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HomeMy WebLinkAbout08-26-2013 EDA Packet2. Consideration of Minutes of May 28, 2013 ate? AGENDA ECONOMIC DEVELOPMENT AUTHORITY MEETING MONDAY, AUGUST 26, 2013 6:15 P.M. City Council Chambers AL.L P/t04A���.,, , %�-c�J 1. Call to Order and Roll Call /-� � �'Q / mac.) b 3. Resolution No. 13-06, Approving Easement Agreement over Outlot D, Village No. 3 in Favor of Lino Lakes Assisted Living, LLC icDoese. c , €t rc s ,c, 47 A ( 6 D J no 2, r Jt �O 4. Adjourn EDA MINUTES MAY 28, 2013 DRAFT DATE : May 28, 2013 TIME STARTED : 6:04 p.m. TIME ENDED : 6:10 p.m. MEMBERS PRESENT : Commissioners O'Donnell, Roeser, Reinert, Rafferty, Stoesz MEMBERS ABSENT : None OTHERS PRESENT: : Michael Grochala The meeting was called to order at 6:00 p.m. by President Roeser. CONSIDERATION OF THE MINUTES OF MARCH 25, 2013 EDA Member Rafferty moved to approve the March 25, 2013 minutes. EDA Member Stoesz seconded the motion. Motion carried on a unanimous voice vote. CONSIDERATION OF APPOINTMENT OF MICHAEL GROCHALA AS SECRETARY OF THE EDA Mr. Grochala noted that the former secretary of the EDA, Mary Alice Divine, has retired from her position and her position is not being filled at this time. Since it is necessary to have a secretary in place, he will take over the duties and requests that the authority officially appoint him to the position. EDA Member O'Donnell moved to approve the appointment of Michael Grochala as recommended. EDA Member Rafferty seconded the motion. Motion carried on a unanimous voice vote. RESOLUTION NO. 13-05, APPROVING 2013 MINNESOTA LAWS, CH. 73, SECTION 10, REGARDING CONVEYANCE OF TAX FORFEITED LAND Mr. Grochala explained that the city was granted special legislation by the State to provide for conveyance of the tax forfeited Legacy property. It is necessary for the EDA to approve the legislation for final recording. EDA Member Rafferty moved to approve Resolution No. 13-05, as presented. EDA Member Stoesz seconded the motion. Motion carried on a unanimous voice vote. ADJOURNMENT There being no further business, EDA member O'Donnell moved to adjourn. EDA Member Rafferty seconded the motion. Motion carried on a unanimous voice vote. Meeting adjourned at 6:10 p.m. 1 LINO LAKES ECONOMIC DEVELOPMENT AUTHORITY AGENDA ITEM 3 STAFF ORIGINATOR: Michael Grochala MEETING DATE: August 26, 2013 TOPIC: Consideration of Resolution No. 13-06, Approving Easement Agreement with Lino Lakes Assisted Living, Outlot D, Village No. 3 VOTE REQUIRED: 3/5 INTRODUCTION Staff is requesting Board consideration of a resolution to approve an easement agreement in favor of Lino Lakes Assisted Living, LLC across Outlot D, Village No. 3. BACKGROUND The original plans for the Assisted Living building included a new access on the southeast side of the property. This proposed access location was approximately 5 feet from a neighboring property access point and required the relocation of City utilities, a street light, and disturbance to the existing street. The existing access to the east was originally intended to serve both the Assisted Living site and the adjacent townhome property. The joint access was not considered with the approved plans because the city did not yet own the property. With the approval of the special legislation the City will soon hold fee title to the abutting property and would be in a position to grant an access easement in favor of the Assisted Living property. This would allow the driveway to be shifted and avoid the expense and disturbance associated with creating a new access point. This idea was shared with the City Council at the June 3, 2013 work session and received positive comments. Staff has prepared an agreement to accommodate the relocation of the drive. Lino Lakes Assisted Living will be responsible for all construction costs (included as part of their site development), and all ongoing maintenance of the driveway. The agreement does provide for a cost share arrangement if the driveway is used by a future owner of Outlot D. RECOMMENDATION Approve Resolution No. 13-06 ATTACHMENTS 1. Resolution No. 13-06 LINO LAKES ECONOMIC DEVELOPMENT AUTHORITY RESOLUTION NO. 13-06 APPROVING AN EASEMENT AGREEMENT BETWEEN THE LINO LAKES ECONOMIC DEVELOPMENT AUTHORITY AND LINO LAKES ASSISTED LIVING, LLC BE IT RESOLVED By the Board of Commissioners ("Board") of the Lino Lakes Economic Development Authority ("Authority") as follows: Section 1. Recitals. 1.01. The Authority previously conveyed certain property described as Lot 1, Block 1, The Village No. 5, according to the recorded plat thereof, Anoka County Minnesota (the "LLAL Parcel") to Lino Lakes Assisted Living, LLC ("LLAL"). 1.02. Pursuant to 2013 Minnesota Laws, Chapter 73, Section 10, the Authority expects to acquire certain tax -forfeited property described as Outlot B, The Village No. 3, according to the recorded plat thereof, Anoka County Minnesota (the "EDA Parcel"), which parcel is adjacent to the LLA Parcel. 1.03. To facilitate development of the LLAL Parcel, the Authority has determined to grant to LLAL an easement across a portion of the EDA Parcel for purposes of a driveway that provides access to the LLA Parcel. 1.04. The Board has reviewed terms of a proposed Easement Agreement between the Authority and LLAL (the "Easement Agreement"), describing the terms and conditions of the driveway easement. Section 2. Authority Approval; Further Proceedings. 2.01. The Easement Agreement is hereby in all respects approved in the form attached hereto as Exhibit A, subject to modifications that do not alter the substance of the transaction and that are approved by the President and Executive Director, provided that execution of the documents by such officials shall be conclusive evidence of approval. 2.02. The President and Executive Director are hereby authorized to execute, on behalf of the Authority, the Easement Agreement, and any documents referenced therein requiring execution by the Authority or otherwise required to effectuate the transaction described in those documents; provided that the Easement Agreement shall not be executed and delivered to LLAL until the Authority takes title to the EDA Parcel. 2.03. Authority staff and consultants are authorized and directed to take all actions needed to carry out the transactions described in this Resolution. 