HomeMy WebLinkAbout20070402 - VI-08vi-s
Memo
To: Mayor Hicks and City Council
From: John Hinzman, Planning Director
Date: Apri12, 2007
Subject: Authorize Signature -Construction Easement - Wal-Mart Site Plan
#2005-50
REQUEST
The City Council is asked to authorize signature of the attached construction easement for
the Wal-Mart Superstore Addition located on Highway 55.
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
DRAFT #2 3/19/07
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 WAI. MART REAL ESTATE BUSINESS TRUST, a
Delaware statutory trust ("Grantor), whose address for notice purposes is 2001 Southeast
l0`~' Street, Bentonville, Arkansas 72716-005Q Attention: Real EstatelLesal Division,
Minnesota, Store No. 1472-OS and THE CITY OF HAS"TINGS, MINNESOTA, a Minnesota
municipal corporation, whose address fbr notice purposes is
PRELIMINARY STA"CEMENTS
Subject to matters of record, Grantor holds fee title to the real property (the "Grantor
Property") legally described in Exhibit A attached hereto and incorporated herein, which
includes those portions of the Grantor Property (the "Easement Area") pictorially and legally
described in Exhibit B (hereinafter "Easement Area #1") and in Exhibit C (hereinafter
"Easement Area #2") 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 salve pursuant to applicable local laws, rules and ordinances. Grantee will not approve of
Grantor's construction of such retail and other improvements upon the Grantor Property unless
Grantor grants Grantee certain temporary construction easements on the easement areas at
Grantee's option and at Grantee's sole cost and expense and subject to the terms and conditions
of this Easement as further set forth herein.
AGREEMENT
For and in consideration of S l0 and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
Section 1. Grant of Temporary Construction Easements. Subject to any matters of
record, Grantor hereby grants to Grantee:
(a) a construction easement to enter upon, render and across Easement Area # 1
legally described on Exhibit B and depicted as the crosshatched areas on Exhibit B and
4851-5832-67852
Exhibit D to construct a drive aisle (the "Project #I") pursuant to certain plans and specs
provided by Grantee (the "Plans and Specs") to Grantor at least sixty (60) days prior to
the proposed Construction Commencement Date defined in Section 2 to be approved by
Grantor, which approval shall not be umeasonable withheld. Grantee shall construct the
Improvements (the "Construction") in conformance with the Plans and Specs at its sole
cost and expense, subject only to immaterial modifications which do not affect the size,
location or quality of the Improvements. Grantee shall promptly repair or replace any
property of Grantor damaged by the Construction and, upon completion of the
Construction, shall (a) provide Grantor with an architect's certificate certifying that the
Improvements were constructed in accordance with the Plans and Specs, (b) provide
unconditional lien waivers to Grantor with respect to all labor and materials provided to
the Grantor Property and (c) retum Easement Area #1 to substantially the same condition
as it existed prior io the Construction of Project #l, subject to any alterations
contemplated in the Specs and Plans. Grantee, the Contractor (as defined below) or their
appropriate agents shall secure, maintain and comply with all required licenses, permits
and certificates (collectively, the "Permits") necessary [o lawfully perform the
Construction. Grantee shall, upon Grantor's request, provide Grantor copies of the
Permits prior to the commencement of Project # I; and
(b) a construction easement to enter upon, under, and across Easement Area #2
legally described on Exhibit C and depicted as the crosshatched areas on Exhibit C and
Exhibit D for Grantee to demolition the west access to 4'~' Street and to constrict certain
above ground improvements (`'Project #2) pursuant to certain plans and specs provided
by Grantee (the "Plans and Specs") to Grantor at }east sixty (60) days prior to the
proposed Construction Commencement Date detned in Section 2 to be approved by
Grantor, which approval shall not be unreasonable withheld. Grantee shall construct the
above ground improvements, which shall be identified in writing by Grantee and
provided with the Specs and Plans to Grantor for approval, which shall not be
unreasonably withheld, in conformance with the Plans and Specs at its sole cost and
expense, subject only to immaterial modifications which do not affect the size, location
or quality. Grantee shall promptly repair or replace any property of Grantor damaged
during the use of Easement Area #2 and, upon completion of Project #2, shall (a) provide
Grantor with an architect's certificate certifying that Project #2 was constructed in
accordance with the Plans and Specs, (b) provide unconditional lien waivers to Grantor
with respect to all labor and materials provided to the Grantor Property and (c) return
Easement Area #2 to substantially the same condition as it existed prior to the
commencement of Project #2, subject to any alterations contemplated in the Specs and
Plans. Grantee, the Contractor (as defined below) or their appropriate agents shall secure,
maintain and comply with all required licenses, permits and certificates (collectively, the
"Permits") necessary to lawfully perform the Construction. Grantee shall, upon
Grantor's request, provide Grantor copies of the Permits prior to the commencement of
Project #2.
