062606 EDA
- Offcial File Copy -
CITY OF NEW HOPE
EDA MEETING
City Hall, 4401 Xylon Avenue North
June 26, 2006
EDA Meeting will commence upon
adjournment of the City Council Meeting
President Martin Opem Sr.
Commissioner Mary Gwin-Lenth
Commissioner Andy Roffe
Commissioner Karen Nolte
Commissioner Steve Sommer
1. Call to order
2. Ro I1 call
""'I Approval of regular meeting minutes of 1vlay 8, 2006
.:>.
4. Resolution approving and authorizing signing of the purchase and development
agreement between Q Village, LLC and the Economic Development Authority in and
for the city of NelV Hope;, Minnesota (improvement project no. 740)
j. Adjour11ment
CITY OF NEW HOPE
4401 XYLON A VENUE NORTH
NEV\T HOPE, :MINNESOTA 55428
EDA Minutes May 8, 2006
Regular Meeting City Hall
CALL TO ORDER President Opem called the meeting of the Economic Development Authority
to order at 8:38 p.m.
ROLL CALL Present: Martin Opem Sr., President
Ivfary Gwin-Lenth, Commissioner
Andy Hoffe, Commissioner
Karen Nolte, Commissioner
Steve Sommer, Commissioner
Staff Present: Dan Donahue, City Manager
Kim Green, Community Development Assistant
Guy Johnson, Director of Public Works
Valerie Leone, City Clerk
Kirk McDonald, Director of Community Development
Steve SondralI, City Attorney
Vince VanderTop, Assistant City Engineer
APPROVE MINUTES Motion was made by Commissioner Sommer, seconded by Commissioner
Nolte, to approve the Regular Meeting Minutes of April 24, 2006. All present
voted in favor. 1\.1otion carried.
IMP. PROJECT 795 President Opern introduced for discussiol1 Item 4, Resolution authorizing a
Item 4 tI1ir d amendlnent to tIle interim agreen1ent betvveen t11€ Economic
Development Authority in and for the city of NeV\7 Hope and PariPassu
De\Telopment for the redevelopment of the Bass Lake Road Apartments site,
which increases the budget for fees for Krass Monroe, P.A. (improvement
project no. 795)
President Opem indicated tIle origiIlal agreement capped the financial
consultant expenses at $15,000 to be split 50/50 between the city and the
developer. He stated the amendment V\7ould autllorize an additional S10,OOO
($5,000 for each party).
Commissioners Nolte and Hoffe expressed disappoiI1tmellt that the EDA V\7as
not informed of the financial consultant expenditures on March 27 at vvhich
time tl1e EDA autI10rized the extension of tIle interim agreement vvith
PariPassu. Mr. Kirk McDonald, director of community development, pointed
out that staff vvas not a-vvare that the funds \vere depleted until receipt of the
April invoice. He explained that the initial agreement called for $25,000 for
EDA Meeting
Page 1 May 8, 2006
financial expenses but was reduced to $15,000, and covered six months of
financial consultant expenses. He emphasized the necessity of additional
financial analyses and noted the city is fortunate to have negotiated a 50/50
cost share arrangement vvith the developer.
lv1r. McDonald stated staff is optimistic that the project will be feasible, but the
financial consultant needs to perform additional financial analysis. He stated
Krass Momoe has been working with PariPassu to revise its pro forma to
reduce the gap.
Commissioner Sommer noted that if PariPassu cannot make the project \,vork,
the city "vill o\vn the information and can provide it to other prospective
developers.
President Opem commented that an additional $5,000 does not appear to be
an umeasonable request.
