CR 91-212 Harley Hopkins Agreementi
I Y O
y 5
September 24, 1991 0 P K`� Council Report: 91 -212
HARLEY HOPKINS AGREEMENT
Proposed Action.
Staff recommends approval of the following motion: Approve
revision of Declaration of easements. restrictions and
undertaking to the purchase agreement as amended between
Independent School District No. 270 and the City of Hopkins
re: Harlev Hopkins property. subiect to conditions
recommended by staff.
Approval of this action will allow execution of this
document and payment to the school district for costs
incurred with erecting the playscape area. It is understood
that if approved, the staff is authorized to make minor
changes to the agreement which do not change the overall
impact.
overview.
In September 1989 the City of Hopkins executed an agreement
with Independent School District No. 270 to facilitate the
purchase of the easterly portion of the Harley Hopkins
School area. The City purchased the property in order to
create a storm water retention area. This agreement was
subsequently amended in February of 1990.
As part of this purchase agreement, it was agreed that the
City of Hopkins would reimburse the school district $30,000
to facilitate erection of a children's playscape area on the
westerly portion of the property. The school district in
turn agreed to grant a perpetual easement to allow the City
of Hopkins to allow public use of the playscape area.
Because the school district is not the owner of the Harley
Hopkins facility (as was originally intended at the time the
purchase agreement was executed), but is a tenant, they are
proposing to grant use of the playscape area by a license
agreement rather than an easement agreement.
Primary Issues to Consider.
o What are the specifics of this action?
o. Why is this action being requested?
o What is the impact of this action?
o What conditions are recommended by staff?
Supporting Information.
o License agreement
Irs. � ��rr ter►
Ja D. Keerigan,/Manning and
E'onomic, Develop nt Director
Analvsis of Issu s.
Based on the proposal recommended, the City Council has the
following issues to consider:
o What are the specifics of this action?
The easement agreement which was proposed to be executed as
part of the purchase agreement would grant to the City of
Hopkins a perpetual easement for use of the playground,
playscape area adjacent to the new Harley Hopkins facility.
Under the proposed license agreement, the school district
would grant the same use rights to the City as long as they
are a tenant of the Harley Hopkins property. In the event
of a termination of their lease, the school district agrees
that it shall relocate the playground equipment to other
property which is owned by the school district and located
in the City of Hopkins, and shall grant to the City a
perpetual easement over the portion of said property for use
of this area by the general public.
o Why is this action being requested ?.
The purchase agreement which was signed by the subject
parties states that the City agrees to reimburse the school
district up to $30,000 in expenditures incurred in
purchasing and selling playground equipment on the Harley
Hopkins site. In return, the school district agrees to
grant an easement over the playground parcel upon completion
of the playground for use by the public. Originally, it was
intended that the school district would be the owner of the
Harley Hopkins property and therefore had the ability to
grant an easement. Due to subsequent changes in the
structure of the project, the school district is no longer
the owner but rather is a 20 -year tenant of the property
(school district has option to renew lease or purchase
property). Accordingly, the school district cannot grant an
easement and is therefore proposing to provide substantially
the same rights to the City as was originally approved by
way of a.license agreement.
o What is the impact of this action?
The easement agreement as-part of the purchase agreement
would have required that the school district grant perpetual
use of the - playground area on the Harley Hopkins site.
Under the agreement as being discussed, the only change is
that after a 20 -year time period (present lease period of
school district), should the school district no longer be a
tenant of the Harley Hopkins project, the playscape area
would be moved from this area to another location in
Hopkins. The playscape area would still be available to
residents of the City but just in a different location.
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o What conditions are recomm nded by staff?
Staff recommends the following conditions:
o The school district reimburse the City /HRA for all
legal costs incurred with the transaction not to
exceed $1,000.00.
o The school district complete at their own expense
a survey of the playground area prior to execution
of the lease agreement.
Alternatives.
The City Council has the following alternatives regarding
this issue:
1. Approve the action as recommended by staff which
will allow execution of the license agreement and
reimbursement to the school district for the
playground equipment which has already been
installed at the Harley Hopkins site.
2. Continue for additional information. The school
district is anxious to secure reimbursement for
the playground equipment and, therefore, any
continuation should be kept to a minimum.
