07-706Council File # 07-706
Green Sheet # 3042411
RESOLUTION
NNESOTA
Presented by
I Request to Approve Application for Preliminary and Final Plat by
2 Variance Pursuant Leg. Code § 69.703, In Order to Develop the
3 Commerce Building as a Mixed Use Office, Retail, and Apartment
4 Building
s WHEREAS, CommonBond Communities, in Fi�e No. 07-080-838, has submitted for
6 approval, the attached preliminary and final plat for the subdivision of property located at 8
� 4�' St. E. (SE corner at Wabasha) and commoniy known as the Commerce 8uilding, in order
8 to create 6 separate parcels. CommonBond has requested variances from the ordinary
9 subdivision regulations regarding boundary lines, surveyor's certification, and monuments in
t o order to allow a"veRical" subdivision of the said property; and
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1z WHEREAS, City departments have reviewed the proposed plat and agree that the vertical
13 subdivision of the subject property as proposed by CommonBond can substantially meet Yhe
t4 intent and requirements for subdivisions as specified in Leg. Code Chap. 69, provided that
is the proposed subdivision is approved underthe Council's authority, specified in Leg. Code §
t6 69.703(a)(1-6), to grant variances to subdivision regulations upon a finding of unusual
» hardship, and further provided that any conditions required for approval of the proposed plat
ls as recommended herein are implemented by the owners of the Commerce Building and
�9 abided by as set forth in Leg. Code § 69.703(b}.
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WHEREAS, Notice of a public hearing before the City Counci� was duly published in the
City's official newspaper. Notices were also mailed to each owner of affected property
including all property situated within 350 feet of the subject property; and
WHEREAS, On August 1, 2007, the City Council held a public hearing on the proposed plat
where all interested parties were given the opportunity to be heard, and the Council, based
upon the file, submissions and testimony, made the following findings concerning the
proposed plat and the requested variances:
REQUIRED FINDINGS: Leg. Code § 69.406 requires that all of the following findings
shall be made prior to approval of a subdivision:
3 t 1. All the applicable provisions of the Legrslative Code are complied with. City staff
3z have reviewed the proposed plat and have determined that all applicable provisions
33 of city codes are met except for the following provisions of the subdivision
3� regulations:
35 a. § 69_401(c)(1) requires that the preliminary plat show the boundary lines of
36 each parcel. The parcels above or below ground fevel have "boundaries" that
3� cannot be depicted on the plat.
�8 b. § 69_403(b)(2) requires that the final plat include ...surveyor's certification as
39 requrred in Section 505.03, Minnesofa Statutes.... The certification is to include,
4o among other things, that the property has been surveyed, that the distances
41 are correctly shown, and that "all monuments have been correctly placed in the
42 ground as shown." Because this plat includes areas not Iocated on the ground,
43 this certification cannot be made.
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C. F. # 07-706
Page 2 of 4
� c. § 69.600(fl Monuments states: Durable iron monuments shall be set at all
2 angle and curve points on the outside boundary lrnes of fhe plat, at alI block
3 and lot corners, and at all intermediate points on fhe block and lot lines
4 indicating changes of direction in the /ines, pnor fo the frnal recording of the
5 plat. Because portions of this p{at are not on the ground, monuments cannot
6 be set.
� Pursuant to Leg. Code § 69.703, the applicant has requested variances from these
8 specific requirements: Leg. Code §§ 69.401(c)(1), 69.403(b)(2) and 69.600(�.
9 Staff provided an analysis of the request for variances and recommended approval
to of the variances. Upon City Council approval of these variances, this finding will
� t be satisfied.
t 2 2. The proposed subdivision will not be detrimental to the present and potentia!
t 3 surrounding land uses. The proposed subdivision is consistent with the surrounding
t4 land uses, and will not be detrimental to present and future use of surrounding land.
� 5 3. The area surrounding the subdivision can be planned and developed in coordination
16 and compatibility with the proposed subdivision. The area surrounding the proposed
17 subdivision is already developed and compatible with the proposed plat.
t s 4. The subdivision is in conformance with the comprehensive plan. The subdivision is
�9 in conformance with the Land Use and Nousinq chapters of the comprehensive
zo plan, which call for housing uses downtown (Land Use Plan) and provision of
2� additional affordable housing in partnership with other partners (Housing Plan). It is
22 also in conformance with redevelopment plans for the area.
z3 5. The subdivision preserves and incorporates the site s important existing natural
za feafures whenever possible. The site is fully-developed, with no remaining natural
zs features.
26 6. All land intended for building sites can be used safely without endange�ing residents
2� by peri� from floods, erosion, continuously high wate� tabie, severe soi� conditions or
2s othe�menace. The site is fully developed, with no flooding, erosion, high water table
29 or soil condition problems.
30 7. The subdivision can be economically served with public facilities and services. The
31 subdivision can be economically served with public facifities and services from
32 surrounding streets.
33 PARKLAND DEDICATIOfV: Leg. Code § 69.511 requires dedication of two {2) percent of
34 the tota{ land area of the plat for public use for parks, playgrounds, trails, open space, or
�s conservation purposes. At the discretion of the City Councif, a cash dedication in lieu of
36 land may be paid prior to the city clerk's signing of the final piat. For this subdivision,
3� since no land is available, a cash dedication in the amount of $3,446 shall be required.
33 FINDINGS REQUIRED FOR GRANTING SUBDlVIS10N VARIANCES: Leg. Code §
39 69.703 authorizes the City Council to grant subdivision regulation variances "when
4o compliance would create an unusual hardship to the development of the land" based
41 upon the following findings:
42 1. The intent of this chapter is met. This finding is satisfied. The requested variances
43 are consistent with the intent of the subdivision regulations to provide for the orderly,
44 economic and safe development of �and a�d to promote affordable housing to
45 persons and families of all income levels.
C. F. # 07-706
Page 3 of 4
i 2. The granting of the variance will not be detrimenta! to the public safety, health or
2 we/fare o� injurious to other property or rmprovements in the neighborhood in which
3 the property rs located. This finding is satisfied. The applicants have submitted a
4 document entitled "Reciprocal Maintenance, Use, and Easement Agreement." Staff
s have reviewed this document. Provided that the document contains a Covenant
s agreed to "as to form" by the DepaRment of Safety and inspections which shall
7 require an Owner of the property to advise and defiver to the City within twenty-four
s (24) hours of the receipt of any orai or written enforcement order regarding life
9 safety, zoning or any other property maintenance standard matters, a written
to statement signed by the owners of the Commerce Building and CommonBond
t 1 indicating which owner or owners will be responsible for complying with the
1z enforcement order. The "Reciprocal Maintenance, Use, and Easement Agreement"
�3 and any amendments thereto shall also be recorded with the plat. In this manner,
�4 the "Reciprocal Maintenance, Use, and Easement Agreement" will serve as a basis
15 to protect the public safety, health and welfare.
t 6 3. The conditions upon which the request for a variance is based are unique to the
t� property for which the variance is sought and are generally not applicable to other
1s p�operty. This finding is satisfied. CommonBond has represented that titie issues
19 with the building prevent other means of subdividing the building at this time and that
zo financing for the building's rehabilitation requires a subdivision of the building.
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4. The literal interp�etation of the p�ovisions of this chapter would deprive the applicant
of rights commonly enjoyed by other properties in the same zoning district. This
finding is satisfied. Mixed use buildings are permitted under the property's zoning
classification. Vertical subdivision of the property is necessary for financing the
rehabilitation of the property. However, a veRical subdivision cannot meet some of
the literal requirements of the subdivision regulations.
5. The special conditions and circumstances do not result from the actions of the
applicant. This finding is satisfied. The CommonBond Communities, the applicant,
did not create the conditions that cause a need for variances of the subdivision
regulations.
Because of the particular natural surroundings, shape or topographical conditions of
the specific property involved, unusual hardship to the owner would result, as
distinguished f�om a mere inconvenience, if the strict letter of these regulations were
carried out. Unusual hardship would result for the owners of the building if the strict
letter of these regulations were carried out because the rehabilitation of this building
and the provision of affordable housing could not go forward due to increased time
delays and project costs.
NOW, THEREFORE, BE IT RESOLVED, that the City Council approves the requested
variances of subdivision regulations regarding boundary lines, surveyor's certification, and
monuments; and
BE IT FURTHER RESOLVED, that the City Council accepts and approves the attached
preliminary and final plat for Commerce Building, subject to the following conditions:
The appficant shall pay the required parkland dedication fee of $3,446 prior to the
City Clerk signing the f'inal plat.
47 2. The Reciprocal Maintenance, Use, and Easement Agreement containing
48 language meeting the condition under variance finding No. 2 shali be provided to
C. F. # 07-706
Page 4 of 4
i the Department of Safety and inspections and the Saint Paul Fire Department for
2 their approval. The applicant shall file with the Ramsey County Recorder's Offce
3 a copy of the approved Reciprocal Maintenance, Use, and Easement Agreement
a and any subsequent amendment thereto together with this Council Resolution
5 approving the piat.
6 3. A copy of the most current version of the Reciprocai Maintenance, Use, and
� Easement Agreement, approved as to form, demonstrating that it is on file with
8 the Ramsey County Recorder's O�ce shall also be provided in a timely manner
9 to the Department of Safety and Inspections from time to time as the case may
lo be.
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t2 AND, BE IT FINALLY RESOLVED, that the City Clerk shall mail a copy of this resolution to
13 the Applicant, the Zoning Administrator, and the Planning Administrator.
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Yeas Nays Absent Requested by Department of:
Benanav ,/
Planning & Economic Development
Thune
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✓
✓
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Form Appr d b�y �ity
By. � !�!/Mn^a^� '� - TC - O'�
Adopted by Council: Date
Adoption Certified by Counci] Secretafy
BY /�r�ivc�-i
Approved ay Date
By:
Form Approved by Mayor for Submission to Council
By:
07-706
� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet �
co ��<a
31.1UL-07
Green Sheet NO: 3042411
Conpct Person & Phone:
CouncilmemberThune
266-8620
musi ae on
O7-AUG-07
Doc. Type: RESOLUTION
E-Document Required: Y
Document Co�rtact: Patricia James
Contact Phone:
ToWI # of Signature Pages _(Clip NI Locations for Signature)
Memoriatizing City Council actiou taken August 1, 2007, approving the applicarion of CommonBond Communities, Commerce
Partners LLC c/o United Properties for Preliminary and Final Plat by Variance in order to develop the Commerce Building as a mixed
use office, retail and aparknent building.
�aauons: Hpprove �H� or n
Planning Commission
CIB Committee
Civil Service Commission
0 onncil
1 �Council I Deparhneut D'uector
2 Ctity Clerk � City Cterk
3
4
5
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Assign
Number
Por
Routing
Order
7. Has ihis perso�rm ever worked under a contract for this department?
Yes No
2. Has this person/firm ever been a city employee?
Yes No
3. Does this personffirm possess a skill not nortnally possessed by any
current city employee?
Yes No
Explain all yes answers on separate sheet and attach to gmen sheet
Initiating Problem, Issues, Opportunity (Who, What, When, Where, Why):
AdvanWges If Approved:
Disadvantages If Approved:
Disadvantages If NotApproved:
Transaction:
Funding Source:
Financial Information:
(F�cplain)
CosURevenue Budgeted:
Activity Number:
July 31, 2��7 3:11 PM Page 1
DEPARTMENT OF PLANIVING &
ECONOMIC DEVELOPMENT
Ceci[e Bedar, Director
CITY OF SAINT PAUL
Christopher B. Coleman, M¢yor
July 12, 2007
Ms. Mary Erickson
City Council Research Office
Room 310 City Hall
Saint Paul, Minnesota 55102
Dear Ms. Erickson:
zs west Fourth svee[
SainiPaul, MN55102
Q
Telephone: 65]-266-6700
Facsimile: 6il-228-3220
I would like to confirm that a public hearing before the City Council is scheduled for Wednesday,
August 1, 2007. for the following case.
Zoning File:
Applicant:
Location of Property:
Purpose:
07-080-838, Commerce Building
Commonbond Communities, Commerce Partners LLC c/o United
Properties
8 4th St E, SE corner at Wabasha
Combined Plat for Commerce Building to create 6 parcels, and variances
of subdivision regulations regarding boundary lines, surveyors
certification, and monuments.
City staff have reviewed the proposed subdivision. A staff report will be prepared and provided
to the City Council the week prior to the pubiic hearing.
I have confirmed this day with Councilmember Thune`s office. My understanding is that this
public hearing request will appear on the agenda for the July 25, 2007 City Council meeting and
that you will publish notice of the hearing in the Saint Paul Legal Ledger. Please call me at 651-
266-6639 if you have any questions.
Si c rely,
Patricia James
City Planner
c: File # 07-080-838
Applicant: Commonbond Communities
Commerce Partners LLC, c/o United Properties
District Council: 17
Wendy Lane
Ailan Torstenson
Carol Martineau
Paul Dubruiel
Diane Nordquist
AA-ADA-EEO EMPLOYER
NOTICE OF PUBLIC HEARING
The Saint Paul City Council will con-
duct a public hearing on Wednesday, Au-
gust 1, 2007, at 5:30 p.m. in ffie CIry
Council Chambers, Third Flodr, City
Hall/Coiuthouse, 15 West Kellogg Boule-
vard, St Paul, MN, to consider the appll-
cation of Commonbond Communities,
Commerce Parhiers LLC c/o United Prop-
erlies tn. ereate slic (6j parcels and vari-
ances of subclivlsion regulations regazding
boundary lines, surveyors certification,
and monuments at 8 4th Street East
(southeast corner at Wabasha). (ZF
07-080-&38) .
