HomeMy WebLinkAbout04-09-07 Item 7B, AUAR Relating to TCAAP
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Request for Council Action
04;09/07
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Agenda Item:
Motion to approve the contract with SRF Consulting Group, Inc for the preparation
of an Alternative Urban Areawide Review relating to the TCAAP Redevelopment
Project
lfudgeted Amount: 250,000.00
Actual Amount: ...Nollo.excee,f"$25iJ;ijoi]:oo
Funding Source Re'i'mbiir~.~'men'f'by-'RRI~.~~.~~
78
Prepared By:
Karen Barton
Dept::
Community Development
Council Mtg. Date:
Final Action Needed By:
Motion to approve the Contract dated 3, 2007 with SRF Consulting Group, Inc., for the Completion
Alternative Urban Areawide Review (AUAR) Relating to the TCAAP Redevelopment Project in an Amount
to Exceed $250,000
Approval the Contract April 3, 2007 with SRF Consulting Group, Inc., the Completion of
Alternative Urban Areawide Review (AUAR) Relating to the TCAAP Redevelopment Project in an Amount
to Exceed $250,000
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!Resolution No.:
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'Ordinance No.:
'Engineering Recommendation:
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iAttorney Recommendation:
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i The costs associated with this project will be reimbursed by RRLD, LLC per the terms of the PDA
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EN HILLS
MEMORANDUM
DATE:
April 2, 2007
Agenda Item 7B
TO:
Mayor and City Council
Michelle Wolfe, City Administrator , Jr.-P7(
Karen Barton, Community Development Director ~ (/
FROM:
SUBJECT:
Alternative Urban Areawide Review (AUAR) Consulting Services Contract with
SRF
In early September of last year, our Developer for the TCAAP project, RRLD, LLC (formerly
CRR), issued a Request for Proposals (RFP) for consulting services relating to a number of tasks
associated with the TCAAP redevelopment, including Master Planning, Traffic Impact Study,
AUAR Environmental Study, Stage One, PUD, and Development of a Landscape Plan. The RFP
was issued encompassing all of these tasks to streamline the process and allow for effective
integration and collaboration amongst the firms responding.
On September 19 of last year, City Staff, along with several Ryan employees, interviewed a
number of firms responding to the performance of these tasks. After conducting second
interviews with three of the firms and checking references, City Staff recommended SRF to
prepare the City's AUAR Environmental Study.
In October of last year, Council approved contracting with SRF to prepare the Alternative Urban
Areawide Review (AUAR) for the proposed TCAAP redevelopment project, subject to the
Council approving the contract with SRF at a future meeting and further subject to approval of a
funding source by the City Council. (Attachment A)
City of Arden Hills
City Council Meeting
April 9, 2007
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Attached is the contract for the AUAR between the City and SRF. City Attorney Jerry Filla has
reviewed the contract and finds it acceptable. (Attachment B)
The Preliminary Development Agreement (PDA) between the City and RRLD, LLC provides for
funding of this contract in an amount not to exceed $250,000. (Attachment C - PDA Exhibit C)
Staff Recommendation
Staff is recommending Council approve the contract with SRF Consulting Group, Inc. to conduct
the Alternative Urban Areawide Review relating to the proposed TCAAP redevelopment in an
amount not to exceed $250,000.
City of Arden Hills
City Council Meeting
April 3, 2007
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Council Meeting
Agenda Item 78
April 9, 2007
ATTACHMENT A
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~IDLLS
Approved: 10/30/06
CITY OF ARDEN HILLS, MINNESOTA
REGULAR CITY COUNCIL MEETING
OCTOBER 10, 2006; 7:00 P.M.
ARDEN HILLS CITY COUNCIL CHAMBERS
PLEDGE OF ALLEGIANCE
CALL TO ORDER/ROLL CALL
Pursuant to due call and notice thereof, Mayor Beverly Aplikowski called to order the regular
City Council meeting at 7:02 p.m.
Present:
Mayor Beverly Aplikowski, Councilmembers David Grant (arrived at 7:20
p.m.), Gregg Larson, and Brenda Holden.
Absent:Councilmember Vincent Pellegrin (excused).
Also present were City Administrator, Michelle Wolfe; City Attorney, Jerry Filla; Community
Development Director, Karen Barton; City Planner, James Lehnhoff; and Recording Secretary,
Kathleen Altman.
1. APPROVAL OF MEETING AGENDA
Councilmember Holden requested tern 7F be added to New Business: Appointment of Gregory
Hoag as Public Works Director.
Mayor Aplikowski requested item 3G. be pulled from the Consent Calendar and added as item 4A.
MOTION: Councilmember Holden moved and Councilmember Larson seconded a motion
to approve the meeting agenda as amended. The motion carried unanimously
(3-0).
2. APPROVAL OF MINUTES
ARDEN HILLS CITY COUNCIL - OCTOBER 10, 2006
2
A. September 25, 2006 City Council Meeting
B. September 18,2006 Work Session Meeting
C. September 11,2006 City Council Meeting
D. August 10, 2006 City Council Meeting
E. July 25, 2006 City Council Meeting
MOTION: Councilmember Larson moved and Councilmember Holden seconded a motion
to approve the September 25, 2006 City Council Meeting Minutes as
presented, the September 18, 2006 Council Work Session Minutes as
presented, the September 11, 2006 City Council Meeting as presented, the
August 10, 2006 City Council Meeting as presented, and the July 25, 2006
City Council meeting as presented. The motion carried unanimously (3-0).
3. CONSENT CALENDAR
a. Claims and Payroll
b. Resolution No. 06-48: A Resolution Appointing the 2006 General Election Judges
c. Resolution No. 06-50: Resolution Requesting Funding from MnDOT through the Municipal
Agreement Program for Pedestrian hnprovements to County Road E Bridge over Trunk
Highway 51
d. Motion to Approve City Administrator Michelle Wolfe's Performance Evaluation and
Salary Step Increase
e. Motion to Or.aer Pr<lparation of tile 2QO? Feasibility Report fur the 200? PM}> Projeet
f Motion to Approve the Printing of a Legal Notice Summarizing Ordinance No. 380
"Animals and Pets" of the Arden Hills City Code
g. Motion to ,^.ppro','e a Contfaet ,-,,.itll Steplloo. 1. BlIblll of Kennedy & GFavcn Chartemd to
Pro'/ide Legal Seryices R<llating to the Purchase ofthc Twin Cities ,^.nny f.Illfll\lflitiOfl Plant
MOTION: Councilmember Larson moved and Councilmember Holden seconded a motion
to approve the Consent Calendar and to authorize execution of all necessary
documents contained therein. The motion carried unanimously (3-0).
4. PULLED CONSENT ITEMS
A. Matian ta .^~ppraYe R Cantract ~ith Stephen J. BlIbnl af Kennedy & Craven Chartered
ta Pravide LeeRl Senices RelRtine: ta the PlIrchase af the Twin Cities f~rmy
:' .mmaBitian PIllBt
Mayor Aplikowski moved item 4A to 7G.
ARDEN HILLS CITY COUNCIL - OCTOBER 10,2006
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5. PUBLIC INOUlRIES/INFORMATIONAL
None.
6. PUBLIC HEARINGS
A. Royal Oaks - Vacating of a 20 foot wide Pedestrian Walkway Easement at the Old
City Hall Site
Mr. Lehnhoff stated Royal Oaks Realty was requesting the vacation of the Pedestrian Walkway
Easement. The easement was approximately 20 feet wide by 280 feet long and was located on the
former Arden Hills City HalllPublic Works property at 1440-1450 West Highway 96.
Mr. Lehnhoff also stated that he recommends that condition one be removed from the staff
recommendation. Since the easement would need to be vacated for anyone that purchased this
property, the vacation should not be contingent upon conveying the trail along the western side of the
property to the City. He stated the City would require anyone purchasing the property to convey the
trail to the Oty. Should Royal Oaks decide to not develop the property, the City would have to
address this easement again in the future if the condition is kept.
Conncilmember Holden asked why we would want to vacate this easement without the condition.
Mr. Jerry Filla stated that the City is the fee owner of the property, and the City Could place future
easement on the property.
Mayor Aplikowski opened the public hearing at 7:10 p.m.
There were no comments made.
Mayor Aplikowski closed the public hearing at 7:11 p.m.
MOTION: Councihnember Larson moved and Councihnember Holden seconded a motion
to approve the Resolution 06-49 to vacate the 20 foot wide pedestrian
walkway easement at 1440-1450 West Highway 96. The motion carried
unanimously (3-0).
7. NEW BUSINESS
A. Planning Case 06-028; Site Plan Review - Hien Ngo & Nguyet Ky; 3433 Lake
Johanna Boulevard
Mr. Lehnhoff stated the Planning Commission reviewed the re-landscaping plan and unanimously
voted to table the application at their October 4, 2006 meeting. While the landscaping plan was moving
ARDEN HILLS CITY COUNCIL - OCTOBER 10, 2006
4
in the right direction, the Commission tabled the application in order to obtain additional information
regarding the shore land restoration, the stormwater pipe and easement along the northern edge of the
property, clariJying the duration of the financial surety, and the trees near the western edge of the
property. If the applicant can submit revised plans in time for the next Planning Commission meeting,
the site plan review would appear on the November I, 2006 Hanning Commission agenda. He
indicated no action was required from the Council at this time.
B. Planning Case 06-029; Final Plat - Roval Oaks Realty, Inc., 1440 - 1450 West
Highwav 96
Mr. Lehnhoff stated the City Attorney had reviewed the bylaws, articles, and declarations and sent the
needed changes to the applicant. The requested changes were largely technical in nature to ensure that
the legal documents confOrm to the conditions in the PUD approvaL He indicated the Planning
Commission recommended approval of the Final Plat based on the submitted plans and six conditions.
MOTION: Mayor Aplikowski moved and Councilmember Larson seconded a motion to
approve the Final Plat subject to the submitted plans and recommended six
conditions and the recommended site development agreement.
Ms. Barton stated the applicant had requested this be tabled due to possible site contamination, but it
was under staffs recommendation this not be tabled to be in compliance with the agreement.
Mike Black stated they had requested this item be tabled and there was some contamination on the
site, but it was felt that it could be cleaned up on site. He stated since his conversation with staff this
morning, they had received further information and there were no large concerns regarding this and he
approved this going fOlWard tonight.
Councilmember Holden stated she would be voting against this. She believed the City had made a
mistake by approving this and would learn from this mistake on future developments.
The motion carried (2-1) (Councilmember Holden opposed).
C. Planning Case 06-030; Variance - Brad & Sara Lis, 1548 Arden Place
Councilmember Grant arrived at 7:20 p.m.
Mr. Lehnhoff stated the applicant was requesting two variances for 1548 Arden Place, which was
located in the Ridgewood neighborhood on the northeastern comer of Lake Johanna. The first variance
request was to permit the property to have two access points to Arden Place, and the second variance
request was to permit the driveway to be a crushed rock surface instead of an improved surface. The
requests are not contingent upon each other. He indicated the Planning Commission unanimously
recommended denial of both variances based on ten [mdings offact.
ARDEN HILLS CITY COUNCIL - OCTOBER 10, 2006
5
He indicated he had received an email from Paul and Mary Crosby, 1385 Arden Place, in support of
the variance.
Councilmember Holden asked what was in the plan Mr. Lis submitted. Mr. Lehnhoff stated that the
building plan provided by Mr. Lis showed the driveway as being a crushed rock driveway, which was
marked as approved by the building department. He noted the plan did not include the two access
driveway however.
