HomeMy WebLinkAboutTemporary Construction Easement Agreement This instrument prepared by:
Kaalberg Giesecke,PLLC
123 South 11th Street
Nashville,Tennessee 37206
Attn:Jacob F. Giesecke
TEMPORARY CONSTRUCTION EASEMENT AGREEMENT
THIS TEMPORARY CONSTRUCTION EAST ENT AGREEMENT (the "Agreement") is
made and entered into as of the 15-1/'day of Q . 2024 (the "Effective Date") by and
between KRUEGER LANE, LLC, a Minnesota limiteI liability company ("Grantor"), and TCM
TAKE 5 OPH LLC,a Minnesota limited liability company("Grantee").
WITNESSETH:
WHEREAS, Grantor is the owner of that certain real property located on 60th Street
North in Oak Park Heights, Washington County, Minnesota, being more particularly described
on Exhibit A(the"Grantor Property"); and
WHEREAS, Grantee owns certain real property adjacent to the Grantor Property and
more particularly described on Exhibit B(the "Grantee Property"); and
WHEREAS, Grantee intends to develop the Grantee Property; and
WHEREAS, Grantee intends to construct certain improvements on Grantee Property (the
"Project");and
WHEREAS, in order to facilitate construction of the Project, Grantee requires and
Grantor is willing to provide space for access and staging on a portion of the Grantor Property as
more particularly as set forth on Exhibit C(the "Temporary Construction Easement").
NOW, THEREFORE, for $10.00 paid Grantor by Grantee, the covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Grantor and Grantee agree as follows:
1. Grant of Temporary Construction Easement. Grantor hereby grants to Grantee
and its contractors, subcontractors, and employees the Temporary Construction Easement over,
through and across that portion of Grantor's Property more particularly described on Exhibit C
(the "Temporary Construction Easement Area") for the purpose of construction and/or
installation of stormwater related improvements ("Stormwater Improvements") as approved by
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the City of Oak Park Heights in Grantee's site plan (the "Construction Activities"). Grantee shall
be responsible for the payment of all labor and materials relating to or furnished in connection
with the Stormwater Improvements.
Upon the termination of the Temporary Construction Easement as provided herein,
Grantee shall restore, at Grantee's sole cost and expense, the Temporary Construction Easement
Area to at least as good a condition as existed prior to the Grantee's use of the Temporary
Construction Easement, except as it relates to the Stormwater Improvements (the "Restoration
Obligation"). Without limiting the foregoing, in the event that the Grantee's use of the
Temporary Construction Easement shall cause any physical damage or destruction to the Grantor
Property, Grantee shall promptly repair such damage or destruction to the Grantor Property so
that it is restored to at least as good a condition as existed prior to the occurrence of such damage
or destruction. The Grantee's obligations and liabilities under this section shall survive the
expiration or termination of this Agreement.
2. Insurance and Indemnification. In connection with the rights and privileges
created hereunder in favor of Grantee with respect to the use of the Temporary Construction
Easement, Grantee hereby covenants and agrees that:
(a) At all times that this Agreement is in effect, Grantee shall require its
contractor performing the Construction activities to maintain commercial general liability
insurance in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate, and
Grantor, Grantor's lender and Grantor's tenant (collectively, the "Grantor Parties") shall be
included as 'additional insureds' under such policy or policies. Prior to the commencement of
use of the Temporary Construction Easement for any purpose hereunder, Grantee shall deliver
evidence of such insurance to Grantor.
(b) Grantee hereby agrees to release, defend, indemnify and hold the Grantor
Parties harmless from and against any and all liabilities, claims, demands, damages or costs of
any kind whatsoever(including attorneys' fees, expert and consultant fees and costs of litigation)
arising from or in connection with the exercise by Grantee (or Grantee's contractors,
representatives and/or authorized agents) of the Grantee's rights under this Agreement, unless
such liabilities, claims, demands, damages or costs are incurred as a direct result of the gross
negligence or willful misconduct of Grantor and/or its successors, assigns, employees or
contractors. The terms of this section shall survive the expiration or termination of this
Agreement.
3. Termination of Easement. The Temporary Construction Easement granted
pursuant to this Agreement shall terminate and be of no further force and effect upon first to
occur of any of the following events(herein, a"Termination Event"):
(a) Issuance of a temporary certificate of occupancy for the improvements
being constructed on the Grantee Property or
(b) December 31,2024.
