HomeMy WebLinkAbout20110118 - VIII-B-3City Council Memorandum
To: Mayor Hicks & City Councilmembers
From:John Hinzman, Community Development Director
Date:January 18, 2011
Item:Authorize Signature: Ground Lease Agreement –Red Rock Parking Lot
Council Action Requested:
The City Council is asked to authorize signature of the attached Ground Lease Agreement
between the Hastings Economic Development and Redevelopment Authority (HEDRA) and
Metropolitan Council related to construction of the Red Rock Corridor Parking Lot on Block
16.
Background Information:
The City Council authorized signature of a $600,000 grant agreement between the City and
Metropolitan Council on December 20, 2010. The Red Rock Rail Authority has approved the
use of the allocation for parking lot improvements in Hastings.
The State requires ownership of the capital improvements by the granted agency. Since the
funds were granted to Metropolitan Council, a separate ground lease agreement is required
between the City for the 40 year useful life of the improvement. The lease agreement would
restrict redevelopment or elimination of the parking lot for the next 40 years.
Financial Impact:
The City or HEDRA would need to fund the estimated $15,000 cost of
the parking lot not covered by the $600,000 allocation. The Ground Lease Agreement would
limit development during the next 40 years.
Advisory Commission Discussion:
HEDRA is scheduled to take action on the agreement at the January 13, 2011 meeting.
Council Committee Discussion:
N\A
Attachments:
Ground Lease Agreement
City of Hastings
101 Fourth Street EastHastings, MN 55033-1955p:651-480-2350f:651-437-7082www.ci.hastings.mn.us
GROUND LEASE
Landlord:Hastings Economic Development and Redevelopment Authority
Agreement No.___
Metropolitan Council
Tenant:
Lease Term:40 years from the Effective Date.
Renewal of Lease If renewal of the Lease will continue to carry out theGovernmental Programand if the
Term:renewal isauthorized by the Commissioner of Management and Budget.
Termination:End of lease term or if bonding appropriation language changes.
Governmental Construction, operationand maintenanceof a 100 space parking lot for the Red Rock
Program:Corridor Transitway.The Facility is more specifically defined on Exhibit A.
TenantLegal
$0
Rent:
Authority: Minn. Stat. §473.129
$0
Security Deposit:
LL
All Taxes:
LandlordLegal
LL
All Utilities:
Authority:
All Repair, Operation and
LL
Maintenance Costs:
LL
Insurance:
Property:See attached Exhibit B
Landlord’s Rights: The Landlord reserves the right to use the Property to carry out the Governmental
Program. The Landlord also reserves the right to use the Property for other public uses
provided that the public use does not conflict with the Governmental Program.
Tenants Use:Governmental Program and General Public Transit
THIS GROUND LEASE AGREEMENT (“Lease”) is entered into and effective as of
________________, 2011 (the “Effective Date”), by and between theHastingsEconomic
Development and Redevelopment Authority, a public body corporate and politic under the laws
of the state of Minnesota (the “Landlord”)and the Metropolitan Council, a public corporation
andpolitical subdivision of the state of Minnesota (the “Tenant”).
WHEREAS, the Minnesota Legislature by Minnesota Laws 2005, Chapter 20, Article 1,
Section 19, Subdivision 4 and Minnesota Laws 2006, Chapter 258, Section 17, Subdivision 5, as
amended by 2010 Bond Language, Chapter 189, appropriated state bond funds to theTenantfor
the Red Rock Corridor Transitway;
WHEREAS, pursuant to grant agreement number SG-2010-100,Tenanthasgranted a
portion of the state bond funds to the City of Hastingsfor the construction of a 100 space parking
lot for the Red Rock Corridor Transitway (the “Facility”);
WHEREAS, the City has assigned its rights and obligation under the above-referenced
grant to Landlord for the construction of the parking lot;
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WHEREAS, because the bonding appropriation was to the Tenant rather than to the
Tenant as a grant to the City, the Tenant must have an ownership interest in the real estate that is
being improved with the state bond funds unless the bonding appropriation language is changed;
WHEREAS, the Landlord has agreed to lease thereal property legally described on the
Exhibit B
attached (the “Property”) upon which the Facility will be constructed, to the Tenant in
order to satisfy the state bond fund requirements of ownership.
NOW, THEREFORE, in consideration of the mutual terms and conditions contained
herein, the parties agree as follows:
Property
1.. Landlord hereby leases to Tenant, and Tenant hereby leases from
Exhibit B
Landlord the Property described on the attached .
