HomeMy WebLinkAbout2007 07-23 EDAP EDA MEETING
City of Brooklyn Center
July 23, 2007 AGENDA AMEI�DED
1. Call to Order
—The EDA requests that attendees turn off cell phones and pagers during the meeting. A
copy of the full City Council packet, including EDA (Economic Development Authority), is
available to the public. The packet ring binder is located at the front of the Council
Chambers by the Secretary.
2. Roll Call
3. Approval of Agenda and Consent Agenda
—The following items are considered to be routine by the Economic Development Authority
(EDA) and will be enacted by one motion. There will be no separate discussion of these
items unless a Commissioner so requests, in which event the item will be removed from the
consent agenda and considered at the end of Commission Consideration Items.
a. Approval of Minutes
1. July 9, 2007 Regular Session
4. Commission Consideration Items
a. Resolution Approving Environmental Response Fund Crrant Agreement Between the
Brooklyn Center Economic Development Authority Development Authority (EDA)
and Hennepin County Department of Environmental Services
•Requested Commission Action:
—Motion to adopt resolution.
b. Resolution Approving and Authorizing Execution of an Amendment to the
Development Agreement Between the Economic Development Authority and
Brooklyn Hotel Partners, LLC
•Requested Commission Action:
—Motion to adopt resolution.
c. Resolution Approving and Authorizing Farly Construction Under Development
Agreement Between the Economic Development Authority, the City af Brooklyn
Center, and Brooklyn Hotel Pariners, LLC
•Requested Commi�sion AMion:
Motion to adopt resolution.
5. Adjournment
uce the followin resolution and
introd d
Commissioner g
moved its adoption:
EDA RESOLUTION NO.
RESOLUTION APPROVING AND AUTHORIZING EARLY CONSTRUCTION
UNDER DEVELOPMENT AGREEMENT BETWEEN THE ECONOMIC
DEVELOPMENT AUTHORITY, THE CITY OF BROOKLYN CENTER AND
BROOKLYN HOTEL PAR'TNERS, LLC
WHEREAS, the Economic Development Authority of the City of Brooklyn Center,
Minnesota (the "EDA") has heretofore entered into a Development Agreement, as amended (the
"Development Agreement") between the Economic De�elopment Authority, the City of Brooklyn
Center (the "City") and Brooklyn Hotel Partners, LLC, a Minnesota limited liability company (the
"Developer"}, in connection with the Developer's proposed construction of a hotel development in
the City (the "Project") and
WHEREAS, the Developer has requested that it be allowed to commence
construction of certain Proj ect improvements on phase one of the development prior to the closing of
the acquisition of phase one by the Developer.
NOW, THEREFORE, BE IT RESOLVED by the Economic Development Authority
of the City of Brooklyn Center as follows:
Section 1. Board of Commissioners does hereby approve the early start of
construction on phase one Lot 1, Block l, Brooklyn Farm Second Addition (the "Property") by the
Developer, provided that such construction be limited only to certaul site preparation work, mcluding
the "Work" and
only earth movmg, gradmg, general srte preparation and utility work (collectively,
further provided that prior to the commencement of the Work, Developer provide to the EDA and the
City the following:
a. A written agreement signed by Developer agreeing to perform the Work in
accordance with the terms of the Development Agreement, including without
limitation all indemnities and such other protections as the Executive
Director of the EDA may, in his sole discretion, require.
b. A written commitment for canstruction fmancing in form and substance
acceptable to the Executive Director of the EDA and consistent with the
requirements of the Development Agreement.
c. Written approval of the EDA of the grading plans for phase one of the Proj ect
and a grading permit and such other permits and approvals as may be
necessary for the Work issued by the City or other governing authorities or
entities and all applicable utility companies.
I�___
EDA RESOLUTION NO.
d. Copies of all signed contracts and subcontracts for the Work (the
"Contracts").
e. Certificates of insurance as specified in Article VIII of the Development
Agreement.
f. Signed consents and waivers in favor of the EDA and the City in form and
substance acceptable to the Executive Director of the EDA from each
contractor and subcontractor performing the Work whereby all contractors
and subcontractors under the Contracts agree that (i) payment for all work
performed by them will be the sole responsibility of the Developer, and (ii)
all liens and claims they may have for the cost of the Work against the EDA,
the City and/or the Properry are waived and released.
Notwithstanding the foregoing to the contrary, no such Work shall be commenced if
the Executive Director of the EDA determines that there exists good reason to withhold and/or deny
approval for the commencement of the Work, including without limitation, the failure ar likely
failure of the Developer, as determined by the Executive Director of the EDA in his sole discretion,
to timely perform and observe all of its obligations and responsibilities under the Development
Agreement.
Julv 23. 2007
Date President
The motion for the adoption of the foregoing resolution was duly seconded by Comxnissioner
and upon vote being taken thereon, the following voted in favor thereof:
and the following voted against the same:
whereu on said resolution was declared dul assed and ado ted.
P YP P
I��
��.x.
t
4
w
MINUTES OF THE PROCEEDINGS OF THE
ECONOMIC DEVELOPMENT AUTHORITY
OF THE CITY OF BROOKLYN CENTER
IN THE COUNTY OF HENNEPIN AND THE
STATE OF MINNESOTA
REGULAR SESSION
JULY 9, 2007
CITY HALL COUNCIL CHAMBERS
L CALL TO ORDER
The Brooklyn Center Economic Development Authority (EDA) met in Regular Session called to
order by President Tim Willson at 8:17 p.m.
2. ROLL CALL
President Tim Willson and Commissioners Kay Lasman, Mary O'Connor, Dan Ryan, and Mark
Yelich. Also present were Executive Director/City Manager Curt Boganey, City Attorney
Charlie LeFevere, Planning and Zoning Specialist Ron Warren, and Deputy City Clerk Camille
Worley.
3. APPROVAL OF AGENDA AND CONSENT AGENDA
Commissioner Lasman moved and Commissioner Yelich seconded approval of the Agenda and
Consent Agenda, and the following item was approved:
3a. APPROVAL OF MINUTES
1. June 1 l, 2007 Regular Session
Motion passed unanimously.
4. COMMISSION CONSIDERATION ITEMS
4a. RESOLUTION NO. 2007-10 ACCEPTING BID AND AWARDING CONTRACT
FOR DEMOLITION OF EDA OWNED PROPERTY LOCATED AT 1501
FREEWAY BOULEVARD (FORMER DAYS INN HOTEL)
Executive Director/City Manager Curt Boganey introduced the item, discussed the history, and
stated the purpose of the proposed resolution.
There was discussion on the future removal of the parking lot and curbing.
Commissioner Lasman moved and Commissioner Yelich seconded adoption of RESOLUTION
NO. 2007-10 Accepting Bid and Awarding Contract for Demolition of EDA Owned Property
Located at 1501 Freeway Boulevard (former Days Inn Hotel).
07/9/07 -1- DRAFT
5. ADJOURNMENT
Commissioner Lasman moved and Commissioner Yelich seconded adjournment of the
Economic Development Authority meeting at 8:24p.m.
Motion passed unanimously.
07/9/07 -2- DRAFT
���lt►�».�
cau�vc��, IT�M ���c��.�vr�u�
TO: curt Ba�aney, Cit�y 1Vtanager
FR4Ni: Tc�rn Bublitz, Cc�mmuni Develo ment S ialist
tY P
DATE: July 19, 2007
SUBJECT R` �St}�ZT�i4II AppTt'�VIIi� EIIVII'OIIIriCri� R` BSp�TtSB FUII{I CtI811� A�C��[l1�1'I� B�VV�tI
the Broaklyn Cent�r �,conomic Development Authority (EDA) and Hennepin
County Department vf Environmental S�rvices
Recatntnendation:
Staff recc�m3mends appraval of the Re�olution Apprar7in.g Environme�tal Response Fund Grant
Agreem�t Between the Brook�yn Center Econamic Developrnent Authtrrity {EDA} and
H�epin County Departn�ent €�f Environmental Services. Ex�ution af the ERF Grant
Agr�ement is required before any funds can be expended.
Background:
Th� Broc�klyn Center Ecanomic Llev�lopment Authority (EDAj has been awarded $144,$1 fl by
#he Hennepin Ct�u�z#yBnviranm�ntal Response Funti (ERF} grant program. '�`his a�ount
repres�nts 1(�l percent of the E3?A's grant request mat�e in May 2{�07. The pttrpvse c�f the grant
is to cvnduct an environmental investigation which ac�dresses patential cantaminativ� from a
former dr�r cleanin� c�peration on the EDA owned pmperty at 57�' and Logan Avenues Nt�rth.
The envir�n��ntai investi�a.tian will be conduct� pursuant to work plans apprc�ved b� the
Min�neso#a Ft�llution Contml A,�enc}� (MPCA) as part af ttie EDA's participa�i�n in the MPCA's
Voluntary Investigatic�n �nci C1ean-Up Program (VIC). The focus af the investigation will be
testing fur pc�tential off site c�antarnination fr+am the former dry cleanin.g aperafion. Previvus
i�vestigations cic�ne by the EDA's environrnental cor�ssultant in late 2UU6 and early 2UU? indicated
pc�ten#ial chlorinated solvent (VOC's) contamination in a larg+�r area than indica#ed in p�evic�us
investigatic�ns. The att�ched Figu�e 2 shows the initial suspected contamitiant plume and areas to
the sautli and east of the initial plum�e showing high soil vapor ct��centratic�ns of chlorinated
solvents.
The i�v�tigation proposed fc�r the ERF grant includes:
Soil va�r anci ground water assessment in the expa�d�ci ct�ntarnina�t a�'ea.
Sub slab sc�il vapor sampling to assess any pot�n,tial contamuit�t levels under basernents
andlc�r slabs of residentiat structures.
Indaor air quality sampl�ng of residences in the suspected contazninant arsa,
i
Water well receptor sutwey to assess number afwater �e11s in use (if any} in the
su�ted contaminant area.
Final repc�rt pr�paration and prepazation of a Rerneciial Action Plan if needed.
S�aff` anticipates this will �e the last �nvironrnental inv�sstigatic�n of th� site ne�cied tci take the
proj�t tc� conclusic��, eith�r thcough remediation of any cont:aminatian or the issua�ce by the
MPCA of specific assuran�e� that nc� :further action is required c�n t�ie site ar s�rounding
neighborhovd.
Hennepin Gounty r��res the EI�A execute an Environrnental �t�pons� Fund Gra�t ��reement
betv�een ths EI>A �d Hennepin County Department afEnvir+antnental Serr��ces.` The tenns and
conditir�ns of t#�e County ERF agreement are identical ta thase in previous ER.F agreements
aPProveri by the EDA with the �xe�ptian af an increase in the �surance re�uixemen#s which are
within t�e ED�.'s current irtsurance limits. A copy of the ERF agreement is includ�d with this
memorandum.
As inrl�cat+�d previausly, the grant do�s not require any matching funds from the City or EDA.
A copy of the Resc�lutit�n A�.ppr�aving Environmental Respoonse Fund Gra�t A�ement Betw�en
the Broc�k�yn Center Econc�mic I�e�velopment �iutharity (EDA} and Henn�pin Co�tnty
Depa�rtrrient c�f Envirfanmental S�rvices is includ� wzth this memc�randurn,
Budget Issues: There are nv dire.ct general fund budget �ssues relative to the �RF �t.
However, ERF f�utds cannut be spent an public infarmation material ar pubtic i�f'oimation
m��tings. Tt is a�ticipat�i sQrne level of pubiic camm�ni+ca�tion wilt a n�ary part c�f this
investigative ��ocess, Any casts related to public informatian effc�rts wt�uld he p�id +�ut of TIF 3
revenues. Addi#ionally, the EFtF gr�nt cannat pay for stai� administrative time spent ar� the
praject.
S
Commissioner introduced the fall�win� r+e�lution an�l
mc�ved its ado}stion:
EDA �SOLUTION NO.
RES4LUTi4N APPROVING ENVIRC?NMENTAL RE�PC)I�t�E FUND
GRANT AGREEMENT BETWEEN THE BROf)I�LYl�T CEItiTF,�i. ECC}NCIMIC
DEVfiLC}PMEI�fiT AUTHORITY (EDA) ANU HE�P'IN CC}L;fAi'i''Y
D�PARTN.tENT CJF EI��VIRONMENTAL SER�'ICES
W�iI�EAS�, THE Brooklyn Center �conornic Develt►pment Authc�rity (EDA}
�pted Resc>Iution No. 2007-b5 Approving an Applzcation tc� the Hennepin Caunty
Enviro�rnent�ai Resperti�e Fund it�r an Environmental Siie A:ssessmer�t a�t the Logan and SZ�'
Recle�velr�prnent site in BroQklyn C�nter; and
WH�REAS, the Hennepin County Board af Commissianers l�as approued th�
EDA's Enviro�mental Response Fund Grant Applieation and has awarde�l 144,8 i 0 t4 the EI�A
fnr Assessment worl� at the site; and
VS7HHEREAS, the E1�A is required to execute an Envirc�nmental Ites}�nss� Fund
Grant Agreement between th� EI)A and Hennepiin Gounty Departmeent c�f Errvironmentat
Services tc� receive the Environmental Response Fund Grrat�t award; and
V�JHEREAS, an Environmental Respc�nse Fund Gr�nt �.�reement between the
EDA at�d Henn�pzn County Department of Environme�tal Services has b�en prepared by
Hennepin Cc�unty far execu�ic�n by #h� EDA;
N4VV, THEREF4RE, BE IT RESCILVEI� by t3�e E�o�mic T)e�relopment
Aut�ic�rity i� and for the City af Brooklyn Center, Minnesota t�at the Envirct�tmental �.espanse
Fund G�nt Agreernent CQntc^a�t Number A070885 between the EI�A and Hen�epi�n �:ounty
De�artment of Envirc�nmental Services is herebY �PProved and the ET3A F�ttesident and Ex�cutive
Director at� hereby auth�rized to execute the agreement.