Councilmember Holden asked when the building permit had been closed out. Mr. Lehnhoff
responded the building permit has not been closed out.
Brad Lis, 1548 Arden Place, stated they believed the crushed gravel had been approved by the City.
He stated they had changed the configuration of the driveway along the way with the thought that they
were doing it with the approval of the City. He stated the first time they knew they had an issue about
this was a few weeks ago. He believed the driveway fit nicely into the neighborhood. He noted the
driveway had been there for over three years. He believed this would constitute a hardship because of
the loss of trees. He noted there were other instances of the two driveway access and he believed it
added a nice feature to the neighborhood. He asked Council to grant this variance request.
Councilmember Holden asked how many two access driveways were in the neighborhood. Mr.
Lehnhoff responded there were at least two driveways in the neighborhood that had dual accesses.
Sarah Lis, 1548 Arden Place, stated there were six residences in this area that had double access
driveways. She mted this was a large percentage of driveways in the neighborhood. She indicated
there were other double accesses outside of this neighborhood also.
Councilmember Grant asked if the City had not done the Siems Court road project, if it was quite
likely this would not have been discovered and the driveway would have existed for years. Mr.
Lehnhoff responded he believed this would have been caught at some point because the building
inspector has been catching up with the building permits, but it was the road project that brought this to
the City's attention.
Councilmember Grant asked if the City stamped this as approved, wouldn't that be considered a
variance. Mr. Lehnhoff responded legally it was not a variance.
Councilmember Grant stated he was familiar with this neighborhood and a number of those residents
did have dual access driveways, including the residents across the street from the applicant.
Mayor Aplikowski stated this was a difficult one because they were balancing this with the letter of the
law and their own practicalities. With respect to the double driveway, she saw no reason for it not to
be allowed at this point. She stated to go back now and remove the double driveway would not make
sense. She indicated this did not impact any of the neighbors and did not affect the neighborhood. She
noted they had received support from the neighbors in support of this variance also.
ARDEN HILLS CITY COUNCIL - OCTOBER 10, 2006
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CounciImember Holden asked why this driveway was not acceptable, while other driveways in the
neighborhood were. Mr. Lehnhoff responded the other driveways in the neighborhood existed prior
to 2000 and were considered grandfathered in.
CounciImember Larson stated he could not support either variance. He did not believe they had a
good justification for grunting this variance and he believed they would be setting a precedent for other
residents. He believed if this went through, it would be a mistake on the part of the City and he
believed the Planning Commission had made the right decision. He stated it was unfortunate the
Building Inspector had stamped this approved, but the Building Inspector could not approve variances,
which only the City Council could grant variances. He believed the access point to the west was more
than adequate to get in and out of the driveway and they could put in a turnaround if necessary. He
stated the curb was in now and there was one curb cut, which would add to additional cost if they
allowed a dual access driveway. He believed staff and the Planning Commission had made the correct
recommendation and he would support it.
CounciImember Grant stated he also had looked at this property and the one thing that was easily
noticeable was the 24- foot road and if they looked at their standards, the road should be 32 feet, so
with this odd a'tgle as a single driveway, the applicants would have to back out at an odd angle on a
narrow street. In conjunction with that, it would be difficult to park a car in the driveway and still get
out in the current configuration if it were a single driveway.
Mayor Aplikowski agreed and noted they would need to take up a large portion of their grass for a
turnaround. She agreed with the Planning Commission's recommendation, but believed this would not
be precedent setting because this was an odd situation and she believed the driveway should remain as
it was.
Councilmember Holden stated she believed in keeping the mature trees in the City and they should
bend over backwards to keep the trees and look at the loss of trees as a hardship. She stated for four
years the applicants have been planning their life around this driveway, house, and yard and now
because the City had not closed out the permit, the City was demanding this be changed. She stated it
was no fault of the applicant that this had occurred. She stated she was in agreement with Mayor
Aplikowski and Councilmember Grant.
MOTION: Councilmember Grant moved and Councilmember Holden seconded a motion
to approve the variance for a dual driveway based on the following facts: The
angle of the house, the narrowness of the exit; the building of the street which
was less than City standards making the angle difficult to back out of.
Councilmember Larson asked what the requirements were for approval of the variance. Mr. Filla
replied Council needed to determine the following: If this was a reasonable use of the property; will this
change the character of the neighborhood if granted; was this a self-created hardship and the facts
should be tied into these three criteria.
ARDEN HILLS CITY COUNCIL - OCTOBER 10, 2006
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CouociImember Graot stated the City created a road in front of the property, which was substandard
to the 32- foot road, and thereby the City infringed upon this. He noted the road design was not created
by the resident. This also did not change the character of the neighborhood given the number of dual
driveways.
Couocilmember Holdeo stated they could make them cover the crushed rock on the second dual
access point with sod, so considering the angle of the property and that at any point in time, if they did
change this, it would change the character of the neighborhood, she believed this was a reasonable use
for the property.
Couocilmember Larsoo stated the width of the road was consistent with the neighborhood and he did
not believe they should use that as an argument as the need for a variance. He expressed concern about
setting a precedent and he did not believe this was a good justification.
The motion carried (3-1) (Councilmember Larson opposed).
CouociImember Grant stated the residents had a reasonable assumption that the crushed rock
driveway was approved and as such it should be allowed to continue. He noted the only reason this
was discovered was because the City had improved the street.
Mayor Aplikowski stated she was struggling with allowing crushed rock to remain and she would like
to add whenever this driveway was replaced that it be replaced with a City approved driveway surface.
Couocilmember Holdeo stated with all of the water runoff, why they would not allow this. She noted
a crushed rock driveway could be maintained nicely.
Mayor Aplikowski stated she was inclined to say this driveway was okay because it was maintained,
but when this driveway needed to be replaced she would want it to be replaced with a City approved
surface.
Cooocilmember Larsoo stated they had a Code and if Council was not comfortable with the Code
they should change the Code and not issue variances. He stated if a variance was going to be issued,
they needed to have justification as to why they were going to do that. He believed there was a correct
way to do this and this was not the correct way.
Mr. Lehohoff asked if the City Council would like to table this item and consider changing the existing
Ordinance. Mr. Filla responded unless the Council wanted to change the Code, there was no reason
to table this.
Couocilmember Holdeo stated she was not inclined to table this. She believed the applicants had
moved forward with a crushed rock driveway in good faith because they believed it had been approved
by the City.
ARDEN HILLS CITY COUNCIL - OCTOBER 10,2006
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Councilmember Grant stated he was not in favor of changing the Code, but he was in favor of
granting this variance.
MOTION: Councihnember Grant moved and Mayor Aplikowski seconded a motion to
approve the variance to retain the existing crushed rock driveway and should
the driveway ever need to be replaced, that it be required to meet City Code.
This variance approval is based on the following findings: It is a reasonable use
of the property; it will not change the character of the neighborhood; and the
resident relied on the building permit that indicated crushed rock was approved.
Councilmember Grant noted the Planning Commission was correct in their findings and that
Commission had little latitude in making their decision.
The motion carried (3-1) (Councihnember Larson opposed).
D. Motion to Approve the Arden Hills Strategic Economic Development Plan
Ms. Barton stated in December 2005, the City Council authorized the EDC to hire a consultant to
prepare an Economic Development Strategic Plan for the City. The EDC immediately began the RFP
process and in March 2006 hired DeSCo Solutions, Inc. to prepare the plan.
She indicated DeSCo, in collaboration with the EDC, gathered information through research and
interviews with City Officials, key leaders and stakeholders, as well as through a city-wide survey, then
used this information to prepare the Economic Development Strategic Plan.
She stated the EDC has since reviewed the plan and, after making some changes to the plan, has
recommended adoption and implementation of this plan in and for the City of Arden Hills.
She stated the EDC recommends Council move to approve the Arden Hills Economic Development
Strategic Plan and authorize staff to budget for the implementation of said plan.
Bruce Kunkel, EDC Chair, presented the Economic Development Strategy Plan.
Councilmember Grant stated cutside of TCAAP, if they tried to retain the current businesses, how
would they grow. Mr. Kunkel responded it was strategic and they might not necessarily want to retain
all of the existing businesses they currently had in the City as well as being strategic in attracting the kind
of businesses they wanted in the City. He indicated there was a lot of growth potential through
redevelopment.
Councilmember Holden asked who the 12 people were that were interviewed. Ms. Barton
responded it was a mixture ofleaders, including Councihnembers, residents, and business people.
ARDEN HILLS CITY COUNCIL - OCTOBER 10,2006
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Councilmember Larson thanked Mr. Kunkel for this presentation. He believed the recommendations
fur redevelopment vere right on target for the City. He hoped the future Council would take this
seriously and recognize the importance of this particularly with regard to TCAAP.
Councilmember Holden stated this was a nice presentation and suggested they refer this to a future
worksession for a discussion.
MOTION: Councilmember Holden moved and Councilmember Grant seconded a motion
to refer the Arden Hills Economic Development Strategic Plan to a Council
Worksession for discussion.
Councilmember Grant thanked them for their work.
Ms. Wolfe stated from her perspective, she believed it would be helpful to refer this to a worksession
so staff could have time to look at this and give their recommendation and comments.
Mayor Aplikowski recommended the following amendment: The Council accepts the Strategic
Development Plan and requests that it be moved to a worksession for a full discussion.
Councilmember Holden stated she did not accept the amendment and she wanted her motion to stand
as stated.
The motion carried (3-1) (Mayor Aplikowski opposed).
E. Motion to Approve a Contract with SRF to Prepare an Alternative Urban Area-Wide
Review for the Redevelopment of the Twin Cities Armv Ammunition Plant
Ms. Barton stated as part of the TCAAP redevelopment, the City must complete an environmental
review of the property relating to the proposed project. Given that this property constitutes a large area
and will be redeveloped over a period of years, the AUAR process will provide the best means by
which to conduct this review.
She noted in September the master developer for the project, CRR, issued an RFP for consulting
. services relating to a number of tasks associated with the TCAAP redevelopment: Master Planning,
Traffic Impact Study, AUAR Environmental Study, Stage One, PUD, and Development of a
Landscape Plan. The RFP was issued encompassing all of these tasks to streamline the process and
allow for effective integration and collaboration amongst the firms responding.
She indicated City staff, along with Ryan employees, interviewed four firms relating to these tasks. City
staff is recommending the City contract with SRF to prepare the City's AUAR Environmental Study in
the amount of$147,318.
Councilmember Holden stated she was having a hard time understanding why the City had to take on
this responsibility and not the developer. Ms. Barton responded the EQB required that a responsible
ARDEN HILLS CITY COUNCIL - OCTOBER 10, 2006
10
government unit oversee the ADAR process, which in this case was the City of Arden Hills. She stated
there WlS also likely to be a lot of attention paid to this environmental review by various organizations
and to ensure that the document was kept beyond reproach, it was best to be contracted through the
City and not the developer who had a vested interest in how that environmental review Came out.
Couocilmember Holdeo asked why the City did not take the responsibility to set up the interview
process instead of Ryan arranging evel}'1hing. Ms. Bartoo responded for making the process go more
smoothly, efficient, and economical it made sense to do the interview process for all six finns at once.
Couocilmember Graot stated he had the same concerns as Councilmember Holden. He asked how
they arrived at the amount. Ms. Bartoo responded that was the number they submitted with the RFP
and there had been no negotiations on the amount.