Term
2.. The term of this Lease (“Term”) shall be for 40 years commencing on the
Effective Date and terminating on the earlier of February 1, 2051 or earlier termination as
provided in Section 3. This Lease may be extended for additional periods of time by mutual
written agreement of the parties, if the lease term extension is to carry out the Governmental
Program and the lease term extension is authorized by the Commissioner of Management and
Budget.
Termination
3.. This Lease shall automatically terminate with no further action by
the parties if the bonding appropriation language is changed and the Tenant is notrequired to
have an ownership interest in the Property.
Rent
4.. Rent during the Term is in the annual amount $0 per year.
Use of Property and Facility
5..
Tenants Use
A.: Governmental Program and general public transit.
Reservation of Rights
B.: The Landlord specifically reserves the right to use
the Property to carry out the Governmental Program. The Landlord also reserves the
right to use the Property for other public uses provided that the public use does not
conflict with the Governmental Program.Landlord shall not use, or permit the use of the
Property and Facility in any manner that would jeopardize the tax exempt status of any
financing used to acquire the Property or to construct or operate the Facility.
Grant Agreement,Minn. Stat. §16A.695 and Third Amended Commissioners
6.
Order dated 8-26-2010
. The Landlord’s use of the Property and Facility is subject to the
requirements of grant agreement (SG-2010-100), Minnesota Statutes §16A.695 and the Third
Amended Order of the Commissioner of Management and Budget related to state bond financed
property. If there is a conflict between this Lease Agreement and the requirements of the above,
the requirements of the above shall control.
Real Estate Taxes and Special Assessments
7.. Landlord shall be responsible for
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the payment of all real property taxes and installments of special assessments levied against the
Property as a result of the activities under this Lease.
Construction, Alteration, Repair, Maintenance and Utilities
8.. Landlord shall
be responsible for all costs related to the design, construction, operation and maintenance of the
Facilities. This shall include, but shall not be limited to the following:
A.Security monitoring and/or patrol
B.Lawn care/landscaping
C.Snowplowing
D.Waste removal
E.Lighting & electrical maintenance and repair
F.Sweeping
G.Signage repair/installation
H.Architectural/Engineering services (site/infrastructure inspections &
recommendations)
I.Concrete & Asphalt roadway repair/rehabilitation/replacement
J.Concrete (parking) structure repair/rehabilitation/replacement
K.Site improvements (development/landscaping/drainage, etc.)
L.Security improvements (site/parking deck/bus way lighting, CCTV installations,
gates & fencing
Landlord shall alsobe responsible for the payment for all utility service provided the
Facility.
Indemnification.
9.Subject to the liability limits in Minnesota Statutes Section
Chapter 466, Landlord agrees to defend, indemnify and hold harmless Tenantfrom and against
any and all injury, loss, damage, claim, demand, liability, penalty, and fine, including costs and
attorneys’ fees (“Claims”) by third parties arising from or related to the acts or omissions of
Landlordor Landlord’semployees, officers,consultants, contractors, agents, and invitees.
Notwithstanding the foregoing sentence, Landlordshall not be responsible to indemnify, defend
or hold harmless theTenantto the extent a Claim results from the negligence or willful
misconduct of the Tenant, its employees and agents.
Hazardous Materials
10.
Defined Terms
A..
(i)“Claim” means and includes any demand, cause of action,
proceeding or suit for any one or more of the following: 1) actual or punitive
damages, losses, injuries to person or property, damages to natural resources,
fines, penalties, interest, contribution or settlement; 2) the costs of site
investigations, feasibility studies, information requests, health or risk assessments,
or Response (as hereinafter defined) actions; and3) enforcing insurance,
contribution or indemnification agreements.
(ii)“Environmental Laws” means and includes all federal, state and
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local statutes, ordinances, regulations and rates relating to environmental quality,
heath, safety, contamination andclean-up, including, without limitation, the Clean
Air Act, 42 U.S.C. Section 7401 et seq.; the Clean Water Act, 33 U.S.C. Section
1251 et seq. and the Water Quality Act of 1987; the Federal Insecticide,
Fungicide, and Rodenticide Act (“FIFRA”), 7U.S.C. Section136 et seq.; the
Marine Protection, Research, and Sanctuaries Act, 33U.S.C., Section 1401 et
seq.; the National Environmental Policy Act, 42 U.S.C. Section432.1 et seq.; the
Noise Control Act, 42U.S.C. Section4901 et seq.; the Occupational Safety and
Health Act, 29 U.S.C. Section6.51 et seq.; the Resource Conservation and
Recovery Act (“RCRA”), 42 U.S.C. Section 6901 et seq, as amended by the
Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act,
42 U.S.C. Section 300f et seq.; the Comprehensive Environmental Response,
Compensation and Liability Act (“CERCLA”), 42 U.S.C. Section 9601 et seq., as
amended by the Superfund Amendments and Reauthorization Act; the Emergency
Planning and Community Right-to-Know Act, and Radon Gas and Indoor Air
Quality Research Act; the Toxic Substances Control Act (“TSCA”), 15 U.S.C.
