HomeMy WebLinkAbout20070521 - VI-13Memo ~'"
To: Mayor Hicks and City Council
From: John Hinzman, Planning Director
Date: May 21, 2007
Subject: Authorize Signature -Revised Construction Easement - Wal-Mart
Site Plan #2005-50
REQUEST
The City Council is asked to authorize signature of the attached revised construction
easement for the Wal-Mart Superstore Addition located on Highway 55.
Since the original April 2"d City Council authorization, the format of the document has
changed. Staff has reviewed the document and has found it to be consistent with the
original document.
BACKGROUND
The construction easement allows for the future connection between the Wal-Mart parking
lot and future development to the west. The easements were a condition of Site Plan
approval for the Superstore Addition in 2005.
ATTACHMENTS
• Construction Easement
PREPARED BY AND UPON
RECORDING RETURN TO:
RICH ROSENBLATT
KUTAK ROCK LLP
1650 FARNAM STREET
OMAHA, NE 68102-2186
Hastings, MN
Store No. 1472-OS
CONSTRUCTION EASEMENT
THIS CONSTRUCTION EASEMENT (this "Easement") is made this day of
2007 by and among WAL-MART REAL ESTATE BUSINESS TRUST, a
Delaware statutory trust ("Grantor"), whose address for notice purposes is 2001 Southeast
10t1i Street, Bentonville, Arkansas 72716-0050, Attention: Real Estate/Legal Division,
Minnesota, Store No. 1472-OS and THE CITY OF HASTINGS, MINNESOTA, a Minnesota
municipal corporation ("Grantee"), whose address for notice purposes is 101 East 4th Street,
Hastings, Minnesota 55033
PRELIMINARY STATEMENTS
Subject to matters of record, Grantor holds fee title to the real property (the "Grantor
Property") legally described in Exhibit A and generally depicted as a shopping center on Exhibit
F attached hereto and incorporated herein.
Grantor desires to construct certain retail and other improvements upon the Grantor
Property, subject to Grantee's approval of the same pursuant to applicable local laws, rules and
ordinances. Grantee will not approve of Grantor's construction of such retail and other
ilnproveinents upon the Grantor Property unless Grantor grants Grantee certain construction
easements over the Grantor Property as more fully set forth herein.
NOW THEREFORE, in consideration of ten dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Grantor
and Grantee agree as follows:
AGREEMENT
Section 1. Grant of Temporary Construction Easements. Grantor hereby grants to
Grantee:
(a) Easement #1. A construction easement to enter upon, under and across an
area on Grantor's Property legally described on Exhibit B attached hereto and
4851-3832-6785.6
incorporated herein and depicted as the crosshatched area labeled "Easement #1" on
Exhibit C and Exhibit F for the purpose of constructing a drive aisle ("Project #1").
(b) Easement #2. A construction easement to enter upon, under, and across an
area on Grantor's Property legally described on Exhibit D attached hereto and
incorporated herein and depicted as the crosshatched area on Exhibit E and Exhibit F for
the purpose of demolishing the west access to 4`" Street and to construct new curb and
gutter for access to the 4`~ Street expansion ("Project #2").
Section 2. Defined Terms. Easement #1 and Easement #2 as used herein shall be
collectively referred to as the "Easements" and Project #l and Project #2 shall be collectively
referred to as the "Projects" and referenced in the singular as "each Project".
Section 3. Approvals. Project #1 shall be constructed pursuant to certain plans and
specs ("Plans and Specs #1") and Project #2 shall be constructed pmrsuant to certain plans and
specs ("Plans and Specs #2") (collectively "the Plans and Specs") both of which shall be
provided by Grantee and delivered to Grantor for approval as least 30 days prior to the
Corrumencement Date defined in Section 4. Grantor's approval shall not be unreasonably
withheld. Grantee shall construct the Projects at its sole cost and expense, subject only to
immaterial modifications which do not affiect the size, location or quality of either Project.
Grantee, the Contractor (as defined in Section 7) or their appropriate agents shall secure,
maintain and comply with all required licenses, permits and certificates (collectively, "Permits")
necessary to lawfully perform the Projects. Grantee shall, upon Grantors request, provide
Grantor copies of all Permits ten (10) days prior to the commencement of~ each Project.
Section 4. Repair and Compliance. Grantee shall promptly repair and/or replace any
property of Grantor damaged during the use of the Easements and upon completion of each
Project shall: (a) provide Grantor with an architect's certiticate certifying that each Project was
constructed in accordance with the approved Plans and Specs, (h) provide unconditional lien
waivers to Grantor with respect to all labor and materials provided to the Grantor Property, and
(c) return the Easements to substantially the same condition as existed prior to the construction
of each Project.
