HomeMy WebLinkAbout2010-097 CCR Member Mark Yelich introduced the following resolution and moved
its adoption:
A
RESOLUTION NO. 2010 -97
RESOLUTION APPROVING A FOURTH AMENDMENT TO A DEVELOPMENT
AGREEMENT AND CERTAIN RELATED AGREEMENTS ATTACHED
THERETO AS EXHIBITS (LICENSE, DEED, AMENDED EASEMENT, LEASE
AMENDMENT AND SUBORDINATION AGREEMENTS)
WHEREAS, the Economic Development Authority of Brooklyn Center (the
"Authority ") and the City of Brooklyn Center (the "City ") have heretofore entered into a
Development Agreement dated October 23, 2006, as amended July 23, 2007, October 8, 2007 and
January 17, 2008 (as amended, the Development Agreement) between the Authority, the City and
Brooklyn Hotel Partners, LLC, a Minnesota limited liability company (the "Developer ") in
connection with hotel developments to be constructed by the Developer; and
WHEREAS, the Authority, the City and the Developer desire to further amend the
Development Agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of Brooklyn Center
as follows:
1. The City hereby approves the Fourth Amendment to the Development
Agreement in the form on file with the City Clerk, with such changes thereto
as may hereafter be approved by the Mayor and /or the City Manager of the
City.
2. The City hereby approves all of the exhibits to the Fourth Amendment to the
Development Agreement, including without limitation:
(a) License Agreement (Exhibit A to Fourth Amendment to the
Development Agreement),
(b) Quit Claim Deed and Termination of Development Rights (Exhibit
B to the Fourth Amendment to the Development Agreement),
(c) the Amended and Restated Parking, Access and Pedestrian Link
Easement Agreement (Exhibit C to the Fourth Amendment to the
Development Agreement),
(d) the First Amendment to Lease (Exhibit D to the Fourth
Amendment to the Development Agreement),
(e) the Security Interest Subordination Agreement (Exhibit E to the
Fourth Amendment to the Development Agreement), and
RESOLUTION NO. 2010 -97
(f) Subordination by The Prudential Insurance Company of America
(in substance similar to that subordination given by the Hurlbut -
Zeppa Charitable Trust AR (see (e) above),
and approves the execution and delivery of items (e) and, if necessary and appropriate, (f) above,
in the forms on file with the City Clerk, with such changes thereto as may hereafter be approved
by the Mayor and /or City Manager of the City.
2
June 28, 2010
Date Mayor
ATTEST:
City Clerk
The motion for the adoption of the foregoing resolution was duly seconded by member
Dan Ryan
and upon vote being taken thereon, the following voted in favor thereof:
Tim Willson, Dan Ryan, and Mark Yelich;
and the following voted against the same: none
whereupon said resolution was declared duly passed and adopted.
I
•
FOURTH AMENDMENT TO
DEVELOPMENT AGREEMENT
BY AND BETWEEN
ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER
CITY 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
2358282v9
FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT •
THIS FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT (this "Fourth
Amendment ") made as of the 29 day of June, 2010, by and between the Economic
Development Authority of Brooklyn Center, a body corporate and politic organized and existing
under the laws of the State of Minnesota (the "Authority "), City of Brooklyn Center, a Minnesota
municipal corporation (the "City "), and Brooklyn Hotel Partners, LLC, a Minnesota limited
liability company (the "Developer "). Unless otherwise expressly provided herein, all capitalized
terms shall have the meanings as ascribed in the Development Agreement referred to below.
RECITALS:
A. The Authority, the City and the Developer have previously entered into a
Development Agreement dated as of October 23, 2006, as amended July 23, 2007, October 8,
2007, and January 17, 2008 (as amended, the "Development Agreement "), pursuant to which the
Authority and the City agreed to, among other things, contribute land and abate certain taxes to
the Developer to assist with certain public redevelopment costs of a project undertaken by the
Developer in the City.
B. The Developer is currently in default under the Development Agreement by
reason of its failure to complete that portion of the Phase I Minimum Improvements known and
referred to as the Connection.
C. Although not a part of the Development Agreement, the Developer and the •
Authority also previously entered into a Lease dated November 2007 (the "Lease Agreement ")
for certain retail space in the Authority's Earle Brown Heritage Center facility located adjacent to
the Phase I Property.
D. The Developer is also currently in default under the Lease Agreement by reason
of its failure to pay certain rent.
E. The Developer, the Authority and the City now desire to compromise and settle
their respective rights and claims under the Development Agreement and the Lease Agreement
by amending: (1) the Development Agreement to modify and amend the rights and obligations
of the Authority, the City and the Developer as it relates to the Connection and the Phase II
Property, (2) the Parking, Access and Pedestrian Link Easement Agreement by and between the
Authority, the Housing and Redevelopment Authority in and for the City of Brooklyn Center
( "H. RA ") and the Developer dated January 17, 2008 relating to the Development (the "Easement
Agreement ") to provide for a new location for the Connection which is to be situated on a
portion of the Phase I Property, and (3) the Lease Agreement to provide for revised term
commencement and termination dates and a revised description of the leased premises, among
other amendments and modifications as set forth herein.
AGREEMENTS:
In consideration of the premises and the mutual obligations of the parties hereto, each of
them does hereby covenant and agree as follows:
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1. The Development Agreement is amended as follows:
(a) The last sentence of Section 4.1. and the first sentence of Section 4.12(a)
are amended to provide that the Connection is not a part of nor included in the Minimum
Improvements to be constructed by the Developer at its cost.
(b) All applicable provisions of the Development Agreement, including
without limitation Sections 4.1 and 4.12, are amended to provide that: (i) the Authority
may, at its option and at its sole expense, construct the Connection in accordance with
plans and specifications approved solely by the Authority; and (ii) whether before or after
construction of the Connection, alter, modify, relocate or otherwise change the
Connection or the plans and specifications therefor, all in the sole and absolute discretion .
of the Authority. Neither the City nor the Authority nor the HRA shall have any
responsibility, obligation or liability to the Developer in the event the Connection is not
constructed or such construction is delayed. On the date hereof the HRA and the
Developer have executed and delivered a License Agreement relating to the Connection
in the form attached hereto as Exhibit A ( "License Agreement "), which License
Agreement shall pursuant to its terms, only be effective upon the receipt by Developer of
A ,P
g ever. 1n
Authority that the Connection is completed and open for use, if ev
ut
notice from the A y
the event the Connection (referred to as the "Pedestrian Link in the License Agreement)
is not substantially completed and ready for use, as evidenced by the issuance by the City
of Brooklyn Center of a certificate of occupancy for the Pedestrian Link, on or before the
! fifth anniversary of the date of the License Agreement, the License Agreement shall
automatically terminate and shall become null and void as provided in Section 1 of the
License Agreement.
(c) All applicable provisions of the Development Agreement are amended to
provide that the Developer shall have no right or obligation to develop the Phase IT
Property or construct the Phase II Minimum Improvements of the Development or pay
the cost thereof. In confirmation thereof, the Developer has on the date hereof executed
and delivered to the Authority the Quit Claim Deed and Termination of Development
Rights in the form attached hereto as Exhibit B .
(d) Article V is amended to provide that the Developer shall not be entitled to
any Tax Abatements for the "Phase II Development Property" or the Phase II Property.
Section 4.11(c) is amended to provide that the Developer shall not be required to create
any permanent positions for the Phase II Property.
(e) The Authority agrees that if it intends first r the Dev loper right
Property prior to July 1, 2011, it will have the option to give to
of first offer' on the Phase II Property. Upon delivery of a written notice from the
Authority to the Developer of the right of 'first offer', the Developer shall have forty -five
(45) days after receipt of such notice (the "Offer Period ") to make an offer to the
Authority for the purchase of the Phase II Property, which offer the Authority may
accept, reject or conditionally accept in its sole and absolute discretion. In the event the
Authority and the Developer have not signed and delivered a final purchase agreement in
! a form acceptable to both the Authority and the Developer prior to the expiration of the
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Phase II . •
Offer Period, all rights of the Developer to offer to purchase and /or purchase the P
Property shall automatically expire and terminate. The terms of any proposed purchase
offer from the Developer, and any resultant definitive purchase agreement based upon
such offer, or otherwise, is subject to acceptance or rejection by the Authority in its sole
and absolute discretion, and the Authority shall have no obligation to sell the Phase 1I
Property to the Developer nor to negotiate the sale thereof to the Developer. Nothing
herein shall condition or limit the right of the Authority to sell or develop the Phase 11
Property prior to July 1, 2011 . without giving to the Developer such right of 'first offer',
provided that if the Authority sells or develops the Phase II Property prior to July 1, 2011
without giving the Developer a right of 'first offer', the deed of conveyance of the Phase
II Property shall contain a restriction (or a restriction shall otherwise be recorded) that the
Phase 11 Property may not be used for hotel purposes, which restriction shall
automatically expire on July 1, 2011. The Authority shall have no qualification or
limitation on its rights to sell or develop the Phase II Property after July 1, 2011 without a
right of 'first offer' or option of any type, kind or description whatsoever in favor of the
Developer or restriction upon the use of the Phase II Property.
(t) The payment of Tax Abatements which may hereafter become owing by
the City to the Developer under Section 5.1 for the Phase I Minimum Improvements shall
be subject to setoff by the City (for the account of the Authority) for all payments owing
to the Authority by the Developer as Tenant under the Lease Agreement and /or as
Licensee under the License Agreement.
(g) The Developer's address for purposes of Section 12.4 Notices and ,
Demands is hereby changed to:
Brooklyn Hotel Partners, LLC
c/o Oliver Companies, Inc.
5629 Grand Avenue, Suite 2
Duluth, MN 55807
Attn: Seth Oliver
2. The Easement Agreement is amended and restated as follows:
(a) The Easement Agreement is amended and restated pursuant to the
Amended and Restated Parking, Access and Pedestrian Link Easement Agreement
executed and delivered by the Authority, the HRA and the Developer on the date hereof
in the form attached hereto as Exhibit G
3. The Lease Agreement is amended as follows:
(a) The Lease Agreement is amended pursuant to the first amendment
executed and delivered by the Authority and the Developer on the date hereof in the form
attached hereto as Exhibit D .
4. On the date this Fourth Amendment is executed and delivered by the Authority,
the Developer shall deliver to the Authority a Security Interest Subordination Agreement in the
form attached hereto as Exhibit E . .
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•
5. This Fourth Amendment will be governed and construed in accordance with the
laws of the State of Minnesota.