EDA RESOLUTION Commissioner Sommer introduced the following resolution and moved its
06-04 adoption: "RESOLUTION AUTHORIZING A THIRD AMENDMENT TO
Item 4 THE INTERIM AGREEMENT BETWEEN THE ECONOMIC
DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF NEW HOPE
AND P ARIP ASSU DEVELOPMENT FOR THE REDEVELOPMENT OF
THE BASS LAKE ROAD APARTMENTS SITE, WHICH INCREASES THE
BUDGET FOR FEES FOR KRASS MONROE, P.A. (IMPROVEMENT
PROJECT NO. 795)." The motion for the adoption of the foregoing resolution
"vas seconded by Commissioner Nolte, and upon 'Tote being taken thereon,
the following voted in favor thereof: Opem, Gvvin-Lenth, Hoffe, Nolte,
Sommer; and the follovving 'voted against the same: None; Abstained: None;
Absent: None; \",hereupon the resolution was declared duly passed and
adopted, signed by the president which V\ras attested to by the executive
director.
ADJOURNMENT Motion was made by Commissioner Nolte, seconded by Commissioner G'\vin-
Lenth, to adjourn the meeting. All present voted il1 favor. Motion carried.
The New Hope EDA adjourned at 8:44 p.m.
Respectfully submitted,
~~
Valerie Leo11e
City Clerk
EDA Meeting
Page 2 May 8, 2006
EDA
Request for Action
Originating Department Approved for Agenda Agenda Section
Community Development June 26, 2006 Economic Development
Authori
Item No.
By: Kirk McDonald} Director CD
Curtis Jacobsen, CD 5 ecialist 4
Resolution approving and authorizing signillg of the purchase and development agreement betvveen Q
Village, LLC and the Economic Development Authority in and for the City of New Hope, Minnesota.
(Improvement Project No. 740)
Requested Action
Staff requests that the Economic Development Authority review, approve and authorize signillg of the
purchase and development agreement \vith Q Village, LLC, for the EDA oV\rned site knoV\TTI as 42nd and
Quebec.
Policy/Past Practice
The EDA has entered into purchase and development agreements for the sale of EDA ovvned parcels
previously following public hearings as required by law. TIle public hearing for the sale of this piece of
property vvas held on June 13, 2005.
Background
On May 22, 2006, the New Hope City Council gave site plan and preliminary plat approval to the
development proposed for 42nd and Quebec. The cit~y attorney and staff have vvorked on negotiating tl1e
purchase and development agreement based on the original draft of said document from 2005. The document
is in its final form and staff recommends approval.
Funding
No new funding is required from the EOA related to this project. With the completion of this sale the EDA
will receive $510,000.00 for the sale of the land.
Attachment(s)
. Resolution
. Purchase and Devela reement
Motion by '-1~ ~6 Second by
IA -t/
To: ':j)/~ ib o !.o --C) S-
I:\RFA \PLANNING\PLANNING\Q & R - Purchase and Develo ment AQTeement - 42nd and Quebec.doc
RESOLUTION NO. 06-
Resolution approving and authorizing signing of the
purchase and development agreement between
Q Village, LLC, and the
Economic Development Authority in and for the City of New Hope, Minnesota
WHEREAS, the Economic Development Authority of and for the city of New Hope}
Minnesota, desires to redevelop the property commonly knovvn as 42nd and
Quebec; and
WHEREAS, the city has through the Planning Commission and the City Council reviewed the
development plans and the plat for the redevelopment of said site; and
WHEREAS, the plans and plat for the redevelopment of said site have been found to be
acceptable and in compliance with the city's comprehensive plan.
NOW, THEREFORE, BE IT RESOL VED, by the Economic Development Authority of and for the
city of New Hope, Minnesota, to approve and authorize as follows:
1. Approve the purchase and development agreement for the sale of the
property .
2. Authorize the signing of the purchase and development agreement by the
President alld the Executive Director of the Economic Development Authority.
Adopted by the Economic Development Authority of and for the city of Nevv Hope, Minnesota,
this 26th day of June, 2006.
