HomeMy WebLinkAbout8.a. Approve Purchase and Lease Agreements for St Joseph Catholic ChurchCITY OF ROSEMOUNT
EXECUTIVE SUMMARY FOR ACTION
City Council Meeting Date DECEMBER 21, 2004
AGENDA ITEM: APPROVE PURCHASE AND LEASE
AGENDA SECTION:
AGREEMENTS ST JOSEPH
New Business
CATHOLIC CHURCH
PREPARED BY: JAMIE VERBRUGGE, CITY ADMIN
AGENT- fi'
ATTACHMENTS. Purchase Agreement
APPROVED BY
Lease Agreement
RECOMMENDED ACTION: MOTION TO APPROVE THE PURCHASE AGR EMENT
AND LEASE AGREEMENT WITH ST. JOSEPH CATHOLIC CHURCH
ACTION.
ISSUE
The City of Rosemount is purchasing land that will be the future site for a branch library of the
Dakota County Library System Acquisition of land for a library has been one of the City
Council's most important goals since early 2003
BACKGROUND
The City of Rosemount is the last sizeable community in Dakota County that does not have a
branch library in the Dakota County Library System The City has been working with Dakota
County for nearly two years to identify a location for a future library The County's interest is
to provide a library for this growing community and to relieve pressure from the Galaxie
Library in Apple Valley, which is the busiest library in the system
In March 2003, a point committee was formed consisting of representatives from Dakota
County staff, the Dakota County Library Board, the Rosemount City Council, and two
Rosemount citizens appointed by the City Council The committee began its work by
identifying 27 potential sites in the community that were within the service area identified by
the County This list was eventually narrowed to three properties that both the County's
requirements and the City's desires to locate the library in or around the downtown area The
three final sites were the former Sunrise Lumber site on South Robert Trail across from the
entrance to the high school, the Ratzlaff block between 146 and 147 on South Robert Trail
in the heart of downtown, and the St Joseph Catholic Church campus on South Robert Trail
The Dakota Library Board and Dakota County Board of Commissioners both approved the
final three sites
Follow -up discussions with the City Council directed to staff to pursue the St Joseph property
as the preferred alternative The St Joseph parish community had dust relocated to a new
Library Land Acquisition
December 21, 2004
Page 2 of 6
church on Biscayne Avenue and Connemara Trail, although the St. Joseph School was
continuing to operate at the original campus St Joseph Church also maintains and operates
a rectory and former parish office (now serving as the kindergarten classrooms) on the site
The City began negotiations with the Church early in 2004 The Church hired an appraiser to
value the property The City also commissioned a market value study by an appraiser In
addition to negotiating purchase terms, the Church required six years to continue operating
the St Joseph School at its present site After thoughtful and thorough examination of the
needs and interests of both parties, City staff presented a proposed settlement to the City
Council in August 2004. Council directed staff to proceed with final negotiations which have
resulted in the attached purchase agreement and lease agreement
Purchase Terms
The details of the $2,375,691 84 acquisition are as follows
The purchase price for the entire 4 37 acre campus is $2,375,691.84. This includes
$2,275,691 84 for the land and buildings, and $100,000 for relocation expenses
related to the owned personal property as well as the residency status of the pastor
and two nuns
The City will assume the outstanding debt for an assessment related to the
Connemara Trail Phase II public improvements, levied against the new church
property, in the principal amount of $749,532 94 The assumption of this assessment
by the City is a deduct from the total acquisition price
The City will accept pre -paid rent for continued operation of St Joseph School for the
school years 2005 -06 through 2007 -08 in the amount of $259,200 The pre -paid rent
is a deduct from the total acquisition price
The final cash settlement due to seller is $1,466,958 90
To better describe the acquisition and represent the various considerations, the table below
defines the elements
Purchase Price
Relocation
Assumed assessment
Pre -paid rent
Proposed settlement
$2,375,691 84
100,000 00
(749,532 94)
(259,200 00)
The City Council had previously encumbered $900,000 for future library land acquisition The
City also negotiated a $500,000 contribution from the SKB Environmental Rosemount
Community Trust Fund to be used for library land acquisition The remainder of the cash
settlement is proposed to come from a transfer of Port Authority reserves The closing for the
property is scheduled for January 14, 2005
The assumed assessment related to the Connemara Trail Phase II project will represent an
2
Library Land Acquisition
December 21, 2004
Page 3 of 5
ongoing financial obligation to the City that will require the City to levy an annual amount to
satisfy the debt According to Al Erickson, the City's financial consultant at Springsted Inc
the assumed debt may be considered special debt that will fall outside of levy limits if they are
reinstituted The assessment payments will be levied beginning in 2006 and going through
2013 The payment of the assessments for the second half of 2004 and all of 2005 are
proposed to be paid from reserves The total amount of reserves for the three payments
$170,32572
A sources and uses descriptor is below to clearly state how funds will be allocated
USES
Cash Purchase 1,466,958 90
Assessment 2nd half 2004 60,007 84
Assessment 2005 110,317 88
Assessment Future year
principal* 612.91120
2.250,195 82
SOURCES
Encumbered library land funds 900,000 00
SKB Trust Fund donation 500,000.00
Port Authority Transfer 66,958 90
Reserves 170,325 72
Future year levies* 612,911 20
2 250.195 82
-The debt schedule for future year assessment payments and levies is principal only The
current interest on the assessments is 4 888% According to Mr Erickson, the actual interest
on the bond issue is 2,888% Mr Erickson advises that the City can restructure the debt
schedule to repay at an interest rate that is 2% lower than the schedule
Regarding the 2 nd half 2004 assessment payment, the City will be paying that installment
before December 31, 2004 Because the installment payment occurs before the actual
closing, the City has a letter of agreement with the Church that, if the deal does not close and
the acquisition is not finalized, the Church will reimburse the City for the installment paid
3
Library Land Acquisition
December 21, 2004
Page 4 of 5
Other Issues and Obligations
The City will act as landlord for the property while the St Joseph School continues to
operate Beginning with the school year 2008 -09 and continuing through 2010 -11, the school
will make rent payments that will be adjusted for inflation using the Consumer Price Index
Rent for the pre -paid term of three years is set at $4 per square foot The CPI adjustment will
be added annually to the per square foot rent The lease agreement describes the terms and
obligations for the City and the School
The school will be relocating its kindergarten classes from the former parish office building to
the Gathering Space that connects the school and sanctuary In order to accommodate the
relocation of the kindergarten classes to the Gathering Space, several minor modifications to
the building are required The City agrees to construct a wall separating the space from the
church Our architect estimates the cost at $1,200 This is a materials cost only as the City
anticipates using staff to perform the construction Also, the bathroom needs to be modified
Our architect estimates the cost of the bathroom improvement at $10,000 Finally, classroom
accessories (whiteboards, cabinets, etc need to be relocated to the new class space
Again, this work will be performed by City staff The lease agreement stipulates that the City
will not expend more than $15,000 for these minor modifications
The school has an ongoing need for outdoor recreational space for its students Currently
the school utilizes the playground in the southeast corner of the property This space will
continue to be available until the summer of 2007 when the County is expected to begin
construction of the library The play area will shift to the area that is now used for parking in
the northeast corner of the property The City agrees to install a 10 -foot fence around this
area, similar to the fence that currently exists in the southeast corner, as a safety measure for
the play activities Regarding parking, the school will have exclusive use of the current
parking area during school hours and non exclusive use during non school hours The
school also has non exclusive use of the public parking area across South Robert Trail to
accommodate its parking needs beginning in 2007
The City, as landlord, will perform snowplowing of the surface areas on the property
One last important issue is the future use of the old church As Council is aware, the City has
retained an architect to evaluate the condition of the church and look at cost estimates to
renovate the church for future use Because the City is taking possession of the church,
there is likely to be a fair amount of investment to bring the structure into compliance with
ADA requirements if it is to be used as a public facility The end use of the church is likely to
be a sensitive issue for the community as there are strong feelings of attachment to the
building Staff is suggesting that a community -based task force be appointed at some time in
2005 or 2006 to begin discussions on the future of the facility This will be a future discussion
item for the Council in 2005
SUMMARY
The approval of the purchase and lease agreements with St Joseph Church represents a
significant accomplishment for the City Council in achieving its objective of acquiring land for
M
Library Land Acquisition
December 21, 2004
Page 5 of 5
a future library site This proposed acquisition has been crafted to represent the Church's
interest in maximizing the value of the property, relieving debt obligations to better position it
for future growth, and to maintain the operation of St Joseph School until such time as a new
school may be constructed The City's objectives were to acquire land in an optimal location
while minimizing the cash outlay and future debt obligations The negotiating parties are
confident that all interests and objectives have been satisfied in a responsible manner
The process to finalize the agreements for closing is to receive approval from the
Archdiocese St Joseph Church has been working with the appropriate diocesan officials
and do not anticipate any delay in receiving approval.
Dakota County anticipates the planning process for the church to begin in 2006, with
construction starting in 2007, and the library opening to occur in early 2009 City staff
updated the Dakota County Library Board regarding the progress of this issue at a meeting
on December 9, 2004 The Library Board is excited about the prospect of bringing this
tremendous community asset to Rosemount
Assuming that Council approval, approval from the Archdiocese, and closing occur as
anticipated, staff will be scheduling a presentation for the January 19 City Council meeting
that will include representatives of the Dakota County Library Board and special
acknowledgement to the SKB Environmental Rosemount Community Trust Fund for their
generous and substantial donation
5
PURCHASE AGREED'JENT
THIS AGREEMENT is made as of this 21st day of December, 2004, by and between
The Church of St Joseph of Rosemount, Minnesota, a Mimnesota religious corporation,
"Seller") and the City of Rosemount, aMinnesota municipal corporation "City" or `Buyer")
RECITALS
A Seller is the owner of the St Joseph Catholic Church campus property located at
14375 Robert Trail South, Rosemount, Minnesota, which is legally described as
follows
Parcel 1 Lot 26, Auditor's Subdivision No 1 and
Parcel 2 The North 110 feet of Lot 25, Auditor's Subdivision No 1 and
Parcel 3 Lot 25 except the North 110 feet, Auditor's Subdivision No 1 and
Parcel 4 Lot 24 except the Southern 13 7 feet of Auditor's Subdivision No 1
and
Parcel 5 The north 44 3 feet of Lot 20, Auditor's Subdivision No 1 and
Parcel 6 Lots 10 11, School Addition and
Parcel 7 The South 27 1 /2 feet of Lot 8 and Lot 9, School Addition,
All in Section 29, Township 115, Range 19, Rosemount, Minnesota
"Subject Property')
B The Subject Property includes all plants, shrubs and trees, storm windows and /or
inserts, storm doors, screens, awnings, window shades, blinds, curtain- traverse-
drapery rods, attached hglitmg fixtures with bulbs, plumbing fixtures, water heater,
heating system, humidifier, central air conditioning, electronic air filter, automatic
garage door opener with controls, water softener, cable television outlets and cabling,
and built -ins, including dishwasher, garbage disposal, trash compactor, ovei(s), cook
top stove, microwave oven, hood -fan, intercom and installed carpeting located on the
premises which are the property of Seller, but excluding any sacred objects Tenant
shall retain ownership of existing playground equipment near the Parish Center and
shall hay e the right to relocate it on or off the Demised Premises as defined in Exhibit
One to this Purchase Agreement Such playground equipment shall be relocated upon
direction from Seller There is no personal property included in the sale
CLL- 2542180 1
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AGREEMENT
1 Offer /Acceptance for Sale of Property. The Seller agrees to sell to the City
the Subject Property and the City agrees to purchase the same, according to the terms of this
Agreement
2. Purchase Price for Property and Terms.
A PURCHASE PRICE: The total Purchase Price for the Subject Property is
Two Million Three Hundred Seventy -Five Thousand Six Hundred Ninety -One
and 84 /100ths Dollars ($2,375,691 84)
B TERMS
(1) PAYMENT OF PURCHASE PRICE
a Earnest Monev The sum of Zero Dollars -0 Earnest
Money shall be paid by Buyer and Seller
b Cash at Closing Buyer will pay by check or electronic transfer
of funds on the Closing Date the sum of One Million Four
Hundred Sixty -Six Thousand Nine Hundred Fifty -Eight and
90 /100ths Dollars ($1,466,958 90)
c Payment of Assessments Seller is the owner of property
located at 13900 Biscayne Avenue West in Rosemount,
Minnesota, which is currently subject to a lien for special
assessments in the amount of Seven Hundred Forty -Nine
Thousand Five Hundred Thirty -Two and 94/100 Dollars
(5749,532 94) in favor of Buyer Buyer will accept transfer of
Seven Hundred Forty -Nine Thousand Five Hundred Thirty
Two and 94/100 Dollars ($749,532 94) in value of the Subject
Property as payment of such special assessments and will
notify Dakota County of the cancellation of such special
assessments within 30 days of the Closing Date
d The parties will execute a lease for a portion of the Subject
Property in the form of Exhibit Two attached hereto and made
a part hereof Seller will accept credit of Two Hundred Fifty
Nine Thousand Two Hundred Dollars ($259,200 00) of the
purchase price as three years of non refundable prepaid base
rent as more fully described in Exhibit Two
(2) DEED /MARKETABLE TITLE Subject to performance by Buyer,
Seller agrees to execute and deliver a Warranty Deed conveying
CLL2542180 2
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marketable title to the Subject Property to Buyer, subject only to the
following exceptions
a. Building and zoning laws, ordinances, state and federal
regulations
b Reservation of minerals or mineral rights to the State of
Minnesota, if any
c Public utility and drainage easements of record which will not
interfere with Buyer's intended use of the Subject Property.
(3)• DOCUMENTS TO BE DELIVERED AT CLOSING BY SELLER In
addition to the Warranty Deed required at paragraph 213(2) above,
Seller shall deliver to the Buyer
a Standard form Affidavit of Seller
b Abstract of title, if available
c A "bring- down" certificate, certifying that all of the warranties
made by Sellers in this Purchase Agreement remain true as of
the date of closing
d Certificate that Seller is not a foreign national
e If an environmental investigation by or on behalf of the Buyer
discloses the existence of petroleum product or other pollutant,
contaminant or other hazardous substance on the Subject
Property, either (i) a closure letter from the Minnesota
Pollution Control Agency (MPCA) or other appropriate
regulatory authority that remediation has been completed to the
satisfaction of the MPCA or other authority, or (n) Agreement
for remediation/mdemnificatlon and security as the Buyer may
require
f Well disclosure certification, if required, or, if there is no well
on the Subject Property, the Warranty Deed given pursuant to
paragraph 2B(2) above must include the following statement
"The Seller certifies that the Seller does not know of any wells
on the described real property
g Any other documents reasonably required by the Buyer's title
insurance company or attorney to evidence that title to the
Subject Property is marketable and that Seller has complied
with the terins of this Purchase Agreement
ci.il2542180 3
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h Any documents reasonably required by Buyer to certify that
there are no residential occupants of the Subject Property
occupying the Subject Property under a claim of title or right,
by lease or otherwise Any residential occupancy continuing
after the Closing Date must be in accordance with and subject
to the terms of Exhibit Two
An executed lease in the form of Exhibit Two which shall be
executed by Buyer at Closing
Contingencies. Buyer's obligation to buy is contingent upon the following.