6. Except as herein amended, all other terms and provisions of the Development
Agreement shall remain in full force and effect.
7. This Fourth Amendment may be executed in any number of counterparts, each of
which shall constitute one and the same instrument.
8. The execution of this Fourth Amendment and the exhibits thereto by the
Developer and the delivery thereof to the Authority and /or the City shall not bind or commit the
Authority and /or the City to the terms hereof, and this Fourth Amendment and the exhibits hereto
shall only be binding upon and constitute the agreement of the Authority and the City at such
time as all necessary approvals have been granted by the Authority and the City and this Fourth
Amendment and the exhibits hereto are duly executed in accordance with all applicable laws and
a fully executed copy thereof is delivered to the Developer.
[end of page]
•
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IN WITNESS WHEREOF the Authority, City and the Developer have caused this •
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Fourth Amendment to Development Agreement to be duly executed in their respective names on
or as of the date first above written.
ECONOMIC DEVELOPMENT AUTHORITY
OF BROOKLYN CENTER
By
Its President
By
Its Executive Director
CITY OF BROOKLYN CENTER
By
Its Mayor
By
Its City Manager •
This is a signature page to the Fourth Amendment to Development Agreement dated June 29,
2010, by and between the Economic Development Authority of Brooklyn Center, City of
Brooklyn Center and Brooklyn Hotel Partners, LLC.
•
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2358282v9
•
BROOKLYN HOTEL PARTNERS,LLC
By
Its
•
This is a signature page to the Fourth Amendment to Development Agreement dated June 29,
2010, by and between the Economic Development Authority of Brooklyn Center, City of
Brooklyn Center and Brooklyn Hotel Partners, LLC.
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2358282v9
•
EXHIBIT A
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this "Agreement "), made as of the 29 day of June,
2010 by and between The Housing and Redevelopment Authority in and for the City of
Brooklyn Center, a body corporate and politic organized and existing under the laws of the
State of Minnesota ( "Licensor "), and Brooklyn Hotel Partners, LLC, a Minnesota limited
liability company ( "Licensee ").
RECITALS:
A. Licensor is the owner and /or operator of certain building improvements on real
property located in Hennepin County, Minnesota, known and referred to as the Earle Brown
Heritage Center, which is legally described on Exhibit "A" attached hereto ( "Center Property").
B. Licensee is the owner of certain improved real property immediately adjacent to
the Center Property located in Hennepin County, Minnesota upon which Licensee has
constructed a hotel facility, legally described on Exhibit "B" attached hereto ( "Hotel Property").
C. Pursuant to that certain Development Agreement by and between the Economic
Development Authority of Brooklyn Center (the "EDA "), the City of Brooklyn Center ( "City")
and Licensee dated October 23, 2006, as amended July 23, 2007, October 8, 2007, January 17,
2008 and June 29, 2010 (as amended, the "Development Agreement "), the Licensor and or the •
EDA may, but shall not be obligated to, construct an enclosed pedestrian link upon the Center
Property and the Hotel Property, which link is referred to as the "Connection" in the
Development Agreement, and which is referred to herein as the "Pedestrian Link."
D. Licensee has requested, and Licensor has agreed, that Licensee, as the owner of
the Hotel Property, be granted a license for itself and its invitees, to use the Pedestrian Link for
pedestrian access to and from the Hotel Property to the Earle Brown Heritage Center located on
the Center Property, pursuant to the terms, conditions and agreements as set forth herein.
AGREEMENTS:
In consideration of the foregoing and the agreements herein contained, Licensor hereby
grants to Licensee a non - exclusive license to use that portion of the Center Property designated
as the 'Licensed Premises' as shown and depicted on Exhibit "C" attached hereto ( "Licensed
Premises ") for the purpose of non - exclusive pedestrian access by the owner of the Hotel Property
and its business invitees from the Hotel Property to and from the Earle Brown Heritage Center
located on the Center Property (the "License "), subject to the following terms, conditions and
agreements:
License herein
1. Term The term (Term) of the L g ranted shall commence on the
date, if ever, that Licensor gives written notice to Licensee that the Pedestrian Link is
substantially complete and open for use. In the event the Pedestrian Link is not substantially
completed and ready for use, as evidenced by the issuance by the City of Brooklyn Center of a •
certificate of occupancy for the Pedestrian Link, on or before the fifth anniversary of the date of
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this Agreement, this Agreement shall automatically terminate and shall become null and void.
This Agreement shall otherwise terminate on the date of written notice given by Licensor to
such notice is
' terminated whether given before or after the g
License is
Licensee that the Lice ,
construction of the Pedestrian Link. Neither the Licensor nor the City nor t he EDA shall have
any responsibility, obligation or liability to the Licensee in the event the Pedestrian Link is not
constructed or such construction is delayed.
2. Use Charge During the full Term of the License, Licensee shall pay to Licensor
an annual use charge equal to fifty percent (50 %) of the annual Pedestrian Link Costs (as
hereinafter defined). Licensor shall make a good faith estimate of such annual Pedestrian Link
Costs to be due by Licensee for any calendar year or part thereof during the Term. During each
calendar year or partial calendar year of the Term, Licensee shall pay to Licensor, monthly in
advance an amount equal to the estimated Pedestrian Link Costs for such calendar year or part
thereof divided by the number of months therein. From time to time, Licensor may estimate and
re- estimate the Pedestrian Link Costs to be due by Licensee and deliver a copy of the estimate or
re- estimate to Licensee. Thereafter, the monthly installments of Pedestrian Link Costs payable
by Licensee shall be appropriately adjusted in accordance with the estimations so that, by the end
Licensee shall have aid all of the Pedestrian Link Costs as
year in question, P
of the calendar ye q ,
estimated by Licensor. Any amounts paid based on such an estimate shall be subject to
adjustment as herein provided when actual costs are available for each calendar year as herein
provided.
3. Pedestrian Link Costs The tern "Pedestrian Link Costs" shall mean all
• reasonable expenses and disbursements (subject to the limitations set forth below) that Licensor
operation, and maintenance of the Pedestrian Link,
incurs in connection with the ownership, ,
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fined in accordance with sound accounting principles consistently applied, including the
determined operation, maintenance, repair,
following costs: (i) all supplies and materials used in the o P
replace ment and security f the Pedestrian Link; (ii) cost of all utilities used in the Pedestrian
Y
Link; (iii) repairs, rep lacements
tenan
ce of the Pedestrian Link; (iv) service,
and g eneral mam
maintenance and management contracts with independent contractors for the operation,
maintenance, management, repair, replacement, or security of the Pedestrian Link; (v) costs
made in order to comply with any applicable laws; (vi) improvements made to the Pedestrian
Link to improve the safety of the Pedestrian Link and the health and welfare of its occupants;
(vii) cost and premiums for all casualty insurance maintained by Licensor covering the
Pedestrian Link and liability insurance in connection therewith, and (viii) reasonable reserves for
periodic capital expenditures (e.g. carpet, floor mat, vacuum cleaner, HVAC and roof
replacement). Pedestrian Link Costs shall not include costs for: (1) repair, replacements and
general maintenance paid by proceeds of insurance or by Licensee or other third parties; (2)
interest, amortization or other payments on loans to Licensor; (3) depreciation; (4) the initial
construction of the Pedestrian Link; (5) repair, replacement and reconstruction of the Pedestrian
Link covered by any and all applicable warranties in connection with or relating to the original
construction and installation of the Pedestrian Link; (6) any work, repair, replacement or
reconstruction of the Pedestrian Link arising from the intentional wrongful acts of Licensor or
Licensee or the misuse or abuse of the Pedestrian Link, the entire cost of which shall be paid by
the party whose conduct gives rise to the need for such repair or replacement (without
contribution from the other party); or (7) Pedestrian Link Costs that are of a capital nature,
provided that such costs shall be amortized using a commercially reasonable interest rate over
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the useful economic life of such improvements as determined by Licensor in its reasonable
discretion.
By March 1 of each calendar year Licensor shall furnish to Licensee a statement of
Pedestrian Link Costs for the previous calendar year (the "Cost Statement "). If Licensee's
estimated payments of Licensee's one -half of Pedestrian Link Costs for the year covered by the
Cost Statement exceed Licensee's share of such items as indicated in the Cost Statement, then
Licensor shall promptly credit or reimburse Licensee for such excess; likewise, if Licensee's
estimated payments for such year are less than Licensee's share of such items as indicated in the
Cost Statement, then Licensee shall promptly pay Licensor such deficiency.
Licensee shall also pay to Licensor at the times and in the manner provided herein or, if
not so provided, as reasonably required by Licensor, all other amounts payable by Licensee to
Licensor under this Agreement.
4. As -Is Licensee accepts the Licensed Premises in its "as -is" condition without
qualification or requirement that Licensor perform any work therein.
5. Easement Agreement The terms and provisions of that certain Amended and
Restated Parking, Access and Pedestrian Link Easement Agreement dated of even date herewith
executed by the Licensor, the EDA and Licensee, recorded , 2010 as Doc.
No. in the office of the Hennepin County Registrar of Titles (the "Easement
Agreement ") shall govern matters relating to the repair and maintenance, including casualty •
repair, of the Licensed Premises and the Pedestrian Link, subject to the provisions of Section 2
and 3 hereof relating to the payment by Licensee of the annual use charge.
6. Modification to Licensed Premises. Notwithstanding anything herein to the
contrary, Licensor may from time to time, whether prior to or after construction of the Pedestrian
Link: (a) alter, modify or relocate the Pedestrian Link at its sole and absolute discretion, and /or
(b) alter, modify, relocate and/or adjust the location, area and extent of the Licensed Premises on
the Center Property in its sole and absolute discretion, provided that all such alterations,
modifications, relocations and adjustments on the Hotel Property shall be made within the area
of the easement granted by Licensee to Licensor for the "Pedestrian Link Corridor Area" as set
forth in the Easement Agreement.
7. Removal In the event the License herein granted is terminated by Licensor for
any reason other than the default by Licensee of its obligations under this Agreement, Licensor
shall remove that portion of the Pedestrian Link located on the Hotel Property within twelve (12)
months of such termination. At all times the Pedestrian Link shall be and remain the property of
DA and may Licensor and /or the E y be removed at any time.
