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Home My WebLink AboutCCP 07-21-1997 FilE b~ ::.-- -_ DRAFT AGENDA ARDEN HILLS CITY COUNCIL WORKSESSION - ARMY RESERVE CENTER - 4655 LEXINGTON A VENUE NORTH - MONDAY, JULY 21, 1997,4:45 P.M. - . 4:45 P.M. 1. Call to OrderlRoll Call I 4:45 P.M. 2. Approval of Meeting Agenda 4:50 P.M. 3. City Issues - Short Term I a. 1998 Preliminary Budget Issues b. 1997 Street Review ProcesslI 998 Improvements/Budget Impacts c. South Water Tower, Pittsburg Tank & Tower Report Review I d. Tobacco Compliance e. Council/Committee/Staff BBQ f. Preparation for Town Hall MeetinglRetreat I g. Welsh Draft Development Agreement Ie 6:40 P.M. 4. City Issues - Long Term 6:45 P.M. 5. Miscellaneous Items I 7:15 P.M. 6. Adjourn I I The above times may vary depending upon length of issue discussion. M:IUSERSISHEILA ICOUNCILIAGENDASI WORKSESSI W.0721.AG I I I I it I ----------- .July Meetings Au!!ust :\Icctin::s July 2 Planning Commission 7:30 P.M. August 6 Planning Commission 7.30 P.i\1. .- July 14 Council Meeling 7:30 P.M. August II Council1\1ceting 7:30 P.M. July 16 Business Development 8:00 A.M. August 18 Council \\'orkscssion 4:45P.M. Committee - August 20 Business D~velopment g.OO A.M. July 17 Business Relations 3:30 P.M. Committee - Committee August 21 Finance Committee 7:30 P.M. . July 17 Finance Committee 7:30 P.M. August 21 Public Sofety 7:30 P.M. July 17 Public Sofety 7:30 P.M. Commission I Commission August 25 Economic Development 7:00 P.M. July 21 Council Workse5sion 4:45 P.M. Authority . July 22 Porks & Recreation CANCEL Augusl25 Council Meeting 7:30 P.M. Com miss ion August 26 Parks & Recreation 6:00 P.M. . July 28 Economic Development 7:00 P,M. Commission Authority August 27 Newsletter Committee 6:00 P.M. . July 28 Council Meeting 7:30 P.M. August 27 Hwy. 96 Task Force 7:00 P.M. July 30 Newsletter Committee 6:00 P.M. July 30 Hwy. 96 Task Force 7:00 P.M. e. . . . I . . . .-. . .,&...~ \\-Q,.s '7~,).\ WK~~5. . , 'Msl~ . Howard R, Green Company -. m\.\II.IL\&E\mmRS CONSULTING ENGINEERS Formerly MSA - Consulting Engineers - July 21, 1997 I File: 520080J - Mr. Brian Fritsinger City of Arden Hills - 1450 West Highway 96 Arden Hills, Minnesota 55112 I Re: 1998 Street Improvements I Dear Mr. Fritsinger: As requested, we have prepared this letter to initiate the 1998 Street Improvements process for I the City of Arden Hills, As in the past, we propose that this issue be addressed with the City Council at a work session to discuss any concerns or improvements that have arisen out of past projects. This letter will address four primary areas; specifically, the 1997 Street Improvement I . process, the 1998 Street Improvement process, the streets proposed for the City's consideration in 1998, and the potential costs of a project encompassing any or all of the streets proposed. I I will be present at your July 21, 1997 Council work session to address both staff and Council concerns related to either past, present, or future pavement management projects within the City of Arden Hills. I 1997 Street Improvements As you are aware, we began the 1997 Street Improvements process in the fall of 1996 in order I to hold informational meetings prior to the end of 1996. As Minnesota State Statute requires that a detailed preliminary report for these projects, the feasibility study was initiated in late September and completed in early November. Informational meetings and the Public Hearing I were held in early December and the plans were prepared through the winter. The project was bid in late February in an effort to obtain the most competitive bids available and an award was made to Valley Paving, Inc. in May of 1997. This allowed the City's project to be placed high on I the Contractor's list of priorities and, as a result, we are very near completion with only the placement of the final lift of pavement and boulevard restoration remaining. I There were few problems encountered in the updated 1997 process; however we offer these suggestions in order to alleviate potential issues that were discovered through the course of the past year. I . Several residents voiced concern with the timing of the informational meetings and hearings as many people are out of the state between the Thanksgiving and Christmas/ New Year's . holidays. Holding either one, or both of these meetings prior to Thanksgiving might allow I more resident input on the suggested list of streets receiving improvements. I 1326 Energy Park Drive. St. Paul, MN 55108 . 612/644-4389 fax 612/644-9446 toil free 800/888-2923 . Mr. Stafford felt that bidding the project earlier in the year may produce even more competitive bidding on such a project. This would require the preparation of plans and specifications to be completed by the first of January in the year of construction. . Streets requiring easement acquisition have proven to delay or slow the process - substantially. Initiating that process at the time of the feasibility study approval will increase . the probability of a successful project. . Coordination with private utility companies has been an ongoing obstacle; however, we I have encountered much less conflict this year than seen in years past. We maintain that the earliest possible notification of the streets proposed in the project, in conjunction with the presentation of preliminary plans, at a minimum, has a substantial impact on - streamlining the coordination of these issues. 1998 Process I As we are nearing completion of the 1997 Street Improvement project, staff has indicated their desire to begin looking to the 1998 proposal. As a result we have prepared this letter in an effort to present the City Council with some improvements over past years and considerations I for future projects. By initiating a feasibility study in August, the City could hold the informational meetings in early I November. This would accomplish several items that will continue to improve the City's PMP process. First, we will have a better opportunity to involve a higher percentage of affected residents by having these meetings before many leave Minnesota for the winter season. I . Second, we will be notifying these residents even further in advance of the project, which has historically furthered the effort towards developing a more cooperative relationship between citizens, staff, and the engineer. Finally, it will allow us to discuss the improvements before I snow cover hides potential problem areas within the limits of the project areas. As a result of these suggestions and consideration for the suggestions outlined in the previous section of this letter, we would offer the following schedule for the 1998 Street Improvement process. I Item to be Completed Proposed Date of Completion Authorize Feasibility Report August 11, 1997 I Council Receives Feasibility Report September 29, 1997 Hold Info. Meetings & Public Hearing October 21, 23, & 27, 1997 Order Project and Plans & Specifications November 10,1997 I Council Approves Plans & Specifications January 12, 1998 Council Receives Bids February 9, 1998 Hold Assessment Hearing March 9,1998 I Award Contract April 20, 1998 Begin Construction May 4, 1998 Complete Construction July 30, 1998 I This proposed schedule would allow an early bid letting, early construction, and a more comfortable schedule for the City to complete the Minnesota Statute 429 process for local public improvements. This in turn should create more competitive bidding, a higher project I priority with the Contractor, and a more expeditious construction process through the summer of 1998. . Any additional comments, concerns, or suggestions from City Staff or the Council are I encouraged and should be evaluated and considered with those listed above for inclusion in the 1998 pavement management program. I A\080-2111.jul.doc 2 . Streets Proposed in 1998 The following list of streets are those offered for City staff and Council consideration in accordance with the 5-year pavement management program outlined in 1997. These inciude the addition of West Round Lake Road as a result of continued development in that area and . consideration for streets deleted from last year's street improvement project. (See attached Exhibit) .;'1 Reconstruction ,p Mill & Overlay Seal Coat .1,.1 ,\< Y. - .~J; West Round Lake Rd. '<-"'r' Thom Drive Crystal Avenue -;~,'-Stowe Avenue .', -'!<Edgewater Avenue Dellview Avenue Edgewater Avenue .j\ Glenpaul Avenue Norma Circie I Indian Place Sandeen Road Gale Circle / Fairview Avenue Lake Lane James Circie "- Valentine Court Glenhill Road Dunlap Street I N. Hamline Avenue N. Snelling Avenue I Potential 1998 Project Costs I . The project costs for the proposed work scope include both construction, engineering, and administration costs for the purpose of assisting the City in budgeting for the project. It is anticipated that the overlay portion of the project will cost approximately $170,000, of which approximately 50% will be assessable. The scope of seal coating is less this year than years I past and it is estimated at $25,000, all of which is considered a City cost. The following estimates are presented for each respective street being considered for I reconstruction: Street Name Project Cost I ';"'-West Round Lake Rd. $1,400,000 j(Stowe Avenue $ 95,000 (50% split with New Brighton) I 1- Edgewater Avenue $ 180,000 Indian Place $ 40,000 Fairview Avenue $ 190,000 Valentine Court $ 120,000 I N. Hamline Avenue $ 110,000 (design complete) N, Snelling Avenue $ 106,000 (design complete) I Funding sources for the streets presented above inciude the following: . Approximately $50,000 in County Turn-back funds if Stowe Avenue is completed. I . Up to $95,000 eligible for MSAS funds if Stowe Avenue is completed and added to the City MSAS system. .. . Up to $1,000,000+/- in State Aid dollars for the reconstruction of W. Round Lake Road" . Remaining sources inciude the City's PIR fund, SWM fund, and assessments to benefiting properties in accordance with the City of Arden Hills' current assessment policy. I A:\080-2111.jul.doc 3 . . NOTE - A more detailed analysis of actual MSAS resources will be required through the preliminary report process as the account balances, loan availability, and bonding desires of the City all playa part in these dollars. I We anticipate this letter will adequately provide you with the information necessary to begin developing a 1998 Street Improvements Project. It is recommended that the feasibility study be initiated in mid to late-August in order to implement the process improvements outlined in this I letter, in addition to any additional suggestions staff or Council may have related to the Pavement Management Program. Sincerely, - - Howard R. Green Company J G~;~b- I . Enclosures . cc: Mr. Brian Fritsinger . . . . . . I I . .. . A:\080-2111.juLdoc 4 ! . T WIN CI TI S 0 DNA N C E P L 1\ N T 'I' 6/1 ~'i' ;/ , ! I r~\1 I ! ; I; : ," ~! ~ ~ !" , _I Il I Ii i ,,~~ " - ::! I ~ ,,""""" -. J /~ "", ( \)'~\ I I I I LEGB{) """""'-1997 RECONSTRUCT 1991 OV:-:RLAY ":u:1997 St:AL COAT _1998 R:::CONSTRUCT I ,':",:',19980V'::RU\'; .....1998 S::AL COAT 1999-2001 RE:::ONSTRUC! '''0'''199>1-2001 OVERLAY 1999-2001 SE,4L COAT I I I , ! ! " I c:~ !jr'~! ~ I ./ \~\ ( . -_#~" ~, '. ""o.._____-..:--- ':...: -" -, '~ c '-" '" ~ (C_::' ,." , " I_J : ,~ o ~ i.' I CITY OF ARDEN HILLS I ~,R;,= CoolPffiY 5 YEAR STREET IMPROVEMENT PLAN AHPldMl . .. '" ~ flit:- , w~' , '''''7-~1 . . CITY OF ARDEN HILLS MEMORANDUM - DATE: July 21, 1997 - TO: Brian Fritsinger, City Administrator - - FROM: Terrance Post, City Accountant ~ 1 SUBJECT: 1998 Budget Process Planning Issues I A. 1997 Estimate 1. General Fund Building Permit revenues will result in a surplus estimated at over $100,000. Coupled with strong first half property tax collections, is there any 1 Council direction on how to utilize these unexpected revenues (e.g. pull-in 1998 CIP items, deal with Hamline Avenue and/or Snelling Avenue frontage roads)? 1 2. Strong first half property tax collections and declining commercial property tax appeals suggest that the 1998 property tax delinquency rate assumption could be reduced from that used in the 1997 budget (3.35% - $61,270). I. 3. Staff is intending to make unbudgeted 1997 Administration capital expenditures 1 to replace existing computer workstations and the network server. The planning assumption is that this hardware would transfer to the new facility. I 4, Within the Street Maintenance Department, $48,000 was budgeted, and levied for, in conjunction with the County's Cleveland A venue bridge reconstruction project. However, recent information indicates that this will be a 1998 project. Suggestion I to run a $48,000 General Fund budget deficit in 1998 (i.e" expenditures exceeding revenues). 1 B. 1998 Preliminary 1. Administration 1 a. Issue of how aggressive to be in allocating Community Development Director salary into TIF administration (5% currently), I b. Staff resources in planning/code enforcement area. Issue of adding staff or internship to focus on code enforcement and updating the City's historical . zomng map. c. Contract renewals for residential curbside recycling and animal .- enforcement as both expire December 31, 1997. I , . Memorandum - 1998 Budget Process Planning Issues Page Two July 21, 1997 - d. Anticipation that the D/TED Phase II loan to CPI ($200,000 forgivable; - $100,000 payable to Arden Hills) is accomplished in 1998. I 2. Public Works a. Can replacement plow truck #101 be ordered in 1997 for early 1998 delivery? I b, Does Council anticipate funding 1998 Pavement Management Program I (PMP) at historical ($150,000) or 1997 levels ($192,000)? c. The department wishes to continue an annual line televising program to I ascertain the condition of the City's sanitary sewer lines. d. Updates required from the City Engineer to evaluate costs of repairing I most critical areas from results of 1997 sewer line televising. With recent heavy rainfalls and resulting ponding, staff has been refocused e. I . on accelerating pace of ditch cleaning for the surface water management system, Is this a valid utility trade off of expenses once 509 projects are completed? . f. The completion of a new City Hall will result in increased operating expenditures. Suggestion has been made to create a separate department I to accurately capture cost characteristics of the new facility. I g. The 1997 experiment of hiring temporary public works maintenance employees has been positive, but staff still wishes to pursue other outsourcing options including meter reading and lift station maintenance . to reduce costs and/or increase productivity. 3. Parks I a. Given levy limits and other budgetary pressures, does the Council wish to continue the $16,300 level of General Fund operating transfer support to subsidize the Fund 226 recreation program catalog? For comparative I purposes, the 1997 budget included $10,700 for ten issues of the City Newsletter (Mayor & Council Department) and $19,325 for four issues of the recreation catalog, I .e I , . ; . Memorandum - 1998 Budget Process Planning Issues Page Three July 21,1997 - b. Given the recent increased capital outlay for trail development, would a - separate department that captures trail maintenance be useful? In terms of . information, would it provide as much or less information than the - existing Skating Rinks Department? I c. As the Summer Playground Department has common characteristics with Recreation Fund No. 226 (i.e., fees for service), would Council support the I moving of these activities from the General Fund No.lOl to Recreation Fund No. 226? d. Given the recent washout of a portion of the Karth Lake trail, are the I corrective action costs most appropriate as an unbudgeted expenditure of the Park Maintenance Department of the General Fund or of the Park I Fund? C. Updated Capital Plans I . After input from staff in meetings last week, updated capital budget schedules are enclosed, The only changes were in the Parks Capital Plan. I I . . . I . .e . ..;.~i ~.~. ~.I~.I~. ~~. ~~. ~.~ ~ !~~. a ala!!~ !!~. ~ "'. 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City Admi..I~'" ~ - - FROM: Kevin Ringwald, Community Development Directo~ I SUBJECT: Code Enforcement Activities I Given, the workload that is being requested to be completed by the Community Development Department code enforcement in the City is receiving less attention than was previously afforded I to it. Also, the community survey did express an interest in improving code enforcement. To these ends, I would recommend that monies be set aside in the 1998 budget for an intern whose I principal responsibilities would be code enforcement. The other activity that the intern could be of assistance to the department would be in researching I and producing chronologically correct zoning maps using City ordinances and the GIS, The result of this exercise would ensure that the current zoning map is correct and provide a historical analysis of zoning in the City (In certain land use court cases that I have been involved in this has I , been a pivotal piece of information). If you require any additional information or wish to discuss this further, then please let me know. I cc: Dave Scherbel, Building Official/Code Enforcement Officer I I I I I I I- I I 'ii ,..'""