President
Attest:
Executive Director
PURCHASE AND DEVELOPMENT AGREEMENT
This Purchase and Development Agreement ("Agreement") is made by and bet\veen
Quebec Properties, LLC a Minnesota limited liability company ("Buyer") and the
ECONOMIC DEVELOPMENT AUTHORITY IN AAT)) 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 afreal estate located in the City of New Hope and more commonly lmown 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/IOO Dollars ($510,000.00) (the "Purchase Price"), which the Buyer shall pay
as follows: an initial payment of Seven Thousand Dollars ($7,000.00) (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 Three Thousand Dollars
($503,000.00) payable by wire, cashier's check or cash on the "Date of Closing", as that term is
defmed in Section 4 below. The Buyer aclmowledges and agrees that, with the exception of
termination or cancellation of this Agreement due to breach by the Seller, $5,000.00 of the
Earnest Money shall be deemed non-refundable. Seller aclmowledges receipt of the Earnest
Money Payment.
2. Title Conveyed. On the Date of Closing, the Seller shall deliver a Limited Warranty
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
defined 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 lise, 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 the following:
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: T'hat 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,
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as measured at right angles thereto thence South parallel with the \Vest
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."
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 approximately 17,400 square foot office and service retail building on the
east half of the Property and an approximately 11,500 square foot retail building
on the west half of the Property, together with all necessary site improvements
upon the Property (collectively, the "Improvements"). For the purposes of this
Agreement the Buyer may sell or lease units or spaces within either building. The
Buyer shall provide any necessary common interest community or leasehold
management documents required to meet all required regulatory arid
governmental approvals. 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
Improvements. Notwithstanding any language in this Agreement to the contrary,
Seller's obligations under this Section 3(b) shall not be construed to limit in any
way the reasonable exercise of the discretion of the City of New Hope in
considering any submittal or application relating to development of the Property.
c) The Seller's warranties and representations contained in this Subsection 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 (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 subj ect to any assessment or valuation agreement that is not
listed as one of the Permitted Exceptions, as defined in Section 4 below, 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 without inquiry there are no wells or septic
systems on the Property, except for such existing environmental monitoring wells
installed and maintained by Seller.
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h) Seller represents that it has the requisite power and authority to enter into and
perform this Agreement and those Seller's Closing Documents signed by it; such
documents are not in violation of any judgment, order or decree of any Court or
arbitrator to which Seller is a party and such documents are and will be valid and
binding obligations of Seller, and are enforceable in accordance with their terms.
i) Seller is not a "foreign person," "foreign partnership," "foreign trust" or "foreign
estate" as those terms are defined in Section 1445 of the Internal Revenue Code.
j) Except as previously disclosed to the Buyer, the Seller has not received notice of
any action, litigation, investigation, condemnation or proceedings of any kind
pending or threatened against Seller or any portion of the Property.
k) To the best knowledge of Seller without inquiry, no above ground or underground
tanks are located in or about 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.. YVherever herein a representation is made "to the best knowledge of Seller," such
representation is limited to the actual knowledge of the President and/or Executive Director of
Seller.
NOTWITHSTAAllING THE FOREGOING REPRESENTATIONS BY THE SELLER,
THE BUYER HEREBY ACKNOWLEDGES THAT THE BUYER IS PURCHASING
THE PROPERTY IN "AS IS" CONDITION.
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 August 14 ,
2006:
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, subj ect to the following title
. matters (collectively, the "Permitted Exceptions"):
(i) any lien afreal estate taxes not yet due and payable in 2006;
(ii) rights-of-way for drainage ditches, drain tiles, feeders, laterals and
underground pipes, if any;
(iii) all dedicated rights-ofway;
(iv) the Environmental Restrictive Covenants; and
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(v) . all other easements, restrictions, covenants and agreements which are
depicted by the public records, so long as the Buyer's intended use of the
Property is not materially impaired by such matters of record as
determined by the Buyer in Buyer's reasonable discretion. The Buyer
agrees and aclmowledges that for the purposes of this Agreement the
Environmental Restrictive Covenants shall not be considered to
"materially impair" the Buyer's intended use of the Property.
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 of the Property, 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, which easements shall additionally provide for shared access and parking for
all owners and tenants of the Property.