Date Presiclent
The motion fvr the adopticrn csf the fc�regoing resolutian was duly secc�nded �ry c�rmmissioner
and upc�n vc�te �ing talcen therec>n, the fcrl}owing �roted i� favc►r the�re.of
and th� foliov�irtg voteci �inst the sanne:
whereupvr� s�id r�lutia�n was declared duly pass� and adopted.
a �s y'�� 4 y �e'
��r y �t
p r e r a
Py �'F 1��" 'r �1� R Y t L
t �y
1�° t �ry r
t'`�"° �r kF` i'�'�'�a y t F' yr i i� ,k�r
j �2 ND ND �t lw
Q. 160
i ,�j� ����yr+ �i��
Y
y 1� Y
y��
ND,��;
,J
a
�*`+li 1
y e 4� r
76 640 „��'C
t• 'G` ,t.
I
r. a. ND Y •3: .ta�
`r rw. .a 'b' w
y `'Ti;�, ND.�. ,�i.'i'�'`
jj� S3;� i i .A'r�
7S 1 �Y.� r
C.. ����;'�i�'�
a ND:
I
t °W 830 f L
f e
�yt .a1� f F:F�.. e��
S i
r 8�
e r Y
E
g
i �.n �f'� ax'i`L, r 'r fIf rl�._ ^I�
`7
t N �1.�
"1� �C
r r ,ti
k X ND
s
y �+e. Q E �B
f M 340
y
+T^ w
v i n .A� e�'�.
r
g t� �n p C w
F. F lR M� 4 �d.'. 1. f�:�+'�
r.,
�r `�:r
aaii� t l ys e F f 'v
t z
.i' �'A '�a; `4- c�
�1 �i a
��Np ��p ND' �.1 y"� i M'
j� ,i�
rt �,�,'t�. 4• W bs� i 1 `..�t r ��a',:. f
f .:K
Logan 57th Redevelopment
Soil Vapor Saee�ing location
Soil Vapor Sartple Locadons (Oc/2005) N
K 700 uglL PCE in water Inferted Extent ser vyx w�+.nr�s R.ww.
50 ugll PCE in water Inferred Extent o tzs zw soo
7 ug/L PCE In water Inferred ExteM Fss� T
C`ontract Nc�. AU'TU885
ENVIRCiNMEN'I'AL RE5F'ONSE FUND GRANT AGREEMEi+T'T"
BETWEEN BRU{}KLYN CBNTER ECONOMIC UEVELOPML�NT AGEl*1CY AND
HENNEPIN C(3UNTY DEPARTMENT OF Ehl'VIRC3�[h+lENT"AL 3E1tVI�ES
This Agree�nE is nrade on by and between the �csu�►ty of Hen�nepin4 St� af
Minnesc�ta ("Caunty" ur "Cma�x#or" at A2340 Govern�ent Center, Mu�eagalis, MN 554$?} by and tliruttg,h it�
Deparm�ent of Envirc�n�ntal Servlces ("i?e{�aranenY') and Brocsklyn Center ��mic l7evetoptr�nt Agency
(EDA), 63Q 1 Shingle Creek Parlcway, Brooklyn Center, Minnesata 5543U ("Cxrantee").
Gr�ntee has rnacie a�rpiicatian to the County for a grant to be used for envircanmen�3 asssssment of the Logan and
57�' Redevek�pmen# site, located at 19Ut? tu 2t)00 57th Avenue N4rth in Broaklyn Center, whiel� apptication is
i�eorpc�rated inta tkiis Agreement by refercnce.
In cansideration af the rnutual prcamises set forth below, the parties agree as foll�ws:
1. GRANT AMt)UNT AND COMFLETTt}N
Th$ County shalt $ra�t to Grantee a surn �t #o axceed Or� Hundred and Forty-Fowr Thousand Eight F�uindred anci
Ten Dallars ($144,81t}.U{}} which fitnds shall be only for expen�es incurred an performing activi�es speci€'i�d in the
Applicai�on and as may be fvrth�r descn`bed in Exhibit A to this Agr�er��# or as approved by C�unty staff.
Appaxrved ass�ess�nt aadtar clean-up activi#ies as m�y be descnil�+ed. in th� applica�ion az�i �3chi�sit A are referred ta
herein as the "Project". Adminis�rative ccrst� incurred by Grant�e are �wi eligible fc�r rei�nbursem�nt vi� this
Agreer�ten#.
Grantee agrees to ct�mple#e tt�e PrQject within one i) yeaz of e�cution c�f this Agreerr�nt and witbin th� texms
srated herein. �,ny x�ssteriai change in the scoge of rhe Project, incle�d�ng time sci�+eduie and budgc#, mus# be
appro�ed in writing by the Cuut�ty. Upon approval by the County Adnunistr�tor, the d�u�ation ofthis Agreesnent
may be extendecl for np ur twetve (12) �nths. Funds made availab�e purs�aut ta this nt shall be used only
for expenses incumcd in perforn�iag su�c� purposes and activities dtscribed in the Application aud t�uis A n#.
2. ACCCtiUNTING AND RECORD KEEPTNG
Fur alt eacpenditaues of fi,�ds made pursua�►t to this Agreen�ent, Grante� shai3 keep financial recarcts i�ciuding
px+�perly executect c�ntrracts, iztvoiees, at�d csther docu�nts sufficient to ewidence in praper detail the n�ture and
propriety of ttie expenditures. Acct�unting methc�ds shall be in accardance with generaliy acceptcd accounting
prin+eiples,
Grantec a�rses that the Gc�unty, the S#atc Auditor, or any of their duly auC�tc�riaeci representatives at a�y t�e during
nornsal bus%nes� hours, an+d as often as they �y reason$bly dcem xieces�aty, s1�a21 have �c�ess tc� a�d th� ri�it to
e�mine, �udit, e�expt, and tr�nscrit�e asay b�oks, dociunents, pal�eers, reca�cls, etc., w1�ch aze pertin�ant tU tl�e
�ccau�ting practices a�d p�ocectures af Grantec and involve transactians relating tc� this ,�reemen�. Such materi�ls
shail6e r�ir�tain�t a�sd such �ccerss �sd righis shall i�►e in forcc �nd effeet during the p�riod af #he Agreetitcnt and
for six {5) years af�r its termination or cancellarian.
3, PAYi41EN'1'lI3ISBURSEMEN'1` SC�TElJULE
Gran�r wi�1 dist�urse funds to Grantee pursuant w this Ag�eem�n#, based on a paymeui request fc�rm prfl�+ided by the
Grantor, submitted by Grar�tee and approved by the �irantor. Payznet�t z°equests can bc submitted i��tec per mon#h
and must ts� aceon�anicd by supportin�; invoices that relate to activities in thk� appraved Projec# budget, Subj�ct #o
verifica�pn of adequacy of a writte� disb�meat request and approval<af eansistency with tttis Agreement, tbe
G�'antor will disburse the reques�ecl amaunt to Cr�ntee within six (6) weeks after receipt c�f a c�rritten disburseu�n#
request.
1
4. R�POR'�"ING
II I
Gra�tee sha�l submi# to the Grantar a reporE on the distribution �f funds �nd the progress �tif the Pr±�ject covered from
the dafie af the grant award through June 3U of each year. The r�port� rnust t� receivcd by the GcsuAty no later th$n
3u1� �5 of each year. The report shall id��ify specific goals listed in the a�rplication and quantitati�,�ly �easure the
prngress of such goals. R�ori�ing fotms vvill be provided by the Grantor. In addiition, the xequired dcrcu�tion
�1t
listed in E�ibi# A stwuld be su lied �s ii becomes availabla
1�P
I 5: COI+S'T1tAC'I`S
Grantee shall includc in any contract, provisiuns that require co�tractors to com�ly with atl ap�stieable State and
i Federa� laws and regulations re�atding cm�toyment and workplace safety.
In accQrdance with Hennepin �ouuty's pa�icies against discriminaticsn, Grantee agrees that it stiall nc�t exclude any
person frc�m full empioyment r�ghts or garticipation in ar ttt� benefits of any program, service, or aetivity on the
$T'OUIICIS O�TBC�' G{}IOI'� Cit'.CC� religion, age, sex, disability, marital status, sexu�l orientatio�s, pubiic assiatance status,
or natianal origin; actd nc� persun who is pmtected by applicable �ederal or State lavvs, n�les, ar regulaticros against
discri�n�tian shall be otheerwwise subjected ta discrirnination.
Public Crrantees and any eontractors ar subcontractors perforcning services as part af t�tis Agree�nt s#}alt fallow
I
that pubiic Grantee's AffuTnative Action policy agains# discrimination.
6. TER3VIINATIaN, CANCELLATI4A1 AND ASSIGNMEATI`
This Agreeme�t rr�y be canceled by ths County upan sixty (60} days written notice tc� tirantee withc>ut cause, In the
event of such canceiiation, Gr�ntee shali be er�ritled to payment, detemun�d on a pm rata basis, for wark or services
satisfactorily perfornaed up tsa the eff�c�ive date af such cancellation.
If the County finds tl�at there has i�e� a failure to co�ly with the provisions of this Agretm�t��, that r�asonsble
progress 1sa�s ntst been rnadc tow�rd commencement or coa�letion of the a�sess�nt �U�r cteau-�p ectivities
speci��d in the Appii�ation and ttuis Agr�nt, natwithstaading any at3�r provisians csf this Agree�necaut tt� the
cnntrary and �ftex writtt� notice and reasc�nable opportunity to cure, the Catm#y may refuse ta disb�e additicanal
fixnds anullor require the retur�n of ati or part af the funds already dt'sbursetl, the extet�t s� futids were used €or
pur�soses csther than acrivities ccrntct��ated by this Agre,euunt.
This Agreement rnay no# be assigned without the prior written cons�nt af the County.
7. INI)EPENDENT CQN�ACTOI�
Grantee shali select the mcans, rr�thQd, and manner of performi=ig the actiivities herein. Nod�ing is in#cnded or
shau4d be canstrucd in any �er as ere�fiing or establishing the reiationship af co bct�+reea the partees
hereto or as c€ansti�isrit�g Crrant�e es the a�ent, rePresentative, or etnployee c�f the CaFU�aty fc�r any purpc�se or in any
�rut� whatsoever. Grantee is to be and �ll rtmain an i�itpetu�+ettt cantrac�or with respect t�a �ll s�zzvices and
activi#ies per#`orrr�d under this Agr��nt. Any and aIl personnet vf Grant� ar nther pe�rsc�ns whilc engag�d in the
perforn�aaice c�f any wor� �sr s+erviees required by Grantee under this Ag€ee�t shalt have nt� c4ntractual
rel�tianship with the County, and sbsll not 1u considered employecs of the Co�rty. �4ny �sti �1 clain�s that rn�y or
mi"ght aris� under the Minnesata Ecflnc�mic Securiry Law or the Workers' Comg�nssti�n Act csf #he 5tate of
A�finnes�ta un behalf of said pcxs�►nne1, arising aut af ernployrcient or alle$ed cmpl�ymertt i�ciudit�g vKithout
limiitatinn, elairn� of discriminat�on against Grantee 1�3 O�ICOPS 8;$;CIItS COLI�Z8G�O1C E)t C�lO�Cf:3 3� 123 t10 WS�
the resgQnsibility of the County. �'itantee shall defend, indemnify and hold lxarmless tkte Cqunty, its o#�"iciels,
c�#�cers, a�ents, au�d cmpl�yees &orn any and all such claims irresptc#ive of aay deterrni�tiatic�n of any �rtinent
tribunai, agency, b�sard, �m�tnissit�r, �r caurt. Such personnel ox crtt�cr persc�t� shall neit�er reqt�ire r�or be entiticd
to any ct�mpensatit�n, rights, ar bts��iis of aity kintl whats�ver frem the County, itnc��, without lirnitatitm,
##ennure rights, rr�edicat an;d hospital care, sick leavc, Workers' Ccr tion, Re-�tr�tloyment Campcusatian,
dasability, severance paY, and retiremetit btnefits.
2
�I
8. INDE�MI�fIFICATIt}�+1
Gr�#ce �gre.es to defend, indemnify and T�old barniless, the CouYtty, ita c�fticials, c�ff`ic.ers, �gex�#s a�d e�rlc�yees
from any liability, claixt�s, causes of action, J�B���, �8es, Iusses, costs, Qr exp�s, includiag reaso�ble
attorney's fees, resulting directly ar indirectIy from any act or omissibn af �tee, its c+�ntr�cfors ar subeon#�ctors
or anyone direetly or intiirectiy employed by them, and/or any party that directly or inc3irectly i�en+efi#s fram the
activities specified in this Agreetr�nt, and/or anyone for whose acts andlar omuGSSSi�rus they may be tiable in the
perf�rnianc$ of the activities speci�ied i� tlus Agreemtnt and against all toss by recia�so� c�f the failure of Grantee t�
perform fuily, in any respeet, all obligatians under this Agree�nt.