~ ;'-; ;J,:~,..<1I! i' )_).\ W~ , 11 !!_~~-iq I CITY OF ARDEN HILLS t' MEMORANDUM DATE: July 17, 1997 I TO: Brian Fritsinger, City Administrator (] / fJ I FROM: Cindy S. Walsh, Parks and Recreation Director 5> SUBJECT: Snow plowing Trails and Sidewalks I Background I As our trail system expands, I continue to receive requests to clear the trails and sidewalks during the winter. This issue has been discussed since 1994 by the Public Works and Safety and Parks and Recreation Committees and staff. In the past, it appears that the cost of purchasing I appropriate equipment was the main reason for not clearing the trails and walks. Survev of Trail Snow olowin2: Procedures in Other Cities I I surveyed 23 cities in an effort to obtain information regarding the snow plowing and winter maintenance of trails and sidewalks. Of the 21 cities that responded, all of them plow the trails and/or sidewalks to some extent. Some results of the survey are as follows: .. · Most of the cities with a lot of miles of trails have a set policy which prioritizes the clearing of areas. · The majority of cities use either the Trackless tractor MT (a specialize trail clearing vehicle) or I a bobcat/skid steer with a plow or snow blower. · 11 plow the trails and walks the next scheduled work day, 9 cities clear the day after it snows, and one city clears within 24 hours even if it requires overtime pay. I " Eauioment Ootions and Cost I If the City decides to provide winter maintenance on the trails and walks, there are four options for purchasing equipment or attachments for existing equipment. I Purchase of new equipment Cost 1. Trackless MT $60,000 2. Used Trackless MT $20,000-$25,000 I Attachments for existing equipment (skid steer) 3. Utility Snow Blade(plow) $2,500 I 4. Snow Blower $7,000- $8,000 The trackless MT would do the best job in the shortest time; however, with the limited trail I system that we have, it is difficult to justifY an expenditure of $60,000 for a new vehicle. The utility snow blade plow would work fine for trail areas that have space on both sides for snow tI storage. Areas where the snow has to be directed in a certain place would be difficult with the I ------ I plow, An example of one such area is the sidewalk along Hamline Avenue. The last option is to I purchase a snow blower attachment for the skid steer. Although areas would not be cleared as quickly as the trackless MT, this blower does have a discharge chute that can be adjusted to blow .. snow in several directions. Reasons to clear the trails in the winter I I. In order to be eligible for future grant money from the state, we will have to provide year- round use. 2. The City spends a considerable amount of money to construct trails that without winter I maintenance are only useable for about 7 months of the year. 3. Trails are used by a variety of age groups. We do not do much programming for older adults, but they do use the trail system, I Recommendation I would like the City to consider adopting a winter maintenance policy for trails and sidewalks. I The Park Maintenance staff can plow the trails during the winter months as time allows. I would not be in favor of a policy that requires areas to be cleared within 24 hours. The best option for equipment is to purchase a used Trackless MT or a snow blower for the existing skid steer. I Given the trail mileage we currently have, an expenditure of$20,000 for a used Trackless MT seems excessive. I may be possible to share the cost of the equipment with a neighboring city. If the Council would like to clear the trails on a trail basis without investing a lot of money, the I utility snow blade plow is the most economical option for approximately $2,500. The Parks and Recreation Committee recommended clearing the trails during the winter using a tJ plow or snow blower attachment because of the cost of purchasing the Trackless MT. They brought up the possibility of clearing only the areas that do not require hauling snow out; such as I the sidewalk on Hamline where the retaining wall exists. If trails are to be cleared, we should begin the first time it snows. Therefore, the equipment I would have to be purchased in 1997 ( given the fact that it usually snows before January). I I I I I .. I - -- .---.- I I CITY OF ARDEN HILLS ,. MEMORANDUM DATE: July 18, 1997 I TO: Mayor and City Council I FROM: Brian Fritsinger, City Administrato@ SUBJECT: Administrator Comments for the July 21,1997 Council Worksession I 1. City Issues - Short Term I a, 1998 Budget Staff will be providing a compilation of the various issues which will effect the I preparation of the 1998 Budget. The Council will be asked to provide some input which will be of assistance as staff evaluates various programs for 1998. I b. 1997 Street Review P,'ocess 0998 ImprovementslBudgeO Mr. Stonehouse will be in attendance to discuss the status of the 1997 street improvement project and review any comments related to the process followed Ie this year. He will also be presenting some of the basic information related to the streets projected for completion in 1998. I c. South Water Tower, Pittsburgh Tank & Tower Report Review Mr. Stonehouse has reviewed the Pittsburgh Tank and Tower Report and I proposed a response to the various suggestions made by Pittsburgh. Should the City Council find these suggestions appropriate, the Council will be asked to authorize the preparation of plans and specifications at a future meeting. I d. Tobacco Compliance The Minnesota State Legislature recently adopted new regulations affecting the I enforcement of tobacco regulations. The City Council should discuss how it would like to proceed with compliance relating to these new regulations. I e, Council/Committee/Staff BBO The City Council is asked to provide additional input for the 1997 BBQ, I I fI I I Administrator Comments for the July 21, 1997 Council Worksession I Page Two July 18, 1997 -- f. Preparation for Town Hall MeetingfRetreat I The City Council should begin preparing for the 1998 Town Hall Meeting & Retreat. At this time, staff would be seeking direction as to the timing of these events. I g. Welsh Draft Development Agreement Enclosed the City Council will find the preliminary draft of the Welsh I Development Agreement. Staff will be meeting with Dick Zehring prior to the meeting to begin our formal negotiations on this document. Mr. Ringwald will be outlining the various aspects of this agreement for the City Council. I M:\USERS\SHEILA\CQUNCIL\ADl\UNCO!\f".7 -21 WORK WPD I I ~ I I I I I I I -- I I' - Rl--iJ:i\fF=i] ._ ""._ .:,.._1 ,.. "' ' I ,jUL 10 1997 {ilY Vi ;\RUUi rilL/.' MSL it Howard R, Green Company IO\~II:rI\I,i:\IiI\H.H~ CONSULTING ENGINEERS Formerly MSA I MEMORANDUM Consulling Engineers I TO: Dwayne Stafford Public Works Superintendent City of Arden Hills I FROM: John R. Hemming, P.E. I DATE: July 10, 1997 RE: 1,000,000 (1,0 MG) Water Tower I FILE: 520-085-10 I As requested, we have reviewed the 1996 Pittsburg Tank and Tower inspection report for the 1.0 MG Water Tower. In order to properly review the report, a brief re-inspection of the water tower Ie was performed. The water tower was constructed and painted in 1987 and is in overall very good condition. The Pittsburg Tank and Tower recommendations and price quotes are summarized below. Our I comments and recommendations are listed to the right of the Pittsburg Tank and tower comments. I Pittsburg Tank and Tower Company Howard R. Green Company Recommendations and Quoted Price Comments and Recommendations I 1. Drill drain holes in the condensate Not necessary nor recommended. Defeats ceiling; $710 the purpose of the condensate ceiling. I 2. Replace all ladders and safety climb The City has installed updated safety climb devices; $22,341 devices. The ladders are generally in compliance with OSHA and AININA I (American Water Works Association) requirements and standards. Ladder Replacement is not necessary. However, I minor modifications are recommended to provide adequate toe clearance at the condensate ceiling. Estimated cost: I $1,500. .- I 1326 Ener9Y Park Drive. SI. Paul, MN 55108 . 6121644.4389 fax 6121644.9446 toll free 800/888,2923 - 'I I Pitts burg Tank and Tower Company Howard R. Green Company .. Recommendations and Quoted Price Comments and Recommendations 3. Pressure wash interior dry surfaces, A complete power wash is not necessary. spot repair a small area of peeled Cleaning isolated mildew spots is I paint; $9,500 recommended, and the small area of peeled paint should be repaired. Estimated cost: $1,200. I 4. I nstall confined space entry signs near Not common practice Not required since the roof openings; "free with order" City closely controls access to the roof area I and can ensure that only qualified personnel are allowed to enter the tank. 5. Install lightning protection on the water Not common practice in this area. Not I tower; $1,250 recommended by Kaeding & Associates, our electrical subconsultant. 6. Spot sandblast, spot prime, brush Based on the photos in the 1996 report and I blast all surfaces, stripe coat seams, on an inspection from the roof hatch, with the and topcoat entire tank interior; tank full, it appears that the tank lining is in I $95,100 good condition and that only minor spot repairs are required. Repainting the entire tank interior is not recommended at this time. .. Estimated cost: $15,000 to $30,000 7. Pressure wash the tank exterior; Not necessary at this time. $13,500 I 8. Install a new tank vent to relieve Ice build-up on the screen has not been a vacuum or pressure in case of ice problem. Vent modifications such as I build-up on the vent screen; $4,810 replacing the metal screen with a fiberglass reinforced nylon screen would lower the potential for ice build-up on the screen. I Estimated cost: $500 In summary, the recommendations and quotes made by Pittsburg Tank and Tower appear to be I excessive, high priced, and based, in part, on possible misinterpretation of OSHA and AWWA codes and standards. The Pitts burg Tank and Tower recommendations and price quotes total $147,211. I Based on our evaluation, minor modifications and repair work are recommended, with an estimated cost of $18,200 to $33,200. Since a detailed examination of the tank lining is not possible without I draining and rigging the tank, the first step in a maintenance and repair contract should be to rig the tank interior and thoroughly examine the tank lining. Since the need for additional work may be identified after a detailed examination of the tank interior, the City should consider budgeting I for a total construction cost of $50,000. It is recommended that the maintenance and repair work be completed in 1997 or 1998. If the City .. would like to proceed with the project, the City should authorize the preparation of specifications Howard R, Green Company I CONSULTING ENGINEERS - I' 1 for the maintenance and repair work. Specifications could be prepared and presented for approval It atthe August 11, 1997, Council meeting. Feel free to call me at 644-4389 with any questions about this submittal. I JRH:pd 5201085-1004.jul 1 I I I I Ie I I I I 1 I 1 if Howard R, Green Company I CONSULTING ENGINEERS ------.--- ------ --- I ~ Xorth Suburban I Tobacco Conlpliance Project -_._----- --- ---..-- ___.'_____H.._____"..._"__.__n__". It Falcon Ikighr..... :\Japkwf)od' :'\c....\- Bd4hloll ' :\'onh ~t. Paul. Ro..;c\'i1k. ~It()r(."\i(:"\\"' \\"hik rkat" I,,'l.}.;:C 23 June 1997 RECEIVED I City of Arden Hills jUri 24 1997 Brian F ritsinger, City Administrator 1450 W. H,,'Y 96 CiTy Ur ARDt~1 HILLS I Arden Hills, MN 55 112 Dear Brian: I Hello' I am the project coordinator for the North Suburban Tobacco Compliance Project (NSTCP). I contacted each of you in the last few weeks via letter and phone to introduce myself and to introduce you to I our tobacco program. My hope was that you would be interested in joining our program and contributing to our primary goal of reducing youth access to tobacco. Many of the non-participating cities 1 contacted were interested in getting on board, however the timing was not a critical issue -- until now. I As most of you know, Govemor Carlson recently signed the youth anti-smoking bill which will affect all of you starting August l, 1997. After speaking with a few of the cities since the law was signed, I discovered I that there was much confusion about what was included in the new law and what was required of each city. Below is a breakdown of the new law to help YOll clarify how it will affect you: Ie NEW STATE LA\V: (Effective August 1, 1997 -- cities may exceed any of these minimum standards.) License fee: Required. Fee to be set by licensing authority. Currently city fees range from $25 - $300. I Compliance checks: At least one per year required. I Prohibit vendin~ machine: Yes, unless establishment cannot be entered by minor. Most bars do not qualify. I Self-service prohibited' Self-service is prohibited of single packs of cigarettes or smokeless tobacco. Multipack displays OK. It excludes "tobacco-only" retail establishments. FDA regulations are scheduled to go into effect August I 997 and those regulations ban all self service. I Seller over] 8' Not specified in law. I Administrative clerk penalties (in a 24-month period): $50.00 administrative fine. No provision for multiple offenses. I Penalties for minors in a 24-month period' Currently this is a petty misdemeanor. If a MN driver's license or ID is used in an attempt to purchase, then: 1st: 90 day suspension of driver's license. 2nd: may revoke license until l8 (may OK work privileges). Licensing authority is encouraged to develop a variety of I diversion options in conjunction with schools, parents, community groups. Funded by: t' ~SIST Minnesota ASSrST is a shared project between the Minnesota Department of Health, the American Cancer Society. Minnesota Dil'ision. and the communities of Minnesota and is funded by the National Cancer Institute I City of Rose\uk Police Department' 2660 Chie Center Drive. Rose\ille, MX 55113 I',L,\:: 490..2270. Pager: 740,6102 North Suburban I Tobacco Compliance Project I ---- - -----~- ---~-------.-.__._-_.~ _.------------- --- Falcon Ikight~. .\Iapkwood. X~\\" Brighton. ;'\(wth St. Paul. l{os~\ilk. Shol"C\i.:\,,"' \\lIitc Bear 1.-<'1..kc .. Adult over] 8 who lends MN driver's license or ID to minor lfa MN driver's license or ID is lent to a minor who attempts to purchase, then the lender is subject to a 90-day suspension of driver's license. Notice of a proposed local ordinance is required At least a 30-day notice to licensees is required prior to I amending your current ordinance. ### I The NSTCP, with current members White Bear Lake, Shoreview, New Brighton, Falcon Heights, Roseville, Maplewood and North St. Paul, has continually reached its goal of reducing youth access to I tobacco. This is our fourth year of operation and after our first rOlll1d of compliance checks for this year, we reached an average compliance rate of89% -- the highest rate yet! The NSTCP conducts two compliance checks a year of all licensed tobacco vendors. We coordinate the I law enforcement agencies, cities and student compliance checkers. We also have a public relations and media relations program, compile compliance check results, hold quarterly meetings with participating I cities and organizations, recruit and train student compliance checkers, conduct two training workshops a year for all licensed tobacco vendors and their employees, distribute project updates to all NSTCP members and keep open and ongoing communication among all cities, law enforcement agencies, related I organizations and communities. The tobacco program currently costs each city $350 with an additional fee of approximately $11 per vendor. The 97/98 rates will be slightly higher for the per vendor costs, however the base rate of $350 will remain the same. .. The NSTCP is an established and successful program that offers many benefits for your city at a minimal cost. As I mentioned earlier, the law goes in to effect on August l, 1997, which means your city will need I to either decide to handle this all internally, or make a commitment to the NSTCP. We would be thrilled to have your city participate in our program. We also have other resources which we can pass on to you. For example, the League of Minnesota Cities is working with other interested groups to develop tobacco materials. As soon as these materials are available we will pass them on to you. I I know you will need time to discuss this with your city council, but I will be contacting you in the next few weeks to talk about this further and to answer any of your questions. In the meantime, please feel free to I call me at 770-3394 if you have any questions. I look forward to talking with you. I ~ Susan Richter-Eggert I Project Coordinator I l:;'undcd hv: I \&~IST Minnesota ASSIST is a shared project betu:een the Minnesota Department ollIealtlt, .. the American Cancer Society, Minnesota Division, and the communities of Minnesota and is funded by the 1Yatiorwl Cancer Institute City of Rosc\il1e Pollee Dc-paranent. 