HomeMy WebLinkAboutResolution 8700 RESOLUTION NO. 8700
CITY OF MOUNDS VIEW
COUNTY OF RAMSEY
STATE OF MINNESOTA
RESOLUTION APPROVING A LEASE AGREEMENT WITH
DIPPIN CHOCOLATE, LLC, FOR USE OF THE COMMERCIAL KITCHEN SPACE
AT THE MOUNDS VIEW COMMUNITY CENTER
WHEREAS, Dippin Chocolate, LLC, desires to lease kitchen space at the Mounds
View Community Center ("MVCC") beginning January 1, 2017; and,
WHEREAS, the commercial kitchen space at the MVCC is available for hourly rental
by licensed food caterers; and,
WHEREAS, Dippin Chocolate, LLC, is currently licensed as a food caterer through
Ramsey County; and,
WHEREAS, the City Council has reviewed the attached Lease Agreement and
agrees to renew said lease with Dippin Chocolate, LLC, on a non-exclusive basis, as
described and as stipulated therein.
NOW, THEREFORE BE IT RESOLVED THAT the Mounds View City Council does
hereby approve the non-exclusive Lease Agreement with Dippin Chocolate, LLC, for one
year, beginning January 1, 2017, at the annual rate of$300, plus additional cost of$92 per
hour or fraction thereof.
Adopted this 23rd day of January, 2017.
di(/;ee,a-&
Carol A. Mueller, Mayor
ATTEST:
James Ericson, City Administrator
(seal)
LEASE AGREEMENT
By and Between
City of Mounds View,
And
Dippin Chocolate, LLC
LEASE AGREEMENT
This Lease is made effective as of January 1, 2017, by and between the City of Mounds
View, a Minnesota municipal corporation("Landlord"), and Dippin Chocolate,LLC,a Minnesota
limited liability company("Tenant").
DATA SHEET
The legal significance of the terms set forth in this Data Sheet is governed by references to
such terms in the remainder of this Lease.
• BUILDING. That certain building situated on the following described real estate:
Commonly known as MOUNDS VIEW COMMUNITY CENTER
• PREMISES. That space in the Building,as designated on Exhibit A as"the Kitchen"
annexed hereto. The street address of the Premises is 5394 Edgewood Drive in the
City of Mounds View.
• LANDLORD: City of Mounds View,2401 Mounds View Boulevard,Mounds View,
MN 55112.
• TENANT: Dippin Chocolate, LLC, 2661 Scotland Ct, #107, Mounds View, MN,
55112.
1. PREMISES:
Landlord hereby leases to Tenant,and Tenant hereby leases from Landlord,for the term and
upon the conditions hereinafter provided,the Premises described in the Data Sheet.
2. TERM:
The Term of this Lease shall commence on the 1st day of January,2017,and shall terminate
on the 31st day of December, unless earlier terminated as hereinafter provided.
3. RENT:
Tenant agrees to pay Landlord,at 2401 Mounds View Boulevard,Mounds View,MN 55112,
or such other place as Landlord may from time to time designate in writing, an annual rent in the
amount of$300, due on or before January 1, 2017, and $92 per hour or fraction thereof, for actual
use of the Premises, payable in a manner consistent with present policy and procedure.
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4. USE OF PREMISES:
Tenant will have non-exclusive access to use the Premises solely for kitchen purposes as
outlined herein during the Building's normal hours of operation. Tenant will not use or occupy the
Premises for any unlawful purpose, and will comply with all present and future laws, ordinances,
regulations and orders of all governmental units having jurisdiction over the Premises. Tenant will
not use or occupy the Premises for overnight accommodations. Tenant shall not cause or permit any
unusual noise,vibrations, odors or nuisance in or about the Premises and the Building and grounds
nor shall Tenant permit any debris, property or merchandise of Tenant, its officers, employees or
agents to be placed or left upon the grounds;and Tenant,its officers and employees shall observe all
reasonable rules and regulations adopted by Landlord for the general safety, comfort and
convenience of Landlord, Tenant and other Tenants.
Use of the Premises by the tenant shall be predicated upon providing proof of a valid Food
Caterers License issued by Ramsey County.
In the event Tenant shall cause or permit any unusual noise,odor or nuisance or the storage
of any debris,property or merchandise of Tenant, its officers, employees or agents, in or about the
Premises,the Building or grounds in violation of the terms of this Section,landlord shall be entitled
to take any steps it deems reasonably necessary to correct or remove such violation and Tenant shall
pay Landlord, as additional rent hereunder, all costs and expenses incurred in such correction or
removal including all costs and expenses incurred in ascertaining which Tenant is responsible for
such violation.
Landlord disclaims any warranty that the Premises are suitable for Tenant's use and Tenant
acknowledges that it has had a full opportunity to make its own determination in this regard.
Landlord warrants, to the best of its knowledge, that the building is in compliance with the
Americans with Disabilities Act (ADA). In the event that the premises is found not to be in
compliance,Landlord shall be responsible for all construction or alteration of the premises to render
the premises in compliance with ADA.