Dated: Jiily 23, 2007
MARY ERICKSON, �-
Assistant (,1ty Council Secretary
(July 26)
___— _= S1: YAOL LEGAL LSDGER =__ ___
22143534
DEPARTMENT OF PLANNING &
ECONOMIC DEVELOPMENT
Cecile Bedor, Directar
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CTTY OF SAINT PAUL
Chrisfopher B. Coleman, Mayor
July 24, 2007
Ms. Mary Erickson
City Council Research Office
Room 310 City Hall
Saint Paui, Minnesota 55102
25 Wert Founh Street
Sairst Pau1, MN 55102
TeZephone: 651-266-6700
FacsimiZe: 651-228-3220
Re: Zoning File #: 07-080-838 .
Fiie Name: Commerce 8uilding
Applicant: Commonbond Communities, Attn: Commonbond Communities
Address: 8 4th St E, SE corner at Wabasha
Purpose: Combined Plat for Commerce Building to create 6 parcels, and
variances of subdivision regulations regarding boundary lines, surveyors
certification, and monuments.
Citv Council Hearinq: Auqust 1, 2007, 5:30 p.m., Citv Council Chambers
• Staff Recommendation: Approval with conditions
District Council: District 17 has not made a recommendation
Deadline for Action November 8, 2007
Staff Assigned:
�
Patricia James, 651-266-6639,,�.�
U'�
Attachments:
Correspondence received
Staff Report packet
cc: Zoning File 07-080-838
Applicac�t: Commonbond Communities
Commerce Partners LLC c/o United Properties
City Council Members
District Council: 17
Wendy Lane
Larry Soderholm -
AIIan Torstenson
Peter Warner
�J
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AA-ADA-EEO Employer
SUBDIVISION STAFF REPORT
FILE #: 07-080-838
1. FILE NAME: Commerce Building HEARING DATE: August 1, 2007
2. TYPE OF APPLICATION: Preliminary and Final Plat
3. LOCATION: SE corner at Wabasha
4. PIN AND LEGAL DESCRIPTION: See subdivision documents for existing and proposed legal
descriptions.
5. PLANNING DISTRICT: 17
6. ZONING CODE REFERENCE: §69.301; §69.406; §69.511; §69.703
7. STAFF REPORT DATE: July 24, 2007
PRESENT ZONING: 64
BY: Patricia James
8. DATE RECEIVED: 5/18/2007; (final: 7/11/2007) DEADLINE FOR ACTION: 91/8/2007
A. PURPOSE: Combined Plat for Commerce Building to create 6 parcels, and variances of subdivision
regulations regarding boundary lines, surveyors certification, and monuments.
B. PARCEL SIZE: Approximately 149.7 ft. (4 St.) x 65 ft. (Wabasha). Total lot area is 9735 sq. ft.
C. EXISTING LAND USE: Office building with ground floor retail, service
D. SURROUNDING LAND USE:
North: parking ramp (B4)
East: office/retail (B4)
South: hotel (64)
West: City Hall/Court House (64)
E. ZONING CODE CITATION: §69.301 states that platting is required when a subdivision (1) creates
five or more lots or parcels each of which is 2%z acres or less in size, or (2) requires paved streets,
alleys and other pubiic improvements, or (3) is previously unpiatted land. §69.406 provides criteria
for review of subdivision applications. These criteria are covered below under °Required Findings."
§69.511 regulates parkland dedication; §69.703 stipulates required findings for variances of the
subdivision regulations.
F. HISTORY/DISCUSSION: The Commerce Building is being subdivided to allow certain floors to be
sold to CommonBond Communities, which will redevelop those floors as affordable rental housing.
These "verticai" subdivisions have been approved by the City of Saint Paul in the past although this
practice is not consistent with the strict interpretation of the subdivision regulations, which were
developed to regulate subdivisions of land. Recent amendments to state statutes regulating
subdivisions, which will be effective in August, will preclude approving these types of subdivisions as
plats under the provisions of Chapter 69 in the future. The applicant is requesting variances of
those portions of the subdivision regulations that relate most specifically to subdivisions of land and
cannot be met by a vertical subdivision.
G. DISTRICT COUNCIL RECOMMENDATION: District 17 had not commented at the time this staff
report was prepared.
H. REQUIRED FINDINGS: § 69.406 of the Zoning Code requires that aIl of the foilowing findings shali
be made prior to approval of a subdivision:
1. All the applicable provisions of the Legislative Code are complied with. City staff have
reviewed the proposed piat and have determined that all applicable provisions of city wdes are
met except for the following provisions of the subdivision regulations:
a. §69.401(c)(1) requires that the preliminary plat show the boundary lines of each parcel. The
parcels above or below ground level have "boundaries" that cannot be depicted on fhe plat.
•
•
b. §69.403(b)(2) requires that the final plat include ...surveyor's certification as required in •
Section 505.03, Minnesota Statutes.... The certification is to include, among other things,
that the property has been surveyed, that the distances are correctiy shown, and that "ail
Zoning File # 07-080-838
Subdivision Staff Report
Page 2 of 3
U (���
• monuments have been correctly piaced in the ground as shown." Because fhis plat includes
areas not located on the ground, this certification cannot be made.
c. §69.600(� Monuments states: Durable iron monuments shall be set at alI angle and curve
points on the outside boundary lines of the plat, at all block and lof corners, and at a!I
intermediate points on fhe block and lot lines indicating changes of direction in the lines,
prior to the final recording of fhe plat. Because portions of this plat are not on the ground,
monuments cannot be set.
The applicant has requested variance of these requirements. Upon City Councii approval of
these variances, this finding will be satisfied.
2. The proposed subdivision will nof be detrimental to the present and potentia! surrounding land
uses. The proposed subdivision is consistent with the surrounding land uses, and will not be
detrimental to present and future use of surrounding land.
3. The area surrounding the subdivision can be planned and developed in coordination and
compatibility with the proposed subdivision. The area surrounding the proposed subdivision is
already developed and compatible with the proposed plat.
4. The subdivision is in conformance with the comprehensive plan. The subdivision is in
conformance with the Land Use and Housina chapters of the comprehensive plan, which call
for housing uses downtown (Land Use Plan) and provision of additional affordable housing in
partnership with other partners (Housing Plan). It is also in conformance with redevelopment
plans for the area.
5. The subdivrsion preserves and incorporates the site's important existing natural features
whenever possible. The site is fully-developed, with no remaining natural features.
• 6. All land infended for building sites can be used safely wifhout endangering residents by peril
from floods, erosion, continuously high wafer table, severe soil conditions or other menace.
The site is fully developed, with no flooding, erosion, high water table or soii condition
problems.
7. The subdivision can be economically served with pub/ic facilities and services. The subdivision
can be economically served with public facilities and services from surrounding streets.
I. PARKLAND DEDICATION: §69.511 requires dedication of two (2) percent of the total land area
of the plat for public use for parks, playgrounds, trails, open space, or conservation purposes. At
the discretion of the City Council, a cash dedication in lieu of land may be paid prior to the city
clerk's signing of the final plat.
For this subdivision, since no land is available, the Division of Parks and Recreation recommends
cash dedication in the amount of $3,446.
J. REQUIRED FINDINGS FOR VARIANCES: §69.703 authorizes the City Council to grant
variances to the subdivision regulations "when compliance would create an unusual hardship to
the development of the land," based on the following findings:
1. The infent of this chapter is met. This finding is satisfied. The variances are consistent with
the intent of the subdivision regulations to provide for the orderly, economic and safe
development of land and to promote affordable housing to persons and families of all income
leveis.
2. The granfing of the variance will not be detrimental to the public safety, health or welfare or
injurious to other property or improvements in the neighborhood in which the property is
located. This finding is satisfied. The applicants have submitted a Reciprocal Maintenance,
• use, and Easement Agreement to be signed by the owners of the building and recorded with
the plat. This will protect the public safety, health and welfare.
3. The conditions upon which the request for a variance is based are unique to the property for
� which the variance is sought and are generally not applicable to other property. This finding is
Zoning File # 07-080-838
Subdivision Staff Report
Page 3 of 3
satisfied. Title issues with the building prevent other means of subdividing the building at this •
time; and the financing for the building's rehabilitation requires a subdivision of the building.
4. The literal inte�pretation of the provisions of this chapter would deprive the applicant of rights
commonly enjoyed by other properties in the same zoning district. This finding is satisfied.
Mixed use buildings are permitted under the property's zoning. Vertical subdivision of the
properly is necessary for financing the rehabilitation of the property. However, vertical
subdivisions cannot meet some of the literal requirements of the subdivision regulations.
5. The special conditions and circumstances do not result from the actrons of the applicanf This
finding is satisfied. The CommonBond Communities, fhe applicant, did not create the
conditions that cause a need for variances of the subdivision regulations.
6. Because of the particular natural surroundings, shape or topographica! conditions of the
specific p�operty involved unusual hardship to the owner would result, as disSnguished from a
mere inconvenience, if the strict leffer of fhese regulations were carried out. Unusuai hardship
would result for the owners of the building if the strict letter of these regulations were carried
out because the rehabilitation of this building and the provision of affordable housing could not
go fonvard due to increased time delays and project costs.
K. STAFF RECOMMENDATION: Based on the required findings above, staff recommends approval
of the preliminary and final plat for Commerce Buiiding and approval of the variances of the
subdivision regulations subject to the foliowing conditions:
1. The applicant shall pay the required parkland dedication fee of $3,446 prior to the City Clerk
signing the final plat.
2. A signed up-to-date copy of the Reciprocal Maintenance, Use, and Easement Agreement shall •
be provided to the Department of Safety and inspections and the Saint Paul Fire Department
for their approvai.
3. The applicant shall file a copy of the Reciprocal Maintenance, Use, and Easement Agreement
and the Council Resolution approving the plat with the Ramsey County Recorder's Office.
Attachments:
Application
Preliminary Plat
Final Plat (reduction)
Variance Application
Reciprocal Maintenance, Use, and Easement Agreemenf
Site Location Maps
•
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SAINi
PAUL
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APPLICANT
PROPERTY
Name: CommonBond Communities, a Minnesota non-qrofit corporation
Address: 328 Kelloqq Boulevard West
City St. Paul St.MN Zip 55102-1900 Daytime Phone (612) 291-1750
Name of Owner (if different) Commerce Partners. LLC
Contact Person (if different) Carol Lansinq, Faeqre & Benson, 90 South 7th Street
Suite 2200. Minneapolis. MN 55402 Phone (612) 766-7005
Address / Location
Legal Description The northerlv 65.00 feet of Lots 6 7 and 8 St Paul Proper accordinq to
the recorded ulatthereof CurrentZoning 84
(attach additional sheet if necessary)
�E OF SUBDIVISION:
❑ Lot Split
❑ Preliminary Plat
❑ Lot Split with Variance
❑ Final Plat
❑ Reg. land Survey
H Combined Plat
fb.u5 1915713.01
SUBDIVISION REVIEW APPLICATION
Department of Planni»g and Economic Development
Zoning Section
1400 City Hall Annex
25 West Fourth Sfreet
Saint Paul, MN 55102-1634
(657) 266-6589
Date 5/16/07
CityAgent �Q�l����
0
ADDITIONAL PLAT INFORMATION
A. PROPOSED USE: Building is being subdivided to allow portions to be sold to CommonBond •
Communities, which will redevelop those portions as affordable rental housing.
1. Lot 1(basement level) will be used for storage purposes;
2. Lot 2 wifl be used as a shared corridor;
3. Lot 3 will be commercial space (Retail — Subway Sandwich Shop);
4. Lot 4 will be commercial space (CommonBond Property Management Offices);
5. Lot 5 will be commercial space (office space); and
6. Lot 6 will be multi-family housing (apartments; 55 dwelling units).
B. PROPOSED PROTECTIVE COVENANTS OR HOMEOWNERS ASSOCIATION RULES:
Please see Reciprocal Maintenance, Use and Easement Agreement attached hereto.
C. PROVISION FOR SEWEi2AGE, DISPOSAL, DRAINAGE AND FLOOD CONTROL: •
Sewerage, disposal, drainage and flood control of existing building will be continued.
D. PROPOSED ZONING PLAN FOR THE AREA:
N/A.