Section 5. Term of Easement. Grantor and Grantee acknowledge that as of the date of
this Easement, Grantee has not determined a date certain that each Project shall commence and
end. Grantor is willing to provide this Easement so long as Grantee, when dates are ascertained,
provides Grantor written notice of the anticipated commencement and completion dates for each
Project (the "Project Notices"), which said Project Notices shall be delivered at least ninety (90)
days prior to the construction commencemment dates stated in each Project Notice (the
"Commencement Date(s)"). Under no circumstance shall the completion date Cor either Project
be longer than the three (3) month anniversary of the Commencement Date. Upon completion of
each Project, Grantee shall provide Grantor written notice that the Project has been completed
and shall deliver to Grantor, after the completion of both Projects, an executed Construction
Easement Termination in the form of Exhibit G attached hereto and incorporated herein.
Section 6. Construction Restriction. In no event, shall any construction activities take
place between November 1 and January 15 of any year.
4 85 1 3 832-6785.6 2
Section 7. Contractor Qualifications, Insurance Requirements and Warranty.
Grantee shall ensure that the general contractor (the "Contractor") it retains to construct the
improvements contemplated by this Easement (the "Improvements") (a) posts payment and
performance bonds necessary to ensure that adequate tinancial resources are available to
complete the Construction; (b) maintains the policies of insurance described in the attached
Exhibit H; and (c) delivers to Grantor a certificate or certificates from the appropriate insurance
company naming Grantor an additional insured and evidencing the existence of the policies of
insurance described above upon Grantor's request therefor. Grantee will cause the Contractor to
warrant to Grantor that the Improvements shall be free from material defects in materials and
workmanship for a period of two years from the completion of the same.
Section 8. Binding Upon Property. The easement, rights and obligations created
pursuant to the terms of this Easement shall run with and be binding upon the Easements and the
Grantor Property, including future subdivisions and/or reconfigurations of such properties, and
shall be binding on all entities having or acquiring any right, title or interest in such properties
and shall inure to the benefit of each owner, tenant, subtenant, employee or invitee thereof.
Section 9. Non-Merger. The easement, rights and obligations established by this
Easement shall not merge or terminate if all of the Grantor Property and the Grantee Property
become owned by the same entity but shall continue until released and terminated by all parties
benefited hereby.
Section 10. No Dedication. Nothing herein contained shall be deemed to be a gift or
dedication of any portion of the Easements to the general public or for any public use or purpose
whatsoever. Except as herein specifically provided, no rights, privileges or immunities of any
party hereto shall inure to the benefit of any third party, nor shall any third party be deemed to be
a beneficiary of any of the provisions contained in this Easement.
Section ll. Title. Subject to matters of record, Grantor confirms with Grantee and its
assigns that Grantor is collectively seized in fee of the basements, that it has the right to grant
and convey the easement and rights granted herein and that it will warrant and defend such
Easements and rights to Grantee against the lawful claims and demands of all persons claiming
by, through or under Grantor.
Section 12. Indemnity. Grantee shall indemnify, defend and hold harmless Grantor and
its employees, Grantor's customers, agents and invitees from and against any and all losses,
liabilities, claims, causes of action, damages, injuries, business disruption, liens (including
mechanics' liens and materialmen's liens), expenses and costs, including, without limitation,
reasonable attorneys' fees, in connection with the Projects; provided, however, that such
indemnification, duty to defend and duty to hold harmless shall exclude any liability arising out
of the sole negligence or willful misconduct of Grantor.
Section 13. Governing Law. This Easement shall be construed under the laws of the
State of Minnesota.
Section 14. Jurisdiction and Service of Process. Any litigation arising under this
Easement shall be brought solely in Minnesota state courts or in a federal court sitting in
4ssi-3a3z-t,~as r, 3
Minnesota, and the parties waive the right to commence litigation in any other jurisdiction. The
parties hereto agree to submit to personal jurisdiction in the State of Minnesota in any action or
proceeding arising out of this Easement, and, in furtherance of such agreement, the parties
hereby agree and consent that, without limiting other methods of obtaining jurisdiction, personal
jurisdiction over the parties in any such action or proceeding may be obtained within or without
the jurisdiction of any court located in Minnesota and that any process or notice of motion or
other application to any such court in connection with any such action or proceeding may be
served upon the parties by registered or certified mail to or by personal service at the last-known
address of the parties, whether such address be within or without the jurisdiction of any such
court.
Section 15. Attorneys' Fees. if a dispute arises between the parties as a result of or in
connection with this Easement, then the prevailing party shall be entitled to a reimbursement of
its reasonable costs and expenses, including reasonable attorneys' fees, expert witness fees and
court costs.
Section 16. Binding Effect. This Easement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
Section 17. Authorization. The parties represent, covenant and warrant that the malting
and execution o1 this Easement and all other documents and instruments required or related
hereunder have been fully authorized by the necessary organizational action of each party and
are valid, binding and enforceable obligations of the parties in accordance with their respective
terms.
