Memo Railroad Authority Contract•
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M E M O R A N D U M
TO: Tom Harmening, Hopkins City Council Members
FROM: Stephen Bubul
DATE: April 2, 1991
RE: Railroad Authority Contract
We have been negotiating with the Hennepin County Railroad
Authority ( "HCRRA") regarding acquisition of the HCRRA's existing
right -of -way through the City of Hopkins. The draft contract
generally calls for the Hopkins HRA to acquire the existing
right -of -way, with the HCRRA retaining an easement to use the
right -of -way for LRT purposes after 20 years. If the HCRRA uses
the easement, it must compensate the owner of that property up to
$7.5 million. At the same time, the City agrees to give the
HCRRA an easement in property along County Road 3 and in 9th
Avenue for an alternate LRT route (the "Alternate Corridor ").
The HCRRA has proposed several changes to the draft
contract, raising issues that require your attention. The issues
are summarized as follows:
1. Existing right - of - way acquisition.
1 The HCRRA proposes:
a. The City (rather than the HRA) is the contracting
party.
b. The land transaction is structured as a 35 -year
ground lease; i.e., the HCRRA keeps title and
leases the right -of -way property to the City,
which in turn leases it to the developer.
c. If the HCRRA decides to use the right -of -way after
20 years (with 3 year's notice), the ground lease
terminates and the HCRRA pays a maximum of $7.5
million in compensation to the developer.
However, the City agrees to indemnify the HCRRA
for any costs in excess of $7.5 million (and the
City in turn requires such an indemnification from
the developer). In other words, the HCRRA is
seeking protection from the City, rather than the
developer, that it will be able to use the
right -of -way and pay no more than $7.5 million.
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HP110 -38
d. If the HCRRA builds the LRT in the Alternate
Corridor, it will deed the existing right -of -way
to the City, with 'some compensation for increased
value.
2. Alternate Corridor Easement.
The HCRRA proposes:
a. The City grants a perpetual easement on the
Alternate Corridor, simultaneous with execution of
the ground lease on the existing right -of -way.
(The contract currently calls for an option to
acquire the alternate easement in the future.)
NOTE: A perpetual easement raises questions under
the City Charter.
b. The HCRRA will not be responsible for the costs of
utility relocation and other incidental costs of
building the LRT on this route; i.e., the HCRRA's
responsibilities are limited to building,
operating, and maintaining the LRT.
c. The HCRRA will not indemnify the City for any
claims from property owners that the LRT
interferes with their rights in public streets.
Such a provision is included in the current
contract.
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WWI NMI 1•11 PM WM MIMI
ECONOMIC DEVELOPMENT AREA
IMPACTED BY EXISTING CORRIDOR
EXISTING CORRIDOR
ALTERNATIVE ROUTE
- ...,........� --.• PROPOSED DEVELOPMENT SITE
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ATTEST:
Jeff Spartz
Randy Johnson
John Keefe
John E. Derus
Tad Jude
Sam S. Sivanich
Mark Andrew, Chairman
ID Jeff Spartz, Secretary
RESOLUTION NO. .83R- HCRRA -90
The following resolution was offered by Commissioner Derus
WHEREAS, the Hennepin County Regional Railroad Authority (HCRRA)
owns that portion of the northern route of the Southwest Corridor from
County Road 3 to First Street North in the City of Hopkins; and
WHEREAS, the City of Hopkins and Ryan Construction Company of
Minnesota have been working on a redevelopment project in the Hopkins
Central Business District consisting of a grocery store and other retail
proposed to be located between Sixth Avenue and Eighth Avenue; and
WHEREAS, the proposed redevelopment site between Sixth Avenue and
Eighth Avenue includes that property owned by the HCRRA: and
WHEREAS, this redevelopment project would be of benefit to both
Hennepin County and the City of Hopkins through the creation of new jobs
and an expanded tax base,
BE IT RESOLVED, that the Hennepin County Regional Railroad
Authority (HCRRA) approves use of the HCRRA property located between
Sixth Avenue and Eighth Avenue in the City of Hopkins as a development
site for a grocery and retail project and that staff be directed to
prepare an agreement with the City of Hopkins that includes the
principles attached hereto which are on file wi - the Clerk of the HCRRA
Board.
The question was on the adoption of the resolution and there were
YEAS and NAYS as follows:
COUNTY OF HENNEPIN •
BOARD of cX)UNri CQI` NISSXCNi ERS YEA NAY OTHER
"L c' t7Ghi -ri
Resolution No. 83R- HCRRA -90
principles of Agreement Between Hennepin County Regional
Railroad Authority and the City of Hopkins
HCRRA Property Located Between 6th Avenue and 8th Avenue
in the City of Hopkins
1. The transfer of ownership by the HCRRA of that portion of the
northern route of the Southwest Corridor located approximately
between Sixth Avenue and Eighth Avenue in the City of Hopkins
to the City of Hopkins. The HCRRA shall be compensated for
this portion of the right of way based upon the fair market
value of the property.