ENCLOSURES �
A. PRELIMINARY PLAT (10 COPIES)
B. FINAL PLAT (10 COPIES)
C. FEE (CHECK FOR $700.00)
D. COMMITMENT FOR TITLE 113SURANCE
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APPLICATION FOR ZONING VARIANCE
OFFICE OF LICENSE, INSPECTIONS, AND
ENVIRONMENTAL PROTECTION
8 Fourth Street East, Suite 200
Saint Paul, MN SSIOI
65I-266-9008
APP�.ICANT
PROPERTY
Carol Lansing on behalf of
NameCommonBond Communities Company Faegre & Benson
Address 2z00 Wells Fargo Center, 90 S. 7th Street
City Minneapolis Stater7P7 Zip 55402 DaytimePhone 766-7005
Property interest of applicant (owner, contract purchaser, etc.) Purchaser
Name of owner (if different) Commerce Partners, LLC
Address/Location rnm R'1A' R x- r � t, ¢ r
LegaldesCfiptlon St. Paul Proper_according to
(attachaddifiona/sheetifnecessary)the recorded plat the eof' ---------- " —
Lot size 9 737 Ca Fr Present Zoning Bs_ Present Use _off_ j CP rPra' 1
Pfoposed U5E p f{ p r�{�F3�nd mniti-familv h cing
•
Variance[s] requested:
Variances to the following subdivision
469.401(c)(1)� Boundary line of parcels
469.403(b)(2), Surveyors certification
469.600(f), Monuments.
regulations:
as required by Minn.Stat.Sec. 505.03 and
Supporting Information: Supply the necessary information that is applicable to your variance request, provide
details regarding the pro�ect, explain why a variance is needed. Duplex/triplex conversions may require a pro forma
to be submitted. Attach additional sheets if necessary.
See attached.
�EC�IVED
IUl ' 1 2�01
� I Attachments as required:
ApplicanYs signature
Site Plan Attachments Pro Forma
��/ l/
0
APPLICATION OF COMMONBOND COMMUNITIES FOR •
VARIANCES FROM SUBDIVISION REGULATIONS
SUPPORTING INFORMATION
CommonBond Communities ("CommonBond") has filed an application for subdivision approval
for the Commerce Building located at 8 E. 4�' Street (the "Property"). The proposed plat would
subdivide the lot and the existing building in three dimensions. The purpose of the proposed
subdivision is to allow CommonBond to purchase portions of the building for conversion to
affordable rental housing, while the current owner, Commerce Pamiers, LLC, retains ownership
of the remainder of the building for commercial use. T'his division of the Property is necessary
in order to finance the affordable housing project.
While three-dimensional subdivision of properry can be accomplished with a registered land
survey ("RLS") for land that is registered through the Tonens system, that method of land
division is not available for the Property because it is abstract properry. Registra6on of property
in a complex urban environment can be difficult in any case, but an effort to register the
Commerce Building Property would be particulazly expensive and would be a very lengthy
process because of title issues relating to the encroachment of the Commerce Building onto
adjacent property. The azea of the encroachment is in a"gap" of abstract land for which the title
records aze ancient and uncleaz. This circumstance has existed since the building was
constructed and does not affect the ability to subdivide the Property though platting, but would •
make the registration process onerous. The time and cost of registering the Property in order to
then divide it with an RLS prior to the sale to CommonBond would make the proposed sale and
redevelopment of the Property infeasible.
It is also not possible to divide the Properiy through use of a Common Interest Community
("CIC" or "condominium") plat prior to the sale. Following the proposed sale, conshuction and
mechanical work will be performed to redevelop portions of the building as multi-fanuly
housing. The property must be subdivided before construction or rehabilitation begins because
the financing and taa� requirements mandate different owners of the different pazcels. However,
a condominium can only be created by recording of a declazation and Minnesota Statute §
S15B.2-101(c) provides that "a declazation...shall not be recorded unless the structural
components of the structure containing the units and the mechanical systems serving more than
one unit, but not the units, are substantially completed, as evidenced by a recorded certificate
executed by a registered engineer or azchitect." Consequently, the condominium statute does not
provide for a method to subdivide property before conshucUon is completed. This simply does
not work for a project financed with sepazate fmancing sources, as is the case here.
Consequently, a subdivision using elevations has been used for subdividing abstract property.
This is not a new concept, as "air rights" have been transferred in many developments azound the
state. It has been used to subdivide the property in St. Paul before, including on the library
project at University and Dale and the Lawson Commons development. CommonBond and
Commerce Partners re?ied on the City's past practice in this regard in planning for the
subdivision and sate of the Property. However, since CommonBond's subdivision appIication •
D��'lctr
• was filed, in light of recent concerns raised by City staff and pending amendments to the State's
platting statute, City staff has begun reevaluating whether use of the subdivision ordinance and
statute is appropriate for a"three-dimensional" division of property. Staff subsequently
identified three variances to the regulations of the subdivision ordinance that are necessary for
the proposed Commerce Building plat. Variances aze required from the following requirements
1. §69.401(c)(1), boundary line of the pazcel;
2. §69.403(b)(2), surveyor's certification as required in Minn. Stat. § 505.03; and
3. §69.600(�, monuments.
A variance to the requirement in §69.403(b)(2) that the plat show all boundary lines of all the
parcels is required because the upper and lower elevations or "boundaries" of the proposed Lot 1
(comprised of the basement level of the building and all land below to the center of the earth)
and Lot 6(the upper six floors of the building and all air rights above) cannot be depicted on the
plat and distances to those outer "boundaries" cannot be stated. While the use of pazcel
descriptions that include all area above or below a certain elevation is standard with an RLS and
does not pose a problem with respect to legal ownership or title, it is not typically encountered in
a plat processed under the subdivision regulations.
A vaziance to the requirement in §69.600(fl that durable iron monuments be set at all block and
lot corners is requued because it is not possible to set iron monuments at the corners in the
Commerce Building plat because those corners fall within the building walls, including at the
outer comers of the Commerce Building at the ground level. This circumstance has arisen for
. other properties, for example, when existing structures encroach on the property line (as is the
case for the Commerce Building) or where lot corners are obstructed by natural features.
Surveyors have developed a system of using "reference monuments" or "witness corners" that
are displaced from the actual block and lot corners when there aze physical impediments to
placement of iron monuments precisely at the corners. Far the Commerce Building plat, the
proposed final plat depicts where reference monuments will be placed to allow far location of the
horizontal lot lines within the plat. In order to locate the vertical elevations of the lot boundazies,
the surveyor has placed an elevation benchmazk (also depicted on the plat), the elevation of
which was determined based on National Geodetic Vertical Datum of 1929 (NGVD 1929).
Finally, a variance to the surveyor's certification requirements in §69.403(b)(2) and Minn. Stat. §
505.03 is required because the certificate will not attest to the standard representa6ons regarding
boundary lines and iron monuments due to the above requested variances.
The requested variances meet the required findings for granting of a variance from the
regulations of the subdivision ordinance. The city council may grant a variance to the
subdivision regulations when compliance would create an unusual hardship to the development
of the land, based on findings that:
(1) The intent of this chapter is met.
The intent and purposes of Subdivision Chapter 69 aze set forth in §69.102. The
• proposed variances are consistent with these purposes, most specifically those intended to
o-
"provide for the orderly, economic and safe development of land," "promote afFordable
housing," and "provide for variances from the strict interpretation of this chapter." T'he •
proposed variances are necessary to allow for the timely subdivision of the Commerce
Building property in a manner that will support the financing of a mixed-use, affordable
housing project and promote the continued economic viabitity of a St. Paul landmazk.
(2) The granting of the variance will not be detrimental to the public safety, health or
welfare or injurious to other properly or improvements in the neighborhood in which the
property is located.
The requested variances and approval of the proposed subdivision plat will not be
detrimental to the pubiic or other property in the neighborhood. Subdivision will ailow
for rehabilitation of the building which will improve its vaiue and shuctural integrity. All
work will be required by the City to comply with appIicable buiIding and fire codes.
Suitable easements and operating covenants will be entered into by the owners of the
Propezly in order to provide for the common use of certain parts of the building and to
ensure that the value, structural quality, safety, code compliance and intended use of the
building aze preserved. A copy of the draft Reciprocal Maintenance, Use and Easement
Agreement has been submitted to the City for its review.
(3) The conditions upon which the request for a variance is based are unique to the
property for which the variance is sought and are generally not applicable to other
property.
The particulaz title issues of the Commerce Building which make Torrens registration and •
division by RLS infeasible aze unique to the Property. The proposed redevelopment of
the Comxnerce Building as a mixed-use building with affordable housing is an innovative
approach to rehabilitation of a historic building, but the financing requirements which
make the project feasible require vertical division of the Property.
(4) The literal interpretation of the provisions of this chapter wouid deprive the applicant
of rights commonly enjoyed by other properties in the same zoning district.
The B4 zoning district aliows for the development of mixed-use buildings, but such
redevelopment of the Commerce Building is not feasible without City approval of a
three-dimensional subdivision and the associated variances to allow for that subdivision.
Denial of the variances and subdivision would also deprive CommonBond and
Commerce Partners, LLC of the opportunity afforded to other projects to subdivide
vertically when necessary for financing the sale of abstract land. As noted above,
CommonBond and Commerce Partners relied upon this pasY pracfice of the City and it
would be unfair at this late stage in the platting process to deny them a similaz
opportuniTy.
•
a�-�c�
. (5) The special condirions and circumstances do not result from the actions of the
applicant.
The infeasibility of registering the Property due to uncertainties in the title records and
the inapplicability of the CIC statute did not result from the actions of the applicant.
(6) Because of the particular natural surroundings, shape or topographical conditions of
the specific property involved, unusual hardship to the owner would result, as
distinguished from a mere inconvenience, if the strict letter of these regulations were
carried out.
Denial of the variances and subdivision of the Property would cause unusual hardship
because it would prevent the proposed sale and redevelopment of the Commerce Building
with affordable housing. If registration and division by RLS were required to divide the
Property, the time and cost of that process is likely to be prohibitive, making that
approach no real "option" at all.
• tb us2167518 C1
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(RESERVED FOR RECORDING DATA�
RECIPROCAL MAINTENANCE, USE, AND EASEMENT AGREEMENT
THIS RECIPROCAL EASEMENT AGREEMEN'I' (this "AgreemenY') is
made and entered into as of the _ day of , 2007, by and between COMMERCE
PARTNERS LLC, a Minnesota limited liability company ("Office/Retail Owner") and
COMMERCE APARTMENTS LIMITED PART'NERSffiP I, a Minnesota limited
partnership (`Apartrnent Owner").
RECITALS
A. Office/Retail Owner owns a portion of the basement, first floor, sixth floor •
and the second through sixth floors of the Commerce Building located in the City of St. Paul,
Ramsey County, Minnesota, legally described on E�ibit A attached hereto (the "Office/Retail
Parcel").
B. Apartment Owner owns a portion of the basement, first floor, sixth floor
and the seventh through twelfth floors of the Commerce Building as legally described on Exhibit
B attached hereto (the "Apartment Pazcel").
C. Apartrnent Owner intends to rehabilitate a portion of the Building, as
defined herein, which will consist of fifty-five (55) rental units in the Apamnent Pazcel and
related 'unprovements.
D. The Office/Retail Pazcel consists of approxunately _ square feet of
space used for office and retail purposes and related improvements.
E. Office/Retail Owner and Apartment Owner desire to subject the
Office/Retail Parcel and the Apartment Pazcel and all future owners of all or any portion thereof
to vazious easements, restrictions and covenants, as fiirther set forth herein, for the purpose of
preserving the value and the struchual quality of the Building, as defined herein, and to provide
for the comxnon use of certain parts of the Building.
NOW, THEREFORE, in consideration of the easements, covenants, conditions, •
restrictions and agreements contained in this Agreement, and other good and valuable
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consideration, the receipt and sufficiency of which aze hereby acknowledged, Office/Retail
Owner and Apartment Owner agree with each other as follows:
Definifions. As used in this Aa the following terms shall have
the following meanings:
1.1 Access Facilities. "Access Facilities" means Stairv✓ay 1, Stairway 2,
Exterior Stairway, Elevator, hallways, and all other portions of the Building that are designed and
intended to provide common pedestrian access to and from public streets and alleys adjacent to
the Building, access to and from the Utility Facilities, as the same may exist from time to time,
and all alterations thereto and replacements thereof.
1.2 Aereement. "AgreemenY' means this Agreement, including the following
exhibits attached hereto and made a part hereof:
Exhibit A
Exhibit B
E�ibit C
Exhibit D
E�ibit E
Exhibit F
E�ibit G
E�ibit H
E�ibit I
E�ibit J
Exhibit K
Exhibit L
Exhibit M
Exhibit N
E�ibit O
Exhibit P
Exhibit
Exhibit R
Exhibit 5
E�ibit T
Legai Description of Office/Retail Parcel
Legal Description of Apartment Parcel
Depiction of Elevators
Depiction of Stairway 1
Depiction of Stairway 2
Depiction of Exterior Stairway
Depiction of Basement
Depiction of Mechanical Room
Depiction of Roof
Depiction of Entrance
Depiction of Sixth Floor Comdor
Depiction of Electrical Room — Basement
Depiction of Fire Pump Room — Basement
Depiction of Trash Chute/Trash Room and Service
Corridor
Depiction of Freight Elevator
Depiction of Basement Stairway
Depiction of Emergency Power Generator
Depiction of Exit Corridor
List of Shared Costs
General Floor Plan of Building
13 Basement Stairwav. "Basement Stairway" means the stairway from the
first floor to the basement which is owned by the Office/Retail Owner with an easement in favor
of the Apartment Owner.
1.4 Buildine. "Building" means the Apartment Building and the Office/Retail
Building. A general floor plan of the Building is attached hereto as Exhibit
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C�. "City" means the City of St. Paul, Minnesota.