9. INS[3RANCE
Tn arder to pratect the Ccsr�ty aad thvat listed above under the indemnification provisian, Grantee agFees at atl times
during the tcrm of this A�reement and beyQnd such tcrm when so required, to havc and kccp ar esuse to have and be
th's�
k t in force an�i #o cause all contractors w do likewise the fotl� insurance covcra 'es under eithcr s purc�ased
I +�p 8
i�surance or seIf insurance program:
1. Commercial Generat Liability on an occutre�e basis with Cantractu$1 I.iability Coverage:
Linsiits
Ge�eral Aggregate 52��,�
Prcyducts-Ccsrn�leted Operations Aggregate i,Qt�,(�0
I'trsfltt�t anci Aciv+�rtis�ng injury l,(�0,�
Each C}ccurrenc>e
Combined Bcidily Injury and Property D�m�tge 1,OOO,UQO
2. Automobite Liability Gambined single limit e�ch occur�ence fc�r 1,{�IU,�
bodily injur�+ and groperty damage covering owned, non-awned, aud hired
autom�obiles.
3, Wflricers' Cor�ens�tion and Ernployer's Liabiiity;
a. Workers* Co�er�sa#ion Statutory
If #he cflntrac�sr is'hased ontside the S�te of Minnesata,
cc�verage mus# apply to Mim�esota laws.
b. Err�loytr's �:,iabilit�+. Bodily Injury by:
Accident Ea�h accident 5�,�
Dise�s+e Pqliey Limit SUUs(�!U
Disease Each E�loyee SU0,0tT�
4. Professivnai Liability Per Claim and Aggreg�te 1,t�,'DOU
Th:c insu�nce inus� be ni�iatai�d ca�atinuously for s p�riod crf two years after the #erminati�n of
#his A�reement.
Grantee st�all require that aay independe�tt ccxntractors rendering assessment an�d/ar cle�n-up activiti�s under tt�is
Agre�rr�rt# flu�nist� carki�cates of insuranee to Grantee of the insu�rrance cvu8rages Iisteci abor�e, and pravi�ie updat�d
certificates as coverages e�cpi�e.
A7n umbrelia or exces� policy aver prim�ry liability coverages is an acceptable maethcx3 to provid� the requxred
insur�ee lixnits. Thc ab4ve establis�s minirnum insurance requigett�nts. �t is thhe scrle respnnsibility af Grrantee to.
deterrnine the �eed fc�r and to procure addi#ional insurance which may be �eeci� u► cr�nnectit�n with this Agre��nt.
Capics of polici�s sh�ll be submitted trs the County upon written reques�
Grantoe shall nc>t cornr�nce work until it aand any contrsctors t�ve csbtait►eci the required prc�f €�f ir�surancc which
clearly evidence� requ�d ittsuraace c�rverr�ges.
3
If Grantee. �ils ta furnisi� proof caverages> if ra��sted by the Caunty, the Cau�ty m�ty witb�u.►ld payments a�xl/ar
pu�rsue a�y crt�er �ights or re�dy aliawed �under tl� contract, taw, eqc�ity, andlar statute.
1t3: I�IFi2GEIt AN� M{3I3IFICA'TIOl�
It is unders#oad and agr�ed that the entire Agrceu�nt between tt� parties is cantai�ed herein anct that this
Agree�nt su�rsedes all orat agree�ents and negotiations betwten the garties retstin� tu tlte subject t�tter he�reuf.
All items referred to in this Agrecment are incorporaud or attachecl and are deerned to be part af this Agccet�enE.
Any al#exsteans, variations, modi�ications ur waivers af pravisions af this Agree�nt s#�atl only be valid when tbiey
have been reduced to writing as an ar�ndment to this Agreement signed by the parties he�ta.
i 1. �v�v�sti�r� z,Aws �c�vv��rr
The Laws of the State af Minaeso�a s�all gavern all questions and ir�telprctations ccu�e�aiug t#�e validity and
canstructiott of t�is Agreeme�t and th� legai relations between thc parties and petforct�at'tce und�r i� T4�e
appropriaie venue :and jurisdiction far any litigation hcreunder will be thase courts �atcd within the County of
Hennepin, State c�f Tu�innesota, Litigatioa, hov�ever, in the federal cuurts :invcrlving t�ae parties will be in the
apPrcr}�riate fed�eral ccKU�t within the S#�te of Min�esota. If any pmvision af #�is Agrc�r�nt is held invalid, il]cgal ctr
un�nforceable, the ret�aining provisions will not be affect�.
The Rems�inder t3f This Page Was Inteationslly Left Biank
4
o ����,��p����.
GRANTEE, having signed this agree�nt, and the Hennegin County Bua�d af Comcniasioners havi�t;g dui�+
apprt�ve.�l this agreemen# on the of 2007, arni gursuant to such approvat the prape� �aw�ity
of�"icials having si�nsd this agre�rt�nt, the �rties hereto agree to be baund by ihe �rovisi�ns herein set forth:
Reviewed by th� cc�unry A�torney's COUNTY �F HENNEPiN
C►f#`ice STATE OF MII�INESE3TA
By:
Assistant Couttty Attoraey Chair c�f Its Cou�y Bosrd
Date: Date:
ATTEST:
DeputytElerk of Ct�unty Board
And:
Acting County Admi�istrator
By:
��r�t co��y ��s��, �ut��i� w��
Date:
Recom�uded for Appraval
By:
Director, Departm�nt of �viront�ental Serviccs
Date:
G NTEE
Grantee certifies that the persan w�ao execu#�i this A�nt
is authorized to do so fl�► bel�alf af Grantce es req�urred t�y
applicable �rrticles, bylaws, xescalut'tons ar ardi�ances,*
Name: BRC7QKLYN CEl'�TER ED�1
By:
Uste:
*GRA�'TEE shall st�►mit a�pli+�able tio�umeataticm (articl�, byla.ws, r�alt�tio� or orditt�,auc�) d�t canfirn�s
sign,stt�ry'e d�le p,�ion of authorif.y. fi'�is docu�ttatian shall tae s�ubrnitiai at �te tisue Gra� rehu�ns the A,g to
the County. T�c�nentatitm is �ot required for a sole propriewrship.
xea r-o�n r�o. i�i t��� iaos�
5
Thls Pnge Was Intention»I!y Left Blank
S
6
v,:.
��1
E�ibit A
Brooktyn Center EDA
Proiect Sumtnar�
The project site, which is 8.49 acres in size, is the former location of the Hmong American Shopping
Center, which has now been demolished. Previous assessment work identified contaminated soil and
groundwater that resulted frorn the past operation of dry cleaners and services stations on the property.
More recent assessment has focused on potential dry-cleaning solvent vapor rnigration fram the property
into the adjacent residential neighborhaod. Braoklyn Center EI7A requests additionat Environrnental
Response Fund assistance to continue to assess the potential health risks posed by soil vapor and ground
water migration.
The following costs are based an a budget submitted by Grantee. Modifications must be approved in
writing by the Grantor.
fi,
G:i.;i.:.
Approved Budget for Logan and 57` Redevelapment Site:
Off-Site Soil Vapor and Groundwater Assessment 59,010
Sub-Slab Vapor Sampling 20,805
Indoor Air Sampling 22,460
Water Welt Receptar survey 12,535
Final Report/Remediat Action Plan 15,000
MPCA VIC Fees 15.00Q
Total: 144,8I0
Reauired Documentation to be Suhmitted t� Henneoin Count�
Consultant/Contractar/MPCA Invoices
Final Report/ Remedial Action Plan
MPCA Appraval letters
Annual Praject Progress/Summary Report(s).
E-1
BEEN Million Iii; imilgii 111 illp!
COUNCIL ITEM MEMORANDUM
T0: Curt Boganey, City Manager
FROM: Tom Bublitz, Community Development Specialist
DATE: July 19, 2007
SUBJECT: Resolution Approving and Authorizing Execution of an Amendment to the
Development Agreement Between the Economic Development Authority and
Brooklyn Center Hotel Partners, LLC
Recommendation:
Recommend EDA approves Resolution Approving and Authorizing Execution of an
Amendment to Development Agreement. This resolution is a technical amendment to the
development agreement between the Economic Development Authority (EDA) and Brooklyn
Center Hotel Partners, LLC. The original Development Agreement was approved on October
23, 2006. A copy of the amendment and Exhibit L are included with this memorandum.
Background:
This resolution is a technical amendment to the October 23'� Development Agreement and
addresses the fallowing:
Extends the closing date on the purchase of the Phase I hotel property from Apri130,
2007 to August l, 2007.
Revises the completion date of the Phase I hotel from October 30, 2008 to December 31,
2008.
Approves Exhibit L(attached) titled "Parking, Access and Pedestrian Link Easement
A eement". Exhibit L addresses roperty issues which include the three property
P
owners affected by the hotel development, the EDA, the City's Housing and
Redevelopment Authority (HRA) and Brooklyn Hotel Parkners. LLC. Ownership of the
properties affected by the easement agreement is summarized as follows:
1. HRA is owner of the Earle Bmwn Herita e Center.
S
2. EDA is owner of the property where Phase 2 of the hotel project will be built,
south of the Phase 1 site.
3. Brooklyn Hotel Partners, LLC, the owner (projected as of August 1, 2007) of the
Phase 1 hotel site.
The items addressed in Exhibit L, parking, access and pedestrian link easement agreement are
summarized as follows:
To meet the parking requirements for the Phase 1 hotel site, an easement in favor of the
Phase 1 Hotel site, for 45 parking spaces at the Earle Brown Heritage Center, is
necessary. The 45 spaces are not specifically identified on the Heritage Center site but the
HRA retains the right to designate the 45 spaces. The parking for the Phase 2 hotel site
stands on its own.
Two access agreements where access drives are divided by property lines are necessary.
One at the access drive between the Phase 1 hotel property and Heritage Center
pmperty. An easement in favor of the HRA property for access along the easterly 13 feet
of the Phase 1 Hotel site (north part only)
The second between the Phase 1 hotel property and Phase 2 hotel property in favor of
the Phase 2 property (EDA owned portion) for access over the south 25 feet of the Phase
1 Hotel property (westerly portion only).
A cross easement between the Phase 1 hotel site and HRA properties for the pedestrian
link. The agreement basically provides that each property owner maintain and repair the
easement areas on their own property, except that the owner of the Phase 1 property must
reimburse the owner of the HRA property for a proportionate shaze (based on the number
of parking spaces) of maintenance and repair expenses for the parking lot. The easement
agreement also provides that the owner of the Phase l property is responsible for the
original construction of the pedestrian link (which is consistent with the Development
Agreement).
A copy of the Site Layout Plan for the Phase 1 hotel site (Embassy Suites) is attached for
reference.
Budget Issues: There are no budget issues.
Commissioner introduced the following resolution
and moved its adoption:
EDA RESOLUTION NO.
RE50LUTION APPROVING AND AUTHORIZING EXECUTION OF AN
AMENDMENT TO THE DEVELOPMENT AGREEMENT BETWEEN THE
ECONOMIC DEVELOPMENT AUTHORITY AND BROOKLYN CENTER
HOTEL PARTNERS, LLC
WHEREAS, the Economic Development Authority of Brooklyn Center,
Minnesota (the "EDA") has heretofore entered into a Development Agreement (the
"Development Agreement") between the EDA, the City of Brooklyn Center (the "City") and
Brooklyn Hotel Partners, LLC, a Minnesota limited liability company (the "Developer") in
connection with the Developer's proposed construction of a hotel development in the City (the
"Project"); and
WHEREAS, the EDA has caused to be prepared an Amendment to Development
Agreement (the "Amendment") between the EDA and the Developer providing for, among other
things, a later extended closing date for the purchase and construction of phase one of the
development, and making certain changes to an easement agreement attached as an exhibit to the
Development Agreement (the "Easement Agreement").
NOW, THEREFORE, BE IT RESOLVED by the Economic Development
Authority in and for the City of Brooklyn Center as follows:
Section 1. The Boazd of Commissioners hereby approves the Amendment to
Deveiopment Agreement, including the attached Parking, Access and Pedestrian Link Easement
Agreement attached thereto, in substantially the forms submitted, and the Executive Director is
hereby authorized and directed to execute the Amendment to Development Agreement and
Easement Agreement on behalf of the EDA.
Date President
The motion for adoption of the foregoing resolution was duly seconded by commissioner
and upon vote being taken thereon, the following voted in favor thereof:
and the following voted against same:
whereupon said resolution was declared duly passed and adopted.
