062705 EDA
Official File Copy
-
~
CITY OF NEW HOPE
EDA MEETING
City Hall, 4401 Xylon Avenue North
June 27, 2005
EDA Meeting will commence upon
adjournment of the City Council Meeting
President Martin Opem Sr.
Commissioner Mary Gwin-Lenth
Commissioner Andy Hoffe
Commissioner Karen Nolte
Commissioner Steve Sommer
1. Call to order
2. Roll call
3. Approval of regular meeting minutes of June 13, 2005
4. Resolution approving a purchase agreement to sell the city-owned property at 7500,
7516, 7528 42n. Avenue North to Frey Development and Manley Land Development,
LLC (improvement project no. 740)
5. Adjournment
EDA Minutes
Regular Meeting
CALL TO ORDER
ROLL CALL
APPROVE MINUTES
PUBLIC HEARING
IMP. PROJECT 740
Item 4
CLOSE HEARING
Item 4
MOTION
Item 4
EDA Meeting
Page 1
CITY OF NEW HOPE
4401 XYLON AVENUE NORTH
NEW HOPE, MINNESOTA 55428
June 13, 2005
City Hall
President Opem called the meeting of the Economic Development Authority
to order at 7:56 p.m.
Present:
Martin Opem Sr., President
Mary Gwin-Lenth} Commissioner
Andy Hoffe, Commissioner
Karen Nolte, Commissioner
Steve Sommer, Commissioner
Staff Present:
Dan Donahue, City Manager
Clarissa Klug, Assistant City Attorney
Valerie Leone, City Clerk
Shawn Siders, Community Development Specialist
Steve Sondrall, City Attorney
Vince VanderTop, Assistant City Engineer
Motion was made by Commissioner Gwin-Lenth, seconded by Commissioner
Sommer, to approve the Regular Meeting Minutes of May 23, 2005. All
present voted in favor. Motion carried.
President Opem introduced for discussion Item 4, Public hearing regarding a
proposed transfer of real property, 7500, 7516 and 7528 42nd Avenue North to
Frey Development and Manley Land Development, LLC (improvement
project no. 740).
Mr. Shawn Siders, community development specialist, provided a brief
history of the property. He stated staff recommends receiving public comment
during the public hearing and a motion by the EDA to direct staff to prepare a
purchase agreement for consideration at the EDA meeting of June 27,2005.
President Opem opened the floor to anyone wishing to comment during the
public hearing. There was no one present desiring to address the EDA.
Motion was made by President Opem, seconded by Commissioner Nolte, to
close the public hearing. All present voted in favor. Motion carried.
Motion was made by Commissioner Sommer, seconded by Commissioner
Gwin-Lenth, directing staff to prepare the purchase order to transfer city-
owned property to Frey Development and Manley Land Development, LLC
(improvement project no. 740). All present voted in favor. Motion carried.
June 13, 2005
PUBLIC HEARING
IMP. PROJECT 775
Item 5
CLOSE HEARING
Item 5
EDA RESOLUTION
05-04
Item 5
ADJOURNMENT
EDA Meeting
Page 2
President Opem introduced for discussion Item 5, Public hearing and
purchase agreement approval regarding a proposed transfer of real property,
5207 Pennsylvania A venue North to A very Homes, Inc. (improvement project
no. 775).
Mr. Shawn Siders, community development specialist, stated the EDA
acquired the property in November of 2004; the demolition was authorized in
February of 2005; the EDA selected Avery Homes as the preferred developer
in May of 2005.
He illustrated a home recently constructed by A very Homes and reviewed the
proposed construction of a two-story single-family home. He stated if the
EDA approves the purchase agreement, the property closing will occur
during the week of June 27 and the new house is expected to be substantially
complete by December 15, 2005.
President Opem opened the floor to anyone wishing to comment during the
public hearing. There was no one present desiring to address the EDA.
Motion was made by Commissioner Hoffe, seconded by Commissioner Nolte,
to close the public hearing. All present voted in favor. Motion carried.
Commissioner Gwin-Lenth introduced the following resolution and moved
its adoption: "RESOLUTION AUTHORIZING EXECUTION OF
PURCHASE AGREEMENT FOR SALE OF PROPERTY LOCATED AT 5207
PENNSYLVANIA AVENUE NORTH." The motion for the adoption of the
foregoing resolution was seconded by Commissioner Sommer, and upon vote
being taken thereon, the following voted in favor thereof: Opem, Gwin-Lenth,
Hoffe, Nolte, Sommer; and the following voted against the same: None;
Abstained: None; Absent: None; whereupon the resolution was declared duly
passed and adopted. signed by the president which was attested to by the
executive director.
Motion was made by Commissioner Gwin-Lenth, seconded by Commissioner
Sommer, to adjourn the meeting. All present voted in favor. Motion carried.
The New Hope EDA adjourned at 8:05 p.m.
Respectfully submitted,
~~
Valerie Leone
City Clerk
June 13, 2005
EDA
REQUEST FOR ACTION
Originating Department
Approved for Agenda
Agenda Section
Community Development
By: Kirk McDonald, Director of CD
Shawn Siders, CD S ecialist
RESOLUTION APPROVING A PURCHASE AGREEMENT TO SELL THE CITY OWNED PROPERTY AT
7500, 7516 AND 7528 42ND A VENUE NORTH TO FREY DEVELOPMENT AND MANLEY LAND
DEVELOPMENT, LLC (IMPROVEMENT PROJECT NO. 740)
By:
6-27-05
EDA
Item No.
4
REOUESTED ACTION
City staff requests that the EDA approve the enclosed resolution approving the sale of the city owned
property at 7500, 7516 and 7528 42nd A venue North to Frey Development and ManIey Land Development.
Staff will give a short summary of the proposed terms and request that the EDA approve the enclosed
purchase agreement which authorizes the Mayor and City Manager to execute the purchase agreement.
POLICY/PAST PRACTICE
City goal #2 is to emphasize the maintenance and redevelopment of commercial and residential properties
within the city.
BACKGROUND
At its meeting of June 13, 2005, the Economic Development Authority conducted a public hearing regarding
the proposed transfer of the city owned property at 7500-7528 42nd Avenue North to Frey Development and
ManIey Land Development. The proposed terms of the sale are as follows:
o Land Acquisition Price - $510,000;
o Brokerage Fees - To be paid by Frey Development and ManIey Land Development, Inc.
Developers to provide city with indemnification agreement against brokerage fees;
o Property is being transferred in an "as is" condition;
o Buyer must receive all planning approvals prior to closing;
o Buyer will obtain necessary approvals from the Minnesota Pollution Control Agency (MPCA)
prior to closing;
o Buyer will provide cross easements for shared access and parking for all tenants on the entire site;
o Buyer agrees to pay all fees associated with the redevelopment of this site.