8. Insurance Licensee shall at its sole cost and expense, maintain liability
insurance, with Licensor named as an additional insured, against claims for death, personal
injury, and property damage arising out of, or incidental to, the use by Licensee and its invitees
of the Licensed Premises in amounts which are from time to time acceptable to Licensor, but in
no event less than $2,000,000 for death or injury to one person, $5,000,000 for death or injury to
more than one person, and $5,000,000 for property damage, in respect of each occurrence. •
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Policies for such insurance shall be in a form with an insurer reasonably acceptable to Licensor
and shall require at least thirty (30) days written notice to Licensor of termination or material
alteration. Licensee shall promptly deliver to Licensor certified copies or other evidence of such
policies and evidence satisfactory to Licensor that all premiums thereon have been paid and the
policies are in full force and effect. In the event the use of the Licensed Premises by Licensee
and its invitees or the exercise by Licensee by any rights or privileges herein contained results in
an increase in the premiums of insurance maintained by Licensor covering the Center Property,
Licensee shall immediately upon demand by Licensor pay to Licensor such increased premiums
resulting therefrom.
9. Indemnity Licensee shall indemnify and hold Licensor harmless from and
against every demand, claim, cause of action, liability, judgment, and expense, and all loss or
damage arising from, or incidental to, the use or occupancy of the Licensed Premises by the
owner of the Hotel Property and /or its invitees or the exercise of any right or privilege herein
contained or the failure t o p any of the terms, conditions or agreements hereof.
y
10. Eminent Domain If all or any part of the Licensed Premises or any interests or
rights granted, created or arising under this License are taken for any public use under any statute
or by right of eminent domain, or purchased under threat of such taking, this Agreement shall
automatically terminate on the date of such taking. Any compensation or award paid or payable
on account of any such taking shall be the sole and exclusive property of, and belong to,
Licensor.
11. Access Access by Licensee, its agents, employees and contractors shall be
during those hours and on those days, and, subject to such rules and regulations as Licensor may
make from time to time for the use, operation and maintenance of the Licensed Premises and the
Center Property. Licensee shall observe all such rules and regulations and cause its invitees
using the Pedestrian Link to also observe all such rules and regulations.
12. Notices Any notice from one party to the other hereunder shall be in writing and
shall be deemed duly served if mailed by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
To Licensor: The Housing and Redevelopment Authority in and
for the City of Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, Minnesota 55430 -2199
Attn: Executive Director
To Licensee: Brooklyn Hotel Partners, LLC
c/o Oliver Companies, Inc.
5629 Grand Avenue, Suite 2
Duluth, Minnesota 55807
Attn: Seth Oliver
Either party shall have the right to designate by notice, a different address to which notices are to
be mailed.
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13. Default If (a) Licensee shall default in the payment of any charge or
performance of any obligation under this Agreement and such default is not cured within 10 days
after notice by Licensor thereof, or (b) if any proceeding is commenced by or against Licensee
for the purpose of subjecting the assets of Licensee to any law relating to bankruptcy or
insolvency or for an appointment of a receiver for the business, property, affairs, or revenues of
Licensee, or (c) if Licensee makes a general assignment of Licensee's assets for the benefit of
creditors, then, and in any such event, Licensor may, at its option, without further notice to
Licensee or demand by Licensor, in addition to all other rights and remedies provided at law or
in equity, terminate this Agreement and all rights, privileges, and licenses granted or created
hereunder.
14. Right of Set -off and SecurityAgreement
(a) In addition to all other remedies available to Licensor as'provided in this
Agreement, upon a default by Licensee of any of Licensee's payment obligations to
Licensor under this Agreement (whether the payment of use charges or otherwise),
Licensor may (and notwithstanding any other provision of this Agreement to the
contrary), without notice to Licensee, cause the City to set -off the amount of such
delinquent payment (for the account of Licensor) against amounts which are or may
become due and owing by the City to Licensee as "Tax Abatements" as described in and
pursuant to the Development Agreement.
(b) In order to secure the prompt payment and performance of all obligations
of Licensee to Licensor under this Agreement now or hereafter arising, including without •
limitation, all indebtedness, liabilities, and obligations of Licensee of every kind, nature
and description under this Agreement. Licensee hereby grants to Licensor a security
interest in all of Licensee's rights in and to the Tax Abatements as described in the
Development Agreement ( "Collateral "). The address of the Licensor, as secured parry, is
6301 Shingle Creek Parkway, Brooklyn Center, Minnesota 55430 -2199, Attn: Executive
Director.
The Licensee will defend the Collateral against all claims or demands of all
persons (other than the Licensor) claiming the Collateral or any interest therein. The
Licensee will not change its state of registration unless the Licensor has been given at
least 30 days prior written notice thereof and the Licensee has executed and delivered to
the Licensor such Financing Statements and other instruments required or appropriate to
continue the perfection of the Licensor's security interest. The Licensee agrees that from
time to time, at its expense, it will promptly execute and deliver all further instruments
and documents, and take all further action, that may be necessary or that the Licensor
may reasonably request, in order to perfect and protect the security interest granted or
purported to be granted hereby or to enable the Licensor to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. The Licensee hereby authorizes
the Licensor to file one or more Financing Statements or continuation statements in
respect thereof, and amendments thereto, relating to all or any part of the Collateral
without the further consent of the Licensee where permitted by law. At any time after the
occurrence of any default under this Agreement, until such default is cured to the
satisfaction of the Licensor, the Licensor may (but need not), in the Licensor's name or in
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•
Licensee's name., execute and deliver proofs of claim, receive all such monies, endorse
checks and other instruments representing payment of such monies, and adjust, litigate,
compromise or release any claim against the issuer of any such policy. Upon the
occurrence of a default under this Agreement and at any time thereafter until the default
is cured to the reasonable satisfaction of the Licensor, the Licensor may exercise and
enforce any and all rights and remedies available upon default to a secured party under
the Uniform p
Commercial Code. Upon the
occurrence of such a default and at any time thereafter until the default is cured to the reasonable satisfaction of the Licensor, the
Licensor may notify any person obligated on any Collateral that the same ha ve been
assigned or transferred to the Licensor and that the same should be performed as
requested by, or paid directly to, the Licensor, as the case may be. The Licensee shall
join in giving such notice, if the Licensor so requests.
15. Costs Licensee shall indemnify Licensor against all costs and charges (including
legal fees) lawfully and reasonably incurred in enforcing any covenant or agreement of Licensee
hereunder or in enforcing any payment of any charges or in obtaining possession of the Licensed
Premises after default of Licensee.
16. Right to Perform If Licensee shall fail to perform any covenant or agreement
hereunder, Licensor shall have the right, but not the obligation, to perform the same and charge
the cost thereof to Licensee, which charge shall bear interest at the rate equal to the lesser of 1.50
percent per month or the maximum rate permitted by applicable law.
17. No Interest in Real Estate No Encumbrances. Nothing contained in this
Agreement shall be deemed to create an interest or estate in the Licensed Premises or the Center
Property in favor of Licensee (including, without limitation, any leasehold interest, equitable
purchase right, easement, lien, interest or right, u g contract right or other interest), and the only right
.
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n
licensee. Licensee shall not mortgage, encumber, .
of Licensee shall be that of a temporary
or the Center
an lien
hypothecate or create y , claim or charge against the Licensed Premises YP
Property, and any such attempt to do so shall be automatically null and void.
not assign, ledge or otherwise transfer or dispose of
18. Assignment Licensee may g � p that
. understood r it being or r p rivileges, or licenses granted hereunder, g
this Agreement o y g , p
this Agreement is a personal privilege to Licensee only. Licensor may transfer or assign,
whether by operation of law or otherwise, this Agreement or any rights or interest hereunder and
upon any such transfer or assignment Licensor shall be relieved of any and all obligations
hereunder.
19. Entire Agreement This Agreement contains the entire agreement between the
parties hereto with respect to the subject matter hereof, except as provided in the Development
Agreement and /or the Easement Agreement. No amendment, modification, or supplement hereto
shall be valid or binding unless set out in writing and executed by the parties hereto.
20. Successors Bound Except as otherwise provided herein, the covenants, terms,
and conditions contained herein shall apply to and bind the successors and assigns of the parties
hereto.
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The arties hereto have caused this Agreement to be executed and delivered as of the day •
P g
and year first above written.
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
BROOKLYN CENTER
By
Its Chairman
By
Its Executive Director
BROOKLYN HOTEL PARTNERS, LLC
By
Its
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2358282v9
Exhibit "A"
(Center Property Legal Description)
Tracts D and F, Registered Land Survey No. 1594, Hennepin
County, Minnesota.
•
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2358282v9
Exhibit "B"
(Hotel Property Legal Description)
Lot 1, Block 1, Brooklyn Farm 2 °d Addition, according to the plat
thereof on file and of record in the office of the Hennepin County
Registrar of Titles, Minnesota.
•
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Exhibit "C"
(Licensed Premises)
The "Licensed Premises" is that area designated as the 'Pedestrian Link Corridor Area' on the
HRA Tract as depicted below.
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2358282v9
EXHIBIT B •
QUIT CLAIM DEED
AND
TERMINATION OF DEVELOPMENT RIGHTS
Corporation Partnership or Limited Liability Company
to Corporation, Partnership or Limited Liability Compan
No delinquent taxes and transfer entered; Certificate
of Real Estate Value ( ) filed ( ) not required
Certificate of Real Estate Value No.
County Auditor
By
Deputy
STATE DEED TAX DUE HEREON: $1.65
Date: June 29, 2010
(Reserved for recording data)
FOR VALUABLE CONSIDERATION, Brooklyn Hotel Partners, LLC, a Minnesota limited
liability company ( "Grantor "), hereby conveys and quitclaims to Economic Development •
Authority of Brooklyn Center, a body corporate and politic organized and existing under the
laws of the State of Minnesota ( "Grantee "), the real property in Hennepin County, Minnesota,
described as follows:
Lot 2, Block 1, Brooklyn Farm 2nd Addition, according to the
recorded plat thereof on file and of record with office of the
Registrar of Titles in and for Hennepin County, Minnesota,
together with all hereditaments and appurtenances belonging thereto ( "Property ").
Grantor's delivery of this Quit Claim Deed and Termination of Development Rights and the
conveyance of title herein is made for the express purpose of relinquishing and conveying to
Grantee any and all interest of Grantor in and to the Property, including, without limitation, all
existing and future interests of Grantor in and to the Property under that certain Development
Agreement by and among Grantor, Grantee and City of Brooklyn Center, a Minnesota municipal .
corporation, dated October 23, 2006, as amended July 23, 2007, October 8, 2007, January 17,
2008 and June 29, 2010.
The Grantor does not know of any wells located on the described real property.
The consideration given for this conveyance is less than $500.