Upon the Termination Event, Grantee shall upon the request of Grantor,provide a fully executed
recordable release of this Agreement.
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4. Cost of Improvements, Maintenance and Restoration. Notwithstanding any
provision herein to the contrary, Grantee shall bear all costs and expenses associated with the
Construction Activities and Grantee's exercise of the rights or privileges created with respect to
the granting of this Temporary Construction Easement. Without limiting the foregoing, during
the term of this Agreement, in connection with Grantee's Construction Activities, Grantee will
be responsible for keeping and maintaining the Temporary Construction Easement Area in good
condition and repair and in compliance with all applicable laws and ordinances.
5. Remedies; Security for Grantee's Performance and Grantor's Self-Help Remedy
and Letter of Credit.
(a) Remedies Generally. In the event that Grantor or Grantee breaches any of
their obligations under this Agreement,then the aggrieved party shall have all remedies available
at law after providing notice and fourteen(14)days opportunity to cure any such breach.
6. Cooperation. Grantee shall use any easements created hereunder in a manner so
as not to unduly hinder, interrupt, conflict or interfere with Grantor's use and enjoyment of the
Grantor Property. Grantor shall use and enjoy Grantor's Property in such a manner so as not to
unduly hinder, interrupt, conflict or interfere with Grantee's use of the Temporary Construction
Easement Area. If any of the Construction Activities are materially interrupted or materials
damaged by Grantor in connection with Grantor's use of the Grantor Property, Grantor shall
repair such damage following receipt of written notice thereof from Grantee, it being understood
that Grantor shall commence the required repair within fourteen (14) days following receipt of
such notice and diligently pursue such repairs to completion.
7. No Public Rights; Temporary Closure. Nothing contained herein shall be
construed to grant any rights in the Temporary Construction Easement to the general public.
Grantor shall have the right to temporarily close or restrict access to the Temporary Construction
Easement to the extent necessary to prevent the general public from acquiring any rights therein;
provided Grantor shall not interfere with or impair the use of the Temporary Construction
Easement by the Grantee in accordance with the terms hereof.
8. Covenants Run With Land. Subject to the termination of the Temporary
Construction Easement as provided herein, the terms of this Agreement shall run with the land
and shall be binding upon Grantor, Grantee and their respective successors and assigns.
Notwithstanding anything to the contrary contained herein, each owner of the Grantee Property
or the Grantor Property, as applicable, shall be obligated under this Agreement only to the extent
the terms of this Agreement relate to the periods during which it owns the Grantee Property or
the Grantor Property.
9. Notices. All notices, requests,demands or other communications hereunder shall
be in writing and deemed given(i)when delivered personally, or(ii) 5 days after being deposited
in the U.S. Mail, by registered or certified mail, return receipt requested, postage prepaid, or
(iii)on the day after being deposited with a nationally recognized overnight courier service(such
as Federal Express), prepaid, or(iv)when sent via email, upon receipt of confirmation of receipt
by any means, in all events addressed as follows:
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Grantee: Grantor:
TCM Take 5 OPH,LLC Krueger Lane, LLC
Attn: Thomas H. Evans,III 5201 Eden Avenue, Suite 370
107 Technology Parkway Minneapolis, MN 55436
Peachtree Corners, Georgia 30092
With a copy to:
With a copy to:
Malkerson Gunn Martin LLP
Bradley Arant Boult Cummings LLP Attn: Michael A. Putnam
Attn: Christine R.Norstadt 5353 Gamble Drive, Suite 225
1230 Peachtree Street NE,20th Floor Minneapolis,MN 55416
Atlanta, Georgia 30309
Ironside Operations, LLC
2404 Broadmoor Road,
Nashville, Tennessee 37210
Attn: Luke Brodeur
Kaalberg Giesecke, PLLC
123 South 11th Street
Nashville, Tennessee 37206
10. Miscellaneous. This Agreement(i) constitutes the entire agreement of the parties
with respect to the Temporary Construction Easement, and (ii) may be amended only by a
written instrument executed by the then owners of the Grantor Property and the Grantee
Property. No inference shall be drawn from the addition, deletion or modification of any
language contained in a prior draft of this Agreement. In the event any provision of this
Agreement shall be prohibited by or invalidated under applicable laws,the remaining provisions
of this Agreement shall remain in full effect. If any lawsuit or other similar legal proceeding is
brought to enforce or construe any of the terms of this Agreement, the prevailing party in such
lawsuit or legal proceeding shall be entitled to recover its reasonable attorneys' fees, litigation
expenses and court costs from the non-prevailing party. No waiver of any provision of this
Agreement shall be deemed to have been made unless expressed in writing and signed by the
party charged with making such waiver. No delay or omission in the exercise of any right or
remedy accruing upon a breach of this Agreement shall impair such right or remedy or be
construed as a waiver of such breach, and the waiver of any breach shall not be deemed a waiver
of any other breach of the same or any other provision of this Agreement. All exhibits
referenced herein are attached to this Agreement and incorporated herein by reference.