A Buyer's determination of marketable title pursuant to paragraph 4 of this
Agreement
B Buyer's determination, in its sole discretion, that the results of the
environmental investigation under this Agreement are satisfactory to Buyer
Buyer shall have until the Date of Closing to remove the foregoing contingencies The
contingencies are solely for the benefit of Buyer and maybe waived by Buyer If Buyer or its
attorney gives written notice to Seller that the contingencies are duly satisfied or waived, the
Buyer and Seller shall proceed to close the transaction as contemplated herein If, however,
one or more contingencies is not satisfied, or is not satisfied on time, and is not waived, this
Purchase Agreement shall thereupon be void at the written option of Buyer, Seller shall return
the Earnest Money to Buyer, and Buyer and Seller shall execute and deliver to each other the
termination of this Purchase Agreement
4 Title Examination /Curing Title Defects. The Buyer shall, at its expense and
within a reasonable time after Seller's acceptance of this Agreement, obtain a commitment for
title insurance "commitment for the Subject Property Buyer shall have ten (10) business
days after receipt of the commitment to examine the same and to deliver written objections to
title, if any, to Sellers or Buyer's right to do so shall be deemed waived Sellers shall have
until the Closing Date (or such later date as the parties may agree upon) to make title
marketable, at the Seller's cost In the event that title to the Subject Property cannot be made
marketable or is not made marketable by the Sellers by the Closing Date, then, this Agreement
maybe terminated at the option of either party At Closing, Seller shall surrender to Buyer all
abstracts of title to the Subject Property.
Environmental Matters.
A The Seller warrants that the Property has not been used for production,
storage, deposit or disposal of any toxic or hazardous waste or substance,
petroleum product or asbestos (other than asbestos used as pipe wrapping and
tile adhesive in the school building) product during the period of time the
Seller has owned the Property The Seller further warrants that the Seller has
CLL- 2542180 4
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no knowledge or information of any fact which would indicate the Subject
Property w as used for production, storage, deposit or disposal of any toxic or
hazardous A aste or substance, petroleum product or asbestos product prior to
the date the Seller purchased the Subject Property Notwithstanding the
above, the Seller's warranty regarding petroleum products does not preclude
the presence of heating oil or other similar products used as a heating fuel for
the Subject Property or above- ground gasoline or oil used for routine
maintenance of the Subject Property but the Seller does warrant that if there
N as a fuel tank on the Subject Property used for the storage of heating oil or
other similar product, the Seller has no knowledge of any leak in the tank or
contamination caused thereby
B Buyer and its agents shall have the right to enter upon the Subject Property
after the date of this Purchase Agreement for the purpose of inspecting and
surveying the Subject Property and conducting such environmental
examination and tests as Buyer deems necessary Buyer agrees to indemnify
the Seller against any liens, claims, losses, or damage occasioned by Buyer's
exercise of its right to enter and work on the Subject Property Buyer agrees to
provide Seller with a copy of any report as a result of such examination and
tests
6 Real Estate Taxes and Special Assessments. The Seller shall pay all real
estate taxes payable in 2004 prior to Closing Seller shall pay all real estate taxes payable in
previous years There are no special assessments for public improvements levied or pending
in the Subject Property The entire unpaid balance of special assessments, and all
installments of special assessments levied and pending, including special assessments payable
after the year of closing Seller agrees to pay all assessments related to service charges
furnished to the Subject Property prior to the date of closing (e g delinquent water or sewer
bills), including those charges levied, pending, or certified to payable 2004 taxes Buyer shall
pay all special assessments levied after Closing and real estate taxes payable in 2005 and
thereafter (except as provided otherwise in Exhibit Two
7. Closing Date. Unless otherwise agreed by the parties, the date of closing will
be on or before January 14, 2005 (the "Closing Date However, all tenants and
residential occupancies must be vacated prior to the Closing Date. If all tenants and
residential occupants have not vacated by January 14, 2005, the closing will be delayed
until such time that all tenants and residential occupants have vacated the Subject
Property or assurance that is satisfactory to Buyer, in its absolute and sole discretion,
that such continuing occupancy is pursuant only to Exhibit Two and subject to the
terms thereoL No rent will be paid to the Seller as the tenants vacate the property and
the Seller is responsible for returning all security deposits to the tenants as provided by
law. Delivery of all papers and the closing shall be made at the offices of City, 2875 145`
Street West, Rosemount, Minnesota 55068, or at such other location as is mutually agreed
upon by the parties All deliveries and notices to City shall be made to the above address and
marked to the attention of City Administrator
CLG2542180 5
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Possession /Removal of Property /Utilities /Escrow.
(a) Possession. Buyer shall take and Seller shall surrender possession at the time
of closing subject to the terms of Exhibit Two
(b) Removal of Property. All personal property on the Subl ect Property shall be
removed pior to closing except as otherwise provided in Exhibit Two
(c) Utilities. Seller agrees to pay all charges for sewer, water, electric, gas, and
cable television (collectively, "utilities provided to Subject Property prior to the Closing
Date
(d) No encumbrances. Seller agrees not to place any liens or encumbrances on
the Subject Property after the date of this Purchase Agreement
Well Disclosure. Seller warrants that there is no well on the property
10 Seller and Signatory Warranties. (a) Sewer and water. Seller warrants that
the Subject Property is connected to city sewer and city water
(b) Mechanics' Liens. Seller warrants that, prior to the closing, Seller shall pay in
full all amounts due for labor, materials, machinery, fixtures or tools furnished within the 120
days immediately preceding the closing in connection with construction, alteration or repair of
any structure upon or improvement to the Subject Property
(c) Notices. Seller warrants that it has not received any notice from any
governmental authority as to violation of any law, ordinance or regulation in connection with
the Subject Property
(d) Corporate Authority. Seller warrants that it is the owner of the Subject
Property, that is has full authority to enter into this Purchase Agreement for the sale of the
Subject Property, and that there are no other parties who hold any unrecorded interest in the
Subject Property
(e) Authority of Signatories. The signatories to this Purchase Agreement
represent and warrant that they are representatives of the Seller and that they have the
authority to enter into thus Agreement on Seller's behalf
11 Broker Commission. Each party represents to the other that it has not utilized
the services of any real estate broker or agent in connection with this Purchase Agreement or
the transaction contemplated by this Purchase Agreement Each party agrees to indemnify,
defend, and hold harmless the other party against and in respect of any such obligation and
liability based in anyway upon agreements, arrangements, or understandings made or claimed
to have been made by the party with any third person
CLL- 2542180 6
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12 Closing Costs/Recording Fees/Deed Tax. Buyer will pay (a) the closing fees
charged by the title insurance or other closing agent. if any, utilized to close the transaction
contemplated by this Agreement, (b) the premium for title insurance policy, if any, obtained
b} the City, (c) any transfer taxes and recording fees required to enable the Buyer to record its
deed from Seller under this Agreement Seller will pay all other fees normally paid by Sellers,
including fees and charges related to the filing of any instrument required to make title
marketable Each party shall pay its own attorney fees
13 Inspections. From the date of this Agreement to the Date of Closing, Buyer, its
employees and agents, shall be entitled to enter upon the Subject Property to conduct such
surveying, inspections, investigations, soil borings and testing, and drilling, monitoring,
sampling and testing of groundwater monitoring wells, as Buyer shall elect, provided, that
Seller is given at least 24 hours' notice to Gary Mitchell, at (651) 423 -4402 Copies of any
such reports obtained by Buyer shall be provided to Seller if the closing does not occur
14 Risk of Loss. If there is any loss or damage to the Subject Property between the
date hereof and the date of closing, for any reason including fire, vandalism, flood, earthquake
or act of God, the risk of loss shall be on the Seller If the Subject Property is destroyed or
substantially damaged before the closing date, this Purchase Agreement shall become null and
void, at Buyer's option At the request of Buyer, Seller agrees to sign a cancellation of
Purchase Agreement
15 Relocation. Seller expressly reserves Seller's right to receive relocation benefits
and reimbursements to which Seller may be entitled by law as a result of the transaction
contemplated by this Purchase Agreement
16 Salvage For five years after the Closing Date, as the Subject Property is
developed and used in the future, if the following items of personal property are not used or
incorporated into the project by Buyer, Seller shall have the right to remove and salvage such
items subject to such rules and restrictions as may be imposed by Buyer for the protection of
the Buyer and the Subject Property
Parish Center /Rectory
Fumiture /Appliances
Phone systems (connected to the school s
Prior to demolition (Opportunity for parishioners to purchase doors,
built -in shelving, etc
Church
Bell from the steeple
Exterior and interior stain glass windows (if not used in the future remodel)
Pews (possible sale to parishioners /given to church in need)
17 Notice. Any notice, demand, request or other communication which mayor shall
be given or sere ed by the parties, shall be deemed to have been given or served on the date the
same is personally served upon one of the following indicated recipients for notices or is
CL1,254218v3
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deposited in the United States Mail, registered or certified, return receipt requested, postage
prepaid and addressed as follows
SELLER The Church of St Joseph of
Rosemount, Minnesota
13900 Biscayne Avenue West
Rosemount, MN 55068
BUYER City Administrator
City of Rosemount
2875 145' St W
Rosemount, MN 55068
AGENT Kennedy Graven, Chartered
ATTN Charles L LeFevere
470 US Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
18 Entire Agreement. This Purchase Agreement, Exhibits, and other amendments
signed by the parties, shall constitute the entire Agreement between Seller and City and
supercedes any other written or oral agreements between the parties relating to the Subject
Property This Purchase Agreement can be modified only in a writing properly signed on
behalf of Seller and City
19 Survival. Notwithstanding any other provisions of law or court decision to the
contrary, the provisions of this Purchase Agreement shall survive closing
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date
and year above
CITY OF ROSEMOUNT THE CHURCH OF ST JOSEPH OF
ROSEMOUNT, MINNESOTA
f:
:A
Its Mayor Its
Its Clerk Its
CLL2542180 8
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EXHIBIT ONE
Parcel 1 Lot 26, Auditor's Subdivision No 1 and
Parcel 2 The North 110 feet of Lot 25, Auditor's Subdivision No. 1 and
Parcel 3 Lot 25 except the North I I0 feet, Auditor's Subdivision No. 1 and
Parcel Lot 24 except the Southern 13.7 feet of Auditor's Subdivision No.
I and
Parcel 5 The north 44 3 feet of Lot 20, Auditor's Subdivision No. 1 and
Parcel 6 Lots 10 11, School Addition and
Parcel 7 The South 27 Meet of Lot 8 and Lot 9, School Addition,
All in Section 29, Township 115, Range 19, Rosemount,
Nhnnesota
LEASE AGREEMENT
THIS LEASE made and entered into on this 21st day of December, 2004, by and between
the City of Rosemount, a Minnesota municipal corporation (hereinafter referred to as "Landlord')
and the Church of St Joseph of Rosemount, Minnesota, a Minnesota religious corporation
(hereinafter referred to as "Tenant
WITNESSETH
ARTICLE I GRANT AND TERM
1 I DEMISED PREMISES In consideration of the rents, covenants and agreements
herein reserved and contained on the part of Tenant to be performed, Landlord does hereby lease to
Tenant a portion of the parcel of land legally described on the attached Exhibit One which is
hereby made a part hereof (the "Premises such portion being that part of the Premises depleted
on Exhibit Two which is hereby made a part hereof, as the "School the "Storage Garage" and
"Gathering Area together with certain rights to use certain other areas of the Premises by
revocable permit or shared use as is more fully described herein (the "Demised Premises
12 TERM The tern of this Lease and Tenant's obligation to pay rent hereunder shall
commence upon the date first mentioned above and the term of the lease shall expire on July 31,
2008 In addition, provided Tenant is not in default hereunder, Tenant shall have the option to
extend the term of this Lease for three additional periods of one year on all the same terms and
conditions contained herein, provided that Tenant shall have given Landlord written notice of the
exercise of such option at least six (6) months prior to the expiration of the initial term and each
renewal term
ARTICLE 11- RENT
21 BASE RENT
(a) Base Rent for Initial Term Base Rent for the initial term to July 31, 2008, in the
amount of Two Hundred Fifty -Nine Thousand Two Hundred Dollars ($259,200) has been prepaid
as a discount to the purchase price of the Subject Property, in accordance with the Purchase
Agreement for the Premises between the parties dated December 21, 2004
(b) Base Rent for Renewal Terms Annual Base Rent for each renewal term will be
determined by adlustmg the sum of Eighty -Six Thousand Four Hundred Dollars ($86,400) by a
fraction, the numerator of which is the reference index for the Consumer Price Index, all items, all
urban consumers, U S City Average, for the month of May preceding the renewal term, and the
denominator of which is the corresponding reference index for November 2007 (For example, if
the published U S Department of Labor, Bureau of Labor Statistics reported a CPI of 210 6 for
November of 2007 and 214 2 for May, 2008, the Annual Base Rent from August 1, 2008 through
July 31, 2009, would be 214 2 divided by 210 6 (214 2 210 6 1 017) tunes $86,400 (1 017 x
$86,400) or $87,868 80 If the CPI for May 2009 were 216 3, the Annual Base Rent from August
1, 2009 through July 31, 2010 would be 216 3 divided by 210 6 times $86,400 or $88,738 46
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Annual rent for each renewal term shall be paid in equal monthly installments paid in advance on
the first of each month
22 ADDITIONAL RENT Any other charges to be paid by the Tenant pursuant to the
provisions of any other sections of this Lease shall be designated as "Additional Rent" Additional
Rent will be paid within thirty (30) days of invoice therefor from the City, which will submit
m-,oices no more often than monthly Additional Rent shall include any real estate or personal
property taxes levied and due by reason of Tenant's use and occupancy of the Demised Premises
Failure of Tenant to pay Additional Rent shall give Landlord the right to declare an event of default
in accordance with Article XIV
23 RENT DELINQUENCIES Should the Tenant, for any reason whatsoever, fail to
pay, when the same is due and payable, any Base Rent or Additional Rent and should said rent not
be paid within ten (10) days of due date, Tenant shall pay a late penalty equal to six percent (6 of
total rents due In addition, all unpaid rents shall bear interest from the date due to the date of
payment at the rate of tw o percent (2 per annum in excess of the prime rate as quoted by U S
Bank Minneapolis, N A to its best customers, or the highest rate permitted by law, whichever is
less.