427348v5 SJB LN140-109 Approved by the Board of Directors of the Lino Lakes Economic Development Authority, this 26th day of August, 2013. ATTEST: Michael Grochala, Secretary 427348v5 SJB LN140-109 2 Dave Roeser, President EXHIBIT A Fourth Draft August 22, 2013 This instrument was drafted by: Kennedy & Graven, Chartered (SJB) 470 U.S. Bank Plaza Minneapolis, MN 55402 (Above space reserved for recording data) EASEMENT AGREEMENT (Ingress and Egress) THIS EASEMENT AGREEMENT (this "Agreement") is made this day of , 2013, by and among the Lino Lakes Economic Development Authority, a Minnesota public body corporate and politic (the "EDA") and Lino Lakes Assisted Living, LLC, a Minnesota limited liability company ("LLAL"). Except as otherwise provided herein, the EDA and LLAL and are referred to herein as the "Parties." RECITALS A. The EDA is the owner of property within the City of Lino Lakes (the "City") described as Outlot B, The Village No. 3, according to the recorded plat thereof, Anoka County Minnesota (the "EDA Parcel"). B. LLAL is the owner of property within the City described as Lot 1, Block 1, The Village No. 5, according to the recorded plat thereof, Anoka County Minnesota (the "LLAL Parcel"), which property is adjacent to the EDA Parcel. C. LLAL acquired a portion of the LLAL Parcel from the EDA, pursuant to a Purchase and Redevelopment Agreement between EDA and LLAL dated March 11, 2013 (the "Redevelopment Agreement"). D. Under the Redevelopment Agreement, LLAL is required to construct an expansion of the LLAL's assisted living facility on the LLAL Parcel, such expansion being referred to in the Redevelopment Agreement as the "Minimum Improvements." E. In order to accommodate the efficient development of the Minimum Improvements on that LLAL Parcel, the Parties have agreed that LLAL will construct a driveway that provides ingress and egress from the LLAL Parcel and the EDA Parcel to Town Center Parkway (the "Access Driveway") such driveway to be located on the EDA Parcel in the location legally described and depicted on Exhibit A attached hereto (the "Access Driveway Easement Area"). F. The EDA intends to further subdivide the EDA Parcel and sell individual lots to 3 427348v5 SJB LN140-109 third parties for development for various uses; and the future subdivided lot that includes the Access Driveway Area is referred to herein as the "Future Adjacent Parcel." G. The Parties desire to create and grant pursuant to the terms hereof an easement in, on, over and across the portion of the EDA Parcel described as the Access Driveway for the purposes of ingress and egress, and to allocate construction and maintenance responsibilities among the Parties regarding such Access Driveway, subject to the terms and conditions set forth below. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereby declare as follows: 1. Recitals. The foregoing recitals are true and correct and incorporated herein by reference. The term "Owner," as used in this Agreement, shall mean the then current owner of fee simple title to a Parcel. The term "Parcel" shall mean the LLAL Parcel, the EDA Parcel, or the Future Adjacent Parcel, in each case as the context requires. From and after the Transfer (as defined in Section 13 hereof) of the Future Adjacent Parcel to a third party, the EDA is no longer a Party to this agreement. 2. Grant of Easement for Ingress/Egress. The Parties hereby establish, grant and convey a perpetual, non-exclusive access easement for vehicular and pedestrian ingress, egress and access purposes over, on, through the Access Driveway Easement Area. The Access Driveway Easement Area may be used by Owners of the LLAL Parcel and the Future Adjacent Parcel (and, prior to Transfer of the Future Adjacent Parcel, owners of the EDA Parcel), along with their tenants, subtenants and occupants, and their respective employees, customers, agents and invitees in accordance with the terms of this Agreement. Other than as reasonably required in connection with repair and replacement activities, no noxious or offensive odor, appearance or activity or hazardous materials or substances shall be maintained or permitted within the Access Driveway Easement Area, and no vehicles, equipment, trailers or other portable or temporary structures or equipment shall be repaired or parked within or on the Access Driveway Easement Area. No obstructions shall be erected or permitted within the Access Driveway Easement Area that would prevent, restrict, or otherwise inhibit the passage of vehicles within the Access Driveway Easement Area or on a Parcel, except for temporary obstructions or closures for maintenance, repair and replacement purposes in accordance with Section 3, below. 3. Construction and Maintenance of Access Driveway. (a) In connection with its development of the LLAL Parcel, LLAL shall construct the portion of the Access Driveway at its sole cost and expense pursuant to the plans and specifications approved by the Parties dated , 2013 prepared by . LLAL shall complete construction of the Access Driveway by the date LLAL receives a certificate of occupancy from the City of for the Minimum Improvements on the LLAL Parcel. 427348v5 SJB LN140-109 4 (b) All construction activities for the Access Driveway shall be performed in compliance with all legal requirements and applicable governmental authorities. All construction shall utilize new materials, and shall be performed in a good, safe and worker -like manner. (c) In connection with the construction of the Access Driveway, the EDA hereby grants to LLAL a temporary construction easement for encroachments upon the EDA Parcel (beyond the boundaries of the Access Driveway Easement Area) as is reasonably necessary for the performance of such construction work. LLAL shall use commercially reasonable efforts to minimize any interference with the normal use of the EDA Parcel and shall, at its sole expense, repair any damage to the improvements on the EDA Parcel and, promptly after completion of the work, restore the affected EDA Parcel to substantially the condition it was in immediately prior to such work. (d) Prior to Transfer of the Future Adjacent Parcel to a third party, LLAL and any subsequent Owner of the LLAL Parcel shall, at its cost, keep and maintain the Access Driveway in good order and condition, and repair and replace the surface of the Access Driveway as reasonably required to keep such area in good order and condition, ordinary wear and tear excepted. Such maintenance work shall include, without limitation, removal of dirt and snow, removal of trash and debris, patching and sealing driveways and parking surfaces, removing and replacing the driveways and parking surfaces within the Access Driveway Easement Area as may be required from time to time, keeping and maintaining any lighting serving the Access Driveway from time to time in good operating condition, and cleaning, trimming, and maintaining any landscaping located within the portion of the Access Driveway Easement Area. (e) From and after Transfer of the Future Adjacent Parcel to a third party, the Owner of the LLAL Parcel shall undertake the