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HRA Resolution 1998-1RESOLUTION NO. 98 -1 HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF MONTICELLO APPROVING AN AMENDMENT TO THE CONTRACT FOR PRIVATE REDEVELOPMENT BETWEEN THE AUTHORITY AND BBF, INC. WHEREAS, the Housing and Redevelopment Authority in and for the City of Monticello (the "Authority ") currently administers its Central Monticello Redevelopment Project No. 1 (the "Project Area ") pursuant to Minnesota Statutes, Sections 469.001 to 469.047; and WHEREAS, among the activities proposed to be assisted by the Authority in the project area is redevelopment of the existing Monticello Mall (the "Mall Project ") located on property described as Lot 1, Block 1 and Outlot A, Monticello Mall, according to the plat of record and on file in the Register of Deeds Office in and for Wright County, Minnesota (the "Property "); and WHEREAS, to facilitate the Mall Proj ect, the Authority has entered into a certain Contract for Private Redevelopment (the "Contract ") with B.B.F., Inc. (the "Developer ") providing for certain assistance by the Authority; and WHEREAS, the Property is subject to certain encumbrances described in a Declaration of Reciprocal Easements between Lincoln Monticello Partners Limited Partnership ( "Lincoln ") and Monticello KM Limited Partnership ( "KM "), dated January 23, 1990 (the "Declaration "), which declaration is filed of record against the Property and certain adjacent property described as Lot 2, Block 1 and Outlot C, Kirkman Addition, according to the plat of record and on file in the Register of Deeds Office in and for Wright County Minnesota (the "K -Mart Parcel "); and WHEREAS, certain provisions of the Declaration described below (the "Condemned Interests ") may restrict the ability of the Developer to carry out the Mall Project; and WHEREAS, the Developer, who is successor in interest to Lincoln under the Declaration, has advised the Authority that it has made reasonable efforts to acquire or remove the Condemned Interests but has been unable to reach agreement with the successor in interest to KM; and WHEREAS, the Developer has requested that the Authority acquire the Condemned Interests through the power of eminent domain and through to "quick take" procedure so that the Developer may proceed to construct the Mall Project in a timely manner; and WHEREAS, the Authority is prepared to proceed with such acquisition, provided that the Developer enter into an amendment to the Contract under which the Developer agrees to pay all the costs of the acquisition. SJB138861 MN190 -69 1 NOW, THEREFORE, BE IT RESOLVED by the Monticello Housing and Redevelop- ment Authority as follows: 1. Authority staff and legal counsel are authorized to prepare, and the proper Authority officials are authorized to execute, an amendment to the Contract providing for acquisition of the Condemned Interests by the Authority, substantially conforming to the terms described in this resolution. 2. The Contract must provide that, before the Authority commences acquisition, the Developer will deposit with the Authority in escrow an estimate of the total cost of acquisition of the Condemned Interests, including without limitation attorney fees, commissioner fees, and any damage award. The Developer must also agree to hold harmless, defend and indemnify the Authority for all claims in connection with acquisition of the Condemned Interests. 3. The Condemned Interests to be acquired consist of the rights of KM and' any mortgagee under the following sections of the Declaration: Section 3; the second sentence of the second paragraph of Section 6; and Section 20, all as further described in Exhibit A attached hereto. Adopted by the Housing and Redevelopment Authority in and for the City of Monticello this 25th day of February, 1998. C 'r ATTEST: � � 9 Executive Director SJB138861 2 MN190 -69 EXHIBIT A 2 . ENCROACHMENT EASFKRUS - R F1ALL. If, once constructed, the exterior edge of the east wall, including the roof, eaves, drains and down spouts, of the K -Mart Building is located east of the boundary line between the Mall Parcel and the K -Mart Parcel, as show. on Exhibit C, then Declarants hereby reserve, create and grant a permanent, appurtenant easement over the portion of the Mall Parcel lying between the exterior edqe of the east wall of the K -Mart Building and the vest boundary line of the Mall Parcel; which easement is to facilitate the construction, maintenance, _repair, support and location of the wall.,_ its foundations,. ; �wfvotir►gs; supporter: a nd the roof, eaves- ;'-=lt i=ifis� 3. MALL WALK try. The K -Mart Building and the Shopping Center will be connected for pedestrian access via an enclosed walkway /mall, the plans for which shall be subject to the prior written approval by the construction department of K -Mart. Declarants hereby reserve, grant and create over and upon the portions of the K-Mart Parcel and the shopping Center Parcel upon which such walkway /mall is now or hereafter, constructed and located, a permanent, non- Oxclusive, appurtenant easement of ingress and egress for-pedestrians for the mutual benefit of the Mall Parcel and the K--Mart Parcel to provido pedestrian access to and from the Mall Parcel and the K -Mart Parcel foty the Declarants, their tenants, subtenants, employ©es', agents, contractors, customers and invitees. KM 6hall be responsible to cause all maintenance and repairs of tho portion of the walkway /mall located on the K- Mart­ Parcel ; and Lincoln shall be responsiblo to cause all maintenance and repairs of the portion of the walkway /mall located on the Mall Parcel. a. MUTUAL ACC SS EASOENTS - Declarants hereby reserve, grant and create over and upon the roadways, parking areas and sidewalks to be located on the K -Mart Parcel a permanent, non - excluzive, appurtenant easement of ingress and egress, both pedestrian and vehicular, for the benefit of the Mall Parcel to provide access to and from the Na31 Parcel to and.from all access points and public roads for all owners,'tenants, subtenants, employees, agents, contractors, customers and invitees of the Mall Parcel. Notwithstanding the foregoing, the easement cr►-�ated in this subparagraph shall not include any portion of the A -Mart Parcel on which the K -Mart Building is constructed. Notwithstanding the foregoing, nothing contained in this Section 4 shall in any way alter, change or modify the rights and obligations between K -Hart and KM pursuant to Sections 10 and 16 of the Lease. -- 2 - WCR use the parking areas to be constructed on the K -Mart Parcel for normal and customary par'.