2. at the title for the right of way to be released shall be
conveyed to the City of Hopkins. The timing of the conveyance
shall be determined and specified in the agreement.
3. That the HCRM shall retain an easement for LRT purposes over
that portion of the LRT right of may proposed to be conveyed.
4. :'hat, the rgreement be structured to allow the UCRRA the option
of extending the LRT line along the existing northern route of
the So nt_hwe t Corridor or, as an alternative, along Ninth
Avenue to Fitst Street North where it shall join with the
existing corridor of the northern route.of the Southwest
Corridor.
5. If the H;RRA should desire to extend the LRT line along the
existing corridor, the HCRRA, the City and the future developer
shall agree to the followings
c that at such time the HCRRA proposes the extension of LRT
along the existing corridor, that the HCRRA will consider
the placement of an LRT stop ' in downtown Hopkins.
o that the HCRRA agrees not to exercise its LRT easement
rights between Sixth Avenue and Eighth Avenue.for a
period of 20 years from the date of the agreement.
o that the agreement be extended for a minimum of three
five-year periods (i.e., notification in years 17, 22, 27).
o that. provides a minimum of three years advanoe
notice of its intent to implement LRT following the
35 year period.
n that HCRRA agrees to compensate the owners of the
redevelopment project for any loss in value oc doge,
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o that an arbitration procedure be established to
determine actual loss of value at time of exercise of
easement rights.
6. The RCRRM& and the City agree to the following:
c,
Resolution tdo. 83R -HCRI -SC
Page 2
based upon fair market value of the property, they
may incur as a result of LRT implementation over the
easement in an estimated amount of $5,000,000 escalated
in accordance with the Minnesota Consumer Price rndex
annually with the total actual cost not to exceed
$7,500,000 at the time of exercise of easement rights.
No further compensation for damages, loss or other costs
to any others shall be required in order for HCRR! to
exercise its easement tights_
the City will provide permanent easements to the HCRRA to
allow for the realignment of the northern route of the
Southwest Corridor to Ninth Avenue. The easements will be
granted at the sans time as title to HCxRn'property is
transferred to the City. The easements will be located as
follows:
- on City owned boulevard along the south side of
Caunty Read 3 between T.H. 169 to Ninth Avenue.
- an easement up to 28 feet in width along Ninth Avenue
between County Road 3 and First Street North.
o that at such time in the future an LRT line is proposed
to be constructed along Ninth Avenue, that consideration
will be given to the fallowing items:
- an LET stop in downtown Hopkins.
-- at a mini=m, the provision of full traffic movement
intersections at Ninth Avenue and Main Street.
o a study will determine the traffic impacts relating to the
operation of LRT on Ninth. Avenue and on the existing
corridor.
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3rd Draft
1/28/91
CONTRACT FOR CONVEYANCE OF LAND AND EASEMENTS
Dated as of
This document was drafted by:
HOLMES & GRAVEN, CHARTERED
470 Pillsbury Center
Minneapolis, MN 55402
BY AND BETWEEN
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF HOPKINS
and
THE CITY OF HOPKINS, MINNESOTA
and
THE HENNEPIN COUNTY REGIONAL RAILROAD AUTHORITY
TABLE OF CONTENTS
PREAMBLE
ARTICLE I. Definitions
Section 1.1. Definitions
ARTICLE II. Representations and Warranties
Section 2.1. Representations
Section 2.2 Representations
Section 2.3. Representations
by the Railroad
ARTICLE III. Conveyance of Property
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
3.1. Status of Property
3.2. Timing of Conveyance and purchase
price
3.3. Title
3.4. Hazardous Wastes
3.5. Property Easement
3.6. Alternate Corridor Easement
3.7. Corridor Study
ARTICLE IV. Events of Default
4.1. Events of Default Defined
4.2. Remedies on Default
4.3. No Remedy Exclusive
4.4. No Additional Waiver Implied by
One Waiver
ARTICLE V. Additional Provisions
Section 5.1. Conflict of Interests; Authority
Representatives Not
Individually Liable
Section 5.2. Provisions Not Merged with Deed
Section 5.3. Titles of Articles and Sections
Section 5.4. Costs of Enforcement
Section 5.5. Notices and Demands
Section 5.6. Counterparts
SCHEDULE A Description of Property
SCHEDULE B Deed
SCHEDULE C Description of Alternate Corridor
SCHEDULE D Form of Alternate Corridor Easement
Page
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3
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5
by the Authority 5
by the City 5
and Warranties
Authority
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14.
