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COUNCIL Request for Action Originating Department Approved for Agenda Agenda Section Community Development November 14, 2011 Development and Plannin Item No. By: Curtis Jacobsen, Director of CD By: Kirk McDonald, City Manager 8.1 Motion authorizing city staff with the assistance of the city attorney to prepare a purchase agreement for 4300 Xylon Avenue North (K -Mart property), project no. 893 Requested Action Staff requests the Council approve a motion authorizing staff to prepare a purchase agreement for the K -Mart property with the assistance of the city attorney's office. Policy/Past Practice It is a past practice of the staff to get Council approval/authorization prior to entering into a purchase agreement for the acquisition of any property. Background On September 26, after the Council officially received the appraisal of the 4300 Xylon Avenue property, staff was authorized staff to begin negotiating with the ownership for the possible acquisition of the property. Staff and a small sub -committee of the Council have met with Mr. Jim Goldsmith of Gator Investments. Staff has had a number of telephone conversations related to the possible acquisition of the parcel with Mr. Goldsmith. On November 7, staff and Mr. Goldsmith reached tentative agreement on a $4.5 million purchase price. Gator has two requirements tied to the current offer, first that this transaction be completed under Section 1033 of IRS Code and that the transaction be completed by the end of the year. Upon receipt of a purchase agreement from the city; Goldsmith will present the proposal to his board. As the Council is aware this tentative purchase price is $400,000 less than the appraised value of the land. The Council should be aware that there may be the need for a special Council meeting in connection with this purchase closing by the end of the year. Funding Funding for this purchase is available through existing TIF and/or EDA funds. Motion by � Second by To: h 61 1:1R'A1C01VLM DEVIDevelo menti Q - Purdllase agreement for K -Mart 11-14-11.doc Request for Action November I4, 2011 Page 2 Recommendation Staff recommends the Council approve a motion authorizing staff to draft a purchase agreement and transmit the offer to Gator Investments. EDA Request for Action Originating Department Approved for Agenda Agenda Section Community Development March 12, 2012 EDA Item No. By: Curtis Jacobsen, Director of CD By: Kirk McDonald, City Manager 4 Resolution authorizing entering into a purchase agreement with Gator New Hope, LLC, and Gator New Hope Two, LLC, for the purchase of the Kmart property at 4300 Xylon Avenue North and the Wells Fargo Bank property at 4200 Xylon Avenue North. (Project No. 893) Requested Action Staff requests the EDA discuss and advise staff on the acceptability of the Purchase Agreement presented at this meeting and should the agreement be found acceptable authorize the EDA President and Executive Director to execute the agreement. Policy/Past Practice It is the practice of the staff to obtain EDA approval for the purchase of a parcel of property for the purposes of redevelopment in the city. Background At the Work Session on February 21 the acquisition of the Kmart property was discussed and the Council provided direction to the staff for the acceptability of language in the proposed purchase agreement. There were seven items of concern. Since that time staff and the city attorney have been working with the owners of the Kmart property and have resolved 6 of the 7 items. The final item revolves around requiring Gator to provide a $90,000 escrow, to be held for one year, to protect the city from any potential relocation claims from the sub -tenant in the property, Integrity Automotive. Gator through Mr. Goldsmith have advised staff that they are unwilling to provide an escrow for this purpose and reminded staff that this was not a part of the discussions for the first six months nor part of the original agreement to sell the property to the city. Goldsmith does not think it will be possible to obtain anything other than a standard estoppel from Kmart which would not address any waivers of relocation expenses. Gator's preference is to close the deal on July 2 and walls away. There is some inherent risk in all major acquisitions of this e. In an effort to minimize the Motion by Second by L\RPA\COMM DEv\Develo ment\Q&R-Kmart PA3-12-2012.doc Request for Action March 12, 2012 Page 2 risk the non-refundable escrow has been removed, provisions have been made for inspection of the property, the escrow amount has been reduced, there will be no additional escrow for the Wells Fargo parcel, provision of an estoppel certificate (although probably not with waivers included) and closing on July 2, 2012. The EDA can decide to walk away from this property up to the closing date. The city attorney has provided a more detailed review memo of this purchase agreement with explanations of 16 points in the purchase agreement. Funding The EDA through TIF and authority funds has adequate resources to complete this purchase. Recommendation Although all risks associated with a purchase like this can never be completely eliminated, staff recommends the EDA move ahead with the purchase at this time with the approval of the attached resolution. Attachments • Resolution City Attorney memo Draft Purchase Agreement JENSEN SONDRALL & PERSELL>T, P.A. Attorneys At Law 8525 EDINBROOK CROSSING, STE. 201 BROOKLYN PARK, MINNESOTA 55443-1968 TELEPHONE (763) 424-8811 • TELEFAX (763) 493-5193 e-mail law@jspattorneys.com MEMORANDUM Date: March 8, 2012 To: Curtis Jacobsen / Kirk McDonald i From: Steve Sondrall Re: Revised Purchase Agreement for acquisition of K -Mart Property Our File No.: 99.11358 This memo is in follow up to my February 15, 2012 memo and our recent discussions with Gator New Hope LLC ( Seller). Also attached is our 6th edit of a red -lined version of the purchase agreement for acquisition of the K -Mart property for consideration at the March 12th meeting of the New Hope EDA. As we have discussed, formal approval of the purchase agreement and title to the property must be taken in the name of the New Hope EDA. This memo will summarize the various sections of the Purchase Agreement; however, I wish to highlight the following issues for discussion by EDA: 1. Sale and Purchase of the Property — In Section 1 of the agreement a new entity named Gator New Hope Two, LLC has been added as "Seller" of the Property. Apparently, this is the LLC which purchased the Wells Fargo ATM Parcel and as a result will be conveying same to the EDA per Section 2.c. of the revised agreement. 2. Earnest Money - In Sections 2.a.i. Seller has agreed to reduce and limit the earnest money to $225,000.00 as requested by the EDA. Also, in Section 2.b. the non-refundable earnest money language has been removed, however, the specific provisions requiring earnest money to be refunded are still stated in Section 2.b. as follows: a. Exercise of first refusal right by K -'_Mart (see Section 3.c.), b. Failure of Seller to meet the Lease Conditions (see Section 3.e.). Lease Conditions means the Existing Tenant (K -Mart) and its sub -tenant have vacated the property and K -Mart has provided Seller with a written agreement stating its lease has terminated and neither K -Mart nor its sub -tenant have any remaining possessory right to the property, c. That Purchasers conditions to acquire the property have been met (see Section 7). Basically, this means we are satisfied Seller has marketable title to the K -Mart property and Wells Fargo property and we have received a Reliance Letter from Partner Engineering and Science , Inc. extending to the City and the EDA the right to rely on the Phase I report as if it were initially directed to us. Also reinserted in Section 7 is our right to inspect the property for a vey limited 15 period after the agreement has been signed by both parties (the effective date), d. If the K -Mart building is destroyed prior to closing (see Section 15 — "Risk of Loss" provision), and MEMORANDUM—PAGE I e. If Seller is in default with any of the terms of this agreement (see Section 12.b.). 3. No Waiver for Relocation Benefits — Seller still refuses to approach K -Mart about a waiver of relocation benefits. Seller also refuses to indemnify the EDA for any claim for relocation benefits made against the EDA by K -Mart or its sub -tenant or provide a financial escrow to guarantee against relocation claims. (see Sections 3.d.iii, 7.g. and 9.b.i.9.) As you are aware, we retained Evergreen Land Services Company to review our financial exposure for relocation benefits in the event a successful relocation claim could be made. Evergreen estimated the City's total exposure at $296,500.00 in its January 11, 2012 letter. K -Mart's relocation costs were estimated at $207,000.00 and its sub -tenants costs were estimated at $89,500.00. Both tenants will have 12 months from the date they vacate the property to make a claim. The outside date would be June 30, 2013 or 1 year after the termination date of the K -Mart lease. However, I have been verbally advised by Bob Lindall at Kennedy & Graven, an expert in relocation issues, that K -Mart and its sub -tenant would not be successful in pursuing a relocation claim against the EDA if the following conditions exist; basically K -Mart and its sub -tenant would not be considered a displaced person under the law if these conditions exist: a. The Seller approached the City/EDA about purchasing the property and purchase negotiations were initiated by Seller and not the City/EDA (condition exists per Community Development Director), b. The City/EDA does not have a specific development planned or a developer retained for implementation of a project at the property at the time of the EDA's acquisition of the property (condition exists), and c. K -Mart has vacated the property and terminated its sub -tenant's lease according to its own corporate plan (condition exists). 4. Inspection of Property — This issue relates to Section 4 and Section 7 of the Purchase Agreement. The EDA will purchase this property in an "as is" condition; however, the seller has now agreed to provide the EDA with a 15 day due diligence period to inspect the property after execution of the Purchase Agreement. This means the EDA will have 15 days from the agreement's effective date to inspect and cancel this agreement if we object to the condition of the property. The Seller will not warrant in any manner the condition of the building; basically this is "Caveat Emptor" or "Buyer Beware". If we enter into this agreement under these conditions, our earnest money will be at risk if the agreement is not canceled after the 15 day inspection. period. Seller will still have the remedy of Specific Performance requiring us to purchase the property regardless of the building's condition. 5. Closing and Possession — The closing date of July 2, 2012 has been accepted by the Seller after much discussion per Section 9 of the revised agreement. This will give us assurance that the Lease has been terminated even if Seller will not produce a written agreement from K -Mart stating such. Also, the building should be vacant at such time and if it is not, any party in possession will be a "hold over" tenant with no contractual right to occupy the property. Other Purchase Agreement Provisions 6, Purchase Price Earnest Money and Payment of Purchase Price. The.Purchase Price remains at $4,500,000.00. The revised agreement now incorporates into this transaction the ATM facility previously owned by Wells Fargo Bank, N.A. As a result, the purchase price will increase by $125,000.00 plus out of pocket expenses not exceeding $10,000.00. However, earnest money will not increase. In connection with the ATM facility purchase the revised agreement calls for MEMORANDUM - PAGE 2 an amendment to the definition of "Real Estate" so the title provisions and other terms applicable to the Purchase Agreement will automatically become applicable to the ATM Parcel. 7. Access to Property. Paragraph 4 still addresses the FDA's right to inspect the property and conduct such inspections as necessary to determine its physical condition. As previously stated we have a 15 day period to cancel the agreement if we find physical conditions at the property which would render our purchase undesirable. If we waive this contingency, we will accept the property "as is" and will be responsible for all conditions on the property which could result in unanticipated costs at a later date. 8. Representations, Warranties and Covenants of Seller. The representations and warranties of the Seller are typical including representations regarding hazardous materials, ownership, outstanding claims and unrecorded interests. 9. Representations, Warranties and Covenants of Purchaser. The Purchaser acknowledges that it will accept the Property "as is" but gWy if the environmental reliance letter is obtained and the lease conditions are acceptable to the City. The Seller has now agreed to make these conditions determinable to the City's satisfaction. Seller has agreed to remove the "commercial reasonableness" provision to our acceptance of the Lease Conditions and environmental issues. (see section 7). 10. Conditions to Purchaser's Obligations. The provisions regarding title and examination of title are standard. The Agreement also expands these provisions to the ATM Parcel which has now become part of the real estate and purchased as part of this transaction. Section 3.e. makes it clear that vacation of the property by the Existing Tenant and sub -tenant as well as written verification of the termination of the Lease by the Existing tenant is a condition precedent to our obligation to close on the property. 11. Real Estate Taxes and Special Assessments. Section 10 deals with payment of taxes and assessments. The Agreement provides that the Seller will only pay for special assessments due and payable with real estate taxes in the year of closing. This means the City will pay all levied assessments payable in subsequent tax years. The issue of payment of real estate taxes and special assessments has been a matter of discussion. Basically, the Seller had requested that the City "chase K Mart" for payment of real estate taxes in the event the same are not timely paid on or before May 15, 2012. The agreement attached to this memo does not put this risk on the City and is the standard provision for allocation for real estate tax between Seller and Buyer. 12. Indemnification. The Seller will not indemnify the City from any claim which may be asserted as a result of relocation benefit claims under the Minnesota Uniform Relocation Act. The provision also expands and provides a parallel indemnity to the Seller by the City from events, occurrences or acts arising after Closing. 13. Default, Termination and Remedies. In the event marketable title is not provided and/or the EDA is not satisfied with the termination of the Lease or fails to receive a Reliance Letter from Partner Engineering and Science, Inc., the Agreement may be cancelled and the Earnest Money refunded. If we were to default for any other reason our earnest money would not be refundable. 14. Brokerage. The City will not be obligated for any real estate commission. MEmoRANDum - PAOE 3 15. Risk of Loss. This paragraph addresses the "what if' in the event the property is damaged or destroyed by fire. This language was proposed by Seller's legal counsel. I do not believe this provision is of particular concern to the City in terms of restoration of the building. lb. Miscellaneous. These provisions are relatively standard. Please let me know if you have any other questions or concerns. PAA mcy\SASH Client Filea\2 City oFNew Hope\99-11358 (K Mw)\Memo C koobseo re reriaione to PA dna N moRA13DuM - PAGE 4 CITY OF NEW HOPE EDA RESOLUTION NO. 12 - 01. RESOLUTION APPROVING PURCHASE AGREEMENT FOR 4200 and 4300 XYLON AVENUE NORTH BE IT RESOLVED, by the Economic Development Authority in and for the City of New Hope as follows: WHEREAS, New Hope City staff have been m contact with Gator New Hope, LLC, a Florida limited liability company and Gator New Hope Two, LLC, a Florida limited liability company (collectively "Owners"), Owners of certain real estate known as 4200 Xylon Avenue North and 4300 Xylon Avenue North (collectively the "Property"); and WHEREAS, appraisers hired by the New Hope EDA have valued the Property in excess of $5,000,000.00; and WHEREAS, the Owners are willing to sell the Property to the New Hope EDA for the sum of $4,635,000.00 as set forth in the Purchase Agreement attached hereto as Exhibit A and incorporated herein by reference; and WHEREAS, it is in the best interest of the New Hope EDA to purchase the Property from the Owners for the sum of $4,635,000.00, with other terms and conditions as set forth in the Purchase Agreement, and WHEREAS, the New Hope EDA herby approves the Purchase Agreement. NOW, THEREFORE, BE IT RESOLVED by the Economic Development Authority in and for the City of New Hope as follows: 1. That the above recitals are incorporated herein by reference; 2. That the purchase of the Property by the New Hope EDA from Gator New Hope, LLC, a Florida limited liability company and Gator New Hope Two, LLC, a Florida limited liability company for the sum of $4,635,000.00, with other terms and conditions as set forth in the Purchase Agreement attached hereto as Exhibit A, is approved. 3. The President, Executive Director and New Hope City staff are authorized and directed to sign all appropriate documents, and to take whatever additional actions are necessary or desirable, to complete the purchase of the Property in accordance with said Purchase Agreement. Dated the 12th day of March, 2012. � K.athi hemken, President Attest: Kirk Mcdonald, Executive Director right, title and interest in and to any part or all of the Property after the Closing Date. E That from the effective date of this Agreement through the Closing Date, Seller shall not, directly or indirectly, do or fail to do any act which might reasonably be expected to result in the creation of any lien, charge or encumbrance of any nature whatsoever, on the Property that will not be discharged on or before closing or otherwise effect the marketability of title or Seller's ability to convey such title and deliver possession of the Property. g. 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. h. Except for the right of first refusal set forth in the Lease, Seller has not entered into any other contracts for the sale of the Property. In addition, there are no other rights of first refusal or options to purchase the Property that have originated by or through Seller that might prevent or delay performance of this Agreement. i. Until the Closing Date Seller shall maintain, or cause the Existing Tenant to maintain, the Property in the same manner in which the Property is currently maintained, ordinary wear and tear and damage by fire or other casualty excepted. j. To Seller's knowledge, there are no wells and/or septic systems abandoned or in operation located upon the Property of which Seller has knowledge. As used in this Section 5 and Section 3b., Seller's "knowledge", awareness or words of similar import shall mean but not be limited to the current conscious p , awareness by James Goldsmith of facts, without duty to investigate the matters to which such knowledge or the absence thereof pertains and without the imputation of information in any documents or the knowledge of any other person. 6. Representations. Warranties and Covenants of Purchaser. a. Purchaser acknowledges and agrees that under the terms and conditions of this Agreement, the Purchaser is granted the full opportunity to inspect the Property and surrounding area and records applicable to its operation and condition. Purchaser acknowledges that it will be relying upon its own inspection and judgment and except as expressly provided in this Agreement, Purchaser will not be relying upon any representation of Seller, and shall accept the Property in its "as is condition and with all faults" and without any warranty of any kind, whether express or implied, or obligation to repair or replace, except as expressly provided in this Agreement. If prior to Closing, Purchaser has actual knowledge of any defect or faults in the Property and proceeds to close the transaction despite such knowledge, any representations, warranties, or covenants of Seiler shall be deemed waived by Purchaser and shall not survive Closing. Version 2 CmkTOR 1 N V S S T K S N T S March 14, 2012 VIA FED EX AND E-MAIL Valerie Leone New Hope City Clerk 4401 Xylon Avenue North New Hope, MN 55428 Re: Commercial Building Purchase Agreement dated March 15, 2012 ("Agreement") between the Economic Development Authority in and for the City of New Hope ("Purchaser") and Gator Ncw Hope, LLC and Gator New Hope Two, LLC (together, "Seller") for property located at 4300 Xylon Avenue North, New Hope, Minnesota, 55428 Dear Valerie, Enclosed herewith please find three (3) original Agreements that have been executed by the Seller. At the request Steven Sondrall I am sending the Agreements to you for execution by the Purchaser. Please cause the Purchaser to execute all three (3) Agreements and return one fully executed original to my attention. Please retain a fully executed original and forward the other original to Commercial Partners Title, LLC together with the initial deposit in the amount $225,000.00. Please email to me a pdf copy of the fully executed Agreement on or before Friday, March 16. 19 It is my understanding that the Purchaser has scheduled inspections of the building for March and, therefore, I must receive a copy of the fully executed Agreement prior to the commencement of any such inspections. Should you have any questions with regard the foregoing, please do not hesitate to call. Very truly ours, Peter L. Tunis, General Counsel PLT:cr Enclosure cc: Steven Sondrall, Esq (w/ encl) via email James Goldsmith (w/ encl) via email Reid Lemaster (w/encl) via email Tel: 305.949.9049 Fax: 305.948.6478 1595 N.E. 163rd Street N. Miami Beach, FL 33162 www.gatorinvestments.com Leone Valerie From: Jacobsen Curtis Sent: Thursday, March 15, 2012 8:27 AM To: Jim Goldsmith {jag@gatorinvestments.com) Cc: Leone Valerie Subject: FW: Kmart Jim, The City Clerk, Val Leone, has the documents and will be getting signatures today, I believe. She is copied on this e-mail and will forward a signed copy as soon as she is able. Curtis Jacobsen Director of Community Development From: 'a C(Lciatorinvestments.com [jag@gatorinvestments.comj Sent: Thursday, March 15, 2012 8:08 AM To: Jacobsen Curtis Cc: Peter Tunis Subject: RE: Kmart When can we get a signed contract? [Need it for insurance so when you visit Monday we have no liability. Can I get it today? Email me a copy From: Jacobsen Curtis [mailto:dacobsen(&ci.new-hope.mn.usl Sent., Wednesday, March 14, 2012 11:50 AM To: jag Ociatorinvestments.com Subject: RE: Kmart Roger Axel @ 763-531-5122 Curtis Jacobsen Director of Community Development 763-531-5119 From: Lg@gatorinyestments.com[mailto:jaa@gatorinvestments.com] Sent: Wednesday, March 14, 2012 10:35 AM To: Jacobsen Curtis Subject: RE: Kmart Do you have the inspectors number From: Jacobsen Curtis imailto:cjacobsen@ci.new-hope.mn.us] Sent: Wednesday, March 14, 2012 10:22 AM To: jag Ccbgatorinvestments.com Cc: 'Steven 5ondrall' Subject: Kmart Jim, I would like to send an inspector through the building i1i compliance with Section 4 of the purchase agreement. The inspector will be Mr. Roger Axel, Building Official for the city. Could you arrange with Kmart for access to the entire building and grounds on. March 161h a t 9 a.m. or March 191" at 14 a.m.? Curtis Jacobsen Director of Conunun.i.ty Development 4401 Xylon Ave N New Hope, MN 55428 763-531-5119 bx-- Please consider Cie environment befo-e printing this message Disclaimer: Information in this message or an attachment may be government data and thereby subject to the Minnesota Government Data Practices Act, Minnesota Statutes, chapter 13, may be subject to attorney-client or work product privilege, may be confidential, privileged, proprietary, or otherwise protected, and the unauthorized review, copying, retransmission, or other use or disclosure of the information is strictly prohibited. If you arc not the intended recipient of this message, please immediately notify the sender of Ene transmission error and then promptly delete this message from your computer system. COMMERCIAL BUILDING PURCHASE AGREEMENT This Agreement is matte effective the 15a' day of March, 2012 (the "Ettective Date"), by and between Economic Development Authority in and for the City of New Hope, a public body corporate and political and political subdivision of the State of Minnesota, (hereinafter referred to as "Purchaser") and Gator New Hope, LLC, a Florida limited liability company ("GNH") and Gator New Hope Two, LLC, a Florida limited liability company ("G.NIH2") (GI• N and GNH2 are hereinafter collectively referred to as "Seller"). 1. Sale and Purchase of Property. Purchaser has notified Seller that it intends to acquire Z that certain real property located in the City of New Hope, County of Hennepin, State of Minnesota, having a property address of 4300 Xylon Avenue North, New Hope, Minnesota, 55428 more particularly described on the attached Exhibit A (the "Real Property") by eminent domain proceedings, if necessary. In light of Purchaser's intention and in order to avoid the uncertainty of a taking of the Real Property in litigation, Seller and Purchaser are both willing to enter into an agreement for the purchase and sale of the Real Property as more particularly set forth herein. Seller intends to replace the Real Property during the period and in the manner prescribed by Section 1033 of the Internal Revenue Code of 1986, as amended. Subject to the terms, conditions, representations and warranties set forth herein, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller: a. The Real Property. b. All and singular rights anci appurtenances pertaining to the Real Property, including, but not limited to all right, title and interest of Seller in and to adjacent streets, rights of way, easements, utility agreements, parking and other shared use agreements, and all hereditaments and appurtenances pertaining thereto. C. The building and all other improvements and fixtures located on the Real Property including the component structural, heating, plumbing, electrical, air- conditioning, and roofing elements incorporated into the improvements (excluding trade fixtures and other property of the "Existing Tenant" as defined in Section 3(a) below). d. All assignable warranties and guaranties given to, assigned to, or benefiting Seller and/or the Real Property and its improvements regarding the construction, design, use, operation, management or maintenance, to the extent any exist. e. Unless otherwise stated or otherwise evident to the contrary, the assets listed in this Section 1 above are collectively referred to as the "Property". E Specifically excluded from the sale/purchase pursuant to this Agreement are: Version 2 L Trade fixtures and other personal property of the Existing Tenant. ii. Rights and obligations of Seller under the "Lease", as the term is defined below. 2. Purchase Price; Earnest Money and Payment of Purchase Price. a. The purchase price of the Property (the "Purchase Price") shall be Four Million Five Hundred Thousand and 00/100 Dollars ($4,500,000.00) to be paid as follows. The Purchase Price shall increase pursuant to the provisions of Section 2(c). i. Two Hundred Twenty -Five Thousand and 001100 Dollars ($225,000.00) (the "Earnest Money") paid by certified or cashier's check on the date hereof, which check upon acceptance of this Agreement by Seller shall be deposited with Chicago Title Insurance Company (the "Title Company"), and held and accounted for in accordance with the terms of this Agreement. ii. The remaining balance of the Purchase Price (subject to adjustments as provided in this Agreement) shall be paid by wire transfer on the Closing Date. b. The Earnest Money shall be refunded to Purchaser by the Title Company in the event that this Agreement is terminated by Purchaser (i) pursuant to Section 3.c., (ii) pursuant to Section 3.e., (iii) pursuant to Section 31, (iv) pursuant to Section 7, (v) pursuant to Section 12.b. for a default by Seller of this Agreement and (vi) pursuant to Section 15. C. Seller and Purchaser acknowledge that GNH2 has entered into a contract to purchase the ATM facility owned by Wells Fargo Bank, N.A. that is located at the northeast corner of the Xylon Avenue North and 42nd Avenue North (the "ATM Parcel"). Prior to the Effective Date, GNH2 has completed its acquisition of the ATM Parcel. Seller and Purchaser agree that (i) the ATM Parcel shall be included in the Real Property and shall be sold to Purchaser pursuant to the terms of this Agreement; provided however, the parties shall pro rate the real estate taxes which are payable in the year of Closing, on a per -diem basis using a calendar year calculated from the date the GNH2 acquired title to the ATM Parcel, (ii) the "Real Estate" shall automatically include the ATM Parcel, and (iii) the Purchase Price is hereby increased by the sum of $125,000.00 (the "Additional Purchase Price") plus the out of pocket expenses incurred by Seller in its acquisition, not to exceed $10,000.00 (the "Seller's ATM Costs"). Prior to Closing Seller shall provide Purchaser with a copy of the recorded deed to GNH2 of the ATM Parcel and a copy of its title insurance policy identifying GNH2 as the fee owner of the ATM Parcel; provided however, the cost of the ATM parcel title insurance policy shall be included as part of Seller's ATM costs. Version 2 3. The Lease. a. Seller has disclosed and Purchaser acknowledges that the Property is currently occupied pursuant to that certain "Lease" dated December 8, 1971 by and between New Hope Properties, Inc., a Minnesota corporation and SS Kresge Company, a Michigan corporation now known as K Mart Corporation (the "Existing Tenant"), as the same has been amended (collectively, the "Lease"). b. The Lease granted the Existing Tenant the right to extend the term of the Lease either until June 30, 2017 or until January 31, 2013. Seller represents to Purchaser that Seller has not received a written notice from the Existing Tenant purporting to exercise either such option. Seller further represents to the best of its knowledge the Lease will expire on June 30, 2012 extinguishing the Existing Tenant's, and its sub -tenants, rights of possession. C. Seller has also disclosed and Purchaser acknowledges that the Lease grants the Existing Tenant a right of first refusal to purchase the Property. Promptly following execution of this Agreement by both Seller and Purchaser, Seller shall notify the Existing Tenant of the existence of this Agreement so as to trigger the Existing Tenant's right of first refusal to purchase the Property under the Lease. This Agreement is conditioned upon Seller's acquisition of a waiver by the Existing Tenant, whether in writing or by lapse of time, of the Existing Tenant's right to purchase the Property by reason of this Agreement. In the event the Existing Tenant elects to purchase the Property pursuant to its right of first refusal, then this Agreement shall automatically terminate, and Purchaser shall be entitled to a refund of the Earnest Money. Seller shall promptly notify Purchaser of the action or inaction of the Existing Tenant related to the right of first refusal. d. As used herein, the "Lease Condition" shall be satisfied upon the occurrence of the following events: (i) the vacation of the Property by the Existing Tenant and all of its subtenants, and (ii) the delivery of the Estoppel, as defined below. In no event shall Purchaser agree to accept title to the Property subject to the Lease or any rights of sub -tenants. As used herein, the "Estoppel" shall mean a written statement signed by the Existing Tenant, or a Seller estoppel certificate if the Estoppel from the Existing Tenant cannot be obtained, that in pertinent part: L Confirms that the Lease will expire and the Existing Tenant's and sub- tenant's rights thereunder, including, but not limited to, rights of possession, will terminate no later than June 30, 2012; and fl. Confirms that the Existing Tenant's right of first refusal to purchase the Property was not exercised and such right has terminated and Seller shall provide evidence that Seller complied with the notice requirements of the Lease and the Existing Tenant did not exercise its right of first refusal. Version 2 3 e. In the event Seller is unable to satisfy the Lease Condition by the date set for the Closing Date pursuant to Section 9(a) below, then either party shall have the right to extend the date for satisfying the Lease Condition and the date for Closing for up to thirty (30) days in order for Seller to attempt to satisfy the Lease Condition. In the event Seller is unable to timely satisfy the Lease Condition, Purchaser shall have the option to either proceed to close as otherwise provided herein or terminate this Agreement, and if Purchaser so terminates this Agreement Purchaser shall be entitled to a refund of the Earnest Money. f. In the event this Agreement is terminated pursuant to the terms of this Section 3, the Earnest Money, and all the interest accrued thereon, shall be immediately returned to Purchaser and neither party shall have any further rights or obligations under this Agreement except for the obligations of Purchaser contained in Section 4, below, which shall survive. 4. Access to the Property. Seller authorizes (at Purchaser's sole cost and expense and subject to permission from Existing Tenant), Purchaser and Purchaser's employees, agents and representatives, to conduct such investigations and examinations of the Property as it deems necessary or advisable, and Seller will cooperate fully in such investigation, including but not limited to requesting the Existing Tenant's permission to conduct such investigations and examinations. Such investigation may include, but is not limited to, survey, architectural, structural, electrical, mechanical, soil and drainage, environmental and other investigations. All investigations conducted on the Property shall be performed only upon prior notice to Seller and consistent with the rights of the Existing Tenant under the Lease and at Purchaser's sole cost and expense. Purchaser may conduct and complete such investigations and examinations of the Property as it deems necessary or advisable in its sole discretion. After completion of any such investigations and examinations, Purchaser, or its agents or designees, will promptly and diligently restore the Property to as good a condition as existed immediately prior to any such investigations and examinations. Purchaser agrees to indemnify and hold Seller harmless from all loss, liability, claim and expense (including reasonable attorneys' fees) arising out of the acts or omissions of Purchaser, its employees, agents and representatives, while on the Property or in the performance of the matters described in this Section 4, including claims for payment of fees or reimbursement of expenses, mechanics' liens, damage to persons or property, and third party claims. The provisions of this Section 4 shall survive both any termination of this Agreement and the Closing. 5. Reuresentations, Warranties and Covenants of Seller. Seller represents, warrants and covenants as follows: a. This Agreement is valid and binding upon Seller in accordance with its terms. Seller and the individual executing this Agreement on behalf of Seller have the authority and power to enter into this Agreement and to consummate the transaction contemplated hereby. Version 2 4 b. Seller has not received written notice from asserting state or local authority having jurisdiction over the Property any existing violations of any law, regulation, ordinance or code affecting the Property. C. To Seller's knowledge, except as may be disclosed in any environmental report delivered by Seller to Purchaser, no toxic or hazardous substances or wastes, pollutants or contaminants (including without limitation, urea formaldehyde, the group of organic compounds known as polychlorinated biphenyls, petroleum products including gasoline, fuel oil, crude oil, and various constituents of such products, and any hazardous substance as defined in the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §9601-9657, as amended) have been generated, treated, stored, released or disposed of, or otherwise placed, deposited in or located on the Real Property or in the ground water thereunder, in violation of any Environmental Law. Seiler further warrants, that to Seller's knowledge, except as may be disclosed in any environmental report delivered by Seller to Purchaser, Seller has not received written notice of any activity having been undertaken on the Real Property that would cause or contribute to: i. The Real Property to become a treatment, storage or disposal facility within the meaning of, or otherwise bring the Property within the ambit of, the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.0 §6901 etseta , any similar state law or local ordinance. H. A release or threatened release of toxic or hazardous wastes or substances, pollutants or contaminants, from the Real Property within the meaning of, or otherwise bring the Real Property within the ambit of, CERCLA, or any similar state law or local ordinance. iii. The discharge of pollutants or effluents into any water source or system, the dredging or filling of any waters or the discharge into the air of any emissions, that would require a permit under the Federal Water Pollution Control Act, 33 U.S.C. §1251 et sec or the Clean Air Act, 42 U.S.C. §7401 et sec ., or any similar state law or local ordinance in, under or on the Property that may support a claim or cause of action under RCRA, CERCLA or any other federal, state or local environmental statutes, regulations, ordinances, or other environmental regulatory requirements. d. Seller is not a party to any unrecorded contract or agreement affecting the Property that will be binding upon Purchaser or upon the Property subsequent to Closing without Purchaser's written consent. e. There are no existing claims, actions, suits or other proceedings pending, or to the knowledge of Seller, threatened by any governmental department or agency, or any other corporation, partnership, entity or person whomsoever, which in any manner or to any extent may detrimentally effect the Property or Purchaser's Version 2 right, title and interest in and to any part or all of the Property after the Closing Date. L That from the effective date of this Agreement through the Closing Date, Seller shall not, directly or indirectly, do or fail to do any act which might reasonably be expected to result in the creation of any lien, charge or encumbrance of any nature whatsoever, on the Property that will not be discharged on or before closing or otherwise effect the marketability of title or Seller's ability to convey such title and deliver possession of the Property. g. 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. h. Except for the right of first refusal set forth in the Lease, Seller has not entered into any other contracts for the sale of the Property. In addition, there are no other rights of first refusal or options to purchase the Property that have originated by or through Seller that might prevent or delay performance of this Agreement. i. Until the Closing Date Seller shall maintain, or cause the Existing Tenant to maintain, the Property in the same manner in which the Property is currently maintained, ordinary wear and tear and damage by fire or other casualty excepted. j. To Seller's knowledge, there are no wells and/or septic systems abandoned or in operation located upon the Property of which Seller has knowledge. 6. Rearesentations, Warranties and Covenants of Purchaser. a. Purchaser acknowledges and agrees that under the terms and conditions of this Agreement, the Purchaser is granted the full opportunity to inspect the Property and surrounding area and records applicable to its operation and condition. Purchaser acknowledges that it will be relying upon its own inspection and judgment and except as expressly provided in this Agreement, Purchaser will not be relying upon any representation of Seller, and shall accept the Property in its "as is condition and with all faults" and without any warranty of any kind, whether express or implied, or obligation to repair or replace, except as expressly provided in this Agreement. If prior to Closing, Purchaser has actual knowledge of any defect or faults in the Property and proceeds to close the transaction despite such knowledge, any representations, warranties, or covenants of Seller shall be deemed waived by Purchaser and shall not survive Closing. b. The execution and delivery of this Agreement by Purchaser, and compliance by Purchaser with the terms and provisions of this Agreement, will not conflict with or result in a breach of any judgment, order, decree or ruling to which Purchaser is a party, any injunction of any Court or governmental authority to which Purchaser is subject, or any agreement, contract or commitment which is material Version 2 6 to the financial condition of Purchaser; or require the affirmative consent or approval of any third party. C. This Agreement is valid and binding upon Purchaser in accordance with its terms and the individuals executing this Agreement on behalf of Purchaser have the authority and power to enter into this Agreement and to consummate the transaction contemplated hereby pursuant to a Resolution of Approval duly adopted by the Economic Development Authority in and for the City of New Hope. 7. Conditions to Purchaser's Oblistations. a. In the event the conditions set forth in this Section 7 have not been met to the Purchaser's satisfaction on or before the date specified, or if no date is specified, then on or before the Closing Date, this Agreement shall terminate at the option of the Purchaser and the Earnest Money paid by Purchaser shall be refunded and neither party shall have any further rights or obligations under this Agreement except for the obligations of Purchaser contained in Section 4 of this Agreement, which shall survive. b. Within thirty (30) days after the Effective Date, Purchaser shall obtain, at Purchaser's sole cost, a commitment from Chicago Title Insurance Company through Commercial Partners Title, LLC, ("Title Company"), for an ALTA Owner's Policy of Title Insurance insuring title to the Property in the amount of the Purchase Price (the "Commitment"). The Commitment will commit to insure title to Purchaser's interest in the Property subject only to the Permitted Encumbrances (as defined in Section 7.c. below). The Commitment shall be effective as of a date no earlier than the Effective Date and shall include a copy of each instrument listed as an exception to title or referred to therein. Purchaser shall be allowed ten (10) business days to make any title objections ("Title Objections") thereto, the Title Objections to be made in writing or deemed to have been waived. If any Title Objections to title are made, Seller shall attempt to make the title marketable provided, however, Seller shall have the right, but not the obligation, to cure and remove any or all such Defects prior to Closing. Pending correction of title, the Purchaser at its option shall: (i) postpone the Closing Date for up to 30 days, but upon correction of title or waiver of the specified defects by Purchaser, the Closing shall be held on the later of the Closing Date or ten (10) business days after the Title Objections are cured or waived, or (ii) if Seller elects not to cure any or all of the Title Objections, Seller shall deliver to Purchaser written notice of Seller's election not so to cure such Title Objections, in which event, Purchaser may, at its election, either accept the title subject to the Title Objections and proceed to the Closing according to all the other terms and provisions as otherwise provided in this Agreement, or terminate this Agreement by delivering written notice thereof to Seller, in which event the Earnest Money shall be promptly refunded to Purchaser and neither party shall Version 2 7 have any further rights or obligations under this Agreement except Purchaser's obligations under Section 4 shall survive. C. The following shall be deemed Permitted Encumbrances: i. Reservation of minerals or mineral rights by the State of Minnesota; ii. Building, zoning and subdivision laws and regulations consistent with the current utilization of the Property; iii. The lien of real estate taxes and installments of special assessments which are payable by Purchaser pursuant to the terms of this Agreement; iv. Easements and restrictions that are consistent with the current utilization of the Property; V. Exceptions to title which constitute encumbrances, restrictions or easements which have beery disclosed to Purchaser and accepted by Purchaser in writing; vi. Matters raised in the Commitment to which Purchaser has not made timely objection. d. The Commitment shall be issued to include the ATM Parcel and the provisions of Section 7b. shall be applicable regarding title and objections to title. e. Purchaser determining, in its sole discretion, that the physical condition of the Property and its improvements are acceptable to Purchaser. This determination shall be made by Purchaser within fifteen (15) days following the Effective Date. Prior to the Effective Date, Seller has given written notice directing the Existing Tenant to grant Purchaser access to conduct the inspection authorized by Section 4 of this Agreement. f. The representations of Seller herein contained shall be true in all material respects on the Closing Date with the same effect as though made at such time. g. The Lease Condition has been satisfied. If after a good faith effort Seller is unable to obtain the Estoppel from the Existing Tenant, Purchaser shall accept in lieu of the Estoppel specific coverage (which means no exception shall appear in the Title Policy) under its Title Policy against any claim of right to purchase or possession by the Existing Tenant and any claim of right of possession by any sub -tenant. h. Environmental Reports. Purchaser, at its sole cost, has received a "Reliance Letter", from Partner Engineering and Science, Inc. of its Phase I Environmental Site Assessment dated May 2, 2011 (the "Seller's Phase I") extending to the City of New Hope and the New Hope EDA the right to rely on the Seller's Phase I as if Version 2 initially directed to them; provided, however, in the event Purchaser's own environmental reports or other studies (the "Purchaser's Environmental Reports"), reflect any material differences in Seller's Phase I environmental reports that constitute violations of any existing environmental laws, then either party shall have the right within forty five (45) days of the Effective Date to attempt to resolve the differences in such environmental reports, waive such differences, or terminate this Agreement in which event all Earnest Money shall be reimbursed to Purchaser and neither party shall have any further rights or obligations hereunder except Purchaser's obligations under Section 4 shall survive. B. Conditions to Seller's Obligations. The obligations of Seller to proceed on the Closing Date shall be subject to the satisfaction on or before the Closing Date of the following conditions. a. The representations of Purchaser herein contained shall be true in all material respects on the Closing Date with the same effect as though made as such time. b. Purchaser shall have provided evidence that approval has been given by the Economic Development Authority of New Hope. 9. Closing and Possession. a. Notwithstanding anything stated in this Agreement to the contrary, the consummation of the purchase and sale contemplated hereby shall be held (the "Closing") on July 2, 2012, (the "Closing Date") The parties acknowledge that the Closing Date may be extended pursuant to Section 3e., above. Closing shall occur in the office of the Title Company. Closing shall be completed pursuant to a mutually acceptable escrow agreement with the Title Company. b. At the Closing: i. Subject to Purchaser's performance, Seller shall: 1. Deliver to Purchaser a general warranty deed, fully executed and acknowledged in recordable form conveying to Purchaser marketable fee title to the Real Property pursuant to the provisions of this Agreement and subject only to the Permitted Encumbrances. 2. Deliver an Affidavit by Seller indicating that on the Closing Date there are no outstanding, unsatisfied judgments, tax liens or bankruptcies against or involving Seller or the Property; that there has been no skill, labor or material furnished to the Real Property for which payment has not been made or for which mechanic's liens could be filed; and that to Seller's knowledge there are no other unrecorded interests in the Property, together with whatever Version 2 9 standard owner's affidavit and/or indemnity (ALTA Form) which may be required by the Title Company to issue an Owner's Policy of Title Insurance with the standard exceptions waived. 3. Deliver a Non -foreign Affidavit, properly executed containing such information as is required by IRC Section 1445(B)(2) and its regulations. 4. Provide an appropriate federal income tax reporting form, if any is required. 5. Execute all other documents reasonably necessary to perform this Agreement and to transfer the Property to Purchaser. 6. Pay the state deed tax due for conveyance of the Property. 7. Pay the cost of recording all documents necessary to place record title of the Property in the condition warranted and required of Seller by this Agreement. 8. Execute and deliver a Well Certificate for wells, if any, located upon the Real Property. u. Subject to Seller's performance, Purchaser shall: 1. Deliver to Seller by wire transfer the balance of the Purchase Price, less any adjustments. 2. Accept delivery of possession to the Property, subject to the provisions of Section 3d. C. Proration of all income and operating expense relating to the Property shall be made as of the Closing Date, with Seller responsible for the expenses and entitled to the revenues accrued or applicable to the period prior to the Closing Date and Purchaser shall be responsible for the expense and entitled to the revenues accrued or applicable after the Closing Date. d. If on the Closing Date any of the amounts to be apportioned under Section 9(c). above, cannot be calculated with complete precision because the amount or amounts of one or more items included in such calculation are not then known, such calculation shall be made on the basis of reasonable estimates of Seller and Purchaser of the amount or amounts of the item or items in question, subject to adjustments (by additional payments by Purchaser to Seller or by refunds from Seller to Purchaser) when the amount or amounts of such item or items become known. Promptly after the amount of any such item becomes known to either party, such party shall notify the other thereof and shall include in such notice the amount of any required adjustment. If such adjustment requires an additional Version 2 . 0 payment by Purchaser to Seller, Purchaser shall make such payment to Seller simultaneously with its giving of or within twenty (20) days after its receipt of such notice, as the case may be. If such adjustment requires a refund by Seller to Purchaser, Seller shall make such refund simultaneously with its giving of or within twenty (20) days after its receipt of such notice, as the case may be. 10. Real Estate Taxes and Special Assessments. The Parties shall pay the real estate taxes (which term, as used in this Agreement, shall include service charges assessed against real property on an annual basis pursuant to Minnesota Statutes 429.101) and special assessments as follows: a. On or before the Closing Date, Seller shall pay or cause to be paid by the Existing Tenant the real estate taxes and any penalties and interest thereon, which shall have become due and payable with respect to the Property in all years prior to the year of Closing. b. Purchaser and Seller shall pro rate the real estate taxes which are payable in the year of Closing, on a per -diem basis using a calendar year, to the Date of Closing. Seller shall pay or cause to be paid by the Existing Tenant its pro -rata share no later than the Closing Date. C. Seller shall pay all currently due and payable installments for special assessments levied, pending, approved or deferred against the Property as of the Closing Date. All installments for such special assessments due and payable after the Closing Date shall be assumed and paid by the Purchaser. d. Purchaser shall pay all real estate taxes and, except as otherwise paid in accordance with this Section 10, all special assessments due and payable in the years following the year of Closing. 11. Indemnification. Seller shall indemnify, defend and void Purchaser free and harmless from and against any and all claims, obligations and liability (and attorneys' fees and court costs in connection therewith) arising out of the Property or any portion thereof from any event, occurrence, act, or failure to act prior to Closing. Purchaser shall indemnify, defend and hold Seller free and harmless from and against any and all claims, obligations and liability (and attorneys' fees and court costs in connection therewith) arising out of the Property or any portion thereof from any event, occurrence, act, or failure to act after Closing. 12. Default, Termination and Remedies. a. If title is marketable or is made marketable within the time period and as provided in this Agreement, and Purchaser has removed or waived its contingencies as specified in this Agreement but fails to timely perform its obligations to close as specified herein (a "Purchaser's Event of Default"), Seller may take the following action: Version 2 11 i. Cancel this Agreement as provided by statute and retain all Earnest Money made hereunder as liquidated damages; or ii. Seek specific performance provided action for enforcement is commenced within six (6) months of the date the cause of action arises. b. If Seller is in default under the terms of this Agreement (a "Seller's Event of Default"), Purchaser may elect any of the following as its sole and exclusive right and remedy: i. Proceed to Closing and thereby waive any rights or remedies Purchaser may have at law or in equity. H. Terminate this Agreement by written notice in which case this Agreement shall be null and void, and all Earnest Money paid hereunder shall be returned to Purchaser and neither party shall have any further rights or obligations hereunder except Purchaser's obligations under Section 4 shall survive. W. Seek specific performance within six (6) months after such right of action arises. C. Upon termination of this Agreement for any reason except Seller's default, Purchaser shall assign to Seller all reports, surveys, environmental studies and other third party investigation reports regarding the Property at no cost to Seller. 13. Brokerage. a. Purchaser has not engaged any third -party to act as Purchaser's real estate agent or broker in connection with this transaction, and Purchaser is solely responsible for payment of any commission or fee due to any third party claiming to be an agent or broker on behalf of Purchaser in connection with this transaction. b. Seller shall indemnify and hold harmless Purchaser against and in respect of all claims, losses, liabilities and expenses (including, but not limited to, attorneys' fees and court costs) which Purchaser may incur on account of any claim which may be asserted against Purchaser, whether or not meritorious, by any broker or any other person on the basis of any agreements made or alleged to have been made by or on behalf of Seller. C. Purchaser shall indemnify and hold harmless Seller against and in respect of all claims, losses, liabilities and expenses (including, but not limited to, attorneys' fees and court costs) which Seller may incur on account of any claim which may be asserted against Seller, whether or not meritorious, by any broker or other person on the basis of any agreements made or alleged to have been made by or on behalf of Purchaser. Version 2 12 14. Notice. Any notice, request or other communication required or provided to be given under this Agreement shall be in writing and shall be sufficiently given and shall be deemed given when delivered personally or when mailed by certified or registered mail, return receipt requested, postage prepaid, addressed: To Seller: James A. Goldsmith Gator New Hope, LLC 1595 NE 163rd Street North North Miami Beach, FL 33162 With a copy to: P. Reid Lemasters Frost Brown Todd LLC 3300 Great American Tower 301 E. Fourth Street Cincinnati, OH 45202 E-mail: r1emasters@f6tlaw.com, and Peter L. Tunis, General Counsel Gator New Hope, LLC 1595 NE 163rd Street North North Miami Beach, FL 33162 E-mail: ptunis@gatorinv.com To Purchaser: New Hope Economic Development Authority Attn: Curtis Jacobsen 4401 Xylon Avenue North New Hope, MN 55428 (763) 531-5119 With a copy to: Steve Sondrall, City Attorney Jensen Sondrall & Persellin, P.A. 8525 Edinbrook Crossing, Suite 201 Brooklyn Park, MN 55443 (763) 424-8811 Fax: (763) 493-5193 E-mail: sas@jspattorneys.com or to such other party or other address as a party, by notice given as herein provided, shall designate, provided that no party may require notice to be sent to more than two addresses. Any notice given in any other manner (e.g. fax) shall be effective only upon receipt by the addressee. Version 2 13 15. Risk of Loss. Risk of loss to the Property from fire or other casualty shall be borne by Seller until Closing. If the Property is damaged or destroyed by fire or other casualty and not repaired and restored by Seller by the date for Closing to as good a condition as it was in prior to such casualty, and the cost to complete the outstanding repairs or restoration exceeds Five Hundred Thousand Dollars ($500,000.00), then either Seller or Purchaser shall have the right to terminate this Agreement. In the event of such a termination, Purchaser shall be entitled to a refund of the Earnest Money. If neither Seller nor Purchaser exercises such right to terminate, then both parties shall be deemed to have waived such right, and the parties shall proceed to close on the Property as if the cost to complete was less than Five Hundred Thousand Dollars ($500,000.00). If the Property is damaged or destroyed by fire or other casualty and not repaired and restored by Seller by the date for Closing to as good a condition as it was in prior to such casualty, and the cost to complete the outstanding repairs or restoration is less than Five Hundred Thousand Dollars ($500,000.00), then Purchaser shall proceed with this Agreement and receive the Property in its then existing condition. In such event, Seller shall assign to Purchaser its rights under its insurance policy to recover amounts related to such casualty and Purchaser shall receive a credit against the Purchase Price in an amount equal to Seller's deductible. Under no circumstances shall Purchaser have any other rights or claims to any proceeds from Seller's insurance. Seller shall give written notice to Purchaser of any material damage to or destruction of the Property and any election to terminate this Agreement pursuant to this Section by Purchaser must be done by notice to Seller in writing delivered within ten (10) days after Purchaser has received written notice of the damage or destruction. Failure by Purchaser to give timely notice of election to terminate shall constitute a waiver by Purchaser of such right to terminate. 16. Miscellaneous. a. All the terms of this Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the respective heirs, legal representatives, successors and assigns of Seller and Purchaser. Purchaser may assign its interest in this Purchase Agreement and the individually named Purchaser may allocate the percentage interest of the respective individuals in such manner as they may deem appropriate. b. This Agreement contains the entire agreement between the parties. Terms hereof cannot be waived except by the written agreement of the parties. C. Except as otherwise provided in this Agreement, the representations, warranties and covenants of Seller and Purchaser herein contained shall survive the Closing for a period of one (1) year and shall not be merged into the Closing. d. The captions used in connection with the sections of this Agreement are for convenience only and shall not be deemed to construe or to limit the meaning of the language of this Agreement. e. This Agreement may be amended only by a written instrument executed by Seller and Purchaser. Version 2 14 f. All references in this Purchase Agreement to "Agreement" shall refer to this Purchase Agreement, including all exhibits and attachments hereto as the same may be amended and modified by written agreement of the parties from time to time. g. This Agreement may be executed in any number of counterparts and/or by facsimile signature, each of which shall be an original, but such counterparts together shall constitute one and the same instrument. h. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. L It is expressly understood and agreed that Purchaser and Seller shall each be entirely responsible for the payment of any attorneys' fees incurred by each party relating to the legal services furnished to such party in connection with the transactions contemplated herein; provided, however, that in the event that either party hereto should employ the services of an attorney in connection with a breach of this Agreement or the enforcement of the terms hereof, the defaulting or losing party shall pay, in addition to any other sums due hereunder, the prevailing party's reasonable attorneys' fees, costs and expenses. j. One or more waivers of any covenant, term or condition of this Agreement by either party shall not be construed as a waiver of a subsequent breach of the same covenant, term or condition. The consent or approval of either party to or of any act by the other party of a nature requesting consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act. The failure or delay on the part of either party to enforce or exercise at any time any of the provisions, rights or remedies in this Agreement shall in no way be construed to be a waiver thereof or of the right to thereafter enforce each and every provision, right or remedy. k. If any part of this Agreement or any part or any provision herein shall be adjudicated to be void or invalid, then the remaining provisions hereof, not specifically so adjudicated to be invalid, shall be executed without reference to the part of portions so adjudicated, insofar as such remaining provisions are capable of execution. 1. Purchaser shall have the sole right to disclose to the public its anticipated acquisition of the Property. M. Time is of the essence as respects all terms and conditions of this Agreement. n. The submission of a draft of this Agreement does not constitute an offer by the party submitting it. This Agreement shall not become effective until original counterparts have been fully executed and delivered by both Seller and Purchaser. Version 2 15 PURCHASER: Economic Development Authority in and for the City of New Hope, a public body corporate and political and political subdivision of the State of Minnesota By: "?) (:�TA,U "r r Its. ent By: L Its: Executive Director SELLER: Gator New Hope, LLC, a Florida limited liability company By: Gator East Wind Partners, LLLP, a Florida limited liability limited partnership, its sole member, By. Gator East Wind Investors, Inc., a Florida Corporation, its sole general partner By: James A. Gold th, President Gator New Hope Two, LLC, a Florida limited liability company By: Gator East Wind Partners, LLLP, a Florida limited liability limited partnership, its sole member, By: Gator East Wind Investors, Inc., a Florida Corporation, its fe general partner By: James A. Gol th, President PAAtforneylSASr1 Client FflesU City of New Hope179-11358 (K-Mart)1FA K-Mart(7) clean from K-mart2425SM1Q changes accepted gU 3412 D4 (5) - Version 2.DOC Version 2 16 G1 H Real Property: That part of the West 1h of the Northeast 1/ of the Northeast 1/a of Section 18, Township 118, Range 21, Hennepin County, Minnesota, described as commencing on the East line of said subdivision at a point on said line 165.00 feet North measured along said line from the Southeast corner of said subdivision; thence West parallel to the South line of said subdivision, 82.5 feet; thence South, parallel to the East line of said subdivision, 165.00 feet to the South line thereof, thence West along said South line to the Southwest corner of said subdivision; thence North along the West line thereof to the Northwest corner of said subdivision; thence East along the North line thereof to the Northeast corner of said subdivision; thence South along the East line thereof to the point of beginning; excepting therefrom the North 350.98 feet; also excepting therefrom the South 223.58 feet to the West 190 feet. Registered Property Certificate of Title No. 1190631 Together with rights contained in the following: A. Reciprocal Easement Agreement dated as of January 1, 1977, filed on November 29, 1978, as Document No. 1306061 between Kenneth Young and W & Z Properties, Ltd. B. Non-exclusive permanent and perpetual easement for the purposes of ingress and egress by instrument dated November 6, 1976, filed January 17, 1977, as Document No. 1206360. C. Storm Sewer Easement dated September 17, 1983 and filed as Document No. 1558036. GNH2 Real Property: The South 223.58 feet of the West 190 feet of the West Half of the Northeast Quarter of the Northeast Quarter of Section 18, Township 118, Range 21 West, Hennepin County, Minnesota. Torrens Property Torrens Certificate No. 541884 Version 2 1 °' -fi,R3 PAFrrNER Engineering and Science, Inc. March 26, 2012 c/o New Hope Economic Development Authority Attn.: Curtis Jacobsen 4401 Xylon Avenue North New Hope, Minnesota 55428 Subject: Phase I Environmental Site Assessment- Reliance Letter Former Wells Fargo Bank Building 4200 Xylon Avenue North New Hope, Minnesota Partner Project No. 12-85353.1 Dear Mr. Jacobsen: Partner Engineering and Science, Inc. (Partner) issued a Phase I Environmental Site Assessment (Phase I) report of the abovementioned address (the "subject property") on behalf of Gator New Hope Two, LLC dated February 15, 2012. Partner acknowledges that New Hope Economic Development Authority may rely on the contents of the above referenced report, subject to the report's technical limitations and to the extent of our Professional Liability/Errors and Omissions insurance coverage (E&O) attached. Please feel free to contact me at (704)-754-9520) with any questions or concerns. Sincerely, Kimberly K. Houston Principal 2154 Torrance Boulevard, Suite 200, Torrance, CA 90501 Phone 800-419-4923 Fax 310-615-4544 OP ID: YS ACOR�p �� CERTIFICATE OF LIABILITY INSURANCE DATE (MIAIDDIYYYY) 09/23/11 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER 213-622-6500 (LA) Heffernan Insurance BrkrsIL 811 Wilshire Blvd., Suite 1801 213-623-1388 Los Angeles, CA 90017 Ben Stern CONTACT NAME: PAo End : FAX N AIL Na ADDREESS: PRODUCER PARTN-2 CUSTOMER ID 0: INSURER(S) AFFORDING COVERAGE NAIL# 09127112 INSURED Partner Assessment Corporation INSURER A: Westchester Surplus Lines Ins dba: Partner Engineering & INSURER B. Travelers Cas&Surety Science INSURER C: Nationwide Mutual Insurance Co 23787 1990 Grand Avenue, Suite 100 EI Segundo, CA 90245 INSURER D: Scottsdale Insurance Co.- 41297 Ded. - $ 10,00 C INSURER E: INSURER F: r_nVCIRAr.PQ r_FRTIFIr_eTF NtiMRFR- REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR L TYPE OF INSURANCE ADDL UB POLICY NUMBER MMIDPOLIDIDIYYYY IEFF MMIIDNY OLICY Y LIMITS A GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE 7 OCCUR X Professional Liab X G2416472A002 09127171 09127112 EACH OCCURRENCE $ 1,000,00 DAMAGE TO RENTED PREMISES Ea occurrence $ 100,00 MED EXP (Any one person) $ 55,00 PERSONAL & ADV INJURY $ 1,000,00 X Pollution GENERAL AGGREGATE $ 2,000,00 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY X PRO- .IFrTLOC PRODUCTS - COMPIOP AGG $ 2,000,00 Ded. - $ 10,00 C AUTOMOBILE X X X LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIREDAUTOS NON-OWNEDAUTOS ACP 7804176559 09127111 09127112 COMBINED SINGLE LIMIT $ 1,000,00 (Ea accident) BODILY INJURY (Per person) $ 130DILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ $ A X UMBRELLA LWB EXCESS UAB X OCCUR CLAIMS -MADE 624164731002 09127111 09127112 EACH OCCURRENCE $ 9,000,00 AGGREGATE $ 9,000,00 DEDUCTIBLE RETENTION $ $ $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETORIPARTNERIEXECUTIVE F— OFFICERIMEMBER EXCLUDED? (Mandatory In NH) If yes, describe under DESCRIPTION OF OPERATIONS below N! A UB37SOT56A 09127111 09127112 X I WCSTATU- OTH- LIMITSYINTORY ER E.L. EACH ACCIDENT S 1,000,00 E.L. DISEASE - EA EMPLOYEE $ 1,000,00 E.L. DISEASE - POLICY LIMIT S 1,000,00 A �E&O G2416472AO02 09127/11 09127112 Limit 1,000,00 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, It more space 1s required) f M0'r1M1f•ATC uni neo rAMCFt 1 OTInN ® 1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009109) The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES HE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN EVIDENCE ONLY ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ® 1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009109) The ACORD name and logo are registered marks of ACORD PAFrrNER Engineering and Science, Inc. March 26, 2012 c/o New Hope Economic Development Authority Attn.: Curtis Jacobsen 4401 Xylon Avenue North New Hope, Minnesota 55428 Subject: Phase I Environmental Site Assessment- Reliance Letter Kmart 4300 Xylon Avenue North New Hope, Minnesota Partner Project No, 11-76789.1 Dear Mr. Jacobsen: Partner Engineering and Science, Inc. (Partner) issued a Phase I Environmental Site Assessment (Phase 1) report of the abovementioned address (the "subject property") on behalf of Gator New Hope, LLC dated May 2, 2011. Partner acknowledges that New Hope Economic Development Authority may rely on the contents of the above referenced report, subject to the report's technical limitations and to the extent of our Professional Liability/Errors and Omissions insurance coverage (E&O) attached. Please feel free to contact me at (704)-754-9520) with any questions or concerns. Sincerely, Kimberly K. Houston Principal 2154 Torrance Boulevard, Suite 200, Torrance, CA 90501 Phone 800-419-4923 Fax 310-615-4544 OP ID: YS ACORU" CERTIFICATE OF LIABILITY INSURANCE DATE(MN90DIYYYY, 09123111 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER 213-622-6500 (LA) Heffernan Insurance Brkrs 213-623-1388 811 Wilshire Blvd., Suite 1801 Los Angeles, CA 90017 Ben Stem CONNMMEACT 1CNN E111: FAX No): ADDRESS: PRODU ER PARTN-2 CUSTOMER D l: INSURERS AFFORDING COVERAGE NAIL # INSURED Partner Assess rrlentCorporation INSURER A: Westchester Surplus Lines Ins INSURER B: Travelers CaS&Surety dba: Partner Engineering 81 INSURER C: Nationwide Mutual Insurance Co 23787 Science 1990 Grand Avenue, Suite 100 EI Segundo, CA 90245 INSURER D: Scottsdale Insurance Co. 41297 INSURER E INSURER F: X n.--- A015TiC1f-ATC WI IMIICC12. RFVISILIN NUM13tK: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. !NSR LTR TYPE OF INSURANCE DOL SUB POLICY NUMBER MMIU�YlYYYY EXP MMIDPOLI�DIYYYY LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,00 PREMISES Ea occurrence $ 100,00 A X COMMERCIAL GENERAL LIABILITY X G2416472AO02 09127111 D9127l12 MED EXP (Any one person) $ 5,00 CLAIMS -MADE [A] OCCUR PERSONAL &ADV INJURY $ 1,000,00 X Professional Liab GENERAL AGGREGATE $ 2,000,00 X Pollution GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS -COMPIOPAGG $ 2,000,00 Ded. - $ 10,00 POLICYFX]PRI LOG JFCTAUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ 1,000,00 ti C ANY AUTO CP 7804176559 09/27/11 09127112 BODILY INJURY BODILY NJURY (Par person) $ ALL OWNED AUTOS BODILY INJURY (Per accident) $ X SCHEDULEDAUTOS PROPERTY DAMAGE $ X HIRED AUTOS (Peraocident) $ X NON-OWNEDAUTOS X UMBRELLA LWB X OCCUR EACH OCCURRENCE $ 9,000,00 AGGREGATE $ 9,000,00 A EXCESS LIAR CLAIMS -MADE G24164731002 09127111 09127!12 DEDUCTIBLE $ $ RETENTION $ WORKERS COMPENSATION X T WC SLIM U- O7H- B AND EMPLOYERS'LIABILITY ANY PROPRIF70RIPARTNERJEXECUTIVE YF UB379OT66A 09127/11 09127112 E.L. EACH ACCIDENT $ 1,000,00 E. L. DISEASE - EA EMPLOYEE $ 1,000,00 OFFICER/MEMBER EXCLUDED? (Mandatory in NH) NIA E. L. DISEASE -POLICY LIMIT $ 1,000,00 Ifyas, DESCRIPTION OF OPERATIONS below describe under A �E&O 77 472A002 09/27111 09127/12 Limit 1,000,0 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 191, Additional Remarks Schedule, if more space Is required) !`AWL`CI i ATIr1N (FJ IVDU-ZUUV AL;UKIJ I:UKr'UKA 1IUN. All rlgn10 rV4SVFVCu. ACORD 26 (2009109) The ACORD name and logo are registered marks of ACORD SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN EVIDENCE ONLY ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE (FJ IVDU-ZUUV AL;UKIJ I:UKr'UKA 1IUN. All rlgn10 rV4SVFVCu. ACORD 26 (2009109) The ACORD name and logo are registered marks of ACORD COeMMERCIALPAUNERS T 1 T L F, L L C Privacy Policy Notice PURPOSE OF THIS NOTICE Title'V of the Gramm-leach-BifleyAct (GLBA) generally prohibits any financial Institution, directly or through Its afrlllates, from sharing nonpublic personal information about you with a nonaffiliated third party unless the institution provides you with a notice of its privacy policies and practices, such as the type of information that it collects about you and the categories of persons or entities to whom it may he disclosed. In compliance with the GLBA, we are providing you with this document, which notifies you of the privacy policies and practices of Commercial Partners Title. We may collect nonpublic personal information about you from the following sources; • Information we receive from you such as on applications or other forms. • Information about your transactions we secure from our files, or from [our affiliates or] others. • Information we receive from a consumer reporting agency. • Information that we receive from others involved in your transaction, such as the real estate agent or lender. Unless it Is specifically stated otherwise in an amended Privacy Policy Notice, no additional nonpublic personal Information will be collected about you. We may disclose any of the above information that we collect about our customers or former customers to our affiliates or to nonaffiliated third parties as permitted by law. We also may disclose this information about our customers or former customers to the following types of nonafflllated companies that perform services on our behalf or with whom we have joint marketing agreements: • financial service providers such as companies engaged in banking, consumer finance, securities and Insurance. • Non-financial companies such as envelope stuffers and other fulfillment service providers. WE DO NOT DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION ABOUT YOU WITH ANYONE FORANY PURPOSE THAT IS NOT SPECIFICALLY PERMITTED BY LAW. We restrict access to nonpublic personal information about you to those employees who need to know that Information in order to provide products or services to you. We maintain physical, electronic, and procedural safeguards that comply with federal regulations to guard your nonpublic personal Information, Commercial Ttile Insurance Soluflons • Unparalleled Customer Service • Great Relationships Qld A)rr6lki lAwar7ltkrn a+oramr rMpaay • stnwrt r"* Gwrasry comppjoy 200 South Sbtth Street • Sulta 1300 • Mtnneapoft Minnesota 55402 • 612/587-2470 - FAX 612/337-2471 Commercial Partners Title, LLC * * File No. 35270 yt * � Issued SY 1314 Republic National Tine ]naraemoe Company ** * Old Republic NationotT itis Insurarss a Campeny, a Minnesota corpaWOR ("Company"), fora valuable 4t canaldaration, oorr its to issue its pnlloy or policies at title insurance, as Identified In Schedule A. In favor of the Proposed Insured tanned in Schedule A. as owner or mortgages of dm soft or Interest in the land descrtlred or referred to in Schedule A, upon payment of the premiums and changes and compliance with the i3Wmmm ts; all suUjaot to the provisions of Schedules A end B and to the Conditions of thts CmmnitmenL This Oolm+►itment shell he tsfie*m only when the Identity of the Proposed Insured and Ow amount of ft policy or pofarfin committed for have bean Inserted in Schedule A by ttie Company. All liability and obligation under this U mmihnerrt shall cease and terminate six (61 months afterthe Motive Dos orwhen the policyor policies .committed forahall issue, whichever first oceurs,.providad that the failure to loess the policy or policies is motdne fault of the Cmnpary. The CarnpaM val provide a sample of the palicyfarm upon request, IN WITNESS WHEREOF, Old Republic National Tide Irnsurence Company has caused its c Marta rens and seal to be effixed by its duly audrodaad officers on the data shown in Schedule A. Va Commitment Niall not be valid or binding until countersigned tiya validating officar or authorized gignawry. 1 M Issued By; Commercial Partners Title, LLC 200 South Sixth Street Suite 1300 Minneapolis, MN 55402 Tet: (612) 337-2470 Fax (612) 337-2471 File Mm 35270 CRTFbm M ALTA QYMIa1lllMITIN YBII 06 000w acawcspor QLo BEPUBEIC NA174NAt. TIM INSUR WCE COMPANY 5awd AMM 5r?iKk MbaFaft Mkmasnm MCI (614 371-1111 DY IlMW Rrasmlesr CCNWMMS 1. Tha team rnortgega. when used herein. shall Include deed of trues» bust deed. or other mmuthy bcbttmerit 2. If ilia pnoposad Insured Etas or eogaired actual knowledge of any deTset lien. enarmLreux:e, adverse claim aradier matter edfecdng iiia estate ar Interest or walM #lemon covered by this Commitment or8artlen than shown In Schelde 8 hereof, anddtsil Willa dfstdose such knowf- edge f1! else DTWW TC ttlti ft ft h,blitpenjr ilN be relleued flom liebilRy ftq erW lam a damage raol>ltlnp from sing tat of AelW= httteml to the ndentthe Cttmpeny Is prejudiced by More to so din claia suds knowdi igs. ti the proposed kwmd shall disclose such knowlsdgetn the QMVW. or if the Company otherwise acquires actual knowledge of any such detect lienk mcwnbrance, mares claim gather matter, the Campeny et hs aption may emend Scluadtaie & of this Comrnliment awordirMly. but each ataendmeat shell not relieve the Campanyfrom liability 13mvfoudy tammed pumnint to paragraph a of than Corte and Stipulations. 