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 August 14, 2006 or the date of closing, whichever occurs sooner, 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 $2,000.00 of 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 August 14, 2006, or the date of closing, whichever occurs
sooner, but ifno notice of 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 aclmowledges 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 of the Property.
5. Survey and Plat. 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. The Buyer
agrees that the Survey shall be used for preparation of the final plat of the Property, and agrees to
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pay all costs related to platting the Property. The Seller agrees, however, to assist with final
platting activities as needed. The obligations of the Buyer and Seller regarding platting shall
survive the Closing and the delivery of the Deed.
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 subject to Seller's
approval, the approval of the Minnesota Pollution Control Agency and, if requested by the Seller,
a written access agreement which will not materially interfere with the Buyer's testing and
inspection of the Property. The Seller agrees not to unreasonably withhold its approval for Buyer
to have access to the Property. 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 indemnification 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 the 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 fifteen (15) 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 fifteen (15) 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. lfthe 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 unable to remove an exception to title, the Buyer may elect by notice to
the Seller to either:
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(i) terminate this Agreement, whereupon $2,000.00 of 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 cont~ued 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. 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 August14, 2006 (the
''Date of Closing" or "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 formes) stating that possession of the
Property is being delivered free of any mechanic's or statutory liens in
connection with Y"vork 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
( iii) 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;
(iv) easement or easement agreements as outlined in Section 4( d) above;
(v) an Assignment of the Environmental Restrictive Covenants; and
(vi) A "bring down certificate" in a form substantially similar to that attached
to this Agreement as Exhibit B.
d) The Buyer shall deliver at closing the following executed and acknowledged
documents:
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(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.
9. PaymentslProrations. 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 the owner policy or lender policy of title
insurance (if any), sales tax (if any) resulting from the Closing, and the 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.
10. 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.
11. Notices. All notices required hereunder shall be in writing and shall be deemed to have
been duly given and received (a) hvo (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
notice pUl.}Joses by written notice to the other party in the manner aforesaid. The addresses of the
parties are as follows:
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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: Steven Sondrall, New Hope City Attorney
Jensen & Sandrall, P .A.
8525 Edinbrook Crossing, Suite 201
Brooklyn Park, MN 55443
Facsimile No.: 763-493-5193
BUYER: Brad Nordgaard
Quebec Properties, LLC
1915 Plaza Drive, Suite 201
Eagan, MN 55122
Facsimile No.: (651) 289-5531
with copy to: Richard A. Glassman
Glassman Law Firm
701 Fourth Ave. S., Suite 500
Minneapolis, MN 55415
Facsimile No.: 763-544-6427
12. Broker. The Buyer represents and warrants that it will pay all brokerage charges incurred
in connection with this transaction as a result of activities authorized by the Buyer, with all such
charges that have been i~voiced as of the Date of Closing to be paid at Closing. In addition,
Buyer will pay at Closing a special one-time consulting fee of $30,000.00 to the consultant(s)
named by the Seller as performing prior retail analyses and tenant marketing. The fees and
commissions required by this Section 12 shall be paid at the Closing, and not sooner. T'he Buyer
obligations recited in this Section 12 shall survive the Closing or the cancellation or other
termination of this Agreement. Buyer represents that the principal of Buyer is a licensed real
estate broker.
13. 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 Earnest 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
or terminate the Agreement and receive the Earnest Money paid to the Escrow Agent.
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14. MPCA VIC Application and Letter. The Seller shall apply for and obtain written
assurance from the 1v1PCA 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 ("1v1PCA") Voluntary Investigation and Cleanup ("VIe") pro gram.
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
defined below). The Seller's failure to provide a "No Association" assurance letter in accordance
with the provisions of this Section 14 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.
15. Required Information. The Buyer is required to provide the Seller, consistent with
Section 14 above, with the following information at the Buyer's sole expense so that the Seller
can complete the VIe application (the "Required Information"):
a) Site plan and associated text describing the nature of business activities
anticipated after redevelopment, including activities from which Buyer wishes to
obtain 1v1PCA "No Association" letter(s);
b) Grading plan;
c) Geotechnical drilling and/or soil testing plan;
d) Subsurface utilities plan;
e) Monitoring and Maintenance Plan:
f) Restoration Plan;
g) Vapor collection system design drawings;
h) Construction time line; and
i) Any other information required for the completion of the VIe application that the
Buyer otherwise needs to prepare in connection with its development of the
Property.