•
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2358282x9
Brooklyn Hotel Partners, LLC
By:
Its:
STATE OF MINNESOTA )
ss
COUNTY OF )
The foregoing instrument was acknowledged before me this o day of June, Brooklyn Hotel
the
the
Partners, LLC, a Minnesota limited liability company, on behalf of the company.
Notary Public
•
THIS INSTRUMENT WAS DRAFTED BY:
Briggs and Morgan, Professional Association (DGG)
2200 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
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2358282v9
EXHIBIT C
AMENDED AND RESTATED PARKING, ACCESS AND
PEDESTRIAN LINK EASEMENT AGREEMENT
This Agreement (this "Agreement ") is entered into by ECONOMIC DEVELOPMENT
AUTHORITY OF BROOKLYN CENTER, a Minnesota public body corporate and politic
("EDA"), THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY
OF BROOKLYN CENTER, a Minnesota public body corporate and politic ( "HRA "), and
BROOKLYN HOTEL PARTNERS, LLC, a Minnesota limited liability company ("Developer"),
as of June 29, 2010 (the "Execution Date ").
RECITALS:
A. HRA is the owner of certain land located in Henne in Count Minnesota which is
im roved and operated
b the EDA as the Earle Brown Herita e Center a conference and event
center
B. Develo er is the owner of certain land in Henne in Count Minnesota located
immediately ad to the Earle Brown Herita e Center which it reviousl ac wired from the
EDA and which it has developed and now operates as a hotel facilit .
C. EDA is the owner of certain unimproved land in Hennepin County, Minnesota located
i mmediately southerly of and adjacent to the hotel facilit roe owned by Develo er which
property is also to be developed at a future date for such puraoses as may be approved by the
City of Brooklyn Center and EDA
D. In order to pro vide for and facilitate the common use and oper ation of their respective
p roperties, HRA EDA and Develo er have reviousl entered into a certain Parkin Access and
Pedestrian Link Easement A reement dated Janu 17 2008 which A Bement was recorded in
the office of the Hennepin Cogply Registrar of Titles on Janu 23 2008 as Document No.
4464042 (the 'Basement A &reement "l
E. HRA EDA and the Develo er now wish to amend and restate the Easement A. reement
in its entiret ursuant to and in accordance with the terms hereof.
AGREEMENT:
HRA, EDA and Developer agree as follows:
1. Definitions
I.I. Center The "Center" shall mean the Earle Brown Heritage Center and the two
adjacent properties legally described as:
Tracts D and F, Registered Land Survey No. 1594, Hennepin
County, Minnesota, and
•
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Lots 1 and 2, Block 1, Brooklyn Farm 2 nd Addition, according to
the plat thereof on file and of record in the office of the Hennepin
County Registrar of Titles, Minnesota.
1.2. City The "City" shall mean the City of Brooklyn Center, a Minnesota municipal
corporation.
1.3. Conference tscilit comprising "Conference
Earle shall mean the
Center located d on g the H.RA
improvements
Tract.
1.4. Developer Tract The "Developer Tract" shall mean the property which is legally
described as:
Lot 1, Block 1, Brooklyn Farm 2 "d 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 Developer Tract are outlined and labeled "Developer Tract"
on the Site Plan. On the Execution Date the Owner of the Developer Tract is
Developer.
1.5. Development Agreement The "Development Agreement" shall mean that certain
Development Agreement dated October 23, 2006, as amended July 23, 2007,
October 8, 2007, January 17, 2008 and June 29, 2010, by and between EDA, City
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.
1.6. Driveway/Parkin Area The "Driveway/Parking Area" shall mean the Parking
Lot Area, the Shared Driveway Area — Developer/HRA and the Shared Driveway
Area — Developer/EDA.
1.7. Easement Agreement The, "Easement Ao Agreement"
s Agreement have the meaning as
ascribed in paragraph D of the Recitals
1.8. EDA Tract. The "EDA Tract" shall mean the property which is legally described
as:
Lot 2 Block 1, Brooklyn Farm 2"d d 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 EDA Tract is EDA.
1.9. Facility or Facilities A "Facility" or "Facilities" shall mean the Conference
Facility and /or the Hotel Facility.
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1.10. Hotel Facility The Hotel Facility" buildin g and improvements shall mean the P rovements of
the hotel constructed and located by Developer on the Developer Tract in
accordance with and pursuant to the terms of the Development Agreement.
1.11. 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 boundaries of the HRA Tract are'outlined and labeled "HRA
Tract" on the Site Plan. On the Execution Date the Owner of the
HRA Tract is HRA.
1.12. License Agreement "License Agreement shall mean any license agreement,
occupancy agreement or other right or permission granted from time to time by
the Owner of the HRA Tract in favor of a Person for the right to use the
Pedestrian Link.
1.13. Occupant "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. •
1.14. 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 shall 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
undertakings set forth in this Agreement with respect to the portion of the Center
owned by it which 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 shall automatically become liable for all
obligations, performance requirements and amounts which arise subsequent to
compliance with the notice requirement.
1.15. Parking Lot Area The "Parking Lot Area" shall mean the portions of the HRA
Tract designated "Parking Lot Area" on the Site Plan.
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•
1.16. Pedestrian Link The "Pedestrian Link" shall mean the enclosed one - story,
ground level, climate controlled structure which may be installed and constructed
by EDA, at its election, on the HRA Tract and the Developer Tract in accordance
with and pursuant to the terms of the Development Agreement and 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).
1.17. Pedestrian Link Corridor Area The "Pedestrian Link Corridor Area" shall mean
the portions of the HRA Tract and the Developer Tract on which is located the
Pedestrian Link and designated "Pedestrian Link Corridor Area" on the Site Plan,
subject to such changes thereof as may be made by the Owner of the HRA Tract
in accordance with Section 4.2 hereof. The portion of the Pedestrian Link
Corridor Area located on the Developer Tract is legally described on Exhibit B .
1.18. Permittee " Permittee" shall mean all Occupants and the officers, directors,
employees, agents, contractors, customers, vendors, suppliers, visitors, invitees,
licensees, subtenants, and concessionaires of occupants insofar 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. 18.1 Exhibiting any placard, signs or notice.
. 1. 19.2 Distributing any circular, handbill, placard, or booklet.
1. 18.3 Soliciting memberships or contributions.
1. 18.4 Parading, picketing, or demonstrating.
1. 18.5 Failing to follow regulations relating to the use of the Center.
1.19. Person 'Person" shall mean any individual, partnership, firm, association,
corporation, trust, or any other form of business or government entity.
1.20. Shared Driveway Area — Developer/ED 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 described
on Exhibit C
1.21. Shared Driveway Area — Developer/HRA The "Shared Driveway Area —
Developer/HRA" shall mean the portion of the Developer Tract designated
"Shared Driveway Area — Developer /HRA" on the Site Plan and legally described
on Exhibit D
1.22. Site Plan The "Site Plan" shall mean the site plan which is attached to this
Agreement as Exhibit A .
1.23. Tract "Tract" shall mean any portion of the Center owned by an Owner.
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2. Term
This Agreement shall be effective as of the Execution Date and shall continue in full
force and effect until 11:59 p.m. on the date which is 30 years after the Execution Date;
provided, however, that this Agreement, and all restrictions and covenants contained in
this Agreement, shall be automatically extended on a year to year basis following such
date which is 30 years after the Execution Date unless any Owner notifies all other
Owners, by notice given at least 4 months prior to the end of any year, that it exercises its
option to prevent this Agreement from being so extended; and provided further that,
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,
all 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 shall not limit 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 P erformed under this Agreement prior to the date of such expiration.
3. Easements
3.1. Parkin The Owner of the HRA Tract, for itself and its successors and assigns,
hereby grants and conveys to the Owner of the Developer Tract for its use and for
the use of its Permittees, in common with others entitled to use the same, a .
perpetual, non - exclusive easement for the parking of 45 vehicles and the passage
of vehicles and pedestrians over and across the Parking Lot Area of the HRA
Tract. Such easement rights shall be subject to the following reservations and
agreements as well as other provisions contained in this Agreement:
3.1.1 The Owner of the HRA 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 Owner, so long as
such change, closing or construction does not unreasonably interfere with
any of the other easements granted herein, and further provided that all of
ions are met:
following i
the g condtt
3.1.1.1 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 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 HRA
Tract by applicable zoning and building ordinances, plus 45
additional parking spaces.
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i
• to Earl Brown Drive
3.1.1.3 No change shall be made m the access point
located at the Northwest corner 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
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 parking on the
Developer Tract, the Owner of the HRA Tract shall give written notice to
the Owner of the Developer Tract of its intention to do so, and shall
attempt to coordinate such closing with the Owner of the Developer Tract
so that no unreasonable interference shall occur.
3.1.3 The Owner of the HRA Tract 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 Parking Lot Area.
• 3.1.4 No Permittee shall 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
Developer Tract shall be limited to automobiles, motorcycles and pickup
trucks; no semitrailers, recreational vehicles, boats, trailers or large trucks
will be permitted to park in the Parking Lot Area; there shall be no
overnight parking, except that overnight parking shall be permitted on the
HRA Tract by Permittees of the Owner of the HRA Tract.
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 of the Developer Tract shall 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 time to time, which of the 45 parking spaces in the Parking Lot Area
are available for parking by Permittees of the Owner of the Developer
Tract, including the installation of signage deemed necessary or desirable
by the Owner of the HRA Tract.
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i
3
.2. Driv xav Easement Develo er/HRA
The Owner of the Developer Tract, for
itself and its successors and assigns, hereby grants and conveys to the Owner of
the HRA 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 Shared Driveway Area —
Developer/HRA. Such easement rights shall be subject to the following
reservations and agreements as wells as other provisions contained in this
Agreement.
3.2.1 The Owner of the Developer Tract may make minor changes and
improvements to the Shared Driveway Area — Developer/HRA without the
approval of the Owner of the HRA Tract, 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 Sha red Driveway Area Developer/HRA
is not unreasonably restricted or hindered.
3.2.1.2 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 HRA Tract being in violation of any governmental
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
er of the D
evelo er Tract shall deliver to the Owner of the
i �
Own p
HRA Tract copies of the plans therefor.
The Owner of the Developer Tract reserves the right to close off any
3.2'2
portion of the Shared Driveway Area - Developer/HRA for s uch
reasonable period of time as may be necessary to make needed repairs or
as may be legally necessary, in the opinion of such Own er's s coun
sel to
anyone; provided
've rights b , p
' ition of rescri t g Y Y
prevent the acquisition t
is prescriptive
however, that prior to closing off any portion of the Shared Driveway
Area — Developer[HRA, 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 the Owner of the HRA Tract
so that no unreasonable interference shall occur.