maintenance responsibilities described in paragraph (d). All out-of-pocket cost and expenses incurred by the owner of the LLAL Parcel to maintain and repair the Access Driveway Easement Area shall be shared equally by owners of the LLAL Parcel and the Future Adjacent Parcel. The Owner of the Future Adjacent Parcel shall, within thirty (30) days after receipt, from the Owner of the LLAL Parcel, of an invoice setting forth the maintenance, repair and replacement costs incurred by the Owner of the LLAL Parcel, reimburse the Owner of the LLAL Parcel for its 50% share of such costs. (f) Notwithstanding anything to the contrary contained in this Agreement, in the event of the failure of an Owner to perform all or any portion of its responsibilities under this Section 3 with respect to the Access Driveway Easement Area, including without limitation, payment of costs, within thirty (30) days after written notification from the non -defaulting Owner, or such lesser period as is required in an emergency or due to weather conditions such as accumulated snow or ice, or if not reasonably capable of cure within thirty (30) days such longer period as is reasonably required to perform the same with due diligence, the non -defaulting Owner may cause such responsibilities to be performed or paid at the expense of the non - defaulting Owner, and the defaulting Owner shall reimburse the non -defaulting Owner Parcel within thirty (30) days after receipt of an invoice therefore. In the event the Owner of the LLAL Parcel performs such work and is not reimbursed within such thirty (30) day period, the amounts owed to Owner of the LLAL Parcel thereafter include interest at the rate of 5% annum, until fully paid. 5 427348v5 SJB LN140-109 4. Insurance. The Owner of the LLAL Parcel, and each future Owner of the Future Adjacent Parcel, shall maintain at all times their own commercial general liability insurance against claims for personal injury or death and property damage on the their respective Parcel in amounts deemed prudent and reasonable according to industry standards. Each Owner shall also maintain or cause to be maintained on behalf of itself and any mortgagees, commercial general liability insurance with combined single limit coverage for bodily injury, personal injury and property damage of not less than $2,000,000, and which shall include contractual liability and indemnity coverage, with respect to the Access Driveway Easement Area. This Section does not apply to the EDA prior to conveyance of the Future Adjacent Parcel to a third party. 5. Indemnification; Waiver of Subrogation. It is expressly understood and agreed that the Parties do not assume any liability for the negligent acts or willful misconduct of any other Party or such Parry's agents, servants, successors and assigns as it relates to this Agreement and the operation, repair, replacement and/or maintenance of the Access Driveway Easement Area. Each Party shall indemnify, protect, defend and hold harmless the other Parties, their agents, employees, customers, invitees and related persons and entities from and against any and all losses, damages, liabilities, suits, obligations, judgments, injuries, claims, demands, costs and expenses, including without limitation legal and consultant expenses of any kind whatsoever, due to loss of life or injury to persons or property, which may arise out of or relate to the indemnifying Party's use of the Access Driveway Easement Area or any third party claiming through or under such indemnifying party's use of the Access Driveway Easement Area, except only to the extent any such losses, damages, liabilities, suits, obligations, judgments, injuries, claims, demands, costs and expenses arise out of or relate to the negligence or willful misconduct of the indemnifying Party or anyone claiming through or under such Party. The indemnities and assumptions of liabilities provided in this Section 5 shall continue in full force and effect notwithstanding the termination of this Agreement or the easement granted herein, whether by expiration of time, by operation of law, or otherwise. Notwithstanding anything to the contrary contained herein, the Parties hereby release one another and their respective officers, directors, agents, and employees from any and all liability (to the other or anyone claiming through or under them by way of subrogation or otherwise) for any loss or damage covered by property or liability insurance, even if such loss or damage was caused by the fault or negligence of such Party, or anyone for whom such Party may be responsible. 6. Notice. Any notice required or permitted to be given by any Party upon another Party is given in accordance with this Agreement if it is directed to the applicable Party and mailed by United States registered or certified mail, return receipt requested, postage prepaid; or if deposited cost paid with a nationally recognized, reputable overnight courier, properly addressed as follows: EDA: Lino Lakes Economic Development Authority 100 Civic Center Parkway Lino Lakes, MN 55337 Attention: Community Development Director LLAL: Lino Lakes Assisted Living, LLC 427348v5 SJB LN140-109 6 PO Box 6124 St. Cloud, MN 56302 Attention: Stephen Upgren A Party may change its address for notice purposes by written notice to the other Parties in accordance with the requirements set forth above. The date of such notice will be deemed to have been the date on which such notice is delivered or attempted to be delivered as shown by the certified mail return receipt or a commercial delivery service record. All notices shall be addressed to the current address of record for an Owner as indicated on the property tax records maintained by the Anoka County Assessor's office for the LLAL Parcel and the EDA Parcel. 7. Default and Remedies. In the event of any violation by a Party of any of the provisions of this Agreement, in addition to the right to collect damages, the non -violating Party will have the right to enjoin such violation in a court of competent jurisdiction. Before commencement of any such action, written notice of the violation will be given to violating Party specifying the claimed violation. In addition, in the event that a Party fails to perform any of the provisions of this Agreement or violates any of the provisions hereof, the non -defaulting Party(ies) may cure such default; provided, however, that written notice of such intention, specifying the nature of the alleged default and the actions to be performed, has been given to the defaulting Party not less than thirty (30) days prior to the commencement of such action or such lesser time if, in the reasonable judgment of the non -defaulting Party(ies), such default is emergency in nature. If the non -defaulting Party(ies) elects to perform the action to have been performed by the defaulting Party, on completion of such action, an itemized statement of the costs thereof will be submitted to the defaulting Party, and the amount thereof will be immediately due and payable by the defaulting Party to the non -defaulting Party(ies), with interest at the rate of 5% per annum, until paid. 8. Third Party Approvals. Except for the Parties and American Heritage National Bank (whose consent to this Agreement is attached hereto), there are no tenants, owners, or mortgagees, and there are no leases, agreements or other encumbrances of any nature whatsoever affecting title to a Parcel that would require the consent of any third party to this Agreement. 