Tenant will not conduct or permit to be conducted any activity,or place any equipment in or
about the Premises,which will in any way increase the rate of fire insurance or other insurance on
the building; and if any increase in the rate of fire insurance or other insurance is stated by any
insurance company or by the applicable Insurance Rating Bureau to be due to activity or equipment
of Tenant in or about the Premises,such statement shall be conclusive evidence that such increase in
such rate is due to such activity or equipment and,as a result thereof,Tenant shall be liable for such
increase and shall reimburse Landlord therefore and, further, shall discontinue or cause the
discontinuance of such conduct or shall remove such equipment upon Landlord's demand made at
any time thereafter.
Tenant shall not install, use, generate, store or dispose of in or about the Premises any
hazardous substance, toxic chemical, pollutant or other material regulated by the Comprehensive
Environmental Response,Compensation and Liability Act of 1985 or the Minnesota Environmental
Response and Liability Act or any similar law or regulation, including without limitation any
material containing asbestos, PCB, CFC or HCFC (collectively "Hazardous Materials") without
Landlord's written approval of each Hazardous Material. Landlord shall not unreasonably withhold
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its approval of use by Tenant of immaterial quantities of Hazardous Materials customarily used in
business operations so long as Tenant uses such Hazardous Materials in accordance with all
applicable laws. Upon expiration or termination of this Lease Tenant shall remove all Hazardous
Materials installed,used, stored or disposed of in the Premises by Tenant. Tenant shall indemnify,
defend and hold Landlord harmless from and against any claim, damage or expense arising out of
Tenant's installation,use,generation,storage,or disposal of any Hazardous Materials,regardless of
whether Landlord has approved the activity.
5. ASSIGNMENT AND SUBLETTING:
Tenant will not assign, transfer, mortgage or encumber this Lease or sublet or rent or
franchise or permit occupancy or use of the Premises,or any part thereof by any third party;nor shall
any assignment or transfer of this Lease be effectuated by operation of law or otherwise,(any of the
foregoing being hereinafter referred to as an"Assignment")without in each such case obtaining the
prior written consent of Landlord,which consent shall be subject to Landlord's sole discretion. The
consent by Landlord to any Assignment shall not be construed as a waiver or release of Tenant from
the terms of any covenant or obligation under this Lease, nor shall the collection or acceptance of
rent from any transferee under an Assignment constitute an acceptance of the Assignment or a
waiver or release of Tenant or any transferee of any covenant or obligation contained in this Lease,
nor shall any Assignment be construed to relieve Tenant from the requirement of obtaining the
consent in writing of Landlord to any further Assignment. In conjunction with any requested
assignment of this Lease, Landlord may require Tenant to execute a reaffirmation of Tenant's
liability hereunder, with waiver of defenses based solely on suretyship.
If, at any time during the Term of this Lease, Tenant(and/or the guarantor, if any) is:
(i) a corporation or a trust(whether or not having shares of beneficial interest)
and there shall occur any change in the identity of any of the persons then having power to
participate in the election or appointment of the directors, trustees, or other persons
exercising like functions and managing the affairs of Tenant, or
(ii) a partnership, limited liability company or association or otherwise not a
natural person (and is not a corporation or a trust) and there shall occur any change in the
identity of any of the persons who then are members of such partnership or association or
who comprise Tenant,
such change shall be deemed to be an Assignment. This Section shall not apply if Tenant(and/or
guarantor,if any)named herein is a corporation and the outstanding voting stock thereof is listed on
a recognized national securities exchange.
Whether or not Landlord has consented to assignment or sublease,Tenant shall pay directly
to Landlord the amount by which the rent or other payments received by Tenant pursuant to such
assignment or sublease exceeds, in any month, the Rent and additional rent payable by Tenant to
Landlord Hereunder.
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6. MAINTENANCE AND REPAIRS:
Tenant agrees to keep, maintain and repair the Premises and the fixtures and equipment
therein in first class, properly functioning, safe, orderly and sanitary condition, will make all
necessary replacements thereto,will suffer no waste or injury thereto, and will at the expiration or
other termination of the Term of this Lease, surrender the same with all improvements in the same
order and condition in which they were on the commencement date of this lease, or in such better
condition as they may hereafter be put,excepting ordinary wear and tear as well as casualty damage
to the extent such casualty damage is covered by insurance excepted. Notwithstanding anything
apparently to the contrary in this Section,any cost of repairs or improvements to the Building,to the
Premises or to any common areas which are occasioned by the negligence or default of Tenant, its
officers,employees,agents or invitees,or by requirements of law,ordinance or other governmental
directive and which arise out of the nature of Tenant's use and occupancy of the Premises or the
installations of Tenant in the Premises shall be paid for by Tenant.