3 iiabilk ofthe ConWwf undertlds Commitment shall be only to the named proposed Inured sad such parties included under the definition of Insured in the form of policy or pdicies committed for and only for actual Ices incurred In renerrce hereon In undertaking in goad faith fajto eaaply with tha nequirements hereof, ar fbj to elimirarte wMapdons shown in Schedule 8, uricl to aequim arenas the astab ar iniereet to mortgagathatean covered byths I3tstsnitmerrt in no avant shell tush Ilabli ty exceed the amourd stated in Schedule A farthe policy or policies committed inrand such llabflity is auhjectto tha insuring pnMdume and Cflndidans and Sifpu>latitins and the Exalusians frmn Coverage of the farm of policy or policies committed far In favor of the proposed Insured which are hereby incorporated by reference and ata mala apart of oris Cmm%nud enaepf Be BOOM y mot lied heraln. A. This Commitment in s contract to issue one or more title Msuranm policies and Is not an ebsbaet of title or a report of the mnditlan of fte. Arty acdon orectfone or rights of action Vwtthe proposed Insured may have or may bring against the Company arising out of the status of the title to the senile or Interest or the status of the mWpige thereon covered by this Comniafmntmnet be based an and are subjecttothe provisions of two Commitment. S. The policy to be issued contuains an arbitration cleuea. All sedtrabla matters when the Amount of Insurance in 32.g00,Cgtl or lase shell be erbitmted etthe option of elthertm Company or the insured as the asduslve remedy of the parties. You may reviews a copy of the arbitration rules at httpc//www.Wt&vq/. M ISSUED BY COMMERCIAL PARTNERS TITLE, LLC ASAGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35274 NOTES FOR INFORMATION THE FOLLOWING IS PROVIDED FOR INFORMATIONAL PURPOSES AND WILL NOT APPEAR ON THE FINAL POLICY: A. This Commitment was prepared by: Commercial Partners Title, LLC 200 South Sixth Street, Suite 1300 Minneapolis, MN 55402 Phone: (612) 337-2470 Fax: (612) 337-2471 Please direct questions regarding this commitment or the closing to: Dave Hillert, Underwriting Attorney, at (612) 643-1044. If you would like to arrange for additional parties to receive this documentation, please contact our Production Department at (612) 337-2470. B. Upon our receipt and review of a standard form of affidavit disclosing no adverse matters, Item Nos. 1, 2, 4, 5 and 6 of Schedule B will be deleted from the final policy. Item No. 8 will be modified to reflect the interests of specific tenants. A current survey, certified to Commercial Partners Title, LLC and Old Republic National Title Insurance Company, will be required to delete Item No. 3 of Schedule B from the final policy. C. We require a Well Disclosure Certificate be completed and furnished at the time of closing for all deeds that require a Certificate of Real Estate Value. OR The following statement must be added to the deed: The seller certifies that the seller does not know of any wells on the described real property. D. The Tax Reform Act of 1986 requires that the seller provide the following information at the time of closing: 1. Tax Identification Number 2. Full Forwarding Address E. The legal description at Item No. 4 of Schedule A is related to the property addresses of: 4300 Xylon Avenue North, New Hope, MN (Parcel 1) 4200 Xylon Avenue North, New Hope, MN (Parcel 2) ALTA Commitment Rotes for Information (35270.PFD/35270/47) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC 200 S. 6th St., Suite 1300, Minneapolis, MN 55402 ASAGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY Reference Name: City of New Hope/EDA COMMITMENT SCHEDULE A 1. Commitment Date: March 1, 2012 at 07:OOAM 2. Policy (or Policies) to be issued: (a) Owner's Policy ALTA Own. Policy (6106) Proposed Insured: Economic Development Authority in and for the City of New Hope (b) Loan Policy Proposed Insured: (c) Proposed Insured: ALTA Loan Policy (6106) ALTA Loan Policy (6106) File No. 35270 Amount $ 4,500,000.00 3, The estate or interest fn the land described or referred to in the Commitment and covered herein is a Fee Simple, and title thereto is at the effective date vested in: Gator New Hope, LLC, a Florida limited liability company (Parcel 1) Gator New Hope Two, LLC, a Florida limited liability company (Parcel 2) 4. The land referred to in this Commitment is described as follows: SEE EXHIBIT A ATTACHED HERETO ALTA Commitment valid Only if Schedule B and Schedule A (6-17-06) Cover are Attached ( 35270. PF D13 52 7014 7 ) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 EXHIBIT A PROPERTY DESCRIPTION The land referred to in this Commitment is described as follows: Parcel 1: That part of the West Half of the Northeast Quarter of the Northeast Quarter of Section 18, Township 118, Range 21, Hennepin County, Minnesota, described as: Commencing on the East line of said subdivision at a point on said line 165.00 feet North measured along said line from the Southeast corner of said subdivision; thence West parallel to the South line of said subdivision, 82.5 feet; thence South, parallel to the East line of said subdivision, 165.00 feet to the South line thereof; thence West along said South line to the Southwest corner of said subdivision; thence North along the West line thereof to the Northwest corner of said subdivision; thence East along the North line thereof to the Northeast corner of said subdivision; thence South along the East line thereof to the point of beginning; excepting therefrom the North 350.98 feet; also excepting therefrom the South 223.58 feet to the West 190 feet. Hennepin County, Minnesota Torrens Property Torrens Certificate No. 1190631 Parcel 2: The South 223.58 feet of the West 190 feet of the West Half of the Northeast Quarter of the Northeast Quarter of Section 18, Township 118, Range 21 West, Hennepin County, Minnesota. Torrens Property Torrens Certificate No. 1347449 ALTA Commitment (35270.PFD/35270/47) ExhibitA ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - PART I REQUIREMENTS Instruments creating and/or perfecting the priority of the estate or interest(s) to be insured, the form and execution of which shall be satisfactory to the Company, must be executed, delivered and duly filed for record. SCHEDULE B - PART Il EXCEPTIONS Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company. Defects, liens encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed Insured acquires for value of record the estate or interest or mortgage thereon covered by this commitment. 2. Rights or claims of parties in possession not shown by the public records. Any encroachment, encumbrance, violation, variation or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land. 4. Easements or claims of easements not shown by the public records. 5. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 6. Taxes or special assessments which are not shown as existing liens by the public records. 7. General and special taxes and assessments as hereafter listed, if any (all amounts shown being exclusive of interest, penalties and costs): A. Real estate taxes payable in 2012 are $148,033.40 and are unpaid. Base tax $144,952.50 Property Identification No. 18-118-21-11-0013 (Parcel 1) Real estate taxes payable in 2012 are $13,821.34 and are unpaid. Base tax $12,549.06 Property Identification No. 18-118-21-11-0012 (Parcel 2) NOTE: There are no delinquent taxes of record. B. Levied Assessments for: PROJECT CERTIFIED TO 2012 TAXES PRINCIPAL BALANCE DUE 1. 14568 Street $1,272.28 $2,153.91 (18-118-21-11-0012) 2. 14568 Street $ 3,080.90 $5,219.42 (18-118-21-11-0013) NOTE: There are no pending assessments of record. ALTA Commitment Schedule 8 (6-17-06) (35270.PFDI35270/47) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - Part Ii - !EXCEPTIONS (Continued) Rights or claims of tenants, as tenants only, in possession under unrecorded leases. 9. In the event this transaction involves new construction or if there has been construction on the property during the last six months, including any tenant improvements, please immediately contact the closer or underwriting attorney listed in the Notes for Information page of this commitment to discuss the transaction. If the transaction involves a construction mortgage or is a vacant land acquisition mortgage no construction related work can be performed on the property until after the mortgage is recorded and pictures have been taken at the site, in order to establish priority for the construction mortgage. Indemnities will be required at closing from the appropriate parties, depending upon the nature of the transaction. 10. Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Financing Statement dated July 6, 1998, filed September 4, 1998, as Document No. 3056734.0, executed by Master LP Associates, Limited Partnership, a Pennsylvania limited partnership, as mortgagor, to Credit Suisse First Boston Mortgage Capital LLC, a Delaware limited liability company, as mortgagee, in the original principal amount of $19,770,000.00. Assigned to JPMorgan Chase Bank, formerly known as The Chase Manhattan Bank, as Trustee for the Registered Holders of the Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass -Through Certificates, Series 1998-C2, by Assignment of Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Financing Statement dated November 25, 2002, filed April 10, 2003, as Document No. 3717122. Amended by FirstAmendment to Mortgage and Security Agreement dated September 21, 2004, filed February 8, 2005, as Document No. 4075423. Amended by Second Amendment to Mortgage and Security Agreement dated May 11, 2005, filed May 19, 2005, as Document No. 4116166. (Affects Parcel 1) (Includes additional land) ALTA Commitment Schedule B (6-17-06) (35270.PFD135270147) ISSUED BY COMMERCIAL PARTNERS 'TITLE, LLC ASAGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - Part 11- EXCEPTIONS (Continued) 11. Assignment of Leases and Rents dated July 6, 1998, filed September 4, 1998, as Document No. 3056735.0, executed by Master LP Associates, Limited Partnership, a Pennsylvania limited partnership, as assignor, to Credit Suisse First Boston Mortgage Capital LLC, a Delaware limited liability company, as assignee. Assigned to JPMorgan Chase Bank, formerly known as The Chase Manhattan Bank, as Trustee for the Registered Holders of the Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass -Through Certificates, Series 1998-C2, by Assignment of Assignment of Leases and Rents dated November 25, 2002, filed January 17, 2003, as Document No. 3666911. (Affects Parcel 1) (Includes additional land) 12. Mortgage, Assignment of Rents, Security Agreement and Fixture Filing dated September 15, 2006, filed September 29, 2006, as Document No. 4311557, executed by Gator New Hope, LLC, a Florida limited liability company, as mortgagor, to Keybank National Association, as mortgagee, in the original principal amount of $3,170,000.00. Amended by First Modification of Mortgage, Assignment of Rents, Security Agreement and Fixture Filing dated September 15, 2011, filed November 14, 2011, as Document No. T4901276. (Affects Parcel 1) 13. Financing Statement filed March 31, 2008, as Document No. 4482971, between Gator New Hope, LLC, a Florida limited liability company, as debtor, and Keybank National Association, as secured party. (Affects Parcel 1) 14. Subject to restrictions set forth in Warranty Deed dated July 19, 1963, filed July 19, 1963, as Document No. 733607, as shown by recital on the Certificate of Title. Partially released by Partial Release and Revision of Restriction dated July 19, 1963, filed October 4, 1971, as Document No. 1011205. NOTE: The above restriction has expired by its terms but will continue to appear on future Certificates of Title unless deleted by proceeding subsequent or examiner's directive. Neither Commercial Partners Title, LLC, nor Old Republic National Title Insurance Company will be responsible for removing it from the Certificate of Title. (Affects Parcels o and 2) ALTA commitment Schedule B (6-17-06) (35270.PFD135270147) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - Part 11 - EXCEPTIONS (Continued) 15. Easement for public street purposes, in favor of the Village, now City, of New Hope, a Minnesota municipal corporation, as created in document dated June 15, 1965, filed May 7, 1971, as Document No. 995954. (Affects Parcels 1 and 2) 16. Easement for highway purposes, including the right to construct and maintain portable snow fences on adjacent land, in favor of the County of Hennepin, as created in document dated May 26, 1972, filed October 20, 1972, as Document No. 1049810. (Affects Parcels 1 and 2) 17. Easement for ingress and egress, together with the right of use of the drainage system and sanitary sewer facilities, in favor of New Hope State Bank, a Minnesota corporation, as created in document dated November 6, 1976, filed January 17, 1977, as Document No. 1206360. (Affects Parcel 1) 18. Covenants, conditions, restrictions, easements and liens contained in Reciprocal Easement Agreement dated January 1, 1977, filed November 29, 1978, as Document No. 1306061. (Affects Parcel 1) 19. Subject to the right of way of Hennepin County State Aid Highway No. 9 as depicted on Hennepin County State Aid Highway No. 9, Plat 58, filed November 26, 1979, as Document No. 1359773. (Affects Parcels 1 and 2) 20. Terms and conditions of Conditional Use Permit granted by the City of New Hope on December 10, 1990, described in Certificate dated January 30, 1991, filed January 31, 1991, as Document No. 2152119. (Affects Parcel 1) 21. Terms and conditions of Resolution No. 99-159 granting a conditional use permit, adopted October 11, 1999, filed September 26, 2000, as Document No. 3318388. (Affects Parcel 1) ALTA Commitment Schedule B (6-17-06) (35270.PFD135270147) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC ASAGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - Part II - EXCEPTIONS (Continued) 22. Terms and conditions of Lease dated December 8, 1971, as shown by Memorandum of Lease dated December 8, 1971, filed March 4, 1972, as Document No. 1025148, by and between New Hope Properties, Inc., a Minnesota corporation, lessor, and S.S. Kresge Company, a Michigan corporation, lessee. For a term of 25 years from the last day of the month in which lessee's occupancy begins, with an option to extend for ten successive periods of five years each. Amended by Amendment to Lease dated March 5, 1974, filed February 20, 1975, as Document No. 1132984, which creates easements across the leased land for the benefit of adjacent parcels owned by the lessor. One of the benefited parcels is the land designated as Parcel 2 on this title insurance commitment. The lessee changed its name to K Mart Corporation, a Michigan corporation, as shown by Certificate of Amendment to Articles of Incorporation filed March 29, 1978, as Document No. 1266293. The lessor's interest was assigned to and assumed by Master LP Associates, Limited Partnership, a Pennsylvania limited partnership, in Assignment and Assumption of Leases and Security Deposits dated June 30, 1998, filed December 17, 1998, as Document No. 3098491. (Affects Parcel 1) 23. Easement for traffic signal purposes, in favor of the County of Hennepin, as created in document dated June 2, 1978, filed October 16, 1978, as Document No. 1298621, as amended by Highway Easements dated May 27, 1982, filed September 22, 1982, as Document No. 1482551. (Affects Parcel 2) ALTA Commitment Schedule B (6-17-06) (3 52 70. P F D /35270/47 ) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - Part II - EXCEPTIONS (Continued) 24. Parcel 1 is benefited by a storm sewer easement over an adjacent parcel, created in Quit Claim Deed for Conveyance and Reconveyance of a Storm Sewer Easement dated September 27, 1983, filed January 17, 1984, as Document No. 1558036. An Order issued in Torrens File No. A-20608, filed as Document No. 1558037, directed that said Document No. 1558036 be memorialized on both the Certificate of Title for Parcel 1 and on Torrens Certificate No. 616777, which is the Certificate of Title for the parcel burdened by the easement. The order also directed that the memorial of said Document No. 1558036 on Torrens Certificate No. 616777 should state that said Document No. 1558036 creates a storm sewer easement for the benefit of the land in Parcel 1. Neither of these orders appears to have been executed by the Registrar of Titles. In order to insure the benefit of the easement created in Document No. 1558036 we require that the memorial on Torrens Certificate No. 616777 be corrected to include a statement that it creates a storm sewer easement for the benefit of the land described in the Certificate of Title for Parcel 1. We also require a consent to the easement from the Secretary of Housing and Urban Development of Washington, D.C., mortgagee of the parcel burdened by the easement in Mortgage filed as Document No. 1442004 and Regulatory Agreement filed as Document No. 1442005, and a consent to the easement from the City of New Hope, Minnesota, a public corporation, party to an Assessment Agreement concerning the burdened parcel filed as Document 1452072. (Affects Parcel 1) ALTA Commitment Schedule B (6-17-06) (35270.PFDI35270/47) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - Part II - EXCEPTIONS (Continued) 25. The following documents appear as memorials on the Certificate of Title for Parcel 1 but no longer affect the land. The policy or policies to be issued will include affirmative coverage with respect to the matters contained in the documents, but neither Commercial Partners Title, LLC, nor Old Republic National Title Insurance Company will be responsible for removing the memorials from the Certificate of Title: a. Assignment of Lessor's Interest in Lease dated February 24, 1972, filed March 14, 1972, as Document No. 1025150. Given as security for a mortgage filed as Document No. 1025149, which was satisfied on a prior Certificate of Title by Document No. 3062096. b. Assignment of Assignment of Lessor's Interest in Lease dated August 23, 1972, filed August 25, 1972, as Document No. 1043274. Collaterally assigns the Assignment of Lessor's Interest in Lease filed as Document No. 1025150, described above. c. Order in Torrens File No. A-17163, filed February 15, 1973, directing that the Registrar of Titles show by memorial that Document No. 1025150 and Document No. 1043274, described above, are security devices only and additional security for the mortgage filed as Document No. 1025149, which was satisfied as shown above. d. Memorandum of Lease dated April 24, 1981, filed June 7, 1982, as Document No. 1469367. For a term ending at midnight on March 31, 2011. END OF SCHEDULE B EXCEPTIONS SEE ATTACHED FOR ADDITIONAL INFORMATION REGARDING THIS FILE ALTA Commitment Schedule B (6-17-06) (35270. PFD/35270147) EXHIBIT A LEGAL DESCRIPTION Parcel 1: That part of the West Halt of the Northeast Quarter of the Northeast Quarter of Section 18, Township 118, Range 21, Hennepin County, Minnesota, described as: Commencing on the East line of said subdivision at a point on said line 165.00 feet North measured along said line from the Southeast corner of said subdivision; thence West parallel to the South line of said subdivision, 82.5 feet; thence South, parallel to the East line of said subdivision, 165.00 feet to the South line thereof; thence West along said South line to the Southwest corner of said subdivision; thence North along the West line thereof to the Northwest corner of said subdivision; thence East along the North line thereof to the Northeast corner of said subdivision; thence South along the East line thereof to the point of beginning; excepting therefrom the North 350.98 feet; also excepting therefrom the South 223.58 feet to the West 190 feet. Hennepin County, Minnesota Torrens Property Torrens Certificate No. 1190631 Parcel 2: The South 223.58 feet of the West 190 feet of the West Half of the Northeast Quarter of the Northeast Quarter of Section 18, Township 118, Range 21 West, Hennepin County, Minnesota. Torrens Property Torrens Certificate No. 1347449 COMMERCIALPARTMERS T I T L 8, L L C Privacy Policy Notice PURPOSE OF THIS NOTICE Title V of the Gramm -!..each -Bliley Act (GLBA) generally prohibits any financial Institution, directly or through its affiliates, from sharing nonpublic personal Information about you with a nonaffiliated third party unless the institution provides you with a notice of its privacy policies and practices, such as the type of information that it collects about you and the categories of persons or entities to whom it may be disclosed. in compliance with the GLBA, we are providing you with this document, which notifies you of the privacy policies and practices of Commercial Partners Title. We may collect nonpublic personal Information about you from the following sources; • Information we receive from you such as on applications or other forms. • Informatlon about your transactions we secure from our flies, or from [our affiliates or] others. • Information we receive from a consumer reporting agency. Information that we receive from others involved in your transaction, such as the real estate agent or lender. Unless It is specifically stated otherwise in an amended Privacy Policy Notice, no additional nonpublic personal information will be collected about you. We may disclose any of the above information that we collect about our customers or former customers to our affiliates or to nonaffiliated third parties as permitted by law. We also may disclose this information about our customers or former customers to the following types of nonaffiliated companies that perform services on our behalf or with whom we have joint marketing agreements: • financial service providers such as companies engaged In banking, consumer finance, securities and Insurance. • Non-financial companies such as envelope stuffers and other fulfillment service providers. WE DO NOT DISCLOSE ANY NONPUBLIC PERSONAL INFORMATION ABOUT YOU WITH ANYONE FORANY PURPOSE THAT IS NOT SPECIFICALLY PERMITTED BY LAW, We restrict access to nonpublic personal information about you to those employees who need to know that Information in order to provide products or services to you. We maintain physical, electronic, and procedural safeguards that comply with federal regulations to guard your nonpublic personal Information, Commercial Title Insurance Solutions • Unparalleled Customer Service • Great Relationships k—ft. 0MApnUk Narw wvl77* h,, WWW Cemprnx • Siautitr177/dr Gwt+orsry C07nP�+Y 2W South Sixth street • suite 1300 • Minneapolis, Minnesota 55402 • 612/937-2470 • FAX. 612/337-2471 ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 NOTES FOR INFORMATION THE FOLLOWING IS PROVIDED FOR INFORMATIONAL PURPOSES AND WILL NOT APPEAR ON THE FINAL POLICY: A. This Commitment was prepared by: Commercial Partners Title, LLC 200 South Sixth Street, Suite 1300 Minneapolis, MN 55402 Phone: (612) 337-2470 Fax: (612) 337-2471 Please direct questions regarding this commitment or the closing to: Dave Hillert, Underwriting Attorney, at (612) 643-1044. If you would like to arrange for additional parties to receive this documentation, please contact our Production Department at (612) 337-2470. B. Upon our receipt and review of a standard form of affidavit disclosing no adverse matters, Item Nos, 1, 2, 4, 5 and 6 of Schedule B will be deleted from the final policy. Item No. 8 will be modified to reflect the interests of specific tenants. A current survey, certified to Commercial Partners Title, LLC and Old Republic National Title Insurance Company, will be required to delete Item No. 3 of Schedule B from the final policy. C. We require a Well Disclosure Certificate be completed and furnished at the time of closing for all deeds that require a Certificate of Real Estate Maiue. OR The following statement must be added to the deed: The seller certifies that the seller does not know of any wells on the described real property. D. The Tax Reform Act of 1986 requires that the seller provide the following information at the time of closing: 1. Tax Identification Number 2. Full Forwarding Address E. The legal description at Item No. 4 of Schedule A is related to the property addresses of: 4300 Xylon Avenue North, New Hope, MN (Parcel 1) 4200 Xylon Avenue North, New Hope, MN (Parcel 2) ALTA Commitment Notes for Information (35270.PFDI35270147) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC 200 S. 6th St., Suite 1300, Minneapolis, MN 55402 AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY Reference Name: City of New Hope/EDA COMMITMENT SCHEDULE A 1. Commitment Date: March 1, 2012 at 07:00 AM 2. Policy (or Policies) to be issued: (a) Owner's Policy ALTA Own. Policy (6/06) Proposed Insured: Economic Development Authority in and for the City of New Hope (b) Loan Policy ALTA Loan Policy (6/06) Proposed Insured: (c) Proposed Insured: ALTA Loan Policy (6/06) File No. 35270 Amount `} 4,500,000.00 3, The estate or interest in the land described or referred to in the Commitment and covered herein is a Fee Simple, and title thereto is at the effective date vested in: Gator New Hope, LLC, a Florida limited liability company (Parcel 1) Gator New Hope Two, LLC, a Florida limited liability company (Parcel 2) 4. The land referred to in this Commitment is described as follows: EXHIBIT AATTACHED HERETO ALTA Commitment NNW Only if Schedule B and Schedule (6-17-06) Cover are Attached (35270.PFD/35270/47) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 EXHIBIT A PROPERTY DESCRIPTION The land referred to in this Commitment is described as follows: Parcel 1: That part of the West Half of the Northeast Quarter of the Northeast Quarter of Section 18, Township 118, Range 21, Hennepin County, Minnesota, described as: Commencing on the East line of said subdivision at a point on said line 165.00 feet North measured along said line from the Southeast corner of said subdivision; thence West parallel to the South line of said subdivision, 82.5 feet; thence South, parallel to the East line of said subdivision, 165.00 feet to the South line thereof; thence West along said South line to the Southwest corner of said subdivision; thence North along the West line thereof to the Northwest corner of said subdivision; thence East along the North line thereof to the Northeast corner of said subdivision; thence South along the East line thereof to the point of beginning; excepting therefrom the North 350.98 feet; also excepting therefrom the South 223.58 feet to the West 190 feet. Hennepin County, Minnesota Torrens Property Torrens Certificate No. 1190631 Parcel 2: The South 223.58 feet of the West 190 feet of the West Half of the Northeast Quarter of the Northeast Quarter of Section 18, Township 118, Range 21 West, Hennepin County, Minnesota. Torrens Property Torrens Certificate No. 1347449 ALTA Commitment (35270.PFD135270147) ExhibilA ISSUED BY COMMERCIAL PARTNERS TITLE, LLC ASAGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - PART I REQUIREMENTS Instruments creating and/or perfecting the priority of the estate or interest(s) to be insured, the form and execution of which shall be satisfactory to the Company, must be executed, delivered and duly filed for record. SCHEDULE B - PART II EXCEPTIONS Schedule B of the policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company. Defects, liens encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed Insured acquires for value of record the estate or interest or mortgage thereon covered by this commitment. 2. Rights or claims of parties in possession not shown by the public records. 3. Any encroachment, encumbrance, violation, variation or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land. 4. Easements or claims of easements not shown by the public records. 5. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 6. Taxes or special assessments which are not shown as existing liens by the public records. 7. General and special taxes and assessments as Hereafter listed, if any (all amounts shown being exclusive of interest, penalties and costs): A. Real estate taxes payable in 2012 are $148,033.40 and are unpaid. Base tax $144,952.50 Property Identification No. 18-118-21-11-0013 (Parcel 1) Real estate taxes payable in 2012 are $13,821.34 and are unpaid. Base tax $12,549.06 Property Identification No. 18-118-21-11-0012 (Parcel 2) NOTE: There are no delinquent taxes of record. B. Levied Assessments for: PROJECT CERTIFIED TO 2012 TAXES PRINCIPAL BALANCE DUE 1. 14568 Street $1,272.28 $2,153.91 (18-118-21-11-0012) 2. 14568 Street $ 3,080.90 $5,219.42 (18-118-21-11-0013) NOTE: There are no pending assessments of record. ALTA Commitment Schedule B (6-17-06) (3 52 70. P F D13 52 70147 ) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - Part II - EXCEPTIONS (Continued) 8. Rights or claims of tenants, as tenants only, in possession under unrecorded leases. 9. In the event this transaction involves new construction or if there has been construction on the property during the last six months, including any tenant improvements, please immediately contact the closer or underwriting attorney listed in the Notes for information page of this commitment to discuss the transaction. If the transaction involves a construction mortgage or is a vacant land acquisition mortgage no construction related work can be performed on the property until after the mortgage is recorded and pictures have been taken at the site, in order to establish priority for the construction mortgage. Indemnities will be required at closing from the appropriate parties, depending upon the nature of the transaction. 10. Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Financing Statement dated July 6, 1998, filed September 4, 1998, as Document No. 3056734.0, executed by Master LP Associates, Limited Partnership, a Pennsylvania limited partnership, as mortgagor, to Credit Suisse First Boston Mortgage Capital LLC, a Delaware limited liability company, as mortgagee, in the original principal amount of $19,770,000.00. Assigned to JPMorgan Chase Bank, formerly known as The Chase Manhattan Bank, as Trustee for the Registered Holders of the Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass -Through Certificates, Series 1998-C2, by Assignment of Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Financing Statement dated November 25, 2002, filed April 10, 2003, as Document No. 3717122. Amended by First Amendment to Mortgage and Security Agreement dated September 21, 2004, filed February 8, 2005, as Document No. 4075423. Amended by Second Amendment to Mortgage and Security Agreement dated May 11, 2005, filed May 19, 2005, as Document No. 4116166. (Affects Parcel 1) (includes additional land) ALTA Commitment Schedule B (6-17-06) (35270.PFD135270147) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - Part II - EXCEPTIONS (Continued) 11. Assignment of Leases and Rents dated July 6, 1998, filed September 4, 1998, as Document No. 3056735.0, executed by Master LP Associates, Limited Partnership, a Pennsylvania limited partnership, as assignor, to Credit Suisse First Boston Mortgage Capital LLC, a Delaware limited liability company, as assignee. Assigned to JPMorgan Chase Bank, formerly known as The Chase Manhattan Bank, as Trustee for the Registered Holders of the Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass -Through Certificates, Series 1998-C2, by Assignment of Assignment of Leases and Rents dated November 25, 2002, filed January 17, 2003, as Document No. 3666911. (Affects Parcel 1) (Includes additional land) 12. Mortgage, Assignment of Rents, Security Agreement and Fixture Filing dated September 15, 2006, filed September 29, 2006, as Document No. 4311557, executed by Gator New Hope, LLC, a Florida limited liability company, as mortgagor, to Keybank National Association, as mortgagee, in the original principal amount of $3,170,000.00. Amended by First Modification of Mortgage, Assignment of Rents, Security Agreement and Fixture Filing dated September 15, 2011, filed November 14, 2011, as Document No. T4901276. (Affects Parcel 1) 13. Financing Statement filed March 31, 2008, as Document No. 4482971, between Gator New Hope, LLC, a Florida limited liability company, as debtor, and Keybank National Association, as secured party. (Affects Parcel 1) 14. Subject to restrictions set forth in Warranty Deed dated July 19, 1963, filed July 19, 1963, as Document No. 733607, as shown by recital on the Certificate of Title. Partially released by Partial Release and Revision of Restriction dated July 19, 1963, filed October 4, 1971, as Document No. 1011205. NOTE: The above restriction has expired by its terms but will continue to appear on future Certificates of Title unless deleted by proceeding subsequent or examiner's directive. Neither Commercial Partners Title, LLC, nor Old Republic National Title Insurance Company will be responsible for removing it from the Certificate of Title. (Affects Parcels 1 and 2) ALTA Commibment Schedule B (6-17-06) (35270. PFD135270147) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - Part II - EXCEPTIONS (Continued) 15. Easement for public street purposes, in favor of the Village, now City, of New Hope, a Minnesota municipal corporation, as created in document dated June 15, 1965, filed May 7, 1971, as Document No. 995954. (Affects Parcels 1 and 2) 16. Easement for highway purposes, including the right to construct and maintain portable snow fences on adjacent land, in favor of the County of Hennepin, as created in document dated May 26, 1972, filed October 20, 1972, as Document No. 1049810. (Affects Parcels 1 and 2) 17. Easement for ingress and egress, together with the right of use of the drainage system and sanitary sewer facilities, in favor of New Hope State Bank, a Minnesota corporation, as created in document dated November 6, 1976, filed January 17, 1977, as Document No. 1206360. (Affects Parcel 1) 18. Covenants, conditions, restrictions, easements and liens contained in Reciprocal Easement Agreement dated January 1, 1977, filed November 29, 1978, as Document No. 1306061. (Affects Parcel 1) 19. Subject to the right of way of Hennepin County State Aid Highway No. 9 as depicted on Hennepin County State Aid Highway No. 9, Plat 58, filed November 26, 1979, as Document No. 1359773. (Affects Parcels 1 and 2) 20. Terms and conditions of Conditional Use Permit granted by the City of New Hope on December 10, 1990, described in Certificate dated January 30, 1991, filed January 31, 1991, as Document No. 2152119. (Affects Parcel 1) 21. Terms and conditions of Resolution No. 99-159 granting a conditional use permit, adopted October 11, 1999, filed September 26, 2000, as Document No. 3318388. (Affects Parcel 1) ALTA Commitment Schedule B (6-17-06) (35270.PFDM270147) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - Part II - EXCEPTIONS (Continued) 22. Terms and conditions of Lease dated December 8, 1971, as shown by Memorandum of Lease dated December 8, 1971, filed March 4, 1972, as Document No. 1025148, by and between New Hope Properties, Inc., a Minnesota corporation, lessor, and S.S. Kresge Company, a Michigan corporation, lessee. For a term of 25 years from the last day of the month in which lessee's occupancy begins, with an option to extend for ten successive periods of five years each. Amended by Amendment to Lease dated March 5, 1974, filed February 20, 1975, as Document No. 1132984, which creates easements across the leased land for the benefit of adjacent parcels owned by the lessor. One of the benefited parcels is the land designated as Parcel 2 on this title insurance commitment. The lessee changed its name to K Mart Corporation, a Michigan corporation, as shown by Certificate of Amendment to Articles of Incorporation filed March 29, 1978, as Document No. 1266293. The lessor's interest was assigned to and assumed by Master LP Associates, Limited Partnership, a Pennsylvania limited partnership, in Assignment and Assumption of Leases and Security Deposits dated June 30, 1998, filed December 17, 1998, as Document No. 3098491. (Affects Parcel 1) 23. Easement for traffic signal purposes, in favor of the County of Hennepin, as created in document dated June 2, 1978, fled October 16, 1978, as Document No. 1298621, as amended by Highway Easements dated May 27, 1982, filed September 22, 1982, as Document No. 1482551. (Affects Parcel 2) ALTA Commitment Schedule B (6-17-06) (35270.PFDI35270147) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC AS AGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - Part II - EXCEPTIONS (Continued) 24. Parcel 1 is benefited by a storm sewer easement over an adjacent parcel, created in Quit Claim Deed for Conveyance and Reconveyance of a Storm Sewer Easement dated September 27, 1983, filed January 17, 1984, as Document No. 1558036. An Order issued in Torrens File No. A-20608, filed as Document No. 1558037, directed that said Document No. 1558036 be memorialized on both the Certificate of Title for Parcel 1 and on Torrens Certificate No. 616777, which is the Certificate of Title for the parcel burdened by the easement. The order also directed that the memorial of said Document No. 1558036 on Torrens Certificate No. 616777 should state that said Document No. 1558036 creates a storm sewer easement for the Benefit of the land in Parcel 1. Neither of these orders appears to have been executed by the Registrar of Titles. In order to insure the benefit of the easement created in Document No. 1558036 we require that the memorial on Torrens Certificate No. 616777 be corrected to include a statement that it creates a storm sewer easement for the benefit of the land described in the Certificate of Title for Parcel 1. We also require a consent to the easement from the Secretary of Housing and Urban Development of Washington, D.C., mortgagee of the parcel burdened by the easement in Mortgage filed as Document No. 1442004 and Regulatory Agreement filed as Document No. 1442005, and a consent to the easement from the City of New Hope, Minnesota, a public corporation, party to an Assessment Agreement concerning the burdened parcel filed as Document 1452072. (Affects Parcel 1) ALTA Commitment Schedule B (6-17-06) (35270.PFD135270147) ISSUED BY COMMERCIAL PARTNERS TITLE, LLC ASAGENT FOR OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY COMMITMENT NUMBER 35270 SCHEDULE B - Part II - EXCEPTIONS (Continued) 25. The following documents appear as memorials on the Certificate of Title for Parcel 1 but no longer affect the land. The policy or policies to be issued will include affirmative coverage with respect to the matters contained in the documents, but neither Commercial Partners Title, LLC, nor Old Republic National Title Insurance Company will be responsible for removing the memorials from the Certificate of Title: a. Assignment of Lessor's Interest in Lease dated February 24, 1972, filed Match 14, 1972, as Document No. 1025150. Given as security for a mortgage filed as Document No. 1025149, which was satisfied on a prior Certificate of Title by Document No. 3062096. b. Assignment of Assignment of Lessor's Interest in Lease dated August 23, 1972, filed August 25, 1972, as Document No. 1043274. Collaterally assigns the Assignment of Lessor's Interest in Lease filed as Document No. 1025150, described above. c. Order in Torrens t=ile No. A-17163, filed February 15, 1973, directing that the Registrar of Tiles show by memorial that Document No. 1025150 and Document No. 1043274, described above, are security devices only and additional security for the mortgage filed as Document No. 1025149, which was satisfied as shown above. d. Memorandum of Lease dated April 24, 1981, filed June 7, 1982, as Document No. 1469367. For a term ending at midnight on March 31, 2011. END OF SCHEDULE B EXCEPTIONS SEE ATTACHED FOR ADDITIONAL INFORMATION REGARDING THIS FILE ALTA Commitment Schedule B (6-17-06) (35270.PFD135270147) EXHIBIT A LEGAL DESCRIPTION Parcel 1: That part of the West Half of the Northeast Quarter of the Northeast Quarter of Section i u, 'i ownship 118, Range 21, Hennepin County, Minnesota, described as: Commencing on the East line of said subdivision at a point on said line 165.00 feet North measured along said line from the Southeast comer of said subdivision; thence West parallel to the South line of said subdivision, 82.5 feet; thence South, parallel to the East line of said subdivision, 165.00 feet to the South line thereof; thence West along said South line to the Southwest comer of said subdivision; thence North along the West line thereof to the Northwest corner of said subdivision; thence East along the North line thereof to the Northeast corner of said subdivision; thence South along the East line thereof to the point of beginning; excepting therefrom the North 350.98 feet; also excepting therefrom the South 223.58 feet to the West 190 feet. Hennepin County, Minnesota Torrens Property Torrens Certificate No. 1190631 Parcel 2: The South 223.58 feet of the West 190 feet of the West Half of the Northeast Quarter of the Northeast Quarter of Section 18, Township 118, Range 21 West, Hennepin County, Minnesota. Torrens Property Torrens Certificate No. 1347449 ! : 11 L 11� f - Council Request for Action Originating Department Approved for Agenda Agenda Section Community Development December 10, 2012 Development & Planning Item No. By: Curtis Jacobsen, Director of CD By: Kirk McDonald, City Manager 8.1 Resolution accepting the low bid for demolition of 4200 and 4300 Xylon Avenue North from Landwehr Construction, Inc. at the bid Erice of $198,815 (Project No. 893) Requested Action Staff requests the Council approve the attached resolution to award the demolition of 4200 and 4300 Xylon Avenue North to Landwehr Construction, Inc. at the bid price of $198,815. Policy/Past Practice It is city policy to have the Council approve the award to the low responsive bidder on any demolition projects. Background The Council had approved the city acquisition of 4200 and 4300 Xylon Avenue North on July 24. The properties have been the center of discussions regarding the redevelopment for the city center area for years. The city is currently in discussions with neighboring property owners and possible developers for the redevelopment of this area. The city engineer had established specifications for the demolition and hazardous materials removals from the site. Bid were opened on November 29 and there were ten companies that participated in the bid process. The low bidder was Landwehr Construction, Inc. with a bid price of $198,815. The city has utilized Landwehr for other projects and has been satisfied with their performance. Recommendation Staff and the city engineer recommend the Council award the contract for demolition of 4200 and 4300 Xylon Avenue North to Landwehr Construction, Inc. in the amount of $198,815.00. Funding The funding for this demolition can be from either TIF or EDA funds or a combination of both.. Attachments • Resolution • Stantec letter and bid tabulation Motion by O Second by To: A&j 20 l 9- J I:1RFAICOMM DEVIDeveclo ment\Q & R- Kmart Demo 12-10-2012.doc City of New Hope Resolution No. 2012- X75 Resolution accepting the low bid for demolition of 4200 and 4300 Xylon Avenue North from Landwehr Construction, Inc. at the bid price of $198,815.00 (Project No. 893) WHEREAS, the city of New Hope desires to pursue demolition of the buildings at 4200 and 4300 Xylon Avenue North the former Kmart and Wells Fargo Drive Thru facilities; and WHEREAS, the city engineer, Stantec, has prepared specifications and analyzed the submitted bids for the demolition; and WHEREAS, Landwehr Construction, Inc. has submitted the low responsive bid at $198,815.00. NOW, THEREFORE, BE IT RESOLVED that the City Council hereby accepts the low bid from Landwehr Construction, Inc. and authorized execution of the project contract. Adopted by the City Council of the city of New Hope, Hennepin County, Minnesota, this 101hday of December, 2012. 3 Attest: City Clerk Mayor stantec November 30, 2011 Stantec Consulting Services Inc. 2335 Highway 36 West a Paul MN 55113 Tel: (651) 636-4600 Fax (651) 636-1311 Honorable Mayor and City Council City of New Hope 4401 Xylon Ave. N New Hope, MN 55428 Re: .4200 & 4300 Xylon Avenue North Building Demolition City Project No. 893 Stantec Project No. 193801635 Bid Results Dear Honorable Mayor and City Council: Bids were opened for the Project stated above on November 29, 2012. Transmitted herewith is a copy of the Bid Tabulation for your information and file. Copies will also be distributed to each Bidder once the Project has been awarded. There were a total of 10 Bids. The following summarizes the results of the Bids received: The low Bidder on the Project was Landwehr Construction, Inc. with a Total Base Bid Amount of $198,815.00. This compares to the Engineer's Estimate of $500,000. These Bids have been reviewed and found to be in order. If the City Council wishes to award the Project to the low Bidder, then Landwehr Construction, Inc. should be awarded the Project on the Total Base Bid Amount of $198,815.00. Should you have any questions, please feel free to contact me at 651-604-4808. Sincerely, STANTEC CONSULTING SERVICES INC. a 0" 44w(u, Chris Long, P.E. Enclosure Ca,ntracinr Tata/ Base Bid Low Landwehr Construction, Inc. $198,815.00 #2 All Metro Excavating $213,570.00 #3 Veit & Company $236,066.00 #4 RL Larson Excavating, Inc. $322,583.75 #5 Frattalone Companies $331,494.10 #6 Fehn Companies, Inc. $335,362.00 #7 G Urban Companies, Inc. $383,576.00 #8 Carl Bolander & Sons Co. $398,600.00 #9 Kevitt Excavating, LLC $401,802.50 #10 Max Stelninger, Inc. $576,482.50 The low Bidder on the Project was Landwehr Construction, Inc. with a Total Base Bid Amount of $198,815.00. This compares to the Engineer's Estimate of $500,000. These Bids have been reviewed and found to be in order. If the City Council wishes to award the Project to the low Bidder, then Landwehr Construction, Inc. should be awarded the Project on the Total Base Bid Amount of $198,815.00. Should you have any questions, please feel free to contact me at 651-604-4808. Sincerely, STANTEC CONSULTING SERVICES INC. a 0" 44w(u, Chris Long, P.E. Enclosure I herebycerbly drat dras Kiran s acY Project Name: 4700 & 4300 Noon Averrue North Building Demolition Mwmtttbf7 of bAf6 mn#md Client Project No.: 893 Project No.: 193101635 r suBid Opening: Thursday,November 29 2012 at 10 A.M. CDT Owner: of Mw H 'v, dw0wherW. Long Lkerm No. 47106 item Num BIDTABULATION Item Units Qty Bidder Na 1 Landwehr Conadvctlon, b c. Unit Price Total Bidder No. 2 All Netro 1Sccarating Unit Price Total Bidder No, 3 Veit & Company, Inc. Unit Price Total Bidder No. 4 R.L. Larson Excavating, Inc. Unit Price Total Bidder No. 5 F#altalone Companles Unit Price Total BASE BID: 1 MOBILIZATION LS 1 $5,800.00 $5,800.00 $10,000.00 $10,000.00 $10,000.00 $10,000.00 $4,000.00 $4,000.00 $10,437.00 $10,437.00 2 TRAFFIC CONTROL LS 1 $350.00 $350.00 $200.00 $200.00 $1.00 $1.00 $1.00 $1.00 $1.044.00 $1,044.00 3 TEMPORARY 3ERSEY BARRIER (ACCESS CLOSURE) LF 50 $20.00 $1,000.00 $20.00 $1,000.00 $.20.00 $1,000.00 $24.00 $1,200.00 $11.50 $575.00 4 SECURITY FENCING INSTALLATION AND REMOVAL LS 1 $5,000.00 $5,000.00 $1,500.00 $1,500.00 $7,300.00 $7,300.00 $11,500.00 $11,500.00 $11,485.00 $11,485.00 5 42W XYLON AVENUE NORTH BUILDING DEMOLITION LS 1 $78,000.00 $78,000,00 $10,000.00 $10,000.00 $6,000.00 $6,000.00 $95,000.00 $95,000.00 $5,585.00 $5,585.00 6 4200 XYLAN AVENUE NORTH HAZARDOUS MATERIAL LS 1 $6,500.00 $6,500.00 $1,000.00 $1,000.00 $3,000.00 $3,000.00 $115,000.00 $115,000.00 $1,984.00 $1,984.00 7 4300 XYLAN AVENUE NORTH BUILDING DEMOLITION LS 1 $17,000.00 $17,D00,00 $100,000.00 $100,000.00 $115,000.00 $115,000.00 $8,000.00 $8,000.00 $79,240.00 $79,240.00 8 4300 XYLON AVENUE NORTH HAZARDOUS MATERIAL LS 1 $1,700.00 $1,700.00 $50,000.00 $50,000.00 $6,000.00 $6,000.00 $7,OW.00 $7,000.00 $107,521.00 $107,521.00 ABATEMENT 9 AGGREGATE BACKFILL (CRUSHED ONSITE) LS 1 $40,200.00 $40,200.00 $4,000.00 $4,000.00 $38,5W.00 $38,500.00 $40,0W.00 $40,000.00 $58,165.00 $58,165.00 10 COMMON FILL (LV) CY 400 $8.00 $3,200.00 $4.00 $1,600.00 $9.66 $3,864.00 $6.00 $2,400.00 $16.20 $6,480.00 11 REMOVE CURB AND GUTTER LF B50 $2.00 $1,700.00 $1.00 $850.00 $0.54 $459.00 $1.00 $850.00 $1.25 $1,052.50 12 REMOVE CURB AND GUTTER WIYELLOW LEAD PAINT LF 650 $4.00 $2,600.00 $2.00 $1,300.00 $2.30 $1,495.00 $2.00 $1,300.00 $2.65 $1,722.50 13 REMOVE TRANSITS PIPE LF 250 $15.00 $3,750.00 $20.00 $5,000.00 $14.00 $3,500.00 $10.00 $2,500.00 $28.70 $7,175.00 14 REMOVE CONCRETE SIDEWALK SF 8,200 $0.45 $3,690.00 $0.50 $4,100.00 $0.22 $1,BO4.00 $0.50 $4,100.00 $0.13 $1,066.00 15 REMOVE BITUMINOUS SURFACING Sy 3,000 $2.00 $6000.00 $2.65 $7,950.00 $2.17 $6,510.00 $2.00 $6,000.00 $1.15 $3,450.00 16 REMOVE RETAINING WALL LF 175 $5.00 $875.00 $1.00 $175.00 $1.24 $217.00 $0.01 $1.75 $2.10 $367.50 17 REMOVE LIGHT STANDARD AND FOOTING EA 15 $300.00 $4500.00 $75.00 $1,125.00 $45.00 $675.00 $201.00 $3,000.00 $104.50 $1,567.50 18 REMOVE CONCRETE BOLLARDS LS 1 $300.00 $300.00 $100.00 $100.00 $200.00 $200.00 $500.00 $500.00 $1.05 $1.05 19 BULKHEAD SANITARY SEWER PIPE EA 1 $600.00 $6W.00 $200.00 $200.00 $800.00 $800.00 $500.00 $500.00 $2,610.00 $2,610.00 20 PLUG WATER MAIN SERVICE EA 1 $600.00 $600.00 $1,650.00 $1,650.00 $1,035.00 $1,035.00 $1,200.00 $1,200.00 $2,610.00 $2,610.00 21 BULKHEAD STORM SEWER PIPE EA 12 $100.00 $1,200.00 $100.00 $1,200.00 $400.00 $4,800.00 MOO $2,400.00 $104.50 $1,254,00 22 OIL STORAGE TANK REMOVAL EA 1 $1,600.00 $1,600.00 $300.00 $300.00 $3,760.00 $3,760.00 $3,000.00 $3.OW.00 $3,654.00 $3,654.00 23 OIL/WATER SEPARATOR AND SAND AND OIL TRAP EA 1 $900.00 $9011.00 $300.00 $300.00 $1,430.00 $1,430.00 $500.00 $500.00 $522.00 $522.00 REMOVAL 24 TRANSPORTATION AND D191OSAL OF RESIDUAL FUEL GAL 500 $1.00 $500.013 $9.00 $4,500.00 $2.00 $1,00000 $5.00 $2,500.00 $7.30 $3,650.00 AND PETROLEUM SLUDGE 25 REMOVE KMART SIGN EA 1 $1,500.00 $1,5011.00 $300.00 $300.00 $1,400.00 $1,400.00 $500.013 $500.00 $522.00 $522.00 26 REMOVE ELECTRICAL TRANSFORMER EA 1 $100.00 $100.00 $25.00 $25.00 $1.00 $1.00 $1.00 $1.00 $1.05 $1.05 27 REMOVE ASH TREES LS 1 $750.00 $750.00 $500.00 $500.00 $1,500.00 $1,500.00 $2,500.00 $2,500.00 $2,088.00 $2,088.00 28 SALVAGE FENCE WITH SLATS LS 1 $1,500.00 $1,500.00 $500.00 $500.00 $2,070.00 $2,070.00 $$00.00 $800.00 $1,827.00 $1,827.00 29 SILT FENCE LF 500 $2.00 $1.000.00 $2.00 $1,000.00 $3.28 $1,640.00 $2.00 $1,000.00 $2.60 $1,300.00 30 INLET PROTECTION EA 15 $85.00 $1,275.00 $150.00 $2,250.00 $345.00 $5,175.00 $100.00 $1,500.00 $261.00 $3,915.00 31 TEMPORARY CONSTRUCTION ENTRANCE TN 80 $25.00 $2,000.00 $4.00 $320.00 $36.00 $2,880.00 $1.00 $80.00 $26.10 $2,088.00 32 STREET SWEEPER WITH POWER BROOM HR 25 $125.00 $25.00 $625.00 $122.00 $150.00 t3,ZW,00 $261.00 TOTAL BASE BID: $198,815.00 $213,570.00 $236,066.00 $322,583.75 $331,494.10 Contractor Name and Address: Landwehr Constnrcdon, Inc. All Metro Excavating Veit & Company RL Larson Excavating, Inc. Frattalone Companies 846 South 33rd Street 6730 207th Avenue NW 14WO Veit Place 2255 12th Street SE 3205 Spruce Street St. Cloud, MN 56301 Elk River, MN 55330 Rogers, MN 55374 St, Cloud. MN 56304 St. Paul. MN 55117 Phone: 320-252-1494 612-328-0341 763-428-2242 320-654-0709 651-484-0448 Fax 321-252-2380 612-234-4725 763-428-8348 320-654-1021 651-484-7839 Signed Or. Llan Landwehr Aaron VanSfckle Greg Boelke Douglas Moen Nick Fratakme Title: CEO President President Vice President CEO Bid Secufty. Bid Bond Bid Bond Bid Bond Bid Bond Bld Bond Addenda Acknowledged: A, B A, B A, B A, B A, B 193801635E UIS BT -1 Item Num BID TABULATION Item Units QtV Bidder No. 6 Fehn Companies, Inc Unit Price Total Bidder No. 7 G Urban Companies, Inc. Unit Price Total Bidder No. 8 Carl Boiander & Sons Co. Unit Price Tota! Bidder No. 9 Kevitt Excavating, LLC Unit Price Total Bidder No. 10 Max Steininger, Inc Unit Price Total BASE BID: 1 MOBILIZATION LS 1 $7,500.00 $7,500.00 $10,000.00 $10.000.00 $10,000.00 $10,000.00 $10,000.00 $10,000.00 $15,850.00 $15,850.00 2 TRAFFIC CONTROL LS 1 $1,000.00 $1,000.00 $2,000.00 $2,000.00 $2,000.00 $2,000.00 $1,500.00 $1,500.00 $535.00 $535.00 3 TEMPORARY JERSEY BARRIER (ACCESS CLOSURE) LF 50 $10.00 $500.00 $60.00 $3,000.00 $20.00 $1,000.00 $40.00 $2,000.00 $15.00 $750.00 4 SECURITY FENCING INSTALLATION AND REMOVAL LS 1 $13,000.00 $13,000.00 $18,000.00 $18,000.00 $12,000.00 $12,000.00 $5,000.00 $5,000.00 $10,000.00 $10,000.00 5 4200 XYLON AVENUE NORTH BUILDING DEMOLITION LS 1 $8,000.00 $6,000.00 $18,000.00 $18.000.00 $12,000.00 $12.000.00 $15,000.00 $15,000.00 $14,450.00 $14,450.00 6 4200 XYLON AVENUE NORTH HAZARDOUS MATERIAL LS 1 $4835.00 $2,835.00 $2,000.00 $2,000.00 $2,900.00 $2,900.00 $2,500.00 $2,500.00 $1,070.00 $1,070.00 7 4300 XYLON AVENUE NORTH BUILDING DEMOLITION LS 1 $121,827.00 $121,827.00 $265,000.00 $265,000.00 $168,000.00 $168,000.00 $150,600.00 $150,600.00 $255,000.00 $255,000.00 8 4300 XYLAN AVENUE NORTH HAZARDOUS MATERIAL LS 1 $129,500.00 $129,500.00 $500.00 $500.00 $109,980.00 $109,980.00 $125,000.00 $125,000.00 $103,000.00 $103,000.00 ABATEMENT 9 AGGREGATE BACKFILL (CRUSHED ONSITE) LS 1 $3,000.00 $3,000.00 $LAO $1.00 $15,000.00 $15,000.00 $33,000.00 $33,000.00 $106,000.00 $106,000.00 10 COMMON FILL (LV) CY 400 $4.50 $1,800.00 $1.00 $400.00 $15.00 $6,000.00 $8.00 $3,200.00 $5.25 $2,100.00 11 REMOVE CURB AND GUTTER LF 850 $2.50 $2,125.00 $5.00 $4,250.00 $3.00 $2,550.00 $1.00 $850.00 $1.75 $1,487.50 12 REMOVE CURB AND GUTTER W/YELLOW LEAD PAINT TF 650 $4.00 $2,606.00 $12.00 $7,800.00 $4.50 $2,925.00 $6.00 $3,900.00 $4.60 $2,990.00 13 REMOVE TRANSITE PIPE LF 250 $10.00 $2,500.00 $20.00 $5,000.00 $15.00 $3,750.00 $12.00 $3,000.00 $20.00 $5,000.00 14 REMOVE CONCRETE SIDEWALK SF 8,200 $0.75 $6,150.00 $1.00 $8,200.00 $0.75 $5,150.00 $0.50 $4,100.00 $0.50 $4,100.06 15 REMOVE BITUMINOUS SURFACING SY 3,000 $3.00 $9000.00 $1.00 $3,000.00 $2.50 $7,500.00 $2.70 $8,100.00 $2.35 $7,050.00 16 REMOVE RETAINING WALL LF 175 $4.00 $700.00 $1.00 $175.00 $10.00 $1,750.00 $7.50 $1,312.50 $8.00 $1,400.00 17 REMOVE LIGHT STANDARD AND FOOTING EA 15 $150.00 $2,250.00 $100.00 $1,500.00 $200.00 $3,000.00 $350.00 $5,250.00 $150.00 $2,250.00 18 REMOVE CONCRETE BOLLARDS LS 1 $1,000.00 $1.000.00 $2,000.06 $2.000.00 $2,000.00 $2,OOD.00 $3,000.00 $3,000.00 $1,650.00 $1,650.00 19 BULKHEAD SANITARY SEWER PIPE EA 1 $900.00 $900.00 $500.00 $500.00 $900.00 $900.00 $1,500.00 $1,500.00 $750.00 $750.00 20 PLUG WATER MAIN SERVICE EA i $900.00 $900.00 $2,000.00 $2,ODO.DO $1,000.00 $1,000.00 $1,500.00 $1,500.00 $960.00 $960.00 21 BULKHEAD STORM SEWER PIPE EA 12 $150.00 $1,800.00 $500.00 $6.000.00 $390.00 $4,680.00 $100.00 $1,200.00 $380.00 $4,560.00 22 OIL STORAGE TANK REMOVAL EA 1 $500.00 $500.00 $500.00 $500.00 $6,000.00 $6,000.00 $2,500.00 $2,500.00 $7,300.00 $7,300.00 23 OILIWATER SEPARATOR AND SAND AND OIL TRAP EA I $500.00 $500.00 $500.00 $500.00 $750.00 $750.00 $750.00 $750.D0 $8,600.00 $8,600.00 REMOVAL 24 TRANSPORTATION AND DISPOSAL OF RESIDUAL FUEL GAL 500 $5.00 $2,500.00 $5.00 $2,500.00 $6.00 $3,000.00 $4.00 $2,000.00 $4.30 $2,150.00 AND PETROLEUM SLUDGE 25 REMOVE KMART SIGN IA 1 $850.00 $850.00 $1,000.00 $11000.00 $250.00 $250.00 $500.00 $500.00 $2,200.00 $2,200.00 26 REMOVE ELECTRICAL TRANSFORMER EA 1 $500.00 $500.00 $2,000.00 $2,000.00 $1,000.00 $1,000.00 $250.00 $250.00 $2,000.00 $2,000.00 27 REMOVE ASH TREES LS 1 $500.00 $500.00 $2,500.00 $2,500.00 $2,000.00 $2,000.00 $1,500.00 $1,5DO.00 $2,000.00 $2.000.00 28 SALVAGE FENCE WITH SLATS LS 1 $750.00 $750.06 $3000.00 $3,000.00 $700.00 $700.00 $500.00 $500.00 $1,330.00 $1,330.00 29 SILT FENCE LF 500 $3.00 $1,500.00 $5.00 $2,500.00 $3.00 $1,500.00 $4.00 $2,000.00 $2.35 $1,175.00 30 INLET PROTECTION EA 15 $250.00 $3,750.00 $300.00 $4,500.00 $250.00 $3,750.00 $250.00 $3,750.00 $270.00 $4.050.00 31 TEMPORARY CONSTRUCTION ENTRANCE TN BO $25.00 $2,000.00 $50.00 $4.000.00 $18.00 $1,440.00 $38.00 $3,040.00 $20.00 $1,600.00 32 STREET SWEEPER WITH POWER BROOM HR 25 $125.00 93,125.00 $50.00 S1,250,00 $125.00 93,125.00 $140.00 $3,500.00 $125.00_n.125.00 TOTAL BASE BID: $335,362.00 $383,576.00 $398,600.00 $401,802.50 $576,482.50 Contractor Name and Address: Fehn Companies, Inc. G Urban Companies, Inc. Carl Bolardter !k Sons Co. Kevitt Excavating, LLC Max Steininger Inc. PO Boot 246, 5050 Barthel Ind. Dr. 3781 Labore Road 251 Starkey Street 3335 Pennsylvania Ave. N 3080 Lexington Avenue S Albertville. MN 55309 St. Paul. MN 55110 St. Paul. MN 55107 Crvstal. MN 55427 Eanan. MN 55121 Phone: 793-497-2428 651-248-9830 651-224-6299 763-545-3557 651-454-6620 Fax 763-497-3893 651-426-3554 651-223-8197 763-545-5235 651-454-6716 Signed By: Joe Landkammer Greg Urban Mark R. Ryan Scott Kevitt Greg Steininger Title: Estimater Owner President Owner President Old Security- Bid Bond Bid Bond Bid Bond Bid Band Bid Band Addenda Acknowledged: A, B A, S A, B A, B A, B 19389105EMA5 BT -2 GORAON L. JENSEN' MRIs nr. P. PERSELLIN" STEVEN A.SONDRALL STACYA. WOODS[ [Real Property Law Specialist Cetif ed By The Minnesota Stare Bar Association 'Licensed in P.linoislColorado 'Qualified Neutra Mediator under Rule 1:4 JENSEN SONDRALL & PERSELLIN, P.A. Attorneys At Law 8525 EDINBROOK CROSSING, STE. 201 BROOKLYN PARK, MINNESOTA 55443-1968 TELEPHONE (763) 424-8811 $ TELEFAX (763) 493-5193 e-mail law@j spattorneys.com January 10, 2013 Valerie Leone City Cleric City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 Re: 4200/4300 XyIon Ave. N. Building Demolition City Project NO.: 893 Our File No.: 99.10030 Dear Val: Writer's Direct Dial No.: (763) 201-0211 e-mail sas@jspattorneys.com personal delivery Enclosed please find tour copies of the contract and bonds for the referenced project, as well as the Certificate of Insurance received from Landwehr Construction., Inc. All are in order from a legal standpoint. Please call me if you have any questions. Very truly yours, �jL Steven A. Sondrall, City Attorney, City of New Hope Enclosures cc: Curtis Jacobsen, Community Development Director Guy Johnson, Public Works Director Chris Long, City Engineer P:1Attoruey\SAS51 Client Filesl City ofNew Hope199-1003D (aiblic Wu:ks general)V-eone ltrK-mari demolition prof 893.doc December 11, 2012 Mr. Dan Landwehr Landwehr Construction, Inc. 846 South 33'd Street St. Cloud, MN 56301 Re: City of New Hope, Minnesota 4200 & 4300 Xylon Avenue North Building Demolition City Project No. 893 Stantec Project No. 193801635 Notice of Award/Contract Documents Dear Mr. Landwehr: You are notified that your Bid dated November 29, 2012 for the above -referenced Project has been considered. You are the successful Bidder and are awarded a Contract for the amount of $198,815.00 for the Total Base Bid. Enclosed are 4 Contract Documents between you and the City of New Hope covering the above -referenced Project. Please complete Specification Document 00 52 10 Agreement Form, Document 00 6113.13 Performance Bond, and Document 00 6113.16 Payment Bond. The insurance and indemnity requirements shall be provided. After the bonding company has completed the Contract Documents, forward them to the attorney listed below who will review them for the City of New Hope: Mr. Steven Sondrall Jensen, Swanson & Sondrall, P.A. 8525 Edinbrook Crossing, Ste 201 Brooldyn Park, MN 55443-1999 After the necessary officials have signed the Contracts, the City will distribute the Contracts as follows: 2 copies Landwehr Construction, Inc. (1- your file, 1 - your bond company) 1 copy City of New Hope, Attention: Valerie Leone 1 copy Stantec, Attention: Chris Long Upon receipt of a signed Contract and a filed Certificate of Insurance, approved by the City of New Hope's attorney, a pre -construction conference will be scheduled with you and the City of New Hope to review the Project. Sincerely, STANTEC CONSULTING SERVICES INC. 4�405_ Chris Long, P.E. Enclosures: Four Contract Documents cc: Valerie Leone, City of New Hope Steve Sondrall, Clty Attorney Stantec Consulting Services Inc. 2335 Highway 36 West St. Paul MN 55113 Tel: (651) 636-4600 Fax: (651) 636-1311 sbnftc December 11, 2012 Mr. Dan Landwehr Landwehr Construction, Inc. 846 South 33'd Street St. Cloud, MN 56301 Re: City of New Hope, Minnesota 4200 & 4300 Xylon Avenue North Building Demolition City Project No. 893 Stantec Project No. 193801635 Notice of Award/Contract Documents Dear Mr. Landwehr: You are notified that your Bid dated November 29, 2012 for the above -referenced Project has been considered. You are the successful Bidder and are awarded a Contract for the amount of $198,815.00 for the Total Base Bid. Enclosed are 4 Contract Documents between you and the City of New Hope covering the above -referenced Project. Please complete Specification Document 00 52 10 Agreement Form, Document 00 6113.13 Performance Bond, and Document 00 6113.16 Payment Bond. The insurance and indemnity requirements shall be provided. After the bonding company has completed the Contract Documents, forward them to the attorney listed below who will review them for the City of New Hope: Mr. Steven Sondrall Jensen, Swanson & Sondrall, P.A. 8525 Edinbrook Crossing, Ste 201 Brooldyn Park, MN 55443-1999 After the necessary officials have signed the Contracts, the City will distribute the Contracts as follows: 2 copies Landwehr Construction, Inc. (1- your file, 1 - your bond company) 1 copy City of New Hope, Attention: Valerie Leone 1 copy Stantec, Attention: Chris Long Upon receipt of a signed Contract and a filed Certificate of Insurance, approved by the City of New Hope's attorney, a pre -construction conference will be scheduled with you and the City of New Hope to review the Project. Sincerely, STANTEC CONSULTING SERVICES INC. 4�405_ Chris Long, P.E. Enclosures: Four Contract Documents cc: Valerie Leone, City of New Hope Steve Sondrall, Clty Attorney LANDWEHR CONSTRUCTION, INC. P.O. Box 1086 St. Cloud, MN 56302 (320) 252-1494 (320) 252-2380 FAX TO: Jensen, Swanson & Sondrall, P.A. 8525 Edinbrook Crossing, Ste 201 Brooklyn Park, MN 55443-1999 WE ARE SENDING YOU ®ATTACHED LETTER OF TRANSMITTAL Date 12/19/12 1 Job No. 3102 Attention Steven Sondrall Re: City of New Hope, MN 4200 & 4300 X Ion Ave No Building Demolition QUNDER SEPARATE COVER THE FOLLOWING ITEMS SHOP DRAWINGS PRINTS PLANS SAMPLES COPY OF LETTER CHANGE ORDER SPECIFICATIONS DESCRIPTION—_Contract Focuments THESE ARE TRANSMITTED AS CHECKED BELOW: FIFOR APPROVAL APPROVED AS SUBMITTED RESUBMIT COPIES FOR APPROVAL FOR YOUR USE APPROVED AS NOTED SUBMIT COPIES FOR DISTRIBUTION F�AS REQUESTED RETURNED FOR CORRECTIONS RETURN CORRECTED PRINTS FIFOR REVIEW & COMMENT n For your review ❑ FOR BIDS DUE '19— FIFOR YOUR SIGNATURE REMARKS As requested, enclosed are the Contract Documents for your review. Please let us know if you need anything else. Thankyou! COPY TO File SIGNED: Sue Watkins, Contract Admin. Home (1) Search (Business/Search) Search » Business Filings Filings (/Business/Filings) Back to Search Results Business Record Details » ..............._._.____._......_..._......._..._...............--.---_____ .. Mnnesote Business Name Landwehr Construction, Inc. Business Type Business Corporation (Domestic) File Number W-249 Filing Date 09/01/1959 Renewal Due Date: 1213112013 Number of Shares 15,000 Chief Executive Officer Daniel Landwehr 646 S 33 Sir S St Cloud MN 56301 USA Filing History Renewal History Filing History MN Statute 302A Home Jurisdiction Minnesota Status Active 1 In Good Standing Registered Office Address 846 33rd Sir S St Cloud MN 56301 USA Registered Agent(s) (Optional) None provided Principal Executive Office Address 846 S 33 Sir S St Cloud MN 56301 USA 09/01/1959 Original Fling - Business Corporation (Domestic) 09/01/1959 Business Corporation (Domestic) Business Name 10/28/1969 Amendment - Business Corporation (Domestic) 11 /19/1969 Business Corporation (Domestic) Change of Shares 11/19/1969 Business Corporation (Domestic) Change of Shares 07/31/1980 Registered Office and/or Agent - Business Corporation (Domestic) 07/31/1980 Business Corporation (Domestic) Business Name 09117/1980 Business Corporation (Domestic) Active Status Report 12/24/1987 Business Corporation (Domestic) Change of Shares 03/16/1993 Business Corporation (Domestic) Business Name 05/02/1994 Consent to Use of Name - Business Corporation (Domestic) 11/26/1996 Registered Office and/or Agent - Business Corporation (Domestic) 10/24/2003 Business Corporation (Domestic) Restated Articles 10/24/2003 Business Corporation (Domestic) Change of Shares Office of the MN Secretary of State Home Page Rittp://www.sos.state.mn.us) System Requirements The MBIS application works with the following web browsers: a Microsoft Internet Explorer (version 7+) Mozilla Pirefox (version 3.5+) • Apple Safari (version 3+) • Google Chrome Copyright 2011 1 Secretary of State of Minnesota I All dghtsreserved Additional MBIS Information Terms & Conditions (http://www.sos.state.mn.us/index.a page=1667) Contact Us (http://www.sos.state.mn.us/index.a page=42) Frequently Asked Questions (FAQ) (http://www.sos.state.mn.us/inciex.a page= 12) � h r January 15, 2013 Mr. Dan Landwehr Landwehr Construction, Inc. 846 South 33rd Street St. Cloud, MN 56301 Subject: 4200 and 4300 Xylon Avenue building demolition — project 893 At its meeting of December 10, 2012, the New Hope City Council approved the contract with your company for project no. 893 for $198,815. Enclosed please find two contract documents. Please submit one to your bonding company. Also enclosed is a Withholding Affidavit for Contractors/IC-134 form (we cannot make final payment to contractors until this is approved by the Minnesota Department of Revenue and submitted to our office per Minnesota Statute 290.97). Please contact Chris Long at Stantec at 651-604-4938 if you have any questions regarding the project. Sincerely, Valerie Leone City Clerk, CMC Enclosures — Contract, IC -134 cc: Curtis Jacobsen, director of community development Chris Long, city engineer CITY OF NEW HOPE 4401 Xylon Avenue North • New Hope, Minnesota 55428-4898 • www. ci.new-hope.mn.us City Hall: 763-531-5100 • Police (non -emergency): 763-531-5170 • Public Works: 763-592-6777 * TDD: 763-531-5109 City Hall Fax: 763-531-5136 * Police Fax: 763-531-5174 • Public Works Fax: 763-592-6776 CONTSACT t)OCUtAF ; Project Manual For 4200 & 4300 Xylon Ave. N. Building Dernolition City of New Hope, Minnmota Cii y Proj # Ila 893 November 2012 ��►� Project N0. 193801635 DOCUMENTS (''lian4lt- -M2d LANncANI ACORD. CERTIFICATE OF LIABILITY INSURANCE DATE (NIMIDEVYYYY) 12►19IZD12 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER MN -COMMERCIAL LINES COBB STRECKER DUNPHY & ZIMMERMANN 150 S FIFTH ST STE 2800 MINNEAPOLIS, MN 55402 CONTACT NAME, PHONt: 612349 2400 No, 612 349 2490 AIC N Ext E-MIUL ADDRUNO INSURER AFFORDING COVERAGE NAIL# INSURER A. ZURICH AMERICAN INSURANCE COMPA INSURED INSURERS: STARR INDEMNITY 8r LIABILITY COM LANDWEHR CONSTRUCTION INC INSURER CAMERICAN GUARANTEE & LIAB INS PO BOX 1086 GENERAL AGGREGATE x2,000,000 ST CLOUD, MN 56302 INSURER 0: INSURER E: INSURER F: AUTOMOBILE X X COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR TYPE OF INSURANCE INSR ADD BUSH WVO POLICY NUMBER MMIDD EFF MMILDIG Y LIMITS A GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITYRAMW CLAIMS -MADE N OCCUR X XCU X CONTRACTUAL LIAB GLOS34529207 D313112012 03/31/207 EACH OCCURRENCE 51,000,000 N mote s300,000 fia MED EXP one mon $10,000 PERSONAL A ADV INJURY $1,000,000 GENERAL AGGREGATE x2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY X PRO LOC PRODUCTS -COMPIOPAGG 52,000,000 $ C AUTOMOBILE X X LIABILITY ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS NON -OWNED HIRED AUTOS X AUTOS BAP534529107 3131/20120313112013COMBINED SINGLE LIMIT 1,000,000 Ee ecrJdent BODILY INJURY (Per pemon) $ BODILY INJURY (Per eccldeM) 5 PROPERTY DAMAGE Per eecbent $ B X UMBRELLA UAB EXCESS LIM X OCCUR CLAMS -MADE SISCCCL01771112 0313112012 03/3112013 EACH OCCURRENCE s5,000,000 AGGREGATE $5,000,000 DED X RETENTION so S A VIORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PEROIMIMBEREXAR UDEE Ei ECUTIVE� OFF(Mandatory in NH) D RIPTION OF OPERATIONS below N 1 A WC534529307 3/31/2012 03!311201 X WC STLA OTH- E.L. EACH ACCIDENT $11,001111,000 E.L. DISEASE - EA EMPLOYEEI $11,088 000 E.L. DISEASE - POLICY LIMIT 51,000,000 DEBCR§rnoN OF OPERATIONS I LOCATIONS I VEHICLES (Anach ACORD 101, Addldanol Remarks Schedule, It more apace In required) 4200 S 4300 XYLON DEMOLITION, CITY PROJECT NO. 893 ADDITIONAL INSURED ONLY IF REQUIRED BY WRITTEN CONTRACT WITH RESPECT TO GENERAL LIABILITY, AUTOMOBILE LIABILITY AND UMBRELLA LIABILITY APPLIES ON A PRIMARY BASIS AND THE INSURANCE OF THE ADDITIONAL INSURED SHALL BE NON-CONTRIBUTORY: CITY OF NEW HOPE AND PROJECT ENGINEER (See Attached Descriptions) CITY OF NEW HOPE CITY HALL 4401 XYLON AVE N NEW HOPE, MN 55426 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE 01988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) 1 of 2 The ACORD name and logo are registered marks of ACORD 084927761M457102 VLH DESCRIPTIONS (Continued from Page 1) The following supersedes the cancellation wording: Should any of the above described policies be cancelled or materially changed before the expiration date, 30 Days written notice (10 Days for Non -Payment) will be delivered to the certificate holder. SAGITTA 25.3 (2010105) 2 of 2 #S4927761M457102 DOCUMENT 00 91 13 ADDENDUM B 4200 & 4300 XYLON AVENUE DEMOLITION CITY PROJECT NO. 893 STANTEC PROJECT NO. 193801635 NEW HOPE, MINNESOTA November 27, 2012 Number of Pages: 9 (includes this sheet) To: All Planholders of Record From: Stantec 2335 Highway 36 West St. Paul, Minnesota 55113 (651) 636-4600 — General Office (651) 255-3960 — Andrew Werner, Project Manager The following changes, additions, and deletions are hereby made a part of the Bidding Documents. Bidder shall acknowledge receipt of this Addendum on the Bid Form. Failure to do so may result in rejection of the Bid. Please acknowledge receipt of this Addendum by signing and faxing this page back to Stantec at Fax No. (651) 636-1311 as soon as you receive it, Em ADDENDUM B ® 2012 Stantec 1193801635 OD 9113 - 1 DOCUMENT 00 4110 — BID FORM 1. Delete this Document in its entirety and add the attached Document. SECTION 02 4113 — SELECTIVE SITE DEMOLITION 1. Page 02 4113-1, Article 1.02.A.2. Add the following items immediately before Item 3: s. Remove Curb and Gutter w/Yellow Lead Paint: measurement is by lineal foot, and shall include all costs for removal and disposal of curb and gutter with lead paint. t. Remove Transite Pipe: measurement is by lineal foot, and shall include all costs for removal and disposal of transite pipe. u. Transportation and Disposal of Residual Fuel and Petroleum Sludge: measurement is per gallon. It is assumed that the tank removals may contain approximately 500 gallons of Residual Fuel and Petroleum Sludge SECTION 02 4116 — STRUCTURE DEMOLITION Page 02 4116-1, Paragraph 1.02A. Add the following new item immediately after Item 2. 3. The bid item for Aggregate Backfill {Crushed Onsite} shall include all work to restore and finish grade the demolition site areas with a minimum of 4 inches aggregate backfill above grade. Suitable aggregate backfill may be recycled or hauled onsite material conforming to MnDOT Spec. 3138, Class 5 or Class 7. All excess aggregate backfill material must be hauled offsite. 2. Page 02 4116-1, Article 1.02.A.1. Replace as shown below: 1. Bid Items have been provided for Structure Demolition for each structure to be removed. Payment at the Bid Unit Price will be considered compensation in full for all Work and costs necessary to complete the Bid Item in full, including materials, labor, tools, equipment, and other incidentals necessary to complete the specified operation, including removal, salvage, storage or disposal of materials and Site restoration. The Structure Demolition bid items shall also include the removal of all concrete, footings, and associated materials for the following structures as shown on the Drawings: a. Removal of the truck docks b. Removal of the former Big Lots c. Removal of the former K -Mart d. Removal of the former Garden Shop e. Removal of the former Wells Fargo Building 3. Page 02 4116-4, Article 1.07F. Replace as shown below: F. Crushed concrete materials suitable for use as recycled aggregate, conforming to MnDOT Spec. 3138, Class 7. Recycled materials shall be crushed onsite to meet the gradation for Class 7 as shown in Table 3138-2, MnDOT Standard Specifications. The crushed concrete shall not contain deleterious materials. Excess material becomes the property of the Contractor and shall be removed from the site. LIST OF ATTACHMENTS 1. Document 00 4110 — Revised Bid Form. END OF DOCUMENT -- ADDENDUM 0 © 2012 Stantec 1193801635 009113-2 THIS BID IS SUBMITTED TO; City of New Hope City Hall 4401 Xylon Avenue N New Hope, MN 55428 BIDDER: DOCUMENT 00 4110 REVISED BID FORM REVISED BY ADDENDUM NO. B 4200 R 4300 XYLON DEMOLITION CITY PROJECT NO. 843 PROJECT NO. 193801635 NEW HOPE, MINNESOTA 2012 1.01 The undersigned Bidder proposes and agrees, if this Bid is accepted, to enter into an Agreement with Owner In the form included in the Bidding 'Documents to perform all Work as speedied or indicated In the Bidding Documents fir the prices and wlthln the times indicated in this Bid and In accordance with the other tmsrrns and conditions of the Bidding Documents. 2.01 Bidder accepts all of the terms and conditions of the Instructions to Bidders, including without limitation those dealing with the disposition of Bid Security. The Bid will remain subject to acceptance for 60 days after the Bid Opening, or far such longer period of time that Bidder may agree to in writing upon request of Owner. 3.01 In submitting this Bid, Bidder represen that: A. Bidder has examined and carefully studied the Bidding Documentr6 the other related data identified in the Bidding Documents, and the following Addenda, receipt of all which is hereby acknowledged: Addendum No. - B. Bidder has visited the Site and become familiar with and Is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. Bidder is familiar with and Is satisfied as m all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. Bidder has carefully studied all: (1) reports of explorations and tests of subsurface conditions at, or contiguous to, the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at, or contiguous to, the Site (except Underground Facilities) which have been identified in SC -4.02, and (2) reports and drawings of Hazardous Environmental Conditions that have been identified in SC -4.06. ® 2012 Stantac 119330105 REVISED BY ADDENDUM B DD 4110 -1(R) REVISED BID FORM E. Bidder has obtained and carefully studied (or accepts the consequences for not doing so) all additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surfaoe, subsurface, and Underground Facilities) at, or contiguous to, the Site which may affect cost, progress, or performance of the work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by Bidder, including applying the specific means, methods, techniques, sequences, and procedures of construction expressly required by the Bidding Documents to be employed by Bidder, and safety precautions and programs incident thereto. F. Bidder does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the determination of this Bid for performance of the Work at the price(s) Bid and within the times and in accordance with the other terms and conditions of the Bidding Documents. G. Bidder Is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Bidding Documents. H. Bidder has correlated the information known to Bidder, information and observations obtained from visits to the Site, reports and drawings identified in the Bidding Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Bidding Documents. I. Bidder has given Engineer written notice of all conflicts, errors, amblgulties, or discrepancies that Bidder has discovered in the Bidding Documents, and the written resolution thereof by Engineer is acceptable to Bidder. J. The Bidding Documents are generally sufficient to indicate and convey understanding of all terms and conditions for the performance of the Work for which this Bid is submitted. K. Bidder will submit written evidence of its authority to do business in the state where the Pr9ject Is located not later than the date of its execution of the Agreement. 4.01 Bidder further represents that. A. The prices in this Bid have been arrived at Independently, without consultation, communication, or agreement as to any matters relating to such prices with any other Bidder or with any competitor for the purpose of restricUng competition. The prices in this Bid have not or will not be knowingly disclosed to any other Bidder or competitor prior to opening of the Bids. No attempt has been made or will be made by the Bidder to Induce any other person or firm to submit or not to submit a Bid for the purpose of restricting competition. 4.02 Bidder understands that the law may require the Owner, or Engineer at the Owner's direction, to undertake an investigation and submit an evaluation concerning Bidder's responsiveness, responsibility, and qualifications before awarding a contract. Bidder hereby waives any and all claims, of whatever nature, against Owner, Engineer and their employees and agents, which arise out of or relate to such Investigation and evaluation, and statements made as a result thereof, except for statements that can be shown by dear and convincing evidence to be Intentionally false and made with actual malice. Nothing In this paragraph is intended to restrict Bidder's rights to challenge a contract pursuant to law. 0 2012 Stantec 1193801635 REVISED BY ADDENDUM B 00 4110 - 2(R) REVISED BID FORM 5.01 Bidder will complete the Work In accordance with the Contract Documents for the fallowing price(s): 0 2012 SWAM 11MWI635 REVISED BY ADDENDUM B 00 4110.3(R) REVISED BID FORM All specific cash allowances are included in the price(s) set forth below and have been computed in accordance with Paragraph 11.02 of the General Conditions. Unit Prices have been computed in accordance with Paragraph 11.03.6 of the General Conditions Bidder acknowledges that estimated quantities are not guaranteed, and are solely for the purpose of comparison of Bids, and final payment for all Unit Price Bid Items will be based on actual quantities provided, determined as provided In the Contract Documents. No. item Units Qty Unit Price Total Price BASE BID: 1 MOBILIZATION LS 1 $ $ 2 TRAFFIC CONTROL LS 1 $ $ 3 TEMPORARY JERSEY BARRIER (ACCESS LF 50 $ CLOSURE) 4 SECURITY FENCING INSTALLATION AND LS 1 $ $ REMOVAL 5 4200 XYLON AVENUE NORTH BUILDING LS 1 $ $ DEMOLITION 6 4200 XYLON AVENUE NORTH HAZARDOUS LS 1 $ $ MATERIAL ABATEMENT 7 4300 XYLON AVENUE NORTH BUILDING LS 1 $ $ ' DEMOLITION 8 4300 XYLON AVENUE NORTH HAZARDOUS LS 1 $ $ MATERIAL ABATEMENT 9 AGGREGATE BACKFILL (CRUSHED ONSITE) LS 1 $ $ 10 COMMON FILL (LV) CY 400 _ 11 REMOVE CURB AND GUTTER LF 850 S,. J $ 12 REMOVE CURB AND GUTTER W/YELL OW LEAD LF 650 TF, PAINT 13 REMOVE TRANSIfE PIPE LF 250 14 REMOVE CONCRETE SIDEWALK SF 8,200 15 REMOVE BITUMINOUS SURFACING SY 3,000 $ $ 16 REMOVE RETAINING WALL LF 175 $ $ 17 REMOVE LIGHT STANDARD AND FOOTING EA 15 $ _ _ — $ 0 2012 SWAM 11MWI635 REVISED BY ADDENDUM B 00 4110.3(R) REVISED BID FORM NeI, Item Units Unit Price Ta W-1 Psi 18 REMOVE CONCRETE BOLLARDS LS 1 $ 19 BULKHEAD SANITARY SEWER PIPE EA 1� . 20 PLUG WATER MAIN SERVICE EA 1 $ $ . 21 BULKHEAD STORM SEWER PIPE EA 12 11, $ 22 OIL STORAGE TANK REMOVAL EA 1 $ 23 OIL/WATER SEPARATOR AND SAND AND OIL EA 1 $ . $ TRAP REMOVAL 24 TRANSPORTATION AND DISPOSAL OF RESIDUAL GAL 500 FUEL AND PETROLEUM SLUDGE 25 REMOVE KMART SIGN EA 1 $ $ — 26 REMOVE ELECTRICAL TRANSFORMER EA 1 5 $ 27 REMOVE ASH TREES LS 1 $ .. 28 SALVAGE FENCE WITH SLATS LS 1 29 SILT FENCE LF 500 $ 30 INLET PROTECTION EA 15 $ 31 TEMPORARY CONSTRUCTION ENTRANCE TN 80 32 STREET SWEEPER WITH POWER BROOM HR 25 TOTAL E BID: $ , ® 2012 Sbntec 1193801635 REVISED BY ADDENDUM B 00 4110 - 4(R) REVISED BID FORM 6.01 Bidder agrees that the Work will be Substantially Completed and completed and ready for Final Payment in accordance with Paragraph 14.07.8 of the General Conditions on or before the dates or within the number of calendar days indicated in the Agreement. 6.02 Bidder accepts the provisions of the Agreement as to liquidated damages In the event of failure to complete the Work within the times specified above, which shall be stated in the Agreement 7.01 The following documents are attached to and made a condlUon of this Bid: A. Required Bid Security in the form of 5 percent. 8.01 The terms used in this Bid with initial capital letters have the meanings stated in the Instructions to Bidders, the General Conditions, and the Supplementary Conditions. If Bidder Is: An Individual SUBMITTED on Name (typed or printed): By: (SEAL) (Individual's signature) Doing business as: Business Street Address; (No P.O. Box #'s): Phone No.: Fax No.: 02012 Stmntec 119MI B35 REVISED BY ADDENDUM B 00 4110 - 5 (R) REVISED BID FORM A Partnership A Comoration Partnership Name: By: -- (Signature of general partner) Name (typed or printed): Business Street Address (No P.O. Box Ws): Phone No.: Fax No.: Corporation Name: (SEAL) State of Incorporation: Type (General Business, Professional, Service, Limited Liability): By: (Signature) Name (typed or printed): Title: Attest (Signature of Corporate Secretary) Business Street Address (No P.O. Box Vs): Phone No.: Fax No.. (CORPORATE SEAL) ® 2012 StaMc 11s©eo1635 REVISED BY ADDENDUM B 00 4110 - 6 (R) REVISED BID FORM A Joint Venture Joint Venture Name: {SEAL) M (Signature of joint venture partner) Name (typed or printed): Title: Business address: Phone No.: _ Fax No.: . Joint Venturer Name: (SEAL) By: Name (typed or printed): _ Business Street Address (No P.O. Box #'s): Phone No.: Fax No.: Phone and Fax Number, and Address for receipt of official communications: (Each joint venturer must sign. The manner of signing for each individual, partnership, and corporation that is a party to the joint Venture should be in the manner indicated above). END OF DOCUMENT 02012 Stantec1193801985 REVISED BY ADDENDUM B OD 4110 - 7 (R) REVISED BID FORM DOCUMENT 00 91 13 ADDENDUM A 4200 & 4300 Xylon Ave. N. Building Demolition STANTEC PROJECT N0, 193801635 New Hope, MINNESOTA November 21, 2012 Number of Pages; 83 (includes this sheet) To: All Planholders of Record From: Stantec 2335 Highway 36 West St. Paul, Minnesota 55113 (651) 636-4600 — General Office (651) 255-3960 — Andrew Riemer, Project Manager The following changes, additions, and deletions are hereby made a part of the Bidding Documents. Bidder shall acknowledge receipt of this Addendum on the Bid Form. Failure to do so may result in rejection of the Bid. Pkease acknowledge receipt of this Addendum by signing and fa)ang this page back to Stantec at Fax No. (651) 636-1311 as soon as you receive It. ADDENDUM 0 2012 Stantec 1193801635 00 91 1 d A DOCUMENT 00 3100.— AVAILABLE PR03ECT INFORMATION — DEMOLITION SURVEY RESULTS 1. As stated in Article 1.02C, the Demolition Survey results were received and are attached. List of attachments indude: a. Environmental Health Survey Report Pre -Demolition Hazardous Materials Survey at Former Kmart Building, completed by Applied Environmental Sciences, Inc., date of survey November B-9,2012. b. Environmental Health Survey Report Pre -Demolition Hazardous Materials Survey at Former Wells Fargo Teller Building, date of survey November 8, 2012. END OF DOCUMENT ADDENDUM A C 2012 Stantec 1193801635 009113-2 APPLIED ENVIRONMENTAL SCIENCES, INC. ���•_, CC I..+a—w.•av;. ..�g{,r.ayq'�g.v . -tIa' 1. - M '.��.+.w.o ...�.....� M rte"' -3j as 8441 Wayzata Blvd. ❑ Suite 103 ❑ Minneapolis, MN 55426 ENVIRONMENTAL HEALTH SURVEY REPORT PRE-DE11fOLI TION HAZARDOUS MATERIALS SURVEY AT FORMER KMART BUILDING 4401 XYLON NEW HOPE,1l+IMESOTA Date of Survey: November 8-9, 2012 Conducted by: Tom Roberts, Asbestos Building Inspector MN #1-2220 Applied Environmental Sciences, Inc. 8441 Wayzata Blvd., Suite #103 Minneapolis, MN 55426 (763) 545-5510 I hereby certify that the survey and inspection referenced by this report, and the report itself, were conducted in accordance with intent of the applicable regulations to the best of my ability and knowledge. Thomas , tar I have reviewed this report and hereby certify that the information contained within satisfies the intent of the AIWIJA regulations to the best of my ability and knowledge. Certification # 2204 Flw9wmw" C411LO Phone 763-545-5510 0 Fax 763-545-7883 0 www.mosmn.com 1.0 EXECUTIVE SUMMARY Applied Environmental Sciences, Inc. (AES) was retained by Stantec, Inc. to perform a pre - demolition hazardous materials survey of the former K -Mart building located at 4401 Xyion in New Hope, MN. Survey procedures conducted by AES complied with the applicable Occupational Safety and Health Administration (OSHA), Minnesota Pollution Control Agency (MPCA), and Minnesota Department of Health (MDH) standards for surveys of buildings to be demolished. AES performed an asbestos survey of the building, sampled areas of heavily flaking paint for lead content and compiled a list of other hazardous materials (e.g., these assumed to contain PCBs, mercury, CFCs) present on the property. AES also sampled caulk for PCB content. The survey was conducted on November 8-9, 2012. The results of the survey are as follows: I . AES took 82 bulk asbestos samples. 