Section 2. Term of Easement Grantor and Grantee acknowledge that as of the date of
this Agreement, Grantee has not determined a date certain in the fuhire when all constriction and
demolition described in this Agreement shall commence and end and that Grantor is willing to
provide this Agreement so long as Grantee provides Grantor: a) written notice of the anticipated
4351-363?-6785? Z
comtencement and completion dates for Project #l, and b) written notice of the anticipated
commencement and completion dates for Project #2 (the "Project Notices"), which said Project
Notices shall be delivered on or before ninety (90) days prior to the commencement dates stated
in each Project Notice (the "Commencement Date(s)"). Under no circumstance shall the
completion date for either project be longer than the three-month anniversary of the
commencement date. Upon completion of Projects #I and/or #2, Grantee shall provide Grantor
written notice that the projects have been completed and shall provide Grantor an executed
Construction Easement Termination in the form of Exhibit E attached hereto and incorporated
herein within ten (10) days after the later of either projects have been completed. No
Construction shall take place between November 1 and January 15 oCany year-
Section 3. Contractor Qualifications, Insurance Requirements and Warranty.
Grantee shall ensure [hat the general contractor ii retains to construct the Improvements (the
"Contractor") (a) posts payment and performance bonds necessary to ensure that adequate
financial resources are available to complete the Construction; (b) maintains the policies of
insurance described in the attached Exhibit F; 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 Inaterfal defects in materials and waiananship for a period of two years from the
completion of the same-
Section 4. Binding Upon Yroperty. The easement, rights and obligations created
pursuant to the terms of this F',asement shall tun with and be binding upon the Easement Arca
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 5. Non-Merger. The easements, rights and obligations established by this
Easetnent 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 6. No Dedication- Nothing herein contained shall be deemed to be a gift or
dedication of any portion of the Easement Area 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 7. Titre. Subject to matters of record, Grantor confirms with Grantee and its
assigns that Grantor is collectively seized in fee of [he Easetnent Area, that it has the right [o
grant and convey the easement and rights granted herein and that it will warrant and defend such
easement and rights to Grantee against the lawful claims and demands of all persons claiming by,
through or under Grantor.
48S I -38)2-6785?
Section 8. lndemnity. 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 Construction; provided, however, that such
indemnification, duty [o defend and duty to hold harmless shall exclude any liability arising out
of the sole negligence or willful misconduct of Grantor.
Section 9. Governing Law. This Easement shall be construed under the laws of the
State of Minnesota.
Section 10. 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
Minnesota, and the parties waive the right to commence litigation in any other jurisdiction. The
patties 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 patties in any such action or proceeding may be obtained within or without
the jurisdiction ofany court located in Colorado 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 he within or without the jurisdiction ofany such court.
Section 11. Attorneys' Fees. If a dispute arises between the panics 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 tees and
court costs.
Section 12. 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 13. Authorization. The parties represent, covenant and wan ant that the makino
and execution of 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 14. 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 ovemight delivery service or (c) personal delivery, in each case
addressed as set forth in the introductory paragraph above- Any Notice so sent by certified or
registered mail, national ovemight delivery service or personal delivery shall be deemed given
on the date of receipt or refusal as indicated on the rehtrn receipt or the receipt of the national
ovemight delivery service or personal delivery service- A Notice may be given tither by a party
or by such party's attorney. Grantor or Grantee may designate, by not less than five business
asst-3s3z-bass z 4
days' notice given to the other in accordance with the terms of this Section, additional or
substituted parties to whom Notices should be sent hereunder.
Section 15. 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 16. Recordation. This Easement may be filed of record by either party.
[Signature pages to follow]
asst-3s;z-b~xs.z 5
IN WITNESS WHE~OF, this Easement has been executed as of the day and year tirst
above wntten.
THE CITY OF HASTINGS, MINNESOTA, a
Minnesota municipal corporation
By _
Name
Title
STATE OF
- ~
COUNTY OF ) ss.
- __ )
The foregoing instrument was acknowledged before me this
-- --__. 2007 by __ __ day of
The City of Hastings, Minnesota, a Minneso ipal corporation, on behalf of the
corporation.
Notary Public --!
My commission expires:
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6
l lastings, MN
Store No. 1472-OS
IN WITNESS WHEREOF, this Easement has been executed as of the day and year first
above written.
WAL-MART REAL ESTATE BUSINESS
TRUST, a Delaware statutory trust
By
Shannon Letts
Regional Vice President of Design and Real
Estate
STATE OF ARKANSAS ~
COUNTY OF BENTON ) ss.
The foregoing instrument was acknowledged before me this _ day of
_____, 2007 by Shannon Letts, Regional Vice President of Design and Real Estate
of Wal-Mart Real Estate Business Trust, a Delaware statutory tntst, on behalf of the trust.
