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HomeMy WebLinkAboutResolution 7689 RESOLUTION 7689 CITY OF MOUNDS VIEW COUNTY OF RAMSEY STATE OF MINNESOTA RESOLUTION APPROVING A LEASE AND ACCESS LICENSE AGREEMENT WITH DELL -COMM, LOCATED AT 4860 MUSTANG CIRCLE WHEREAS, the City owns a land- locked parcel south of the Townsedge Terrace manufactured home park upon which one of the City's civil defense sirens is located; and, WHEREAS, the 16,558 square foot parcel is situated between Dell -Comm, located at 4860 Mustang Circle, and Midwest Motor Express, located at 2169 Mustang Drive; and, WHEREAS, Dell -Comm has been using the City's property for outdoor storage and parking of equipment and there is a mutual desire to formalize the terms of said usage through a lease arrangement; and, WHEREAS, in addition to certain financial considerations, Dell -Comm would agree to grant the City an access license across their property as a condition of the lease; and, WHEREAS, a Lease and Access License Agreement, attached as Exhibits A and B respectively, have been prepared and reviewed by attorneys representing both Dell Comm and the City of Mounds View. NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of Mounds View approves the Lease and Access License Agreement with Dell -Comm, located at 4860 Mustang Circle. Adopted this 8th day of November, 20 0. w Fla a y, ayor ATTEST: j QATttA James Ericson, City Administrator (seal) LEASE Between CITY OF MOUNDS VIEW As Lessor and DELL -COMM, INC. As Lessee Dated as of 2010 This instrument was drafted by: KENNEDY GRAVEN, CHARTERED (SJR) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337 -9300 374126 SJR MU210 -5 THIS LEASE, made as of this day of 2010, by and between the CITY OF MOUNDS VIEW, a municipal corporation under the laws of the State of Minnesota (the "City as Lessor and DELL -COMM, INC., a Minnesota corporation under the laws of the State of Minnesota (the "Lessee as Lessee. WITNESSETH: In consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows: ARTICLE I Demise of Site and Warranties Section 1.01. Demise Subject to and upon the terms, conditions, covenants, and undertakings hereinafter set forth, the City hereby leases to the Lessee, and the Lessee hereby leases from the City, the property described in Exhibit A attached hereto, located in Ramsey County, Minnesota (the "Site Section 1.02. City Warranties The City covenants and warrants to the Lessee that the City has good and merchantable title to the Site, has authority to enter into, execute, and deliver this Lease, and has duly authorized the execution and delivery of this Lease; Section 1.03. Lessee Warranties The Lessee covenants and warrants to the City that the Lessee has authority to enter into, execute, and deliver this Lease and has duly authorized the execution and delivery of this Lease; Section 1.04. Environmental Covenants (a) To the best knowledge of the City, after due inquiry: (i) no dangerous, toxic or hazardous pollutants, contaminants, chemicals, waste, materials or substances, as defined in or governed by the provisions of any federal, state, or local law, statute, code, ordinance, regulation, requirement, or rule relating thereto (collectively, `Environmental Regulations and also including urea formaldehyde, polychlorinated biphenyls, asbestos, asbestos containing materials, nuclear fuel or waste, radioactive materials, explosives, carcinogens and petroleum products, or any other waste, material, substance, pollutant or contaminant which would subject the owner of the Site to any damages, penalties, or liabilities under any applicable Environmental Regulation (collectively, "Hazardous Substances are now or have been stored, located, generated, produced, processed, treated transported, incorporated, discharged, emitted, released, deposited or disposed of in, upon, under, over or from the Site in violation of any Environmental Regulation; (ii) no threat exists of a discharge, release or emission of a Hazardous Substance upon or from the Site into the environment; (iii) the Site has not been used as or for a mine, a landfill, a dump or other disposal facility, an industrial or manufacturing facility, or a gasoline service station; (iv) no underground storage tank is located at the Site or has previously been located therein but has been removed therefrom; (v) no violation of any Environmental Regulation now exists relating to the Site, no notice of any such violation or any alleged violation thereof has been issued or given by any governmental entity or agency, and there is not now any investigation or report involving the Site by any governmental entity or agency which in any way relates to Hazardous Substances; (vi) no person, party, or private or governmental agency or entity has given any notice of or asserted any claim, cause of action, penalty, cost, or demand for payment 374126 SJR MU210 -5 1 or compensation, whether or not involving any injury or threatened injury to human health, the environment or natural resources, resulting or allegedly resulting from any activity or event described in (i) above; (vii) there are not now any actions, suits, proceedings or damage settlements relating in any way to Hazardous Substances, in, upon, under, over, or from the Site, (viii) the Site is not listed in the United States