2660 Chic Center Ddyc. Rosc\il1c, ~IX 5.:;113 I Fax: 490.2270. Pager: 740,6102 I I CITY OF ARDEN HILLS I- MEMORANDUM DATE: July 16, 1997 I TO: Mayor and City Council I FROM: Brian Fritsinger, City Administrato~ I SUBJECT: 1997 Coullcil/Committee/Staff BBQ I Over the past several years, the City Council has held a fall barbeque to honor the efforts of its volunteer committee's and City Staff. In preparing for this event, staff would like to confirm the following: I 1. Date: September IS, 1997 at 6:00 p.m. . This would allow for a brief worksession to be held prior to the BBQ. 2. Attendees: I~ Committee Members - 49 Mayor and Council - 5 Staff - 21 I Total 76 The City Council may also wish to consider inviting the various parks and recreation I coaches/instructors. This is estimated at 50 individuals. 3. Miscellaneous: I Please let me know if you have any other thoughts on the amount or type of food used. As in the past, I anticipate the mayor cooking the food. (Or, as he's done so I well in the past, delegate the cooking to someone else.) The Council may also wish to discuss whether or not we should rent a tent for the I day. (yVe've been fortunate in the past to have nice, sunny evenings.) I I I- I , I I CITY OF ARDEN HILLS ~ MEMORANDUM DATE: July 21, 1997 I TO: Mayor and City Council I FROM: Kevin Ringwald, Community Development Director~ I SUBJECT: Development Agreement (first draft), GBD Phase II, III, and IV Attached to this memorandum the City Council will find the first draft of Development I Agreement between the City and Welsh Companies for Phases II, 1II, and IV of the Gateway Busincss District (Exhibit A). I As with most development agreements it is attempting to define what the responsibilities of the City will be (Public Improvements), what the responsibilities of the Developer will be (Construction Improvements) and how those improvements will be paid for (Tax Increment, I Mortgage Financing, and Assessment Agreement). Ie The Staff is providing a copy of the first draft to the developer and the City Council, in hopes that, consensus can be reached so that the Development Agreement can be approved by the City Council at its August 11,1997 meeting. I I I I I I I .. I ----- , , I OS/28/97 I .. DEVELOPMENT AGREEMENT I I By and Between I ARDEN HILLS ECONOMIC DEVELOPMENT AUTHORITY I I and I WELSH COMPANIES .. I I Dated as of: , 1997 I I This document was drafted by: I BRADLEY & DEIKE, P. A. I 5100 Eden Avenue, Suite 306 Edina, MN 55436 Telephone: (612) 927-4333 I .. rjd\agreement\ArdenHiIIswelsh I -- I I ~ TABLE OF CONTENTS ~ I PREAMBLE I I ARTICLE I Definitions I Section 1.1. Definitions 3 I ARTICLE II Representations I Section 2.1. Representations by the Authority 7 Section 2.2. Representations by the Redeveloper 7 I ARTICLE III Ie Acquisition and Convevance o[Pro.perty: Public Improvements I Section 3.1. Status of Redevelopment Property 9 Section 3.2. Conveyance of the Redevelopment Property 9 Section 3.3. Time of Conveyance 9 I Section 3.4. Title 10 Section 3.5. Public Improvements 11 Section 3.6. Special Assessments 12 I ARTICLE IV I Construction of Minimum Improvements Section 4.1. Construction of Minimum Improvements 13 I Section 4.2. Construction Plans 13 Section 4.3. Commencement and Completion of I Construction 14 I .. (i) I I ARTICLE V I .. Insurance and Condemnation Section 5.1. Insurance 15 I Section 5.2. Condemnation 17 ARTICLE VI I Tax Increment I Section 6.1. Tax Increment Guarantee 18 Section 6.2. Tax Increment Certification 18 I Section 6.3. Real Property Taxes 18 Section 6.4. Use of Tax Increment 19 Section 6.4. Assessment Agreement 19 I ARTICLE VII I Mortl;al;e Financing .. Section 7.1. Financing 20 Section 7.2. Limitation Upon Encumbrance of Property 20 I ARTICLE VIII I Prohibitions Against Assignment and Transfer: Indemnification I Section 8.1. Representation as to Redevelopment 21 Section 8.2. Prohibition Against Transfer of I Property and Assignment of Agreement 21 Section 8.3. Approvals 21 Section 8.4. Release and Indemnification Covenants 21 I ARTICLE IX Events of Default I Section 9.1. Events of Default Defined 23 I Section 9.2, Authority's Remedies on Default 23 (ii) .. I L.-- I I it Section 9.3. No Remedy Exclusive 24 Section 9.4. No Additional Waiver Implied by One Waiver 24 I ARTICLE X I Additional Provisions Section 10.1. Representatives Not Individually Liable 25 I Section 10.2. Restrictions on Use 25 Section 10.3. Provisions Not Merged With Deed 25 Section 10.4. Titles of Articles and Sections 25 I Section 10.5. Notices and Demands 25 Section 10.6. Disclaimer of Relationships 25 I Section 10.7. Modifications 26 Section 10.8. Counterparts 26 Section 10,9. Judicial Interpretation 26 I Section 10,10. Termination of Agreement 26 TESTIMONIUM 27 Ie SIGNATURES 27 I SCHEDULE A Description of Redevelopment Property SCHEDULE B Description of Public Improvements SCHEDULE C Assessment Agreement I I I . ",.:.:,,:-. I I I .. (iii) I I I DEVELOPMENT AGREEMENT .. THIS AGREEMENT, is made on or as of the _ day of , 1997, by I and between the Arden Hills Economic Development Authority, a public body corporate and politic (hereinafter referred to as the "Authority"), and having its principal office at 1450 West Highway 96, Arden Hills, Minnesota 55112, and Welsh Companies, a Minnesota corporation I (hereinafter referred to as "Redeveloper"), having its principal office at WITNESSETH: I WHEREAS, the Authority is a political body corporate and politic and a political I subdivision of the State of Minnesota, organized and existing pursuant to the laws of the State of Minnesota and is governed by the Board of Commissioners thereof (the "Board"); and I WHEREAS, pursuant to Minnesota Statutes, Section 469.124 to 469.134 and Sections 469.090 through 469.108 as amended, the Authority is authorized to establish municipal I development districts in order to provide for the development and redevelopment of the City and to operate municipal development districts initially established by the City of Arden Hills (the "City"); and .. WHEREAS, pursuant to the Minnesota Tax Increment Financing Act, Minnesota Statutes, Sections 469.174 to 469.179, as amended, the Authority is authorized to finance the I capital and administrative costs of a municipal development district with tax increment generated from tax increment financing districts established within such municipal development districts; I and WHEREAS, the City has established its Municipal Development District No. 1 I (hereinafter referred to as the "Project") in an area of the City (hereinafter referred to as the "Project Area") pursuant to Minnesota Statutes, Sections 469.124 through 469.134; and WHEREAS, pursuant to a resolution of the City Council of the City, the City Council I transferred control, authority and operation of the Project to the Authority; and WHEREAS, in connection with the Project, there has been created Tax Increment I Financing District No.2 (hereinafter referred to as the "Tax Increment District") pursuant to the Minnesota Tax Increment Financing Act and a tax increment plan therefor (the "Plan"); and I WHEREAS, the Redeveloper has presented to the Authority a proposal for the I development of a multi-phased office warehouse development within the Project; and WHEREAS, in order to assist the Redeveloper in its development the Authority is .. prepared to pay certain public costs related to the development of the real property on which the I _. I I ,. Redeveloper has proposed to undertake its development (which property is described on the attached Schedule A and is hereinafter referred to as the "Redevelopment Property"); and WHEREAS, the Authority believes that the redevelopment of the Project Area pursuant I to this Agreement, and fulfillment generally of this Agreement, are in the vital and best interests of the City and the health, safety, morals, and welfare of its residents, and in accord with the I public purposes and provisions of the applicable State and local laws and requirements under which the Project has been undertaken and is being assisted. I NOW, THEREFORE, in consideration ofthe premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: I I I Ie I I I I I I I .. I 2 I I ARTICLE I .. Definitions Section 1.1. Definitions, In this Agreement, unless a different meaning clearly appears I from the context: "Act" means Minnesota Statutes Sections 469.124-469.134, and Sections 469.090- I 469.108, as amended. "Agreement" means this Agreement, as the same may be from time to time modified, I amended, or supplemented. "Assessment Agreement" means the agreement, in the form of the agreement contained in I Schedule C attached to and made a part of this Agreement, among the Redeveloper, the Authority, and the county assessor of the County, to be entered into pursuant to Section 6.5 of I this Agreement. "Authority" means the Arden Hills Economic Development Authority, or its successors I or assigns. "Authority Acquisition Property" means that portion of the Redevelopment Property .. described as such on the attached Schedule A. "Bonds" means the tax increment general obligation bonds to be issued by the City to pay I the costs of the Public Improvements. The term "Bonds" shall also include any bonds or obligations issued to refinance any Bonds, or any portion thereof. I "City" means the City of Arden Hills, Minnesota. "Condemnation Award" means the amount remaining from an award to the Redeveloper I for the acquisition of title to and possession of the Redevelopment Property or. Minimum Improvements, or any material part thereof, after deducting all expenses (including fees and I disbursements of counsel) incurred in the collection of such award. "Construction Plans" means the site plan, utility plan, grading and drainage plan, I landscape plan, elevations drawings and related documents on the construction work to be performed by the Redeveloper on the Redevelopment Property, together with the resolution of the Authority approving such plans. I "County" means the County of Ramsey. I "Event of Default" means an action by the Redeveloper listed in Article IX of this Agreement. .. 3 I I I ~ "Holder" means the owner of a Mortgage. "Market Value" means the market value of real property as determined by the County Assessor of the County for real estate tax purposes. I "Minimum Improvements" means the improvements to be constructed by Redeveloper on I the Redevelopment Property consisting of Phase I, Phase 11, and Phase III, all to be constructed in accordance with approved Construction Plans. I "Mortgage" means any mortgage made by the Redeveloper which is secured, in whole or in part, with the Redevelopment Property and which is a permitted encumbrance pursuant to the provisions of Articles VII and VIII of this Agreement. I "Net Proceeds" means any proceeds paid by an insurer to the Redeveloper or the Authority under a policy or policies of insurance required to be provided and maintained by the I Redeveloper pursuant to Article V of this Agreement and remaining after deducting all expenses (including fees and disbursements of counsel) incurred in the collection of such proceeds. I "Parcel" means a parcel of the Redevelopment Property on which a Phase is to be constructed. Ie "Phase" means either Phase I, Phase II or Phase III. "Phase I" means that portion of the Minimum Improvements consisting of a 135,000 I square foot office/warehouse development. I "Phase II" means that portion of the Minimum Improvements consisting of a 105,000 square foot office/warehouse development. I "Phase III" means that portion of the Minimum Improvements consisting of a 105,000 square foot office/warehouse development. . I "Phase I Public Improvements" means that portion of the Public Improvements described as such on the attached Schedule B. I "Phase II Public Improvements" means that portion of the Public Improvements described as such on the attached Schedule B. I "Phase III Public Improvements" means that portion of the Public Improvements described as such on the attached Schedule B. I "Plan" means, collectively, the Tax Increment Financing Plan and Development Program tI adopted by the City in connection with the creation of the Tax Increment District and Project, respectively, as modified as of the date of this Agreement, and as they may be further modified from time to time. I 4 I I "Prior Redeveloper Improvements" means the improvements being constructed by the .. Redeveloper on the Redeveloper Property, consisting of an approximately 154,000 square foot office/warehouse building. "Project" means the City's Municipal Development District No. I established by the City I pursuant to the Development Program relating thereto. "Project Area" means the real property located within the boundaries of the Project. I "Public Improvements" means the improvements to be constructed by on or behalf of the I Authority or the City pursuant to Section 3.5 of this Agreement. "Redeveloper" means Welsh Companies, a Minnesota corporation, its successors, assigns I and any future owner of any interest in any portion of the Redevelopment Property. "Redeveloper Property" means the property described as such on the attached Schedule A I on which the Redeveloper is constructing the Prior Redeveloper Improvements. "Redevelopment Property" means the real property described in Schedule A of this I Agreement. "State" means the State of Minnesota. .. "Tax Increment" means that portion of the real property taxes paid with respect to the I Redevelopment Property and Minimum Improvements (and Redeveloper Property?) that is remitted to the Authority as tax increment pursuant to the Tax Increment Act. I "Tax Increment Act" means the Tax Increment Financing Act, Minnesota Statutes, Sections 469. I 74-469.179, as amended. I "Tax Increment District" means the Tax Increment Financing District No.2 created by City and administered by the Authority. I "Tax Official" means any City or county assessor; County auditor; City, County or State board of equalization, the commissioner of revenue of the State, or any State or federal district I court, the tax court of the State, or the State Supreme Court. "Termination Date" means the date that the Bonds are paid in full. I "Unavoidable Delays" means delays which are the direct result of acts of God, unforeseen I adverse weather conditions, strikes, other labor troubles, unavailability of materials through no fault of Redeveloper or the Authority, fire or other casualty to the Minimum Improvements or the Public Improvements, litigation commenced by third parties which, by injunction or other similar -- judicial action, directly results in delays, or acts of any federal, state or local governmental unit 5 I -- I I ~ (other than the Authority in enforcing its rights under this Agreement) which directly result in delays. I I I I I I Ie I I I I I I I .. I 6 -- ---- . - I ARTICLE II I Representations .. Section 2.1. Representations by the Authority. The Authority makes the following I representations and warranties as the basis for the undertaking on its part herein contained: (a) The Authority is a public body politic and corporate and a political subdivision of I the State duly organized and existing under the laws of the State. Under the provisions of the Act, the Authority has the power to enter into this Agreement and carry out its obligations hereunder. I (b) The Project is a "municipal development district" within the meaning of the Act and was created, adopted and approved in accordance with the terms of the Act. I (c) The Tax Increment District is a "redevelopment tax increment district", which was I created, adopted, certified and approved pursuant to the Tax increment Act. (d) The Authority will cooperate with the Redeveloper with respect to any litigation I commenced with respect to the Plan, Project, or Minimum Improvements. (e) The Authority has received no notice or communication from any local, state or -- federal official that the activities of the Redeveloper or the Authority in the Project Area may be or will be in violation of any environmental law or regulation. The Authority is aware of no facts, the existence of which would cause the Redeveloper or the Redevelopment Property to be I in violation of any local, state or federal environmental law or regulation or review procedure or which would give any person a valid claim under any of the foregoing. Section 2.2. Representations and Warranties by the Redeveloper The Redeveloper I represents and warrants that: I (a) The Redeveloper is a corporation duly organized and in good standing under the laws of the State, is not in violation of any provisions of its articles of incorporation or bylaws or I the laws of the State, has power to enter into this Agreement and has duly authorized the execution, delivery and performance of this Agreement by proper action of its officers and directors. I (b) The Redeveloper will construct the Minimum Improvements in accordance with the terms of this Agreement and all local, state and federal laws and regulations. I (c) The Minimum Improvements will be constructed at a cost sufficient to generate improvements with a market value for tax purposes at least equal to the minimum market values I required in Section 6.5 of this Agreement. .. 