3. Amend the license agreement per consensus by the
City Council. The school district would need to
subsequently agree to these revisions.
LICENSE AGREEMENT
THIS AGREEMENT is made and entered into as of the day of
1991, by and between the CITY OF HOPKINS, a municipal
corporation organized and existing under the laws of the State of
Minnesota, ( "the City ") and INDEPENDENT SCHOOL DISTRICT NO. 270, an
independent school district organized and existing under the laws
,of the State of Minnesota and located in Hopkins, Minnesota ( "the
District ").
WHEREAS, the City is the owner of that certain real property
situated in the City of Hopkins, County of Hennepin.. State of
Minnesota, which is legally described on Exhibit A attached hereto
and made a part hereof ( "Parcel All).; 'and
WHEREAS, pursuant to that certain Lease between HHP Holdings,
Inc. as landlord, and the. District, as tenant, dated July 12, 1990
and amended by agreement dated September 7, 1990 (the "Lease ") , the
District is the tenant of that certain real property situated in
the City of Hopkins, County of Hennepin, State of Minnesota, which
is legally described on Exhibit B attached hereto and made a part
hereof ( "Parcel B "); and
WHEREAS, Parcel A and Parcel B are contiguous one to the
other; and
WHEREAS, in partial satisfaction of the obligations of the
parties under that certain Purchase Agreement dated September 29,
1989 and amended by Amendment to Purchase Agreement dated
February 5, 1990, and pursuant to that certain Development
Agreement dated February 5, 1990, the City has paid to the District
the sum of $30,000.00; and
t
WHEREAS, in further satisfaction of the aforesaid obligations,
it is the intent of the City and the District that certain rights,
obligations and duties relating to Parcel A and Parcel B be
declared to and for the benefit of the adjoining parcel;
NOW, THEREFORE, the District hereby grants and declares to and
for the benefit of the City, as fee owner of Parcel A its.
successor and assigns, as follows:
1. Submission of Parcel A and Parcel B to Agreement
Parcel A and the District's leasehold estate in Parcel B are hereby
subjected to the provisions of this Agreement and shall hereafter
be owned, occupied, leased, subleased or otherwise transferred
subject to the terms of this Agreement. All of the provisions
hereof shall be deemed to be covenants running with the District's
leasehold estate in Parcel B and appurtenant to Parcel A and shall
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benefit the City, and burden the District, their respective
successors, assigns, transferees, grantees, subtenants, licensees,
and all other parties hereafter owning, obtaining or holding any
interest in Parcel A or in the District's leasehold estate in
Parcel B.
2. Grant of Irrevocable License Over Parcel B The District
hereby grants, creates and reserves to and for the benefit of
Parcel A an irrevocable, non - exclusive license over that portion of
Parcel B which is depicted on the site drawing attached as
Exhibit C attached hereto and hereby made a part hereof (the,
"Playground Parcel ") for purposes of the use by the public of the
Playground Parcel as a playground, together with an irrevocable,
non - exclusive license over Parcel B for pedestrian ingress and
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egress to and from the Playground Parcel. The foregoing license
shall remain in effect from the date hereof through and including
the termination of the Lease.
In the event of early termination of the Lease, the District
hereby agrees that, if the .City determines it to be reasonable and
appropriate, it shall relocate the playground equipment which has
been installed on the Playground Parcel to other property, selected
by the District, which is owned by the District and located in the
City of Hopkins. The District shall then grant to the City a
perpetual, non - exclusive easement over the portion of said property
on which the playground equipment has been located, together with
such perpetual, non- exclusive easements for pedestrian ingress and
egress to and from the portion of said property on which the
playground equipment has been located. Such easement would be on
the same terms and conditions as are applicable to the license
herein granted and shall be evidenced by a writing which shall, at
the expense of the District, be recorded in the office of the
County Recorder or Registrar of Titles, as applicable. The
relocation and granting of an easement contemplated by this
paragraph shall take place within one hundred eighty (180) days
following termination of the Lease.