9. No Dedication. Nothing contained in this Agreement shall be deemed to be a gift or dedication of any portion of either Parcel to the general public or for any public use or purpose whatsoever, it being the intention of the Parties that nothing in this Agreement, express or implied, shall confer upon any person, other than the Parties and their successors and assigns, any rights or remedies under or by reason of this Agreement, provided that the foregoing is not intended to limit the rights of each Owner to use the Access Driveway Easement Area for the purposes expressed above. 10. Invalidity. If any provision of this Agreement, or portion thereof, or the application thereof to any person or circumstances, shall, to any extent be held invalid, inoperative or unenforceable, the remainder of this Agreement, or the application of such provisions or portion thereof to any other person or circumstances, shall not be affected thereby; it shall not be deemed that any such invalid provision affects the consideration for this Agreement; and each provision of this Agreement shall be valid and enforceable to the fullest 427348v5 SJB LN140-109 7 extent permitted by law. 11. Governing Law; Successors and Assigns. This Agreement shall be construed in accordance with the laws of the State of Minnesota. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties, it being the intent hereof that the rights and obligations hereunder shall follow the ownership of the LLAL Parcel and the EDA Parcel, respectively. This Agreement shall run with the land and bind the title to the LLAL Parcel and the EDA Parcel. 12. Modifications; Merger Not Intended. This Agreement may be amended, modified, or terminated at any time by an agreement in writing, executed and acknowledged by the Owners of the Parcels. Common ownership of any Parcel shall not cause this Agreement to be extinguished by operation of merger in whole or in part. 13. Release. Upon the assignment, conveyance, sale or other transfer by an Owner of its Parcel ("Transferor") of its entire right, title and interest in such property (a "Transfer"), the Transferor shall be released from the obligations of this Agreement arising after the date on which the instrument effectuating such Transfer is recorded in the official records of Anoka County, Minnesota (the "Record Date"). The Transfer shall not result in the release of the Transferor from any obligations of the Transferor arising under this Agreement prior to the Record Date, including, without limitation, payment of any amounts which may then be due and owing hereunder. The transferee ("Transferee") shall not be personally liable for any default under this Agreement that occurred or accrued, without regard to any applicable cure periods, prior to the Record Date. Upon such Transfer, the Transferee shall execute and file in the appropriate land records in Anoka County, Minnesota, a statement setting forth the name of the Transferee, the address of the Transferee to which all notices for the purposes of this Agreement shall be sent, the nature of the interest held by the Transferee, and the date that such interest was acquired. The Transferee of any Parcel or any portion thereof, by acceptance of a deed conveying title thereto or the execution of a contract for the purchase thereof, whether from an original Party or from a subsequent Owner of such Parcel, shall accept such deed or contract upon and subject to each and all of the easements, covenants, conditions, restrictions and obligations contained herein. By such acceptance, any such Transferee shall for itself and its successors and assigns, covenant, consent, and agree to keep, observe, comply with, and perform the obligations and agreements set forth herein with respect to the Parcel so acquired by such Transferee. 14. Rights of Lenders. No provision of this Agreement shall in any way defeat or render invalid the lien of any mortgage, deed of trust, or other similar consensual security instrument entered into in good faith and for valuable consideration, whether presently in existence or recorded in the future against any Parcel; however, any lien of this type will be subordinate and subject to the provisions of this Agreement. If any Parcel or portion thereof is purchased in connection with a foreclosure of a mortgage or security instrument or is conveyed to the party so secured in lieu of foreclosure, any person so acquiring or purchasing and its successors and assigns will hold any and all real property so purchased or acquired subject to the provisions of this Agreement. 427348v5 SJB LN140-109 8 15. Construction. The rules of strict construction shall not apply to this Agreement. This Agreement shall not be interpreted in favor of or against any Party merely because of its respective efforts in preparing it. This Agreement embodies the entire agreement and supersedes any prior oral or written agreements with respect to the matters stated herein. 427348v5 SJB LN140-109 [SIGNATURES ON FOLLOWING PAGES] 9 COUNTY OF ANOKA SIGNATURE PAGE TO EASEMENT AGREEMENT (Ingress and Egress) IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the day and year first above written. STATE OF MINNESOTA ) ) ) ss.: LINO LAKES ECONOMIC DEVELOPMENT AUTHORITY By Its President By Its Executive Director The foregoing instrument was acknowledged before me this day of , 2013, by Dave Roeser and Jeff Karlson, the President and Executive Director, respectively, of the Lino Lakes Economic Development Authority, on behalf of the authority. 427348v5 SJB LN140-109 10 Notary Public STATE OF MINNESOTA ) ) COUNTY OF ) ss.: LINO LAKES ASSISTED LIVING, LLC By Its The foregoing instrument was acknowledged before me this day of , 2013, by , the of Lino Lakes Assisted Living, LLC, a Minnesota limited liability company, on behalf of the company. 