Couocilmember Larsoo indicated he believed staff had been very wise in how they have set this up.
He noted these documents were very important to the public when approving a new development and
staffhad recognized the important of having an arms length relationship with the developer. He believed
this was a smart move on the City's part to do this.
Mayor Aplikowski agreed this safeguarded the integrity of the City.
Couocilmembe r Holdeo requested a memorandum of what the process really was. She asked where
they were at. Ms. Wolfe stated as part of getting this consulting team in place, they would submit
timelines and the steps involved. She stated these timelines and steps would be forwarded to Council.
Couocilmember Holdeo requested the RFP information also.
MOTION: Councilmember Grant moved and Mayor Aplikowski seconded a motion to
approve a contract with SRF, Inc. for possible future preparation of an ADAR
review relating to the Twin Cities Army Ammunition Plant such awarding of the
contract shall be subject to future Council approval and subject to a funding
formulary with the developer.
Mayor Aplikowski stated she did not like the word "possible". Couocilmember Graot suggested
removing the word possible and changing to a "future preparation."
Couocilmember Larsoo stated he could not support the motion. He stated the condition regarding
having an agreement in place that allowed for reimbursement of the City was something that Came at the
time when the contract was brought forward for approval. He stated here all they were doing was to
authorize staff to go forward and develop a contract for an ADAR to be brought back to Council for
approval. At that point, the expectation would be that the developer would pay for this. He stated he
did not see the point in doing this now. Couocilmember Graot responded he wanted to ensure the
ADAR was not started without Council approval.
ARDEN HILLS CITY COUNCIL - OCTOBER 10, 2006
11
Mr. Filla recommended the following wording for the motion: "Approve the negotiation of the contract
with SRF, Inc. to prepare an AUAR review relating to the Twin Cities Army Ammunition Plant
(fCAAP), subject to contract approval by the City Council and further subject to a funding source by
City COlmcil."
Council accepted the amended motion wording by Mr. Filla.
The amended motion carried unanimously (4-0).
F. Appointment of Gregory Hoag as Pnblic Works Director
Ms. Wolfe stated staff was recommending Gregory Hoag be appointed as the Cl:y's Public Works
Director.
MOTION: Councilmember Holden moved and Councilmember Grant seconded a motion
to approve Gregory Hoag as the Public Works Director. The motion carried
unanimously (4-0).
G. Motion to Approve a Contract with Stephen J. Bnbnl of Kennedv & Graven Chartered
to Provide Legal Services Relating to the Purchase of the Twin Cities Armv
Ammunition Plant
Ms. Barton stated in preparation for the purchase of the Twin Cities Army Ammunition Plant
(fCAAP), staff has determined it is prudent and necessary to enlist the services of an attorney and law
firm specializing in master development contracts and public financing.
After interviewing a number of attorneys and checking references, staff is recommending Stephen Bubul
of Kennedy & Graven Charatered be hired on a contractual basis to provide legal services relating to
the preparation of a Master Development Agreement and public financing.
She recommended Council approve contracting with Stephen Bubul of Kennedy & Graven Chartered
for legal services relating to the purchase of the Twin Cities Army Ammunition Plant.
Councilmember Holden asked what will be the relationship ofthe City's attorney versus this attorney.
Ms. Wolfe responded there would be specific tasks assigned to this attorney who had specialized
experience in drafting master development contracts. She stated the City Attorney would be assisting
with local aspects and review.
Councilmember Holden asked who oversaw everything. Ms. Wolfe responded she viewed this as
separate tasks by specialized attorneys being managed by City staff; but if there was a need to
coordinate, the City Attorney would do that.
ARDEN HILLS CITY COUNCIL - OCTOBER 10,2006
12
Mr. Filla stated he envisioned this the same way and if he was needed he would be available, but staff
would coordinate the attorneys.
MOTION: Councilmember Larson moved and Mayor Aplikowski seconded a motion to
authorize staff to enter into an agreement for services with Stephen J. Bubul of
Kennedy & Graven Chartered based on the letter dated September 8, 2006
from Mr. Bubul, not to exceed $50,000 with the intention of recovering all costs
in the interim and master agreements.
Ms. Wolfe stated staff understood Council's expectations and they would do their best to carry them
out. Councilmember Holden stated they lad decided awhile ago not to spend current resident's
money, but they had been spending resident's money and they needed to be cautious about this.
Couucilmember Larson stated he did not remember them having a motion on this and he believed all
residents shared in City costs. He indicated they did not want to divide the City by residents who lived
north of Highway 96 and south of Highway 96.
Councilmember Holden stated she did not agree with Councilmember Larson and she recalled the
discussion differently.
Mayor Aplikowski stated it was not realistic to think that the City would not spend money on
TCAAP, but the City would be careful with any funds spent. She stated the City was recouping
everything they could from the development team, but there would be some things the City would end
up paying for.
The motion carried unanimously (4-0).
8. UNFINISHED BUSINESS
A. TCAAP
Ms. Barton updated on the Council on recent TCAAP developments.
9. COUNCIL COMMENTS AND REQUESTS
A. Councilmember Grant stated the Property Task Maintenance Force had completed its
work and would be forwarding its recommendation to Council in the future.
MOTION: Councilmember Grant moved and Councilmember Holden seconded a motion
to adjourn to a closed session to discuss the Rochon Corporate
ArbitrationlMediation case, pursuant to MS 13D.05 Subd 3.b.
ARDEN HILLS CITY COUNCIL - OCTOBER 10,2006
13
Mayor Aplikowski adjourned the Regular City Council Meeting at 9:27 p.m.
Beverly Aplikowski
Mayor
Michelle Wolfe
City Administrator
NOTICE OF MEETINGS
The next Council Meeting will be held Monday, October 30, 2006 at 7:00 p.m. at the Arden Hills
Council Chambers.
Council Meeting
Agenda Item 78
April 9, 2007
ATTACHMENT B
AGREEMENT BETWEEN
THE CITY OF ARDEN HILLS AND SRF CONSULTING GROUP, INC
THIS AGREEMENT is made this ~,D day of Mp-\ L, :tttJ'(, by and
between THE CITY OF ARDEN HILLS, a Minnesota Statutory City (hereinafter called "City"),
and SRF Consulting Group, Inc.,; an Engineering Consultant (hereinafter called "Consultant").
RECITALS
A. City, in conjunction with their Master Developer, RRLD, LLC, intends to
develop approximately 585 acres at the proposed TCAAP Redevelopment Site, Arden Hills, MN
(the Project).
B. City wishes to engage Consultant to provide professional services for the City in
connection with the study of certain elements of the Project, and Consultant wishes to provide
such services, all in accordance with the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, City and Consultant hereby agree as follows:
I. Consultant's Responsibilities.
1.1. Services. Consultant shall perform the services in connection with the Proj ect that
are described on Attachment A attached hereto (hereinafter called "Services"). Consultant shall
investigate and verify the requirements of local, state and federal regulations applicable to the
design and construction of the Project and prepare its design documents in such a manner that
they conform to and comply with applicable laws, codes, statutes, ordinances, rules and
regulations.
1.2. Standard of Care. Services provided by Consultant under this Agreement will be
performed in a good and workmanlike manner and consistent with that degree of care and skill
ordinarily exercised by members of the same profession currently practicing under similar
circumstances, and having experience with the planning, design and construction administration
of projects similar to the Project in scope and function.
1.3. Timing. Consultant shall perform the Services in the sequence and timing which
is required by the progress and nature of the Project. Consultant shall issue deliverables in
accordance with the defined schedule (the "Work Schedule") attached hereto as Attachment B.
Time is of the essence. To the extent Consultant is delayed in the performance of the Services by
actions or neglect of City, by changes ordered in the Services or by other causes beyond
Consultant's control, then the Design Schedule will be extended in writing, or at City's option,
Consultant's compensation will be increased for reasonable costs required to achieve
performance of the Services in accordance with the Design Schedule. All claims for any
extension of time shall be made in writing to City within 10 days after occurrence of the cause of
delay, or shall be deemed waived.
1.4. Budget. Consultant shall be responsible to produce deliverables that meet City's
budget and other agreed upon goals for the Project. City shall provide all cost information
related to the Project. Revisions and redesign necessary to fulfill this requirement that are the
result of Consultant's willful failure to design within the Project budget or to follow design
instructions given by City shall be the responsibility of Consultant and shall be completed within
the parameters of the schedule and without additional compensation.
1.5. Coordination. Consultant shall coordinate its design with the designs provided by
others relative to the Project. Consultant shall be available to City for general consultation
relative to the Project. Consultant shall attend all meetings relative to the Project that are
reasonably required to fully perform the Services.
1.6. Ownership of Documents. The drawings, specifications and other design
documents prepared by the Consultant in the performance of the Services are the property of the
Consultant and the Consultant shall retain all common law, statutory and other reserved rights,
including the copyright thereto. However, upon payment in full for the Services, the City shall
have a royalty-free license to reproduce, distribute and otherwise use the Consultant's design
documents or any part thereof or information contained therein, provided that City shall
indemnifY Consultant from any claims arising from such use of said documents (including
reasonable costs oflegal fees), except claims that arise from the negligence ofthe Consultant.
2. Indemnification and Insurance.
2.1. Indemnitv. Consultant shall indemnifY and hold City and Owner harmless from
and against all liabilities, claims, damages, losses and expense, including reasonable attorneys'
fees, arising out of or resulting from the performance of the Services, or failure to perform the
Services, to the extent they are caused by or attributable to the negligent act, error or omission of
Consultant or anyone employed by the Consultant.
2.2. Insurance. Consultant shall keep and maintain the following insurance coverages:
2.2.1 Professional Liabilitv Insurance. Consultant shall maintain in full force and effect
until the Services are completed if on an "occurrence" basis, or until at least 3 years subsequent
to completion of the Services if on a "claims made" basis, professional liability insurance
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2
covering the performance of the Services. Such insurance shall be in the amount of at least
$2,000,000 if the Services are architectural or structural in nature, and shall otherwise be in the
amount of at least $1,000,000. The policy retroactive date, if any, shall be no later than the date
upon which the Services are first rendered.
2.2.2 Workers' Comoensation and Emplovers Liabilitv Insurance. Consultant shall
maintain workers' compensation and employers' liability insurance, (or employers "Stop Gap"
liability insurance for monopolistic states) with the following minimum limits:
Part One: Statutory
Part Two: $100,000
$500,000
$100,000
Bodily Injury by accident
Bodily Injury by disease
Bodily Injury by disease
Each accident
Policy limit
Each employee
2.2.3 General Liabilitv Insurance. Consultant shall maintain general liability insurance
(written on an occurrence form) with coverage to include; Premises/Operations, Personal Injury,
Products and Completed Operations and Contractual Liability. City shall be named as an
additional insured under Consultant's general liability insurance, and such coverage shall be
primary and noncontributory to all other insurance or self insurance maintained by the City.
Limits of liability shall not be less than:
$1,000,000 each occurrence (Bodily Injury & Property Damage Combined Single
Limit, including coverage for liability assumed under contract and acts of
independent contractors)
$1,000,000 general aggregate (per Job Site)
$1,000,000 Personal Injury Liability, as usually provided under the standard ISO
Commercial General Liability Coverage Form CG 00 01
$1,000,000 Products and Completed Operations Aggregate
$5,000 Medical Payments
2.2.4 Automobile Liabilitv Insurance. Business Automobile Liability Insurance
covering all owned, non-owned and hired automobiles used in connection with the work, with
combined single limit coverage for bodily injury and property damage of not less than
$1,000,000 per accident.