STATE OF MINNESOTA
C Y OF HENNEPIN
OUNT
ECONOMIC DEVELOPMENT AUTHORITY
OF BROOKLYN CENTER
I, the undersigned, being the duly qualified and acting Secretary of the Economic
Development Authority of Brooklyn Center, Minnesota, DO HEREBY CERTIFY that I have
carefully cornpared the attached and foregoing extra.ct of minutes with the original minutes of a
meeting of the Board of Commissioners of the Economic Development Authority of Brooklyn
Center held on the date therein indicated, which are on file and of record in my office, and the
same is a full, tnte and complete transcript therefrom insofar as the same relates to a Resotution
Approving and Authorizing the Execution of an Amendment to Development Agreement.
WITNESS my hand as such Secretary of the Economic Development Authority of
Brooklyn Center this day of 2007.
I
Secretary
I
I
soa9�s2vi
I) I�
e o
y �:a o
ti- r�'•.
j�s
}i��1�
y� .s �i� a'►
��i��
,r rt 'i �r
s J
s lr�l�j� *M�=i� �:►�'1�,��:����i'IQ� �i
._s
j i R's`' f I
�1' ��t
�r .IJ� .G a�
�>�6�nF.
1' �1� �9 ►�:'l��
1 a�� �i
'O r��
l a �i :'1
a'1
'''`�=�s���aiu::�: :e: ;6 e �%!=�i!i��
i;
J( ►s�r��i�i
j
I ll ►.r�i►.i. i i
1 l ��j��'►�i l w L �I
I �r� ��I�� '��Iti� %�►s�►�r� .i
a
n�. i o �y
��•'L�I f�i 00 o p a
•1��� ��I 1� Q 1
iv e �i o o
;��a,.
���o ���ti o 00o_ e �L' 14
�1� �I
1
��i'oao t 7�
r
1 F¢
I j;� �e o o e,��� e %i
:l'%r
I j 1 a�� �t, ,o
r
l �r o 0 0 7►` 'o
I �r,
_i�._� ea
�j
0 1 a t
r-�:'� I ��1 er 7�
v�.' •I► i 1 �Ii
�rr o o il
o o
a w�
c:c:. ve o e e QO
�ri
�I,�� V oo �►V
u o" r iGl o
e
1� j'
�1� !I#i�����
i
o r' i•:;
o a i�i��,:r::�,; ����t�l
t. ,,y
o o ��!!'qie+tlh'11:.i��!iI
�j
0 0 0 I
o r�
FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT
BY AND BETWEEN
ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER
AND
BROOKLYN HOTEL PARTNERS, LLC
This document drafted by:
BRIGGS AND MORGAN (DGG)
Professional Association
2200 IDS Center
80 South Eighth Street
Minneapolis, MN 55402-2157
2044100v3
FIItST AMENDMENT TO DEVELOPMENT AGREEMENT
THIS FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (the "First
Amendment"), made as of the 23rd day of July, 2007, by and between the Economic
Development Authority of Brooklyn Center, Minnesota (the "Authority"), a body corporate and
politic organized and existing under the laws of the State of Minnesota, and Brooklyn Hotel
Partners, LLC, a Minnesota limited. liability company (the "Develaper").
WITNESSETH:
VVHEREAS, the Authority and the Developer have previously entered into a
Development Agreement dated as of October 23, 2006 (the "Development Agreement"),
pursuant to which the Authority agreed to, among other things, abate certain taxes to the
Developer to assist with certain public redevelopment costs of a project undertaken by the
Developer in the City; and
WHEREAS, the Developer and Authority desire to amend the Development Agreement
to provide for an amended and extended closing date for phase one of the development, and to
revise the terms of the easement agreement attached to the Development Agreement as Exhibit
L;
NOW, TI�REFORE, in consideration of the premises and the mutual obligations of the
parties hereto, each of them does hereby covenant and agree with the other that the Development
Agreement is hereby amended as follows:
1. Definitions. The following capitalized terms set forth in Section 1.1 of the
Development Agreement are hereby amended as follows:
"Closin� Date" means the dates on which the Phase I Property and Phase
II Property are conveyed by the Authority to the Developer, which dates shall be
as the parties mutually agree, but which date shall in no event be later than August
1, 2007 with respect to the Phase I Property and not later than Apri130, 2012 for
the Phase II Development Property;
"Comnletion Date" means December 31, 2008, with respect to Phase I of
the Minimum Improvements, and October 31, 2013 with respect to Phase II of the
Minimum Improvements;
First Amendment to Develooment Aereement means the First Amendment
to Development Agreement by and between the Authority and the Developer
dated July 23, 2007;"
2. The Apri130, 2007 and October 30, 2008 dates in Section 4.4 shall be revised to
be September 30, 2007 and December 31, 2008.
3. Exhibit L to the Development Agreement is hereby deleted and in its place is
substituted Exhibit L attached hereto.
Zoaatooys 2
4. This First Amendment may be executed in any number of counterparts, each of
which shall constitute one and the same instrument.
5. This First Amendment will be governed and construed in accordance with the
laws of the State.
6. Except as herein amended, all other terms and provisions of the Development
Agreement shall remain in full force and effect.
[end of page]
zoaaioor3 3
1N WITNESS WHEREOF, the Authority has caused this First �lmendment to
Development Agreement to be duly executed in its name and on its behalf and the Developer has
caused this Agreement to be duly executed in its name and on its behalf, on or as of the date first
above written.
BROOKLYN CENTER ECONOMIC
DEVELOPMENT AUTHORITY
By
Its
By
Its
This is a signature page to the First Amendment to Development Agreement dated July 23, 2007,
by and between the Economic Development Authority of Brooklyn Center and Braoklyn Hotel
Partners, LLC.
Zoaa� 00.�3 4
BROOKLYN HOTEL PARTNERS, LLC
By
Its
This is a signature page to the First Amendment to Development Agreement dated July 23, 2007,
by and between the Brooklyn Center Economic Development Authority and Brooklyn Hotel
Partners, LLC.
aoaaioo�s 5
EXHIBIT L
PARKING, ACCESS AND PEDESTRIAN LINK EASEMENT AGItEEMENT
This Agreement is entered into by ECONOMIC DEVELOPMENf AUTHORITY OF
BROOKLYN CENTER, a Minnesota public body corporate and politic ("EDA"), TI�
HOUSING AND REDEVELOPMENT AUTHORTTY IN AND FOR THE CTTY OF
BROOKLYN CENTER, a Minnesota public body corporate and politic ("HR.A"), and
BROOKLYN HOTEL PARTNERS, LLC, a Minnesota limited liability company ("Developer"),
as of 200_ (the "Execution Date").
RECITALS:
A. HRA is the owner of certain land located in Hennevin Countv. Minnesota which is
imtiroved and onerated bv the EDA as the Earle Brown Herit�ge Center. a conference and event
center.
B. Develoner is the owner of certain unirnoroved land located in Hennevin Countv,
Minnesota. located im�nediatelu adiacent to the Eazle Brown Herita.ae Center which it acauired
this date from the EDA and which it intends to develo4 and onerate as a hotel facilitv.
C. EDA is the owner of certain unimoroved land located in Henneoin Countv. Minnesota.
located immediatelv southerlv of and adiacent to the hotel facilitu nronerlv owned bv Develo�per;
which nronertv is also to be develo�ed and onerated bv Develoner as a hotel facilitv.
D. HRA, EDA and Develoner desire to create certain oazkin� ri�hts on the HRA �ropertv in
favor of the Develoner nronertv and to nrovide for the mutual use and eniovment of certain
shazed access drivewavs and an enclosed nedestrian link to be constructed on the Develoner
Tract and the HR.A Tract bv Develoner.
E. In order to encourage the common use and ooeration of their resoective nronerties, HRA.
EDA and Develoner desire to enter into certain covenants and agreements as a tiart of a�eneral
nlan. and to erant to each other certain easements. in. to. over. and across their resnective
nronerties as herein set forth.
AGREEMENT:
HRA, EDA and Developer agree as follows:
1. Definitions
1.1. Center. The "Center" shall mean the Earle Brown Herita.ge Center and the two
adjacent properties intended to be impmved with hotel facilities, legally described
as:
Tracts D and F, Registered Land Survey No. 1594, Hennepin
County, Minnesota, and
zoaaioo�3 L-1
Lots 1 and 2, Block 1, Brooklyn Farm Second Addition, according
to the plat thereof on file and of record in the o�fice of the
Hennepin Cou�nty Registrar of Titles, Minnesota.
1.2. Conference Facilitv. The "Conference Facility" shall mean the buildings and
improvements comprising the Earle Brown Heritage Center located on the HRA
Tract.
1.3. Develoner Tract. The "Developer Tract" shall mean the property which is legally
described as:
Lot 1, Block 1, Brooklyn Fazm Second AddiNon, according to the
plat thereof on file and of record in the office of the Hennepin
County Registrar of Titles, Minnesota.
The boundaries of the Developer Tract are outlined and labeled "Developer Tract"
on the Site Plan. On the Execution Date the Owner of the Developer Tract is
Developer.
1.4. Develonment Aereement. The "Development Agreement" sha11 meaa that certain
Development Agreement dated October 23, 2006, by and between EDA and
Developer relating to the acquisition and development of the Hotel Facility, as the
same may be amended, supplemented and extended from time to time.
1.5. Drivewav/Parkine Area. The "Driveway/Parking Area" shall mean the Parking
Lot Area, the Shared Driveway Area Developer/HRA and the Shared Driveway
Area Developer/EDA.
1.6. EDA Tract. The "EDA Tract" shall mean the property which is legally described
as:
Lot 2, Block 1, Brooklyn Farm Second Addition, according to the
plat thereof on file and of record in the office of the Hennepin
County Registrar of Titles, Minnesota.
The boundaries of the EDA Tract are outlined and labeled "EDA Tract" on the
Site Plan. On the Execution Date the Owner of the BDA Tract is EDA.
1.7. Facilitv or Facilities. A"Facility" or "Facilities" sha11 mean the Conference
Facility and/or the Hotel Facility.
1.8. Hotel Facilitv. The "Hotel Facility" shall mean the buildings and impmvements
of the hotels to be constructed and located by Developer on the Developer Tract
and the EDA Tract in accordance with and pursuant to the teims of the
ement a11
Development Agreement, provided that for the purposes of tlus Agre
provisions hereof relating to the Pedestrian Link which refer to the Facility,
Facilities or Hotel Facility shall only mean and refer to the hotel facility to be
constructed on the Developer Tract.
aoaaiooy3 L-2
1.9. HRA Tract. The "HRA Tract" shall mean the property which is legally described
as:
Tracts D and F, Registered Land Survey No. 1594, Hennepin
County, Minnesota.
The boundarie"s of the HRA Tract are outlined and labeled "HRA
Tract" on the Site Plan. On the Execution Date the Owner of the
HR� Tract is HRA.
1.10. Occunant. "Occupant" shall mean any Person from time to time entitled to the
use and occupancy of any portion of the land or a building in the Center under an
ownership right or any lease, sublease, license, concession, or other similar
agreement.
1.11. Owner. "Owner" shall mean each signatory hereto and, after compliance with the
notice requirements set forth below, their respective successors and assigns who
become owners of any portion of the Center. An Owner transferring all or any
portion of its interest in the Center shall give notice to all other Owners of such
transfer and sha11 include in such notice at least the following information: (a) the
name and address of the transferee, and (b) a copy of the legal description of the
portion of the Center transferred. No such transfer shall affect the existence,
priority, validity or enforceability of any lien created under this Agreement or
which is recorded against the transferred portion of the Center prior to receipt of
the notice. Until such notice requirement is complied, with, the transferring
Owner shall (for the purpose of this Agreement only) be the transferee's agent.
Each Owner shall be liable for the performance of all covenants, obligations and
ter
undertalangs set forth m this Agreement with respect to the portion of the C�n
owned by it whi�ch accrue during the period of such ownership, and such liability
shall continue with respect to any portion transferred until the notice requirement
set forth in this Section is complied with, at which time the transferring Owner's
liability for future obligations shall terminate with respect to the portion
transferred. The transferee Owner sha11 automatically become liable for all
I� obligations, performance requirements and amounts which arise subsequent to
compliance with the notice requirement.
1.12. Parkin� Lot Area. The "Parking L.at Area." shall mean the portions of the HRA
Tract designated "Pazking Lot Area" on the Site Plan.
1.13. Pedestrian Link. The "Pedestrian Link" shall mean the enclosed. one-story,
ground level, climate controlled structure to be installed and constructed by
Developer on the HRA Tract and the Developer Tract in accordance with and
pursuant to the terms of the Development Agreement providing a pedestrian
access corridor between the Conference Facility and the Hotel Facility (such
Pedestrian Link being referred to as the "Connection" in the Development
Agreement).
i
zoaaiows L-3
S 1.14: Pedestrian Link Corridor Area. The "Pedestrian Link Corridor Area" shall mean
the portions of the HRA Tract and the Developer Tract located within the
Pedestrian Link and designated "Pedestrian Link Corridor Area" on the Site Plan
and legally described on Exhibit B.
1.15. Permittee. "Permittee" shall mean all Occupants and the officers, directors,
employees, agents, contractors, customers, vendors, suppliers, visitors, invitees,
licensees, subtenants, and concessionaires of Occupants insofaz as their activities
relate to the intended use of the Center. Among others, Persons engaging in any
of the following activities will not be considered to be Permittees:
1.15.1 Exhibiting any placard, signs or notice.
1.15.2 Distributing any circular, handbill, placard, or booklet.
1.15.3 Soliciting memberships or contributions.
1.15.4 Pazading, picketing, or demonstrating.
1.15.5 Failing to follow regulations relating to the use of the Center.
1.16. Person. "Person" shall mean any individual, partnership, firm, association,
corporation, trust, or any other form of business or govemment entity.