7. ALTERATIONS; SIGNS; EQUIPMENT; MOVING:
Tenant will not make or permit anyone to make any alterations, decorations, additions or
improvements,structural or otherwise,in or to the Premises or the Building without the prior written
consent of Landlord. As a condition precedent to consent of Landlord hereunder,Tenant agrees to
obtain and deliver to Landlord such security against mechanic's liens as Landlord shall reasonably
request. If any mechanic's lien is filed against any part of the Building for work claimed to have
been done for,or materials claimed to have been furnished to Tenant, such mechanic's lien shall be
discharged by Tenant within ten days thereafter, at Tenant's sole cost and expense,by the payment
thereof or by making any deposit required by law. Regardless of whether Landlord's consent is
required or obtained hereunder: (i) all alterations shall be made in accordance with applicable laws,
codes and insurance guidelines,and shall be performed in a good and workmanlike manner,(ii)if the
construction or installation of Tenant's alterations or fixtures causes any labor disturbance, Tenant
shall immediately take any action necessary to end such labor disturbance, and (iii) Tenant shall
furnish to Landlord as-built plans in such format as Landlord may reasonably require. All
alterations,which become permanent fixtures to the Premises shall become the property of Landlord
upon expiration of the Term and shall remain upon and be surrendered with the Premises as a part
thereof without disturbance or injury,unless Landlord requires specific items thereof to be removed
by Tenant at Tenant's sole expense,in which event Tenant shall do so prior to the expiration of the
Term at its expense, and shall repair any damage caused thereby.
Tenant shall not place or maintain any sign,advertisement or notice on any part of the outside
of the Premises or the building.
Tenant shall not install any equipment containing Hazardous Materials nor any equipment
which will or may necessitate any changes,replacements or additions to,or in the use of,the heating,
ventilating or air-conditioning system, or other building system of the Premises or the Building
without first obtaining the prior written consent of Landlord. Equipment belonging to Tenant which
causes noise or vibration that may be transmitted to the structure of the Building or to any space
therein to such a degree as to be objectionable to Landlord or to any tenant in the Building shall be
installed and maintained by Tenant, at Tenant's expense, on vibration eliminators or other devices
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sufficient to eliminate noise and vibration. Landlord shall have the right at any time to limit the
weight and prescribe the position of safes,concentrated filing systems and other heavy equipment or
fixtures.
All moving of furniture,equipment and other material shall be done under the direct control
and supervision of Landlord who shall,however,not be responsible for any damage to or charges for
moving the same unless damage is the direct result of Landlord's sole and gross negligence. Any
and all damage or injury to the premises or the Building caused by moving the property of Tenant in
or out of the Premises,or due to the same being on the Premises,shall be repaired by,and at the sole
cost of, Tenant. No deliveries or pickups shall be left unattended at the loading dock.
8. RIGHT OF ENTRY:
Landlord will not provide Tenant keys to the Premises or permit unrestricted access of any
means;entry to Premises shall be limited to ordinary hours of Building operation,as posted,at times
pre-determined to not cause a conflict with other tenants or scheduled events. Landlord shall use
reasonable efforts to not unreasonably interfere with the conduct of Tenant's business,but Landlord
shall in no event be liable to Tenant for any damages in connection with such limited entry or access.
Landlord reserves the right to impose such reasonable security restrictions in the common
areas as it deems appropriate from time to time.
9. SERVICES AND UTILITIES:
Landlord agrees to pay all charges for utility services to the Premises during the term of this
Lease including, but not limited to, gas, electric, sewer, water, sprinkler alarm system, security
systems and rubbish removal. Tenant shall not commit waste or use any of the utilities in excess of
ordinary and reasonable use.
10. PROTECTION FROM SUBROGATION:
Anything in this Lease to the contrary notwithstanding,neither Landlord nor Tenant shall be
liable to the other for any business interruption or any loss or damage to property or injury to or death
of persons occurring on the Premises or the adjoining properties, mall areas, sidewalks, streets or
alleys, or in any manner growing out of or connected with Tenant's use and occupation of the
Premises, or the condition thereof or of mall areas,sidewalks, streets or alleys adjoining,caused by
the negligence or other fault of Landlord, or Tenant or of their respective agents, employees,
subtenants, licensees or assignees to the extent that such business interruption or loss or damage to
property or injury to or death of person is covered by or indemnified by proceeds received from
insurance carried by other party (regardless of whether such insurance is payable to or protects
Landlord or Tenant or both) or for which such party is otherwise reimbursed; and Landlord and
Tenant each hereby respectively waive all rights of recovery against the other,its agents,employees,
subtenants,licensees and assignees,for any such loss or damage to property or injury to or death of
persons to the extent the same is covered or indemnified by proceeds received from any such
insurance, or for which reimbursement is otherwise received. Landlord's and Tenant's respective
policies of insurance shall each contain a waiver of subrogation provision incorporating the above
covenant and providing that the insurance shall not be invalidated by the insured's written waiver
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prior to a loss of any or all right of recovery against any party for any insured loss. It is expressly
understood that Landlord shall not be liable to Tenant for any damages incurred by the latter as a
result of the above and foregoing events; save and except as to any such damages caused by the
willful or wanton conduct of Landlord, its agents or employees, provided such damages are not
recoverable by Tenant pursuant to the insurance policies required to be provided by Tenant under
this Lease or otherwise.