3.3. Driveway Easement — Develoner/ED The Owner of the Developer Tract, for
of
hereby rants and conveys to the Own
si ns he
successors and as Y g wi of
itself and its su g hers
use and the use of its Permittees, in common .
i
th e EDA Tract for its w
easement for the passage of
� a perpetual, P
entitled to use the same, p rp , non - exclusive easem
vehicles and pedestrians over and across the Shared Driveway Area —
Developer/EDA. Such easement rights shall be subject to the following
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reservations and agreements as well as other provisions contained in this
Agreement.
3.3.1 The Owner of the Developer 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 that all of the following
conditions are met:
3.3.1.1 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.
• 3.3.1.4 The Owner of the EDA Tract shall pay its share of the costs of
repairs, maintenance and replacement of the Shared Driveway
Area — Developer/EDA as provided in Section 6.1.1.
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; provided
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 The Owner of the Developer Tract, for itself and its successors
and assigns, hereby grants and conveys to the Owner of the HRA 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 pedestrians over and across
that portion of the Pedestrian Link Corridor Area located on the Developer Tract,
as legally described on Exhibit B, which portion of the Pedestrian Link on the
Developer Tract shall be used only as a pedestrian walkway. Such easement
rights shall be subject to the terms, agreements and provisions contained in this
Agreement. In the event the Owner of the HRA Tract does not substantially
•
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Link within five ears of the Execution
complete construction of the Pedestrian t Y
Date, the easements granted in Sections 3.4, 3.5 and 3.6 hereof shall expire and
terminate upon one hundred twenty days' prior written notice given by the Owner
of the Developer Tract to the Owner of the HRA Tract following the expiration of
such five year period.
3.5. Access for Construction Developer, for itself, its successors and assigns, hereby
grants and conveys to the Owner of the HRA Tract, a perpetual, non - exclusive
access easement over and across such portions of the Developer Tract as is
reasonably necessary for the Owner of the HRA Tract (or EDA, as its designee) to
construct and /or reconstruct the Pedestrian Link in accordance with and pursuant
to the terms of the Development Agreement.
3.6. Ge neral Access for Operation Maintenance Repa and Removal Developer,
for itself and its successors and assigns, hereby grants and convey to the Owner
of the HRA Tract a perpetual, non - exclusive easement over the Developer Tract
for the purposes of access to the Pedestrian Link and the operation, repair,
maintenance and removal of any of the Pedestrian Link improvements which are
located on the Developer Tract.
3.7. Access to Certain Buildings Developer, for itself and its successors and assigns,
hereby grants and conveys to the Owner of the HRA Tract a perpetual, non -
exclusive easement over any portion of the Developer Tract which is located
within 10 feet of a building on the HRA Tract, if any, for the purpose of access to
and repairing and /or maintaining the exterior of such building (including, without
limitation, the Pedestrian Link); however, the existence of this easement shall not
prohibit or restrict Developer from constructing buildings, structures or other
improvements within such 10 foot area in accordance with all applicable codes
and laws, in which case the HRA's easement shall not apply to the extent such 10
foot area is occupied by a building, above -grade structure or other improvement.
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 shall not
prohibit the granting or dedicating of utility easements by an Owner on its Tract
to governmental or quasi - governmental authorities or to public utilities; and
provided further, that any Owner may grant a private utility easement to any
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. Pedestrian Link
4.1. Desi n. In the event the EDA elects to construct or reconstruct the Pedestrian
Link, the same shall be designed and constructed in accordance with and pursuant
to the plans and specifications approved by EDA and /or the City in their sole and
absolute discretion.
•
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• 4.2. Modifications The Owner of the HRA Tract may make any changes,
modifications or alterations to the Pedestrian Link as it deems necessary or
desirable, provided however that once the Pedestrian Link is constructed no
change shall be made by the Owner of the HRA Tract in the access doorway
location between the Pedestrian Link and the Hotel Facility without the consent of
the Owner of the Developer Tract. Such changes, modifications or alterations of
the Pedestrian Link by the Owner of the HRA Tract may include, without
limitation, the alteration, modification or relocation of the Pedestrian Link and /or
Pedestrian Link Corridor Area. No change, modification or alteration in the
Pedestrian Link or the location of the Pedestrian Link Corridor Area may be made
by Developer without the prior approval of the Owner of the HRA Tract, which
approval may be granted or withheld in the sole and absolute discretion of the
Owner of the HRA Tract. The Owner of the Developer Tract shall have the right,
subject to all applicable laws and the easements and agreements described in this
Agreement, to design and construct or expand existing structures on its Tract
(other than the Pedestrian Link), provided, however, that any structure so
constructed or expanded shall not be located in the Pedestrian Link Corridor Area,
and at a minimum, any such structure so constructed or expanded shall allow for
the repair, maintenance and operation of the Pedestrian Link as contemplated
hereby. In the event that the Owner of the Developer Tract constructs or expands
such a structure on its Tract with the approval of the Owner of the HRA Tract
which necessitates an alteration in a previously constructed portion of the
Pedestrian Link, any Pedestrian Link alteration shall be solely the expense of the
Owner of the Developer Tract.
4.3. Certain Operations The Owner of the HRA Tract shall be responsible for locking
and unlocking all doors located in the Pedestrian Link. Such doors shall be
locked at such times as HRA deems appropriate in its sole discretion. The
Pedestrian Link shall have passage doors into the Hotel Facility. Said doors shall
remain closed ( passage assa other than to allow e of pedestrians, or in the event of
emergencies) to avoid interference with efficient and proper operation of the
heating, ventilating and air conditioning systems located within and /or serving the
Pedestrian Link. The Owner of the HRA Tract shall be responsible for security in
the portion of the Pedestrian Link located on its Tract. In the event the Owner of
the HRA Tract grants one or more License Agreements, the use of the Pedestrian
Link by the Permittee (licensee) thereof shall be subject to the terms, provisions
and conditions of the applicable License Agreement, as well as such rules,
regulations and restrictions for the use thereof as the Owner of the HRA Tract
may from time to time, in its sole and absolute discretion, determine. The Owner
of the HRA Tract reserves the right at any time and from time to time to exclude
and restrain any Person who is not a Permittee authorized by the Owner of the
HRA Tract to use the Pedestrian Link from using the Pedestrian Link Corridor
Area or any portion thereof.
4.4. Utilities Any and all 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 by the Owner of the
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air all
HRA Tract. The Owner of the HRA Tract shall operate, maintain and repair
utilities, services and systems serving the Pedestrian Link, as well as all
equipment used to monitor such utilities, services and systems, if any, and the
costs of such operation, maintenance and repair shall be paid by the Owner of the
BRA Tract.
4.5. Ownership At all times title to the Pedestrian Link shall EDA of the
HRA Tract, its successors and assigns, or at such owner's election, t
4.6. Casualt . 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
may be repaired and restored by the Owner of the HRA Tract, at its sole election .
and without obligation to so repair or restore the same, provided however, in the
event such Owner elects not to repair and restore damaged or destroyed
improvements located in that portion of the Pedestrian Link which connects the
Hotel Facility and the building known and referred to as "Building D" on the
HRA Tract, and such damage or destruction prevents pedestrian access in said
portion of the Pedestrian Link, then, such portion of the Pedestrian Link located
on the Developer Tract shall be removed by the owner of th of such act destruction.
th e
D Tract within twelve (12) months of t occurrence
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 th e
Owner thereof does not rebuild or restore such Facility as provided in subsection
7.2 (c) (the non - rebuilding Owner "), the non - rebuilding Owner shall also •
perform the same work [including removal of the Pedestrian Link (or such portion
thereof as the Owner of the affected Tract may elect) and ground area restoration]
on the Tract of the other Owner and restore the other Owner's Facility to a
complete architectural unit at the non- rebuilding Owner's sole cost and expense.
The Pedestrian Link Corridor Area easement or on he De substantial destruction the
al
terminate only in the event of the demolition stru that c ti on n Owner
Conference Facility or the Hotel Facility, provided, however,
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 on
the Developer Tract created herein shall remain in full force and effect. The
rebuilding or restoring Owner 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 from the date of demolition or
destruction, the easement granted herein over the Pedestrian Link Corridor Area
on the Developer Tract shall terminate on the second anniversary of the
•
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demolition or destruction unless otherwise agreed to by the Owners of the HRA
Tract and the Developer Tract.
4.7. License Agreement Notwithstanding anything herein to the contrary, the Owner
of the HRA Tract may, pursuant to a License Agreement, provide that certain
costs and expenses herein described relating to the Pedestrian Link be paid by a
Permittee (licensee) pursuant to the License Agreement.
5. Demolition and Construction
5.1. General Requirements 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
improvements constructed within the Center. Each Owner further agrees that
neither its demolition nor its construction activities shall do any of the following:
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
government, or any department or agency of any of them.
5.2. Pedestrian Link Construction In the event the EDA elects to construct or
reconstruct the Pedestrian Link, the EDA shall be responsible for the construction
of the Pedestrian Link in accordance with and pursuant to the terms of the
Development Agreement.
5.3. Indemnity Each Owner agrees to defend, indemnify and hold harmless each
other Owner from all 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 indemnifying Owner, except to the extent claims in respect
thereto are 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 Responsibility for Maintenance
6. 1.1 Except as may be expressly provided otherwise in this Section 6, each
Owner shall repair and maintain all of the portions of the
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Parking/Driveway Area located on its Tract. Such maintenance shall
include keeping, and each Owner hereby covenants and agrees to keep, all
of the portions of the Parking/Driveway Area 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
shall be performed at such Owner's sole expense, except as may be
expressly provided otherwise in this Agreement. Notwithstanding the
foregoing to the contrary, at such time as the Owner of the EDA Tract has
completed the development of the same by the construction of building
improvements on the EDA Tract, a
nd
the Owner thereof commences use
of the Shared Driveway Area — Develop er/EDA , the Owner of the EDA
i
Owner of the Developer Tract o ne -half the cost
Tract shall reimburse the Own P
of maintenance and repair of the said Shared Driveway Area —
Developer/EDA, thereafter arising. In the event the cost reimbursement
p
le the reimbursement
described in the receding sentence is applicable, p
payments shall be made by the Owner of the EDA Tract within 20 days of
Owner of
the Developer Tract of a statement therefor,
submission b the Own p ,
Y
detail and explanation of such costs and
accompanied by a reasonable d p
expenses, including copies of bills, contracts and statements, and an
itemization of all the charges of the Owner of the Developer Tract for use
of its own employees. Failure by
the Owner of the EDA Tract
to make
timely payment shall result in a lien in favor of the Owner of the
Developer Tract on the EDA Tract in the same manner and pursuant to the •
same provisions as provided in Section 14 hereof for cure of a default.