3. Indemnification and Insurance The District shall
indemnify and defend the City against all losses, liabilities and
expenses, including reasonable attorneys' fees and costs of
settlement, resulting from claims arising from, or in any way
connected with, the use by the City, the District or any other
party of the Playground Parcel; provided, however, that the
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District shall not indemnify the City for.any losses, liabilities
or expenses resulting from claims caused solely by the negligence
or willful misconduct of the City, unless such claims are covered
by the liability insurance to be maintained as hereinafter
provided. The District hereby agrees to obtain and keep in force
a comprehensive general public liability insurance policy covering .
all claims alleging property damage, personal injury or death
arising out of, or having to do with, occurrences on or about the
Playground Parcel. Such insurance policy shall have combined
single limits in commercially reasonable amounts, but not less_ than
One Million Six Hundred Thousand Dollars ($1,600,000.00); shall
name the City and the District as' named insureds; and shall provide
that such policies may not be changed or canceled unless both the
City nd the District have been e w '
y given written notice of such change .
or cancellation at least thirty (3 0) days in advance . The District
hereby releases the City from any and all liability or
responsibility to the other or anyone claiming through or under the.
other by way of subrogation or otherwise, for any loss or damage to
property caused by any insured peril, even if such casualty shall
have been caused by the fault or negligence of the other or anyone
for whom the other may be responsible.
4. Non - Merger Notwithstanding any provision of law to the
contrary, if at any time Parcel A and the District's leasehold
estate in Parcel B are owned by the same person or entity, the
covenants, easements, obligations and restrictions provided herein
shall not merge and /or terminate, but shall remain in full force
and effect, and upon a. subsequent conveyance, transfer or
►a
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assignment of ownership of any portion of Parcel A or the
District's leasehold estate in Parcel B, the license and the rights
and obligations contained herein shall be fully enforceable by and
against all subsequent owners and parties and interests.
5._ Remedies Upon Default In the event that the City or the
District fails to comply with the terms and conditions of this
Agreement and said failure to comply shall continue uncured for a
period of thirty (30) days following delivery of written notice to
such defaulting party by the other party of such failure to comply,
then such other party may seek any and all remedies available at
law or in equity. Such defaulting party agrees that it shall,
immediately upon demand, reimburse such other party for such other
party's costs and expenses incurred in connection with such other
r party's exercise of any such remedy,, reasonable
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attorneys' fees, together with interest at a rate of 10 percent
(100) per annum.
'6. Acquisition of Fee Title by the District In the event
that the District shall. acquire fee title to Parcel B at any time
during the term of the Lease or upon the termination of the Lease.,
the District shall grant to the City, as owner of Parcel A, a
perpetual, non- exclusive, appurtenant easement over the Playground
Parcel for purposes of the use by the public of the Playground
Parcel as a playground, together with a perpetual, non - exclusive,
appurtenant easement over Parcel B for pedestrian ingress and
egress to and from the Playground Parcel. Such easement shall be
on the same terms and conditions as are applicable to the foregoing
licenses. Upon such acquisition of title, the District and the
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City shall execute and, at the expense of the.District, record any
instrument which may be necessary to evidence such easements.
7. Governing Law This Agreement shall be subject to and
governed by the laws of the State of Minnesota.
8. Execution in Counterparts This Agreement may be signed
in any number of counterparts, each of which, standing alone, shall
be an original, but all of which shall constitute but one
agreement.
IN WITNESS WHEREOF, the City and the District have executed
this Agreement as of the date and year first above written.
THE CITY OF HOPKINS, MINNESOTA
By
Its
And By:
Its:
INDEPENDENT SCHOOL DISTRICT
NO. 270
By
Its
And By:
Its:
A
STATE OF MINNESOTA)
} ss .
COUNTY OF HENNEPIN)
The foregoing instrument, was acknowledged before me this
day of , 19 by and
respectively the
and the of The City of Hopkins, a municipal
corporation under the laws of Minnesota, on, behalf of said
municipal corporation.
Notary Public
STATE OF MINNESOTA)
) ss.
COUNTY OF HENNEPIN)
The foregoing instrument, was acknowledged before me this
day of , 19 by and
respectively the
and the of Independent School District No.
270, an independent school district under the laws of Minnesota, on
behalf of said district.
Notary Public
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CONSENT
HHP Holdings, Inc., a Minnesota corporaton, as Landlord under
the above - described Lease, hereby consents to the foregoing License
Agreement and agrees that said Agreement shall not constitute.a
default under said Lease.
HHP HOLDINGS, INC.
