corner of the intersection of Mainstreet and 1 lth Avenue South in the City of Hopkins, County of Hennepin, and depicted in the Utility Plan attached hereto as Exhibit A and incorporated herein by reference. B. Hopkins Mainstreet intends to improve the Land by constructing the buildings and other improvements shown on Exhibit A, which include certain parking, driveway and access improvements hereinafter collectively refened to as the "Parking Improvements ". Upon completion of the Parking Improvements, there will be insufficient space available on the Land on which to dispose of or stockpile snow and ice which is removed from the Parking Improvements by Hopkins Mainstreet. Hopkins Mainstreet has requested and the City has agreed to remove such excess snow and ice from the Land, and the City has agreed to do so upon the terms and conditions stated in this Agreement. NOW, THEREFORE, in consideration of the foregoing Recitals, and of the terms, covenants and conditions stated in this Agreement, Hopkins Mainstreet and the City agree as follows: 1. Incorporation of Recitals. The foregoing Recital paragraphs are incorporated in and made a part of this Agreement in their entirety. 2. Snow Removal Procedure Hopkins Mainstreet shall be solely responsible for all snowplowing and snow and ice removal from all areas of the Land, including the Parking Improvements. The City's obligations under this Agreement shall be limited to removal of snow and ice placed within the Snow Storage Area (hereinafter defined) by Hopkins Mainstreet in accordance with the following terms and conditions: a. All snow and ice which is to be removed from the Land shall be placed by Hopkins Mainstreet within the area designated as the "Snow Storage Area" in Exhibit A attached hereto (the "Snow Storage Area "). The snow and ice placed within the Snow Storage Area shall be removed by the City utilizing City-owned equipment and City employees, but subject to the condition that priority shall be given to snow removal from public streets, alleys, parking lots and parking ramps and the City shall not be requuud to remove snow and ice from the Snow Storage Area until such snow removal work has been completed. b. Hopkins Mainstreet shall notify the City it is requesting the City to remove excess snow and ice from the Snow Storage Area by contacting the City's Director of Public Works by telephone. Snow and ice shall be removed from the Snow Storage Area by the City as necessary, the necessity for such removal to be determined by the City's Director of Public Works. c. D412 mountable curbing will be installed and maintained by Hopkins Mainstreet in the locations shown on Exhibit A attached hereto to enable snow removal equipment to gain access to the Snow Storage Area. A hard surfaced material (either asphalt or concrete) shall be installed and maintained by Hopkins Mainstreet within the Snow Storage Area and within the area between the Snow Storage Area and the public sidewalk east of 12th Avenue South. d. Hopkins Mainstreet hereby grants the City a license and right of access over the Land and Parking Improvements as required for the purpose of performing the City's obligations under this Agreement. Hopkins Mainstreet agrees to the best of its ability that it shall keep the area around and adjacent to the Snow Storage Area free from vehicles and other obstructions as necessary to permit removal of snow and ice from the Snow Storage Area by the City. e. The dates on which snow and ice removal work is to performed by the City under this Agreement shall be determined solely by the City. Snow and ice removal work shall be performed after the close of business for the motion picture theater occupying the improvements on the Land and before 11:00 a.m. No provision of this Agreement shall be construed as requiring the City to pay overtime or incur extraordinary costs or expenses in order to complete snow and ice removal work. cMile hopcin7\cnowrcmhop 2 f. Hopkins Mainstreet agrees that it shall only place snow and ice which have accumulated on the Land in the Snow Storage Area and shall not allow snow and ice from locations other than the Land to be placed within the Snow Storage Area. No debris, refuse, earth, hazardous materials or other materials shall be placed in the Snow Storage Area or mixed with the snow and ice to be removed therefrom by the City. 3. Compensation. In consideration of the services provided by the City under this Agreement, Hopkins Mainstreet shall pay the City an annual fee of $500.00 each calendar year during the term of this Agreement, payable in advance, commencing January 1, 1997 and on January 1 of each successive year thereafter. The annual fee for the calendar year 1996 shall be $200.00, due and payable October 1, 1996. In the event Hopkins Mainstreet fails to pay the fees due under this Agreement to the City within fifteen (15) days of the due date thereof, such unpaid amounts shall bear interest at the rate of twelve percent (12%) per annum simple interest commencing on said fifteenth (15th) day. In addition, unpaid fees due to the City hereunder and interest thereon shall be assessable against the Land as a special assessment and recovered as a special assessment under Minnesota Statutes Chapter 429. Hopkins Mainstreet hereby waives all rights to notice of or objection to such special assessments under any provision of state statutes or municipal ordinances providing for notice or objections. 