7 I -.---- I I ~ (d) The Redeveloper has received no notice or communication from any local, state or federal official that the activities of the Redeveloper or the Authority in the Project Area may be or will be in violation of any environmental law or regulation. The Redeveloper is aware of I no facts the existence of which would cause it to be in violation of any local, state or federal environmental law, regulation or review procedurc or which would give any person a valid claim under any of the foregoing. I (e) The Redeveloper will obtain, in a timely manner, all required permits, licenses and approvals, and will mect, in a timely manner, all requirements of all applicable local, state I and federal laws and regulations which must be obtained or met before the Minimum Improvements may be lawfully constructed. I (I) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and I conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of, the terms, conditions or provisions of any evidences of indebtedness, agreement or instrument of whatever nature to which the Redeveloper is now a party or by which it is bound, or constitutes a I default under any of the foregoing. (g) The Redeveloper will cooperate with thc Authority with respect to any litigation Ie commenced with respect to the Redevelopment Plan, Project, or Minimum Improvements. (h) In the event that this Agreement is terminated by the Authority as a result of an I Event of Default, the Redeveloper agrees that it will, within thirty (30) days of written demand by the Authority, make arrangements, satisfactory to the Authority, to reimburse the Authority for all of its costs and expenses, including reasonable fees of attorneys and consultants, incurred I in connection with the negotiation, preparation and implementation ofthis Agreement. I (i) Whenever any Event of Default occurs and the Authority shall employ attorneys or incur other expenses for the collection of payments due or to become due or for the enforcement of performance or observance of any obligation or agreement on the part of the I Redeveloper under this Agreement, the Redeveloper agrees that it shall, within thirty (30) days of written demand by the Authority, pay to the Authority the reasonable fees of such attorneys and such other expenses so incurred by the Authority. I I I .. I 8 -- I ARTICLE III I Acquisition and Conveyance of Property: Public Improvements .. Section 3.1. Status of Redevelopment Property. The Redevelopment Propcrty consists of I several Parcels of property owned by multiple owners. The Redeveloper has entered into purchase agreements with of the owners of the Redevelopment Property, cxcept for the Authority Acquisition Propcrty. One of the Parcels of the Redevelopment Property is owned by I the City and the City and Redeveloper have entered into a purchase agreement under which the Redeveloper is entitled to purchase such property. The Authority is negotiating with the owner of the Authority Acquisition Property and expects to be able to enter into a purchase agreement I to acquire such property. The Redeveloper shall be responsible for securing all necessary purchase agreements to acquire the Redevelopment Property, other than the Authority Acquisition Property, and for taking all action necessary to permit the Redeveloper to acquire I such properties. If the Authority is able to acquire the Authority Acquisition Property at a price deemed reasonable by the Authority it will do so and, subject to satisfaction of all of the terms I and conditions set forth in this Agreement, the Authority will convey the Authority Acquisition Property to the Redeveloper. The purchase price to be paid by the Redeveloper to acquire the Authority Acquisition Property from the Authority shall be $ I Section 3.2. Conveyance of the Redevelopment Property. The Authority shall convey title to and possession of the Authority Acquisition Property to the Redeveloper under a standard .. quit claim deed. The conveyance of the Authority Acquisition Property and the Redeveloper's use of the Authority Acquisition Property and Redevelopment Property shall be subject to all of the conditions, covenants, restrictions and limitations imposed by this Agreement, all of which I shall be incorporated in the deed of conveyance. The conveyance of title to the Redevelopment Property and the Redeveloper's use of the Authority Acquisition Property shall also be subject to Permitted Encumbrances and building and zoning laws and ordinances and all other local, state I and federal laws and regulations. Section 3.3. Time of Conveyance. (a) The Authority's obligation to convey the I Authority Acquisition Property to the Redeveloper shall be subject to satisfaction of all of the following conditions precedent: I (i) the Redeveloper shall not be in default under any term of this Agreement; (ii) the City shall have approved the Minimum Improvements as a Planned Unit I Development and the Redeveloper shall have secured the approval of any other governmental agency other than the City and the Authority whose approval is I required in order for the Redeveloper to construct and operate the Minimum Improvments; (iii) the Redeveloper shall have approved or waived any objections to title to the I Authority Acquisition Property in accordance with Section 3.4 hereof; .. 9 I I I the Redeveloper shall have closed on its financing for the constmction of Phase I; It (iv) and (v) the Authority shall have acquired the Authority Acquisition Property and the I Redeveloper shall have acquired all other Parcels of the Redevelopment Property. (b) Subject to satisfaction of all of the terms and conditions contained in this I Agreement required to be satisfied prior to conveyance of the Authority Acquisition Property, the Authority shall execute and deliver to Redeveloper the deed conveying the Authority Acquisition I Property on the later of: (i) seven (7) days after all of the conditions contained in subsection 3.3(a) have been satisfied, provided, that the conveyance of the Authority Acquisition Property may occur simultaneously with the closing on the Redeveloper's financing for constmction of I Phase I, or (ii) on such other date as the Authority and the Redeveloper shall agree in writing. (c) The Redeveloper shall pay the purchase price for the Authority Acquisition I Property in cash or by certified check and take possession of the Authority Acquisition Property upon execution and delivery of the deed conveying the Authority Acquisition Property by the Authority. Unless otherwise agreed by the Authority and the Redeveloper, the execution and I delivery of all deeds shall be made at the principal office of the Authority. (d) The deed conveying the Authority Acquisition Property shall be in recordable Ie form and shall be promptly recorded with the Assessment Agreement. The Redeveloper shall pay all recording costs, including State deed tax, related to the Authority's conveyance of the I Authority Acquisition Property. Section 3.4. Title. (a) Within a reasonable time after securing a purchase agreement for I the Authority Acquisition Property, the Authority shall obtain and furnish to the Redeveloper a commitment for the issuance of an owner's policy of title insurance for the Authority Acquisition Property naming the Authority and Redeveloper as the proposed insured parties in the amount of I the purchase price to be paid to acquire the Authority Acquisition Property from its present owner. The Redeveloper shall have twenty (20) days from the date of its receipt of such commitment to review the state of title to the Authority Acquisition Property and to provide the I Authority with a list of written objections to such title. Upon receipt of the Redeveloper's list of written objections, the Authority shall proceed in good faith and with all due diligence to attempt to cause the objections made by the Redeveloper to be cured. A title objection shall be deemed I to be cured if the title insurer agrees to issue an endorsement to the owner's title insurance policy affirmatively insuring over such objection. After the date that all such objections have been I cured, to the reasonable satisfaction of the Redeveloper, the Authority and the Redeveloper shall proceed with the conveyance of the Authority Acquisition Property under this Article III. In the event that the Redeveloper's objections have not been cured within sixty (60) days after the I Authority's receipt of the Redeveloper's objections, either the Redeveloper or the Authority by the giving of written notice to the other may terminate this agreement upon which this .. Agreement shall be null and void and neither party shall have any liability hereunder; provided that the parties shall execute an agreement in recordable form evidencing the cancellation of this Agreement. The Authority shall have no obligation to exercise its powers of eminent domain to I 10 I clear defects in the title to the Authority Acquisition Property. The cost of obtaining the title I .. insurance commitment and the cost of title insurance shall be bome by the Redeveloper. (b) The Authority's obligations under this Agreement are conditioned on the Redeveloper having acquired fee title to the Redevelopment Property, other than the Authority I Acquisition Property. Therefore, prior to the ALlthority being obligated to convey the Authority Acquisition Property to the Redeveloper and prior to the Authority's commencement of the Public Improvements, the Redeveloper shall provide to the Authority evidence in such form as I the Authority shall require demonstrating that the Redeveloper has acquired fee title to the Redevelopment Property, other than the Authority Acquisition Property, and that such title is I subject to no defects or encumbrances other than those that the Authority may approve. Section 3.5. Public Improvements. (a) In addition to the Authority's acquisition and I conveyance of the Authority Acquisition Property, the Authority will pay the cost of certain public improvements necessary to permit the development of the Minimum Improvements. The Public Improvements are more specifically described Schedule B to this Agreement and consist I generally of the installation of roads, utilities, landscaping, storm water and water line relocation. (b) The Phase I Public Improvements consist of the construction of a new road (14th I Street) and the reconstmction of the public utilities serving all Phases of the Minimum Improvements. Subject to Unavoidable Delays, the Phase I Public Improvements will be commenced by , 1997, and will be completed by , 1997. The .. Phase I Public Improvements will be constructed pursuant to plans and specifications prepared by the Authority or the City in accordance with City construction requirements. The Phase I Public Improvements will be undertaken as a public improvement project pursuant to Minnesota I Statutes, Chapter 429, as is described in Section 3.6 of this Agreement. (c) The Phase II Public Improvements consist of the reconstruction of West Round I Lake Road. Subject to Unavoidable Delays, the Phase II Public Improvements will be commenced by , 1998, and will be completed by , 1998. The I Phase II Public Improvements will be financed as a public improvement pursuant to Minnesota Statutes, Chapter 429. No Tax Increment will be used to finance the Phase II Public Improvements. I (d) The Phase III Public Improvements consist of improvements related to the realignment of County Road 96, including the acquisition of property, signal improvements, and I road and bridge improvements. Subject to Unavoidable Delays, the Phase III Public Improvements will be commenced by , 1998, and will be completed by , 1998. The Phase III Public Improvements will be financed with the proceeds I of tax increment general obligation bonds. (e) The obligation of the Authority to proceed with the construction of the Phase I I Public Improvements shall be subject to the satisfaction of all of the conditions precedent contained in Section 3.3, The Authority's obligation shall also be subject to the Authority .. having determined that the Bonds can be sold in an amount equal to at least $ and II I - I I it that the Phase I Public Improvements can be constructed at a cost equal to or less than that budgeted by the Authority for such work. Section 3.6. Special Assessments. The Authority intends to use Tax Increment from I the Redevclopment Property and the Minimum Improvements to pay the Bonds issued to finance the Phase I and the Phase III Public Improvcments. The Redeveloper is willing to guarantee I pursuant to Section 6.1 that sufficient Tax Increment will be generated to pay the debt service on the Bonds. In addition, the Phase I Public Improvements will be undertaken as a public improvements project pursuant to Minnesota Statutes, Chapter 429, and assessments will be I levied as liens against the Redevelopment Property (and the Redeveloper Property?). The Redeveloper agrees to petition the City to undertake the Phase I Public Improvements and to assess the cost thereof against the Redevelopment Property (and the Redeveloper Property?). I The Redeveloper further agrees that it will not contest the amount or validity of the assessments on constitutional, statutory, procedural or other grounds and shall cause any Holder and any transferee of Redeveloper's acquiring an interest in the Redevelopment Property (and the I Redeveloper Property?) or Minimum Improvements to execute an instrument, in a form acceptable to the City, acknowledging the validity of the lien of the assessments and subjecting the Holder's lien or the transferee's interest to the lien of the assessments. In addition, the I Developer wiII upon request by the City execute such other documents as the City may from time to time reasonably request to continue the perfection of the lien of the assessments as a first lien on the Redevelopment Property (and the Redeveloper Property?). Tax Increment will be Ie used on an annual basis to either pay the assessments or, at the option of the Authority, to reimburse the Redeveloper for its payment of the assessments. I I I I I I I it I 12 I I ARTICLE IV .. Construction of Minimum Improvements Section 4.1. Construction of Minimum Improvements. The Redeveloper agrees that it I will construct the Minimum Improvements on the Redevelopment Property in accordance with the approved Construction Plans and that it will maintain, preserve and keep those portions of the Minimum Improvements that it owns and controls, including but not limited to all landscaping I and exterior improvements, to be maintained, preserved and kept with the appurtenances and every part and parcel thereof, in good repair and condition. I Section 4.2. Construction Plans. (a) No later than 1997, the , Redeveloper shall submit to the Authority and the City all documents necessary to apply for I planned unit development approval for the Minimum Improvements. Within U after the Redeveloper receives planned unit development approval from the City, the Redeveloper shall submit to the Authority Construction Plans for Phase I for its approval. On or I before the Redeveloper shall submit to the Authority Construction Plans for Phase II, and on or before the Redeveloper shall submit to the Authority Construction Plans for Phase III. The Authority shall have ten (IO) days after receipt of I Construction Plans for a Phase to notify the Redeveloper of its approval or rejection of such Construction Plans or the Construction Plans shall be deemed approved. The Redeveloper shall prepare all additional building plans and shall construct the Minimum Improvements in a manner .. consistent with the Construction Plans and all conditions imposed by the City Council in granting planned unit development approval to the Redeveloper. The approval of the Construction Plans shall not relieve the Redeveloper of the obligation to comply with the terms I of this Agreement, the terms of the Redevelopment Plan, applicable federal, state and local laws, ordinances, rules and regulations, or to construct the Minimum Improvements. Nothing in this I Agreement shall be deemed to limit in any way the Redeveloper's obligation to comply with the City's normal building construction permitting process. (b) If the Redeveloper desires to make any material change in any Construction Plans I after their approval by the Authority, the Redeveloper shall submit the proposed change to the Authority and the City Council for approval. For purposes of this Agreement, a "material" I change in the Construction Plans shall be any change that reduces the value of the Minimum Improvements, changes the exterior appearance of the Minimum Improvements, changes the general nature or use of the Minimum Improvements or deviates from the plans approved in I connection with the City's granting of planned unit development approval. Any requested change in the Construction Plans shall, in any event, be deemed approved by the Authority unless rejected, in whole or in part, by written notice by the Authority to the Redeveloper, setting I forth in detail the reasons therefor. Such rejection shall be made within ten (10) business days after receipt by the Executive Director of the Authority of a written request for the change, which I request shall include the proposed change in the Construction Plans and a written narrative explaining the purpose and details of the change. No approval of a change by the Authority under this subsection shall relieve the Redeveloper of its obligation to obtain the approval of the .. City if such approval is necessary. 