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1.6 Common Utilitv Facilities. "Common Utility Facilities" means those •
U61ity Facilities that provide shazed service to the Apartment Building and the Office/Retail
Building. Common Utility Facilities do not include any components of such facilities that are
not shared, i.e., any such components that serve exclusively either the Office/Retail Building or
the Apartment Building.
1.7 Apartment Building. "Apartment Building" means the portion of the
Building located on or within the Apamnent Pazcel, which shall consist of 55 rental units and
related improvements.
1.8 AQartment Occunants. "Apartment Occupants" means the Occupants of
a residential unit in the Apartment Building.
1.9 Anartment Pazcel. "Apartment Pazcel" means the real properiy legally
described on E�ibit B .
1.10 Constant Dollars. "Constant Dollars" shall mean the value of the U.S.
dollaz to which such phrase refers, as adjusted from time to time. An adjustment shall occur on
the 1 day of June, 2011 and thereafter at five (5) yeaz intervals. Constant Dollazs shall be
determined by multiplying the dollaz amount to be adjusted by a fraction, the numerator of which
is the Current Index Number and the denominator of which is the Base Index Number. The
`Base Index Number" shall be the Index for Apri12006; the "Current Index Number" shall be the
Index for April of the adjustment yeaz; the "Index" shall be the Consumer Price Index for All •
Urban Consumers, published by the Bureau of Labor Statistics of the United States Department
of Labor for U.S. Ciiy Average, All Items (1982-84=100), or any successor index thereto as
hereinafter provided. By way of example, if in June 2011, the amount of $500 is to be converted
to Constant Dollazs, then $500 shall be multiplied by the following fraction:
Current Index Number for Apri12011 = Base Index Number for
Apri12006 = Constant Dollazs
If publication of Ute Index is discontinued, or if the basis of calculating the Index is
materially changed, then the Owners shall substitute for the Index compazable statistics as
computed by an agency of the United States Govemment or, if none, by a substantial and
responsible periodical or publication of recognized authority most closely approxunating the
result which would have been achieved by the Index.
1.11 Electrical Room. "Electrical Room" means the room that is in the
basement and is part of the Apartment Parcel as depicted on E�ibit L, which contains
electrical meters and other utility connections for the Office/Retail Building and the
Apartment Building.
1.12 Elevators. "Elevators" means the two elevators for the mutual use by
Apartment Owner and Office/Retail Owner passing through the Office/Retaii Pazcel as depicted
on Exhibit C
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• 1.13 Emereencv Power Generator. "Emergency Power Generator" means the
emergency electrical power generator located in the Apartment Pazcel on the first floor, and
controls and shazed wiring that provide shared emergency electrical power to the Office/Retail
Building and the Apartment Building.
1.14 Entrance. "Entrance" means the entrance to the Building as depicted on
E�ibit J and described in Section 3.7.
115 Exit Corridor. "Exit Corridor" means the corridor owned by the
Office/Retail Owner used by the Apartment Owner for ingress and egress.
116 Exterior Stairwav. "Exterior Stairway" means the stairway on the exterior
of the building from the sixth to second floors and continuing inside on the second floor.
1.17 Fair Mazket Va1ue. "Fair Market Value" means the price at which the
subject Parcel would be sold for cash (that is, not on credit terms extended by the seller, but with
the buyer free to obtain any other financing a�ailable) at a private sale by a willing seller not
compelled to sell, to a willing buyer not compelled to buy, free and clear of all liens and
encumbrances securing the payment of money. For purposes of determining Fair Market Va1ue,
except as expressly provided to the contrary herein, (i) portions of the subject Parcel previously
or at the time subject to a condemnation action shall be excluded only if the condemnation
awards have been paid, (ii) if any damage has occurred, it shall be assumed that restoration is
complete.
� 1.18 Final Plans. "Final Plans" means the as-built plans and specifications for
rehabilitation of the Building.
1.19 Fire Pumo. "Fire Pump" means the fire pump serving the Building. The
basement specific location of the Fire Pump is designated as "Fire Pump Room" on Exhibit M.
1.20 Fire Pump Room. "Fire Pump Room" means the fire pump room in the
basement depicted on Exhibit M which contains the fire pump and related equSpment.
1.21 Frei�hY Elzvator. "Freight Elevator" means tl�e freight elevator that will
be used to transport construction materials during rehabilitation of the Building and then
abandoned which is depicted on Exhibit O.
1.22 Governmental Authorities. "Governmental Authorities" means all federal,
state, county, municipal and local governments, and all departments, commissions, boazds,
bureaus and officers thereof, having jurisdiction over the Building.
1.23 Hazardous Substances. "Hazardous Substances" means any substance,
chemical, waste, contaminant, pollutant or other material that is or becomes regulated by any
federal, state or local governmental authority because of its toxicity, infectiousness, radioactivity,
explosiveness, ignitability, corrosiveness or reactivity, including, without limitation, those
• substances regulated by the Comprehensive Environmental Response, Compensation and
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Liability Act, 42 U.S.C. § 9601 et. seq.; the Resource Conservation and Recovery Act, 42 U.S.C. •
§ 6901 et. seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et. seq.; the Clean Water
Act, 33 U.S.C. § 1321 et. seq.; and the Clean Air Act, 42 U.S.C. § 7401 et. seq.
1.24 Insurance Reauirements. "Insurance Requirements" means all terms of
any insurance policy covering or applicable to a Pazcel or any part thereof, all requirements of the
issuer of any such policy, and all orders, rules, regulations and other requirements of the National
Board of Fire Undenvriters (or any other body exercising sunilar functions) applicable to or
affecting a Parcel or any part thereof or any use or condition of the Building or any part thereof.
1.25 Legal Requirements. "Legal Requirements" means all laws, statutes,
codes, acts, ordinances, orders, judgments, decrees, injunctions, direcfions and requirements of
all Governmental Authorities, foreseen and unforeseen, ordinary or e�raordinary, which now or
at any time hereafter may be applicable to or required in connecrion with the Building or any part
thereof, or any of the adjoining sidewalks, or any use or condition of the Building or any part
thereof, or any construction required or permitted by this Agreement.
1.26 Mechanical Room. "Mechanical Room" means the mechanical room that
is part of the Office/Retail Parcel as depicted on E�ibit H, which contains air handling
equipment meters and other utility connections for the Office/Retail Building and the Aparhnent
Building.
1.27 Mechanical Room Access Corridor. "Mechanical Room Access Corridor" •
means the hallway on the sixth floor for access to the Mechanical Room.
1.28 Occuoant. "Occupant" means any person from time to time entitled to the
use and occupancy of any portion of the Building under an ownership right or any lease,
sublease, license, concession, or other similaz agreement.
1.29 Office/Retail Buildine. "Office/Retail Building" means the portion of the
Building to be located on or within the Office/Retail Parcel, which shall consist of portions of the
130 Office/Retail Owner. "Office/Retail Owner" means Commerce Partners
LLC, a Minnesota lunited liability company.
1.31 Office/Retail Pazcel. "Office/Retail Parcel" means the real property
legally described on Exhibit A.
1.32 Owner. "Owner" means the Office/Retail Owner or the Apartment Owner
as further described in Section 21.17.
133 Pazcel. "PazceP' means the Office/Retail Pazcel or the Apartment Pazcel,
as the context indicates. Used in the plural form, the term shall mean both the Office/Retail
Pazcel and the Apartment Pazcel.
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• 134 Pernuttee. "Permittee" means all Occupants and the officers, d'uectors,
employees, agents, contractors, customers, vendors, suppliers, visitors and invitees of Occupants
to the ea�tent their activities relate to the intended development, use and occupancy of the
Building as limited by this Agreement.
13� Purchase Option. "Purchase Option" means the option to purchase
granted in Section 10.2.
1.36 Rest Room. "Rest Room" means the rest room on the first floor for use by
the
1.37 Roo£ "Roof' means the roof azea located above the top floor of the
Apartment Building, including the mechanical equipment located thereon as depicted on Exhibit
I.
138 Rules "Rules" means the rules from time to time established for the
Building or any part thereof by Office/Retail Owner and Apartment Owner pursuant to Section
16.
139 Security Access System. "Security Access System" means the system
used to control access throughout the Building, including wiring, central control units and
peripheral control units. [Discuss]
• 1.40 Securitv Monitorina S s��. "Security Monitoring System" means the
system used to monitor access to the Apartment Building.
1.41 Security S s�tem. "Security System" means the Security Access System
and the Security Monitoring System, coliectively.
1.42 Service Corridor. "Service Corridor" means the hallways used by the
Apartment Owner as temporary emergency ingress and egress until rehabilitation of the Building
is completed and to access the Trash Room for disposal of trash as depicted on Exhibits
1.43 Shared Costs. "Shared Costs" means the costs of maintenance for any
items listed in Exhibit S .
1.44 Sixth Floor Corridor "Sixth Floor Corridor" means the corridor from
the exteriar stairway to the Stairway 2 as depicted on Exhibit K.
1.45 Stairwav 1. "Stairway 1" means the stairway used for ingress and egress
through the Building as depicted on Exhibit O.
1.46 Stairwav 2. "Stairway 2" means the stairway used by the Apartment
Parcel from the Sixth Floor Corridor through the twelfth floor and by the Office/Retail Pazcel for
access to the Roof.
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1.47 Support Facilities. "Support Faciliries" means (a) those portions of the .
Building that provide physical support for any portion of the Building, including but not limited
to the foofings, foundations, columns and other structural support components of the Building,
and (b) flie common buiiding enclosure (pariy) walis between the Office/Retail Building and the
Apartment Building along their common boundaries.
1.48 Telecommunications Equipment. "Telecommunications EquipmenY' shall
mean the telecommunications equipment currently located on the Roof of the Building and any
replacement equipment permitted or the roof by Apartment Owner.
1.49 Term. "Term" shall mean the term of this Agreement, which shall
commence on the date first above written and shall terminate on the date one hundred (100) years
thereafter.
1.50 Trash Chute. "Trash Chute" means the trash chute for the exclusive use of
the Apartrnent Occupants extending through the Office/Retail Building with a ventilation
opening on the roof as depicted on Exhibit N.
1.51 Trash Room. "Trash Room" means the room as depicted on E�ibit N
for the exclusive of the Building to be used for storage of trash.
1.52 Unavoidable Delavs. "Unavoidable Delays" means delays in the
performance of obligarions under this Agreement due to causes beyond the control of the Owner
performing the obligation, including but not limited to acts of God, acts of the public enemy, acts •
of terrorism, the d'uect result of strikes, walkouts and lockouts, fire, floods, epidemics,
quarantines, restrictions, unavailability of power, unavailability of materials, acts of
governmental entities including legislative or administrative actions taken by any entity,
unusually severe weather not reasonably foreseeable or delays of contractors and subcontractors
due to such causes, or other casualty to the Building or a portion thereof, litigarion commenced
by third Owners which by injunction or other similaz judicial action directly results in delays,
provided that no such occurrence shall constitute an "Unavoidable Delay" unless such Owner
gives written notice of such occurrence to the other Owner within thirly (30) days of the date of
its first occurrence, and provided fiirther that for each day of occurrence of such cause beyond the
control of the Owner performing an obligation, one day of Unavoidable Delay shall be granted
under this Agreement.
1.53 Utility Facilities. "UUlity Facilities" means utility delivery systems and
facilities providing utility, heating, venfilating, air conditioning, communication, video and data
services, sewer service for sanitary sewers, storm sewers and drains; roof drains; water and gas
mains and feeder lines; electrical power trnnk lines and feeder lines, Water Softener, telephone
trunk lines and feeder lines, video and data transmission lines; lines and facilities providing
steam and chilled water; fire sprinkler mains; monitoring and control devices; and lines for
energy and utility consumption, fire, other emergency and monitoring, including wiring for the
Security System and any other lines, ducts, shafts, machinery and equipment (including those
affording connections to sources outside the Building) for such purposes; and including all •
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meters, common pumps, switches and generators and common chutes, shafts, rooms or other
enclosures and other component parts of such systems, together with all replacements of such
facilities.
2. Covenants.
2.1 General Provisions. Office/Retail Owner and Apartment Owner hereby
declare that the Building is, and will be, held, transferred, sold, conveyed and occupied subject to
the restrictions and covenants of this Agreement, which restrictions and covenants (i) are for the
purpose of protecting the value, struchual integrity, desirability and amenities of the Building as
a cohesive unit and (ii) will operate as equitable covenants, restrictions and reservations that will
run with the Office/Retail Parcel and Apartment Pazcel, be binding on all Owners having any
right, title or interest in the same, their heirs, successars and assigns, and inure to the benefit of
each of such other Owners; and (iii) aze imposed upon the Building.
2.2 Rehabilitation of Buildine. O�ce/Retail Owner and Apartment Owner
each agree to complete the rehabilitation work in its Parcel with all reasonable diligence and in a
manner so as to minimize interference with the other's use of its Parcel.
23 Use of Apartment Pazcel. The Apartment Pazcel may only be used for
residential uses, including home office uses permitted by applicable Legal Requirements and
related uses.