MOTION BY
~
KM 1)5-
SECOND BY
TO:
I: \ RF A \PLANNING\ Electronic Industries \ Public Hearin Fre & ManIe .doc
Request for Action
Page 2
June 27, 2005
On June 10, 2005, Frey Development and Manley Land Development submitted redevelopment plans which
propose the redevelopment of the site. The proposal includes the construction of 8 office condominiums on
the eastern one-half of the property and a 9,500 square foot restaurant/retail use on the western one-half of the
property. Viva Italia, a full service Italian restaurant will anchor the retail building. The Planning
Commission will review the plans and make a recommendation to the City Council at its meeting of July 12,
2005. The plans will be presented to the City Council for its consideration on July 25, 2005.
RECOMMENDATION
Staff recommends that the EDA approve the enclosed resolution authorizing the Mayor and City Manager to
execute the purchase agreement.
ATTACHMENT
o Resolution
o Purchase and Redevelopment Agreement
RESOLUTION NO. 05-
RESOLUTION AUTHORIZING NEGOTIATION, EXECUTION AND DELIVERY OF A
PURCHASE AGREEMENT BETWEEN THE ECONOMUC DEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF NEW HOPE, FREY DEVELOPMENT, INC.
AND MANLEY LAND DEVELOMENT, INC. FOR PROPETY LOCATED AT 7500, 7516
AND 7528 42nd AVENUE NORTH
BE IT RESOLVED by the Economic Development Authority in and for the City of New
Hope (the "Authority") as follows:
WHEREAS, the Authority is the owner of certain real estate within Auditor's Subdivision
Number 324, Hennepin County, Miunesota, which real estate is more commonly known as 7500 42nd
Avenue, 7516 42nd Avenue and 7528 42nd Avenue (collectively, the "Property"); and
WHEREAS, it has been proposed that it is in the best interests of the City of New Hope and .
its people if the Property is sold to Frey Development, Inc. and Manley Land Development, Inc.
(collectively, the "Redeveloper") to facilitate construction of (i) an 8-unit office-condo building and
(ii) a multi-tenant retail building approximately 8,500 to 9,000 square feet in size, with 5,000 to
6,000 square feet of that building to be occupied by a "Viva Italia" restaurant and with the remaining
tenants chosen after consideration of input by the Authority.
WHEREAS, it has further been proposed that the above-outlined sale would further the
Authority's general plan of economic development; and
WHEREAS, the Authority has pursuant to Minnesota Statutes Section 469.105 and other
applicable laws and regulations called for and held a public hearing regarding such sale of the
Property and has accepted public comments, if any, made at the hearing session(s); and
WHEREAS, the Authority has determined that it is in the best interests ofthe City of New
Hope and its people if the Property is sold to the Redeveloper, and that such sale would further the
Authority's general plan of economic development.
NOW, THEREFORE, BE IT RESOLVED by the Economic Development Authority in
and for the City of New Hope as follows:
1. That sale of the Property is hereby approved and authorized.
2. That the President and the Executive Director (the "Officers") are hereby authorized
to execute and deliver a purchase agreement for sale of the Property when the following condition is
met:
1
Substantial conformance of the purchase agreementto the form of agreement presented to the
Authority as of this date, with such additions and/or modifications as the Officers may deem
necessary or desirable as evidenced by their execution thereof.
Dated the 27th day of June, 2005.
Martin E. Opem Sr., President
Attest:
Daniel J. Donahue, Executive Director
P,\AITORNEYICMK\CLIENTSICNHI99-11293Ws;..II293.(108 vrv A ITAUA RESOWTION AUTHORIZING PURCHASE AGREEMENT.DOC
2
PURCHASE AND DEVELOPMENT AGREEMENT
This Purchase and Development Agreement ("Agreement") is made by and between
FREY DEVELOPMENT, INC. a Minnesota Corporation and MANLEY LAND
DEVELOPMENT, INC. a Minnesota corporation (collectively, "Buyer") and the ECONOMIC
DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF NEW HOPE,
MINNESOTA, ("Seller"). In consideration of the covenants and agreements of the respective
parties as hereinafter set forth, Seller shall sell and Buyer shall purchase those certain parcels of
real estate located in the City of New Hope and more commonly known as 7500 - 42nd Avenue
North, 7516 - 42nd Avenue North and 7528 - 42nd Avenue North, which parcels are legally
described on Exhibit A attached hereto and made a part hereof (the "Property").
1. Purchase Price. The purchase price for the Property shall be Five Hundred Ten
Thousand and No/lOO Dollars ($510,000.00) (the "Purchase Price"), which the Buyer shall pay
as follows: an initial payment of Two Thousand Dollars ($2,000.00) (the "Earnest Money"), .
which sum shall be deposited with Old Republic Title Insurance Company (the "Escrow Agent",
also referred to hereafter as the "Title Company"), and Five Hundred Eight Thousand Dollars
($508,000.00) payable by wire, cashier's check or cash on the on the "Date of Closing", as that
term is defined below.
2. Title Conveyed. On the Date of Closing, the Seller shall deliver a Quit Claim Deed (the
"Deed") to the Buyer conveying marketable title of record, free and clear of liens, encumbrances,
assessments restrictions, except for the "Permitted Exceptions", as that term is defmed below.
3. Representations and Warranties by Seller. The Seller represents to the Buyer that:
a) The Seller owns the Property and has the right to sell the same, and that there are
no unrecorded contracts, leases, easements or other agreements or claims of any
third party affecting the use, title, occupancy or development of the Property, and
no person, firm or entity has any right of refusal, option or other right to acquire
all or any part of the Property except as follows:
A Purchase and Sale Agreement executed by Frey Development, Inc. on
November 5, 2003, and by the Seller on November 24, 2003, which
Agreement relates only to the portion of the Property legally described as
"All of the following described parcel except for the West 163 feet
thereof: That part of Lot 5, Auditor's Subdivision Number 324, Hennepin
County, Minnesota described as follows: Commencing at the point of
intersection of the North line of Rockford Road and the East line of said
Lot 5; thence North along said East line a distance of 350 feet; thence
West parallel with the North line of Rockford Road a distance of 320.4
feet more or less, to a point 48.95 feet East of the West line of said Lot 5,
as measured at right angles thereto thence South parallel with the West
line of said Lot 5 a distance of 350.0 feet to the North line of Rockford
1
Road; thence Easterly along the North line of Rockford Road a distance of
320.4 feet, more or less to the point of beginning."
b) The Seller shall cooperate with the Buyer in the Buyer's efforts to obtain the
approval of all public or governmental authorities as to all matters relating to
zoning, subdivision, lot splits, special use permits, access, or similar requirements
for an eight unit town-office project on the eastern portion of the site and a multi-
tenant retail building (approximately 8,500 to 9,000 square feet in size) on the
western portion of the site, which retail building will include a Viva Italia
restaurant (collectively, the "Buyer's Intended Use"). For the purposes of this
Agreement "town-office" shall mean a common ownership interest community
with commercial office units constructed on individually-owned lots and common
areas owned and maintained by a non-profit owners' association. Seller shall join
in such applications and other documents, including access and parking
easements, as may be necessary or required by governmental or regulatory bodies
to develop the Property for the Buyer's Intended Use.
c) The Seller's warranties and representations contained In this Section 3 shall
survive the delivery of the Deed.
d) The Property is subject to a Declaration of Environmental Restrictive Covenants
dated November 24, 2003, which Declaration is recorded with the Office of the
Hennepin County Recorder as Document Number 8298194 and is attached hereto
as Exhibit B (the "Environmental Restrictive Covenants"). The Seller has not
received any notice from any person or entity as to a breach of the terms contained
in the Environmental Restrictive Covenants.
e) The Seller has not received any notice from any governmental authority
concerning any eminent domain, condemnation, special taxing district, or
rezoning proceedings.
f) The Property is not subject to any assessment or valuation agreement that is not
listed as one of the Permitted Exceptions, and the Seller has not received any
notice of actual or threatened special assessments or reassessments of the
Property.
g) To the best of the Seller's knowledge there are no wells or septic systems on the
Property.