13 I I I ,. (c) The Minimum Improvements will be designed and constructed with an architectural theme acceptable to the City, in its sole discretion. I (d) The construction by the Authority of the Public Improvements will necessitate certain wetlands mitigation. The Redeveloper agrees that the Minimum Improvements will be I designed to accommodate all such wetlands mitigation and to relieve the Authority of the responsibility therefor. I Section 4.3. Commencement and Completion of Construction. Subject to Unavoidable Delays, the Redeveloper shall commence construction of Phase I by , 1997, or on such other date as the parties shaH agree. Subject to Unavoidable Delays, the Redeveloper I shall complete the construction of Phase I by Subject to Unavoidable Delays, the Redeveloper shall commence construction of Phase II by , I or on such other date as the parties shall agree and shall complete the construction of Phase II by . Subject to Unavoidable Delays, the Redeveloper shall commence construction of Phase III by , or on such other date as the parties shaH I agree and shall complete the construction of Phase III by . All work with respect to the Minimum Improvements to be constructed or provided by the Redeveloper on the Redevelopment Property shall be in conformity with the Construction Plans as submitted by the Ie Redeveloper and approved by the Authority. The Redeveloper agrees for itself, its successors and assigns, and every successor in I interest to the Redevelopment Property, or any part thereof, that the Redeveloper, and such successors and assigns, shaH promptly begin and diligently prosecute to completion the redevelopment of the Redevelopment Property through the construction of the Minimum I Improvements thereon, and that such construction shaH in any event be commenced and completed within the period specified in this Section 4.3 of this Agreement. Subsequent to I conveyance of the Redevelopment Property, or any part thereof, to the Redeveloper, and until construction of the Minimum Improvements has been completed, the Redeveloper shaH make construction progress reports, at such times as may reasonably be requested by the Authority, but I not more than once a month, as to the actual progress of the Redeveloper with respect to such construction. I I I ~ I 14 "-- I ARTICLE V I .. Insurance and Condemnation Section 5.1. Insurance. I (a) The Redeveloper will provide and maintain or cause to be provided and maintained at all times during the process of constructing the Minimum Improvements and, from time to time I at the request of the Authority, furnish the Authority with proof of payment of premiums on: (i) Builder's risk or hazard insurance, written on the so-called "Builder's Risk -- I Completed Value Basis," in an amount equal to one hundred percent (IOO%) of the insurable value of the Minimum Improvements at the date of completion, and with I coverage available in nonreporting form on thc so called "all risk" form of policy. The interest of the Authority shall be protected in accordance with a clause in form and content satisfactory to the Authority; I (ii) Comprehensive general liability insurance (including operations, contingent liability, operations of subcontractors, completed operations, Broadening Endorsement I including contractual liability insurance) together with an Owner's Contractor's Policy with limits against bodily injury and property damage of not less than $2,000,000.00 for each occurrence (to accomplish the above-required limits, an umbrella excess liability policy .. may be used); and (iii) Worker's compensation insurance, with statutory coverage and employer's I liability protection, (b) Upon completion of construction of the Minimum Improvements and prior to the I Termination Date, the Redeveloper shall maintain, at its cost and expense, and from time to time at the request of the Authority shall furnish proof of the payment of premiums on, insurance as I follows: (i) Insurance against loss and/or damage to the Minimum Improvements under a I policy or policies covering such risk as are ordinarily insured against by similar businesses, including (without limiting the generality of the foregoing) fire, extended coverage, all risk vandalism and malicious mischief, boiler explosion, water damage, I demolition cost, debris removal, and collapse in an amount not less than the full insurable replacement value of the Minimum Improvements, but any such policy may have a deductible amount of not more than $5,000. No policy of insurance shall be so written I that the proceeds thereof will produce less than the minimum coverage required by the preceding sentence, by reason of co-insurance provisions or otherwise, without the prior I consent thereto in writing by the Authority. The term "full insurable replacement value" shall mean the actual replacement cost of the Minimum Improvements (excluding foundation and excavating costs and costs of underground flues, pipes, drains and other .. uninsurable items) and equipment, and shall be determined from time to time at the 15 I ~ ~. I I t' request of the Authority, but not more frequently than once very three years, by an insurance consultant or insurer, selected and paid for by the Redeveloper and approved by the Authority. All policies evidcncing insurance required by this subparagraph (i) with rcspect to the Minimum Improvements shall be carried in the names of the Redcveloper I and the Authority as their respective interests may appear and shall contain standard clauses which provide for Net Proceeds of insurance resulting from claims per casualty thereunder to the Minimum Improvements to be made payable jointly to the Authority I and Redeveloper. The Authority and the Redeveloper shall jointly agree on the amount of settlement. I (ii) Comprehensive general liability insurance, including personal injury liability (with employee exclusion deleted), and automobile insurance, including owned, non- I owned and hired automobiles, against liability for injuries to persons and/or property, in the minimum amount for each occurrence and for each year of $2,000,000.00, for public liability and shall be endorsed to show thc Authority as additional insured. I (iii) Such other insurance, including worker's compensation insurance respecting all employees of the Redeveloper, in such amount as is customarily carried by like I organizations engaged in like activities of comparable size and liability exposure; provided that the Redeveloper may be self-insured with respect to all or any part of its liability for worker's compensation. Ie (c) All insurance required in Article V of this Agreement shall be taken out and maintained in responsible insurance companies selected by the Redeveloper which are authorized I under the laws of the State to assume the risk covered thereby. The Redeveloper will deposit annually with the Authority binders evidencing all such insurance, or a certificate or certificates I of the respective insurers stating that such insurance is in force and effect. Unless otherwise provided in this Article V of this Agreement each policy shall contain a provision that the insurer shall not cancel or modify it without giving written notice to the Redeveloper and the Authority I at least thirty (30) days before the cancellation or modification becomes effective. Not less than fifteen (15) days prior to the expiration of any policy, the Redeveloper shall furnish the Authority evidence satisfactory to the Authority that the policy has been renewed or replaced by another I policy conforming to the provisions of this 'Article V of this Agreement, or that there is no necessity therefor under the terms hereof. In lieu of separate policies, the Redeveloper may maintain a single policy, blanket or umbreIla policies, or a combination thereof, having the I coverage required herein, in which event the Redeveloper shall deposit with the Authority a certificate or certificates of the respective insurers as to the amount of coverage in force upon the I Minimum Improvements. (d) The Redeveloper agrees to notify the Authority immediately in the case of I damage to or destruction of, the Minimum Improvements or any portion thereof resulting from fire or other casualty. In the event of any such damage or destruction, the Redeveloper will forthwith repair, reconstruct and restore the Minimum Improvements to substantiaIly the same or ~ an improved condition or value as existed prior to the event causing such damage and, to the extent necessary to accomplish such repair, reconstruction and restoration, the Redeveloper will I 16 ---- I apply the Net Proceeds of any insurance relating to such damage received by the Redeveloper to I the payment or reimbursement of the costs thereof. .. The Redeveloper shall complete the repair, reconstruction and restoration of the Minimum Improvements, whether or not the Net Proceeds of insurance received by the I Redeveloper for such purposes are sufficient to pay for the same. Any Net Proceeds remaining after completion of such repairs, construction and restoration shall be remitted to the Redeveloper. I (e) In the event that the Minimum Improvements are totally destroyed, the Redeveloper in lieu of rebuilding the Minimum Improvements, shall have the option of repaying I to the Authority the assistance provided to the Redeveloper hereunder. The amount of the assistance that shall be repayable at a particular time shall be equal to the amount that, in the I opinion of the City's fiscal consultant considering existing and projected interest rates, would be necessary to generate a stream of payments equal to the Redeveloper's Tax Increment guarantee obligations set forth in Section 6.1 of this Agreement. I Section 5.2. Condemnation. In the event that title to and possession of the Minimum Improvements or any material part thereof shall be taken in condemnation or by the exercise of I the power of eminent domain by any governmental body or other person (except the Authority or the City) prior to the Termination Date, the Redeveloper shall, with reasonable promptness after such taking, notify the Authority as to the nature and extent of such taking. Upon receipt of any .. Condemnation Award, the Redeveloper shall elect to either: (a) use the entire Condemnation Award to reconstruct the Minimum Improvements (or, in the event only a part of Minimum Improvements have been taken, then to reconstruct such part) within the Tax Increment District; I or (b) pay to the Authority out ofthe Condemnation Award the amount necessary to repay the assistance provided by the Authority hereunder, which amount shall be calculated as provided in Section 5.1 (e) of this Agreement. I I I I I I .. 17 I I I if ARTICLE VI Tax Increment I Section 6.1. Tax Increment Guarantee. It is the intention of the Authority and the Redeveloper that the costs of the Phase I Public Improvements and the Phase III Public Improvements will be paid using the Tax Increment which will be generated from the completed I Minimum Improvements (and from the Redeveloper Property?). In order to effectuate this understanding the Redeveloper agrees to guarantee that minimum levels of Tax Increment will be paid to the Authority after the date hereof. Therefore, if in calendar year 199_ and I continuing until the Termination Date, the Tax Increment generated by the Redevelopment Property (and the Redeveloper Property?) is less than $ in any year or if in I calendar year 199_ and continuing until the Termination Date, the Tax Increment generated by the Redevelopment Property (and the Redeveloper Property?) is less than $ in any year, the Authority shall provide notice to the Redeveloper of such fact and the amount of I the deficiency in Tax Increment. Thirty (30) days after receipt of such notice the Redeveloper shall be liable for and shall pay to the Authority the amount of such deficiency. The Authority may make demand for such payment as of May 15 and October 15 of each year with the amount I payable as of such dates being equal to the amount of the Tax Increment deficiency attributable to the tax payment due as of such date. The obligation of the Redeveloper to make the payments as provided in this Section 6.1 of this Agreement shall be absolute and unconditional irrespective Ie of any defense or any rights of setoff, recoupment or counterclaim it might otherwise have against the Authority or any other government body or other person. The Redeveloper shall not fail to make any required payments for any cause or circumstances whatsoever including the I failure or refusal of a bank to honor a demand under a letter of credit, any change in law, or any other event even if beyond the control of the Redeveloper, including, without limitation, any I change in the State tax laws resulting in a lower tax rate for properties such as the Redevelopment Property. I Section 6.2. Tax Increment Certification. The Tax Increment District has been established and the County auditor of the County has certified the original tax capacity of the Tax Increment District pursuant to Minnesota Statutes, Section 469.177. I Section 6.3. Real Property Taxes. I (a) Real property taxes and installments of special assessments payable with respect to the Authority Acquisition Property shall be prorated between the Redeveloper and Authority I as of the date of conveyance thereofto the Redeveloper. (b) The Redeveloper agrees that prior to the Termination Date it will not take any of I the following actions to the extent that it would reduce the annual Tax Increment generated from the Redevelopment Property (and Redeveloper Property?) below the amounts guaranteed by the Redeveloper under Section 6.1: (l) it will not seek administrative review or judicial review of .. the applicability of any tax statute determined by any Tax Official to be applicable to the Project or the Redeveloper or raise the inapplicability of any such tax statute as a defense in any I 18 I proceedings, including delinquent tax proceedings; (2) it will not scek administrative review or I .. judicial review of the constitutionality of any tax statute determined by any Tax Official to be applicable to the Project or the Redeveloper or raise the unconstitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings; (3) it will not causc a reduction in the Market Value of the Redevelopment (and Redevelopcr Propcrty?) I below the Minimum Market Value set forth in the Assessment Agreement to be entered into pursuant to Section 6.5 through: (A) willful destruction of the Redevelopment Property (and Redeveloper Property?), or any part thereof; (B) willful refusal to reconstruct damaged or I destroyed property pursuant to Section 5. I of this Agreement; (C) a request to the city assessor of the City or the county assessor of the County to reduce the Market Value of all or any portion of I the Redevelopment Property (and Redeveloper Property?); (0) a petition to the board of equalization of the City or the board of equalization of the County to reduce the Market Value of all or any portion of the Redevelopment Property (and Redeveloper Property?); (E) a petition I to the board of equalization of the State or the commissioner of revenue of the State to reduce the Market Value of all or any portion of the Redevelopment Property (and Redeveloper Property?); (F) an action in a District Court of the State or the Tax Court of the State pursuant to I Minnesota Statutes, Chapter 278, seeking a reduction in the Market Value of the Redevelopment Property (and Rcdeveloper Property?); (G) an application to the commissioner of revenue of the State requesting an abatement of real property taxes pursuant to Minnesota Statutes Chapter I 270; and (H) any other proceedings, whether administrative, legal or equitable, with any administrative body within the City, the County, or the State or with any court of the State or the federal government. The Redeveloper shall not, prior to the Termination Date, apply for a .. deferral of property tax on the Redevelopment Property (and Redeveloper Property?) pursuant to Minnesota Statutes. Section 469.181. Section 6.4. Use of Tax Increment. The Redevelopment Property is located in the Tax I Increment District. The Authority shall be free to use any tax increment received from the Tax I Increment District for any purpose for which such increment may lawfully be used pursuant to the provisions of the Act and the Tax Increment Act, and the Authority shal1 have no obligations to the Redeveloper with respect to the use of such increment. The Authority will pledge ninety I percent (90%) of the Tax Increment to the payment of the Bonds, with the remaining ten percent (10%) being retained by the Authority to pay its administrative costs. Section 6.5. Assessment A!iTeement On or before , 1997, the Redeveloper I and the Authority shaU enter into an Assessment Agreement, substantiaUy in the form of the Assessment Agreement contained in Schedule C of this Agreement. The Assessment Agreement I shaU establish a Minimum Market Value for the Redevelopment Property (and Redeveloper Property?) of $ commencing on January 1, 199_, and a Minimum Market Value for the Redevelopment Property (and Redeveloper Property?) of $ I commencing on January 1, 199 _continuing until the Termination Date. I .. 