. 2.4 Use of Office/Retail Pazcel. Because of the physical configuration of the
Building and the nature of the easements granted herein, the OfFice/Retail Parcel may only be
used for retail or office uses consistent with the residential uses of the Apartment Parcel and
City's zoning ordinance, but specifically excluding the following uses:
(a)
operation;
(b)
(c)
(d)
(e)
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�g)
any manufacturing, distilling, refining, smelting, agricultural or mining
any dumping, disposing, incineration or reduction of garbage;
any bowling alley or skating rink;
any mortuary or funeral home;
any establishment selling or exhibiting "obscene" material;
any establishment selling or exhibiting drug-related paraphernalia;
any establishment which exhibits, either live ar by other means to any
degree, nude or partially clothed dancers or wait staff;
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(h) any gambling facility or operation, including, but not limited to: off-track •
or sports betting parlor; table games such as blackjack or poker; slot machines, video
poker/blackjack/keno machines or similar devices; or bingo hall;
(i) any auto repair facility;
(j) any gun or aiuinunition shop; or
(k) any tattoo parlor.
2.5 Pazkin¢. Intentionally Omitted.
2.6 Securitv Svstem.
(a) Aparhnent Owner shall maintain the Security System provided that the
Office/Retail Owner shail maintain any components of the Security System designed
exclusively for access to the Office/Retail Pazcel.
(b) With respect to all access cazds serving shazed access points, Apartment
Owner shall be responsible for programm;ng all new and replacement cards and
deactivating and modifying cazds pursuant to a protocol established by the Apartment
Owner.
(c) The Apartment Owner shall operate the Entrance so that the Entrance is •
open to access the Office/Retail Pazcel during normal business hours and which shall
be at a minnnum 6:00 a.m. to 6:00 p.m., Monday through Friday. The Apartment
Owner sha11 also provide access to the Office/Retail Building provi@ed that the access
shall be restricted to tenants with access cards and Office/Retail Owner shall pay all
costs related to the installation and maintenance of any separate components of the
Security System required for such access. The Apartrnent Owner and Office/Retail
Owner shall establish Rules regarding access to the Building at other tunes.
2.7 Roof Appeazance. All mechanical systems and facilities located on any
roof shall, if readily visible, be appropriately screened to maintain the aesthetics of the Buiiding.
2.8 Eacterior Appeazance. After completion of conshuction, no Owner shall
modify the exterior of the Buiiding or install or maintain anything attached to the exterior of the
Building or reasonably apparent from the exterior of the Building, including but not limited to
signs, decorative items or antennas, without the written consent of the other Owner, which
consent shall not be unreasonably withheid, conditioned or delayed. All exterior changes must
be consistent with the historic chazacter of the Building. This limitation extends to the
Occupants and Perxnittees of the Building. Notwithstanding the foregoing, the Aparhnent Owner
may make any changes to the exterior of the Building required to obtain necessary historic
approvals.
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. 2.9 Wron�ful Interruption of Use. Subject to Section 8.3, if any Owner,
Occupant or Permittee intentionally or negligently causes interruption of use of any space in the
Building, such Owner Occupant shall be responsible for resulting loss or damage.
2.10 Emergenc�esponse. The A�artment Owner shall be Drimarilv
resnonsible for communicatinE with Governmental Authorities reeazdine emereencv resnonse
issues. Each Owner agrees to deliver to the other, and update not less than once per year, the
following information regazding maintenance and repairs: (a) a list of names and 24-hour
telephone numbers for contractors (including, at a minimum, plumbing, electrical and
mechanical contractors) that can be called by the Owner receiving such list to conduct emergency
repairs at any time; (b) a list of all persons representing such Owner who should be contacted (in
addition to the contractor) in the event of an emergency; and (c) an emergency response plan
prepared by such Owner.
Easements.
3.1 General Provision. This Article 3 sets forth the easements granted and
reserved with respect to each Parcel. Unless otherwise specifically stated, each easement granted
to Office/Retail Owner is for the benefit of Of£ice/Retail Owner and Office/Retail Owner's
Permittees, successors and assigns, as an appurtenance to the Office/Retail Parcel and is binding
on, enforceable against and burdens the Apartment Pazcel. Unless otherwise specifically stated,
each easement granted to the Apartment Owner is for the benefit of Apartment Owner and
. Apartment Owner's Occupants, Permittees, successors and assigns, as an appurtenance to the
Apartment Parcel and is binding on, enforceable against and burdens the Office/Retail ParceL If
no single Parcel is identified as the beneficiary of an easement, then the easement is for the
benefit of, and appurtenant to, all Parcels. Unless otherwise specifically stated herein, all
easements granted herein are for the Term, are nonexclusive and may be used without any charge
or fee. All easements are subject to the terms and conditions of this Agreement.
3.2 Temporary Construction Easements. Subject to the terms and conditions
of this Agreement (a) Office/Retail Owner hereby grants and conveys to Apartment Owner a
temporary easement to use in a commercially reasonable manner such portion of the
Office/Retail Parcel and the Office/Retail Building necessary for the completion of rehabilitation
of the Apartment Building. As part of this easement, Apartment Owner may use the Freight
Elevator as reasonably necessary for transportation of construction materials. Office/Retail
Owner also grants Apartment Owner the right to locate certain utility connections on the sixth
floor. OfficelRetail Owner and Apartment Owner acknowledge that the rehabilitation of the
Apartment Building will continue until approximately and, in light of the
intenelation between the Office/Retail Building and the Apartment Building, expect reasonable
inconveniences associated with the ongoing construction.
These mutual temporary construcfion easements shall be refened to herein as the
"Construction Easements". The Construction Easements shall expire on December 31, 2012, or
such eazlier date that Office/Retail Owner and Apartment Owner agree, in writing, that final
• completion of the Building has occurred. Each Owner shall cooperate with the grantor of the
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relevant easement to facilitate access to the burdened Parcel, including, to the extent necessary, .
temporarily closing portions of the Building as requested by the grantee.
3.3 Easements for Maintenance. Subject to the terms and conditions of this
A�eement, Office/Retail Owner hereby grants and conveys to Apartment Owuer an easement as
reasonably necessary through the Office/Retaii Parcel to perform the maintenance obligations to
be performed by Apartment Owner hereunder.
3.4 Easement for Su pp orts.
(a) Subject to the terms and conditions of this Agreement, Office/Retail
Owner hereby grants and conveys to Apartment Owner an easement to maintain and use
the Support Facilities that aze contained within the O�ce/Retail Parcel for the support of
the Apartment Building. Apartment Owner hereby grants and conveys to Office/Retail
Owner an easement to maintain and use any Support Facilities that aze contained within
the Apartment Pazcel for the support of the Office/Retail Building. Each Owner grants to
ihe other an easement to reconstruct all or a portion of the Building on the grantor's
Pazcel from time to time that must be reconstructed in order to repair or rebuild that
portion of the Building on the grantee's Pazcel.
(b) Apartment Owner shall not, without the consent of O�ce/Retail Owner,
(i) alter the Apartment Building or impose weight on the Office/Retail Pazcel that would
require enlazging, modifying or strengthening the Support Facilifies or adding new •
Support Facilities on the Office/Retail Pazcel, or (ii) alter the Apartment Building to
reduce the load bearing capacity of the Support Facilities that provide support for the
Office/Retail Parcel.
(c) Office/Retail Owner shall not, without the consent of Apartment Owner,
(i) alter the Office/Retail Building or impose weight on the Apartment Pazcel that would
require enlazging, modifying or strengthening the Support Facilities or adding new
Support Facilities on the Aparhnent Pazcel, or (ii) alter the Office/Retail Building to
reduce the load-bearing capacity of the Support Facilities that provide support for the
Apartment Pazcel.
3.5 Easement for Buildin� Encroachments and Abuhnents. Subject to the
terms and conditions of this Agreement, each Owner, with respect to its Pazcel, hereby grants and
conveys to the other easements (i) for such building encroachments as may inadvertently occur
upon the adjoining Pazcel by reason of the conshuction or rehabilitation of the Building or from
sag or variance occurring after any such construction or reconstnxction, (ii) for such building
encroachments as may occur because of irregular surface and minor variation in dimensions; and
(iii) to have structures on any boundary common to the Pazcels abut and connect to the structure
on the grantor's Pazcel. The grant of the foregoing easements shall not excuse either Owner from
exercising diligence to construct or alter its Building on and within its Pazcel.
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. 3.6 Easement for Self-Help. Subject to the terms and conditions of this
Agreement, each Owner hereby grants and conveys an easement to the other to enter upon the
Pazcel of the grantor for the purposes of exercising its rights under Article 14.
3.7 Easement for Stairwavs
(a} Subject to the terms and conditions of this Agreement, OfficeiRetail
Owner hereby grants and conveys to Apartment Owner an easement through the
Office/Retail Parcel for ingress and egress over, under and upon the Exterior Stairway.
Office/Retail Owner shall not have the right to permanently obstruct or reduce in size the
exit, exit passage or exit discharge at grade level provided by the Skywalk Stairway so
that the ingress and egress is materially impeded or is less than that required by
applicable law.
(b) Subject to the terms and conditions of this Agreement, Office/Retail
Owner hereby grants and conveys to Apartxnent Owner an easement through the
Office/Retail Parcel for emergency egress over, under and upon Stairway 1. Office/Retail
Owner shall not have the right to permanently obstruct or reduce in size the exit, exit
passage or exit discharge at grade level provided by Stairway 1 or Stairway 2 so that the
egress is materially impeded or is less than that required by applicable law. The
easement area for Stairway 1 is depicted on Exhibit D attached hereto.
• (c) Subject to the terms and conditions of this Agreement, Apartment Owner
hereby grants and conveys to Office/Retail Owner an easement through the Apartment
Parcel for egress over, under and upon Stairway 2 to access the Roof as necessary to
maintain Office/Retail Owner's equipment on the Roo£ The easement area for Stairway
2 is depicted on Exhibit E attached hereto.
(d) Each Owner may maintain security restrictions or access to and through
the Stairways that are reasonable and consistent with the purpose of the Stairway
easements.
3.8 Easement for Apartment Entrance. Subject to the terms and conditions of
this Agreement, Office/Retail Owner hereby grants and conveys to Apartment Owner an
easement for ingress and egress over and upon the Office/Retail Parcel for maintenance and use
of the Entrance.
3.9 Easement for Electrical Room. Subject to the terms and conditions of this
Agreement, Apartment Owner hereby grants and conveys to Office/Retail Owner an easement for
ingress and egress to and for maintenance and operation purposes over and upon the Electrical
Room as depicted on Exhibit L attached hereto.
3.10 Easement for Mechanical Room. Subject to the terms and conditions of
this Agreement, Office/Retail Owner hereby grants and conveys to Apartment Owner an
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easement for ingress and egress to and for maintenance and operation purposes over and
upon the Mechanical Room as depicted on E�ibit H attached hereto.
3.11 Easement for Utility Facilities.
(a) Subject to the terms and conditions of tlus Agreement, Office/Retail
Owner hereby grants and conveys to Apariment Owner an easement for the installation,
operation, maintenance, repair, passage and use of the Utility Facilities on the
Office/Retail Parcel or in the Office/Retail Building that serve the Apartment Pazcel or the
Apartment Building, including but not lunited to electrical service, telecommunications,
natural gas and plumbing.
[(b) Subject to the terms and conditions of this Agreement, Apartment Owner
hereby grants and conveys to Office/Retail Owner an easement for the installation,
operation, passage and use of the Utility Facilities on the Apartment Pazcel or in the
Apartment Building that serve the Office/Retail Pazcel or the Office/Retail Building,
including but not limited to electrical service, telecommunications, heating, cooling and
plumbing.]
(c) The installation or modification of any Utility Facility shall be subject to
the prior approval of the grantor, which approval shall not be unreasonably withheld.
Among the reasonable bases for withholding such approval, without limitation, would be
that such proposed Utility Facility (i) endangers the servient Pazcel or increases insurance
thereon, (ii) uses a disproportionate or inequitable portion of the space available within
any conduit or chase, or (iii) interferes with the then or reasonably anticipated future use
and operation of the servient Parcet. At least thirty (30) days prior to exercising fhe righf
granted herein (except in connection with the installafion of Utility Facilities shown on
the Final Plans), the grantee shall first provide the grantor with a written statement
describing the need for such easement, shall identify the proposed location of the Utility
Facility, the nature of the service to be provided, and the anticipated commencement and
completion dates for the work, and shall fumish a certificate of insurance showing that its
contractor has obtained the minunum insurance coverage required by Section 8.1(a).
Except as otherwise agreed to by the grantor and the grantee, any Owner installing or
altering a Utility Facility pursuant to the provisions of this Section shall pay all costs and
expenses with respect thereto and sha11 cause all work in connecUon therewith (including
general clean-up and proper surface and/or subsurface restoration) to be completed as
quickly as possible and in a manner so as to minimize interference with the use of the
servient Pazcel any more than is absolutely necessary under the circumstances. If a Owner
discontinues use of a Utility Facility, the Owner shall at the other Owner's written request
remove from the grantor's Pazcel by appropriate procedures the wires, conduit and other
appazatus that aze no longer used upon reasonable request of the grantor.
(d) The easements granted in this Section shall be fixed as to location, but
may be relocated by the grantor, but only in such manner as (i) shall not disturb or
interfere with the utility service to the grantee any more than is absolutely necessary under
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• the circumstances; (ii) shall not reduce or unreasonably unpair the usefulness or function
of such Utility Facility; (iii) shall be performed without cost or expense to the grantee; (iv)
shall be completed using materials and design standards that equal or exceed those
originally used; and (v) shall have been approved by the provider of such service if any.