The Seller agrees that any breach of the forgoing representations shall be grounds for Buyer to
terminate this Agreement. In the event of such termination, the Earnest Money shall be returned.
NOTWITHSTANDING THE FOREGOING REPRESENTATIONS BY THE SELLER,
THE BUYER HEREBY ACKNOWLEDGES THAT THE BUYER IS PURCHASING
THE PROPERTY IN "AS IS" CONDITION.
2
4. Conditions of Offer. The Buyer's obligation to close the transaction contemplated by this
Agreement is subject to the satisfaction of the following conditions on or before July 15, 2005:
a) The Buyer shall, pursuant to the terms of Section 7 below, have reasonably
determined that the Property is marketable. In making such determination the
Buyer specifically agrees and acknowledges that title to the Property is currently,
and if the Buyer proceeds with closing will be, subject to the following title
matters the "Permitted Exceptions":
(i) any lien of real estate taxes not yet due and payable in 2005;
(ii) rights-of-way for drainage ditches, drain tiles, feeders, laterals and
underground pipes, if any;
(Hi) all dedicated rights-of way;
(iv) the Environmental Restrictive Covenants; and
(v) all other easements, restrictions, covenants and agreements which are
depicted by the public records, so long as the Buyer's Intended Use is not
materially impaired by such matters of record. The Buyer agrees and
acknowledges that for the purposes of this Agreement the Environmental
Restrictive Covenants shall not be considered to "materially impair" the
Buyer's Intended Use.
b) Obtaining approval for ingress and egress to the Property and all zoning changes,
including rezoning, variances, special use permits, subdivisions and any other
governmental permits, consents and authorizations, which are necessary or desirable
for Buyer's Intended Use, including, without limitation, final building permits.
c) Obtaining financing under terms and conditions reasonably acceptable to the
Buyer.
d) The Buyer and the Seller agreeing to reasonable terms and provisions for cross
easements in favor of the Buyer for construction and maintenance of access and
parking.
e) Reasonably acceptable direct access to and from the Property VIa publicly
dedicated streets.
If any condition of this Section 4 remains unsatisfied or has not been waived by the Buyer on or
before July 15, 2005, this Agreement shall become null and void, neither party shall have any further
obligation to the other under this Agreement (other than rights or obligations under this Agreement
which provide for continued exercise following the cancellation or other termination of this
Agreement), and the Earnest Money shall be refunded. With respect to the above-described
conditions in favor of the Buyer, the Buyer shall give notice of its desire to terminate this Agreement
for failure to satisfY or fulfill any of said conditions on or before July 15, 2005, but ifno notice of
3
termination is given within the specified time period with respect to any of the conditions listed
above, such condition shall be deemed to be waived by the Buyer and the Buyer shall proceed to
close this transaction in accordance with the other terms and conditions of this Agreement. The
Buyer hereby acknowledges that the Buyer has been fully informed of the ground water and soil
contamination existing on the Property and has had ample opportunity to investigate and inform
itself regarding these circumstances. The Buyer further acknowledges that this contamination
does not render the Property unsuitable for development in connection with the Buyer's Intended
Use.
5. Survey. The Seller has previously delivered to the Buyer a survey of the Property (the
"Survey"). The Buyer acknowledges receipt of the survey and agrees and acknowledges that the
same was prepared by a duly licensed surveyor in accordance with the current minimum standard
detail requirements for ALTNASCM land title surveys.
6. Access Prior to Closing. The Buyer and its employees, agents, and contractors shall
have the right to enter upon the Property for the purpose of conducting examinations, making.
measurements, and performing such tests or surveys thereon (including soil borings) as the Buyer
desires. The Buyer's access to the Property and actions thereon shall be subj ectto Seller's
approval, the approval of the Minnesota Pollution Control Agency and, if requested by the Seller,
a written access agreement. The Buyer agrees to promptly repair or restore any damages caused
by the Buyer or its employees, agents, or contractors during the course of making such
examination, measurements or tests, with repairs to be performed in any reasonable manner
specified by the Seller or the Minnesota Pollution Control Agency and the Buyer further agrees
to indemnifY and hold the Seller (and the Seller's employees, agents, consultants and officers)
harmless from and against any lien, claim, loss, liability, cost, damage or injury asserted against
or suffered by the Seller or the Property, including but not limited to attorneys' fees, related to
any entry by the Buyer, its assigns or any of its agents, representatives, contractors or employees,
as related to this Agreement. The repair and indenmification obligations recited in this Section 6
shall survive closing or the cancellation or other termination of this Agreement.
7. Title Commitment and Policy.
a) The Seller shall deliver to the Buyer a Commitment for an ALTA Form B owner's
policy of title insurance (the "Commitment") issued by the Title Company and
covering title to the Property, in th.e amount of the Purchase Price. The Seller
agrees to pay the costs associated with the preparation and issuance of the
Commitment; the Buyer shall pay the premium for the owner's policy, if any, and
the lender's policy, if any, along with the price for any endorsements requested by
the Buyer or the Buyer's lender.
b) The Buyer shall have ten (10) days after receipt of the Commitment to review and
approve the title to the Property and to object to any exception to title that is
disclosed in the Commitment and Surveyor which is otherwise discovered by the
Buyer. In the event that the Buyer does not within such ten (10) day period give
notice to the Seller objecting to any such exceptions, then all such exceptions shall
be deemed approved and shall be considered a part of the Permitted Exceptions.
4
If the Buyer timely objects to an exception to title, then on or before the tenth (10)
day following the Buyer's notice of exception, the Seller shall remove the
exception or notify the Buyer that the Seller is unwilling or unable to remove the
exception. Within five (5) days of any notice by the Seller that the Seller it is
unwilling or unable to remove an exception to title, the Buyer may elect by notice
to the Seller to either:
(i) terminate this Agreement, whereupon the Earnest Money shall be returned
to the Buyer and the parties shall be released from all further obligations
hereunder except obligations under this Agreement which provide for
continued exercise following the cancellation or other termination of this
Agreement; or
(ii) elect to have this Agreement remain in effect, in which event the Buyer
will be deemed to have approved the previously-cited exception and the
same shall be considered part of the Permitted Exceptions.
8. Buyer Obligations Joint and Several. Frey Development, Inc. and Manley
Development, Inc. each acknowledge joint and several liability for the Buyer representations and
obligations under this Agreement, and each further acknowledges that the Seller may pursue one
or both of them as the "Buyer" in connection with enforcement of any Seller rights pursuant to
this Agreement.