Section 18. Notice. All notices, demands, requests or other communications
(collectively, "Notices") required to be given or which may be given under this Easement shall
be in writing and shall be sent by (a) certified or registered mail, return-receipt requested,
postage prepaid, (b) national overnight delivery service or (c) personal delivery, in each case
addressed as set forth in the introductory paragraph above. Any Notice so sent by certiFed or
registered mail, national overnight delivery service or personal delivery shall be deemed given
on the date of receipt or refiisal as indicated on the return receipt or the receipt of the national
overnight delivery service or personal delivery service. A Notice may be given either by a party
or by such party's attorney. Grantor or Grantee may designate, by not less than five business
days' notice given to the other in accordance with the terms of this Seclion, additional or
substituted parties to whom Notices should be sent hereunder.
Section l9. Counterparts. This Easement may be executed in any number of identical
counterparts, each of which for all purposes shall be deemed an original, and all of which shall
constitute collectively one agreement.
Section 20. Recordation. This Easement may be filed of record by either party.
[Signature pages to follow]
sss i -3KSa-~;~ss.e 4
IN WITNESS WHEREOF, this Easement has been executed as of the day and year first
above written.
STATE OF MINNESOTA
COUNTY OF DAKOTA
The foregoing instrument
2007 by
The City of 1-lastings, Minnesota,
corporation.
THE CITY OF HASTINGS, MINNESOTA, a
Minnesota municipal corporation
By -
Name
Title
ss.
was acknowledged before me this day of
,the of
~ Minnesota municipal corporation, on behalf of the
Notary Public
My commission expires:
4851-3832-6785.6 5
Hastings, MN
Store No. 1472-05
IN WITNESS WHEREOF, this Easement has been executed as of the day and year first
above written.
WAL-MART RF,AL ESTATE BUSINESS
TRUST, a Delaware statutory trust
By
Michael Gardner
Regional Vice President of Design and Real
Estate
STATE OF ARKANSAS )
ss.
COUNTY OF BENTON )
The foregoing instrument was acknowledged before me this day of
2007 by Michael Gardner, Regional Vice President of
Design and Real Estate of Wal-Mart Real Estate Business Trust, a Delaware statutory U~ust, on
behalf of the trust.
Notary Public
My commission expires:
asst-3s~a-rnss.v 6
EXHIBIT A
LEGAL DESCRIPTION OF GRANTOR PROPERTY
Lot 1, Block 1, Dakota Summit, according to the recorded plat thereof, Dakota County,
Minnesota.
4851-3R3?-6785-6
EXHIBIT B
LEGAL DESCRIP'CION OF EASEMENT AREA #1
An easement for construction purposes over, under and across that part of Lot 1, Blocl< I
Dakota Summit, according to the recorded plat thereof, Dakota County, Minnesota,
described as follows:
The North 60.00 feet of the South 429.08 feet and the West 50.00 feet thereof.
4x5 i-3a33-e~xs.a
EXHIBIT C
DEPICTION AND LEGAL DESCRIPTION OF EASEMENT AREA #1
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LEGAL DESCRIPTION OF EASEMENT ARE #2
An easement for construction purpose over, under and across that part of Lot 1, Block
1, DAKOTA SUMMIT, according to the recorded plat thereof, Dakota County,
Minnesota, described as follows:
The North 30.00 feet of the West 50.00 feet thereof.
48 5 13 8 32-67 8.(,
EXHIBIT E
DEPICTION OF EASEMENT AREA #2
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EXHIBIT F
DEPICTION OF EASEMENCS #1 AND #2 ON SITE PLAN
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EXHIBIT G
PREPARED BY AND UPON
RECORDING RETURN TO:
RICH ROSENE3LATT
KUTAK ROCK LLP
1650 FARNAM STREET
OMAHA, NE 68 1 02-21 86
Hastings, MN
Store No. 1472-OS
CONSTRUCTION EASEMENT TERMINATION
THIS CONSTRUCTION EASEMENT TERMINATION (this "Termination") is
made this day of 200 by THE CITY OF HASTINGS,
MINNESOTA, a Minnesota municipal corporation ("Grantee"), whose address for notice
purposes is in favor of WAL-MART REAL ESTATE BUSINESS TRUST, a
Delaware statutory trust ("Grantor"), whose address for notice purposes is 2001 Southeast
10'x' Street, Bentonville, Arkansas 72716-0050, Attention: Real Estate/Legal Division,
Minnesota, Store No. 1472-05.