In the event of such a change, alteration or relocation, the grantor will repair any damage
to the grantee's Building caused thereby, including, without limitation, the Utility
Facilities affected.
(e) Office/Retail Owner and Apartment Owner agree to maintain the Utility
Facilities in their respective Buildings in a manner reasonably designed to maintain
continuous utility service to the Buildings subject to such temporary interruptions of
service as are necessary to complete the activities permitted by this Agreement.
( fl No grantor nor any of its Permittees shall be liable to the grantee or to any
person or entity for, and such grantor and its Permittees are hereby released from, any and
all consequential damage for any interruption in any services provided through Utility
Facilities located in the easement granted by the grantor, regardless of cause, including
such grantor's negligence or that of its Permittees.
(g) Upon request by either Owner, the other Owner shall confirm by separate
instrumettt, in form and substance reasonably acceptable to the Owners, the grant of the
easement hereunder and that such easement extends to and may be used by the provider of
• service for such Utility Facility.
(h) Apartment Owner hereby grants and conveys to Office/Retail Owner an
easement for access to the fluid cooler on the Lower Roof and related equipment in the
Apartment Parcel for Office/Retail Owner to maintain the fluid cooler system in
accordance with Section 4 hereof.
(i) OfficelRetail Owner hereby grants and conveys to Apartment Owner and
Apartment Owner hereby grants and conveys to Office/Retail Owner an easement for
maintenance of the fire protection system.
3.11 Easement for Elevators. Subject to the terms and conditions ofthis
Agreement, Office/Retail Owner hereby grants and conveys to Apartment Owner an easement for
use of the Elevators and for ingress and egress to the Elevators as shown on E�ibit
3.12 Easement for Deliveries and Trash Removal. Subject to the terms and
conditions of this Agreement, Office/Retail Owner hereby grants and conveys to Apartment
Owner an easement for access to the Trash Room through the Service Corridor, use of the
portion of the Trash Chute that passes through the Office/Retail Pazcel, and ingress and egress
over the hallways as shown on Exhibit N.
3.13 Easement for Access to Roo£ Subj ect to the terms and conditions of this
Agreement, Apartrnent Owner hereby grants and conveys to Office/Retail Owner an easement for
• fb us �83-348682 Li686 03 1�}
access to the Roof for maintenance of the (and the power roof •
ventilation units] serving the Office/Retail Pazcel.
3.14 Easement for Installation and Maintenance of Mechanicai Systems on
Anartment Roof. Subject to the terms and conditions of this Agreement, Apartment Owner
hereby grants and conveys to Office/Retail Owner an easement for the installation and
maintenance of telecommunications antennas and mechanical systems an the Roof. The
permitted location of any such telecommunications antennas or mechanical systems sha11 be
shown on the Final Plans. Each Owner shall obtain the prior written approval of the other Owner
to any additionai equipment or replacements or modifications to existing equipment on the Roof
that aze not in substantially the same location and configuration as those shown on the Finai
Plans. All telecommunications antennas on the Roof shall be solely for the purpose of providing
telecommunications services to Occupants and Permittees in the Building.
3.15 Easement for Citv and Governmental Authorities Each Owner herebv
grants a nemetual easement for access throu�h its Parcel as reouired for insnection ev i�tion or
emereencv resroonse bv emvlovees or aeents of the Cit� or other Govemmental Authorifies
3.16 Window Washin� Svstems. Subject to the terms and conditions of this �
Agreement, each Owner grants to the other an easement to use the window washing systems for
window washing purposes as well as for access to the exterior of the Building for repairs and
maintenance. The Owners agree to schedule their uses for the window washing systems so as to
avoid conflicts.
�3.17 No Dedication. Nothing contained herein may be deemed to be a •
gift or dedication of any portion of the Building to the general public, and_subiect to Le¢al I
Reauirements_ the grantor of any easement or license under this Agreement is entitled to make
such temporary closures as may be reasonably necessary to avoid creation of any public rights.
�3.18 Securitv Restrictions. All of the easements granted in this
Agreement are subject to reasonable access restrictions, wluch may be in the form of access
controls through the Security Access System or by Rules promulgated pursuant to Article 16,
provided that no such restrictions shall unreasonably unpair the utility of the easements granted
herein.
4. Utilities
4.1 Electricitv. The electrical systems for the Apartment Pazcei and the
Office/Retail Parcel aze, in general, separately metered, and each Owner shall pay the cost for its
Pazcel directly to the utiliiy. The Owners agree to disregazd the cost of electricity to common
entrances, hallways or ea�temallighting.
4.2 District Heat. The heating systems for the Apariment Pazcel and the
Office/Retail Pazcel aze, in general, sepazately metered, and each Owner shall pay the cost for its
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Parcel directly to the utility. The Owners agree to disregazd the cost of heating to shared
enlsances and hallways.
43 District Coolin�. The cooling systems for the Apartment Pazcel and the
Office/Retail Parcel are, in general, separately metered, and each Owner shall pay the cost for
its Parcel directly to the utility. The Owners agree to disregard the cost of cooling to shared
entrances and hallways.
4.4 Natural Gas. The natural gas systems for the Apartment Parcel and the
Office/Retail Parcel are, in general, separately metered, and each Owner shall pay the cost for
its Parcel directly to the utility.
4.5 Sewer and Water. The sewer and cold water systems for the Apartment
Pazcel and the Office/Retail Parcel are, in general, separately metered, and each Owner shall
pay the cost for its Parcel directly to the utility.
5.1 Buildin�s. Each Owner may make such alterations to its Building as it
may from time to time determine without the consent or approval of the other Owner, subject to
the provisions of Sections 5.2 and 5.3 and to all other applicable provisions of this Agreement.
5.2 Consent Required. No alteration shall be made to any part of the Building
without the prior written consent of the other Owner if the proposed alteration would:
(a)
(b)
(c)
(d)
Facilities; or
(e)
Building.
5.3 Other Requirements. Each Owner hereby covenants that it will comply
with the following provisions:
Alterations
impair any of the rights expressly granted in this Agreement;
change the general chazacter of the Building;
materially affect the exterior appearance of the Building;
involve a material structural alteration or materially affect the Support
adversely and unreasonably affect an Owner's quiet enjoyment of its
(a) All alterations shall be made with reasonable diligence and dispatch
(subject to Unavoidable Delays) in a workmanlike manner and with materials and
workmanship equal in quality and class to the Building.
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(b) Before beginning any alterations, the Owner desiring the alteration shall
procure, at its expense, all necessary licenses, permits, approvals and authorizations from
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all Govemmental Authorities and, except in the case of an alterafion not requiring •
consent, shall deliver photocopies thereof to the other Owner. Upon request, the other
Owner sha11 join in the application for such licenses, permits, approvals and
authorizations whenever such acrion is necessary, and the Owner desiring the alterations
covenants that the other Owner wili not suffer, sustain or incur any cost, expense or
liability by reason thereof.
(c) All alterations shall be made and completed in accordance with all Legal
Requirements and Insurance Requirements.
6. Maintenance and Renair.
6.1 Generallv. Subject to express provisions herein for cost allocation
between the Owners, including Secfion 6.3, each Owner shall, at its sole cost and expense and
without contribution from the other, maintain its Building and Parcel in a good state of repair and
condition, ordinary weaz and teaz excepted, make all necessary repairs thereto, interior and
exterior, structural or non-shuctural, and keep the same in compliance with a11 Insurance
Requirements, Legal Requirements and the Rules. The requirements of this Section shall include,
without limitation:
(a) Each Owner shall, at its expense, maintain and repair in good order and
condition all Urility Facilities that aze not Common Utility Facilities serving that Owner's
Pazcel or Buiiding, whether located in that Owner's Pazcel or Building or in the other •
Owner's Parcel or Building;
(b) Each Owner shall maintain and repair in good order and condition those
Support Facilities (or portions thereo fl located on that Owner's Pazcel or Building;
(c) Except as otherwise expressly set forth herein, each Owner shall maintain
at its expense its respective heating and cooling systems for its Building at a temperature
reasonably required for the intended use; and
(d) Each Owner shall maintain at its expense, the non-shared components of
the fire protection system located within its Pazcel, provided that if any action or inacrion
by one Owner causes damage to the entire system or requires the system to be recharged,
the Owner causing the damage shall pay the entire cost.
All repairs shall be equal in quality and class to the original work, efFected with
all due diligence and in a workmanlike manner, and promptly and fully paid for by the Owner of
the Building in question. Notwithstanding anything herein to the contrary, the Owners hereto
shall be liable individually for those maintenance and repair expenses caused or occasioned by
their respective acts or omissions or the acts or omissions of their Pernuttees who cause any
extraordinary repair or maintenance expenses.
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• 6.2 Maintenance of Roof. Apartxuent Owner shall maintain the Roof of the
Building in good condition and repair in a manner to prevent water infiltration. Apartment
Owner shall pay 53% and Office/Retail Owner shall pay 47% of the cost of the repair or
replacement of the Roof.
63 Maintenance of Roof Mounted Mechanical Svstems. Each Owner shall
maintain at its expense all of its mechanical systems located on the Roof. All such work shall be
done upon reasonable prior notice, except in an emergency, pursuant to procedures reasonably
designated by Apartrnent Owner in order to maintain roof integrity and/or effectiveness of roof
warranties, and all costs of roof-related repair resulting from such work shall be bome by the
Owner accessing its mechanical system.
6.4 Maintenance of Stairwavs; Stairwav Pressurization. Apartment Owner
shall maintain at its expense the portions of Stairways located within the Apartment Building.
Office/Retail Owner shall maintain at its expense the portion of Stairways located within the
Office/Retail Building. Aroartment Owner shall be resnonsible for maintainina the overall
�ressurization to meet Leea1 Reauirements and such exnense shall be naid 53% bv Aoartment
Owner and 47% bv Office/Retail Owner.
6.5 Maintenance of Elevators. Apartment Owner shall be solely responsible
for the maintenance of the Elevators and Apartment Owner shall pay 53% and Office/Retail
Owner shall pay 47% of the cost of the maintenance.
• 6.6 Fire Protection Svstem. Apartment Owner shall maintain the control panel
and operating system for the fire protection system in good condition and repair and shall be
resoonsible for makine sure that the overall fire sunnression svstem meets the Leeal
Reauirements. Office/Retail Owner shall pay 53% and Apartment Owner shall pay 47% of the
cost of repair and replacement of the controi panel and operating system. Office/Retail Owner
sha11 maintain all spxinkler heads, piping and related equipment for the fire protection system
located in the Office/Retail Parcel at Office/Retail Owner's sole cost and expense. Apartment
Owner shall maintain all sprinkler heads, piping and related equipment for the fire protection
system located in the Apartment Parcel at Apartment Owner's sole cost and expense.-{�es�ise}
6.7 Maintenance of Sidewalks �'f� Anartment Owner shall maintain
the sidewalks adjacent to the Building in good condition, including removal of debris and snow.
Office/Retail Owner shall pay all of such costs. Office/Retail Owner shall also maintain any
landscaping adjacent to the Building in good condition and repair at its sole cost and expense.
Office/Retail Owner shall pay 47% and Apartment Owner shall pay 53% of the cost of
replacement of sidewalks and landscaping.
6.8 Emer�encv Generator. Apartment Owner shall maintain the emergency
generator that provides back-up power for the Office/Retail Parcel and the Apartment Parcel.
Office/Retail Owner shall pay 47% and Apartment Owner shall pay 53% of the cost of repair and
replacement of the emergency generator.
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610 Cost Allocation
(a) The costs of operating and maintaining the facilities that aze the subject of
or contained within the easements described in this Agreement will be allocated among
the Parcels in the manner expressly set forth herein or if not expressly set forth in this
Agreement as set forth on Eachibit S attached hereto.
(b) The Owners may from tune to time alter the maintenance obligations and
allocation of costs by a written agreement signed by both Owners without amending this
Agreement. Any such written agreement shail be temiinable on thirty (30) days written
notice unless a sepazate time period is expressly stated.
(c) Unless the Owners otherwise agree and subject to this Section 6.10,
Apartment Owner shall serve as the maintaining Owner for all common maintenance
items listed in Exhibit S .
(d) With respect to Shazed Costs (as identified in E�ibit S, the Owner that is
not responsible for perforniiug the maintenance will pay to the other Owner the
applicable shaze of the Shared Costs as shown on Exhibit S. Except in an emergency,
neither Owner will undertake any Shared Cost without the consent of the other Owner,
which consent will not be unreasonably withheld or delayed, and will be deemed given
except to the extent the other Owner makes specific written objection thereto within ten
(10) days after delivery of the written request. The Owner that did not incur the Shared
Cost will pay to the other Owner its applicable share of the Shared Cost within thiriy (30)
days after submission of a statement by the Owner that performed the work, together with
reasonably acceptable evidence of the actual cost incurred for the Shazed Cost. Each
Owner shall keep accurate and complete books and records of the Shazed Costs incurred
by it. Within one (1) yeaz after receipt of any request for payment, the Owner that did not
perform the applicable work shall have the right to inspect, audit, andlor copy such books
and records to the extent pertaining to such costs paid or payable by the Owner that
performed the work in the calendaz yeaz covered by such statement. Such Owner will
notify the other of its intent to audit at least fifteen (15) days before the date it desires to
make such inspection, audit, or copying. If such audit discloses any error in the
determination of Shazed Costs, the Owners shall make an appropriate adjustment. The
reasonable cost of any audit shal] be paid by the Owner requesting it unless that Owner is
entitled to a refund in excess of ten percent (10%) of the amount originally calculated as
the auditing Owner's allocable share for the applicable calendaz year, in which case the
audited Owner shall pay the cost of such audit.