19 I - I I tt ARTICLE VII Mortgage Financing I Section 7.1. Financing. No later than , 1997, the Redeveloper shall provide to the Authority a preliminary commitment from a lending institution to provide I financing sufficient for construction of Phase and no later than , 1997, the Redeveloper shall close on such financing. I Section 7.2. Limitation Upon Encumbrance of Property. Prior to the Termination Date, neither the Redeveloper nor any successor in interest to the Redevelopment Property, or any part thereof, shall engage in any financing or any other transaction creating any mortgage or other I encumbrance or lien upon the Redevelopment Property, whether by express agreement or operation of law, or suffer any encumbrance or lien to be made on or attach to the Redevelopment Property, except: (a) for the purposes of obtaining funds only to the extent I necessary for constructing the Minimum Improvements (including, but not limited to, land and building acquisition, including the purchase price paid, labor and materials, professional fees, fees and costs associated with obtaining construction and permanent financing, real estate taxes, I construction interest, organizational and other indirect costs of development, costs of constructing the Minimum Improvements, and an allowance for contingencies); and (b) only upon the prior written approval of the Authority, which approval shall not be umeasonably Ie withheld and shall be deemed to have been given if the Authority fails to respond, in writing specifying the reasons for disapproval, within ten (10) days of a request for approval from I Redeveloper. For the purposes of such mortgage financing as may be made pursuant to the Agreement, the Redevelopment Property may, at the option of the Redeveloper (or successor in interest), be divided into several parts or parcels, provided that such subdivision, in the opinion I of the Authority, is not inconsistent with the purposes of the Redevelopment Plan and the Agreement and is approved in writing by the Authority. I I I I I .. I 20 I ARTICLE VIII I .. Prohibitions Against Assignment and Transfer. Indemnification Section 8.1. Representation as to Redevelopment. The Redeveloper represents and I agrees that its purchase of the Redevelopment Property, and its other undertakings pursuant to the Agreement, are, and will be used, for the purpose of development of the Redevelopment I Property and not for speculation in land holding. The Redeveloper recognizes that, in view of (a) the importance of the redevelopment of the Redevelopment Property to the general welfare of the I community, and (b) the substantial financing and other public aids that have been made available by the City and the Authority for the purpose of making such redevelopment possible, the qualifications and identity of the Redeveloper are of particular concern to the community and the I Authority. The Redeveloper further recognizes that it is because of such qualifications and identity that the Authority is entering into the Agreement with the Redeveloper, and, in so doing, is further willing to accept and rely on the obligations of the Redeveloper for the faithful I performance of all undertakings and covenants hereby by it to be performed. Section 8.2. Prohibition Against Transfer of Property and Assignment of Agreement. (a) I For the foregoing reasons the Redeveloper represents and agrees that prior to the Termination Date, except only by way of security for, and only for, the purpose of obtaining financing necessary to enable the Redeveloper or any successor in interest to the Redevelopment Property, .. or any part thereof, to perform its obligations with respect to making the Minimum Improvements under the Agreement, and any other purpose authorized by the Agreement, the Redeveloper (except as so authorized) has not made or created, and that it will not, make or I create, or suffer to be made or created, any total or partial sale, assignment, conveyance, or lease, or any trust or power, or transfer in any other mode or form of or with respect to the Agreement I or the Redevelopment Property or any part thereof or any interest therein, or any contract or agreement to do any of the same, without the prior written approval of the Authority. Section 8.3. Approvals. Any approval required to be given by the Authority under this I Article VIII of this Agreement may be denied only in the event that the Authority reasonably determines that the ability of the Redeveloper to perform its obligations under this Agreement I will be materially impaired by the action for which approval is sought. Section 8.4. Release and Indemnification Covenants. (a) Except for any willful I misrepresentation or any willful or wanton misconduct or negligence of the following named parties, the Redeveloper releases from and covenants and agrees that the Authority and the governing body members, officers, agents, servants and employees thereof shall not be liable for I and agrees to indemnifY and hold harmless the Authority and the governing body members, officers, agents, servants and employees thereof against any loss or damage to property or any I injury to or death of any person occurring at or about or resulting from any defect in the Minimum Improvements. .. 21 I I. I t' (b) Except for any willful misrepresentation or any willful or wanton misconduct or negligence of the following named parties, the Redeveloper agrees to protect and defend the Authority and the City and the governing body members, officers, agents, scrvants and I employees thereof, now or forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever, other than the Redeveloper, arising or purportedly arising from this Agreement, or the I transactions contemplated hereby or the acquisition, construction, installation, ownership, and operation of the Minimum Improvements. I (c) The Authority and the governing body members, officers, agents, servants and employees thereof shall not be liable for any damage or injury to the persons or property of the Redeveloper or its officers, agents, servants or employees or any other person who may be about I the Redevelopment Property, Adjacent Property or Minimum Improvements due to any act of negligence of any person other than the Authority, its governing body members, officers, agents, servants and employees. I (d) All covenants, stipulations, promises, agreements and obligations of the Authority I contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Authority and not of any governing body member, officer, agent, servant or employee of the Authority in the individual capacity thereof. Ie I I I I I I I .. I 22 '1 ARTICLE IX I .. Events of Default Section 9.!. Events of Default Defincd. The following shall be "Events of Default" under I this Agreement and thc tem1 "Event of Default" shall mean, whenever it is used in this Agreement (unless the context otherwise provides), anyone or more of the following events: (a) Failure by the Redeveloper to pay when due any payments required to be paid I under this Agreement. (b) Failure by the Redeveloper to reconstruct the Minimum Improvements or to I exercise its option to repay the Authority's investment when required pursuant to Sections 5.1 I and 5.2 of this Agreement. (c) Failure by the Redeveloper to obtain financing for construction of the Minimum I Improvements or provide evidence that the Redeveloper has sufficient funds committed for such purpose pursuant to the terms and conditions of Section 7.I of this Agreement. (d) Failure by the Redeveloper to commence and complete construction of the I Minimum Improvements, or portions thereof, pursuant to the terms, conditions and limitations of Article IV of this Agreement. .. (e) Failure by Redeveloper to observe or perform any other covenant, condition, obligation or agreement on its part to be observed or performed hereunder. I (t) The Redeveloper does any of the following: (i) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or I similar relief under United States Bankruptcy Laws or any similar Federal or State Laws; or (ii) make an assignment for the benefit of its creditors; or (iii) admit, in writing, it inability to pay its I debts generally as they become due; or (iv) be adjudicated, bankrupt or insolvent. (g) There occurs a default by the Redeveloper under a Mortgage or other instrument I securing Redeveloper's financing permitted under this Agreement, the Holder of such Mortgage exercises its remedies as a result of such default, such exercise of remedies adversely affects the Redeveloper's interest in the Redevelopment Property, and the Redeveloper does not cure the I basis for the default. Section 9.2. Authority's Remedies on Default. Whenever any Event of Default by I Redeveloper referred to in Section 9.1 of this Agreement occurs, the Authority may suspend its performance under this Agreement until it receives assurances from the Redeveloper, deemed adequate by the Authority, that the Redeveloper will cure its default and continue its I performance under this Agreement, and may take anyone or more of the following actions after providing thirty (30) days written notice to the Redeveloper of the Event of Default, but only if .. the Event of Default has not been cured within said thirty (30) days: 23 I - I I It (a) Terminate this Agreement. (b) Withhold the Certifieate of Completion. I (e) Declare immediately due and payable by the Redevelopcr the amount of the Authority's assistanee which has not been recovered by the Authority from Tax Inerement, which I amount shall be ealculated as provided in Section 5.1 (e) of this Agreement. I (d) Take whatever action, including legal, equitable or administrative action, which may appear necessary or desirable to the Authority to collect any payments due under this Agreement, or to enforce performance and observance of any obligation, agreement, or covenant I of the Redeveloper under this Agreement. Section 9.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the I Authority or Redeveloper is intended to be exclusive of any other available remedy or remedies, but eaeh and every sueh remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. I No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any sueh right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Ie the Authority or the Redeveloper to exercise any remedy reserved to it, it shall not be necessary to give notice, other than sueh notice as may be required in this Article IX. This AgreemeAt shall I be enforceable only by the Authority, the City, and any public body which is a successor of the Authority. I Section 9.4. No Additional Waiver Implied bv One Waiver. In the event any agreement contained in this Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be I deemed to waive any other concurrent, previous or subsequent breach hereunder. I I I I .. I 24 I I ARTICLE X .. Additional Provisions Section 10.1. Representatives Not Individually Liable. No member, official, or cmployee I of the Authority shall be personally liable to the Redeveloper, or any successor in intcrcst, in the evcnt of any default or breach or for any amount which may become due to the Redeveloper or successor or on any obligations under the terms of the Agreement. I Section IO.2. Restrictions on Use. The Redeveloper agrees for itself, and its successors I and assigns, and every succcssor in interest to the Redevelopment Property, or any part thereof, that the Redeveloper, and such successors and assigns, shall devote the Redevelopment Property to, and only to and in accordance with, the uses specified in this Agreement and shall use such I property solely for the uses specified in this Agreement. Section 10.3. Provisions Not Merged With Deed. None of the provisions of this I Agreement are intended to or shall be merged by reason of any deed transferring any interest in the Redevelopment Property and any such deed shall not be deemed to affect or impair the provisions and covenants of this Agreement and all such provisions shall run with the land and I be binding upon and inure to thc benefit of the parties hcreto and their successors and assigns. Section IOA. Titles of Articles and Sections. Any titles of the several parts, Articles, and .. Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 10.5. Notices and Demands. Except as otherwise expressly provided in this I Agreement, a notice, demand, or other communication under the Agreement by either party to I the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally; and (a) in the case of the Redeveloper, is addressed to or delivered personally to the I Redeveloper at ; and (b) in the case of the Authority, is addressed to or delivered personally to the I Authority at 1450 West Highway 96, Arden Hills, Minnesota 55112, Attn: City Administrator; or at such other address with respect to either such party as that party may, from time to time, I designate in writing and forward to the other as provided in this Section. Section 10.6. Disclaimer of Relationships. The Redeveloper acknowledges that nothing I contained in this Agreement nor any act by the Authority or the Redeveloper shall be deemed or I construed by the Redeveloper or by any third person to create any relationship of third-party beneficiary, principal and agent, limited or general partner, or joint venture between the Authority, the Redeveloper or any third party. .. 25 I I I f' Section 10.7. Modifications. This Agreement may be modified solely through written amendments hereto executed by the Redeveloper and the Authority. I Section 10.8. Counterparts. This Agreement is executed in any number of counterparts, each of which shall constitute one and the same instrument. I Section 10.9. Judicial Interpretation. Should any provision of this Agreement require judicial interpretation, the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of I construction that a document is to be construed more strictly against the party who itself or through its agent or attorney prepared the same, it being agreed that the agents and attorneys of both parties have participated in the preparation hereof. I I I Ie I I I I I I I ~ I 26 I IN WITNESS WHEREOF, the Authority has caused this Agreement to be duly executed in I its name and behalf and the Redeveloper has caused this Agreement to be duly executed in its .. name and behalf on or as of the date first above written. ARDEN HILLS ECONOMIC I DEVELOPMENT AUTHORITY By I Its By I Its WELSH COMPANIES I By I Its By I Its STATE OF MINNESOTA) .. )ss. COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of ,1997, I by and , the and the of the Arden Hills Economic Development Authority, a public body I politic and corporate, on behalf of the Authority. / Notary Public I STATE OF MINNESOTA) I )ss. COUNTY OF ) I The foregoing instrument was acknowledged before me this day of . 1997, by and , the I and of Welsh Companies, a Minnesota corporation, on behalf of the corporation. I Notary Public .. 