11. WAIVER AND INDEMNITY:
Notwithstanding anything apparently to the contrary in this Lease,Landlord and its partners,
officers and employees and property manager shall not be liable to Tenant, and Tenant hereby
releases such parties from all damage, compensation or claims from any cause other than the
intentional misconduct of Landlord or its partners,officers or employees or property manager arising
from: loss or damage to personal property or trade fixtures in the Premises including books,records,
files,computer equipment,computer data,money,securities,negotiable instruments or other papers;
lost business or other consequential damage arising out of interruption in the use of the Premises;
and any criminal act by any person other than Landlord or its partners, officers or employees.
Furthermore, Tenant agrees that Landlord,its officers,agents,partners,and employees shall not be
liable to Tenant or those claiming through or under Tenant for any injury,death or property damage
occurring in, on or about the Premises,the Building or grounds.
Tenant agrees to indemnify, defend and hold Landlord and its partners, officers and
employees and property manager harmless from and against any claim,loss or expense arising out of
injury,death or property loss or damage occurring by reason of Tenant's use of the Premises,except
only to the extent caused by the negligent act or intentional misconduct of Landlord or its partners,
officers or employees or property manager.
Nothing in this Lease shall constitute a waiver or limitation of the Landlord's immunities or
limitations on liability as set forth in Minnesota Statutes, Chapter 466.
12. INSURANCE:
Tenant agrees to purchase, in advance, and to carry in full force and effect the following
insurance:
(a) "All risk" property insurance covering the full replacement value of all of
Tenant's leasehold improvements, trade fixtures and personal property within the Premises.
Landlord shall be named as loss payee under all such policies.
(b) Commercial general liability insurance, providing coverage on an
"occurrence" rather than a "claims made" basis, which policy shall include coverage for Bodily
Injury, Property Damage, Personal Injury, Contractual Liability (applying to this Lease), and
Independent Contractors, in current Insurance Services Office form or other form which provides
coverage at least as broad. Tenant shall maintain a combined policy limit of at least $2,000,000
aggregate $1,000,000 per occurrence applying to Bodily Injury, Property Damage and Personal
Injury,which limit may be satisfied by Tenant's basic policy, or by the basic policy in combination
with umbrella or excess policies so long as the coverage is at least as broad as that required herein.
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Such liability for property damage and fire legal liability shall not be less than $500,000.00 Such
liability,umbrella and/or excess policies may be subject to aggregate limits so long as the aggregate
limits have not at any pertinent time been reduced to less than the policy limit stated above, and
provided further that any umbrella or excess policy provides coverage from the point that such
aggregate limits in the basic policy become reduced or exhausted. Landlord shall be named as
additional insured under all such policies.
At least ten (10) days prior to entry by Tenant on the Premises, Tenant shall deliver to
Landlord evidence that the insurance required by this Lease is in full force and effect. At least thirty
(30)days prior to expiration of any such coverage,Tenant shall deliver evidence that the coverage in
question will be renewed or replaced upon expiration. Such evidence of insurance shall be in writing
signed by a party authorized to bind the insurer,authorize Landlord to rely thereon,and shall contain
sufficient information to enable Landlord to determine whether Tenant's insurance complies with the
requirements of this Lease. Upon request, Tenant shall also furnish insurer-certified copies of all
pertinent policies. All polices used to provide the coverage required by this Lease shall (i) be
endorsed to require the insurer to provide at least thirty (30) days' notice to Landlord prior to
cancellation or non-renewal,and(ii)be issued by financially sound companies having an A.M.Best
Company rating of at least A:VII.
13. FIRE OR OTHER CASUALTY:
If the Premises or the Building shall be damaged by fire or other cause Landlord shall at its
option either (a) undertake to restore such damage with all due diligence, or (b) in the event the
Premises or the Building are damaged by fire or other cause to such extent that damage cannot, in
Landlord's sole judgment, be economically repaired within 90 days after the date of such damage
(taking into account the time necessary to effectuate a satisfactory settlement with any insurance
company and using normal construction methods without overtime or other premium),terminate this
Lease, by notice given to Tenant within 60 days after the date of the damage. Any termination
hereunder by reason of damage to the Premises shall be effective as of the date of the damage. Any
termination by reason of damage to the Building but not the Premises shall be effective as of the date
notice is given. If Landlord elects to restore, Landlord shall not be obligated to restore any
improvements in the Premises which were not owned and constructed by Landlord. Upon
substantial completion by Landlord of its work, Tenant shall undertake to restore its leasehold
improvements and trade fixtures with all due diligence. This Lease shall, unless terminated by
Landlord,remain in full force and effect following such damage, and, in the case of damage to the
Premises, the Rent, prorated to the extent that the Premises are rendered untenantable, shall be
equitably abated until such repairs are completed;provided,however,that if Tenant does not restore
its leasehold improvements and trade fixtures with due diligence,abatement shall cease as of the date
restoration could have been completed using due diligence.