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CONTRACT FOR CONVEYANCE OF LAND
THIS AGREEMENT, made on or as of the day of
, 1991, by and between THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF HOPKINS, a public body corporate
and politic ( "Authority "), established pursuant to Minnesota
Statutes Section 469.001 to 469.047 (formerly Sections 462.411 to
462.711) (the "Act ") having its principle office at 1010 First
Street South, Hopkins, Minnesota 55343, and THE CITY OF HOPKINS,
a Minnesota municipal corporation ( "City "), having its principle
office at 1010 First Street South, Hopkins, Minnesota 55343 and
THE HENNEPIN COUNTY REGIONAL RAILROAD AUTHORITY, a
( "Railroad Authority ") having its principle office at
W I T N E S S E T H:
WHEREAS, the Authority was created pursuant to the Act and
was authorized to transact business and exercise its powers by a
resolution of the City; and
WHEREAS, in furtherance of the objectives of the Act, the
Authority has undertaken a program to promote redevelopment of
land which is underutilized and blighted within the City, and in
this connection is engaged in carrying out redevelopment of pro-
jects known as Redevelopment Project No. 1 and Redevelopment
Project No. 2. within the City (collectively, "Projects "); and
WHEREAS, as of the date of this - Agreement there has been
prepared and approved by the Authority and the City, redevelop-
ment plans for both Projects (collectively "Redevelopment
Plans "); and
WHEREAS, pursuant to the Act and the Project Plans, the
Authority is authorized to acquire real property and to undertake
certain activities to prepare such real property before develop-
ment by private enterprise; and
WHEREAS, in accordance with the Redevelopment Plans, the
Authority is attempting to facilitate redevelopment of certain
real property located partially in Redevelopment Project No. 1
and partially in Redevelopment Project No. 2, more particularly
described in Schedule A annexed hereto and made a part hereof
(the "Property ") which Property is currently owned by the
Railroad Authority; and
WHEREAS, in order to achieve the objectives of the Redevel-
opment Plans, the Authority is prepared to acquire the Property
from the Railroad Authority, subject to certain conditions more
fully described herein; and
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WHEREAS, the Authority, the City, and the Railroad Authority
believe that conveyance of the Property pursuant to this
Agreement, and fulfillment generally of this Agreement, are in
the vital and best interests of the City and of the County, and
the health, safety, morals and welfare of the` residents, and in
accord with the public purposes and provisions of the applicable
state and local laws and requirements under which the Projects
have been undertaken and are being assisted.
NOW, THEREFORE, in consideration of the premises and the
mutual obligations of the parties hereto, each of them does
hereby covenant and agree with the other as follows:
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ARTICLE I
Definitions
Section 1.1. Definitions. In this Agreement, unless a
different meaning clearly appears from the context:
"Act" means the Municipal Housing and Redevelopment Act,
Minnesota Statutes, Sections 469.001 to 469.047, as amended
(formerly Sections 462.411 to 462.711).
"Agreement" means this agreement, as the same may be from
time to time modified, amended, or supplemented.
"Alternate Corridor" means the real property described in
Schedule C of this Agreement.
"Authority" means the Housing and Redevelopment Authority in
and for the City of Hopkins, Minnesota, or any successor or
assign.
"City" means the city of Hopkins, Minnesota.
"County" means the county of Hennepin, Minnesota.
"Deed" means the deed to the Property, attached as Schedule
B of this Agreement.
"Event of Default" means an action listed in Article IV of
this Agreement.
"Holder" means the owner of a mortgage.
"Mortgagee" means any mortgage made by the Redeveloper which
is secured, in whole or in part, with the Property.
"Project" means both Redevelopment Project No. 1 and
Redevelopment Project No. 2, . adopted and administered by the
Authority.
"Project Area" means the real property located within the
boundaries of the Projects.
"Property" means the real property described in Schedule A
of this Agreement.
"Railroad Authority" means the Hennepin County Regional
Railroad Authority.
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"Redeveloper" means the private entity selected or to be
selected by the Authority to carry out redevelopment of the
Property, or the entity's successors or assigns.
"Redevelopment Plan" means the redevelopment plan for
Redevelopment Project No. 1 and the redevelopment plan for
Redevelopment Project No. 2, as those plans may be amended.
"State" means the State of Minnesota.