6.11 Window Cleanine. Each Owner shall at its expense clean the exterior
windows of its Building on a schedule typical for other comparable buildings in Saint Paul,
Minnesota.
6.12 Standards for Maintenance. In performing its obligations under this
Agreement, each Owner shail preserve and maintain the appeazance of the Building as
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• initially designed and consiructed, and shall perform all maintenance reasonably required,
including but not lnnited to preserving the functional performance of the Building exterior.
Any change to any element of the exterior of the Building, shall be subject to consent of the
other Owner.
7. Restoration. Following any construction, repair, replacement and/or
maintenance activity, the constructing Owner shall promptly restore any damage to the other
Owner's Pazcel and all landscaping or unprovements located thereon to their former condition or
as close thereto as may be practical. The cost of such restoration shall be allocated in the same
manner as the construction, repair, replacement or maintenance.
8. Insurance.
8.1 Generallv. Each pariy shall obtain and keep in full force and effect, at its
sole cost and expense, as to its Pazcel and Building (including all Access Facilities and all Utility
Facilities and Support Facilities):
(i) a policy of commercial general liability insurance written on an
"occurrence basis" not a"claims basis" under which policy the other parry shall be named
as an additional insured, and with coverage limits of not less than $3,000,000 for each
occurrence of injury or properiy damage and $4,000,000 in the aggregate subject to
Section 8.4 below; and
• (ii) a policy of properiy insurance with "all-risk" coverage in the amount of
one hundred percent (100%) of the full replacement value of all improvements within the
Parcel owned by the party.
All insurance required under this Section shall be procured from companies authorized to do
business in the State of Minnesota and shall be rated by BesYs Insurance Reports not less than
A-VI. Partnership may provide insurance under an individual policy covering this location, or a
blanket policy which includes other liabilities, properties and locations. Partnership may, but
need not, obtain a property insurance policy covering the Office/Retail Shell. If Partnership
obtains a property insurance policy covering the Office/Retail Shell, the Partnership shall be
entitled to all proceeds from that policy and may use the proceeds to rebuild the Office/Retail
Shell if the Library fails to do so in accordance with Section 10 hereof. In addition, the parties
may mutually agree to maintain a single property insurance policy for the Parcels and Building,
in which case the cost of that policy shall be prorated based on the respective replacement cost of
the Office/Retail Pazcel and the Apartrnent Parcel as determined by the insurer at the time of
issuance of the policy and each party shall pay for its respective portion of the policy cost. Each
party agrees to furnish to the other on an annual basis a certificate of insurance, evidencing that
the insurance required hereunder is in full force and effect. Each party sha11 deliver to the other a
certificate of insurance upon recording of this Agreement upon any reduction in the amount or
type of coverage or upon request by the other party.
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8.2 Additional Requirements. The insurance required pursuant to Section 8.1
shall include the following provisions:
(a) the policy shall not be canceled, or reduced in amount or coverage below
the requirements of this Agreement, nor shall it be allowed to expire, without prior notice
of at least thirty (30) days by the insurer to each insured and to each additional insured;
(b) severability ofinterests;
(c) an act or omission of the insured or additional insured that would void or
otherwise reduce coverage shall not void or othercvise reduce the coverage as to the other
insured;and
(d) contractual liability coverage with respect to the indemnity obligations set
forth in this Agreement.
83 Waiver of Claims. Each party agrees that it waives any and a11 claims and
rights of action it may have against the other and any of the other Party's agents, employees and
contractors with respect to any losses or clauns arising out of any damage to its Building or
Pazcel, covered by insurance required under Section 81(ii) hereunder, whether or not such
insurance was actually in effect, and whether or not such damage was caused by the negligence
or other act or omission of the other party or the other party's agents, employees and conlractors,
and, whether or not any such damage to its Building or Pazcel was caused by or a result of an
occurrence on any other portion of the Building or Pazcel.
8.4 Insurance Proceeds. Subject to Section 10, all property insurance proceeds
shali be the properiy of and be payable to the par[y whose building was damaged except as
otherwise stated in this Section 8.
9. Indemnification. Subject to Section 8 and except as othenvise expressly
provided herein, each Owner hereto shall exercise the rights granted to it herein with due caze,
and shall indemnify, defend, protect and hold harmless the indemnified Owner and its Permittees
from and against any and a11 claims, costs and liabilities (including reasonable attorneys' fees and
costs) arising from property loss or damage or personal injury or death occurring on the Building
by reason of any act or omission of the indemnifying Owner or its Pernuttees, except for claims,
costs and liabilities to the extent arising from the negligence or willful misconduct of the
indemnified Owner or its Permittees.
10. Fire or Other Casualtv. Promptly upon any loss or damage to ail or any
part of the Project, the par[y whose Building was damaged shall give written notice of the
damage to the other pariy. Each party shall proceed with diligence to restore its Building (i) to
the extent necessary to have functional Support Facilities, Access Facilities, Utility Facilities and
any other components so that the other party's Building may be operated for its intended purpose,
and (ii) to a reasonably well-kept appearance from the exterior in light of the symbiotic nature of
the Project. Each pariy grants the other party a temporary construction easement to be exercised
fb us da°i—"°�`-o�n^ I87 3686 03
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in the same manner as the temporary construction easement set forth in Section 3.2 above to the
e�ent necessary to complete the restoration. The easement shall terminate upon completion of
the restoration.
11. CondemnaHon. In the event of a condemnation of the Building or any
portion thereof, the award or purchase price paid for such taking shall be paid to the Owner of the
condemned Parcel; provided, however, that the award shall be used first to repair or replace the
Access Facilities and Support Facilities, and any remaining amount shall be paid to the Owner of
the condemned Pazcel. Each Owner grants the other Owner a temporary construction easement
to be exercised in the same manner as the temporary construcrion easement set forth in Section
3.2 to the extent necessary to complete the restoration. The easement shall terminate upon
completion of the restoration. Except as set forth above, each Owner hereby releases and waives
any right to receive or claim any portion of such awazd or purchase price paid to the other Owner
for such taking.
12. Default.
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12.1 Notice and Cure. If either Owner defaults in any obligation hereunder that
can be cured by the payment of money and the default is not cured within thir[y (30) days after
written notice thereof, or if either Owner defaults in any other obligation in this Agreement and
the default continues for thirry (30) days after written notice thereof (or such longer period as
may be necessary to cure the default provided that the defaulting Owner commences to cure
within the thirty (30) day period and thereafter diligently prosecutes such cure to completion),
then the non-defaulting Owner, after additional notice given to the defaulting Owner, may
exercise any one ar more of the remedies set out in Section 13 hereo£ The first mortgagee of any
Owner in default under this Agreement (including the first mortgagee of a Apartment unit) shall
be entitled to receive a concurrent notice of said default in the same manner that other notices are
required to be given under this Agreement; provided however, that the fust mortgagee has, prior
to the 6me of the default, delivered written notice of the first mortgagee's mailing address to the
Owner(s) giving the notice of default. Any first mortgagee on the Office/Retail Parcel who has
given notice hereunder shall have the right to cure a default by Office/Retail Owner hereunder on
the same terms as applicable to the Office/Retail Owner.
12.2 Violation of Rules
(a) For any violation of any Rule, the prejudiced Owner may fine the Owner
whose Occupant or Permittee violated the Rule a fine in an amount not to exceed $100.00
in Constant Dollazs per violation. No advance notice shall be required and no cure rights
shall apply. The Owner invoking a fine shall in each case provide written demand,
together with reasonable evidence of each violation for which a fine is imposed. The
Apartment Owner for purposes of invoking and paying fines under this Section I2.2 shall
mean only the Association.
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(b) If an Occupant or Permittee repeatedly violates a Rule and if such
violation relates to access to a shazed facility, any prejudiced Owner may revoke the
fb.us. `��787368603
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access privileges of such Occupant or Permittee for a period of up to one yeaz. The
revocation may be reinstated in the event of future violations.
(c) The remedies set forth in this Secfion 12.2 aze not exclusive of each other
or of other remedies under Article 13.
13. Remedies; Waiver.
13.1 General. Upon the occurrence of a default under this Agreement and the
expiration of any period to cwe without a curing of the default, the non-defaulting Owner shall
be entitled to one or more of the following remedies:
(a) cure the default and chazge the cost thereof and a late fee of $ in
Constant Dollazs to the defaulting Owner, and all such costs shall be payable on demand.
(b) specific enforcement, injunctive relief, damages, or any other remedy
available at law or in equity.
(c) in the event of any litigation hereunder, the prevailing Owner shall be
entitled to reimbursement of its reasonable costs of litigation, including reasonable
attorney's and expert's fees.
Any action seeldng one or more forms of relief shall not be a baz to an action at the same or
subsequent time seelang other forms of relief. Any delay in realizing, or failure to realize, on any
remedy provided herein for a default hereunder shall not be deemed a waiver of that default or
any subsequent default of similaz or different kind, and no waiver of any right or remedy
hereunder shall be effective unless in writing and signed by the person against whom the waiver
is claimed.
13.2 Lien. Damages and costs accnring and/or assessed pursuant to Section
13.1 shall constitute a lien against the defaulting Owner's Pazcel. The lien shall attach and take
effect only upon recordation of a claun of lien in the Office of the Ramsey Couniy, Minnesota
Registrar of Titles by the Owner making such claim. The claim of lien shall include the
following:
(a)
�)
(c)
(d)
tb us 38�348Fi6,.18136R6 03
The name of the lien claimant.
A statement conceming the basis for the claim of lien and identifying the
lien claimant as a non-defaulting Owner.
An identification of the Owner of the Pazcel or interest therein against
which the lien is clauned.
A description of the Parcei against which the lien is claimed.
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(e)
A description of the work performed which has given rise to the claim of
lien and a statement itemizing the amount thereof.
(fl A statement that the lien is claimed pursuant to the provisions of this
Agreement, reciring the date and document number of recordation hereof.
The notice shall be duly verified, acknowledged and contain a certificate
that a copy thereof has been served upon the Owner against whom the lien
is clauned, by personal service or by mailing pursuant to Section 21.16.
The lien so claimed shall attach from the date of recordarion solely in the
amount claimed thereby and may be enforced in any judicial proceedings
allowed by law, including, without lunitation, a suit in the nature of a suit
to foreclose a mortgage or mechanic's lien under the applicable provisions
of the law of the State of Minnesota.
(g) With respect to the Apartment Parcel, the roles of the Association and the
Aparhnent unit owners as applicable to clauses (a�(fj above shall be as
follows:
Clauses (a) and (b): only the Association may be a claimant,
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Clauses (c), (d), (e) and ( fl: if the claim is against the Apartment
Parcel, each Apartrnent unit and the owner or record owner thereof
shall be listed, and each such owner shall be served pursuant to
clause ( fl.
(h) In the event of any foreclosure of a lien hereunder against Office/Retail
Owner during the term of the License Agreement, Apartment Owner
agrees that it shall not disturb the rights of Licensor under the License
Agreement.
(i) A lien claimed under this Article 13 is prior to all other liens and
encumbrances on the defaulting Owner's Parcel, or the individual
Aparhnent units (with respect to the Apartment Parcel), except (i) liens
and encumbrances recorded before this Agreement and not expressly
subordinated to the lien claimed under this Article 13, (ii) any first
mortgage on any Apartment unit, provided that the holder of such first
mortgage shall be liable for the payment of the portion of the Shared Costs
[and Administrative Fee] allocable to such Apartment unit, coming due
and payable following acquisition of title to the Apartment unit by
foreclosure of such first mortgage or deed in lieu of foreclosure or
otherwise, and following such acquisition of title, the property so acquired
shall be subject to a lien for such portion of the Shared Costs [and
Administrative Fee] billed or invoiced after such acquisition of title; and
(iii) liens for real estate taxes and other govemmental assessments or
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charges against the defaulting Owner's Pazcel and the individual •
Apartment units.
14. Self-Help. Each Owner hereby grants to the other Owner an easement to
enter upon the Building and Pazcel of the other Owner for the purpose of performing an
obligafion that the other Owner is required to perform under this Agreement but fails or refuses
to do and that the non-defaulting Owner then has the right, but not the obligation, to perform
with reasonable notice; provided, however, that if the default shall constitute an emergency
condition, the non-defaulting Owner, acting in good faith, shall have the right to cure the default
upon such advance notice as is reasonabiy possible under the circumstances or, if necessary in
the case of emergency, without advance notice, so long as notice is given as soon as possible
thereafter. If a Owner takes curative measures, the defaulting Owner shall, upon demand,
unmediately pay to the non-defaulting Owner its pro rata share of all reasonable costs and
expenses actually incurred by the non-defaulting Owner with respect to such curative action.