Environmental Protection Agency's National Priorities List of Hazardous Waste Sites or any other list of Hazardous Substance sites maintained by any federal, state or local governmental agency; and (ix) the Site is not subject to any lien or claim for lien or threat of a lien in favor of any governmental entity or agency as a result of any release or threatened release of any Hazardous Substance. (b) The Lessee shall not store, locate, generate, produce, process, treat, transport, incorporate, discharge, emit, release, deposit, or dispose of any Hazardous Substance in, upon, under, over or from the Site in violation of any Environmental Regulation, shall not permit any Hazardous Substance to be stored, located, generated, produced, processed, treated, transported, incorporated, discharged, emitted, released, deposited, disposed of, or to escape therein, thereupon, thereunder, thereover, or therefrom in violation of any Environmental Regulation, shall cause all Hazardous Substances to be properly removed therefrom and properly disposed of in accordance with all applicable Environmental Regulations, and shall not install or permit to be installed any underground storage tank thereon or thereunder in violation of any Environmental Regulations which are applicable to the Site. In the event any Hazardous Substance is found upon, under, over or from the Site in violation of any Environmental Regulation and caused by Lessee, or if any lien or claim for lien in favor of any governmental entity or agency is threatened as a result of any release of any Hazardous Substance by Lessee, the Lessee shall, within ten days of such finding, deliver written notice thereof to the City and shall promptly remove such Hazardous Substances caused or released by Lessee upon, under, over, or from the Site and prevent the imposition of any liens against the Site for the cleanup of any such Hazardous Materials. Such removal shall be conducted and completed in compliance with all applicable federal, state and local laws, regulations, rules ordinances and policies, in accordance with the orders and directives of all federal, state and local governmental authorities. In the event the Lessee has not removed such Hazardous Substances caused or released on the Site by Lessee within a time period deemed reasonable by the City, the City may, at its discretion, take such remedial action as the City deems appropriate. Each party hereto further agrees, to the extent permitted by Minnesota law, to reimburse the other party for any and all claims, demands, judgments, penalties, liabilities, costs, damages and expenses, including court costs and attorneys fees directly or indirectly incurred by the reimbursing parry's act or failure to act in any action resulting from any breach of the foregoing covenants. The foregoing representations, warranties, and covenants of this Section shall be deemed continuing covenants, representations, and warranties for the benefit of the parties hereto, including but not limited to any purchaser at a foreclosure sale, any transferee of the title of the City or the Lessee or any other purchaser at a foreclosure sale, and any subsequent owner of the Site, and shall survive the satisfaction or release of this Lease, any foreclosure of a mortgage lien, and any acquisition of title to the Site or any part thereof by the Lessee or any other parry, by deed in lieu of foreclosure or otherwise. Any amounts covered by the foregoing shall bear interest from the date incurred at the maximum rate permitted by law and shall be payable on demand. 374126 SJR MU210 -5 2 ARTICLE H Term and Rent Section 2.01. Term The term of this Lease (the "Term shall commence as of the day and year first above written, and shall end at the time set forth in Section 3.01. Section 2.02. Rent During the Term hereof the Lessee agrees to pay to the City at 2401 Highway 10, Mounds View, MN 55112, or at such other place as the City may from time to time designate in writing, $1,000.00, for the year 2010 of the Term of this Lease, due and payable in one lump sum upon execution of this Lease. Thereafter, the $1,000.00 shall be increased by three percent (3 annually for each of the years 2011 and 2012 of the Term of this Lease, and for any subsequent year thereafter. All rent payments other than the initial rent payment shall be made on or before January 1 of each year of the Term of this Lease, unless this Lease is earlier terminated as provided herein. Section 2.03. Taxes, Other Governmental Charges and Utility Charges During the Term of this Lease, the Lessee shall pay or cause to be paid when due all gas, water, steam, electricity, heat, power, and other utility charges resulting from Lessee's use of such utilities and incurred in the operation, maintenance, use, occupancy, and upkeep of the Site; provided, however, in no event shall Lessee be responsible for paying any such charges which are used or incurred as a result of the City's ownership of the Site or any use of the Site or utilities thereon by the City. The estimated taxes assessed or levied against the Site for 2011 is $1,052.00. If at anytime during the Term or extension thereof, the taxes shall increase by more than fifteen percent (15 on a cumulative basis from the estimate for 2011, Lessee shall have the right, upon thirty (30) days