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ARTICLE II
Representations and Warranties
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Section 2.1. Representations by the Authority. The
Authority makes the following representations as the basis for
the undertakings on its part herein contained:
(a) The Authority is a municipal housing and redevelopment
authority duly organized and existing under the laws of the
state. Under the provisions of the Act, the Authority believes
that it has the power to enter into this Agreement and carry out
its obligations hereunder.
(b) The Authority and the City have found that the projects
are "redevelopment projects" within the meaning of the Act, and
that both were created, adopted, and approved in accordance with
the times of the Act.
(c) The Authority proposes to acquire the Property from the
Railroad Authority, solely for the purpose of fostering the
redevelopment of the Property in accordance with the Act and the
Redevelopment Plans.
(d) The Authority intends to enter an agreement with a
Redeveloper under which the Redeveloper will acquire the Property
and other property within the Project Areas, and the Redeveloper
will redevelop such area for various commercial uses.
Section 2.2. Representations by the City. The City makes
the following representations as the basis for the undertaking on
its part herein contained:
(a) The City is a municipal corporation duly organized and
existing under the laws of the State.
(b) The. City will grant to the Railroad Authority the
Alternate Corridor Easement, in accordance with the terms of this
Agreement.
Section 2.3. Representations and Warranties by the Railroad
Authority. The Railroad Authority makes the following represen-
tations as the basis for the undertaking on its part herein
contained:
(a) The Railroad Authority is a , duly organized
and existing under the laws of the State, has the power to enter
into this Agreement, and has duly authorized the execution,
delivery and performance of this Agreement by proper action.
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(b) The Railroad Authority will convey the Property to the
Authority in accordance with all the terms of this Agreement.
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ARTICLE III
Conveyance of Property
Section 3.1. Status of Property. The title to the Property
is presently held by the Railroad Authority. In order to make
the Property available for redevelopment, the Authority shall
acquire the Property from the Railroad Authority, subject to all
the terms and conditions of this Agreement.
Section 3.2. Timing of conveyance and purchase price. (a)
If no Event of Default has occurred (or if an Event of Default
has occurred that has been cured), the Railroad Authority shall
execute and deliver to the Authority the Deed for the Property,
and the Authority shall pay the purchase price to the Railroad
Authority, on or before May 31, 1991 ( "Closing Date "). The Deed
shall be substantially in the form of the Deed attached as
Schedule B to this Agreement.
(b) The purchase price to be paid by the Authority to the
Railroad Authority in exchange for conveyance of the Deed shall
be the fair market value of the Property as determined by an
appraisal prepared by an appraiser selected by the Authority;
provided that the Authority must notify the Railroad Authority in
writing of the appraisal amount at least 30 days before the
• Closing Date. The Authority shall pay the cost of such
appraisal.
(c) Unless otherwise mutually agreed by the parties, the
execution and delivery of the Deed and payment of the purchase
price shall be made at the principal offices of the Authority.
The Authority shall take possession of the Property upon closing
on the Closing Date.
(d) The Authority shall accept the Deed subject to all
existing leases on the Property; provided, and only on the
condition, that (i) such leases are terminable without payment or
penalty after 30 days written notice to the lessee; and (ii) the
lessees under such leases are obligated to pay any property taxes
or payments in lieu thereof that may be payable on the leased
property.
(e) The Authority shall promptly record the Deed in the
proper office for recordation of Deeds and other instruments
pertaining to the Property. The Authority shall pay all
recording costs, including state deed tax, in connection with the
Authority's acquisition of the Property.
Section 3.3. Title. (a) Prior to and as a condition to
the Authority's obligation to acquire the Property, the Railroad
Authority shall obtain and furnish to the Authority a commitment
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for the issuance of a policy of title insurance for the Property.
• The Authority shall have 10 days from the date of its receipt of
such commitment to review the state of title to the Property and
to provide the Railroad Authority with a list of written
objections to such title. Upon receipt of the Authority's list
of written objections, the Railroad Authority shall proceed in
good faith and with all due diligence to attempt to cure the
objections made by the Authority. Not earlier than eleven days
following the date the Authority shall have received a commitment
for the issuance of a policy of title insurance for the Property
from the Railroad Authority or, in the event the Authority shall
have provided the Railroad Authority with a list of written
objections, within 10 days after the date that all such
objections have been cured to the reasonable satisfaction of the
Authority, the Authority and Railroad Authority shall proceed
with the acquisition and conveyance of the Property pursuant to
Sections 3.1 and 3.2 of this Agreement. In the event that the
Railroad Authority has failed to cure objections within 60 days
after its receipt of the Authority's list of such objections or
by 10 days before the Closing Date, whichever is earlier, either
the Railroad Authority or the Authority may by the giving of
written notice to the other, terminate this Agreement, upon the
receipt of which this Agreement shall be null and void and
neither party shall have any liability hereunder. The Authority
shall have no obligation to take any action to clear defects in
the title to the Property.