1.17. Shared Drivewav Area Develover/EDA. The "Shared Driveway Area
Developer/EDA" shall mean the portion of the Developer Tract designated
"Shared Driveway Area Developer/EDA" on the Site Plan and legally deseribed
on Exhibit C.
1.18. Shared Drivewav Area Develover/HRA. The "Shared Driveway Area
Developer/HRA" sha11 mean the portion of the Developer Tract designated
"Shared Driveway Area Developer/HRA" on the Site Plan and legally described.
on Exhibit D.
1.19. Site Plan. The "Site Plan" shall mean the site plan wluch is attached to this
Agreement as Exhibit A.
1.20. Tract. "Tract" shall mean any portion of the Center owned by an Owner.
2. Term
This Agreement shall be effective as of the Execution Date and sha11 continue in full
force and effect until 11:59 p.m. on the date which is 30 years after the Execution Date;
provided, howeyer, that this Agreement, and a11 restrictions and covenants contained in
this Agreement, shall be automarically extended on a year to year basis following such
date which is 30 years after the Execution Date unless any Owner notifies a11 other
Owners, by notice given at least 4 months prior to the end of any year, that it exercises its
option to prevent this t�greement from being so extended; and provided further that,
aoaaiooVs L-4
whether or not this Agreement is so extended, the easements referred to in Section 3 shall
continue in force and effect in perpetuity as provided in Section 3, except as otherwise
specifically provided in subsections 3.1, 3.4 and 4.6. Upon expiration of this Agreement,
a11 rights and privileges derived from and all duties and obligations created and imposed
by the provisions of this Agreement, except as relates to the easements mentioned above,
shall terminate and have no further force or effect; provided, however, that the expiration
of this Agreement sha11 not Innit or affect any remedy at law or in equity that an Owner
may have against any other Owner with respect to any liability or obligation arising or to
be performed under ttus Agreement prior to the date of such expiration.
3. Easements
3.1. Parking.. The Owner of the HRA Tract, for itself and its successors and assigns,
hereby grants and conveys to the Owner of the Developex Tract for its use and for
the use af its Pernaittees, in common with others entitled to use the same, a
perpetual, non-exclusive easement for the pazking of 45 vehicles and the passage
I of vehicles and pedestrians over and across the Parking Lot Aiea of the HRA
Tract. Such easement rights shalt be subject to the following reservations and
agreements as well as other provisions contained in this Agreement:
3.l .1 The Owner of the HR.A Tract may at any time make changes to, close off,
and/or construct buildings and improvements on, all or any portion of the
Parking Lot Area without the approval of any other Ovmer, so long as
S such change, closing or construction does not unreasonably interfere with
any of the other easements granted herein, and further provided that all of
the following conditions are met:
3.1.1.1 No governmental rule, ordinance or regulation shall be violated as
a result of such action, and such action sha11 not result in the
Owner of the Developer Tract being in violation of any
governmental rule, ordinance or regulation.
3.1.1.2 The number of remaining parking spaces on the HRA Tract, or
otherwise available to the Owner of the HRA Tract, shall be at
least equal to the number of parking spaces required for the HRt�
ildin ordinances lus 45
Tract b licable zoning and bu g p
Y aPP
additional pazking spaces.
wn •ve
3.1.1.3 No change shall be made in the access point to Earl Bro Dn
located at the Northwest comer of the Parking Lot Area.
3:1.1.4 At least 30 days prior to making any such substantial change,
modification or alteration, the Owner of the HRA Tract shall
deliver to the Owner of the Developer Tract copies of the plans
therefor.
3.1.2 The Owner of the HRA Tract reserves the right to close off any portion of
the Parking Lot Area for such reasonable period of time as may be
Zoaaioo�3 L-5
necessary to make needed repairs or as may be legally necessary, in the
opinion of such Owner's counsel, to prevent the acquisition of prescriptive
rights by anyone; provided however, that prior to closing off any portion
of the Parking Lot Area materially and adversely affecting pazking on the
Developer Tract, the Owner of the HRA Tract shall give written notice to
the Owner of the Developer Tract of its intentian to do so, and shall
attempt to coord.inate such closing with the Owner of the Developer Tract
so that no unreasonable interference sha11 occur.
3.1.3 The Owner of the HRA Tract reserves the right at any time and from time
to time to exclude and restra.in any Person who is not a Permittee from
I using the Parking Lot Area.
3.1.4 No Pemuttee sha11 be charged for the right to use the Parking Lot Area,
except pursuant to a lease or other agreement entered into between the
Owner of the HRA Tract and a Permittee.
3.1.5 Parking in the Parking Lot Area by Permittees of the Owner of the
Develo er Tract sha11 be lunited to automobiles, motorcycles and pickup
P
trucks; no semitrailers, recreallonal vehicles, boats, trailers or large trucks
will be permitted to park in the Parking Lot Area; there sha11 be no
ovemight pazl�ng, except that overnight parldng shall be perrnitted on the
HRA Tract b Permittees of the Owner of the HRA Tract.
y
3.1.6 The Owner of the Developer Tract shall use good faith, commercially
reasonable efforts to require that all employees of its Occupants park on
the Developer Tract and not in the Parking Lot Area.
3.1.7 The Owner af the Developer Tract sha11 pay its proportionate share of the
costs of repairs, maintenance and replacement of the Parking Lot Area as
provided in Section 6.5.
3.1.8 The Owner of the HRA Tract reserves the right to limit and designate,
from tirne to time, which of the 65 parking spaces in the Parking Lot Area
aze available for parking by Pennittees of the Owner of the Developer
Tract, including the installation of signage deemed necessary or desirable
by the Owner of the HRA Tract.
3.2. Drivewav Easement Develover/HRA. The Owner of the Developer Tract, for
itself and its successors and assigns, hereby grants and conveys to the Owner of
the �iRA Tract for its use. and the use of its Permittees, in common with others
entitled to use the same, a perpetual, non-exclusive easement for the passage of
vehicles and pedestrians over and across the Shazed Driveway Area
Developer/HRA. Such easement rights shall be subject to the following
reservations and agreements as wells as other provisions contained in this
Ageement.
zoaaioo�3 L-6
3.2.1 The Owner of the Developer Tract may make minor changes and
improvements to the Shared Driveway Area Develaper/HRA without the
approval of the Owner of the HRA Tra.ct, so long as such change or
improvement does not unreasonably interfere with any of the easements
granted in Section 3.2, and further provided that all of the following
conditions are met:
3.2.1.1 The accessibility of the Shared Driveway Area Developer/HR��
is not unreasonably restricted or hindered.
3.2.1.2 No govemmental rule, ordinance or regulation shall be violated as
a result of such action, and such action shali not result in the
Owner of the HRA Tract being in violation of any govemmental
rule, ordinance or regulation.
3.2.1.3 At least 30 days prior to making any change, modification or
alteration to the Shared Driveway Area Developer/HRA, the
Owner of the Developer Tract sha11 deliver to the Owner of the
HRA Tract capies of the plans therefor.
3.2.2 The Owner of the Developer Tract reserves the right to close off any
portion of the Shared Driveway Area Developer/HRA for such
reasonable period of time as may be necessary to make needed repairs or
as may be legally necessary, in the opinion of such Owner's counsel, to
prevent the acquisition of prescriptive rights by anyone; provided
however, that prior to closing off any portion of the Shared Driveway
Area Developer/fiRA, the Owner of the Developer Tract shall give
written notice to the Owner of the HRA Tract of its intention to do so, and
shall attempt to coordinate such closing with thc Owner of the HRA Tract
so that no unreasonable interference shall occur.
3.3. Drivewav Easement Develoner/EDA. The Owner of the Developer Tract, for
itself and its successors and assigns, hereby grants and conveys to the Owner of
the EDA Tract for its use and the use of its Permittees, in common with others
entitled to use the same, a perpetual, non-elcclusive easement for the passage of
vehicles and pedestrians over and across the Shared Driveway Area
Developer/EDA. Such easement rights shall be subject to the following
reservations and agreements as well as other provisions contained in this
Agreement.
3.3.1 The Owner of the Devetoper Tract may make minor changes and
improvements to the Shared Driveway Area Developer/EDA without the
approval of the Owner of the EDA Tract, so long as such change or
improvement does not unreasonably interfere with any of the easements
granted in Section 3.3, and further provided tha.t all of the following
conditions are met:
zoaa�oo�3 L-7
33.1.1 The accessibility of the Shared Driveway Area Developer/EDA
is not unreasonably restricted or hindered.
3.3.1.2 No governmental rule, ordinance or regulation shall be violated as
a result of such action, and such action shall not result in the
Owner of the EDA Tract being in violation of any governmental
rule, ordinance or regulation.
3.3.1.3 At least 30 days prior to making any change, modification or
alteration to the Shared Driveway Area Developer/EDA, the
Owner of the Developer Tract shall deliver to the Owner of the
EDA Tract copies of the plans therefor.
3.3.2 The Owner of the Developer Tract reserves the right to close off any
portion of the Shared Driveway Area Developer/EDA for such
reasonable period of time as may be necessary to make needed repairs or
as may be legally necessary, in the opinion of such Owner's counsel, to
prevent the acquisition of prescriptive rights by anyone; pmvided
however, that prior to closing off any portion of the Shared Driveway
Area Developer/EDA, the Owner of the Developer Tract shall give
written notice to the Owner of the EDA Tract of its intention to do so, and
shall attempt to coordinate such closing with the Owner of the EDA Tract
so that no unreasonable interference shall occur.
3.4. Pedestrian Link. Each of the Owners of the HRA Tract and the Developer Tract,
for themselves and their successors and assigns, hereby grants and conveys to the
other such Owner for its use and the use of its Permittees, in common with others
entitled to use the same, a perpetual, non-exclusive easement for the passage of
pedestrians over and aeross the Pedestrian Link Corridor Area of the grantor
Owner's Tract. Such easement rights shall be subject to the following
reservations and agreements as well as other provisions contained in this
Agreement:
3.4.1 Once constructed, no Owner shall may any changes, modifications or
alterations to the Pedestrian Link except as provided in subsection 4.2.
3.4.2 Each Owner of the Pedestrian Link Corridor Area reserves the right to
close off its portion of the Pedestrian Link Corridor Area for such
reasonable period of time as may be necessary to make needed repairs or
as may be legally necessary, in the opinion of such Owner's counsel, to
prevent the acquisition of prescriptive rights by anyone; provided
however, that prior to closing off any portion of the Pedestrian Link
Comdor Area; such Own+er shall give written notice to the other Owner
thereof of its intention to do so, and shall attempt to coordinate such
closing with such other Owner so that no unreasonable interference shall
occur.
Zoaaioo�s U$
3.4.3 Each Owner of the Pedestrian Link Corridor Area reserves the right at any
time and from time to time to exclude and restrain any Person who is not a
Permittee from using the Pedestrian Link Corridor Area on its Tract.
3.4.4 No Permittee shall be chazged for the right to use the Pedestrian Link
Corridor Area.
3.4.5 The Pedestrian Link shall be used only as a pedestrian walkway.
3.5. Tem�orazv Access for Construction. HRA, for itself, its successors and assigns,
hereby grants and conveys to Developer, a temporary, non-exclusive access
easement over and across such portions of the HRA Tract as is reasonably
necessary for Developer to construct the Pedestrian Link in accordance with and
pursuant to the terms of the Development Agreement. Such temporary easement
shall expire 1 year after the Execution Date.
3.6. General Access for Maintenance and Repairs. Each Owner, for itself and its
successors and assigns, hereby grants and conveys to each other Owner having ari
easement over the grantor Owner's Tract a perpetual, non-exclusive easement
over the granting Owner's Tract for the purpose of access to and repairing and/or
maintaining any of the easement improvements which are located on the granring
Owner's Tract but which, pursuant to the pmvisions of this Agreement, may be
repaired and/or maintained by the grantee Owner. Nothing contained in this
subsection shall prevent any granting Owner from at any time making changes to,
closing off, and/or constructing buildings and improvements on any portion of its
Tract not covered by the easements described in subsections 3.2, 3.3 and 3.4 so
long as {a) the other Owners continuously have reasonable use of the easements
described herein which are located on the granting Owner's Tract, and (b) such
changes, closing and/or construction do not violate any other provisions of this
Agreement.
3.7. Access to Certain Buildin�s. Each Owner, for itself and its successors and
assigns, hereby grants and conveys to each other Owner a perpetual, non-
exclusive easement over any portion of the granting Owner's Tract which is
located within 10 feet of a building on the other Owner's Tract, if any, for the
purpose of access to and repairuig and/or maintaining the exterior of such
building (including, without limitation, the Pedestrian Link); however, the
existence of tlus easement shall not prohibit or restrict the granting Owner from
constructing buildings, structures or other improvements wit�rin such 10 foot area,
in which case the grantee Owner's easement shall not apply to the extent such 10
foot area is occupied by a building, above-grade structure or other improvexnent.