Section 2601 et seq.; the Atomic Energy Act, 42 U.S.C. Section 2011 et seq.; the
Nuclear Waste Policy Act of 1982, 42 U.S.C. Section 10101 et seq.; the
Minnesota Environmental Response and Liability Act (“MERLA”), Minn. Stat.
Ch. 115B; and the state super lien and environmental clean-up statutes, with
implementing regulations and guidelines, as amended from time to time.
Environmental Laws shall also include all state,regional, county, municipal and
other local laws, regulations, and ordinances insofar as they are equivalent or
similar to the federal laws recited above or purport to regulate Hazardous
Materials (as hereinafter defined).
(iii)“HazardousMaterials” means and includes the following,
including mixtures thereof: any hazardous substance, pollutant, contaminant,
waste, medical waste by-product or constituent regulated under CERCLA; oil and
petroleum products and natural gas, natural gas liquids, liquefied natural gas and
synthetic gas usable for fuel, pesticides regulated under the FIFRA; asbestos and
asbestos containing materials, PCBS, and other substances regulated under the
TSCA; source material, special nuclear material, by-product material and any
other radioactive materials or radioactive wastes, however produced, regulated
under the Atomic Energy Act or the Nuclear Waste Policy Act; chemicals subject
to the OSHA Hazard Communication Standard, 29 C.F.R. Section 1910.1200 et
seq.; and industrial processand pollution control wastes, whether or not
hazardous within the meaning of RCRA; any substance whose nature and/or
quantity or existence, use, manufacture, disposal or effect render it subject to
federal, state or local regulation, investigation, remediation, or removal or
potentially injurious to public heath or welfare.
(iv)“Use”, as a verb, means to manage, generate, manufacture,
process, treat, store, use, re-use, refine, recycle, reclaim, blend or bum for energy
recovery, incinerate, accumulatespeculatively, transport, transfer, dispose of, or
abandon Hazardous Materials.
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(v)“Release or Released” means any actual or threatened spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, or disposing of Hazardous Materials into the environment, as
‘environment’ is defined in CERCLA.
(vi)“Response or Respond” means action taken in compliance with
Environmental Laws to correct, remove, remediate, cleanup, prevent, mitigate,
monitor, evaluate, investigate, assess or abate the Release of a Hazardous
Material.
Obligations with Respect to Environmental Matters
B..
(i)Landlord will remain liable for its own compliance with all
Environmental laws and for any claims that arise with regard to the Property for
any reason other than as a result of Tenant’s violation of subparagraph (ii) below.
(ii)Tenant will not use, or authorize the use of, any Hazardous
Materials on the Property, including installation of any underground storage
tanks, without prior written disclosure to and approval by Landlord. Unless
previously approved in writing by Landlord, Tenant will not take any action that
would subject the Property to permit requirements under RCRA for storage,
treatment or disposal of Hazardous Materials. Tenant will not dispose of
Hazardous Materials on, in, under or about the Property. Neither Tenant nor
Landlord will not discharge Hazardous Materials into Property’ drains or sewers.
Copies of Notices
C.. During the term of this Lease, Tenant or Landlord will
provide the other party with copies of all summons, citations, directives, information
inquiries or requests, notices of potential responsibility, notices of violation or deficiency,
orders or decrees, Claims, complaints, investigations, judgments, letters, notices of
environmental liens or Response actions in progress, and other communications, written
or oral, actual or threatened, from the United States Environmental Protection Agency,
Occupational Safety and Health Administration, Minnesota Pollution Control Agency, or
other federal, state or local agency or authority, or any other entity or individual,
concerning any Release of a Hazardous Material on, to or from the Property, the
imposition of any lien on the Property, or any alleged violation of or responsibility under
Environmental Laws. Landlord and Landlord’s beneficiaries, agents and employees may
enter the Property and conduct appropriate inspections or tests in order to determine
Tenant’scompliance with Environmental Laws.