2.2.5 Evidence of Insurance. The above insurance shall be maintained in companies
lawfully authorized to do business in the state in which the Project is located and which are
reasonably acceptable to City. Prior to commencing the Services, Consultant shall furnish to
City and Owner a certificate reflecting such insurance (ACORD form or equivalent) to be in
force and providing that it will not be canceled or materially changed without at least 30 days'
prior written notice to City and Owner. The failure of City to obtain such certificates of
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3
insurance, prior to commencement of performing Services, or failure to obtain any certificate of
insurance evidencing renewal of coverage shall not relieve the Consultant of its responsibilities
under this paragraph 2.2.
3. City's Responsibilities.
3.1. Compensation. City shall pay (in the manner and at the times specified in this
Section 3.1) to Consultant, as total compensation for the Services, the sum of $213,746 (see
Attachment C for breakdown), together with the costs incurred by Consultant for any
reimbursable expenses which are described on Attachment A hereto. City shall make payments
to Consultant for reimbursable expenses at a rate of one (1.0) times Consultant's actual cost for
such expenses. Consultant shall, not later than the 23rd day of each month, submit its monthly
invoice for payment. Consultant shall include in its application for payment the value of services
completed through the end of the month and the cost of reimbursable expenses incurred to date.
Provide an itemized statement of reimbursable expenses for that month. City will not process
Consultant's miscellaneous invoices for changes in services. (See paragraph 3.2 regarding
Change Orders.). Only approved Change Orders may be added to the invoice. City shall include
the amounts payable to Consultant hereunder in its next application for payment to the Owner
following receipt of each statement from Consultant. City shall make payment to Consultant
within 7 days after it receives payment from the Owner for the Services performed by Consultant.
3.2 Changes and Adjustments. City may order changes in the Services consisting of
additions, deletions, or other revisions, with corresponding adjustments to the Consultant's
compensation and the Design Schedule. All such changes in the Services shall be authorized by
written Change Order. An adjustment to the Consultant's compensation resulting from a change
in the Services shall be determined by: mutual acceptance of a lump sum amount, application of
hourly billing rates as set forth in Attachment A, or in such other manner as is mutually agreed
upon by Consultant and City. If Consultant believes it is entitled to additional compensation or
time for performing additional services which are beyond the scope of the Services provided for
herein, Consultant shall notifY City thereof and secure City's approval prior to performing such
additional services. Consultant shall be entitled to additional compensation if Consultant is
required to perform substantial redesign of portions of the Project that have previously been
approved by City unless such redesign is the result of Consultant's negligence or failure to follow
instructions given by City.
3.3. Furnishing Information. Etc. City shall, at its expense, provide to Consultant the
information, services and other materials regarding the Project that are described on Attachment
A attached hereto, and Consultant shall be entitled to rely on the accuracy thereof.
3.4. Indemnitv. City shall indemnifY and hold Consultant harmless from and against
all liabilities, claims, damages, losses and expense, including reasonable attorneys' fees, arising
out of the construction of the Project to the extent they are caused by or attributable to the
negligent act, error or omission of City or anyone employed by the City or for whose acts City
may be liable, except Consultant.
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4. Miscellaneous.
4.1. Entire Agreement. This Agreement represents the entire integrated agreement
between City and Consultant pertaining to the Services and supersedes all prior negotiations,
representations and agreements, both oral and written. This Agreement may be amended only by
written agreement signed by both City and Consultant.
4.2. Governing Law. This Agreement shall be governed by and construed III
accordance with the laws of the state in which the principal office ofthe Consultant is located.
4.3. Assignment and Subcontracting. This Agreement may not be assigned by
Consultant or City without the prior written consent of the other party, except that this
Agreement may be assigned by City to Owner and/or Owner's lender ("Lender") for the Project.
Such assignment to Owner or Lender shall include a provision that Owner or Lender shall
assume City's obligations under this Agreement, arising subsequent to any request by Owner or
Lender to continue performance of this Agreement. Consultant shall not subcontract any portion
of the Services without the prior consent of the City. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors and permitted assigns.
4.4. Dispute Resolution. Unless the dispute also involves the Owner and the Owner
Contract does not provide for disputes to be resolved by arbitration as provided herein, all
controversies, claims and disputes between City and Consultant arising out of or related to this
Agreement, or the breach thereof, shall be decided by arbitration in accordance with the then
current Construction Industry Arbitration Rules of the American Arbitration Association. City
and Consultant agree to arbitrate with other parties in a consolidated or joint proceeding all
common issues or questions of fact or law. The award rendered by the arbitrators shall be final,
and judgment may be entered upon it in accordance with applicable law in any court having
jurisdiction thereof.
4.5 Legal Costs. If either party hereto shall file for arbitration or bring suit against the
other party to enforce the terms of the Agreement, the losing party shall pay to the prevailing
party that percentage of the prevailing party's costs and expenses incurred in such action,
including reasonable attorney's fees, in an amount equal to the percentage that the amount of the
judgment or award received by the prevailing party bears to the total amount claimed by such
party, but in no event more than one hundred percent (100%) of such costs and expenses,
provided that the prevailing party has not rejected a bona fide written settlement offer from the
other party in an amount greater than the amount of the judgment or award received, in which
case the prevailing party shall be entitled to no reimbursement for its costs and expenses.
4.6 Termination. This Agreement may be terminated by either party upon 7 days'
written notice should the other party fail to perform in accordance with the terms hereof,
provided such failure is not cured within such 7-day period. City may terminate this Agreement
for convenience at any time, in which event Consultant shall be compensated in accordance with
the terms hereof for Services performed and reimbursable expenses incurred prior to its receipt of
written notice oftermination from City.
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4.7 Notices. All notices permitted or required by this Agreement shall be in writing
and shall be deemed to have been given when personally delivered to the respective person
whose name appears below or when deposited in the United States mails, certified or registered
mail, postage prepaid and addressed as follows:
If to City:
City of Arden Hills
1245 West Highway
Arden Hills, Minnesota 55112-5743
Attention: Karen Barton
If to Consultant:
SRF Consulting Group, Inc.
One Carlson Parkway North, Suite 150
Minneapolis, Minnesota 55447-4443
Attention: Beth A. Bartz
Either party may change the address for mailing of notices to it hereunder and/or
the person to receive such notices by giving 10 days' written notice thereof to the other party in
the manner above provided.
4.8 Certifications. The proposed language of certificates or certifications requested of
the Consultant or its consultants shall be submitted to the Consultant for review and approval at
least 7 days prior to execution. Consultant agrees to sign certifications reasonably required 'by
Owner, the Project lender or any governmental agencies that have jurisdiction over the Project.
The City shall not request certifications that would require knowledge or services beyond the
scope of this Agreement.
4.9 No Waiver. The failure of one party to insist upon or enforce, in any instance,
strict performance by the other party of any of the terms of this Agreement, shall not be
construed as a waiver or relinquishment to any extent of its right to assert or rely upon such
terms or right on any future occasion.
IN WITNESS WHEREOF, City and Consultant have caused this Agreement to be duly
executed as of the date first above written.
CITY OF ARDEN HILLS
SRF CONSULTING GROUP, INC.
By: By:
Title: Title:
Date: Date:
By: By:
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6
Phone Number:
Fax:
E-mail:
\\Metro.inet.us\ardenhills\Planning\Community Development\TCAAP\Consultants\SRF - AUAR\AUAR Services Contract 4-2.07.doc
7
ATTACHMENT A - (Alternative Urban Areawide Review)
A. The Services -
Alternative Urban Areawide Review
Overview
SRF will prepare an AUAR for City approval and distribution addressing the potential
environmental impacts of the TCAAP Master Plan. SRF will prepare two minor sub-alternatives
to the Master Plan, addressing minor variation in site plan design or development density. The
AUAR will be completed under Minnesota EQB rules and with the City of Arden Hills serving
as the Regulatory Governmental Unit (RGU) for the AUAR.
Base Study and Optional Tasks
Completion of the AUAR will draw upon previous analysis completed by the U.S. Army and/or
the City of Arden Hills and its consultants, as well as information and analysis developed in the
associated Master Development, Traffic Impact Study, and Stage One processes, and the
contamination studies and remediation plans completed by others under separate contracts. This
specifically includes data gathering from other sources (Natural Heritage Database, State Historic
Preservation Office file search, soils inventories and previous Applied Ecological Services
studies), summaries of analysis completed under other tasks or by other consultants (traffic
studies, utility and infrastructure analysis, stormwater, contamination, vehicle-generated noise
and air quality impacts). Analysis will be completed in consultation with the City of Arden Hills
and the environmental agencies responsible for reviewing (and potentially regulating) impacts
identified within the AUAR.
A preliminary draft AUAR document and mitigation plan will be prepared for City review.
Revisions will be made in response to City comments and the Draft AUAR and Mitigation Plan
will be finalized for agency distribution and public review. SRF will conduct an open house
during the comment period to facilitate public comment.
Following the public comment period, responses to substantive comments received will be
prepared for City review. The Final AUAR and mitigation plan will be prepared addressing
substantive comments as well as further updates to the Master Plan. Following City approval,
the Final AUAR and Mitigation Plan will be distributed in accordance with EQB rules.
Public Involvement
A specific list of project stakeholders/participants will be identified as well as appropriate
methods for obtaining input. At a minimum, SRF will participate in two public open houses,
provide technical reports and AUAR-related materials in pdfformat for use on the City project
website, and provide six newsletter articles on AUAR-related topics at key milestones in the
project.
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8
Proiect ManalZement and MeetinlZS
SRF will attend weekly project team meetings with the City, the City's developer RRLD, LLC,
and their consultants for a period of one year (52 meetings).
SRF will participate in 12 workshops/meetings of the City Council to provide background and
educational information, seek input on key issues, obtain approvals for public release of AUAR
related documents and conduct public hearings on AUAR documents.
SRF will lead meetings of the Technical Advisory Committee to provide input regarding AUAR
assumptions and analysis. Including meeting notices, agendas, materials and meeting
summaries. Four meetings are assumed.
SRF will schedule, prepare for and attend up to four coordination meetings with regulatory
agencies and/or City staffto discuss AUAR issues.
SRF will coordinate information transfer among project team members (Hoisington Koegler
Group, Inc, the City, SEH, SRF) and will monitor budget and schedule. SRF will oversee quality
assurance and quality control of SRF' s work.
B. Exc1nsions -
The following items are not included in the Consultant's Services:
AUAR Tech Memo
SEH will prepare a standalone technical memorandum that will meet the traffic documentation
needs for the AUAR.
Natural Resources (to be provided by SEH)
. Field Assessment
. Noise
.
Air Quality
c.
Items to be furnished bv City -
D.
Reimbursable Expenses -
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9
I. As specified on page 10 ofTCAAP Work Tasks and Person-Hour Estimate (Attachment
C)
E. Rates for Additional Services -
All additional services must be approved by the City prior to services being rendered.
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Work Schedule
ATTACHMENT B
I. See Attachment
2,
3.
\\Metro-inet.us\ardenhills\Planning\Community Development\TCAAP\Consultants\SRF - AUAR\AUAR Services Contract 4.2.07.doc
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Work Tasks and Person -Hour Estimate
Item
Amouut
1. See Attachment.
2.