3.8. Restriction. No Owner shall grant any utility easement for the benefit of any
property not within the Center; provided however, that the foregoing sha11 not
prohibit the granting or dedicating of utility easements by an Owner on its Tract
to governmental or quasi-govemmental authorities or to public utilities; and
provided further, that any Owner may grant a private utility easement to any
zoaa� 00�3 L-9
Person so long as (a) the area of such easement is confined to the granting
Owner's Tract and (b) such easement does not include any connection to any
common utility lines.
4. Pedestri�n Link
4.1. Desi�nn. The Pedestrian Link has been designed and is to be constructed in
accordance with and pursuant to the plans and specifications approved by EDA
under the Development Agreement.
4.2. Modifications. No change, modification or alteration in the Pedestrian Link or the
location of the Pedestrian Link Corridor Area may be made by any Owner thereof
without the prior approval of the other Owner thereof, provided that each such
Owner may make minor non-structural changes to the Pedestrian Link on its Tract
which do not affect the exterior physical appearance of the Pedestrian Link
without the consent of such other Owner, provided that all of the following
conditions are met:
4.2.1 The accessibility of the Pedestrian Link Corridor Area for pedestrian
access is not unreasonably restricted or hindered.
4.2.2 No govemmental rule, ordinance or regulation shall be violated as a result
of such action, and such action shall not result in any other Owner being in
S violation of any governmental rule, ordinance or regulation.
4.2.3 No change shall be made in the access points between the Pedestnan Link
and the Conference Facility or the Pedestrian Link and the Hotel Facility.
4.2.4 At least 30 days prior to making any such change, modification or
altera.tion, the Owner desiring to do such work shall deliver to such other
Owner copies of the plans therefor.
Notwithstanding the foregoing, the Owner of the HRA Tract, may, without the
prior written consent of the other Owner, make. changes, modifications or
alterations to the Pedestrian Link on its Tract provided an enclosed pedestrian
access shall be maintained between the Conference Center and the Hotel Faciiity.
Each such Owner sha11 have the right, subject to a11 applicable laws and the
easements and agreements described in this Agreement, to design and conshuct or
expand existing structures on its Tract (other than the Pedestrian Link); provided,
however, that any stnicture so constructed or expanded shall, at a minimum, allow
for the repair, maintenance and operation of the Pedestrian Link as contemplated
hereby. In the event that an Owner constructs or expands such a structure on its
Tract which necessitates an alteratian in a previously constructed portion of the
Pedestrian Link, any Pedestrian Link alteration shall be solely the expense of the
Owner doing the construction or expansion. .Any modifications, alterations or
changes to the completed Pedestrian Link and connections to the Facilities sha11
be made in accordance with and subject to all applicable federal, state and local
laws, codes and ordinances.
Zoaa�oo�s L-10
4.3. Certain Onerations. The Owner of the HRA Tract shall be responsible for locking
and unlocking the door iocated in the Pedestrian Link at the common boundary
between the HRA Tract and the Developer Tract. Such door shall be locked at
such times as HRA deems appmpriate in its sole discretion. The Pedestrian Link
shall have passage doors into the Conference Facility and the Hotel Facility. Said
doors sha11 remain closed (other than to allow passage of pedestrians, or in the
event of emergencies) to avoid interference with efficient and proper operation of•
the respective heating, ventilating and air conditioning systems located within
and/or serving the Pedestrian Link from the HRA Tract and the Develaper Tract.
Each Owner shall be responsible for security in the portion of the Pedestrian Link
located on its Tract. The use of the Pedestrian Link shall be subject to such
reasonable rules, regulations and restrictions for the equitable use thereof by the
Owners thereof and their Permittees as the Owners thereof may, in their
reasonable discretion, detezmine, and such rules, regulations and restrictions shall
be enforced in a nondiscriminatory manner.
4.4. Utilities. Any and a11 utilities and services, including electricity, heating,
ventilation and air conditioning, and the equipment necessary for providing the
same to the Pedestrian Link shall be installed and provided so that the supply of
such utilities and services for the Pedestrian Link shall originate from the Tract on
which the Pedestrian Link is located. In other words, each Owner shall provide
such utilities and services from its own Tract to the portion of the Pedestrian Link
located on its Tract. The following utilities and systems will serve the Pedestrian
Link: electricity; heating, ventilating and air conditioning and security systems.
Each Owner shall operate, maintain and repair a11 utilities, services and systems
serving the Pedestrian Link that are located within its Tract, as well as all
equipment used to monitor such utilities, services and systems, and the costs of
such operation, maintenance and repair shall be paid by such Owner. Each
Owner shall pay for all utilities serving the Pedestrian Link on its Tract.
4.5. Ownershin. Once the initial construction of the Pedestrian Link has been
completed, title to the Pedestrian Link shall vest in the Owner, its successors and
assigtts, of the Tra.ct on which the Pedestrian Link is located. In other words, each
Owner sl�all own and have title to all of the improvements constituting the
Pedestrian Link on its Tract, subject to the terms and conditions af this Agreement
and subject to the easements created herein.
4.6. Casualtv. In the event the Pedestrian Link or any part thereof is destroyed or
partially destroyed by fire or any other casualty or occurrence, the Pedestrian Link
shalTbe repaired and restored by the Owner thereof as soon as possible to the
extent that upon the completion of the repair or restoration work, the Pedestrian
Link, as so restored, sha11 be in substantially the same condition as immediately
prior to the damage or destruction. Notwithstanding the foregoing sentence, in
the event that either of the Facilities are destroyed or partially destroyed by fire or
other casualty or occurrence and the Owner thereof does not rebuild or restore
such Facility as provided in subsection 7.2 (c) (the "non-rebuilding Owner"), the
Pedestrian Link need not be restored or repaired and the same shall be promptly
Zoaatoo�,3 L-11
demolished and removed and the ground area of the Pedestrian Link shall be
restored to a clean, sightly and landscaped condition by and at the expense of the
non-rebuilding Owner. In such event the non-rebuilding Owner shall also
perform the same work (including removal of the Pedestrian Link and ground area.
restoration) on the Tract of the other Owner and restore the other Owner's Facility
to a complete azchitectural unit at the non-rebuilding Owner's sole cost and
expense. If insurance proceeds are insufficient to cover the expense of such
airing and restoring as required herein, the non-rebuilding Owner shall,
nonetheless, be responsible for the repair and restoration and costs thereof. The
Pedestrian Link Corridor Area easement sha11 terminate only in the event of the
demolition or substantial destruction of the Conference Facility or the Hotel
Facility, provided, however, that if an Owner intends to replace its Facility and
the same is rebuilt within two years of any such demolition or destruction, the
easement over the Pedestrian Link Corridor Area created herein sha11 remain in
full force and effect. The rebuilding or restoring Ovcmer shall pay all construction
and restoration costs related to (a) disconnecting the Pedestrian Link from any
Facility to be demolished, (b) supporting and securing of the Pedestrian Link
during demolition and/or restoration of the replacement Facility, (c) repair or
replacement of all Pedestrian Link components damaged by the demolition of a
portion of the Pedestrian Link or the damaged Facility, and (d) repair and
connection of the Pedestrian Link to the replacement Facility. The Pedestrian
Link shall be supported and maintained in good and safe condition pending
connection to the replacement Facility or restoration. If construction of a
replacement Facility has not been commenced within two (2) years &om the date
of demolition or destruction, the easement granted herein over the Pedestrian Link
Corridor Area shall terminate on the second anniversary of the demolition or
destruction unless otherwise agreed to by the Owners of the Pedestrian Link.
5. Demolition and Construction
5.1. General Reauirements. Each Owner agrees that all demolition and construction
activities performed by it within the Center shall be performed in compliance with
all laws, rules, regulations, orders, and ordinances of the city, county, state, and
federal governments, or any department or agency of any of them, affecting
I
n cted within the Center. Each Owner further agrees that
improvements co stru
neither its demolition nor its construction activrties shall do any of the followmg:
5.1.1 Unreasonably interfere with demolition or construction work being
performed on any other part of the Center.
5.1.2 Unreasonably interfere with the use, occupancy or enjoyment of any part
of the remainder of the Center by any other Owner or its Permittees.
5.1.3 Cause any other Owner to be in violation of any law, rule, regulation,
order or ordinance applicable to its Tract of the city, county, state, federal
governm�nt, or az►y department or agency of any of them.
zoaa�oo�s L-12
5.2. Pedestrian Link Construction. Developer shall be solely responsible for the
construction of the Pedestrian Link in accordance with and pursuant to the terms
of the Development Agreement. However, HRA sha11 have the right to monitor
and inspect the construction and construction methods performed on its Tract, and
Developer shall use all reasonable efforts to insure that such construction does not
unreasonably interfere with access to and the activities of HRA and its Permittees
in the Conference Facility. Developer sha11 coordinate and cooperate with EDA
and HRA in all construction activities on the HRA Tract to insure minimal
interference and damage to the improvements on the HRA Tract. Developer shall
be solely responsible for repairing and restoring any damage to the unprovements
located on the HRA Tract caused by or occurring during such construction.
Developer warrants to HRA and EpA that (a) the Pedestrian Link will be
constructed and installed in a good and workmanlike manner without material
defects and in accordance with a11 applicable federal, state and local laws, codes
and ordinances and using only all new materials and �uipment, and (b) the
Pedestrian Link and restated facilities and improvements to be installed and/or
constructed by or under Developer will be free from material defects for a period
of one year beginning 30 days following the issuance of a certificate of occupancy
for the Pedestrian Link. If any work is found to be defective within said one year
period, Developer sha11 correct, repair and restore such work at its sole cost and
expense. Developer warrants to. HRA that the construction of the Pedestrian Link
sha11 not result in damage or injury to the improvements on the HRA Tract, other
than the work necessarily required for connection of the Pedestrian Link to the
Conference Facility, which Conference Facility shall be restored to substantially
the same condition they were in prior to the performance of said work.
Notwithstanding the provisions of Section 9 hereof to the contrary, during the
construction of the Pedestrian Link, Developer (and not HRA or EDA) shall
procure and maintain builder's All-Risk casualty insurance on the improvements
being constructed by Developer, and otherwise maintain in force and effect the
insurance required to be obtained by it as provided in the Development
Agreement.
5.3. Indemnitv. Each Owner agrees to defend, indemnify and hold harmless each
other Owner from a11 claims, actions, proceedings and costs incurred in
connection therewith (including reasonable attorneys' fees and costs of suit)
resulting from any personal injury, death or property damage whatsoever
occurring to any Person or to the property of any Person arising out of or resulting
from the performance of any demolition and/or construction activities performed
or authorized by such inde�mnifying Owner, except to extent claims in respect
thereto aze waived or released herein. The indemnification contained in this
subsection 5.3 shall not include an indemnity for any consequential damages.
6. Maintenance and Repair
6.1. General Resnonsibilitv for Maintenance. Except as may be expressly provided
otherwise in this Section 6, each Owner shall repair and maintain all of the
portions of the Parking/Driveway Area and the Pedestrian Link tocated on its
soaatoor3 L-13
S Tract in good order, condition and repair, including capital repairs and any repairs
necessitated by fire or other casualty. Such maintenance sha11 include keeping,
and each Owner hereby covenants and agrees to keep, all of the portions of the
Parking/Driveway Area and the Pedestrian Link located on its Tract fully
illuminated each day from dusk until dawn, 7 days a week. All repairs and
maintenance to be performed by an Owner pursuant to this subsection sha11 be
performed at such Owner's sole expense, except as may be expressly provided
otherwise in this Agreement.
6.2. Standards for Maintenance. The minimum standard of maintenance for the
Parkit�g/Driveway Area and the Pedestrian Link shall be comparable to the
standard of maintenance followed in first-class retail developments of comparable
size in the Minneapolis/St. Paul metropolitan area, and in any event in compliance
with all applicable governmental laws, rules, regulations, orders and ordinances,
and the provisions of this Agreement. The Parking/Driveway Area and Pedestrian
Link improvements sha11 be repaired or replaced with materials at least equal to
'als bein aired or r laced. The maintenance
the ongYnal quahty of the maten g rep ep
and repair obligation for the Parking/Driveway Area in any event shall�include but
not be limited to the following:
6.2.1 Road. Drivewav and Access Areas. Maintaining all paved surfaces and
curbs in a smooth and evenly covered condition which maintenance work
shall include cleaning, sweeping, restriping, repairing, resurfacing and
overlays.
6.2.2 Debris and Tefuse. Periodic removal of all papers, debris, filth, refuse, ice
and snow to the extent necessary to keep the Parking/Driveway Area in a
first-class, clean and orderly condition.
6.2.3 Sign and markers. Placing, keeping in repair, replacing and repainting any
appropriate directional signs or markers.
6.2.4 Lighti.n eratin keeping in repair, cleaning and replacing when
g OP S
necess an li ting facilities.
�'Y Y Sh
The maintenance and repair obligation for the Pedestrian Link in any event shall
include but not be limited to the following:
th and
'dors in a smoo
6.2.5 Corridor. Maintainin all edestrian wa s and com
g P Y
1 include cleanin
ndition which maintenance work shai n g,
evenl covered co
Y
etin retilin and resurfacin All corridors, doors and
sweeping, recarp g, g S
glass sha11 be periodically cleaned.