notice to Lessor, to terminate this Agreement; provided, Lessee shall be obligated to pay taxes in the year of such Term which remain due and payable during the year Lessee terminated this Agreement which are incurred by the City as a result of Lessee's use of the Site. Lessee shall pay all property and excise taxes and governmental charges of any kind whatsoever which may at any time be lawfully assessed or levied against or with respect to the Site as the result of the Lessee's use of the Site. Section 2.04. Easements Each party hereto will from time to time, at the request of the other party and at their own respective cost and expense, cooperate and join with the other party: (a) in granting easements and other rights in the nature of easements, releasing existing easements or other rights in nature of easements which are for the benefit of the Site; (b) in executing amendments to any covenants and restrictions affecting the Site; (c) in executing and delivering to any person any instrument appropriate (i) to confirm or to the effect that such grant, release or execution is not detrimental to the proper conduct of the operations of the Lessee on or in the Site, (ii) to show the consideration, if any, being paid for such grant, release, or amendment, (iii) to show that such grant, release, dedication, transfer, petition or amendment does not materially impair the use of the Site or reduce the value of the Site, or (iv) to confirm that each party will remain obligated hereunder to the same extent as if such grant, release, or amendment had not been made, and the Lessee will perform all obligations under such instrument. The consideration, if any, received by the City or the Lessee for such grant, release, or amendment shall be the property of the party receiving such consideration. The Lessee shall provide access to the Site via the Knox Box attached to the perimeter fencing enclosing the Site. 374126 SJR MU210 -5 3 ARTICLE III Termination and Renewal Section 3.01. Termination of Lease Term. Renewals (a) The Term of this Lease will terminate upon the earliest o£ (i) the date on which either party terminates this Lease pursuant to Section 5 or as otherwise provided in this Lease; or (ii) as set forth in this Section. (b) If this Lease is not otherwise terminated pursuant to Section 3.01(a) or extended pursuant to Section 3.01(c), it shall terminate as of December 31, 2012. (c) This Lease shall automatically renew for one year periods beginning January 1, 2013, unless either the City or the Lessee shall provide 90 days notice to the other party of its intend to terminate the Lease. Absent such termination notice of the Lease, the Lease Term shall continue for a one year period subject to the Lease rent and adjustment set forth in Section 2.02. Section 3.02. Surrender of Site Upon termination of the Term of this Lease, the Lessee shall surrender the Site to the City in the condition in which it was originally received from the City, except as repaired, rebuilt, restored, altered, or added to as permitted or required hereby, ordinary wear and tear excepted. The Lessee shall have the right to remove from the Site, at or prior to such termination or possession, all personal property located therein which was financed with moneys provided by the Lessee (unless such removal would result in any claim or lien against the City and the Site) and which is not otherwise owned by the City, but the Lessee shall repair any damages caused by such removal. ARTICLE IV Use of Site; Additional Covenants Section 4.01. Use. The City and the Lessee hereby acknowledge that the Site may be used for storage of materials and equipment of the Lessee only as permitted by the City's zoning ordinance and other land use regulations of general application and this Lease. The Lessee shall not modify the surface area of the Site nor make any excavations at the Site without first obtaining the express written permission of the City. The City represents and warrants that during the Term of this Lease, the City shall take no action to rezone the Site which would prohibit Lessee's current use of the same. Section 4.02. Quiet Enjoyment The City covenants that upon the Lessee's paying the rent reserved herein, and performing all conditions and covenants set forth in this Lease, the Lessee shall and may peaceably have, hold, and enjoy the Site for the term of this Lease. The Lessee covenants that upon expiration of this Lease, it shall give the City peaceable possession of the Site. Section 4.03. Assignment and Subletting The Lessee shall have no right to assign its interest in this Lease, without Lessor's written prior consent, which shall not be unreasonably withheld, conditioned or delayed. 