The Buyer's failure to prov~ide the Required Information in accordance with the provisions of this
Agreement shall be grounds for the Seller to terminate this Agreement. In the event of such
termination the Seller shall be allowed to retain the Eamest Money and neither party shall have
9
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.
Prior to initiating any earth-moving activities, Buyer shall provide Seller a copy of the 1vfPCA-
required Storm Water Pollution Prevention Plan (SWPPP) for City review and approval. Buyer
shall be responsible for compliance with all federal, state and local regulations regarding
construction storm water, including obtaining a 1vfPCA Construction Storm Water permit.
All on-site work performed by Buyer or its employees, agents or contractors shall be performed
in accordance with 29 CFR 1910.120. Buyer shall be responsible for all site safety programs for
Buyer or its employees, agents or contractors.
16. Environmental Monitoring During Construction. The parties aclmowledge that an-
site monitoring of certain construction activities by an environmental professional designated by
Seller (the "EP") will be required after closing. Seller shall be responsible for the cost o-f the EP.
Both parties agree, consistent with the requirements of this Agreement, to provide and pay for
their own field environmental technician (the FET") prior to the start of earth-moving activities
at the site. Both FET's must be on-site during:
a) Grading activities near the Restricted Area (as defined in the Environmental
Restrictive Covenants);
b) Subsurface excavation of utilities;
c) Dewatering of excavated areas due to the presence of subsurface water or as a
result of unusual rainfalls during construction that inundate the area;
d) Installation and startup of vapor collection system; and
e) Geotechnical drilling and/or soil testing activities.
Both FET~s will monitor excavated soils and accumulated waters for the presence of
contaminants. If contaminated soils are detected, and the Buyer's FET determines that the soils
cannot reasonably be reused within the excavated area, the contaminated soil will be stockpiled
by the Buyer separately from clean soils, and the contaminated soils will be removed from the
Property for disposal at a facility agreeable to the Seller's EP. If Buyer's FEr determines
accumulated waters are contaminated, the Buyer will arrange adequate means and methods of
cleanup or disposal, agreeable to the Seller's EP, which may include discharge of such waters
into Seller's storm water or sanitary sewer systems. At the conclusion of on-site monitoring
activities, the Seller's FET will provide a letter report to both the Seller and the Buyer
summarizing the Seller FET's activities and observations. The Buyer aclmowledges and agrees it
has sole responsibility for all decisions relating to the reuse or disposal of contaminated soils and
water at the Property in compliance with the 1vfPCA's restrictive covenants and all other MPCA
regulations. Seller's obligations under this Section shall be limited to monitoring and reporting as
referenced above. Both parties' obligations under this Section 16 shall survive delivery of the
Deed.
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17. Environmental Monitoring Costs and Responsibilities. The Buyer shall be
responsible for providing the Seller with reasonable notice of the activities outlined in Section 16
so that the Seller will be able to provide an appropriate FET. Buyer shall be responsible for all
costs associated with the stockpiling, remediation, removal, and/or eventual off-site disposal of
contaminated soils and waters at the Property in compliance with the 1YIPCA's restrictive
covenants and all other :MPCA regulations. The Buyer's obligations under this Section 17 shall
survive delivery of the Deed.