427348v5 SJB LN140-109 11 Notary Public LENDER CONSENT TO EASEMENT AGREEMENT (Ingress and Egress) The undersigned, as holder of first mortgage encumbering the LLAL Parcel, consents to the above Easement Agreement between the Lino Lakes Economic Development Authority and Lino Lakes Assisted Living LLC. STATE OF MINNESOTA ) COUNTY OF ) ss.: AMERICAN HERITAGE NATIONAL BANK By Its The foregoing instrument was acknowledged before me this day of , 2013, by , the of American Heritage National Bank, a national banking association, on behalf of the bank. 427348v5 SJB LN140-109 12 Notary Public EXHIBIT A TO EASEMENT AGREEMENT (Ingress and Egress) Legal Description and Depiction of the Access Driveway Easement Area Legal Description: A permanent easement for driveway access over that part of Outlot B, The Village No. 3, Anoka County, Minnesota, described as follows: Commencing at the Northwest corner of said Outlot B; thence South 26 degrees 16 minutes 51 seconds East, assumed bearing along the westerly line thereof, 79.66 feet to the point of beginning; thence North 64 degrees 54 minutes 10 seconds East 30.00 feet; thence South 26 degrees 16 minutes 51 seconds East, parallel to said Westerly line 100.00 feet to the Northerly right of way line of Town Center Parkway as shown on said plat; thence South 64 degrees 54 minutes 10 seconds West, along said Northerly right of way line 30.00 feet to the intersection of said Northerly right of way line and the Westerly line of said Outlot B; thence North 26 degrees 16 minutes 51 seconds West, along said westerly line, 100.00 feet to the point of beginning. Depiction: A. AIXZESe Nit. AW.L.cs=_ufrr Ate..,74Z0, 1 o� Easement Parcel Sketch , The Village no. 3, Anoka County Lino take, Minnesota 430491v1 SJB LN140-109 CITY OF LINO LAKES CERTIFICATION ECONOMIC DEVELOPMENT AUTHORITY RESOLUTION NO. 13-06 STATE OF MINNESOTA) COUNTY OF ANOKA) SS CITY OF LINO LAKES) I, Julianne Bartell, City Clerk of the City of Lino Lakes, in the County of Anoka and State of Minnesota, certify that I have examined the attached copy of Resolution No. 13-06, Approving an Easement Agreement with Lino Lakes Assisted Living, LLC, approved by the Lino Lakes Economic Development Authority on August 26, 2013, and have carefully compared the same with the original on file in this office, and that the attached copy is a true, correct and complete copy of the original. IN WITNESS WHEREOF, I have signed and affixed the city seal on August 27, 2013. 600 Town Center Parkway, Lino Lakes, MN 55014 Phone: 651-982-2400 • Fax: 651-982-2499 LINO LAKES ECONOMIC DEVELOPMENT AUTHORITY RESOLUTION NO. 13-06 APPROVING AN EASEMENT AGREEMENT BETWEEN THE LINO LAKES ECONOMIC DEVELOPMENT AUTHORITY AND LINO LAKES ASSISTED LIVING, LLC BE IT RESOLVED By the Board of Commissioners ("Board") of the Lino Lakes Economic Development Authority ("Authority") as follows: Section 1. Recitals. 1.01. The Authority previously conveyed certain property described as Lot 1, Block 1, The Village No. 5, according to the recorded plat thereof, Anoka County Minnesota (the "LLAL Parcel") to Lino Lakes Assisted Living, LLC ("LLAL"). 1.02. Pursuant to 2013 Minnesota Laws, Chapter 73, Section 10, the Authority expects to acquire certain tax -forfeited property described as Outlot B, The Village No. 3, according to the recorded plat thereof, Anoka County Minnesota (the "EDA Parcel"), which parcel is adjacent to the LLA Parcel. 1.03. To facilitate development of the LLAL Parcel, the Authority has determined to grant to LLAL an easement across a portion of the EDA Parcel for purposes of a driveway that provides access to the LLA Parcel. 1.04. The Board has reviewed terms of a proposed Easement Agreement between the Authority and LLAL (the "Easement Agreement"), describing the terms and conditions of the driveway easement. Section 2. Authority Approval; Further Proceedings. 2.01. The Easement Agreement is hereby in all respects approved in the form attached hereto as Exhibit A, subject to modifications that do not alter the substance of the transaction and that are approved by the President and Executive Director, provided that execution of the documents by such officials shall be conclusive evidence of approval. 2.02. The President and Executive Director are hereby authorized to execute, on behalf of the Authority, the Easement Agreement, and any documents referenced therein requiring execution by the Authority or otherwise required to effectuate the transaction described in those documents; provided that the Easement Agreement shall not be executed and delivered to LLAL until the Authority takes title to the EDA Parcel. 2.03. Authority staff and consultants are authorized and directed to take all actions needed to carry out the transactions described in this Resolution. 427348v5 SJB LN140-109 Approved by the Board of Directors of the Lino Lakes Economic Development Authority, this 26th day of August, 2013. Michael Grochala, Secretary 427348v5 SJB LN140-109 2 Dave Roeser, President EXHIBIT A Fourth Draft August 22, 2013 This instrument was drafted by: Kennedy & Graven, Chartered (SJB) 470 U.S. Bank Plaza Minneapolis, MN 55402 (Above space reserved for recording data) EASEMENT AGREEMENT (Ingress and Egress) THIS EASEMENT AGREEMENT (this "Agreement") is made this day of , 2013, by and among the Lino Lakes Economic Development Authority, a Minnesota public body corporate and politic (the "EDA") and Lino Lakes Assisted Living, LLC, a Minnesota limited liability company ("LLAL"). Except as otherwise provided herein, the EDA and LLAL and are referred to herein as the "Parties." RECITALS A. The EDA is the owner of property within the City of Lino Lakes (the "City") described as Outlot B, The Village No. 3, according to the recorded plat thereof, Anoka County Minnesota (the "EDA Parcel"). B. LLAL is the owner of property within the City described as Lot 1, Block 1, The Village No. 5, according to the recorded plat thereof, Anoka County Minnesota (the "LLAL Parcel"), which property is adjacent to the EDA Parcel. C. LLAL acquired a portion of the LLAL Parcel from the EDA, pursuant to a Purchase and Redevelopment Agreement between EDA and LLAL dated March 11, 2013 (the "Redevelopment Agreement"). D. Under the Redevelopment Agreement, LLAL is required to construct an expansion of the LLAL's assisted living facility on the LLAL Parcel, such expansion being referred to in the Redevelopment Agreement as the "Minimum Improvements." E. In order to accommodate the efficient development of the Minimum Improvements on that LLAL Parcel, the Parties have agreed that LLAL will construct a driveway that provides ingress and egress from the LLAL Parcel and the EDA Parcel to Town Center Parkway (the "Access Driveway") such driveway to be located on the EDA Parcel in the location legally described and depicted on Exhibit A attached hereto (the "Access Driveway Easement Area"). F. The EDA intends to further subdivide the EDA Parcel and sell individual lots to 427348v5 SJB LN140-109 3 third parties for development for various uses; and the future subdivided lot that includes the Access Driveway Area is referred to herein as the "Future Adjacent Parcel." G. The Parties desire to create and grant pursuant to the terms hereof an easement in, on, over and across the portion of the EDA Parcel described as the Access Driveway for the purposes of ingress and egress, and to allocate construction and maintenance responsibilities among the Parties regarding such Access Driveway, subject to the terms and conditions set forth below. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereby declare as follows: 1. Recitals. The foregoing recitals are true and correct and incorporated herein by reference. The term "Owner," as used in this Agreement, shall mean the then current owner of fee simple title to a Parcel. The term "Parcel" shall mean the LLAL Parcel, the EDA Parcel, or the Future Adjacent Parcel, in each case as the context requires. From and after the Transfer (as defined in Section 13 hereof) of the Future Adjacent Parcel to a third party, the EDA is no longer a Party to this agreement. 2. Grant of Easement for Ingress/Egress. The Parties hereby establish, grant and convey a perpetual, non-exclusive access easement for vehicular and pedestrian ingress, egress and access purposes over, on, through the Access Driveway Easement Area. The Access Driveway Easement Area may be used by Owners of the LLAL Parcel and the Future Adjacent Parcel (and, prior to Transfer of the Future Adjacent Parcel, owners of the EDA Parcel), along with their tenants, subtenants and occupants, and their respective employees, customers, agents and invitees in accordance with the terms of this Agreement. Other than as reasonably required in connection with repair and replacement activities, no noxious or offensive odor, appearance or activity or hazardous materials or substances shall be maintained or permitted within the Access Driveway Easement Area, and no vehicles, equipment, trailers or other portable or temporary structures or equipment shall be repaired or parked within or on the Access Driveway Easement Area. No obstructions shall be erected or permitted within the Access Driveway Easement Area that would prevent, restrict, or otherwise inhibit the passage of vehicles within the Access Driveway Easement Area or on a Parcel, except for temporary obstructions or closures for maintenance, repair and replacement purposes in accordance with Section 3, below. 3. Construction and Maintenance of Access Driveway. (a) In connection with its development of the LLAL Parcel, LLAL shall construct the portion of the Access Driveway at its sole cost and expense pursuant to the plans and specifications approved by the Parties dated , 2013 prepared by . LLAL shall complete construction of the Access Driveway by the date LLAL receives a certificate of occupancy from the City of for the Minimum Improvements on the LLAL Parcel. 427348v5 SJB LN140-109 4 (b) All construction activities for the Access Driveway shall be performed in compliance with all legal requirements and applicable governmental authorities. All construction shall utilize new materials, and shall be performed in a good, safe and worker -like manner. (c) In connection with the construction of the Access Driveway, the EDA hereby grants to LLAL a temporary construction easement for encroachments upon the EDA Parcel (beyond the boundaries of the Access Driveway Easement Area) as is reasonably necessary for the performance of such construction work. LLAL shall use commercially reasonable efforts to minimize any interference with the normal use of the EDA Parcel and shall, at its sole expense, repair any damage to the improvements on the EDA Parcel and, promptly after completion of the work, restore the affected EDA Parcel to substantially the condition it was in immediately prior to such work. (d) Prior to Transfer of the Future Adjacent Parcel to a third party, LLAL and any subsequent Owner of the LLAL Parcel shall, at its cost, keep and maintain the Access Driveway in good order and condition, and repair and replace the surface of the Access Driveway as reasonably required to keep such area in good order and condition, ordinary wear and tear excepted. Such maintenance work shall include, without limitation, removal of dirt and snow, removal of trash and debris, patching and sealing driveways and parking surfaces, removing and replacing the driveways and parking surfaces within the Access Driveway Easement Area as may be required from time to time, keeping and maintaining any lighting serving the Access Driveway from time to time in good operating condition, and cleaning, trimming, and maintaining any landscaping located within the portion of the Access Driveway Easement Area. (e) From and after Transfer of the Future Adjacent Parcel to a third party, the Owner of the LLAL Parcel shall undertake the maintenance responsibilities described in paragraph (d). All out-of-pocket cost and expenses incurred by the owner of the LLAL Parcel to maintain and repair the Access Driveway Easement Area shall be shared equally by owners of the LLAL Parcel and the Future Adjacent Parcel. The Owner of the Future Adjacent Parcel shall, within thirty (30) days after receipt, from the Owner of the LLAL Parcel, of an invoice setting forth the maintenance, repair and replacement costs incurred by the Owner of the LLAL Parcel, reimburse the Owner of the LLAL Parcel for its 50% share of such costs. (f) Notwithstanding anything to the contrary contained in this Agreement, in the event of the failure of an Owner to perform all or any portion of its responsibilities under this Section 3 with respect to the Access Driveway Easement Area, including without limitation, payment of costs, within thirty (30) days after written notification from the non -defaulting Owner, or such lesser period as is required in an emergency or due to weather conditions such as accumulated snow or ice, or if not reasonably capable of cure within thirty (30) days such longer period as is reasonably required to perform the same with due diligence, the non -defaulting Owner may cause such responsibilities to be performed or paid at the expense of the non - defaulting Owner, and the defaulting Owner shall reimburse the non -defaulting Owner Parcel within thirty (30) days after receipt of an invoice therefore. In the event the Owner of the LLAL Parcel performs such work and is not reimbursed within such thirty (30) day period, the amounts owed to Owner of the LLAL Parcel thereafter include interest at the rate of 5% annum, until fully paid. 427348v5 SJB LN140-109 5 4. Insurance. The Owner of the LLAL Parcel, and each future Owner of the Future Adjacent Parcel, shall maintain at all times their own commercial general liability insurance against claims for personal injury or death and property damage on the their respective Parcel in amounts deemed prudent and reasonable according to industry standards. Each Owner shall also maintain or cause to be maintained on behalf of itself and any mortgagees, commercial general liability insurance with combined single limit coverage for bodily injury, personal injury and property damage of not less than $2,000,000, and which shall include contractual liability and indemnity coverage, with respect to the Access Driveway Easement Area. This Section does not apply to the EDA prior to conveyance of the Future Adjacent Parcel to a third party. 