9. Closing.
a) Closing shall occur within ten (10) business days after all the conditions of the
Agreement have been satisfied, and in no event later than August 1, 2005 (the
"Date of Closing"), unless both parties agree, in writing, to an earlier or later time.
b) Closing shall, at the Seller's sole option, occur at the Escrow Agent's office, the
Seller's office, or the office of the Seller's attorney.
c) The Seller shall deliver at closing the following executed and acknowledged
documents:
(i) the Deed;
(ii) affidavit(s) in industry-standard form(s) stating that possession of the
Property is being delivered free of any mechanic's or statutory liens in
connection with work performed prior to closing; the Seller is not a
foreign person or entity; and addressing such other matters as the Buyer
may reasonably require; and
(Hi) a Cancellation of Purchase Agreement, in form reasonably acceptable to
the Buyer, terminating the agreement between the Seller and Frey
Development, Inc. cited in Subsection 3(a) above with respect to a portion
of the Property;
5
(Iv) easement or easement agreements as outlined in Section 4( d) above;
(v) an Assignment of the Environmental Restrictive Covenants.
d) The Buyer shall deliver at closing the following executed and aclmowledged
documents:
(I) a Cancellation of Purchase Agreement, in form reasonably acceptable to
the Buyer, terminating the agreement between the Seller and Frey
Development, Inc. cited in Subsection 3(a) above with respect to a portion
of the Property;
(Ii) easement or easement agreements as outlined in Section 4( d) above; and
(iii) an Assignment of the Environmental Restrictive Covenants.
10. Payments/Proratlons. The Seller shall, on or before the Date of Closing, pay for the'
costs relating to the Commitment. At closing, the Seller shall pay the cost of recording any
instrument (other than the Deed) necessary to place title in the condition required under this
Agreement, State deed tax, and all special assessments levied, pending or constituting a lien
against the Property as of the Date of Closing, including without limitation any installments of
special assessments and interest payable with general real estate taxes in the year of closing. The
Seller will pay general real estate taxes payable in the year prior to the year of closing and all
prior years. The Buyer shall pay at closing the cost of any owner policy or lender policy of title
insurance, sales tax, if any, and fees required for recording the Deed. The Seller and the Buyer
each will pay one-half of customary closing fees. General real estate taxes payable in the year of
closing shall be prorated by the Seller and the Buyer as of the closing date based upon a calendar
year.
11. Condemnation. If, prior to the Date of Closing, all or any part of the Property shall be
condemned by governmental or other lawful authority, the Buyer shall have the option of (a)
completing the purchase contemplated by this Agreement, in which event all condemnation
proceeds or claims thereof shall be assigned to the Buyer, or (b) canceling this Agreement, in
which event the Earnest Money shall be refunded and this Agreement shall be terminated with
neither party having any rights against or obligations to the other except rights or obligations
under this Agreement which provide for continued exercise following closing or cancellation or
other termination of this Agreement, and the Seller shall be entitled to any and all condemnation
proceeds.
12. Notices. All notices required hereunder shall be in writing and shall be deemed to have
been duly given and received (a) two (2) business days after depositing of the same in the mail if
sent by regular, registered or certified mail, postage prepaid, to the party to whom directed, at
such party's address herein set forth; (b) upon delivery, or attempted delivery if delivered by
overnight courier service or hand delivery; (c) or upon transmission if successfully transmitted by
facsimile. Any party shall have the right to designate any other address or facsimile number for
6
notice purposes by written notice to the other party in the manner aforesaid. The addresses of the
parties are as follows:
SELLER:
City of New Hope
Dan Donahue, City Manager
4401 Xylon Avenue North
New Hope, MN 55428-4898
Facsimile No.: 309-688-9099
with copy to:
Clarissa M. Klug
Jensen & Sondrall, P.A.
8525 Edinbrook Crossing, Suite 201
Brooklyn Park, MN 55443
Facsimile No.: 763-493-5193
BUYER:
Bernie R. Frey
Frey Development, Inc.
4801 Y2 Nicollet Avenue South
Minneapolis, MN 55409
Facsimile No.: 612-827-4331
and
Manley Land Development, Inc.
243 Cliff Drive
Eagan, MN 55122
Facsimile No.:
13. Broker. The Buyer represents and warrants that it will pay all brokerage charges
incurred in connection with this transaction in connection with activities authorized by the Buyer,
along with any brokerage charges incurred in connection with prior marketing of the Property or
a portion thereof. The Buyer obligations recited in this Section 13 shall survive the closing or the
cancellation or other termination of this Agreement.
14. Remedies. If the Buyer defaults under this Agreement, the Seller shall have the right to
terminate this Agreement by giving written notice to the Buyer as provided by law. If the Buyer
fails to cure such default as provided by law, this Agreement will terminate, and upon such
termination the Seller will retain the Eamest Money and neither party shall have any rights or
obligations against the other except rights or obligations under this Agreement which provide for
continued exercise following the cancellation or other termination of this Agreement. If the
Seller defaults under this Agreement, the Buyer shall have the right to seek specific performance
and recover as damages from the Seller all of the Buyer's reasonable out-of-pocket costs and
fees.
7
15. MPCA VIC Application and Letter. The Seller shall apply for and obtain written
assurance from the MPCA that the Buyer is not responsible for cleanup of the hazardous
materials that remain in the undisturbed soil and water of the Property (a "No Association"
assurance letter). This letter is to be obtained through application to the Minnesota Pollution
Control Agency ("MPCA") Voluntary Investigation and Cleanup ("VlC") program.
Notwithstanding the foregoing language, the Seller shall have no responsibility for applying for a
"No Association" assurance letter in the event that the Buyer fails to provide the Seller, a
sufficient period before the Date of Closing, with the "Required Information" (as that term is
defmed below). The Seller's failure to provide a ''No Association" assurance letter in accordance
with the provisions of this Section 15 shall be grounds for the Buyer to terminate this Agreement.
In the event of such termination, the Earnest Money shall be returned and neither party shall have
any rights against or obligations to the other except those rights or obligations under this
Agreement which provide for continued exercise following the cancellation or other termination
of this Agreement.
16. Required Information. The Buyer is required to provide the Seller, consistent with.
Section 15 above, with the following information at the Buyer's sole expense so that the Seller
can complete the VIC application (the "Required Information"):
a) Site plan and associated text describing the nature of business activities
anticipated after redevelopment;
b) Grading plan;
c) Geotechnical drilling and/or soil testing plan;
d) Subsurface utilities plan;
e) Vapor collection system desigu drawings;
1) Construction time line; and
g) Any other information required for the completion of the VIC application that the
Buyer otherwise needs to prepare in connection with its development of the
Property.
The Buyer's failure to provide the Required Information in accordance with the provisions of this
Agreement shall be grounds for the Sdler to terminate this Agreement. In the event of such
termination the Seller shall be allowed to retain the Earnest Money and neither party shall have
any rights against or obligations to the other except those rights under this Agreement which
provide for continued exercise following the cancellation or other termination of this Agreement.
17. Monitoring During Construction. The parties acknowledge that on-site monitoring of
certain construction activities by an enviromnental professional will be required after closing.