• 3.4. Hazardous Wastes.
•
(a) The Railroad shall, as of the date hereof,
grant to the Authority a right of entry on the Property to
conduct an environmental audit of the Property prior' to the
Closing Date. If, after completing such audit, the Authority
determines that hazardous wastes or other pollutants as defined
under federal or state law exist on the Property, the Authority
may, at its option, terminate this Agreement by giving written
notice to the Railroad Authority, upon receipt of which this
Agreement shall be null and void and neither party shall have any
liability hereunder.
(b) The Railroad Authority agrees that, upon conveyance of
the Property under Section 3.2 herein, the Railroad Authority
will indemnify, defend, and hold harmless the Authority, its
governing body members, officers, and employees, from any claims
or actions arising out of the presence, if any, of hazardous
wastes or pollutants on the Property.
Section 3.5. Property Easement. The Authority acknowledges
and agrees that the Deed shall be subject to an easement on the
Property in favor of the Railroad Authority ( "Property
Easement "), which Property Easement shall provide and incorporate
the following terms and conditions:
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(a) The Property Easement shall be solely and exclusively
for use by the Railroad Authority to construct and operate a
light rail transit ( "LRT ") line on the Property; provided that
such use of the Property must be in accordance with an LRT system
plan adopted by the Railroad Authority or by its successor in
interest.
(b) The Railroad Authority shall not exercise its rights
under the Property Easement for a period of 20 years after the
Closing Date for the conveyance of the Property to the Authority.
The Railroad Authority acknowledges and understands that, during
the aforementioned 20 -year period, the Property may be used and
developed by the Redeveloper or the Authority in any manner
consistent with the Redevelopment Plans or any modification
thereof.
(c) After termination of the 20 -year period set forth in
Section 3.5(b), the Railroad Authority may exercise its rights
under the Property Easement, subject to the following terms and
conditions precedent:
(i) Except as hereinafter provided, the Railroad
Authority shall, no later than 17 years after the Closing Date,
provide written notice to the Authority, and to the owner of the
Property at the time of the notice, of its intent to exercise its
Property Easement rights after termination of the 20 -year period.
If the Railroad Authority provides such notice, it shall pay the
damages required under Section 3.5(d) herein no later than the
first day of the 21st year after the Closing Date. The Property
Easement shall terminate upon certification by the Authority, in
recordable form, that the aforementioned payment has not been
timely made.
(ii) If the Railroad Authority fails to provide the
notice required under Section 3.5(c)(i), the Railroad Authority
shall not exercise its rights under the Property Easement until
termination of the 25th year after the Closing Date; provided
that, as a condition to exercising such rights, the Railroad
Authority shall, no later than 22 years after the Closing Date,
provide written notice to the Authority, and to the owner of the
Property at the time of the notice, of its intent to exercise its
Property Easement rights after termination of the 25 -year period.
If the Railroad Authority provides such notice, it shall pay the
damages required under Section 3.5(d) herein no later than the
first day of the 26th year after the Closing Date. The Property
Easement shall terminate upon certification by the Authority, in
recordable form, that the aforementioned payment has not been
timely made.
(iii) If the Railroad Authority fails to provide the
0 notice required under Section 3.5(c•)(ii), the Railroad Authority
shall not exercise its rights under the Property Easement until
• termination of the 30th year after the Closing Date; provided
that, as a condition to exercising such rights, the Railroad
Authority shall, no later than 27 years after.the Closing Date,
provide written notice to the Authority, and to the owner of the
Property at the time of the notice, of its intent to exercise its
Property Easement rights after termination of the 30 -year period.
If the Railroad Authority provides such notice, it shall pay the
damages required under Section 3.5(d) herein, no later than the
first day of the 31st year after the.ClosingDate. The Property
Easement shall terminate upon certification by the Authority, in
recordable form, that the aforementioned payment has . not been
timely made.
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(iv) If the Railroad Authority fails to provide the
notice required under Section 3.5(c)(iii), the Railroad Authority
shall not exercise its rights under the Property Easement until
termination of the 35th year after the Closing Date; provided
that, as a condition to exercising such rights, the Railroad
Authority shall, no later than 32 years after the Closing Date,
provide written notice to the Authority, and to the owner of the
Property at the time of the notice, of its intent to exercise its.
Property Easement rights after termination of the 35 -year period.
If the Railroad Authority provides such notice, it shall pay the
damages required under Section 3.5(d) herein, no later than the
first day of the 36th year after the Closing Date. The Property
Easement shall terminate upon certification by the Authority, in
recordable form, that the aforementioned payment has not been
timely made.