3.
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USE WITH DESIGN AGREEMENTS
ACORD
Issue Date:
April 3, 2007
PRODUCER:
SAMPLE
Sample Professional Insurance Agency
1200 Main Street
Minneapolis, MN 55402
FAX: (612) 555-1000 Phone: (612) 555-1100
Contact: Bill Johnson
INSURED:
Sample Architects & Engineers Group,
1500 Industrial Boulevard
Minneapolis, MN 55402
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.
THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE
COVERAGE AFFORDED BY THE POLICIES BELOW
COMPANIES AFFORDING COVERAGE
COMPANY A Dependable Casualty Insurance Company
COMPANY B Dependable Indemnity Company
COMPANYC Global Indemnity Company
COMPANY D Professional Liability Underwriters CO
COMPANY E
REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY
AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMITS SHOWN MAY HAVE BEEN
CLAIMS.
CO
L TR TYPE OF INSURANCE
DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/SPECIAL ITEMS
Certificate applicable to all projects for which Insured is performing services as a Design Consultant, Architect or Engineer for Ryan Companies US, Inc. or
its subsidiaries. Ryan Companies US, Inc. ("Ryan") and the Owner of any Project for whom Ryan is working shall be named as additional insureds on the
above Commercial General Liability and Umbrella/Excess Liability policies. Professional Liability policy shall have a "retroactive date" not later than the date
()~""Y~ic:~,.,~~'Yi~~,<:i~~,~,~~~,,P~,!9r!1:l,e~ .
CERIIEIC.6.TE'Ii/O[OER
Ryan Companies US, Inc,
50 South Tenth Street
Suite 300
Minneapolis, MN 55403
Alln: Sue Hayes
POLICY NUMBER
A
GENERAL LIABILITY
[8]Commercial General Liability
o Claims Made IRI Occur.
DOwner's & Contractor's Prot
[8] General Agg - Per Project
o
AUTOMOBILE LIABILITY
I:&l Any Auto
1RI All Owned Autos
1RI Scheduled Autos
1RI Hired Autos
1RI Non-Owned Autos
D Gara e Liabili
EXCESS LIABILITY
Umbrella Form
o Other than Umbrella Form
WORKER'S COMPENSATION
AND EMPLOYERS' LIABILITY
WC1234567
GL 1234567/
B
AL1234567
B
UMX1234567
c
o
OTHER
Professional Liability
Retroactive Date:
PL 1234567
Fax #: (612) 492-3310
THE INSURANCE
BY PAID
Policy
Effective Date
Policy
Ex iration Date
LIMITS
4/0 1/00
GENERAL AGGREGATE $
PRODUCTS-COMP OPS AGG. $
PERSONAL&ADV.INJURY $
EACH OCCURRENCE $
FIRE DAMAGE (ANY ONE FIRE) $
MEQ, EXPENSE (ANY ONE PERSON) $
COMBINED SINGLE LIMIT $
1,000,000
1,000,000
1,000,000
1,000,000
50,000
5,000
1,000,000
4/01/01
4/0 1 /00
4/01/01
BODILY INJURY (PER PERSON) $
4/01/00
BODILY INJURY (PER ACCIDENT) $
PROPERTY DAMAGE
Comprehensive Deductible
EACH OCCURRENCE
AGGREGATE
4/01/01
4/01/00
4/01/01
100,000
500,000
100,000
EL DISEASE - POLICY liMIT
EL DISEASE - EACH EMPLOYEE
4/01/00
4/01/01
$2,000,000 Each Clalm/$2,000,OOO Aggregate
(If architectural or structural services) 0
$1,000,000 Each Claim/$1,OOO,OOO Aggregate
If other desi n/ rofessional services 0
ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE
THEREOF, THE ISSUING COMPANY WILL E~II)[A'.'OR T9 MAIL ~DAYS WRITTEN NOTJCE TO THE
CERTIFICATE HOLDER NAMED TO THE LEFT. BIJT r'\ILLJRE T9 fAAIL 8IJCIl HOTICE 81 tALL IMr98E tJO
OBbJC'!.TIOtJ OR bJ'\BILlTY or ^rJ" 1<ltJD urgrJ TI IE CDrlP#J\f, m: ^CEtlTS OR RErn.CSCtJT\1WCS.
AUTHORIZED REPRESENTATIVE
Signature
EX_0077MDOC
Council Meeting
Agenda Item 78
April 9, 2007
ATTACHMENT C
,1. ~
Execution Copy
PRELIMINARY DEVELOPMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this 3.v day ofl'U.~007 by
and between the CITY OF ARDEN HILLS, a MilD1esota municipal corporation (the "City"), and
RRLD, LLC, a Delaware limited liability company (the "Developer").
RECITALS
WHEREAS, the City and CRR, LLC ("CRR") entered into that certain Interim Agreement
dated as of August 26, 2002, and amended by Amendment No. I thereto dated October 25, 2004
(together, the "Interim Agreement"), regarding the acquisition and redevelopment of a portion of the
Twin Cities Army Ammunition Plant (the "TCAAP Site") in the City; and
WHEREAS, the Interim Agreement expired in accordance with its terms on May 9, 2005;
and
WHEREAS, the Developer is the successor to CRR; and
WHEREAS, the parties have determined to amend and restate the Interim Agreement by
entering into this Agreement; and
WHEREAS, this Agreement concerns the portion of the TCAAP Site described in Exhibit
A hereto (the "Development Property"), which property is expected to be acquired by the City from
the United States of Ameriea acting by and through the General Services Administration (the
"GSA") pursuant to the terms of an Offer to Purchase between the City and GSA dated August I,
2006 as amended by a letter amendments thereto dated August I I, 2006, November 15,2006, and
February 12, 2007, and additional amendments entered into from time to time (together, the
"OTP"); and
WHEREAS, the Development Property is now occupied by the former Twin Cities Army
Ammunition Plant, which has been abandoned and is being disposed of by GSA on behalf of the
United States of America; and
WHEREAS, the City has engaged in a comprehensive planning process to guide the
redevelopment of the Development Property, which process is intended to remove impediments to
development, maximize the property's potential for revitalization of the City and surrounding
region, increase tax base for the City and all taxing jurisdictions, and increase commercial and
housing opportunities at this critical site in the City; and
WHEREAS, the parties acknowledge that there are significant environmental issues
affecting the Development Property, and that redevelopment of the property will require zoning
changes, significant remediation activities and substantial infrastructure improvements; and
299882 (SJB)
ARl004
WHEREAS, the parties further expect that the City, upon acquisition of the Development
Property from GSA, will simultaneously convey the Development Property to Developer pursuant
to the terms of a master development agreement ("MDA") to be negotiated as further described
herein; and
WHEREAS, in light of such expected real estate transaction, the City has also entered into
that certain Funding and Guaranty Agreement with CRR, Ryan Companies, Inc. ("Ryan") and
Rehbein Companies, Inc. ("Rehbein") dated as of August 10, 2006, as amended by a First
Amendment thereto of even date herewith (with Developer as successor to CRR), and as it may be
further amended from time to time (the "Guaranty"); and
WHEREAS, Ryan and Rehbein are the principals of Developer, and those three entities
entered into the Guaranty in order to evidence their obligation to pay all earnest money and the
Purchase Price (as defined in the Guaranty) required to be paid by the City to GSA under the OTP;
and
WHEREAS, under the terms of the Guaranty, the City and Developer agreed to negotiate
the terms of an MDA concerning the Development Property and the parties' respective
responsibilities in developing such property and setting forth those matters that need to be
completed prior to closing on the acquisition of the Development Property under the OTP (referred
to hereafter as the "Closing"); and
WHEREAS, the parties have determined to describe their respective responsibilities prior
to Closing; and
WHEREAS, the City Council has adopted an overall concept plan for the Development
Property, designated as the TCAAP Framework Vision approved by the City Council on
January 13,2005 and attached hereto as Exhibit B, and as it may be refined and amended from time
to time (the "Framework Vision"); and
WHEREAS, the City's Economic Development Commission and City Council have
adopted a TCAAP Public Financing Policy (the "Public Financing Policy"), setting forth the general
principles that will guide the City's financial participation in the Development; and
WHEREAS, the Developer proposes to redevelop the Development Property as a mixed-
use project consisting of residential uses with compatible and mutually supporting office, retail,
services, hotel, community and civic use, office/warehouse and other uses (referred to generally as
the "Development"); and
WHEREAS, the City Council has acknowledged the Developer's desire to enter into this
Preliminary Development Agreement to allow the Developer to further refine its proposal and to
negotiate with the City conceming the redevelopment described in this Agreement; and
WHEREAS, the City and the Developer acknowledge that the purchase and redevelopment
of the Development Property is mutually beneficial to City and Developer, and therefore the parties
desire to proceed with the Development if the conditions described herein are satisfied.
2
NOW, THEREFORE, in consideration of the covenants and obligations of the parties
hereto, the City and the Developer hereby agree as follows:
Section 1. Preliminary Nature of Agreement. The City and the Developer agree that
this Agreement is intended to be preliminary in nature. Before the City and the Developer can make
a decision on whether to proceed with the implementation of the Developer's development proposal
for the Development Property, it will be necessary to assemble and consider information relative to
the design, financial feasibility and other aspects of redevelopment of the Development Property,
The purpose ofthis Agreement is to allow the Developer an opportunity to assemble such necessary
information, and to negotiate with the City concerning the execution of an MDA which, if executed,
will set forth the rights and responsibilities of the City and the Developer with respect to the
Development Property.
Section 2. Present Intent of Parties, lt is the intention of the parties that this Agreement
documents their present understanding and commitments, and that the parties will proceed to use
their best efforts to negotiate a mutually satisfactory MDA, which MDA will (i) include conveyance
of the Development Property to the Developer pursuant to all terms of the OTP and MDA, and (ii)
will require fulfillment of the following conditions to the mutual satisfaction ofthe parties:
(a) the Developer demonstrates the market feasibility of the Development;
(b) the Developer demonstrates the ability to undertake the Development in a manner
consistent with the general land uses described in the framework Vision;
(c) the Developer demonstrates that projected sources of financing for the Development
will be available to the Developer, and that if Developer requests financial assistance
from the City, such assistance is necessary to make Developer's redevelopment
proposal financially feasible and is consistent with the Public Financing Policy and
taking into account the unique needs of the Development;
(d) if the City agrees to provide any financial assistance, the Developer and the City are
able to reach agreement on the Developer's provision of security adequate to
reasonably justify the City's investment;
(e) remediation of the Development Property as set forth in the Remedial Action Plan
approved by the MPCA in accordance with the Response Action Agreement; and
(f) the Developer and the City are able to reach agreement on the type and amount of
environmental and general liability insurance that the Developer will provide on the
Development Property to protect the interests of the City.
The MDA (together with any other agreements entered into between the parties hereto or
contemporaneously therewith) when executed will supersede all obligations of the parties
hereunder.