2. Suspect building materials found to contain asbestos include: flashing on lower roof, black floor mastic, floor file 12x12 medium gray with red and brown, floor tile 12x12 beige with red and brown, floor the 12x12 dark grab with flecks, tmnsite. Asbestos - containing material should not be cut, drilled, sanded or disturbed. 3. Building materials assumed to contain asbestos include: transite below the slab, Interior boiler insulation. 4. AES tested five (5) flaking painted surfaces for lead. One (1) surface tested above the MPCA guideline of 0.5% lead by weight. 5. AES tested four (4) caulks for PCBs. All of these caulks tested below the Environmental Protection Agency's (EPA's) limit of 50 ppm as a PCB hazardous waste. 6. The building is slab on grade. One common component of this type of construction is transite (cement -asbestos) conduit below the slab. If transite is encountered during demolition, work must stop until the material can be removed by a licensed asbestos contractor. 7. Asbestos bulk sample results are included in Appendix I. S. The diagrams with sample locations are included in Appendix 11. 9. Minnesota Department of Health certifications are included in Appendix 111. 10. A complete list of all painted surfaces tested for lead has been, included in Appendix IV. 11. PCB caulk results are included in Appendix V. 12. A list of observed hazardous and special wastes observed is included in Appendix V1. This survey identifies materials as they existed on the day of the survey. Conditions may change over time. This survey should not be used as a bidding document. All quantities provided are estimates and must be verged prior to abatement firm bidding AFS recommends using a licensed asbestos project designer to design and bid projects. Former K -Mart Building Pre -Demolition Hazardous Materials Survey - Page 3 1.? SUMMARY OF ACM BY TYPE: QUANTITYAND SAMPLE NUMBER The avyroximate quantity of AGM found in the building is listed below: Thermal Systcm Insulation None found Surfacing Material None found Miscellaneous Materials Floor ti1e,12x12 medium gray with red and brown 64,000 square feet Floor tile, 12x12 beige with red and brown 40 square feet Floor tile, 12x12 dark gray with flecks 50 square feet Transite 40 square feet Lower roof flashing 100 linear feet Black floor mastic 110,000 square feet Assumed Materials Underground transite not quantified For a full description of sample results and sample locations, see Appendix IL 1.2 SUMMARY OF DETERIORATED LEAD-BASED PAINT See Appendix FV for lead-based paint results. 1.3 SUMMARY OF HAZARDOUS MATERIALS See Appendix Vl for a complete list of hazardous and special wastes observed. 2.0 METHODS 2.'1 ASBESTOS SURVEY APPROACH The procedures used for this survey meet the sampling standards of EPA's Asbestos Hazard Emergency Response Act (AHERA), the OSHA asbestos standard and the EPA NESHAP rule for demolitions. AES's approach to this survey was to identify, assess, sample and quantify all suspect asbestos - containing materials within the building. Electrical wiring and panels were not sampled. ABS Former K -Mart Building_Pre-Demolition Ha�ous Materials Survey Page 4 does not perform bulk sampling of electrical equipment unless it has been shut down and tagged by a licensed electrician. An attempt was made to locate and identify materials inside walls, doors, ducts, roofs or other areas which requires destructive entry. The quantity of each assessed material was estimated, and may be unreliable. 2.1:.1 ASBESTOS SURVEY LYMYTATIONS An attempt was made to locate and identify materials inside walls, doors, ducts, roofs or other areas which require destructive entry. The possibility exists that as other walls, doors, ducts, etc. are opened during the abatement and demolition of the building, suspect materials may be found. If suspect materials are encountered during demolition, the demolition should stop until these materials can be tested and, if necessary, removed by a licensed asbestos contractor. Quantities of all materials are estimates and should be verified by bidding abatement contractors. This survey identifies materials as they existed on the day of the survey. Conditions and quantities may change over time. 2.1.2 BULK ASBESTOS SAMPLING Samples were collected utilizing random sampling procedures. Similar systems and materials were grouped into "homogeneous areas of building materials." Multiple random samples were taken of materials in accordance with the EPA-AHERA guidelines. Sample locations were determined using a random sampling process for each homogeneous material. AMOUNT OF MATEMAL MUQMUM # OF SAMPLES Less than 1,000 square feet 3 Between 1,000 and 5,000 square feet 5 Greater than 5,000 square feet 7 Samples were collected by carefully removing a small representative sample of the suspect material and sealing it in a plastic bag. Water was used to control dust during sampling. The sample was identified with a sample number. Where possible, sample locations were tagged with the sample number and designated "A, B, C," etc. The "wounds" where suspect materials were sampled were sealed. Sample locations are noted on the diagram in Appendix 11. 2.1.3 BULK ASBESTOS ANALYSIS The bulk samples were analyzed by polarized light microscopy (PLM) with dispersion staining, EPA method 600111-93/116. Bulk samples -acre viewed under a stereoscope. Samples were prepared in various Cargille refractive index oils and examined under the polarizing microscope. The samples were evaluated under crossed polars for extinction angle, sign of elongation and morphology. The samples were then analyzed using a dispersion -staining objective to measure refractive index in various orientations. Mineral identification was based on the unique optical characteristics observed under the polarizing microscope. Quantity determinations are made by visual estimation. EPA NESHAP-Asbestos Rule 40 CFR Part 61 states that samples found to contain less than 10% asbestos by visual estimation may be further quantified by point count analysis. Former K -Mart Building Pre -Demolition Hazardous Materials Survey Page 5 The Asbestos Rule also states that all multi -layer systems, except for wall systems where joint compound was used only at the joints and nail holes, must be analyzed as separate materials. If any layer contains greater than one -percent asbestos, that layer must be treated as asbestos-. containing. This requires all layers in a multi -layered system to be treated as asbestos -containing if the layers cannot be separated without disturbing the asbestos -containing layer. In each homogeneous sampling area, once a positive sample was identified, the remaining samples were not analyzed. Asbestos samples will be held for thirty (30) days after the date of this report. Z2 HAZARDOUS MATERIALS SURVEYAPPROACH AES's approach to this survey was to visually inspect each room for building components assumed to contain hazardous and special wastes that must be removed from the building or recycled properly prior to demolition. Quantities of these materials are estimates and should be verified by bidding abatement contractors. 2.2.1 HAZARDOUS MATERIALS ANALYSIS AES took four samples of caulk to determine PCB content. For this project, analysis was contracted to Legend Technical Services, Inc. in St. Paul, MN. The sample was analyzed according to EPA Method 3550B. See Appendix V for the full laboratory report 2.3 LEAD SURYEYAPPROACH AES's approach to this lead paint sampling was to sample all flaking and peeling paint within the building. Only accessible materials were sampled. AES removed paint chips in areas of heavily flaking paint. The chips were sealed in a zip-loc bag and analyzed for lead content by EHS Laboratories. 2.4 CHAIN OF CUSTODY PROCEDURES To ensure that samples collected in the field are neither lost nor their identity confused, all samples, from the point of collection to receipt in the laboratory, follow these procedures. Each sample is first assigned a unique and distinct sampling number. After a sample is placed into a plastic bag, that unique number is assigned to that bag. This same number is assigned to a bulk chain of custody form. The inspector signs each chain of custody form before it, along with the samples, is delivered to the lab. Upon receipt of the samples, the lab analyst verifies that each sample matches the corresponding chain of custody form number and signs and dates the chain of custody form. 2.5 QUALIFICATIONS All laboratory and field work is supervised by Board Certified Industrial Hygienists. The survey was conducted by accredited asbestos building inspectors. Former K Mart Building Pre -Demolition Hazardous Materials Survey Page 6 3.0 DISCUSSION 3. I SUMMARY of NON -ASBESTOS -CONTAINING MATERIAL Suspect ACM is considered negative for asbestos when all samples of the material are found to contain one percent or less asbestos. Suspect material found to be neggive includes: 1. Brown window caulk 2. Gray column caulk 3. White panel caulk 4. Stucco 5. Door caulk 6. Downspout tar 7. Lower roof field 8. Gray roof sealant 9. Ceiling tile, 2x4 smooth 10. Ceiling tile, 2x4 light texture 11. Floor tile, 12x12 white and gray 12. Sheetrock and joint compound 13. Floor tile, 12x 12 dark gray red and brown 14. Black mopboard and adhesive IS. Floor tile, 12x 12 blue gray 16. Floor tile, 12x12 white with black flecks 17. Ceiling tile, 2x4 random fissures 18. Ceramic tile adhesive, yellow 19. Ceiling tile, 1x1 20. Ceiling tile adhesive, brown 21. Floor tile, 12x12 beige with brown 22. Ceramic tile, 1x1 brown 23. Ceramic wall tile; beige 24. Pipe fitting insulation 25. Ceiling tile, 2x4 gypsum 26. Floor tile, 12x12 orange brown 27. Wall adhesive 28. Gray roof caulk 29. Cray f restop putty 30. Brown paneling adhesive 31. Beige stairtread 32. Boiler breeching insulation 33. Boiler insulation, under metal skin 34. Stack insulation 35. Floor tile, 12x12 gray with dark gray 36. Brown baseboard and adhesive 37. Ceiling tile, lateral fissures and pinholes 38. Wall texture 39. Ceramic floor, rust 40. Panel adhesive, yellow 41. Floor leveler, gray Former '-Mart Build Pre -Demolition Hazardous Materials Sure P e ? 3.2 RECOMMENDA 77ONS 3.2.1 ASBESTOS This survey was conducted to locate asbestos -containing materials that must legally be removed prior to demolition of the building. The EPA/MPCA NESHAP regulations require that asbestos - containing materials which are friable, or will become friable during demolition, must be removed from the building prior to demolition by a licensed asbestos abatement contractor. Suspect building materials found to contain asbestos include. flashing an lower roof, black floor mastic, floor tle 1212 medium gray with red and brown, floor file 1Zx12 beige with red and brawn, floor the 12x12 dark gray with flecks, transite. Building materials assumed to contain asbestos include: transite below the slab. We recommend removing the asbestos -containing floor file and transite prior to demolition. The black floor mastic may remain in place unless the concrete slab will be recycled. 3.2.2 HAZARDOUS MATERIALS Prior to demolition, all hazardous and special waste must be recycled or removed from the building according to Local, State, and Federal regulations. A complete list of building hazardous and special wastes observed is included in Appendix Yl. 3.23 LEAD The yellow curb paint must be removed or stabilized prior to demolition. See Appendix V for a complete list of all painted surfaces tested. APPENDIX I ENS(a--- Asbestos Bulk Labwvtollw Analysis Report Environmental Hazards 5eraims, L.L.C. 7469 Whitepine Rd Richmond, VA 23237 Telephone: 800.347.4014 Report Number. 12-11-01573 Client: Applied Env. Sciences Received Data: 1111312012 8441 Wayzata Blvd. Analyzed Date: 1111512012 Stuite 103 Reported Daae: 11/15/2012 Minneapolis. MN 55426 projectiTest Address: F12 639 K; Mpls., MN Fax Number. Cilitat Naanber. Laboratory Results 7fi3-5763-545-7138324-12 24-1221 Lab Sample Client Sample Layer Type Lab Grosz Description Asbestos Other Number Number Materials 12-11-01573-001 1 Brown Rubber-Like; White NAD 100% Non-Fibrous Paint-Like; Inhornogeneous 12-11-01573-DD2 2 White/Gray Granular, NAD 100% Non-Fibrous Rubber-Like; Inhomogeneous 12-11-01573-O03 3 Gray Rubber-Like; NAD 100% Non-Fibrous Inhomogeneous 12-11-01573-004 4 GrayANhdo Rubber-Like; NAD 100% Non-Fibrous Inhomogeneous 12-11-01573-005 5 Black Rubber -Like; NAD Homogeneous Page 1 of 12 3% Cellulase 97% Non -Fibrous Environmental Hazards Services, L.L.0 Client Number: 241221 Report Number. 12-11-01573 ProjectfTest Add : F12 639 K; Mpls., MN Lab Sample Client Sample LOWTYPO Lab Groes Description Asbestos Other Number Number Materials 12-11-01573-006 6A Brown Granular, Gray NAD 10096 Non -Fibrous Rubber -l -like; Inhomogeneous 12-11-01573-007 6B Brawn Granular; Gray NAD 100% Non -Fibrous Rubber -Like; Inhomogeneous 12-11-01573-008 6C Brown Granular, Gray NAD 100% Nor -Fibrous Rubber -like; Inhomogeneous 12-11-015734309 6D Brown Granular, Gray NAD 10096 Non -Fibrous Rubber -Like; Inhomogeneous 12-11-01573-010 6E Brown Granular, Gray NAD 100% Non -Fibrous Rubber4jke; Inhomogeneous 12-11-01573-011 7 While Paink-Like; Yellow NAD 70% Fibrous Gim Fibrous; Inhomogeneous % 2 N llastonife n -Fibrous 12-11-01573-012 B White Paint -Like; Brown NAD Fibrous; Inhomogeneous Page 2 of 12 70% Cellunae 30% Non -Fibrous Environmental Hazards Services, L.L.0 Client Number: 24-1221 Report Number: 12-11-01573 PmoctJTestAddress: F12639 K; Mpls., MN Lab Sample Client Sample LagerType Lab Gross Description Asbestos Other Number Number Materials 12-1141373-013 9 Black Vinyl -Like; MAD 100% Non -Fibrous Homogeneous 12-11-01573-014 10 Yellow/Brown Adhesive; NAD 100% Non -Fibrous Homogeneous 12-11-01673-013 11 12-11-01573-016 12 12-11-01573-017 13 12-11-01573-018 14 White Paint -Like; Yellow NAD Fibrous; Inhomogeneous Yellow Fibrous; Brown NAD Adhesive; Inhomogeneous White Chalky; Brown NAD Fibrrws; Inhomogeneous White Paint -Like; Beige NAD Fibrous; Inhomogeneous 70% Fibrous Glass 2% Wollastonite 28% Non -Fibrous 2% Fibrous Glass 2% Talc 95% Non -Fibrous 5% Cellulose 2% Fibrous Glass 93% Non -Fibrous 4596 Cellulase 35% Fibrous Glass 2D% Non -Fibrous 12.11-01573-019 15 White Vinyl; 3% Chrysotile 97% Non -f=ibrous Homogeneous Total Asbestos: 3% 12-11-01373-020 16 Btack Adhesive; 5% Chrysotile 95% hon -Fibrous Homogeneous Total Asbestos: 5% Page 3 of 12 Environmental Hazards Services, L. L.0 Client Humber. 241221 Report Nwnber. 12-11-DI573 Project/Ted Address: F12 639 K; Mpls., MN Lab Sample Client sample IJWQr TYP@ Lab Gross Description Asbestos Other Number Number Materials 12-11-01673-021 17 White Vinyl; NAD 100% Non -Fibrous Homogeneous 12-11-01573-022 1s Black Adhesive; 2%Chrysotile 98% Non -Fibrous Homogeneous Total Asbastos: 2% 12-11-01573-023 15 Gray Vinyl; Homogeneous NAD 100% fon-Fibrous 12-11-01573-024 20 BlecklBrown Adhesive; 5% Chrysotile 95% Non -Fibrous Homogeneous Total Asbestos: 5% 12-11-01573-025 21 Off -White Vinyl; NAD 100% Non -Fibrous Homogeneous 12-11-01573-026 22 Slack Adhesive; 5% Chrysotile 95% Non -Fibrous Homogeneous Total Asbestos: 8% 12-11-01573-027 23 White Chalky; Trace .i% Chrysa to 10% Celluloss CreamlBrown Fibrous; 90% Non -Fibrous Inhomogeneous Total Asbestos: Trace t1% 2% chrysotile present in joint compound -like material. 12-11-01573-028 24 White Vinyl; NAD 100% Non-Fbrous Homogeneous Page 4 of 12 Environmental Hazards Services, L -L.0 Client Number: 24-1221 Ceramic Brown/While Granular Report Number: 12-11-01573 Project/Test Address: F12 639 K; Mpls., MN Tile Homogeneous Lab Sample Client Sample Uyeriyps Lab Gross Description Asbestos Other Number Number Homogeneous Materials 12-11-01573-029 25 Black Adhesive; NAD 9T% Non -Fibrous 100% Mon -Fibrous Homogeneous Homogeneous 12-11-01573-030 26 Yellow Adhesive; While NAD 100% Non -Fibrous 100% Non -Fibrous Chalky; Inhomogeneous 12-11-01573-031 27 White Vinyl; NAD 100% Non-Fibmus Homogeneous 12-11-01573-032 28 Yellow/Black Adhesive: 2% Chrysotile 98% Non -Fibrous Inhomogeneous Total Asbestos: 29/6 12-11-01573-033A 29 Ceramic Brown/While Granular NAD 100% Tion -Fibrosis Tile Homogeneous 12-11-01573-033B 29 Grout Gray Granular, NAD 100% Non -Fibrous Homogeneous 12-11-01573-034 30 White Ceramic; HAD 100% Mon -Fibrous Homogeneous 12-11-01573-035 31 Yellow Adhesive; NAD 100% Non -Fibrous Homogeneous Page 5 of 12 Environmental Hazards Services, L.L.0 Client Number: 24-1221 Report Ntanber: 12-11-01573 Prolectrrest Address: F12 639 K; Mpls., MN Lab Semple Client Sample Law Type Lab Groes Description Asbestos Other Number Number Materials 12-11-01573-036 32 BeigaA%ke Yinyl; NAD 100% Non -Firma Homogeneous 12-11-01573-037 33 Did Not Analyze (Quantrty Not Sufficient) 12-11-01573-038 34 While Rubber -Like; Brawn NAD 2% Cellulose Fibrous; Inhomogeneous 98% Non-fibrous 12-11-01573-039 344 Black Tar -Like; NAD 900% Non -Fibrous Homogeneous 12-11-01573-040 35 Black Tar -Like; 15% Chrysoille 85% Non -Fibrous Homogeneous Total Asbestos: 15% 12-11-01573-041 36 Gray Rubbery; ILIAD 10% Non -Fibrous Homogeneous 12-11-01573-042A 37 Cove Tan vinyl; Homogeneous NAD Base 12-11-01573-042B 37 Maslic Brown Adheshfe; Homogeneous Page 6 of 12 100% Non -Fibrous 100% Non -Fibrous Environmental Hazards Services, L.L.0 Client Number: 24-1221 Report Number. 12-11-01573 pr*dfTw Address: F12 639 K; Mpls., MN Lab Sample Client Sample Layor Type Lab Gross Description Asbestos Other Materials Dumber Number 12-11-01573-443 38 Gray Solt; Homogeneous NAD 2% Cellulose 98% Non -Fibrous 12-11-01+573-044 39 12-11-01573-045 40A 12-11-01573046 40B Brawn Adhesive; NAD Homogeneous Gray/White Fibrtws; NAD Inhomogeneous Gray/White Fibrous; NAD Inhomogeneous 3% Cellulose 97% Norv-Fibrous 35% Fbrous Glass 85% Non -Fibrous 35% Fibrous Glass 55% Non -Fibrous 12-11-01573-047 4DC Gray/White Fibrous: NAD 35% fibrous Glass Inhomogeneous 65% Non -Fibrous 12.11-01513-048 41A Gray/White Fibrous; NAD 35% Fibrous Glass Inhomogeneous 65% Non -Fibrous 12-11-01573-049 41B Gray/White Fibrous; NAD 35% Fibrous Glass Inhomogeneous 85% Non -Fibrous 12-11-01573-050 41 C Gray/White Fibrous; NAD 35% Fibrous Glass Inhomogeneous 55% Non -Fibrous Page 7 of 12 Environmental Hazards Services, LLC Client Number: 24-1221 Report Number: 12-11-01573 ProjectirTest Address: F12 639 K; Mpis., UN Lab Sampla CI -sent Sample Lnyw TrPe Lab Gross Description Asbestos Other Humber Number Materials 12-11-01573-051 42A White Fibrous; Trace -146 TremlAcW 15% Cellulose Homogeneous 5% F brous Glass 80% Non-Fibrnus •Trernol�Actinolite Series Asbestos 12-11-01573-052 42B 7remolitef - inolite Series Asbestos 12-11-01573-053 42C `TremolitdActinolite Series Asbestos 12-11-01573-054 43A 12-11-01573-055 438 Total Asbestos; Trace ,91 % White Fibrous; Trace <1% Trem/Actin' 15% Cellulose Homogeneous 5% Fibrous Glees 80% Non-Fibeois Total Asbestos: Trace a1% White Fibrous; Trace <i% TremlAcdin` 15% Cellulose Homogeneous 5% Fibrous Glass 80% Nan -Fibrous Total Asbestos: Trace 41% Yellow Fibrous; Black NAD Granular, Inhomogeneous Yellow Fibrous; Black NAD Granular; Inhornogeneous 95% fibrous Gtass 2% Non -Fibrous 98% Fibrous Glas 2% Non -Fibrous 12-11-01573-056 43C Yellow Fibrous; Black Trace s1% Chr"Wis 98% Fibrous Glass Granular, Inhomogeneous 2% Nan -Fibrous Total Asbestos: Trace,91% _Small bundles of Chrysodle found on yellow fibrous material. 12-11-01573-057 44A Brown Granular, NAD 10046 Non -Fibrous Homogeneous 12-11-01573-M 448 Gray Granular; NAD Homogeneous Page 8 of 12 100% Non4li roue Environmental Hazards Services, L.L.0 Client Nwnber: 24-1221 Report Number: 12-11-01573 ProjectfrestAddrem: F12 639 IC; Mpls., MN Lab Sample Client Sample L&jer Type Lab Gross Description Asbestos other Number Number Materials 12-11-01573-059 44C Brown Granular; NAD 100% Non -Fibrous Homogeneous 17-11-01573-000 45 Gray/Slack Vinyl; NAD 100% Non -Fibrous Homogeneous 12-11-01573-D61 46 Black Adhesive; 3% Chrysotile 97% Non -Fibrous Homogeneous Total Asbestos: 3% 12-11-01573-062 47 Beige Vinyl; NAD 10D% Non -f=ibrous Homogeneous 12-11-01573-063 48 Black Adhesive; 3% Chrysafale 9796 Non -Fibrous Homogeneous Total AsbesWs: 3% 12-11-01573-064 49 Black Vinyl; NAD 100% Non -Fibrous Homogeneous 12-11-01573-065 50 Beige Adhesive; NAD 100% Non -Fibrous Homogeneous 12-11-01573-D66 51 Gray/White Fibrous; NAD 55% Cellulose .Inhomogeneous 35% Fibrous Glass 10% Nan -Fibrous Page 9 of 12 Environmental Hazards Services, L.L.0 Client Number: 24-1221 Report Number: 12-1.1-01573 ProjecUTest Address: F12 639 K; Mpls.. MN Lab Sample Client Sample LWO Tme Lab Gross Description Asbestos Other Dumber Number Materials 12-11-01573-067 52 Yellow Adhesive; NAD 1009 Nan -Fibrous Homogeneous 12-11-01573-068 53 Beige Vinyl; 2% Chrysotile 98% Non -Fibrous Homogeneous Total As', I' s; 2% 12-11-01573-M 54 Yellow Adhesive; NAD 2% Cellulose Homogeneous 98% Non -Fibrous 12-11-01573-070 55 Beige Vinyl; 3% Chrysc a 97% Non -Fibrous Homogeneous Total Asbestos: 3% 12-11-01573-071 Be Black Adhesive; 5% Chrysadle 95% Non -Fibrous Homogeneous Total Asbestos: 3% 12-11-01573-072 57 Gray Granular, NAD 10D% Non -Fibrous H*"eneous 12-11-01573-073 68 White Chalky; Beige NAD 7% Cellulose Fibrous; Inhomogeneous 3% Fibrous Gies 9D% Nor -Fibrous 12-11-01573-074 59 BeigefMite Fibrous; NAD 55%Cellulose Inhomogeneous 35% Fibrous Glass 10% Non -Fibrous page 10 of 12 Environmental Hazards Services, L.L.0 Client Number: 24-1221 Report Number: 12-11-01573 Projectaest Address: F12 639 K; Mpls., MN Lab Sample Client Sample Layer Type lab Gross Description Asbestos Other Number Number Materials 12-11-01573-075 60A White iextured;White NAD 1D0%Non-Fibrous Paint -Like; Inhomogeneous 12-11-01573-076 60B White Textured; White NAD 100% Non -Fibrous Paint -Like; Inhomogeneous 12-11-01573-077 60C White TeAured; White NAD 100916 Non -Fibrous Paint -Like; Inhomogeneous 12-11-01573-076 BOD White Textured; White NAD 100% Non -Fibrous Paint -Like; Inhomogeneous 12-11-01573-079 60E White Te)dured; White NAD 10046 Non -Fibrous Paint Like; Inhomageneous 12-11-01573-080 61 Brick Red Cement.; MAD 10096 Non -Fibrous Homogeneous 12-11-01573-081 62 Gray Granular. NAD 10096 Non -Fibrous Homogeneous Page 11 of 12 Environmental Hazards Services, LLC Cllftl d Number: 24-1221 ProjectlTest Address: F12 639 K; Mpls., WIN Report Number: 12-11-01573 Lab Sample Client Sample Layar7ype Lab Gross Description Asbestos Other Number Number Materials 12-11-01573-062 63 QC Sample: 10-M1-9993.3, 2744ST REF QC Blank: SRM 1 O Fiberglass Gray Cement. Fibrous; 20% Chrysotile BD% Non -Fibrous Homogeneous Total Asbestos: 20% Reporting Limit: 1% Asbestos Method: EPA Method SCO)R-WM 16, EPA Method W044-82-020 Analyst: Laura Holder, Kathy Sizemore Reviewed By Authorized Signatory: Ila, Howarth Vamer General Manager The condition of the samples analyzed was acceptable upon receipt per laboratory protocol Mess olherwise noted on thio report. Eaoh distinct component In an inhomogeneous sample was analyzed separately and reported as a composite, Results represett ffie a whvis of samples submitted by the cfienL Sample location, desatption, arra, volume, etc., was provided by the chant. This report cannot be used by the client to claim product endorsement by NVLAP or any ayeney of the U.S. GovemmenL This report shall not be reproduced except In AM. wlfhout the written consent of the Environmental Hazards Service, L.L.C. California Ceriiileation #2319 NY ELAP 011714. All Irdormirdon eo ncia, 6 g sampling location, date, and time can be laund on Chin-ol-Custody. Environmental Hazards 5ervlces, L.L.C. does nal perform ary sample collection. Erwirar imerdel Hazards Services, I -.LC, recommends reanalysis by point cm t (ton mare acarate quantification) or lrransidmion Eledron Microscopy (TEM), (far enhanced detection capabilities) formatertals regulated by EPA NESHAP (Naiional Emission Standards for Hazardous Air Pollutants) and found to contain less Ihan ten percent (-91076) asbestos by polarized IV* mk mscopy (PLM). Both services are avattabie for an additional flee_ 400 Point Count AnalyrA, where noted, perbWed per EPA Method ODYR-931118 wkhh n RepoAirrg Ludt of D.25%. All Caltromia samples analyzed by Polarized Ugti Microscopy, EPA 61WJW ep0iM4-82-02p, Dec. 1982. LEGEND: MAD = no aSbeSbpS detected — Page 12 of 12 1�6 �A -"I �� Asbestos 1-9 i -0'i7 Laboratories~ Chain -of -Custody MINIMUM i&AArowme da $axst•ft Ser+lreu. LLC Due Date: 11/15/2012 wwwJeadiab.coat 1489 WM[eprno Rd (8001as�4we (Thursday) wt hmand, VA 2=7 (8Qd)2784907 f MW 9R M Inv � � Addroee: F7wGj 5,11fe res arylatuawp: Mrd /r.% AN C—pmVNem Phaoe.(w ) Ste- Silo �; t'ri3� S�3 - 7 aS3 gam; t� � Q � Aid- M bei: ;W - IJN S F1 Z C039 pteFred)e/j /*:*7 P"jeetFzmMl'l'erftMAddrsei �'.k (,L� Collecmd b�r.�--� �'� Pmrbw O mW M=b= Turn Around fines : I, j no TAT is specifie4 -samples) wail be processed and charged as 3 -day TAT. -arts ^ a _ IMy ] • 11eY s®e Day (Met Call Akew# weeliead (Muer CM AhMd) ASBESTOS AIR Client Date No. Sample ID Collected ! Time Time d COKMBNTS (Total a i®C On O if Liters) ' x 1 It $ z z 3 3 � 4 Y � ¢ !sA 8 Ci C Releued b7= SiSo DetelTime: �f �j ��7 Reoeivad 6y: SiZneture: r DiLelllelA: �� _ _ _ L NWAF LabaratodeW &MIroltiMI&l HURL& services, UC wwowh.dlsl Cam Wltli�tpin.lgd go"r-afe r�Mrotva r "WF( Asbestos Chain -of -Custody ! zx]3 -- For Lob U06 Only w t aeap�yNamtx Iq Mt�N+i�prUNe/a{rt� ��+Nt 2.�+rG � �' � 'Mr -MA WW"' Sni'e 143 tyd81ea11!ip: Alliatiu & Afp ,�11.16 1Pbo.es (X3)`s+ -S3y0 p(lF3 } 9M'J- ?�1F3 6-m,& r+a Q tt esfO"7M, c f..., sect. N=br. r7►Y-1�V g r4 Z' Co?g�>_/a �* . QML a ^- - r:.raara Okdw Number; Turn Aground Thues : 1jrno TAT is spec=f ed, samples) WU be processed and changed as 3 -day TAT. zr->asr �stn,�, tl►s Stu w.a�a c.s�..a} No.Client Date Sample TO Collected ABB$8TO8 AIR COiAMBItTS Time O. Vine O R gslnma ['i•stal Liters) 7 c3 114 $7 io l Released by; ep,01 R.oa+red bp: lfi.atara: daerJTlmes Laboratories" Environmental Hje=* Siefte4 LLC www.fiaab-cavi 744 ftNoplrin Rd ( OO)247-M a Rlchnmd, VA 23"7 i80"t)ll71HDOt' { Aucj Asbestos Chain -of -Custody 115�a . For Lab Use Unly -- Com�+►yw� 6Ph �A"�'onw�.�risef S�eieee .xi�w�: � lch��a{ sar{e 103 City/9areflfp Mrw � �¢�7 s ib Pheac (70P u�#C-•S��o 9 - 7S8'J rmau; 'T r t WJ�r , e er. woesxvmb ?(M"3! PrWeet Nems! Tealtag Addtwrt Clt.te �aae�heal: /✓lr1 CWlaeud Ly, —rot—FWCUN Order Ncmew.. Turn Around T mei : If no TAT is spec{ f led, sampk(s) wX be processed and charged as 3 -day TAT. 8.me Dq (KWI Cell A UM weekend Mwd Call AWMA ABBBSTOR No. Cheat ` Dote Sample ID I Collected 2 ! q a ZD 2i 6 �Z T Z e Z 10 (o ]teleaead by: Aeeeived by:/ AIR a Time Time (.lame An Orr notal � Litet'e) s 8 Data/Tim a: J Datonirua: COKMRMT6 46. A ES LabaraW ri#v ft*va MW H=lWhS/1 kM Uc WWWJlrrdtb.00rr 7W YOdhOw M IMMP~pp r aw ►1 1►Aea�IFIF..vA 2M Asbestos Chain -of -Custody v513 - For Lab Use OWY - O,ww imr; *evd eA";etple.pe' Af,wae,l.; 3"I,rr M,ft.em) �'i+s� /o �.raa.Ind} ass-rso ftWw a JQ" 17 WhW Aihri _ ' � l �a thl�and bYl.. _ - ...., A aw.j Self* lxs >rn,eik--I� �a�r 7 � R0 . t �J tet : ir�hasa a� l+imo6er aw- law S 7'�rm Around Time : If so TAT is apecV%4 wwpWs) will be prod mod and chord ar 3 -day TAT. Sm &W (MM1 C8B _ WWWW Went tem AbIwO Asa�lftd/ A=R 11Ya, Somph ID Colilet/d Tome Time d Talmo COMIKJENT2 !Meal i i Or Off � Llttri) a c r k, V- Zt 4 Ya i t 23 i 3 IP -Z .is Re1#eaedby, sFSa oa�rlEime !/ 'f •a'P�''! ASC%17ad 6Y: lFsawNln: MAJ DMWTIma: Labor,t ofl$S" ICnt Hmdr 8erILC .rrMr a aam 7" t1A puri Ad A0�?R•{e!0 liliiJPROd, VA W2V Asbestos Chair-ofeCustody For Lob Use OBl, -- Ii.. dile SQIPIW Maw( zwftC ft.'lk ; T*f &%VAN4 004.0 jSelig 103 _ .i`f2!tl j* .".D d Pi: wow Ibs: (rdS) AWSP— IPRO nsii: ,�+'fir "r-.7 p Qr&E 22 -CQJ=2 AvOL NWW3@�r. pwdm Odw KWOM Tom Around Tim: �f no TAT k sped sampWir) with be processed and charged as 34V TAT .� .� • a ar ��` Cz• ua a-m� .� �.� mfr "WiCan Ab" ..� _wit mud Cwt Ab.ay N°. Cttsgi Smmpfe ID bats Collected AliS�TOi! Alit CQIR1:[�aiib 7'im• 4s 'Rims OQ 4alna:a er+) I 1- } 7 L' { 7 �%KnQ ! yYj s l t � •_ Ralessed hy: ^'� 3idsata Ua:sl7laarAg I.7 ltscaivsd by: IDsearT(ae: y u L C.; Mf 1, Laboratories" �►�mt.t�$t,rc arr..reao iWWROM VA 9= Asbestos Chain -of -Custody 1f,5 -�3 For Ub Use Only .wr rVmerjft mw.,, U46 la3 -- M++l+r� 1�� AIN =►j. Pham (m )...— .53'/D �` ria&: (�) ��pD`..-.. ., �_ F. n■�lh.._+s . Qsir�lrY �ws, Aac■. Nwri� .�S/-Ii�l $ r�gjediWaee175sflyAddr■■is - /� Z� — ..---__—. QE■(gegebr�: lr� /. 3 /f!�•i Ckelhd elr+ '' FW&M &leer Nens3lr: Tura Around Times s Faro TAT kspocffl#4 sampb(s) wN be procame+d acrd charged = 34ay TAT. ._.._..a•my 2-vff�.__�-nq►cMade� ——�rt+esate�t� Nu.Cil+t*t sample [If 860! Collected ASBESTOS AIR CO htIRJeRle _ Tlerr Dn Tho■ Otf � � l �rtaeoa (7snr LiuR■I UA ov1 2 V7 a t e i Z 5�& �— s Aelar■ed by: 61see D■pR3eoe� L 4ccehred by:Aldraesr: b■taltlma ,. .. Laboratories" Reelt+omalrlflmE >arlrrde J�errlcei>t Ldp wsew,Aladla6.®am 7400 WMih 6 a Ad IMOQIHMWO VA �!*77 �0�19154wr i AW Asbestos Chain -of -Custody \ f) -,�7 ',*> For Llib Use Unly �PmV" Manses 4W*d seiN►ii m"f 9d*"j•��eAdiYW: !#1 &UVAW16 'Wpf t 5"Ife f" p ,.,,rte s+imoaq+k, x•17 M'AM ew)a+4+r sa�r� ft -,(m) Il w- res vkwk +,M { AW' Id s regjeeex.m.�a5s.itndduaa.� 1Z C 7_ y– - — +tea /of.4 Turn A• round 'Ines: r-1 -Day 3 w Mq If no TAT at -3-* aped, sa p�e($j wil/l��b..�Jp�ro� c seed fond chwgel�yd+Q�a�3-udoy ?A■T, ,"..,, Mtm DW (Mad Call Af _ io � MWO CAb No. CUOJA Sam pie ID Dale Collected � Aiaxris3ll � � films? 71ma ae o+: All .1 � wolwat COIIifI XWTS tidal � tits�aa'.� 1 � s s7 s gem4 We a 9 a ' to iteleuad fid:, lijnrk llalaiTlsgds fes% Received bys lsiduekvn: 1lrselT{ares 5x 3 0 Laboratories ftorma eamBs:Vasatv)ee Uc cmww ramie: Asbestos Chain -of -Cu rl y Sor,I",-? Glb ITae Oaly- 40a 6+w;wxm4f S w a�ie 1wr woraw's aaw.45404 w _ a * fm""ha~ .l.A pj"WtW) 'SW/o _ pkX:('B),moi?`yrs WMU: call"m W. _ Pum CXWNaabar. AMra=bW. -VV`1-Wi 1 Tarn Around Uum : If Po TAT is 4wffle4 eampic(e) Wit! beprocemed and cha gad= 3 -day TAT T —1 -Day aNx 2 • 0my -3-Day Amm Dor Q&K GWi Ahmed) _ _ WadmW (Mm! W A6m* No. Cila�t SON ID Doia Coptetad d Woa On Time air y (Total l L eg 7.. 1 a a 3 i ti R t . 10 .. �ataaaad hy: 8iarrmre: Gua!'i'lea; Aeaehrod hyl aftauua: aaufilme: ALAF . (0 Laboratorlesm �vINTIMLLC wwwAtaftboam 7WI9whf�p I end (w �► Asbestos Chain -of -Custody )15 —)—) M For Lab Use Only - Ni IS+fri�,yun.e � �`ft'Of Aditm �'l4�� lJ+ .eri+� 51+w, 3■!{y ra�to ....._ GnAMOMI: K_'�'4!A MWAO w 4W tm i dw-SVlo �,: AwL Nmebmr "vd Nmm r oma Aah.,,: 1C l 2. 4C — _ . — . Tom Around 'Mmes : If no TA T k qmc#k4 sasspk(s) will bepromsed and charged as 344y TAT. ...._ 1-� 2 -Ow — 3 -nor own= ft "MCruM0U WOIMM C*V Ahmed) He. Client Sample ID Dain Collected It�Jla4roi AIR >"oFRmxp4TA � r � � Ir1m. Qa 'ring Off � � r' _ � vefun• tto tai Litsr,) = 7 i 3$ 4 � ' i Vac Nr r� t IQ Lf I C_ RatesaslE hy: 3i=n.�am Cs�elTi�f: �j B1;sM:unt buel7Eus: Jipaeivsd 6y: APPENDIX II (i y Rk Jv v� L- 0 /49'zz a JI t- �,#GfLoiu MS 0 APPENDIX III ASBESTOS 4&@PF_r,TO R Vrorw 9 i ION AW .Hein+Uir. No A=T totlZM2 APPENDIX IV Efls(iD Laboralbv>fe�' Environmental Hazarde Services, LL.C. 7469 Whileone Rd Richmond, VA 23237 Telephone: 800.347.4010 Client: Applied Env. Sciences 8441 Wayzata Blvd. SWile 103 MinneWoCs, MN 55426 ProjectlTest Addrasa: F12 839 N Mpls, MN Collection Dsfie: 1110W012 Lead Paint Chip Analysis Report Report Number. 12-11-01477 Received Date: 11112!2012 Analyzed Date: 11/13/2012 Reported Defies 11113/2012 Qwd "'mk ' 24-1221 Laboratory Results Fax Number: 763-545-7883 Lab Sample Number Client Sample Collection Location Number Pb (ug1g) „ ppm % Pb by Narrative Wt. ID 12-11-01477-001 KPB1 750 0.075 12-11-01477-002 KPB2 84 0.0084 L04 12-11-01477-M KPB3 9800 0.98 1211-01477-004 KPB4 4800 0.48 12-11-01477-005 KPB5 990 0.099 Pegs 1 of 2 Environmental Hazards Services, L.L.0 Client Number- 241211 Report Number: 12-11-01477 "ectmesst Address. F12 639 K; Mpls, MN Lab Sample Client Sample Cogecdon Location Pb (uglg) % Pb by Narrative Number Number ppm VOL !t3 Sample Narratives: LDC Sample cordains substantial amounts of substrata whist► maY affeGi the calculased results with units of ppm and % by weight Method: EPA SW846 700013 Reviewed By Authorized Signatory: DeeDea Bray QA= CLm* The HUD lead guidelines for lead palm cKq* are 0.5D% by fit. 5004 ppm, or 1.0 mWOW. The Reporting Linin (RL) is 10.0 ug Total Pb. Paint chip area and resuft ere U)JIM1211ed based on area measuremants determined by the clear. AN Internal qua ft control requirements aseedeled wish this Hatch were met unless wherwise noted. The cmxftn of Ore SOMIP1e5 analyzed -w acceptable upon receipt per inborstory protocol unless aihavwlee noted an this report Results repMetll lire arilysts of samples arunVMd by the Client. Sample loctdion, dtWgglon, area, dr, was provided by the ClienL Resulb reported above In mWWO are wimlated based on area Supplied by clam. This report shall not be reproduced wmept in fns. without Ole written consed atom Environmerdial Hazards Semite. L.L.C. Cafifarnta Catilkw6on02319 NY FLAP 011714. LEGEND Ptr= lead ug='"lerwrarn ppm = parts pw millon ugfg = nior grams per gram VYL _ ADM Page 2 of 2 12-11-01477 yy 'semLead Due Date: 11 /1312012 Chainsoof-Custody crusway) ER M Inv Fwavironme bi HwArds Seryi=6 LLC M wwwAs M Ij,on 74" whftpi" ltd same nkhm=K VA day 2754W? (600 2M7 o " wl �Ralta■■■■■■■■1 // yr Baa 9Z Am Numbw. rialeet Name r reodap AddsarE Z t. ? f m tgl� 44,41 m"7 cele" by; aerliff"On Nombw rm lim Oder u mabw. Do wipe nneaplm mbmkW moat AUMB1792 ngWromwh! Yes ❑ Nv ❑ Tmm Mesad Tines (!AT) A16ndibn Surfim Type far F'06 '"' �114hyIT -"hma P -Fm D -BMW II*DMVV ■ DW Rag s ❑4eme 17x7 Call Awad) LR -UdRIM ON -Dm L LT -em U wKWO . Ld BA +gob FL, — C8 m Flyoae Caepee Mud A IdCO s Ak _ OW.'I' d cis tAwedj - DA-Oftioem -101 AT 2 -Alit U -kbm *3d R M - ww — VVwdaw$ill wbulaw WCU (wo OwAsdl im 1 gm TAT k qwd24 rawDleOJ WX be ymmmed and a AMW 0 34Da7 TAT. AnnaSams A& SWIM C Lwqqxviwa` Flow 710 jubm.T imem Datalrlm�e %f '^ Daterl'ims f/ liahaae I COmalaab �Ralta■■■■■■■■1 AnnaSams A& SWIM C Lwqqxviwa` Flow 710 jubm.T imem Datalrlm�e %f '^ Daterl'ims f/ liahaae I COmalaab APPENDIX 'V L E G E N D Technical Services, Inc. www.Iagond-grauu cam November 14, 2012 Mr. Tam Roberts Appiled Environmental Sciences, Inc. 8441 Vftz is Blvd.; Suite 143 Minneapolis, MN 56426 Work Order Number: 1205298 RE: PCB in Caulk fib Empire Drhm St Paul, MN 55103 Tek 651-642-1150 Fax: 651-642-1238 Enclosed are the results of analyses mor samples received by the laboratory on 11107!12. If you have any questions oonc erning this (port, please feel frse to oontacx me. All sampies will be retained by LEGEND, unless consumed In the analysis, for 30 days tram the date of this report and then discarded unless other arrangements are made. MDW (NELAC) Certifiadon #027-123295 Prepared by, LEGEND TECHNICAL SERVICES, INC 'Ift V01— Bach Pham Cli m Manager Il bpham@legend-gmup.com Legend Technics] Sellas, Inc. Tyler Janes Chemist 1 tones@legend-group.corn The rsauls In fila a=part apply to the smViss erred in accordance wO the chain of Cueludyd 7M arnakt of repot must be reproduced fn as endmly. L E G E N D Technical Services, Inc. www.legend-grou1).Com Applied Environmental Sciences. Inc. Project PCB in caulk 8441 wayzata Blvd.; Suiie 103 Project Number. F12 639K Wnneaodls, MN 55426 Project Manager. Mr. Tom Routs 88 Empire Drive 5t Paul, MN 55103 Tei: 6514142-1150 Fat: 551-642-1239 Work order# 1205298 Date Reported: 11114112 ANALYTICAL REPORT FOR SAMPLES Sample ID Laborattory ID matrix Debs Sampled Date Reeaired KPCI31 KPCB2 KPCB3 KPCB4 1205298-01 Caua 1110711211:00 11107/12 14:30 1205298-02 CaWk 11107/1211:00 11/07112 14:30 120529&03 Cat>tk 1110711211:80 11107112 14:30 1205298-04 caulk 1110711211:00 11107112 14:30 Shippina C2Mrker IntoMMI Defaull Cooler Temperature ("C): Received on ice: No Temperature bran* was not present Received on Ice pack: No Received an melt wager: No Ambient Yes Acceptable (IMSO only): No Custody seals: No Case Narrative; Legwg Tedwr cel Services, Irv- The mwft in M report apply Jo ft samples analyzed in awordanw % th Owe chain of custody document This analyticaf mpod trout be reprnrwrced in 13 entl+ety. Page 2 of 7 IL E G E N D Technical Services, Inc. www.legand-group -cam 88 Emplm Drive 5t Paul, MN 55103 Tel: 851-642-1150 For. 551-642-1239 Applied Fwkwwoo I Scienoee, inc. Pmjaa PCs in Caulk 8441 Whyzets Blvd.; Suite 103 Project dumber. F12 039K Work Ordar #: 1206298 Mlrmeapcils, MN 55428 Projecl Manager: Mr. Tom Robaris Dale Reparlod; W14112 PCB 8092 Legend Technical Services, Inc. C Y-4`8 ResuR RL MDL Units Dilution Balls Prepared Analyzed Method NOSES KPCB1 (1206298-01) Caulk Sampled: 11107!1211.00 Rocetvad: 111=121;:30 - - Amclor 1015 12.0 2.0 U79 74" 1 B2KMa01 111OW12 11112/12 EPp19d8 M Arodor 1221 4.0 2.0 11.20 "via 1 • " Arodar 1252 47-0 2.0 0.23 "aim 1 ArocW 1342 -2.0 2.0 0.10 malke 1 " Arodnr 1248' Q.0 2.0 0.40 noft 1 Amcor 1254 4.0 2.0 0.40 nuft 1 ' Arodor 129D <2.0 2.0 0,059 ng11g 1 " - - Swroprrh: DOCKJONGboommiI 48.0 033.743 % . Swmgale: i66r y1&v 70.5 OCAM9 % KPCB2 {12492'98-02) Caulk Sampled: 11M1711211:00 Received: 11M1711214:30 Arodor 1019 4.0 2.0 0.079 nxft 1 BZKOW1 11AW12 11/17112 EPA 6082(M) Aradaf 1221 4.0 2.0 0,20 MOW 1 " • ` Amdor 1232 Q-0 20 023 "Wh0 1 ` A,odor 1242 40 2.0 0.10 MR" 1 " Amcor 120 4.0 2.0 0.40 Moft 1 ^ Ar= r 1254 c2.0 2.0 0.40 rnpArp 1 Arodor 1200 4.0 2.0 0-D59 MWko 1 " Sunugsio: Doc&WWprObip w4l 40.5 06.3-143 % SGC Sa7ugale: T@ftdMwD4n8hwoftM 01.0 Wo -138 % KPCB3 (120528!-03)Cwlk Sampled: 11ID711211:00 Recelved:11M1711214:30 ArwJw1018 QA 2.0 0.D7B mprkD 1 82KO901 11A9112 11112112 EPA80M(NQ Amlot 1211 Q.0 2A 320 MWIG I • " Arorim 1232 Q-0 2A 0.23 mDt 1 • " Arodar 1242 47-0 2.0 0.10 "oft 1 Arodw 1249 QD 20 0.40 -Wk0 1 Arodor 1254 QO 2.0 0,40 9r9lkp 1 Arodor 12W 4.0 2.0 O.M9 Mwk9 1 3-MOOAR DeMbbrob4fte++y1 980 653-143% srmoop 025 gas -138 % S.GG KPC34 (1206295.04) Caulk Sampled: 11107M211:00 Recrlwd: 1110711214M Arodar 1018 -27 2,7 0.11 ffQlrQ 1 OWD901 11148112 11/13112 EPA 8092(M) Aroobr 1221 Q.T 2.7 OI7 1rpfNq t - Arodw 1232 47 2.7 D-31 Mwkq 1 ` Amdor 1242 4.7 2.7 0.13 rr 9ft 1 - - Arodw 1248 42.7 2.7 0.54 Ma" 1 Amdor 1254 4.7 2.7 0.54 slgrlrp 1 " Amdor 1280 Q.7 2.7 D.079 ngnr0 1 " Surrogate: owsa kmb"arw 533 653-143% - • SGC Legend Tedr cd Services, Inc. The resuis in this report apply t0 the aemples analysed bn aeeordenc,9 Uft Mrr chain of cudWyd=mwh-t This analyticelreport must he repmduaed br its entk*. Page 3 of 7 L E 6 E N D Technical Services, Inc. xww_Iagand -grou0.00m Applied Erruironmental Sciences. hr— 8441 Wayzata Blvd.: Svlre IM Minneapoft, MN 55426 Project PCB in Caulk Pmjecl Number. F12 639K Project Manager. Mr. Tom Roberts PCB 8082 Legend Technical Ser Aces, Inc. B8 Empire alive St Paul, MN 55103 Tel: 651-642-1150 Fax: 651-642-1239 Work Oiderll. 1205298 Date Reported; 11!14112 Arwft% Result RL MDL ' Unita Dllyd'gn ' Batch Prepared Analyzed Method Notes KPCI34 (1205298-04) Caulk Sampled: I'llW11211:110 Roeohrod:111O7MZ 14:30 &Nmgala: Terraa►doro-meha xylene 9a6 60.9438 % 62KO907 111OW2 Vftf. r2 EFA SWZ%V Legend Technkal Services. Inc. The rm is In iMtis report apply do the samples analysed irr acccvdwce wNb are chain of custody d=u mens This erref &W report must be mproduced Nr Ifs ara". Page 4 017 L E G E N D Technical Services, Inc. www.legend-group.com 88 Empire Drive St Paul, MN 55103 Tel; 551-642-1150 Fax: 851-9421239 AppKw Environmental Silences. Inc. Project PCB in Caulk 3441 VVayxata 9W.; Suite 103 Project dumber_ F12 630K Wart Order* 1205296 Miruieepub. MH 55426 Project Manager. Mr. Tam Roberts Date Reported: 11/W2 PCB 9052 - Quality Control Legend Technical Services, Inc. spike Sauroe %REC %RPD analyte ReRA RL MDL Units Level Rest %REC Limits %RPD Limit Notes Batch 82K090i - EPA 35508 Prepared 111=12 Rnalyzed:11f1S112 AmdW1290 275 20 aiank (13MOS01-81Jitj 3.33 52.7 70.130 5lmapaW Decaddo-b p "O 0.537 molt Prepared:11AM12 Analped:11112f12 Aloclar 1016 2.0 2.0 Qe72 rro kg Souroo:120SM-02 Amdor 1221 c 2.0 2.0 0.20 Rgikp Staroy@W Deaed*robobwe o Arvdor1232 <2C 20 0.23 mgilg nlGft Arocbr 1242 c 2-0 7-0 0.10 moft Ar0CW 1248 < 20 2.0 0.40 mgikg Ardor 1254 -42.0 z0 D.4o mykg Arccbr 1250 a 2.0 2.0 0.090 mg1kg SlxrrVM: ascadrbrobpfAw U469 mop 0.967 6Aa KS -142 Surrogsle, r o_403 mpft 0.647 740 6aw7ja LCS (921(0001-11W) Prepared 111=12 Rnalyzed:11f1S112 AmdW1290 275 20 0.059 ffQft 3.33 52.7 70.130 5lmapaW Decaddo-b p "O 0.537 molt 0.667 - 89, S M-143 SM7000r~ 0.580 mu4g 0.867 87.0 Sao -139 11110ift SpUw (1111MU ia1Si) Souroo:120SM-02 Premed:11AW2 Anayaed: 11M2112 ArwJor 1280 Z.29 2.0 OAag nV" 5.23 47-0 70.0 7N130 Staroy@W Deaed*robobwe o 0.481 mgft 0.646 74.3 B13-149 Surrogate: Tehchkmgne(4-xyf&m u.4406 nlGft a. 643 mo 998•7ju Matrix Spire Dup (82KO 01-AiM) Soumw. 120E -92 Prepared: IINW12 AnaWed: 11112112 Awdor 1250 2.48 2.0 0.068 mgflg 325 e2A 75.3 70-130 7.98 17.2 8lsrdyare Dfl�drbm6lpasByr 0.013 nmft 0.049 70.11 5113-143 SrraoQele �ylerre 0491 no" 0.848 74.5 BU ¢139 Legend Tedxlical Ser6ces, Inc— The msrrts In this report apply to the semp ft wwlysrd in accordance witl+ Ow cfreirr of custody document This analytkal report must oe reprodugmd in its entirety. Page 5 of 7 L E G E N D Technical Services, Inc. www.isgond -g roup.com 88 Empire Drive St Paul, MN 55103 Tel: 651.8421150 Fax: 851-642-1239 Applied Enrtronmental Sciences, trr— Proms PCB'h Caulk 8441 Wayzata Blvd.; Suite 103 Pn*vt Number. F12 6NK M(k CfdeF * 1205298 Minneapolis, AIN 55476 Project Manager: Mr. Tom Roberts Dabs Reported. 11114/12 Nates and monitions S -GC Sraragate recovery outside of control limits. The data was accepted based on valid recovery of the remaining sunegate(s). < Less than value listed dry Semple results reported on a dry vreVA basis NA Nat applicable. The %RPD is not calculated from vokos less than the reporift limit. MDL Method Detection Limit RL Reporting Limit RPR Relative Percent Difference LCS Lsboratory Control Spike = Blank Spike IBS} = Laboratory Fortilied Blank (LFB) M5 Metrix Spire = Laboratory f=ortified Matrix (LFM) Legend Terkmical Services, Inc. The results in this report apply to the sa»Wles analyzed in accordence wo Un chain of cu3*W docwnent. This w aiytical report muni be reproduced fn Its antkety. Page 6 of 7 to a LEGEND TECHNICAL SERVICES, INC. PAR# M Ml itf:, -1 'ILA MNI• CPO k?..1 CHAIN -OF -CUSTODY RECORD dL (m 4", 14usH ell IL CL Lj PLEASE REVIEW TFRUS AND CONDITIONS ON PACK BEFORE SIGNING Whl* EW P F� A& G-Vj FIFA r7P, APPENDIX VI Former K -Mart Building Pre -Demolition Hazardous Materials Survey _ Page 8 HAZARDOUS OR SPECIAL WASTE OBSERVED FORMER K -MART BUILDING CFC's Estimated Qaatitity Air Conditioners (Roof Units) _ 11 Fire Extinguishers 12 ..... Water Cooler 4 PCB's Estimated Quant Ballasts/Fixtures 1675 Merenry FsKmmtod flnnntity Fluormmt Bulbs 3,400 HID Lamps 30 Thermostats 22+ Thermometer 1 CFL's 120 Lead Estimated Quantity Lead Paint Peeling 100 square feet Mise - Estimated OUSU V Gas meter 2 Compactor/controlslfluids I Transformer 1 Exit signs 14 Electric panels 62 Ceiling heaters 15 Motion detectors Not quantified Alarm system 2 Door closers 30 Emergency lights 15+ Filter drier RC -4864 4 containers Compressorsffluids 3 AHU Fars Motor 1 Pumps 3 Water beaw 3 Boiler/controls l Farmer K Mart $uildi Pre-Demolition us Materials Survey Pale 9 Cleaners SOLA Battery pack Furnace and controls wk '•Y fi`�i � i c. r .��•i ,Ka APPLIED ENVIRONMENTAL SCIENCES, INC. ,'ro:a• pr ,,errs. rasrr� J4•• �:i�dz_ _ ..s�i+Y.tir��4 _.,r.KpyrY90N1N,ly�q,;;^.'�• . . r•a :+f!a'�^'a�+.e!etV3•A•••• =n-7 r,.+H'EYovi,*�il'r.+� 8441 Wayzata Blvd. ❑ Suite 103 ❑ Minneapolis, MN 55426 ENVIRONMENTAL HEALTH SURVEY REPORT PRE -DEMOLITION HAZARDOUS MATERIALS SURYEY AT FORMER WELLS FARGO TELLER BUILDING 44' AND XYLON NEW HOPE, MINNESOTA Date of Survey: November 8, 2012 Conducted by: Tom Roberts, Asbestos Building Inspector MN #1-2.220 Applied Environmental Sciences, Inc. 8441 Wayzata Blvd., Suite #103 Minneapolis, MN 55426 (763) 545-5510 I hereby certify that the survey and inspection referenced by this report, and the report itself, were conducted in accordance with intent of the applicable regulations to the best of my ability and knowledge. I have reviewed this report and hereby certify that the information contained within satisfies the intent of RA regulations to the best of my ability and knowledge. f Certification # 2204 F12&Ww.sxwV Phone 763-5.5516 ❑ Fax 763-545-7883 ❑ www.aaamn.com 9.0 EXECUTIVE SUMMARY Applied Environmental Sciences, Inc. (AES) was retained by Stantec, Inc. to perform a pre - demolition hazardous materials survey of the former Wells Fargo Teller Building located at 40 and Xylon in New Hope, MN. Survey procedures conducted by AES complied with the applicable Occupational Safety and Health Administration (OSHA), Minnesota Pollution Control Agency (MPCA), and Minnesota Department of Healtb (MDH) standards for surveys of buildings to be demolished. AES performed an asbestos survey of the building, sampled areas of heavily flaking paint for lead content and compiled a list of other hazardous materials (e.g., those assumed to contain PCBs, mercury, CFCs) present on the property. AES also sampled caulk for PCB content. The survey was conducted on November 9, 2012. `Ile results of the survey are as follows: 1. AES took 19 bulk asbestos samples. 2. Suspect building materials found to contain asbestos include: acoustic plaster in lobby, sink coaling. Asbestos -containing material should not be cut, drilled, sanded or disturbed. 3. Building materials assumed to contain asbestos include: tramsite below the slab. 4. AES tested one (1) flaking painted surface for lead. No surfaces tested above the MPGA guideline of 0.5% lead by weight. 5. AES tested two (2) caulks for PCBs. Both of these caulks tested below the Environmental Protection Agency's (EPA's) limit of 50 ppm as a PCB hazardous waste. 6. The building ventilation is distributed using a below slab ductwork system. One common component of these systems is transite (cement -asbestos) ductwork. it is also possible that transite conduit was used to run electrical and fiberoptic cables from the main bank to the teller building. If transite is encountered during demolition, work must stop until the material can be removed by a licensed asbestos contractor. 7. Asbestos bulk sample results are included in Appendix 1. H. The diagrams with sample locations are included in Appendix 17. 9. Minnesota Department of Health certifications are included in Appendix 111. 10. A complete list of all painted surfaces tested for lead bas been included in Appendix IV. 11. PCB caulk results are included in Appendix V. 12. A list of observed hazardous and special wastes observed is included in Appendix Vl. This survey identifies materials as they existed on the day of the survey. Conditions may change over time. This survey should Wt be treed as a bidding document. All quantities provided are estimates and must be verified prior to abatement firm bidding. AES recommends rising a licensed asbestos project designer to design and bid projects. Former Wells Far a Teller Building Pre -Demolition Hazardous Materials SurveY P e 3 1.1 SUMMARY OF ACM BY TYPE, QUAN77TYAND SAMPLE NUMBER The app oxin to quantity of AGM found in the building is listed below - Thermal hermal System Insulation None found Surfacing Material Acoustic plaster Sample 7 70 square feet Miscellaneous Materials Sink coating Sample 17 1 sink Assumed Materials Underground bwsite not quantified 1.2 SUMMARY OF DETERIORA TED LEAD-BASED PAINT None found. See Appendix 1V for lead-based paint results. 1.3 SUMMARY OF HAZARDOUS MATERIALS None found See Appendix VI for a complete list of hazardous and special wastes observed. 2.0 METHODS 2.1 ASBESTOS SURVEYAPPRQACH The procedures used for this survey meet the sampling standards of EPA's Asbestos Hazard Emergency Response Act (AHERA), the OSHA asbestos standard and the EPA NESHAP rule for demolitions. AES's approach to this survey was to identify, assess, sample and quantify all suspect asbestos - containing materials within the building. Electrical wiring and panels were not sampled_ AES does not perforin bulk sampling of electrical equipment unless it has been shut down and tagged Former Wells Fargo Teller Buildi Pre -Demolition Hazardous Materials S P e 4 by a lionised electrician. An attempt was made to locate and identify materials inside walls, doors, ducts, roofs or other areas which requires destructive entry. The quantity of each assessed material was estimated, and may be unreliable. 2.1,1 ASBESTOS SURVEY LIMITATIONS An attempt was made to locate and identify materials inside walls, doors, ducts, roofs of other areas which require destructive entry. The possibility exists that as other walls, doors, ducts, etc. are opened during the abatement and demolition of the building, suspect materials may be found If suspect materials are encountered during demolition, the demolition should stop until these materials can be Nested and, if necessary, removed by a licensed asbestos contractor. Quantities of all materials are estimates and should be verified by bidding abatement contractors. This survey identifies materials as they existed on the day of the survey. Conditions and quantities may change over time. 2.1.2 BULK ASBESTOS SAMPLING Samples were collected utilizing random sampling procedures. Similar systems and materials were grouped into "homogeneous areas of building materials." Multiple random samples were taken of materials in accordance with the EPA-AIERA guidelines. Sample locations were determined using a random sampling process for each homogeneous material. t..ess than 1,0UU square teet Between 1,000 and 5,000 square feet Greater than 5,000 square feet Samples were collected by carefully removing a small representative sample of the suspect material and sealing it in a plastic bag. Water was used to control dust during sampling. The sample was identified with a sample number. Where possible, sample locations were tagged with the sample number and designated "A, B, C," etc. The "wounds" where suspect materials were sampled were sealed. Sample locations are noted on die diagram in Appendix II. 2.1.3 BULK ASBESTOS ANALYSIS The bulk samples were analyzed by polarized light microscopy (PLM) with dispersion staining, EPA method 600/R-93/116. Bulk samples were viewed under a stereoscope. Samples were prepared in various Cargille re&aebive index oils and examined under the polarizing microscope. 'The samples were evaluated under crossed polars for extinction angle, sign of elongation and morphology. The samples were then analyzed using a dispersion -staining objective to measure refractive index in various orientations. Mineral identification was based on the unique optical characteristics observed under the polarizing microscope. Quantity determinations are made by visual estimation. EPA NESHAP-Asbestos Rule 40 CFR Part 61 states that samples found to contain less than 10°/a asbestos by visual estimation may be further quantified by point count analysis. The Asbestos Rule also states that all multi -layer systems, except for wall systems where joint compound was used only at the joints and nail holes, must be analyzed as separate materials. If Former Wells Farza Teller Building Pre -Demolition Hazardous Materials Sure Poe 5 any layer contains greater than one -percent asbestos, that layer must be treated as asbestos - containing. This requires all layers in a multi -layered system to be treated as asbestos -containing if the layers cannot be separated without disturbing the asbestos -containing layer. In each homogeneous sampling area, once a positive sample was identified, the remaining samples were not analyzed. Asbestos samples will be held for thirty (30) days after the date of this report. 2.2 HAZARDOUS MATERIALS SURVEYAPPROACH AES's approach to this survey was to visually inspect each room for building components assumed to contain hazardous and special wastes that must be removed from the building or recycled properly prior to demolition.. Quantities of these materials are estimates and should be verified by bidding abatement contractors. 2.2.1 HAZARDOUS MATERIALS ANALYSIS AES took two samples of caulk to determine PCB content. For this project, analysis was contracted to Legend Technical Services, Inc. in St. Paul, MN. The samples were analyzed according to EPA Method 3550B. 2.3 LEAD SURIIEYAPPROACH AES's approach to this lead paint sampling was to sample all flaking and peeling paint within the building_ Only accessible materials were sampled. AES removed paint chips in areas of heavily flaking paint. The chips were scaled in a zip-loc bag and analyzed for lead content by EHS Laboratories. 2.4 CHAIN OF CUSTODY PROCEDURES To ensure that samples collected in the field are neither lost nor their identity confused, all satmples, from the point of collection to receipt in the laboratory, follow these procedures. Each sample is first assigned a unique and distinct sampling number. After a sample is placed into a plastic bag, that unique number is assigned to that bag. This same number is assigned to a bulk chain of custody form. The inspector signs each chain of custody form before it, along with the samples, is delivered to the lab. Upon receipt, of the samples, the lab analyst verifies that each sample matches the corresponding chain of custody form number and signs and dates the chain of custody form. 2.5 QUALIFICATIONS All laboratory and field work is supervised by Board Certified Industrial Hygienists. The survey was conducted by accredited asbestos building inspectors. Former Wells Eno Teller Building Pre Demolition Hazardous Materials SILvM Rage 6 3.0 DISCUSSION 3.1 SUMMARY 4F NON -ASBESTOS -CONTAINING MATERIAL Suspect ACM is considered negative for asbestos when all samples of the material are found to contain one percent or less asbestos. Suspect material found to be ne includes: 1. Brown caulk 2. Roofing materials 3. Penetration putty 4. Gray caulk 5. Gray roof sealant 6. Ceiling tile, 2X2 rough texture 7. Sheetrock and joint compound 8. Foam adhesive 9. Ceramic floor tile, dark brown 10. Ceramic floor tile mortar 11. Ceramic floor tile, I x 1 white 12. Ceramic wall tile, white 13. Adhesive under white wall tile 3.2 RECaMWENDATIONS 3,2.1 ASBESTOS This survey was conducted to locate asbestos -containing malzrials that must legally be removed prior to demolition of the building. The EPA/MPCA NESHAP regulations require that asbestos - containing materials which are friable, or will become friable during demolition, must be removed from the building prior to demolition by a licensed asbestos abatement contractor. Suspect building materials found to contain asbestos include: acoustic plaster in hobby, sink coatimg. Building materials assumed to contain asbestos include: transits below the slabs 3.2.2 HAZARDOUS MATERIALS Prior to demolition, all hazardous and special waste must be recycled or removed from the building according to Local, State, and Federal regulations. A complete list of building hazardous and special wastes observed is included in Appendix V1. 3.2.3 LEADMCB CAULK None found APPENDIX Y 12-11-01473-001 1 Black Rubbery; DIAD 100% Non-Mr»us Fiarrmogeneous 1211-00473-M 2 Bleck Tar -Like; NAD 100% Non -Fibrous HonlogelfeOLa Asbestos Bulk 12-11-01473-003 3 131ack Tar -Like; NAD Analysts Report Environmental Ham a services, L.L.C. 10% Flbruus Glass 7469 Whi+tepine Rd 7D% Nun-Fbmu3 Richmond, VA 23237 Telephone: ON.347.4010 Report Number: 1211-01473 Client: Applied Ern. Sciences Received onto: 11/12/2012 8441 Wayzata Blvd. Analyzed Date: 11/1312012 Stuite 103 Reported Date: 1111412012 MinrmWd* MN 55426 Projectlr'est A*kess: F12639 W; MN ClientNum1wr. 24-1221 Laboratory Fax Number Results7631565-7883 Lab Sample Client Sample Lauer Type Lab Gross Description Asbestos Other Number Number Matorlals 12-11-01473-001 1 Black Rubbery; DIAD 100% Non-Mr»us Fiarrmogeneous 1211-00473-M 2 Bleck Tar -Like; NAD 100% Non -Fibrous HonlogelfeOLa 12-11-01473-003 3 131ack Tar -Like; NAD 20% Cellulose Homogeneous 10% Flbruus Glass 7D% Nun-Fbmu3 12-11-01473-004 4 Gray Pliable; HAD 10% Cellwase Homogeneous 9D% Non-Wmm 12-11-01473-005 5 Gray Pliable; NAD 100% Non-Fibra+s Homogeneous Page 7 aE 4 Environmental Hazards Services, L -L.0 Mott Number: 24-1221 Report Number, 12-11-01473 Projearrest Addma: F12639 W, MN Lab Sample Client Sample >akw 7Yvo Lab Grose Descrlpllon Asbestos Other Number Number Materials 12-11-01473-006 B Black Tar -Lake; NAD 15% Cepulose Homogeneous 85% Non-Filwous 12-11-01473-807 7A White Textured; 2% Chrysotile 95% Non -Fibrous Homogeneous Total Asbestos: 2% 12-11-01473-M 78 did Not Ana" (Positive Stop) 12-11-01473-009 7C Did Not Analyze (PoOw Stop) 12-11-01473.010 8 Gray Fibrous; While NAD 5% Cellulose Pairrt-Like; 70% Fibrous Glass Inhomogeneous 25% Non -Fibrous 12-11-01473-011 9 White Chalky; Brown NAD 30% Cellulose Fibrous; White Granular 70% Non -Fibrous Inhomogeneous 12-11-01473-012 10 Off-WhitelPale Red Brittle; NAD 100% Non -Fibrous Homogeneous 12-11-01473-013 11 Brown Cementilious; NAD 10096 Non-Fibaus Homogeneous Page 2 of 4 Environmental Hazards Services, L.L.0 Cffent Number 24-1221 Report Number: 12-11-01473 PMectffast Address: F12639 W; MN Lab Sample Clfent sample LaYw Type LabOaMaDescription Asbestos Other Dumber Number Materials 12-11-01473-014 12 Gray Granular; NAD 100% Non-Fb ous Hon togeneous 12-11-01473.015 13 While Cementitious; MAD Homogeneous 100% Hon -Fibrous 12-11-01473-016 14 Gray Granular, LVAD 100%Non-Fibrous Homogeneous 12.11-01473-017 15 White Cementhicus; NAD 100% Non -Fibrous Homogeneous 12-11-01473-018 16 Yellow Adheslve; MAD 2% Cellulose Hdmogensous 98% Non-Mbrous 12-11-01473-0111 17 Pale Purple Granular, 4% Chrysotile 9896 Non -Fibrous Homogeneous Total Asbestion: 4% Page 3 o1 4 Environmental Hazards Services, LI -C Client Number•. 24-1221 Report Number: 12-11-01473 PrIect/Test Address: F12639 iH; MN Lab Sample Client Sample L yerTom Lab Gruen Dewription Asbestos Other Number Number Materials QC Sample: 27 -NIST REF QC Blank: SRM 1866 Fiberglass Reporting Limit: 156 Asbes#os Method: EPA Method 60018 93111 S. EPA Method 6DO/M4-82-020 Analyst: Timothy Harris )ca B Authorized Signatory: Reviewed Y �9 atorY• Twha Ery QA/QC Clerk The condition of em samples analyzed was oomptable upon r aAA per kboratary protocol unless a8relvvae noted on This report Each dls" component In an inhomoelerimrs sample was aneryred wparabsly and reported as a composite. Results represent the anaysis of sanVles submitled by the tient Sample loradon. desrpion, area. column, etc., was pmrided by the dlenL This report cannot be used by the Client 10 cWm prodrxt endorsement by NVLAP or any agency of dre U.S. Government. T Ws rpt shall not be reproduced except in run, vrlthart the written ONSent of the Erninorrrientail Hazards Service. L.LC. Caidonia Certlfici im 12319 NY ELAP #11714. AM irionnatlon concemkr g s+arnong location, data, and time can be found on Chain-ar-Custody. Environmental HwAnds Services, Ll_C. does not perlo m arry sample eolleebom Ernlronrnerdal Hazards Ser4m. LLC. recomff ends reanalysis by point eorsA (for more semnate quarrIftadon) or Transmission Electron M oscopy (TEK, (fpr entrarmed de*cbw capatdffim) for rnatulats regulated by EPA NESSHAP (Natioorval EredWort Standards for Hazardous Air Pollutants) and found Io oory n kss then len pa cw (11096) asbestos by polarized Wit muaoscopy (PLM). Bath services am availatne far an additional fee. 40o Pant Count Analysis, -two mated, pwbravd per EPA Meowd GMR-931115 w1h a Reporpng Lirrdi of 0.2596. AA Cati"a samplea armyzed by Potadzed Liph1 Micmcapy, EPA Me tM 800N4-82-=. -82-=. Dec. 191i!_ LEGEND - no asbes;Pms detected Page 4 of 4 1yY Asbestos 12-11-01473 Laboratories` Chain -of -Custody Due Date: Rnnrerm asel H,irsrde geRkes, LLC 11/14/2012 Werarieadeb " 740 W~A@ Rd (Wednesday) ffiwm4m0 ftbwond VA 2".17 ER M Inv (Miffs -mor (Ihce1 CampaayNama; !TPt!' �arieiprf�1Ni61(a� Seieyl(,el- nr- VWJ Wyawk SYM11 Sni{e lob Phar: AS l 'Wqr- Sa►O Fi.a: 11114 I My - I? 5VJ -o4,mA a 4 4W" 2 . c r Aecl. Number. ,W- IAN S PrNta ?ier■e! T&WIXZ Addrem: Ad • W Ciba"le W"I dredk zlllf6� L.a.-led dw- _ __....... PumbW Odder Humber: Turn Around TLnes : 1f no TAT is specified, sample(s) will be processed and charged as 3 -day TA T. i - Dq —2r— 2 - Dq _ 3 - Ia y _'Siiwie Day (Mod [.'ail Ahead) WeekoW ~ Cvl A,headj ARRENros AIR Ne, Client Date � Sample Iii ColleeNd � � Time Time d - volume Co}IiM19MTS O■ Oif i F- !Tei■i Llters} l r 2 2- T. IF &1 .% ! e e 9 ie t Released b Siena Dateliime: t� S rf� Received by: Q S}eaature:ry- ..,� Dare>Yime: I /I i �i Z ENS Laboratories" ttlilremental Hazards Sarri 11, MC W*W.ludla64vW 74" WhllWW lid (&W)347.Wo Alehmnlnd, VA 2322Y (104 77&W O x1 Asbestos Chain -of -Custody - For Lab Use Only - Cov�myN+roe: �f1� �.ryhO+lrNlNlwf MGI' moi.[ Addrda: rWI Wormi4e &4-j Sw1 a /at7 cgyaISw,ell�p: l �js. M� s3yK�6 Phone:r7i.:? SWIG ru.r � S+1lR-r��'3 r. ;'�:r•.'s�'T� dtdt-s'/tirt.c.�r+,. A=LNambw h1.Z1 S .- Prujttely me1TurbMAddresr: _ FZ#Z C �✓ [aglsurecRe9r#eed): L C01onea PUrdmAe Order Ndmber: Turn Around TImes : If no TAT is speciled, samples) well be processed and charged as 3 -day TAT. I. my x . Oar -3-Day - ---- Sow Day Mod call Ahnd1 Weela d Mum call Akead? No. c1leat Sample ZD Date Catlaeted A9S8STaS ADR CQMI[#RMTS ! Y de Time an ring. err i Yolr�s (Total Liters) • r�r j to Datatfime: 5isnataie: - -- DaiviTlme: r. L Released by: Reeti�ed by: M. AZ1P)PAW .4-3 4 AF-r>7'W -'�' APPENDIX III ASBESTOS )k&P _.,.F• TOR Ce, 6q. ii: driesou Sb pa" ftmei�k of FEailtit Anikvo,..MN i9304 D4kcIffAie?rvv, Health ()IV* No A= issued-. 10112*012 4 "TV P-w►ri rV r►7 Environmental Hazards Senilces, L.LC. 7469 VUhitepine Rd Richmond, VA 23237 Telephone_ 800.347.4010 Client: Applied Env. Sciences 8441 Ways Blvd_ Stuite 103 Minneapolis, MN 55426 Projectfrem Address: F12 639 VV, Mpls, MN Collection Date: 11107/2012 Clia�[iumber• 24-1221 Lead Faint Chip Analysis Report Report Number: 12-11-01475 Raeeiwed Date: 1111212012 Analyzed Date: 11!13!2012 Reported Date: 11/1312012 Results Number Laboratory Resul} s 763-545-7883' Lab Sample Client Sample Collection Location Pb (u919) % Pb by Narrative Number Number ppm WL ID 12-11-01475-001 IJIJPBI <36 Method: EPA SW646 7000B Reviewed By Authorized Signatory: o' 4W, T� 0! Deborah Britt (VVQC Clerk <0.003C The HUD lead guide*res for land paint chips are 0.W% by V eWiL 5004 ppm, or 1.4 rngk n`. The Reporting Limit (RL) Is 10.0 ug Total Pb. paint chip area and rma are tallalrlated based on area msememanfe determined by the dlent. All Internal quality control requirements associated with this batch were met unless otherwise noted. The condition of this samples analyzes eras acceptable upon nx;Npi per laboratory probXd unless ottnerwlse noted an this report_ Rewft represent the analysts of sonVies submitted by the chard. Sauq to location. dela #OOM amp, Bre., was provided by the decd. Results reported above to ffWcffr3 otic calculated based on ares supprred by dlenL This report stroll not be reproduced ex" In full, wWwui the wrVwn anent of the ErMrmmental Hazards Service. LLC. Caffornin Cerffca§M 22319 NY FLAP 011714. LEGEND Pt= *0 -- ug = nnkrograrn ppm - parts per mOfon LKA c mkrmram5 per gram WL V weight Page 1 of 1 r; 12_11-DI 475 II g� �5 Load Due Data'. 1. r„ ChainwofwCu folly 11113/2012 (Tueadeyj Eni*wMental Hsxntdf Services, LLC ER M Inv w wiesdaLmn r M 1NMMv* Rd fO i1f4M Mc&w @& VA p" 9 &MY fm4 2nX7 QmpwI+fe : —AAbw��ll ,. : ,.d = r f�'l� SrYr YI- Fm: (7io'� s V-� - $,0,� 3 nmdm • +. r ! 4tCJ+w74 SCA Awt'Number:l � cdeaed by: cwMcs loaWmnMr _ _ — pwoban orderNwnbw. 'Do wipe pq pW abattted most AM191M raphomeNd Va ❑ No ❑ Tees &MM d MM (TAT) h*TrP AWnpWw sorom 7j psi mr :. ..{N� ry�/y�� ���y D Mm Cog Moso 11<je0MVP w 4 1 -� u -y�bm �K -lI= BA I -um 4i 014 wf -3* pl, — 1�1u�0xw idaiswd AiKid) how K Illi - h D9 n Rt' X40. M -.� Ol - Cared SL a . Wlodo►w Sill (�iafCiII IheTATlsap�eMbAUmW(s)wMb• 1�' ■ l a!s*h 2 ZedFl WW- �/ledovrWall p wood sod ebmrd m &ft TAT. Amm BaUB Air NO, a.1g onavord cab" s ompis PC iloth�6w iwa4�o IIRiN OM rtIMPJ . xassX whL) oi. Vslnme Camraona two" Dowd" i C. 31 '7 I.JaPd x s x s x ii x 7 x e x x Is x 4 navrarxa rtr T L E G E N D Technical Services, Inc. www.Iegand-group.com November 14, 2012 Mr. Tom Roberts Applied Environmental SCieneM Inc. 8441 Wayzata 131vd.; Suite 103 Minneapolis, MN 55428 Work Order Number. 1205297 RE: PCB in Caulk 9B Empire Drive St Paul, Md 55103 Tel: 651-M-1150 Fore B514342-1238 Enclosed are the results of analyses for samples received by the laboratory on 11107f12. If you have any questions cowafning this report please feel free to contact me. All samples will be retained by LEGEND, unless consumed in the analysis, far 30 days from the date of this report and then discarded unless outer arrangements are made_ MOH (NELAC) Certification #027-123-295 Prepared by, LEGEND TECHNICAL SERVICES, INC Barrh �$WTW- Ptlarn Client Manager II bpham@legend-gmup.com Legand Technical S&wRft, Inc. -F Tyler Jorms Chemist I goner@legend-gmup_oom 7h a results In flys nwd egof ly iv the samples en&f wd In amrdance wlfb Me elraia of cusbdy document Thb onalldreaf nrppart must be repraduoed kr 1!a enffrely. L E G E N D Technical Services, Inc. www -legend - group.com 88 Empire Drive St Paul, MN 55103 Tel_ fi51-W-1150 Fax 851-642-1239 AppVed Envk0rlmental Sdences, ft. Project PCB in Caulk 8441 Wayzata Blvd., Suite 103 Protect Number: F12 539W V10k Order t 1205297 Minneapolis, MN 55426 Project Manager. Mr. Tom Roberts Dale Reported; 11114112 ANALYTICAL REPORT FOR SAMPLES Semple ID Labora6my ID nimbi: Data Sampled Date Received VVPCBI 12a5297-01 Cauk 11JO711210:00 11107M2 14:30 VVPCB2 1205297-02 Caulk 1110711210:00 11107112 14,30 §,puma Container Informatimn Default Cooler Temperature ("G): Received on ire: No Temperature blank was not presets Received an ice pack: No Received on melt water No Ambient. Yes Acceptable (I1-1l1SO only): No Custody seals: No Case Narrative: Legend Tec kml Services. Inc- The ns oft In this report appty to tyre samples a m*wd In aocordsnce with Ow chain of crrs Wy dacumard. This erm6r6cal report must be reproMxW In its antiretl+ Page 2 of S L E G E N D Technical Services, Inc. www.isgand-group -com 88 Empire Drive St Paul, MN 55103 Tet 651442-1156 Fags: 651-642-1239 Applied Ernlr menlal Sdanc as, Inc. Project: PGB in Caulk 6441 Wayzala BW_; Scdte 103 ProjeCi Number- F12 63OW Work Order V 1205297 Minneapolis, MN 55426 Project ManeW. Mr. Tom Rotlerts Date Repotted: 11/14/12 PCO 8082 Legend Technical Services, Inc. talyle Result RL MIX Wills Muflon Belch Prepared Aradyted Meihod Nates WPCBI 11206297-01j Caulk Sampled: 11I 7M2'10:00 Received: 11107M 14.30 - Arodor1018 <1.9 1.9 DAM malkQ 1 82KDBM 11MW12 11112M2 EPA8D62M Arodw 1221 s1.0 1.9 DAD mpikq 1 ArodoF 1252 <1.0 1.9 0-22 Waft 1 A ackw 1242 Ms i.9 0"095 Moot 1 ' Molar 1248 .0.9 1.9 0.38 ra9n41; 1 Arudar 1264 41.9 1.0 0.38 mpgrp 1 + Arodor 1260 <7.9 1.9 0.056 mplko 1 Surt»gote. 123 das-148 % " 5urragala: 7110 d0.9-i$e % " WPC82 (120629742) Caulk Sampled: 1110711210:00 ReceWed: 11107112 14M Aro" 1016 Q.0 2.0 0.079 Ma" r B2 WMI 1IM12 11112112 EPA 8082(W Arodw 1221 <2.0 2.0 0.20 U0,90 1 - ArodQ1232 Q-0 20 0.23 noft 1 Amdw 1242 47-0 2.0 0.10 nglt 1 Awdor 1248 40-0 2.0 0.40 mp" 1 Aroda 1254 4.0 2.0 0.40 MwX9 1 • ` Awalor1260 <2-0 2.0 0.059 MWN 1 Swro4alb: aecachkrabowy 71.5 fM3-143 % SunWaAr Tbtrachluro-mafa xYWm sea OMP -130 % • . Legend Technical Services. Im- The +9suts in this mpod apply tv me samples arWpW w a=wdmm wAW Bre thein of custody sloe mend M3 &na&0ma1mpW must he mpnl**w0 kr tis entirety. Pate 3 ai 6 L E G E N D Technical Services, Inc. www. leg and-grauP-Com Applied En*onmwiW SdWMZS. Inc. Prolecl: PCB in Caulk $441 ftyzate Blvd.: Suite 103 Praiecl Number: F12 639W Wrine lic, MN 55426 Project Manager. Mr. Tom Roberts PCB 8082 - Quality Control Legend Technical Services. IM 88 Empire DrIve St Paul, MN 55103 Tel: 851$52-1160 Fax. 651-842-1239 Work Order #. 1205297 Date Reported: 11114112 Spike Source %REC %RPD Analyte Reauk RL MDL Units Level Result %REC Urnifs %RPD Limit Nates Bauch 52KC901 - EPA 3550E Svurw. 1205297-02 Prepared: 11A 12 Analyzed: 11112112 Armim 1280 228 2.0 0.059 Blank (92KOt101.8LK1) 3.23 <2.0 70.8 70-130 Srxrvpafe: paced*mbflrhonyl 0.4111 mgRg Prepared: 11JOS112 Anetyaed: 11112!12 Arockw 1016 < 2.0 2.0 0.078 MAW Source: 120529742 Arador 1221 2.6 2.0 0.20 M9&9 3.25 <2.0 76.3 70-130 7.86 17.2 A(OCW 1232 < 2.0 2,0 0.23 rnplky 0.404 Armbr 1242 c 2.0 2.0 0.10 nw ft Arocbr 1249 <2.0 20 0.40 Ml;fkg Ar0dW 1254 492.0 2.0 0.40 mpfBg Arodor 1260 < 2.0 2.0 0.059 MofkQ swro", oemrhbr0by wo 0.419.7 nDft 0.867 09.5 6'9.3-143 Sampata 7ebudAbro-m@hKxylene x493 Mp" 0.867 74.0 80.9-438 LCS102KOM4391) Prepared. W09112 Analyzed. 111W12 ,Aradw12W 2.76 20 0.056 r g" 3.33 92.7 70-130 surm9af; pplphpryl 0.557 noft 0.667 83.5 85.3-143 &Nrvgafw reeaclrld0-m3te-xYf- 0.580 mp0sp a687 87.0 60.8-138 Iltk+brlx Spike(62K09014051) Svurw. 1205297-02 Prepared: 11A 12 Analyzed: 11112112 Armim 1280 228 2.0 0.059 mglkg 3.23 <2.0 70.8 70-130 Srxrvpafe: paced*mbflrhonyl 0.4111 mgRg 0.846 74.5 65.3.143 • T�a�lp, xy re 0.455 n gft 0.645 MS 60.9-138 MaM Spike Dup RB2K0901-1111SID1) Source: 120529742 Prepared: 11!09112 AnaWed: W12f12 Arodar 1286 2-98 2.0 0.058 MWkg 3.25 <2.0 76.3 70-130 7.86 17.2 Swmgoft De6alhlcr�erryl as73 cagey 0.640 MO 65.3743 Swropelm TeMxh"o-40eta x*w 0.404 r Gft ado 74 5 60.8.730 Legend Technical Services. Inc. The msurts in this report apply la dw sammptes analyzed w accordanoe wIM the chain oFeustbdy docu-W- This MuViral MP -1 must be MPFudu-d h1 bs ar>&*. Page 4 of 6 RIL E G E N D Technical Services, Inc. mww.leg an(1-group_com 88 Empire Drive St Paul, MN 55103 Tel. 651442-1150 Fax: 051-842-1238 Applied Environmental Sciences, Inc. Project: PCB in Caulk W1 Myzata Blvd.. Suite I Project Number: F12 6391M Work Order* 1205297 Minneapolis, MN 5542® Project Manager. Mr. Tam Roberta Dale Reported: 1111W12 Notais and Definitions -C Less than value fisted dry Sample ,worts reported on a dry vreigM basis NA Not applicable. The %RPD Is not calculated from values less than the reporting I"enit. MDL Method DeteWon Limit RL Reporting Limit RPD RaiMwe Percent DiPerance LOS Leboretary Control 5pNm = Blank Spbw (B5) = Laboratwyr Forililed Blank (LFB) MS MOW Spike = Labwatory FonWW MaIrk (LFM) Leyerrd TechnW Services, Inc. The m=03 in this repod apply to the sanoba analyzed In accuRfarroe rvM the chakr of casdody document This anah+t W report must be nWroduced in Na endmty. Page 5 of $ L E G E N D Technical Services, Inc. www- Iagond-grow p. cam 88 Empire DrW St Paul, NIN 55103 Tel: 551-642-1150 Fax 551-642-1239 Legend Teehn�=l Swvi=. inc. 77re resins in this mpwt apply to the aemples ana&wd In accerrtar a W" ML- chem of eugbdy document. 7bb ana"cor report must he reproduced In its enUmly- Paga 6 of 6 1 .... LU L> m � - V LLF C? LU W 7 e L. 88 Empire DrW St Paul, NIN 55103 Tel: 551-642-1150 Fax 551-642-1239 Legend Teehn�=l Swvi=. inc. 77re resins in this mpwt apply to the aemples ana&wd In accerrtar a W" ML- chem of eugbdy document. 7bb ana"cor report must he reproduced In its enUmly- Paga 6 of 6 A nTorAr7f rip W.' Former Wells Faro Teller Building Pre -Demolition Hazardous M_aterials_Surypy Page 7 ELAZARDOUS OR SPECIAL W'AST'E OBSERVED FORMER TELLER BUILDING Air Conditioners (central) l Fire Extinguishers 12 FreezerslRefrigendoi s 2 Wafter Cooler 1 PCB's Estimated fity BallastdFixtures 18 Loose sign ballast 1 Fluorescent Bulbs 72 HID Lamps 33 Loose mercury bulbs 4 Thermostats 1 Exterior lighted signs li Lead Estimated uaati Lead Paint Peeling 600 Nu= feet LT, E-IT'1 rQ+1m0+ A nuantity Batteries 4 Gas Meter 1 Electric Meter 1 Door Closers 4 Smoke detector 1 Electric Panels 2 Motion detectors 2 Alarm panel 1 Safe 2 Muzak control panel 1 Westell circuit board 1 Copier l Appliances 2 Furnace and controls 1 Former Wells FaM Teller Dull ' Pre -Demolition Hazardous Materials Sury Pa e 8 Misc. conftl panels 4 Water hefer Battery 1 Irrigation system l Emergency Lights 3 Exhaust Fans 2 SECTION 00 01 05 PROFESSIONAL CERTIFICATIONS PROFESSIONAL ENGINEER I hereby certify that this plan, specification, or report was prepared by me or under my direct supervision and that I am a duty Licensed Professional Engineer under the laws of the State of Minnesota. lam!• Christopher W. Long Date: November 1, 2012 License # 47106 END OF SECTION PROFESSIONAL CERTIFICATIONS 9) 2012 Stantec 1 193801635 000105-1 SECTION 00 01 10 TABLE OF CONTENTS PROCUREMENT AND CONTRACTING REQUIREMENTS GROUP Division 00 - Procurement and Contracting Requirements Introductory Information 00 01 05 Certifications Page 0001 10 Table of Contents Procurement Requirements 00 11 13 Advertisement for Bids 00 21 13 Instructions to Bidders 00 31 00 Available Project Information 00 41 10 Bid Form Contracting Requirements 00 52 10 Agreement Form 0061 13.13 Performance Bond 00 61 13.16 Payment Bond 00 72 05 EICDC C-700 Standard General Conditions of the Construction Contract (2007 Edition) 00 73 05 Supplementary Conditions SPECIFICATIONS GROUP GENERAL REQUIREMENTS SUBGROUP Division 01 - General Requirements 01 10 00 Summary 01 20 00 Price and Payment Procedures 01 31 00 Project Management and Coordination 01 33 00 Submittal Procedures 01 40 00 Quality Requirements 01 50 00 Temporary Facilities and Controls 01 57 13 Temporary Erosion and Sediment Control 01 60 00 Product Requirements 01 70 00 Execution Requirements Division 02 — Existing Conditions 02 41 13 Selective Site Demolition 02 41 16 Structure Demolition Division 03 — 19 Not Used FACILITY SERVICES SUBGROUP — Not Used SITE AND INFRASTRUCTURE SUBGROUP Division 30 - Not Used Division 31 - Earthwork 31 23 00 Excavation and Fill Divisions 32 — 39 — Not Used END OF SECTION TABLE OF CONTENTS © 2012 Stantec 193801635 000110-1 SECTION 00 11 13 ADVERTISEMENT FOR BIDS Sealed Bids will be received by the City of New Hope, Minnesota, in the City Hall at 4401 Xylon Avenue North, New Hope, Minnesota 55428 until 10 A.M., CDT (or CST), Thursday, November 29, 2012, at which time they will be publicly opened and read aloud for the furnishing of all labor, materials, and all else necessary for the following: 4200 & 4300 Xylon Avenue North Buildina Demolition — City Project No. 893 In general, Work consists of the demolition of the existing buildings at 4200 and 4300 Xylon Avenue North. The Work will also include the following removals quantities: 1,500 Un R Concrete Curb 175 Lin R Retaining Wall 15 Each Light poles and bases 1 Each Large Sign 7,200 Sq Ft Concrete Sidewalk Along with miscellaneous utility disconnects, private utility terminations, and other removals. A Pre -Bid Conference will be held at 10 A.M CST, on November 15, 2012 at the Project Site (4300 Xylon Avenue North, the former KMart building). Representatives of Owner and Engineer will be present to discuss the Project. Bidders are required to attend and participate in the conference. Engineer will transmit to all prospective Bidders of record such Addendum as Engineer considers necessary in response to questions arising at the conference. Oral statements may not be relied upon and will not be binding or legally effective. Complete digital Bidding Documents are available at www.quesbcdn.com for $20 by inputting QuestCDN eBidDoc #2321639 on the website's Project Search page. Paper Bidding Documents may also be viewed at the City of New Hope and at Stantec, 2335 Highway 36 West, St. Paul, MN 55113, (651) 636-4600. Direct inquiries to Engineer's Project Manager Andrew Riemer at 651-255-3960. Bid Security in the amount of 5 percent of the amount of the Bid must accompany each Bid in accordance with the Instructions to Bidders. The Owner reserves the right to retain the deposits of the 3 lowest Bidders for a period not to exceed 60 days after the date and time set for the Opening of Bids. No Bids may be withdrawn for a period of 60 days after the date and time set for the Opening of Bids. The Owner reserves the right to reject any and all Bids, to waive irregularities and informalities therein, and further reserves the right to award the Contract to the best interests of the Owner. Kirk McDonald, City Manager City of New Hope, Minnesota ADVERTISEMENT FOR BIDS © 2012 Stantec 1 193801635 001113-1 SECTION 00 21 13 INSTRUCTIONS TO BIDDERS ARTICLE 1- DEFINED TERMS 1.01 Terms used in these Instructions to Bidders have the meanings indicated in the General Conditions and Supplementary Conditions. Additional terms used in these Instructions to Bidders have the meanings indicated below: A. Issuing Office —The office from which the Bidding Documents are to be issued and where the Bidding procedures are to be administered. ARTICLE 2 - COPIES OF BIDDING DOCUMENTS 2.01 Complete sets of the Bidding Documents in the number and for the deposit sum, if any, stated in the Advertisement or Invitation for Bids may be obtained from the Issuing Office. 2.02 Complete sets of Bidding Documents shall be used in preparing Bids; neither Owner nor Engineer assumes any responsibility for errors or misinterpretations resulting from the use of incomplete sets of Bidding Documents. 2.03 Owner and Engineer, in making copies of Bidding Documents available on the above terms, do so only for the purpose of obtaining Bids for the Work and do not authorize or confer a license for any other use. 2.04 Neither Owner nor Engineer assumes any responsibility for errors or misinterpretations resulting from Bidder's use of electronic downloadable Bidding Documents (Electronic Bidding Documents). In addition to the above items, Bidders using Electronic Bidding Documents are solely responsible for use of such documents, including, but not limited to: A. It is the responsibility of the Bidder to go to QuestCDN's Projects (www.questcdn.com), check for the presence of Bidding Documents (including Addenda), and download documents as they become available. Bidder shall regularly check QuestCDN's projects for Addenda or other additions or revisions to the Bidding Documents through the Bid Opening date, whether or not Bidder has received email notice of Addenda from Stantec or Quest CDN B. It is the responsibility of the Bidder to verify the intended document size (sheet dimensions) and to verify proper colors (color, or black and white) of the Electronic Bidding Documents prior to reproduction. Bidder shall ensure that the Electronic Bidding Documents are reproduced to the correct and exact scale, and correct colors. C. It is the responsibility of the Recipient of Electronic Bidding Documents from this site to check the electronic data for computer viruses or other harmful coding. D. Bidders are subject to the Terms of Use and Limitations on Use detailed in the Stantec Plan Room. ARTICLE 3 - QUALIFICATIONS OF BIDDERS 3.01 To demonstrate Bidder's qualifications to perform the Work, within 5 days of Owner's request, Bidder shall submit written evidence such as f=inancial data, previous experience, present commitments, and such other data as may be called for below: INSTRUCTIONS TO BIDDERS © 2012 Stantec 193801635 00 21 13 -1 A. Evidence of Bidder's authority to do business in the state where the Project is located. B. Evidence of genuiness of Bid and lack of collusion in conjunction therewith. 3.02 Bidder is advised to carefully review those portions of the Bid Form requiring Bidder's representations and certifications. ARTICLE 4 - EXAMINATION OF BIDDING DOCUMENTS, OTHER RELATED DATA, AND SITE 4.01 Subsurface and Physical Conditions A. The Supplementary Conditions identify: 1. Those reports known to Owner of explorations and tests of subsurface conditions at or contiguous to the Site. 2. Those drawings known to Owner of physical conditions relating to existing surface or subsurface structures at the Site (except Underground Facilities). B. Copies of reports and drawings referenced in Paragraph 4.01.A will be made available by Owner to any Bidder on request. Those reports and drawings are not part of the Contract Documents, but the "technical data" contained therein upon which Bidder is entitled to rely as provided in Paragraph 4.02 of the General Conditions has been identified and established in Paragraph 4.02 of the Supplementary Conditions. Bidder is responsible for any interpretation or conclusion Bidder draws from any "technical data" or any other data, interpretations, opinions, or information contained in such reports or shown or indicated in such drawings. 4.02 Underground Facilities A. Information and data shown or indicated in the Bidding Documents with respect to existing Underground Facilities at or contiguous to the Site is based upon information and data furnished to Owner and Engineer by owners of such Underground Facilities, including Owner or others. 