6.1.2 The Owner of the HRA Tract shall repair and maintain the Pedestrian
Link, if constructed, in good order, condition and repair, provided that the
costs and expenses of the operation, maintenance, repair and replacement
of the Pedestrian Link may be shared in accordance with and pursuant to
any applicable License Agreement entered into by the Owner of the HRA
Tract.
6.2. Standards for Maintenance The minimum standard of maintenance for the
Parking/Driveway Area and the Pedestrian Link (if constructed) 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 improvements shall be repaired or replaced with
materials at least equal to the original quality of the materials being repaired or
replaced. The maintenance and repair obligation for the Parking/Driveway Area
in any event shall include but not be limited to the following:
6.2.1 Road Driveway 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.
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6.2.2 Debris and refuse 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.
6.23 Sign and markers Placing, keeping in repair, replacing and repainting any
appropriate directional signs or markers.
6.2.4 _Lighting Operating, keeping in repair, cleaning and replacing when
necessary any lighting facilities.
6.3. Payment for Negligence Notwithstanding the provisions of subsection 6.1
(entitled "General 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 (if constructed) is damaged or
destroyed as a result of the negligence or willful misconduct by an 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 is responsible for the repair thereof for the reasonable
cost of the repair of such damage or destruction.
6.4. General Easement Repair Provisions In addition to any other provisions of this
Agreement, any Owner entering another Owner's Tract to perform maintenance or
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 provisions for
reimbursement which may be expressly contained in this Agreement; (c) the
Owner performing such repair and maintenance shall 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 Parking 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 Parking Lot Area. For
purposes of this Section 6.5, the "proportionate share" of the Owner of the
Developer Tract, shall 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
Developer 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
costs and expenses, including copies of bills, contracts and statements, and an
itemization of all the charges of the Owner of the HRA Tract for use of its own
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e Developer •
employees. Failure by the Owner of th er Tract to make timely payment p
shall result in a lien in favor of the Owner of the HRA 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. Building Improvements
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 all
governmental laws, rules, regulations, orders, and ordinances exercising
jurisdiction thereover.
7.2. Ci sualt . In the event any of the building improvements are damaged by fire or
other casualty (whether insured or not), or if a building on a Tract 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 shall either (a)
repair or restore the building improvements so damaged or demolished, or (b)
erect other building 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 foregoing alternatives to perform, but such Owner shall be
obligated to perform one of such alternatives. •
8. [Intentionally Omitted]
9. Insurance
9.1. Liability Insurance Each Owner shall maintain or cause to be maintained in full
force and effect with respect to its Tract Commercial General Liability Insurance
in the amount of at least $1,000,000 per occurrence, $2,000,000 aggregate for
bodily or personal injury or death and for property damage, and umbrella liability
in the amount of $5,000,000. Such insurance shall include a provision for
severability of interests.
9.2. Casualty Insurance The Owner of the HRA Tract shall be responsible for
maintaining casualty insurance coverage for the Pedestrian Link, if constructed.
9.3. Indemnity Subject to the provisions of subsection 9.4 (entitled "Waiver of
Subrogation "), each Owner ( "Indemnitor ") covenants and agrees to indemnify,
defend and hold harmless each other Owner ( "Indemnitee ") from and against all
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 any Person, which
shall be caused by the negligence or willful act of such Indemnitor or its
contractors, agents, servants, or employees.
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9.4. Waiver of Subrogation 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 damage to all 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, irrespective either of any negligence on the part of the
Released Owner which may have contributed to or caused such loss, or 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 g iven p ursuant to this
subsection.
9.5. General Requirements 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.
10. Taxes and Assessments
•
Each Owner shall be responsible for paying all taxes and assessments relating to its Tract,
improvements located thereon and an personal property owned or
the buildings and impro � Y
leased by such Owner in the Center.
11. Liens
In the event any mechanic's lien is filed against the Tract of one Owner as a result of
services performed 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 harmless 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 discharge; if the Owner for whose
benefit such services were performed or materials were furnished 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
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•
the Owner for whose benefit such services were perf ormed or materials were furnished
shall immediately upon demand reimburse 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 shall promptly pay in full the required amount, together with any interest,
penalties, costs, or other charges necessary to release such lien. Notwithstanding
anything herein to the contrary, the cost of the initial construction of the Pedestrian Link,
and any liens resulting therefrom, shall be fully paid by Developer as provided in the
this Agreement to
tandin an g
Development Agreement. Notwithstanding any of p
contrary, Developer shall indemnify, defend and hold harmless HRA and the HRA Tract
from all mechanics' liens, claims, actions, proceedings and costs incurred in connection
therewith (including reasonable attorneys' fees and costs of suit) resulting from the
construction an
d installation of the Pedestrian Link, and any warranty work p erformed by
or under Developer, on the HRA Tract.
i 12. Consents
Unless expressly provided otherwise in this Agreement, whenever consent is required in
this Agreement, such consent shall not be unreasonably withheld or delayed. Unless
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 deemed 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 contained 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 Owner, unless 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 of 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 shall 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
rights improvements to a useful condition, and (b) if the taking easement includes e S
hts w
hich .
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Agreement, the
are intended to extend beyond the term of this portion of the award p
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 Agreement which does not reduce or
diminish the amount paid to the Owner owning the land or the improvement taken, then
the owner of such other property interest shall have the right to seek an award for the
taking of such interest. Notwithstanding the foregoing to the contrary, any award for the
taking of the Pedestrian Link or any portion thereof, if constructed, irrespective of who
owns the land on which the taken Pedestrian Link or portion thereof is located, shall be
the sole and exclusive property of the Owner of the HRA Tract.
14. Default
14.1. Force Majeure The time within which any Owner to this Agreement is required
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 provision, 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
excused acts in good faith and uses due diligence to perform. The inability to
t constitute Force Majeure.
financing or lack of move J
obtain finan g Y shall no
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 shall 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 pursues such cure to
completion. The 30 day notice period shall not be required if, using reasonable
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 shall 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, across and under any and
all parts of the Defaulting Owner's Tract for all purposes reasonably necessary to
enable the Non - Defaulting Owner (or its agents, contractors or subcontractors) to
perform any of the terms, provisions, covenants or conditions of this Agreement
that the Defaulting Owner is obligated to perform but has failed to perform after
. notice and the opportunity to cure pursuant to this subsection.
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14.3. Reimbursement
of Costs to Cure, 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 shall have the right, but not the
obligation, to record its lien, but at all times its lien pursuant to this subsection
shall be subject and subordinate to (a) the lien of any mortgage or deed of trust
held by any institutional lender, or any extension, renewal, modification or
refinancing thereof, on the Defaulting Owner's Tract; (b) the leasehold estate
created by any lease of all or any part of the Defaulting Owner's Tract; (c) any
other lien of record against the Defaulting Owner's Tract as of the date that the
Non - Defaulting Owner's lien is recorded. The Defaulting Owner shall execute
such instruments 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 governing 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
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 Owner pursuant to this Agreement.
14.5. Interest Wherever and as often as one Owner shall 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 entitled 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 that are at, above, or below the
Reference Rate.
14.6. Minimization of Damages In all situations arising out of this Agreement, all
Owners shall attempt to avoid and minimize the damages resulting from the
conduct of any other Owner. Each Owner shall take all reasonable measures to
effectuate the provisions of this Agreement.
14.7. Agreement Shall Continue Notwithstanding Breach It is expressly agreed that no
breach of this Agreement shall (a) entitle any Owner to cancel, rescind, or •
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0 otherwise terminate this Agreement, or (b) defeat or render invalid the lien of any
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 be sent postage
prepaid by either (a) United States certified mail, return receipt requested, or (b) for
delivery on the next business day with a nationally - 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
Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, Minnesota 55430 -2199
Attn: Executive Director
To HRA: The Housing and Redevelopment Authority
in and for the City of Brooklyn Center
6301 Shingle Creek Parkway
. Brooklyn Center, Minnesota 55430 -2199
Attn: Executive Director
To Developer: Brooklyn Hotel Partners, LLC
c/o Oliver Companies, Inc.
5629 Grand Avenue, Suite 2
Duluth, Minnesota 55807
Attn: Seth Oliver
Notices shall be deemed given as of the date such notice is postmarked, 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 permitted 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. Liability 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 of such limitations or an agreement by HRA or EDA to its increase or
. amend its limited liability as described in such statutes.
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•
1.6.2. Confirmation of Easements All easements granted unde r this Agreement shall
exist by virtue of this Agreement, without the necessity of confirmation 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 termination (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. Negation of Partnership 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 otherwise, 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 separate .
written instrument signed by the Owner to be charged.
16.4. Not a Public Dedicatio 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
portion of the Center or any Tract, to the general public or for any public use or
purpose whatsoever.
16.5. Entire Agreement: Enforceability 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 Agreemen t are enforceable. No other terms or oral
promises ises which are not in this Agreement may be legally enforced, and no
promises, 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 amendment of this Agreement shall be effective only
when recorded the county an
d 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
provisions 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
an of the
any right to enforce y provisions of this Agreement. p
16.7. Binding Effect: No Third Owner Benefic iaries. This Agreement shall both bind
and benefit the parties to this Agreement and their respective heirs, personal
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• representatives, successors and assigns who become Owners. The Owners do not
s si g
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 shall be construed as covenants 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 provision 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 subsequent breach or of
any other provision of this Agreement.
16.9. Time of the Essence Time is of the essence with respect to all matters provided
in This Agreement.
16.10. Severability The invalidity or unenforceability of one provision of this
Agreement will not affect the validity or enforceability of the other provisions.
16.11. Cations 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. Inte n2 g retation of "including" and da y . Wherever the word including is used in
.
this Agreement, or in any recital or exhibit to this Agreement, 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 "calendar
day[s]."
16.13. Counterparts 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 this Agreement.
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•
18. Amendment and Restatement
As of the Execution. Date, this Agreement amends and restates in its entirety the
Easement Agreement, and each of the parties hereto hereby releases, terminates and
extinguishes all of the easements described in the Easement Agreement except to the
extent such easements are regranted and restated in this Agreement. To the extent any
such easements are so released, terminated and extinguished, this Agreement shall
constitute a transfer and conveyance by the benefited owner of such released, terminated
and extinguished easements to the Owner of land on which such released, terminated and
extinguished easements are located.