ARTICLE III TAXES
3 1 TAXES Tenant shall pay before delinquent all real estate taxes with respect to the
Demised Premises due and payable during the term of this Lease by reason of the use and
occupancy thereof by Tenant Such taxes shall be prorated for the first and last years of the term of
this Lease Special assessments shall be paid by Landlord
ARTICLE IV USE OF PREMISES
41 TENANTS USE During the term of this Lease, the Demised Premises shall be
used solely for the purpose of school, church services, church meetings and related church activities
and for no other purpose without prior written consent of Landlord, which shall not be
unreasonably withheld
42 COMPLIANCE WITH LAWS AND REGULATIONS
(a) Tenant covenants and agrees that at all times during the term hereof it will maintain
and conduct its business insofar as the same relates to the occupancy of the Demised Premises in
such a manner and under such regulations as to be in strict compliance with any and all applicable
governmental and /or quasi governmental laws, rules, regulations and orders, as well as any and all
applicable provisions of insurance underwriters of the Demised Premises provided prior written
notice of such provisions is given to Tenant Tenant shall indemnify Landlord, Landlord's insurer,
and the property of Landlord against any and all claims or losses or actions or causes of action
resulting from Tenant's failure to comply with said laws, rules, regulations and orders and
underwriting provisions
(b) Tenant hereby agrees to maintain the premises and operate its business in
accordance with applicable provisions of the ADA (the Americans With Disabilities Act), codified
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at 42 U S SS 12101 et seg Failure to do so shall operate as an event of default and a breach of the
Lease
4.3 AFFIRMATIVE COVENANTS OF TENANT Without in any way limiting or
restricting other covenants of Tenant elsewhere in this Lease contained, the Tenant affirmatively
covenants and agrees as follows
(a) Tenant shall neither permit or suffer and conduct, odor or other nuisance m, on or
about said Demised Premises to annoy or disturb any persons occupying adjacent premises or
common areas or suffer and conduct noise on or about said Demised Premises that is unreasonable
for the uses permitted herein and causes such annoyance or disturbance,
(b) Tenant shall keep the Demised Premises, including all service and/or loading areas
for the Demised Premises, free from all litter, dirt and obstructions and from snow and ice not
removed by Landlord under Section 5 2,
(c) Tenant shall keep said Demised Premises clean and in the sanitary condition
required by ordinance and regulations of any governmental or quasi governmental unit having
jurisdiction,
(d) Tenant shall neither permit nor suffer the Demised Premises, or the walls, ceilings
or floors thereof to be endangered by overloading,
(e) Tenant shall not use or permit the Demised Premises to be used for any purpose or
purposes other than that set forth in Section 4 1 hereof,
ARTICLE V MAINTENANCE AND REPAIRS
5 1 TENANT'S MAINTENANCE AND REPAIRS Tenant agrees that, from and after
the date that possession of the Demised Premises is delivered to the Tenant, and until the end of the
term hereof it will be responsible for all cleaning, repairs, maintenance and replacements to the
Demised Premises including, but not limited to. the interior and exterior portions of all doors,
locks, frames, hardware incorporated into the Demised Prermses, the mechanical plumbmg
(provided that any plumbing repair having a cost in excess of $2,000 ryill be paid by Landlord),
electrical equipment and systems (provided any electrical repair having a cost in excess of $1,000
will be paid by Landlord), the HVAC system (provided that any repairs or replacement exceeding
$2,500 will be the responsibility of the Landlord), partitions, and all other fixtures, appliances and
facilities furnished by Landlord or Tenant Tenant shall not, however, be responsible for repair of
any damage caused by any negligence of Landlord, its employees or agents Tenant shall be
required to pay for any structural repairs or alterations that may be required by governmental rules,
orders or regulations as a result of Tenant's use and or occupancy of the Dernised Premises During
reasonable business hours, Landlord may inspect the Demised Premises to insure Tenant's
compliance with the above and foregoing requirements Tenant accepts the Demised Premises as
being in good and sanitary order, condition and repair and, with full knowledge of the condition of
the Demised Premises, accepts it in its as-is condition Except as specifically provided herein,
Landlord shall be responsible for all structural repairs or replacements Windows and plate glass
damaged or destroyed by Tenant, its officers, agents, employees, contractors and invitees will be
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repaired by Tenant at Tenant's expense Windows and plate glass damaged or destroyed by
Landlord, its officers, agents, employees, contractors and invitees will be replaced by Landlord at
Landlord's expense In all other cases, damaged or destroyed windows and plate glass will be
repaired by Landlord and the costs of such repair, less any casualty insurance proceeds received by
Landlord. will be reimbursed by Tenant to Landlord
52 LANDLORD'S MAINTENANCE AND REPAIRS Landlord will plow snow from
parking area and drew ays to the same standard applied to other municipal parking lots Landlord
will mow and care for grass areas to the same standard applicable to grounds around City hall
Landlord will be responsible for repairs, replacement and maintenance of roofs, foundations and
exterior building walls
53 SURRENDER OF PREMISES. At the expiration or termination of this Lease,
Tenant shall surrender the Demised Premises in the same condition as existed on the
commencement date of this Lease. except for Landlord approved modifications, ordinary wear and
tear excepted All fixtures that have become attached shall be part of the Demised Premises, except
trade fixtures Within ninety (90) days prior to the expiration of the term, Landlord shall during
reasonable business hours, have the right to show the Demised Premises to third parties for the
purposes of again leasing same
ARTICLE VI— LANDLORD IMPROVEMENTS
61 INTERIOR WALL By July 31, 2005, Landlord will construct a wall to separate the
Gathering Area from the Church, as depicted on Exhibit Two
62 FENCE By August 31, 2007, Landlord will construct a fence 10 feet in height in
the approximate location labeled as "Future Fence" on Exhibit Two
63 INTERIOR IMPROVEMENTS Landlord will reimburse Tenant for approved
capital improvements to the Gathering Area to enable relocation of classes to such area, in an
amount not to exceed fifteen thousand and no /100ths dollars ($15,000)
ARTICLE VII USE OF DEMISED PREMISES
71 RECTORY USE Tenant is given a revocable permit to use the building labeled as
the "Rectory" on Exhibit Two in its as -is condition, subject to termination by Landlord at any time
upon 120 days' written notice to Tenant Until vacated by Tenant, Tenant shall be responsible for
all maintenance, repair and replacement of the Rectory and its HVAC, mechanical, electrical and
structural systems at its own expense, and will pay for all utility expenses on a pro rata basis
Tenant may vacate such building at any time upon written notice to Landlord
72 CHURCH USE Tenant is given a revocable permit to use the building labeled as
the "Church" on Exhibit Two in its as -is condition, subject to termination by Landloid at any time
upon 30 days' wntten notice to Tenant Until vacated by Tenant, Tenant will provide cleaning
services follow mg each use and will pay for all utility expenses on a pro rata basis Tenant may
vacate such building at any time upon written notice to Landlord
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73 PARISH CENTER USE Tenant is given a revocable permit to use the building
labeled as the "Parish Center" on Exhibit Two in its as -is condition, subject to tenrnnation by
Landlord at any time upon 120 days' written notice to Tenant Until vacated by Tenant, Tenant
shall be responsible for all maintenance, repair and replacement of the Parish Center and its HVAC,
mechanical, electrical and structural systems at its own expense, and will pay for all utility expenses
on a pro rata basis Tenant may vacate such building at anytime upon written notice to Landlord
74 SIGNAGE Tenant may leave in place and maintain sipage existing on the date of
this Lease and may add signage with prior w ntten approval by Landlord
75 LANDLORD IMPROVEMENTS PROJECT, It is currently planned that Landlord
will continence construction of a public library on a part of the Premises on or after June 1, 2007
After the date of comrnencement of construction "Library Construction Commencement Date
Tenant will have no use or occupancy of the area labeled "Future Library Site" on Exhibit Two
attached hereto and made a part hereof
76 USE OF PARKING LOTS AND GROUNDS
(a) Following the Library Construction Commencement Date, Tenant shall have
exclusive use of all parking and yard areas outside of the Future Library Site
(b) Prior to the Library Construction Commencement Date, Tenant will have exclusive
use of the parking areas and grounds labeled "Daytime Parking and Playground Area" on Exhibit
Three, attached hereto and made a part hereof, for parking and playground purposes until 4 00 p in
each weekday, and shared non exclusive use of such area with Landlord at all other times
77 EAST PARKING LOT, Tenant shall have non exclusive right to use the city
parking lot across Highway 3 to the east of the Premises
ARTICLE VIII UTILITIES
8 1 CHARGES Tenant shall pay for all utility services including gas, electricity,
domestic water and sewer for the Demised Premises and all other utility services furnished the
Tenant for use in the Demised Premises, provided such utilities are separately metered For utilities
that are not separately metered and for use by Tenant of parts of the Premises authorized by
Sections 7 1, 7 2 and 7 3, Landlord will pay for such utilities and bill Tenant for its share of such
costs, pro rated by use of the space, which costs will be included in Additional Rent
82 SUPPLY OF UTILITY SERVICES Landlord shall not be liable in any way to
Tenant for any failure or defect in the supply or character of electricity, water, sewer, or gas
furnished by reason of any change, requirement, act, neglect or omission of the public utility
serving the Demised Premises
83 INTERRUPTION OR DISCONTINUANCE OF LANDLORD'S SERVICE
Tenant agrees that Landlord shall not be liable for failure to supply any service, including, but not
limited to, heating, ventilating and air conditioning when Landlord uses reasonable diligence to
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supply the same, it being understood that Landlord reserves the right to temporarily discontinue
such services, or any of them, at such times as may be necessary by reason of accident,
unavailability of employees, failure of supply, repairs, alterations or improvements, or by reason of
fire, strikes, flood, lockouts, nots, acts of God or any other happening beyond the reasonable control
of Landlord When Landlord causes services to be rendered by independent third parties, Landlord
shall have no liability for the performance thereof or liability therefor
84 GARBAGE AND REFUSE COLLECTION All garbage and refuse shall be kept
in containers and shall be placed outside of the Demised Premises prepared for processing and/or
collection Tenant shall arrange for, and pay for the collection and disposal of garbage and refuse
generated dunng Tenant's use of the Demised Premises
ARTICLE IX ALTERATIONS
91 ALTERATIONS Tenant may, from time to time during the term, make, at its own
cost and expense, any alterations or changes in the interior of the School and Gathering Area in
good and workmanlike manner in compliance with all applicable requirements of law, provided
Tenant follows the notice procedure and obtains Landlord's consent where required, all in
accordance with this Article Landlord agrees to cooperate with Tenant for the purpose of securing
necessary permits for any changes, alterations, or additions permitted under this section without
expense to the Landlord All costs of any such work shall be paid promptly by Tenant so as to
prevent the assertion of any liens for labor or matenals Tenant agrees to advise Landlord in writing
of the date upon which such alterations will commence in order to permit Landlord to post notice of
non responsibility
92 NOTICE TO LANDLORD Pnor to the initiation of any alterations, Tenant shall
give Landlord wntten notice thereof and specify the work to be performed in reasonable detail and
include the names of the contractors and matenalmen to be utilized After receipt of said notice,
Landlord shall have a reasonable period of time during which it shall make a determination, in its
sole discretion, as to whether or not the proposed work would create a structural or design change
Tenant shall prop ide Landlord upon request with any further information reasonably necessary for
such determination by Landlord and Tenant shall not commence work or accept matenals prior to
receiving written notice of Landlord's determination If Landlord detemmnes that the proposed
work would create a structural or design change, then the same must be approved in writing by
Landlord prior to the commencement of any work or the delivery of any matenals therefor
ARTICLE X PUBLIC LIABILITY
101 TENANT'S LIABILITY INSURANCE Tenant shall during the entire term hereof
keep in full force and effect insurance upon all glass and plate glass in the Demised Premises and a
policy of public liability and property damage insurance with respect to the Demised Premises, and
the business operated by Tenant and any sublessees with respect to the Demised Premises, in which
the limits of public liability shall not be less than $1,000,000 per person and $1,000,000 per
accident and in which the property damage liability shall not be less than $500,000 The policy
shall name Landlord as additional insured and shall contain clauses that losses shall be payable
notwithstanding any act or negligence of the insured that might otherwise result in forfeiture of said
insurance, and that the insurer will not cancel or change the insurance without first giving the
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Landlord thirty (30) days prior written notice The insurance shall be with an insurance company
approved to do business in Minnesota or self insurance program and reasonably acceptable to
Landlord Tenant shall deliver a copy of the policy or a certificate of insurance to Landlord prior to
taking possession of the Demised Premises, and a renewal certificate at least thirty (30) days prior
to the expiration of any policy term Tenant may self insure with respect to liability insurance
required under this Agreement, in which event Tenant shall be responsible for all protection of
Landlord, its officers, agents and employers that would have been afforded by the liability cov erage
required under this Agreement
102 INDEMNIFICATION Except for claims ansmg out of the willful or negligent act
of the other party or its representatives, each party shall indemnity and defend the other party
against all claims, expenses and liabilities incurred, including reasonable attorneys' fees, in
connection with loss of life, personal injury, and/or damage to property ansmg out of any
occurrence in, upon or at the Demised Premises, or the occupancy or use thereof by said party, or
occasioned wholly or in part by any act or omission of said party, its agents, employees, contractors,
sublessees, concessionaires, guests or licensees Nothing herein shall be deemed a waiver of the
limitations on liability set forth in Minnesota Statutes, Chapter 466
ARTICLE XI DESTRUCTION AND RESTORATION
III RESTORATION OPTION IF MORE THAN 30% DAMAGED If the Demised
Premises shall be damaged to the extent of thirty percent (30 or more of the cost of replacement
thereof or damaged by any uninsured casualty, Landlord shall have the option to rebuild or to
terminate this Lease by exercise of notice to Tenant given not more than sixty (60) days from the
date of such damage
112 RESTORATION OPTION IF LESS THAN 30% DAMAGED
(a) If the demised Premises shall be damaged to the extent of less than thirty percent
(30 of the cost of replacement by fire or other casualty covered by Landlord's policy of fire
coverage insurance during the term of this Lease the minimum rental herein shall abate as of the
date of the occurrence in accordance with the provisions of Section 11 2(b), and the Landlord shall
restore the Demised Premises If such an event occurs during the last one (1) year of the initial term
of this Lease or thereafter, then Landlord shall have the option to rebuild or terminate this Lease to
be exercised by notice to tenant given not more than sixty (60) days from the date of such damage
(b) In the event of such partial destruction or damage whereby Tenant shall be deprived
of occupancy and use for only a portion of the Demised Premises, then Base Rent shall be equitably
apportioned according to the area of the Demised Premises that is unusable by Tenant from the date
of occurrence, until such time as the Demised Premises are repaired or restored as provided herein
113 TOTAL DESTRUCTION In the event of total destruction of the Demised
Premises, Tenant's rent shall completely abate from the date of such destruction If Landlord elects
to rebuild as aforesaid, Tenant's rent shall completely abate from the date of such destruction until
forty five (45) days after the date when Landlord notifies tenant that the shell of the demised
Premises is ready for commencement of Tenant's work, or upon the day when Tenant opens for
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business, whichever event shall first occur In the event of total destruction, Tenant may elect, by
giving written notice to Landlord within sixty (60) days of such destruction, to tern inate this Lease
114 TENANTS INSURANCE COVERAGE Tenant shall carry insurance against fire
and such other risks as are from time to time included in standard extended coverage insurance for
the full insurable value of Tenant's merchandise, trade fixtures, furmshmgs, equipment and all
other items of personal property of Tenant located on or within the Demised Premises Any
insurance policies required to be earned pursuant to this paragraph shall name Landlord as an
additional insured, and Tenant shall furnish Landlord evidence of such insurance coverage Such
insurance policies may not be modified or terminated without thirty (30) days advance notice to
Landlord Landlord shall maintain at its own expense such other property- casualty insurance as it
deems reasonable and necessary to protect its interests in the Premises
115 [INTENTIONALLYLEFT BLANK
116 [INTENTIONALLYLEFTBLANK]
117 ADDITIONAL HAZARDS Tenant covenants and agrees that it will not do or permit
anything to be done in or upon the Demised Premises or bring in anything or keep anything therein
that shall cause the cancellation of Tenant's insurance policies, or increase the rate of insurance, on
the Demised Premises, above the standard rate on said premises and buildings for the use to which
the Demised Premises is put as of the date of this Lease Tenant further agrees that in the event it