14. CONDEMNATION:
If the whole or any substantial part of the Premises shall be taken or condemned or purchased
under threat of condemnation by any governmental authority,then the Term of this Lease shall cease
and terminate as of the date when the interference with the possession, enjoyment or value of the
Premises occurs and Tenant shall have no claim against the condemning authority, Landlord or
otherwise,for any portion of the amount that may be awarded as damages as a result of such taking
or condemnation or for the value of any unexpired Term of the Lease, provided, however, that
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landlord shall not be entitled to any separate award made to Tenant for loss of business,relocation
costs or the value of the cost of removal of stock and trade fixtures and any such award is hereby
condemned to the extent that it cannot,in Landlord's sole judgment,be economically restored within
a reasonable time,Landlord shall have the option by notice given to Tenant within 30 days after the
date of interference with possession,to terminate this Lease as of the date of such interference with
possession.
15. DEFAULT:
Any one of the following events shall constitute an Event of Default:
(i) Tenant shall fail to pay any annual installment of Rent as herein
provided, or Tenant shall fail to pay for any hourly usage of the Premises within
Fifteen(15) days of being invoiced;
(ii) Tenant shall violate or fail to perform any of the other conditions,
covenants or agreements herein made by Tenant and such default shall continue for 1
30 days after notice from Landlord; provided, however, that if the nature of such
default is such that Tenant can cure the default,but not within fifteen(15)days,then
the Event of Default shall be suspended for a period not in excess of thirty (30)
additional days so long as Tenant commences cure within fifteen (15) days and
thereafter diligently and continuously prosecutes the curing of the default, and so
long as continuation of the default does not create material risk to the Building or to
persons using the Building;
(iii) Tenant shall file or have filed against it or any guarantor of this Lease
any bankruptcy or other creditor's action,or make an assignment for the benefit of its
creditors.
If an Event of Default shall have occurred and be continuing,Landlord may at its sole option
by written notice to Tenant terminate this Lease. Neither the passage of time after the occurrence of
the Event of Default nor exercise by Landlord of any other remedy with regard to such Event of
Default shall limit Landlord's rights.
If an Event of Default shall have occurred and be continuing,whether or not Landlord elects
to terminate this Lease, Landlord may enter upon and repossess the Premises (said repossession
being hereinafter referred to as "Repossession") by force, summary proceedings, ejectment or
otherwise, and may remove Tenant and all other persons and property therefrom.
No termination of this Lease shall relieve Tenant of its liabilities and obligations under this
Lease, all of which shall survive any such termination or Repossession. In the event of any such
termination or Repossession,Tenant shall pay to Landlord the Rent and other sums and charges to be
paid by Tenant up to the time of such termination or Repossession
In addition to all other remedies of Landlord, Landlord shall be entitled to reimbursement
upon demand of all reasonable attorney's fees incurred by Landlord in connection with any Event of
Default.
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Landlord shall in no event be considered to be in default of Landlord's obligations hereunder
until the expiration of a reasonable time after notice of default from Tenant.
16. SUBORDINATION:
For the purposes of this Section,the term "Mortgage" shall mean at any time,any mortgage
of record now or hereafter placed against the Building, any increase, amendment, extension,
refinancing or recasting of a Mortgage and, in the case of a sale or lease and leaseback by Landlord
of all or any part of the Building, the lease creating the leaseback. For the purposes hereof, a
Mortgage shall be deemed to continue in effect after foreclosure thereof until expiration of the period
of redemption therefrom.
This Lease is subject and subordinate to the lien of any Mortgage which may now or hereafter
encumber the Building or any development of which the Building is a part. In confirmation of such
subordination,Tenant shall,at Landlord's request from time to time,promptly execute any certificate
or other document requested by the holder of the Mortgage. Tenant agrees that in the event that any
proceedings are brought for the foreclosure of any Mortgage, Tenant shall immediately and
automatically attorn to the purchaser at such foreclosure sale, as the landlord under this Lease, and
Tenant waives the provisions of any statute or rule of law,now or hereafter in effect,which may give
or purport to give Tenant any right to terminate or otherwise adversely affect this Lease or the
obligations of Tenant hereunder in the event that any such foreclosure proceeding is prosecuted or
completed. Neither the holder of the Mortgage(whether it acquires title by foreclosure or by deed in
lieu thereof)nor any purchaser at foreclosure sale shall be liable for any act or omission of Landlord
occurring prior to date of acquisition of title, nor subject to any offsets or defenses which Tenant
might have against Landlord nor bound by any prepayment by Tenant of more than one month's
installment of Rent nor by any modification of this Lease made subsequent to the granting of the
Mortgage unless consented to by the holder of the Mortgage. Notwithstanding anything to the
contrary in this Section,so long as Tenant is not in default under this Lease,this Lease shall remain
in full force and effect and the holder of the Mortgage and any purchaser at foreclosure sale thereof
shall not disturb Tenant's possession hereunder.