The Seller agrees, consistent with the requirements of this Agreement, to be responsible for
providing a field teclmician to be on-site during:
8
a) Grading activities near the Restricted Area (as defmed m the Environmental
Restrictive Covenants);
.b) Subsurface excavation of utilities;
c) Installation and startup of vapor collection system; and
d) Geotechnical drilling and/or soil testing activities.
The field technician will monitor excavated soils for the presence of contaminants. If
contaminated soils are detected, they will be stockpiled by the Buyer separately from clean soils
for later disposal. At the conclusion of on-site monitoring activities, the field technician will
provide a letter report to both the Seller and the Buyer summarizing the field technician's
activities and observations. The Buyer and Seller obligations under this Section 17 shall survive
delivery ofthe Deed.
18. Monitoring Costs and Responsibilities. The Buyer shall be responsible for providing
the Seller with reasonable notice of the activities outlined in Section 17 so that the Seller will be
able to provide an appropriate field technician. If the Buyer fails to provide the Seller with such
reasonable notice than the Buyer shall be responsible for providing the required field technician
(approved in writing by the Seller prior to technician work beginning, with approval not to be
unreasonably withheld or delayed) and shall bear all costs and liabilities associated with
provision of an appropriate field technician. Regardless of which party bears the cost the field
technician, the Buyer shall be solely responsible for the proper disposal of any contaminated
materials. The Buyer and Seller obligations under this Section 18 shall survive delivery of the
Deed.
19. Future Access and Utility Easements. The Buyer hereby represents and warrants that
the Buyer will, if requested by the City of New Hope, provide the City with access and utility
easements in connection with the Buyer's future development of the Property and as provided for
by New Hope's City Code, regulations and past practices. The Buyer further represents and
warrants that any such easements shall be provided at no cost to the City. The Buyer
representations and warranties contained in this Section 19 shall survive delivery ofthe Deed.
20. Assignment. The Buyer may assign its rights and obligations hereunder only with the
prior written consent of the Seller, which consent may be granted or withheld by the Seller in its
sole discretion.
21. Post-Closing Construction/Revesting of Title. The Buyer agrees and covenants that the
Buyer will construct, or cause to be constructed, on the Property all structures necessary for the
Buyer's Intended Use, with materials and plans to coincide with those approved by the City of
New Hope as part of the governmental approval process cited in Subsection 4(b) above
(collectively, the Minimum Improvements"). This covenant shall survive the delivery of the
Deed. Construction of the Minimum Improvements must be substantially completed by January
31, 2006. Construction will be considered substantially complete when a final certificate of
occupancy has been issued for each building of the Minimum Improvements. Promptly after
9
substantial completion of the Minimum Improvements the Seller will at the request of the Buyer
provide the Buyer with a certificate of completion in form and substance reasonably acceptable
to the Buyer. Said certificate shall be (and it shall be so provided in the Deed and in the
certificate itself) a conclusive determination of satisfaction and termination of the agreements
and covenants of the Buyer (and its successors and assigns) to construct the Minimum
Improvements and satisfaction of the date(s) for completion thereof. If the Seller shall refuse or
fail to provide a certificate as required by this Section 21 then the Seller must, within thirty (30)
days after written request by the Buyer, provide the Buyer with a written statement outlining in
reasonably adequate detail the reasons that the Seller is of the opinion that the Buyer has failed to
complete the Minimum Improvements in accordance with the provisions in this Agreement, or
the reasons the Seller is of the opinion that the Buyer is otherwise in default. A writing required
of the Seller under this Section 21 must additionally outline the measures or acts that will be
necessary, in the opinion of the Seller, for the Buyer to take or perform in order to obtain a
certificate of completion. The Buyer agrees and acknowledges that in the event of an uncured
default with respect to the Buyer's obligations to construct the Minimum Improvements the
Seller may, pursuant to the terms outlined in Exhibit C attached hereto and made a part hereof), .
declare that all rights and interests in and to the Property (including an improvements or rights
subsequently added to the Property after closing of the transaction contemplated by this
Agreement) shall revert to the Seller.
22. Miscellaneous. This Agreement shall be governed by the laws of the State of Minnesota.
No amendment of this Agreement shall be valid or binding unless executed by authorized
representatives of both the Seller and the Buyer. The headings and captions of this Agreement
are for the convenience of the parties only and shall not be looked to in the interpretation or
enforcement of this Agreement. The Seller and the Buyer acknowledge and agree that each has
had opportunity to participate in the drafting of this Agreement and accordingly acknowledge and
agree that this Agreement as a whole and each of is clauses are not to be interpreted in favor of or
against either party. This Agreement may be signed in counterpart, with each copy of the
Agreement binding upon the signing party at the time of signing and together which shall
constitute a single document.
[The Remainder of this Page is intentionally Left Blank; Signature Page(s) Follow]
10
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the latest
date indicated below ("Effective Date").
SELLER:
BUYER:
ECONOMIC DEVELOPMENT AUTHORITY FREY DEVELOPMENT, INC.
IN AND FOR THE CITY OF NEW HOPE
By:
By:
Its:
Martin E. Opem Sr.
Its: President
Dated:
,2005.
Dated:
,2005.
MANTEY LAND DEVELOPMENT, INC.
By:
By:
Daniel J. Donahue
Its: Executive Director
Its:
Dated:
,2005.
Dated:
,2005.
P:\Attomey\Cmk\Clients\CNH\99-11293\99-11293-006-Purchase Agreement D1 ,doc
11
EXHIBIT A
Leeal Descriution
That part of Lot 5, Auditor's Subdivision Number 324, Hennepin County, Minnesota
described as follows:
Commencing at the point of intersection of the North line of Rockford Road and the East
line of said Lot 5; thence North along said East line a distance of350 feet; thence West
parallel with the North line of Rockford Road a distance of 320.4 feet more or less, to a
point 48.95 feet East of the West line of said Lot 5, as measured at right angles thereto
thence South parallel with the West line of said Lot 5 a distance of 350.0 feet to the North
line of Rockford Road; thence Easterly along the North line of Rockford Road a distance
of 320.4 feet, more or less to the point of beginning.
12
EXHIBIT B
November 24, 2003 Declaration of Environmental Restrictive Covenants
(Attached)
.
13
06/23/2005 09:54 FlL~ 763 493 5193
JENSEN & SO.\1JRALL. P_A_ 141002
-mANGnRe:NTERED
f:f~JIJ~ePlN e.oLJNTV TAXP,\'(ER SERVICES
Illn ll~ 1llllfI1Idmml!
,-.
.:.
llJ '. l
,.
FES 23 2004
~-EPI~TV .
BY. _~_ DEPUTY
t/ '- .
\)U?\iC~\e
f'iliog
cerli1ice.\e
Doc No 8298194 02123/200402:41 PM
Certified filed and or recorded on above date:
Office of the County Recorder
Hennepin County, Minnesota
Michael H_ Cunniff, County Recorder
Deputy 5 TranslD 6572
Fees
$17.00 DOC
$5.00 SUR
$1.00 COPY
$23.00 Total
DECLARATION
t OF
ENVIRONMENTAL RESTRICTIVE COVENANTS
THIS DECLARATION is made this M day of .NOl/. ,2003, by the Economic
Development Authority of the City of New Hope, a Minnesota municipal corporation.