27 I - I I ,. SCHEDULE A Description of Redevelopment Property I Redevelopment Property: I I I Authority Acquisition Property (Naegle Property): I I Ie Redeveloper Property: I I I I I I I tI A-I I I SCHEDULE B I .. Description of the Public Improvements Phase I Public Improvements I I I Phase II Public Improvements I I Phase III Public Improvements I .. I I I I I I I B-1 .. I - I I ~ SCHEDULE C I I I ASSESSMENT AGREEMENT I and I ASSESSOR'S CERTIFICATION I By and among Ie ARDEN HILLS ECONOMIC DEVELOPMENT AUTHORITY WELSH COMPANIES I I and I COUNTY ASSESSOR OF THE COUNTY OF RAMSEY I I I This document was drafted by: I BRADLEY & DEIKE, P.A. 5100 Eden Avenue, Suite 306 Edina, Minnesota 55436 .. C-1 I I THIS AGREEMENT, dated as of this day of , 1997, by and between the I .. Arden Hills Economic Development Authority, a body politic and corporate (the "Authority") and Wclsh Companies, a Minnesota corporation (the "Redeveloper"). WITNESSETH: that I WHEREAS, on or before the date hereof the Authority and Redeveloper have entered into a Contract for Private Redevelopment (the "Agreement") regarding certain real property I located in the City of Arden Hills, pursuant to which the Authority is to acquire certain property, hereinafter referred to as the Redevelopment Property and legally described in Exhibit A hereto; I and WHEREAS, it is contemplated that pursuant to said Agreement the Redeveloper will I construct an office/warehouse development on the Redevelopment Property; and WHEREAS, the Authority and Redeveloper desire to establish a minimum market value I for said land and the improvements to be constructed thereon, pursuant to Minnesota Statutes Section 469.177, Subdivision 8; and WHEREAS, the Authority and the County Assessor for the County of Ramsey have I reviewed the preliminary plans and specifications for the improvements which it is contemplated will be erected. ., NOW, THEREFORE, the parties to this Agreement, in consideration of the promises, covenants and agreements made by each to the other, do hereby agree as follows: I 1. Commencing on January 1, 199_, the minimum market value which shall be assessed for the land described in Exhibit A and the above described improvements shall be not I less than Dollars ($ ) and eommencing on January 1, 199_, the minimum market value which shall be assessed for the land described in Exhibit A I and the above described improvements shall be not less than Do llars ($ ). 2. This Agreement shall terminate in its entirety on the Termination Date, as defined I in the Agreement. 3. This AgreemelH shail be promptly recorded by the Redeveloper. The Redeveloper I shall pay all costs of recording. 4. Neither the preambles nor provisions of this Agreement are intended to, nor shall I they be construed as, modifying the terms of the Agreement between the Authority and the I Redeveloper. C-2 .. I - I I 5. This Agreement shall inure to the benefit of and be binding upon the successors It and assigns of the parties. ARDEN HILLS ECONOMIC DEVELOPMENT AUTHORITY I By I Its By I Its I WELSH COMPANIES By I Its I By Its Ie STATE OF MINNESOTA) )ss. COUNTY OF ) I The foregoing instrument was acknowledged before me this _ day of _, 1997, by and , the and I of the Arden Hills Economic Development Authority, a public body politic and corporate, on behalf of the Authority. I Notary Public I STATE OF MINNESOTA) )ss. I COUNTY OF ) - The foregoing instrument was acknowledged before me this day of , I 1997, by and , the and of Welsh Companies, a Minnesota corporation, on behalf of the corporation. I fI Notary Public C-3 I .. CERTIFICATION BY COUNTY ASSESSOR I The undersigned, having reviewed the plans and specifications for the improvements to .. be constructed and the market value assigned to the land upon which the improvements are to be constructed, and being of the opinion that the minimum market value contained in the foregoing I Agreement appears reasonable, hereby certifies as follows: The undersigned assessor, being legally responsible for the assessment of the above described property, certifies that the market values assigned to such land and improvements upon completion of the improvements are I reasonable. . County Assessor for the County of Ramsey . STATE OF MINNESOTA) )ss. I COUNTY OF ) The foregoing instrument was acknowledged before me this day of , I 1997, by the County Assessor for the County of Ramsey. .. Notary Public I I I I - I I I C-4 .. I '. PURCHASE AND SALE AGREEMENT I THIS AGREEMENT is made as of the day of 1997 by and between .. the City of Arden Hills, a statutory city under the laws of the State of Minnesota, whose principal business address is 1450 West Highway 96, Arden Hills, Minnesota 55112 ("Seller"), and Welsh I Companies, a , whose principal business address IS ("Purchaser"). For and in consideration of the mutual covenants hereinafter contained, Seller and I Purchaser agree as follows: 1. PROPERTY. For the price and upon and subject to the terms and I conditions hereinafter set forth, Seller agrees to sell and convey to Purchaser and Purchaser I agrees to purchase from Seller the following described property (collectively, the "Property"): (1) The parcel of land in the City of Arden Hills, Ramsey County, Minnesota, I and legally described in Exhibit A attached hereto and made a part hereof, which parcel contains approximately 293,986 square feet (the "Land"); (2) All buildings, structures and all other improvements, if any, located on the I Land (the Improvements"); (3) All right, title and interest of Seller in and to all private streets, roads, eI avenues, alleys and passageways, opened or proposed, on the Land; and (4) All and singular the estates, rights, privileges, easements, and I appurtenances belonging or in any way appertaining to the Land and the Improvements. 2. EARNEST MONEY AND PURCHASE PRICE. I The Purchase Price for the Property shall be Three Hundred Twenty Three Thousand . Three Hundred Eighty Five Dollars ($323,385.00) (the "Purchase Price") and shall be payable as follows: I (I) Upon execution of this Agreement, the Purchaser has deposited with (the "Title Company"), the sum of I Dollars ($ ) in cash, corporate check or wire transfer of funds (said sum, together with all interest earned thereon, is herein called the "Earnest Money"). The Earnest Money shall be held by the Title Company in escrow in an interest bearing I account for the benefit of the parties hereto. (2) At "Closing" (as hereinafter defined), the Earnest Money shall be paid to I Seller, and Purchaser shall pay the balance of the Purchase Price in cash or by certified check made payable to Seller or wire transfer of funds. .. Rjdlagreementlarden hills pal I ----- ------ I I f' 3. SURVEY. Within thirty (30) days after the date hereof, Purchaser shall cause a certified ALTA survey of the Property ("Survey") to be prepared by a surveyor licensed by the State of I Minnesota. The Survey shall be certified to Purchaser and the Title Company and shall show (a) the location by courses and distances of the Property with all boundaries staked, (b) all easements I on or appurtenant to the Property, (c) all encroachments, the extent thereof and established building lines, (d) the location of all means of ingress and egress to and from the Property and to and from all abutting public streets, (e) the size and location of all Improvements, if any, on the I Property, (f) the topographical features of the Property at one foot contour intervals, and (g) such other pertinent facts as requested by Purchaser. The Survey shall be accompanied by a current surveyor' s certificate in a form reasonably acceptable to Purchaser and the Title Company. I Purchaser shall be responsible for the cost of the Survey. 4. TITLE. I (A) Within twenty (20) days after the date hereof, Purchaser shall obtain from the Title Company a commitment (the "Title Commitment") for a standard ALTA Form B owner's I title insurance policy (except that the standard exceptions relating to survey matters, rights of parties in possession, mechanic's liens, easements or claims of easements not of record, and taxes and assessments not shown by the public records, shall be eliminated) (the "Title Policy") to be Ie issued upon Closing by the Title Company in the amount of the Purchase Price, insuring that as of the recording of the "Deed" (as hereinafter defined) good and marketable fee simple title to the I Property is vested in Purchaser subject only to the "Permitted Exceptions" (as hereinafter defined). The Title Commitment shall identifY the Land by the legal description set forth on the Survey, provided that if the Survey has not been prepared at the time the Title Commitment is I ordered, by a preliminary legal description. In the event the description contained on the Survey differs from the preliminary legal description, Purchaser shall cause the Title Company to update the Title Commitment following its receipt of the Survey description. Seller shall be responsible I for the costs, if any, of the Title Commitment, and Purchaser shall be responsible for the cost of the Title Policy. I (B) Purchaser shall have a period of ten (10) days after receipt of the Title Commitment (including copies of all instruments described therein as exceptions to title) and the Survey (the "Title Review Period"), to notify Seller of any objections to or defects in the I condition of title; PROVIDED, HOWEVER, that title exceptions pertaining to liens or encumbrances of a definite or ascertainable amount that may be removed by the payment of I money ("Liens") at Closing shall not be deemed to make the Title Commitment unacceptable and SeIler, at SeIler's option, may use the Purchase Price to satisfY such Liens. Those exceptions to title which are disclosed by the Title Commitment (other than Liens) and are not objected to by I Purchaser shall be deemed to be the "Permitted Exceptions." If such objection notice is not delivered to Seller within the Title Review Period, the condition of Seller's title as disclosed by .. the Title Commitment shall be deemed approved by Purchaser, and Purchaser shall take title subject to the exceptions set forth therein without any reduction in the Purchase Price except for any Liens, If an objection notice is timely delivered, Seller shall use reasonable efforts to cure or I 2 I I remove all such objections prior to the "Closing Date" (as hereinafter defined). If any objection .. has not been cured or removed prior to the Closing Date, Purchaser, at its election, shall either (i) accept the Title Commitment as it is, subject to the right to deduct the amount of all Liens from the Purchase Price; (ii) terminate this Agrcement; or (iii) extend the Closing Date for a period that Purchaser and Seller decm reasonable for curing such objections, but not to exceed ninety I (90) days. If all objections to title are not cured within such cxtended period, if any, Purchaser shall then elect either (i) or (ii) abovc. Upon any such termination, each party shall be released from all duties or obligations contained herein (except for any liabilities accming prior to such I termination) and in such event the Earnest Money shall be refunded to Purchaser and the parties shall execute an agrcement in recordable form canceling this Agreement. I 5. DEVELOPMENT AGREEMENT. Seller shall have the right to rcview and approve Purchaser's plans and specifications for I the constmction of the buildings and other improvements to be located On the Property in accordance with that certain Development Agreement dated as of , 1997, (the I "Contract") between the Purchaser and the Arden Hills Economic Development Authority (the "Authority"). Purchaser covenants and agrees to comply with the provisions of the Contract relative to the development of the Land. I 6. WETLANDS MITIGATION. As further consideration for the Seller's conveyance of the Property to the Purchaser, the .. Purchaser agrees that the Seller will be responsible for any wetlands mitigation that will be necessary by virtue of the constmction of the Public Improvements to be constmcted by the I Authority pursuant to the Contract. The Purchaser's obligations with respect to wetlands mitigation is more fully described in Section _ of the Contract. I 7. Use. Purchaser agrees that the Property shall only be used for the constmction and operation of I the improvements described in the Contract. 8. REPRESENTATIONS AND WARRANTIES. I (A) Seller represents and warrants to Purchaser as follows, which representations and warranties shall be deemed made by Seller as of the date hereof and as of the Closing Date, shall I survive the Closing, and but for such representations and warranties, Purchaser would not execute this Agreement: I (1) There are no other parties in possession of any portion of the Property. (2) There are no pending or, to the best of Seller's knowledge, threatened I actions, suits, condemnation or other proceedings before or by any judicial body or any governmental authority, against or affecting Seller or the Property. .. 3 I I I It (3) Seller has the present full authority and power to execute this Agreement and to close the sale of the Property. (4) (a) (i) Neither the Property nor any portion of the Project has ever been I used by Seller to generate, manufacture, refine, transport, treat, store, handle, or dispose of (collectively, "Use") any "Hazardous Material" (as hereinafter defined), (ii) Seller has no actual knowledge of the use of any Hazardous Material on, under, or in the Property or I any portion of the Project, except as may be stated in the environmental assessment referenced in Section 10, (iii) Seller has no actual knowledge of any actions, claims, suits, I or proceedings pending or threatened against Seller or the Property or any portion of the Project which relate to any violation or alleged violation of any "Environmental Laws" (as hereinafter defined); and (iv) so long as Seller retains an interest in the project, Seller I shall (A) not permit any Hazardous Material to be Used on, under, or in the land, (B) comply, and shall cause all other persons to comply, with all Environmental Laws applicable to the project and (C) notify Purchaser immediately and in writing of any I proceedings, actions, suits, or claims pending or threatened against Seller relating to any violation or alleged violation of any Environmental Laws with respect to the same. I (b) Seller shall indemnify and hold harmless Purchaser from and against all damages, loss, costs, actions, causes of actions and reasonable attorneys, fees and expenses arising out of a breach of the foregoing warranties and representations. Ie (c) As used herein, I (i) "Hazardous Material" shall be defined as any substance, waste, or material now or hereafter determined by any Governmental Authority to pose a I risk of injury to health, safety and/or property, including but not limited to (A) all materials, wastes and substances now or hereafter designated as hazardous or toxic by the United States Environmental Protection Agency, the United States I Department of Labor, the United States Department of Transportation or any other Governmental Authority, (B) all materials, wastes and substances now or hereafter designated or defined as hazardous, extremely hazardous or toxic I pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. 9601, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.), or any other Environmental Laws, and (C) asbestos, I urea formaldehyde, polychlorinated biphenyls, and petroleum products. I (ii) "Environmental Laws" shall be defined as all present or future laws, statutes, treaties, rules, regulations, orders, ordinances, permits, licenses, judgments or decrees enacted by any Governmental Authority to regulate any I materials, wastes and/or substances in the environment. (5) Seller possesses good and marketable fee simple title to the Property (or is fj a party to a valid and binding contract to acquire such title and will do so on or before I 4 1 Closing and shall transfer title to the same to Purchaser by special warranty deed (the I -. "Deed") dated as of the Closing, subject only to the Permitted Exceptions. The Land is assessed as a separatc tax parcel by the taxing authorities (6) having jurisdiction thereof. I (7) Seller is not a "foreign corporation, "foreign partnership" or "foreign estate" as those tenns are defined in the Internal Revenue Codc of 1986, as amended, and I that Seller will furnish to Purchaser a so-called "FIRPT A" certificate verifying thc foregoing. (B) Purchaser represents and warrants to Seller that Purchaser has the full authority I and power to execute this Agreement and to close the sale of the Property, which representation I and warranty shall be deemed made by Purchaser to Seller as of the Final Execution Date and again as of the Closing Date, shall survive the Closing and, but for such representation and warranty, Seller would not execute this Agreement. I 9. RISK OF LOSS; CONDEMNATION. (A) Seller shall bear the risk of loss until Closing. All hazard insurance, if any, I maintained by or on behalf of Seller in respect to the Property shall be canceled as of the Closing Date. .. (B) If, prior to the Closing Date, all or any part of the Property shall be condemned by governmental or other lawful authority, Purchaser shall have the option of either (i) completing I this transaction, in which event (a) there shall be no reduction of the Purchase Price, (b) Seller shall have no duty to repair or restore, (c) Seller shall pay to Purchaser all condemnation proceeds theretofore or thereafter received by Seller with respect to such condemnation, (d) I Seller shall assign to Purchaser all rights of Seller in and to such condemnation proceeds, and (e) Seller shall furnish to Purchaser such documents, cooperation and assistance as Purchaser I requires to enforce the rights of Seller with respect thereto; or (ii) terminating this Agreement, in which event the Earnest Money shall be returned to Purchaser and neither party shall have any further obligation to the other hereunder and the parties shall execute an agreement in recordable I form canceling this Agreement. 