Tests and Reports
D.. Upon written request by Landlord, Tenant will
provide Landlord with transportation and disposal contracts for Hazardous Materials,
with any permits issued under Environmental Laws, and with anyother applicable
documents to demonstrate that Tenant complies with all Environmental Laws relating to
the Property.
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Default
11.. It is an event of default by Landlord or Tenant hereunder if Tenant or
Landlord defaults in the performance of or compliance with any terms, conditions, and covenants
of this Lease, when the default is not cured within 30days after written notice thereof from
Landlord to Tenant or Tenant to Landlord, except for any default not capable of being cured
within that 30 day period,in which event the time permitted to Tenant or Landlord to cure the
default will be extended for as long as necessary to cure the default, provided that Tenant or
Landlord commences promptly and proceeds diligently to cure the default.
Non-Waiver
12.. The failure of Landlord to insist at any time upon Tenant’s strict
performance of any of the covenants or agreements contained in this Lease is not be construed as
a waiver or relinquishment of such covenants or agreements for the future. No waiver by any
party of any provision of this Lease is to be deemed to have been made unless expressed in
writing and signed by the party waiving same.
Miscellaneous
13.
Notices
A.. Any notice or other communication or payment herein required
or permitted to be given is to be deemed given if and when personally delivered in
writing or if and when mailed in a sealed wrapper by United States registered or certified
mail, postage prepaid, properly addressed to the address specified herein. Unless and
until changed by notice to the other parties.
As to Tenant:
Metropolitan Counsel
Attn: Office of the General Council
390 Robert Street North
St. Paul, MN 55101-1805
As to Landlord:
Hastings Economic Development and Redevelopment Authority
c/o City of Hastings
Attn: CityAdministrator
th
101 East 4Street
Hastings, MN 55033
Liens and Encumbrances
B. . Landlordshall not allow any mechanics’,
material suppliers’, and other liens arising out of any work, labor done, services
performed, or materials furnished for Landlordor its contractors or consultants or
claimed to have been furnished for Landlordor its contractors or consultants to be
perfected against the Property.
Disposition upon Termination
C..Upontermination of this Lease, the
Tenant will provide Landlord with appropriate instruments, reasonably acceptable to
Landlord transferring all Tenant’s right, title and interest in the Property, the Facility, and
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any immovable fixtures to Landlord, but subject to any liens or encumbrances placed on
the Facilityor the immovable fixtures by Tenant. Tenant may remove all personal
property owned by it from the Property and the Facility at the expiration of this Lease.
Recording of Lease
D.. This Lease may be recorded in the property records
of the County at the expense of the Tenant.
Amendments
E.. This Lease may not be amended without the express
written consent of the Commissioner of Management and Budget.
[Remainder of page left intentionally blank]
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IN WITNESS WHEREOF, the Metropolitan Council has caused this Lease Agreement to
be executed on its behalf by its Regional Administrator and the Hastings Economic
Development and Redevelopment Authority has caused this Lease Agreement to be executed on
its behalf by its __________ and _________________, all as of the Effective Date.
METROPOLITAN COUNCIL
By:
Its: Regional Administrator
Approved as to form:
_________________
Office of the General Counsel
}
STATE OF MINNESOTA
ss.:
COUNTY OF RAMSEY
The foregoing instrument was acknowledged before me this ______ day of ___________
2011 by Thomas H. Weaver, Regional Administrator of Metropolitan Council, a political
subdivision of the State of Minnesota, on behalf of said political subdivision.
Notary Public
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HASTINGS ECONOMIC DEVELOPMENT AND
REDEVELOPMENT AUTHORITY
By
Its:___________________________________
}
STATE OF MINNESOTA
ss.:
COUNTY OF DAKOTA
The foregoing instrument was acknowledged before me this ______ day of __________,
2011 by _________________ the ___________________ of the Hastings Economic
Development and Redevelopment Authority, a public boy corporate and politic under the laws of
the State of Minnesota, on behalf of the Authority..
Notary Public
THIS DOCUMENT DRAFTED BY:
Peter A. Hanf
Associate General Counsel
Metropolitan Council
390 North Robert Street
St. Paul, MN 55101
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Exhibit A
Site Plan and Description of Facility
[To be supplied prior to execution]
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Exhibit B
Legal Description of Property
All of Block 16, Town of Hastings, Dakota County, Minnesota
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