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Section 3. Developer Undertakings, (a) In addition to all its other obligations under this
Agreement, the Developer shall submit to the City the following items at the following times:
(1) Within 90 days after receipt of each written request by the City from to time, the
Developer shall submit, in forms reasonably required by the City in order to
undertake the Alternative Urban Areawide Review CAUAR") process:
(i) preliminary (and periodically updated) site plans for the Development
Property, and
(ii) preliminary (and periodically updated) development schedules for the
Development, including preliminary phasing and staging plan
(2) Within 30 days after the City and GSA (with Developer's consent) have entered into
a written agreement regarding the amount of remediation credit and the credit
mechanism under the OTP, Developer shall submit a preliminary project proforma
with estimated costs of the Development and possible sources and uses of all funds
to finance such costs; and
(3) Within 30 days after the draft of the AUAR is submitted for review and comment in
accordance with Minnesota Rules, Chapter 4410, Developer shall submit a
preliminary report on the market feasibility ofland uses designated in the AUAK
(b) Developer on behalf of the City shall identify the nature, extent and cost of
remediation, Developer shall determine the terms and conditions of the Memorandum of
Agreement (as defined in Section 28 of the OTP), Also, Developer shall cooperate and participate
with the City in negotiations with GSA regarding any necessary amendments and clarifications to
the OTP; obtaining access to the Development Property; obtaining from GSA and u.s. Army all
environmental reports and information regarding the Development Property; determining the
mechanism for applying remediation costs as a credit against the purchase price and the amount of
such credit; obtaining changes to the FOST and FOSET (as defined in Section 5 of the OTP);
obtaining acceptable terms for the Covenant Deferral Request process for early transfer under
Section 24 of the OTP and the timing thereof; all other matters under the OTP; the terms and
conditions relating to the conveyance and remediation of the Wildlife Area and the Athletic Field
Area; and the matters set forth in this Section 3 and in Section 5(a) through 5(f) and Section 7
below. As used in this Agreement, the "Wildlife Area" and the "Athletic Field Area" shall mean the
portions of the Development Property designated on Exhibit B.
(c) Developer shall provide, upon the reasonable request of the City staff from time to
time, reports as to the Developer's progress in assembling the information necessary to comply with
the terms of this Agreement.
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(d)
Guaranty.
Developer agrees to fund the earnest money as provided in Section 3.0B of the
(e) Developer agrees to assume the obligations of the City as provided in Section 3.0C
of the Guaranty.
The costs of all undertakings by the Developer under this Section 3 shall be borne solely by
the Developer unless and to the extent any such costs are Developer Reimbursable Costs as defined
in Section 5 (f). All of the information and materials described in this Section 3 shall be the
property of the Developer, unless and to the extent the cost of any information and materials is paid
by the City as Developer Reimbursable Costs under Section 5(f)(2) hereof.
Section 4. Citv Undertakings, In addition to all its other obligations under this
Agreement, during the term of this Agreement the City shall do the following:
(a) Make City staff and consultants reasonably available (taking into account their
other City duties and services) for consultation with respect to the matters set
forth in Sections 3, 4, 5 and 7.
(b) Cooperate and participate with the Developer in: negotiations with GSA regarding
any necessary amendments to the OTP; obtaining access to the Development
Property; obtaining from GSA and U.S. Army all environmental reports and
information regarding the Development Property; identifying the nature, extent and
cost of remediation; determining the mechanism for applying remediation costs as a
credit against the purchase price and the amount of such credit; detennining the
terms and conditions of the Memorandum of Agreement; obtaining changes to the
FOST and FOSET; obtaining acceptable terms for the Covenant Deferral Request
process for early transfer and the timing thereof; all other matters under the OTP; the
terms and conditions relating to the conveyance and remediation of the Wildlife
Area and the Athletic Field Area and the matters set forth in this Section 4, Section 5
and Section 7,
(c) Grant to the Developer, at its cost, all rights of access to the Development
Property to conduct all investigations and tests relating to the environmental,
geotechnical and other physical conditions of the Development Property, all to the
extent such rights are available to the City under the OTP, subject to these
conditions:
(i) Developer shall maintain on file with the City a list of entities that
will enter the Development Property and the name of Developer's
contact person regarding access by any entity.
(ii) Developer and City shall jointly negotiate with GSA regarding all
procedures and rules regarding access to the Development
Property.
(iii) Developer shall indemnify and hold harmless the City for any
claims arising from Developer's entry on the Development
Property, and shall at all times maintain with the City a certificate
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of insurance evidencing that Developer has insurance regarding
such risks. City shall tender to Developer any claims subject to
indemnification under this clause immediately after its knowledge
of any such claims, and shall permit Developer to defend and/or
resolve any such claims.
(iv) Developer shall keep the Development Property free of all liens
and shall repair any damage that is caused to the Development
Property caused in any way by Developer's entry on such property.
Developer shall have the right to contest any liens, provided that
Developer provides the City and GSA with collateral (such as a
bond or title insurance insuring over such lien) reasonably
acceptable to the City and GSA.
(d) Evaluate the financial and market feasibility of the undertakings of the Developer
as specified in Section 3 of this Agreement.
(e) Consider options for public financial assistance as part of the Development, if the
Developer is able to demonstrate a need for public financial assistance as
determined by the City in its sole discretion.
(f) Evaluate the availability of public financing tools related to the Development, and
commence any actions necessary to implement any such tools approved by the
City Council.
(g) Coordinate with Developer in developing an infrastructure plan consistent with
the Development plan,
(h) Consider and evaluate any requests by Developer to seek special legislation that
may be necessary to carry out the Development.
(i) Make available to the Developer at the City's offices all environmental reports,
studies and information in the possession of the City from time to time.
(j) Forward to Developer all communications it receives from or sends to GSA or the
Minnesota Pollution Control Agency ("MPCA") and all communications it
receives from or sends to the EPA or the Governor's office relating to the
submission of the CDR request to the EP A and/or Governor and the approval of
the CDR by the EP A and/or Governor; provided that the City has no obligation to
forward any document that is "not public data" as defined in Minnesota Statutes,
Section 13.02, subdivision 8a, unless (a) the transfer to Developer is permitted
under Minnesota Statutes, Chapter 13 and (b) the transfer would not change the
status of the document to public data on individuals or public data not on
individuals within the meaning of Minnesota Statutes, Chapter 13.
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(k) Tender its earnest money and Purchase Price (as defined in the Guaranty) as
provided in Sections 3.0B and 3.0C of the Guaranty.
(I) Perform all of its obligations as the Purchaser under the OTP, subject to (i) the
performance by Developer of its obligations as provided in Sections 3.0B and
3,OC of the Guaranty and (ii) Section 10 of this Agreement.
The cost of all undertakings by the City under this Section shall be payable by the Developer to the
extent any such costs are City Reimbursable Costs as defined in Section 5 and subject to
reimbursement as provided therein.
5. Citv Reimbursable Costs, (a) Defined. Developer will reimburse the City for all
"City Reimbursable Costs" in accordance with this Section. The term City Reimbursable Costs
means the following costs, but only to the extent that such costs are included in the Budget (as
defined below):
(J) Out-of pocket-costs incurred by the City from and after May 9, 2005 for (i) the
City's financial advisor in connection with the Development, (ii) the City's legal counsel in
connection with negotiation and drafting of this Agreement, the MDA, the OTP, the
Memorandum of Agreement (as defined in the OTP) and any related agreements or
documents; (iii) the City's planning consultant in connection with redevelopment of the
Development Property; and (iv) any other third-party costs in connection with acquisition of
the Development Property from GSA and conveyance to the Developer, or in connection
with the City's financial participation, if any, in the Development (including without
limitation appraisers, surveyors and environmental consultants); and
(2) The cost of City staff retained in whole or in part specifically to carry out City
responsibilities with respect to the Development (including usual and customary costs and
disbursements incurred by such staff), provided that (i) the cost of such staff (for purposes of
detennining City Reimbursable Costs) must be based upon hourly rates that the City and the
Developer have agreed upon in writing as part of the Budget; and (ii) if such staff has
multiple duties, only the portion of staff time related to the Development shall be treated as a
City Reimbursable Cost.
Notwithstanding anything to the contrary, the Developer may request that the City cease incurring
all or any portion of the City Reimbursable Costs as designated by the Developer, by delivering
written notice to the City including a detailed explanation for the objection to the designated costs.
The City shall, within lO business days after receipt of Developer's notice, give Developer written
notice that it either (J) accepts Developer's objection, in which case the Developer will not be
responsible for the designated City Reimbursable Costs effective as of two (2) business days after
the date of the City's notice of acceptance, or (2) denies Developer's objection, in which case the
Developer remains responsible for the designated City Reimbursable Costs, except as hereinafter
provided and subject to Developer's rights under Section 23 hereof. Developer remains obligated to
pay any disputed City Reimbursable Costs pending any proceeding under Section 23,
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(b) Prior Costs. Upon execution of this Agreement, the Developer has deposited with
the City $266,341.14 (receipt of which the City acknowledges) representing reimbursement of all
City Reimbursable Costs incurred from May 9, 2005 through the date of this Agreement, and not
previously reimbursed by Developer, all of which are set forth on the attached Exhibit C.
(c) Budget and Consultant Process, The current budget of City Reimbursable Costs,
including the type and scope of work and the current list of consultants is attached as Exhibit D,
which may be amended from time to time by mutual agreement (the "Budget"). The City may,
without amending the Budget, replace or retain any additional consultants or staff consistent with
the type and scope of work described in the Budget, subject to the total amount of City
Reimbursable Costs specified in Exhibit D, If the City proposes to (i) engage any different
consultants or staff than those shown in the attached Budget, or (ii) allocate savings in a line-item in
the Budget to pay additional expenses over the amount for another line-item, the City will (before
engaging the consultant or incurring the additional line-item expense) provide Developer with at
least 10 business days notice, including (in the case of clause (i) above) a written description of the
consultant or staff, the scope of work and the estimated cost; and (in the case of clause (ii) above) an
explanation of the reasons for the line-item change; and in either case offering Developer an
opportunity to comment within the 10-day period. The City agrees that all contracts with
consultants will be terminable immediately upon notice without penalty and will provide for
payment for services rendered only prior to such termination,
If the City or Developer proposes to revise the Budget (including changes in type or scope
of work or the total amount of City Reimbursable Costs), then the City or the Developer, as the case
may be, shall submit a revised budget to the other party and an explanation of the changes to the
Budget, and allow thirty (30) days for the other party to approve the changes to the Budget. If the
other party approves the proposed changes to the Budget, the changes shall be incorporated into the
Budget, the revised Budget shall be signed by the City and the Developer, and the revised budget
shall become the Budget. If the City's or the Developer's proposed changes to the Budget are not
approved by the other party within such thirty (30) days, then either the City or Developer may
terminate this Agreement under Section 12(a) hereof, subject to the terms of Section 23 hereof.
(d) Payment Process, The City will provide the Developer with a copy of all invoices
received by the City immediately upon receipt of such invoices for City Reimbursable Costs,
including copies of invoices provided by third parties and in the case of eligible staff costs a city-
prepared invoice showing time, hourly rates (consistent with the Budget), any costs and
disbursements, any description reasonably needed to explain how the staff costs relate to the
Development and such other reasonable information regarding the City Reimbursable Costs as
Developer requests. Developer shall pay City Reimbursable Costs to the City within thirty (30)
days after receipt of each invoice; provided, however, Developer shall not be required to pay the
City Reimbursable Costs to the City more often than monthly. If the Developer fails to pay the City
Reimbursable Costs to the City as provided herein, then Developer shall reimburse the City for its
out-of-pocket costs incurred in collecting the City Reimbursable Costs, including reasonable
attorneys fees,
(e) Security As security for Developer's obligations under this Section, Developer
shall, within thirty (30) days after the date of this Agreement, deposit $50,000 in escrow with an
8
escrow agent of Developer's choice, pursuant to an escrow agreement among Developer, City and
the escrow agent in a form reasonably acceptable to the City. The escrow agreement shall provide
for the right of the City, after three (3) days written notice to Developer, to draw on the amount in
escrow to pay City Reimbursable Costs which have not been paid by Developer pursuant to this
Agreement. Additionally, the escrow agreement shall provide that each time the balance in the
escrow drops below $50,000, Developer shall replenish the escrow to $50,000 within ten (10) days
after written notice from the City or the escrow agent. City Reimbursable Costs are also payable
from any offset of returned eamest money and Developer Reimbursable Costs, as described in
Section I 2{b )(iii) hereof.