(v) Unless otherwise provided in this Agreement, the
Railroad Authority may exercise its rights under the Property
Easement any time after termination of the 35 -year period set
forth in Section 3.5(c)(iv), provided that, as a condition to
exercising such rights, the Railroad Authority shall, at least 3
years prior to exercising its rights under the Property Easement,
provide written notice to the Authority, and to the owner of the
Property at the time of the notice, of its intent to exercise
such rights. If the Railroad Authority provides such notice, pay
the damages required under Section 3.5(d) herein within 3 years
after the date of service of the notice. The Property Easement
shall terminate upon certification by the Authority, in
recordable form, that the aforementioned payment has not been
timely made.
(d) As a condition to exercising its rights under the
Property Easement in conformance with this Section, the Railroad
Authority shall compensate the party or parties that own the
Property at the time that use of the Property Easement commences
pursuant to Section 3.5(c) herein, for damages associated with
use of the Property Easement by the Railroad Authority, subject
to the terms and conditions as follows:
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(i) The amount of the damages to be paid by the
Railroad Authority shall be the fair market value of the Property
and any improvements thereon as of the time the Railroad
Authority exercises its rights under the Property Easement
pursuant to Section 3.5(c) herein; provided that the appraisal
shall evaluate the Property and improvements as if the Property
Easement did not exist and was not of record. If the Railroad
Authority and the owner of the Property are unable to reach
agreement on the fair market value, the damages shall be
determined and paid in accordance with Minn. Stat. Ch. 117, as
that statute may be amended, which proceedings will assume taking
of the entire fee interest of the Property and improvements as if
the Property Easement did not exist and was not of record. The
Railroad Authority understands and agrees that the owner of the
Property may subordinate its interests under this Section 3.5(d)
to the Holder of any Mortgage. Other than payment of damages as
determined herein, the Railroad Authority shall have no
obligation to compensate any person or entity for damages, loss
or other costs, as a condition to exercising the Railroad
Authority's rights under the Property Easement.
(ii) Except as hereinafter provided, the Railroad
Authority's obligation under Section 3.5(d) shall not exceed
$5,000,000 calculated in 1991 dollars. Such amount shall be
adjusted annually in accordance with the consumer price index for
Minnesota, provided that the amount shall in no event exceed
$7,500,000 calculated as of the time the fair market value of the
Property and improvements are calculated pursuant to Section
3.5(d)(i).
(iii) The terms of this Section 3.5(d) shall be
incorporated in the Property Easement, shall run with the land,
and shall be non - severable from other provisions of the Property
Easement. In addition, the Railroad Authority agrees that, if
requested by the Redeveloper, it will enter into an agreement
with the Redeveloper that substantially conforms to the terms of
this Section 3.5(d).
(e) In addition to the termination provisions set forth in
Section 3.5(c), all rights held by the Railroad Authority under
the Property Easement shall terminate if the Railroad Authority
acquires the Alternate Corridor Easement in accordance with
Section 3.6 herein. Such termination shall be effective upon the
date of conveyance of the Alternate Corridor Easement in
accordance with Section 3.6 herein.
(f) If the Railroad Authority exercises its rights under
the Property Easement in conformance with this Section, the
Railroad Authority shall make a good faith effort to plan for and
accommodate an LRT stop in the City between 5th Avenue and 9th
Avenue along the right -of -way that includes the Property.
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Section 3.6. Alternate Corridor Easement. In consideration
of the mutual obligations under this Agreement, the City hereby
grants to the Railroad Authority an option to acquire an easement
on property within the Alternate Corridor that is presently owned
by the City (the "Alternative Corridor Easement "), which option
is subject to the following terms and conditions:
(a) The Alternate Corridor Easement shall be evidenced by
an agreement substantially in the form of Schedule D hereto and
shall be solely and exclusively for use by the Railroad Authority
to construct and operate an LRT Line within the Alternate
Corridor; provided that such use of the Alternate Corridor must
be in accordance with an LRT system plan adopted by the Railroad
Authority or by its successor in interest; and further provided
that use of Ninth Avenue and any other public street or avenue
within the Alternate Corridor for LRT purposes is subject to the
rights of the public to use such streets and avenues, and
provided that the Railroad Authority may not use such streets and
avenues in a manner inconsistent with the purposes for which the
streets or avenues were originally donated to the City. The,
Alternate Corridor Easement is also subject to: (i) the rights
of the City and any utility company to maintain sewer, water,
gas, electric, telephone and other utilities over, upon and under
any street or avenue within the Alternate Corridor Easement,
whether or not . utility easements have been recorded; and (ii) any
unrecorded easements or interests held by any person or entity in
the Alternate Corridor Easement property.