shall do anything to so increase the insurance rate, Tenant shall promptly pay to Landlord on
demand any such increase resulting therefrom, which shall be due and payable as Additional Rent
hcieunder 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
11 8 NOTICE Tenant shall give immediate written notice to Landlord of any damage
caused to the Demised Premises by fire or other casualty, or of any cancellation or reduction of
Tenant's insurance coverage required pursuant to this Lease
119 ABATEMENT Tenant agrees that during any period of reconstruction or repair of
the Demised Premises, it will continue the operation of its business within the Demised Premises to
the extent practicable If Landlord is required to, or elects to, repair and rebuild, then during the
period from the occurrence of the casualty until Landlords repairs are completed, the Base Rent set
forth herein shall be reduced to such extent as may be fair and reasonable under the circumstances,
however, there shall be no abatement of the other charges provided for herein
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121 PARTIAL OR TOTAL CONDEMNATION If the whole or any part of the
Demised Premises or the structure encompassing same shall be taken by any public authority under
the power of eminent domain, the Tenant shall have no claim to, nor shall Tenant be entitled to, any
portion of any award, for damages or otherwise In the event only a portion of the Dermsed
Premises are taken, the Lease shall terminate as to the part taken, and the rent and other charges
herein reserved shall be adjusted for the remainder of the Demised Premises so that the Tenant shall
be required to pay for the balance of the term that portion of the rent resen ed which the value of the
part of the Demised Premises remaining after condemnation bears to the value of the Dermsed
Piermses immediately prior to the date of condemnation The rental and other charges shall be
apportioned as afoiesaid by agreement between the parties or by arbitration or legal proceedings,
but pending such deternnation the Tenant shall pay at the time and in the manner above provided
the rental herein reserved and all other charges herein required to be paid by the Tenant, without
deduction, and upon such determination, the Tenant shall be entitled to credit for any excess rentals
paid If, however, by reason of the condemnation there is not sufficient space left in the Demised
Premises for the Tenant to reasonably conduct business, then, in such event, the Lease shall
terminate Although all damages in the event of condemnation belong to Landlord whether
awarded as compensation for diminution in value of the leasehold or to the fee of the leased
premises, nothing herein shall be construed to prevent Tenant to claim and recover from the
condemning authority such compensation as may be separately awarded or recoverable by Tenant
in Tenant's own right for its leasehold interest
ARTICLE XIII ASSIGNMENT AND SUBLETTING
13 1 CONSENT REQUIRED Tenant may not assign this Lease and/or sublet the
Demised Premises, or any part thereof to any party other than a subsidiary or affiliate of Tenant
without in each instance obtaining the prior written consent of the Landlord, which consent shall
not be unreasonably withheld The consent by Landlord to any assignment or subletting may not
constitute a waiver of the necessity for such consent to any subsequent assignment or subletting
This prohibition against assigning or subletting shall be construed to include a prohibition against
any assigmnent or subletting by operation of law If this Lease is assigned, or if the Demised
Premises or any part thereof is underlet or occupied by anybody other than Tenant, Landlord may
collect rent from the assignee, under- tenant or occupant, and apply the net amount collected to the
rent herein reserved, but no such assignment, under letting, occupancy or collection shall be
deemed a waiver of this covenant, or the acceptance of the assignee, under -tenant or occupancy as
Tenant, or a release of Tenant from the further performance by Tenant of covenants on the part of
Tenant herein contained Notwithstanding any assignment or sublease, Tenant shall remain fully
liable on this Lease and shall not be released from performing any of the terms, covenants, and
conditions of this Lease Tenant shall pay to Landlord any reasonable costs and expenses
(including legal fees) incurred by Landlord in connection with such assignment or subletting
ARTICLE XN TENANT'S DEFAULT
141 EVENTS OF DEFAULT The following events shall be deemed to be events of
default by Tenant under this Lease
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(a) Tenant shall fail to pay when due any installment of rent, or other charges provided
herein, or any portion thereof and the same shall remain unpaid for a period of ten (10) days after
the same has become due, or
(b) [This paragraph intentionally Left blank], or
(c) Tenant shall do or permit to be done anything that creates a ben upon the Demised
Premises, and does not, within ten (10) days after written notice from Landlord either (i) cause said
lien as to Landlord's interest to be released, or (i) diligently pursue a challenge to such lien having
first given to Landlord such security as the Landlord deems adequate to protect its interests, or
(d) Any representation or warranty made in writing to Landlord in this Lease or in
connection with the making of this Lease, by Tenant, shall prove at any time to have been incorrect
in any material respect when made or becomes incorrect, or
(e) Tenant or any guarantor shall make an assignment for the benefit of creditors, for a
petition in bankruptcy, be adjudicated insolvent or bankrupt or admit in writing the inability to pay
debts as they mature, petition or apply to any tribunal for the appointment of a receiver, trustee or
similar officer for Tenant or any guarantor or a substantial part of the assets of Tenant or any
guarantor, or shall commence any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or
hereafter in effect, or if there shall have been filed any such petition or application, or any such
proceeding shall have been commenced against Tenant that remains undismissed for a period of
thirty (30) days or more, or Tenant or any guarantor by any act or omission shall indicate their
consent to, approN al of or acquiescence in any such petition, application or proceeding, or the
appointment of a receiver of or any trustee or similar officer for Tenant or any guarantor or any
substantial part of any of the properties of Tenant or any guarantor, or shall suffer any such
receivership or trusteeship to continue undischarged for a period of thirty (30) days or more, or any
judgment, writ, warrant or attachment or execution or similar process shall be issued or levied
against a substantial part of the property of Tenant or any guarantor and such judgment, writ, or
similar process shall not be released, vacated or fully bonded within thirty (30) days after its issue
or leery, or
(f) Tenant shall have failed to comply with any other provisions of this Lease and shall
not cure any failure within thirty (30) days, or such longer period of time as may be reasonably
required to cure such default, after Landlord, by wntten notice, has informed Tenant of such
noncompliance,
14 2 LANDLORD'S REMEDIES Upon the occurrence of any of the above lettered
events of default, Landlord may elect to either (1) terminate this Lease, or (2) termmate Tenant's
right to possession only without terminating this Lease, hereinafter referred to as re- entry, (3)
pursue any other remedy available at law or inequity Landlord shall have all remedies provided in
the Lease and under governing law All of the remedies given to Landlord in this Lease or by law
shall be cumulative, and the exercise of one right or remedy by landlord shall not impair its right to
exercise any other right or remedy
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In the event of election under (2) above to terminate Tenant's right to possession only,
Landlord may, at Landlord's option, proceed to demand possession by notice and proceeding under
the Unlawful Detauier Law of Minnesota and take and hold possession thereof without such
proceeding or entry into possession terminating this Lease or releasing Tenant in whole or in part
from Tenant's obligation to pay the rent hereunder for the full term Upon re -entry Landlord may
remove all personal property from the Demised Premises and such property may be removed and
stored in a public warehouse or elsewhere at the cost of and for the account of Tenant, all w ithout
service of notice or resort to legal process and without being deemed guilty of trespass, or becoming
liable for any loss or damage that maybe occasioned thereby Upon and after entry into possession
without termination of the Lease, Landlord shall use reasonable efforts to relet the premises, or any
part thereof for the account of Tenant, to any other person, firm or corporation, for such rent and
other charges for such time and upon such terms as Landlord, in Landlord's sole subjective
discretion shall determine, but Landlord shall not be required to accept any potential tenant offered
by Tenant or to observe any instruction given by Tenant about such reletting Landlord may make
repairs or redecorate the premises to the extent deemed by the Landlord necessary or commercially
reasonable Notwithstanding any action of possession or re -entry into the Leased Premises by the
Landlord as permuted in this Article, or termination of this Lease as permitted under Article XIV, it
is stipulated and agreed that tenant shall remain liable to Landlord for damages for breach of this
Lease and of Tenant's covenants hereunder in an amount equal to the total of the following
(a) All unpaid fixed Base Rent and Additional Rent, late charges, Additional Rent
payable for taxes and otherwise, and any and all other charges payable by Tenant hereunder or
under other agreements with the Landlord due for the current lease term, together with additional
late charges from due date until paid, PLUS
(b) All costs and expenses incurred by Landlord in connection with re -entry and
repossession of the Leased Premises, including attorneys' fees
14 3 COSTS, EXPENSES AND ATTORNEYS FEES If one party is required to seek
legal counsel for collection or to commence litigation or arbitration in order to enforce the
covenants and agreements in this Lease, the party prevailing in such collection, litigation or
arbitration shall have the right to remnbursenent from the other party of all reasonable costs,
expenses and attorney's fees
ARTICLE XV— LANDLORD DEFAULT
15.1 DEFAULT NOTICE TO LANDLORD Should Landlord default in the
performance of any of the covenants on the part of the Landlord to be kept or performed and such
default shall continue for thirty (30) days after v<ntten notice to Landlord from Tenant specifying
such default, or should any warranty or representation made by Landlord be untrue and remain
untrue after thirty (30) days after written notice from Tenant specifying such untruth, then and
only in such event, shall termination of this Lease be effected or action taken or remedy pursued
If the default or untruth is of such character so as to require more than thirty (30) days to remedy,
the Landlord shall have a reasonable period in which to remedy the same, provided Landlord is
proceeding diligently
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ARTICLE XVI MISCELLANEOUS PROVISIONS
161 HOLDING OVER In the event that Tenant shall continue to occupy the demised
Premises after the expiration of the term of this Lease or written extension of the term hereof
without entering a new Lease or written extension of the term hereof said tenancy shall be
construed to be a "tenancy from month to month" upon all of the other terms and conditions
herein contained, except where same are not applicable, and except that the rental during such
holdover period shall be the then current Base Rent plus fifty percent (50 thereof and all
Additional Rent shall continue to be paid
162 NO PARTNERSHIP It is expressly understood that the Landlord and Tenant are
not partners or co- venturers, and that the Landlord has no right, title or interest in and to the
business of the Tenant, and that the Tenant has no right to represent or bind the Landlord in any
respect whatsoever, and that nothing herein contained shall be deemed, held or construed as
making the Landlord a partner or associate of the Tenant, or as rendering the Landlord liable for
any debts, liabilities or obligations incurred by the Tenant, it being expressly understood that the
relationship between the parties hereto is, and shall at all times remain, that of Landlord and
Tenant
16 3 WAIVER Failure on the part of the Landlord to complain of any action or non-
action on the part of Tenant, no matter how long the same may continue, and no matter what
other action or non action by Tenant that Landlord has already complained of shall never be
deemed to be a waiver by Landlord of any of his rights hereunder Further, it is covenanted and
agreed that no waiver at any time of any of the provisions hereof by Landlord, shall be construed
as a waiver of any of the other provisions hereof and that a waiver at any time of any of the
provisions hereof shall not be construed as a waiver at any subsequent time of the same
provisions The consent or approval of the Landlord to or of any action by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render unnecessary Landlord's
consent or approval to or of any subsequent similar act by Tenant
No payment by Tenant, or acceptance by Landlord, of a lesser amount than shall be due
from Tenant to Landlord, even after demand by Landlord for rent pursuant to Tenant's rent
default shall be treated otherwise than a payment on account The acceptance by Landlord of a
check for a lesser amount with an endorsement or statement thereon, or upon any letter
accompanying such check, that said lesser amount is payment in full shall be given no effect, and
Landlord may accept such check without prejudice to any further rights or remedies which
Landlord may have against Tenant Further, failure of the Landlord to bill timely for taxes or
other additional rent as heretofore required shall not be deemed a waiver of Tenant's liability to
pay same
16,4 COVENANT OF QUIET ENJOYMENT Tenant, subject to the tennis and
provisions of this Lease, on payment of the rent and observing, keeping and performing all of the
terms and provisions of this Lease on its part to be observed, kept and performed, shall lawfully,
peaceably and quietly have, hold occupy and enjoy the Demised Premises during the term hereof
without hindrance or objection by any persons lawfully claiming under Landlord
CLL- 2542970 12
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165 ENTIRE AGREEMENT This Lease is executed in identical counterparts, each
of which, when bearing original mitials of the parties on each page and at each change in the text
hereof as well as original signatures at the end of each document, shall constitute an original for
all purposes All previous agreements, whether oral or written, are superseded by and merged
with this Lease Subsequent change shall not be binding unless reduced to writing and signed by
the parties hereto
16 6 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 or unenforceable, 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, tern or provision of this Lease that is illegal invalid or
unenforceable, there be added as part of this Lease a clause, term or provision similar to such
illegal invalid or unenforceable clause, term or provision as may be possible and would be legal
valid and enforceable
16,7 PROVISIONS BINDING, ETC Except as herein otherwise expressly provided,
the terms hereof shall be binding upon and shall inure to the benefit of the heirs, successors,
assigns and legally appointed representative, respectively, of the Landlord and the Tenant Each
term and each provision of this Lease to be performed by Tenant shall be construed to be both a
covenant and a condition
16 8 GOVERNING LAW The laws of the State of Minnesota shall govern the
interpretation, validity, performance and enforcement of this Lease
16.9 NOTICES Any notice which is required under this Lease shall be deemed
"given" upon hand delivery or three (3) days after prepaid posting in the U S Mail whichever
shall first occur Notice shall be addressed to
Landlord at City Administrator
City of Rosemount
2875 145 °i St W
Rosemount, MN 55068
Tenant at The Church of St Joseph of
Rosemount, Minnesota
13900 Biscayne Avenue West
Rosemount, MN 55068
or to any other address as shall be designated by written notice
Where in tlus Lease a certain number of days from date of notice to a given action is
specified, unless the specific provision otherwise states, the days shall be counted as follows The
CLL- 254297v3 13
RS220 -162
first calendar day shall be excluded and the last day shall be included, unless the last day is a
Saturday, Sunday, or legal holiday, in which eN ent the period shall be extended to include the next
day which is not a Saturday, Sunday or legal holiday
1610 DATE OF LEASE All references to the "date of this Lease" or "date hereof' shall
be deemed to be that date stated in the first paragraph of this Lease
16 11 HEADINGS The heading, section numbers and article numbers appearing to this
Lease are not intended in any manner to define, limit or describe the scope of any such section or
article and are solely inserted for ready reference purposes
16 12 PRONOUNS As utilized in this Lease, the "singular" pronouns shall include the
"plural and the "masculine" shall include the "feminine" and the "neuter and vice versa, unless a
contrary intent specifically appears
1613 TERMINATION FOR CONVENIENCE BY TENANT Tenant may terminate this
Lease for convenience at any time upon six months' prior written notice to Landlord Additional
Rent shall continue to be paid to the effective date of termination Base Rent for the initial term
w ill be refunded to Tenant by Landlord for the number of unused days remaining in the initial term
after the effective date of termination, at the rate of $236 71 per day, but not in any event exceeding
the sum of Eighty -Six Thousand Four Hundred Dollars ($86,400)
16.14 LANDLORD CONSENT Whenever Landlord consent is specifically required
under this Agreement, such consent will not be unreasonably withheld or delayed
16 15 RENT ABATEMENT Tenant's rent will be abated if the part of the Demised
Premises depicted on Exhibit Two as the "School" becomes uninhabitable or unusable due to
damage or destruction or due to default by Landlord continuing more than thirty (30) days The
amount of abatement will be the Base Rent pro rated by the number of days in the Base Rent
payment period during which the School becomes uninhabitable For the initial term the amount of
the abatement will be $236 71 per day during which the School is uninhabitable Rent abatements
of prepaid rent will be credited to later payments of Base Rent and Additional Rent payable by
Tenant Any abatement due to Tenant upon termination of the Lease will be reimbursed by
Landlord within thirty (30) days of termination
CLL- 254297v3 14
125220 -162
IN WITNESS WHEREOF, the parties hereto have affixed their signatures the day and year
first above written
LANDLORD CITY OF ROSEMOUNT
Im
ITS MAYOR
AND BY
ITS CLERK
TENANT THE CHURCH OF ST JOSEPH
OF ROSEMOUNT, MINNESOTA
m.