10. SUITABILITY; INSPECTION PERIOD. I (A) Purchaser shall have from the date hereof until , 1997, (the "Inspection Period") to determine whether the Property is suitable for Purchaser's intended development and I operation with regard to the following criteria (the "Purchaser's Criteria"). Purchaser shall use diligent, good faith efforts to satisfY the Purchaser's Criteria. To assist Purchaser in its determination of the suitability of the Property for the intended I use, Seller shall, within U days of the date hereof, deliver to Purchaser copies of all .. documents which pertain to restrictive covenants, plans, plats, surveys, reports, tests, studies, title 5 I I I I' materials (including copies of exception documents referenced in the title policy or title commitment, as the case may be), and environmental information that are in Seller's possession. I (I) Purchaser may, at its sole risk, cost and expense, conduct or cause to be conducted soil conditions, and/or hazardous materials engineering tests and/or environmental assessments of the Land and in this connection, it or its designated agents I may enter upon the Land for purposes of inspection, soil analysis, core drilling or other tcsts that may be deemed necessary or desirable by Purchaser or its engineer (including, without limitation, engineering tests to determine the existence, if any, of any geological I faults in or undermining of the subsurface of the Land and the location thereof). Purchaser shall restore or repair any damage caused, related to or arising out of Purchaser's conducting of these tests. Purchaser shall indemnify, hold harmless and, at I Seller's option, defend Seller against any and all claims, actions, causes of actions, expenses, costs, penalties and liability arising out of its work or those of its employees, agents or contractors on the Land which indemnity shall also include the payment of I reasonable attorneys' fees. I (2) Purchaser shall determine whether the improvements contemplated by Purchaser for the Property and the use thereof are permitted by all governmental or quasi- governmental authority (local, state or federal), including but not limited to zoning, Ie subdivision and special use authorities. (3) Purchaser, at its sole cost and expense, shall determine that it shall have I the right to construct and operate upon the Property, upon proper application to the appropriate governmental authorities and at a cost reasonably acceptable to Purchaser, its proposed buildings and other improvements. Said applications and approvals (the I "Governmental Approvals") shall include, but shall not be limited to, the proper zoning and all other authority to construct Purchaser's buildings and all other necessary or desirable improvements (including Purchaser's signage). I (4) Purchaser shall have satisfied itself as to the environmental condition of I the Land, based on environmental testing pursuant to this Section 10 and any environmental reports furnished to the purchaser by the Seller pursuant to this Section 10. I (B) If Purchaser shall determine that it is not possible to develop the Property as intended by Purchaser, then Purchaser may terminate this Agreement by giving notice (the "Termination Notice") of its election to do so to Seller on or before the expiration of the I Inspection Period. The Termination Notice shall set forth the reasons for the termination of this Agreement in reasonable specificity. Upon such a termination, the Earnest Money shall be returned to Purchaser, If the Termination Notice is not given on or before the expiration of the I Inspection Period (as the same may extended as herein provided) then Purchaser shall be conclusively presumed to have irrevocably waived the right to terminate under this Section 10 if and to have accepted the Property in its "as is" condition and the Seller shall have no liability to the Purchaser on account of any conditions existing on the Land. I 6 I (3) Seller shall have executed and delivered or caused to be executed and I -. delivered to Purchaser and/or the Title Company, as herein provided, all documents, instmments and information required to be delivered by Seller. (4) Seller shall have complied with all of its other obligations under this I Agreement 13. CLOSfNG. I (A) Provided all of the conditions to closing set forth in this Agreement have been I satisfied or waived by the parties, and this Agreement has not been terminated by either party in accordance with the provisions herein set forth, the closing hereunder (the "Closing") shall be through an escrow with the Title Company on the Closing Date. The Closing shall occur on I ,1997. (B) The Closing shall be effected in accordance with the following procedure: I (1) Not less than five (5) days prior to the Closing Date, Purchaser shall cause the Title Company to prepare and deliver to Purchaser and Seller a preliminary closing I statement for each party showing all amounts due from each party, including all closing costs and expenses computed as set forth in this Agreement. (2) On or before the Closing Date, Seller shall deliver or cause to be delivered eI to the Title Company the following; (a) Full releases of all mortgages, deeds of tmst and other financing I instruments affecting the Property, duly executed by the holders thereof, I acknowledged and in proper form for recording. (b) The Deed, in a form reasonably approved by Purchaser and the I Title Company. (c) Such instruments and documents relating to the organization, I existence and authority of Seller as the Title Company shall require. (d) Such other documents, instruments, certificates and assurances as I shall be required by the provisions ofthis Agreement (e) Seller's closing statement, duly executed. I (f) Such closing instructions to the Title Company as Seller shall I desire, which shall not be inconsistent with the provisions of this Agreement ("Seller's Instructions"). -. 8 I __n I I It (3) On or before the Closing Date, Purchaser shall deliver or cause to be delivered to the Title Company the following: I (a) By federal wire transfer of fnnds to the Title Company's escrow account, an amonnt equal to (i) the balance of the Purchase Price due at Closing, adjusted as herein provided, plus (ii) the aggregate amonnt of closing costs for I which Pmchaser is responsible as provided herein, all as shown on Pmchaser's closing statement. I (b) Such instruments and documents relating to the organization, existence and authority of Pm chaser as the Title Company shall require. I (c) Pmchaser's closing statement, duly execnted. (d) Such closing instructions to the Title Company as Pmchaser shall I desire, which shall not inconsistent with the provisions of this Agreement ("Purchaser's Instructions"). I (4) The parties shall obtain the advice of the Title Company as to whether it is in a position to (a) cause the Deed to be immediately recorded in the real estate records, Ie and (b) immediately issue the Title Policy to Purchaser. If the Title Company shall advise affirmatively on the foregoing matters, then the parties shall instruct the Title Company to proceed to close the escrow in accordance with Seller's Instructions and I Purchaser's Instructions. (5) All costs and expenses of Closing the purchase and sale of the Property I shall be borne and paid at Closing unless otherwise stated herein, as follows: By Seller: Seller's Attorneys' Fees I Charges, if any, for the Title Commitment Transfer Taxes I One-half of the Escrow Fees of the Title Company By Purchaser: Purchaser's Attorneys' Fees I Premiums for the Title Policy Recording Fees for Deed, except for Transfer Taxes One-half of the Escrow Fees of the Title Company I Survey Charges 14. DEFAULT AND REMEDIES. I (A) In the event Purchaser fails to comply with any or all of the obligations, .. covenants, warranties or agreements to be performed, honored or observed by Purchaser under and pursuant to the terms and provisions of this Agreement and such default is not cured within fifteen (15) days after notice thereof from Seller (other than Purchaser's failure to tender the I 9 I Purchase Price at Closing, a default for which no notice is required), then Seller may terminate I this Agreement and either (i) retain the Earnest Money as liquidated damages and both parties .. shall be released from any further liability hereunder except for the indemnification provisions of Section 18 hereof, or (ii) seek an action for speci fic performance against Purchaser to enforce the provisions ofthis Agreement. In addition, the Seller shall be entitled to pursue such other rights I and remedies which Seller may have at law or in equity by reason of Purchaser's default. (B) In the event Seller fails to comply with any or all of the obligations, covenants, I warranties or agrecments to be performcd, honored or observed by Seller under and pursuant to the terms and provisions of this Agreement, and such default is not cured within fifteen (15) days after notice thereof from Purchaser, then Purchaser may either (i) terminate this Agreement, in I which event the Earnest Money shall be refunded to Purchascr and both parties shall be released from any further liability hereunder, or (ii) seek an action for specific performance against Seller to enforce the provisions of this Agreement. In addition, the Purchaser shall be entitled to pursue I such other rights and remedies which Purchaser may have at law or in equity by reason of Seller's default. (C) The failure of either party to act upon a default of the other in any of the terms, I conditions or obligations under this Agreement shall not be deemed a waiver of any subsequent I breach or default under the terms, conditions or obligations hereof by such defaulting party. 15. NOTICES. .. All notices, consents and other communications herein required or which either party desire to give to the other ("Notices") shall be in writing and personally delivered or sent by I registered or certified mail or by overnight delivery service, postage prepaid, return receipt requested and shall be mailed to the parties at the respective addresses as provided below: If to Seller: City of Arden Hills I 1450 West Highway 96 I Arden Hills, Minnesota 55112 Attn: City Administrator I I I I .. to I I I If to Purchaser: It Attention: I All Notices shall be effective upon being deposited in the United States mail or delivered to the overnight courier in the manner prescribed above; however, the time period in which a response I to any such Notice must be given shall commence to nm from the date of receipt by the addressee thereof as shown on the return or courier receipt of the Notice. Rejection or other I refusal to accept or the inability to deliver because of changed address of which no Notice was given shall be deemed to be receipt of the Notice as of the date of such rejection, refusal or inability to deliver. I 16. MISCELLANEOUS PROVISIONS. I (A) Any of the representations, warranties, covenants and agreements of the parties, as well as any rights and benefits of the parties, pertaining to a period of time following the Closing of the transactions contemplated hereby, shall survive the Closing and shall not be merged I therein. (B) This Agreement shall be construed under and in accordance with the laws of the Ie State of Minnesota and according to its fair meaning and not in favor of or against any party. (C) This Agreement shall be binding upon and inure to the benefit of the parties I hereto and their respective heirs, legal representatives, successors and assigns. I (D) If any term, provision or condition contained in this agreement shall, in any extent, be held to be invalid, illegal or unenforceable in any respect, the remainder of this Agreement (or the application of such term, provision or condition to persons or circumstances I other than those in respect of which it is invalid, illegal or unenforceable) shall not be affected thereby, and each and every other term, provision and condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. I (E) This Agreement constitutes the sole and only agreement of the parties hereto and supersedes any prior understandings or written or oral agreements between the parties respecting I the within subject matter. This Agreement cannot be amended or modified except by written agreement signed by Purchaser and Seller. I (F) All parties hereto pledge their reasonable good faith efforts to act in a timely and reasonable manner to consummate the transaction herein contemplated. I (G) Timely performance by Seller and Purchaser is of the essence in this Agreement. if I 11 1 I (H) Words of any gender used in this Agreement shall be held and construed to -. include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires othetwisc. (I) The paragraph headings herein are for reference purposes only and arc not I intended in any way to describe, interpret, define or limit the scope, cxtent or intent of this Agreement or any part hereof. Thc failure by cither party to enforce against the other any term or I provision of this Agreement shall be deemed not to be a waiver of such party's right to enforce against the other party the same or any other such term or provision. (J) This Agreement may be executed in multiple originals or counterparts, each of I which will be an original and, when all of the parties to this Agreement have signed at least one (I) copy, such copies together will constitute a fully executed and binding Agreement. I (K) If either party files any action or brings any proceeding against the other arising out of this Agreement, or is made a party to any action or proceeding brought by a third party I arising out of this Agreement, then as between Purchaser and Seller, the prevailing party shall be entitled to recover, as an elemcnt of its costs of suit and not as damages, reasonable attorneys' fees to be fixed by the court. I (L) If either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by rcason of strikes, lockouts, labor troubles, fires, .. Acts of God, natural disasters, inability to procure material, failure of power, restrictive governmental laws or regulations, riots, insurrection, war or other reason of a like nature not the I fault of the party delayed in performing work or doing acts required under this Agreement, the period for the performance of any such work or act shall be extended for a period equivalent to the period of such delay. I (M) Each party represents and warrants to the other that neither it nor its agents or representatives have engaged or dealt with any broker, agent or finder with respect to the I transaction contemplated herein, except for who is to receive a commission from (in the amount and pursuant to the terms agreed to between and said broker), and each party agrees to indemnifY and hold harmless the I other party from any and all claims, costs, liabilities and expenses (including court costs and reasonable attorneys' fees) incurred by the other party as a result of the indemnifYing party's breach of its representation and warranty hereunder. I 17. PURCHASER'S INDEMNTFICA TION. I In the event that this Agreement is terminated by either Purchaser or Seller prior to Closing, and notwithstanding the fact that such termination shall release Purchaser from its I obligation to buy the Property, nothing herein shall be deemed to release Purchaser from any liability arising out of Purchaser's activities (or those of its employees, agents, or contractors) on .. the Land, including, but not limited to, its actions on the Land while exercising its rights pursuant to Section 10 hereto. This provision shall survive Closing of the transaction herein 12 I I I It contemplated and the delivery of the Deed. Nor shall any termination of this Agreement relieve the Purchaser from any of its obligations or liability under the Contract, unless specifically so stated in the Contract. I IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written. I "SELLER" CITY OF ARDEN HILLS I By: I Name: Title: I By: Name: Title: I Ie "PURCHASER" WELSH COMP ANlES I By: Name: I Title: By: I Name: Title: I I I I ~ I 13 ----