374126 SJR MU210 -5 4 Section 4.04. Existing City Civil Defense Equipment The Lessee acknowledges that the Site contains civil defense equipment of the City. The Lessee shall take no action to interfere with or damage the civil defense equipment of the City. Lessee shall reimburse the City for any damage caused by the Lessee to the City's civil defense equipment. Nothing contained in this Lease shall prevent the City from maintaining its civil defense equipment necessary for the public health, safety and welfare of the City or prevent the City from accessing its civil defense equipment for repairs, inspection or replacement. The City shall hold Lessee harmless and indemnify Lessee for all damages, claims or costs incurred, including, but not limited to, damage to Lessee's personal property on the Site, resulting from the City or its agent's gross negligence or willful misconduct at anytime the City accesses the Site as provided in this Lease. ARTICLE V Events of Default and Remedies Section 5.01. Events of Default Defined Any one or more of the following events shall be an "Event of Default" under this Lease: (a) Failure by the Lessee to pay any payment required to be paid hereunder within five (5) business days of the time specified herein. (b) Failure by either party to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in clause (a) of this Section, for a period of one hundred twenty (120) days after written notice specifying such failure and requesting that it be remedied has been given to such party by the other party, unless the nondefaulting parry shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, the nondefaulting party shall not unreasonably withhold its consent to an extension of such time if corrective action is instituted by the other party within the applicable period and diligently pursued until the default is corrected. The provisions of this Section 5.01(b) are subject to the following limitation: if by reason of force majeure either party is unable in whole or in part to carry out its obligations under this Lease, it shall not be deemed in default during the continuance of such inability or during any other delays which are a direct consequence of the force majeure inability, and the time for such performance shall be extended to cover such delays. The term force majeure as used herein shall mean, without limitation, the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the government of the United States of America or any of its departments, agencies or officials, or any civil or military authority, or the State of Minnesota or any of its departments, agencies or officials; insurrections; riots; landslides; earthquakes; fires; storms; droughts; floods; explosions; breakage or accident to machinery, transmission pipes or canals; or any other cause or event not reasonably within the control of a party and not resulting from its negligence. Each party agrees, however, to remedy with all reasonable dispatch the cause or causes preventing it from carrying out its agreements. 374126 SJR MU210 -5 5 (c) The Lessee shall: (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee, liquidator or the like of the Lessee or of all or a substantial part of its property; (ii) commence a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect); or (iii) file a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding -up or composition or adjustment of debts. Section 5.02. Remedies on Default Whenever any Event of Default shall have happened and be continuing, the nondefaulting party may take, but only upon not less than five (5) days' written notice to the defaulting party, one or any combination of the following remedial steps: (a) If the Lessee is in default, the City may: (i) without terminating this Lease, re -enter and take possession of the Site and exclude the Lessee from using the Site until the Event of Default is cured; or (ii) terminate the Term of this Lease, exclude the Lessee from use of the Site, and use its best efforts to lease the Site to another for the account of the Lessee. (b) If the City is in default, Lessee may terminate this Lease upon thirty (30) days written notice. (c) Either party, in addition to the foregoing remedies, may take any other action at law or in equity which may appear necessary or desirable to enforce performance and observance of any obligation, agreement, or covenant contained herein. Section 5.03. Delay; Notice No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle any party to exercise any remedy reserved to it in this Lease it shall not be necessary to give any notice, other than such notice as may be required in this Lease. Section 5.04. No Remedy Exclusive No remedy herein conferred upon or reserved to either party is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. Section 5.05. No Additional Waiver Implied by One Waiver In the event any agreement contained in this Lease is breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. 374126 SJR MU210 -5 6 ARTICLE VI Administrative Provisions Section 6.01. Notices All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or deposited in the United States mail in certified or registered form with postage fully prepaid: If to the Lessee: DELL -COMM, INC. 4860 Mustang Circle Mounds View, MN 55112 Attention: If to the City: City of Mounds View 2401 Highway 10 Mounds View, MN 55112 Attention: City Administrator With a copy to: Kennedy Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 Attention: Scott J. Riggs The above -named persons, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent. Section 6.02. Binding Effect This Lease shall inure to the benefit of and shall be binding upon the Lessee and the City and their respective successors and assigns. Section 6.03. Severability In the event any provision of this Lease shall be held invalid or unenforceable by any court or competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 