ITS
CLL- 254297v3 15
RS220 -162
EXHIBIT ONE
Parcel I Lot 26, Auditor's Subdivision No 1 and
Parcel 2 The North 110 feet of Lot 25, Auditor's Subdivision No 1 and
Parcel 3 Lot 25 except the North 110 feet, Auditor's Subdivision No. 1 and
Parcel 4 Lot 24 except the Southern 13 7 feet of Auditor's Subdivision No.
1 and
Parcel 5 The north 44.3 feet of Lot 20, Auditor's Subdivision No 1 and
Parcel 6 Lots 10 11, School Addition and
Parcel 7 The South 27'/2 feet of Lot 8 and Lot 9, School Addition,
All in Section 29, Township 115, Range 19, Rosemount,
Minnesota
EXMIT TWO
t.
Storage Garage
School
1�
Fence
1
EXEIIBU THREE
Daytime Parking and
CLI- 2J4ZM2
85316162
Ie 3 an_S T—M
EXHIBIT TWO
. ..... ....
Storage Garage
School
Church —
Rectory
Fence
Gathering Area
New
Interior Wall
Daytime Parking and F
CLL- 254297v2
RS220 -162
EXHIBIT THREE
�4
t �•
I
i
I
i
.143RD _ ST_ W...-.,-.... ...... ._- ....___._..__._. -�_.
AGREEMENT
1. Offer /Acceptance for Sale of Property. The Seller agrees to sell to the City
the Subject Property and the City agrees to purchase the same, according to the terms of this
Agreement.
2. Purchase Price for Property and Terms.
A. PURCHASE PRICE: The total Purchase Price for the Subject Property is
and No/ 100ths Dollars ($ .00).
B. TERMS:
(1): PAYMENT OF PURCHASE PRICE.
a. Earnest Money The sum of Zero Dollars ($ -0 -) Earnest
Money shall be paid by Buyer and Seller.
b. Cash at Closing Buyer will pay by check or electronic transfer
of funds on the Closing Date the sum of
C. Payment of Assessments Seller is the owner of property
located at 13900 Biscayne Avenue West in Rosemount,
Minnesota, which is currently subject to a lien for special
assessments in the amount of Seven Hundred Forty -Nine
Thousand Five Hundred Thirty -Two and 94/100 Dollars
($749,532.94) in favor of Buyer. Buyer will accept transfer of
Seven Hundred Forty -Nine Thousand Five Hundred Thirty-
Two and 94/100 Dollars ($749,532.94) in value of the Subject
Property as payment of such special assessments and will
notify Dakota County of the cancellation of such special
assessments within 30 days of the Closing Date.
d. The parties will execute a lease for a portion of the Subject
Property in the form of Exhibit Two attached hereto and made
a part hereof. Seller will accept credit of Two Hundred Fifty -
Nine Thousand Two Hundred Dollars ($259,200.00) of the
purchase price as three years of non - refundable prepaid base
rent as more fully described in Exhibit Two
(2): DEED /MARKETABLE TITLE: Subject to performance by Buyer,
Seller agrees to execute and deliver a Warranty Deed conveying
marketable title to the Subject Property to Buyer, subject only to the
following exceptions:
CLL- 254218v5 2
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a. Building and zoning laws, ordinances, state and federal
regulations.
b. Reservation of minerals or mineral rights to the State of
Minnesota, if any.
C. Public utility and drainage easements of record which will not
interfere with Buyer's intended use of the Subject Property.
(3): DOCUMENTS TO BE DELIVERED AT CLOSING BY SELLER. In
addition to the Warranty Deed required at paragraph 2B(2) above,
Seller shall deliver to the Buyer:
a. Standard form Affidavit of Seller.
b. Abstract of title, if available.
C. A "bring- down" certificate, certifying that all of the warranties
made by Sellers in this Purchase Agreement remain true as of
the date of closing.
d. Certificate that Seller is not a foreign national.
C. If an environmental investigation completed on or before the
Closing Date, by or on behalf of the Buyer discloses the
existence of petroleum product or other pollutant, contaminant
or other hazardous substance on the Subject Property, and
both Buyer and Seller wish to proceed with the sale. either
(i) a closure letter from the Minnesota Pollution Control
Agency (MPCA) or other appropriate regulatory authority that
remediation has been completed to the satisfaction of the
MPCA or other authority; or (ii) Agreement for
remediation/indemnification and security as the Buyer may
require Seller shall not have any affirmative duty specified
in this subsection 3(e) with respect to any environmental
investigation completed after the Closing Date. or in the
event of the discovery of the existence of petroleum product
or other pollutant, contaminant or other hazardous
substance after the Closing Date
f. Well disclosure certification, if required, or, if there is no well
on the Subject Property, the Warranty Deed given pursuant to
paragraph 2B(2) above must include the following statement:
"The Seller certifies that the Seller does not know of any wells
on the described real property."
cLL -25421 sv5 3
RS220 -162
g. Any other documents reasonably required by the Buyer's title
insurance company or attorney to evidence that title to the
Subject Property is marketable and that Seller has complied
with the terms of this Purchase Agreement.
h. Any documents reasonably required by Buyer to certify that
there are no residential occupants of the Subject Property
occupying the Subject Property under a claim of title or right,
by lease or otherwise. Any residential occupancy continuing
after the Closing Date must be in accordance with and subject
to the terms of Exhibit Two
i. An executed lease in the form of Exhibit Two which shall be
executed by Buyer at Closing.
3. Contingencies. Buyer's obligation to buy is contingent upon the following:
A. Buyer's determination of marketable title pursuant to paragraph 4 of this
Agreement.
B. Buyer's determination, in its sole discretion, that the results of the
environmental investigation under this Agreement are satisfactory to Buyer.
Buyer shall have until the Date of Closing to remove the foregoing contingencies. The
contingencies are solely for the benefit of Buyer and may be waived by Buyer. If Buyer or its
attorney gives written notice to Seller that the contingencies are duly satisfied or waived, the
Buyer and Seller shall proceed to close the transaction as contemplated herein. If, however,
one or more contingencies is not satisfied, or is not satisfied on time, and is not waived, this
Purchase Agreement shall thereupon be void at the written option of Buyer, Seller shall return
the Earnest Money to Buyer, and Buyer and Seller shall execute and deliver to each other the
termination of this Purchase Agreement.
4. Title Examination /Curing Title Defects. The Buyer shall, at its expense and
within a reasonable time after Seller's acceptance of this Agreement, obtain a commitment for
title insurance ( "commitment ") for the Subject Property. Buyer shall have ten (10) business
days after receipt of the commitment to examine the same and to deliver written objections to
title, if any, to Sellers or Buyer's right to do so shall be deemed waived. Sellers shall have
until the Closing Date (or such later date as the parties may agree upon) to make title
marketable, at the Seller's cost. In the event that title to the Subject Property cannot be made
marketable or is not made marketable by the Sellers by the Closing Date, then, this Agreement
may be terminated at the option of either party. At Closing, Seller shall surrender to Buyer all
abstracts of title to the Subject Property.
CLL -25421 sv5 4
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5. Environmental Matters.
A. The Seller warrants that the Property has not been used for production,
storage, deposit or disposal of any toxic or hazardous waste or substance,
petroleum product or asbestos (other than asbestos used as pipe wrapping and
tile adhesive in the school building) product during the period of time the
Seller has owned the Property. The Seller further warrants that the Seller has
no knowledge or information of any fact which would indicate the Subject
Property was used for production, storage, deposit or disposal of any toxic or
hazardous waste or substance, petroleum product or asbestos product -prior to
the date the Seller purchased the Subject Property. Notwithstanding the
above, the Seller's warranty regarding petroleum products does not preclude
the presence of heating oil or other similar products used as a heating fuel for
the Subject Property or above - ground gasoline or oil used for routine
maintenance of the Subject Property but the Seller does warrant that if there
was a fuel tank on the Subject Property used for the storage of heating oil or
other similar product, the Seller has no knowledge of any leak in the tank or
contamination caused thereby.
B. Buyer and its agents shall have the right to enter upon the Subject Property
after the date of this Purchase Agreement for the purpose of inspecting and
surveying the Subject Property and conducting such environmental
examination and tests as Buyer deems necessary. Buyer agrees to indemnify
the Seller against any liens, claims, losses, or damage occasioned by Buyer's
exercise of its right to enter and work on the Subject Property. Buyer agrees to
provide Seller with a copy of any report as a result of such examination and
tests If such environmental examination results in a finding that there
are or may be pollutants or contaminants on the Subject Property, either
Seller or Buyer may terminate this Agreement, at any time prior to the
Closing Date
6. Real Estate Taxes and Special Assessments. The Seller shall pay all real
estate taxes payable in 2004 prior to Closing. Seller shall pay all real estate taxes payable in
previous years. There are no special assessments for public improvements levied or pending
in the Subject Property. The entire unpaid balance of special assessments, and all
installments of special assessments levied and pending, including special assessments payable
after the year of closing. Seller agrees to pay all assessments related to service charges
furnished to the Subject Property prior to the date of closing (e.g., delinquent water or sewer
bills), including those charges levied, pending, or certified to payable 2004 taxes. Buyer shall
pay all special assessments levied after Closing and real estate taxes payable in 2005 and
thereafter (except as provided otherwise in Exhibit Two ).
7. Closing Date. Unless otherwise agreed by the parties, the date of closing will
be on or before January 14, 2005 (the "Closing Date "). However, all tenants and
residential occupancies must be vacated prior to the Closing Date. If all tenants and
residential occupants have not vacated by January 14, 2005, the closing will be delayed
CLL- 254218v5 5
RS220 -162
until such time that all tenants and residential occupants have vacated the Subject
Property or assurance that is satisfactory to Buyer, in its absolute and sole discretion,
that such continuing occupancy is pursuant only to Exhibit Two and subject to the
terms thereof. No rent will be paid to the Seller as the tenants vacate the property and
the Seller is responsible for returning all security deposits to the tenants as provided by
law. Delivery of all papers and the closing shall be made at the offices of City, 2875 — 145
Street West, Rosemount, Minnesota 55068, or at such other location as is mutually agreed
upon by the parties. All deliveries and notices to City shall be made to the above address and
marked to the attention of City Administrator.
8. Possession /Removal of Property /Utilities /Escrow.
(a) Possession. Buyer shall take and Seller shall surrender possession at the time
of closing subject to the terms of Exhibit Two
(b) Removal of Property. All personal property on the Subject Property shall be
removed prior to closing except as otherwise provided in Exhibit Two
(c) Utilities. Seller agrees to pay all charges for sewer, water, electric, gas, and
cable television (collectively, "utilities ") provided to Subject Property prior to the Closing
Date.