(b) The Railroad Authority shall provide written notice to
the City of its intent to acquire the Alternate Corridor
Easement. Within 3 years after receipt of such notice, the City
shall convey and the Railroad Authority shall acquire the
Alternate Corridor Easement for the purchase price of one dollar;
provided that before the City is obligated to convey such
easement, the Railroad Authority and the City shall have, by
mutual agreement: (i) determined the precise boundaries of the
property subject to the Alternate Corridor Easement, which
property shall be within the Alternate Corridor described in
Schedule C hereto; and (ii) determined the parties' respective
responsibility for payment of any costs, loss or damages
associated with use of the Alternate Corridor Easement. If the
parties are unable to reach agreement on the above - referenced
items .within 3 years after the City receives notice of the
Railroad Authority's intent to acquire the Alternate Corridor
Easement, the City may terminate the Railroad Authority's option
under this Section. Upon acquisition of the Alternate Corridor
Easement, the Railroad Authority shall record the Alternate
Corridor Easement and pay any costs, taxes or fees in connection
with such conveyance and recording.
(c) If the Railroad Authority acquires the Alternate
Corridor Easement in accordance with this Section, and the
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(e). In addition to any other termination provision set
forth in this Section 3.6, the Railroad Authority's option to
acquire the Alternate Corridor Easement and all rights held by
40 the Railroad Authority under the Alternate Corridor Easement, if
acquired, shall terminate if the Railroad Authority at any time
exercises its rights under the Property Easement in accordance
with Section 3.5 herein. Such termination shall be effective
upon certification by the Authority, in recordable form, that the
Railroad Authority has timely paid the damages required under
Section 3.5 herein. -
•
Railroad •Authority. fails to commence use of the Alternate
Corridor Easement within 2 years after the date of the
conveyance, the Alternate Corridor Easement shall terminate.
Such termination shall be effective upon certification by the
City, in recordable form, that the aforementioned condition has
not been timely met. For purposes of this Section 3.6(c), "use"
of the Alternate Corridor Easement means: (i) construction of an
LRT line, or ancillary facilities related thereto, within the
easement area; or (ii) execution of contracts between the
Railroad Authority and third parties for the planning,
engineering or construction of an LRT line, or ancillary
facilities related thereto, within the easement area.
(d) If the Railroad Authority acquires the Alternate
Corridor Easement, the Railroad Authority shall make a good faith
effort to plan and accommodate a stop on the LRT line between 1st
Street South and 1st Street North along the Alternate Corridor
Easement; provided that any LRT line using the Alternate Corridor
Easement shall ensure full traffic movement in all directions at
least at the intersection of 9th Avenue and Main Street.
Section 3.7. Corridor Study. The Railroad Authority
agrees that, prior to implementing any plans for an LRT line
within the City, the Railroad Authority shall conduct a study to
determine the traffic impacts associated with operation of the
LRT on a route through the Property and on a route through the
Alternate Corridor. The Railroad Authority shall provide the
results of such study to the City and the Authority, and shall
use such study results to minimize the impact of any LRT line on
traffic within the City.
13
ARTICLE IV
Events of Default
•
•
Section 4.1. Events of Default Defined. The following
shall be "Events of Default under this Agreement and the term
"Event of Default" shall mean, whenever it is used in this
Agreement (unless the context otherwise provides): any failure
by the Railroad Authority, the City or the Authority to observe
or perform any covenant, condition, obligation or agreement on
its part to be observed or performed hereunder.
Section 4.2. Remedies on Default. Whenever any Event of
Default referred to in Section 4.1 of this Agreement occurs, the
non - defaulting party may exercise its rights under this Section
4.2 after providing thirty days written notice to the defaulting
party of the Event of Default, but only if the Event of Default
has not been cured within said thirty days or, if the Event of
Default is by its nature incurable within thirty days, the
defaulting party does not provide assurances to the non -
defaulting party reasonably satisfactory to the non - defaulting
party that the Event of Default will be cured and will be cured
as soon as reasonably possible:
(a) Suspend its performance under the Agreement until it
receives assurances that the defaulting party will cure its
default and continue its performance under the Agreement.
(b) Cancel and rescind or terminate the Agreement.
(c) Take whatever action, including legal, equitable or
administrative action, which may appear necessary or desirable to
collect any payments due under this Agreement, or to enforce
performance and observance of any obligation, agreement, or
covenant under this Agreement.
