HomeMy WebLinkAbout4.3c EDA - Airgas Temporary Construction Easement - Amendment 3-5-22 clean1
FIRST AMENDMENT TO
TEMPORARY EASEMENT FOR CONSTRUCTION AND ACCESS PURPOSES
THIS FIRST AMENDMENT TO TEMPORARY EASEMENT AGREEMENT FOR
CONSTRUCTION AND ACCESS PURPOSES (this “First Amendment”) is entered into as of
, 2022 (the “Effective Date”), by and between Airgas USA,
LLC, a Delaware limited liability company (“Airgas”), and the Cottage Grove Economic
Development Authority, a public body corporate and politic organized under the laws of Minnesota
(“EDA”).
RECITALS
Recital No. 1. Airgas and EDA entered into a Temporary Easement for Construction
and Access Purposes dated May 10, 2019, recorded as Document No. 4193102 on May 14, 2019
in the Washington County Recorder’s Office (“Agreement”), for a temporary construction and
temporary access easement under, over, across, through and upon the property identified as EDA’s
Property in the Agreement.
Recital No. 2. Airgas has requested the Agreement be amended to extend the duration
of the Agreement.
Recital No. 3. The EDA does not object to the extension.
NOW, THEREFORE, in consideration of the mutual promises and covenants of each to
the other contained in this First Amendment and other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto do covenant and agree as follows:
1. Paragraph 2 of the Temporary Construction Easement Section of the Agreement shall be
removed and replaced in its entirety as follows:
2. Such rights for the West Staging Area shall commence on the Effective Date and
shall continue until December 31, 2021 on which date the Easement for the West
Staging Area shall expire. Such rights for the North Staging Area shall commence
on the Effective Date and terminate as provided in this Agreement.
2. Paragraph 3 of the Temporary Construction Easement Section of the Agreement shall be
removed and replaced in its entirety as follows:
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3. Airgas shall pay EDA $11,000 per year for 2019, 2020, and 2021 and $916.67 per
month for 2022 for the North Staging Area and shall pay EDA $30,000 for 2019
and $15,000 for 2020 and 2021 for the West Staging Area. EDA acknowledges
Airgas paid $41,000 for both Staging Areas for 2019, $26,000 for both Staging
Areas for 2020, and $13,000 for both Staging Areas for 2021, leaving a current
balance of $13,000 for 2021. Airgas shall also pay EDA $4,000 for administrative
costs. Payment for any outstanding payments shall be due and payable by the
Effective Date of this First Amendment. Monthly payments for the North Staging
Area shall be made on or before June 1, 2022, unless this Temporary Easement is
terminated earlier, in which case, payment shall be made upon notice of
termination.
3. Termination paragraph of the Temporary Access Easement Section of the Agreement shall
be removed and replaced in its entirety as follows:
The City of Cottage Grove, a Minnesota municipal corporation (“City”), shall inspect the
West Staging Area by April 1, 2022 to ensure restoration has been completed. If restoration
has not been completed to the satisfaction of the City, the City shall provide notice to
Airgas and Airgas is hereby granted a right of entry to complete such restoration to the
City’s satisfaction. Upon satisfactory completion of the restoration, the right of entry
thereafter expires immediately. If no notice is given to Airgas regarding any additional
restoration, the Temporary Access Easement for the West Staging Area expired on
December 31, 2021.
Airgas shall provide written notice to the EDA upon completion of all restoration of the
North Staging Area. The City shall inspect the North Staging Area and upon satisfactory
completion of the restoration, the Temporary Easement shall terminate, and all payments
shall be due.
The restoration for both Staging Areas shall be deemed complete upon the removal of any
silt fencing, removal of any common excavation piles, removal of any piles of Class V,
and completion of fine grading of the disturbed area and completion of seeding and
mulching of the disturbed area.
4. Except as provided for above, the terms and provisions of the Agreement shall remain in
full force and effect.
5. This First Amendment and all disputes or controversies arising out of or relating to this
First Amendment, or the transactions contemplated hereby shall be governed by, and
construed in accordance with, the internal laws of the State of Minnesota, without regard
to the laws of any other jurisdiction that might be applied because of the conflicts of laws
principles of the State of Minnesota.
6. Nothing contained herein shall be deemed a waiver by the EDA of any governmental
immunity defenses, statutory or otherwise. Further, any and all claims brought by
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Developer or its successors or assigns, shall be subject to any governmental immunity
defenses of the EDA and the maximum liability limits provided by Minnesota Statutes,
Chapter 466.
7. This First Amendment may be executed in two or more counterparts, all of which shall be
considered one and the same instrument and shall become effective when one or more
counterparts have been signed by the parties and delivered to the other parties.
8. This First Amendment shall not be amended, modified or supplemented, except by a
written instrument signed by an authorized representative of each party.
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COTTAGE GROVE ECONOMIC
DEVELOPMENT AUTHORITY
By:
Myron Bailey
President
By:
Jennifer Levitt
Executive Director
STATE OF MINNESOTA )
) ss.
COUNTY OF WASHINGTON )
On this _____ day of _______________, 2022, before me a Notary Public within and for
said County, personally appeared Myron Bailey and Jennifer Levitt to me personally known, who
being each by me duly sworn, each did say that they are respectively the President and the
Executive Director of the Cottage Grove Economic Development Authority, a public body
corporate and politic organized under the laws of Minnesota, named in the foregoing instrument,
and that it was signed on behalf of said entity by authority of its Board and said President and
Executive Director acknowledged said instrument to be the free act and deed of said entity.
Notary Public
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AIRGAS USA, LLC
By:
Its: President
STATE OF )
) ss.
COUNTY OF )
On this _____ day of _______________, 2022, before me a Notary Public within and for
said County, personally appeared , to me personally known,
who being by me duly sworn, did say that he is the President of Airgas USA, LLC a Delaware
limited liability company, and that the foregoing instrument was executed on behalf of the company
and acknowledged said instrument is the free act and deed of said company.
Notary Public
This instrument drafted by
and after recording, please return to:
Korine L. Land (#262432)
Cottage Grove City Attorney
LeVander, Gillen & Miller, P.A.
1305 Corporate Center Drive, Suite 300
Eagan, MN 55121