PRELIMINARY STATEMENTS
On April , 2007, Grantor and Grantee executed a Constriction Easement which was
recorded in the ofticial records of the Dakota County, Minnesota Recorder's Office as
Instrument No. on , 2007 wherein Grantee was granted
certain easements as stated therein with respect to certain portions of the following described
property:
Lot I, Block 1, Dakota Summit, according to the recorded plat thereof,
Dakota County, Minnesota.
Grantee acknowledges that such easements have expired, and desires to terminate the
easements.
TERMINATION
Grantee hereby terminates, releases and quitclaims all easements, rights and interests
contained in the Construction Easement.
[Signatures Contained on Next Page]
as,i-as3'- t~~as.~,
1N WITNESS WHEREOF, this Termination has been executed as of the day and year
first above written.
STATE OF MINNESOTA
COUNTY OF DAKOTA
The foregoing instrument
200_ by
The City of Hastings, Minnesota,
corporation.
THE CITY OF HASTINGS, MINNESOTA, a
Minnesota municipal corporation
By
Name
Title
ss.
was acknowledged before me
a
the
Minnesota municipal corporation,
on behalf of the
Notary Public
My commission expires:
pis day of
of
4851-3832-67R5.6 E-2
EXHIBIT H
INSURANCE REQUIREMENTS
All insurers shall have an A.M. Best rating of "A-," "IX" or higher and be duly
authorized to conduct business in the State of Minnesota.
1. Commercial General Liability Insurance. Contractor shall maintain
commercial general liability ("CGL") with a limit of not less than a combined single limit of
$1,000,000 each occurrence and $2,000,000 in the aggregate.
(a) CGL insurance shall be written on fS0 occurrence form CG 20 26 11 85
(or a substihrte form providing equivalent coverage) and shall cover liability arising from
premises, operations, independent contractors, products-completed operations
($2,000,000 combined single limit), personal injury ($1,000,000 combined single limit)
and advertising injury, and liability assumed under an insured contract (including the tort
liability of another assumed in a business contract).
(b) Grantor (and if requested, Grantor's landlord and/or lender) shall be
included as an insured under the CGL, using ISO Additional ]nsured Endorsement
CG 20 10 or a substitute providing equivalent coverage. This insurance shall apply as
primary insurance with respect to any other insurance or self-insurance programs
afforded to, or maintained by, Grantor.
2. Business Auto Liability Insurance. Contractor shall maintain business auto
liability and, if necessary, commercial umbrella insurance with a limit of not less than the
combined single limit of $],000,000 each accident.
(a) Such insurance shall cover liability arising out of any auto (including
owned, hired and nonowned autos).
(b) Business auto coverage shall be written on ISO form CA 0001, CA 0005,
CA 0002, CA 0020 or a substitute form providing equivalent liability coverage. If
necessary, the policy shall be endorsed to provide contractual liability coverage
equivalent to that provided in the 1990 and later editions of CA 0001.
3. Workers' Compensation Insurance. Contractor shall maintain workers'
compensation and employers' liability insurance.
(a) The employers' liability and/or commercial umbrella limits shall not be
less than $500,000 each accident for bodily injury by accident or X500,000 each
employee for bodily injury by disease.
(b) The workers' compensation limits shall not be less than that required by
applicable state statute.
4R~1-3832-67N~.6
4. Umbrella Liability Insurance. Umbrella liability insurance with a limit of not
less than a combined single limit of $1,000,000 each occurrence and in the aggregate in excess of
the above liability policies.
5. Separation of lnsured. [f Contractor's liability policies do not contain standard
ISO separation of insured provision, or a substantially similar clause, they shall be endorsed Co
provide cross-liability coverage.
6. Proof of Insurance. At any time during the Work, upon Grantor's request,
Contractor shall furnish Grantor with a certificate(s) of evidence of insurance (ACORD Form 27
or equivalent), executed by a duly authorized representative of each insurer, showing compliance
with the insurance requirements set forth above.
(a) All certificates shall provide for 30 days' written notice to Grantor prior to
the cancellation or material change of any insurance referred to therein.
(b) To the extent permitted by law, the words "endeavor to" and "but failure
to mail such notice shall impose no obligation or liability of any kind upon the company,
its agents or representatives" shall be deleted from the cancellation provision of all
certificates provided by Contractor.
(c) Failure of Grantor to demand such certificate or other evidence of full
compliance with these insurance requirements or failure of Grantor to identify a
deticiency from evidence that is provided shall not be construed as a waiver of
Contractors obligation to maintain such insiu-ance.
(d) Grantor shall have the right, but not the obligation, to prohibit Contractor
fi-om entering the site until such certificates or other evidence that insurance has been
placed in complete compliance with these requirements is received and approved by
Grantor.
(e) If Contractor fails to maintain the insurance as set forth herein, Grantor shall have
the right, but not the obligation, to purchase said insurance at Contractors expense.
aHS i-3s3a-r,~ss.e F-2