Written demand for payment shall include a staxement of costs and reasonable detail of expenses.
����
15. Hazardous Substances. No Owner shall use, or pemut any other person
to use, any Hazazdous Substances in, on or about its Pazcel, except in the ordinary course of its
business operations, and any such use shall at all times be in compliance with a11 Legal
Requirements and Insurance Requirements. Each Owner agrees to defend, protect, indemnify
and hold hazmless the other Owner and its Permittees, from and against any and all clauns, costs
and liabilities (including, without lunitation, reasonable attomeys' fees and costs, invesrigation •
and cleanup costs, governmental response costs, nahual resource damages, containment, or other
remediation) arising from Hazazdous Substances released or allegedly released by the
indemuifying Owner or any other person for whose conduct the indemnifying Owner is or may
be held responsibie.
16. Rules. Office/Retail Owner may establish rules related to use of the
Access Facilities subject to the approval of Apartruent Owner, which sha11 not be unreasonably
withheld or delayed, so long as such Rules aze consistent with Legal Requirements. T'he Owners
may also mutually establish other rules for use of the Building, Access Facilities, Support
Facilities and Common Utility Facilities, the Apaztment Meeting Room and any other portions of
the Building used in common. The Owners shall comply, and shall cause their respective
Occupants and Permittees to comply, with the RuIes in connection with the ownership, use and
occupancy of the Building. The Owners may establish, amend, modify or supplement the Rules
from time to time.
17. Estonpel Certificates. Each Owner agrees upon the request of the other
to execute and deliver an estoppel certificate addressed to the Owner or Owners as the requesting
Owner may specify stating whether this Agreement is in effect, whether it has been amended
(and if so, identifying the amendments) and whether, to the knowledge of the certifying Owner,
either Owner is in default hereunder (and if so, identifying the defaults).-{$iseuss}
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• 18. Real Pronertv Tages. Each Owner shall be responsible for the real
properiy taxes due and payable with respect to its own Parcel, including installments of special
assessments when due, and will have no obligation for the real property taxes due and payable
with respect to the other Owner's Pazcel.
19. SiEns. To the extent Legal Requirements limit the aggregate signage on
the exterior of the Building, Office/Retail Owner shall be allocated % of the permitted
signage and Apartment Owner shall be allocated _% of the permitted signage, but not less than
_ square feet. All signage for Office/Retail Owner shall be located on the Office/Retail Pazcel
and all signage for Aparixnent Owner shall be located on the Apartrnent Pazcel, except that
Apartment Owner may include a sign not to exceed adjacent to the Apartment Entrance.
All signage shall comply with Legal Requirements.
20. Mediation. All claims, disputes or other matters in question between
Office/Retail Owner and Apartment Owner arising out of or relating to this Agreement or breach
thereof shall be referred to non-binding mediation before, and as a condition precedent to, the
initiation of any legal action provided for herein. Each Owner agrees to participate in up to four
hours of inediation. The mediator shall be selected by the Owners, or if the Owners are unable to
agree on a mediator, then either Owner can request the administrator of the Ramsey County
District Court Civil ADR Program and/or similar person to select a person from its list of
qualified neutrals. The mediation shall be attended by employees or agents of each Owner
having authority to settle the dispute. Each parry shall bear its own expenses related to the
• mediation, including, without limitation, the costs of any experts or legal counsel. All applicable
statutes of limitations and all defenses based on the passage of time are tolled while the
mediation procedures are pending and for a period of thirty (30) days thereafter.
21. Miscellaneous.
21.1 A¢reement Shall Continue Notwithstanding Breach. No breach of this
Agreement shall entitle either Owner to cancel, rescind or otherwise terminate this Agreement.
However, such limitation shall not affect in any manner any other rights or remedies that either
Owner may have hereunder, or at law or in equity, by� reason of a breach.
21.2 Amendment. This Agreement may not be amended or modified without
the written consent of the Owners hereto.
213 Attornev's Fees. If either Owner brings an action to enforce or interpret
this Agreement, the prevailing Owner in such action shall be entitled to recover reasonable
attomey's fees and court costs, in addition to any other relief granted.
21.4 Commerciallv Reasonable. With respect to matters arising under this
Agreement, each Owner shal] act in a commercially reasonable manner except when another
standazd is expressly provided. Whenever the consent or approval of an Owner is expressly
required hereunder, such consent or approval shall not be unreasonably withheld or delayed,
• unless a different standard is expressly set forth herein.
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21.5 Construction. The rules of strict conshuction sha11 not apply to this •
Agreement. This Agreement shall not be interpreted in favor of or against either Owner merely
because of its respective efForts in pieparing it. Whether or not expressly provided, the term
"include" and any variation thereof as used in this Agreement is not limiting and instead means
"including but not limited to", and the term "sole" or "absolute" discrerion means a Owner's
sole, unqualified and absolute discretion.
21.6 Countemarts. This Agreement may be executed in two or more
counterparts, each of which sha11 be deemed an original and a11 of which together shall constitute
one and the same inshument. A facsimile copy of a signature shail be as binding as an original
signature.
21.7 Covenants Run With the Land. The terms and provisions of this
Agreement shall run with the land, and shall be binding upon and inure to the benefit of the
Owners hereto and each successor in title to all or any portion of the Office/Retail Parcel or the
Apartrnent Pazcel.
21.8 Effect on Other Aereements. This Agreement does not affect the rights
and obligations of the Owners hereto under any other agreement between the Owners or by
which the Office/Retail Parcel or the Apartment Parcel is bound.
21.9 Entire Aereement. This Agreement embodies the entire agreement and
understanding between the Owners and supersedes any prior oral or written agreements with •
respect to the matters stated herein.
21.10 GoverninQ Law. This Agreement shall be governed by and construed
under the laws of Minnesota. This Aereement is subiect to a11 Le al Reouirements and nothin
herein is intended to conflict with anv such law To the extent that anv �rovision herein is
inconsistent with Leeai Reauirements, the an�licable Leea Reauirements chail unvern
21.11 HeadinQS. The secUon headings in this Agreement aze inserted for
convenience of reference only and shall not in any way afFect the meaaing or construcfion of The
Agreement.
21.12 Liens. Neither Owner shall permit any liens to attach to the other Owner's
Parcel as a result of any work under the foregoing easements and licenses and shall either bond
over or pay and dischazge any lien so attaching promptly after demand by the other Owner.
21.13 Mer�er Not Intended. Common ownership of any Parcels or Buildings
shall not cause this Agreement to be extinguished by operation of inerger in whole or in part.
21.14 Min;m;�ation of Damaees. Each Owner agrees to cause the least possible
interference with the activities of the other Owner and its Occupants and Permittees.
fb us -l9°I-" °�`-e�^^7 R7 3686 03 Z�]
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. 2115 Not a Public Dedication. Nothing contained herein shall be deemed to be
a gift or declazation of all or any portion of the easements created hereby to the general public,
and the grantor of an easement or license shall be entitled to make such temporary closures as
may be reasonably necessary to avoid creation of any public rights.
21.16 Notices. All notices, requests, demands and other communications
required or perxnitted to be given hereunder must be in writing and deposited in the United States
Mail, postage prepaid, or personally delivered, or sent by facsimile with a copy deposited in the
United States Mail, to the appropriate address set forth below, or at such other address as either
Owner may, from time to time, designate in writing. Each Owner may from time to time
designate by written notice to the other Owner not more than two additional entities with an
interest in the property (lenders, investors, insurers) to receive notice hereunder. Notices shall be
deemed sufficiently served or given on the date dispatched in a manner provided above. The
initial addresses of the Owners shall be:
With respect to Office/Retail Owner:
Commerce Partners LLC
185 West Plato Boulevard
St. Paul, MN 55107
Attn.:
• With respect to Apartment Owner:
Commerce Apartments Limited Partnership I
328 West Kellogg Boulevard
St. Paul, MN 55102-1900
Attn.: Joseph L. Holmberg
21.17 Office/Retail Owner and Anartment Owner. As used herein, the term
"Office/Retail Owner" shall mean Office/Retail Owner, for so long as it shall own the
Office/Retail Parcel, and thereafter it shall mean the successor(s) in title to Office/Retail Owner
from time to time with respect thereto, for so long as such successor(s) shall own the
Office/Retail Pazcel. As used herein, the term "Apartment Owner" shall mean Apartment
Owner, for so long as it shall own the Apartment Parcel, and thereafter it shall mean the
successor(s) in titie to the Apartment Owner from time to time with respect thereto, for so long as
such successor(s) shall own the Apartment Parcel. Office/Retail Owner acknowledges that
Apartment Owner intends to lease the Apartment Parcel to Commerce Historic Limited
Partnership which may exercise the rights of Apartrnent Owner under this Agreement. If
portions of the Office/Retail Pazcel or the Apartrnent Parcel become conveyed to or owned by
multiple Owners, each such Owner shall be deemed to be the successor in title to Office/Retail
Owner or Apartment Owner, as the case may be, and shall be entitled to the rights and benefits
and bound by the obligations established herein for the portion owned by such successor, subject
to the limitations set forth in this Section 21.17 and other limitations expressly set forth in this
• Agreement. Office/Retail Owner, Aparhnent Owner and each successor Owner shall only have
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such liability, if any, under this Agreement that arises or accrues during such Owner's period of
ownership.
21.18 Relationship of Owners. No provision of this Agreement and no action
taken pursuant hereto shall create any relationship between the Owners other than as specifically
set forth herein. Without limiting the generality of the foregoing, the Owners aze not parhiers of,
or joint venturers with, or agents for, each other.
21.19 Ri�hts Reserved. Except for rights expressly granted to the Owners
herein, each Owner reserves all rights in and to the easement azeas on its Pazcel and Building.
Each Owner shall continue to enjoy the use of the easement areas for any and all purposes that do
not interfere with the other Owner's use of the easement areas. The rights reserved herein are
expressly limited by those actions that might damage the easement azeas or prevent easy access
thereto.
21.20 Severabilitv. If any term of this Agreement or any application thereof
sha11 be invalid or unenforceable, the remainder of the Agreement and any other applicafion of
such term shall not be affected thereby.
21.21 Singulaz and Plural. Whenever required by the context of this Agreement,
the singulaz shall include the plural, and vice versa, and the masculine shali include the feminine
and neuter genders, and vice versa.
provisions.
21.22 Tune. Time is of the essence of this Agreement and each and all of its
22. Term.
(a) The initial Term of this Agreement shall commence upon the date
of this Agreement and shall continue for a period of one hundred (100) yeazs.
(b) The term of this Agreement shall automatically extend indefinitely
for succeeding periods of ten (10) yeazs each unless an Owner gives written notice of
termination at least ten (10) yeazs prior to the expiration of the then-current Term. A
Office/Retail Owner giving notice of termination must represent and warrrnt in its notice
to Apartment Owner that it has a bona fide intent to permanently cease operation within
the Office/Retail Building of any use described in Section 2.4, and a Aparhnent Owner
giving notice of termination must represent and warrant in its notice to Office/Retail
Owner that it has a bona fide intent to permanently cease operafion within the Apartment
Building of the use described in Section 2.3, in each case within the ten (10) yeaz period
following notice of termination. An Owner that gives such notice of termination sha11
tkereupon automatically grant to the other Owner an option to purchase the Pazcel of the
terminating Owner for the Fair Market Value of the Pazcel of the terminating Owner in its
then as-is condition, subject to and in accordance with clause (c) below.
fb us '°",a,�`°`�^' I Si 3686 03
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• IN WI'I'NESS WHEREOF, Office/Retail Owner and Apartment Owner have caused
this Agreement to be executed and delivered as of the day and year first above written.
•
• fb us 2°�.73`O�`-^e�1813686 03 3 �
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SEPARATE SIGNATURE PAGE
FOR
RECIPROCAL EASEMENT AGREEMENT
COMIVIERCE PARTNERS LLC,
a Minnesota lunited liability company
:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF )
�
The foregoing insh was acknowledged before me this _ day of •
2007, by , the President and Chief Manager of Commerce Partners
LLC, a Minnesota lunited liabiliry company, on behalf of the company.
Notary Public
� � ' °".��1513686 03 3 1
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• SEPARATE SIGNATURE PAGE
FOR
RECIPROCAL EASEMENT AGREEMENT
COMMERCE APARTMENTS LIMITED
PARTNERSHIP I,
a Minnesota limited partnership
By: CommonBond Investment Corporation,
General Partner
:
Its:
STATE OF MINNESOTA )
) ss.
COUNTY OF )
• The faregoing instrument was acknowledged before me this _ day of
, 2007, by , the of
CommonBond Investment Corporation, a Minnesota corporation, General Partner of Commerce
Apartments Limited Partnership I, a Minnesota limited partnership, on behalf of the partnership.
Notary Public
THIS 1NSTRUMENT DRAFTED BY:
Faegre & Benson LLP (AMC)
90 South Seventh Street
2200 Wells Fargo Center
Saint Paul, MN 55402-3901
(612)766-1600
• fb us.}8}3486&2 03 32
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EXHIBIT A
Le�al Description of Office/Retail Parcel
The real property located in Ramsey County, Minnesota, and legally described as:
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EXIITBIT B
Leeal Description of Aparfinent Pazcel
The reai properry located in Ramsey County, Minnesota, andlegally described as:
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