(d) No encumbrances. Seller agrees not to place any liens or encumbrances on
the Subject Property after the date of this Purchase Agreement.
9. Well Disclosure. Seller warrants that there is no well on the property.
10. Seller and Signatory Warranties. (a) Sewer and water. Seller warrants that
the Subject Property is connected to city sewer and city water.
(b) Mechanics' Liens. Seller warrants that, prior to the closing, Seller shall pay in
full all amounts due for labor, materials, machinery, fixtures or tools furnished within the 120
days immediately preceding the closing in connection with construction, alteration or repair of
any structure upon or improvement to the Subject Property.
(c) Notices. Seller warrants that it has not received any notice from any
governmental authority as to violation of any law, ordinance or regulation in connection with
the Subject Property.
(d) Corporate Authority. Seller warrants that it is the owner of the Subject
Property, that is has full authority to enter into this Purchase Agreement for the sale of the
Subject Property, and that there are no other parties who hold any unrecorded interest in the
Subject Property.
CLL -25421 M 6
RS220 -162
(e) Authority, of Signatories. The signatories to this Purchase Agreement
represent and warrant that they are representatives of the Seller and that they have the
authority to enter into this Agreement on Seller's behalf.
11. Broker Commission. Each party represents to the other that it has not utilized
the services of any real estate broker or agent in connection with this Purchase Agreement or
the transaction contemplated by this Purchase Agreement. Each party agrees to indemnify,
defend, and hold harmless the other party against and in respect of any such obligation and
liability based in any way upon agreements, arrangements, or understandings made or claimed
to have been made by the party with any third person.
12. Closing Costs /Recording Fees/Deed Tax. Buyer will pay: (a) the closing fees
charged by the title insurance or other closing agent, if any, utilized to close the transaction
contemplated by this Agreement; (b) the premium for title insurance policy, if any, obtained
by the City; (c) any transfer taxes and recording fees required to enable the Buyer to record its
deed from Seller under this Agreement. Seller will pay all other fees normally paid by Sellers,
including fees and charges related to the filing of any instrument required to make title
marketable. Each party shall pay its own attorney fees.
13. Inspections. From the date of this Agreement to the Date of Closing, Buyer, its
employees and agents, shall be entitled to enter upon the Subject Property to conduct such
surveying, inspections, investigations, soil borings and testing, and drilling, monitoring,
sampling and testing of groundwater monitoring wells, as Buyer shall elect; provided, that
Seller is given at least 24 hours' notice to Gary Mitchell, at (651) 423 -4402. Copies of any
such reports obtained by Buyer shall be provided to Seller if the closing does not occur.
14. Risk of Loss. If there is any loss or damage to the Subject Property between the
date hereof and the date of closing, for any reason including fire, vandalism, flood, earthquake
or act of God, the risk of loss shall be on the Seller. If the Subject Property is destroyed or
substantially damaged before the closing date, this Purchase Agreement shall become null and
void, at Buyer's option. At the request of Buyer, Seller agrees to sign a cancellation of
Purchase Agreement.
15. Relocation. Seller expressly reserves Seller's right to receive relocation benefits
and reimbursements to which Seller may be entitled by law as a result of the transaction
contemplated by this Purchase Agreement.
16. Salvage. For five years after the Closing Date, as the Subject Property is
developed and used in the future, if the following items of personal property are not used or
incorporated into the project by Buyer, Seller shall have the right to remove and salvage such
items subject to such rules and restrictions as may be imposed by Buyer for the protection of
the Buyer and the Subject Property:
Parish Center /Rectory:
- Furniture /Appliances
- Phone systems (connected to the school system)
CLL- 254218v5 7
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Prior to demolition (Opportunity for parishioners to purchase doors,
built -in shelving, etc.)
Church:
- Bell from the steeple
Exterior and interior stain glass windows (if not used in the future remodel)
- Pews (possible sale to parishioners /given to church in need)
17. Notice. Any notice, demand, request or other communication which may or shall
be given or served by the parties, shall be deemed to have been given or served on the date the
same is personally served upon one of the following indicated recipients for notices or is
deposited in the United States Mail, registered or certified, return receipt requested, postage
prepaid and addressed as follows:
SELLER: The Church of St. Joseph of
Rosemount, Minnesota
13900 Biscayne Avenue West
Rosemount, MN 55068
BUYER: City Administrator
City of Rosemount
2875 145 St. W.
Rosemount, MN 55068
AGENT: Kennedy & Graven, Chartered
ATTN: Charles L. LeFevere
470 US Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
18. Entire Agreement. This Purchase Agreement, Exhibits, and other amendments
signed by the parties, shall constitute the entire Agreement between Seller and City and
supercedes any other written or oral agreements between the parties relating to the Subject
Property. This Purchase Agreement can be modified only in a writing properly signed on
behalf of Seller and City.
19. Survival. Notwithstanding any other provisions of law or court decision to the
contrary, the warranties and representations of this Purchase Agreement, and the
provisions of Sections 8.10. 11 and 16 of this Purchase Agreement shall survive closing.
CLL- 254218v5 8
RS220 -162
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date
and year above.
CITY OF ROSEMOUNT THE CHURCH OF ST. JOSEPH OF
ROSEMOUNT, MINNESOTA
By By:
Its Mayor Its:
:A
Its Clerk Its:
CLL- 254218v5 9
RS220 -162
LEASE AGREEMENT
THIS LEASE made and entered into on this 21 st day of December, 2004, by and between
the City of Rosemount, a Minnesota municipal corporation (hereinafter referred to as
"Landlord ") and the Church of St. Joseph of Rosemount, Minnesota, a Minnesota religious
corporation (hereinafter referred to as "Tenant ").
WITNESSETH:
ARTICLE I - GRANT AND TERM
1.1 DEMISED PREMISES. In consideration of the rents, covenants and agreements
herein reserved and contained on the part of Tenant to be performed, Landlord does hereby lease
to Tenant a portion of the parcel of land legally described on the attached Exhibit One which is
hereby made a part hereof (the "Premises "), such portion being that part of the Premises depicted
on Exhibit Two which is hereby made a part hereof, as the "School ", the "Storage Garage" and
"Gathering Area ", together with certain rights to use certain other areas of the Premises by
revocable permit or shared use as is more fully described herein (the "Demised Premises ").
1.2 TERM. The term of this Lease and Tenant's obligation to pay rent hereunder
shall commence upon the date first mentioned above and the term of the lease shall expire on
July 31, 2008. In addition, provided Tenant is not in default hereunder, Tenant shall have the
option to extend the term of this Lease for three additional periods of one year on all the same
terms and conditions contained herein, provided that Tenant shall have given Landlord written
notice of the exercise of such option at least six (6) months prior to the expiration of the initial
term and each renewal term.
ARTICLE II - RENT
2.1 BASE RENT.
(a) Base Rent for Initial Term Base Rent for the initial term to July 31, 2008, in the
amount of Two Hundred Fifty -Nine Thousand Two Hundred Dollars ($259,200) has been
prepaid as a discount to the purchase price of the Subject Property, in accordance with the
Purchase Agreement for the Premises between the parties dated December 21, 2004.
(b) Base Rent for Renewal Terms Annual Base Rent for each renewal term will be
determined by adjusting the sum of Eighty -Six Thousand Four Hundred Dollars ($86,400) by a
fraction, the numerator of which is the reference index for the Consumer Price Index, all items,
all urban consumers, U.S. City Average, for the month of May preceding the renewal term, and
the denominator of which is the corresponding reference index for November 2007. (For
example, if the published U.S. Department of Labor, Bureau of Labor Statistics reported a CPI of
210.6 for November of 2007 and 214.2 for May, 2008, the Annual Base Rent from August 1,
2008 through July 31, 2009, would be 214.2 divided by 210.6 (214.2 _ 210.6 = 1.017) times
$86,400 (1.017 x $86,400) or $87,868.80. If the CPI for May 2009 were 216.3, the Annual Base
Rent from August 1, 2009 through July 31, 2010 would be 216.3 divided by 210.6 times $86,400
CLL- 254297v5 1
RS220 -162
or $88,738.46.) Annual rent for each renewal term shall be paid in equal monthly installments
paid in advance on the first of each month.
2.2 ADDITIONAL RENT. Any other charges to be paid by the Tenant pursuant to
the provisions of any other sections of this Lease shall be designated as "Additional Rent ".
Additional Rent will be paid within thirty (30) days of invoice therefor from the City, which will
submit invoices no more often than monthly. Additional Rent shall include any real estate or
personal property taxes levied and due by reason of Tenant's use and occupancy of the Demised
Premises. Failure of Tenant to pay Additional Rent shall give Landlord the right to declare an
event of default in accordance with Article XIV.
2.3 RENT DELINQUENCIES. Should the Tenant, for any reason whatsoever, fail to
pay, when the same is due and payable, any Base Rent or Additional Rent and should said rent
not be paid within ten (10) days of due date, Tenant shall pay a late penalty equal to six percent
(6 %) of total rents due. In addition, all unpaid rents shall bear interest from the date due to the
date of payment at the rate of two percent (2 %) per annum in excess of the prime rate as quoted
by U.S. Bank Minneapolis, N.A. to its best customers, or the highest rate permitted by law,
whichever is less.
ARTICLE III - TAXES
3.1. TAXES. Tenant shall pay before delinquent all real estate taxes with respect to
the Demised Premises due and payable during the term of this Lease by reason of the use and
occupancy thereof by Tenant. Such taxes shall be prorated for the first and last years of the term
of this Lease. Special assessments shall be paid by Landlord.
ARTICLE IV - USE OF PREMISES
4.1 TENANTS USE. During the term of this Lease, the Demised Premises shall be
used solely for the purpose of school, church services, church meetings and related church
activities and for no other purpose without prior written consent of Landlord, which shall not be
unreasonably withheld.
4.2 COMPLIANCE WITH LAWS AND REGULATIONS.
(a) Tenant covenants and agrees that at all times during the term hereof it will
maintain and conduct its business insofar as the same relates to the occupancy of the Demised
Premises in such a manner and under such regulations as to be in strict compliance with any and
all applicable governmental and/or quasi - governmental laws, rules, regulations and orders, as
well as any and all applicable provisions of insurance underwriters of the Demised Premises
provided prior written notice of such provisions is given to Tenant. Tenant shall indemnify
Landlord, Landlord's insurer, and the property of Landlord against any and all claims or losses or
actions or causes of action resulting from Tenant's failure to comply with said laws, rules,
regulations and orders and underwriting provisions.
(b) Tenant hereby agrees to maintain the premises and operate its business in
accordance with applicable provisions of the ADA (the Americans With Disabilities Act),
CLL- 254297v5 2
RS220 -162
codified at 42 U.S. SS 12101 et seq .) Failure to do so shall operate as an event of default and a
breach of the Lease To the extent that any non - conforming facilities are legally
grandfathered, they shall be allowed to continue. This Lease shall not independently
require improvements or alterations to comply with the ADA unless such improvements or
alterations are required by law, and ordered to be completed by the proper government
authori
4.3 AFFIRMATIVE COVENANTS OF TENANT. Without in any way limiting or
restricting other covenants of Tenant elsewhere in this Lease contained, the Tenant affirmatively
covenants and agrees as follows:
(a) Tenant shall neither permit or suffer and conduct, odor or other nuisance in, on or
about said Demised Premises to annoy or disturb any persons occupying adjacent premises or
common areas or suffer and conduct noise on or about said Demised Premises that is
unreasonable for the uses permitted herein and causes such annoyance or disturbance;
(b) Tenant shall keep the Demised Premises, including all service and /or loading
areas for the Demised Premises, free from all litter, dirt and obstructions and from snow and ice
not removed by Landlord under Section 5.2;
(c) Tenant shall keep said Demised Premises clean and in the sanitary condition
required by ordinance and regulations of any governmental or quasi - governmental unit having
jurisdiction;
(d) Tenant shall neither permit nor suffer the Demised Premises, or the walls, ceilings
or floors thereof to be endangered by overloading;
(e) Tenant shall not use or permit the Demised Premises to be used for any purpose or
purposes other than that set forth in Section 4.1 hereof;
ARTICLE V - MAINTENANCE AND REPAIRS
5.1 TENANT'S MAINTENANCE AND REPAIRS. Tenant agrees that, from and
after the date that possession of the Demised Premises is delivered to the Tenant, and until the
end of the term hereof it will be responsible for all cleaning, repairs, maintenance and
replacements to the Demised Premises including, but not limited to: the interior and exterior
portions of all doors, locks, frames, hardware incorporated into the Demised Premises; the
mechanical plumbing (provided that any plumbing repair having a cost in excess of $2,000 will
be paid by Landlord); electrical equipment and systems (provided any electrical repair having a
cost in excess of $1,000 will be paid by Landlord); the HVAC system (provided that any repairs
or replacement exceeding $2,500 will be the responsibility of the Landlord); partitions, and all
other fixtures, appliances and facilities furnished by Landlord or Tenant. Tenant shall not,
however, be responsible for repair of any damage caused by any negligence of Landlord, its
employees or agents. Tenant shall be required to pay for any structural repairs or alterations that
may be required by governmental rules, orders or regulations as a result of Tenant's use and or
occupancy of the Demised Premises. During reasonable business hours, Landlord may inspect
the Demised Premises to insure Tenant's compliance with the above and foregoing requirements.
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Tenant accepts the Demised Premises as being in good and sanitary order, condition and repair
and, with full knowledge of the condition of the Demised Premises, accepts it in its as -is
condition. Except as specifically provided herein, Landlord shall be responsible for all structural
repairs or replacements. Windows and plate glass damaged or destroyed by Tenant, its officers,
agents, employees, contractors and invitees will be repaired by Tenant at Tenant's expense.
Windows and plate glass damaged or destroyed by Landlord, its officers, agents, employees,
contractors and invitees will be replaced by Landlord at Landlord's expense. In all other cases,
damaged or destroyed windows and plate glass will be repaired by Landlord and the costs of such
repair, less any casualty insurance proceeds the claim for which Landlord will diligently
un rsue, received by Landlord, will be reimbursed by Tenant to Landlord but not to exceed
2,000.00 in any year of the Lease
5.2 LANDLORD'S MAINTENANCE AND REPAIRS. Landlord will plow snow
from the street sidewalks,.-.p area and driveways to the same standard applied to other
municipal parking lots. Landlord will mow and care for grass areas to the same standard
applicable to grounds around City hall. Landlord will be responsible for repairs, replacement and
maintenance of roofs, foundations and exterior building walls.