GRANTOR AND GRANTEE EXPRESSLY WAIVE THEIR RIGHT TO A TRIAL BY JURY
OF ANY CLAIM ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER
NOW EXISTING OR HEREAFTER ARISING. This Agreement shall be governed and
construed in accordance with the laws of the State of Minnesota. This Agreement may be
executed in multiple counterparts, but all such counterparts shall together constitute a single,
complete and fully-executed document.
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IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement as of the
date first written above.
GRANTOR:
KRUEGER LANE,LLC,
a Minnesota limited liability company
By:
/27444"----
Name: V/n ✓61 11;e14
Title: I/i/i ti-' ''
GRANTEE:
TCM TAKE 5 OPH,LLC,
a Delaware limited liability company
By:
Name:
Title:
4888-2578-2717,v.2
STATE OF 'y(.t 11.E Std- )
COUNTY OF fia,nn.e./7•in )
The foregoing instrument was acknowledged before me this I'" day of
, 2020 by Vincent J. Driessen, the Manager of Krueger Lane, LLC, a Minnesota
limited ffability company,on behalf of the limited liability company.
� ►4=.7-":‘r,
SARAH E COLNET
Notary Public
OF
.. ? State of Minnesota
MYJenuary Commises 202 ExpiresNOTARY PUBLIC
STATE OF )
COUNTY OF )
Before me, the undersigned, a Notary Public in and for the County and State
aforesaid, personally appeared Michael Ramsey, with whom I am personally acquainted, and
who upon oath acknowledged himself to be of TCM TAKE 5
OPH, LLC, the within named bargainor, a Delaware limited liability company, and that he as
such , being authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing the name of the limited liability
company by himself as
Witness my hand and seal, at office in
,this the day of ,2024.
NOTARY PUBLIC
My Commission Expires:
4888-2578-2717,v.2
IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement as of the
date first written above.
GRANTOR:
KRUEGER LANE,LLC,
a Minnesota limited liability company
By:
Name:
Title:
GRANTEE:
TCM TAKE 5 OPH,L . ,
a Minn'• ,'ted abili► co ' .any
By: A
Name: Thomas H.Ey: II
Title: Authorized Signatory
STATE OF )
COUNTY OF )
The foregoing instrument was acknowledged before me this day of
, 2022, by Vincent J. Driessen, the Manager of Krueger Lane, LLC, a Minnesota
limited liability company,on behalf of the limited liability company.
NOTARY PUBLIC
STATE OF 6co,�;rt )
COUNTY OF C�.•atlr.}- )
Before me, the undersigned, a Notary Public in and for the County and State
aforesaid, personally appeared Thomas H. Evans, III, with whom I am personally acquainted,
and who upon oath acknowledged himself to be Authorized Signatory_of TCM TAKE 5 OPH,
LLC, the within named bargainor, a Minnesota limited liability company, and that he as such
Authorized Signatory, being authorized so to do, executed the foregoing instrument for the
purposes therein contained, by signing the name of the limited liability company by himself as
Authorized Signatory.
Witness my hand and seal, at office in /cater u. Coni ,
G coy6
,this the "Y ' day of 4' y ,2024.
/ile7 i : C
My Commission Expires:
gi r"
��.V,TE�!, JOHN GARBO
Notary Public,Georgia
�* *E Gwinnet County
%' h.� �� My Commission Expires
sm t January 14,2025
EXHIBIT A
GRANTOR PROPERTY
Lot 1, Block 1, Brackey Fourth Addition, Washington County,Minnesota.
EXHIBIT B
GRANTEE PROPERTY
Outlot A, Brackey Fourth Addition,Washington County,Minnesota.
EXHIBIT C
EASEMENT LOCATION DRAWING
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MITWLEOIC.T011 1 TEMPORARY CONSTRUCTION EASEMENT Re..
IMrdstanorinriellmm r vete 05r11/2214 Project No. 52448