4.03 Hazardous Environmental Condition A. The Supplementary Conditions identify any reports and drawings known to Owner relating to a Hazardous Environmental Condition identified at the Site. B. Copies of reports and drawings referenced in Paragraph 4.03.A will be made available by Owner to any Bidder on request. Those reports and drawings are not part of the Contract Documents, but the "technical data" contained therein upon which Bidder is entitled to rely as provided in Paragraph 4.06 of the General Conditions has been identified and established in Paragraph 4.06 of the Supplementary Conditions. Bidder is responsible for any interpretation or conclusion Bidder draws from any "technical data" or any other data, interpretations, opinions, or information contained in such reports or shown or indicated in such drawings. 4.04 Provisions concerning responsibilities for the adequacy of data furnished to prospective Bidders with respect to subsurface conditions, other physical conditions, and Underground Facilities, and possible changes in the Bidding Documents due to differing or unanticipated subsurface or physical conditions appear in Paragraphs 4.02, 4.03, and 4.04 of the General Conditions. Provisions concerning responsibilities for the adequacy of data furnished to prospective Bidders with respect to a Hazardous Environmental Condition at the Site, if any, and possible changes in the Contract Documents due to any Hazardous Environmental Condition uncovered or revealed at the Site which was not shown or indicated in the Drawings or Specifications or identified in the Contract Documents to be within the scope of the Work, appear in Paragraph 4.06 of the General Conditions. INSTRUCTIONS TO BIDDERS © 2012 Stantec 193801635 0021 13-2 4.05 On request, Owner will provide Bidder ac cess to the Site to conduct such examinations, investigations, explorations, tests, and studies as Bidder deems necessary for submission of a Bid. Bidder shall fill all holes and clean up and restore the Site to its former condition upon completion of such explorations, investigations, tests, and studies. Bidder shall comply with all applicable laws and Regulations relative to excavation and utility locates. 4.06 Reference is made to Article 7 of the Supplementary Conditions for the identification of the general nature of other work that is to be performed at the Site by Owner or others (such as utilities and other prime contractors) that relates to the Work contemplated by these Bidding Documents. On request, Owner will provide to each Bidder for examination access to or copies of contract documents (other than portions thereof related to price) for such other work. 4.07 It is the responsibility of each Bidder before submitting a Bid to: A. examine and carefully study the Bidding Documents, and the other related data identified in the Bidding Documents; B. visit the Site and become familiar with and satisfy Bidder as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work; C. carefully study all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions relating to existing surface or subsurface structures at the Site (except Underground Facilities) that have been identified, if any, in Paragraph 4.02 of the Supplementary Conditions as containing reliable "technical data," and (2) reports and drawings of Hazardous Environmental Conditions, if any, at the Site that have been identified in the Paragraph 4.06 of the Supplementary Conditions as containing reliable "technical data;" D. consider the information known to 13!aaer; inrormation commonly Known to contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; the Bidding Documents; and the Site -related reports and drawings identified in the Bidding Documents, with respect to the effect of such information, observations, and documents on (1) the cost, progress, and performance of the Work; (2) the means, methods, techniques, sequences, and procedures of construction to be employed by Bidder, including applying any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Bidding Documents; and (3) Bidder's safety precautions and programs; E. agree at the time of submitting its Bid that no further examinations, investigations, explorations, tests, studies, or data are necessary for the determination of its Bid for performance of the Work at the price(s) Bid and within the times required, and in accordance with the other terms and conditions of the Bidding Documents; F. become aware of the general nature of the work to be performed by Owner and others at the Site that relates to the Work as indicated in the Bidding Documents; G. promptly give Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Bidder discovers in the Bidding Documents and confirm that the written resolution thereof by Engineer is acceptable to Bidder; and H. determine that the Bidding Documents are generally sufficient to indicate and convey understanding of all terms and conditions for the performance of the Work. INSTRUCTIONS TO BIDDERS © 2012 Stantec ' 193801635 002113-3 4.08 The submission of a Bid will constitute an incontrovertible representation by Bidder that Bidder has complied with every requirement of this Article 4, that without exception the Bid is premised upon performing and furnishing the Work required by the Bidding Documents and applying any specific means, methods, techniques, sequences, and procedures of construction that may be shown or indicated or expressly required by the Bidding Documents, that Bidder has given Engineer written notice of all conflicts, errors, ambiguities, and discrepancies that Bidder has discovered in the Bidding Documents and the written resolutions thereof by Engineer are acceptable to Bidder, and that the Bidding Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performing and furnishing the Work. ARTICLE S - PRE-BID CONFERENCE 5.01 A Pre -Bid Conference will be held at 10 A.M CST, on November 15, 2012, at the Project Site (4300 Xylon Avenue North, the former Mart building). Representatives of Owner and Engineer will be present to discuss the Project. Bidders are required to attend and participate in the conference. Engineer will transmit to all prospective Bidders of record such Addendum as Engineer considers necessary in response to questions arising at the conference. Oral statements may not be relied upon and will not be binding or legally effective. ARTICLE 6 - SITE AND OTHER AREAS 6,01 The Site is identified in the Bidding Documents. Easements for permanent structures or permanent changes in existing facilities are to be obtained and paid for by Owner, unless otherwise provided in the Bidding Documents. All additional lands and access thereto required for temporary construction facilities, construction equipment, or storage of materials and equipment to be incorporated in the Work are to be obtained and paid for by Contractor. ARTICLE 7 - INTERPRETATIONS AND ADDENDA 7.01 All questions about the meaning or intent of the Bidding Documents are to be submitted to Engineer in writing. Interpretations or clarifications considered necessary by Engineer in response to such questions will be issued by Addenda mailed or delivered to all parties recorded by Engineer as having received the Bidding Documents. Questions received less than 10 days prior to the date for Opening of Bids may not be answered. Only questions answered by Addenda will be binding. Oral and other interpretations or clarifications will be without legal effect. 7.02 Addenda may be issued to clarify, correct, or change the Bidding Documents as deemed advisable by Owner or Engineer. ARTICLE 8 - BID SECURITY 8.01 A Bid must be accompanied by Bid Security made payable to Owner in an amount of 5 percent of Bidder's maximum Bid price and in the form of a certified check, bank money order, or a Bid Bond issued by a surety meeting the requirements of Paragraphs 5.01 and 5.02 of the General Conditions. 8.02 The Bid Security of the successful Bidder will be retained until such Bidder has executed the Contract Documents, furnished the required Contract Security and met the other conditions of the Notice of Award, whereupon the Bid Security will be returned. If the successful Bidder fails to execute and deliver the Contract Documents and furnish the required Contract Security within 15 days after the Notice of Award, Owner may consider Bidder to be in default, annul the Notice of Award, and the Bid Security of that Bidder will be forfeited. Such forfeiture shall be Owner's exclusive remedy if Bidder defaults. The Bid Security of other Bidders whom Owner believes to have a reasonable chance of receiving the award TO, RIMUSIRS © 2012 Stantec 1 193801635 00 21 1 - 4 may be retained by Owner until the earlier of 7 days after the Effective Date of the Agreement or 61 days after the Bid Opening, whereupon Bid Security furnished by such Bidders will be returned. 8.03 Bid Security of other Bidders whom Owner believes do not have a reasonable chance of receiving the award will be returned within 7 days after the Bid Opening. ARTICLE 4 - CONTRACT TIMES 9.01 The number of days within which, or the dates by which, Milestones are to be achieved and the Work is to be Substantially Completed and ready for Final Payment are set forth in the Agreement. ARTICLE 10 - LIQUIDATED DAMAGES 10.01 Provisions for liquidated damages, if any, are set forth in the Agreement. ARTICLE 11 - SUBSTITUTE AND "OR -EQUAL' ITEMS 11.01 The Contract, if awarded, will be on the basis of materials and equipment specified or described in the Bidding Documents without consideration of possible substitute or "or -equal" items. Whenever it is specified or described in the Bidding Documents that a substitute or "or -equal" item of material or equipment may be furnished or used by Contractor if acceptable to Engineer, application for such acceptance will not be considered by Engineer until after the Effective Date of the Agreement. ARTICLE 12 - SUBCONTRACTORS, SUPPLIERS, AND OTHERS 12.01 If the Supplementary Conditions require the identity of certain subcontractors, suppliers, individuals, or entities to be submitted to Owner in advance of a specified date prior to the Effective Date of the Agreement, the apparent successful Bidder, and any other Bidder so requested, shall within 5 days after Bid Opening, submit to Owner a list of all such subcontractors, suppliers, individuals, or entities proposed for those portions of the Work for which such identification is required. Such list shall be accompanied by an experience statement with pertinent information regarding similar projects and other evidence of qualification for each such subcontractor, supplier, individual, or entity if requested by Owner. If Owner or Engineer, after due investigation, has reasonable objection to any proposed subcontractor, supplier, individual, or entity, Owner may, before the Notice of Award is given, request apparent successful Bidder to submit a substitute, in which case apparent successful Bidder shall submit an acceptable substitute, Bidder's Bid price will be increased (or decreased) by the difference in cost occasioned by such substitution, and Owner may consider such price adjustment in evaluating Bids and making the Contract award. 12.02 If apparent successful Bidder declines to make any such substitution, Owner may award the Contract to the next lowest Bidder that proposes to use acceptable subcontractors, suppliers, individuals, or entities. Declining to make requested substitutions will not constitute grounds for forfeiture of the Bid Security of any Bidder. Any subcontractor, supplier, individual, or entity so listed and against which Owner or Engineer makes no written objection prior to the giving of the Notice of Award will be deemed acceptable to Owner and Engineer subject to revocation of such acceptance after the Effective Date of the Agreement as provided in Paragraph 6.06 of the General Conditions. 12.03 Contractor shall not be required to employ any subcontractor, supplier, individual, or entity against whom Contractor has reasonable objection. INSTRUCTIONS TO BIDDERS © 2012 Stantec 1193801635 002113-5 ARTICLE 13 - PREPARATION OF BID 13.01 The Bid Form is included with the Bidding Documents. 13.02 All blanks on the Bid Form shall be completed in ink and the Bid Form signed in ink. Erasures or alterations shall be initialed in ink by the person signing the Bid Form. A Bid price shall be indicated for each section, Bid Item, Alternate, adjustment Bid Unit Price Bid Item, and Bid Unit Price Bid Item listed therein. 13.03 A Bid by a corporation shall be executed in the corporate name by the president or a vice-president or other corporate officer accompanied by evidence of authority to sign. The corporate seal shall be affixed and attested by the secretary or an assistant secretary. The corporate address and state of incorporation shall be shown. 13.04 A Bid by a partnership shall be executed in the partnership name and signed by a partner (whose title must appear under the signature), accompanied by evidence of authority to sign. The official address of the partnership shall be shown. 13.05 A Bid by a limited liability company shall be executed in the name of the firm by a member and accompanied by evidence of authority to sign. The state of formation of the firm and the official address of the firm shall be shown. 13.06 A Bid by an individual shall show the Bidder's name and official address. 13.07 A Bid by a joint venture shall be executed by each joint venturer in the manner indicated on the Bid Form. The official address of the joint venture shall be shown. 13.08 All names shall be printed in ink below the signatures. 13.09The Bid shall contain an acknowledgment of receipt of all Addenda, the numbers of which shall be filled in on the Bid Form. 13.10 Postal and e-mail addresses and telephone and fax numbers for communications regarding the Bid shall be shown. 13.11 The Bid shall contain evidence of Bidder's authority and qualification to do business in the state where the Project is located, or Bidder shall covenant in writing to obtain such authority and qualification prior to award of the Contract and attach such covenant to the Bid. Bidder's state contractor license number, if any, shall also be shown on the Bid Form. ARTICLE 14 - BASIS OF BID; COMPARISON OF BIDS 14.01 Unit Price A. Bidders shall submit a Bid on a Bid Unit Price basis for each Bid Item of Work listed in the Bid Form. B. The total of all estimated prices will be the sum of the products of the estimated quantity of each Bid Item and the corresponding Bid Unit Price. The final quantities and Contract Price will be determined in accordance with Paragraph 11.03 of the General Conditions. INSTRUCTIONS TO BIDDERS O 2012 Stantec 193801635 002113-6 C. Discrepancies between the multiplication of units of work and Bid Unit Prices will be resolved in favor of the Bid Unit Prices. Discrepancies between the indicated sum of any column of figures and the correct sum thereof will be resolved in favor of the correct sum. D. Bids will be compared on the basis of the "Total Base Bid" and this amount will be the basis for determining the lowest Bidder. 14.02 Allowances A. For cash allowances the Bid price shall include such amounts as the Bidder deems proper for Contractor's overhead, costs, profit, and other expenses on account of cash allowances, if any, named in the Contract Documents, in accordance with Paragraph 11.02.6 of the General Conditions. 14.03 Completion Time Comparisons A. Bid prices will be compared after adjusting for differences in the time designated by Bidders for Substantial Completion. The adjusting amount will be determined at the rate set forth in the Contract Documents for liquidated damages for failing to achieve Substantial Completion for each day before or after the desired date appearing in Article 9 above. ARTICLE 15 - SUBMITTAL OF BID 15.01 Bid shall be submitted no later than the date and time prescribed and at the place indicated in the Advertisement or Invitation for Bids and shall be enclosed in a plainly marked package with the Project title (and, if applicable, the designated portion of the Project for which the Bid is submitted), the name and address of Bidder, and shall be accompanied by the Bid Security and other required documents. If a Bid is sent by mail or other delivery system, the sealed envelope containing the Bid shall be enclosed in a separate package plainly marked on the outside with the notation "BID ENCLOSED." A mailed Bid shall be addressed to Owner's office. 15.02 The Bid shall include the entire Document 00 41 10, Bid Form. This includes all attachments listed in Article 7.01 of the Bid Form and/or all forms included with the Bid Form. The Contractor may remove or copy these sheets from the Project Manual 15.03 The entire Project Manual should not be submitted with the Bid. ARTICLE 16 - MODIFICATION AND WITHDRAWAL OF BID 16.01 A Bid may be modified or withdrawn by an appropriate document duly executed in the same manner that a Bid must be executed and delivered to the place where Bids are to be submitted prior to the date and time for the Opening of Bids. 16.02 Bids may be withdrawn after Bid Opening only in accordance with the law. ARTICLE 17 - OPENING OF BIDS 17.01 Bids will be opened at the time and place indicated in the Advertisement or Invitation for Bids and, unless obviously non-responsive, read aloud publicly. An abstract of the amounts of the Base Bids and major Alternates, if any, will be made available to Bidders after the Project is awarded. INSTRUCTIONS TO BIDDERS © 2012 Stantec 1 193801635 002113-7 ARTICLE 18 - BIDS TO REMAIN SUBJECT TO ACCEPTANCE 18.01 All Bids will remain subject to acceptance for the period of time stated in the Bid Form, but Owner may, in its sole discretion, release any Bid and return the Bid Security prior to the end of this period. ARTICLE 19 - EVALUATION OF BIDS AND AWARD OF CONTRACT 19.01 If the Contract is awarded, award will be made on the basis of the lowest responsive, responsible, qualified Bidder determined by the Total Base Bid. 19.02 Owner reserves the right to reject any or all Bids, including without limitation, nonconforming, nonresponsive, unbalanced, or conditional Bids. Owner further reserves the right to reject the Bid of any Bidder whom it finds, after reasonable inquiry and evaluation, to not be responsible. Owner may also reject the Bid of any Bidder if Owner believes that it would not be in the best interest of the Project to make an award to that Bidder. Owner also reserves the right to waive all informalities not involving price, time, or changes in the Work and to negotiate contract terms with the successful Bidder. 19.03 More than one Bid for the same Work from an individual or entity under the same or different names will not be considered. Reasonable grounds for believing that any Bidder has an interest in more than 1 Bid for the Work may be cause for disqualification of that Bidder and the rejection of all Bids in which that Bidder has an interest. 19.04 In evaluating Bids, Owner will consider whether or not the Bids comply with the prescribed requirements, and such Alternates, Bid Unit Prices and other data, as may be requested in the Bid Form or prior to the Notice of Award. 19.05 In evaluating Bidders, Owner will consider the qualifications of Bidders and may consider the qualifications and experience of subcontractors, suppliers, and other individuals or entities proposed for those portions of the Work for which the identity of subcontractors, suppliers, and other individuals or entities must be submitted as provided in the Supplementary Conditions. 19.06 Owner may conduct such investigations as Owner deems necessary to establish the responsibility, qualifications, and financial ability of Bidders, proposed subcontractors, suppliers, individuals, or entities proposed for those portions of the Work in accordance with the Contract Documents. As a condition of its Bid, Bidder is required to waive any and all claims of whatever nature against Owner, Engineer, and their employees and agents which arise out of or relate to such investigations and statements made as a result thereof, except for statements that can be shown by clear and convincing evidence to be intentionally false and made with actual malice. This waiver is not intended to restrict Bidder's rights to challenge a Contract pursuant to law. 19.07 If the Contract is to be awarded, Owner will award the Contract to the Bidder whose Bid is in the best interests of the Project. ARTICLE 20 - CONTRACT SECURITY AND INSURANCE 20.01 Article 5 of the General Conditions, as may be modified by the Supplementary Conditions, sets forth Owner's requirements as to performance and payment bonds and insurance. When the successful Bidder delivers the executed Agreement to Owner, it shall be accompanied by such bonds. © 2012 Starntec 1 193801635 INSTRUCTIONS TO BIDDERS 002113-8 ARTICLE 21 SIGNING OF AGREEMENT 21.01 When Owner issues a Notice of Award to the successful Bidder, it shall be accompanied by the required number of unsigned counterparts of the Agreement along with the other Contract Documents which are identified in the Agreement as attached thereto. Within 15 days thereafter, successful Bidder shall sign and deliver the required number of counterparts of the Agreement and attached documents to Owner. Within 10 days thereafter, Owner shall deliver 2 fully signed counterparts to successful Bidder with a complete set of the Drawings with appropriate identification. END OF SECTION INSTRUCTIONS TO BIDDERS © 2012 Stantec 1 193801635 002113-9 SECTION 00 31 00 AVAILABLE PRO]ECT INFORMATION PART 1 GENERAL 1.01 SUMMARY A. Section Includes 1. Technical Data. 1.02 TECHNICAL DATA A. Portions of reports and drawings used by the Engineer in the preparation of Bidding Documents are available upon request to the Engineer. B. A Phase 1 Environmental Site Assessment was completed for the K -Mart building in -1998 and the following sections of this report have been included: 1. Phase 1 Environmental Assessment, completed by Property Solutions Inc., final version completed on June 1, 1998. 2. Asbestos Containing Materials Operations and Maintenance Program, completed by Property Solutions Inc. on April 28, 1998. C. A Demolition Survey for the former Wells Fargo building and former K -Mart building is currently being completed. Upon reception of the survey results, information regarding Demolition Survey will be provided to plan holders prior to the bid opening on November 29, 2012. PART 2 PRODUCTS Not Used. PART 3 EXECUTION Not Used. END OF SECTION AVAILABLE PROJECT INFORMATION © 2012 Stantec 1193801635 003100-1 Property Solutions Enwir�a me'rlt I nigi nearing Com 5u iting 11 Ett!.t P<;;dr%.o-, Fre kt . Suit -r! 502 - Chicago. Illinois GrefiaLf + 372-539-AV.9 • Fm T2• 139-a-.35 PHASE I E N IRON M ICTAL ASSESSMENT ilf Kmart Store 4338 and 4350 X ion AVen be NON'tb 14 e EIap4, Hennepin i`ouaty, Minne#srta 55418 f .repare+d far_ Silas Re-aily Services 4605 Pair Oaf. Place Dei tie Sarre 120 f}odrvem, Tlxa.4 7702e? f repan-d by. Propel y Sollrfralls fnzrrrporaled !! Jl,-lrsr Adams, Spire, 902 Chicago, lifiltais 6060.E Dra ft: Apr it 2 0, 1998 Final., June 1, 1998 Preper ty Sa]14tiom; Pr¢jert No. 486455 ;W-'% %C- w!-- J: O.ELDS e.a7: ME fcCA' "]mom CFO _'E5 :hu Property Solutions nwiro nmerlt Jnineer[n[D consuiting 11 Eass1 Aaari z Crr,ut - Suite W072 - Chicay1r3. Ilhl as BOB GJ • 3125-93it- 155:; + rax ;1'2 -•334 -Fd MS PHASE I ENVIRONMENTAL ASSESSMENT of Xn1art Store 43 010 and 43SO Xylan A van ue North Nei Elope, Rennepin Couaty, N1inaesoIa 55428 FmParedfer. 51hu Realry Seraces f raves -ren, Texas 77027 Prepar-ed 6.r. Properq Solutinirs Incorporated ii EastAdoint, Seita 902 Ch is ago, f1florais 60603 Draft. April 20, 1998 Final, JUnC 1, 1998 Property Son lutious Froj t No. 98(W55 Galina V. Geor.04 C'hriPlidt.4 Project Geologist NUnaRer of F:nviroamcn#n[ S r�i c�,: ii ,r44st Rrgian Kevin J. Bill -tags, F. Operattans i4ianager Pwo--, ti4i J:, p6rx-T vmv yr ow— w :$jq nrFiCF, iF. Pmi � AbELPI-%- 4 NEWO vclnK 4 CmCAGO 0 tC.S ANGELES DALLAS SECTION TABLE OF CONTE INTS I-XF.CLJTf%'F SI:NWARY 1.1 S ro pc of Worir _ ...... , . ... ... , .. (] GENERAIo PROPERTY T1+1FtJMItMA-E IO . .. , .... _ ... . , 2.1 Property Location-- 2.2 ocation . _ . • . 2.2 PFURcrlp l3i;scriPti0n 2.3 U-tiliiics .......... �k PHYSECAi. SETTINGS - - . .......... .. , 3.1 TrapQSraphyAtcgional Drainagr ....... _ ......... , .. , .......... .. 33.2 %olis ..... .. ... .................... . . , .. ... - .. . . , 3 3.3 l:taderlyinSFormat'= ..., .---- - - - - -- ._.., .T..------------3 3.4 GTOUndWater .......... . ........... .........,,4 4.0 ADJACENTPROPERTIES 5.47 111 S•FOPUCAL PROP ERT Y TNF OR!Ir1A-L ION 5.1 Aerial IrhoLograph-)- 5.2 J= i rc I nsurancc Naps :5.3 1'013ographic Maps _ 5.4 trrteiviEWS _ . _ ... . . 5.5 Previous Rcpurts 5.6 T dy.Directories _ . .. 6.0 F..NVIROitiMEeN7'AL RI:COESU kL-SHr%RC1T (a. ] Property SpvGif G Rcmds ... • .... _ ... _ .. ... It 6.2 IinVITOramMlal l atabase Information .. .. _ .... , . , _ ...... 10 ?.G PROPERTY VISIT .. . . ... . ...... . . _ lei 7.1 Under and Stor ge Tanks . - .. - - . , ... 1 '+ 7.2 Aba vcgrou nod S tnrage Tanks .... .... . - .. ...... l 7.3 POlyChl4rinatcd Biphertyl% Containing Eicctrk'I E�9k:ipnlcltt ..... , . '..4 1ly�drauLic Equipm-c"I .... • • ...... _ ....... _ .. _ _ .. _ .. . . . .... . ..... l 7.5 Asbcstas Com mning -Materials 1.6 Ch,..-mi{als, Ha2ardaug and Raw Nja[crialS.SLQTagC .. , , ... ........ i . � ��ne Geate ratio n ... .. _ .. _ _ .... _ . _ ........... _ . _ ....... 22 7,B Wells, Sumps, fits and Ficar Grains .. ............... .. ....... 23 ?.9 Shinn Nvatcr Rtmo[Tand Surl-aca watcr , , .. , , _ .... ... , _ , . , .. , . , F 21 7.10 [ .agaon. Septic Sysi ctrl s and SellaraLon , . ... ;.] I Stressed Vegetation, Staining ani1 Odom i 24 PrDpel'tV -SO lut 10FIS Ixr, 11 Ea51 SLAL 902 • Chug@. 111Tmm f0L1C3 . 313 -AM -45M . F-aA 312-939-E+G5 0.12 5urficial Visturbsoccs .. - .... _ .. _ ... _ .. _ _ .. .24 7.13 Palcncial WcOunds mrid MclWpl;Ains - ........ ...... 24 7.14 l& dGn..._......... .. _...._..- - _24 7.185 !_cavi -Based Paint , .. _ . . r e F .. . .. _ .. _ _ . , .. - - - - 25 7.17 Air Erni5sions........ . •--...__..._-.i� E 0 CONCI. 1;510NS AND RECOMMENDATIONS .. , ............ _ _ .... 25 9.0 [.1M17 _ -1-1 ONS TO THE RLPOR'r ...... _ . ......... _ _ 28 Appendix A: INJaps Appendix B: Prop ty Photographs Appandix .:: Aerial Photographs Appendix D: C arrespondenceiQucry Scorch Appendix £: Envirunmcntal DoLaha% Appendi,G Y: Analytical Rc�ulls Property Solutions iN, -1 Eit-it Adamr.rArVrt - 5LmIe902 - GeilG39D.11levis60603. 3t2-939-45DDf FaA TT -939- B105 lF,XI.CVTJ%?F ,UIiiIMARY 11ruperty Solution-, Incugioratcd (Property Solutions) has cnnducled a Phase i En ironenctltal Ass ssrncnt Nr a Krnart shnpping emilcr identi6cd as 4300 and 4350 X ylin Avenue North in New IICIPC', I4CR31epin f:ourrty, MutncEota, at the rcqucss of Situs Really Serviccs- The subj"L property ereeompassea approximatcly three acres and is imprO ed hV a rare-Alfty sllrtppins canner (suhjccr building). The subject building encompasses 115.492 square feet Of fhe subject property surface whLle the rertlaii der or the su6jcct properly c-onsists 01' dinoraim! laadstap4g. conerwe walkways and asphalt paved parking, Iola attd driveways. The subject. buddi.ng Nvas consiructod in 1972. and hft FMAIM&I in 11LO SAMIi general con lrigllraticln ;s1nee that tirt5e_ Prior in Me currcnt devcIopnium, the subjcet properly was %mileveloped agricuItural Land with it residential si ntct urc located along the wrzt sub j eel property border. The subj cct bbl ildi ng is constmcteal of 4tt:ILl mid masunry atop a cancreie slab foundation that does not contain a basement and utll3rzs 3*of- inounted cicrrLcally powered ventilation, mid air cotnditiordng. The subject huilding is serviced by it tlaturttl Ec«%j !Ati:1g o I I hailer located ail the cast portion of the subject properc y, Tb1 subject building contains two oornmci-ciaUrcleil units sLad ail auto service garogi:. 1110 Iwo Co.111m1Crt:ial.lreuqtl U114:5 VTV 4N;Cvpi4xt 1' y a Ft`inart marc (52,500 square fact) and arl Old. Aiticrica 5101c (42,0110square a feet)_ Tht: {old America mom (ars aFIs od e7afi store] was going CUL of b:,sines% as dIV tirft rif Site subject property visit. A Pcnskc AuLd SerVice ifonnedy a Knurl ALLtQ:Service) OLCLJlttes t11c garage (20,9}2 square feetI local ed in the south porticn of the subject huiICT inil 'Ili t Penske Auto Sc;rvicc icon Lei ns Lhrre autornabile ser%.-Lce *s that uiiiiYe Wei %, ground hydramLie Iifts. The Penske All Lo Sert•tce eanatutts gertCral alltOtIlDdVC mainiCn mx-- ae.ivittes on IhC Subject pra�prrxy slich as nii ehangcs, tiro replacement end wheel. 1clatiolls. WaSIC oil is g-erlera(Cd on the snll'ject property by Penske Tutee Service and is stood in an ebDVC ground storage tad- (AS'r) Wated alang the West 'Wal l of tllc garage. Cour rtumicxv *fgeaeral propen), information; ob5crvetion ofadjacenr pmperLics; rescarub 0rhistr3rical Imoper y Ir]i't1T1'rlazion includLng a review of env i romnenial rccordsF previous envirorimcntal rtpnrla and property -visit yaveaticd four issues -of potential cnviro amenml concern at the subject pmperly; Property Solutions observed rvidcnGe cif two underground atoragi larks (two fill parts:gad one vent pipe) located along the cast cxtcrior waLl of Me Kmart stone. V ispal observations did not reveal obvious evidence Df Leak detection or.spilI prevemioll equipment wociated with the on -property undcrgm and storage tanks (USTs)• Mr. Reiffid11a1'dt, Stork Manager of Kmart- inribirm~d Property Solatiouls that the subject building is scrviced by a natural gas"liming ail boiler although he had no knowledge of heating tail LSTs 16Catcd on the iubjeci properly. Pre#erLy 90111 ti 0915 contacted NIT. facet NcrpheA', Faeillt,V Mlanagcr of the Kit,ari shopping conte'. regarding the heating ail LIS -I's located on the subject properey. Mr Ncpllcw in formed Property Solutions 1hal the heating 43iil USTa are currently in usc. Mr. Nephov had no information perlkning ID Ilie tanks' installation date, capacity, COF)SEractilan or Icak PropeVt<SOIUti0312s I'4 t' 1I Enrt Adramr. Strnnl R a,ido+3C2 v r.4eago. Illino n del FXt + 312-$39-4500 - F,+. dnertioii and spill prcvmitiail etluipmanr. PTOperty S01aliults Was nmf 1110tNICd With jnfun-nat[on rcgajdLJlg inN'eJ1t0Q' I11011thly irl0ni10ri1l& Mr. l4+eplivwk had no know led rx iflank tial�ints� icStirl_4 has tice[7 c:ortti LO-Od On the AVjw4 hCaiiTtg 0j IWik a}siMLR ar uhu provi(lc:s lll.0 114a1uIg Oil trr the 5LLbjcct property. Properiv Scllwions colalacicd the Minnca*is En'`irunnreniel Man gamcr[t Division (MEX-IID) and tlra: New Hope Fire 0cpartnlcl;lt regarding the heating ojl USTs locatcd on the subjo;t pmperty, The EMEND had no infonnation in their files pmaining to klcaling rail I rlM; ]o� mcd on itic 3uhjcr1 pr€ipiw . Badd-Lan t11c 1Wk-0 F 111C irlftlrrn&lion perlaining to [he heatirig oiI 1J5T% Lucated€ ft tileSubjL:cL progeny, Property SOtUliorls beIi+:vcz illat lhepresencc orthe f30aiitlg 011 IjSTS tCll]'i`U31t an cnviriCjimenta) onnecni. Pinperty Sol LLE inns I'MOTC1111Cnds that. spceiftcaticns far the heating 0:I tanks he rev it:W�XI to ducumcni that the tank symerni sra in Compliance %%- WL Ineal, S[u[e mnd FudcroI llxgLlIatioms and that the monthly monitoring d0CtLMCntati-on (if e1+aikbk) he provirkd to Pmpr:rty SoIutions FUT TCvicww to dmilrMinc [he intc6nity oFihc LAST SysLcros. In add Aioil. F'Mp t'tV SolutioR4 FW011 Mend% thaul tj&htnC3S tests he conductend on the heating eel I LJSTs and tial ttic USTs be ragstered and brGught 1n colupl[anre +vith ell local, Statc and P`cderaI Regulations. Opinion sof pi'abaixLC cost to conduct a tightness test is estimated a4 S2.000. 2. The Kniart store cin 1i1c; subjrxL pruplcrty i5 islcTW n Laving rmc waste olL rayiweivd I -'ST (F %T) wiIli ern "actiac" status and as trotting RST {LI ST} incid.cni r 2842. Ac€.Dn ing I* the d3talra9c, the l.lt`ST was reparted Ju1v 10, 1990 and a etosurc Icuerwas issued on Octab;;r .al, 1995. Proprony SoLui ions contacted Mr. Paul Ncphew T+cgard ing inrarmilliun for the afcm-'rr entiorLecf LRST incident on the saubjt=t property. Mr. Nephew stated i.hat the w este oiL ]:.QST was as,sociated wil h the fora -ee KTrlart Aft service gartge cuncraly Qccupied by the L' an:skc ALLL a Ser'ricc. Mr. Ncphcw informed E'roperry SaLutions that a UST removal report w" prepaied 1)y 1NI R whirh docurnentcd the renloval of a waste raja L,1s'1 from the subject prope7ly ir1 1991. Property SDIV tiortsTugnsied a copy urthe rcpara doctimealingQL-Q UST renlowal "rn Mr. Nophcu and Situs Reaky Scivi= who provided Properly Soluiions with djxumelltalt oil that included invoices for the rcrnol:al and disposal of the UST and wntarninaLed soiL. No mpOrt LIci umentinh; the UST rCrr n al w;u provided to Prelrierty SoLutions. Property Soluticlim submitted a F01A request With htl'CPI LUST Division regarding the ].R$T incident on IhcsLLbjcci pruperiv. At tiie lime of the report gencra[ion, a Teti�QrlsC 111oin the abo vc agency had not bccn roceivcd . Property Sol utions M rimends that doL urrlentat ion regarding the I STrcrooval, the LRST and assciate.,d 60sum 14ttee 1$4 Provided hy Kmart inanaScinew for rcview- I- Duritig [he coume of (lie prDperey visit, [lie interior aacessLblc areas of the *Vbjcrt buiIdills Wk, M•iaLa.Al I Y !re%O ir' Wrd rrlr the pmsenre- cvf pollent i al ly w bestns con tai ping materk-LIS (A('W). The USEl'A dcfincs m9bestvs ertriiaining maturial as a ill aterial containing ,grcqter thall 00c lic:i;cpt (I%) a%bes os. Property Sol ution s,%v 11 EIJtAc#Ims Street • 5ea[e 902 • Ch1CMA. 111r%04s 60503 312-WO-45OG • Fag 3+I -9a9 -M5 5uspoct AChos in the form of 12" x 12" floor 611 acid associated 3n2stic, dry-waC and 2'x 4' ctilmg tiles wL:rc ahserved during the pnip4rty visit. Pardons or tali 12" x 12" floor ti Ic, wcro ohservcd to he in H 5luglifly dauliaged (--I I -Q wriditLon. Property SoW(iOtis crrlludel 11) saurlpLes of suspect ACM in the roan of 12" x 12" floor file and assaclatatl rrtwic, dryw alI antiL:i li3lk tik. 1'llc seunpics collected were 5v4nLitted under clusin-Cf-cuktLAV lea fntcrrs,'Lti031ay] Asbcstos. Testier, i.aliamtories (IATI,) oI' Mount Laurel, Ntew Mersey, for IVarized Ught Ddicroscopy ('PI Al) artaIy+sis. The alla!ylIral results mvcalcd Luvels ofashesl s. malcr IhAn 1 %3'11 all llrxrr lik 9;L1nPl&S amid x4rociatetJ' mastic collected frtlni the Kmmn alorc and Me Old America si0ee- The L2" a 12" fluor tiles wcru €hserved to be in ao :undaniaged and non-friaLalc condition 4 Unrig the prcrpert:y vLait. The rclllaining niptcrials ar5alu7 (drywall and 2•' x 4' c.ciling tilc-4 and linvlctLm) ti}erg faUnd to contain tangy--LIutuelata1c lave I & of asb-Pstos per Laboratory klral sms. IIowever, givicei the age: of the sub3jeel building I:1972). thare ira possibility that additional but ldinu 0natcriais nut Qlrycrved duri0l$ Clic prropeny vir-it rL3ay contain ashestas. Currr.-nLly thLLrre are no regulations requiririg the removaI of ACM linless it Wi11 be di$Lu-bcd durallg renovation a dcmulilicril. 'h1c FIIA has recommended that as long ia5 the ACM does 31-01 base an irriniiriew heal Eli ducat. Lhc m91criall can he managed Lander an Opera[ions acid fijin crla ncc I'Lan. Tt kWd upon the dctm ion of ACNis at the su.bjcct ]traperty, ['3OpCTIV SnIU6031s Mconlmcnds tbiLL arm Ash -stow O&M P]431 hr elevelrlped and impIgmartted far Lhe subject propcny. Cpinion 4pmibable cost to devOcip an Asbrstos I`k&NI Plan ror the subject }rroperIl is c+1iraaic4L at $4501. Property Solutions mL iowe+d in the CiLy cufNcww' I lope Building DCP2rt13lerll a1 Public Nvtire for C ertlf -air of Excmpilitan dated Supt amhcr 12, 1934 that A -as iSSLIed by h'LVCA to [tic Kniart swrc rur tile: uwt• of a PCB capacitor on the subject pruperty. The pathic notice indica'-d that LI1c Cevrd fu caL>r o f F re:nlptiorL can be r+cissued after a period o f five ycara. There vvar Lno add il otbal inforrnadonon Flo rcgarrdiiig the use of the PC13 capacitor On the subjCCL ,pnoporty. Property Sol utians contacted the KIPCA rcganding the 111f.13 capacitor, iocatcd inn the; 9VITjL:CL pralletty. Mr. Stew 1.4LRock I-rarnl M?C A Compiiance -Swell-it151twLCI Lhat Lharu m no lorLgcr a requirerrlerlt for melipanies that own PCIS equipniant to filer for Ccrtificatc or Exemption. Mr. LaRo+ck infenn€d Properly Solutioos that since the- rcquCsL For the Ceriaficate of Pxcmp i an wes Med try Kmart (the owner of tbc PCIS capacitor), Property Soludons should 1)e provided with infonnation rcger ng the 1'CH capecitor by Kmarl management. Property Solttllmut contacted Norlhern Status Pwlw= (NSN, the cicclrical scry icc prxwLder to the subject property, reg,xding the on -property PCB capacittlr. 4fs. toss Hilly, a mpre.wnitawtive orthe NSP, simed that all ?CB cquiipment in dhc arca cif rhe: subjcct pmperayr w.0 3e placed in apprn xirnately 3 990. Howcvcri she had no rec.orfJ art 1"i Le regarding Ih4 PC T3 capacitor 1ocP1 rel in 11M Kmart sLOFV. Mr. Nep]tcu' had no i n rertltat ion. regaWi ng the PCH c alaacitor on 1 her sobject property. PFpperty Sol utions did not nbsnVe a copac itor a: d the subject rToparty during lire pr{Miaerty %-fait, pMperty 50ILLCiorm recoin iiiends thaL itoru ricrttation TuSarLI.LCIStha status turtle PCB capaciinran tl3e subjct:l property Iyc pmviricd by Kmart malnagcrmcnl Far m w' icwr. PropertySolutions I . 'ft 905'. AUJIrni 5LTwr1 - SxAft9132 - Cheam. 11Una-r. 60 =1 * J'$ -0a9-4500 - Fax 317.0-"-91105 1.0 INTRODUCTION ION L'roperly S01IL11 l]1t4 l nrorperawd (Propcil y Sol ar roil s) has czrndwai a masr 1 Fn ti i ronmem al ASS4s�,Mncnt fora Kr3illnshoppii%center idmitified as 4300 siid 4350 Xy1on Avenue North in Xcww Iiopc, IIrmnepin Courcy, NJimicsota, at the rcyticst vfSitus Realtor Sc�itres. A property location nlafr iK 1TLEludrd iii Appl:ndix A of tbi6 report. I.l Scope of Work 'flt_s plyase 1 L-rw Tonrlmnial .4S~;cssEIJCnJ JVZ3 Gor dLICLCd irL-20:0rdWICC WiLjy Elie S19r5dard Und 6'c+c3r`4 Sirmaiulcd Fippl3rg. Raziings. [teal EstatLc:.JjX,-nt:e. I; �iiti401it1NnIHI C dLtria documcni, industry ;ik;cv- ,.vd pract ims and Lim Attrtmcmi Society for Tcsting amd MatenaIs (ASTM) Standard E 152 7 -9? - 2.o GENERAL PROPFRTY INFORMAT(ON Z.I 11roperzti• I.-seation I.hu b0bjicl piropcfly is Its almi az 1hl'_ noytheasl corner -of Xylon Avenuc XUrih 1E130 Rack ford RozuL. in r 4xTm3nerC3aVresidcntia1 mia (IrNew Hage, Iicnncpin [:Minty.. Minnesem. The SLlhj CCE propcoy is identil. cd as 4', UO and 4350 XyLon Aacnur: North. Acc€rrding to the l lennepin Cc=,,) JAsac�sor`s Office, tlii AU11iCCl property is Vurda ademiF1cd as Prapcily Inter Number (PTN) ill - I 1S -21 -11 - Ni 3. Velticular access to the subject propcny is provided by pylon Avenue North- 1'll,l: Suhiect pru15ett} is IDC3tNd On the iJnilvd States f'rcQlogical qur+r'r:y (LISGS) 7.5 inIm -c seri" Lnp[]�r7dPh3U gl5adi�aalg1C of . elY I f1157ie3 t �}i S7 nIrJ C:�5t5ilty. An excerpt Of theLAM MintIc!-04e-I{cr511 LOp gxaphic quadTangit. which outlines. the Lncmi3ot5 of Ihi; sulci t pmpc:nl+, i-,. ine luded in Appcnalix A ofihn; mpori. 2-7 Property 1 c5cripIittll The subj"I pruperty cncomp mes approximately three acres Mid is improved b% a ons-;~ivt� Shopping tetitcr (subject htLiIdinS). The subject buIloling encompissscs I L'5.492 equare fret of the xuhjl:eL I4rr5Pcn} SLUratt while the rEmainder Gf Elis subject prUj EAE consists of dceorative ILiMscaping. -co Lcrcte w,-LLk A-PLy3 and uAphah pavcd pmkirtg hair. and tivcwats. The sulrj,cct huiLdink, w m cany.lructed in 1972, veil] has remaincd in the same Scnl:ral conFigtarazi011 since that time. Prior to Iht current dcvcluprtioni, the subject pmprTty was undcvcIuped rhemed Land wills a residgr3LiELL KETUC[UI located along the west subject properiy� boder. The mibjwl blinding; i3~ sclrlsniletc�el of erect and masonry Atop a concrete slab foundation that does voL coTltain a bisemcnt and utilizes TO f- knounted cicxirically po ercd mcntil91ioLi, and air candilioning. TIM stlbiccz huilditig is serviced by a nater -M gas-Iieuting oil bodcr Ivcawd on the east pnTlerlrl Of tjle SLIbjCCL pnipt!rty. Properly SUIUt10JIS LNL E.sit Adaems Strew[ - Suite 902 - Chir.4go. Illinns 0=3 ► 312-4:i9-4 530 ■ :4h 3i2 -929-61c5 7'JLr: sub building t+ani in tin et�m�rieccial`rctail 1�11i1;c reLi a auto s�:r�'i c � ragl:, 7'lie tw o 4'0M111L 7CMLI fVla i 1 uniI5 Arc klc4 upped by a Krnarf. store (51,500 square feta) ant! all 014 Arncrac3 stui (421,M) square feet). The Old Aift°Aca s(orc (an arts and craii store) was g -Ding taut orhushiess al aIle Liarr.e of the suhicr<i plx)perty visit. A 111enskc Auto Service ((Dnaicrly a I+rltiart Awn Scrvic(;) �WCiLpIr'3 the Laragt: [20,992 square feet) located -on the s(1tah portion of the slLhjcd bUildUl& The PcriskL: Au1L) REMCC C0311ains thr=atilomobile servi-cehays that utibze helow ground h)draulic Wis. Tim Penske Auto Scrvic:e condacts gemaral autornsrti4e rrlainianwice activities on tllc subiet:L prnlirrty such as oil c11sLt1 es, tire* replacemcni and wheeI ratations. Wasm ml it� generated tan tht: sUbji%;l property by Penske ALLtU SCT-4'iCe and is stored in an PWve gr=nd S LUTa9C lank (AST) 10C,LLPrt ula ris the kv-c5t +wall of tllc &-hrage. Propsrty SL,>•lutians did nut ohserva nhvious cvi,denct: of criviron-mental. wei crn tlssodipi d +villa the currt'c11tL'nwits of the sµba]ctt property with the cxocpjion cl-waste nil, anti•frcc;rc and part%cle311in,g svi vent. gcncratcd at the Penske Auto S ervice. Soc S ccli.Un 7.2 and 7.7 fo r a €.crnp l4ta-llscl, tisior_ o r the ,SSTs .i11e1 activities eanducwd in the 1114inSl:c Auto Service faciIily. 2.3 Utilities Al�vllim 11 rij, to Mi. Lienitis Kc.irldh ardt, Siore Mwiagcr of the Kinari Sicrrv, die Nj1.liowing ralrip-ani L:,-% provid : widitics, 1-, 11`Le suhjL:Ct prolLvrly_ UTILITY I:ICtr1r1CiL Milural Cas ,SensLan° Sewer Potable W;1LL:r 1.1 TopagrapltyfRcgionAl Drainage - - PROVIDER North rn Sawa Power (NSP) KI Ln ne,L;O Seca (:LI+Y of Icx II-UPe C:Ity of New itLrpe A review c)r[lie IijSMS 7.S minute series topographic quadranglc Ofme �iIrM ta-I lerinepin aii4j![v was perfotinod to abscrvq W -r evidence of Inaliinadc struciurss. ftIL areas snd narurai reatum5 That may have an gxdV 5C aMCCE eat the lctivlrnonicnial condilion of the sub]cr.1 pmpeny_ Topograpliv Ira the vicinity vFthe subiect property appctrs to slope tel the Basi in the dirertian of Twin lakes, ILkaLLcd approximately two rrtilrs cast of the s.LLljLv propectY. Rcvicw u r tlac Ogep,M nnutta- F{kruac lir)'ngllytoplogmphict0adranglCivecaled ftaiha SLL�jcct ptopeny i.luratcdapproxirnatcl)' 93 0 fccI allin ti e mean sea ICV6. Property Sa ution% tN.c• 1: 9151 Ad!Lnr.Memel • 5.,de 302 + thcmago, Illinois frrj0 21 • 212-939--LBOD - ran sicvik;W orf 01c 0s,0q�Mtruiespla-]Iennekin (0LLnLV J(rrlbgriphiC quadrwiglc did nit TCVCUI evidCtIc. afe:nvironnlettta) corimni Irk the irr3mL:diLdc arca ofthc subjcci propenV re:gardiag topography and grkiund surf'ace. -fha N,ubject Prilptrry Consists in iropervious areas (6ubjecl building, paved parkIng Iot and rjPrM4TVte. walkwavO car decorative Landscaping. IIc stand watCr ruil t1fl-appeam 10 1�(_- roIIPrted is SIarr:1 water drains in tht: asphalt P3'% -'Cd 1larkirrg ]rpt li3 mi—i r9 on the subjca propr:riy nr infrlirate undevc1oped Trr)rti47nr, Pinperry Soltltions was ttlf'ornied Alar dic +siurm water d7airr5 GITL t}ru 5ubjeut property dISd)W11L 1rlta the Ci Ly af'KLw ITnpcslt rm sc:wcrsysicnl. surfaccwatcr al the subject property can lye CYLPUCtcrj 10 rOl I &W thew 10C tePOgrophy and flow Io tlic cast in the dircclicn of ` wIrL Lakcs, Itwated spproxitnatcly two miles cast of the suh.jcct propeny. 1%11 CXCCrpt froffr the± l:','(,S 7,5 mint3tc acrics topographic quadranglc nimp of Qss .o M :nnasola- [ Ienrrullin C ourrty. oua[in ing the hication of IKc subject properly, is provided in Appcodix A -Lsf`the. mport. 3,2 Soils Hated on a rcv ickv of the l.rlitcd �'ialcs DCpArlrrlCrnt oI'Ag3ricuIture and %til ('031 Ser'V21 i EN! SL:T%ie{'K, SpII Sur%L! � KIf rI&IIIapirl u�I}. !4ii ln�a. 1974, the sails an the scab;cwt consisL of CU aura C31 land. CUL anti fill ]arid is a rnisccH ancaas land type Mat wnsists of arcas that have b=i i'Jevr-loped thr building %veh as chLLrchcs. shoppirLg cenLers, cic.-I'11i.s soil typ'c is iecatW in depressions and crit knal IL, 'Pic mil ralatcriak is guncrally sini0ar ter the 40Lls that are nearby. A%cas ufcut and til] Ia11d ra,ll!e 4.1 sire fturn tw o to 160 acres or mare- Depth of the watcr taint varies frons pIacc to place in LllrsL' -Lill ilLi. The cut and F1 11 laml is allowed tri sack and compacL beforc r:onstruction. This land tapc supports Law buildings. Graded land shnuId he allram+.e+ld to sc;tle liar a }ear berom bcgins2i ng Me ronscructrArl. In many places there are arca: of loamy or clayey material- The rLattlraI gteueture of the snrL dcstroyed dVring the grad i ng process. Perm eabihiy is gin w. 3.3 Uikiieriving Form Ilion Rt1 vicw of 1 hc Qcviaz is -MAP of Mianm.0,Mru1t:-Um pg (]996), compiIcd by G -B. Nklmv, rc 4aLcd that bcd rock in the arc$ of the subi cct p roperty consists of Pa Icozaic rocks. Upp'cr Caralbri an Sysicm, undivided. Tho Upper Cambrian alts include the Jordan Sandstone; drlloinitic, ?tatLcorlitie rocks -of the St. Lawrencc and Franconia Formaiiam- No lnfan-9ati-on on depth to hi:ryr'11ck was pTovided I PI'OPell YSO] t1iti611 9 Jae' 11 East Ad,im3 5trVet • 5wtEl 902 • CI% %.196. U:r6r , G06M 1 512-2:39-46.10 ■ Fax 5 3-4 [pro u ad 'Vk' ater Rc-.-icw of the atifonat Water -urr�nj L9E6=1fydrulgi:ic Rvents andound WaWr Qualily, published by the l)nirvd :Mates ConiGgicul Survey, revealed that the subjwl Pwp4rty is under Iaia by Jh(: S1• P4TL7 ZgUlfer. ThC %T- PULeraqui Fcr is compoud rnaiJiLy of sandstunc, 11125t. 11CkEr agltifcr is �cIdont LLStjl Wr Walt:r xulzplIes bocausc larger well yields can he obtained fmn1 olh*r Sgoifrrs N'o InFormat inn was available rcgrding the depths of the aquifers. B€ised € n the topography -of the suhjCct pruperly and surrounding area, shallow gnitind w aler is expocted to be at M appivximitte dcp+h uf2[t feet below surface gradc wd flia • io the east, in Lhe dircction of ille rwin Lakes, located approxisivatcly Lwo miles east Gf the subject properiy. 4.0 ADJACENT PROPM-1-JES Propeily So I utions perliimned research Gfairailab IC L EM11eliOD.aS kkelL 2L; visual. olrs mations orthe ad,iacant popeirtics, to akcrvc for visual c}idvica W'enviTanmental COrnarmnaturr3 which mould adversetv iiinpact the subjeu propuily. Tile stlhjcct property is loLacd im a L{3mmercialiresidvatial ZiTca of Ne% Hope. Minnesota. The subjCCL pTUper y is bo,•dered by Lhc foliowingJj nd uses: N0r(b. The subjcct psnperly i-, bl]Und on th-e north by niulti-Romily aliartrrnent buildin25. Farrhor ruOrt13 is 45tH Ati'Lnaa_ Fait_ The subject property is bound on 111c mt by the New Elope. City C enlcr strip rttall. The .1.11jUCCIA strip mall was obscrvcd lo be uccupied by 3n Applehcc Rcstxµrant, €'hincsc Rwaursrit, Com Cutters, Mmil Unxes, Taco John. Subway and SLi shinc dry cleaners. af;aRlter Cast is Winactka Avenuc. SD!Wth: Th -v :5vbj x.' pmipe3ny is hound on the south by ROC1.1brd Road (42nd Aueliuu). Farther m7u1h is Gretllscroane Cemetery. West: 1'be stLbjiN;t prcbpi riy i:u bnwLd {SIS tllc +t•ast by 1 ylon Avcnue North. Farther Wee il: Nc%v Flopc City Hall, City of New Hope swimminp. pouf. Civic Center I}arls P LaYgr4uM and the Wiry of ; lew Hope Fi rc D"rtmenl. Visual revic3v of edj€rclrnt properties rront public thaToughfaMS did not MVCRl cV:detiee Of 011 iro7u ental concern regarding tltic Edj semi pnapertics. ITowever, it slluuid be rioted that Sunshine Lh�- cleastcrs Located in The cast ddj wrcni mall is 1 feted as RCILA Strlul l Qllmity Ginlerator (5 QG) is f ha?ardous waste. Further irtfk=Mtion ragaid]ng the li€IjgVCnl RCRA SQG is available: in Smfioil (5.2 Q this repOtt_ 1"he relttautni adjacent properti4s ware not 1iSred in [lie Slow and Federal databases re vica:c:cl. 4 Property Solutions iM: '.I EA7- arr,-& $$ foul - GuRO i3ii3 • CiNCagg. I*.+djil. iC603 - 312-939-A52C) - Ora, 3,! 2- id'•:1� 5,0 InsTORICA1. PRO , ERT Y I N F%]RMA11ON I11:V 131St -01) Qftile SubjCM pMP'L!FlY w a� evaluated by inftcndelltly rescamhing the prier ri+k•ncrs or Oper:110T4 ii the property-. 4y reviL:wirLg available and rclL; atj1 aerial photagr;tp hs it)-nbstr%-e titr &V i dMIrC 01'0314i3otirnental conlantinal i0n; b mviewrialg Ill availabiIitY r-fFir4 Insuranrc Maps In -oliewrve the historical OCCL311331ts of clic s0joct property wid surToundirtg 1,roperries; by reviewing rel c►•3nt topographit; rnap,, to abscr+•c for evitlertrx a inai7-mad'e s9rtaCLumSF fill areas and nr-tLir.il f�wures tljat relay have an adycrsa irnpact on the CnVir63litaentZl condition of'the subjet:t prepcay. lean by itstervicwing persotas 1; now jedgezble of t11t: hiswTical utu!s of the subi get pro.party. 5-1 Aerial Phoingrapl:a AL:I L -al photographs diced 1955, E983 and 1991 wcre reviewed in t1W Citi- ryf IN HoPc BreiLdiVH. I]claattnwatt. Thr: aerial phutagrxphs wcrc rcvjmvetl Fur evidcncc of env irrlbucrhtal corccrns or, ui roeartlle stlbjet:t prt)perty- -[,]1c following is it di,eyssaon c the peel phatopr,7ph rek'iew: 1955: `rile 1955 aerial photagralih rev-calcd the subjecr praperty as vPCoilt agrieuIturaI land with a residonlFal stALCIU a near thy: 5olpthw*S1 cornier aEthe sttlaject pr-DpertY. The 1955 aerial 1lholograph rcvcAlr~d 1hr adjacent prupea'ti-ts as prcdominandy ',-3c031t undev lopcd s,;riculiur I land- Two residential structures -were lac ated soutb of the subiect P»npertv. 199-1: '!'be 11983 aeriaL photograph rc}•cP14(L that slit: subjw pmpwly was dcvchaped IwUh a rectangular-shopW corn mercial building and =L)ciatod parking Lot siiniIar in con rigoration io tlae b a[ I di ng observed dturinL th-e property visit. The 198 3 wrial 15hotograph revealed that the north atijae-crit properly w ems deVC143pod;;i1h apartnterttbuildings. The =and w -em adj aunt pmpertivt were dcvciopod wilhcoirnncrci.tl serum mare& sits OW ill carritgt]ratign i-, [Ile stntcttrres -Ohscn ed dt,ri ng the Tr-CFnt prUperty V i sit. The Wath adjacent propcny r=ained andcveiopod, grassy vacant land. 1991: TE3c 1991 aerial pFhc+tvgraph revealed no major clsarrgt:s to tllc 3%3bjeet property or Udj=erik properties ft m the t9K3 aeriaL photograph l -hoc rcvic%v of di -e aerial photographs did got reveal evidence ofenviTonmental concern Ql1 or adjacent its the subject properiy. A cnl�u of the 1983 aerial phDiograp]i is included is Appendix C of 111i report. 5 Prop er#y Solutions :*:r- ep;r, gQMSStrq+st !Saiho 002 o Cnicarn. 141rars 60603 - 3+2-13319-45043 t:3;, 3,12-930.3-e136 :5,2 Vire Iasuran cc flims t l[ �r15uTdn[L ia1Ps ctl4�!'riel flee subjcvt propeny u'erC "u1'SLC(1 Erten H.1ltir0ArLlCJll11 RLsk Information & Irnaging S4r%-G;eq [F.R115) of Hmidon. Virginia. EPJIS l4jPti ill ji)niLed Prt p!Fly 1-cluliorm that no historical mclps a� available for the subject property in the LRUS hizoricat m-ap trI I4t'li X111 Covering the years IN 67-1990. fbc resuhs of Chu Map search are included in Appendix A - TcPpbgmphic.Ntaps A re+Lru 1, NIL! United ScamsGeologicaal Strrvey(LISGS) 7.5 mintltescritmtopographic qua€Jrarlgle of +Ommera. Niulrlesata-NeaaGnin V011nsv was perFormej Lel obsem-t: iiar evidence of man -malt: simclures, fill areas and natural reaturm than may have an adverse al%t an the enoirnrlrncnul CUPldiIisln Uf lila mbject propany. ,me towgraphic gtlaclrangle was croaled in L967 from aerial pbotagraphs iakell in 1966 acid field ellcekod in 1967. The map u•as 12dUed in 1993 from aerial photographs hakcn in L091-1992. A TL;['W1b.RiLar-shaped structure 57rtlilar in can figurat ion to the subicr.i huiIdin.6 obseryed L1unnQ the pr{,lwny Vi!tir K'a5 Idl MLtied oil ttac subiom pro-perty. Rwongularr-shaped k3-actures %%-crc 405r1 ohm.-rl•ftl on the north and cast adracctlt pry pwies, The structum% sl3OWl3 oli the sulajoct praperty tiniI Lh1$ Tuirtll and last adjaccm property wcre dcpictcd in pump: tint which indicates mvis1oll-5 fmrn 7h1: I T)1-1992 aerial phatographs. i'll0 m it:W Of the f}ssca. %(int)QS0tR-11crLrLgRjjR l2y lopQgraphic quadrangLe did not reveal L; 4 i dCF1Gc of Cf. i rrrrl rrleritat C 0110 :nl; ill the lil lt]tt d i arc amm of the subj ecl property. A pDriion of the USGS 7.5 MillLft scrics tU])*gr,Lpllie quadrmiglc of Qssgp. N-Unnesola-Hennepin 'aunt%,, whLCh 3ncLudcs ibc suhjcct property, is inejudcd fly Appendix A o this mpoll 5.4 Uterviews property SoLuiions ia,tervimad fir. Dennis Rcinhardt. Store � ankeer of Kmart, for jnForrllatia[I rcwding the sLLbjccl property. iwir. Eleitlhandt informed Prvperty Solutions that the sub .PC i bui ldirtg ,A'a_ carLstructed in 197?. To the brit of his kma%-ledge, ilia suhjem build'Vng t3as wrislstentJs• bear Lll Ll i rad as a retail stare. Mr. Rei nhardt had no knowledgc of UrudErpwnd stn rags: tarLks or asbcsrus contai naig ni alerials 1Qcalod 4�n Cl is s ubj cc i pmlpemy. 11 should be noted that the subj =t pr13TX3 t;r 19 lrgistert:d ati frauing carie mCiscercd storagc imk (RST) and as Icalr.ing RST {i.RST) irlGtftnt.4 2942. See Sections 6.2 and 7.1 for cvntplctc diseoasion rc�ardiiig USTs on -Lbe s hject property. Prciilerty SoWtimis contacted K-jr. PaLdJ i 4rEP11CW, f=acilily Mt{nager f6r the Kma n store. 'fir. Nepiym st.�tecl tllal a �ti'astcail undctounai sit}ragetank (LJS1') wa5 ftannt'r1 Gatetl an the subject llrclllett assoc Wed mit the KmArt awn service. '1 he w rile rill UST was rejuv ted J'ram the subjt~c;t prupetix• CA Rraopr eihty Solutions `.tip' 11 E36C Ada, Iiy EV - SwLe'302 m CnW.n00. 1 h9*0iy ROW3 m 112-tP}rl-450€3 4 �:;ta ate -939 -VDD in 199 L. j%jr. \1ep11eW irlfhrT110rt Property Solutions that he had a 1j ST rOT91O 'al rlvpart dated 199 1 rcuarding the wasteoiI tank. In adrdiiiMl, M- r. Nephew rglorted that thcre arc two a41ivc hcaLing of l NTs on the subjccI prupmy- Mc. Napl1ew had no -in formation pertaining to the installateon daw;, cry+aciries, constr actions or leaf- LLCICCLion aTLd spill PFOVOr31i*Fl equipincra for Lha: healing viI Systc-M. I!L! Ii3d no kt3owledgw if tank tightncss tmL has b4vii conducted tin the tank- syslcnus on the subjccL Property Sulu Liol l s w a,5 inforrni�d by MI r. Dr3t3S Sandalad, Bui lding Official for 1130 City cii' Nr►4 Hary Bui11ling I3clyartlrecnt, Lh;iL 1110 WhjW ]?KWf1V WASV--CAW agTlCultural land prior 10 the construttlon n the subjtcl budding. Accarding to Mr. Sandstad, the subject pmpmy has bc,:n t3ti11ZL!d fOr cornmert:ial"rOwiI puTpuses sinmcon strructi-0111msaa io 1972- 5-5 Prey ion Reports Properly %ohiLio as SI 'as not provided willl previ4LIS CnvirQnrncrtlA1 2sscSs111011s COndtictcd at Ilia %ubjc,cL pwuperty by Situs Really Semi= or dic stibicct lrTUperiy rrpreserltatiVC. Mr. PaVI NCPbeve'. ]sae: iIity Manager of Kmart store, informcd Pnipmy Sol utiOus that 11c possessed EL UST remnval rcrort altar ua-S prepared by L•'MSIt and docunlcnicd the rcmoval of a wamie rail 1.15.r frclm the s4Ll)jc'a properiv try L"1. Propcny SoL4ttioIi% Mquestud acopy ofthe rgmrt documcnling the UST removal. Situs li.ealty ar1-1 Mr. Ncphc%%- providod Prop -env Solutions with docurr ntation that illfiI dad in %incus tiiIr the reaniavaL and di sposltl of zhe UST anr3 L;e>'rga nli3lated so t. 'so rcp*rL duLtunoof irlci the j,S'I' renirival provided to property SOU1I Qrls. PrV130rty SaLat ions recormcnd-i char the UST t einoval and C.RST report be prraui€Icd by Kmart n1i11agcnlcal Jur mvicw 5.6 City Directuries Prop crty SoIti, ion.& reviewed E3olk's City Dircctories fear Lhc City of New Hope. dnling 14)", 1950 10 19.4 9, 2Dd the Polk's gross Rcfcrcn'cc Direxlory dor the G.Pre:ater Minncapolis Metmpo3itan A= dated 1997. si }ICnnepita C.Dumy Soulhdalc ArcEL Public Librgry bi FdLna, Mirincsom. The city ditucicriics w-crc reuiewcd in appmxin, jtct%%_j)_ e_Ar iutcrvals. CitydiTmlurics prior to 1950 wear not aaai ]able. The subj ccl pruperi;r aeLlrass was I i sted for the first lime jo the 3 97.E Polk's C it} Di reefory as Kmart DiKrjunt Dci#.11`tment store. The rL!%:iL!%v oftlle historical city dl rqi; trifies reveaLed. that the ICmzl stOre address (4300) was Iisled on IhL subject properry frons 1973 io prc5enl as Kmart Discount Dep.Lrtmeru 5tr)m. The rev iex-of the histo ical Oy directorics revcalcd that Unit 4350 *-as occupied by FII fa nn Store F"F7l0 frons 1973 to 1979. Frorn 1979 to 1982, UnIt 4330 was occupied by a Country C71LLb 4larket. Frons ] Vii 3 10 1996. 001 Krllatt storax was liis O on iflc subject properiy. `l'hc Pe n!Rke Auto Sen ice rw fi.5 HsLcmi Fh3- the first trnic in the 199? Poll's ('Foss-Etcrercncc DIFCO-Dr)'. 7 Proper y Sol utionS r%r - EAM Aid—W, 51.r{gt . 51iit!g11Q2 - ChiM".m v. I.nnr)iaa r9Coa.q • 3M.930-4 500 0 Fam !11:2-9JL)-S'€5 Thc• rcvicw' rtr' Ihae histii(rital city dircciorics did riot rcvcal hisloricid operations on d1C subjc[:L properly wkiir1l. represent a POtL11tial Cnv ir01lMe'n[:al CD11cCnl. crccvl+L for rhe Penske Auto Sjcrvicc (fornlcr ICrmwt Rutrt service) p,aragc, 1 sWd in the 1997 1`olk's Crass-Worener Directory. 6.0 ENVIRC)NWNTA1. RECORD RESEARCH 6.a 11'rraperte- Specific Ronreds Durimg Ih;! CtlLL[5C OF the inVC1,riF.atiun Elrmc subjcc-t pr-Qperry, PrOperty %131Winn-, r-ontacted the fol low ipg gn v Primir-mal agencies via Icicphetne, fitceie'riile Or in person: 1. 013V of NCW Hopc I,[TWR viIdimg. I3apartment N -L W I I Q11 e, hal in US= Propaly. Solutin3ls ccntacted th-c City $f New Haler Firc IDerparirrlent reguding records car* file For the subject proNny. Property Solution$ was informed that elle fare lospcs_Lion AbU ildi g punni1R fear th-a subjecl properLy am kcpl irr carie central Mein Lilt #'tty jai' N ww H€Llac ]#vilrlirs.I} pannlctit. 1"foller[y Solu, Ions nisi tcd 1 he City Tai' Netw kigx BL%i1d i ng DC]i.artanE!1lt 10 revim Ivcrrrrits arrd m-,:oad-% that wcrecii filer pertaining tis the sLtkajecipmpert}. PFoperty ,%caluliotis wLuprovidc4 access to rccDrds pr;ilal ing l0Ilie sulijccl property addresses. The Carl icsL perinal pie f;Le was issued on Scplumbur 9, 1973 to Hannan Company for the construction of a cion1mcmiall hLLi]elaitg Ori the` subject laroperty. Tho suhiert p:oJ3Crtw OWn4r irLeeltifJed Oil the bLtitdirlx per Ilii was INversified Dcvclopeis. A Ccrlilwcau: aria: Upancy WILS isSuJ!d(0 Kivatt On tLnc 2- 1472. Suk2sequcrit twildiliRg. permil9 -Elated 19-7, 1978 mil 1980 weCrc issm'd for rcno v ationw, alterations and garagL: rcair- Dire illgp=Lion permits d3ted L978. 1980. and 11195 rc,r tltc use of tamardous =Lcdals-an-pr�jmny arctic issued to FCinmi automolivc for tilt use of a 1© -gallon container of soIvcnt on the subjeel property, and for the storage of waste tail and 1130M evil. A Public Notice for Certificate of Exernpxiorl, deed September 12. 1 84. was issued by *irtrtesota Pollution Ctan(ml. Age[icy (MI? A) to Koran slot°e for the Lise of a PCR Waritor ur9 thk; stlbjW prnrtr•eriy- The PUbiic not Icc irtdicatcd [hat the Certifieauc 0f f r:crrlp601`1 MMM he` TEissuc l after a period of five years. Therc w&s no mlidiitiartal inf€ammian on file icge3rding the use aFthe PC_I3 capacitor on Lhc subject properry. BULIdLolg perrml r (N)167a. flared May 14, 1T')0, i --mut l to Tank Rccvclurs, Jnc. for the malovtiI fired disposal of a I,()DO-Vallop waste oiI UST [turn the ori -property Kmart Fac ilily. 111 addWQrt. a map drnwo by ENSR Construction Company (the tonsultant for subject pr+apelly) 7v% -c LJEd thil the 1b3I1ner 1.00 -go I Inrr Waste oil UST w m Bleated so u th of the muw g Property Sn1uf ir>n%:m- r. EAW! ArAmr, 5er.eat . Su;tE W32 • Chirm9m. lonlairs BC603 + 312-9313--1500 . F;t■ 312-9311-8"35 ysrviCC Vralc, along chi !.,ouLh Vcwri-oreta[3 of the 5ul}ject bulldiLIZ. Hie f:ltiSM Map With the Falmer location oftlic waste: a i I IST is included is Apper3diA l; Propc rly SO tui io n5 XviV.VC41 d le ael., dared Janu aq 27, 1993, from M inlicsota PDI luti an t`onlua€ Aguary (NIMA) to ENSR. Tlic K.IP(,'A %;wed iltat the ENSR documentation subiniic4e3 tar rc icw rcgarding itic waste all UST rernoval was iilsull< C10itt. Tties MEICA rcconiniCndcxl that corrccliva act Ian bc. taken to Clcdr! LLP the c[ luarnination round a ll the subject property. Th most recent ri cord ton fila for the subject properly wiui CCTIi.ri wit i011 or 1{saarioLm MAcrials inspection rcwrd issuvd From 1h4 City oCNc%v Hope F)ir. P'Jcvcntion 8UTCQU Ra the 13cnskc Auto Ccnter, dated Noycnabe.r 10, 1997, for a 200-gallon waste ciil A$T and a 1ri- gallon salvent parts cicancrc. Na permili. rcgardilig the hcuiinE oil Lindcrground storage tanks (kJ STs) locatcd oft thn subject propwy wcrc pwvidal to Prapert} Solu lions by Ibc Cir} [1f Now Ilope Ilu1I ling Depmmiucnt. UIli Md States Lnmironmcntat PFIteclion Agencp•-Rcg,ion 5 (USUV ) Chicago, 111410IS 11ropertw Solutions SUbmi.1tod a Fmcdom of InFeirrnarion :let (F03 A) request to the Unilcd Sia s HnvironrncntQI I'mtcctinn Agcr,cy(LIST- A) for irtfurrnati€tn pelrtainimg to Il c auhj;�cE prnperLy. Tlic .stir and Ra diaiLon 13ivislGn inlnrmcd Property SaILLE Lon 5 Lbat TI-n inf01311 31ie13i iN tirL bic rar rlLc AubjtcL prOpOrty The I.:SEPA Rc&ian. 5 1Arastc, Nsticides und Toxics Divi,.ion had two Noti fical ia rL AILS of 6jrardour,Waste ActivRies datvJ November 19, 1995 aiid June 22, 1988 for the disposal eaf ig;nitalile and toxic waste (waste. code 0101 and DOOO) by the runner K-Nfim Atau Mpartmcitt, Goicrator H MND071490668. In addition, n Noti fieri[ ri ofRcgulatcdW.& AcLiviIy ctataxl TRxcmbvr El, 1945 by Pcrtske Auto CurLtcr, (iencrator it MNK 4)01 016 402 currently Located in tile: sobjeci building, +vas on Fic fnr the diwrosal Oftuxic waste (Wa5;tc code DOW). No violatians an pIc wcrc found in the LI) ronr►atioL) receivcd from tki;115EPA Wade, Pc:51Lcidcs and Tux Gcs Divisi(an- During Lliei COUT5! 0f the 111VIM 1gattion of the subjco properly, PTupeny Solutions r_Dniactcd the following local, State and Federal gave mmental 4006CS= + -Minnesota PoRuLLCm Central PFataction Agcnc nivis ion tar EtsaalydauLi Wasm Managcine nt Minne,91mlis. NUMIcsOla Prop ertV SoIutio"Lv I.-,1• 11 EJ-61Ad3-1.S[ae+e`[ - Sui[V 1902 • C111CMV0. 111004S b - 3'e-939-JIsgc . Fas 312,rJM•0105 'i a rt4,etve i13I'O,sllM1UNI on } owntial recortis that a go ej=,cnry 11 t%' hold, a Wrillen M1gVCsl W 11-C agCF3L V r t y ucst i ng a record scan -h must Ile mads:. At the tint of mporr p reparation. respo nses iram dic: a buve agencies had not bccn rmcivvd- Rer ASTi;,+J Standard C 1$27-417, infornmaltan nal pm idicd wiihin 20 catcndir da }s of the age nry's rtoeipt of wn'ittcn natiCC Ps rat reasonably resecrta5nahlc. Proper -V SO] tllinnS r?cFromicd an on-Iinescitrch via t11e Latemt<t t4 tablaia inrcnnationconccmingiht; fiubject propwy Prnperty S'olutions performcd a .r-ai[kreh of E:nvimfa[cts, a USI -'ISA gencralw websilc that snttgrAUS dela txtasctod frn,n fiVC major CPA pmgram sys(err14: Aeraniciric Infnmiation Kctriclal Syst-0111 (AIRS)WRS Facili[j' Sabsystcni {NEST,-Compichensivc IF.114ir+ti1trnerr[u1 Rte sparnw, C:alnpen.uliananti L.iabiliEy InJbMtationSy;itcm l E:itt;'J.ESj, Permit Cornplianec 5ysteol (P('S), Rcsourcc Conservation ¢i,jl Recovery Informatian SyiteAl (RC'K.LS) &tact Taxic Chemical Relca st: LrtVOThlry System (MS), 41si:ig two integrating dttlabmes: Facility Index System (FINDS) and Master Chcmical Integrator IEMCl�. PR1Pcry Sralutions ggicratcd iL priwour of all facilities rtndcr dtie prOgralns idc:liti:Fcd ah0% WK h tri kWaLcd %vith 2n thc;~ubjcrt prapeav's Ap-codc (43402). The subioci propC71y and Elie Sunshine dry cleaners located ort the cast adjacfrlt pnopeny were li51ed by address and narne tit the query Varela RE hazardous wasEe 1a:irtdll"r1t. TIM rcrtaairung tuLjacer[t propenics wcri; TttA listed by name. ad&css nr flcilily t}pc- Tho querk- Wa[: CX0Ctatcd IDP NIHTC711 25, 199. See Sectican 6.2 fur dMGk:53H{2,1 regarding the SUbjcc;l p"OpeTt} aced cam adjacent R(:l 1'6611195. Copics QDlie Loll vi--% of correspoader ;c and the qu-cR, search art: a1lclu ed in Appor,-diX 11. Of lhis 61 >N nViranittayrttal Databasc Iuferwation During t11c cowse of 111c Phasc 1 Envirorlmemit;z) ±tssc:ssmcn[, Property SoLutitlits utilized 1:aati'irontnermLl R A lnfarniation and Imaging Scruiccs (F-RIIS) of Mena -don. Virgirua aj an ird'01FAratsan source for cnaironmeltitaLdaisbaserccords. 'Th& cai irorLmenta l database w -as rtrx4trc%ted on March 2i, 1995. Latex supplicd by EN IS is incliKled its Appcndix For1w, mport. Ple iitiTlow ing suEtamwry -nr database information isodivided into two parts. The first part Iisr5 sites ielr[t[liLed and Lar, sted by the da wbaasc sicrvivc company within the spcGi6ed radius of rhe sabject properly. The ;erond Part Contains a 01scu5#ion of"t npLulta'WC sits' Which could nrrt be radius kwaied by the databa;sc service-campokly. Thcsc -Oim werc not radius rejH;rtcd by ilic database cumpany chic to incarnpletc ancVor inaccuridr, Iddress iuf[armation included in the United States Encirunim cnlxl Notedlal Agcncy (US FPA)f',Statedatabasc. AI[11OLL811 the Cltacl l a[ia)rk4 Of ttic "unplUtiAblc silos 'are frcqucrttlk vnktlrar%,n. Prvperiy Srlltatiuns ;t1M31Lllt# to CVD IIL91C Elly: p01.12111 I adverse a nvt]iFRr'swntat impact thcsc tiles ha vc fan the subjert property. This evalualion consults 0r tWO parts, th4 first includes a rcview Of street rattles to dirtc,icI IC of the stmt:t tin whirelt tkic facility is Ioclggj is Fan of the radius arca for the subject iL) Pro])-ertV 8olutlons stir' :. FaB1jr.Varns Atriwr 1 dude 907 ■ Chragw, III ral?—&36 B • 312-09-4KC . Fria 712-479-OVI, 17r[F[3ifLV; (tic 5xand 4JJCILLIJVS art evaluation bnsW prt1Tmri1v an raci lty L)-pa-r.LrLLL infaniiation A�}Witfixi by ga ini-nniCiit . gew;ICs. I'" 1N:nti�irlanrncnial I}�Lts>b�se �urn�x�� RA7el&4; J= -- R.{MUT PLOTTARLE V..V r07T[BL Fal inna1 P310rIII M; 1.1 -St I Mile 0 0 Minne;,uta ILa4-atdOLIS Wgsk: SILvS I MOM l � CA3111'FTC11 11U% -C Yni-tronmental RL!spu-nw, 1i MOL: D C"tPITI [w asa l ion n and 1.1a'b i Lityp Ir furlTULtiOrk Sy mem (C'I RCL.ES) Sj1C (']:RC[.[% No Further R- rnedial Au6fill Vr Mile 4) 0 I'Linined %lini ' [{mowyce 4.;onsc rvaLion and Remo ey ;Art (R IILIQ KD11-Cnrrrcti%v Atninil TecalmCill. SturagC jLr:d [)L1%Ixftia1 (TSF)) FociLitws FOCI A Unincivve A€Ron TSD I-16ILti€s I MiLe 0 idyl KA 1 srg Q3.1I114) firtneraul.a SUbjrct I} 0 Prlrpeny ;sant VrrSpenie$ I(C.-RA Small Quantity € en-estory Subject "= I a Properly i nd Adjoining PrelPCttICS Linking Rgd.<LS`rovd MI-Irage "NLnlr Netts lv: Mile 7 � Regi sic red SEora9c Tank SIil<5 5ubjtct L 0 YTnper%y and hdjoini11g Froperl i�3 Minnesota Solid Wasic Landril6s U Pme! r6t]'.LV} 14;nonsc Nat, Fi€aLLOII SYSICIil LL1bdCCl Pr'uprrty fo!lttw inn i5 q discussion >1 gaOing the individual pI-[ruble mid Linp]o11:Lblt NitC% 10C,tkOtl ti';-l1hli11 alts spe iiitut scarch radius. Property Solutions P%v 11 East adarrz- SrretL * rkiav 902 - CI11ctgiO. PI111p.i 50603 - 317.9' -44mDO + rAR 312-919-#{inS: State Eila}nrdous Wamte Sztrs There was ear4 pkytta IC Mill <ema Hazardous Waste Sit+ (IT `S) listed within aone- niiltrad lus ref the subject pr[opcn . Following is the irifunvatinn found in the database reporl pertaining W the pLoi table FI'N'S - Site Nana:; S i [-: Address: Di%Mance: l) i rection: Gradient Status: facility IDA: Pcrlc13141 for Coniami real fort FIectrueic End srstries, Tnc- 7!5l6 42nd Avenue North Meer I lope, MN 554:!?- 1755 0.45 Mks s gutlicast Lateral Rtspome action, design and CValualrt'[:I Not provided Low. based on distant-: -and lateral Sratiient location krwigTre Con-kerva tic n and Recoveq Act Snoall QttanMy Gcncrat;#r-N 'G'h .-UlijOrt 1bn$pffty -Rod the West adjacent propcny werc liaLml a•& Rl,'RA Sma.lt Quantity CicneTatcsr (SQU) siics, The rullowing is the 1r,fonnatiton pmvided in the database repon pertaining to the Fl:(. RA SQGs or. the subjucl pmperLy dad tars- vdjacent property. Nubject L'r Iscrt fine-N12mle: Sitc Address: JPA LD Koran acre #3(AS 4300 Xylora Aycmue Nrtlt New Dope. NIN 55428-4b4 MN'1)071 L490669 Avcmdiag to the in%rrnatien Frovidcd, the subjoct propCAy is -tint listed in the lei RA Adi-nin I strol i ve Action Tracking SY31 m (RAATSI. hccordingto the fire p= cation bU=aLQ%uilding rCCOrds raviewcd by Pmperly SolulWris in the -icy C11'` CW Eiapc JkLilding Depanrrlent, waste oil, anti -freeze and sD1vcnts wcrc gcar-rased on the subject prop4rt y by the former Kmart auto service-, Mr. Chriis Gavin. M*Lnapu!r o f the Puinske Auto Service, inforin d Property Solutions that they gcneraty waste motor nil, anti•frcezc, and 5oIV nits cn The tfllbjty. 1 properly. Thew wmies are contained in a 335 -gallon sclknntsinetl Parts washcr and a 275- pIIon wwgw ailrartiti-riepe AST. According to Mr. Gavin. theco:nt4rits nfthe AST anecmpticd and removed frena the smbjeci propeny weekly by Safety-Klcca. The pats cleaner Ls sarviccd on a ill rmthIy basis by Safety Klc;m P7vp4rty SolOorks -observed a 275 -tel Ion AST Iocat2d alonge ti c MICS1 iriteiir]f Mall in tha Penske AlttQ 5crvicc garegr- eJheuastc ail and anti-frccac %VCTe starred in the ASI ol-y4erved ainar, the L%-cst hircrior Fall. \ro srainingor leafage %vas obserycd tet'kPr %rF13uru! the !1S7 s. 1? Property Solutions 11 Eas+AsdamS Strip4pt - swag 901 - Uneaao.:rM2 60503 - 312-934-ASOD . F-p� 3•�-���-�,,:� f'rs�perta �5]utrf��ti CORtacted Clic NOICA CDnip fiance Section, MIs. I*racy Srgs1ag inf€rrnied L'roperLy SaWtLons LhA throe are DO ViuLaL30[19 Oil life listed for the subjrrcl pro]-wAy- No addrlional ir1mniabon was avail ab lc fcrr thcquhjg;ct p operty. Propmve Solutions diel not nfio <ruc L!viderweo irtilimperchernicalgarwastc storage at IhO UlbjM1 propelly during thr property visit base -d tun thu iasis-Pr3bati011 gathered and obsovati€rns during the pruperiy orbit, Propert} Solutions bclic%-c;5 tnA Waste gr3jeratinil activities conducted on the sLLbjcct pmpeTty by J'eriske Auto Scn-ice reprments Iaw Imlential crl4irunmcnlAI 00012 -ern to the subject prrrps:rty. 1_2ti1 AALL pl P(LIMAY Site Name: Sµror. [la31e C'ieancry Site address 4225 W3nt)ctka AvcjiuuNorth New Hage, MN 55427 GrAdicnt: Down gradient f PA I LI U: AI(1 rD F)92218554 Accurdim-1 10 IM infarmation pmvidc(l, the Sunshiny Cleanm is not listed in the 11('RA Administrative Act inn Track i mg .1; ystern {RAATS). Property SoItktiorm conuicIml 1Frc N4PC�A Cnmpliance Sed ion- LMs. Trriry Sigriat irtli)rryicd f'roperty Ski llatinnr, rlyRL r}rL!nr Ur 11 no Y oLatjottS oil f le distal for 14C Sran$hine dr} e]ea,Yeis. No additional infOTTOAMn wus ami Iable rQJ' 111c Sunshine dry cicancri. The Sunshinc Llr} r; leanerR is [seated approxi mately 120 poet ea r o the suhj eel properLV irl 1110 ailjaCCILt stiip-ma;1. An cmployeeoFihe ttry clow itis I'acULrw inFomicd przap4riy SC01Ul30J1� that the Sunshine dry cicancr4 hom been at this location Since appro.,;iLa ;ihAy 1996- The dry c'lear3i inacInne m+a% obsmed by Property Soludorrs to be situated atop aceandjor r _5p03 eorLtal.11 rLerit rnrpeiIy Sr.)Whelis. did iiQt ob5crve evidcncc of improper c11mnicaI Or W11519 5WTH91: ad this CRSL =Ljacertt propurt+r during tlic property visit. BmW on visual observac ions and inrormaticin gal hcmd, PTOE)Ofty SOILItions helievcs the w3stc gcncratmt 031 [he cast adjacent property hw Sunshirm dry clr.mwrs rep rcmni a low pritemtral of cnyironni mmI concern- Ltaking Registered Storage Tanks That PA•ere seven plottabie Lcaking RegGst S(nrage'Vanks (LRST) Sit,�I beater mdt.hin a one -kali mi Ile radiLMOfLhi:Oolhj eCt prOperty. 11c subject property is Ii%ced as bavinq, a LRST. The rhIlowing is the inForm26011 provided in the database mport perraining to the scvcn plrmtahlc LR%T sites 10eaLcd mejdiin a one-half mile; radicis of tht subicct property; 1 _ Sitc Namc: Kmart Store 3045 Address: 4'NO Xylan AVCnLLc Nardi Ncw Hope. MN 55428.4942 13 Propel-ty Solutions wr eaP. A-f.-rpti &rrm - 50:e 9n,z - chio loc. 1lml4, Fiasrz - av-R39-a5rri - "m 31111 Lncklent 4: 2142 KC11,00 1),ite: drab- 10, 1990 CIORLLre Date: October 31,159) Property Solutions contacic 1 [air. Paul Nephew, Facility Mat11agcT of the Kniul store, regarding I11f+ m,gtintl rely itrc arol-cntcntiuncd l.R$T incident aaYL the !wbject property. Mr- Nupllew Stated tliat the %+nsic tail Untlurgenand storage: tKnk (LIST) was formerly l :eted on the subiUct pra3Fla:r'ty+. "Clic WZ-Lblt Grit UST waa aSsaaeiatCd VOit1e th_e l"onner Jf mart auto scryiec a.LUTCnL1a nccuprcd by the. 11-enske ALUO %C)"VICC. MT. Ncphrw inibmia:d 11'roperty -Solutions that he posmssed a tJS i rcrTloval ri_parr 111.a teas pre -pared by l' WR and docurnmcd (lie removal of a waN[e oil LST from tile sahicet prupcety= in 199L. Properia Solutions requested that Sirup Really and Mr. Nephew pro%-idcit 4;npy or the repnn a. ocL meriting the UST rernaval frar review. HU'W CVeF, Situs fealty and kir. Ncphckv provided Prgwnv S0lUfiWL5 with documentation that included invoices for 11.0 rcnlavall and disFX)S3I of alae: UST acid ea11tW311nL-t100 soil. NO rc1 o:i dOCILMcnling the UST removal was pravi(kd to PropeT1} Solutions. 1vropiz L -v Solutions mvid"A eti building pL:rraliL 4101 (3 78, dated May 14, 1990, that was issued to "rank Rucyclem Inc. for the rerrlL> %ad and dispos-W rafa I F0111.1-SoJIon waste oil UST fra713 the illi.-prnpcm K_t11.lr1 r2riliw. In addition, a neap dravni by ENSIT. ConstruciiGn Company {the ctansaLlLwalt for %u1i j e:ct 11 roper y) ret Baled that the frarmcr 1,LIW-gal Ion waste ail UST W3S located souti, a f the Wo SUViCr 81ar,L,'c WOMB the sauih cxtcritor wall of thlr subiracl Wilding. 11'roperty %alur1.�.3 tiortts comacted the hlinnesou llollution Control (MPGA) Leai�itlg Und�rg'Ta and tnragu L's1111C MUST) Division Tq.-inhog docurncntadoTL that may he on file fOr ttee aJbrc:nwntir+rresL 1.RS'r irLt'Will on t11c sulbji L prone ny. Ms. Tara C'aroll informed F ropeav Solutions that cu,sory re%'LCUL' Gf 01C oE. rtcy file ra:vvalcd that s domire letter was nDt on file wid a Frccdaallt `1f lrlit1miation Ac,, (FULL) rVgLL4'5l WOUld 11E ]IM-cssary. Propmy# Solutions submitted a COLA rctluo—t rcSarding 1 h LRSTor) the subicct piupurty to tho k4aJIrC~A HuArJous'~Vsstc Sea:.lioil, hni cvcr, ;114sP6rLsr_ 11 as jint hccn mv~c i -t-40 el the rine of the mToTt general[on-Properly SalutiaTls reCOMITLerkd3 that a repo6 drjCLrmt!rLtid?. the UST rcrnOVAI, The L_RST and associated t:lo5urc letter he pmvidrd by Kmart rLlarlal;L•InC111 fear TC 00W. ' Hite I' anic: TraudEwind Apartments AddTcs&- 820G4501 Avenue Noah - Near Hape, MJ~ti 154? 4815 lneid ern 9: 9142 I)i5t'.111L;C- G.II [irides 1 1least 1{i11: N' 071ha±a5t Grdadi cin 1: Lateml keport Daic; Mardi 12, 1996 C -los Li r4 D;iIL!: February 19, 1997 Potentia: liar Impact: I.o v. based an clowd status and 13teral 1*radlcr&t IocacLa n 14 Property Solutions Is'C „ USLAIarrLt s IMI - 5une 402 - Cmajao. 11-v9 W503 - X12 -Mg -4.900 - Fwx 914.OU-11105 I Si[c Name: SinCI4iT Coil COrni);Iny :Address: 420 L '41t'innaika l{�;CCeAArrva�1N arch New If[3,pc:, KIN 55 429-4924 I[Ccrdj:rjt 4:: 256 DiomrtLt: 0.24 Milc% Din:cLiun: Soul heast Cradient: Latcral Repun Cute: 5-cptembcr 22, L93 Closurc Date: IZtltruary 2 8, 1992 PolmitiaL for Impni: I.O , la.2scd On CIOSed Slaruk� M31d laE-:ral grLjJL'.0 A IUCC 601] 4. S1 LcNam c: h9013i1 Address 4200 Winnetki Avgnk3d N'1.)C'c11 1 w Hopc, VN 5542H-4925 /4■yr�y Inc Inci dent 18 Dictalict:. U 6l -tiles Direction-, S01101CAsr 6rad icc11- Laura 1. Rcpkirr L]sttr: Navcn7hrr21, L9.116 C lim.Irc Dacc: May 7, 6991 Potential for Tmpxt: I-mv, tried on closcd &Latus and lateral gradiem location S. 6. Site N2JIIC: A moco icrvicc Station 9 596-5 Address: 7820 42"d Avenue N-orth ;\r�xv I Wpe, N1 N 554 2 -1,1229 [11CILrf� i�: 284 DiSLLC1CL. 1I-10 MAUS 1) i I E C130ra: S, outheast Grrdicnt: Lam] Rr imri Date: octobcr i, 1987 Closur+c D;{k�: Scptcnzlacr n. 1994 Poicniial far Irzipact: Low, based -an clused status and lateral gradient tccRliult Sitc Name: Robinsdalc Buy Garage Address: 41224 a,Sr inneik3 .Avenuc drank New IfGpc, MN 5%27-12 Lei Incidcm 0: 3068 Di srarlce, 0.12 Miles D i Lectin n.- southc3st {gradient: I.atcml Ett:pml Date: August 14, 1990 C,lc>stj_t lute: JrtlY 10, 1992 Pttmia1 Jiai lrraPar.t: 1.(Ikrr. J)ascd on chaser! a1eRu,, alid ]alcra] graArcrit locati-on 15 Property Sin Iutions Iti,• m castAorrnssirral SLA -v 902 - Ce%c:aoD.ItIf'019 GQIFG3 - 317 .0-1-1. WiLM3 I Fax 312-939-BIQ5 Sitc Nem4Addrovc - lncicicnt 4: Distatice: Direction: Robinsdalc High School 82313 47 ` Av4nue New I Iripe, MN 55428-4511 649 0.40 Miles Norlh4asl Gra&cnr: 1t111craL Rcpt rt i)atc: August 12, 1980 CIO-vlme Date: August 31, 1989 I'atenck,il rair hihllaet: Low, hased on closed stiolw: mid lalcral gTadiam locution Regi [Fred Stu mge Tatrk's One. r4gi tercel store9c irm1k (RST) was listed On lht± SlAbjPet propert+r, 1 1)1]CIA�ir1g is IEyc inr�aMlRtrtro INCIVieled ill t11c databasc report p,erraming tri RST um rhr subicc:t psropurly: Siltr �eu1:ti. Address: Tank :bks.- s1atu +: Subslaiicu' CaTyr rte': Nhilerial.: Km-grt + F13045 4100 XvLon Averme Ncw Hope, MN 55429.4842 001 Active Waste Oil 1,W3 -gal Lon }#arc Steel Prupert} SOlutIMIS 11 id not ob-mmo i;4,idencc ara wast4 rsil 1jST n lbi�! 9LihiCct property during the Ter«pJeny visit. Act:tnrding tO i11tCn icWs wiLh Fair. f'hns Garin. Martagr:r of Pe:v5kt! Auto ScrVLer: tticrc is no UST a cialod with lht: Penske Aldo Scryke faclhTy- As PTUviOU31y mt:rlt'Lq-ilCd. L LST i.]L'idmit }2 842 wm YL`'signed to the subjccl Mi-perty on Iuly l0. 1 M. FLMhc.r in[a nation. m6arr5l,i.P, the LIST ill llfi* suhjccc pmpcTiy ir. avaiiiable in S=tiort 7.1 afthis Twin - PROPERTY VISLT Ori Wednesday. April 8, 1.998, l~ialirm Gmrciew. E'roiact G90109191 Of PmPcrly S0111t ions, Conducted a property visit at the subject property, Praperly Solutions mel with Mr. Dennis Reilih2rdt, StrrTc NI;mkge*r or Kmart store. Mr. Patrick G41rnTd;3rLgs, Assistant Store Manager of Old Amcrics More, and IN1[. ain's Gavin, Manan-er 4f V'enskc , lAb SOrvicc. Property SnLutions was umeacmicd during the Prr,perty visiq. 'Feather canditiong at the time of the property 4isi1 u-crc pwily Glciarl.Y with trir,I}1cr.{ UMS st alr1voxinlatcly 60 dugrces 1'ahmnheit. Properry Notationscanduved a visual rcviv%i- Ot the in[CrisiT and cxteriar L=ticiis of the -,tulSjtct builcLing. Photographs taken dun ng lha nroperiy % [sit are mel u flat 1 it Appc:ndi X B a f til is re.1wrl. 1[4 Prop ert V SoIutions im- n Emit Aaw-,E� su'L-ce - Stilm 007 - Ur.e.-ign rimae. 13rp,u2 + 3,2-qsg-4SoCi • res ;T.2•aati-8105 I'11r: pr(lr+ul46' VIS it uaEB idC5ig11Cd to ide11hfy ,`37C3S of VoLcraial harairftLI5 %LLb,,uLi) `L! rcIcase into ;air, snit, sulfae� water. or gra %Lnd waWr. ]-hese areas incJude. ltu( arc iiGt IIrnite:ll to, the 11rt:sencc of 'lb0>Tfisl[l1{L Of unde:rgrraund sstorogr tittlks (A STs ear USTs). potentjal PCB coolairlsllg -electrical ea;uillnient, intiproper sil7r212e w- handling oFhairsrdL)Uq anate:rialS, presence of asbestos containing 1-njo1uria]s. liowntial Lad -h;as.cd pa<inl sources and off- property as we1L asnn,preaperl3- [oalallriina'iO3, saurcts. 7.1 L:ndrrgrtlund Sfor zge Lsaks Prallat:rl%• SOIIRiDFIS e1bscrvad ea'ideocc-oftivo ussdcrgFousid storage tanks (1*, a fill perts..and enc .-cnt pIFxr) Meated aIang lb I: cam exletIor wall of the Km ail start=. Visual obscrwati-mis dial nal rc~re:al ob%ious cvidcncu eaflcak dvlecti-old or spill prervcntlon-equIImicnt a55ocialtcd ►kith tlae oil- properiY LSTs. Mr. Rcindllardt informcd P7upCrt} Solutions that the svhjeel lulildinU is 5crvicod by anawal to s.1he;ating pail bui.Ier &Ithougl1 he had no kneal-ledge of licating evil UST% located on the: slllajfie:t pNapeak. Elruopedy 5oluti-Drl5 cocli recd 'M r. Fatut Ncphcw, 1=aciliay 1, +jAraiager of the Kmart Shrippit5g center, rc-,3rdaal,r,- tflc he:aleng oil L1ST%lac aled ula 111-: ssxkIrrc proprrly. NJf_ N.ephCw ipForolcd 131'{1'perty NUILlliWls that the heating rail US T% are currCZAI Y in use, M. NephCW had no jrtformalitaal ptrrl:ainirs1 W 11LO larks' i:lstalJatian nate, capacity, ccalstruction. qrr ]c€t, detectiota tend spill preve minn t:quipnlCrli. Propany Solutions was neit proviade:d with infumlaliort regarding inventory nioniblY nionitori ng. Mr Nept)cw had nra know Icdgc iF iavle lightness. testing has been conductcd 41 rt the sctivc; hcalbin niI tank Systems and v b -U prat ide rb, the heating 0i to tile subjucl p1rUpertV. PfOpeftV SOIllt10rati ctlnrM ts;tt rile Nji1111c.1ppIi5 Fn-6rran3nrii[aL Managcmeral Division (Mitll D) and riHoilc Firc iytp;Innit`rar rkgarrlilt tile' 11oJoe, '"hec� ar4- -11: D had no itj1fi)rt1t'A10ri in their fries periairtlrlg to 11eating gil 1;:sl,!; ]rated [an the sltkaje:c,t property. Hasid On the l;u;k of the ilif+cannatian kie. wining oil the heating rail USTa located an flee ssr bjoct prupert}, Property Solulir;ans Relieves that the preseme of tete heating oik lj$Ts mpriesent an criviruratlteMa l crancenn. Pmperty Solutionsiwommcnds that specifications for (he heating ail tanks tate: rcvicwcd in docum ant that the: lecnk systems arse in conwl40ce w 111 lOr I Sl;t#o a d pcdcnil rcgula;icln5 grid that the 1110niblY mhtlitoriug documcntaiio-R (if avail ab1c) be prodded to Pruperty .SL5]ta60319 for rc'<icw 19drtcrminC the lntegity nfthe I)Sx";gystenis. In add iduty, lkropci:ly Solutio s Furornnlcnds that rig4tnesys tee is be ceandvc(ed ata the meeting rail I)STs and that thv USTs hfi registered anal tarOU&lit ita COtnpli4RCV. WRIL all loca9, Stlttr. &nd Federal Regulations- Opiniod Of probablc e+ost to coliduct a tightness test i4 estimated ai S2.000- 'lbc KTnWL Fareaactrta the: slabjcrt psnperty is reg,isicud as hilVirtgOIT kvastc oil registered US (RST) with aro "an ivg— slaluq aiid as leaking RST (1-R.%1) irxidcat 4 2FAI According 1.0 the database, the 1 -RST »as r>ipulIcd Jill} L0. 1990 and at 4JONI. c later-Wa5 js%U al on Vctohtr 31, 1995, 17 Property Solutions ix.