(f) Termination, (I) Upon expiration or earlier termination of this Agreement in
accordance with its terms, the City will release the escrow to the Developer less any draw needed
to pay the City any City Reimbursable Costs accrued through two (2) business days following
the date of the City's termination of this Agreement or the City's receipt of the notice of
termination from the Developer. For the purposes of this paragraph, City Reimbursable Costs
are considered to be accrued if they relate to services performed and are payable under a contract
entered into on or before two (2) business days following the City's receipt of the notice of
termination.
(2) If this Agreement is terminated before its expiration or the term expires with or
without an MDA, and the City within two years after the effective date of termination or
expiration enters into a definitive development agreement with another developer who is not an
Affiliate as defined in Section 6 hereof (the "Successor Developer") regarding all or a portion of
the Development Property (the "New Development Property"), then the City will reimburse
Developer for the Developer Reimbursable Costs described on the attached Exhibit E (the
"Developer Reimbursable Costs"), except as otherwise provided in clause (3) of this Section
5{f). If the New Development Property consists of property less than the entire Development
Property, the amount payable under this clause is the product of (a) the Developer Reimbursable
Costs, multiplied by (b) a fraction, the numerator of which is the area in square feet of the New
Development Property, and the denominator of which is the area in square feet of the
Development Property minus the combined area in square feet of the Wildlife Area and the
Athletic Field Area,
(3) If this Agreement is terminated before its expiration because of rescission of the
OTP initiated by Developer under Section I O{b) hereof, the Developer Reimbursable Costs will
exclude any costs for Item 1 (Framework Vision) and ltem 8 (Development of the T1F District)
on Exhibit E.
(4) Notwithstanding the expiration or earlier termination of this Agreement, the terms
and conditions of paragraph (f){1-3) shall survive the expiration or termination of this
Agreement.
Section 6, Exclusive Development Rights. During the term of this Agreement, the City
will not negotiate or contract with any other party concerning the sale or development of the
Development Property. The Developer shall not without the prior written consent of the City (a)
assign or transfer its rights under this Agreement, in full or in part, other than to an Affiliate, or (b)
undertake a merger, acquisition, reorganization or similar transaction unless the resulting entity is an
9
Affiliate. For the purposes of this Section, the term "Affiliate" means any corporation, partnership,
limited liability company or other business entity or person controlling, controlled by or under
common control with Ryan or Ryan and Rehbein, For the purpose hereof the words "controlling",
"controlled by" and "under common control with" shall mean, with respect to any corporation,
partnership, limited liability company or other business entity, the ownership, directly or indirectly,
of fifty percent or more of the (i) the voting interests in such entity, or (ii) the power to direct or
cause the direction of management policies of such entity, whether by way of ownership of voting
securities or by contract or otherwise.
Section 7. Negotiation of MDA. Upon execution of this Agreement, the City and the
Developer shall proceed with the negotiation of an MDA regarding the Development consistent
with the tenns set forth in this Agreement and use their best efforts to execute an MDA. The
execution of the MDA shall be subject to all ofthe following:
(a) All terms of the MDA are acceptable to the City and the Developer.
(b) The City's financial consnltant provides to the City a report indicating that:
(i) Any public financial assistance is necessary and appropriate, and is
financially feasible for the City in light of its other redevelopment and
economic development goals; and
(ii) Based on a review of the market study and pro forma provided by the
Developer, the proposed redevelopment and its financial feasibility are
supportable by projected market conditions,
(c) All the conditions stated in Section 2 hereof are either satisfied or are set forth as
conditions that must be satisfied by the Developer under the MDA before the Developer can
proceed with redevelopment of the Development Property.
Section 8. Effect of Approvals. No approval given by the City hereunder or in
connection herewith shall be deemed to constitute an approval ofthe Development for any purpose
other than as stated herein and the process outlined in this Agreement shall not be deemed to
snpersede any concept review, conditional use permit, vacation, subdivision, rezoning or other
zoning or planning approval process or public financing process of the City relative to the
development of real estate or condition of receiving any grant funds.
Section 9. Modifications. This Agreement may be modified and the tenn thereof may
be extended only through written amendments hereto signed by the parties to this Agreement and
approved by the City Council.
Section 10, Rights Regarding OTP. (a) The City may only rescind or terminate the OTP
pursuant to the terms thereof, including, but not limited to Section 5 thereof under the following
terms and conditions:
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(i) The City determines that the grounds exist for rescission or termination
under the terms of the OTP; and
(ii) This Agreement expires or the City has terminated this Agreement pursuant
to Section 12(a)(i) hereof prior to the execution of an MDA.
If the foregoing conditions are satisfied, the City may deliver to GSA a notice of rescission
or termination of the OTP effective upon receipt thereof by GSA.
(b) The Developer may require that the City either (in the City's sole discretion) repay
to Developer the amount of the earnest money the Developer has paid to the City ( the "Developer
Earnest Money") or terminate the OTP pursuant to the terms thereof, including, but not limited to
Section 5, under the following terms and conditions:
(i) The Developer must determine that the grounds exist for rescission or
termination under the terms of the OTP; and
(ii) The Developer must provide written notice to the City explaining why
Developer may not want to proceed with the Development and the grounds that exist for the
City's rescission or termination of the OTP (the "Initial Developer Notice"), and then allow
the City sixty (60) days after receipt of the Initial Developer Notice to take any of the
actions described in clause (v) of this paragraph (b),
(iii) At the end of the 60-day period following the City's receipt of the Initial
Developer Notice, the Developer may, in its sole discretion, provide written notice to the
City (the "Second Developer Notice") directing the City to select one of the following
options in the City's sole discretion:
(1) Within thirty (30) days after receipt of the Second Developer Notice, pay
the Developer Earnest Money to the Developer by wire transfer of funds to such
account as designated by the Deve]oper, or
(2) Within thirty (30) days after receipt of the Second Developer Notice,
forward to GSA and others as required by the OTP, the City's notice of rescission or
termination of the OTP for the reasons stated in the Initial Developer Notice and/or
Second Developer Notice, and such rescission or termination shal] be effective as of
the date designated in the Second Developer Notice.
The City must perform option (J) or (2) by the end of the 30-day period following the City's
receipt of the Second Developer Notice.
(iv) Notwithstanding Section] O(b )(i),(ii) and (iii) to the contrary, if the
Covenant Deferral Request has been signed by the Governor of the State of Minnesota and
the EP A Administrator either before or after the Developer initiates action under this
Section] O(b), then Developer shall only need to provide written notice to the City at least
three (3) business days before the date of repayment of Developer Earnest Money or
rescission or termination, which notice explains the grounds for rescission or termination
1]
under the OTP (the "CDR Developer Notice"). Within three (3) business days after receipt
of the CDR Developer Notice, the City, in its sole discretion, shall either pay the Developer
Earnest Money to the Developer by wire transfer of funds to such account designated by
Developer or forward to GSA and others as required by the OTP the City's notice of
rescission or termination of the OTP for the reasons stated in the CDR Developer Notice,
and such rescission or termination shall be effective as of three (3) business days after the
City's receipt of the CDR Developer Notice,
(v) Notwithstanding anything to the contrary in this Agreement, at any time after
receipt of an Initial Developer Notice under this Section 10(b), the City may in its sole
discretion negotiate with: (1) the Developer to avoid the Second Developer Notice being
sent; (2) the GSA regarding extensions to the OTP; (3) any other party regarding the
acquisition and redevelopment of the Development Property; or (4) any combination
thereof.
(c) In the event (i) of rescission or termination of the OTP initiated by either the City or
Developer under paragraphs (a) or (b) of this Section 10, (ii) of rescission or termination of the OTP
by GSA under the terms of the OTP, including but not limited to Section 5(d) thereof; or (iii) the
City is otherwise entitled to receive or does receive a refund of all or any portion of the eamest
money from the GSA pursuant to the terms of the OTP, then the Developer is entitled to such
refund of all or any portion of the earnest money. In the event the City receives a refund of all or
any portion of the earnest money from the GSA, regardless of the circumstances, the City agrees to
promptly remit such refund after its receipt to Developer without interest. If the City fails to wire
transfer the earnest money which it receives from the GSA to the Developer at an account
designated by the Developer within five (5) business days following the City's receipt of such
earnest money from the GSA, then the City shall reimburse the Developer for all of its out-of-
pocket costs incurred in collecting the earnest money, including reasonable attorneys fees.
(d) If any of the events described in Section 1 O( c) occur, the City shall collect all earnest
money due to the City pursuant to the terms of the OTP, subject to the following (i) the Developer
shall decide what actions shall be taken to collect the earnest money, (ii) the City shall retain the
attorneys and consultants requested by Developer to collect the earnest money, (iii) the Developer
shall participate in all aspects of such actions to collect the earnest money, (iv) no resolution of any
dispute with regard to the eamest money shall be agreed upon without the written consent of the
Developer, (v) upon the City's collection of any earnest money paid under the OTP, such earnest
money shall be promptly paid to the Developer as provided in Section lO(c) and (vi) the City shall
fully cooperate with the Developer in pursuing the collection of the earnest money. Developer shall
pay all of the out-of-pocket expenses incurred by the City in taking actions to collect the earnest
money, so long as such actions are pursuant to the written direction of the Developer. If, after the
best efforts of both the City and Developer as described in this Agreement, the City is unable to
collect all the earnest money from GSA, the Developer will have no recourse to collect any of the
earnest money from the City.
(e) The City may, or upon Developer's written request, it shall request that the GSA
consent to the assignment by the City to the Developer of all of the City's right, title and interest in
and to the earnest money, including the right to collect the earnest money, all pursuant to the terms
and conditions of the OTP, If the GSA consents to such assignment, then from and after the duly
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executed consent by the GSA to such assignment to the Developer, the City shall no longer have
any responsibility to collect the earnest money, other than the City is obligated to cooperate with
Developer regarding the Developer's actions to collect the earnest money,
(f) The City will not take actions or fail to take actions that constitute revocation or
default under the OTP, including, but not limited to Section 7, except and to the extent such actions
or omissions are the result of acts or omissions of Developer under Sections 3(d) or 3(e) of this
Agreement. In the event the eamest money may be forfeited at the option of GSA pursuant to
Section 7 of the OTP, the Developer's rights to have the City pursue the collection of the earnest
money are the same as described in Section lO(c), (d) and (e). If the City receives a notice of
default under the OTP (the "OTP Default Notice''), the City shall within one (1) business day
thereafter forward a copy of the OTP Default Notice to the Developer. The City shall provide
Developer with reasonable updates of the action being taken by the City to cure such default. If at
any time the Developer reasonably believes that the City is not proceeding diligently to cure the
default within the time period provided under the OTP, the Developer may take such actions on
behalf of the City as it reasonably deems necessary to cure the City's default pursuant to the OTP
Default Notice.