Section 4.3. No Remedy Exclusive. No remedy herein
conferred upon or reserved to any party is intended to be
exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Agreement or now or hereafter
existing at law or in equity or by statute. No delay or omission
to exercise any right or power accruing upon any default shall
impair any such right or power or shall be construed to be a
waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In
order to entitle any party to exercise any remedy reserved to it.,
it shall not be necessary to give notice, other than such notice
as may be required in this Article IV.
14
Section 4.4. No Additional Waiver Implied by One Waiver.
• In the event any agreement contained in this Agreement should be
breached by either party and thereafter waived by the other
party, such waiver shall be limited to the particular breach so
waived and shall not be deemed to waive any other concurrent,
previous or subsequent breach hereunder.
•
•
15
ARTICLE V
Additional Provisions
•
•
Section 5.1. Conflict of Interests; Authority Representa-
tives Not Individually Liable. The Authority, the City, and the
Railroad Authority, to the best of their respective knowledge,
represent and agree that no member, official, or employee of the
parties to this Agreement shall have any personal interest,
direct or indirect, in the Agreement, nor shall any such member,
official, or employee participate in any decision relating to the
Agreement which affects his or her personal interests or the
interests of any corporation, partnership, or association in
which he or she is, directly or indirectly, interested. No
member, official, or employee of the parties shall be personally
liable to any other party, or any successor in interest, in the
event of any default or breach by any party or on any obligations
under the terms of the Agreement.
Section 5.2. Provisions Not Merged with Deed. None of the
provisions of this Agreement are intended to or shall be merged
by reason of any deed transferring any interest in the Property
and any such deed shall not be deemed to affect or impair the
provisions and covenants of this Agreement.
Section 5.3. Titles of Articles and Sections. Any titles
of the several parts, Articles, and Sections of the Agreement are
inserted for convenience of reference only and shall be disre-
garded in construing or interpreting any of its provisions.
Section 5.4. Costs of Enforcement. If, whenever any party
is in default of its obligations under this Agreement, any other
party employs attorneys or incurs other expenses for the
collection of payments due or to become due hereunder or for the
enforcement, performance, or observance of any other obligation
or agreement of the defaulting party under this Agreement, the
defaulting party shall pay to the other party or parties, within
10 days of written demand therefor, such reasonable attorneys'
fees and such other reasonable expenses so incurred.
Section 5.5. Notices and Demands. Except as otherwise
expressly provided in this Agreement, a notice, demand, or other
communication under the Agreement by either party to the other
shall be sufficiently given or delivered if it is dispatched by
registered or certified mail, postage prepaid, return receipt
requested, or delivered personally; and
(a) in the case of the Authority, is addressed to or
delivered personally to the Authority at Hopkins City Hall, 1010
First Street South, Hopkins, Minnesota 55343; and
16
•
•
(b) in the case of the City is addressed to the Community
Development Director, City of Hopkins, 1010 First Street South,
Hopkins, Minnesota 55343; and
(c) in the case of the Railroad Authority, is addressed to
or delivered personally to the Railroad Authority at
or at such other address with respect to each party as that party
may, from time to time, designate in writing and forward to the
others as provided in this Section.
Section 5.6. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the Authority has caused this Agreement
to be duly executed in its name and behalf and its seal to be
hereunto duly affixed and the City has caused this Agreement to
be duly executed in its name and behalf and its seal to be
hereunto duly affixed and the Railroad Authority has caused this
Agreement to be duly executed in its name and behalf on or as of
the date first above written.
17
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY
OF HOPKINS
By
Its
By
Its
CITY OF HOPKINS, MINNESOTA
By
Its
By
Its
•
•
•
STATE OF MINNESOTA )
) ss.
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1991 by and
, the and of
the Housing and Authority in and for the City of
Hopkins, a public body politic and corporate, on behalf of the
Authority.
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The
day
the City
municipal
HENNEPIN COUNTY REGIONAL
RAILROAD AUTHORITY
By
Its
By
Its
Notary Public
foregoing instrument was acknowledged before me this
of , 1991 by and
, the and of
of Hopkins, a municipal corporation, on behalf of the
corporation.
18
Notary Public
•
•
STATE OF MINNESOTA )
) ss.
COUNTY OF
The foregoing instrument was acknowledged before me this
day of , 1991 by and
, the and of
the Hennepin County Regional Railroad Authority, a
corporation, on behalf of the corporation.
19
Notary Public
•
•
•
SCHEDULE A
Legal Description of the Property
[Insert description of right -of -way]
•
•
SCHEDULE B
Deed to the Property
[Deed will include Property Easement]
•
•
SCHEDULE C
Description of Alternate Corridor
[Insert description of area within which
the Alternate Corridor Easement will be located)
•
SCHEDULE D
Form of Alternate Corridor Easement