- I r-.i*t Aonris Street a S.rlu 902 + C11icjoro. il,noS F.QBrj:i , T2-1339--d5CO • Fl,x J114AMP•11105 Properly Sutnfburis ennlacted Mr. PauI Nephc%vF rcgwdi-AP information for the aComment :onaxl 1,R S1' inciLIC rd ars Lhe s4ibj4et pr011r]-ty- Mr. NcThim %%ted that the wasic oil OST was souiated with the; forniCT Kmart auto scry ir.0 garage currcndy clCCUpied by the Pcnske r afo Servicc. Mr. Nephew 31CrUMIcd Property SolluUo!ns 01.11 }Le POSSC55c5 P UST rcmaval mpcit prepared by LNSR Which d4XU131ct11CJ I hu removal0fa ta;l5te rril US -l' from the sal5jcct prop4ri} irs 1991. Property Sol uiknis req LlCSLCd ,1 Ccapy of the mpor[ dor-union ting the UST ranim a1 frun fotr. ltieplicw and Silvs Rua1Ly ticrvicgs who pilovidcd Property Solutions vwith ftumentiation that inrLuded invoicic;s for [he rerttiatisl and dispoi;al of the UST and rontantinatcd soill. No report Glc curnentimiFg the LIST removal was prmmined to lImparty SaLubons• Properly Solmions submincd it FO)A request wjih 1*JPC A LUST Division regm-ding the I.RNT incident on the subject proper%y. At the time of the report genarali4m. id regionsc rwril t1ke al ave agency heti not been received. Pmperty .Solutions rcconrr111 nds that dnc arinniat ion mgarduip,thc t IST rcrr u% -u[, time LRs,r and insociated clasuri: [atle1' be pravidLrd h} K3112111 inanngc'rnCt1L r0r CCV1CW. ?,2 Ah(ivEV,Munid SlorageT,tn" TWO Sl1OWK17 sual-ILL CtDTAigC tank` (ASi s) w -cm observed oil the subj ccl propeaty assoc imod with the Poisk4 Auto Service Canter. Tic ASTs 115 5esh rwtoroil and waam oiL`andAreere. The ftslk r11omzf ail tun!; sy€tcni 12775-galiun ori r-apacify and is located along Ow south interior >ka1L i0 the parls %11)11`31,C area of chi: PICTIL& c Auto 5crvicc Cuntee. rhe v wk, of l antifrecze AS -T is a 275 g[gllor. 111t1k Fsym ni arses is located tion& die cast inicrier wall in the gerag4 Kraea. The :SSTs arc clvrstrucced Of trLMIal and stared aunp cmirrctc floor, TFIc ASTs wcrc ntil siVuatcd in spilt r,=tain7ncnt device-.. No staining or lc akag was obsmcd on or aimoult1d the AS7,;_ N� f�a�clr clr�lins V� �uriieial oraFk �,atrl ohscrvcd in tl'ic area of the ASTs. Prup rty Solution; rcaoninicnd% that, as a bc5L nianaguitlelit praeLicc, [11L: fiCSh 0i1 91111 WiLAIe 0ilr'anti-frac ASTM be einpia%-,W wop a &=ndwry 41ii, Uament {3c%Lin: to prQV4Rt 1`1112fAtion shouts] a telex -4c nocur. No a[Iditional Al Ts m-cre ob5crvexl X111 [Ile rub} ccq property during thl. pTipperty Visit. 7.3 PolychWinale+d Biphenyls 1C.0111nloia9 EalectriCal Fquiprileat Dd riOg t11e pTvperLy visit, a visual xv i cw 1x as conducted f -Dr of Our-trical equipment 111:21 c(luld contain poly -chlorinated biphcnyls (111 H&), an cnvirenowntally rCgL1121ed nutCnAl used in dielectric fluid In sore transFormcrs, Electrical Service is providod by Northern Stacy Power (iN SP). Ai mentionW k cfore, Prop -MV Sol Utions rvioved a Public Nolic-e far C'enifroate c1( Exempt I= duffed SL-Pternbcr L2, 1994 that WES isttaed by !,4?CA to the ICmari store far the lase of a DCII coFwiOr an the subj Mt pFnperty- Thr; public tiotice indicated that the Cacrci hcate of Lxcnijption can btr re- lssucd after a i ci sod of t7uc years. There was nn additional infonnatiOtl on F1 1C EL!giud1rig the 1! --.1- Of LhL PL'FS cajuir.itnr r1n itat: l.UbjCC1 property. Projxny Ssrlutionr. contamd [ha M11 -LA m-gardrnr, LiLC 11CR cap=itor loc cd an the WNW Prorlcrtal. Mr. Swve LaRock FTom MPGA Coss phanac Section slated ibaf there is no longer a requiri:inertt fcrr COrnpilnies that own VC cguiprment to Cts U Property Solutions 1Nr 11 E.931 Apvno. Surat . SL■ie WN . Chlonki.r. llnv�4% mroaa . ftti-985+-4d500 , ow 212-959-E1196 ii3r VL-3ilft= of Eixcniption- Hr. Lalkvck 1nfurrs1rr1 YroperLy'101U1. 31S IJ Lag A3tklr : the rcqucsl ir3r the CU(Ii;C01C Of Excrnptrvn was fiEad by Krnjkn (thc aw nLf Vf the PCB capacitof), Property SOluti011S sbouLd be provided wjrh infbmiaticin regarding the Pri1 L:s,p=aoe by ]smart 11tiana1 crncnt. PnaperlV ,S0jL2f10j1S eonixtcdthcNSl' TacgardingLhC on-prapcny PA'S CAphCitt1r0n the Subject property. 'Nis. Rosc HiIly. a reprrscnlat1ve cif the NSP, sixeLJ t]talt ail FCB equipment in the m ca of Lbc subjcci Pru PCO V was rcrrIaced in apprGxilnatcly 1990. 1-luweve-, she had no rcwrtl Ora file M&MH112 tilt 11,B c3pachor locatead in the Kmart store. Mr, Nephe+a lead no hifonnat ion rcgLrdingr the PC 13 uajnm:iior til. the subject propcny. Properiy SGIutiont dirt not abservc 3 capacitor an the :SLLbjecl pzupcity during the properLy visit. Prop-EA y SolttliO3tr. recoirLrnends dial docurncritariC,n ra�L�aruins; tl•IC NUILIS nritLe. FIC13 callocilor on the subject property be providcct by Kruart managenicni for 'rwa pad -incl rated transfomlcm with nam -PCB Ittb41s *ere tlhsery d nil the subjcet propwY4a 101IB the cast exicritar Mali sil`tlec 9u73ji1:1 budditlg by Karart and {aid Anicrica Store. No staining or lcaXage was observed on a around the trans formcrs. Mr. Reinhardt inrornied Propeny SULLLtiDrIS llrz+t the pail -131-D ILLd t1`831.00C01Vrs are okvned and rnaintaincd by Norlhorrl Sraccs 1'nwcr (NSP). Pfflperty SPILLl i013% contacted NP to coil rirrrl ow-ncr5ltip and PCB-vonxtrlt orttle trmisformcrs on Bllc suhjcc1 I)TUI)MY. Nis. Rosc Hilly rcparud iha<t the trarMsfcrmGrt are AMMed and ni2iMai ncd by NSP and are nL3n-P03. BasctL -Drr ncc cop EirniL!d nun -'PCB conlem mid visual obscT alions flu rir5s t11c 1)raperly visiL. theparl-TnUUnrt,'Si Lransrc,nners am not expccicd to rcpresent a pctcntia] mivirL7]1mental conccni io the subjccL propcny. 74 11ydrauIic Fqulpment FIM31cri Y Solutions Lill g fk'Ni 311VdFaL tic cardboard bailer alr3alg elle east Ln torior Ls -a11 of th,; 9rnarr .51gxv d ffi13Q.111C tarQj?cilyr V119it. :rir_ Reinhardt inforimcd Property .9olutioi18 that the bailerisowned Zak• Lin! Koran storc and is iiticlrntairiW by Sll OU1Sidc conlrar-10r- 3•1%La staining or 1crLkagc ti 3or, Chlrw rcd in 1hk� viciniLy of the hy-rdrautic bailer dllsrirtg the prolicrty visit. PTorrctty Sn1rations observed a hydraulic: currtprclor alcytg the east exterior wall orttte VLtnan store. her. Reinhardt inforTncd irroperty Sojujjons the hydraulic conipactor is owned 41r [gnarl and i5 rnaint,91nud by aat oLwside -contractor. No staii-Ling or lcakAge wa5 obarrwed in the vj6nily (if the hydraulic compactor rdurirLr8 rage property visit. Based On Vi54Lal otoen-ations, Propertyr Solvlimis bcIicvcs the hydraulic corninctor and b0iIcr rcprescn1 a I -ow poteni1al environmental concern IG 1he sLLbjL:rr pr0PeW1tw_ Propcny Srilutrona; obsen�ed two forklifts in thcKnlan mare. The forkhfis arc r3perted %,illi prxip3a-Ic =k. Nn stains ng or I cakxgO w as Ob5crverd i ii the v is in i ty o f the fork] i tls- Th-rx below g ound hydraulic ]I R systems were observed in lite Penske Auto Servicc 9,-LraSc. No --mitllrlg tar Leakagc;vas obst:r1`'c:d rare Or :{ruLLlij the hydraulic systems associ:+ted with the Iiits . Nir. Gavin i-nramlcrd Properly Solutions that lherc have been no rcpcarLcd pRib ILnns wIt11 the hydraulic 19 Property OIUt11DnS LYC Eam A=f-,o Siree+. - %Lt;c SW + Chc:L;n, uurns: I r,C+3 . ;112,9't4.4SOD ■ Fax 312-x]39-13105 lilts. DasLxL on this irIlonliatir]n wW obwryations, P'ropeny S-&I51Lttiov;5 bulmi-e<s tliA l+;*auhc L• -Et, s1IL E 11 SLtb jo;t pmperty represent 3 tow j1HPienital tnvirionm will cloilwci 7- 7. + Asbestos Cotltaining Materials fl 1.1.3 ill r11e €OL7rsc of the property visit, the inlc�or acccssibLc arces r,t't11c subj=1 bulIdltlE. were visually ruvicwad for the presence of powitiall} asbwtos cuntaining raisicrials (ACNIs) The tl:S l.?A dcfLws �isbestr]s containing matetial as a material coma1]1Ln& Zmatcr than ane percent (1%) asbl sins. Suspoct ACM5 r11 the form of 12" x j T" 90OF the and associated mastic, drywall and 2' x 4' ceiling file:t}%-,r:rccbscTvr-d during the property visit. I'MiC3190f the 12" x 32" door file wore abwrvuL to 11 L' :71 a 4Lighliy dxr ugrd (-•I%) condiIinn. hoperty Solutions tolEeeted IO sarrr pIi;s of suspect A('Ms in thq 15hrr11 of 12" x 12" fl*ftT tela and associated mutic, dryfll Intl ceiling 61c The samples colLceted wade subrnitlal kindu chain-af-ctts1-ady to IntcrnatiQnal Avbcsius Tesring I_ahorattTi+:s (IATI -) of MUUnt Laurel, Nmv Icrscy, fur f't1Wirod Ligh, MiCE'AC011y (FLM) iLna1ySIs. 1I Iv ibILow ing gable: lista the asbestos contant, approximate~ quantities. and Conjiltiorls of the 5usp4e2 A s sanplcd- A copy ofthe coal tical TCSLlltq are included ir1 Appendix G afNo report. %ample 'Qv PC of -: I..aCation Approx. C81111tlitiV33 Fritbl€e 41121yucal Number Mate of Material ReFulls fQ1��yylw. % hC'Vi-I 12"x 12" Krn4Lrt caorc, 50t1 Good No }PULL C011.111 i:l.00r 1'11c northrast corner sgUiLre fccl (l'C'l y fj% *F s ttrrAF t TCOr]1 Clu V50t I Ic .+t(W-IA Uark Kmart stare_ 5t> r,Wd Nn PC: 2 my, _HsiStic nenhusl cnmr-r synaTC FUCt Clu 5111iCc rrom of storsge rourn ACM -3 ACM -2 12" x E2" KmartSdor¢ 20.00 G d N4D Floor rile trttralnce by squaro tact C'I Sohlc eash compactor AAM -3 Drywalt Kmart nm lheas# N.'A Good Yes 1*TL * Comer of storage arca 1}C -.M'4 t_1nOICLILM t�Rta:t Share N/A C leu fit? state. to *friers 2{I Property olutZQl7s It►: 11 5a 9tAdamj Mrrs-1 - :wr.0 202 - Chddoa. Illr•frias 80111. 3 . atia•aya•- rjr r2-437-i�t7= Saa•cpl�; T7prar l.arstl,att Apprnii {'ondilion Friable Analwt.lesl Nnmher Maletial quasi. of MILIerial Results A04-5 2124- i man {tare N. -A Ci Dad )-cs t:mkng C6ILn8liEC the rrsLnx)cn MM -6 12" x 12" 111-d Amenean 1500 Ccxaci No iw1L.: 0 5% I--Ioar Tila St0Td-cT11]11C3 rcc squire t'eet S_hryaul,3111 rcklm ACM -7 l2" x l2'• Old American 30LOOD Good ;In 'ti:A l 1pe5r'f'ile SLmrc-sa4e� flow ayuvTt rrel cen-ml ACM -Il Dcywrall 0W Amencan N. -'A (scrod Yes ND A1nre•cnlp)n rec rtxFm MAI -9 12" x 12" Old AMC iiean N. -'A f Q0d No ND I-lorxr-file, Sinm-nartheasl cnmer sales 11nor A('.%l -LD L2" % 12" Old Ainerican LD,0titl {.'rand _NU A,4.5% Floor Tile Shirt -northeast KuATcfcct Cheys0ti[c c0mer sslcs fluor Ak''kl-ICA blar:k 0IdAmericin ID,tlt)ll C"rrwad NO Pt14.12% maaalr Ntart-nonhcot --,quaw r4.S rM.-n Tamer sales ACM -10 floor * 'xbce: hl - levelss)res1waos, found hrla- l° +. Ort SepLCrrskaer 317, 1994, the tl91=1 A i€iucad an Asbcstas Sump irl Bulletin, detailing new guidelines for tILc anal.ysLs of nTAtrix buL1ding materials, The US FPA dafirLes matrix bLdLding Tolle6al9 as cnultila ered bu i Ld Lftg ntat+crials such as kin}I aaheAk)g floor tele, mastic, And geriain v.-211 R`OUding. The USE11A r0commrrnds rhe use vrtr&nsrrci$s,0n cicetrDtt rnicTasc�p�lr �TEL�l� u`]tc11 .3rt.•llpsis or rltatrix building materials ur-LAS* shy PLaM Method rcvcals n-un-dct-xi levels raf asbestus fibcirs. The imprvv>r,d methcxL utiliAng TEM analysis is abic to deLOCI thin asbcstos. Fibers (i -r., <0.25 inkrainc1cT) which mqy have Ea i1 UFACWetaikic under PLM analysis. The :rrnslyti.Cal resuhs re3-calcd lc}cl.5 of asiv&- os greater than 1% in :jll fluor tile, saMpieS and as rFLiatCrJ t1135t1 collcetcd FT LII tla K,ayt stare 8.114 iltc 0Id ArF irza sinT.°. -I-he 12-- 7e, 12" 1'1001' tiles werc 0bscn•cd to he :n an undamaged and non- f7iA Ie, 4trndi1i.CjA during the pr0perly Visit. The 21 Prop ert,%, S a I ut io its isrr `, F.a::Adams Sirose j`yk441 2 +hic.i[ , 11�rho.s 5w - 1�-© 4-��t� Fe �1'e- :art-dg:f�5 nai IM IIitlt:,' iin; -riwIts arinivped (drywall tend ?` x 4' ceil,ng irks and Ilnol.awn) wen: fartnd to CcIrilain non ,ieieeialilc [V� -C 15 tyc asbe5trrc per laboratory mialyAis. 1400 VCT, g,iverr Lhe age -0f the sub;act huilditig 11972). thCM iii pnssiltilriy that addilinwil huiLding; niaLcrials not observed during the p7ea1wrty visit may e; Main asbestos. d'r111016Y 1tiem = rio reguLatiuris rNuiring tic: mnleivuL of AUNT unkm it *ill be disturbed during rtaiiovation nr dernoliliDn. The EPA has reconiinended that as brig as the AGM dogs riot pose an imirianeyrit Health threat, the material em be rnanag W under an Operadons and Maintenallec (GL-Si) 1'L811. Btisod upritl rlie detaction of ACMs A the subi act pmperty, Proptrty Solutions =comtnCad 9 Lli;aa :ut Asb:stos O&M Plan be developed and impler em-ed for the subject prtiperty. Opiri on of proh;i c cost to do vOcip an Asbestos&-M Flinn for the subject propmy is uslianliaw at 54 7.6 Chemicals, Hararardaus and Raw Material-, Storage Por perry Solution s-obscTvc-Ll typical miakI sire containers Gf beuschoLd c:3coning and MaintCnanrC srlppliCS in the Kivart slarc. No stairiing or lcakag:;+c uveas obsertied an or wound rhes" fioertaincrs. Ruiail-sire c011tain43 of irvedor and exEcrior paint were ohsmvcd in the Krtiart stare. The riaitlL comlaiTICM weiC stMrcxl 1111 mc:LriI she]ves. No &toining wu orbsurve,d near the paiot slorago. No Floor dr?iDai WL-re c11?.4r=mcd in the vicirrity of 111 C031Lai ners. Bascd on uisual observations, i: lin cleaning; ,111 t[ mpintonanec supplies .arLd pailrts 5101 Cd iii the XniL.L t 510re dna not repFrscal in environincntal K;%in-cci rl . bac:crnl35-gailondnsln5oFvanaus fteshmmoroils arid 1Librrtants,[i 35-V110n container 0f5s11tiC13t, 1trrcc 55-ga.11an daunt of anti-frww, a 275-gallon FmLh oil ,QST mild 2?5-gal ton waste n1Vanti-frtRmr AVU +were obscry ud Gat 1tic Pciiskc Auto Scrn ice urkit. No staining or leakage was obseivW in the: ami oftbe intecior drum storagr~ UT ASTs area. No floor dmirls Or surficia] cracks m L!re observed in the interior dnun &.Lorugo nr AST areas. Nospill corktainniant systc ms were obscrvL d around the base gni' ike drums OT ASTn. l";oper1v Solutions recommends that, as a lest managyeaicni practice, sccondar} contairymoiL sy&teams be erripiarced by Penske Auto service boricath the 55-gallon drums mild A.S"I's tri prcvcnr migration should spills ar Ieaks occur. 7.7 Waste C:caeration Solid asst a generated on the subject property Mudes gcnerM mash and is sLored in diinipslem ala rig itie cast cxlcrior wall or the sub�cct building. Acror+ding to Mr. Reinhardt. the general trash is Timioved fi•orn the subject property by Waste Masiagemcnt. N1 r. Peir3harrdt staled that paints returned by tiic rLLRrearners arc discminted and sold back; lu the LUN10111M. No rusmm mixing orpaini vend no paint disposal is condue:rd an the 5ubj«rt property by the Kin art SldifL. �A'es.c CIL 1, grid-frce7 a and solY=1s are gavemtecl on the subject prvpea`LY by Penske AuKi Sen icc. IM r. Chris Gavin, tafanegcr of the I'cri.ft Auto Scrvicr, infomncd PrcipL:rL.v golutiorn, Lb li: they 22 Property Sollultions;_- r' n ra...4 ;,dsrnL Strect - Gums 902 + Cheagm. 111j'as 60e03.317-330-4500 r Fax 212 -319 -SKIS _4encrate uastc ma tor aII ®nLL soI%-Lrill; ort tlac subjocl ps perty. I'M waste 0Ll"Rntiis s regi it1 ars approximatc 275-gaLlun AST ltw;Ltt:d alails the wcst intcriLfr wall sal t11c 6araagc R 3 Axnrcling La Mr (7-`-VlrL, Ihr- ciantcalt of the AST arc cmplitd and rctnovcd From tiler subjecI pro perty month] by ,Sakly Kle:clx. No documeiatatinn was provLded Ibr'TCU•1eW rcgardirtU IIII'S SCrVicc. Se:e ! MiOLi for II1ti3rrlltlt]t1C1 I' S13rtiLn_4 tllc AST lttated ott the SLLb]-ccl pTopert V The spcnt izll%'erlts alp sto rod in a 15 ggl]on c+rrttdrrt�r 3113ellcd W a 5r�rcly Kle[I1 parts cicaner. Mr_ (Iravirs mTK)ncd that Safety Kle.= atrvke& tllc parts cleaner approxirna4ely e-t-cry 1wip abonths. Na ducummitatlon was prnl•ided feat review rcgaTd1ng this scrvicc. No Staining xa, lcakdgc 1rk'sas lah5er'%ed 011 Or a11au1ld the piorts 9JUUrLO.T. UsLd autVnIobi le lulteric-q arc rx:lntawed frail tic sahj act property by Exidc. The used baltcrivs are .51orud arop a wooden paIIeL in Chu rear `:taragg room oFthe P--cnsi a aum Eentcr farilily. No staining or Ical agc wai observe-d around the battcries. 11a5CLl on visuat, tabservolkons and information gathered, Propeny S alutions belicvcs [tic waste germ :NALWL 2CtiViLics an the ;�tjhjed pruF5erty by the II'mgkc Aute Scr ice Ccnlcr rujimmms a low L;M- r1 y.17t1 mal pcatl` Ill la L c-mil; crn rc F Ill L: subjcCt PrDpx: ny . Wa,te grcasu MencraLed h%' 11te KIMart katcrY Emp ss io tllc subjLVI bLLiLditLg is callectcd irl a reeeptRCle LxacatW to Ih! rear of the K nimi stim?. -T%e Waste grca.I>: is rcrnovad by marling (,'nrr1p2Ay_ Xtti 41.LLa1i11,L1, or Leakage wasoblservoxt Iii the vir-in 1 ly orthe grease rcccpticic 1.8 Wells, amps, IPit% anti Floor Drains No ,OIs. SUMPS or pix -s wcre obsCE-&LC J Lan the 3u11')r:et preiperty durhlg I}LI: }Property visit. Fluor draicis wcrc nb.e3'vcd throughout the %tihjtet 11'LllLiding- proper, y SLaIu.i€1rLy wu5 j1%formcd by M r. Rt11dhardt that the flog drains -Lin the sUbjcet propcdy discharge to the municipal sanitary sewc;r sN-t;tCrn. N0 4taia1i11P, 03' adars wcm noted is the arca of the floor drairss- 7-9 Storm water R11noff arkd Surface AVater No surtacc Watrrr WiLF, presealt oat t11c slrbjCr, L prUj$ffty at the time rar Lhe property Visit. Tia+: rn,Ljority Lif the -subject property is covered by the 5Llbjcet hnilding. paved f arkirxg amm imd land sceping. Thcreibm storm water rLu>o: is expected to inf3ilrffle tide laxldsrapcd amas Pr exit the stlbjixi prgperty via overland and enter the stoml. v4alc'r-COLleetiGn sYstcm vi st1onn drains located on Lbe sulPjcct propeny. 23 Property Soltlt Ions I:4-' -'. Ear,. .ky:Ixem 51rrrr - Imi.t moo a Cn.eaga, mjAon 80603 - 312-9'17-45r:1[5 ■ Fiam 312.9,351-i#IPS 7.1 Q 1.a cou, Sepi1c S%-sirn1s mnd S-eparators Nocviticmr n JjLgnr)n . atTl,c sy.rterns-or separators wcrc nhwrved lin tlae sulajaaet properLY dUTiCl- the prupr` rly x,3'641 7.11 Stressed Vegetation, Staining rind Odur� t,10 strt:ssud VQ41;ALi*11, staining or rLDmaus odors A - a 1101ed on t1m subject pmpCTt1. &ritag [tic Properly Visit. 7.12 Smrl;cial Disturbances Nra surfc.igl Ji5turhi:Lracc%(ic. laanArtiLing, excavations) m-crt: obscmd nn 1140 wu}rjmt property during; t he prOpcOY x i Si t 7,13 Polf itial Wetlands aind Floodpiains '1'h,: subjCCL propczly is ctilim1y LvOlied law 111c Sabjem buitding• No tieger: don indlcaa•tltim of wrilands %as c b.mvcd tin the subja:t property. Revirm -of the USGS 7.5 mirktate sencs toptagrapIik qlaadranl,lc ul' QsNvu, hiiMIe. ratrt N 1011 int slid lint reveal the pres�ticc of 'etlanil n31 L11c % -cr propaily. PrOperty Solw.ions Visaud the Oly of Ncw F{oPc Building Depertinem to review the F-Uderal l rrLCrgeacy Maltagemenl Assciciation (FEMA) Flood Insurance Rate Map. The aubjecL property, 3Oich is iricWdcd ars COT( U11Unit} Paarcl tr270-177-{?()11 B. dated 1981. i4lacatcd in al arca dc. i ,nabxl ms lone C. Zone k' consists of atlas of minimal flood risk. 7.14 AaJon l atitd on a rca ie+t of the tJS1afF 's M7&Cf f�mon :� e.4, Hennepin County. lt�tinnq-vMta, lies in A Radon Zone 1, %vhcrc the pra:+dicta) avcragr indoor screening levc] is bctwcerL two and four p1coCurle iditer 1�'i�C.�_ According to data wmpiled by the 1���' 1'r�, 105 r�c3on catsist�ers were placcd i n H cnncpi n Craunt} through December ra f 1993. AFpmxi mately �0 percent of the 5amp les eaEcctadcd the re+ccrrLtimcndcd action level for radon of 4.0 pUL, wM the awrage ratio n conccWT-4 4" ibUfld hCL11 g 4.& pCO ,. Based an the Rbovc inFannL;iian and as the aubjcct build Ing is utiIiml for COEMiareEal purposes end dues ilt•FL comai11 a basement, Pro$xrty SaLu tions d acs nit heli eVe that indoir radon lcvcls represcnt U siSanlicant unvironnimal cancan to 1k subjlect progeny at this time. 74 Property Sol uiion s lie' 11 €,45,l 14�',a-401$SL, &K • 5tdrtl 90? • ril,004190. klhiitw(, 6033. 500 h rax lel;-939-MIC s M5 bead-Ba,,ed Vaint ]ia r3 Qn the slat! Dr construction (1976)F ge ad -haled pairits may Lxist in Rhe subjce( bUddnt�. PaIaLcd 5«rfaSe5 ar IhL Hu!1)jCC! PrOperly WCFC,bAcM-r-d to tic in an inraut and 11011 -pee ing Candi (34)n dt,rirt . thL: propcny OLAit. Iiwwd oti t11e Coillrncri iaL slatu It of (hk; su}Ij4c1 },raaltLing. laruperty Solution -ii bclici-Cs l}w lead-based painL mpu:,Licp1r. a loW IMLenthd cnkir[rnr3letital nnccrt, i1r t}1e suktJCCI 91 roperty- 7.9 fa Lead=in-Drinking NV2ter Lead in the domestic walcr supply is COIT iliDnly attribtliablc W plumbing rnalcuals such as brass fatic'-.1s, upper pipes Rri4L kadsoldcr. As waakr stwiriq in tic pipes, this Metal cWn di,ssOltie ilttalkte water. 1=cdcral Standards (EPA) salt new drinRing water standards for iead at•tllcgnji to }al• 0.00 III ill3Prains per IitCr(Tt3gfl-) Or 0.015 parts per million (pp in). PoiaWr drinlwin& u mtcr is supplied tri the subject pir iperiy by tete Cill + of X.. f lnitc. Property Sol LiLIU115 contacted Elie (.iry of New HopeWah!F TrratnienL P1®r11 tC� req ucst informatiarl re ardin9 Ar 1 he wat L2r depaiji n1 CSR's clod lyanu W i th ille 1991 USE- P A Lead and CoAccu X ale. ecu rdn1g to - (`Il'Jr11C Hng%tert. a represenzati;c raf t11i ).Vatfr tmatmcnt pIai1L, the subject prltplcrtY n suppl;sxl wk Iris pa'rmbic walur chat iti in CO3n1alianec ,vifl, tl,c 1991 l,SFE'A Lead and Copper Rlalc. 7 Air E missions CV1CIL'il4e 1)f rttiador a1r emissions were outed on the subjeel property+ 110119 tlru ltroPcri} visit. H.0 CONCLUSfONS AND RECOWNIVNIIATIONS Dur review 0f general pall ally i11150Cmati®n; obm�ft'allion ofadjaadLCM PrOPErtics; rr--Bc rrth 0f histuH`ak prigursrr itti°rtrmatiort iRC1Li. ling a rc►laew o if.clivironmuntal rewrds; prLvinas eriviroamurltaL repots and prrafcr13' v1siR rc%'caIcd i lie Fal low h% four issucs of potential env ir0nmerallal winccm at the subject property- PTQTW-rVV Sokutionsobscrwcrl evidence -of M'a Under and storage tanks (two fill Ports a3ld Gnc vcnt pLile) Incatetl along the east exterior wridI orthe Kmart sLOM. Visual abscrv¢liatts did not rcve4l1 -Obx'301Js cvidcurc of leak detcetion or splQ Prevention cquipt'len[ 23306,11ed with the on -property u duground storaV t�nkr. (USTs). Mr. Reindhardt. Store Manegcr of lkrnurt, infinnrcd Property Solutions thal the subject building A serviced by a nature! gasthealing aril boLIcr although ha: had no knowicaie Cal` i,eating ail J'STa 1001wd Ok) the sV jC,;E ptoperty. lImperty SoIutirrrls ccMAO cd JMr. Paul Ncplicw, Feci Lily M1312gcr of ilia Krltarl Shopping crnie7-, regarding thL; heating nil UST's located on the aubjcct properly. Mi. Ncphi» irdonYled Property Solutions that the heating rail LIST& are currcrstly 31113se. 1 -Tr, Nephc;w+•. h,,d 75 Property Solutions I%,- 11 EOV, ACJ-- 5:re9, . S■r:q 1102 - C:r =gD IWO= BOBB3 - 3'!?-gDCJ-45wo A raac 312-939-`M15 rid 111 finrm.1t i Gil p4: rtat ll ill LI LCI L11a EMU' Ln5to l IaLlurt d3tC, copac l i y, curia ruction or leak detcxtion arld spill prewunlitln e'quipmerlt. Ptoj)erty S0llttita31A wa.4 not 11m idrAt with itifnnilatiritl regarding invcrLLory irLoni tly Itlaiiicuing. Mr. Nephcw hxliio kiia-Lvlcdgc if Lank Lightness testing, has beelt conducted on the active h+rating oil tank syslv::ns and m -ho pravidus th-c ht: mi n g oil to the subject prope ny. PTOpe CY SOILLLiOnS ctinlacted the; Minnc aiipo is knviraninwatal Managcn=t Divisiotl (MENUS) and the New 1 opc Fire: Dcpl"ment regarding the heating Oil U Ts JcX aLtd urL the tiullideL prnperi}. -[-lie Nil~M1) hZj no tllfottinatian in their flies pertaini318 M heating ail kiSTs 30MCd On the SLLhjitI lrroperty. ) .=J rin the lady uIthe irtfonnation pertaining lei dic heating 0i tJ TS Locamd cru t11e subjcm FmPLTly, PrplrerrY S'olutior]s believes that they Prcs4lica of the hcxliri5 nil ESIS m1re8ent au crL0r{5ncncMaLcanccm- Elmpmv Solution% recons mends that frpmiFcatiotls for the hca inr- oil tanks be reviewcd to documem that the tank systellrs arc in compliaLnec with local, Statc ;mil Fed crat rct;r.Ela(Lans %nd that the rnarahLy n1DniLaring docurn Vn Latiari fif available) bLr providod to Pmperiy Solutions f(UrEView to detcTmimiethe intczdty of th01 j';"C sY5-W1nti_ In s:tclilir111, PmPe5yVSolulinili recrimmend5 LhaL dBILLIi S tests be t<-PrldUrkd ors tllc hcatim xr:L USri, and ihaL the UST9 lie registered and hraUgkt in campliance with a I L kic31, Stale 211-6 ) cdCrjLL Rqukat ions. Opinion orprobabrlc crisl to conduct a tighrrLc!-qs test ik Cif i1112CCrl a �?. '[-lic Krnw store an dic subjcct property is registered as haying € tic wa-ste aiI rcgistercd IJST (RST) -w i th an " Rui ire" stature and as IeLrl- ing RST(LRST) i incident # 2843. Accordina to the d-iLah.L&t, the LRST was repr:rted Italy 10, 1990 and Lr [:10slLre leticr v►as issLi4d an D obcr tkUJicrty901LLLionscontacted Mr. Nov INephow rcgalTlinr,inihnnalion ft)rtht aforenlcntiraincd 1.115 I incidu-M did the; subject pTuporty. Mr. Ncplmw stated 1hK ihL! waste oil UST a as K:iattxL with the fon avi Kilian auto scrviirc prdgc cerrcra I y occuplcd by tltc Penske A uto Service lttr. Ncphcw in RiMod Fropcny SolUtigns; tliat a LAST rMnoval retreat was prep;irerl by.1,NSR which dociimcriNd the fanioval Urfa waste ail UST (ruin the subjcc( property i11 1991. 1}rapCrtyr S01utions mque.stcd a cope of the report docurmentinl, the LIST rcma Val from Mr. Ncphew, and Sims Realty Scrvic+cs whe providad Property Solutians with d$cumcr5tati€ n that nncIodcd invoices for the mrnovat and disposal ufthc UST and riariuuninatcd pail. No rmpon documenting the 1193' rentov.al w;is providcd to Pmpeity Soluliuns. Prelperi} Solutions submiRiEd a I-O[A rcgttcst with MPGA LUST Division regardhig thq LRST irleedcni ern the Subj Eel property. Ai the tinir! of Ithe rcpart gcncration, a response frartt the above agcncv had not been rceeived. Praperty Solutions recomni-ands that doOLLrncntatian regarding the LST removal. the TAST and associaled closure 1cttcr tae pmvidcd by Km an manag-ement for rcvicuw. 3. Dull rig the covrsc of tyle Properly visit. rhe iriicrior occ{aLble Lirem of the subjcct building WC(L! visual I jCVxW4A for the Q1C:Cn 4 Of potCnLjOy asbcslo5 carktairling i-latcrisik; (A('-%1%). 26 Property SoIutalons Iwo' 11'C.-IetAa;-:nsxEnleer . Suite DO . ICijo-q -o. ljwos6EJW;� s 1124319-000 I F. Lw 312-939-13 RAP The USFPA klerLries asbestos corltaini1% triatcrial as a rnil' .en ol cantaining tjirAWV t]iati tttie percent (I `a) asbcste F5. Nu- ACM!s asi ihie %rrn of i7" k 1'r'' hour tllc and assocaaied roastic, drxwltll and?' A 4' tciIin9 L1ICS ~Fere nVeur%.L:d durLng the pTriperly VISLt. P091inn s 0 F the 12" x 1 a" Nor tile, woc observed to he in a slrghtLy dantagpd t -I%) CUnditian. Properiy Solations rDILecLed 10 sa:,rpl -s of suspoci AC;M ori tiic tarns of ] `' x 12" floor tilt and ;woe ialed niamic, drywalI and 4� IMS tile. J'he asruplos colleetcd wire uffiti Itted under chant-rif=eusifldy to I rttcrnationat Asbestus' Testing LaborMorre4 (lATQ of Moura Laurel, Ncw Jrrwy, for 11olari 7.cd 1-1ght Mieruscupy (PLM) analysiB. 11c arialytice I rigiults re vealad Lcvcls of wibe Mor. Vicaler than 1,,/G ill all noor t iii. s snip Iva w id uss$ciatcd mastic coLluctcd from the Kmart more and dtc Old A311Crit2 Stare 'I -he 12" x 12" now Likes %Vere observed in he in ani undamaged and riDri-fTiabic rror3diti= during the property 00. The 1`6111m illk matcrials analyzed {dryvvB11 and 2' x 4' ceiling a11M alLd IUlnlcuni) WU—C found (a cool airL nalti-dt` gaahte levcls of asbestos }ter laboralDry aiial%'sis. Nn*ever, given clic dpe of'tile subject buiLdlrig (1972), thcrc is possibility Lha% uWAtiaria] 'trui[divg roiderials nrx observcd diff I11g 1, tiie property it isit tsiayr Coll 13111 aSUasta&. (7urT4raI y then: air RE) rt�fLihdti nA nequirrg the rcineval of AC;41 urLICS5 rt % iII bc; di4tt,rbcd {lur311g ren-Dvation Sir 04:til-01111 i. Thu FTA }r ms rteoinnientirAL dial a_s lora as1hc ACM noes no pkisc yn 3rtinairLenl ]icalth ik M94, the rr3alcrial cars be inariagcd under ars Opuratiaiis DIIJ MiujiLtnarsliu (O&NI) Plan. Dwied I pon the dv= ion of ACME at 1h0 stilrjOct Property, }'rata ay olulions recumniendS; that an Asbestos 06,M PLaii be dcvcl0pvd and iniplc,menrad fur the sukij M E5310l1WV. Opinion 0f'pr61table cost ter devaLop aii Asbcsrcls. 0& -NJ flan f(ir 11 LL --uhJect Prcifrcrty is cstirliara l at $450. 4. E'ropeny SLalulirsns rt%it:Vkztt tai tltc Ci Ly ofNew Elope BuiId'ariL' I)CPartittLnt v PabLic Kotic iur ccrtyfieatc of Exemption dated September 12, 1994 %hal was nssucd by N1PC.:A to the KEli art store for Lim LL%e 0r a I'M cap=itpr ors tite subjaci pn)0C11Y- 'Ihc public 00tice indicatxt thar the C:ertiflcistc afFXernption can be r>rimiod after a perijxl oFfi}e years. Thum was run add! i ional informal i on an file r c&aTdITLg rhe u 5c o f the PCU tapar i to r on the subject pnipurry. Piolicrty oluti-ML, contacted ft MPGA regarding the PCB capacitor toeated on the subjMt Property- Mr. Stew LaRoclt from MPCA Compliancc Scction stated that there is no loAger a requiri merit forcmipanics that own PCB c:quipmeot to F1 lc for C'ardhcatc of F.Xe3nPti0n. %lr. i..aRock infarmod Property 5oliakioL1s that since twit± requeg Air the Ccrrificate .of ExcTnption was Mudd by Kmad (tile o+errtcr Of tkic E'CB t.epacitor), 111roperly . {O]Il[lo]15 shcauiti be. provided with inforitrittion reg"ing the PCB capacit0l' by Keenan r17at5agcntf,9il. PFOP011g SCIVIiOnS ccintactcd the Nonhi:rn States flow- r (NSF), the cls-ctricRl s�rviccprov1dcrio the sukaj t prvpert}�, ry ardingthe�in-Jrrt3p _Av PC' caf+aritrsr. l��s. I�ragc 111HY, a Ti:prescutative of the IABP, stated that vii PCB equiprnCnl i1z the Urea of the Subject properl vwa$replaced in appro,cirnatcl)r 19'0, l Lomvevcr, she hal no recon] orr file rcgardhig tlsu l'ICB capLgr;ilor lr)c:ted iri the l marl slarc. Mr. Nephcw had ntti irafo nn -]tion Tvgatding the 27 Property Sol ut10n!F ixi' II Fos. ArS.lnsi StrVIA j Su -to 902 - Gh1t;Agn 3r,PQRR riiC9 M - a7�-939-4 504 • Fa[ m2-,3q_G-15TMa PCB capacitor on thic subject property. PrLLEyclly Solutions did not observe a Capacitor or) the subjccr property d4LrjrL, the property visit. 1"MPcrLY S41utions r9CMILMcads thai clocutncnt®tion regarding, tha °L';OWSS Of the PCR c:aparitar an the subject properly ESC provided by Krllail inanas;c.'rticalt for rc;•icw. -rlw [indingw, rabserwatiow; and conchl.sions of tESis repart wre Iimited by ttic crratitram tcchnkmI regkilrcmerlt'; And the rnetlu t& used to perform tEL,ese scivices. TFLese scrwicc�j hiLve hee1, perfarmext iR acc rdancu %VIth the st ndArd scope for Phab4 I I�.alvraonratcntal Amassntcnt. In t,rdtr to perfuml ar cn-nprehcnsive anviroamentat 4!k -A lation, s11bsurfece iovettigation and tesllnF wo-vId lie rcgLtimil w dcfickittvcly dcLcrrrliau ifcontaminatiunItas af1'caclad the subject property. Therefarc,1114 rirtidings and coni;] tV i01ts prescntcd heroiiji have been based solely on Me =P0 of w ark previously dcscri hcd. In In-eparing- this relmrt, PmpL;rty Solutions hxs rilied on information derived from wcondar} sourcC5, cia11'YIMW databases, and personal iniL•rviews. ExrrpL as set forth in this repoil. Prailcrtw Sa!utivals IL'S made no iniependent in*Cstigation ai to the accuracy and somplesclicss of the infunrlatiCIrL kLL!rtvcd fmm eccolldary sourcca, con ipulcr databaw, nr persomiI CrLttMCWI� and hay ;1Stur Cd thm 5 wil inFomlat' n is accurate and cCrtlplCte- All r,ndl1la5 and ix nclnions statW In this report arc barmt upon facts, 6rcuinst3nes, Tond indust:z accepted Pro mlums for slash AnIces as they cxisteti at the time that this report was pacpared {i c., l"Ldel-01. 5LaWAild LOW rWIM, MgUl tions, marketconditiona, acononlic Cr)Mdi1i0r%S. political etalr.;LtC rind u0ict appliC�Mhlc e1,a'ttira). A change i[j ;Lily fa -Cl. ijrcuazistan=. or jr11L61Stry OC-CCPtL'%t PI'oCC&LEC UPQJ1 W hiCh this CO]' rt Was basad way advcrsely afl°act the findings and conclusions. c?LL,re%sud ir. tHs rc"rc. Mi is report has been pmparL d far the sale benefit *rthe Client acid 1nay not he rel Led upon by •r. -1a}' peroc rr1 n cldi:hy with-Dut thr. written suthorj=ialt of Property Solutions. 2$ Preperty Solutions is,- 11 Eajit ACarnb SV OWL - �Njdf 1102 • ri'lic.-p+no. -.lun4ir, 150=9 , 312-979-39003 - Pan 1 l E• Envirar,-ncritt I & EngnraE.+rit: iD Con. w rltlrtig 1 , a: y ►dei um.. M:s-&I . ';L.dt- 5iUi' • UJ. .1 Jam, Ulm LAU fr.fiOA 1 11y 039. i'�P" . I•.,I- ,I I; jU`I HiII". A,S'Iily',Srl'O.k--s'CONI'AININ(.'s' MATERIALS OPERATIONS ANIS iN-I I i� TFt NA (: Ii: [']tO(P' A I XtI arI fiIDI.I. 4300 Heid -1 Y5II Xylu t r1Yu0LIC •N 41r -I11 i i•�s ie pc. 11cil nL•1Siit C:cmitIy, NIinPmLscm 4'5431 Prepa-p-ed far.. Ralpie ffrrlutud Shus Ae:rrfry Sei-vires ffs r1gnis for -Crerfrl Nuki-ie Frrsf Huston 4605 Ari.q OrIA Ned c r tulle, Ntrife 12 U Housl rr, f itru s '7-017 Prapare d By, !'i•cr�,Ie•�•�j+.�etfl�frr�ir4, �f�erxryrdPii�er1 l f Em -if Xr1am.?.S'r'reef, Sod ile 902 f.%icfrgo, Iffirwiti 6060.1 AlWil 38, LM i'tllp t ly SUILLHOUS. PI'OjCCI t19M[IC7-H I S r g1gm it %w1r1rr;1 I SUM• A.'..+ . (AIE :dipp hh[7U•-� BE -E-0 3 ■ ■ r.,,t j 5:� ':1=d'r.t! I,rn OPERATIONS AND MAIWENANCE PROGRAM V. G31i11tl'i - GC OT gi-eW 4 11,ripji`rt far:LAog151 F Q r_ K11k.11•1 5101 ti• 431141 wikd 43.gD XyIcgl1 l veckUr Nor(11 New 11011, HCHINIVI)i11 � r�uzU}, Nlirirlemplu Pa'd-`pao-od frar': !fora mi, Te. as 7702 fir' wlynte d By. ProperrySuilrfium.l,, }ftcutJjarrdred II !t`fisr ArlifixN., Safi F 902 Chimp. RhojQis 6060 Alaril 2N, 1,99-S Pro perty 4 n i X11 in 115 lira eel Ji 9.8UPS (6- j x 1 0 0 c 1. � I �J- dill Kevin .1. WIIIrlgrs;, P -1s. 0pvrM110134-M-AR0MCE- r t Dcrnrl.l C.11ritirlr L) I w o ,kger Qfl Vit-4)1LMC11l-Al � cr iet� E^ll�lwficl SEX -FON 11 d1 UE, 0 %VO RK PRA E 2i 31 5.2 '3111LIll Scalc/Micri Um-alimi 13 5.] 1.04'.gu ZSCE]W1,M)a PLITalid.11IMmyr F111cr Ruleasc 15 &I 5.4 A .CLHcrilava L FIV CCKJ urns . .. ... ... I 5.3 Wastc Disposal .. . . - .. - . - - .. - . . . .. 11 6. ri RECORD KEEPING (1.1 11 DufflitiMIS ... .. .. .... .. 6.2 Smill] Seale Opci-Lilwi.s mul i0nifflemance ArniviLy .2 1.3 Mali P1111fluxi11y .... ........ 6.4 20 N 0'-"-L F] CAT ION . . . . . . . . . . . . . . . . .. . . . . . .. . . . . .. 2.1 Z51[1111!]?[}' 0f FZ151,1 VC Li Mi .. I . . 1 4 . .. — . b I 22 4' 111111.1: 11L.'11:2VL1641.11, DLxichlian x2d NiMinic-unix ... ........... .. (3 'I -� P. - No fiix to J -ell., I -.CS 6,Ir 1.4 E-1.1u.-gmicy k6sponso .. . .... .. ....... 6.9 2.5 MM'.LvC1110111 0VL:1-YiC;t . ..... .......... . ... .... . =.6 JNEA".cr. to —":1q)11y4:cq .. . .... .... ... 1.d N' Qt; CC 5-0117- OLASS c ("t) 11 it wa[( I I -i ... .1.0 S L , ;RV F 11. L.Ai,4t'E ..... .. ... ... .. ... .... .. . M 3A Worker A;v41r niumi . . I .......... ... .......... 3 12 PrurcHNicimil ftChl5j)0U1L(Fjj - - . .. L . 4.0 WORK CONTROL,% 4.1 Wfirkrr 1"ci-mil Pi-ognaw. ... . ... 42 Cuilircivor Noifficaiion 0 %VO RK PRA E 2i 31 5.2 '3111LIll Scalc/Micri Um-alimi 13 5.] 1.04'.gu ZSCE]W1,M)a PLITalid.11IMmyr F111cr Ruleasc 15 &I 5.4 A .CLHcrilava L FIV CCKJ urns . .. ... ... I 5.3 Wastc Disposal .. . . - .. - . - - .. - . . . .. 11 6. ri RECORD KEEPING (1.1 (.1caninp, Activity 6.2 Smill] Seale Opci-Lilwi.s mul i0nifflemance ArniviLy 6. 'a MajorActimly ...... 6.4 F111cr Ituiemics Epirmde (1.5 hup-LmLion ll` purts . - - — ....... 1. M-1i.11C3l:51nc.cPcrwnncJ Mbi�5trjr, Almenitlic Ad-.vity 6,Ir J.' -.q Lij pul-cil I Avis;1.11::4 ------- ------ 6.9 A C VL r) i spa sA R vcu rils . . . . . . . . . . . . . . ...1k1 r, rf o p Pipt y LS o I u t i cins I%4: 11 c.-im A-Mirm Srerk 1 Muitri 9025 1 CHcric .jL%- Ihm:r& FASM 12 -039- 401 - F,4% 312 Oic K 1: k P K t.Y!"- -(. TR IN' L Air Kcs-millury IlrAe-1:001, R.1i TRAININO . ..... r x ,. L: i i i ,i n in k. Ck tJ IJ FEATHER 61111DANTI: API ) I (.'I L Property So 111 t il I tl 9 1%C: 11 ;. ,Ift Airl.-ormu StrqML 0 .!lits! 902 0 Cl lickjrgj. impim; Bnr;g3 - :j s: ..u.'m -4!:'jll * Fac 3 h2-nu-S,.T. l .ro 1' TRO D UU FK }N• I F�1W :'ti1i1L'hiL4:+ k r;[tiieI.Li"LC, .111.1 M.,II:eL'F1:L!Yi•• f[ M. --a'1 r Ili w., un 1'1.1; :.'x'11 0:16'1[: LN -101 1:'. 1'14;1?L.!1. N. i:.1.01 1% 1411 16.1.: r[11ION' In!'. I.ii .1 1 Km�n[ Mow 'I"' i;1;1L? 4%ill . 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Or Con11a11a1l.mil, oI.113+`ons 1111x4, if LEIC 19111`[ 131 (1Net Mil 11CLI by 1111 ;1L:C,Cdited Iits pcciclr LEI 11c ACC OpoiWonr and Ma infrvairalr•r Mira: mmi'S Ll W1.1tiCil IV1,1ll 1'4•11i411 IIIc` 11o11L ius and 31"LLLIircllll=lltS TAM' h. Wili h4 VIC 11,351 IN II): IK: ( }I'`CTia1i[allj� 16'1151 i1'i;-lntCl11il1+GC jrrogrinll Prop `SoltjItWItSvFr• 11 EMLLAQn111i.; IIUPF . ;:.111$ ;1qp R Chic ittg11.111win 61:c"0. + 312-gaau-150D + -;+1L.L•P-03941,25 rY,-'+`rjrr•a1+,::tl{arl.j'JI,Ilac i'+•+rEr!Ivor: Illt.11lel p:L:21'.111' 0r Q'iIIt 1):.11 Lit.%: i.dti !1SilIII1-11E1 li11 ilslli II I.LI1I.: { 1 '1 I`_I gn-Lii,: l•sllidIL1;41, :11 11 :`-VE L'I,I::III 111] "it a r.ItCS1+ar. IkllLI% I!I;:vIc):IsIv ICIv.IN-:-d II.c. 1L1 fIIl.NL:1'.. 1.L:Itht:: It: IL' NG I1%- M.IIIIIII OlI!%Is11L1i LII II:(:!IL IP J.c11;14'£"::• IE11`114::"LL �J�1�1. r ':�L'1 A1,411'H�r.'ff+.Mrh'.l' IIW.I11.1 AlW'.!!11'.mIL! 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RAdIL' ; it :ti in1.L'r.LIL:rI as a 5;4':1Cral eIIILIC M 9110 %VI1idl IVPL'S e11•rllmcpims may-air.m.11 11F1.'::,IST 01• S r�rl-I �.r.�.�F�r� I:�}�-I'�NTAINILM;_MA i E':1UALS f:elnet1L Pipes CI: TICL1 L " al l boar(I CO :SIL° IOs Asr. llfllt ELL)rsr Tile f) PC'[ petty SolutjonIs v.,u 111 C;wa Arw111&Fil-ft' t:lilt+ OW Ch'!:;Lr,0.IMines; BOr- 3 ■ :11;i.rl}E1.¢_1o11 ■ r.. IX 'Ll Y.yI^939 AIDS V! ii -d t ImFr'I III! !tIwe" 1 lrm:nl� 1::.'r+IIS I•Ii:SL:kiI1iR [AMAIlisun 14.tMS fI1mu nInf.•:1-_a, ytillliir no) St I IrIxI IL::LI Pk: ,,ler I i�� »:. LI I t•w 1�1 � ws�:l i!5,t51r4i1 I'�;tlllt:+:'t`c::al_IIS',:+ Inigy. I IIi;s xirl I :i.: :I i°Sr`.eI+ %sftflt-•A;lp1iCd I,1SLlIAli11rI I M PM11.1:1 I MSL', I :1I1:'frl I-II'4liel,,F1li Ii sfl17 WiLl1.il0i)!'_12-IdI-LLIILlris, I•lieh 'i I:n:l)Crtctnrc t i,r+rkl;ls I. &OHlorp ClIms. Inv 1.1W: et --1 M ('uta:iS l:.c.,ll la FEldIlanU111 P;lllCl,: ---c %.- i1or i rHkC SINIUS I I S C I hiel. 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I'I'L+tat;11 V 011WiNAM 11 ktll MI'M I I L. 11 611;;:11;1:CH;II ill: ITMA)VL:rl _ (11111`:1.: i17xrtrllrUKI xvi:Ik aIC;I by I :1 , Flaystv5 stiju cm-cil: Cr.111?rachw ;Ind cli;;Iprlsrcl l fr ir_ .LL:L:;3:('.iar•li:r Will a1)]IIIIENI is 10CA, SLIft , 11.1.1 VL.' u-L-li I' j;.11ntisalLe. Itrislr 1a work :tr:liVi6ics. 2.1 Ptirl(ivr to Tenants 'I Itl.• !)lli14t':IL;ntwIICr %♦1(1.1111 ill rn1111 %N,rrtker, aL:r311; th'; ILIC P1:011 agct l ptly$icaI 1x1n:ULinn 1)F111V A(:-.%,1ti I,u;!mWd :11 It11'_ Ai,, %rll;ia: Slic pp.11g Cu-11Cr and slruss 4v Olclll lilt` LIILpI;IrDIIC-. rl: I'1.1L (IIslIIrLb:ll,t; t:1t ii� maICls.l:h. TL= shote' l lit: I: alLIieil for two CL".L`i=%: ( I ) tal.' GLIM; M ,L I'MV-X14-F.I ILae.;1;d 111 Lht;ir %".t;'.31 L1 13111.1 (7) 1111L3inirfI Lc:ulr'1S .11c ICSS IikcIy to know i ng I y d-..IfUrh ill"M%; jjI'�rl C. atssr i.sll:rEi. til it;; I�LIemLwal II,LL) tlt. UIi. 'I'llls Vito `1c::Lccor11I31i51,ed by di:; ribLlting 31 ,iticn MLIC.Ls, iNP11iUS vfL11C 5,;�1ra1- iIJ1r1:ILlI 1.31 as1:ILiUI Ir-IM31rL:Imr: tcpOILS cr laOstiI:g Lai suns t1111L MW7 F4 nlilY ul 11-.%1 -*t M51011CCSj, 01Id vkrilLsn II131IrcJ lir etc+ldr tvnall lti ill 1t_s lir+It; LJThc 1ll,lil°lg1u11:C1.t of LIIc Iti1; XInul Sllsap4'lallg c C.-Atr %,,h(mLr1 I111i1II'M ;t:l.lrl.s s}!Icrril avir 1t1i;aLrd m1tlin the stlbicel buiitling, 111:11 *eyR n1.;s6 rrll t-pliAtaci r0ii( k-Mion 0: 1'r:iiii.tail;l-lets ilc:HWllrx tiwallin 111tH' L 1pacc willlo',IL OIL: Cc*p1i%l:ilt ;'Full: r sbk' om, Com-dicil w- 2.4 Fili -Nunryr Ite411rr11'-t[: T'lic 161law irlg ctic in il(Ir1;!sh4tilos erllcrljaf`,1Wy Si[LI rIMIN ii Itir Ki1111;t S1lo1ppi1114 CcIllcr. An mall-li I:a(aln ;-sbemu1q 411wrgcrr v l igN tic sikna!ic^;LmIy LIaill kiged aLA)rsLos Cr]IN i[liIli; 110or I : i C, 1.1.'11.dl rxIrlasC5 bilII'dong klr.ryupunrs. Ila Fli:4hi'~ mshc5Los. I Lim evrl1t of 1111 accurrcrlcc of ail a5L-CSLOS-MI;ktt:d cm4rj%Ij V _LI 1I'M Kmalt .mic. 'I'tic. Pt I.low ing 1lma-din l ti.vi Ii be employed: II--lI COi',11C! r L1i111ll I11a;iCC. OF Lipo C nrrg-uiir;v. OIV PAI-ty 1r9WAVULl Mil V.LCPl� dic WCC cal' in a1wcr11cl1t and OLL: A%bcstwi Coordillalffr miliYLri diniJ dC1b1"iL;r1C: alt ;IIL: ■ The Asbestos Cac11t iiiiaLtar wlII e¢rmact a hcmileal. (ILMI-IIr.1I e`!ShM,11)s allutrilIt::Il coilira cLsai kylIII: l al I take $Ctioil til Lmmrd3ialcIy 1kc11LC thu ;&mi. -Dr Ill Y(IIVi: rL1:G1 1ruill 111r. 1rI~L CE .tie ILII I{ in& by evaculaUng 'arly 111111-ces5ary pace staroltw] Flom I Itir i111L'�, ti I I nin.6 o ft- v r I ML3]RL I I lL1 1111 11 Property Salutiuns :'.L'!'' 11 F-.JSI WallI.r. S11cel - ZURC 11W + ^lill'1F�!7, IJLrim. rVUM' • .'1,12.wig --Lgr-a 4 rux 17:a.'mrJ•rmur, .IEi-r.WWI ilk, , L'e1LE1prIlImllC IIL tplb' •41 'I. 1sa11irGlll�,+ ti1;. ;Ir;il 11r�.11ltijl,.�, OIT;L.1 CIII4VWJVK :1.11d 1XIM!Illa i:':LI!1111: RI:.lif- illLILt:AN11' (�-c ImrL':ll'ILl:te Of :1 11;1v :v IV L.: :II -L::!. ` II Ihe,in: Iitr0:in: I%i)I*till::ll :: ^;lite LiliLl A I4:.Z[}IJIIISu.IL�.IClil 11:111!A I,r rid31L:1'44� 11 a. ell; .lC'::I'l!EIIIl:kl (IV%.[ IrUCIL, r`.C1 illr1h2i 1. eiIk WI 11 hC LkIllt';IIli I t:14 -.RUl 111 11C:11:1113 I�r)• 11L:1; kill 1'I If1L: iw111a;c,11r;:=.lr` 11•11.11r'[ti;IIEIIC:I01411 L` at, rijiL1,' %L"III a!Irllla.' u:u 1'S:.Ir114'IE7 C'L1'.1?1]I-.-Ii ii CL' .11I.: I'19jiiL7:':alalllil'11L1J1kL: 8CL1V1!•M. d-DILL111U:111.1L11)rl Il!t!:!PCI1:1LN I'IIC` W-.11 klc' LIL1L:Illimmicd 1py [lit; A:il'ar v,. Cootdil'•`IIDI' Illi? �'rl'4-111r:1Ftas�:L111 :,IIW-Id ILI!"A1of the i•l.qIL.'Si• S C131i:l urlr'L`, I114x'ell` UL111t r:xfn5busim: c.rr;lL:lllllll2 IIL;iIt:[ It 1: illvllI ved ill IIC I:3I1.1c :1' LiFI:.Iritcrej% P IMUCIIM1L 1:0 11VIC11"I" wa%U inaiiii S11% {ur tlFc: 1:5rlC5LQ;5 M11•11116'C:'li 11.0111 1.11L: g4LIIJICCE PrCalli'lc1j r1u. 7-5 lPhh1L*%�1.111ll1C1It 1 Ili 11i bcsI:1S C Cp(n6llFil:Ol ,,I:taulLl Ill•i`p7 tl;-.1 ".k'l;Ll`-,lj"`I11'`.i1, 1 I}L:'.4'11: 4'' I.I. dim leilL i1L14I hl.vu _1 :14!Lll!All1L: t;F i11511-111ILL:L: U: tUMI.Lil:t al• 1ilDlacCtY I.`CCSr1nr_C:I LjC"5S:1I'y 01- A Cupke cif Lbvi L4ly gig t;UIIL:1llL:111 car. he Ii Iffil Lll LK! -ISL Ins" suctiolIOf t11[`(.A-.N,1 PI ?Fl It F.11.000 bt: nn'L:d [I IM 111E Iw0i:CmIv t�':1r.�r's ;1111}rrwL $I11911I[I be: Ci1rimuIW1.1 ]II IW IL:I CIIIS1 11I.Ltilig LlliS typC 01 'IQLIrL. ?2i 1L:i1:L:ilw. 2A hadivc Lr1 FIll i,ln-•CCs '1110, C1.10rdir]i h), slI.M.111.1 III UjUrt:.t mo Lcl: or slllli:111L nt ILI 111151111"11110 Irl A C-_llpl:lyOL:N :911el 11;14rC• Illi L,`117111C14f�rr1 :�Cl�r:a4wlL;IL 1iS:.L'111[ LF�1111tr.:lKflo€C J!I 14'1'ILIII I IFiti1a1L:I111'111 i'c 11111 Llr.sillL'LI rc: 11c i; X}SII LIw rlr I11t: vi-phayees, ; llyrll,t '.J1lder il:rs 121W. 11WL i11111tW1' .IiF 1111 aL:ki.nm-1mI1p1llI.2l1 1114$1 111C Cl11191L11rLM Ilas beer illforlrltal0f tell: [3FC$Cn{:C v1' A CN -1 :LIli1 Its Imal:0II vuid conditinFi. A csally raf li'lis rypc of stateIi rml an be f-DL;11dI ill '&lit; ''Fnl-111115" WC[iO."I ;ai' IUN 1al.11=. fit+aLLlc° Llllr n:llul I'l:l,L_at14:I1L111C , 1 1711i1 or r1110rF,04L:V ii1;:l1YIt1L'4 IEAI LLIIC inLll an vall;;rit: aSkacsms Llai i.t61:1e1:[ ami raco-r•r be ca1Icd IIL t4i per Ih WC A, t11c .�%'w.%-LL1s C loGil II'.RIC I' C2:1 Clthcr cpnlrm-1 ► iL l IIIA pct LJ So[1]t,Ctis Lll :111{Slllct CI14+La�!['lll�llti'L, li:Ir: LL) �Il�urc cuJl:liailln�;�: tilritll r4 �;L;l.11vey [L�pwin At 41 111inir.lraCal, I'M t:1ti>i!iM37MCIV311::'Unr~I.11z111r will v riiy ;171 lbllatving: �I�I„ficiltit>•ll lL>' tE3�� 4y: H[:11It4:1aiI1 �'i3L:ti�� }9sall:l L�ellsr[Ir:ellt i:171C1 La'.Il�:r �p1�I€rpr:,ILrT ��,tGns;i�:• (11.1101 IL:; fli.l: K-1141111ES M P01111tion call mi ;�gcmcy. 4tr:), i u $iL:i'llif of Like 1rb.Itzili It prcjCCl :s I'r_r c L'11C1ugh It) impire rltll licati[all. 1"roof 111x.. 11.e contras-. s',i wo kus .:e a ucciftil, t:crliPV6 or Iii nixed Crld Lhat Ilicy am. lir iperly Iriaivvil- . Property Sol Ill W3IN IAC: +l E;11:: ALUM W; L41M-121 • Suite 9DR ■ CI AIlSflej.11161L;SAr:r:1:a - 3:g -X3`13-4 SUEZ . Rim:4172AFTJ Hlh!- ► E EFIlich of Ir';1?rralljn III, IrWElls':L1 Sill IL'I:11'C_• wal-I,rl Im. =1:T'lllll�!I1:11!s71: Ni It'slllll•:'LI 14.1 (Is I io-V FP.; ii1141 kJ: SUI Ic IL's:1II.IIfl. .ti :l�':'=1E'•'.w'a. k `+Iotlr14':111 n Lrl 1}t111L1'IIt' 12L7:'.11'Sa"In :111;I v'1S1[Ei1'* Ihar idlsilt+4.'lIun! at tivIt4.' IN x I dc Iv.. 1 . �+`L!rs!1 x. t`wc the titJ:llldd Wi .'I 1 LINO I5; 0'.)L:e A: 51'.' tllT I:4:'i:5 :111:1 '.L :'I �h LII ��I Ir l'I:Ll111:1 WC111I41114:1, jylL;ll=' L:LILIij111-L:I:". :.:113 SE:LILA WjLSL`':IIS:Iipk.i1 9icli aics + 1Ir114 1�'.dIlir .01 1[ia1)ii:'IL1r911f 111U AIL':I 11,' 11W r.%vvl°s'IT, iL'1v1"4""L:o:l.i°.:IYU 3;' s Il 'IIIrL' L) ME L ! I L' •II LSI '. LIc.cu,i:LiLhIr I-31" LL L`li.il', Ln aL'L:L:II.LIILK. L:1•LIL'11it .Q Ell: UNCLJ IL1- CIVIL'! 11:lltF'.ly; L'011111i.ol'on of t11L: kL'nl", 1i.;;. %-Mli'.1 !!11.1°L:L-110!I'5 ::'111 :III - I it{5:1 I Ei71 I I I �� 3j) N1:111!VI''Ir.r.AhCT-7. .1.I Worl<r riLwarN.ull-5-S VMMI rt.iIMilL:4Lig 11 01'H11 AC' PL a;L1L1IIIt] t)C COZILILrLLL!4j iLL ruLOW Iii1L;V9IS 41- '[W, X;-%'( I)IT.11- I .MILE --ill I:r: ;14:c no, InaI {'.aLll"CG yr ii. uu."t. 4411 kers shoulll NC tl.'•i11i:kI illlkl 17:1CL3L1111'Fill It I :LIY4':rvA Lie iLWR--.0 i11 01.l : !rlrrat 4111 4I'.(! L klrr4 llt i g1114:LI:iJ11 jNf the ACM 01' iL.-) llC%V Sl1`;19�al J1'.:IIL:ri;11w. g'lli lar r1:(111rL their o4cmiliawL 112 IN; MbE.`m-us t.'Llsl 14.1 i r1�lt�r. 3.2 t't•oreasirylulXcii5speclium A! IWI;L :11111L;a1.N. LIM 1}&M Iilcr�a im :Lnd ACN45 1.31111111ii5E1 11.11,144 he by L'iopc1"Ly %0 1 Li Li011.; I E1I R=101ItCl CILIMIiIk-LL Lal ','ntn.lwN.11 iirrl nucixrt+IL:111 Sitt!5 c;aILy Scr-A.I-C M.:n a 3RAICis II:L: utfL:c;.Iv'cr1c44 DfIhU [y�-i!+1 p I N I I ,111$1 1110 1111;Iwil:i;1 CE3111Ii1:011 [lf the At: R4. 0&1%►1 I'T11)gror.1 51 LI 1J1�.[ rlldudc :1 ys'.t.'.li !;i L'15rICl'o1 :;IL work hulk walca riistt!r(1 ACM. I L' resp vl.sil3iiityr rlethc A.rb;;s I os 1 : L1;LliriaLclr RE tile Klllarl :'i 17pi11g courkmr Lu ellucL 511c"I :i s;1"&tcm. 4 1iub11i111iI:gEvvkt2cl rltia13n 4:r Iliti'r,i41eLL %i in Lr_;it,,; aI "Lll-k per:ilit'' :)IYF 1".un, L�111c11 1 c.11 Cs Lt.t I:c-grin rCLI UC!Aing ll:tg 4.4rmk to ISUb.iili it JI -Ib 114 Cil U1.91 Fo-.m l4 tIm A4bri'm {..001dJILill UJ IFL`.li.F1 t: an IFill IrlttiuLlrlc�.: tJ1' I1'1a11' work 1s hcuum There ILhirc. I°cfbr-c ii- alllil411aI= or mCrW1,alIOil ,vLail k In:pIzn t1l IINC [.igKmart SI'IRCU)lle`, Lhe walacstas COLI Mi_lAtOl' kvi11 bu o'nIc Lo dcic.-n-ilic the paLcIItlitl Joo w0uslos cont:ltnv)g :11ato-itilg L[1 he inti;).ti4;lcL1, ;jlTjjlq, J-nr t11lgo. jL1111plijIg .1tIt::i]l:@L]VSIS rel ;LlsllreL 10 Property i?lirtL llt INC.- 11t;lnl:L51'91fr1 ' '$;111$ L10; ' 0111cLign- 1141'51.5 GQ,.3 ■ X17-S717-45rtQ . FQ%x tilli-WIT-9'7�7 .141N::: I:%% VOI I rLj 'I I I I" PI'ZI I L-l'i.119 :I! ILI .11.1-:111';: I'1: 11:L' ILxiihA.fiI x:• 1°01'Elill:L'd:ISIJC.5111: :I1111;111:.IP', 111d1': - 111;11' d1':111.11' I: L'.L[�1't'I'swl:l ' 1'Itir1:1.1'l!d by 112111" '•'•'l ll 1Elk IIVILI;:i L :`..[ :1! il!11LJ11::1.' i 1111LI) 1kl iC ;11 I[IV 5IIJC [IilLl Il ly ;;?11.11' 1;1[ lily' RS'L :1 1LLiI f'• ljl l il° IiL'i:::Ilk' II!C V%IX::'•1 I".1 :1l:111'il:ll:l l' S :1�,1 I^1'�l1E l,4i1�1 L:S'.IlliyhI lr111':1°lalt'J11 i:1+:1..::1116 A( .¢4. II1111r �[Cll:i.'s �':' 1Fll- !.:L.'L:L:°:�,! k r: h I Ela' CL112t1;tti ill lu WIlk: 1 1101 %[1111 :1111',L'J:W I!cj [6 In II!v ti4e11 k %IltinihI be IdLI:ti[ 1'I:(I 1]!I L.I.- i[ 1131.111 ER eUI'L 111M :I .1 Li"' RVULI1'.:111:. Tfic A-.1+ti•:• oN C!-- dII-.itIL:: L;I:llnlll ::Lk1! 1'1. ,lalllr.� in. :.IL'IFs * I L •'_4'I LO A'. iLIo: I Lx:u: l4. IYLll ltil: A ill:lll:i SII°til :L[:i At 'M [!I.ip-L! ho!1 lu r:I U. 11'I"IT111:1C a'.IslilcI A('IN•9 L34 ll CLAM, I11 :ILO 11..1ILIthe !E?I5r.' A0.7'°; 131 114: perIu..11:R! L 1111 ': U. CIA aIitit: II]III L":I IIFit I I ne ma101 l:sl 11, 111 IN cI: ,mrbt.A• I!LL AOK-MC IS f "001i-lIC1101 til.lilLll;l Il:cr1:111 162 n1 :ricI Irl:11 I:I ' ::rllll[1L:llilE _11 trn::!l Y11;11111 l..l Iri111:1rt'.Lr1Lx' (W-101112.54Lrllin-:. [IIL! ACM 11" A(: -1 is bnLh flro wnl and likely Lo he liisiurbal. IN: MFlom {bo-dill:LL€1r ilk•;: dc•-xq'I.-OLMI U.'R IVISCr f.11alified lig' lraitlinj! .1n i uxllcrlcnee, AiOL.111 Vi5i: 1150 S_Lc "Ll=ci kilufllli.LIC 1'1'1115[ 41f1,: 111rileIi Ocs -aILou Id c IIIStltLIIud LI! 11'._11iMi;'t: IIll' I't;Iu.15-0 5fa1911:;! SOS III!C-�LdW" illi; the N%.t11k ILL: tI%.it;. A:s134': urt ONW: Oct ivi(ics ni-Li b ILLC LN52.1' 16! IeUrt111{#p'Lill ZiAll t.%Ul••: hd:'Wd frelll:l is j$Adr1'%1,dI %vtork:LL- it 116111' to IILL' c:llrMillL:ll-LICH11'111 Uf 111•esrk AUILY rlri. AI 11C(LLI.CM:'suit_ PIt1 Ali S10'.11 Id Inc I=Icar; y ]1_{11 kc -1 or ICLI ;LI1d ;xfACCd llt (Hl° IPcIIrNLI -CIIL 11110. 4.2 C'L?111I-NL•14Jr' -N-0IirCUtiDO I)kni In pet -ill I!i]IIi� n1.111LLcitllIR:U'MI].11: ;Lrlil'llle:%, L91I411:1L: CiJ:lIMeIOf:- 4111111](1 -.)c upIireAL tO SU'3IrlIL 'IIL :LI (IYU 1111CHLiiF acd w:11I1 perroil liii in i4i :1j111rU-V; J. ,' ddIL101l. HY. JI tAll.41LIA; i'11MI-.ACCTS. Shol11LI lierLslLliliel Lit!;ij,:l a rllali.icalifllI. RIFNI %VE-CIL_JIdI:Cr1lk�s IhAt Il:wyWCIC IIlfU:[11LEI Lhal thele ill ALAI p1cavill 5.0 WOR K PRACTICES QUI a1sbcstas 1r.I.LLc41 pTojcct;: CrnuLim; incl cinerLa1;<nr:k) wilt km miudL:ciccl by M c11.1 1 -A -L d, 111=15iLL :]Oche!; ;111:1tMICI11 -Ci;?tIlMOD.-; 111[1{ 11Y C.L-.i:II Stat I a.1 ASI}csms Ab.lt{:I ent Orl(lc]ns P11)[1L!Ily NI.A.14iI.Kh rML111FrntMAS 11112: L1SUsl ill 11:1.: K:lum 511oppirlla 1_crllcl $c :e nlll�L:I -5011.11 111'-2 %UbJP-e[ Ll111111 cp 1)rvoi cc. Ic_ ov., tion. I1mr.:s::lance or 11011U111L1311 .Ic[i1 i[ic!� �41:zc11 '•11:141 :lRI11°i-xv°1V llllpne (il}ilMl.IF1:!) L?1c e1.q,1CSLL1; CL7MAII141% 1DaiLr:R.115 HQl+l'L°ti•CI', 1AIRL:1- :It13°:CI11C.I1 options 1.36 cx_5" 111 1E1t :isbOA115 upcilrol ]11LILL�-h-L. 111-C nr aiiy ScrUlUm 15 LO ric,%cri, n R}411s'[ Px'uIIerty solutiolls I:rd 111 f. [.L 1a+ r'•+++ rRI.5:1[I1F1 Llrs� . 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W-A-liiM'iiIv 11 111 +;1x -In i' h;iv%, :idlc't-i115% n :15IIIL'S !rs 4.(1111:11111"aiIL'il W.I5ll• artel (II:;11e:x:!(1 L1f':L1111roll, i:aICI %"q 'Ville (11KIra,ENL11 )I-pLj.--iI r11 :`..`.?lti`.LLs9-s r•fat11aIniIi 16'als c rf411L!1-9-..;E'. 11V ,l: hV-.11LIS Ills n: %kiII 11; EI1L: I-c"11.111!i111111- I1t Ill'-: a3,ehu$1V{ ri;ar;lllllm, rf<Wl',WLm. ASIWNILN° V011LUM111'115 W.ISIL'. :,,L'11e:iajucI il!�IIe1La ilNL)L:aL[J.q L111a14L;11:£•r71 Carl ice LS olid 1',l' irrzlly C0115Ihtw of :L'11 040' i ASIIJUML)n L,rllili111'--.114 111:1IL'I'I:11 414 LL'01 4424 lI:%.)%Ir.4bIV illMUq:i Wilt eq LIL:lll"Gill 44IildI IBIS -DIX11 C Wri- 'Se L 10 Arsix%Wq 41:7«4 5 (fee-aiGLUI CMI I! IC1L',-3. 11"U q I! IC C1 LC1DSI 117: 11_€LtC[i; Is, 154aLec-Livr, SLI 111Fi t[C). All :IsI2csa,% com.011.11l1i Ll•:!4LUI 7113!CLIFII iS j ra:llrl4 bzig-_'yvcl ir i.+L-6141 L1L11; 1111 L- lcd ;` ptalslir: bays awlli[:11 4HIL! 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Tll-,: marts u1niaillur); arV IHIIV! 11I7.:L:d ILI IIIc. 1. ncirtiil in u cnin,mi;. 111c•.kabIL: vuhic Ic ELIC4 Lt,l11:1111CL1 by i1 i11,017t:I' WMAC Ia7akllifusi 111ucting %11441; and fula'lll IaCgUbLill-15 1h. -It dll:itliis dic: nrig1'.l orIllw IMILCI.1;11, LIsIC SLIIII itll:allL311CS Of tii111S(,}O."i, yl. -c% oFCl nnainus 1.111x1 drslinnitun afi CQI11:;timrs; I (L1all`iprll1c.–I by i dr.1'11 I ni—ty livuLa. lllfl�''Iii51L7C1'• Jl.uMilllllg., to Lhe. 11;iUlCi IS iLlStl illd lCi'l 91 1- C tr11'I�1. 'I"I:c 1Ytly, tl1a1t1iIC5L iS SigTil 1;1 cLidl ll-WkSCcI- paiki: a iii a'tcr [i[,,LII lflLt!Fp[lI'L L[7 11,I: l:a:icl ill Sitc..l c:Lall4t elf lltie: Inn 11 is IllaiiI11ai:IC(I ;l1 the F'l.aperty'S rccords Els cwitic nce of rcui171 a ihi :lisinsal Site. 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IFIC IiVil;..:t I!. i�I�'.:IIf1PLi? �' �� el'tV S11lLEt 101LS INC 1i FLISI A(fjk:,,•. $IIflaj • VLJIQ , US • Gnl:arra. 111 -wit, OOL:53 0 : i2!-LJl!f-Gr lU t F:u 312-999-BIG91 V BIDDER: ► 64,e 1 " oOfl'iS�1�ucC , ' 4�'1 stantec DOCUMENT 00 4110 REMISED BID FORM REVISED BY ADDENDUM NO. B 4200 & 4300 XYLON DEMOLITION CITY PROJECT NO. 893 PROJECT N0, 193801635 NEW HOPE, MINNESOTA 2012 THIS BID IS SUBMITTED T0: City of New Hope City Hall 4401 Xylon Avenue N New Hope, MN 55428 1.01 The undersigned Bidder proposes and agrees, if this Bid is accepted, to enter into an Agreement with Owner in the form included in the Bidding Documents to perform all Work as specified or indicated In the Bidding Documents for the prices and within the times indicated in this Bid and in accordance with the other terms and condition's of the Bidding Documents. 2.01 Bidder accepts all of the terms and conditions of the Instructions to Bidders, including without limitation those dealing with the disposition of Bid Security. The Bid will remain subject to acceptance for 60 days after the Bid Opening, or for such longer period of time that Bidder may agree to in writing upon request of Owner. 3.01 In submitting this Bid, Bidder represents that: A. Bidder has examined and carefully studied the Bidding Documents, the other related data identified in the Bidding Documents, and the following Addenda, receipt of all which is hereby acknowledged: Addendum No.� Addendum Date L B. Bidder has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. Bidder is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. Bidder has carefully studied all: (1) reports of explorations and tests of subsurface conditions at, or contiguous to, the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at, or contiguous to, the Site (except Underground Facilities) which have been identified in SC -4.02, and (2) reports and drawings of Hazardous Environmental Conditions that have been identified in SC -4.06. ® 2012 Stantac 1193801635 REVISED BY ADDENDUM 8 00 4110 - 1(R) REVISED BID FORM E. Bidder has obtained and carefully studied (or accepts the consequences for not doing so) all additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at, or contiguous to, the Site which may affect cost, progress, or performance of the work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by Bidder, including applying the specific means, methods, techniques, sequences, and procedures of construction expressly required by the Bidding Documents to be employed by Bidder, and safety precautions and programs incident thereto. F. Bidder does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the determination of this Bid for performance of the Work at the price(s) Bid and within the times and in accordance with the other terms and conditions of the Bidding Documents. G. Bidder is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Bidding Documents. H. Bidder has correlated the information known to Bidder, information and observations obtained from visits to the Site, reports and drawings identified in the Bidding Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Bidding Documents. I. Bidder has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Bidder has discovered in the Bidding Documents, and the written resolution thereof by Engineer is acceptable to Bidder. 3. The Bidding Documents are generally sufficient to indicate and convey understanding of all terms and conditions for the performance of the Work for which this Bid is submitted. K. Bidder will submit written evidence of its authority to do business in the state where the Project is located not later than the date of its execution of the Agreement. 4.01 Bidder further represents that: A. The prices in this Bid have been arrived at independently, without consultation, communication, or agreement as to any matters relating to such prices with any other Bidder or with any competitor for the purpose of restricting competition. B. The prices in this Bid have not or will not be knowingly disclosed to any other Bidder or competitor prior to opening of the Bids. C. No attempt has been made or will be made by the Bidder to induce any other person or firm to submit or not to submit a Bid for the purpose of restricting competition. 4.02 Bidder understands that the law may require the Owner, or Engineer at the Owner's direction, to undertake an investigation and submit an evaluation concerning Bidder's responsiveness, responsibility, and qualifications before awarding a contract. Bidder hereby waives any and all claims, of whatever nature, against Owner, Engineer and their employees and agents, which arise out of or relate to such investigation and evaluation, and statements made as a result thereof, except for statements that can be shown by dear and convincing evidence to be intentionally false and made with actual malice. Nothing in this paragraph is intended to restrict Bidder's rights to challenge a contract pursuant to law. m 2012 StanW 1193801635 REVISED BY ADDENDUM B 00 4110 - 2(R) REVISED BID FORM 5.01 Bidder will complete the Work In accordance with the Contract Documents for the following price(s): All specific cash allowances are included in the price(s) set forth below and have been computed in accordance with Paragraph 11.02 of the General Conditions. Unit Prices have been computed in accordance with Paragraph 11.03.B of the General Conditions Bidder acknowledges that estimated quantities are not guaranteed, and are solely for the purpose of comparison of Bids, and final payment for all Unit Price Bid items will be based on actual quantities provided, determined as provided in the Contract Documents. No. Item Units Qty Unit Price Total Price BABE BID: 1 MOBILIZATION LS 1 /� Q $ `-' V moi $ � �v 0c) 2 TRAFFIC CONTROL LS 1 $ b'50 -M $ 70 . DO 3 TEMPORARY JERSEY BARRIER (ACCESS LF 50 $ 20.1m® $ t 000.00 CLOSURE) 4 SECURITY FENCING INSTALLATION AND LS 1 p� �- $ 60CD.CQ $ REMOVAL 5 4200 XYLON AVENUE NORTH BUILDING LS 1 $ 06 ), dQ $ 0 0e, 00 DEMOLITION 6 4200 XYLON AVENUE NORTH HAZARDOUS LS 1 _ $ 00 $ BOO 0o MATERIAL ABATEMENT 7 4300 XYLON AVENUE NORTH BUILDING LS 1 $ 11000 .00 $ 4'x©00 to DEMOLITION 8 4300 XYLON AVENUE NORTH HAZARDOUS LS 1 $ W 00 $ 19oo, On MATERIAL ABATEMENT 9 AGGREGATE BACKFILL (CRUSHED ONSITE) LS 1 $ 10 COMMON FILL (LV) CY 400 $ I= $ 32w . o0 11 REMOVE CURB AND GUTTER LF 650 $ 2—go. $ il0l0 . QD 12 REMOVE CURB AND GUTTER W/YELLOW LEAD LF 650 $ 4`UO $ 7-UOO .CSO PAINT 13 REMOVE TRANSITE PIPE LF 250 l $ 1 0 f $ 2 no 14 REMOVE CONCRETE SIDEWALK SF 8,200 $ • 45 $ 3UC10 .m 15 REMOVE BITUMINOUS SURFACING SY 3,000 $ 7—t?0 $ (.Pc*O -Do- 16 REMOVE RETAINING WALL LF 175 $ 9,00. $ 17 REMOVE LIGHT STANDARD AND FOOTING EA 15 $ '560 �oo $ 0 2012 Stantec 1193801635 REVISED BY ADDENDUM B OO 4110 - 3(R) REVISED BID FORM No. Item Units Qty knit Price Tot3l Price 18 REMOVE CONCRETE BOLLARDS LS 1 $ _ :3 f $ 3 co, Qi 19 BULKHEAD SANITARY SEWER PIPE EA 1 $ Q 00 20 PLUG WATER MAIN SERVICE EA 1 $ EA 12 ++$ $ Lam/ $ 0C� 21 BULKHEAD STORM SEWER PIPE REMOVAL EA 1 $ b00,00 $ dD 22 OIL STORAGE TANK 23 OILVATER SEPARATOR AND SAND AND OIL EA 1 $ TOA eO $ ao 00 24 TRAP REMOVAL TRANSPORTATION AND DISPOSAL OF RESIDUAL GAL 500 $ 0o $ !Eow, FUEL AND PETROLEUM SLUDGE EA 1 j $ /4-a� $ 4 Sm- oQ 25 REMOVE KMART SIGN 26 REMOVE ELECTRICAL TRANSFORMER EA 1 �a $ _Vl/1 $ V Q REMOVE ASH TREES LS 1 $ 00$ 27 28 SALVAGE FENCE WITH SLATS LS 1 $ 05C6.00 _ $ l9r,�Oxc 29 SILT FENCE LF 500 $ Loo $ t bpo ,pa 30 INLET PROTECTION EA 15 $ S5 •aa $ ENTRANCE TN 80 $ Q c'S Cv $ A000,00 31 TEMPORARY CONSTRUCTION 32 STREET SWEEPER WITH POWER BROOM HR 25 $ 0-95^pd $ 3a.1; -C)O MJ-04:7 TOTAL BASE BID: $ $1 C 2012 Stantec 1193801635 REVISED BY ADDENDUM B 00 41 10 - 4(R) REVISED ERD FORM 6.01 Bidder agrees that the Work will be Substantially Completed and completed anci ready for Final Payment in accordance with Paragraph 14.07.B of the General Conditions on or before the dates or within the number of calendar days indicated in the Agreement. 6.02 Bidder accepts the provisions of the Agreement as to liquidated damages in the event of failure to complete the Work within the times specified above, which shall be stated in the Agreement. 7.01 The following documents are attached to and made a condition of this Bid: A. Required Bid Security in the form of 5 percent. 8.01 The terms used in this Bid with initial capital letters have the meanings stated in the Instructions to Bidders, the General Conditions, and the Supplementary Conditions. If Bidder Is: An Individual SUBMITTED ti.. 2012. Name (typed or printed): By: (Individual's signature) Doing business as: Business Street Address (No P.Q. Box #'s): Phone No.: Fax No.: (SEAL) 192012 Stentec 111938011635 REVISED BY ADDENDUM B 00 4110 - 5 (R) REVISED BID FORM A Partnership A Cor op ration Partnership Name: By: (Signature of general partner) Name (typed or printed): Business Street Address (No P.O. Box #'s): Phone No.: Fax No.: Corporation Name: _ ` Anhichr CG0Cjy- d'0-v'%.li7G.(SEAL) State of Incorporation: ! vt f plylts6fk Type By: (Signature) Name (typed or printed): ban LUn4xoie' Title: U-0 Attest AA -L, (CORPORATE SEAL) II� 5 gnature of Corporate Secretary)�jC Business Street Address (No P.O. Box #'s): Sk4kv Souk !i� c(ree+, S� qLA !h O s(o?>U i Phone No.: r ` "t"r Fax No.: � CSS �3 0 2012 Stantec 1193801635 REVISED BY ADDENDUM 8 00 4110 - 6 (R) REVISED BID FORM srTnM'C-lii�Iia ]Dint Venture Name: (SEAL) By' Name (typed or printed): Title: Business address: Phone No.: ]olnt Venturer Name: BY: Name (typed or printed): Business Street Address (No P.O. Box Ws): (Signature of joint venture partner) Fax No.: Phone No.: Fax No.: Phone and Fax Number, and Address for receipt of official communications: (Each joint venturer must sign. The manner of signing for each individual, partnership, and corporation that is a party to the joint venture should be in the manner indicated above). END OF DOCUMENT 0 2012 Stantec 1193801635 REVISED BY ADDENDUM B 00 4110 - 7 (R) REVISED BID FORM THE AMERICAN INSTITUTE OF ARCHITECTS AIA Document A310 Bid Bond KNOW ALL MEN BY THESE PRESENTS, THAT WE Landwehr_Construction, Inc. P.O. Box 1086, St. Cloud, MN_ 56302 as Principal, hereinafter called the Principal, and Western Surety Company P. O. Box 5077, Sioux Fads. SD 57197-5077 a corporation duly organized under the laws of the State of SD as Surety, hereinafter called the Surety, are held and firmly bound unto CITY OF NEW HOPE _ 4401 Xylon. Avenue North, New Hope, MN T�^ as Obligee, hereinafter called the Obligee, in the sure of Five Percent of Amount Bid Dollars ($ 5% ), for the payment of which sum well and truly to be made, the said Principal and the said Surety, bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. WHEREAS, the Principal has submitted a bid for 4200 & 5400 Xy_lon Avenue North Building Demolitior, - Ci!y Project No. 893 NOW, THEREFORE, if the Obligee shall accept the bid of the Principal and the Principal shall enter into a Contract with the Obligee in accordance with the terms of such bid, and give such bond or bonds as may be specified in the bidding or Contract Documents with good and sufficient surety for the faithful performance of such Contract and for the prompt payment of labor and materials furnished in the prosecution thereof, or in the event of the failure of the Principal to enter such Contract and give such bond or bonds, if the Principal shall pay to the Obligee the difference not to Exceed the penalty hereof between the amount specified in said bid and such larger amount for which the Obligee may in good faith contract with another party to perform the Work covered by said bid, then this obligation shall be null and void, otherwise to remain in full force and effect. Signed and sealed this 29th day of November 2012 LandwellL Construction, In (Principal) (Sea/) (Wun ss) B: 16 (Ftle) Western Sure Cam an (Wltness) Josh AI.4 DOCUMENT A310 • BID BOND • AIA • FEBRUARY 1970 ED. • THE ANIERIC INSTITUTE. OF ARCHITEC'rS,1735 N.Y. AVE., N.W., WASHINGTON, D.C. 20006 ACKNOWLEDGMENT OF CORPORATION State of MINNESOTA ) On this 29th day of November 2012 County of aV 5 ) before me appeared Qi��-am Thr to me personally known who, being by me duly sworn, did say that he is the CVG of LANDWEHR CONSTRUCTION, INC. , a corporation, that the seal affixed to the foregoing instrument is the corporate seal of said corporation, (Sf no seal, so state, and strike out above as to coxporate seal) and that said instrument was executed In behalfsaid cration by of Z=V authority of its Board of Directors; and that said a1A Lo acknowledged said instrument to be the free act and deed of said corporation. 18 SlJE WATi9N5 NOTARY aLKC-MMESWA My CammWIM Egft Ja St. 2011 State of MINNESOTA Notary Public County, My commission expires ACKNOWLEDGMENT OF CORPORATE SURETY ) ss. On this 29" day of November 2012 County of HENNEPIN ) before me appeared Joshua R. Loftis to me personally known, who, being by me duly sworn, did say that he is the Attorney -in -Fact of WESTERN SURETY COMPANY a corporation, that the seal affixed to the foregoing Instrument is the corporate seal of said corporation and that said instrument was executed in behalf of said corporation by authority of its Board of Directors; and that said Joshua R. Loftis acknowledged said instrument to be the free act and deed of said corporation. EUttt)A Notary Public County, My commission expires Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY-IN-FACT Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Bruce N Telander, Donald R Olson, R Scott Egginton, John E Tauer, Linda K French, Craig Remick, Jerome T Ouimet, Roger W Frank, Nicole Nelson, Rachel Thomas, Joshua R Lo#tis, Brian J Oestreich, Individually of Minneapolis, MN, its true and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By -Law printed on the reverse hereof, duly adopted, as indicated, by the shareholders of the corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 28th day of August, 2012. }� WESTERN SURETY COMPANY Bruflat, Vice President State of South Dakota l JT County of Minnehaha ss On this 28th day of August, 2012, before me personally came Paul T. Bruflat, to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is the Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires J. 11tQHR oPUBLIC June 23, 2015 (WsOuim DAKRAao { J. Mohr, Notary Public CERTIFICATE I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force, and further certify that the By -Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation this _ 29 th day of November 2012 WESTERN SURETY COMPANY E tQ�� �c0 ,. p40$4; a urt40 l�-=4 r OPM Form F4280-7-2012 D Nelson, Assistant Secretary Minnesota Department of HUMAN RIGHTS CERTIFICATE OF COMPLIANCE LANDWEHR CONSTRUCTION, INC. is hereby certified as a contractor by the Minnesota Department of Human Rights. This certificate is valid from 7/9/2012 to 719/2014. This certification is subject to revocation or suspension prior to its expiration if the department issues a finding of noncompliance or if your organization fails to make a good faith effort to implement its affirmative action plan. Minnesota Department of Human Rights FOR THE DEPARTMENT BY: . o -k Kevin M. Lindsey, Commissioner AN EQUAL OPPORTUNITY EMPLOYER Freeman Building • 625 Robert Street North • Saint Paul, Minnesota 55155 Tel 651.539.1100 • TTY 651.96.1283 9 Toll Free 1.800.657.3704 • Fax 651.296,9042 • www.humanrights.state.mmus SECTION 00 52 10 AGREEMENT FORM THIS AGREEMENT is by and between the City of New Hope Minnesota (hereinafter called Owner) and Landwehr Construction. Inc. (hereinafter called Contractor). Owner and Contractor, in consideration of the mutual covenants hereinafter set forth, agree as follows: ARTICLE 1— WORK 1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: building demolition. ARTICLE 2 — THE PROJECT 2.01 The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: Demolition of the existing buildings at 4200 and 4300 Xylon Avenue North for the City of New Hope, Minnesota. ARTICLE 3 — ENGINEER 3.01 The Project has been designed by Stantec (Engineer), who is to act as Owner's representative, assume all duties and responsibilities, and will have the rights and authority assigned to Engineer in the Contract Documents in connection with the completion of the Work in accordance with the Contract Documents. ARTICLE 4 — CONTRACT TIMES 4.01 Time of the Essence A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for Final Payment as stated in the Contract Documents are of the essence of the Contract. 4.02 Dates for Substantial Completion and Final Payment A. The Work will be substantially completed on or before March 29, 2013, and completed and ready for Final Payment in accordance with Paragraph 14.07 of the General Conditions on or before April 30, 2013. 4.03 Liquidated Damages A. Contractor and Owner recognize that time is of the essence as stated in Paragraph 4.01 above and that Owner will suffer financial loss if the Work is not completed within the times specified in Paragraph 4.02 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. The parties also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by Owner if the Work is not completed on time. Accordingly, instead of requiring any such proof, Owner and Contractor agree that as liquidated damages for delay (but not as a penalty), Contractor shall pay Owner $500 for each day that expires after the time specified in Paragraph 4.02 for Milestones and Substantial Completion until the Work is Substantially Complete. After Substantial Completion, if Contractor shall neglect, refuse, or fail to complete the remaining work within the Contract Time or any proper extension thereof granted by Owner, Contractor shall pay Owner $500 for each day that expires AGREEMENT FORM Q 2012 Stantec 1 193801635 005210-1 after the time specified in Paragraph 4.02 for completion and readiness for Final Payment until the Work is completed and ready for Final Payment, ARTICLE 5 — CONTRACT PRICE 5.01 Owner shall pay Contractor for completion of the Work in accordance with the Contract Documents an amount in current funds as follows: A. For all Work at the prices stated in Contractor's Bid, attached hereto as an exhibit. The Bid prices for Unit Price Work set forth as of the Effective Date of the Agreement are based on estimated quantities. As provided in Paragraph 11.03 of the General Conditions, estimated quantities are not guaranteed, and determinations of actual quantities and classifications are to be made by Engineer as provided in Paragraph 9.07 of the General Conditions. B. Original Contract Amount is based on One Hundred Ninety -Eight Thousand, Eight Hundred Fifteen Dollars and No Cents ($198,815.00). ARTICLE 6 — PAYMENT PROCEDURES 6.01 Suftlttal and Processing of Payments- A. ayments A. Contractor shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by Engineer as provided in the General Conditions. 6.02 Prog►ess Payments; Retainage A. Owner shall make progress payments on account of the Contract Price on the basis of Contractor's Applications for Payment, monthly during performance of the Work as provided in Paragraphs 6.02.A1 and 6.02.A2 below. All such payments will be measured by the Schedule of Values established in Paragraph 2.07.A of the General Conditions (and in the case of Bid Unit Price Work based on the number of units completed) or, in the event there Is no Schedule of Values, as provided in the General Requirements: 1. Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below, but in each case, less the aggregate of payments previously made and less such amounts as Engineer may determine or Owner may withhold, including but not limited to liquidated damages, in accordance with Paragraph 14.02 of the General Conditions: a. 95 percent of Work completed (with the balance being retainage). b. 95 percent of cost of materials and equipment not incorporated in the Work (with the balance being retainage). 2. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total payments to Contractor to 100 percent of the Work completed, less such amounts as Engineer shall determine in accordance with Paragraph 14.0235 of the General Conditions and less 200 percent of Engineer's estimate of the value of Work to be completed or corrected as shown on the tentative list of Items to be completed or corrected attached to the certificate of Substantial Completion. 6.03 Final Payment A. Upon Final Completion and acceptance of the Work, in accordance with Paragraph 14.07 of the General Conditions, Owner shall pay the remainder of the Contract Price as recommended by Engineer as provided in said Paragraph 14.07. AGREEMENT FORM 0 2012 Stanbw 1193801635 005210-2 ARTICLE 7 — INTEREST 7.01 All moneys not paid when due, as provided in Article 14 of the General Conditions, shall bear interest at the maximum rate allowed by law at the place of the Project. ARTICLE 8 — CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce Owner to enter into this Agreement, Contractor makes the following representations: A. Contractor has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents. B. Contractor has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. Contractor is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. Contractor has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions relating to existing surface or subsurface structures at the Site, and all drawings of physical conditions relating to existing surface or subsurface structures at the Site (except Underground Facilities), if any, that have been identified in the Supplementary Conditions as containing reliable "technical data," and (2) reports and drawings of Hazardous Environmental Conditions, if any, at the Site that have been identified in the Supplementary Conditions as containing reliable "technical data." E. Contractor considered the information known to Contractor, information commonly known to contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; the Contract Documents, with respect to the effect of such information, observations, and documents on (1) the cost, progress, and performance of the Work, (2) the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, including any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Contract Documents; and (3) Contractor's safety precaution programs. F. Based on the information and observations referred to in Paragraph 8.01.E above, Contractor does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. G. Contractor is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents. H. Contractor has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents, and the written resolution thereof by Engineer is acceptable to Contractor. I. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. @ 2012 SNentec 1193801635 AGREEMENT FORM 005210-3 ARTICLE 9 — CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement. 2. Performance Bond, Payment Bond, and other Bonds. 3. General Conditions. 4. Supplementary Conditions. 5. Specifications as listed in the table of contents of the Project Manual. 6. Drawings bearing the following general title: 4200 & 4300 Xylon Avenue North Building Demolition, City Project No. 893. 7. Addenda (Letters A to B, inclusive). 8. Exhibits to this Agreement (enumerated as follows): a. Contractor's Bid Form. b. Documentation submitted by Contractor prior to Notice of Award. 9. The following which may be delivered or Issued on or after the Effective Date of the Agreement and are not attached hereto: a. Notice to Proceed. b. Work Change Directives. c. Change Order(s). B. The documents listed in Paragraph 9.01.A are attached to this Agreement (except as expressly noted otherwise above). C. There are no Contract Documents other than those listed above in this Article 9. D. The Contract Documents may only be amended, modified, or supplemented as provided in Paragraph 3.04 of the General Conditions. ARTICLE 10 —MISCELLANEOUS 10.01 Terms A. Terms used in this Agreement will have the meanings stated in the General Conditions and the Supplementary Conditions. 10.02 Assignment of Contract A. No assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03 Successors and Assigns A. Owner and Contractor each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. @ 2012 Stantec 1193801635 AGREEMENT FORM 005210-4 10.04 Severability A. Any provision or part of the contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken and all remaining provisions shall continue to be valid and binding upon Owner and Contractor, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 10.05 Contractors Cerfrfr=Aws A. Contractor certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for or in executing the Contract. For the purposes of this Paragraph 10.05: 1. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the bidding process or in the Contract execution; 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Contract to the detriment of Owner, (b) to establish Bid or Contract prices at artificial non-competitive levels, or (c) to deprive Owner of the benefits of free and open competition; I "collusive practice" means a scheme or arrangement between two or more Bidders, with or without the knowledge of Owner, a purpose of which is to establish Bid prices at artificial, non- competitive levels; and 4. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract. 9 2012 stantec 1193801635 AGREEMENT FORM 005210-5 IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement. Counterparts have been delivered to Owner and Contractor. All portions of the Contract Documents have been signed or have been identified by Owner and Contractor or on their behalf. This Agreement will be effective on DECEMBER 17 , 2012 (which is the Effective Date of the Agreement). Owner: City of-Nkw Hppe, MinneWta 11%� 1175 r � Address for giving notices: CITY CLERK U" NEW HOPE Of -Ac-j Xyi nN ❑11F hill �.�V1 HOPE, MN 55428 Designated Representative: Name: KIRK MCDONALD Title: CITYMANAGER Address: 4401 XYL®N AVE NO _ NEW HOPE -MN 55428 Phone: 763-531-5100 Facsimile: 763-531-5135 Contractor: Landwehr Co ruction, Inc. By: kt tee. Attest;,,, Q _, YNO�� • l � ��IXE�olv�l Addreg f r giving notices: J1 FJD N* ib6(p 'I- f ioUJ t'V11a License No.: (Where Applicable) Designated Representative: Name: Wdu L-A11t W%a Yt VL Title: PG je-6 - VACIVlthC�ieV' Address: Rb . 1-5;-1- iD31,, Phone: [,32-0) 2— L-1L4Cj+ Facsimile: (324') 1-'32-- �3gD END OF SECTION AGREEMENT FORM C 2012 Stantec 1193801635 005210-6 PERFORMANCE BOND Any singular reference to Contractor, Surety, Owner, or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY (Name, and Address of Principal Place of Business): LANDWEHR CONSTRUCTION, INC. WESTERN SURETY COMPANY P.O. BOX 1086 333 S. WABASH AVENUE ST. CLOUD, MN 56302 CHICAGO, IL 60604 OWNER (Name and Address): CITY OF NEW HOPE 4401 XYLON AVENUE NORTH, CITY HALL NEW HOPE, MN 55428 CONTRACT Effective Date of Agreement: DECEMBER 17, 2012 Arnount:ONE HUNDRED NINETY EIGHT THOUSAND EIGHT HUNDRED FIFTEEN AND NO/100 Description (Name and Location): DEMOLITION OF THE EXISTING ($198,815.00) BUILDINGS AT 4200 AND 4300 XYLON AVENUE NORTH, NEW HOPE, MN BOND Bond Number: 929564498 Date (Not earlier than Effective Date of Agreement): DECEMBER 17, 2012 Amount: ONE HUNDRED NINETY EIGHT THOUSAND EIGHT HUNDRED FIFTEEN AND NO/100 Modifications to this Bond Form: NONE ($198,815.00) Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth below, do each cause this Performance Bond to be duly executed by an authorized officer, agent, or representative_ CONTRACTOR AS PRINCIPAL LANDWEHR CONSTRUCTION, INC Contractor's Name and Corporate Seal By- 44 4�1 Signature waved L�Aw Av% Print Name Title Attest: Sig re Nva Title (Seal) SURETY WESTERN SURETY COMPANY (Seal) Surety's Name and Corporate Seal By: Signature (Atta h Power of Attorney) LINDA K. FRENCH Print Name ATTORNEY-IN-FACT Title Attest: nkA-- Aignature JOAN REMICK, SURETY ACCOUNT REP. Title Note: Provide execution by additional parties, such as joint venturers, if necessary. EJCDC C-610 Perrormaoce Bond (2007) Prepared by the Engineers Joint Contract Documeots Committee- 00 ommittee00 6113.13 Page 1 or Contractor and Surety, jointly and severally, bind themselves, their heirs; executors, administrators successors; and assigns to Owner for the performance of the Contract. which is incorporated herein by reference_ 1. If Contractor performs the Contract, Surety and Contractor have no obligation under this Bond, except to participate in conferences as provided in Paragraph 2" 1. If there is no Owner Default, Surety's obligation under this Bond shall arise after: 2.1 Owner has notified Contractor and Surety, at the addresses described in Paragraph 9 below, that Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with Contractor and Surety to be held not later than 15 days after receipt of such notice to discuss methods of performing the Contract. If Owner, Contractor, and Surety agree, Contractor shall be allowed a reasonable time to perform the Contract, but such an agreement shall not waive Owner's right, if any, subsequently to declare a Contractor Default; and 2.2 Owner has declared a Contractor Default and formally terminated Contractor's right to complete the Contract. Such Contractor Default shall not be declared earlier than 20 days after Contractor and Surety have received notice as provided in Paragraph 2.1; and 2.3 Owner has agreed to pay the Balance of the Contract Price to: 1. Surety in accordance with the terms of the Contract; or 2. Another contractor selected pursuant to Paragraph 3.3 to perform the Contract_ 3. When Owner has satisfied the conditions of Paragraph 2, Surety shall promptly, and at Surety's expense, take one of the following actions: 3.1 Arrange for Contractor, with consent of Owner, to perform and complete the Contract; or 3.2 Undertake to perform and complete the Contract itself, through its agents or through independent contractors; or 3.3 Obtain bids or negotiated proposals from qualified contractors acceptable to Owner for a contract for performance and completion of the Contract, arrange for a contract to be prepared for execution by Owner and contractor selected with Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Contract, and pay to Owner the amount of damages as described in Paragraph 5 in excess of the Balance of the Contract Price incurred by Owner resulting from Contractor Default; or 3.4 Waive its right to perform and complete, arrange for completion., or obtain a new contractor, and with reasonable promptness under the circumstances: 1. After investigation, determine the amount for which it may be liable to Owner and, as soon as practicable after the amount is determined, tender payment therefor to Owner; or 2. Deny liability in whole or in part and notify Owner citing reasons therefor_ 4. If Surety does not proceed as provided in Paragraph 3 with reasonable promptness, Surety shall be deemed to be in default on this Bond 15 days after receipt of an additional written notice from, Owner to Surety demanding that Surety perform its obligations under this Bond, and Owner shall be entitled to enforce any remedy available to Owner. If Surety proceeds as provided in Paragraph 3.4, and Owner refiises the payment tendered or Surety has denied liability, in whole or in part, without further notice Owner shall be entitled to enforce any remedy available to Owner. 