4. Term. The term of this Agreement shall commence on the date hereof and terminate on the date of termination of that certain Lease dated October 17, 1995 (the "Theater Lease ") between Hopkins Mainstreet, as Landlord, and Mann Theaters, Inc., as Tenant, whereby said Mann Theaters, Inc. has leased a portion of the improvements to be constructed on the Land for the purpose of operating a movie theater. However, if the Theater Lease is terminated before the end of its term and Hopkins Mainstreet is actively and diligently seeking a replacement tenant to operate a movie theater in the leased premises covered by the Theater Lease, this Agreement shall remain in effect, provided, nevertheless, if Hopkins Mainstreet ceases to actively and diligently seek a replacement theater tenant, or if a use is made of the leased premises described in the Theater Lease other than as a movie theater or if Hopkins Mainstreet fails to enter into a lease with another tenant to operate a movie theater in the leased premises described in the Theater Lease within eighteen (18) months after the termination of the Theater Lease, the City shall have the right, at its option, to terminate this Agreement by written notice to Hopkins Mainstreet. 5. Fxfension of Time for Performance The time for performance of the City's obligations under this Agreement shall be extended for causes beyond the City's control such as strikes. 6. Indemnification. Hopkins Mainstreet shall protect, indemnify and hold harmless the City, its employees, agents, representatives and officials, from and against any and all losses, claims, damages, causes of action or liability to which the City, its employees, agents, representatives and officials, may become subject in connection with the performance by the City of its obligations under this Agreement, or the conduct of any activity on the Land (other than liabilities resulting from the • negligence or intentional misconduct of an indemnified party), and shall reimburse the City, its employees, agents, representatives and officials, for any out -of- pocket legal and other expenses cAfiletopcivlrsnowrem.hop 3 (including reasonable attorneys' fees) incurred by the City, its employees, agents, representatives and officials, in connection with investigating any such losses, claims, damages, causes of action or liabilities or in connection with defending any actions relating thereto. 7. Notes. All notices to be given hereunder shall be in writing and shall be deemed to be sufficiently given a) if personally delivered to an officer of Hopkins Mainstreet or to the Clerk or City Manager of the City, or b) if mailed by first class United States Mail, postage prepaid, addressed as follows: If to Hopkins Mainstreet: Hopkins Mainstreet, Inc. 5251 West 73rd Street, Suite G Edina, Minnesota 55439 If to the City of Hopkins: City of Hopkins Attention: 1010 First Street South Hopkins, Minnesota 55343 Mailed notice shall be effective two (2) days after the date of mailing. Either party may change the above address for notices by written notice to the other party given as above provided. 8. Miscellaneous. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. This Agreement shall not be interpreted to create any rights in third parties as beneficiaries thereof. This Agreement shall be construed and interpreted under the laws of the State of Minnesota. This Agreement may be amended only by a writing executed by all of the parties hereto. The captions and section numbers appearing in this Agreement are inserted for convenience of reference only and are not intended to define, limit, construe or describe the scope or intent of such provisions. This 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. Hopkins Mainstreet, Inc. City of Hopkins By By Its Its c:\filehopcivil'.s¢owrem.hop 4 By Its STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of , 1996 by and the and , respectively, of the City of Hopkins, a municipal corporation under the laws of the State of Minnesota, on behalf of the corporation. The foregoing instrument was acknowledged before me this day of • , 1996 by , the of the Hopkins Mainstreet, Inc., a corporation under the laws of the State of Minnesota, on behalf of the corporation. STATE OF MINNESOTA ) )SS COUNTY OF HENNEPIN ) c:\fileVropcivilsnowremhop 5 Notary Public Notary Public EXHIBIT A - x it EXISTING CCNCRU_ SIDEWALK Q QQQQOQQQQQCIQ['QQQQQQQQT]QQQQOQ i