6.2.6 Sienaee and Exits. Maintaining, repairing and replacing a11 directorial
signs and emergency exit signage.
I
zoaa�oo�s L-14
b.2.7 Structure. Maintaining, repairing and replacing when necessary the
Pedestrian Link, its structural components, roof, drainage facilities and
a�cess doors and windows.
6.2.8 HVAC. Maintaining, repairing and replacing when necessary all heating,
ventilation and air conditioning systems.
6.2.9 Liehtin� and Securitv. Maintaining, repairing and replacing when
necessary all Iights in the Pedestrian Link, including emergency lighting,
and all security systems.
6.3. Pavment for Ne�lisence. Notwithstanding the provisions of subsection 6.1
(entitled "Genera� Responsibility for Maintenance"), but subject to the provisions
of subsection 9.4 (entitled "Waiver of Subrogation"), in the event any
Parking/Driveway Area or the Pedestrian Link located on an Owner's Tract are
damaged or destroyed as a result of the negligence or willful misconduct by
another Owner or its contractors, agents, servants, or employees, the Owner who
(or whose contractors, agents, servants, or employees) caused such damage or
destruction shall reimburse the Owner who owns the Tra.ct on which the damage
or destruction occurred for the reasonable cost of the repair of such damage ar
destruction.
6.4. General Easement Reaair Provisions. In addition to any other provisions of this
Agreement, any Owner entering another Owner's Tract to perform maintenance ar
repair pursuant to this Agreement shall comply with the following: (a) any such
maintenance and repair shall be performed in such a manner as to cause as little
disturbance in the use of the Tract where the repairs and maintenance are being
performed as is practicable under the circumstances; (b) the Owner performing
such repair and maintenance shall promptly pay all costs and expenses associated
with any such repair and maintenance, subject to any provisians for
reimbursement wluch may be expressly contained in this Agreement; (c) the
Owner performing such repair and maintenance sha11 diligently complete such
work as quickly as possible; and (d) the Owner performing such repair and
maintenance shall promptly clean and restore the affected portion of the easement
area to a condition equal to or better than the condition which existed prior to the
commencement of such work.
6.5. Costs of Parkin� Lot Area Maintenance. The Owner of the Developer Tract shall
pay to the Owner of the HRA Tract its "proportionate share" of the reasonable
costs and expenses incurred by the Owner of the HRA Tract for the operation,
maintenance and repair (including replacement) of the Pazking Lot Area. For
purposes of this Section 6.5, the "proportionate share" of the Owner of the
Developer Tra.ct, sha.11 be a fraction, the numerator of which is 45 and
denominator of which is the total number of parking spaces existing from time to
time in the Parking Lot Area. Such payment shall be made by the Owner of the
Develope� Tract within 20 days of submission by the Owner of the HRA Tract of'
a statement therefor, accompanied by a reasonable detail and explanation of such
zoaa�oo�3 L-15
ents and an
and ex enses includin co ies of bills, co
ntracts and statem
costs p g P
Tract for use of its own
itemization of all the charges of the Owner of the HRA
e tunel a
ent
em lo ees. Failure by the Owner of the Developer Tract to mak y p ym
P Y
shall resuit in a lien in favor of the Owner of the I3RA Tract on the Developer
Tract in the same manner and pursuant to the same provisions as provided in
Section 14 hereof for cure of a default.
7. Buildin� Imnrovements
7.1. Standards of Maintenance, After completion of construction, each Owner
covenants and agrees to maintain and keep the building improvements, if any,
located on its Tract in good condition and state of repair, in compliance with a11
governmentallaws, rules, regulations, orders, and ordinances exercising
jurisdiction thereover.
7.2. Casualtv. In the event any of the building impmvements, other than the
Pedestrian Link, are damaged by fire or other casualty (whether insured or not), or
if a building on a Tra�t is being torn down or demolished, the Owner upon whose
Tract such building improvements are located immediately shall remove the
debris resulting from such event and provide a sightly barrier and within a
reasonable time thereafter sha11 either (a) repair or restore the building
erect other buildin
improvements so damaged or demohshed, or (b) g
improvements or improvements in such location, or (c) demolish the damaged
portion of such building,improvements, remove all debris, and restore the area to
an attractive condition. Such Owner shall have the option to choose which of the
obli ated to erform
I erform but such Owner shall be g p
fore oing altematives to p
g
t atives. Notwithstandin the fore omg to the contrary, the
one of such al ern 8 S
Owner of the Developer Tract may not elect (c) unless such Owner shall pay to
HRA and EDA all costs and expenses paid by HRA and/or EDA for the
demolition, removal and site restoration of the Pedestrian Link on its Tract. If
such payment is not timely paid to HRA and EDA by the Owner of the Developer-
ribed in
1 erform the wo
rk as desc
Tract, the Owner of the Developer Tract shal p
either (a) or (b) of this subsection.
8, fIntention�llv Omittedl
9, Insurance
9.1. Liabilitv Insurance. Each Owner shall maintain or cause to be maintained in full
force and effect with respect to its Tract Commercial General Liability Insurance
iu the amount of at least $1,000,000 per occurrence, $2,000,000 aggregate far
r ro ert dama e and umbrella liability
bodil or ersonal iri ury or death and fo p p y S,
Y P J
r vision for
a o
in the amount of $5 000 004. Such insurance shall include p
severability of interests.
9.2. Casualtv Insurance. Each Owner shall maintain or cause to be maintained in full
force and effect property insurance with Al1-Risk coverage including but not
Zoaaioo�3 L-16
limited to casualty, loss or damage by fire, lightning, windstorm, hail, collapse,
explosion, riot, vandalism, civil commotion, aircraft, vehicle, smoke and other
such hazazds covering the Pedestrian Link on the Owner's Tract in the amount of
the full replacement value thereof, and with a demolition and increased cost of
construction endorsement during any reconstruction period or during
modifications, alterations or changes to the Pedestrian Link (hereinaf�er the
"Property Insurance Policy"). During any period of Pedestrian Link
reconstruction, a�teration or modification activity, the constructing Owner shall
carry such Property Insurance Policy in Builder's Risk form or compazable
coverage written on a completed value basis, and sha11 include broad form
contractual liability, products/completed operations, independent contracts, broad
form property damage, personal injury, and with "X", "C" and "U" exclusions
deleted.
9.3. Indeinnitv. Subject to the provisions of subsection 9.4 (entitled "Waiver of
Submgation"), each Owner ("Indexruritor") covenants and agrees to indemnify,
defend and hold hannless each other Owner ("Indemnitee") from and against a11
claims, costs, expenses and liability (including reasonable attorneys' fees and cost
of suit incurred in connection with all claims) arising from or as a result of the
injury to or death of any Person, or damage to the property of ariy Person, which
shall be caused by the negligence or willful act of such Indemnitor or its
contractors, agents, servants, or employees.
9.4. Waiver of Subrosation. Notwithstanding anything to the contrary contained in
this Agreement, each Owner (the "Releasing Owner") hereby releases and waives
for itself and on behalf of its insurer, any other Owner (the "Released Owner")
from any liability for any loss or darnage to a11 property of such Releasing Owner
located upon any portion of the Center, which loss or damage is of the type
generally covered by property insurance provided under the Comprehensive
Replacement Cost Form, nrespective either of any negligence on the part of the
Released Owner which may have contributed to or caused such loss, ar of the
amount of such insurance required or actually carried. Each Owner agrees to use
its best efforts to obtain, if needed, appropriate endorsements to its policies of
insurance with respect to the foregoing release; provided, however, that failure to
obtain such endorsements shall not affect any release given pursuant to this
subsection.
9.5. General Reauirements. The insurance required by this Section shall specifically
extend to contractual obligations of the insured party arising out of the
indemnification obligations set forth in this Agreement. Such insurance may be
carried under a blanket policy or policies which includes other liabilities,
properties and locations of such Owner. All insurance required by this Section
shall be procured from financially responsible insurance companies licensed to do
business in the state of Minnesota.
zoaaiow3 L-17
10. Taxes and Assessments
Each Owner shall be responsible for paying all taxes and assessments relating to its Tract,
the buildings and improvements located thereon, and any personal property ovmed or
leased by such Owner in the Center.
11. Liens
In the event any mechanic's lien is filed aga,inst the Tract of one Owner as a result of
services perfarmed or materials furnished for the use of another Owner, the Owner for
whose benefit such services were performed or materials were furnished agrees to cause
such lien to be discharged prior to entry of final judgment (after all appeals) for the
foreclosure of such lien and further agrees to indemnify, defend, and hold hazmless the
other Owner and its Tract against liability, loss, damage, costs or expenses (including
reasonable attorneys' fees and cost of suit) on account of such claim of lien. Upon request
of the Owner whose Tract is subject to such lien, the Owner for whose benefit such
services were performed or materials were furnished agrees to cause such lien to be
released and discharged of record within 14 days after the filing of such lien, either by
paying the indebtedness which gave rise to such lien or by posting bond or other security
as shall be required by law to obtain such release and dischazge; if the Owner for whose
benefit such services were performed or materials were fumished fails to obtain such
release and discharge within such 14 day period, the Owner of the Tract against which
such lien was recorded may cause such lien to be released and discharged of record,
either by paying the indebtedness which gave rise to such lien or by posting bond or other
security as shall be required by law to obtain such release and discharge, in which case
the Owner for whose benefit such services were performed or materials were furnished
shall immediately upon demand reimbwse the Owner of such Tract for all costs and
expenses incurred in connection with obtaining such release and discharge. Nothing in
this Agreement shall prevent an Owner for whose benefit such services were performed
or materials were furnished from contesting the validity of such lien in any manner such
Owner chooses so long as such contest is pursued with reasonable diligence. In the event
such contest is determined adversely (allowing for appeal to the highest appellate court),
such Owner sha11 promptly pay in full the required amount, together with any interest,
penalties, costs, or other chazges necessary to release such lien. Notwithstanding
anything herein to the contrary, the cost of the inirial construction of the Pedestrian Link,
and any liens resulting tlzerefrom, shall be fully paid by Developer as provided in the
Development Agreement. Notwithstanding any pmvision of this Agreement to the
contrary, Developer shall indemnify, defend and hold harmless HRA and the HRA Tract
from all mechanics' liens, claims, actians, proceedings and costs incurred in connecrion
therewith (including reasonable attorneys' fees and costs of suit) resulting from the
construction and installation of the Pedestrian Link, and any warranty work performed by
or under Developer, on the HRA Tract.
12. Consents
Unless expressly provided otheiwise in this Agreement, whenever consent is required in
this Agreement, such consent sha11 not be unreasonably withheld or delayed. Unless
soaaioo�3 L-18
provision is made for a specific time period, consent shall be given or withheld within 30
days of the receipt of the request for consent. If a notice that consent will be refused is
not given within the required time period, the requested Owner shall be deerned to have
given its consent. If an Owner shall refuse consent, the reasons therefor shall be stated.
Except with respect to a consent given by lapse of time, all consents and refusals to
consent shall be in writing. Any right to consent aontained in this Agreement shall be
held by the Owner owning the Tract to which such right relates. Any purchaser of any
Tract in the Center shall automatically acquire any right to consent at such time as such
purchaser becomes an Oumer, wiless the selling Owner (a) conveys less than all of its
ownership interest in the Center and (b) provides in writing, either in the deed conveying
a portion of its ownership interest in the Center or in another agreement executed by the
selling Owner and recorded in the Hennepin County Registrar af Title's office prior to or
simultaneously with such deed, that such selling Owner retains the right or rights of
consent described in such instrument. Until a purchaser becomes an Owner, and only to
the extent the selling Owner does not so retain any right to consent, all rights to consent
associated with such Tract sha11 remain with the selling Owner and its heirs, successors
and assigns with respect to the non-conveyed portion of the Tract.
13. Condemnation
In the event any portion of the Center shall be condemned, the award shall be paid to the
Owner owning the land or the improvement taken, except that (a) if the taking includes
improvements belonging to more than one Owner, such as utility lines, the portion of the
award allocable thereto shall be used to relocate, replace or restore such jointly owned
un mvements to a useful condition, and (b) if the taking includes easement rights which
P
are intended to extend be ond the term of the A eement, the portion of the award
Y
allocable to each such easement right shall be paid to the respective grantee of such
easement. In addition to the foregoing, if a separate claim can be filed for the taking of
any other property interest existing pursuant to this Ageement which does not reduce ar
diminish the amount paid to the Owner owning the land or the impmvement taken, then
the owner of such other property interest shall have the right to seek an award for the
taking of such interest.
14. Default
1 Force Ma'eure Th within which an Ovmer to this A eement is r uired
14. i e time
Y
to perform any act shall be extended to the extent that performance of such act is
delayed by Force Majeure, but only if such delay was beyond that Owner's
reasonable control and was not caused by its fault or negligence. "Force Majeure°
shall mean acts of god, fire, abnormal weather, explosion, riot, war, labor
disputes, governmental restrictions, inability to obtain necessary materials, or any
other cause beyond such Owner's reasonable control. If a delay of performance
occurs and such delay is excusable under this prnvision, the period for
performance shall be extended for a time equal to the time lost because of the
Force Majeure, but only if the Owner entitled to such extension give, prompt
notice to all other Owners of the occurrence causing the delay and if the Owner so
2oaaioo�3 L-19
excused acts in good faith and uses due diligence to perform. The inability to
obtain financing or lack of money shall not constitute Force Majeure.