5. After Owner has terminated Contractor's right to complete the Contract, and if Surety elects to act under Paragraph 3.1, 3.2, or 3.3 above, then the responsibilities of Surety to Owner shall not be greater than those of Contractor under the Contract, and the responsibilities of Owner to Surety shall not be greater than those of Owner under the Contract. To the limit of the amount of this Bond, but subject to commitment by Owner of the Balance of the Contract Price to mitigation of costs and damages on the Contract, Surety is obligated without duplication for: EJCDC C-610 Performance Bond (2007) Prepared by the Engineers Joint Contract Documents Committee. 00 6113.13 Page 2 uf3 5.1 The responsibilities of Contractor for correction of detective Work and completion of the Contract; 5.2 Additional legal, design professional, and delay costs resulting from Contractor's Default, and resulting from the actions of or failure to act of Surety under Paragraph 3; and 5.3 Liquidated damages, or if no liquidated damages are specified in the Contract, actual damages caused by delayed performance or non-performance of Contractor. 6. Surety shall not be liable to Owner or others for obligations of Contractor that are unrelated to the Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than Owner or its heirs, executors, administrators, or successors. 7. Surety hereby waives notice of any change, including changes of time, to Contract or to related subcontracts, purchase orders, and other obligations. 8. Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the Work or part of the Work is located, and shall be instituted within two years after Contractor Default or within two years after Contractor ceased working or within two years after Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 9. Notice to Surety, Owner, or Contractor shall be mailed or delivered to the address shown on the signature page. 10. When this Bond has been furnished to comply with a statutory requirement in the location where the Contract was to be performed, any provision in this Bond conflicting with said statutory requirement shall be deemed deleted herefrom and provisions conforming to such statutory requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 11. Definitions. 11.1 Balance of the Contract Price: The total amount payable by owner to Contractor under the Contract after all proper adjustments have been made, including allowance to Contractor of any amounts received or to be received by Owner in settlement of insurance or other Claims for damages to which Contractor is entitled, reduced by all valid and proper payments made to or on behalf of Contractor under the Contract. 11.2 Contract: The agreement between Owner and Contractor identified on the signature page, including all Contract Documents and changes thereto. 11.3 Contractor Default: Failure of Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Contract. 11.4 Owner Default: Failure of Owner, which has neither been remedied nor waived, to pay Contractor as required by the Contract or to perform and complete or otherwise comply with the other terms thereof. FOR INFORMATION ONLY — (Name, Address and Telephone) Surety Agency or Broker: COBB STRECKER DUNPHY & ZIMMERMANN, INC. Owner's Representative (Engineer or other party): STANTEC CONSULTING SERVICES, INC. *150 S. 5TH STREET, SUITE 2800 MINNEAPOLIS, MN 55402 (612-349-2400) EJCDC C-610 Performance Bond (2007) Prepared by the Engineers Joint Contract Documents Committee. 00 6113.13 Page 3 of3 PAYMENT BOND Any singular reference to Contractor, Surety, Owner, or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SLTRETY (Name, and Address of Principal Place of LANDWEHR CONSTRUCTION, INC. Business): P.O. BOX 1086 WESTERN SURETY COMPANY ST. CLOUD, MN 56302 333 S. WABASH AVENUE OWNER (Name and Address): CHICAGO, IL 60604 CITY OF NEW HOPE 4401 XYLON AVENUE NORTH, CITY HALL, NEW HOPE, MN 55428 CONTRACT Effective Date of Agreement: DEGEMBEK i 1, 2012 Amount: ONE HUNDRED NINETY EIGHT THOUSAND EIGHT HUNDRED FIFTEEN AND NO/100 Description (Name and Location): DEMOLITION OF THE EXISTING ($198,815.00) BUILDINGS AT 4200 AND 4300 XYLON AVENUE NORTH, NEW HOPE, MN BOND Bond Number: 929564498 Date (Not earlier than Effective Date of Agreement): DECEMBER 17, 2012 Amount: ONE HUNDRED NINETY EIGHT THOUSAND EIGHT HUNDRED FIFTEEN AND N0/100 Modifications to this Bond Form: NONE ($198,815.00) Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth below, do each cause this Payment Bond to be duly executed by an authorized officer, agent, or representative. CONTRACTOR AS PRINCIPAL SURETY LANDWEHR CONSTRUCTION, INC. (Seal) Contractor's Name and CSeal By:4 o orate By Signature M%,L)Potl LbVvmGV1 Print Name yft-�'I ke Title Attest: sgn e b . Stue It Title WESTERN SURETY COMPANY Surety's Name and Corporate Seal 9 Signature (Atta h Power of Attorney) LINDA K. FRENCH Print Name ATTORNEY-IN-FACT Title j�, �� p/�,,' s,� Attest: U � 2t ` � �L-�'r - Si ature (Seal) JOAN REMICK, SURETY ACCOUNT REP. Title Note: Provide execution by additional parties, such as, joint venturers, if necessary. EJCDC C-615 Payment Bond (2007) Prepared by the Engineers Joint Contract Documents Committee. 00 6113.16 Wage 1 of 3 1. Contractor and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors, and assigns to Owner to pay for labor, materials, and equipment furnished by Claimants for use in the performance of the Contract, which is incorporated herein by reference. 2. With respect to Owner, this obligation shall be null and void if Contractor: 2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and 2.2 Defends, indemnifies, and holds harmless Owner from all claims, demands, liens, or suits alleging non-payment by Contractor by any person or entity who furnished labor, materials, or equipment for use in the performance of the Contract, provided Owner has promptly notified Contractor and Surety (at the addresses described in Paragraph 12) of any claims, demands, liens, or suits and tendered defense of such claims, demands, liens, or suits to Contractor and Surety, and provided there is no Owner Default. 3. With respect to Claimants, this obligation shall be null and void if Contractor promptly makes payment, directly or indirectly, for all sums due. 4. Surety shall have no obligation to Claimants under this Bond until: 4.1 CIaimants who are employed by or have a direct contract with Contractor have given notice to Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with Contractor: 1. Have furnished written notice to Contractor and sent a copy, or notice thereof, to Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials or equipment were furnished or supplied, or for whom the labor was done or performed; and 2. Have either received a rejection in whole or in part from Contractor, or not received within 30 days of furnishing the above notice any communication from Contractor by which Contractor had indicated the claim will be paid directly or indirectly; and 3. Not having been paid within the above 30 days, have sent a written notice to Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to Contractor., . 5. if a notice by a Claimant required by Paragraph 4 is provided by Owner to Contractor or to Surety, that is sufficient compliance. 6. When a Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at Surety's expense take the following actions: 6.1 Send an answer to that Claimant, with a copy to Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amourits'that are disputed. 6.2 Pay or arrange for payment of any undisputed amounts. 7. Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by Surety. 8. Amounts owed by Owner to Contractor under the Contract shall be used for the performance of the Contract and to satisfy claims, if any, under any performance bond. By Contractor furnishing and Owner accepting this Bond, they agree that all funds earned by Contractor in the performance of the Contract are dedicated to satisfy obligations of Contractor and Surety under this Bond, subject to Owner's priority to use the funds for the completion of the Work. EJCDC C-615 Payment Bond (2007) Prepared by the Engineers Joint Contract Documents Committee. 00 6113.16 Paae 2 of 3 9. Surety shall not be liable to Owner, Claimants, or others for obligations of Contractor that are unrelated to the Contract. Owner shall- not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10. Surety hereby waives notice of any change, including changes of time, to the Contract or to related subcontracts, purchase orders, and other obligations. 11 _ No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the Work or part of the Work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Paragraph 4.1 or Paragraph 4.2.3, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Contract, whichever of (1) or (2) first occurs. If the provisions of this paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 12. Notice to Surety, Owner, or Contractor shall be mailed or delivered to the addresses shown on the signature page. Actual receipt of notice by Surety, Owner, or Contractor, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page. 13. When this Bond has been furnished to comply with a statutory requirement in the location where the Contract was to be performed, any provision in this Bond conflicting with said statutory requirement shall be deemed deleted herefrom and provisions conforming to such statutory requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory Bond and not as a common law bond. 14. Upon request of any person or entity appearing to be a potential beneficiary of this Bond, Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. 15. Definitions 15.1 Claimant: An individual or entity having a direct contract with Contractor, or with a first-tier subcontractor of Contractor, to furnish labor, materials, or equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service, or rental equipment used in the Contract, architectural and engineering services required for performance of the Work of Contractor and Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials, or equipment were furnished. 15.2 Contract: The agreement between Owner and Contractor identified on the signature page, including all Contract Documents and changes thereto. 15.3 Owner Default: Failure of Owner, which has neither been remedied nor waived, to pay Contractor as required by the Contract, or to perform and complete or otherwise comply with the other terms thereof FOR INFORMATION ONLY — ( Name, Address, and Telephone) Surety Agency or Broker: COBB STRECKER DUNPHY & ZIMMERMANN, INC. Owner's Representative (Engineer orother): STANTEC CONSULTING SERVICES, INC. *150 S. 5TH STREET, SUITE 2800 MINNEAPOLIS, MN 55402 (612-349-2400) EJ CDC C-615 Payment Bond (2007) Prepared by the Engineers Joint Contract Documents Committee. 006113.16Paae3of3 ACKNOWLEDGMENT OF CORPORATION State of MINNESOTA ) On this 17th day of December 2012 County of '5 6, ) before me appeared wt.WZ.j U Ymay% to me personally known, who, being by me duly sworn, did say that he is the frz';1ek'4 of LANDWEHR CONSTRUCTION, INC. a corporation, that the seal affixed to the foregoing instrument Is the corporate seal of said corporation, (2f no seal, so state, and strike out above as to corporate seal) and that said instrument was executed in behalf of said corporation by authority of its Board of Directors; and that said hoAy,d L; acknowledged said instrument to be the free act and deed of said corporation. SUE WATIMS WTMY FJ8W - WNMM= �ca„,e�eaw.at,a�a State of MINNESOTA 4 _ AVl'>--"' Notary Public My commission expires ACKNOWLEDGMENT OF CORPORATE SURETY County, ) ss. On this 17" day of December 2012 County of HENNEPIN ) before me appeared Linda K. French to me personally known, who, being by me duly sworn, did say that he is the Attorney -in -Fact of_ WESTERN SURETY COMPANY , a corporation, that the seal affixed to the foregoing instrument is the corporate seal of said corporation and that said instrument was executed in behalf of said corporation by authority of its Board of Directors; and that said Linda K. French to be the free act and deed of said JOAN KREMICK NOTARY PUBLIC , MINNESOTA MYCQMMISSIONE IRE5011311 /1 7 acknowledged said instrument corporation. HV1-11- 11011) Notary Public County, My commission expires Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -Illi -FACT Know All Metz By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and sea] herein affixed hereby make, constitute and appoint Bruce N Telander, Donald R Olson, R Scott Egginton, John E Tauer, Linda K French, Craig Remick, Jerome T Ouimet, Roger W Frank, Nicole Nelson, Rachel Thomas, Joshua R Loftis, Brian J Oestreich, Individually of Minneapolis, MN, its true and lawful Attorney(s)-in-Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By -Law printed on the reverse hereof, duly adopted, as indicated, by the shareholders of the corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 28th day of August, 2012. n WESTERN SURETY COMPANY aul T. Bruflat, Vice President State of South Dakota ss County of Minnehaha On this 28th day of August, 2012, before me personally came Paul T. Bruflat, to me known, who, being by me duly sworn, did depose and say; that he resides in the City of Sioux Falls, State of South Dakota; that he is the Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires I. + J. MOF1R Juno 23, 2015NOTARY PUHLIc SOUTH DAKOTA + + X V - CERTIFICATE J. Mohr, Notary Public I, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force, and further certify that the By -Law of the corporation printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation this 17TH day of DECEMBER 2012 WESTERN SURETY COMPANY F�OppCAq��� B AV% CY 97.1, ��'►+i'oaK� Form F4290-7-2012 L. Nelson, Assistant Secretary Authorizing By -Law ADOPTED BY THE SHAREHOLDERS OF WESTERN SURETY COMPANY This Power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by the shareholders of the Company. Section 7. All bonds, policies, undertakings, Powers of Attorney, or other obligations of the corporation shall be executed in the corporate name of the Company by the President, Secretary, and Assistant Secretary, Treasurer, or any Vice President, or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer may appoint Attorneys in Fact or agents who shall have authority to issue bonds, policies, or undertakings in the name of the Company. The corporate .seal is not necessary for the validity of any bonds, policies, undertakings, Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile. This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the controlling Laws and Regulations. STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT Prepared by ENGINEERS JOINT CONTRACT DOCUVMNTS COMMITTEE and Issued and Published Jointly by ---------- ACEC i�CEAr��rlS�ils� IN�Fauta�� �oclety of efCwiW7�8n�nt afi ss% pm .m Pro>f�ionsl �in�rsrr► Prwa�e F`raa AMERICAN COUNCIL OF ENGINEERING COMPANIES ASSOCIATED GENERAL CONTRACTORS OF AMERICA AMERICAN SOCIETY OF CIVIL ENGINEERS PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A Practice Division of the NATIONAL SOCIETY OF PROFESSIONAL. ENGINEERS Endorsed by CONSTRUCTION SPECIFICATIONS INSTITUTE EJCDC C-700 Standard General Conditions of the Construction Contract Copyright Q 2007 National Society of Professional Engineers for EJCDC. All rights reserved. 00 72 05 These General Conditions have been prepared for use with the Suggested Forms of Agreement Between Owner and Contractor (EJCDC C-520 or C-525, 2007 Editions). Their provisions are interrelated and a change in one may necessitate a change in the other. Comments concerning their usage are contained in the Narrative Guide to the EJCDC Construction Documents (EJCDC C-001, 2007 Edition). For guidance in the preparation of Supplementary Conditions, see Guide to the Preparation of Supplementary Conditions (EJCDC C-800, 2007 Edition). Copyright © 2007 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 (703)684-2882 www.nspe.org American Council of Engineering Companies 1015 15th Street N.W., Washington, DC 20005 (202)347-7474 www.acec.org American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 (800) 548-2723 www.asce.org Associated General Contractors of America 2300 Wilson Boulevard, Suite 400, Arlington, VA 22201-3308 (703) 548-3118 www.agc.orZ The copyright for this EJCDC document is owned jointly by the four EJCDC sponsoring organizations and held in trust for their benefit by NSPE. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright C 2007 National Society of Professional Engineers for EJCDC. All rights reserved. 00 72 05 STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT TABLE OF CONTENTS Page Article 1— Definitions and Terminology................................................................................................. 1 1.01 Defined Terms.................................................................................................................... 1 1.02 Terminology........................................................................................................................5 Article 2 — Preliminary Matters............................................................................................................... 6 2.01 Delivery of Bonds and Evidence of Insurance...................................................................... 6 2.02 Copies of Documents.......................................................................................................... 6 2.03 Commencement of Contract Times; Notice to Proceed........................................................ 6 2.04 Starting the Work................................................................................................................ 7 2.05 Before Starting Construction............................................................................................... 7 2.06 Preconstruction Conference; Designation of Authorized Representatives ............................. 7 2.07 Initial Acceptance of Schedules........................................................................................... 7 Article 3 — Contract Documents: Intent, Amending, Reuse.................................................................... 8 3.01 Intent.................................................................................................................................. 8 3.02 Reference Standards............................................................................................................ 8 3.03 Reporting and Resolving Discrepancies............................................................................... 9 3.04 Amending and Supplementing Contract Documents............................................................ 9 3.05 Reuse of Documents......................................................................................................... 10 3.06 Electronic Data................................................................................................................. 10 Article 4 — Availability of Lands; Subsurface and Physical Conditions; Hazardous Environmental Conditions; Reference Points................................................................................................. 11 4.01 Availability of Lands......................................................................................................... 11 4.02 Subsurface and Physical Conditions................................................................................... 11 4.03 Differing Subsurface or Physical Conditions...................................................................... 12 4.04 Underground Facilities...................................................................................................... 13 4.05 Reference Points............................................................................................................... 14 4.06 Hazardous Environmental Condition at Site...................................................................... 14 Article5 — Bonds and Insurance........................................................................................................... 16 5.01 Performance, Payment, and Other Bonds........................................................................... 16 5.02 Licensed Sureties and Insurers........................................................................................... 16 5.03 Certificates of Insurance.................................................................................................... 17 5.04 Contractor's Insurance...................................................................................................... 17 5.05 Owner's Liability Insurance............................................................................................... 19 5.06 Property Insurance............................................................................................................ 19 5.07 Waiver of Rights............................................................................................................... 20 5.08 Receipt and Application of Insurance Proceeds.................................................................. 21 EJCDC C-700 Standard Genera! Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 00 72 05 5.09 Acceptance of Bonds and Insurance; Option to Replace .................................................... 21 5.10 Partial Utilization, Acknowledgment of Property Insurer ................................................... 22 Article 6 - Contractor's Responsibilities............................................................................................... 22 6.01 Supervision and Superintendence...................................................................................... 22 6.02 Labor; Working Hours...................................................................................................... 22 6.03 Services, Materials, and Equipment................................................................................... 23 6.04 Progress Schedule............................................................................................................. 23 6.05 Substitutes and "Or-Equals".............................................................................................. 23 6.06 Concerning Subcontractors, Suppliers, and Others............................................................ 26 6.07 Patent Fees and Royalties.................................................................................................. 27 6.08 Permits..............................................................................................................................28 6.09 Laws and Regulations....................................................................................................... 28 6.10 Taxes................................................................................................................................ 28 6.11 Use of Site and Other Areas .......................................................................................... 28 6.12 Record Documents............................................................................................................ 29 6.13 Safety and Protection........................................................................................................ 29 6.14 Safety Representative........................................................................................................ 30 6.15 Hazard Communication Programs..................................................................................... 31 6.16 Emergencies......................................................................................................................31 6.17 Shop Drawings and Samples........................................................................................ 31 6.18 Continuing the Work......................................................................................................... 33 6.19 Contractor's General Warranty and Guarantee.................................................................. 33 6.20 Indemnification................................................................................................................. 34 6.21 Delegation of Professional Design Services....................................................................... 34 Article7 - Other Work at the Site........................................................................................................ 35 7.01 Related Work at Site......................................................................................................... 35 7.02 Coordination ..................................................................................................................... 36 7.03 Legal Relationships........................................................................................................... 36 Article 8 - Owner's Responsibilities..................................................................................................... 36 8.01 Communications to Contractor.......................................................................................... 36 8.02 Replacement of Engineer................................................................................................... 37 8.03 Furnish Data..................................................................................................................... 37 8.04 Pay When Due.................................................................................................................. 37 8.05 Lands and Easements; Reports and Tests........................................................................... 37 8.06 Insurance.......................................................................................................................... 37 8.07 Change Orders.................................................................................................................. 37 8.08 Inspections, Tests, and Approvals..................................................................................... 37 8.09 Limitations on Owner's Responsibilities............................................................................ 37 8.10 Undisclosed Hazardous Environmental Condition.............................................................. 38 8.11 Evidence of Financial Arrangements.................................................................................. 38 8.12 Compliance with Safety Program....................................................................................... 38 Article 9 - Engineer's Status During Construction................................................................................ 38 9.01 Owner's Representative.................................................................................................... 38 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Profenional Engineers for EJCDC. All rights reserved. Page ii _,. 00 72;, 9.02 Visits to Site..................................................................................................................... 38 9.03 Project Representative....................................................................................................... 39 9.04 Authorized Variations in Work.......................................................................................... 39 9.05 Rejecting Defective Work................................................................................................. 39 9.06 Shop Drawings, Change Orders and Payments ................................................. .... 39 9.07 Determinations for Unit Price Work.................................................................................. 40 9.08 Decisions on Requirements of Contract Documents and Acceptability of Work ................. 40 9.09 Limitations on Engineer's Authority and Responsibilities................................................... 40 9.10 Compliance with Safety Program....................................................................................... 41 Article 10 - Changes in the Work; Claims............................................................................................. 41 10.01 Authorized Changes in the Work....................................................................................... 41 10.02 Unauthorized Changes in the Work................................................................................... 41 10.03 Execution of Change Orders.............................................................................................. 41 10.04 Notification to Surety........................................................................................................ 42 10.05 Claims............................................................................................................................... 42 Article 11- Cost of the Work; Allowances; Unit Price Work................................................................ 43 11.01 Cost of the Work.............................................................................................................. 43 11.02 Allowances....................................................................................................................... 46 11.03 Unit Price Work................................................................................................................ 46 Article 12 - Change of Contract Price; Change of Contract Times ........................................................ 47 12.01 Change of Contract Price.................................................................................................. 47 12.02 Change of Contract Times................................................................................................. 48 12.03 Delays...............................................................................................................................48 Article 13 - Tests and Inspections; Correction, Removal or Acceptance of Defective Work .................. 49 13.01 Notice of Defects.............................................................................................................. 49 13.02 Access to Work................................................................................................................. 49 13.03 Tests and Inspections........................................................................................................ 49 13.04 Uncovering Work.............................................................................................................. 50 13.05 Owner May Stop the Work............................................................................................... 51 13.06 Correction or Removal of Defective Work........................................................................ 51 13.07 Correction Period.............................................................................................................. 51 13.08 Acceptance of Defective Work.......................................................................................... 52 13.09 Owner May Correct Defective Work................................................................................. 52 Article 14 - Payments to Contractor and Completion........................................................................... 53 14.01 Schedule of Values............................................................................................................ 53 14.02 Progress Payments ............................................................................................................ 53 14.03 Contractor's Warranty of Title.......................................................................................... 56 14.04 Substantial Completion...................................................................................................... 56 14.05 Partial Utilization.............................................................................................................. 57 14.06 Final Inspection................................................................................................................. 58 14.07 Final Payment.................................................................................................................... 58 14.08 Final Completion Delayed................................................................................................. 59 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Pace iii 00 72 05 14.09 Waiver of Claims............................................................................................................... 59 Article 15 — Suspension of Work and Termination................................................................................ 60 15.01 Owner May Suspend Work............................................................................................... 60 15.02 Owner May Terminate for Cause....................................................................................... 60 15.03 Owner May Terminate For Convenience........................................................................... 61 15.04 Contractor May Stop Work or Terminate.......................................................................... 61 Article 16 — Dispute Resolution............................................................................................................ 62 16.01 Methods and Procedures................................................................................................... 62 Article17 — Miscellaneous.................................................................................................................... 62 17.01 Giving Notice.................................................................................................................... 62 17.02 Computation of Times....................................................................................................... 63 17.03 Cumulative Remedies........................................................................................................ 63 17.04 Survival of Obligations...................................................................................................... 63 17.05 Controlling Law................................................................................................................ 63 17.06 Headings........................................................................................................................... 63 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright C 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page iv 00 72 05 ARTICLE 1— DEFLNITIONS AND TEPMLNOLOGY 1.01 Defined Terms A. Wherever used in the Bidding Requirements or Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof In addition to terms specifically defined, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms. 1. Addenda—Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Requirements or the proposed Contract Documents. 2. Agreement --The written instrument which is evidence of the agreement between Owner and Contractor covering the Work. 3. Application for Payment—The form acceptable to Engineer which is to be used by Contractor during the course of the Work in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 4. Asbestos—Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 5. Bid—The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 6. Bidder—The individual or entity who submits a Bid directly to Owner. 7. Bidding Documents—The Bidding Requirements and the proposed Contract Documents (including all Addenda). 8. Bidding Requirements—The advertisement or invitation to bid, Instructions to Bidders, Bid security of acceptable form, if any, and the Bid Form with any supplements. 9. Change Order—A document recommended by Engineer which is signed by Contractor and Owner and authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Agreement. 10. Claim—A demand or assertion by Owner or Contractor seeking an adjustment of Contract Price or Contract Times, or both, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Claim. 11. Contract—The entire and integrated written agreement between the Owner and Contractor concerning the Work. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral. EJCnC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJC➢C. All rights reserved. Page 1 of 62 00 72 05 12. Contract Documents Those items so designated in the Agreement. Only printed or hard copies of the items listed in the Agreement are Contract Documents. Approved Shop Drawings, other Contractor submittals, and the reports and drawings of subsurface and physical conditions are not Contract Documents. 13. Contract Price—The moneys payable by Owner to Contractor for completion of the Work in accordance with the Contract Documents as stated in the Agreement (subject to the provisions of Paragraph 11.03 in the case of Unit Price Work). 14. Contract Times—The number of days or the dates stated in the Agreement to: (i) achieve Milestones, if any; (ii) achieve Substantial Completion; and (iii) complete the Work so that it is ready for final payment as evidenced by Engineer's written recommendation of final payment. 15. Contractor—The individual or entity with whom Owner has entered into the Agreement. 16. Cost of the Work—See Paragraph 11.01 for definition. 17. Drawings That part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings and other Contractor submittals are not Drawings as so defined. 18. Effective Date of the Agreement—The date indicated in the Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 19. Engineer—The individual or entity named as such in the Agreement. 20. Field Order—A written order issued by Engineer which requires minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 21. General Requirements—Sections of Division 1 of the Specifications. 22. Hazardous Environmental Condition—The presence at the Site of Asbestos, PCBs, Petroleum, Hazardous Waste, or Radioactive Material in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto. 23. Hazardous Waste—The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 24. Laws and Regulations; Laws or Regulations—Any and all applicable laws, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 0 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 2 of 62 _ 00 72 05 25. Liens—Charges, security interests, or encumbrances upon Project funds, real property, or personal property. 26. Milestone—A principal event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work. 27. Notice of Award—The written notice by Owner to the Successful Bidder stating that upon timely compliance by the Successful Bidder with the conditions precedent listed therein, Owner will sign and deliver the Agreement. 28. Notice to Proceed --A written notice given by Owner to Contractor fixing the date on which the Contract Times will commence to run and on which Contractor shall start to perform the Work under the Contract Documents. 29. Owner—The individual or entity with whom Contractor has entered into the Agreement and for whom the Work is to be performed. 30. PCBs—Polychlorinated biphenyls. 31. Petroleum --Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non -Hazardous Waste and crude oils. 32. Progress Schedule—A schedule, prepared and maintained by Contractor, describing the sequence and duration of the activities comprising the Contractor's plan to accomplish the Work within the Contract Times. 33. Project—The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part. 34. Project Manual—The bound documentary information prepared for bidding and constructing the Work. A listing of the contents of the Project Manual, which may be bound in one or more volumes, is contained in the table(s) of contents. 35. Radioactive Material—Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 36. Resident Project Representative—The authorized representative of Engineer who may be assigned to the Site or any part thereof. 37. Samples—Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 38. Schedule of Submittals—A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to support scheduled performance of related construction activities. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Pace 3 of 62 00 72 05 39. Schedule of Values—A schedule, prepared and maintained by Contractor, allocating portions of the Contract Price to various portions of the Work and used as the basis for reviewing Contractor's Applications for Payment. 40. Shop Drawings All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. 41. Site—Lands or areas indicated in the Contract Documents as being furnished by Owner upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands furnished by Owner which are designated for the use of Contractor. 42. Specifications—That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto. 43. Subcontractor—An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the Site. 44. Substantial Completion—The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 45. Successful Bidder—The Bidder submitting a responsive Bid to whom Owner makes an award. 46. Supplementary Conditions—That part of the Contract Documents which amends or supplements these General Conditions. 47. Supplier—A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or Subcontractor. 48. Underground Facilities All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems. 49. Unit Price Work—Work to be paid for on the basis of unit prices. 50. Work—The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Paee 4 of 62 00 72 05 construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents. 51. Work Change Directive—A written statement to Contractor issued on or after the Effective Date of the Agreement and signed by Owner and recommended by Engineer ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change ordered or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 1.02 Terminology A. The words and terms discussed in Paragraph 1.02.B through F are not defined but, when used in the Bidding Requirements or Contract Documents, have the indicated meaning. B. Intent of Certain Terms or Adjectives: 1. The Contract Documents include the terms "as allowed," "as approved," "as ordered," "as directed" or terms of like effect or import to authorize an exercise of professional judgment by Engineer. In addition, the adjectives "reasonable," "suitable," "acceptable," "proper," "satisfactory," or adjectives of hike effect or import are used to describe an action or determination of Engineer as to the Work. It is intended that such exercise of professional judgment, action, or determination will be solely to evaluate, in general, the Work for compliance with the information in the Contract Documents and with the design concept of the Project as a functioning whole as shown or indicated in the Contract Documents (unless there is a specific statement indicating otherwise). The use of any such term or adjective is not intended to and shall not be effective to assign to Engineer any duty or authority to supervise or direct the performance of the Work, or any duty or authority to undertake responsibility contrary to the provisions of Paragraph 9.09 or any other provision of the Contract Documents. C. Day: 1. The word "day" means a calendar day of 24 hours measured from midnight to the next midnight. D. Defective: The word "defective," when modifying the word "Work," refers to Work that is unsatisfactory, f lulty, or deficient in that it: a. does not conform to the Contract Documents; or b. does not meet the requirements of any applicable inspection, reference standard, test, or approval referred to in the Contract Documents; or EJCDC C-700 Standard General Conditions of the Construction Contract Copyright D 2007 National Society of Professional Engineers for F TCDC. All rights reserved. Page 5 of 62 00 72 05 c. has been damaged prior to Engineer's recommendation of final payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion in accordance with Paragraph 14.04 or 14.05). E. Furnish, Install, Perform, Provide: 1. The word "furnish," when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition. 2. The word "install," when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use. 3. The words "perform" or `provide," when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use. 4. When "furnish," "install," "perform," or "provide" is not used in connection with services, materials, or equipment in a context clearly requiring an obligation of Contractor, "provide" is implied. F. Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. ARTICLE 2 — PRELEMNARY MATTERS 2.01 Delivery of Bonds and Evidence of Insurance A. When Contractor delivers the executed counterparts of the Agreement to Owner, Contractor shall also deliver to Owner such bonds as Contractor may be required to furnish. B. Evidence of Insurance: Before any Work at the Site is started, Contractor and Owner shall each deliver to the other, with copies to each additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance which either of them or any additional insured may reasonably request) which Contractor and Owner respectively are required to purchase and maintain in accordance with Article 5. 2.02 Copies of Documents A. Owner shall furnish to Contractor up to ten printed or hard copies of the Drawings and Project Manual. Additional copies will be furnished upon request at the cost of reproduction. 2.03 Commencement of Contract Times; Notice to Proceed A. The Contract Times will commence to run on the thirtieth day after the Effective Date of the Agreement or, if a Notice to Proceed is given, on the day indicated in the Notice to Proceed. A Notice to Proceed may be given at any time within 30 days after the Effective Date of the EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 0 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 6 of 62 00 72 05 Agreement. In no event will the Contract Times commence to run later than the sixtieth day after the day of Bid opening or the thirtieth day after the Effective Date of the Agreement, whichever date is earlier. 2.04 Starting the Work A. Contractor shall start to perform the Work on the date when the Contract Times commence to run. No Work shall be done at the Site prior to the date on which the Contract Times commence to run. 2.05 Before Starting Construction A. Preliminary Schedules: Within 10 days after the Effective Date of the Agreement (unless otherwise specified in the General Requirements), Contractor shall submit to Engineer for timely review: 1. a preliminary Progress Schedule indicating the times (numbers of days or dates) for starting and completing the various stages of the Work, including any Milestones specified in the Contract Documents; 2. a preliminary Schedule of Submittals; and 3. a preliminary Schedule of Values for all of the Work which includes quantities and prices of items which when added together equal the Contract Price and subdivides the Work into component parts in sufficient detail to serve as the basis for progress payments during performance of the Work. Such prices will include an appropriate amount of overhead and profit applicable to each item of Work. 2.06 Preconstruction Conference; Designation of Authorized Representatives A. Before any Work at the Site is started, a conference attended by Owner, Contractor, Engineer, and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedules referred to in Paragraph 2.05.A, procedures for handling Shop Drawings and other submittals, processing Applications for Payment, and maintaining required records. B. At this conference Owner and Contractor each shall designate, in writing, a specific individual to act as its authorized representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party. 2.07 Initial Acceptance of Schedules A. At least 10 days before submission of the first Application for Payment a conference attended by Contractor, Engineer, and others as appropriate will be held to review for acceptability to Engineer as provided below the schedules submitted in accordance with Paragraph 2.05.A. Contractor shall have an additional 10 days to make corrections and adjustments and to EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 7 of 62 complete and resubmit the schedules. No progress payment shall be made to Contractor until acceptable schedules are submitted to Engineer. 1. The Progress Schedule will be acceptable to Engineer if it provides an orderly progression of the Work to completion within the Contract Times. Such acceptance will not impose on Engineer responsibility for the Progress Schedule, for sequencing, scheduling, or progress of the Work, nor interfere with or relieve Contractor from Contractor's full responsibility therefor. 2. Contractor's Schedule of Submittals will be acceptable to Engineer if it provides a workable arrangement for reviewing and processing the required submittals. 3. Contractor's Schedule of Values will be acceptable to Engineer as to form and substance if it provides a reasonable allocation of the Contract Price to component parts of the Work. ARTICLE 3 — CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.01 Intent A. The Contract Documents are complementary; what is required by one is as binding as if required by all. B. It is the intent of the Contract Documents to describe a functionally complete project (or part thereof) to be constructed in accordance with the Contract Documents. Any labor, documentation, services, materials, or equipment that reasonably may be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the indicated result will be provided whether or not specifically called for, at no additional cost to Owner. C. Clarifications and interpretations of the Contract Documents shall be issued by Engineer as provided in Article 9. 3.02 Reference Standards A. Standards, Specifications, Codes, Laws, and Regulations 1. Reference to standards, specifications, manuals, or codes of any technical society, organization, or association, or to Laws or Regulations, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Laws or Regulations in effect at the time of opening of Bids (or on the Effective Date of the Agreement if there were no Bids), except as may be otherwise specifically stated in the Contract Documents. 2. No provision of any such standard, specification, manual, or code, or any instruction of a Supplier, shall be effective to change the duties or responsibilities of Owner, Contractor, or Engineer, or any of their subcontractors, consultants, agents, or employees, from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to Owner, Engineer, or any of their officers, directors, members, partners, EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 0 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Pace 8 of 62 00 72 05 employees, agents, consultants, or subcontractors, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents. 3.03 Reporting and Resolving Discrepancies A. Reporting Discrepancies: 1. Contractor's Review of Contract Documents Before Starting Work: Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements. Contractor shall promptly report in writing to Engineer any conflict, error, ambiguity, or discrepancy which Contractor discovers, or has actual knowledge of� and shall obtain a written interpretation or clarification from Engineer before proceeding with any Work affected thereby. 2. Contractor's Review of Contract Documents During Performance of Work: If, during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents, or between the Contract Documents and (a) any applicable Law or Regulation, (b) any standard, specification, manual, or code, or (c) any instruction of any Supplier, then Contractor shall promptly report it to Engineer in writing. Contractor shall not proceed with the Work affected thereby (except in an emergency as required by Paragraph 6.16.A) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in Paragraph 3.04. 3. Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor had actual knowledge thereof. B. Resolving Discrepancies: 1. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity, or discrepancy between the provisions of the Contract Documents and: a. the provisions of any standard, specification, manual, or code, or the instruction of any Supplier (whether or not specifically incorporated by reference in the Contract Documents); or b. the provisions of any Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation). 3.04 Amending and Supplementing Contract Documents A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof by either a Change Order or a Work Change Directive. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 9 of 62 B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized, by one or more of the following ways: 1. A Field Order; 2. Engineer's approval of a Shop Drawing or Sample (subject to the provisions of Paragraph 6.17.D.3); or 3. Engineer's written interpretation or clarification. 3.05 Reuse of Documents A. Contractor and any Subcontractor or Supplier shall not: 1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer or its consultants, including electronic media editions; or 2. reuse any such Drawings, Specifications, other documents, or copies thereof on extensions of the Project or any other project without written consent of Owner and Engineer and specific written verification or adaptation by Engineer. B. The prohibitions of this Paragraph 3.05 will survive final payment, or termination of the Contract. Nothing herein shall preclude Contractor from retaining copies of the Contract Documents for record purposes. 3.06 Electronic Data A. Unless otherwise stated in the Supplementary Conditions, the data furnished by Owner or Engineer to Contractor, or by Contractor to Owner or Engineer, that may be relied upon are limited to the printed copies (also known as hard copies). Files in electronic media format of text, data, graphics, or other types are furnished only for the convenience of the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. B. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any errors detected within the 60 -day acceptance period will be corrected by the transferring party. C. When transferring documents in electronic media format, the transferring party makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by the data's creator. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society orProfessional Engineers for EJCDC. All rights reserved. Pace 10 of 62 00 72 05 ARTICLE 4 — AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS 4.01 Availability of Lands A. Owner shall furnish the Site. Owner shall notify Contractor of any encumbrances or restrictions not of general application but specifically related to use of the Site with which Contractor must comply in performing the Work. Owner will obtain in a timely manner and pay for easements for permanent structures or permanent changes in existing facilities. If Contractor and Owner are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times, or both, as a result of any delay in Owner's furnishing the Site or a part thereof, Contractor may make a Claim therefor as provided in Paragraph 10.05. B. Upon reasonable written request, Owner shall furnish Contractor with a current statement of record legal title and legal description of the lands upon which the Work is to be performed and Owner's interest therein as necessary for giving notice of or filing a mechanic's or construction lien against such lands in accordance with applicable Laws and Regulations. C. Contractor shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment. 4.02 Subsurface and Physical Conditions A. Reports and Drawings: The Supplementary Conditions identify: those reports known to Owner of explorations and tests of subsurface conditions at or contiguous to the Site; and 2. those drawings known to Owner of physical conditions relating to existing surface or subsurface structures at the Site (except Underground Facilities). B. Limited Reliance by Contractor on Technical Data Authorized.• Contractor may rely upon the accuracy of the "technical data" contained in such reports and drawings, but such reports and drawings are not Contract Documents. Such "technical data" is identified in the Supplementary Conditions. Except for such reliance on such `•`technical data," Contractor may not rely upon or make any claim against Owner or Engineer, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors with respect to: 1. the completeness of such reports and drawings for Contractor's purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions, and information contained in such reports or shown or indicated in such drawings; or 3. any Contractor interpretation of or conclusion drawn from any "technical data" or any such other data, interpretations, opinions, or information. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers For EJCDC. All rights reserved. Page 11 of 62 00 72 05 4.03 Differing Subsurface or Physical Conditions A. Notice: If Contractor believes that any subsurface or physical condition that is uncovered or revealed either: 1. is of such a nature as to establish that any "technical data" on which Contractor is entitled to rely as provided in Paragraph 4.02 is materially inaccurate; or 2. is of such a nature as to require a change in the Contract Documents; or 3. differs materially from that shown or indicated in the Contract Documents; or 4. is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents; then Contractor shall, promptly after becoming aware thereof and before further disturbing the subsurface or physical conditions or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.16.A), notify Owner and Engineer in writing about such condition. Contractor shall not further disturb such condition or perform any Work in connection therewith (except as aforesaid) until receipt of written order to do so. B. Engineer's Review: After receipt of written notice as required by Paragraph 4.03.A, Engineer will promptly review the pertinent condition, determine the necessity of Owner's obtaining additional exploration or tests with respect thereto, and advise Owner in writing (with a copy to Contractor) of Engineer's findings and conclusions. C. Possible.Price and Times Adjustments: 1. The Contract Price or the Contract Times, or both, will be equitably adjusted to the extent that the existence of such differing subsurface or physical condition causes an increase or decrease in Contractor's cost of, or time required for, performance of the Work; subject, however, to the following: a. such condition must meet any one or more of the categories described in Paragraph 4.03.A; and b. with respect to Work that is paid for on a unit price basis, any adjustment in Contract Price will be subject to the provisions of Paragraphs 9.07 and 11.03. 2. Contractor shall not be entitled to any adjustment in the Contract Price or Contract Times if a. Contractor knew of the existence of such conditions at the time Contractor made a final commitment to Owner with respect to Contract Price and Contract Times by the submission of a Bid or becoming bound under a negotiated contract; or b. the existence of such condition could reasonably have been discovered or revealed as a result of any examination, investigation, exploration, test, or study of the Site and EJCDC C-700 Standard General Conditions of the Construction Contract Copyright C 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 12 of 62 00 72 05 contiguous areas required by the Bidding Requirements or Contract Documents to be conducted by or for Contractor prior to Contractor's making such final commitment; or c. Contractor failed to give the written notice as required by Paragraph 4.03.A. 3. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times, or both, a Claim may be made therefor as provided in Paragraph 10.05. However, neither Owner or Engineer, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors shall be liable to Contractor for any claims, costs, losses, or damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Contractor on or in connection with any other project or anticipated project. 4.04 Underground Fatalities A. Shown or Indicated.• The information and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or- contiguous to the Site is based on information and data furnished to Owner or Engineer by the owners of such Underground Facilities, including Owner, or by others. Unless it is otherwise expressly provided in the Supplementary Conditions: 1. Owner and Engineer shall not be responsible for the accuracy or completeness of any such information or data provided by others; and 2. the cost of all of the following will be included in the Contract Price, and Contractor shall have full responsibility for: a. reviewing and checking all such information and data; b. locating all Underground Facilities shown or indicated in the Contract Documents; c. coordination of the Work with the owners of such Underground Facilities, including Owner, during construction; and d. the safety and protection of all such Underground Facilities and repairing any damage thereto resulting from the Work. B. Not Shown or Indicated. - 1. If an Underground Facility is uncovered or revealed at or contiguous to the Site which was not shown or indicated, or not shown or indicated with reasonable accuracy in the Contract Documents, Contractor shall, promptly atter becoming aware thereof and before further disturbing conditions affected thereby or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.16.A), identify the owner of such Underground Facility and give written notice to that owner and to Owner and Engineer. Engineer will promptly review the Underground Facility and determine the extent, if any, to which a change is required in the Contract Documents to reflect and document the EJCDC C-700 Standard General Conditions of the Constriction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 13 of 62 007205 consequences of the existence or location of the Underground Facility. During such time, Contractor shall be responsible for the safety and protection of such Underground Facility. 2. If Engineer concludes that a change in the Contract Documents is required, a Work Change Directive or a Change Order will be issued to reflect and document such consequences. An equitable adjustment shall be made in the Contract Price or Contract Times, or both, to the extent that they are attributable to the existence or location of any Underground Facility that was not shown or indicated or not shown or indicated with reasonable accuracy in the Contract Documents and that Contractor did not know of and could not reasonably have been expected to be aware of or to have anticipated. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment in Contract Price or Contract Times, Owner or Contractor may make a Claim therefor as provided in Paragraph 10.05. 4.05 Reference Points A. Owner shall provide engineering surveys to establish reterence points for construction which in Engineer's judgment are necessary to enable Contractor to proceed with the Work. Contractor shall be responsible for laying out the Work, shall protect and preserve the established reference points and property monuments, and shall make no changes or relocations without the prior written approval of Owner. Contractor shall report to Engineer whenever any reference point or property monument is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points or property monuments by professionally qualified personnel. 4.06 Hazardous Environmental Condition at Site A. Reports and Drawings: The Supplementary Conditions identify those reports and drawings known to Owner relating to Hazardous Environmental Conditions that have been identified at the Site. B. Limited Reliance by Contractor on Technical Data Authorized: Contractor may rely upon the accuracy of the "technical data" contained in such reports and drawings, but such reports and drawings are not Contract Documents. Such "technical data" is identified in the Supplementary Conditions. Except for such reliance on such "technical data," Contractor may not rely upon or make any claim against Owner or Engineer, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors with respect to: the completeness of such reports and drawings for Contractor's purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by Contractor and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings; or 3. any Contractor interpretation of or conclusion drawn from any "technical data" or any such other data, interpretations, opinions or information. EdCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National society orProfessionai Engineers for EJCDC. All rights reserved. Page 14 of 62 00 72 05 C. Contractor shall not be responsible for any Hazardous Environmental Condition uncovered or revealed at the Site which was not shown or indicated in Drawings or Specifications or identified in the Contract Documents to be within the scope of the Work. Contractor shall be responsible for a Hazardous Environmental Condition created with any materials brought to the Site by Contractor, Subcontractors, Suppliers, or anyone else for whom Contractor is responsible. D. If Contractor encounters a Hazardous Environmental Condition or if Contractor or anyone for whom Contractor is responsible creates a Hazardous Environmental Condition, Contractor shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such condition and in any area affected thereby (except in an emergency as required by Paragraph 6.16.A); and (iii) notify Owner and Engineer (and promptly thereafter confirm such notice in writing). Owner shall promptly consult with Engineer concerning the necessity for Owner to retain a qualified expert to evaluate such condition or take corrective action, if any. Promptly after consulting with Engineer, Owner shall take such actions as are necessary to permit Owner to timely obtain required permits and provide Contractor the written notice required by Paragraph 4.06.E. E. Contractor shall not be required to resume Work in connection with such condition or in any affected area until after Owner has obtained any required permits related thereto and delivered written notice to Contractor: (i) specifying that such condition and any affected area is or has been rendered safe for the resumption of Work; or (ii) specifying any special conditions under which such Work may be resumed safely. If Owner and Contractor cannot agree as to entitlement to or on the amount or extent, if any, of any adjustment in Contract Price or Contract Times, or both, as a result of such Work stoppage or such special conditions under which Work is agreed to be resumed by Contractor, either party may make a Claim therefor as provided in Paragraph 10.05. F If after receipt of such written notice Contractor does not agree to resume such Work based on a reasonable belief it is unsafe, or does not agree to resume such Work under such special conditions, then Owner may order the portion of the Work that is in the area affected by such condition to be deleted from the Work. If Owner and Contractor cannot agree as to entitlement to or on the amount or extent, if any, of an adjustment in Contract Price or Contract Times as a result of deleting such portion of the Work, then either party may make a Claim therefor as provided in Paragraph 10.05. Owner may have such deleted portion of the Work performed by Owner's own forces or others in accordance with Article 7. G. To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold harmless Contractor, Subcontractors, and Engineer, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to a Hazardous Environmental Condition, provided that such Hazardous Environmental Condition: (i) was not shown or indicated in the Drawings or Specifications or identified in the Contract Documents to be included within the scope of the Work, and (ii) was not created by Contractor or by anyone for whom Contractor is EK DC C-700 Standard General Conditions of the Constriction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 15 of 62 00 72 05 responsible. Nothing m this Paragraph 4.U6.0 shall obligate Uwner to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence. H. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to a Hazardous Environmental Condition created by Contractor or by anyone for whom Contractor is responsible. Nothing in this Paragraph 4.06.H shall obligate Contractor to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence. I. The provisions of Paragraphs 4.02, 4.03, and 4.04 do not apply to a Hazardous Environmental Condition uncovered or revealed at the Site. ARTICLE 5 — BONDS AND INSURANCE 5.01 Performance, Payment, and Other Bonds A. Contractor shall furnish performance and payment bonds, each in an amount at least equal to the Contract Price as security for the faithful performance and payment of all of Contractor's obligations under the Contract Documents. These bonds shall remain in effect until one year after the date when final payment becomes due or until completion of the correction period specified in Paragraph 13.07, whichever is later, except as provided otherwise by Laws or Regulations or by the Contract Documents. Contractor shall also furnish such other bonds as are required by the Contract Documents. B. All bonds shall be in the form prescribed by the Contract Documents except as provided otherwise by Laws or Regulations, and shall be executed by such sureties as are named in the Est of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as published in Circular 570 (amended) by the Financial Management Service, Surety Bond Branch, U.S. Department of the Treasury. All bonds signed by an agent or attorney-in-fact must be accompanied by a certified copy of that individual's authority to bind the surety. The evidence of authority shall show that it is effective on the date the agent or attorney-in-fact signed each bond. C. If the surety on any bond furnished by Contractor is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Project is located or it ceases to meet the requirements of Paragraph 5.0 LB, Contractor shall promptly notify Owner and Engineer and shall, within 20 days after the event giving rise to such notification, provide another bond and surety, both of which shall comply with the requirements of Paragraphs 5.01.B and 5.02. 5.02 Licensed Sureties and Insurers A. All bonds and insurance required by the Contract Documents to be purchased and maintained by Owner or Contractor shall be obtained from surety or insurance companies that are duly EJCDC C-700 standard General Conditions of the Construction Contract Copyright 0 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 16 of 62 00 72 05 licensed or authorized in the jurisdiction in which the Project is located to issue bonds or insurance policies for the limits and coverages so required. Such surety and insurance companies shall also meet such additional requirements and qualifications as may be provided in the Supplementary Conditions. 5.03 Certificates of Insurance A. Contractor shall deliver to Owner, with copies to each additional insured and loss payee identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance requested by Owner or any other additional insured) which Contractor is required to purchase and maintain. B. Owner shall deliver to Contractor, with copies to each additional insured and loss payee identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance requested by Contractor or any other additional insured) which Owner is required to purchase and maintain. C. Failure of Owner to demand such certificates or other evidence of Contractor's full compliance with these insurance requirements or failure of Owner to identify a deficiency in compliance from the evidence provided shall not be construed as a waiver of Contractor's obligation to maintain such insurance. D. Owner does not represent that insurance coverage and limits established in this Contract necessarily will be adequate to protect Contractor. E. The insurance and insurance limits required herein shall not be deemed as a limitation on Contractor's liability under the indemnities granted to Owner in the Contract Documents. 5.04 Contractor's Insurance A. Contractor shall purchase and maintain such insurance as is appropriate for the Work being performed and as will provide protection from claims set forth below which may arise out of or result from Contractor's performance of the Work and Contractor's other obligations under the Contract Documents, whether it is to be performed by Contractor, any Subcontractor or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable: 1. claims under workers' compensation, disability benefits, and other similar employee benefit acts; 2. claims for damages because of bodily injury, occupational sickness or disease, or death of Contractor's employees; 3. claims for damages because of bodily injury, sickness or disease, or death of any person other than Contractor's employees; 4. claims for damages insured by reasonably available personal injury liability coverage which are sustained: EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Pace 17 of 62 00 72 05 a. by any person as a result of an offense directly or indirectly related to the employment of such person by Contractor, or b. by any other person for any other reason; 5. claims for damages, other than to the Work itself, because of injury to or destruction of tangible property wherever located, including loss of use resulting therefrom; and 6. claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle. B. The policies of insurance required by this Paragraph 5.04 shall: 1. with respect to insurance required by Paragraphs 5.04.A.3 through 5.04.A.6 inclusive, be written on an occurrence basis, include as additional insureds (subject to any customary exclusion regarding professional liability) Owner and Engineer, and any other individuals or entities identified in the Supplementary Conditions, all of whom shall be listed as additional insureds, and include coverage for the respective officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of all such additional insureds, and the insurance afforded to these additional insureds shall provide primary coverage for all claims covered thereby; 2. include at least the specific coverages and be written for not less than the limits of liability provided in the Supplementary Conditions or required by Laws or Regulations, whichever is greater; 3. include contractual liability insurance covering Contractor's indemnity obligations under Paragraphs 6.11 and 6.20; 4. contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or renewal refused until at least 30 days prior written notice has been given to Owner and Contractor and to each other additional insured identified in the Supplementary Conditions to whom a certificate of insurance has been issued (and the certificates of insurance furnished by the Contractor pursuant to Paragraph 5.03 will so provide); 5. remain in effect at least until final payment and at all times thereafter when Contractor may be correcting, removing, or replacing defective Work in accordance with Paragraph 13.07; and 6. include completed operations coverage: a. Such insurance shall remain in effect for two years after final payment. b. Contractor shall furnish Owner and each other additional insured identified in the Supplementary Conditions, to whom a certificate of insurance has been issued, evidence satisfactory to Owner and any such additional insured of continuation of such insurance at final payment and one year thereafter. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright C 2007 National Society of Professional Engineers for EJCDC. All rights reserved Page 18 of 62 00 72 05 5.05 Owner's Liability Insurance A. In addition to the insurance required to be provided by Contractor under Paragraph 5.04, Owner, at Owner's option, may purchase and maintain at Owner's expense Owner's own liability insurance as will protect Owner against claims which may arise from operations under the Contract Documents. 5.06 Property Insurance A. Unless otherwise provided in the Supplementary Conditions, Owner shall purchase and maintain property insurance upon the Work at the Site in the amount -of the full replacement cost thereof (subject to such deductible amounts as may be provided in the Supplementary Conditions or required by Laws and Regulations). This insurance shall: 1. include the interests of Owner, Contractor, Subcontractors, and Engineer, and any other individuals or entities identified in the Supplementary Conditions, and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them, each of whom is deemed to have an insurable interest and shall be Iisted as a loss payee; 2. be written on a Builder's Risk `�a11-risk" policy form that shall at least include insurance for physical loss or damage to the Work, temporary buildings, falsework, and materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire, lightning, extended coverage, theft, vandalism and malicious mischief; earthquake, collapse, debris removal, demolition occasioned by enforcement of Laws and Regulations, water damage (other than that caused by flood), and such other perils or causes of loss as may be specifically required by the Supplementary Conditions. 3. include expenses incurred in the repair or replacement of any insured property (including but not limited to fees and charges of engineers and architects); 4. cover materials and equipment stored at the Site or at another location that was agreed to in writing by Owner prior to being incorporated in the Work, provided that such materials and equipment have been included in an Application for Payment recommended by Engineer; 5. allow for partial utilization of the Work by Owner; 6. include testing and startup; and 7. be maintained in effect until final payment is made unless otherwise agreed to in writing by Owner, Contractor, and Engineer with 30 days written notice to each other loss payee to whom a certificate of insurance has been issued. B. Owner shall purchase and maintain such equipment breakdown insurance or additional property insurance as may be required by the Supplementary Conditions or Laws and Regulations which will include the interests of Owner, Contractor, Subcontractors, and Engineer, and any other individuals or entities identified in the Supplementary Conditions, and the officers, directors, EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers ror EJCDC. All rights reserved. Page 19 of 62 00 72 05 members, partners, employees, agents, consultants and subcontractors of each and any of them, each of whom is deemed to have an insurable interest and shall be listed as a loss payee. C. All the policies of insurance (and the certificates or other evidence thereof) required to be purchased and maintained in accordance with this Paragraph 5.06 will contain a provision or endorsement that the coverage afforded will not be canceled or materially changed or renewal refused until at least 30 days prior written notice has been given to Owner and Contractor and to each other loss payee to whom a certificate of insurance has been issued and will contain waiver provisions in accordance with Paragraph 5.07. D. Owner shall not be responsible for purchasing and maintaining any property insurance specified in this Paragraph 5.06 to protect the interests of Contractor, Subcontractors, or others in the Work to the extent of any deductible amounts that are identified in the Supplementary Conditions. The risk of loss within such identified deductible amount will be borne by Contractor, Subcontractors, or others suffering any such loss, and if any of them wishes property insurance coverage within the limits of such amounts, each may purchase and maintain it at the purchaser's own expense. E. If Contractor requests in writing that other special insurance be included in the property insurance policies provided under this Paragraph 5.06, Owner shall, if possible, include such insurance, and the cost thereof will be charged to Contractor by appropriate Change Order. Prior to commencement of the Work at the Site, Owner shall in writing advise Contractor whether or not such other insurance has been procured by Owner. 5.07 Waiver of Rights A. Owner and Contractor intend that all policies purchased in accordance with Paragraph 5.06 will protect Owner, Contractor, Subcontractors, and Engineer, and all other individuals or entities identified in the Supplementary Conditions as loss payees (and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them) in such policies and will provide primary coverage for all losses and damages caused by the perils or causes of loss covered thereby. All such policies shall contain provisions to the effect that in the event of payment of any loss or damage the insurers will have no rights of recovery against any of the insureds or loss payees thereunder. Owner and Contractor waive all rights against each other and their respective officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them for all losses and damages caused by, arising out of or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work; and, in addition, waive all such rights against Subcontractors and Engineer, and all other individuals or entities identified in the Supplementary Conditions as loss payees (and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them) under such policies for losses and damages so caused. None of the above waivers shall extend to the rights that any party making such waiver may have to the proceeds of insurance held by Owner as trustee or otherwise payable under any policy so issued. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 0 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 20 of 62 00 72 05 B. Owner waives all rights against Contractor, Subcontractors, and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them for: 1. loss due to business interruption, loss of use, or other consequential Ioss extending beyond direct physical loss or damage to Owner's property or the Work caused by, arising out of or resulting from fire or other perils whether or not insured by Owner; and 2. loss or damage to the completed Project or part thereof caused by, arising out of or resulting from fire or other insured peril or cause of loss covered by any property insurance maintained on the completed Project or part thereof by Owner during partial utilization pursuant to Paragraph 14.05, after Substantial Completion pursuant to Paragraph 14.04, or after final payment pursuant to Paragraph 14.07. C. Any insurance policy maintained by Owner covering any loss, damage or consequential loss referred to in Paragraph 5.073 shall contain provisions to the effect that in the event of payment of any such loss, damage, or consequential loss, the insurers will have no rights of recovery against Contractor, Subcontractors, or Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them. 5.08 Receipt and Application of Insurance Proceeds A. Any insured Ioss under the policies of insurance required by Paragraph 5.06 will be adjusted with Owner and made payable to Owner as fiduciary for the loss payees, as their interests may appear, subject to the requirements of any applicable mortgage clause and of Paragraph 5.08.B. Owner shall deposit in a separate account any money so received and shall distribute it in accordance with such agreement as the parties in interest may reach. If no other special agreement is reached, the damaged Work shall be repaired or replaced, the moneys so received applied on account thereof, and the Work and the cost thereof covered by an appropriate Change Order. B. Owner as fiduciary shall have power to adjust and settle any loss with the insurers unless one of the parties in interest shall object in writing within 15 days after the occurrence of loss to Owner's exercise of this power. If such objection be made, Owner as fiduciary shall make settlement with the insurers in accordance with such agreement as the parties in interest may reach. If no such agreement among the parties in interest is reached, Owner as fiduciary shall adjust and settle the loss with the insurers and, if required in writing by any party in interest, Owner as fduciary shall give bond for the proper performance of such duties. 5.09 Acceptance of Bonds and Insurance; Option to Replace A. If either Owner or Contractor has any objection to the coverage afforded by or other provisions of the bonds or insurance required to be purchased and maintained by the other parry in accordance with Article 5 on the basis of non-conformance with the Contract Documents, the objecting party shall so notify the other party in writing within 10 days after receipt of the certificates (or other evidence requested) required by Paragraph 2.01.B. Owner and Contractor shall each provide to the other such additional information in respect of insurance provided as the other may reasonably request. If either party does not purchase or maintain all of the bonds EJCDC C-700 standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engbeers for EJCDC. All rights reserved. Page21 of 62 00 72 05 and insurance required of such party by the Contract Documents, such party shall notify the other party in writing of such failure to purchase prior to the start of the Work, or of such failure to maintain prior to any change in the required coverage. Without prejudice to any other right or remedy, the other party may elect to obtain equivalent bonds or insurance to protect such other party's interests at the expense of the party who was required to provide such coverage, and a Change Order shall be issued to adjust the Contract Price accordingly. 5.10 Partial Utilization, Acknowledgment of Property Insurer A. If Owner finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion of all the Work as provided in Paragraph 14.05, no such use or occupancy shall commence before the insurers providing the property insurance pursuant to Paragraph 5.06 have acknowledged notice thereof and in writing effected any changes in coverage necessitated thereby. The insurers providing the property insurance shall consent by endorsement on the policy or policies, but the property insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy. ARTICLE 6 — CONTRACTOR'S RESPONSIBILITIES 6.01 Supervision and Superintendence A. Contractor shall supervise, inspect, and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of construction. Contractor shall not be responsible for the negligence of Owner or Engineer in the design or specification of a specific means, method, technique, sequence, or procedure of construction which is shown or indicated in and expressly required by the Contract Documents. B. At all times during the progress of the Work, Contractor shall assign a competent resident superintendent who shall not be replaced without written notice to Owner and Engineer except under extraordinary circumstances. 6.02 Labor; Working Hours A. Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents. Contractor shall at all times maintain good discipline and order at the Site. B. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site shall be performed during regular working hours. Contractor will not permit the performance of Work on a Saturday, Sunday, or any legal holiday without Owner's written consent (which will not be unreasonably withheld) given after prior written notice to Engineer. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright C 2007 National society of Professional Engineers for EJCDC. All rights reserved. Page 22 of 62 00 72 05 6.03 Services, Materials, and Equipment A. Unless otherwise specified in the Contract Documents, Contractor shall provide and assume full responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities and incidentals necessary for the performance, testing, start-up, and completion of the Work. B. All materials and equipment incorporated into the Work shall be as specified or, if not specified, shall be of good quality and new, except as otherwise provided in the Contract Documents. All special warranties and guarantees required by the Specifications shall expressly run to the benefit of Owner. If required by Engineer, Contractor shall furnish satisfactory evidence (including reports of required tests) as to the source, kind, and quality of materials and equipment. C. All materials and equipment shall be stored, applied, installed, connected, erected, protected, used, cleaned, and conditioned in accordance with instructions of the applicable Supplier, except as otherwise may be provided in the Contract Documents. 6.04 Progress Schedule A. Contractor shall adhere to the Progress Schedule established in accordance with Paragraph 2.07 as it may be adjusted from time to time as provided below. 1. Contractor shall submit to Engineer for acceptance (to the extent indicated in Paragraph 2.07) proposed adjustments in the Progress Schedule that will not result in changing the Contract Times. Such adjustments will comply with any provisions of the General Requirements applicable thereto. 2. Proposed adjustments in the Progress Schedule that will change the Contract Times shall be submitted in accordance with the requirements of Article 12. Adjustments in Contract Times may only be made by a Change Order. 6.05 Substitutes and "Or -Equals" A. Whenever an item of material or equipment is specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier, the specification or description is intended to establish the type, function, appearance, and quality required. Unless the specification or description contains or is followed by words reading that no like, equivalent, or "or -equal" item or no substitution is permitted, other items of material or equipment or material or equipment of other Suppliers may be submitted to Engineer for review under the circumstances described below. 1. "Or -Equal" Items: If in Engineer's sole discretion an item of material or equipment proposed by Contractor is functionally equal to that named and sufficiently similar so that no change in related Work will be required, it may be considered by Engineer as an "or -equal" item, in which case review and approval of the proposed item may, in Engineer's sole discretion, be accomplished without compliance with some or all of the requirements EJCDC C-700 standard General Conditions of the Construction Contract Copyright C 2007 National Society of Professional Engineers for EdCDC. All rights reserved. Pate 23 of 62 for approval of proposed substitute items. For the purposes of this Paragraph 6.05.A.1, a proposed item of material or equipment will be considered functionally equal to an item so named if: a. in the exercise of reasonable judgment Engineer determines that: 1) it is at least equal in materials of construction, quality, durability, appearance, strength, and design characteristics; 2) it will reliably perform at least equally well the function and achieve the results imposed by the design concept of the completed Project as a functioning whole; and 3) it has a proven record of performance and availability of responsive service. b. Contractor certifies that, if approved and incorporated into the Work: 1) there will be no increase in cost to the Owner or increase in Contract Times; and 2) it will conform substantially to the detailed requirements of the item named in the Contract Documents. 2. Substitute Items: a. If in Engineer's sole discretion an item of material or equipment proposed by Contractor does not qualify as an "or -equal" item under Paragraph 6.05.A.1, it will be considered a proposed substitute item. b. Contractor shall submit sufficient information as provided below to allow Engineer to determine if the item of material or equipment proposed is essentially equivalent to that named and an acceptable substitute therefor. Requests for review of proposed substitute items of material or equipment will not be accepted by Engineer from anyone other than Contractor. c. The requirements for review by Engineer will be as set forth in Paragraph 6.05.A.2.d, as supplemented by the General Requirements, and as Engineer may decide is appropriate under the circumstances. d. Contractor shall make written application to Engineer for review of a proposed substitute item of material or equipment that Contractor seeks to furnish or use. The application: 1) shall certify that the proposed substitute item will: a) perform adequately the functions and achieve the results called for by the general design, b) be similar in substance to that specified, and c) be suited to the same use as that specified; EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 0 2007 National Society of Professional Engineers for E.TCDC. All rights reserved. Page 24 of 62 00 72 05 2) will state: a) the extent, if any, to which the use of the proposed substitute item will prejudice Contractor's achievement of Substantial Completion on time, b) whether use of the proposed substitute item in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with Owner for other work on the Project) to adapt the design to the proposed substitute item, and c) whether incorporation or use of the proposed substitute item in connection with the Work is subject to payment of any license fee or royalty; 3) will identify: a) all variations of the proposed substitute item from that specified, and b) available engineering, sales, maintenance, repair, and replacement services; and 4) shall contain an itemized estimate of all costs or credits that will result directly or indirectly from use of such substitute item, including costs of redesign and claims of other contractors affected by any resulting change. B. Substitute Construction Methods or Procedures: If a specific means, method, technique, sequence, or procedure of construction is expressly required by the Contract Documents, Contractor may furnish or utilize a substitute means, method, technique, sequence, or procedure of construction approved by Engineer. Contractor shall submit sufficient information to allow Engineer, in Engineer's sole discretion, to determine that the substitute proposed is equivalent to that expressly called for by the Contract Documents. The requirements for review by Engineer will be similar to those provided in Paragraph 6.05.A.2. C. Engineer's Evaluation: Engineer will be allowed a reasonable time within which to evaluate each proposal or submittal made pursuant to Paragraphs 6.05.A and 6.05.B. Engineer may require Contractor to furnish additional data about the proposed substitute item. Engineer will be the sole judge of acceptability. No "or equal" or substitute will be ordered, installed or utilized until Engineer's review is complete, which will be evidenced by a Change Order in the case of a substitute and an approved Shop Drawing for an "or equal." Engineer will advise Contractor in writing of any negative determination. D. Special Guarantee: Owner may require Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any substitute. E. Engineer's Cost Reimbursement: Engineer will record Engineer's costs in evaluating a substitute proposed or submitted by Contractor pursuant to Paragraphs 6.05.A.2 and 6.05.13. Whether or not Engineer approves a substitute so proposed or submitted by Contractor, Contractor shall reimburse Owner for the reasonable charges of Engineer for evaluating each such proposed substitute. Contractor shall also reimburse Owner for the reasonable charges of EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for ETCDC. All rights reserved. Page 25 of 62 00 72 05 Engineer for making changes in the Contract Documents (or in the provisions- of any other direct contract with Owner) resulting from the acceptance of each proposed substitute. F. Contractor's Expertise: Contractor shall provide all data in support of any proposed substitute or "or -equal" at Contractor's expense. 6.06 Concerning Subcontractors, Suppliers, and Others A. Contractor shall not employ any Subcontractor, Supplier, or other individual or entity (including those acceptable to Owner as indicated in Paragraph 6.06.13), whether initially or as a replacement, against whore Owner may have reasonable objection. Contractor shall not be required to employ any Subcontractor, Supplier, or other individual or entity to furnish or perform any of the Work against whom Contractor has reasonable objection. B. If the Supplementary Conditions require the identity of certain Subcontractors, Suppliers, or other individuals or entities to be submitted to Owner in advance for acceptance by Owner by a specified date prior to the Effective Date of the Agreement, and if Contractor has submitted a list thereof in accordance with the Supplementary Conditions, Owner's acceptance (either in writing or by failing to make written objection thereto by the date indicated for acceptance or objection in the Bidding Documents or the Contract Documents) of any such Subcontractor, Supplier, or other individual or entity so identified may be revoked on the basis of reasonable objection after due investigation. Contractor shall submit an acceptable replacement for the rejected Subcontractor, Supplier, or other individual or entity, and the Contract Price will be adjusted by the difference in the cost occasioned by such replacement, and an appropriate Change Order will be issued. No acceptance by Owner of any such Subcontractor, Supplier, or other individual or entity, whether initially or as a replacement, shall constitute a waiver of any right of Owner or Engineer to reject defective Work. C. Contractor shall be fully responsible to Owner and Engineer for all acts and omissions of the Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work just as Contractor is responsible for Contractor's own acts and omissions. Nothing in the Contract Documents: 1. shall create for the benefit of any such Subcontractor, Supplier, or other individual or entity any contractual relationship between Owner or Engineer and any such Subcontractor, Supplier or other individual or entity; nor 2. shall create any obligation on the part of Owner or Engineer to pay or to see to the payment of any moneys due any such Subcontractor, Supplier, or other individual or entity except as may otherwise be required by Laws and Regulations. D. Contractor shall be solely responsible for scheduling and coordinating the Work of Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract with Contractor. E. Contractor shall require all Subcontractors, Suppliers, and such other individuals or entities performing or furnishing any of the Work to communicate with Engineer through Contractor. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Pave 26 of 62 00 72 05 F. The divisions and sections of the Specifications and the identifications of any Drawings shall not control Contractor in dividing the Work among Subcontractors or Suppliers or delineating the Work to be performed by any specific trade. G. All Work performed for Contractor by a Subcontractor or Supplier will be pursuant to an appropriate agreement between Contractor and the Subcontractor or Supplier which specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the Contract Documents for the benefit of Owner and Engineer. Whenever any such agreement is with a Subcontractor or Supplier who is listed as a loss payee on the property insurance provided in Paragraph 5.06, the agreement between the Contractor and the Subcontractor or Supplier will contain provisions whereby the Subcontractor or Supplier waives all rights against Owner, Contractor, Engineer, and all other individuals or entities identified in the Supplementary Conditions to be listed as insureds or loss payees (and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them) for all losses and damages caused by, arising out of relating to, or resulting from any of the perils or causes of loss covered Hy such policies and any other property insurance applicable to the Work. If the insurers on any such policies require separate waiver forms to be signed by any Subcontractor or Supplier, Contractor will obtain the same. 6.07 Patent Fees and Royalties A. Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work and if, to the actual knowledge of Owner or Engineer, its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by Owner in the Contract Documents. B. To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold harmless Contractor, and its officers, directors, members, partners, employees, agents, consultants, and subcontractors from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device specified in the Contract Documents, but not identified as being subject to payment of any license fee or royalty to others required by patent rights or copyrights. C. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the EJCDC C-706 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Pace 27 of 62 00 72 05 Work of any invention, design, process, product, or device not specified in the Contract Documents. 6.08 Permits A. Unless otherwise provided in the Supplementary Conditions, Contractor shall obtain and pay for all construction permits and Iicenses. Owner shall assist Contractor, when necessary, in obtaining such permits and licenses. Contractor shall pay all governmental charges and inspection fees necessary for the prosecution of the Work which are applicable at the time of opening of Bids, or, if there are no Bids, on the Effective Date of the Agreement. Owner shall pay all charges of utility owners for connections for providing permanent service to the Work. 6.09 Laws and Regulations A. Contractor shall give all notices required by and shall comply with all Laws and Regulations applicable to the performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, neither Owner nor Engineer shall be responsible for monitoring Contractor's compliance with any Laws or Regulations. B. if Contractor performs any Work knowing or having reason to know that it is contrary to Laws or Regulations, Contractor shall bear all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work. However, it shall not be Contractor's responsibility to make certain that the Specifications and Drawings are in accordance with Laws and Regulations, but this shall not relieve Contractor of Contractor's obligations under Paragraph 3.03. C. Changes in Laws or Regulations not known at the time of opening of Bids (or, on the Effective Date of the Agreement if there were no Bids) having an effect on the cost or time of performance of the Work shall be the subject of an adjustment in Contract Price or Contract Times. if Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefor as provided in Paragraph 10.05. 6.10 Taxes A. Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid by Contractor in accordance with the Laws and Regulations of the place of the Project which are applicable during the performance of the Work. 6.11 Use of Site and Other Areas A. Limitation on Use of Site and Other Areas: 1. Contractor shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Laws and Regulations, and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Contractor shall assume full EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National society of Professional Engineers for EJCDC. All rights reserved. Paee 28 of 62 00 72 05 responsibility for any damage to any such land or area, or to the owner or occupant thereof; or of any adjacent land or areas resulting from the performance of the Work. 2. Should any claim be made by any such owner or occupant because of the performance of the Work, Contractor shall promptly settle with such other party by negotiation or otherwise resolve the claim by arbitration or other dispute resolution proceeding or at law. I To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any claim or action, legal or equitable, brought by any such owner or occupant against Owner, Engineer, or any other party indemnified hereunder to the extent caused by or based upon Contractor's performance of the Work. B. Removal of Debris During Performance of ' the Work.- During the progress of the Work Contractor shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall conform to applicable Laws and Regulations. C. Cleaning: Prior to Substantial Completion of the Work Contractor shall clean the Site and the Work and make it ready for utilization by Owner. At the completion of the Work Contractor shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents. D. Loading Structures: Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 6.12 Record Documents A. Contractor shall maintain in a safe place at the site one record copy of all Drawings, Specifications, Addenda, Change Orders, Work Change Directives, Field Orders, and written interpretations and clarifications in good order and annotated to show changes made during construction. These record documents together with all approved Samples and a counterpart of all approved Shop Drawings will be available to Engineer for reference. Upon completion of the Work, these record documents, Samples, and Shop Drawings will be delivered to Engineer for Owner. 6.13 Safety and Protection A. Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. Such responsibility does not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with applicable safety Laws and Regulations. Contractor shall EJCDC C-700 Standard General Conditions of the Constrocdon Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 29 of 62 007255— take all necessary precautions for the safety of: and shall provide the necessary protection to prevent damage, injury or loss to: 1. all persons on the Site or who may be affected by the Work; 2. all the Work and materials and equipment to be incorporated therein, whether in storage on or off the Site; and other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities, and Underground Facilities not designated for removal, relocation, or replacement in the course of construction. B. Contractor shall comply with all applicable Laws and Regulations relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of Underground Facilities and other utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property. C. Contractor shall comply with the applicable requirements of Owner's safety programs, if any. The Supplementary Conditions identify any Owner's safety programs that are applicable to the Work. D. Contractor shall inform Owner and Engineer of the specific requirements of Contractor's safety program with which Owner's and Engineer's employees and representatives must comply while at the Site. E. All damage, injury, or loss to any property referred to in Paragraph 6.13.A.2 or 6.13.A.3 caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor, Supplier, or any other individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, shall be remedied by Contractor (except damage or loss allributable to the fault of Drawings or Specifications or to the acts or omissions of Owner or Engineer or anyone employed by any of them, or anyone for whose acts any of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of Contractor or any Subcontractor, Supplier, or other individual or entity directly or indirectly employed by any of them). F. Contractor's duties and responsibilities for safety and for protection of the Work shall continue until such time as all the Work is completed and Engineer has issued a notice to Owner and Contractor in accordance with Paragraph 14.073 that the Work is acceptable (except as otherwise expressly provided in connection with Substantial Completion). 6.14 Safety Representative A. Contractor shall designate a qualified and experienced safety representative at the Site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs. F TCDC C-700 Standard General Conditions of the Construction Contract Copyright ei 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 30 of 62 00 72 05 6.15 Hazard Communication Programs A. Contractor shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Laws or Regulations. 6.16 Emergencies A. In emergencies affecting the safety or protection of persons or the Work or property at the Site or adjacent thereto, Contractor is obligated to act to prevent threatened damage, injury, or loss. Contractor shall give Engineer prompt written notice if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby or are required as a result thereof If Engineer determines that a change in the Contract Documents is required because of the action taken by Contractor in response to such an emergency, a Work Change Directive or Change Order will be issued. 6.17 Shop Drawings and Samples A. Contractor shall submit Shop Drawings and Samples to Engineer for review and approval in accordance with the accepted Schedule of Submittals (as required by Paragraph 2,07). Each submittal will be identified as Engineer may require. 1. Shop Drawings: a. Submit number of copies specified in the General Requirements. b. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show Engineer the services, materials, and equipment Contractor proposes to provide and to enable Engineer to review the information for the limited purposes required by Paragraph 6.17.D. 2. Samples: a. Submit number of Samples specified in the Specifications. b. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as Engineer may require to enable Engineer to review the submittal for the limited purposes required by Paragraph 6.17.D. B. Where a Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to Engineer's review and approval of the pertinent submittal will be at the sole expense and responsibility of Contractor. E1CDC C-700 Standard General Conditions ofthe Construction Contract Copyright ® 2007 National Society of Profe sional Engineers for EJCDC. All rights reserved. Page 31 of 62 C. Submittal Procedures: 1. Before submitting each Shop Drawing or Sample, Contractor shall have: a. reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents; b. determined and verified all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto; c. determined and verified the suitability of all materials offered with respect to the indicated application, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance of the Work; and d. determined and verified all information relative to Contractor's responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto. 2. Each submittal shall bear a stamp or specific written certification that Contractor has satisfied Contractor's obligations under the Contract Documents with respect to Contractor's review and approval of that submittal. 3. With each submittal, Contractor shall give Engineer specific written notice of any variations that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawings or Sample submittal; and, in addition, by a specific notation made on each Shop Drawing or Sample submitted to Engineer for review and approval of each such variation. D. Engineer's Review: 1. Engineer will provide timely review of Shop Drawings and Samples in accordance with the Schedule of Submittals acceptable to Engineer. Engineer's review and approval will be only to determine if the items covered by the submittals will, after installation or incorporation in the Work, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. 2. Engineer's review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. 3. Engineer's review and approval shall not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless Contractor has complied with the requirements of Paragraph 6.17.C.3 and Engineer has given written approval of EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 32 of 62 00 72 05 each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample. Engineer's review and approval shall not relieve Contractor from responsibility for complying with the requirements of Paragraph 6.17.C.1. E. Resuhmittal Procedures: 1. Contractor shall make corrections required by Engineer and shall return the required number of corrected copies of Shop Drawings and submit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by Engineer on previous submittals. 6.18 Continuing the Work A. Contractor shall carry on the Work and adhere to the Progress Schedule during all disputes or disagreements with Owner. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as permitted by Paragraph 15.04 or as Owner and Contractor may otherwise agree in writing. 6.19 Contractor's General Warranty and Guarantee A. Contractor warrants and guarantees to Owner that all Work will be in accordance with the Contract Documents and will not be defective. Engineer and its officers, directors, members, partners, employees, agents, consultants, and subcontractors shall be entitled to rely on representation of Contractor's warranty and guarantee. B. Contractor's warranty and guarantee hereunder excludes defects or damage caused by: abuse, modification, or improper maintenance or operation by persons other than Contractor, Subcontractors, Suppliers, or any other individual or entity for whom Contractor is responsible; or 2. normal wear and tear under normal usage. C. Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. None of the following will constitute an acceptance of Work that is not in accordance with the Contract Documents or a release of Contractor's obligation to perform the Work in accordance with the Contract Documents: 1. observations by Engineer; 2. recommendation by Engineer or payment by Owner of any progress or final payment; 3. the issuance of a certificate of Substantial Completion by Engineer or any payment related thereto by Owner; 4. use or occupancy of the Work or any part thereof by Owner; 5. any review and approval of a Shop Drawing or Sample submittal or the issuance of a notice of acceptability by Engineer; EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Paae33 of 62 00 72 05 6. any inspection, test, or approval by others; or 7. any correction of defective Work by Owner. 6.20 Indemnification A. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to the performance of the Work, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom but only to the extent caused by any negligent act or omission of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work or anyone for whose acts any of them may be liable . B. In any and all claims against Owner or Engineer or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors by any employee (or the survivor or personal representative of such employee) of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, the indemnification obligation under Paragraph 6.20.A shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for Contractor or any such Subcontractor, Supplier, or other individual or entity under workers' compensation acts, disability benefit acts, or other employee benefit acts. C. The indemnification obligations of Contractor under Paragraph 6.20.A shall not extend to the liability of Engineer and Engineer's officers, directors, members, partners, employees, agents, consultants and subcontractors arising out of: 1. the preparation or approval of, or the failure to prepare or approve maps, Drawings, opinions, reports, surveys, Change Orders, designs, or Specifications; or 2. giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage. 6.21 Delegation of Professional Design Services A. Contractor will not be required to provide professional design services unless such services are specifically required by the Contract Documents for a portion of the Work or unless such services are required to carry out Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. Contractor shall not be required to provide professional services in violation of applicable law. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright C 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Pace 34 of 62 0072 B. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of Contractor by the Contract Documents, Owner and Engineer will specify all performance and design criteria that such services must satisfy. Contractor shall cause such services or certifications to be provided by a properly licensed professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to Engineer. C. Owner and Engineer shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided Owner and Engineer have specified to Contractor all performance and design criteria that such services must satisfy. D. Pursuant to this Paragraph 6.21, Engineer's review and approval of design calculations and design drawings will be only for the Iimited purpose of checking for conformance with performance and design criteria given and the design concept expressed in the Contract Documents. Engineer's review and approval of Shop Drawings and other submittals (except design calculations and design drawings) will be only for the purpose stated in Paragraph 6.17.D.1. E. Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. ARTICLE 7 — OTHER WORK AT THE SITE 7.01 Related Work at Site A. Owner may perform other work related to the Project at the Site with Owner's employees, or through other direct contracts therefor, or have other work performed by utility owners. If such other work is not noted in the Contract Documents, then: 1. written notice thereof will be given to Contractor prior to starting any such other work; and 2. if Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times that should be allowed as a result of such other work, a Claim may be made therefor as provided in Paragraph 10.05.. B. Contractor shall afford each other contractor who is a party to such a direct contract, each utility owner, and Owner, if Owner is performing other work with Owner's employees, proper and safe access to the Site, provide a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such other work, and properly coordinate the Work with theirs. Contractor shall do all cutting, fitting, and patching of the Work that may be required to properly connect or otherwise make its several parts come together and properly integrate with such other work. Contractor shall not endanger any work of others by cutting, excavating, or otherwise altering such work; provided, however, that Contractor may cut or alter others' work with the written consent of Engineer and the others whose work will be EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page W of 62 00 72 05 affected. The duties and responsibilities of Contractor under this Paragraph are for the benefit of such utility owners and other contractors to the extent that there are comparable provisions for the benefit of Contractor in said direct contracts between Owner and such utility owners and other contractors. C. If the proper execution or results of any part of Contractor's Work depends upon work performed by others under. this Article 7, Contractor shall inspect such other work and promptly report to Engineer in writing any delays, defects, or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of Contractor's Work. Contractor's failure to so report will constitute an acceptance of such other work as fit and proper for integration with Contractor's Work except for latent defects and deficiencies in such other work. 7.02 Coordination A. If Owner intends to contract with others for the performance of other work on the Project at the Site, the following will be set forth in Supplementary Conditions: 1. the individual or entity who will have authority and responsibility for coordination of the activities among the various contractors will be identified; 2. the specific matters to be covered by such authority and responsibility will be itemized; and 3. the extent of such authority and responsibilities will be provided. B. Unless otherwise provided in the Supplementary Conditions, Owner shall have sole authority and responsibility for such coordination. 7.03 Legal Relationships A. Paragraphs 7.01.A and 7.02 are not applicable for utilities not under the control of Owner. B. Each other direct contract of Owner under Paragraph 7.01.A shall provide that the other contractor is liable to Owner and Contractor for the reasonable direct delay and disruption costs incurred by Contractor as a result of the other contractor's wrongful actions or inactions. C. Contractor shall be liable to Owner and any other contractor under direct contract to Owner for the reasonable direct delay and disruption costs incurred by such other contractor as a result of Contractor's wrongful action or inactions. ARTICLE 8 — OWNER'S RESPONSIBILITIES 8.01 Communications to Contractor A. Except as otherwise provided in these General Conditions, Owner shall issue all communications to Contractor through Engineer. EJCDC C-700 standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Nee 36 of 62 00 72 05 8.02 Replacement of Engineer A. In case of termination of the employment of Engineer, Owner shall appoint an engineer to whom Contractor makes no reasonable objection, whose status under the Contract Documents shall be that of the former Engineer. 8.03 Furnish Data A. Owner shall promptly furnish the data required of Owner under the Contract Documents. 8.04 Pay When Due A. Owner shall make payments to Contractor when they are due as provided in Paragraphs 14A2.0 and 14.07.C. 8.05 Lands and Easements; Reports and Tests A. Owner's duties with respect to providing lands and easements and providing engineering surveys to establish reference points are set forth in Paragraphs 4.01 and 4.05. Paragraph 4.02 refers to Owner's identifying and making available to Contractor copies of reports of explorations and tests of subsurface conditions and drawings of physical conditions relating to existing surface or subsurface structures at the Site. 8.06 Insurance A. Owner's responsibilities, if any, with respect to purchasing and maintaining liability and property insurance are set forth in Article 5. 8.07 Change Orders A. Owner is obligated to execute Change Orders as indicated in Paragraph 10.03. 8.08 Inspections, Tests, and Approvals A. Owner's responsibility with respect to certain inspections, tests, and approvals is set forth in Paragraph 13.03.B. 8.09 Limitations on Owner's Responsihilities A. The Owner shall not supervise, direct, or have control or authority over, nor be responsible for, Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Owner will not be responsible for Contractor's failure to perform the Work in accordance with the Contract Documents. ETCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for ESCDC. All rights reserved. Page 37 of 62 00 72 05 8.10 Undisclosed Hazardous Environmental Condition A. Owner's responsibility in respect to an undisclosed Hazardous Environmental Condition is set forth in Paragraph 4.06. 8.11 Evidence of Financial Arrangements A. Upon request of Contractor, Owner shall furnish Contractor reasonable evidence that financial arrangements have been made to satisfy Owner's obligations under the Contract Documents. 8.12 Compliance with. Safety Program A. While at the Site, Owner's employees and representatives shall comply with the specific applicable requirements of Contractor's safety programs of which Owner has been informed pursuant to Paragraph 6.13.D. ARTICLE 9 — ENGINEER'S STATUS DURING CONSTRUCTION 9.01 Owner's Representative A. Engineer will be Owner's representative during the construction period. The duties and responsibilities and the limitations of authority of Engineer as Owner's representative during construction are set forth in the Contract Documents. 9.02 Visits to Site A. Engineer will make visits to the Site at intervals appropriate to the various stages of construction as Engineer deems necessary in order to observe as an experienced and qualified design professional the progress that has been made and the quality of the various aspects of Contractor's executed Work. Based on information obtained during such visits and observations, Engineer, for the benefit of Owner, will determine, in general, if the Work is proceeding in accordance with the Contract Documents. Engineer will not be required to make exhaustive or continuous inspections on the Site to check the quality or quantity of the Work. Engineer's efforts will be directed toward providing for Owner a greater degree of confidence that the completed Work will conform generally to the Contract Documents. On the basis of such visits and observations, Engineer will keep Owner informed of the progress of the Work and will endeavor to guard Owner against defective Work. B. Engineer's visits and observations are subject to all the limitations on Engineer's authority and responsibility set forth in Paragraph 9.09. Particularly, but without limitation, during or as a result of Engineer's visits or observations of Contractor's Work, Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 0 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 38 of 62 00 72 05 9.03 Project Representative A. If Owner and Engineer agree, Engineer will furnish a Resident Project Representative to assist Engineer in providing more extensive observation of the Work. The authority and responsibilities of any such Resident Project Representative and assistants will be as provided in the Supplementary Conditions, and limitations on the responsibilities thereof will be as provided in Paragraph 9.09. If Owner designates another representative or agent to represent Owner at the Site who is not Engineer's consultant, agent or employee, the responsibilities and authority and limitations thereon of such other individual or entity will be as provided in the Supplementary Conditions. 9.04 Authorized Variations in Work A. Engineer may authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Times and are compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. These may be accomplished by a Field Order and will be binding on Owner and also on Contractor, who shall perform the Work involved promptly. If Owner or Contractor believes that a Field Order justifies an adjustment in the Contract Price or Contract Times, or both, and the parties are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefor as provided in Paragraph 10.05. 9.05 Rejecting Defective Work A. Engineer will have authority to reject Work which Engineer believes to be defective, or that Engineer believes will not produce a completed Project that conforms to the Contract Documents or that will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. Engineer will also have authority to require special inspection or testing of the Work as provided in Paragraph 13.04, whether or not the Work is fabricated, installed, or completed. 9.06 Shop Drawings, Change Orders and Payments A. In connection with Engineer's authority, and limitations thereof, as to Shop Drawings and Samples, see Paragraph 6.17. B. In connection with Engineer's authority, and limitations thereof, as to design calculations and design drawings submitted in response to a delegation of professional design services, if any, see Paragraph 6.21. C. In connection with Engineer's authority as to Change Orders, see Articles 10, 11, and 12. D. In connection with Engineer's authority as to Applications for Payment, see Article 14. EJ®C C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Pate 39 of 62 007205 9.07 Determinations for Unit Price Work A. Engineer will determine the actual quantities and classifications of Unit Price Work performed by Contractor. Engineer will review with Contractor the Engineer's preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). Engineer's written decision thereon will be final and binding (except as modified by Engineer to reflect changed factual conditions or more accurate data) upon Owner and Contractor, subject to the provisions of Paragraph 10.05. 9.08 Decisions on Requirements of Contract Documents and Acceptability of Work A. Engineer will be the initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the Work thereunder. All matters in question and other matters between Owner and Contractor arising prior to the date final payment is due relating to the acceptability of the Work, and the interpretation of the requirements of the Contract Documents pertaining to the performance of the Work, will be referred initially to Engineer in writing within 30 days of the event giving rise to the question. B. Engineer will, with reasonable promptness, render a written decision on the issue referred. If Owner or Contractor believes that any such decision entitles them to an adjustment in the Contract Price or Contract Times or both, a Claim may be made under Paragraph 10.05. The date of Engineer's decision shall be the date of the event giving rise to the issues referenced for the purposes of Paragraph 10.05.B. C. Engineer's written decision on the issue referred will be final and binding on Owner and Contractor, subject to the provisions of Paragraph 10.05. D. When functioning as interpreter and judge under this Paragraph 9.08, Engineer will not show partiality to Owner or Contractor and will not be liable in connection with any interpretation or decision rendered in good faith in such capacity. 9.09 Limitations on Engineer's Authority and Responsibilities A. Neither Engineer's authority or responsibility under this Article 9 or under any other provision of the Contract Documents nor any decision made by Engineer in good faith either to exercise or not exercise such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by Engineer shall create, impose, or give rise to any duty in contract, tort, or otherwise owed by Engineer to Contractor, any Subcontractor, any Supplier, any other individual or entity, or to any surety for or employee or agent of any of them. B. Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Engineer will not be responsible for Contractor's failure to perform the Work in accordance with the Contract Documents. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 40 of 62 00 72 05 C. Engineer will not be responsible for the acts or omissions of Contractor or of any Subcontractor, any Supplier, or of any other individual or entity performing any of the Work. D. Engineer's review of the final Application for Payment and accompanying documentation and all maintenance and operating instructions, schedules, guarantees, bonds, certificates of inspection, tests and approvals, and other documentation required to be delivered by Paragraph 14.07.A will only be to determine generally that their content complies with the requirements of and in the case of certificates of inspections, tests, and approvals that the results certified indicate compliance with, the Contract Documents. E. The limitations upon authority and responsibility set forth in this Paragraph 9.09 shall also apply to the Resident Project Representative, if any, and assistants, if any. 9.10 Compliance with Safety Program A. While at the Site, Engineer's employees and representatives shall comply with the specific applicable requirements of Contractor's safety programs of which Engineer has been informed pursuant to Paragraph 6.13.D. ARTICLE 10 — CHANGES IN THE WORK; CLAIMS 10.01 Authorized Changes in the Work A. Without invalidating the Contract and without notice to any surety, Owner may, at any time or from time to time, order additions, deletions, or revisions in the Work by a Change Order, or a Work Change Directive. Upon receipt of any such document, Contractor shall promptly proceed with the Work involved which will be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided). B. If Owner and Contractor are unable to agree on entitlement to, or on the amount or extent, if any, of an adjustment in the Contract Price or Contract Times, or both, that should be allowed as a result of a Work Change Directive, a Claim may be made therefor as provided in Paragraph 10.05. 10.02 Unauthorized Changes in the Work A. Contractor shall not be entitled to an increase in the Contract Price or an extension of the Contract Times with respect to any work performed that is not required by the Contract Documents as amended, modified, or supplemented as provided in Paragraph 3.04, except in the case of an emergency as provided in Paragraph 6.16 or in the case of uncovering Work as provided in Paragraph 13.04.D. 10.03 Execution of Change Orders A. Owner and Contractor shall execute appropriate Change Orders recommended by Engineer covering: EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 0 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 41 of 62 00 72 05 1. changes in the work which are: (i) ordered by Owner pursuant to Paragraph 10.01.A, (ii) required because of acceptance of defective Work under Paragraph 13.08.A or Owner's correction of defective Work under Paragraph 13.09, or (iii) agreed to by the parties; 2. changes in the Contract Price or Contract Times which are agreed to by the parties, including any undisputed sum or amount of time for Work actually performed in accordance with a Work Change Directive; and 3. changes in the Contract Price or Contract Times which embody the substance of any written decision rendered by Engineer pursuant to Paragraph 10.05; provided that, in lieu of executing any such Change Order, an appeal may be taken from any such decision in accordance with the provisions of the Contract Documents and applicable Laws and Regulations, but during any such appeal, Contractor shall carry on the Work and adhere to the Progress Schedule as provided in Paragraph 6.18.A. 10.04 Notification to Surety A. If the provisions of any bond require notice to be given to a surety of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not Iimited to, Contract Price or Contract Times), the giving of any such notice will be Contractor's responsibility. The amount of each applicable bond will be adjusted to reflect the effect of any such change. 10.05 Claims A. Engineer's Decision Required. All Claims, except those waived pursuant to Paragraph 14.09, shall be referred to the Engineer for decision. A decision by Engineer shall be required as a condition precedent to any exercise by Owner or Contractor of any rights or remedies either may otherwise have under the Contract Documents or by Laws and Regulations in respect of such Claims. B. Notice: Written notice stating the general nature of each Claim shall be delivered by the claimant to Engineer and the other party to the Contract promptly (but in no event later than 30 days) after the start of the event giving rise thereto. The responsibility to substantiate a Claim shall rest with .the party making the Claim. Notice of the amount or extent of the Claim, with supporting data shall be delivered to the Engineer and the other party to the Contract within 60 days after the start of such event (unless Engineer allows additional time for claimant to submit additional or more accurate data in support of such Claim). A Claim for an adjustment in Contract Price shall be prepared in accordance with the provisions of Paragraph 12.01.13. A Claim for an adjustment in Contract Times shall be prepared in accordance with the provisions of Paragraph 12.02.13. Each Claim shall be accompanied by claimant's written statement that the adjustment claimed is the entire adjustment to which the claimant believes it is entitled as a result of said event. The opposing party shall submit any response to Engineer and the claimant within 30 days after receipt of the claimant's last submittal (unless Engineer allows additional time). EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National society of Professional Engineers for EJCDC. All rights reserved. Page 42 of 62 00 72 05 C. Engineer's Action: Engineer will review each Claim and, within 30 days after receipt of the last submittal of the claimant or the last submittal of the opposing party, if any, take one of the following actions in writing: 1. deny the Claim in whole or in part; 2. approve the Claim; or 3. notify the parties that the Engineer is unable to resolve the Claim it in the Engineer's sole discretion, it would be inappropriate for the Engineer to do so. For purposes of finther resolution of the Claim, such notice shall be deemed a denial. D. In the event that Engineer does not take action on a Claim within said 30 days, the Claim shall be deemed denied. E. Engineer's written action under Paragraph 10.05.0 or denial pursuant to Paragraphs 10.05.C.3 or 10.05.1) will be final and binding upon Owner and Contractor, unless Owner or Contractor invoke the dispute resolution procedure set forth in Article 16 within 30 days of such action or denial. F. No Clairn for an adjustment in Contract Price or Contract Times will be valid if not submitted in accordance with this Paragraph 10.05. ARTICLE 11— COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK 11.01 Cost of the Work A. Costs Included.• The term Cost of the Work means the sum of all costs, except those excluded in Paragraph 11.01.B, necessarily incurred and paid by Contractor in the proper performance of the Work. When the value of any Work covered by a Change Order or when a Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, the costs to be reimbursed to Contractor will be only those additional or incremental costs required because of the change in the Work or because of the event giving rise to the Claim. Except as otherwise may be agreed to in writing by Owner, such costs shall be in amounts no higher than those prevailing in the locality of the Project, shall not include any of the costs itemized in Paragraph 11.01.13, and shall include only the following items: 1. Payroll costs for employees in the direct employ of Contractor in the performance of the Work under schedules of job classifications agreed upon by Owner and Contractor. Such employees shall include, without limitation, superintendents, foremen, and other personnel employed full time on the Work. Payroll costs for employees not employed full time on the Work shall be apportioned on the basis of their time spent on the Work. Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits, which shall include social security contributions, unemployment, excise, and payroll taxes, workers' compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. The expenses of performing Work outside of regular working hours, on Saturday, Sunday, or legal holidays, shall be included in the above to the extent authorized by Owner. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved Pare O of 62 00 72 05 2. Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation and storage thereof and Suppliers' field services required in connection therewith. All cash discounts shall accrue to Contractor unless Owner deposits funds with Contractor with which to make payments, in which case the cash discounts shall accrue to Owner. All trade discounts, rebates and refunds and returns from sale of surplus materials and equipment shall accrue to Owner, and Contractor shall make provisions so that they may be obtained. Payments made by Contractor to Subcontractors for Work performed by Subcontractors. If required -by Owner, Contractor shall obtain competitive bids from subcontractors acceptable to Owner and Contractor and shall deliver such bids to Owner, who will then determine, with the advice of Engineer, which bids, if any, will be acceptable. If any subcontract provides that the Subcontractor is to be paid on the basis of Cost of the Work plus a fee, the Subcontractor's Cost of the Work and fee shall be determined in the same manner as Contractor's Cost of the Work and fee as provided in this Paragraph 11.01. 4. Costs of special consultants (including but not limited to engineers, architects, testing laboratories, surveyors, attorneys, and accountants) employed for services specifically related to the Work. 5. Supplemental costs including the following: a. The proportion of necessary transportation, travel, and subsistence expenses of Contractor's employees incurred in discharge of duties connected with the Work. b. Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office, and temporary facilities at the Site, and hand tools not owned by the workers, which are consumed in the performance of the Work, and cost, less market value, of such items used but not consumed which remain the property of Contractor. c. Rentals of all construction equipment and machinery, and the parts thereof whether rented from Contractor or others in accordance with rental agreements approved by Owner with the advice of Engineer, and the costs of transportation, loading, unloading, assembly, dismantling, and removal thereof. All such costs shall be in accordance with the terms of said rental agreements. The rental of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the Work. d. Sales, consumer, use, and other similar taxes related to the Work, and for which Contractor is liable, as imposed by Laws and Regulations. e. Deposits lost for causes other than negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, and royalty payments and fees for permits and licenses. f. Losses and damages (and related expenses) caused by damage to the Work, not compensated by insurance or otherwise, sustained by Contractor in connection with the performance of the Work (except losses and damages within the deductible amounts of EJCDC C-700 Standard General Conditions of the Construction Contract Copyright C 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 44 of bZ 00 72 05 property insurance established in accordance with Paragraph 5.06.13), provided such losses and damages have resulted from causes other than the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. Such losses shall include settlements made with the written consent and approval of Owner. No such losses, damages, and expenses shall be included in the Cost of the Work for the purpose of determining Contractor's fee. g. The cost of utilities, fuel, and sanitary facilities at the Site. h. Minor expenses such as telegrams, long distance telephone calls, telephone service at the Site, express and courier services, and similar petty cash items in connection with the Work. i. The costs of premiums for all bonds and insurance Contractor is required by the Contract Documents to purchase and maintain. B. Costs Excluded: The term Cost of the Work shall not include any of the following items: 1. Payroll costs and other compensation of Contractor's officers, executives, principals (of partnerships and sole proprietorships), general managers, safety managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks, and other personnel employed by Contractor, whether at the Site or in Contractor's principal or branch office for general administration of the Work and not specifically included in the agreed upon schedule of job classifications referred to in Paragraph 11.01.A.1 or specifically covered by Paragraph 11.01.A.4, all of which are to be considered administrative costs covered by the Contractor's fee. 2. Expenses of Contractor's principal and branch offices other than Contractor's office at the Site. Any part of Contractor's capital expenses, including interest on Contractor's capital employed for the Work and charges against Contractor for delinquent payments. 4. Costs due to the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of defective Work, disposal of materials or. equipment wrongly supplied, and making good any damage to property. 5. Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in Paragraphs 11.0 LA. C. Contractor's Fee: When all the Work is performed on the basis of cost-plus, Contractor's fee shall be determined as set forth in the Agreement. When the value of any Work covered by a Change Order or when a Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, Contractor's fee shall be determined as set forth in Paragraph 12.01 I.C. EiCDC C-700 standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for ETCDC. All rights reserved Page 45 of 62 00 72 05 D. Documentation: Whenever the Cost of the Work for any purpose is to be determined pursuant to Paragraphs 11.01.A and 11.01.B Contractor will establish and maintain records thereof in accordance with generally accepted accounting practices and submit in a form acceptable to Engineer an itemized cost breakdown together with supporting data. 11.02 Allowances A. It is understood that Contractor has included in the Contract Price all allowances so named in the Contract Documents and shall cause the Work so covered to be performed for such sums and by such persons or entities as may be acceptable to Owner and Engineer. B. Cash Allowances: 1. Contractor agrees that: a. the cash allowances include the cost to Contractor (less any applicable trade discounts) of materials and equipment required by the allowances to be delivered at the Site, and all applicable taxes; and b. Contractor's costs for unloading and handling on the Site, labor, installation, overhead, profit, and other expenses contemplated for the cash allowances have been included in the Contract Price and not in the allowances, and no demand for additional payment on account of any of the foregoing will be valid. C. Contingency Allowance: 1. Contractor agrees that a contingency allowance, if any, is for the sole use of Owner to cover unanticipated costs. D. Prior to final payment, an appropriate Change Order will be issued as recommended by Engineer to reflect actual amounts due Contractor on account of Work covered by allowances, and the Contract Price shall be correspondingly adjusted. 11.03 Unit Price Work A. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Agreement. B. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and classifications of Unit Price Work performed by Contractor will be made by Engineer subject to the provisions of Paragraph 9.07. C. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor's overhead and profit for each separately identified item. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 46 of 62 00 72 05 D. Owner or Contractor may make a Claim for an adjustment in the Contract Price in accordance with Paragraph 10.05 if 1. the quantity of any item of Unit Price Work performed by Contractor differs materially and significantly from the estimated quantity of such item indicated in the Agreement; and 2. there is no corresponding adjustment with respect to any other item of Work; and 3. Contractor believes that Contractor is entitled to an increase in Contract Price as a result of having incurred additional expense or Owner believes that Owner is entitled to a decrease in Contract Price and the parties are unable to agree as to the amount of any such increase or decrease. ARTICLE 12 — CHANGE OF CONTRACT PRICE; CHANGE OF CONTRACT TIMES 12.01 Change of Contract Price A. The Contract Price may only be changed by a Change Order. Any Claim for an adjustment in the Contract Price shall be based on written notice submitted by the party making the Claim to the Engineer and the other party to the Contract in accordance with the provisions of Paragraph 10.05. B. The value of any Work covered by a Change Order or of any CIaim for an adjustment in the Contract Price will be determined as follows: where the Work involved is covered by unit prices contained in the Contract Documents, by application of such unit prices to the quantities of the items involved (subject to the provisions of Paragraph 11.03); or 2. where the Work involved is not covered by unit prices contained in the Contract Documents, by a mutually agreed lump sum (which may include an allowance for overhead and profit not necessarily in accordance with Paragraph 12.0l.C.2); or 3. where the Work involved is not covered by unit prices contained in the Contract Documents and agreement to a lump sum is not reached under Paragraph 12.01.11.2, on the basis of the Cost of the Work (determined as provided in Paragraph 11.01) plus a Contractor's fee for overhead and profit (determined as provided in Paragraph 12.0I.C). C. Contractor's Fee: The Contractor's fee for overhead and profit shall be determined as follows: 1. a mutually acceptable fixed fee; or 2. if a fixed fee is not agreed upon, then a fee based on the following percentages of the various portions of the Cost of the Work: a. for costs incurred under Paragraphs 11.0I.A. I and 11.0I.A.2, the Contractor's fee shall be 15 percent; b. for costs incurred under Paragraph 11.01.A.3, the Contractor's fee shall be five percent; EdCDC C-700 Standard Genera[ Conditions of the Construction Contract Copyright 0 2007 National Society of Proieasional Engineers for EJCDC. All rights reserved. Pace 47 of 62 00 72 05 where one or more tiers of subcontracts are on the basis of Cost of the Work plus a fee and no fixed fee is agreed upon, the intent of Paragraphs 12.01.C.2.a and 12.01 .C.2.b is that the Subcontractor who actually performs the Work, at whatever tier, will be paid a fee of 15 percent of the costs incurred by such Subcontractor under Paragraphs 11.01.A.1 and 11.01.A.2 and that any higher tier Subcontractor and Contractor will each be paid a fee of five percent of the amount paid to the next lower tier Subcontractor; d. no fee shall be payable on the basis of costs itemized under Paragraphs 11.01.A.4, 11.0I.A.5, and 11.01.B; e. the amount of credit to be allowed by Contractor to Owner for any change which results in a net decrease in cost will be the amount of the actual net decrease in cost plus a deduction in Contractor's fee by an amount equal to five percent of such net decrease; and f. when both additions and credits are involved in any one change, the adjustment in Contractor's fee shall be computed on the basis of the net change in accordance with Paragraphs 12.01.C.2.a through 12.0l.C.2.e, inclusive. 12.02 Change of Contract Tames A. The Contract Times may only be changed by a Change Order. Any Ulai n for an adjustment in the Contract Times shall be based on written notice submitted by the party making the Claim to the Engineer and the other party to the Contract in accordance with the provisions of Paragraph 10.05. B. Any adjustment of the Contract Times covered by a Change Order or any Claim for an adjustment in the Contract Times will be determined in accordance with the provisions of this Article 12. 12.03 Delays A. Where Contractor is prevented from completing any part of the Work within the Contract Times due to delay beyond the control of Contractor, the Contract Times will be extended in an amount equal to the time lost due to such delay if a Claim is made therefor as provided in Paragraph 12.02.A. Delays beyond the control of Contractor shall include, but not be limited to, acts or neglect by Owner, acts or neglect of utility owners or other contractors performing other work as contemplated by Article 7, fires, floods, epidemics, abnormal weather conditions, or acts of God. B. If Owner, Engineer, or other contractors or utility owners performing other work for Owner as contemplated by Article 7, or anyone for whom Owner is responsible, delays, disrupts, or interferes with the performance or progress of the Work, then Contractor shall be entitled to an equitable adjustment in the Contract Price or the Contract Times, or both. Contractor's entitlement to an adjustment of the Contract Times is conditioned on such adjustment being essential to Contractor's ability to complete the Work within the Contract Times. EdCDC C-700 Standard General Conditions of the Construction Contract Copyright C 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 48 of 62 00 72 05 C. If Contractor is delayed in the performance or progress of the Work by fire, flood, epidemic, abnormal weather conditions, acts of God, acts or failures to act of utility owners not under the control of Owner, or other causes not the fault of and beyond control of Owner and Contractor, then Contractor shall be entitled to an equitable adjustment in Contract Times, if such adjustment is essential to Contractor's ability to complete the Work within the Contract Times. Such an adjustment shall be Contractor's sole and exclusive remedy for the delays deserted in this Paragraph 12.03.C. D. Owner, Engineer, and their officers, directors, members, partners, employees, agents, consultants, or subcontractors shall not be liable to Contractor for any claims, costs, losses, or damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Contractor on or in connection with any other project or anticipated project. E. Contractor shall not be entitled to an adjustment in Contract Price or Contract Times for delays within the control of Contractor. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of Contractor. ARTICLE 13 — TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 13.01 Notice of Defects A. Prompt notice of all defective Work of which Owner or Engineer has actual knowledge will be given to Contractor. Defective Work may be rejected, corrected, or accepted as provided in this Article 13. 13.02 Access to Work A. Owner, Engineer, their consultants and other representatives and personnel of Owner, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Site and the Work at reasonable times for their observation, inspection, and testing. Contractor shall provide them proper and safe conditions for such access and advise them of Contractor's safety procedures and programs so that they may comply therewith as applicable. 13.03 Tests and Inspections A. Contractor shall give Engineer timely notice of readiness of the Work for all required inspections, tests, or approvals and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. B. Owner shall employ and pay for the services of an independent testing laboratory to perform all inspections, tests, or approvals required by the Contract Documents except: L for inspections, tests, or approvals covered by Paragraphs 13.03.0 and 13.03.D below; EiCDC C-700 Standard General Conditions of the Construction Contract Copyright Q 2007 National Society of Professional Engineers for EdCAC. All rights reserved. Page 49 of 62 —---- -- - – 007205 2. that costs incurred in connection with tests or inspections conducted pursuant to Paragraph 13.04.13 shall be paid as provided in Paragraph 13.04.C; and 3. as otherwise specifically provided in the Contract Documents. C. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) specifically to be inspected, tested, or approved by an employee or other representative of such public body, Contractor shall assume full responsibility for arranging and obtaining such inspections, tests, or approvals, pay all costs in connection therewith, and furnish Engineer the required certificates of inspection or approval. D. Contractor shall be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests, or approvals required for Owner's and Engineer's acceptance of materials or equipment to be incorporated in the Work; or acceptance of materials, mixt designs, or equipment submitted for approval prior to Contractor's purchase thereof for incorporation in the Work. Such inspections, tests, or approvals shall be performed by organizations acceptable to Owner and Engineer. E. If any Work (or the work of others) that is to be inspected, tested, or approved is covered by Contractor without written concurrence of Engineer, Contractor shall, if requested by Engineer, uncover such Work for observation. F. Uncovering Work as provided in Paragraph 13.03.E shall be at Contractor's expense unless Contractor has given Engineer timely notice of Contractor's intention to cover the same and Engineer has not acted with reasonable promptness in response to such notice. 13.04 Uncovering Work A. If any Work is covered contrary to the written request of Engineer, it must, if requested by Engineer, be uncovered for Engineer's observation and replaced at Contractor's expense. B. If Engineer considers it necessary or advisable that covered Work be observed by Engineer or inspected or tested by others, Contractor, at Engineer's request, shall uncover, expose, or otherwise make available for observation, inspection, or testing as Engineer may require, that portion of the Work in question, furnishing all necessary labor, material, and equipment. C. If it is found that the uncovered Work is defective, Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such uncovering, exposure, observation, inspection, and testing, and of satisfactory replacement or reconstruction (including but not limited to all costs of repair or replacement of work of others); and Owner shall be entitled to an appropriate decrease in the Contract Price. If the parties are unable to agree as to the amount thereof; Owner may make a Claim therefor as provided in Paragraph 10.05. D. If the uncovered Work is not found to be defective, Contractor shall be allowed an increase in the Contract Price or an extension of the Contract Times, or both, directly attributable to such uncovering, exposure, observation, inspection, testing, replacement, and reconstruction. If the EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. Ali rights reserved. Page 50 of 62 00 72 05 parties are unable to agree as to the amount or extent thereof, Contractor may make a Claim therefor as provided in Paragraph 10.05. 13.05 Owner May Stop the Work A. If the Work is defective, or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to perform the Work in such a way that the completed Work will conform to the Contract Documents, Owner may order Contractor to stop the Work, or any portion thereof until the cause for such order has been eliminated; however, this right of Owner to stop the Work shall not give rise to any duty on the part of Owner to exercise this right for the benefit of Contractor, any Subcontractor, any Supplier, any other individual or entity, or any surety for, or employee or agent of any of them. 13.06 Correction or Removal of Defective Work A. Promptly after receipt of written notice, Contractor shall correct all defective Work, whether or not fabricated, installed, or completed, or, if the Work has been rejected by Engineer, remove it from the Project and replace it with Work that is not defective. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or removal (including but not limited to all costs of repair or replacement of work of others). B. When correcting defective Work under the terms of this Paragraph 13.06 or Paragraph 13.07, Contractor shall take no action that would void or otherwise impair Owner's special warranty and guarantee, if any, on said Work. 13.07 Correction Period A. If within one year after the date of Substantial Completion (or such longer period of time as may be prescribed by the terms of any applicable special guarantee required by the Contract Documents) or by any specific provision of the Contract Documents, any Work is found to be defective, or if the repair of any damages to the land or areas made available for Contractor's use by Owner or permitted by Laws and Regulations as contemplated in Paragraph 6.1 LA is found to be defective, Contractor shall promptly, without cost to Owner and in accordance with Owner's written instructions: 1. repair such defective land or areas; or 2. correct such defective Work; or 3. if the defective Work has been rejected by Owner, remove it from the Project and replace it with Work that is not defective, and 4. satisfactorily correct or repair or remove and replace any damage to other Work, to the work of others or other land or areas resulting therefrom. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Pave 51 of 62 72 B. If Contractor does not promptly comply with the terms of Owner's written instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the defective Work corrected or repaired or may have the rejected Work removed and replaced. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or repair or such removal and replacement (including but not limited to all costs of repair or replacement of work of others) will be paid by Contractor. C. In special circumstances where a particular item of equipment is placed in continuous service before Substantial Completion of all the Work, the correction period for that item may start to run from an earlier date if so provided in the Specifications. D. Where defective Work (and damage to other Work resulting therefrom) has been corrected or removed and replaced under this Paragraph 13.07, the correction period hereunder with respect to such Work will be extended for an additional period of one year after such correction or removal and replacement has been satisfactorily completed. E. Contractor's obligations under this Paragraph 13.07 are in addition to any other obligation or warranty. The provisions of this Paragraph 13.07 shall not be construed as a substitute for, or a waiver of, the provisions of any applicable statute of limitation or repose. 13.08 Acceptance of Defective Work A. If, instead of requiring correction or removal and replacement of defective Work, Owner (and, prior to Engineer's recommendation of final payment, Engineer) prefers to accept it, Owner may do so. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to Owner's evaluation of and determination to accept such defective Work (such costs to be approved by Engineer as to reasonableness) and for the diminished value of the Work to the extent not otherwise paid by Contractor pursuant to this sentence. If any such acceptance. occurs prior to Engineer's recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and Owner shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work so accepted. If the parties are unable to agree as to the amount thereof; Owner may make a Claim therefor as provided in Paragraph 10.05. If the acceptance occurs after such recommendation, an appropriate amount will be paid by Contractor to Owner. 13.09 Owner May Correct Defective Work A. If Contractor fails within a reasonable time after written notice from Engineer to correct defective Work, or to remove and replace rejected Work as required by Engineer in accordance with Paragraph 13.06.A, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, Owner may, after seven days written notice to Contractor, correct, or remedy any such deficiency. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved Page 52 of 62 00 72 05 B. In exercising the rights and remedies under this Paragraph 13.09, Owner shall proceed expeditiously. In connection with such corrective or remedial action, Owner may exclude Contractor from all or part of the Site, take possession of all or part of the Work and suspend Contractor's services related thereto, take possession of Contractor's tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner, Owner's representatives, agents and employees, Owner's other contractors, and Engineer and Engineer's consultants access to the Site to enable Owner to exercise the rights and remedies under this Paragraph. C. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by Owner in exercising the rights and remedies under this Paragraph 13.09 will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and Owner shall be entitled to an appropriate decrease in the Contract Price. If the parties are unable to agree as to the amount of the adjustment, Owner may make a Claim therefor as provided in Paragraph 10.05. Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of Contractor's defective Work. D. Contractor shall not be allowed an extension of the Contract Times because of any delay in the performance of the Work attributable to the exercise by Owner of Owner's rights and remedies under this Paragraph 13.09. ARTICLE 14 — PAYMENTS TO CONTRACTOR AND COMPLETION 14.01 Schedule of Values A. The Schedule of Values established as provided in Paragraph 2.07.A will serve as the basis for progress payments and will be incorporated into a form of Application for Payment acceptable to Engineer. Progress payments on account of Unit Price Work will be based on the number of units completed. 