6.04. Amendments, Changes and Modifications This Lease may be amended or any of its terms modified only by written amendment authorized and executed by the City and the Lessee. Section 6.05. Further Assurances and Corrective Instruments The Lessee and the City agree that they will, if necessary, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Site or for carrying out the expressed intention of this Lease. Section 6.06. Execution in Counterparts This Lease may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 374126 SJR MU210 -5 7 Section 6.07. Applicable Law; Venue This Lease shall be governed by and construed in accordance with the laws of the State of Minnesota. Any disputes, controversies, or claims arising out of this Lease shall be heard in the state or federal courts of Minnesota, and the parties hereto waive any objection to the jurisdiction of these courts, whether based on convenience or otherwise. Section 6.08. Authorized Officers Whenever under the provisions of this Lease the approval of the Lessee or the City is required, or the Lessee or the City is required to take some action at the request of the other, such approval of such request shall be given for the Lessee or for the City by an Authorized Officer, and any party hereto shall be authorized to rely upon any such approval or request. Section 6.09. Captions The captions or headings in this Lease are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Sections of this Lease. Section 6.10. Immuni With respect to any third party, nothing in this Agreement shall be construed to constitute a waiver of any statutory or common law immunity from or limitation on liability to which the City is entitled under law, including but not limited to those set forth in Minnesota Statutes, Chapter 466. Section 6.11. No Individual Liability All covenants, stipulations, promises, agreements, and obligations of the Lessee or the City contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Lessee or the City, respectively, and not of any governing body member, officer, agent, servant, or employee of the Lessee or the City in the individual capacity thereof. 374126 SJR MU210 -5 8 IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date first above written. CITY OF MOUNDS VIEW By: Joe Flaherty Its: Mayor By: James Ericson Its: City Administrator STATE OF MINNESOTA ss. COUNTY OF RAMSEY On this day of 2010, before me, a Notary Public within and for said County, personally appeared Joe Flaherty and James Ericson, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Administrator of the City of Mounds View, a municipal corporation under the laws of the State of Minnesota and; that this Lease was executed on behalf of the City by authority of its City Council. Notary Public 374126 SJR MU210 -5 9 DELL -COMM, INC. By: Its: By: Its: STATE OF MINNESOTA ss. COUNTY OF RAMSEY On this day of 2010, before me, a Notary Public within and for said County, personally appeared and to me personally known, who, being each by me duly sworn, did say that they are the and respectively, of DELL -COMM, INC., a Minnesota corporation under the laws of the State of Minnesota and that this Lease was signed on behalf of the Lessee by authority of its board of directors. Notary Public 374126 SJR MU210 -5 10 EXHIBIT A TO LEASE The Site described in the referenced instrument is located in Ramsey County, Minnesota, and is legally described as follows: The North 101.16 Feet of the East 164 Feet of the Southwest 1/4 of the Northeast 1/4 of SECTION 17 TOWNSHIP 30 RANGE 23 374126 SJR MU210 -5 A -1 ACCESS LICENSE AGREEMENT THIS ACCESS LICENSE AGREEMENT "Agreement is made and entered into as of this day of 2010, by and between the City of Mounds View, Minnesota, a Minnesota municipal corporation "City FAC Holdings, LLC, a Minnesota limited liability company "FAC and Dell -Comm, Inc., a Minnesota corporation ("Dell Comm"). RECITALS WHEREAS, City is the owner of the real property described in Exhibit A which is attached hereto and incorporated herein by this reference (the "City Parcel'); WHEREAS, FAC is the owner of the real property described in Exhibit B which is attached hereto and incorporated herein by this reference (the "FAC Parcel and WHEREAS, FAC has leased to Dell -Comm, Inc. "Dell- Comm certain rights to the FAC Parcel; and WHEREAS, Dell -Comm and the City have entered into a Lease for the City Parcel dated the day of 2010 "City/Dell -Comm Lease for a term of three (3) years commencing on January 1, 2010 and ending on December 31, 2012, which may be automatically extended pursuant to the City /Dell -Comm Lease "Term and WHEREAS, in consideration of the City/Dell -Comm Lease, and so long as the City/Dell- Comm Lease is in full force and effect, FAC and Dell -Com have agreed to provide a license to the City over and across the FAC Parcel during the Term of the City/Dell -Comm Lease in order to facilitate more convenient access to and further the use and enjoyment of the City Parcel. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Incorporation of Recitals The Recitals set forth above in this Agreement are incorporated into this Agreement as if fully set forth herein. 