[end of page]
•
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EDA, HRA and Developer have signed this Agreement below as of the Execution Date.
EDA
ECONOMIC DEVELOPMENT AUTHORITY
OF BROOKLYN CENTER,
By:
Its: President
And By:
Its: Executive Director
•
•
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HRA
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
BROOKLYN CENTER
By:
Its: Chairman
And By:
Its: Executive Director
•
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2358282v9
•
DEVELOPER
BROOKLYN HOTEL PARTNERS, LLC
By:
Its:
•
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•
ACKNOWLEDGEMENTS
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
This instrument was acknowledged before me on June _, 2010, by Tim Willson, the President,
Economic Development Authority Y of
and Cornelius L. Boganey, the Executive Director, of the p
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 June _, 2010, by Tim Willson, the Chairman,
and Cornelius L. Boganey, the Executive Director, 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 )
This instrument was acknowledged before me on June _, 2010, by , the
of Brooklyn Hotel Partners, LLC, a Minnesota limited liability company,
on behalf of the company.
Notary Public
My Commission Expires:
This Instrument was Drafted By:
Briggs and Morgan, P.A.
2200 IDS Center
80 South 8 Street
Minneapolis, MN 55402 -2157
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- N
E}r~#-1th3(i
A MITE PLAN
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DEVELOPER T RACT �
- -�
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Li i (j SROa:fiYlf FARtt D ADDITION
I StrARED DRIVEWAY AReA .� UiLul
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N EpA TRACT (�
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Exhibit B i
(Pedestrian Link Corridor Area located on Developer Tract — Legal Description)
An easement for pedestrian walkway purposes over and across that part of Lot 1., Block 1,
BROOKLYN FARM 2ND ADDITION according to the recorded plat thereof, Hennepin
County, Minnesota described as follows:
Commencing at the northeast corner of said Lot 1, Block 1; thence on an assumed bearing of
South 01 degree 23 minutes 22 seconds West, a distance of 209.50 feet to a southeast corner of
said Lot 1, Block 1; thence North 87 degrees 14 minutes 38 seconds West, along a south line of
said Lot 1, Block 1, a distance of 60. ] 6 feet to the point of beginning of the area to be described;
thence continuing North 87 degrees 14 minutes 38 seconds West, along a south line of said Lot
1, Block 1, a distance of 10.00 feet; thence North 02 degrees 42 minutes 56 seconds East a
distance of 12.00 feet; thence South 87 degrees 17 minutes 04 seconds East, a distance of 10.00
feet; thence South 02 degrees 42 minutes 56 seconds West a distance of 12.01 feet to the point of
beginning of the area described.
The location of said easement is depicted and referred to as the 'Pedestrian Link Corridor
Easement' on page B -2.
•
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2358282v9
SURVEY LEGEND — EXISTING CGND ] IONS rmrav4r"
_ s�ltt>5
-NE
W ...�_ <k ! -G.. r OLE CA.CY. BA IN —+^ —x FENCE R 1 ft at1 Brown enter
4
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$ WATER MANHOLE �. -- co— 1 CrINTOOR Bwcr:N*C .uw.a�«r
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HYDRANT C4 G
+ PG`iticR t�Ol£ A'E VTLV£': �
r <'Ar d&w.hn<e
F!N`:SHE:1 FLOOR ttf �'ATIDN r,r
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fT3fJ8SS x - ---- =— (3 POST INDICATOR VALVE ,4 Y
S iJI$8S l e — -- »
?rat c.
K f u £ semrrt u r" ' gg
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Yc tt+�' r _ J ; ; �
! A4, — _ SOCIASE5
` 1 i
W 13Cf.39-
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PedeSte;zn
Link
Corridor '/
£35eniei':i / J. , J , . w +� ' npV qr , s+" U
a
' 4 0 C N ,,•�'' 'A , J •v yssif �.. g Cu
O � r .r..... _
it
+j
sa. J , :• /. � / / �; i F ,%,.! r f � fPcF83S.5
Bullding 'G"
NORM
9eorings are 6nsed on
RLS N 1594 cod
the Fiat. of BROOKLYN
FA.4M 2ND A.D MON
Aenc.hmnik The Finished ttoor
Devotion. Of The Ernbaasy Stkee
Su;iding Fie aeon 849.9. Feet
(city (hot.rnr }, As Shown Hereon .. \ EaEeu;mt E:i:iE?<ta
(� 20 40 d P.r%t'_".IIWn LinkC,mi'iar AN!
(yA15i
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SCALE IN FEES' Of 1 o0
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00
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is 0 •
Exhibit C
(Shared Driveway Area — Developer/EDA Legal Description)
An easement for access purposes over and across that part of Lot 1, Block 1, BROOKLYN
FARM 2ND ADDITION, according to the recorded plat thereof, Hennepin County, Minnesota
described as follows:
Beginning at the southwest corner of said Lot 1, Block 1; thence east along the
south line of said Lot 1, Block 1, a distance of 310.00 feet; thence north at right
angles to the south line of said Lot 1, a distance of 25.00 feet; thence west, parallel
with the south line of said Lot 1 to the westerly line of said Lot 1; thence
southerly along said westerly line to the point of beginning of the easement
described.
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Exhibit D
(Shared Driveway Area — Developer/HRA Legal Description)
An casement for access fi
u oses over and across that part of Lot 1, Block 1, BROOKLYN
p
FARM 2ND ADDITION, according to the recorded plats thereof, Hennepin County, Minnesota
described as follows:
Beginning at the northeast corner of said Lot 1, Block 1; thence west along the
north line of said Lot 1, Block 1, a distance of 13.00 feet; thence south, parallel
with the east line of said Lot 1, Block 1, a distance of 209.50 feet, to the south line
of said Lot 1, Block 1; thence east along the south line of said Lot 1, Block 1, a
distance of 13.00 feet to the Southeast corner of said Block 1; thence north along
the east line of said Lot 1, Block I to the point of beginning of the easement
described.
•
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2358282v9
Lender Consent
The undersigned, The Prudential Insurance Company of America, a New Jersey
corporation, as the holder and owner of the mortgagee's interest in and to that certain Mortgage,
Assignment of Leases and Rents, and Financing Statement, recorded on January 23, 2008 in the
office of the Hennepin County Registrar of Titles as Document Nos. 4464044, 4464045 and
4464046, respectively (collectively, the "Mortgage "), hereby consents to the execution, delivery
and recording of the Amended and Restated Parking, Access and Pedestrian Link Easement
Agreement attached hereto (the "Easement Agreement "), and hereby agrees that all of its
interests in and to the real property described in the Mortgage is and shall be subject to the terms
and provisions of the Easement Agreement and the easements described therein.
The Prudential Insurance Company of America
By:
Its:
•
State of )
ss.
County of )
On , 2010, before me, a notary public in and for said County and State,
appeared , the of The Prudential Insurance
Company of America, a New Jersey corporation, who executed the foregoing on behalf of said
bank and who acknowledged to me that he /she signed the same for the purposes therein stated.
Notary Public
My commission expires:
•
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•
EXHIBIT D
FIRST AMENDMENT TO LEASE
This First Amendment to Lease (this "Amendment ") is made and entered into as of
June 29, 2010, by and between Economic Development Authority of Brooklyn Center, a
body corporate and politic organized and existing under the laws of the State of Minnesota
( "Landlord "), and Brooklyn Hotel Partners, LLC, a Minnesota limited liability company
( "Tenant ").
Recitals:
A. Landlord, as Landlord, and Tenant, as Tenant, entered into a certain Lease dated
November, 2007 (the "Lease "), which Lease covers approximately 4,100 square feet of premises
located in Building D of the Earle Brown Heritage Center in Brooklyn Center, Minnesota.
B. Landlord and Tenant desire to amend the Lease to provide for a definitive
commencement and expiration date for the term of the Lease and to revise the description of the
leased premises, and to provide for a payment by Tenant to Landlord to reimburse Landlord for
i certain lost revenues.
Agreements:
In consideration of the foregoing premises, the mutual covenants and promises
hereinafter set forth, and other good and valuable consideration, Landlord and Tenant hereby
agree as follows:
1. Recitals; Defined Terms The foregoing recitals are true and correct and are
incorporated herein by reference. Capitalized terms not defined in this Amendment shall have the
same meaning ascribed to such terms in the Lease.
2. Lease Date The date of the Lease is hereby confirmed to be November 1, 2007.
3. Demised Premises The Demised Premises is hereby amended to describe and
include only a portion of the building known as 'Building D," more specifically identified on
Exhibit A attached hereto, consisting of approximately 3,265 square feet and located within the
complex known as the Earle Brown Heritage Center ( "Center ").
4. Term Commencement Date The Term Commencement Date shall be the date
as established pursuant to Section 5 of this Amendment.
5. Section 2.2 — Term Commencement;. Term Termination The term of the
Lease shall commence on the first day of the calendar month following written notice from
Landlord to Tenant that the 'Pedestrian Link" is substantially completed and ready for use, as
i
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2358282v9
evidenced by the issuance by the City of Brooklyn Center of a certificate of occupancy therefor.
The Lease shall expire ten (10) years after such first day of the calendar month following such
notice, subject to extension as provided in Section 2.3 of the Lease (the " Term Expiration Date "),
unless sooner terminated as provided in the Lease. For purposes hereof, "Pedestrian Link" shall
mean and refer to that certain pedestrian link referred to as the "Connection" in that certain
Development Agreement by and between Landlord, the City of Brooklyn Center and Tenant
dated October 23, 2006, as amended. In the event the Pedestrian Link is not substantially
completed and ready for use, as evidenced by the issuance by the City of Brooklyn Center of a
certificate of occupancy anc therefor, on or before the anniversary fifth
of the date of this
Amendment, the Lease shall automatically terminate and shall become null and void.
6. Correction of Typographical Error Section 14.3 of the Lease is hereby
amended and renumbered 13.3. There is no Article IV in the Lease.