5.3 SURRENDER OF PREMISES. At the expiration or termination of this Lease,
Tenant shall surrender the Demised Premises in the same condition as existed on the
commencement date of this Lease, except for Landlord approved modifications, ordinary wear
and tear excepted. All fixtures that have become attached shall be part of the Demised Premises,
except trade fixtures. Within ninety (90) days prior to the expiration of the term, Landlord shall
during reasonable business hours, have the right to show the Demised Premises to third parties
for the purposes of again leasing same.
ARTICLE VI — LANDLORD IMPROVEMENTS
6.1 INTERIOR WALL. By July 31, 2005, Landlord will construct a wall to separate
the Gathering Area from the Church, as depicted on Exhibit Two
6.2 FENCE. By August 31, 2007, Landlord will construct a fence 10 feet in height in
the approximate location labeled as "Future Fence" on Exhibit Two
- 6.3 INTERIOR IMPROVEMENTS. Landlord will reimburse Tenant for approved
capital improvements to the Gathering Area to enable relocation of classes to such area, in an
amount not to exceed ($ ) .
ARTICLE VII — USE OF DEMISED PREMISES
7.1 RECTORY USE. Tenant is given a revocable permit to use the building labeled
as the "Rectory" on Exhibit Two in its as -is condition, subject to termination by Landlord at any
time upon 120 days' written notice to Tenant. Until vacated by Tenant, Tenant shall be
responsible for all maintenance, repair and replacement of the Rectory and its HVAC,
mechanical, electrical and structural systems at its own expense, and will pay for all utility
expenses on a pro rata basis. Tenant may vacate such building at any time upon written notice to
Landlord.
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7.2 CHURCH USE. Tenant is given a revocable permit to use the building labeled as
the "Church" on Exhibit Two in its as -is condition, subject to termination by Landlord at any
time upon 30 days' written notice to Tenant. Until vacated by Tenant, Tenant will provide
cleaning services following each use and will pay for all utility expenses on a pro rata basis.
Tenant may vacate such building at any time upon written notice to Landlord.
7.3 PARISH CENTER USE. Tenant is given a revocable permit to use the building
labeled as the "Parish Center" on Exhibit Two in its as -is condition, subject to termination by
Landlord at any time upon 120 days' written notice to Tenant. Until vacated by Tenant, Tenant
shall be responsible for all maintenance, repair and replacement of the Parish Center and its
HVAC, mechanical, electrical and structural systems at its own expense, and will pay for all
utility expenses on a pro rata basis. Tenant may vacate such building at any time upon written
notice to Landlord.
7.4 SIGNAGE. Tenant may leave in place and maintain signage existing on the date
of this Lease and may add signage with prior written approval by Landlord.
7.5 LANDLORD IMPROVEMENTS PROJECT. It is currently planned that
Landlord will commence construction of a public library on a part of the Premises on or after
June 1, 2007. After the date of commencement of construction ( "Library Construction
Commencement Date ") Tenant will have no use or occupancy of the area labeled "Future Library
Site" on Exhibit Two attached hereto and made a part hereof
7.6 USE OF PARKING LOTS AND GROUNDS.
(a) Following the Library Construction Commencement Date, Tenant shall have
exclusive use of all parking and yard areas outside of the Future Library Site.
(b) Prior to the Library Construction Commencement Date, Tenant will have
exclusive use of the parking areas and grounds labeled "Daytime Parking and Playground Area"
on Exhibit Three attached hereto and made a part hereof, for parking and playground purposes
until 4:00 p.m. each weekday, and shared non - exclusive use of such area with Landlord at all
other times.
7.7 EAST PARKING LOT. Tenant shall have non - exclusive right to use the city
parking lot across Highway 3 to the east of the Premises.
ARTICLE VIII - UTILITIES
8.1 CHARGES. Tenant shall pay for all utility services including gas, electricity,
domestic water and sewer for the Demised Premises and all other utility services furnished the
Tenant for use in the Demised Premises, provided such utilities are separately metered. For
utilities that are not separately metered and for use by Tenant of parts of the Premises authorized
by Sections 7.1, 7.2 and 7.3, Landlord will pay for such utilities and bill Tenant for its share of
such costs, pro rated by use of the space, which costs will be included in Additional Rent.
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8.2 SUPPLY OF UTILITY SERVICES. Landlord shall not be liable in any way to
Tenant for any failure or defect in the supply or character of electricity, water, sewer, or gas
furnished by reason of any change, requirement, act, neglect or omission of the public utility
serving the Demised Premises.
8.3 INTERRUPTION OR DISCONTINUANCE OF LANDLORD'S SERVICE.
Tenant agrees that Landlord shall not be liable for failure to supply any service, including, but
not limited to, heating, ventilating and air conditioning when Landlord uses reasonable diligence
to supply the same, it being understood that Landlord reserves the right to temporarily
discontinue such services, or any of them, at such times as may be necessary by reason of
accident, unavailability of employees, failure of supply, repairs, alterations or improvements, or
by reason of fire, strikes, flood, lockouts, riots, acts of God or any other happening beyond the
reasonable control of Landlord. When Landlord causes services to be rendered by independent
third parties Landlord shall have no liability for the performance thereof or liability therefor.
8.4 GARBAGE AND REFUSE COLLECTION. All garbage and refuse shall be kept
in containers and shall be placed outside of the Demised Premises prepared for processing and/or
collection. Tenant shall arrange for, and pay for the collection and disposal of garbage and refuse
generated during Tenant's use of the Demised Premises.
ARTICLE IX - ALTERATIONS
9.1 ALTERATIONS. Tenant may, from time to time during the term, make, at its
own cost and expense, any alterations or changes in the interior of the School and Gathering Area
in good and workmanlike manner in compliance with all applicable requirements of law,
provided Tenant follows the notice procedure and obtains Landlord's consent where required, all
in accordance with this Article. Landlord agrees to cooperate with Tenant for the purpose of
securing necessary permits for any changes, alterations, or additions permitted under this section
without expense to the Landlord. All costs of any such work shall be paid promptly by Tenant so
as to prevent the assertion of any liens for labor or materials. Tenant agrees to advise Landlord in
writing of the date upon which such alterations will commence in order to permit Landlord to
post notice of non - responsibility.
9.2 NOTICE TO LANDLORD. Prior to the initiation of any alterations, Tenant shall
give Landlord written notice thereof and specify the work to be performed in reasonable detail
and include the names of the contractors and materialmen to be utilized. After receipt of said
notice, Landlord shall have a reasonable period of time during which it shall make a
determination, in its sole discretion, as to whether or not the proposed work would create a
structural or design change. Tenant shall provide Landlord upon request with any further
information reasonably necessary for such determination by Landlord and Tenant shall not
commence work or accept materials prior to receiving written notice of Landlord's
determination. If Landlord determines that the proposed work would create a structural or design
change, then the same must be approved in writing by Landlord prior to the commencement of
any work or the delivery of any materials therefor.
ARTICLE X - PUBLIC LIABILITY
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10.1 TENANT'S LIABILITY INSURANCE. Tenant shall during the entire term
hereof keep in full force and effect ' and plate glass it th e D em i se d -
Premises -tea a policy of public liability and property damage insurance with respect to the
Demised Premises, and the business operated by Tenant and any sublessees with respect to the
Demised Premises, in which the limits of public liability shall not be less than $1,000,000 per
person and $1,000,000 per accident and in which the property damage liability shall not be less
than $500,000. The policy shall name Landlord as additional insured and shall contain clauses
that losses shall be payable notwithstanding any act or negligence of the insured that might
otherwise result in forfeiture of said insurance, and that the insurer will not cancel or change the
insurance without first giving the Landlord thirty (30) days prior written notice. The insurance
shall be with an insurance company approved to do business in Minnesota or self insurance
program and reasonably acceptable to Landlord. Tenant shall deliver a copy of the policy or a
certificate of insurance to Landlord prior to taking possession of the Demised Premises, and a
renewal certificate at least thirty (30) days prior to the expiration of any policy term. Tenant may
self - insure with respect to liability insurance required under this Agreement, in which event
Tenant shall be responsible for all protection of Landlord, its officers, agents and employers that
would have been afforded by the liability coverage required under this Agreement.
10.2 INDEMNIFICATION. Except for claims arising out of the willful or negligent
act of the other party or its representatives, each party shall indemnity and defend the other party
against all claims, expenses and liabilities incurred, including reasonable attorneys' fees, in
connection with loss of life, personal injury, ' and/or damage to property arising out of any
occurrence in, upon or at the Demised Premises, or the occupancy or use thereof by said party, or
occasioned wholly or in part by any act or omission of said party, its agents, employees,
contractors, sublessees, concessionaires, guests or licensees. Nothing herein shall be deemed a
waiver of the limitations on liability set forth in Minnesota Statutes, Chapter 466.
ARTICLE XI - DESTRUCTION AND RESTORATION
11.1 RESTORATION OPTION IF MORE THAN 30% DAMAGED. If the Demised
Premises shall be damaged to the extent of thirty percent (30 %) or more of the cost of
replacement thereof or damaged by any uninsured casualty, Landlord shall have the option to
rebuild or to terminate this Lease by exercise of notice to Tenant given not more than sixty (60)
days from the date of such damage.
11.2 RESTORATION OPTION IF LESS THAN 30 % DAMAGED.
(a) If the demised Premises shall be damaged to the extent of less than thirty percent
(30 %) of the cost of replacement by fire or other casualty covered by Landlord's policy of fire
coverage insurance during the term of this Lease the minimum rental herein shall abate as of the
date of the occurrence in accordance with the provisions of Section 11.2(b), and the Landlord
shall restore the Demised Premises. If such an event occurs during the last one (1) year of the
initial term of this Lease or thereafter, then Landlord shall have the option to rebuild or terminate
this Lease to be exercised by notice to tenant given not more than sixty (60) days from the date of
such damage.
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(b) In the event of such partial destruction or damage whereby Tenant shall be
deprived of occupancy and use for only a portion of the Demised Premises, then Base Rent shall
be equitably apportioned according to the area of the Demised Premises that is unusable by
Tenant from the date of occurrence, until such time as the Demised Premises are repaired or
restored as provided herein.
11.3 TOTAL DESTRUCTION. In the event of total destruction of the Demised
Premises, Tenant's rent shall completely abate from the date of such destruction. If Landlord
elects to rebuild as aforesaid, Tenant's rent shall completely abate from the date of such
destruction until forty five (45) days after the date when Landlord notifies tenant that the shell of
the demised Premises is ready for commencement of Tenant's work, or upon the day when
Tenant opens for business, whichever event shall first occur. In the event of total destruction,
Tenant may elect, by giving written notice to Landlord within sixty (60) days of such destruction,
to terminate this Lease.
11.4 TENANTS INSURANCE COVERAGE. Tenant shall carry insurance against
fire and such other risks as are from time to time included in standard extended coverage
insurance for the full insurable value of Tenant's merchandise, trade fixtures, furnishings,
equipment and all other items of personal property of Tenant located on or within the Demised
Premises. Any insurance policies required to be carried pursuant to this paragraph shall name
Landlord as an additional insured, and Tenant shall furnish Landlord evidence of such insurance
coverage. Such insurance policies may not be modified or terminated without thirty (30) days
advance notice to Landlord. Landlord shall maintain at its own expense such other property -
casualty insurance as it deems reasonable and necessary to protect its interests in the Premises.
11.5 [INTENTIONALLY LEFT BLANK.]
11.6 [INTENTIONALLY LEFT BLANK.]
11.7 ADDITIONAL HAZARDS. Tenant covenants and agrees that it will not door
permit anything to be done in or upon the Demised Premises or bring in anything or keep
anything therein that shall cause the cancellation of Tenant's insurance policies, or increase the
rate of insurance, on the Demised Premises, above the standard rate on said premises and
buildings for the use to which the Demised Premises is put as of the date of this Lease. Tenant
further agrees that in the event it shall do anything to so increase the insurance rate, Tenant shall
promptly pay to Landlord 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.
11.8 NOTICE. Tenant shall give immediate written notice to Landlord of any damage
caused to the Demised Premises by fire or other casualty; or of any cancellation or reduction of
Tenant's insurance coverage required pursuant to this Lease.
11.9 ABATEMENT. Tenant agrees that during any period of reconstruction or repair of
the Demised Premises, it will continue the operation of its business within the Demised Premises
to the extent practicable. If Landlord is required to, or elects to, repair and rebuild, then during
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the period from the occurrence of the casualty until Landlords repairs are completed, the Base
Rent set forth herein shall be reduced to such extent as may be fair and reasonable under the
circumstances; however, there shall be no abatement of the other charges provided for herein.
ARTICLE XII - EMINENT DOMAIN
12.1 PARTIAL OR TOTAL CONDEMNATION. If the whole or any part of the
Demised Premises or the structure encompassing same shall be taken by any public authority
under the power of eminent domain, the Tenant shall have no claim to, nor shall Tenant be
entitled to, any portion of any award, for damages or otherwise. In the event only a portion of the
Demised Premises are taken, the Lease shall terminate as to the part taken, and the rent and other
charges herein reserved shall be adjusted for the remainder of the Demised Premises so that the
Tenant shall be required to pay for the balance of the term that portion of the rent reserved which
the value of the part of the Demised Premises remaining after condemnation bears to the value of
the Demised Premises immediately prior to the date of condemnation. The rental and other
charges shall be apportioned as aforesaid by agreement between the parties or by arbitration or
legal proceedings, but pending such determination the Tenant shall pay at the time and in the
manner above provided the rental herein reserved and all other charges herein required to be paid
by the Tenant, without deduction, and upon such determination, the Tenant shall be entitled to
credit for any excess rentals paid. If, however, by reason of the condemnation there is not
sufficient space left in the Demised Premises for the Tenant to reasonably conduct business; then,
in such event, the Lease shall terminate. Although all damages in the event of condemnation
belong to Landlord whether awarded as compensation for diminution in value of the leasehold or
to the fee of the leased premises, nothing herein shall be construed to prevent Tenant to claim
and recover from the condemning authority such compensation as may be separately awarded or
recoverable by Tenant in Tenant's own right for its leasehold interest.