Section I I. Term of Agreement. (a) This Agreement shall be effective through
March 31, 2008, subject to earlier termination in accordance with Section 12. If for any reason an
MDA has not been entered into by the parties within the term of this Agreement or any other
mutually approved extension thereof, this Agreement shall be null and void and neither party
thereafter shall have any liability or obligations to the other except as otherwise provided in Section
12( c) in this Agreement.
Section 12.
Default/Remedies.
(a) This Agreement may be terminated by the City or the Developer, only upon thirty
(30) days' written notice to the other if:
(i) The other party fails to perform any of its obligations hereunder or fails to
agree to proposed changes to the then existing Budget, and fails to cure such
default or agree upon such changes to the Budget within thirty (30) days
after receipt of written notice thereof from the party wanting to terminate this
Agreement which notice explains the nature of the default or the change to
the Budget, and the OTP is terminated in accordance with Section 10
thereof; or
(ii) The OTP is terminated, including the rescission of the offer, in accordance
with Section 10 hereof.
Upon termination under this Section 12(a), neither party thereafter shall have any liability or
obligations to the other party except as otherwise provided in Section 12(b) and ( c) of this
Agreement.
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(b) Upon the termination of this Agreement pursuant to Section ]2(a) above:
(i) If either party terminates this Agreement, then (1) the City shall give prompt
notice to its consultants and its staff, and to any other parties performing
work or services the cost of which qualiry as City Reimbursable Costs, to
promptly cease providing any further work or services on or related to the
Development, unless City agrees to be responsible for such costs; and (2)
notwithstanding the provisions of Section 5, City Reimbursable Costs will
not include any such costs or expenses accrued from and after two (2)
business days following the City's receipt of the Developer's written notice
terminating this Agreement or date of the City's written notice to Developer
tenninating this Agreement.
(ii) If the Developer terminates this Agreement, the Developer's remedies are
limited to tenninating this Agreement, enforcing its rights under Section ] 0
hereof and under the Guaranty, recovering from the City the Developer
Reimbursable Costs, collecting any earnest money as provided in Sections
lO(c), (d), (e) and (f), and collecting all out-of-pocket costs accrued by the
Developer, including reasonable attorneys fees, for collecting the payment to
Developer of the earnest money which has been received by the City;
provided that if Developer terminates the Agreement because of rescission of
the OTP initiated by Developer under Section lO(b) hereof, Developer's
rights to receive Developer Reimbursable Costs are qualified by the
provisions of Section 5(f)(3) hereof.
(iii) If the City terminates this Agreement, then the City's sole remedies shall be
to tenninate this Agreement and to recover any unpaid City Reimbursable
Costs, and all of the out-of-pocket costs accrued by the City in collecting the
City Reimbursable Costs, including reasonable attorneys fees. The City
shall remain obligated to pay the Developer the Developer Reimbursable
Costs pursuant to Section 5, to terminate the OTP pursuant to Section] 0, to
recover the earnest money and pay the same to the Developer pursuant to
Sections lO(c), (d), (e) and (f) and as otherwise provided in this Agreement.
The Developer Reimbursable Costs and earnest money due Developer are
subject to a right of offset for amounts due by the Developer to the City for
unpaid City Reimbursable Costs.
(c) Notwithstanding any other provision of this Agreement to the contrary, the tenns
and conditions of Section 4(c)(iv), Section 5, and Sections lO(c), (d), (e) and (f) and Section l2(b)
survive the expiration or earlier tennination of this Agreement.
Section 13. Severabilitv. If any portion of this Agreement is held invalid by a court of
competent jurisdiction, such decision shall not affect the validity of any remaining portion of this
Agreement.
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Section 14. Notices. Notice or demand or other communication between or among the
parties shall be sufficiently given if sent by mail, postage prepaid, return receipt requested or
delivered personally:
(a)
As to the City:
With a copy to:
City of Arden Hills
11245 W. Highway 96
Arden Hills, MN 55112
Attn: City Administrator
Stephen J. Bubul
Kennedy & Graven, Chartered
470 U.S, Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
(b) As to the Developer: RRLD, LLC
c/o Ryan Companies US, Inc.
50 South Tenth Street, Suite 300
Minneapolis, MN 55403
Attn: Rick Collins
With a copy to:
Charles F. Diessner
Fredrikson & Byron, P'A.
200 South Sixth Street, Suite 4000
Minneapolis, MN 55402
Section 15. Counteroarts. This Agreement may be executed simultaneously III any
number of counterparts, all of which shall constitute one and the same instrument.
Section 16. Waivers, 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 deemed to waive any other concurrent,
previous or subsequent breach hereunder.
Section 17. Titles of Sections. Any titles of the Sections of this Agreement are
inserted for convenience of reference only and shall be disregarded in construing or interpreting
any of its provisions,
Section 18. Relationship of Parties. Nothing in this Agreement creates a joint venture,
partnership or principal-agent relationship between the parties,
Section 19, Effective Laws. This Agreement shall be construed in accordance with the
laws of Minnesota, and any disputes shall be adjudicated in Ramsey County district courts.
Section 20.
all respects.
Effect of Agreement. This Agreement supersedes the Interim Agreement in
15
Section 21. Conflict. In the event of any conflict between the terms and conditions of
this Agreement and the Guaranty, the terms and conditions of this Agreement shall govern and
controL
Section 22, References to GSA. All references to the GSA in this Agreement shall also
be deemed to be references the United States Government and/or the U.S. Army, as circumstances
reqUIre.
Section 23. Dispute Resolution. Upon written notice from either party to the other prior
to the commencement of any legal action, or within ten (] 0) business days after the commencement
of any legal action relating to any claims, disputes or other matters in question between the parties
to this Agreement arising out of or relating to Section 5 (excluding 5( f)(2)) of this Agreement, shall
be referred to nonbinding mediation before, and as a condition precedent to, proceeding with any
legal action regarding such claims, disputes or other matters other than the commencement of such
action. Each party agrees to participate in up to eight (8) hours of mediation which must be
completed and any agreed upon resolution duly executed within thirty (30) days after written notice
requiring nonbinding mediation. The mediator shal] be selected by the parties, or if the parties are
unable to agree on a mediator then any party can request the administrator of the Ramsey County
District Court Civil ADR Program and/or similar person, to select a person from its list of qualified
neutrals, The mediation shall be decided by employees or agents of each party having authority to
settle the dispute. All fees and expenses of the mediator shall be shared equally between the parties
and all other expenses incurred by each party related to the mediation shall be borne by such party,
including without limitation, the costs of any experts or legal counseL All applicable time periods
for responding to any legal action which has been commenced, statutes of limitations and all
defenses based on the passage of time are tolled while the mediation procedures are pending, and
for a period of 30 days thereafter.
[Signatures on following pages]
]6
IN WITNESS WHEREOF, the City has caused this Agreement to be duly executed in its
name and behalf and the Developer has caused this Agreement to be duly executed in its name and
behalf on or as of the date first above written,
CITY OF ARDEN HILLS, MINNESOTA
"y~~
lts Mayor
~t C~A~~~t~ ~~
S-I
RRLD, LLC, a Delaware limited liability company
By Ryan Companies US, Inc., a Minnesota Corporation
Its Manager
ll'~~
Its y;vvP'vo;,Lnt E'F<(.~~~\Il. V'itt 9~)..
S-2
EXHIBIT A
DEVELOPMENT PROPERTY
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A-I
EXHIBIT B
FRAMEWORK VISION
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B-1
EXHIBIT C
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EXHffiIT D
BUDGET OF CITY REIMBURSABLE COSTS
Consultant Scone of Services Budl!.et
SRF (Environmental Srvcs) . ADAR Environmental Study $250,000
. Preparation of ADAR process
schedule
. Initialize EA W with nnique
ADAR items
. Establishment of Public
Involvement Process
. Assemble elements of the
ADAR
. Author fmal document
. Meetings
. Review of environmental
documents as needed
Spencer Fane Britt & Browne . Legal Services relating to the $]50,000
Mike Comedeca (Legal Services) Transfer Process
. Offer To Purchase
. Review ofT ransfer Documents
. Negotiations with GSA and
Army
. Meetings & Travel
Kennedy & Graven . Negotiation and Preparation of $150,000
Stephen Bubul (Legal Services) Development Agreements
. Review of Legal documents as
needed
. TIF related legal review
. Meetings
BCS Consulting Services . Project Management Consulting $75,000
Dennis Welsh (Project Management . Review of documents as needed
Services) . Project assistance as needed
. Council education
. Grant Assistance
. Meetings
Engineering Services . Engineering review and $40,000
consultation
EWers & Associates . Provide fiscal analysis of $]50,000
(Financial Consultant Services) development agreements
D-]
Consultant Scone of Services Budvet
. Review of Developer Pro forma
. Evaluate fiscal and economic
implications ofland transfer
particularily with regard to
infrastructure and city
services
. Develop a Resource Plan for the
City of Arden Hills
. Provide overall project
assistance as required
. meetings
LHB (TIF Inspections Services) . Inspection services related to $40,000
development of one or more
llF Districts
Peterson Fram Bergman . Review documents and provide $25,000
Ierry Filla (City Attorney) legal oDinions as necessary
Additional City Staff . Assist with planning and $75,000
Planning Assistant community development
activities to allow CD
Director/Project Manager
and City Planner to devote
additional time to TCAAP
Project
MISe. . Legal Notices $25,000
. Mailings
. PRI Advertising
. Office supplies/Equipment
. StaffTraveVfraining
D-2
EXHmlT E
DEVELOPER REIMBURSABLE COSTS
Developer Reimbursable Costs are the City Reimbursable Costs and the out-of-pocket costs paid by
the Developer for the following activities, subject to the tenns and conditions described below:
I . Framework Vision
2. Environmental studies of the Development Property
3. Geotechnical studies of the Development Property
4. Traffic Analysis-Related to infrastructure outside the Development Property only
5, AUAR process and documents related to Development Property
6. Amendments to City Comprehensive Plan related to Development Property
7. Landscape plans and design guidelines for Development Property
8. Development District and TIP District(s) and related plans for all or portion of the
Development Property
The Developer Reimbursable Costs related to any of the foregoing activities quality as a Developer
Reimbursable Cost only if the Successor Developer uses such relevant item. The portion of the
Developer Reimbursable Costs due the Developer in each category will be the portion of actual
Developer Reimbursable Costs that are detennined by a City-appointed "independent expert" in the
relevant field to have value for the Successor Developer. If Developer disagrees with the City's
expert, Developer may (within 30 days after receipt of the City's expert opinion) request an opinion
from an independent expert selected by Developer. If the expert opinions differ, the two experts
will mutually agree upon a third independent expert who shall detennine the process to be followed
and whose conclusion as to the amount of Developer Reimbursable Costs for that item that are due
the Developer will be binding on the parties. For the purposes of this Exhibit E, the term
"independent expert" for the City-appointed or Developer appointed independent expert means a
person or entity who (i) has reasonable professional experience in the area that is the subject of the
opinion; (ii) does not have any material financial interest in the City, the Developer, Rehbein, Ryan
or the transaction to which such person's opirrion relates (other than payment to be received for
professional services rendered as a consultant to the Developer or City, including regarding the
Development, or as an "expert" under this Exhibit E and (iii) is not connected with the City, the
Developer, Rehbein or Ryan as an officer, director or employee.
299882(518)
ARl004
E-I