7. New Section 13.4 The following new section is hereby added to the Lease:
13.4 Right of Set -off and Security Agreement
(a) In addition to all other remedies available to Landlord as provided in this
Lease, upon a default by Tenant of any of Tenant's payment obligations to Landlord
under this Lease (whether the payment of rent or otherwise), Landlord may (and
notwithstanding any other provision of this Lease to the contrary), without notice to
Tenant, cause the City of Brooklyn Center ( "City ") to set -off the amount of such
delinquent payment (for the account of Landlord) against amounts which are or may •
become due and owing by the City to Tenant as "Tax Abatements" as described in and
pursuant to that certain Development Agreement by and among Landlord, Tenant and
City dated October 23, 2006, as amended July 23, 2007, October 8, 2007, January 17,
2008 and June 29, 2010 (as amended, the "Development Agreement ").
(b) In order to secure the prompt payment and performance of all obligations of
Tenant to Landlord under this Lease now or hereafter arising, including without
limitation, all indebtedness, liabilities, and obligations of Tenant of every kind, nature
and description under the Lease Agreement. Tenant hereby grants to Landlord a security
interest in all of Tenant's rights in and to the Tax Abatements as described in the
Development Agreement ( "Collateral "). The address of the Landlord, as secured party, is
6301 Shingle Creek Parkway, Brooklyn Center, Minnesota 55430 -2199, Attn.: Executive
Director.
The Tenant will defend the Collateral against all claims or demands of all persons
(other than the Landlord) claiming the Collateral or any interest therein. The Tenant will
not change its state of registration unless the Landlord has been given at least 30 days
prior written notice thereof and the Tenant has executed and delivered to the Landlord
such Financing Statements and other instruments required or appropriate to continue the
perfection of the Landlord's security interest. The Tenant agrees that from time to time,
at its expense, it will promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary or that the Landlord may reasonably
request, in order to perfect and protect the security interest granted or purported to be
i
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2358282v9
granted hereby or to enable the Landlord to exercise and enforce its rights and remedies
hereunder with respect to any Collateral. The Tenant hereby authorizes the Landlord to
file one or more Financing Statements or continuation statements in respect thereof, and
amendments thereto, relating to all or any part of the Collateral without the further
consent of the Tenant where permitted by law. At any time after the occurrence of any
default under the Lease Agreement, until such default is cured to the satisfaction of the
Landlord, the Landlord may (but need not), in the Landlord's name or in Tenant's name,
execute and deliver proofs of claim, receive all such monies, endorse checks and other
instruments representing payment of such monies, and adjust, litigate, compromise or
release any claim against the issuer of any such policy. Upon the occurrence of a default
under the Lease Agreement and at any time thereafter until the default is cured to the
reasonable satisfaction of the Landlord, the Landlord may exercise and enforce any and
all rights and remedies available upon default to a secured party under the Uniform
Commercial Code. Upon the occurrence of such a default and at any time thereafter until
the default is cured to the reasonable satisfaction of the Landlord, the Landlord may
notify any person obligated on any Collateral that the same have been assigned or
transferred to the Landlord and that the same should be performed as requested by, or
paid directly to, the Landlord, as the case may be. The Tenant shall join in giving such
notice, if the Landlord so requests.
8. Certain Payment On the date hereof Tenant has paid to Landlord $72,181
representing certain lost revenues arising from the adjustment of the Commencement of the
. Term of the Lease as herein provided.
9. Full Force and Effect Except as expressly amended by this Amendment, the
Lease will remain in full force and effect in accordance with its terms, provisions and conditions.
10. Governing Law This Amendment shall be governed by and construed in the
same manner as .provided in the Lease.
11. Counterparts This Amendment may be executed in counterparts and all such
executed counterparts shall constitute the same agreement. It shall be necessary to account for
only one such counterpart in proving this Amendment. Facsimile signatures shall be deemed
original signatures for all purposes.
[end of page]
•
D -3
2358282x9
Landlord and Tenant have caused this Amendment to have been duly executed and
delivered as of the day and year first above written.
Landlord: Economic Development Authority of
Brooklyn Center
By
Its President
And By
Its Executive Director
•
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2358282v9
•
Tenant: Brooklyn Hotel Partners, LLC
By
Its
DRAFTED BY:
Briggs and Morgan, P.A. (DGG)
2200 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402 -2157
Telephone: (612) 977 -8400
D -5
2358282x9
Exhibit A •
Demised Premises
That part of the structure known as 'Building D" and /or the "D Barn" shown and depicted as the
hatched area on the site plans attached, which 'Building D" is located upon the following
described real property:
Tract F, Registered Land Survey No. 1594, Hennepin County, Minnesota.
•
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•
i
A
O
n
a
a
I i I u
i
`\ D BARN
EBHC LINK TO EMBASSY SUITES
BROOKLYN CENTER, MN
Blumentals /Architecture Inc. 07/09/09
D -7
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3 :
i
I
L
•
1
v /
t� f.
i
D BARN , - Level 2
. ................ EBHC LINK TU EMBASSY SUITES
BROOKLYN CENTER, MN
Blurnentals Architecture Inc. 05/27/2010
r
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2358282x9
•
EXHIBIT E
SECURITY INTEREST SUBORDINATION AGREEMENT
Subordination Agreement this his Security Interest S "Agreement") is made effective as g ( g
of the 29 day of June 2010 b and between Hurlbut - Zeppa Charitable Trust AR, a Minnesota
charitable remainder trust, by Alan Zeppa, the sole trustee ( "Lender "), and the City of Brooklyn
Center, a Minnesota municipal corporation (the "City "), the Economic Development Authority
of Brooklyn Center, a body corporate and politic organized and existing under the laws of the
State of Minnesota (the "EDA ") and The Housing and Redevelopment Authority in and for the
City of Brooklyn Center (the "HRA ").
RECITALS
A. Pursuant to a Development Agreement dated October 23, 2006 by and between
the City, the EDA and Brooklyn Hotel Partners, LLC, a Minnesota limited liability company
( "Developer "), as amended July 23, 2007, October 8, 2007, January 18, 2008 and June 29, 2010
(as amended, the "Development Agreement "), the City has agreed to make certain tax abatement
is conditioned upon, and in accordance
Abatement Payments") P
payments to the Developer (Tax yin )
pa Y P
f the Development Agreement.
terms and conditions o g
with the P
B. The Developer has previously assigned the Tax Abatement Payments, and granted
that certain Assignment of
r of Lender pursuant 1 �
a security interest therein, to and in favor p ( ) t
Y
Right to Receive Tax Abatement Payments dated January 18, 2008 by and between the
Developer and the Lender (the "Assignment "), and (2) that certain Security Agreement dated
��
2008 b and between the Developer and the Lender (the Security Agreement").
January 18, y p
C. The Developer has previously entered into: (1) a certain lease dated November,
2007 with the EDA for the leasing of space in the Earle Brown Heritage Center (the "Center ") as
amended June 29, 2010 (as amended, the "Lease "), and (2) a certain License Agreement with the
HRA dated June 29, 2010 (the "License ") for the use of an enclosed pedestrian link located in the
Center, if and when constructed by the City or the EDA.
D. Pursuant to the Lease and the License the Developer has agreed to make certain
payments and reimbursements to the EDA and the HRA, which payment obligations are secured
by (1) a right of set -off b y y the City for the account of the EDA and/or the HRA, as applicable,
against the Tax Abatement Payments, and (2) a security interest i n the Tax Abatement Payments
all as further set forth
and described in the Lease and the License.
E. In order to induce the EDA to enter into an amendment to the Lease of even date
herewith and in order to induce the HRA to enter into the License, Lender has agreed to
subordinate its assignment rights and security interest in the Tax Abatement Payments to the
right of set -off and the security interest in the Tax Abatement Payments granted to the EDA and
the HRA in the Lease and the License in accordance with the terms of this Agreement.
E-1
2358282v9
AGREE
MENTS •
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged; the parties hereto agree as follows:
1. The Lender hereby agrees that, regardless of any priority otherwise available to
the Lender by law or by agreement, any security interest which the Lender now or may have at
any time hereafter in the Tax Abatement Payments together with all products and proceeds
thereof, is, and shall be, and shall remain subordinate for all purposes to: (a) the right of set -off
granted by the Developer to the EDA and the HRA in the Lease and the License, respectively,
and (b) any security interest in the Tax Abatement Payments now held or at any time thereafter
granted to or acquired by the EDA and /or the HRA to secure the payment obligations of the
Developer under the Lease and /or the License.
Lender hereby consents to the rant b the Developer of a security interest in
2. The Le Y P
Y g
the Tax Abatement Payments to the EDA and the HRA as collateral security for the Developer's
payment obligations under the Lease and the License.
3. Lender hereby agrees that after written notice to the Lender from the EDA and /or
the HRA of the occurrence of a default by the Developer of its obligations under the Lease
and/or the License, the Lender will not exercise any collection rights with respect to the Tax
Abatement Payments, will not take possession of the Tax Abatement Payments, and will not
exercise or enforce any right or remedy which may be available to the Lender with respect to the
Tax Abatement Payments without the prior written consent of the EDA and the HRA. •
4. The Lender warrants that any purchaser or transferee of, or successor to, any
security interest of the Lender in any or all of Tax Abatement Payments will be given detailed
written notice of the subordination accomplished hereby, prior to the time of purchase, transfer
or succession.
5. All notices given under this Agreement shall be in writing and shall be sent
postage prepaid by either (a) United States certified mail, return receipt requested, or (b) for
delivery on the next business day with a nationally - 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
Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, Minnesota 55430 -2199
Attn: Executive Director
To HRA: The Housing and Redevelopment Authority
in and for the City of Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, Minnesota 55430 -2199
Attn: Executive Director
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2358282v9
To City: City of Brooklyn Center
6301 Shingle Creek Parkway
Brooklyn Center, Minnesota 55430 -2199
Attn: City Manager
To Lender: Hurlbut -Zeppa Charitable Trust, AR
222 East Superior Street, Suite 302
Duluth, Minnesota 55802
Attn: Tony Cuneo
Notices shall be deemed given as of the date such notice is postmarked, 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 permitted 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.
6. This Agreement is made under the laws of the State of Minnesota. It cannot be
waived or changed or terminated except by a writing signed by the parties to be bound
hereunder. It shall be binding upon the Lender and its successors, representatives and assigns.
[end of page]
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2358282v4
HURLBUT ZEP PA CHARITABLE TRUST AR •
By
Alan Zeppa, the sole trustee
CITY OF BROOKLYN CENTER.
By
Its: Mayor
By
Its: City Manager
ECONOMIC DEVELOPMENT AUTHORITY OF
THE CITY OF BROOKLYN CENTER
By
Its President •
By
Its Executive Director
THE HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
BROOKLYN CENTER
By
Its Chairman
By
Its Executive Director
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