18. Permanent Environmental Monitoring and Maintenance. Any permanent structures
erected at the Property that will be occupied by workers of any kind must have a subsurface
vapor collection system designed and installed beneath the structure to collect potential organic
vapors and prevent such vapors from accumulating in the structure. The vapor collection systems
must be "active" vapor collection systems (i.e. electrical fans will continuously draw air from the
collection system and discharge the air, through roof vents). A vapor collection system
implementation work plan shall be developed by the Buyer in conjunction with the EP, and then
reviewed and approved by the :MPCA prior to installation of the system. The work plan shall
include a detailed system design, and a monitoring and maintenance plan for the system. Buyer
shall be required to monitor and maintain the system on an ongoing basis and shall be designated
as the party responsible for said obligations in the monitoring and maintenance plan. All
monitoring wells within the Property shall be continuously maintained by Seller before
construction activities and Buyer shall have no responsibility or costs associated with such
permanent monitoring well systems other than damage to, relocation of or abandonment of
monitoring wells during and after construction activities. However, Seller agrees to provide
Buyer with any of Seller's unused grant money from its Hennepin County Environmental
Response Fund (EFP) grant for qualifying expenses of Buyer relating to well abandonment
and/or relocation. The Buyer and Seller obligations under this Section 18 shall survi"ve delivery
of the Deed and shall be included in 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 of the 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
Improvements, 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 3(b) above. This
covenant shall survive the delivery of the Deed. Construction of the Improvements must be
substantially completed within 180 days after construction is commenced on either of the
buildings that comprise the Improvements. Buyer shall commence construction on each building
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and the entire site improvements when 50% of either building is either pre-leased or pre-sold, but
in no case later than , 20_, If the Improvements are constructed in two phases, the
covenant contained herein shall apply separately to each building. Construction will be
considered substantially complete when a final certificate of completion has been issued for each
building of the Improvements. Promptly after substantial completion of the 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 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 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 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 to 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 oftrus 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.
23. Restaurant within Improvements. Notwithstanding anything herein to the contrary,
Buyer agrees to use reasonable commercial effort~ to locate a casual dining restaurant, reasonably
acceptable to the New Hope City Council in its sole discretion, to be contained within 2,000 or
more square feet of either building for a period of one (1) year after the closing. At anytime
thereafter, the Buyer shall not be obligated to place a restaurant in the Property. In the event
Buyer cannot locate an acceptable restaurant at the Property, Buyer shall pay to the Seller an
additional $15,000.00 for purchase of the Property. For purposes of this section, locate shall
mean Buyer has entered into a written lease with a restaurant for a period exceeding one year or
sold a portion of the Property pursuant to a purchase agreement entered into within one year to a
restaurant. Buyer agrees to provide Seller with a copy of the lease or purchase agreement. Buyer
agrees to provide Seller with an irrevocable one year letter of credit or some other form of
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financial guarantee reasonably acceptable to Seller on or before the date of closing in support of
its agreement to locate an acceptable restaurant at the property in compliance with this section.
This section shall also survive the delivery of the deed.
24. Whenever a period of time is herein provided for either party to do or perform any act or
thing, that party shall not be liable or responsible for any delays due to strikes, riots, acts of God,
shortages of labor or materials, national emergency, acts of a public enemy, governmental
restrictions, laws or regulations, or any other cause or causes, whether similar or dissimilar to
those enumerated, beyond its reasonable control and the time to do or perform such act or thing
shall be extended for the period of delay.
[The Remainder of this Page is intentionally Left Blank; Signature Page(s) Follo,v]
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IN WITl\TESS WHEREOF, the parties have executed this Agreement effective as of the latest
date indicated below ("Effective Date").
SELLER: BUYER:
ECON011IC DEVELOPMENT AUTHORITY
ill AL~D FOR THE CITY OF NEW HOPE
Quebec Properties, LLC
By:
Martin E. Opem Sr. By:
Its: President Its:
Dated: , 2006. Dated: , 2006.
By:
Daniel J. Donahue
Its: Executive Director
Dated: , 2006.
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EXHIBIT A
Lee-al Description
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 of320.4 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.
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EXHIBIT B
Insert form of Bring Dovro. Certificate
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EXffiBIT C
[insert EDA's standard right of reversion language]
P:\Attomey\SAS\l Client Files\2 City of New Hope\99-20509( 42nd and Quebec )\Purchase Agreement D5-
clean. doc
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