ARTICLE XIII - ASSIGNMENT AND SUBLETTING
13.1 CONSENT REQUIRED. Tenant may not assign this Lease and/or sublet the
Demised Premises, or any part thereof to any party other than a subsidiary or affiliate of Tenant
without in each instance obtaining the prior written consent of the Landlord, which consent shall
not be unreasonably withheld. The consent by Landlord to any assignment or subletting may not
constitute a waiver of the necessity for such consent to any subsequent assignment or subletting.
This prohibition against assigning or subletting shall be construed to include a prohibition against
any assignment or subletting by operation of law. If this Lease is assigned, or if the Demised
Premises or any part thereof is underlet or occupied by anybody other than Tenant, Landlord may
collect rent from the assignee, under - tenant or occupant, and apply the net amount collected to
the rent herein reserved, but no such assignment, under - letting, occupancy or collection shall be
deemed a waiver of this covenant, or the acceptance of the assignee, under - tenant or occupancy
as Tenant, or a release of Tenant from the further performance by Tenant of covenants on the part
of Tenant herein contained. Notwithstanding any assignment or sublease, Tenant shall remain
fully liable on this Lease and shall not be released from performing any of the terms, covenants,
and conditions of this Lease. Tenant shall pay to Landlord any reasonable costs and expenses
(including legal fees) incurred by Landlord in connection with such assignment or subletting.
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ARTICLE XIV — TENANT'S DEFAULT
14.1 EVENTS OF DEFAULT. The following events shall be deemed to be events of
default by Tenant under this Lease:
(a) Tenant shall fail to pay when due any installment of rent, or other charges
provided herein, or any portion thereof and the same shall remain unpaid for a period of ten (10)
days after the same has become due; or
(b) [This paragraph intentionally left blank]; or
(c) Tenant shall do or permit to be done anything that creates a lien upon the Demised
Premises; and does not, within ten (10) days after written notice from Landlord either (i) cause
said lien as to Landlord's interest to be released, or (ii) diligently pursue a challenge to such lien
having first given to Landlord such security as the Landlord deems adequate to protect its
interests; or
(d) Any representation or warranty made in writing to Landlord in this Lease or in
connection with the making of this Lease, by Tenant, shall prove at any time to have been
incorrect in any material respect when made or becomes incorrect; or
(e) Tenant or any guarantor shall make an assignment for the benefit of creditors, for
a petition in bankruptcy, be adjudicated insolvent or bankrupt or admit in writing the inability to
pay debts as they mature, petition or apply to any tribunal for the appointment of a receiver,
trustee or similar officer for Tenant or any guarantor or a substantial part of the assets of Tenant
or any guarantor, or shall commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction,
whether now or hereafter in effect; or if there shall have been filed any such petition or
application, or any such proceeding shall have been commenced against Tenant that remains
undismissed for a period of thirty (30) days or more; or Tenant or any guarantor by any act or
omission shall indicate their consent to, approval of or acquiescence in any such petition,
application or proceeding, or the appointment of a receiver of or any trustee or similar officer for
Tenant or any guarantor or any substantial part of any of the properties of Tenant or any
guarantor, or shall suffer any such receivership or trusteeship to continue undischarged for a
period of thirty (30) days or more; or any judgment, writ, warrant or attachment or execution or
similar process shall be issued or levied against a substantial part of the property of Tenant or any
guarantor and such judgment, writ, or similar process shall not be released, vacated or fully
bonded within thirty (30) days after its issue or levy; or
(f) Tenant shall have failed to comply with any other provisions of this Lease and
shall not cure any failure within thirty (30) days, or such longer period of time as may be
reasonably required to cure such default, after Landlord, by written- notice, has informed Tenant
of such noncompliance.
14.2 LANDLORD'S REMEDIES. Upon the occurrence of any of the above - lettered
events of default, Landlord may elect to either (1) terminate this Lease; or (2) terminate Tenant's
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right to possession only without terminating this Lease, hereinafter referred to as re- entry; (3)
pursue any other remedy available at law or in equity. Landlord shall have all remedies provided
in the Lease and under governing law. All of the remedies given to Landlord in this Lease or by
law shall be cumulative, and the exercise of one right or remedy by landlord shall not impair its
right to exercise any other right or remedy.
In the event of election under (2) above to terminate Tenant's right to possession only,
Landlord may, at Landlord's option, proceed to demand possession by notice and proceeding
under the Unlawful Detainer Law of Minnesota and take and hold possession thereof without
such proceeding or entry into possession terminating this Lease or releasing Tenant in whole or
in part from Tenant's obligation to pay the rent hereunder for the full term. Upon re -entry
Landlord may remove all personal property from the Demised Premises and such property may
be removed and stored in a public warehouse or elsewhere at the cost of and for the account of
Tenant, all without service of notice or resort to legal process and without being deemed guilty of
trespass, or becoming liable for any loss or damage that may be occasioned thereby. Upon and
after entry into possession without termination of the Lease, Landlord shall use reasonable efforts
to relet the premises, or any part thereof for the account of Tenant, to any other person, firm or
corporation, for such rent and other charges for such time and upon such terms as Landlord, in
Landlord's sole subjective discretion shall determine, but Landlord shall not be required to
accept any potential tenant offered by Tenant or to observe any instruction given by Tenant about
such reletting. Landlord may make repairs or redecorate the premises to the extent deemed by
the Landlord necessary or commercially reasonable. Notwithstanding any action of possession or
re -entry into the Leased Premises by the Landlord as permitted in this Article, or termination of
this Lease as permitted under Article XIV, it is stipulated and agreed that tenant shall remain
liable to Landlord for damages for breach of this Lease and of Tenant's covenants hereunder in
an amount equal to the total of the following:
(a) All unpaid fixed Base Rent and Additional Rent, late charges, Additional Rent
payable for taxes and otherwise, and any and all other charges payable by Tenant hereunder or
under other agreements with the Landlord due for the current lease term, together with additional
late charges from due date until paid; PLUS
(b) All costs and expenses incurred by Landlord in connection with re -entry and
repossession of the Leased Premises, including attorneys' fees.
14.3 COSTS, EXPENSES AND ATTORNEYS FEES. If one party is required to seek
legal counsel for collection or to commence litigation or arbitration in order to enforce the
covenants and agreements in this Lease, the party prevailing in such collection, litigation or
arbitration shall have the right to reimbursement from the other party of all reasonable costs,
expenses and attorney's fees.
ARTICLE XV— LANDLORD DEFAULT
15.1 DEFAULT NOTICE TO LANDLORD. Should Landlord default in the
performance of any of the covenants on the part of the Landlord to be kept or performed and such
default shall continue for thirty (30) days after written notice to Landlord from Tenant specifying
such default, or should any warranty or representation made by Landlord be untrue and remain
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untrue after thirty (30) days after written notice from Tenant specifying such untruth, then and
only in such event, shall termination of this Lease be effected or action taken or remedy pursued.
If the default or untruth is of such character so as to require more than thirty (30) days to remedy,
the Landlord shall have a reasonable period in which to remedy the same, provided Landlord is
proceeding diligently.
ARTICLE XVI - MISCELLANEOUS PROVISIONS
16.1 HOLDING OVER. In the event that Tenant shall continue to occupy the demised
Premises after the expiration of the term of this Lease or written extension of the term hereof
without entering a new Lease or written extension of the term hereof said tenancy shall be
construed to be a "tenancy from month to month" upon all of the other terms and conditions
herein contained, except where same are not applicable, and except that the rental during such
holdover period shall be the then current Base Rent plus fifty percent (50 %) thereof and all
Additional Rent shall continue to be paid.
16.2 NO PARTNERSHIP. It is expressly understood that the Landlord and Tenant are
not partners or co- venturers, and that the Landlord has no right, title or interest in and to the
business of the Tenant, and that the Tenant has no right to represent or bind the Landlord in any
respect whatsoever, and that nothing herein contained shall be deemed, held or construed as
making the Landlord a partner or associate of the Tenant, or as rendering the Landlord liable for
any debts, liabilities or obligations incurred by the Tenant; it being expressly understood that the
relationship between the parties hereto is, and shall at all times remain, that of Landlord and
Tenant.
16.3 WAIVER. Failure on the part of the Landlord to complain of any action or
nonaction on the part of Tenant, no matter how long the same may continue, and no matter what
other action or non - action by Tenant that Landlord has already complained of shall never be
deemed to be a waiver by Landlord of any of his rights hereunder. Further, it is covenanted and
agreed that no waiver at any time of any of the provisions hereof by Landlord, shall be construed
as a waiver of any of the other provisions hereof and that a waiver at any time of any of the
provisions hereof shall not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of the Landlord to or of any action by Tenant requiring
Landlord's consent or approval shall not be deemed to waive or render unnecessary Landlord's
consent or approval to or of any subsequent similar act by Tenant.
No payment by Tenant, or acceptance by Landlord, of a lesser amount than shall be due
from Tenant to Landlord, even after demand by Landlord for rent pursuant to Tenant's rent
default shall be treated otherwise than a payment on account. The acceptance by Landlord of a
check for a lesser amount with an endorsement or statement thereon, or upon any letter
accompanying such check, that said lesser amount is payment in full shall be given no effect, and
Landlord may accept such check without prejudice to any further rights or remedies which
Landlord may have against Tenant. Further, failure of the Landlord to bill timely for taxes or
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other additional rent as heretofore required shall not be deemed a waiver of Tenant's liability to
pay same.
16.4 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
provisions of this Lease, on payment of the rent and observing, keeping and performing all of the
terms and provisions of this Lease on its part to be observed, kept and performed, shall lawfully,
peaceably and quietly have, hold occupy and enjoy the Demised Premises during the term hereof
without hindrance or objection by any persons lawfully claiming under Landlord.
16.5 ENTIRE AGREEMENT. This Lease is executed in identical counterparts, each
of which, when bearing original initials of the parties on each page and at each change in the text
hereof as well as original signatures at the end of each document, shall constitute an original for
all purposes. All previous agreements, whether oral or written, are superseded by and merged
with this Lease. Subsequent change shall not be binding unless reduced to writing and signed by
the parties hereto.
16.6 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 or unenforceable, 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 or
unenforceable, there be added as part of this Lease a clause, term or provision similar to such
illegal invalid or unenforceable clause, term or provision as may be possible and would be legal
valid and enforceable.
16.7 PROVISIONS BINDING, ETC. Except as herein otherwise expressly provided,
the terms hereof shall be binding upon and shall inure to the benefit of the heirs, successors,
assigns and legally appointed representative, respectively, of the Landlord and the Tenant. Each
term and each provision of this Lease to be performed by Tenant shall be construed to be both a
covenant and a condition.
16.8 GOVERNING LAW. The laws of the State of Minnesota shall govern the
interpretation, validity, performance and enforcement of this Lease.
16.9 NOTICES. Any notice which is required under this Lease shall be deemed
"given" upon hand delivery or three (3) days after prepaid posting in the U. S. Mail whichever
shall first occur. Notice shall be addressed to:
Landlord at: City Administrator
City of Rosemount
2875 145" St. W.
Rosemount, MN 55068
Tenant at: The Church of St. Joseph of
Rosemount, Minnesota
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13900 Biscayne Avenue West
Rosemount, MN 55068
or to any other address as shall be designated by written notice.
Where in this Lease a certain number of days from date of notice to a given action is
specified, unless the specific provision otherwise states, the days shall be counted as follows: The
first calendar day shall be excluded and the last day shall be included, unless the last day is a
Saturday, Sunday, or legal holiday, in which event the period shall be extended to include the
next day which is not a Saturday, Sunday or legal holiday.
16.10 DATE OF LEASE. All references to the "date of this Lease" or "date hereof'
shall be deemed to be that date stated in the first paragraph of this Lease.
16.11 HEADINGS. The heading, section numbers and article numbers appearing in this
Lease are not intended in any manner to define, limit or describe the scope of any such section or
article and are solely inserted for ready reference purposes.
16.12 PRONOUNS. As utilized in this Lease, the "singular" pronouns shall include the
"plural ", and the "masculine" shall include the "feminine" and the "neuter ", and vice versa,
unless a contrary intent specifically appears.
16.13 TERMINATION FOR CONVENIENCE BY TENANT. Tenant may terminate
this Lease for convenience at any time upon six months' prior written notice to Landlord.
Additional ReRt shall eentiatte to be paid to the effeetive date of tefminatie Convenience
includes, but is not limited to, a determination by Tenant not to construct improvements or
alterations required by law to comply with the ADA, or other health and safety laws.
Tenant shall continue to pay Base rent for six months after written notice to Landlord (the
"date of termination"), even if Tenant earlier vacates the Demised Premises. Tenant shall
continue to pay Additional Rent to the date the Demised Premises is completely vacated by
Tenant Base Rent for the initial term will be refunded to Tenant by Landlord for the number of
unused days remaining in the initial term after the effective date of termination, at the rate of
$236.71 per day, but not i ffiny event ° °°° ° „^ (except for termination for which notice is
given within six months of the commencement date of this lease based on a determination
by Tenant not to construct improvements or alterations to comply with the ADA or other
health and safety lawsl. such refund shall not exceed the sum of Eighty -Six Thousand Four
Hundred Dollars ($86,400) In the event of a termination for which notice is given within six
months of the commencement date of this lease based on a determination by Tenant not to
construct improvements or alterations to comply with the ADA or other health and safety
law, such refund shall not exceed the sum of One Hundred Twenty -Nine Thousand Six
Hundred Dollars ($129,600). Landlord will refund prepaid rent within thirty days of the
date of termination.
16.14 LANDLORD CONSENT. Whenever Landlord consent is specifically required
under this Agreement, such consent will not be unreasonably withheld or delayed.
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16.15 RENT ABATEMENT. Tenant's rent will be abated if the part of the Demised
Premises depicted on Exhibit Two as the "School" becomes uninhabitable or unusable due to
damage or destruction or due to default by Landlord continuing more than thirty (30) days. The
amount of abatement will be the Base Rent pro rated by the number of days in the Base Rent
payment period during which the School becomes uninhabitable. For the initial term the amount
of the abatement will be $236.71 per day during which the School is uninhabitable. Rent
abatements of prepaid rent will be credited to later payments of Base Rent and Additional Rent
payable by Tenant. Any abatement due to Tenant upon termination of the Lease will be
reimbursed by Landlord within thirty (30) days of termination.
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IN WITNESS WHEREOF, the parties hereto have affixed their signatures the day and
year first above written.
LANDLORD: CITY OF ROSEMOUNT
BY:
ITS MAYOR
AND BY:
ITS CLERK
TENANT: THE CHURCH OF ST. JOSEPH
OF ROSEMOUNT, MINNESOTA
mm
ITS:
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