5. Indemnification; Waiver of Subrogation. It is expressly understood and agreed that the Parties do not assume any liability for the negligent acts or willful misconduct of any other Party or such Parry's agents, servants, successors and assigns as it relates to this Agreement and the operation, repair, replacement and/or maintenance of the Access Driveway Easement Area. Each Party shall indemnify, protect, defend and hold harmless the other Parties, their agents, employees, customers, invitees and related persons and entities from and against any and all losses, damages, liabilities, suits, obligations, judgments, injuries, claims, demands, costs and expenses, including without limitation legal and consultant expenses of any kind whatsoever, due to loss of life or injury to persons or property, which may arise out of or relate to the indemnifying Party's use of the Access Driveway Easement Area or any third party claiming through or under such indemnifying party's use of the Access Driveway Easement Area, except only to the extent any such losses, damages, liabilities, suits, obligations, judgments, injuries, claims, demands, costs and expenses arise out of or relate to the negligence or willful misconduct of the indemnifying Party or anyone claiming through or under such Party. The indemnities and assumptions of liabilities provided in this Section 5 shall continue in full force and effect notwithstanding the termination of this Agreement or the easement granted herein, whether by expiration of time, by operation of law, or otherwise. Notwithstanding anything to the contrary contained herein, the Parties hereby release one another and their respective officers, directors, agents, and employees from any and all liability (to the other or anyone claiming through or under them by way of subrogation or otherwise) for any loss or damage covered by property or liability insurance, even if such loss or damage was caused by the fault or negligence of such Party, or anyone for whom such Party may be responsible. 6. Notice. Any notice required or permitted to be given by any Party upon another Party is given in accordance with this Agreement if it is directed to the applicable Party and mailed by United States registered or certified mail, return receipt requested, postage prepaid; or if deposited cost paid with a nationally recognized, reputable overnight courier, properly addressed as follows: EDA: Lino Lakes Economic Development Authority 100 Civic Center Parkway Lino Lakes, MN 55337 Attention: Community Development Director LLAL: Lino Lakes Assisted Living, LLC 427348v5 SJB LN140-109 6 PO Box 6124 St. Cloud, MN 56302 Attention: Stephen Upgren A Party may change its address for notice purposes by written notice to the other Parties in accordance with the requirements set forth above. The date of such notice will be deemed to have been the date on which such notice is delivered or attempted to be delivered as shown by the certified mail return receipt or a commercial delivery service record. All notices shall be addressed to the current address of record for an Owner as indicated on the property tax records maintained by the Anoka County Assessor's office for the LLAL Parcel and the EDA Parcel. 7. Default and Remedies. In the event of any violation by a Party of any of the provisions of this Agreement, in addition to the right to collect damages, the non -violating Party will have the right to enjoin such violation in a court of competent jurisdiction. Before commencement of any such action, written notice of the violation will be given to violating Party specifying the claimed violation. In addition, in the event that a Party fails to perform any of the provisions of this Agreement or violates any of the provisions hereof, the non -defaulting Party(ies) may cure such default; provided, however, that written notice of such intention, specifying the nature of the alleged default and the actions to be performed, has been given to the defaulting Party not less than thirty (30) days prior to the commencement of such action or such lesser time if, in the reasonable judgment of the non -defaulting Party(ies), such default is emergency in nature. If the non -defaulting Party(ies) elects to perform the action to have been performed by the defaulting Party, on completion of such action, an itemized statement of the costs thereof will be submitted to the defaulting Party, and the amount thereof will be immediately due and payable by the defaulting Party to the non -defaulting Party(ies), with interest at the rate of 5% per annum, until paid. 8. Third Party Approvals. Except for the Parties and American Heritage National Bank (whose consent to this Agreement is attached hereto), there are no tenants, owners, or mortgagees, and there are no leases, agreements or other encumbrances of any nature whatsoever affecting title to a Parcel that would require the consent of any third party to this Agreement. 9. No Dedication. Nothing contained in this Agreement shall be deemed to be a gift or dedication of any portion of either Parcel to the general public or for any public use or purpose whatsoever, it being the intention of the Parties that nothing in this Agreement, express or implied, shall confer upon any person, other than the Parties and their successors and assigns, any rights or remedies under or by reason of this Agreement, provided that the foregoing is not intended to limit the rights of each Owner to use the Access Driveway Easement Area for the purposes expressed above. 