17. SALE OR MORTGAGE OF THE BUILDING:
In the event of a sale of the Building, Landlord shall be relieved of all liability under this
Lease accruing from and after the date of sale provided Landlord has obtained the written agreement
of its transferee or assignee to assume and carry out all of the covenants and obligations of the
Landlord hereunder.
The Tenant agrees at any time and from time to time,upon not less than ten days prior written
request by Landlord, to execute, acknowledge and deliver to Landlord a statement in writing
certifying that the Lease is not modified(or modified, stating the modification)that the Lease is in
full force and affect,stating the dates to which the Rent has been paid in advance and stating whether
the Landlord is in default hereunder. It is intended that any such statement may be relied upon by
any prospective purchaser of the fee or mortgagee or assignee of any mortgage upon the Building or
real estate.
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18. WAIVER:
One or more waivers of any covenant,term or condition of this Lease by either party shall not
be construed by the other party as a waiver of a subsequent breach of the same covenant, term or
condition. The consent or approval of either party to or of any act by the other party of a nature
requiring consent or approval shall not be deemed to waive or render unnecessary consent to or
approval of any subsequent similar act. The failure or delay on the part of either party to enforce or
exercise at any time any of the provisions, rights or remedies in this Lease shall in no way be
construed to be a waiver thereof, nor in any way to affect the validity of this Lease or any part
thereof,or the right of the party to thereafter enforce each and every such provision,right or remedy.
19. RULES AND REGULATIONS:
Tenant shall use the Premises and the common areas of the Building in accordance with the
terms of this Lease and such additional rules and regulations as may from time to time be reasonably
made by Landlord for the general safety, comfort and convenience of the Landlord, occupants and
tenants of the Building,and Tenant shall use its best efforts to cause Tenant's customers,employees
and invitees to abide by such rules and regulations. Landlord shall in no event be responsible to
Tenant for enforcement of such rules and regulations against other tenants. These Rules and
Regulations shall be in addition to, and shall not be construed to in any way modify or amend, in
whole or in part,the covenants and conditions of any lease of the Premises. If any provision of these
rules and regulations conflicts with any provision of the Lease,the terms of the Lease shall prevail.
20. COVENANT OF QUIET ENJOYMENT:
Landlord covenants that it has the right to make this Lease for the term aforesaid and
covenants that if Tenant shall pay the rent and perform all of the covenants,terms and conditions of
this Lease to be performed by Tenant, Tenant shall, during the Term hereby created, freely,
peaceably and quietly occupy and enjoy the full possession of the Premises.
21. NO REPRESENTATIONS BY LANDLORD:
Neither Landlord nor any agent or employee of Landlord has made any representations or
promises with respect to the Premises or the Building except as herein expressly set forth, and no
right,privileges,easements or licenses are acquired by Tenant except as herein expressly set forth.
No exhibit attached to this Lease nor any other materials provided by Landlord shall constitute a
warranty or agreement as to the configuration of the Building or the occupants thereof. Landlord
reserves the right from time to time to modify the Building,including common areas,appurtenances
and rentable areas,without in any case reducing the obligations of Tenant hereunder. Tenant has no
right to light or air over any premises adjoining the Building. Tenant, by taking possession of the
Premises,shall accept the same"as is"except as expressly provided in this Lease and such taking of
possession shall be conclusive evidence that the Premises and the Building are in good and
satisfactory condition at the time of such taking of possession. In addition to and without limitation
of the immediately preceding sentence,Tenant agrees that it is leasing the Premises on an"AS IS",
"WHERE IS"and"WITH ALL FAULTS"basis,based upon its own judgment,and hereby disclaims
any reliance upon any statement or representation whatsoever made by Landlord. LANDLORD
MAKES NO WARRANTY WITH RESPECT TO THE PREMISES, THE BUILDING OR ANY
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PART THEREOF, EXPRESS OR IMPLIED, AND LANDLORD SPECIFICALLY DISCLAIMS
ANY WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR
PURPOSE AND ANY LIABILITY FOR CONSEQUENTIAL DAMAGES ARISING OUT OF THE
USE OF OR THE INABILITY TO USE THE PREMISES, THE BUILDING OR ANY PART
THEREOF.
22. NOTICES:
All notices or other communications hereunder shall be in writing and shall be effective if
hand delivered or sent by registered or certified first-class mail, postage prepaid, or by overnight
express service which maintains confirmation of delivery,(i)if to Landlord at Landlord Address set
forth in the Data Sheet,and(ii)if to Tenant,at the Premises,unless notice of a change of address is
given pursuant to the provisions of this Section. The day notice is given by mail shall be deemed to
be the day following the day of mailing. If acceptance is refused,as evidenced by the records of the
Postal Service or overnight delivery service,notice shall be deemed given on the date acceptance is
refused.