14.2. Notice: Cure. If any Owner fails to comply with any provision of this Agreement
(the "Defaulting Owner"), then any other Owner (the "Non-Defaulting Owner")
may upon 30 days' prior written notice to the Defaulting Owner, proceed to cure
the default (and sha11 have a license to do so) by the payment of money or
performance of some other action for the account of the Defaulting Owner. The
foregoing right to cure shall not be exercised if within the 30 day notice period (a)
the Defaulting Owner cures the default, or (b) if the default is curable, but cannot
reasonably be cured within that time period, the Defaulting Owner begins to cure
such default within such time period and diligently pwsues such cure to
completion. The 30 day norice period shall not be required if, using xeasonable
judgment, the Non-Defaulting Owner deems that an emergency exists which
requires immediate attention. In the event of such an emergency, the Non-
Defaulting Owner sha11 give whatever notice to the Defaulting Owner as is
reasonable under the circumstances. The Defaulting Owner hereby grants to the
Non-Defaulting Owner a nonexclusive easement over, a�mss and under any and
a11 parts of the Defaulting Owner's Tract for all purposes reasonably necessary to
enabie the Non-Defaulting Owner (or its agents, contractors or subcontractors) to
perform any of the terms, pravisions, covenants or conditions of this Agreement
that the Defaulting 4wner is obligated to perform but has failed to perform after
notice and the opportunity to cure pursuant to this subsection.
14.3. Reimbursement of Costs to Cure: Lien. Within 10 days after written demand
(including providing copies of invoices reflecting costs) the Defaulting Owner
shall reimburse the Non-Defaulting Owner for any amount reasonably spent by
the Non-Defaulting Owner to cure the default, together with interest on such
amount. The Non-Defaulting Owner shall have a lien upon the Defaulting
Owner's right, title, and interest in and to any portion of the Defaulting Owner's
Tract to secure payment of all amounts due to the Non-Defaulting Owner under
this subsection. The Non-Defaulting Owner sha11 have the right, but not the
obligation, to record its lien, but at all tirnes its lien pursuant to this subsection
shall be subject and subordinate to (a) the lien of anymortgage or deed of trust
held by any institutional lender, or any extension, renewal, modification ar
refinancing thereof, on the Defaulting Owner's Tract; (b) the leasehold estate
created by any lease of a11 or any part of the Defaulting Owner's Tract; (c) any
other lien of record against the Defaulting Owner's Tract as o£ the date that the
Non-Defaulting Owner's lien is recorded. The Defaulting Owner shall execute
such ixistruments and documents as the Non-Defaulting Owner may reasonably
request to permit the recordation of such lien. The Non-Defaulting Owner shall
have the right to foreclose such lien in the manner provided by laws of the State
of Minnesota gaverning mechanics liens.
14.4. Estoppel. Each Owner shall, within 15 days after written request from another
Owner (but not more often than twice in any 12 month period), execute and
deliver to the requesting party an estoppel letter certifying whether or not the
aoaaioo�s L-20
certifying Owner has filed any liens, as provided in subsection 14.3, against any
Tract, and whether or not any other Owner is delinquent in any payments required
to be made to the certifying Ownerpursuant to this Agreement.
14:5. Interest. Wherever and as often as one Owner sha11 not have paid any sum
payable hereunder to another Owner within five days of the due date, such
delinquent Owner shall pay interest on such amount from the due date, through
and including the date such payment is received by the Owner enritled thereto, at
the lesser of the following: (a) the highest rate permitted by law to be paid on such
type of obligation by the Owner obligated to make such payment; or (b) three
percent per annum in excess of the interest rate from time to time publicly
announced by U.S. Bank National Association ("U.S. Bank"), a national banking
association having its main offices in Minneapolis, Minnesota, or its successor, as
its reference rate (the "Reference Rate"), even though U.S. Bank, or its successor,
may lend funds to its customers at interest rates #hat aze at, above, or below the
Reference Ra.te.
14.6. Minimization of Damaees. In all situations arising out of this Agreement, all
Owners shall attempt to avoid �nd minimize the damages resulting &om the
conduct of any other Owner. Each Owner shall take all reasonable measures to
effectuate the provisions of this Agreement.
14.7. A�reement Shall Continue Notwithstandin� Breach. It is expressly agreed that no
breach of this Agreement shall (a) entitle any Owner to cancel, rescind, or
defeat or render invalid the lien of an
otherwise terminate this Agreement, or (b) y
mortgage or deed of trust made in good faith and for value as to any part of the
Center; however, such limitation shall not affect in any manner any other rights or
remedies which an Owner may have under this Agreement by reason of any such
breach.
15.
Notices
All notices given under this Agreement shall be in writing and shall he sent postage
prepaid by either (a) United States certified mail, return receipt requested, or (b) for
delivery on the next business day with a narionally-recognized express courier. All such
notices shall be sent to the following addresses, until such addresses are changed by 30
days' notice:
To EDA: Economic Development Authority of
Bmoklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, Minnesota 55430-2199
Attn: Executive Director
Zoaaioors L-21
To HRA: The Housing and Redevelopment Authority
in and for the City of Brooklyn Center
6301 Shingle Creek Pazkway
Brooklyn Center, Minnesota 55430-2199
Arin: Executive Director
To Developer: Brooklyn Hotel Partners, LLC
5713 Grand Avenue, Suite B
Duluth, Minnesota 55807
Notices sha1T be deemed given as of the date such notice is postmazked, if sent by
certified mail, or is placed with an express courier, if sent by express courier. If the last
day for giving any notice or taking any action required or peimitted under this Agreement
would otherwise fall on a Saturday, Sunday, or legal holiday, that last day shall be
postponed until the next legal business day.
16. Miscellaneous
16.1. Liabilitv Limitation. Notwithstanding any provisions of this Agreement to the
contrary, including without limitation the indemnifications and agreements
described in subsections 5.3, 6.3 and 9.3, and the requirements for insurance as
described in Section 9, the liability of HRA and EDA under this Agreement shall
be limited as provided in Chapter 466 of Minnesota Statutes in effect from time to
time, and nothing contained in this Agreement shall be deemed to constitute a
waiver vf such limitations or an agreement by HRA or EDA to its increase or
amend its limited liability as described in such statutes.
16.2. Confirmation of Easements. All easements granted under this Agreement shall
exist by virtue of this Agreement, without the necessity of confirmadon by any
other document. Upon the request of any Owner, each other Owner will sign and
acknowledge a document memorializing the existence (including the legal
description, location and any conditions), or the ternunation (in whole or in part),
or the release {in whole or in part), as the case may be and to the extent
applicable, of any easement.
16.3. NeEation of Partnershin. None of the terms or provisions of this Agreement shall
be deemed to create a partnership between or among the Owners in their
respective businesses or otheiwise, nor shall it cause them to be considered joint
venturers or members of any joint enterprise. Each Owner shall be considered a
separate Owner, and no Owner shall have the right to act as an agent for another
Owner, unless expressly authorized to do so in this Agreement or by sepazate
written instrument signed by the Owner to be charged.
16.4. Not a Public Dedication. Nothing contained in this Agreement shall be deemed to
be a gift or dedication of any portion of the Center, or of any Tract, or of any
s
Zoaaioo�3 L-22
portion of the Center or any Tract, to the general public or for any public use or
purpose whatsoever.
16.5. Entire A�reement: Enforceabilitv. This Agreement, including any Recitals and
any attached Exhibits, all of which are made a part of this Agreement, and the
Development Agreement contains the entire agreement of the Owners concerning•
this subject matter. This Agreement should be read carefully because only those
terms in writing in this Agreement are enforceable. No other terms or oral
pmmises which are not in this Agreement may be legally enforced, and no
pmmises, projections, inducements or representations made before the Execution
Date will change the terms of this Agreement or be binding on any Owner. No
promises or other terms shall be implied in this. Agreement. If there is a conflict
between the terms of this Agreement and the Development Agreement, the terms
of the Agreement will controL
16.6. Amendments. Except as provided otherwise in this Section, this Agreement may
only be amended by a written agreement signed by all of the then current Owners,
except that a provision of this Agreement which only affects specific Tracts may
be amended by a written agreement signed by all of the then current Owners of
the affected Tracts. Any aznendment of this Agreement shall be effective only
when recorded in the county and state where the Center is located. No consent to
the amendment of this Agreement shall ever be required of any Occupant or
Person other than the Owners whose consent is required pursuant to the
S p�ovisions of this Section, nor shall any Occupant or Person other than the
Owners whose consent is required pursuant to the provisions of this Section have
any right to enforce any of the provisions of this Agreement.
16.7. Binding Effect: No Third Owner Beneficiaries. This Agreement sha.11 both bind
and benefit the parties to tlus Agreement and their respective heirs, personal
representatives, successors and assigns who become Owneis. The Owners do not
intend that there be any third party or other beneficiaries of this Agreement. The
easements, covenants, agreements, conditions, terms, obligations, limitations and
undertakings in this Agreement sha11 be construed as covenaats running with the
land. This Agreement is not intended to supersede, modify, amend, or otherwise
change the provisions of any prior instrument affecting the Center.
16.8. Waivers: Consents. An Owner shall not be deemed to have made a waiver or
consent under this Agreement unless it does so in writing, and the mere failure of
an Owner to act to enforce any provision of this Agreement shall not be
considered a waiver or consent and shall not prevent that Owner from enforcing
any pmvision of this Agreement in the future. Any waiver or consent under this
Agreement shall apply only to the matter expressly waived or consented to, and
shall not be deemed to be a waiver of or consent to any snbsequent breach or of
any other provision of this Agreemenk
16.9. Time of the Essence. Time is of the essence with respect to all matters provided
in This Agreement.
zoaaioo�3 L-23
16.10. Severabilitv. The invalidity or unenforceability of one provision of this
Agreement will not affect the validity or enforceability of the other provisions.
16.11. Catitions. The section numbers and captions are inserted only as a matter of
convenience, and do not in any way define, limit, or describe the scope or intent
of this Agreement. Any references in this Agreement to a Section or subsection
shall refer to such Section or subsection of this Agreement, unless expressly
proVided otherwise.
16.12. Interoretation of "includine" and "dav". Wherever the word "including" is used in
this Agreement, or in any recital or exhibit to this Agreexnent, it shall mean
"including without limitation." Wherever the word "day[s]" is used in this
Agreement, or in any recital or exhibit to this Agreement, and the word "business°
does not appear immediately before such word, such word shall mean "calendaz
16.13. Counteroarts. This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and all of which together shall constitute one
and the same instrument.
17. No Offer
The submission of this Agreement for examination and negotiation does not constitute an
offer to enter into an agreement, and this Agreement shall not be binding on any party
until it is executed and delivered by each party to tlus Agreement.
EDA, HR.A and Developer have signed this Agreement below as of the Execution Date.
EDA:
ECONOMIC DEVELOPMENT AUTHORITY
OF BROOKLYN CENTER
By:
Its:
And By:
Its:
aoaaiows L-24
HRA:
TI� HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
BROOKLYN CENTER
By:
Its:
And By:
Its:
zoaaiooy3 L-25
DEVELOPER:
BROOKLYN HOTEL PARTNERS, LLC
By:
Its:
zoaaiows L-26
r ACKN4WLEDGEMENTS
STATE OF MINNESOTA
)ss.
COUNTY OF HENNEPIN
This instnunent was acknowledged before me on 200_, by
the and the
of the Economic Development Authority of Brooklyn Center, a
Minnesota public body corporate and politic, on behalf of the body.
Notary Public
STATE OF MIlVNESOTA
)ss.
COUNTY OF HENNEPIN
This instrument was acknowledged before me on 200_, by
the and the
of The Housing and Economic Development Authority in and for the
City of Brooklyn Center, a Minnesota public body corporate and politic, on behalf of the body.
Notary Public
STATE OF MINNESOTA
)ss.
COUNTY OF HENNEPIN
This instrument was acknowledged before me on 200_, by
the of Brooklyn Hotel Pariners, LLC, a Minnesota
limited liability company, on behalf of the company.
Not Pubiic
�Y
My Commission Expires:
This Instrument was Drafted By:
Briggs and Morgan, P.A.
2200 IDS Center
80 South 8�' Street
Minneapolis, MN 55402-2157
Zoaa�oor3 L-27
Ezhibit A
(Site Plan)
aoaaioo�3 A-1
Exhibit B
(Pedestrian Link Corridor Area Leg�l Description)
s
zoaa�oo�3 B-1
Exhibit C
(Shared Driveway Area Developer/EDA Legal Description)
The South 25 feet of the West 250 feet of Lot 1, Block 1, Brooklyn Farm Second Addition,
according to the plat thereof on file and of record in the office of the Hennepin County Registrar
of Titles, Minnesota.
2oaatoo�3 B-1
Ezhibit D
(Shared Driveway Area Developer/HRA Legal Description)
The East 12 feet of the North 209.50 feet of Lot 1, Block 1, Brooklyn Farm Second Addition,
aecording to the plat thereof on file and of record in the office of the Hennepin County Registrar
of Tittes, Minnesota.
zoaaioo�s D-1