10. Invalidity. If any provision of this Agreement, or portion thereof, or the application thereof to any person or circumstances, shall, to any extent be held invalid, inoperative or unenforceable, the remainder of this Agreement, or the application of such provisions or portion thereof to any other person or circumstances, shall not be affected thereby; it shall not be deemed that any such invalid provision affects the consideration for this Agreement; and each provision of this Agreement shall be valid and enforceable to the fullest 427348v5 SJB LN140-109 7 extent permitted by law. 11. Governing Law; Successors and Assigns. This Agreement shall be construed in accordance with the laws of the State of Minnesota. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties, it being the intent hereof that the rights and obligations hereunder shall follow the ownership of the LLAL Parcel and the EDA Parcel, respectively. This Agreement shall run with the land and bind the title to the LLAL Parcel and the EDA Parcel. 12. Modifications; Merger Not Intended. This Agreement may be amended, modified, or terminated at any time by an agreement in writing, executed and acknowledged by the Owners of the Parcels. Common ownership of any Parcel shall not cause this Agreement to be extinguished by operation of merger in whole or in part. 13. Release. Upon the assignment, conveyance, sale or other transfer by an Owner of its Parcel ("Transferor") of its entire right, title and interest in such property (a "Transfer"), the Transferor shall be released from the obligations of this Agreement arising after the date on which the instrument effectuating such Transfer is recorded in the official records of Anoka County, Minnesota (the "Record Date"). The Transfer shall not result in the release of the Transferor from any obligations of the Transferor arising under this Agreement prior to the Record Date, including, without limitation, payment of any amounts which may then be due and owing hereunder. The transferee ("Transferee") shall not be personally liable for any default under this Agreement that occurred or accrued, without regard to any applicable cure periods, prior to the Record Date. Upon such Transfer, the Transferee shall execute and file in the appropriate land records in Anoka County, Minnesota, a statement setting forth the name of the Transferee, the address of the Transferee to which all notices for the purposes of this Agreement shall be sent, the nature of the interest held by the Transferee, and the date that such interest was acquired. The Transferee of any Parcel or any portion thereof, by acceptance of a deed conveying title thereto or the execution of a contract for the purchase thereof, whether from an original Party or from a subsequent Owner of such Parcel, shall accept such deed or contract upon and subject to each and all of the easements, covenants, conditions, restrictions and obligations contained herein. By such acceptance, any such Transferee shall for itself and its successors and assigns, covenant, consent, and agree to keep, observe, comply with, and perform the obligations and agreements set forth herein with respect to the Parcel so acquired by such Transferee. 14. Rights of Lenders. No provision of this Agreement shall in any way defeat or render invalid the lien of any mortgage, deed of trust, or other similar consensual security instrument entered into in good faith and for valuable consideration, whether presently in existence or recorded in the future against any Parcel; however, any lien of this type will be subordinate and subject to the provisions of this Agreement. If any Parcel or portion thereof is purchased in connection with a foreclosure of a mortgage or security instrument or is conveyed to the party so secured in lieu of foreclosure, any person so acquiring or purchasing and its successors and assigns will hold any and all real property so purchased or acquired subject to the provisions of this Agreement. 427348v5 SJB LN140-109 8 15. Construction. The rules of strict construction shall not apply to this Agreement. This Agreement shall not be interpreted in favor of or against any Party merely because of its respective efforts in preparing it. This Agreement embodies the entire agreement and supersedes any prior oral or written agreements with respect to the matters stated herein. 427348v5 SJB LN140-109 [SIGNATURES ON FOLLOWING PAGES] 9 SIGNATURE PAGE TO EASEMENT AGREEMENT (Ingress and Egress) IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the day and year first above written. STATE OF MINNESOTA ) ) COUNTY OF ANOKA ) ss.: LINO LAKES ECONOMIC DEVELOPMENT AUTHORITY By Its President By Its Executive Director The foregoing instrument was acknowledged before me this day of , 2013, by Dave Roeser and Jeff Karlson, the President and Executive Director, respectively, of the Lino Lakes Economic Development Authority, on behalf of the authority. 427348v5 SJB LN140-109 10 Notary Public STATE OF MINNESOTA ) ) COUNTY OF ) ss.: LINO LAKES ASSISTED LIVING, LLC By Its The foregoing instrument was acknowledged before me this day of , 2013, by , the of Lino Lakes Assisted Living, LLC, a Minnesota limited liability company, on behalf of the company. 427348v5 SJB LN140-109 11 Notary Public LENDER CONSENT TO EASEMENT AGREEMENT (Ingress and Egress) The undersigned, as holder of first mortgage encumbering the LLAL Parcel, consents to the above Easement Agreement between the Lino Lakes Economic Development Authority and Lino Lakes Assisted Living LLC. STATE OF MINNESOTA ) ) COUNTY OF ) ss.: AMERICAN HERITAGE NATIONAL BANK By Its The foregoing instrument was acknowledged before me this day of 2013, by , the of American Heritage National Bank, a national banking association, on behalf of the bank. 427348v5 SJB LN140-109 12 Notary Public EXHIBIT A TO EASEMENT AGREEMENT (Ingress and Egress) Legal Description and Depiction of the Access Driveway Easement Area Legal Description: A permanent easement for driveway access over that part of Outlot B, The Village No. 3, Anoka County, Minnesota, described as follows: Commencing at the Northwest corner of said Outlot B; thence South 26 degrees 16 minutes 51 seconds East, assumed bearing along the westerly line thereof, 79.66 feet to the point of beginning; thence North 64 degrees 54 minutes 10 seconds East 30.00 feet; thence South 26 degrees 16 minutes 51 seconds East, parallel to said Westerly line 100.00 feet to the Northerly right of way line of Town Center Parkway as shown on said plat; thence South 64 degrees 54 minutes 10 seconds West, along said Northerly right of way line 30.00 feet to the intersection of said Northerly right of way line and the Westerly line of said Outlot B; thence North 26 degrees 16 minutes 51 seconds West, along said westerly line, 100.00 feet to the point of beginning. Depiction: ���%%//ffa M'�'..'t3P 17NiAt'A"tA4_i1kN' /��/L/� IJC.M HI:O u4 i1 Prrourfed Or A. 35K Access Drlveleav Easement Parcel Sketch Outlot a, The VlilaQe No. 3, Anoka County Lino lake. Minnesota Ur A.: S 430491vI SJB 1N140-109