DEFINITIONS
For the purpose of this Declaration, the following terms shall have the following
meanings:
1. Buildinlr. "Building" means that building that was formerly present on the
Property and was formerly used by Electronic Industries, Inc. as its place of
business. The Building has since been demolished.
2. Commissioner. "Commissioner" means the Commissioner of the MPCA or the
head of any successor entity. Nothing herein shall be construed to prohibit the
Commissioner from delegating the Commissioner's obligations or duties under
this Declaration to the employees, agents, contractors or subcontractors of the
MPCA.
3. . Covenants. "Covenants" mean all of the agreements, covenants, restrictions and
easements contained in this instrument.
4. Declaration. "Declaration" means this instrument, including the definitions and
recitals contained herein and the Exhibits attached hereto.
5. El "Ef' means Electronic Industries; Inc.
6. Exhibits. "Exhibits" mean the exhibits to this Declaration and are as follows:
a. Exhibit 1: 1/8 Section Map of Project Site
c. Exhibit 2: 1/8 Section Map of Project Site showing Restricted Area
d. Exhibit 3: Table of Contominonts
Page 1 of1?
.06/23/2005 09:54 FAX 763 493 5193
JEXSEN & SONDRALL, P.A.
141003
, ' ,
ii. Address. 7500 42Dd Avenue North, New Hope, MN.
iii. Property Identification Number. 17-1'18-21-22-0006.
b. Parcel 7.
i. Lel!al Description. The West 95 fe,et of the East 195 feet
of the South 350 feet of Lot 5, Auditor's Subdivision No.
324, Hennepin County, Minnesota.
ii. Address. 7516 42nd Avenue North, New Hope, MN.
iii. Property Identification Number. 17-118-21-22-0007.
c. Parcel 8.
i. Lel!al Descrintion. That part of Lot 5, "Auditor's
Subdivision Number 324, Hennepin County, Minnesota"
described as follows: Commencing at a point 01;1 the North
line of Rockford Road distant 195.0 feet Westerly of the
East line of said Lot 5; thence North parallel with the East
line of said Lot 5 a distance of 350.0 feet; thence West
parallel with the North line of Rockford Road a distance of
125.4 feet, more or less, to a point 48.95 feet East of the
West line of said Lot 5, as measured at right angles thereto;
thence South parallel with the West line of said Lot 5 a
distance of 350.0 feet to the North line of Rockford Road;
thence Easterly along the North line of Rockford Road a
distance of 125.4 feet, more or. less to the point of
beginning.
ii. Address. 7528 42nd Avenue North, New Hope, MN.
iIi. Pronertv Identification Number. 17-118-21-22-0008.
It is specifically noted that the entire Restricted Area is contained within the
Property. Therefore, all references to the Property include the Restricted Area.
11. Restricted Area. "Restricted Area" means that part of the Property legally
described as follows:
That part of Lot 5, "Auditor's Subdivision Number 324, Hennepin
County, Minnesota" described as follows: Commencing at the point of
intersection of the North line of Rockford Road and the East line of said
Lot 5; thence North along said East line a distance of 250 feet; thence
Page 3 of 17
12l1:znoQ3&l11:16AM
06/23/2005 09:54 FAX 763 493 5193
JENSEN & SONDRALL. P.A.
I4J 004
, .
'. <
.'
"
installation of monitoring wells, a soil vapor extraction system, an air sparge
system, and a groundwater extraction and treatment system, including the
following:
1. The groundwater extraction system was instaUed in 1987.
Z. The soil vapor extraction system was installed in 1992.
3. The air sparge system was installed in 1994.
These efforts produced the following information:
4. Observed TeE levels have ranged from 5 ppm to 290.000 ppm.
5. Monitoring wells downgradient show ranges of near zero to 41 ppm.
6. An estimated total of 7,000 pounds of TCE has been removed to date
through the combination of these remediation systems.
H. Lower Aauifer Investil!ation. In 1998, the MPCA required that the aquifer
beneath the clay layer be investigated. Subsurface drilling and sampling of this
aquifer was performed in 1998. Lower aquifer monitoring wells were also
installed in 1998. Initial results from this sampling showed TCE concentrations
up to 124,000 ugll. This data suggested that the TCE accumulating on the top of
the clay layer had migrated through the clay layer into the lower aquifer.
I. Amounts of Contaminates Present. TCE, tetrachloroethylene (PCE),
dichloroethylene (DCE), trans-DCE, cis-DCE, vinyl chloride, toluene, and
methylene chloride are all historically documented to be present on the Property,
in the amounts shown on the Exhibit 3 tables.
J. Location of Contaminates Present. Residual contamination, primarily TCE
exist in subsurface soil as well as groundwater in both the ''perched'' water table
aquifer and the lower aquifer.
K. Reports. Many investigative reports have been completed since 1983, the reSults
of which are summarized in the Resource Conservation and Recovery Act Facility
Investigation and Corrective Measures Study (February 2001 and revised January,
2002), Results from May 2001 Push Probe Investigation of the Clay (June 2001),
Remediation Alternatives Report (August 2001), and the Corrective Measures
Implementation Work Plan (October, 2001) prepared by Frontline Environmental,
LLC, an environmental consulting firm currently located at 17450 Juneberry
Court, Lakeville, Minnesota, 55044. The location of near surface contaminants at
the Property is shown in Figure 1 of the Corrective Measures Implementation
Work Plan.
L. City's Al!reement with the MPCA. The Economic Development Authority of
the City of New Hope has agreed with the MPCA to place the following
restrictive Covenants on the Property.
Page 5 of 17
"06/23/2005 09: 54 FAX 763 493 5193
JENSEN & SONDRALL, P"A"
I4J 005
'.
.'
e. Permanent facilities (e.g. buildings, parking surfaces, etc.) shall be
designed to minimize infiltration of precipitation runoff (rainwater, snow
melt) by routing all such precipitation runoff to storm sewers that carry the
runoff off. site. This shall be done to minimize recharge of subsurface
ground water so as to prevent mobilization of existing subsurface
contaminants.
f. New monitoring wells installed in areas of vehicle or pedestrian traffic
shall be constructed as flush-mount monitoring wells.
2. Use Restrictions for the Restricted Area. In addition to the Covenants
restricting the use of the entire Property, the Economic Development Authority of
the City of New Hope hereby imposes the following Covenant on the Restricted
Area:
a. Prior to the commencement of any subgrade. construction activities or
other disturbances to subsurface soil in the Restricted Area (e.g. utility
installation, excavation, grading cuts, soil corrections, borings, drilling,
etc.), a soil contamination monitoring plan must be prepared and
submitted to and approved by MPCA and the City of New Hope. The soil
contamination monitoring plan must desc<ribe:
i. The methods to be used and actions to taken to monitor the
disturbance and/or removal of contaminated soil.
ii. Plans for proper containment and disposal of any contaminated soil
removed as part of the construction activities.
ill. Schedule for submitting a final report to the MPCA describing
volume of soil removed, how it was disposed, and associated
analytical data.