Notary Public
My commission expires:
x351-3832-6785.2 ~
EXHIBIT A
LEGAL DESCRIPTION OF GRANTOR PROPERTY
Lot 1, Block 1, Dakota Surrunit, according io the recorded plat thereof, Dakota County,
Minnesota
43 51-1¢ 32-673 i.2
EXHIBIT B
DEPICTION ANll LEGAL DESCRIPTION OF EASEMENT' AREA #I
(SEE ATTACHED
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PROPOSED CONSTRUCTION
EASEMENT DESCRIPTION:
An easement for construction purposes 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 60.00 feet of the South 429.08 feet and the West 50.00 feet thereof
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DEPICTION AND LECAL DESCRIPTION OF EASEMENT' AREA #2
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EASEMENT DESCRIPTION•
I An easement for construction purposes over, under and across that part
of Lot 1, Black 1, DAKOTA SUMMIT, according to the recorded plat thereof, Dakoto
County, Minnesota, described as follows:
The North 30.00 feet of the West 80.00 feet thereof.
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EXHIBIT C -EASEMENT Approved LpM
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EXHIBIT D
DEPICTION OF E.ASF,MENTS #1 AND #2 ON SITE PLAN
(SEE ATTACHED)
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EXHIBIT D - SITE
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EXHIBIT E
(SEE ATTACHED]
ass i-s8;a-e~ss.>_
EXHIBIT E
PREPARED BY AND UPON
RECORDING RETURN TO:
R[CH ROSENBLATT
KUTAK ROCK LLP
1650 EARNAM STREET
OMAHA, NE 681 D2-2186
Hastings, MN
Store No. 1472-DS
CONSTRUCTION EASEMENT TERMINATION
THIS CONSTRUCTION EASEMENT TERMINATION (this "Agreement") is made
this day of 200_ by and among WAL-MART REAL ESTATE
BUSINESS TRUST, a Delaware statutory trust ("Grantor), whose address for notice purposes is
2001 Southeast 10'x' Street, Bentonville, Arkansas 72716-000, Attention: Real Estate/Legal
Division, Minnesota, Store No. 1472-OS and THE CITY OF HASTINGS, MINNESOTA, a
Minnesota municipal corporation, whose address for notice purposes is
PRELIMINARY STATEMEN'CS
On March _, 2007, Grantor and Grantee
Agreement recorded as No.
easements as stated therein.
entered into a Construction Easement
in the official records of the
wherein Grantee was granted certain
Grantee acknowledges that it no longer needs the easements, and desires to terminate the
easements.
AGREEMENT
Grantor and Grantee hereby terminate all easements, rights and responsibilities contained
in the Construction Easement recorded as No. and neither party shall have any
further obligation to [he other party as described therein.
County Recorders dated
[Signatures Contained on Next Page)
IN WITNESS WHEREOF, this Easement has been executed as of the day and year first
above written.
STATE OF
COUNTY OF
THE C[TY OF HASTINGS, MINNESOTA, a
Minnesota municipal corporation
By
Name
Title
ss.
The foregoing instrument was acknowledged before me this day of
_, 200_ by ,the _ _ of
The City of Hastings, Minnesota, a Minnesota municipal corporation, on behalf of the
corporation.
Notary Public
My commission expires:
9846-0 176-5657. I
Hastings, MN
Store No. 1472-05
IN WITNESS WHEREOF, this Easetnent has been executed as of the day and year first
above written.
By
WAL-MART REAL ESTATE BUSINESS
TRUST, a Delaware statutory trust
Name
Title
STATE OF ARKANSAS ~
COUNTY OF BENTON ) ss.
The foregoing instrument was acknowledged before me this
X00_ by -day of
of Wal-Mart Real Estate Business Tnlst, a Delaware statutory trust, on behalf of the tntst.
Notary Public
My corrunission expires:
asr~-ai7r.-~F,7 i
EXHIBIT F
1NSOR.ANCE REQUIREN[ENTS
All insurers sha(I have an A.M. Best rating of "A-," "IX" or higher and be duly
authorized to conduct business in the state of Nebraska.
I. 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 ISO occurcence form CG 20 26 1 I AS
(or a substitute 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 andlor lender) shall be
included as an insured under the CGL, using ISO Additional Insured 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 Insw-ance- Contractor shall maintain business auto
liability and, if necessary, commercial umbrella inswancc with a limit of not less than the
combined single limit of $1,000,000 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 (SO 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 I )90 and later editions of CA 0001.
3. Workers' Compensation Insurance. Connacta' 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 $500,000 each
employee for bodily injury by disease.
(b) The workers' compensation lunrts shall not be less than that required by
applicable state statute.
aasr-~as_-~~as.~
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 Insured. [f Contractor's liability policies do not contain standard
[SO separation of insured provision, or a substantially similar clause, they shall be endorsed to
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 Porm 27
or equivalent), executed by a duly authorized representative of each insurer, showing compliance
with [he 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
deficiency from evidence that is provided shall not be constn~ed as a waiver of
Contractor's obligation to maintain such insurance.
(d) Grantor shall have the right, but not the obligation, to prohibit Contractor
from 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 Contractor's expense-
asst_~s~~_v~ss