By
Its
STATE OF.MINNESOTA)
) ss.
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledged before me this
day of 1991, by , the
of HHP Holdings, Inc., a corporation under the
laws of Minnesota, on behalf of the corporation.
Notary Public
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CONSENT
Norwest Bank Minnesota, National Association, a national
banking association, as Trustee under that certain Indenture of
Trust between the City of Hopkins, as Issuer, and the Trustee dated
as of September 1, 1990, regarding the issuance of the
$2,425,000.00 Taxable School Lease Revenue Bonds (Harley Hopkins
Preschool Project) Series 1990, hereby consents to the foregoing
License Agreement and agrees that said Agreement shall not
constitute a default under said Indenture or under the Combination
Mortgage, Security Agreement and Fixture Financing Statement,
Assignment of Leases, Rents and Revenues, or Subordination, Non -
Distrubance and Attornment Agreement entered into in connection
therewith
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By
Its
STATE OF MINNESOTA)
ss
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledged before me this
day of , 1991, by the
of Norwest Bank Minnesota, National Association,
a national banking association, on behalf of the association.
Notary Public
This instrument was.drafted by:
Rider, Bennett, Egan & Arundel
2000 Lincoln Centre
333 South Seventh Street
Minneapolis, Minnesota 55402
0
EXHIBIT A
TO LICENSE AGREEMENT
LEGAL DESCRIPTION OF PARCEL A
That part of Lots 1 to 12, inclusive, Block 34,
lying easterly of the following described line:
Commencing at the southeast corner
of Lot 13, Block 35, said West
Minneapolis Center; thence South 87
degrees 34 minutes 17 seconds West,
on an assumed bearing along the
South line of said Lot 13 and its
westerly extension, a distance of
213.14 feet to the point of
beginning of the line to be
hereinafter described; thence North
00 degrees 22 minutes 04 seconds
West, parallel to the East line of
Lots 13 through 24, Block 35, said
West Minneapolis Center, a distance
of 382.00 feet; thence South 89
degrees 37 minutes 56 seconds West
20.00 feet; thence North 00 degrees
22 minutes 04 seconds West a
distance of 178.05 feet to the North
line of Block 34 and said line there
terminating;
That part of Jackson Avenue vacated lying between
extensions across it of the North and South lines
of Block 34;
Lots 13 through 24, inclusive, Block 35,
All in West Minneapolis Center, according to the plat thereof on
file and of record in the office of the County Recorder, Hennepin
County, Minnesota
EXHIBIT B
TO LICENSE.AGREEMENT
LEGAL DESCRIPTION OF PARCEL B
That part of Lots 1 to 12, inclusive, Block 34,
lying westerly of the following described.line:
Commencing at the southeast corner
of Lot 13, Block 35, said West
Minneapolis Center; thence South 87
degrees 34 minutes 17 seconds West,
on an assumed bearing along the
South line of said Lot 13 and its
westerly extension, a distance of
213.14 feet to the _point of
beginning of the line to be
hereinafter described; thence North
00 degrees 22 minutes 04 seconds
West, parallel to the East line of
Lots 13 through 24, Block 35, said
West Minneapolis Center, a distance
of 382.00 feet; thence South 89
degrees 37 minutes 56 seconds West
20.00 feet; thence North 00 degrees
22 minutes 04 seconds West a
distance of 178.05 feet to the North
line of Brock 34 and said line there
terminating;
Lots 13 through 24, inclusive, Block 34;
The vacated alley in Block 34 lying between
the North and South lines of Block 34,
All in West Minneapolis Center, according to the plat thereof on
file and of record in the office-of the County Recorder, Hennepin
County, Minnesota.
EXHIBIT C
TO LICENSE AGREEMENT
LEGAL DESCRIPTION OF PLAYGROUND PARCEL
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DESCRIPTION FOR; DISIBUT 9 -DOIA
Prepared By.
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DESICRIE-19N. OF PLAYJR0,U-KQ AM
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'The south 68.00 feet of tho West 200.00 feet of Block 34, test Minneapolis
Center, according to the recorded plat thereof. Ile -
September 27 * 1993 "
Rew -se : 40ra e". 5, 199/ Theo ire emna
Land Surveyor MN Li C w No* 17006