3. Commissioner ADDroval. Any action prohibited by the Covenants shall not
occur without the prior approval of the Commissioner.
a. Requests for the Commissioner's approval must be made in writing to the
Commissioner.
b. The Commissioner shall have 60 days after the receipt of a request to mail
a response thereto.
c. The Commissioner's response shall be in writing and shall approve or
disapprove the request or require additional information be provided.
d. A lack of response from the Commissioner shall not constitute approval
by default or authorization to proceed with the requested activity.
Page 7 Qf17
06/23/2005 09:55 FAX 763 493 5193
JENSEN & SONDRALL, P.A.
141006
.
6. Reservation. Nothing contained in this Declaration shall in any way prohibit,
restrict, or limit the Economic Development Authority of the City of New Hope.
its successors or assigns, from fully conveying, transferring,. occupying, or using
the Property for all purposes not inconsistent with the Covenants.
7. Duration of Declaration, This Declaration and the Covenants herein shall
continue in perpetuity until terminated, modified, released and/or amended with
the written consent of the Commissioner, such consent not to be unreasonably
withheld.
8. Amendment of Declaration bv Owners. This Declaration and the Covenants
herein shall only be modified, altered, supplemented or amended with the written
consent of the Commissioner, such consent not to be unreasonably withheld.
9. Amendment of Declaration bv MPCA. This Declaration and the Covenants
herein may be modified, altered, supplemented or amended by the MPCA upon
the occurrence of the following:
a. The MPCA frods that this Declaration is inadequate to protect the public
health or welfare, or the environment;
b. The MPCA gives notice (written or oral) of such fmding to the then
current Owner; and
c. The MPCA and the Owner enter into a document so modifying, altering,
supplementing or amending this Declaration.
10. Termination of Declaration. This Declaration and the Covenants herein may be
terminated upon the occurrence and satisfaction of all of the following conditions:
a. Soil and ground water sampling is conducted on the Property with prior
written notice to and in accordance with a plan approved by -the MPCA,
such approval not to be unreasonably withheld; and
b. Based on such samples, the MPCA certifies that the soil and ground water
located within the Restricted Area no longer poses an unacceptable risk to
public health and the environment.
11. Recordin2 of Owner Terminations and Amendments. In the event this
Declaration is terminated, modified, altered, supplemented or amended by the
Owner, the Owner shall submit an original document already signed by Owner to
the MPCA with a self addressed return envelope.
a. The MPCA shall have 60 days after the receipt of such document and
envelope to execute and mail the original document back to the Owner.
Page 9 of17
IZlU/2.003at Ill:Sl AM
. 06/23/2005 09: 55 FAX 763 493 5193
JENSEN & SONDRALL. P.A.
I4J 007
.'
14. Disclosures. The Covenants shall be incorporated in full or by reference into all
instruments conveying an interest in and/or right to use the Property (e.g.
easements, mortgages, leases).
GENERAL PROVISIONS
1. Duration. This Declaration shall run with the land in perpetuity and shall inure
to the benefit of and be enforceable by each Owner and the MPCA.
2. Amendments. This Declaration may be amended by the unanimous agreement of
all Owners and the MPCA. Amendments shall not be effective until recorded.
3. Enforcement. Enforcement of these Covenants shall be by any proceeding at law
or in equity against any person(s) or entity(ies) violating or attempting to violate
any of the Covenants. Such proceedings may seek to enforce compliance, to
restrain violations or to recover damages. The Covenants may be enforced by the
MPCA, the City of New Hope or any other Interested Parties.
4. Waiver. Failure to enforce any Covenant shaIJ not be deemed a waiver of the
right to do so thereafter.
5. Severability. Invalidation of anyone Covenant by judgment or court order shall
in no way affect any other provisions, which shall remain in full force and effect.
Whenever possible, each provision of this Declaration will be interpreted in such
a mauner as to be effective and valid under applicable law, but if any provision of
this Declaration is held to be invalid, illegal or unenforceable under any
applicable law or rule in any jurisdiction, such provision will be ineffective only
to the extent of such invalidity, illegality, unenforceability in such jurisdiction,
without invalidating the remainder of this Declaration in such jurisdiction, and
without effecting the enforceability of any such provision hereof in any other
jurisdiction. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Declaration a
provision as similar in terms to such illegal, invalid, or unenforceable provision as
may be possible and be legal, valid and enforceable.
. 6. Mechanic's Lien. Each Owner agrees to indemnify and hold harmless all other
Owners from all Mechanic's Liens arising from work for which the Owner is
responsible.
7. Assimment. The Economic Development Authority of the City of New Hope
may assign any and all of its rights, powers, obligations and privileges hereunder
to any other corporation, association, person or entity. Such assignment or
assignments are effective upon the recording of the instrument making the
assignment.
Page 11 of17
06/23/2005 09:55 FAX 763 493 5193
JENSEN & SONDRALL. P.A.
~008
, . '.
CITY OF NEW HOPE
By:
;/~--k~
W. Peter Enck
Its: Mayor
By:
1J1:FiI~
Its: City Manager
STATEOFMINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ~ day of
/LbU. ,2003, by W. Peter Enck and Daniel J. Donahue, the Mayor and City
Manager, respectively, of the City of New Hope, a Minnesota municipal corporation, on
behalf of said municipal corporation.
(Notal)' Public Seal)
VALERIE J. LEONE
NOTARY PUBUC.MINNESOTA
My Commission Expires Jan. 31. 2005
~of~o
Notary Public
Page 13 of14
"06/23/2005 09:55 FAX 763 493 5193
JENSEN & SONDRALL, P.A.
141009
EXHIBIT 1
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
I
,
I
,
,
I
I
I
-~"'.~~....._....._......._.... .... ~
IFP NO 1606 I'"
, :
, "'
, '
, 7528 7516: 7500
I ,
I :
I ,
',... ,., I
:S ~ :
I~ :e :
I 0 0 PART OF LOT 5 I
'Z Nr;; ;.
Iu '
,e I
N S (8) (7)!
I :
I I
I .
I i
I .
N 1 :
rri : :
:t;.. I I
!!l I I
I :
I I
I :
,30 30 n__u"125..\IIn_nR~.~ aT 7-D-S8
:'BIB:Ii DOC NO "'''9268J I I
: '6.01";' L.. ___ __"__1_________
- ~'ir2i.29li:-2S2:_4f - - - - - - - - "t. T i -- - - i.::r --- - - - - - - -3D'US N88.2e~29"E
2~151 III 2LI 9BLJi9 NBB- 29"46"E
_ 1lI N44"'5'SO'FI::l- S(6"3'03'[42N"-:a A' 'E -
S-46-08'56"[ 1:::- U V
.. t4~05. 1/\
- - -. - -- -\""~ . -- - n - --.:::-:;.a~--:_~--
_ _ _ _ _ _ . _ . _ _ _ _ _ _ _ - - -'.... 83 i. _ _ _ _ - - - - - - - - - 296,1 NB8 "
01 .7-U-88 ..,- -Niil 38'01'[
0:::
.