`.ncq purposes. Declarants acknowledge and understand that pursuant to the Lease, and subject to the conditions specified therein, K -Mart may, at its own expense, ex *_ or construct additional buildings or structures on the X --Mart Parcel. Declarants hereby further reserve, grant and create for the benefit of the K -Mart Parcel, its owners, tenants, guests and customers the non - exclusive, permm ent, appurtenant easement to use the.'.' parking; areas located ori"`he���ia�tl - Fareel _for normal an , customary parking purposes. Declarants hereby acknowledge" that pursuant to the Lease, Lincoln has agreed that so long as the Lease .in in effect, no buildings or other structures shall be constructed upon the Mall Parcel other than those currently constructed and /or contemplated by the Lease and as shown on Exhibit D attached hereto. Notwithstanding the foregoing, nothing contained in this section 6 shall in any Way alter, change or modify the rights and obligations between X -Mart and KM pursuant to Sections 10 and 16 of the Lease. 7. REAL ESTATE TAXES. . All real estate taxes and installments of special assessments shall be paid, when due, by the owners or (if ro required pursuant to the terms of a valid lease) tenants of the respective Parcels, and nothing herein shall operate or b3 construed to impose any obligations to-'pay such taxes and installments of assessments on any other party. Notwithstanding the foregoing, nothing contained in this Section 9 shall in any way alter, change or modify the rights and obligations between K -Mart and KM pursuant to section 5 of the Lease. 8. INSURANCE. The Declarants shall keep and maintain in effect the following insurance: A. Fire and extended and "extended coverage" perils, with said Declarant's Parcel on (1o0%) of replacement cost. coverage insurance, covering fire insuring the building(s) located the basis of one hundred percent B. During any period of construction, the Declarant causing such construction shall maintain or cause its contractors to maintain policies of Builders' Risk insurance, insuring against any of such risks as may be insured under the aforesaid extended coverage policy during the period of such construction. - 4 - WGR 02/24/88 TUE 07:31 r'AX 1 EJ1L ZVO J1JL Mh1(-:ALV , LAK,)U1N & &U1n i4�jUUi responsibility whatsoever for the care and maintenance of the other party's Parcel in regard to the areas of ingress and egress and parking. 18. EXTERIOR LIGHTING. Declarants acknowledge that the exterior lighting for the portion of the parking facilities located on the K -Mart Parcel is connected to and metered through the electrical system to be located in the Y, -Mart Building on the K- Mar.*. Parcel; and that the exterior lighting for the portion of the parking facilities located on the Mall Marcel is connected to and metered through the electrical system :.located in the .Shopping or te�iinaflon . o f" - l center. If, , at any time prior to-,,;66e =expiratrion the Lease, K -Mart should request that the exterior lighting with respect to the parking areas on the Mall Parcel be lit for periods beyond the customary business hours for the Mall Parcel, Lincoln, or the then owner of the Mall Parcel, will comply with K- Mart's request for such extended lighting provided that K -Mart agrees in writing and in advance that it will pay and reimburse the owner of the Mall Parcel for all costs and expenses, including utility costs, incurred for such extended lighting. Conversely, if L_'.ncoln, or the then owner of the Mall Parcel should request that the exterior lighting with respect to the parking areas on the K- Mart Parcel be lit for periods beyond the customary business hours for the K -Mart Parcel, the owner of the K -Mart Parcel and /or K -Mart will comply with such request for such extended lighting provided that Lincoln, or the then owner of the Mall Parcel agrees in writing and in advance that it will pay and reimburse the owner of the K -Mart Parcel for all costs and expenses, including utility costs, incurred for such extended lighting. 19. PYTON SIGN. Subject to K -Mart's obtaining appropriate governmental approvals, licenses and permits, and subject to all jaws, statutes, ordinances, regulations and restrictions applying thereto, Declarants acknowledge and agree that pursuant to the Lease, and during the term thereof, K -Mart shall have the right to construct, install and maintain a pylon sign on the Mall Parcel as shown on Exhibit -B to the Lease. other than the two pylon signs currently located on the Mall Parcel, and the pylon sign to be erected pursuant to the foregoing by K -Mart, Declarants. agree that while the Lease is in effect, no additional pylon signs will be erected on the Mall Parcel. 2 0 MORTGAGEE 'S Ca SENT. Declarants acknowledge and agree that this Declaration may not be amended or modified without the V prior written consent of all mortgagees then holding a mortgage lien upon either or both of the Parcels. - 8 -