23. SURRENDER; HOLDING OVER:
Upon the expiration of this Lease or the earlier termination of Tenant's right to possession,
Tenant shall immediately vacate the Premises, remove all of its property therefrom and leave the
Premises in the condition required by this Lease. Any property not removed shall be deemed
abandoned, and Tenant shall be liable for all costs of removal and Tenant shall indemnify, defend
and hold Landlord harmless from any cost or liability due to disposition of any property in the
Premises in which a person other than Tenant has an interest. Should Tenant fail to surrender the
Premises in the condition required by the Lease, Landlord shall be entitled to take whatever steps
may,in Landlord's sole discretion,be required to restore the Premises to said condition and Tenant
agrees that it shall pay to Landlord all costs incurred by Landlord in so restoring the premises.
Should Tenant continue to occupy the Premises, or any part thereof, after the expiration or
termination of the Term, whether with or without the consent of Landlord, such tenancy shall be
from month to month and Tenant shall pay Landlord the(i)the rent last in effect plus 3 percent,for
the first six months of any such period of holding over and(ii)following such six month holdover
period rent shall continue until a new rental rate is agreed upon.
24. LANDLORD REPRESENTATIONS:
Landlord agrees to be bound by the terms and conditions of this Lease.
25. MISCELLANEOUS:
(a) The captions in this Lease are for convenience only and are not a part of this
Lease.
(b) If more than one person or entity shall sign this Lease as Tenant, the
obligations set forth herein shall be deemed joint and several obligations of each such party.
11
416585v5 SJR MU2I0-35
(c) Time is of the essence.
(d) If any provision of this Lease is invalid or unenforceable to any extent,then
such provision and the remainder of this Lease shall continue in effect and be enforceable to the
fullest extent permitted by law.
(e) This Lease contains the entire agreement of the parties hereto with respect to
the Premises and Building. This Lease may be modified only by a writing executed and delivered by
both parties.
(f) Nothing contained in this Lease shall be deemed or construed to create a
partnership or joint venture of or between Landlord and Tenant, or to create any other relationship
between the parties other than that of landlord and tenant.
(g) This Lease shall be binding upon and inure to the benefit of the parties hereto
and,subject to the restrictions and limitations herein contained,their respective heirs,successors and
assigns.
(h) This is governed by and shall be construed according to the laws of the State
of Minnesota.
26. TAX COMPLIANCE AND STATUS OF PREMISES:
It is the intention of the parties hereto that nothing contained in this Lease or through the
performance of this Lease shall any change occur in the tax status of the Premises that existed prior
to the entering into of this Lease and that in lieu of each clause,term or provision of this Lease that is
illegal,invalid,unenforceable,or not in compliance with property tax requirements,there be added
as part of this Lease a clause, term, provision, or requirement similar to such illegal, invalid or
unenforceable clause,term,provision,or property tax requirement as may be possible and would be
legal,valid,and enforceable,to retain the property tax status of the Premises that existed prior to the
entering into of this Lease. In the event that the property tax status for the Premises is changed by
any taxing jurisdiction and cannot be returned to the tax status that existed prior to the entering into
of this Lease by modification of the terms of this Lease,the Tenant shall be responsible for any tax
payments or payments in lieu of taxes should the Premises,or a portion thereof,be deemed taxable
property for any reason by any taxing jurisdiction as a result of this Lease or the use being made
thereof of the Premises, and the Tenant shall immediately remit any required payments to the
appropriate taxing jurisdiction.
27. [INTENTIONALLY BLANK]
28. ADDITIONAL HAZARDS:
Tenant covenants and agrees that it will not do or permit anything to be done in or upon the
Premises or bring in anything or keep anything therein which shall cause the cancellation of
Landlord's insurance policies,or increase the rate of insurance,on the Building,above the standard
rate on said premises and buildings as rental property for similar uses. Tenant further agrees that in
the event it shall do anything to so increase the insurance rate,Tenant shall promptly pay to Landlord
12
416585v5 SJR MU210-35
on demand any such increase resulting therefrom, which shall be due and payable as "additional
rent"hereunder. At Tenant's request,Landlord shall make available for Tenant's inspection during
regular business hours, all documents pertaining to Landlord's calculation of Tenant's "additional
rent" required under this section. Said "additional rent" shall be due and payable as billed by
Landlord.
29. INVALIDATION OF PARTICULAR PROVISIONS:
If any clause, term or provision of this Lease, or the application thereof to any person or
circumstance shall to any extent, be invalid, unenforceable, or not in compliance with state bond
financed property requirements as set forth in Paragraph 30, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable, shall not be affected thereby, and each term and provision of this
Lease shall be valid and be enforced to the fullest extent permitted by law. It is the intention of the
parties hereto that in lieu of each clause, term or provision of this Lease that is illegal, invalid,
unenforceable,or not in compliance with state bond financed property requirements,there be added
as part of this Lease a clause,term,provision,or state bond financed property requirement similar to
such illegal, invalid or unenforceable clause, term, provision, or state bond financed property
requirement as may be possible and would be legal,valid, and enforceable.