.
.
,
'"
,
.
,
w
Z
...J
.
.
i
i
j
ALLEY oW 2532 PO 333
iii
o
o
Vl
,
,
I
30
,
. "
,
(5)
,
.
.
.
.
',.r
.
(6)
r 7"1-88
o
"
u
o
o
...~~;Ji1' lY
'"
~
_ 8
.....::- 10l.66
_ _ _ 10:; _ _ _ _ _'" '" '" _ ·
208.79-N88 31'16'
.
.
''I
-{HCSAH
.
N€l
U1i:t--
'"
I i~'
209.41 ~BB. 3T'J6"E
_-"'1,._____:41_.
ISO
&3.45
!
..
---
--
'"
~
I
(~Ol
ON
"::
uS:
0.-
0"
oe.~
.. ,
~=
&.
120
PART OF L9T 9
EXHIBIT 1
I" = 100'
Page 15 of17
06/23/2005 09:55 FAX 763 493 5193
JENSEN & SONDRALL. P.A.
I4J 010
. .
,
.,
EXHIBIT 3
Table of Contaminants
. General Total volume of Total volume of Remedy RAP Cleannp Goal
contaminant type identified identified (i.e., residential
(i.e., DRO, VOCs, contaminated soil contaminated soil SRVs, industrial
metals, etc.) (cyds) to be remediated SRVs, etc.)
(cvds)
VOCS 13,000 0 N/A N/A
General contaminant Affected aquifer Appronmate dimensions Remedy
type (i.e., DRO, (i.e., water table, of contaminant plume
VOCs, metals, etc. deeper aquifers) on-site. Specify if the
plume extends off-site.
voes Water table aquifer 3,200 sq. ft. Potassium permanganate
Plume extends off-site injection and ex-situ soil
vapor and groundwater
treatment
VOCs Lower aquifer 48,000 sq. ft. Potassium permanganate
Plume extends off-site injection and ex-situ soil
vapor and groundwater
treatment
Compound Tier I Average Concentration Maximum Concentration
SRV {residential}
TCE 29 mglkg 100 mgikg 1,900 mgikg
DCE 0.6 mglkg <0.5 mgikg 5 mglkg
peE 72 mglkg 5 mglkg 80 mgIkg
Toluene 107 mg/kg <0.3 mg/kg 0.5 mglkg
Compound BRL Average Maximum
Concentration Concentration
TCE 30 ug/L 5,000 ug/L 350,000 ug/L
DCE 6 ug/L 1 ug/L 33 ug/L
PCE 7ug/L <lug/L 5ug/L
Trans-DCE 100 ug/L <1 ug/L 18 ug/L
Cis-DCE 70 ug/L <lug/L 640 ug/L
Vinyl chloride 0.2 ug/L <lug/L 10 ug/L
Methylene Chloride 50 ug/L <2 ug/L 900 ug/L
Toluene 1000 ug/L <lug/L 18 ug/L
Page 17 of17
EXHffiIT C
Buyer and Seller Agreement Regarding Post-closing Default as to Construction of
Minimum Improvements.
Note: Capitalized terms appearing below are to be interpreted as defined in the
Agreement to which this Exhibit is attached.
Post-Closinl! Default as to Construction of Minimum Improvements. In the event
that after conveyance of the Property (or any part thereof) to the Buyer and before receipt
by the Buyer of a certificate of completion from the Seller there is a failure on the part of
the Buyer, subject to "Unavoidable Delays" (as that term is defined below), to carry out
any obligation with respect to construction of the Minimum Improvements (including but
not limited to the nature.ofthe improvements and the date for the completion thereof), or
if the Buyer abandons or substantially suspends construction work then the Seller shall
have the right to re-enter and take possession of the Property unless such failure,
abandonment, or suspension is cured, ended, or remedied within thirty (30) days after
written demand from the Seller with respect to the failure, abandonment or suspension.
Upon such re-entry and re-taking of possession the Seller may terminate (and revest in
the Seller) the estate previously conveyed by the Deed, it being the intent of this
provision together with other provisions of the Agreement to which this Exhibit C is
attached that the conveyance of the Property to the Buyer shall be made upon (and that
the Deed shall contain a condition subsequent to the effect that) the understanding that in
the event of any default on the part of the Buyer with respect to the Minimum
Improvements and failure on the part of the Buyer to remedy, end, or abrogate such
default within the period and in the manner stated herein then the Seller at its sole option
may declare a termination in favor of the Seller ofthe title and additionally of all rights
and interests of the Buyer (and the Buyer's successors or assigns), and that the Seller may
further declare that all ofthe rights and interests in and to the Property (including ai1y
improvements or rights subsequently added to the Property) shall revert to the Seller, but
only if the events stated in this paragraph have not been cured within the time periods
provided above. Notwithstanding anything to the contrary contained in this paragraph,
the Seller shall have no right to reenter or retake title to and possession of a portion of the
Property for which a certificate of completion has been issued.
For the purposes of this Agreement, the term "Unavoidable Delays" means delays
beyond the reasonable control of the Buyer and which are the direct result of strikes or
other labor troubles; damage to the Minimum Improvements due to prolonged adverse
weather, acts of God, fire or other casualty; litigation commenced by third parties which,
by injunction or other similar judicial action, directly results in delays; or acts of any
federal, state or local governmental unit (other than the Seller in exercising its rights
under this Agreement) which directly result in delays. The term "Unavoidable Delays"
shall not inGlude delays in the Buyer's efforts to obtain permits or governmental
approvals necessary to enable construction of the Minimum hnprovements by the dates
such construction is required under this Agreement.
Resale of Reacquired Property: Disposition of Proceeds. Upon the revesting in the
Seller of title to and/or possession of the Property (or any part thereof) as provided above,
the Seller shall apply the Purchase Price as follows:
A. First, to reimburse the Seller for all costs and expenses (including but not limited
to proportionate salaries of personnel) incurred by the Seller in connection with the
recapture, management, and resale of the Property or any part thereof (but less any
income derived by the Seller from the Property or part thereof in connection with such
management); all taxes, assessments, and water and sewer charges with respect to the
Property or part thereof (or, in the event the Property is exempt from taxation or
assessment or such charge during the period of ownership thereof by the Seller, an
amount, equal to such taxes, assessments, or charges [as determined by the Seller's
assessing official] as would have been payable if the Property were not so exempt); any
payments made or necessary to be made to discharge any encumbrances or liens existing
on the Property or any part thereof at the time ofrevesting of title thereto in the Seller or
to discharge or prevent from attaching or being made any subsequent encumbrances or
liens due to obligations, defaults or acts of the Buyer, its successors or assigns; any
expenditures made or obligations incurred with respect to the making or completion of
the Minimum hnprovements or any part thereof on the Property or any part thereof; and
any amounts otherwise owing the Seller by the Buyer or its successors or assigns; and
B. Second, to reimburse the Buyer for the balance of the Purchase Price remaining
after the reimbursements to the Seller specified above. Such reimbursement shall be paid
to the Buyer upon delivery of an executed, recordable warranty deed to the Property (or,
if applicable, part thereof) by the Buyer to the Seller.