2. License for Access So long as the City/Dell -Comm Lease is in full force and effect, FAC hereby grants and conveys to the City a permanent non exclusive license for vehicular and pedestrian traffic over and across that portion of the FAC Parcel as may now or in the future exist for use as a driveway, parking area(s), and pedestrian walkways and/or sidewalks, as depicted in the cross hatched area in Exhibit C, which is attached hereto and incorporated herein by this reference (the "FAC License Area and Dell -Comm hereby consents to the same. The purpose of such license for access is to provide the City and its officers, representatives, employees, agents, guests, invitees, customers, tenants, and successors (collectively "Permittees ingress and egress over and along the FAC License Area and Dell Comm's premises to access the City Parcel. 374122 SJR MU210 -5 I 3. No Gift or Dedication Nothing contained in this Agreement shall be deemed a gift or dedication of any portion of the License Area to the general public, or for any public purpose. 4. Maintenance and Repair The parties agree that FAC or Dell -Comm, as may be required by the Lease between FAC and Dell -Comm, shall keep the License Area in a serviceable condition, and in accordance with generally accepted maintenance standards for similar commercial real estate in the Twin Cities Metropolitan Area. In the event FAC or Dell -Comm, or its successors or assigns performs excavations or otherwise disturbs any of the FAC License Area in the course of maintenance, repair, replacement or other activity or usage of the FAC License Area, FAC or Dell -Com, as the case may be, shall promptly restore the damaged, excavated, or disturbed area to substantially the same condition as existed immediately prior to the damage, excavation, or disturbance. 5. Environmental Matters The City shall not be responsible for any costs, expenses, damages, demands, obligations, including penalties and reasonable attorneys' fees, or losses resulting from any claims, actions, suits or proceedings based upon a release or threat of release of any hazardous substances, pollutants, or contaminants which may have existed on, or which relate to, the FAC License Area or the FAC Parcel prior to the date of this Agreement. 6. Warranty of Title FAC warrants that it is the owner of the FAC Parcel as described herein and that FAC has the right, title and capacity to convey to the City the license herein. 7. Interference with License None of the parties shall erect or place or permit to be erected or placed any improvement, obstruction, or impediment which would materially interfere with the free and unrestricted access in and to the License Area as granted pursuant to this Agreement. 8. Covenants Running with the Land, Binding Effect Each reference to the City or FAC or Dell -Com shall be deemed to include each of such entities' successors and assigns. The license granted herein and terms and conditions of this Agreement shall be binding on FAC, Dell -Com and their successors and assigns, and the City, its successors and assigns. 9. Notices All notices, demands, consents and requests which may be or are required to be given by either party to the other hereunder shall be either personally delivered (including overnight delivery service) or by facsimile transmission, and addressed as follows: To City: City of Mounds View 2401 Highway 10 Mounds View, MN 55112 Phone: (763) 717 -4000 Fax: (763) 717 -4019 Attn: James Ericson 374122 SJR MU210 -5 2 To FAC: FAC Holdings, LLC 4860 Mustang Circle Mounds View, MN 55112 -1548 Phone: Fax: Attn: The foregoing address may be changed from time to time by written notice. Notices shall be deemed received upon personal delivery or facsimile confirmation thereof, or on the next business day if delivered by overnight delivery service. 10. Choice of Law This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota, without regard to choice of law provisions. 11. Entire Agreement This document contains the entire understanding and agreement of the parties with respect to the subject matter hereof, and may not be amended except in a writing signed by each of the parties hereto. 12. Termination This Agreement shall terminate upon expiration or termination of the City/Dell -Com Lease, and, it is agreed and understood that, notwithstanding anything herein to the contrary, this Agreement may be terminated by either party upon thirty (30) days written notice, and in such case of termination or expiration, all rights granted herein shall cease. 13. Recordina This Agreement shall not be recorded. 374122 SJR MU210 -5 3 IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above written. CITY OF MOUNDS VIEW FAC HOLDINGS, LLC By: By: Joe Flaherty Its: Its: Mayor By: By: James Ericson Its: Its: City Administrator Dell -Com, Inc. hereby consents to the terms and conditions of this Access License Agreement. DELL -COMM By: Its: 510558v2 374122 SJR MU210 -5 4 EXHIBIT A LEGAL DESCRIPTION OF CITY PARCEL The North 10 1. 16 Feet of the East 164 Feet of the Southwest 1/ 4 of the Northeast 1 4 of SECTION 17 TOWNSHIP 30 RANGE 23 RAMSEY COUNTY, MINNESOTA 4h A4 OWE" vi ew U N pARK R��(A IL D D No 3 2a City Parcel 374122 SJR MU210-5 A-1 EXHIBIT B LEGAL DESCRIPTION OF FAC PARCEL LOT 2 AND LOT 3, BLK I MOUNDS VIEW INDUSTRIAL PARK NO. 3 RAMSEY COUNTY, MINNESOTA MbUNV Du No. FAC Parcel 374122 SJR M C-1 EXHIBIT C DEPICTION OF FAC LICENSE AREA »u DELL COMM 374122 SJR MU210 -5 C -2