30. STATE BOND FINANCE PROPERTY ACKNOWLEDGEMENT AND
COMPLIANCE:
The Landlord and Tenant acknowledge that funding for a portion of the Premises was
obtained through a grant from the State of Minnesota's Department of Children, Families and
Learning,and as such,the Premises is considered state bond financed property. Landlord states and
Tenant, to the best of its knowledge, without inquiry agrees that the following requirements
contained within this Lease are included to satisfy the state bond finance property requirements of
Minnesota Statutes Section 16A.695 for Use Agreements,to comply with the requirements contained
in the G.O. Compliance statutes, and pursuant to the Commissioner's Order.
(a) ENTITY STATUS. The Landlord is defined as a public entity organized as a charter
city pursuant to Minnesota Statutes Chapter 410, and is thus, a Minnesota municipal corporation.
(b) DEMISED PREMISES OWNERSHIP. The Premises is owned solely and completely
by the Landlord,the City of Mounds View.
(c) AGREEMENT AUTHORITY. The Landlord has entered into this Lease with the
Tenant pursuant to Minnesota Statutes Section 471.15 and the City of Mounds View Municipal
Charter and Municipal Code.
(d) GOVERNMENTAL PROGRAM. This Lease is(i)being executed and entered into
to carry out a Governmental Program,(ii)such Governmental Program is the City of Mounds View
Parks and Recreation Program, including the operation of the Community Center and its
accompanying facilities,as well as the parks within the City and general recreational programming
13
416585v5 SJR MU210-35
within the City; and (iii) such Governmental Program constitutes the Mounds View Parks and
Recreation Program and is authorized pursuant to Municipal Charter Section 6.02, Subdivision 1,
Municipal Code Section 106.05 and Chapter 405, and Minnesota Statutes Section 471.15.
(e) GOVERNMENTAL PROGRAM OVERSIGHT. The Landlord has accepted
financing through a Government Bonding Program. If required by the State for compliance
purposes,Tenant will provide the State the right to inspect and audit Tenant's books and records for
its operations at the Premises, with each such review to show the program budget, revenues and
expenses.
(f) TERM OF THE USE AGREEMENT. As the Premises consists of land and
buildings,the term of this Lease as provided herein relating to the building and improvements,and
including all renewals which are solely at the option the Tenant,is for a period of time which is less
then 50% of the useful life of the Premises.
(g) TERMINATION OF THE USE AGREEMENT. This Lease allows for termination
by the Landlord, pursuant to Section 13.2, in the event of default hereunder by the Tenant. The
termination of this Lease is also allowed by the Landlord,pursuant to Section 16.13,in the event that
the Governmental Program is terminated or changed.
(h) COST OF OPERATION OF THE FACILITY ("PREMISES"). The Landlord
possesses specific statutory authority pursuant to Minnesota Statutes Section 471.15, the City's
Municipal Charter Section 6.02, Subdivision 1,and the City's Municipal Code Section 106.05 and
Chapter 405,to expend monies to operate and maintain the Premises.
(i) RECEIPT OF MONIES/COMPLIANCE WITH TAX CODE. It is contemplated and
understood by the parties to this Lease that the Landlord's operation of the Premises is in compliance
with the tax code.
(j) SALE OF THE FACILITY(PREMISES).
(i) This Lease is free of any provisions which would require the Landlord to
sell the Premises for an amount less than the fair market value if it is to be
sold to a non-public entity.
(ii) This Lease is free of any provisions which would allow the Landlord to sell
the facility (Premises) without the Landlord first determining, by official
action, that the Premises is no longer usable or needed to carry out the
Governmental Program.
(iii) This Lease is free of any provisions which would require the Landlord to sell
the Premises without first obtaining the written consent of the Commissioner
of Finance,pursuant to Minn. Statutes Section 16A. 695, Subdivision 3,and
the Commissioner's Order.
14
416585v5 SJR MU210-35
(iv) This Lease is free of any provisions which would cause the matter of
distribution of the proceeds of the sale of the Premises,which is not provided
for nor contemplated in this Lease,to violate the provisions contained in the
G.O.Compliance Bill and the Commissioner's Order(Minn.Statutes Section
16A.693, Subdivision 3 and the Commissioner's Order).
(v) This Lease contains no provisions concerning the sale of the Premises or the
termination of the Governmental Program.
Dippin Chocolate, LLC, as Tenant of the Building and Premises herein, hereby agrees to the
terms of this Lease.
DIPPIN CHOCOLATE, LLC
By:
Its:
The City of Mounds View, as Landlord of the Building and Premises herein, hereby agrees to the
terms of this Lease.
CITY OF MOUNDS VIEW
By:
Carol A. Mueller
Its: Mayor
By:
James Ericson
Its: City Administrator
15
416585v5 SJR MU210-35
EXHIBIT A
BUILDING: "The Mounds View Community Center"
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PREMISES: "The Kitchen"
16