14.02 Progress Payments A. Applications for Payments: 1. At least 20 days before the date established in the Agreement for each progress payment (but not more often than once a month), Contractor shall submit to Engineer for review an Application for Payment filled out and signed by Contractor covering the Work completed as of the date of the Application and accompanied by such supporting documentation as is required by the Contract Documents. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the Site or at another location agreed to in writing, the Application for Payment shall also be accompanied by a bill of sale, invoice, or other documentation warranting that Owner has received the materials and equipment free and clear of all Liens and evidence that the materials and equipment are covered by appropriate property insurance or other EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 53 of 62 00 72 05 arrangements to protect Owner's interest therein, all of which must be satisfactory to Owner. 2. Beginning with the second Application for Payment, each Application shall include an affidavit of Contractor stating that all previous progress payments received on account of the Work have been applied on account to discharge Contractor's legitimate obligations associated with prior Applications for Payment. 3. The amount of retainage with respect to progress payments will be as stipulated in the Agreement. B. Review of Applications: 1. Engineer will, within 10 days after receipt of each Application for Payment, either indicate in writing a recommendation of payment and present the Application to Owner or return the Application to Contractor indicating in writing Engineer's reasons for refusing to recommend payment. In the latter case, Contractor may make the necessary corrections and resubmit the Application. 2. Engineer's recommendation of any payment requested in an Application for Payment will constitute a representation by Engineer to Owner, based on Engineer's observations of the executed Work as an experienced and qualified design professional, and on Engineer's review of the Application for Payment and the accompanying data and schedules, that to the best of Engineer's knowledge, information and belief: a. the Work has progressed to the point indicated; b. the quality of the Work is generally in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, the results of any subsequent tests called for in the Contract Documents, a final determination of quantities and classifications for Unit Price Work under Paragraph 9.07, and any other qualifications stated in the recommendation); and c. the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is Engineer's responsibility to observe the Work. By recommending any such payment Engineer will not thereby be deemed to have represented that: a. inspections made to check the quality or the quantity of the Work as it has been performed have been exhaustive, extended to every aspect of the Work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to Engineer in the Contract Documents; or b. there may not be other matters or issues between the parties that might entitle Contractor to be paid additionally by Owner or entitle Owner to withhold payment to Contractor. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 54 of 62 00 72 05 4. Neither Engineer's review of Contractor's Work for the purposes of recommending payments nor Engineer's recommendation of any payment, including final payment, will impose responsibility .on Engineer: a. to supervise, direct, or control the Work, or b. for the means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or c. for Contractor's failure to comply with Laws and Regulations applicable to Contractor's performance of the Work, or d. to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price; or e. to determine that title to any of the Work, materials, or equipment has passed to Owner free and clear of any Liens. 5. Engineer may refuse to recommend the whole or any part of any payment if, in Engineer's opinion, it would be incorrect to make the representations to Owner stated in Paragraph 14.023.2. Engineer may also refuse to recommend any such payment or, because of subsequently discovered evidence or the results of subsequent inspections or tests, revise or revoke any such payment recommendation previously made, to such extent as may be necessary in Engineer's opinion to protect Owner from loss because: a. the Work is defective, or completed Work has been damaged, requiring correction or replacement; b. the Contract Price has been reduced by Change Orders; c. Owner has been required to correct defective Work or complete Work in accordance with Paragraph 13.09; or d. Engineer has actual knowledge of the occurrence of any of the events enumerated in Paragraph 15.02.A. C. Payment Becomes Due: 1. Ten days after presentation of the Application for Payment to Owner with Engineer's recommendation, the amount recommended will (subject to the provisions of Paragraph 14.02.1)) become due, and when due will be paid by Owner to Contractor. D. Reduction in Payment: 1. Owner may refuse to make payment of the full amount recommended by Engineer because: a. claims have been made against Owner on account of Contractor's performance or furnishing of the Work; EJCDC C-700 Standard General Conditions of the Construction Contract Copyright 0 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Pate 55 of 62 00 72 05 b. Liens have been filed in connection with the Work, except where Contractor has delivered a specific bond satisfactory to Owner to secure the satisfaction and discharge of such Liens; c. there are other items entitling Owner to a set-off against the amount recommended; or d. Owner has actual knowledge of the occurrence of any of the events enumerated in Paragraphs 14.02.B.5.a through 14.02.B.5.c or Paragraph 15.02.A. 2. If Owner refuses to make payment of the full amount recommended by Engineer, Owner will give Contractor immediate written notice (with a copy to Engineer) stating the reasons for such action and promptly pay Contractor any amount remaining after deduction of the amount so withheld. Owner shall promptly pay Contractor the amount so withheld, or any adjustment thereto agreed to by Owner and Contractor, when Contractor remedies the reasons for such action. 3. Upon a subsequent determination that Owner's refusal of payment was not justified, the amount wrongfully withheld shall be treated as an amount due as determined by Paragraph 14.02.C.1 and subject to interest as provided in the Agreement. 14.03 Contractor's Warranty of Title A. Contractor warrants and guarantees that title to all Work, materials, and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to Owner no later than the time of payment free and clear of all Liens. 14.04 Substantial Completion A. When Contractor considers the entire Work ready for its intended use Contractor shall notify Owner and Engineer in writing that the entire Work is substantially complete (except for items specifically listed by Contractor as incomplete) and request that Engineer issue a certificate of Substantial Completion. B. Promptly after Contractor's notification, Owner, Contractor, and Engineer shall make an inspection of the Work to determine the status of completion. If Engineer does not consider the Work substantially complete, Engineer will notify Contractor in writing giving the reasons therefor. C. If Engineer considers the Work substantially complete, Engineer will deliver to Owner a tentative certificate of Substantial Completion which shall fix the date of Substantial Completion. There shall be attached to the certificate a tentative list of items to be completed or corrected before final payment. Owner shall have seven days after receipt of the tentative certificate during which to make written objection to Engineer as to any provisions of the certificate or attached list. If, after considering such objections, Engineer concludes that the Work is not substantially complete, Engineer will, within 14 days after submission of the tentative certificate to Owner, notify Contractor in writing, stating the reasons therefor. If, after consideration of Owner's objections, Engineer considers the Work substantially complete, Engineer will, within said 14 days, execute and deliver to Owner and Contractor a definitive EJCDC C-700 Standard General Conditions of the Construction Contract Copyright (+ 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 56 of 62 00 72 05 certificate of Substantial Completion (with a revised tentative list of items to be completed or corrected) reflecting such changes from the tentative certificate as Engineer believes justified after consideration of any objections from Owner. D. At the time of delivery of the tentative certificate of Substantial Completion, Engineer will deliver to Owner and Contractor a written recommendation as to division of responsibilities pending final payment between Owner and Contractor with respect to security, operation, safety, and protection of the Work, maintenance, heat, utilities, insurance, and warranties and guarantees. Unless Owner and Contractor agree otherwise in writing and so inform Engineer in writing prior to Engineer's issuing the definitive certificate of Substantial Completion, Engineer's aforesaid recommendation will be binding on Owner and Contractor until final payment. E. Owner shall have the right to exclude Contractor from the Site after the date of Substantial Completion subject to allowing Contractor reasonable access to remove its property and complete or correct items on the tentative list. 14.05 Partial Utilization A. Prior to Substantial Completion of all the Work, Owner may use or occupy any substantially completed part of the Work which has specifically been identified in the Contract Documents, or which Owner, Engineer, and Contractor agree constitutes a separately functioning and usable part of the Work that can be used by Owner for its intended purpose without significant interference with Contractor's performance of the remainder of the Work, subject to the following conditions: 1. Owner at any time may request Contractor in writing to permit Owner to use or occupy any such part of the Work which Owner believes to be ready for its intended use and substantially complete. If and when Contractor agrees that such part of the Work is substantially complete, Contractor, Owner, and Engineer will follow the procedures of Paragraph 14.04.A through D for that part of the Work. 2. Contractor at any time may notify Owner and Engineer in writing that Contractor considers any such part of the Work ready for its intended use and substantially complete and request Engineer to issue a certificate of Substantial Completion for that part of the Work. 3. Within a reasonable time after either such request, Owner, Contractor, and Engineer shall make an inspection of that part of the Work to determine its status of completion. If Engineer does not consider that part of the Work to be substantially complete, Engineer will notify Owner and Contractor in writing giving the reasons therefor. If Engineer considers that part of the Work to be substantially complete, the provisions of Paragraph 14.04 will apply with respect to certification of Substantial Completion of that part of the Work and the division of responsibility in respect thereof and access thereto. 4. No use or occupancy or separate operation of part of the Work may occur prior to compliance with the requirements of Paragraph 5.10 regarding property insurance. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 57 of 62 00 72 05 14.06 Final Inspection A. Upon written notice from Contractor that the entire Work or an agreed portion thereof is complete, Engineer will promptly make a final inspection with Owner and Contractor and will notify Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies. 14.07 Final Payment A. Application for Payment.- 1. ayment: 1. After Contractor has, in the opinion of Engineer, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance, certificates of inspection, marked -up record documents (as provided in Paragraph 6.12), and other documents, Contractor may make application for final payment following the procedure for progress payments. 2. The final Application for Payment shall be accompanied (except as previously delivered) by: a. all documentation called for in the Contract Documents, including but not limited to the evidence of insurance required by Paragraph 5.04.B.6; b. consent of the surety, if any, to final payment; c. a list of all Claims against Owner that Contractor believes are unsettled; and d. complete and legally effective releases or waivers (satisfactory to Owner) of all Lien rights arising out of or Liens filed in connection with the Work. 3. In lieu of the releases or waivers of Liens specified in Paragraph 14.07.A.2 and as approved by Owner, Contractor may furnish receipts or releases in full and an affidavit of Contractor that: (i) the releases and receipts include all labor, services, material, and equipment for which a Lien could be filed; and (ii) all payrolls, material and equipment bills, and other indebtedness connected with the Work for which Owner might in any way be responsible, or which might in any way result in liens or other burdens on Owner's property, have been paid or otherwise satisfied. If any Subcontractor or Supplier fails to furnish such a release or receipt in full, Contractor may furnish a bond or other collateral satisfactory to Owner to indemnify Owner against any Lien. B. Engineer's Review of Application and Acceptance: 1. If, on the basis of Engineer's observation of the Work during construction and final inspection, and Engineer's review of the final Application for Payment and accompanying documentation as required by the Contract Documents, Engineer is satisfied that the Work has been completed and Contractor's other obligations under the Contract Documents have been fulfilled, Engineer will, within ten days after receipt of the final Application for EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved Page 58 of 62 00 72 05 Payment, mciicate in writing Engineer's recommendation of payment and present the Application for Payment to Owner for payment. At the same time Engineer will also give written notice to Owner and Contractor that the Work is acceptable subject to the provisions of Paragraph 14.09. Otherwise, Engineer will return the Application for Payment to Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case Contractor shall make the necessary corrections and resubmit the Application for Payment. C. Payment Becomes Due: 1. Thirty days after the presentation to Owner of the Application for Payment and accompanying documentation, the amount recommended by Engineer, less any sum Owner is entitled to set off against Engineer's recommendation, including but not limited to liquidated damages, will become due and will be paid by Owner to Contractor. 14.08 Final Completion Delayed A. It through no fault of Contractor, final completion of the Work is significantly delayed, and if Engineer so confirms, Owner shall, upon receipt of Contractor's final Application for Payment (for Work fully completed and accepted) and recommendation of Engineer, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance to be held by Owner for Work not fully completed or corrected is less than the retainage stipulated in the Agreement, and if bonds have been furnished as required in Paragraph 5.01, the written consent of the surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by Contractor to Engineer with the Application for such payment. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of Claims. 14.09 Waiver of Claims A. The making and acceptance of final payment will constitute: 1. a waiver of all Claims by Owner against Contractor, except Claims arising from unsettled Liens, from defective Work appearing after final inspection pursuant to Paragraph 14.06, from failure to comply with the Contract Documents or the terms of any special guarantees specified therein, or from Contractor's continuing obligations under the Contract Documents; and 2. a waiver of all Claims by Contractor against Owner other than those previously made in accordance with the requirements herein and expressly acknowledged by Owner in writing as still unsettled. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Profemional Engineers for EJCDC. All rights reserved. Page 59 of 62 00 72 05 ARTICLE 15 -- SUSPENSION OF WORK AND TERMINATION 15.01 Owner May Suspend Work A. At any time and without cause, Owner may suspend the Work or any portion thereof for a period of not more than 90 consecutive days by notice in writing to Contractor and Engineer which will fix the date on which Work will be resumed. Contractor shall resume the Work on the date so fixed. Contractor shall be granted an adjustment in the Contract Price or an extension of the Contract Times, or both, directly attributable to any such suspension if Contractor makes a Claim therefor as provided in Paragraph 10.05. 15.02 Owner May Terminate for Cause A. The occurrence of any one or more of the following events will justify termination for cause: 1. Contractor's persistent failure to perform the Work in accordance with the Contract Documents (including, but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the Progress Schedule established under Paragraph 2.07 as adjusted from time to time pursuant to Paragraph 6.04); 2. Contractor's disregard of Laws or Regulations of any public body having jurisdiction; 3. Contractor's repeated disregard of the authority of Engineer; or 4. Contractor's violation in any substantial way of any provisions of the Contract Documents. B. If one or more of the events identified in Paragraph 15.02.A occur, Owner may, after giving Contractor (and surety) seven days written notice of its intent to terminate the services of Contractor: 1. exclude Contractor from the Site, and take possession of the Work and of all Contractor's tools, appliances, construction equipment, and machinery at the Site, and use the same to the full extent they could be used by Contractor (without liability to Contractor for trespass or conversion); 2. incorporate in the Work all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere; and 3. complete the Work as Owner may deem expedient. C. If Owner proceeds as provided in Paragraph 15.02.13, Contractor shall not be entitled to receive any further payment until the Work is completed. If the unpaid balance of the Contract Price exceeds all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Owner arising out of or relating to completing the Work, such excess will be paid to Contractor. If such claims, costs, losses, and damages exceed such unpaid balance, Contractor shall pay the difference to Owner. Such claims, costs, losses, and damages incurred by Owner will be reviewed by Engineer as to their reasonableness and, when so approved by Engineer, incorporated in a Change Order. When exercising any rights or EJCDC C-700 standard General Conditions of the Construction Contract Copyright CD 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 60 of 62 00 72 05 remedies under this Paragraph, Owner shall not be required to obtain the lowest price for the Work performed. D. Notwithstanding Paragraphs 15.02.13 and 15.02.C, Contractor's services will not be terminated if Contractor begins within seven days of receipt of notice of intent to terminate to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt of said notice. E. Where Contractor's services have been so terminated by Owner, the. termination will not affect any rights or remedies of Owner against Contractor then existing or which may thereafter accrue. Any retention or payment of moneys due Contractor by Owner will not release Contractor from liability. F. If and to the extent that Contractor has provided a performance bond under the provisions of Paragraph 5.0l.A, the termination procedures of that bond shall supersede the provisions of Paragraphs 15.02.13 and 15..02.C. 15.03 Owner May Terminate For Convenience A. Upon seven days written notice to Contractor and Engineer, owner may, without cause and without prejudice to any other right or remedy of Owner, terminate the Contract. In such case, Contractor shall be paid for (without duplication of any items): 1. completed and acceptable Work executed in accordance with the Contract Documents prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such Work; 2. expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses; 3. all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred in settlement of terminated contracts with Subcontractors, Suppliers, and others; and 4. reasonable expenses directly attributable to termination. B. Contractor shall not be paid on account of loss of anticipated profits or revenue or other economic loss arising out of or resulting from such termination. 15.04 Contractor May Stop Work or Terminate A. If, through no act or fault of Contractor, (i) the Work is suspended for more than 90 consecutive days by Owner or under an order of court or other public authority, or (ii) Engineer fails to act on any Application for Payment within 30 days after it is submitted, or (iii) Owner fails for 30 days to pay Contractor any sum finally determined to be due, then Contractor may, EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 61 of 62 00 72 05 upon seven days written notice to Owner and Engineer, and provided Owner or Engineer do not remedy such suspension or failure within that time, terminate the Contract and recover from Owner payment on the same terms as provided in Paragraph 15.03. B. In lieu of terminating the Contract and without prejudice to any other right or remedy, if Engineer has failed to act on an Application for Payment within 30 days after it is submitted, or Owner has failed for 30 days to pay Contractor any sum finally determined to be due, Contractor may, seven days after written notice to Owner and Engineer, stop the Work until payment is made of all such amounts due Contractor, including interest thereon. The provisions of this Paragraph 15.04 are not intended to preclude Contractor from making a Claim under Paragraph 10.05 for an adjustment in Contract Price or Contract Times or otherwise for expenses or damage directly attributable to Contractor's stopping the Work as permitted by this Paragraph. ARTICLE 16 — DISPUTE RESOLUTION 16.01 Methods and Procedures A. Either Owner or Contractor may request mediation of any Claim submitted to Engineer for a decision under Paragraph 10.05 before such decision becomes final and binding. The mediation will be governed by the Construction Industry Mediation Rules of the American Arbitration Association in effect as of the Effective Date of the Agreement. The request for mediation shall be submitted in writing to the American Arbitration Association and the other party to the Contract. Timely submission of the request shall stay the effect of Paragraph 10.05.E. B. Owner and Contractor shall participate in the mediation process in good faith. The process shall be concluded within 60 days of filing of the request. The date of termination of the mediation shall be determined by application of the mediation rules referenced above. C. If the Claim is not resolved by mediation, Engineer's action under Paragraph 10.05.0 or a denial pursuant to Paragraphs 10.05.C.3 or 10.05.1) shall become final and binding 30 days after termination of the mediation unless, within that time period, Owner or Contractor: 1. elects in writing to invoke any dispute resolution process provided for in the Supplementary Conditions; or 2. agrees with the other party to submit the Claim to another dispute resolution process; or 3. gives written notice to the other party of the intent to submit the Claim to a court of competent jurisdiction. ARTICLE 17 — MISCELLANEOUS 17.01 Giving Notice A. Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have been validly given if EJCDC C-700 Standard General Conditions of the Construction Contract Copyright ® 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 62 of 62 00 72 05 1. delivered in person to the individual or to a member of the firm or .to an officer of the corporation for whom it is intended; or 2. delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. 17.02 Computation of Times A. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day will be omitted from the computation. 17.03 Cumulative Remedies A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of� any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee, or by other provisions of the Contract Documents. The provisions of this Paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply. 17.04 Survival of Obligations A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor. 17.05 Controlling Law A. This Contract is to be governed by the law of the state in which the Project is located. 17.06 Headings A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions. EJCDC C-706 Standard General Conditions of the Construction Contract Copyright 0 2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 63 of 62 00 72 05 SECTION 00 73 05 SUPPLEMENTARY CONDITIONS These Supplementary Conditions amend or supplement the Standard General Conditions of the Construction Contract (No. C-700, 2007 Edition) and other provisions of the Contract Documents as indicated below. All provisions which are not so amended or supplemented remain in full force and effect. The terms used in these Supplementary Conditions have the meanings stated in the General Conditions. Additional terms used in these Supplementary Conditions have the meanings stated below, which are applicable to both the singular and plural thereof. The address system used in these Supplementary Conditions is the same as the address system used in the General Conditions, with the prefix "SC" added thereto. ARTICLE 1 - DEFINITIONS AND TERMINOLOGY SC -1.01.A44 Add the following language at the end of the definition of Substantial Completion: The Work is considered Substantially Complete when the following have been completed: 1. All demolition and removal work. 2. Utility disconnects. 3. Aggregate backfill. 4. Restoration. SC -1.02 Add the following new paragraph immediately after Paragraph 1.02.F: G. The Specifications are written in imperative mood and streamlined form. This imperative language is directed to the Contractor, unless specifically noted otherwise. The words "shall be" are included by inference where a colon (:) is used within sentences or phrases. ARTICLE 2 - PRELIMINARY MATTERS SC -2.02 Owner shall furnish to Contractor 1 printed copy and 1 electronic (PDF) version of the Contract Documents. Additional printed copies may be obtained as directed in the Advertisement for Bids. Limitations of use of electronic and printed documents are described in the Instructions to Bidders, General Conditions. ARTICLE 4 — AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS SC -4.02 Add the following new paragraphs immediately after Paragraph 4.02.B: C. The following reports of explorations and tests of subsurface conditions at or contiguous to the Site are known to Owner: 1. Report dated July 31, 2006, prepared by Land America Assessment Corporation, Charlotte, North Carolina, entitled: "Phase I Environmental Site Assessment". 2. Report dated May 2, 2011, prepared by Partner Engineering and Science Inc, EI Segundo, California, entitled: "Phase I Environmental Site Assessment". SUPPIf-MENTARY CONi]il ONS © 2012 Sta bec 1 193801635 007305-1 3. Drawing dated September 8, 1971, of the Kmart for the S.S. Kresge Co., prepared by Richard L Bowen AIA and Associates, Cleveland, Ohio, entitled: "Auto Service Center Floor Plan" consisting of 1 sheet numbered A-8. 4. Drawing dated September 8, 1971, of the Kmart for the S.S. Kresge Co., prepared by Richard L Bowen AIA and Associates, Cleveland, Ohio, entitled: "First Floor Plan" consisting of 1 sheet numbered A-1. 5. Drawing dated December 30, 1971, of the Kmart for the S.S. Kresge Co., prepared by Richard L Bowen AIA and Associates, Cleveland, Ohio, entitled: "Grading Plan" consisting of 1 sheet numbered 1. 6. Drawing dated November 12, 1971, of the Kmart for the S.S. Kresge Co., prepared by Richard L Bowen AIA and Associates, Cleveland, Ohio, entitled: "Mezzanine Plan" consisting of 1 sheet numbered A-2. 7. Drawing dated November 29, 1971, of the Kmart for the S.S. Kresge Co., prepared by Richard L Bowen AIA and Associates, Cleveland, Ohio, entitled: "San. & Elec. Easements" consisting of 1 sheet numbered 3. 8. Drawing dated December 30, 1971, of the Kmart for the S.S. Kresge Co., prepared by Richard L Bowen AIA and Associates, Cleveland, Ohio, entitled: "Site Plan" consisting of 1 sheet numbered 2. 9. Drawing dated December 16, 1971, of the Kmart for the S.S. Kresge Co., prepared by Richard L Bowen AIA and Associates, Cleveland, Ohio, entitled: "Utility Plan" consisting of 1 sheet numbered A-1. 10. Drawing dated September 24, 1979, Drive -In Expansion, New Hope State Bank, New Hope, Minn.", prepared by SAI Shea Architects, Inc, Minneapolis, Minnesota, entitled: "Site Plan" consisting of 1 sheet numbered A. 11. Drawing dated September 27, 1976, Drive -In Facility for New Hope State Bank, New Hope, Minnesota", prepared by Henningson, Durham & Richardson, entitled: "Floor Plan" consisting of 1 sheet numbered A2. E. The reports and drawings identified above are not part of the Contract Documents, but the "technical data" contained therein upon which Contractor may rely, as expressly identified and established above, are incorporated in the Contract Documents by reference. Contractor is not entitled to rely upon any other information and data known to or identified by Owner or Engineer. F. Copies of reports and drawings identified in SC -4.02.0 and SC -4.02.D that are not included with the Bidding Documents may be provided upon request. This is a mandatory Supplementary Condition. GC -4.06 contemplates the identification of all known documents regarding Hazardous Environmental Conditions (HEC) that have been identified at the Site. Use the first version of SC - 4.06, presented immediately below, to identify the know HEC documents. If no HEC documents are know, then use the second version of SC -4.06 below. SUPPLEMENTARY CONDMONS © 2012 Stanbec 1 193801635 007305-2 SC -4.06 Add the following subparagraphs 4.06.A.1 and 4.06.A.2: 12. The following reports regarding Hazardous Environmental Conditions at the Site are known to Owner: a. Report dated July 31, 2006, prepared by LandAmerica Assessment Corporation, Charlotte, North Carolina, entitled: "Phase I Environmental Site Assessment". b. Report dated May 2, 2011, prepared by Partner Engineering and Science Inc, EI Segundo, Califomia, entitled: "Phase I Environmental site Assessment". None of the contents of such drawings is "technical data" on which Contractor may rely. ARTICLE 5 - BONDS AND INSURANCE SC -5.01 Add the following new paragraph immediately after Paragraph 5.01.C: D. Separate Performance and Payment Bonds should be submitted utilizing EJCDC.Form C-610 and C-615 (2007 Edition) or a similar bond form if approved by Owner. SC -5.04 Add the following new paragraph immediately after Paragraph 5.04.6: C. The limits of liability for the insurance required by Paragraph 5.04 of the General Conditions shall provide coverage for not less than the following amounts or greater where required by Laws and Regulations: 1. Worker's Compensation and related coverages under Paragraphs 5.04.A.1 and A.2 of the General Conditions a. State Statutory b. Applicable Federal (e.g., Longshoreman's) Statutory c. Employer's Liability $1,000,000 2. Contractor's General Liability under Paragraphs 5.04.A.3 through A.6 of the General Conditions, which shall include completed operations and product liability coverage_ s and eliminate the exclusion with respect to property under the care, custody and control of Contractor a. General Aggregate $2,000,000 b. Products - Completed Operations Aggregate $1,000,000 c. Personal and Advertising Injury $1,000,000 d. Each Occurrence (Bodily Injury and Property Damage) $2,000,000 e. Property Damage liability insurance will provide Explosion, Collapse, and Underground coverages where applicable. f. Excess or Umbrella Liability 1) General Aggregate $1,000,000 2) Each Occurrence $1,000,000 Umbrella excess liability shall be a combined single limit which shall provide excess liability insurance over Commercial General Liability, Comprehensive Automobile Liability, and Employers Liability. 3. Automobile Liability under Paragraph 5.04.A.6 of the General Conditions: a. Combined Single Limit - Bodily injury and property damage. All owned, non -owned, and hired vehicles. $2,000,000 4. The Contractual Liability coverage required by Paragraph 5.04.B.4 of the General Conditions shall provide coverage for not less than the following amounts: a. Bodily Injury: Each Person $1,000,000 Each Accident $1,000,000 SUPPLEMENTARY CONDMONS © 2012 Stantec - 193801635 007305-3 b. Property Damage: Each Accident $1,000,000 Annual Aggregate $1,000,000 6. The following persons or entities small be included as additional insured on the Commercial Liability, Comprehensive Automobile Liability, and Umbrella Excess Liability. This coverage shall be primary and noncontributory: a. Owner b. Engineer SC -5.06.A Amend the first sentence of Paragraph 5.06.A to read: A. Contractor shall purchase and maintain during the entire construction period a Builders Risk Property Insurance Policy in the amount of the full replacement cost of the entire Work at the Site. The insurance policy shall comply with the provisions of Paragraph 5.06.A1 through 5.06.A7. A minimum deductible of $1,000 each claim shall apply to this insurance and the risk of loss of the applicable deductible shall be born by Contractor, subcontractor, or others suffering such loss. In addition, the provisions of Paragraphs 5.07, 5.09, and 5.10 shall apply with the exception that Contractor shall act as fiduciary for the insureds as their interest may appear and adjust the loss with the insurance company. SC -5.06.A Add the following new item immediately after Item 5.06.A7: 8. The Builder's Risk Insurance required herein shall apply to projects involving construction of structures and buildings only. The requirements of this Section shall be waived on projects involving only underground utilities, grading, street improvements, and similar construction work but any damage or loss to property shall be at the sole responsibility of Contractor until final acceptance of the Work. 9. Comply with the requirements of Paragraph 5.06C of the General Conditions. ARTICLE 6 - CONTRACTOR'S RESPONSIBILITIES SC -6.06 Add the following new paragraphs immediately after Paragraph 6.06.G: K Pursuant to Minnesota Statute, Contractor shall be fully responsible to pay subcontractors, suppliers, and other entities within 10 days of the Contractor's receipt of payment for undisputed services provided by the subcontractor, supplier, or other entity. Contractor shall pay interest of 1-1/2 percent per month or any part of a month to the subcontractor, supplier, or other entity on any amount not paid on time to the subcontractor, supplier, or other entity. The minimum monthly interest penalty payment for an unpaid balance of $100 or more is $10. For an unpaid balance of less than $100, the Contractor shall pay the actual penalty due to the subcontractor, supplier, or other entity. A subcontractor, supplier, or other entity who prevails in a civil action to collect interest penalties from a Contractor must be awarded its costs and disbursements, including attorney's fees included in bringing the action. I. Owner may furnish to any Subcontractor or Supplier, to the extent practicable, information about amounts paid to Contractor on account of Work performed for Contractor by a particular Subcontractor or Supplier. SC -6.08.A Amend the first sentence of Paragraph 6.08.A by replacing the words "the Supplementary Conditions" with the words "Division 01." © 2012 Stantec 1193801635 SUPPLEMENTARY CONDITIONS 007305-4 SC -6.17 Add the following new paragraphs immediately after Paragraph 6.17.E: F. Contractor shall furnish required submittals with sufficient information and accuracy in order to obtain required approval of an item with no more than three submittals. Engineer will record Engineer's time for reviewing subsequent submittals of Shop Drawings, samples, or other items requiring approval and Contractor shall reimburse Owner for Engineer's charges for such time. G. In the event that Contractor requests a change of a previously approved item, Contractor shall reimburse Owner for Engineer's charges for its review time unless the need for such change is beyond the control of Contractor. SC -6.19.A Delete the words "representation of" in the second sentence. ARTICLE 7 - OTHER WORK AT THE SITE ARTICLES - OWNER'S RESPONSIBILITIES ARTICLE 9 - ENGINEER'S STATUS DURING CONSTRUCTION SC -9.03 Add the following new paragraphs immediately after Paragraph 9.03.A: B. Engineer shall furnish a Resident Project Representative (" RPR') to assist Engineer in observing progress and quality of the Work. The RPR may provide full time representation or may provide representation to a lesser degree. C. The duties and responsibilities of the RPR are limited to those of Engineer in the Agreement with the Owner and in the Contract Documents, and are further limited and described as follows: 1. General: RPR is Engineer's agent at the Site, will act as directed by and under the supervision of Engineer, and will confer with Engineer regarding RPR's actions. RPWs dealings in matters pertaining to the Contractor's work in progress shall in general be with Engineer and Contractor, keeping Owner advised as necessary. RPR's dealings with subcontractors shall only be through or with the full knowledge and approval of Contractor. RPR shall generally communicate with Owner with the knowledge of and under the direction of Engineer. 2. Schedules: Review the progress schedule, schedule of Submittals, and schedule of values prepared by Contractor and consult with Engineer concerning acceptability. 3. Conferences and Meetings: Attend meetings with Contractor, such as preconstruction conferences, progress meetings, job conferences and other project - related meetings, and prepare and circulate copies of minutes thereof. 4. Liaison: a. Serve as Engineer's liaison with Contractor, working principally through Contractor's superintendent and assist in understanding the intent of the Contract Documents. b. Assist Engineer in serving as Owner's liaison with Contractor when Contractor's operations affect Owner's on Site operations. c. Assist in obtaining from Owner additional details or information; when required for proper execution of the Work. 5. Interpretation of Contract Documents: Report to Engineer when clarifications and interpretations of the Contract Documents are needed and transmit to Contractor clarifications and interpretations as issued by Engineer. 6. Shop Drawings and Samples. a. Record date of receipt of Samples and approved Shop Drawings. SUPPLEMENTARY CONDITIONS Qc 2012 Stantm 1193801635 007305-5 b. Receive Samples, which are furnished at the Site by Contractor, and notify Engineer of availability of Samples for examination. c. Advise Engineer and Contractor of the commencement of any portion of the Work requiring a Shop Drawing or Sample submittal for which RPR believes that the submittal has not been approved by Engineer. 7. Modifications: Consider and evaluate Contractor's suggestions for modifications in Drawings or Specifications and report with RPR's recommendations to Engineer. Transmit to Contractor in writing decisions as issued by Engineer. 8. Review of Work and Rejection of Defective Work: a. Conduct on Site observations of Contractor's work in progress to assist Engineer in determining if the Work is in general proceeding in accordance with the Contract Documents. b. Report to Engineer whenever RPR believes that any part of Contractor's work in progress will not produce a completed Project that conforms generally to the Contract Documents or will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents, or has been damaged, or does not meet the requirements of any inspection, test or approval required to be made; and advise Engineer of that part of work in progress that RPR believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval. 9. inspections, Tests, and System Startups: a. Consult with Engineer in advance of scheduled major inspections, tests, and systems startups of important phases of the Work. b. Verify that tests, equipment, and systems start-ups and operating and maintenance training are conducted in the presence of appropriate Owner's personnel, and that Contractor maintains adequate records thereof. c. Observe, record, and report to Engineer appropriate details relative to the test procedures and systems startups. d. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections, and report to Engineer. 10. Records: a. Maintain at the Site orderly files for correspondence, reports of job conferences, reproductions of original Contract Documents including all Change Orders, Field Orders, Work Change Directives, Addenda, additional Drawings issued subsequent to the execution of the Contract, Engineer's clarifications and interpretations of the Contract Documents, progress reports, Shop Drawing and Sample submittals received from and delivered to Contractor, and other Project related documents. b. Prepare a daily report or keep a diary or log book, recording Contractor's hours on the Site, weather conditions, data relative to questions of Change Orders, Field Orders, Work Change Directives, or changed conditions, Site visitors, daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test procedures; and send copies to Engineer. c. Record names, addresses and telephone numbers of Contractor, subcontractors, and major suppliers of materials and equipment. d. Maintain records for use in preparing Project documentation. e. Upon completion of the Work, furnish original set of all RPR Project documentation to Engineer. © 2012 Stantec 193801635 SUPPLEMENTARY CONDITIONS 007305-6 11. Reports: a. Furnish to Engineer periodic reports as required of progress of the Work and of Contractor's compliance with the progress schedule and schedule of Submittals. b. Draft and recommend to Engineer proposed Change Orders, Work Change Directives, and Field Orders. Obtain backup material from Contractor. c. Furnish to Engineer and Owner copies of all inspection, test, and system startup reports. d. Report immediately to Engineer the occurrence of any Site accidents, any Hazardous Environmental Conditions, emergencies, or acts of God endangering the Work, and property damaged by fire or other causes. 12.. Payment Requests: Review Applications for. Payment with Contractor for compliance with the established procedure for their submission and forward with recommendations to Engineer, noting particularly the relationship of the payment requested to the schedule of values, Work completed, and materials and equipment delivered at the Site but not incorporated in the Work. 13. Certificates, Operation and Maintenance Manuals: During the course of the Work, verify that materials and equipment certificates, operation and maintenance manuals and other data required by the Specifications to be assembled and furnished by Contractor are applicable to the items actually installed and in accordance with the Contract Documents, and have these documents delivered to Engineer for review and forwarding to Owner prior to payment for that part of the Work. 14. Completion: a. Before Engineer issues a Certificate of Substantial Completion, submit to Contractor a list of observed items requiring completion or correction. b. Observe whether Contractor has arranged for inspections required by Laws and Regulations, including but not limited to those to be performed by public agencies having jurisdiction over the Work. c. Participate in a final inspection in the company of Engineer, Owner, and Contractor and prepare a final list of items to be completed or corrected. d. Observe whether all items on final list have been completed or corrected and make recommendations to Engineer concerning acceptance and issuance of the Notice of Acceptability of the Work. D. Resident Project Representative shall not: 1. Authorize any deviation from the Contract Documents or substitution of materials or equipment (including "or -equal" items). 2. Exceed limitations of Engineer's authority as set forth in the Agreement or the Contract Documents. 3. Undertake any of the responsibilities of Contractor, subcontractors, suppliers, or Contractor's superintendent. 4. Advise on, issue directions relative to or assume control over any aspect of the means, methods, techniques, sequences or procedures of Contractor's work unless such advice or directions are specifically required by the Contract Documents. 5. Advise on, issue directions regarding, or assume control over safety precautions and programs in connection with the activities or operations of Owner or Contractor. b. Partidpate in specialized field or laboratory tests or inspections conducted off Site by others, except as specifically authorized by Engineer. 7. Accept Shop Drawing or Sample submittals from anyone other than Contractor. 8. Authorize Owner to occupy the Project in whole or in part. SUPPLEMENTARY CONDMONS © 2012 Stanbec ; 193801635 007305-7 ARTICLE 10 - CHANGES IN THE WORK; CLAIMS SC -10.05.8 Amend the first sentence of Paragraph 10.053 by replacing the words "30 days" with the words "10 days." Amend the third sentence of Paragraph 10.05.6 by replacing the words "60 days" with the words "30 days." ARTICLE 11 - COST OF THE WORK; CASH ALLOWANCES; UNIT PRICE WORK SC-11.01.A.5.c Delete Paragraph 11.01.A.5.c in its entirety and insert the following in its place: c. Construction Equipment and Machinery: 1) Rentals of all construction equipment and machinery, and the parts thereof in accordance with rental agreements approved by Owner with the advice of Engineer, and the costs of transportation, loading, unloading, assembly, dismantling, and removal thereof. All such costs shall be in accordance with the terms of said rental agreements. The rental of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the Work. 2) Costs for equipment and machinery owned by Contractor will be paid at a rate shown for such equipment in the [Use rate book appropriate for the Project]. An hourly rate will be computed by dividing the monthly rates by 176. These computed rates will include all operating costs. Costs will include the time the equipment or machinery is in use on the changed Work and the costs of transportation, loading, unloading, assembly, dismantling, and removal when directly attributable to the changed Work. The cost of any such equipment or machinery, or parts thereof, shall cease to accrue when the use thereof is no longer necessary for the changed Work. Equipment or machinery with a value of less than $1,000 will be considered small tools. SC -11.03 Delete paragraph 11.03.13 in its entirety and insert the following in its place: D. Payment for the Bid Items on a Unit Price basis under this Contract shall be on the basis of quantities actually used in the construction, regardless of the estimated quantities shown in the Bid Form. No revision to the Contract Unit Prices for the Bid Items shall be considered or allowed due to variations of the actual quantities from the estimated amounts. ARTICLE 12 - CHANGE OF CONTRACT PRICE; CHANGE OF CONTRACT TIMES SC -12,01.0 Contractor's Fee. Delete the semicolon at the end of GC 12.01.C.2.c, and add the following language: , provided, however, that on any subcontracted work the total maximum fee to be paid by Owner under this subparagraph shall be no greater than 27 percent of the cost incurred by the Subcontractor who actually performs the work. ARTICLE 13 - TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK SC -13.07.A Amend the first sentence of Paragraph 13.07,A by striking out the words "one year" and inserting the words "two years." SUPPLEMENTARY CONDITIONS © 2012 Stantec 1 193801635 007305-8 ARTICLE 14- PAYMENTS TO CONTRACTOR AND COMPLETION SC -14.02.65 Add the following new item immediately after Item 14.02.135d: e. Contractor's failure to make acceptable submittals in accordance with the accepted schedules. ARTICLE 16 - DISPUTE RESOLUTION SC -16.01 Delete Paragraph 16.01.0 in its entirety and insert the following in its place: C. If the claim is not resolved by mediation, Engineer's action under Paragraph 10.05.0 or a denial pursuant to Paragraphs 10.05.C3 or 10.050 shall become final and binding 30 days after termination of the mediation, unless within that time period Owner or Contractor: 1. elects in writing to demand arbitration of the claim, pursuant to Paragraph SC -16.02, or 2. agrees with the other party to submit the claim to another dispute resolution process. SC -16.02 Add the following new paragraph immediately after Paragraph 16.01: 16.02 Arbitration A. All claims or counterclaims, disputes, or other matters in question between Owner and Contractor arising out of or relating to the Contract Documents or the breach thereof (except for claims which have been waived by the making or acceptance of Final Payment as provided by Paragraph 14.09), including but not limited to those not resolved under the provisions of Paragraphs SC -16.01.A and 16.01.6, will be decided by arbitration in accordance with the Construction Industry Dispute Resolutions Procedures of the American Arbitration Association then in effect subject to the conditions and limitations of this Paragraph SC -16.02. This agreement to arbitrate and any other agreement or consent to arbitrate entered into will be specifically enforceable under the prevailing law of any court having jurisdiction. B. The demand for arbitration will be filed in writing with the other party to the Contract and with the selected arbitrator or arbitration provider and a copy will be sent to Engineer for information. The demand for arbitration will be made within the 30 -day period specified in Paragraph SC -16.01.0 and in all other cases within a reasonable time after the daim or counterclaim, dispute, or other matter in question has arisen, and in no event shall any such demand be made after the date when institution of legal or equitable proceedings based on such claim or other dispute or matter in question would be barred by the applicable statue of limitations. C. No arbitration arising out of or relating to the Contract Documents shall include by consolidation, joinder, or in any other manner any other individual or entity (including Engineer, Engineer's consultants and the officers, directors, partners, agents, employees, or consultants of any of them) who is not a party to this Contract, unless: 1. the inclusion of such other individual or entity is necessary if complete relief is to be afforded among those who are already parties to the arbitration; and 2. such other individual or entity is substantially involved in a question of law or fact which is common to those who are already parties to the arbitration and which will arise in such proceedings. © 2012 Stantm 193801635 007305-9 D. The award rendered by the arbitrator(s) shall be consistent with the agreement of the parties in writing and include: (i) a concise breakdown of the award; (ii) a written explanation of the award specifically citing the Contract Document provisions deemed applicable and relied on in making the award. E. The award will be final. Judgment may be entered upon it in any court having jurisdiction thereof and it will not be subject to modification or appeal, subject to provisions of the Controlling Law relating to vacating or modifying an arbitral award. The fees and expenses of the arbitrators and any arbitration service shall be shared equally by Owner and Contractor. END OF SECTION SUPPLEMENTARY CONDITIONS © 2012 Stantec 193801635 007305-10 SECTION 01 10 00 SUMMARY PART I GENERAL 1.01 SUMMARY A. Section Includes 1. Basic description of the Project and Work restrictions. 1.02 PRICE AND PAYMENT PROCEDURES A. Measurement and Payment 1. All Work and costs of this Section shall be incidental to the Project and included in the Total Base Bid. 1.03 SUMMARY OF WORK A. Project Name: 4200 & 4300 Xylon Avenue North Building Demolition for the City of New Hope, Minnesota, City Project No. 893. B. Description of Work: Project consists of the demolition of the existing buildings at 4200 and 4300 Xylon Avenue North. 1.04 COMPLETION DATES A. Substantial Completion: Set forth in the Agreement. B. Final Completion: Set forth in the Agreement. 1.05 LIQUIDATED DAMAGES A. Provisions for liquidated damages, if any, are set forth in the Agreement. 1.06 WORK RESTRICTIONS A. Use of Site 1. Location of construction facilities, staging areas, product stockpiles, material storage, and temporary construction shall be completed on the Site as shown in the Drawings within the property lines. As shown on the Drawings, no construction work other than light pole and base removal will be permitted in the northwest corner of the Site. 2. Contractor is responsible for snow removal and disposal from the Owner's property if necessary to maintain access and working space during construction. 3. Keep existing driveways and entrances clear and available to the public and to the Owner. 4. If additional space is needed, obtain and pay for such space off Site. B. Access to Site 1. Construction access shall only beat the two locations identified on the Drawings. 2. Roads shall not be blocked during the construction. 3. No parking on Xylon Avenue North or 42nd Avenue will be allowed at any time. All parking shall be on Site. SUMMARY © 2012 Stantec 1193801635 01 10 00 -1 1.07 OTHER WORK AT SITE A. The disconnection of electric power, telephone lines, gas lines, and cable TV by private utilities shall be coordinated by the Contractor. The Contractor is responsible for any costs for disconnections of private utilities. B. Allow private utility crews free access to the Site and a reasonable amount of time to complete their work. PART 2 PRODUCTS Not Used. PART 3 EXECUTION Not Used. END OF SECTION @ 2012 Stantec 193801635 011000-2 SECTION 01 20 00 PRICE AND PAYMENT PROCEDURES PART 1 GENERAL 1.01 SUMMARY A. Section Includes 1. Administrative and procedural requirements for allowances, Alternates, pricing of Work, and request for payment procedures. 1.02 PRICE AND PAYMENT PROCEDURES A. Measurement and Payment 1. All Work and costs of this Section shall be incidental to the Project and included in the Total Base Bid. 1.03 BID UNIT PRICES A. Provide access and assist Engineer in determining actual quantities of Bid Unit Price work. B. Provide documentation to substantiate Bid Unit Price work. C. If the Contractor delivers and places more of any material that is paid for on a Bid Unit Price basis than is required to perform the Work and thereby causes the materials to be wasted, the quantity wasted will be deducted from the final measurement for that Bid Item. 1.04 PAYMENT PROCEDURES A. Engineer will provide an initial Application for Payment Form. B. Submit 1 preliminary copy of progress payment application for review, consistent with Article 14 of the General Conditions. Submit 4 signed copies of Application for Payment to Engineer prior to the dates identified at the Preconstruction Conference. C. Attach the following supporting documentation, in addition to the requirements of General Conditions Artide 14: 1. Documentation to substantiate Bid Unit Price work. 2. Updated construction schedule consistent with Section 0133 00. PART 2 PRODUCTS Not Used. PART 3 EXECUTION Not Used. END OF SECTION PRICE AND PAYMENT PROCEDURES © 2012 Stantec 193801635 012000-1 SECTION 01 31 00 PROTECT MANAGEMENT AND COORDINATION PART 1 GENERAL 1.01 SUMMARY A. Section Includes 1. General requirements for overall Project coordination. 1.02 PRICE AND PAYMENT PROCEDURES A. Measurement and Payment 1. All Work and costs of this Section shall be incidental to the Project and included in the Total Base Bid. 1.03 UTILITIES A. Notify Gopher State One Call before starting construction in a given area requesting utility locates in the Site. B. Project Utility Sources: Coordinate Work with the following utility owners. The following utilities are known to be on the Site and are shown on the Drawings in a general way: 1. Water: Owner. 2. Sanitary Sewer: Owner. 3. Storm Sewer: Owner, 4. Electric: Xcel Energy. S. Gas: CenterPoint Energy 5. Telephone: ARVIG Communication Systems 7. Cable TV: Comcast C. Owner requires a 48-hour notice for all utility interruptions. 1.04 PERMITS A. Comply with the stipulations of the rollowing permits, which have been applied for and will be furnished by the Owner: 1. MPCA Stormwater Discharges Associated With Construction Activities NPDES General Permit. B. Apply for, obtain, and comply with the provisions of the following permits, which the Owner will waive the permit application fee: 1. City Building Permit. C. Apply for, obtain, and comply with the provisions of the following permits: 1. UST Permit for Removal if applicable. D. Apply for, obtain, and comply with other permits, licenses, and approvals which may be required for the Project. E. Contractor is responsible for all costs associated with obtaining the required permits. PROJECT MANAGEMENT AND COORDINATION © 2012 Stantec 1 193601635 013100-1 1.05 SURVEYING AND CONSTRUCTION OBSERVATION A. Provide Engineer a minimum of 48-hour notice in advance of the need for establishing lines, grades, measurements, grade checks, and observation of Work. 1.06 PROJECT MEETINGS A. Administrative Requirements 1. Project Superintendent or persons designated by the Contractor to attend and participate in the Project meetings shall have all required authority to commit the Contractor to solutions agreed upon in the Project meetings. 2. Engineer will set the time, sites, and prepare the agenda for the meetings. 3. Engineer will prepare meeting minutes and distribute 1 copy to Contractor. Notify Engineer of inaccuracies or discrepancies in the meeting minutes within 5 calendar days of receipt of the minutes. 4. The attendance and cooperation of subcontractors and suppliers may be required. B. Preconstruction Conference 1. Provisions for the Preconstruction Conference are set forth in the General Conditions. 2. Requirements for preconstruction submittals are set forth in the General Conditions. Submittal procedures shall be consistent with Section 0133 00. C. Progress Meeting Procedures 1. Engineer will schedule construction progress meetings throughout the duration of the Project to assess the progress of the Work, identify and discuss Project related issues, and discuss near-term construction activities. PART 2 PRODUCTS Not Used. PART 3 EXECUTION Not Used. END OF SECTION PROJECT MANAGEMENT AND COORDINATION p 2012 Stantec 193801635 013100-2 SECTION 01 33 00 SUBMITTAL PROCEDURES PART 1 GENERAL 1.01 SUMMARY A. Section Includes 1. General procedures and requirements for submittals during the course of construction. 1.02 PRICE AND PAYMENT PROCEDURES A. Measurement and Payment 1. All Work and costs of this Section shall be incidental to the Project and included in the Total Base Bid. 1.03 SEQUENCING AND SCHEDULING A. Schedule submittals consistent with the Contractor's schedule of shop drawings. PART 2 PRODUCTS Not Used. PART 3 EXECUTION 3.01 CONSTRUCTION SCHEDULE A. Submit preliminary schedule and progress schedule consistent with the General Conditions. B. Prepare schedules showing overall sequence of construction. Organize the schedule by work activity. Identify separate stages of each work activity: 1. List work items in chronological sequence. Show beginning and completion dates of each activity. Include all activities with an estimated duration of 3 days or longer. 1 Format schedule as a horizontal bar chart: Provide separate bars for each activity or trade. 3. Provide space for revisions and notations. 4. Identify interrelations between activities. 5. Include estimated times for preparation of submittals by Contractor, processing and review of submittals by Engineer, fabrication, delivery, installation, testing, start-up, instruction of Owner, and clean-up. C. As Work progresses, revise, update, and resubmit schedule as requested by Engineer. At a minimum, update schedule with each Application for Payment. Show all activities started or finished since previous schedule was submitted and show percentage of completion for each activity. 3.02 EMERGENCY CONTACT LIST A. Before any Work at the Site is started, submit a typed list on 8.5 inch by 11 inch paper outlining 24-hour on-call contacts for the Project. This list shall include the Contractor's safety SUBMITTAL PROCEDURES © 2012 Stantec 193801635 013300-1 representative, key representatives from the Contractor, subcontractors, and suppliers. Include the following information for each contact: 1. Company name. 2. Contact person(s). 3. Local and mobile phone numbers. 4. Fax number. 3.03 SHOP DRAWINGS AND MANUFACTURERS' INFORMATION A. Conform to the requirements of the General Conditions, except as modified herein. B. The minimum sheet size shall be 8.5 inches by 11 inches. Non -legible copies will not be reviewed. C. Submit a minimum of 3 copies of shop drawings, plus the quantity of copies the Contractor wants returned. Each copy shall contain the following information: 1. Date of submission and date of any previous submittals. 2. Project Title. 3. Names Of: Contractor, subcontractor, supplier, and manufacturer. 4. Identification of product and Specification Section number. 5. Identification of revisions from previous submittals. 6. A 4 inch by 4 inch blank space for the Engineer's stamp. D. Engineer's review will be in conformance with the requirements of the General Conditions, except as modified herein. E. Engineer will stamp shop drawings and indicate requirements for Contractor's review or resubmittal as follows: 1. "Approved" — Appears that items covered by the submittal will, after installation or incorporation into the Work, conform to the Contract Documents and appears to be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. 2. "Approved as Noted" — Appears that items covered by the submittal will, after installation or incorporation into the Work, conform to the Contract Documents and appears to be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents, except as noted by Engineer. 3. "Revise and Resubmit"— Appears that items covered by the submittal will not, after installation or incorporation into the Work, conform to the Contract Documents and will not be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. Work cannot proceed until the submittal is revised and resubmitted conforming to the resubmittal procedures described in the General Conditions. 4. "Rejected" — Work covered by the submittal is not complete or it appears that items covered by the submittal will not, after installation or incorporation into the Work, conform to the Contract Documents and will not be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. Contractor shall conform to the resubmittal procedures described in the General Conditions. F. Engineer will return reviewed submittals to Contractor by U.S. Postal Service general delivery. If Contractor wants Engineer to expedite return delivery, Contractor shall notify Engineer in writing and reimburse Owner for delivery plus 15 -percent mark-up. 3.04 TEST REPORTS A. Submit 3 copies of all inspections, tests, and approvals required in the Specifications. O 2012 Stantec 193801635 SUBMrITAL PROCEDURES 013300-2 3.05 MATERIAL AND SAFETY DATA SHEETS A. Furnish Owner with current copies of Material Safety Data Sheets For all chemicals and products on Site. END OF SECTION SUBMITTAL PROCEDURES © 2012 Stantec 1 193801535 013300-3 SECTION 01 40 00 QUALITY REQUIREMENTS PART 1 GENERAL 1.01 SUMMARY A. Section Includes 1. Information required for conformance to regulatory requirements. 2, Quality assurance. 3. Procedures to measure and report the quality and performance of the Work. 1.02 PRICE AND PAYMENT PROCEDURES A. Measurement and Payment 1. All Work and costs of this Section shall be incidental to the Project and included in the Total Base Bid. 1.03 REFERENCE STANDARDS A. Whenever reference is made to the Minnesota Department of Transportation Specifications, such reference shall mean "Standard Specifications for Construction," 2005 Edition (MnDOT Spec.) and all subsequent revisions and supplements. The word "Engineer" is understood to refer to the Engineer for the Owner. 1.04 SUBMITTALS A. Prior to start of Work, submit testing laboratory name for various specified tests for approval by Engineer. B. Laboratory test results or analysis. C. Manufacturer's certificates of quality control or performance. 1.05 WORKMANSHIP A. Comply with industry standards of the region, except where more restrictive tolerances or specified requirements indicate more rigid standards or more precise workmanship. 1.06 TESTS AND INSPECTIONS A. Conform to the requirements of the General Conditions, except as modified herein. B. Notify Engineer 48 hours prior to expected time for operations requiring tests and inspections. C. Provide incidental labor and facilities to obtain and handle samples at Site or source, transport samples to laboratory, facilitate tests and inspections for storing and curing of test samples. 1.07 LABORATORY REPORTS A. After each inspection and test, submit 3 copies of Laboratory Report to Engineer. © 2012 Stantec 1 193801635 QUALITY REQUIREMENTS 014000-1 B. Include; Date issued, Project title and number, name of inspector, date and time of sampling or inspection, identification of product and Specifications Section, location in the Project, type of inspection or test, date of test, results of tests, and conformance with Contract Documents. 1.08 LABORATORY RESPONSIBILITIES A. Test samples and perform field tests. B. Provide qualified personnel. Cooperate with Engineer and Contractor in performance of services. C. Ascertain compliance with the requirements of the Contract Documents. D. When requested by Engineer, provide interpretation of test results. 1.09 LIMITS ON TESTING LABORATORY AUTHORITY A. Laboratory may not release, revoke, alter, or enlarge on requirements of Contract Documents. B. Laboratory may not approve or accept any portion of the Work. C. Laboratory may not assume any duties of Contractor. D. Laboratory has no authority to stop Work. 1.10 MANUFACTURER'S CERTIFICATES A. If requested by Engineer, submit manufacturer's certificate with shop drawings certifying that products meet or exceed specified requirements executed by responsible officer. 1.11 MANUFACTURER'S FIELD SERVICES A. Provide qualified representative to observe field conditions; conditions of surfaces and installation; quality of workmanship; start-up of equipment; and test, adjust, and balance of equipment. PART 2 PRODUCTS Not Used. PART 3 EXECUTION Not Used. END OF SECTION UALT rY REQUIREMENTS © 2012 Stantec 193801635 014000-2 SECTION 01 50 00 TEMPORARY FACILITIES AND CONTROLS PART 1 GENERAL 1.01 SUMMARY A. Section Includes 1. Temporary utilities and miscellaneous temporary facilities required during construction. B. Products furnished but not installed under this Section or products installed but not furnished under this Section. C. Related Sections 1. Section 3123 00 - Excavation and FII. 1.02 PRICE AND PAYMENT PROCEDURES A. Measurement and Payment 1. A Bid Item has been provided for Mobilization. Measurement is Lump Sum. This will be considered payment in full for all work and costs of this Bid Item. The amount of the Lump Sum Bid shall not exceed.5 percent of the Total Base Bid. a. Partial payment of the Lump Sum Bid Item "Mobilization" will be made using a percentage based on the following: 2. A Bid Item has been provided for Temporary Jersey Barrier (Access Closure). Measurement will be per lineal foot. Payment will include providing jersey barriers, placing at access points and moving jersey barriers as required for site security, until completion of the work. 3. A Bid Item has been provided for Security Fencing Installation and Removal. Measurement is Lump Sum. This shall be considered payment in full for all labor, equipment and materials associated with fencing to provide a secure site throughout construction. 4. A Bid Item has been provided for Traffic Control. Measurement is Lump Sum. a. This shall be considered payment in full for all labor, equipment, and materials associated with the required Traffic Control devices for the entire Project. b. This Bid Item shall Include but not be limited to fumishing, Installing, and relocating the Traffic Control due to various road closures, daily maintenance, and ultimate removal of all such devices used over theduration of the Contract or as directed by the Engineer: © 2012 5lantec 1 193801635 015000-1 Cumulative Percent of Mobilization Item Paid First Partial Payment, 50 Percent of original Contract amount earned - 25 70 Percent of original Contract amount earned - 50 90 Percent of original Contract amount earned -100 100 2. A Bid Item has been provided for Temporary Jersey Barrier (Access Closure). Measurement will be per lineal foot. Payment will include providing jersey barriers, placing at access points and moving jersey barriers as required for site security, until completion of the work. 3. A Bid Item has been provided for Security Fencing Installation and Removal. Measurement is Lump Sum. This shall be considered payment in full for all labor, equipment and materials associated with fencing to provide a secure site throughout construction. 4. A Bid Item has been provided for Traffic Control. Measurement is Lump Sum. a. This shall be considered payment in full for all labor, equipment, and materials associated with the required Traffic Control devices for the entire Project. b. This Bid Item shall Include but not be limited to fumishing, Installing, and relocating the Traffic Control due to various road closures, daily maintenance, and ultimate removal of all such devices used over theduration of the Contract or as directed by the Engineer: © 2012 5lantec 1 193801635 015000-1 c. Partial payment of the Lump Sum Item "Traffic Control" will be made using a percentage h;m-rl nn the fnllnwinn- 5. All other Work and costs of this Section shall be incidental to the Project and included in the Total Base Bid. 1.03 REFERENCES A. Minnesota Department of Transportation "Standard Specifications for Construction," 2005 Edition (MnDOT Spec.). B. The Minnesota Manual on Uniform Traffic Control Devices (MMUTCD), including the Field Manual on Temporary Traffic Control Zone Layouts — Latest edition. C. Minnesota Department of Transportation Traffic Engineering Manual. 1.04 SUBMITTALS A. Construction Staging Plan consistent with Section 0133 00, including the following information: 1. Sequence of construction and traffic control. 2. Streets closed or restricted during any stage of construction. 3. Provisions for routing any detoured traffic as permitted. 4. Specific signs, striping, and other traffic control devices to be utilized. B. Traffic Management Plan consistent with Section 0133 00, including the following information: 1. Haul and access routes. 2. Permits or applications required by local authorities. 3. Temporary facilities required. PART 2 PRODUCTS 1 •iWF77774'111 PART 3 EXECUTION 3.01 MOBILIZATION A. Move personnel, equipment, materials, and all other items required to complete the Work at the Site. B. Establish Contractor offices, building, or other facilities necessary for Work on the Project. C. Temporarily hold or relocate utilities and any miscellaneous structures, such as signs, power poles, guy wires, and mailboxes disturbed. © 2012 Stantec 193801635 TEMPORARY FACILMES AND CONTROLS 015000-2 Cumulative Percent of Traffic Control Item Paid First Partial Payment 50 Percent of original Contract amount earned — 25 70 Percent of original Contract amount earned — 50 90 Percent of original Contract amount earned —100 100 5. All other Work and costs of this Section shall be incidental to the Project and included in the Total Base Bid. 1.03 REFERENCES A. Minnesota Department of Transportation "Standard Specifications for Construction," 2005 Edition (MnDOT Spec.). B. The Minnesota Manual on Uniform Traffic Control Devices (MMUTCD), including the Field Manual on Temporary Traffic Control Zone Layouts — Latest edition. C. Minnesota Department of Transportation Traffic Engineering Manual. 1.04 SUBMITTALS A. Construction Staging Plan consistent with Section 0133 00, including the following information: 1. Sequence of construction and traffic control. 2. Streets closed or restricted during any stage of construction. 3. Provisions for routing any detoured traffic as permitted. 4. Specific signs, striping, and other traffic control devices to be utilized. B. Traffic Management Plan consistent with Section 0133 00, including the following information: 1. Haul and access routes. 2. Permits or applications required by local authorities. 3. Temporary facilities required. PART 2 PRODUCTS 1 •iWF77774'111 PART 3 EXECUTION 3.01 MOBILIZATION A. Move personnel, equipment, materials, and all other items required to complete the Work at the Site. B. Establish Contractor offices, building, or other facilities necessary for Work on the Project. C. Temporarily hold or relocate utilities and any miscellaneous structures, such as signs, power poles, guy wires, and mailboxes disturbed. © 2012 Stantec 193801635 TEMPORARY FACILMES AND CONTROLS 015000-2 3.02 TEMPORARY UTILITIES A. Provide and maintain all temporary facilities, utilities, and controls as long as needed for the safe and proper completion of the Work. Remove all temporary facilities, utilities, and controls as rapidly as progress will permit or as directed by Engineer. B. Temporary Water for Construction 1. Obtain water for construction from Owner at a hydrant. Obtain a meter and backflow prevent or assembly from Owner. Return to Owner at completion. There is no charge for meter use during construction. 2. Owner will pay for the costs of the water. 3.03 CONSTRUCTION FACILITIES A. Sanitary Facilities 1. Comply with all governing regulations, Including safety and health codes, for sanitary fixtures and facilities. 2. Provide self-contained toilet units, or water and sewer connected temporary toilet facilities, consistent with governing regulations. Contractor may not use Owner's toilet facilities. 3. Provide and maintain adequate supply of toilet tissue, paper towels, paper cups, and similar disposable materials appropriate for each facility. Provide appropriate covered waste containers for used material. 3.04 TRAFFIC CONTROL A. General 1. The Contractor shall provide and maintain all traffic control devices in accordance with the approved Construction Staging Plan. All traffic control devices and other protective measures shall conform to MMUTCD. 2. The Contractor will not be permitted to park vehicles as to obstruct a traffic control device. The parking of workers' vehicles will not be allowed within the Project limits, unless so approved by the Engineer. 3. The Contractor will not be permitted to store materials or equipment within 30 feet of through traffic, unless approved by the Engineer. If materials or equipment must be stored within 30 feet of through traffic, the Contractor shall provide barricades or barriers, as directed by the Engineer, to warn and protect traffic. 4. The Contractor shall conduct Work in a manner which will allow access to all properties within and adjacent to the Project by fire, police, and emergency vehicles. 5. The Contractor is responsible to maintain all unpaved surfaces. The surface shall be watered and bladed as directed by the Engineer. B. Construction Staging Plan 1. Within 10 days following the approval of the Contract, the Contractor shall provide the Engineer with a Construction Staging Plan and a Traffic Management Plan. The Engineer may accept, reject, or suggest alterations to the plans. These plans shall reflect the following conditions: a. The Contractor shall provide a method of protecting traffic from open excavation areas. 2. All Contractors', subcontractors', and suppliers' mobile equipment, which are working in the lane closure or within 15 feet of the lane closure, shall be equipped with operable warning lights which meet the appropriate requirements of the SAE Specifications. This would include any vehicle which enters the traveled roadway at any time. The SAE Specification requirements are as follows: a. 360 -Degree Rotating Lights - SAE Specification 3845. TEMPORARY FACIUMES AND CONTROLS O 2012 Stantec 1193801635 015000-3 b. Flashing Lights - SAE Specification 1595. C. Flashing Strobe Lights - SAE Specification 11318. C. Temporary Lane Closures 1. Temporary Lane Closures shall conform to the following: a. A "short-term" lane closure or traffic restriction shall be one that is in-place only during the Contractor's work hours. b. Temporary "short-term" lane closures by the Contractor, consistent with time restrictions, will be permitted during those hours and at those locations approved by the Engineer. Requests for "short-term" lane closures shall be made at least 24 hours prior to such closures. The Contractor shall furnish, erect, and maintain all traffic control devices required for these closures. No direct compensation will be made for temporary lane closures. c. Application of traffic control devices shall be in accordance with the Field Manual. d. Lane closures will not be permitted during inclement weather, nor any other time when, in the opinion of the Engineer, the lane closures will be a hazard to traffic. e. When a temporary lane closure is used by the Contractor, the closure shall be incidental work and no direct compensation will be -made therefore. D. Traffic Control Devices I. Daily inspect and insure that all traffic control devices required by the construction are in accordance with the MMUTCD. Any discrepancy between the actual devices in use and the required devices shall be immediately rectified. At least 1 nighttime inspection shall be made each week. 3.05 TEMPORARY BARRIERS AND ENCLOSURES A. Temporary Barriers 1. Provide temporary covers, enclosures, markers, and barriers as necessary to protect Work. 2. Damage to the Site caused by removal of temporary fencing, including portholes, shall be promptly repaired by Contractor. During removal at no time shall the Work remain unattended if a dangerous condition exists because of incomplete removal or Site repairing. B. Temporary Security Fence 1. Install as needed during the demolition of the existing buildings. 2. Maintain and repair fence throughout the duration of the Project. 3. Provide Owner and Engineer with keys or combinations to any locks that may be used to secure fencing gates. 3.,06 ADDITIONAL TRAFFIC CONTROL DEVICES A. General 1. In addition to the traffic control devices shown on the Traffic Control Layouts, the Engineer may require more traffic control as traffic conditions may warrant. 2. The Contractor shall furnish the additional traffic control devices as ordered by the Engineer. 3. The devices shall be installed and maintained in a functional and/or legible condition at all times, to the satisfaction of the Engineer. END OF SECTION © 2012 Stantec 1 193801635 P15006-4 TRAFFIC CONTROL CHECKLIST ITEM HOW MANY? 1. Are any devices missing? Q Yes J! No Do any devices need repair? �] Yes No Were all replaced or repaired? 0- Yes No 2. Are any lights (flashers, etc) D Yes 0. No not functioning? Were they all replaced or repaired i- Yes No 3. Are any devices Improperly placed? 17 Yes No Were all positions corrected? Yes No 4. Do any devices need cleaning? ', Yes % No Where all devices cleaned? Yes No ADDITIONAL COMMENTS: The above check was completed by on: at: (time) (name / title) FJ AM 0 PM SECTION 01 57 13 TEMPORARY EROSION AND SEDIMENT CONTROL PART 1 GENERAL 1.01 SUMMARY A. Section Includes 1. Managing storm water runoff and other Project related water discharges to minimize sediment pollution during construction. 1.02 PRICE AND PAYMENT PROCEDURES A. Measurement and Payment 1. Bid Items have been provided for temporary measures to control soil erosion and sedimentation. Payment at the Bid Unit Price will be considered compensation in full for all Work necessary to complete the Bid Item in full, including installation, maintenance, sediment removal, repairs, and removals. 2. Measurement will be based upon the units as listed below for Bid Items removed, abandoned, or salvaged complete as specified. No measurement will be made of any removals that are not required. The actual quantity installed multiplied by the appropriate Bid Unit Price will be compensation In full for all Work and costs of the following Bid Items. 80 -percent partial payment will be made upon installation and 20 -percent payment will be made upon removal and restoration a. Silt Fence: Payment will be by type. Measurement will be along the base of the fence, from outside to outside of the end posts for each section of fence. b. Inlet Protection: Measurement will be by each installed in accordance with the details in the Drawings. c. Temporary Construction Entrance: Measurement will be by weight of rock or wood mulch installed. Filter fabric and other materials shall be incidental. d. Water for Dust Control will be incidental. 3. All other Work and costs of this Section shall be incidental to the Project and included in the Total Base Bid. B. Related Sections 1. Section 3123 00 Excavation and Fill, 1.03 REFERENCES A. Minnesota Department of Transportation "Standard Specifications for Construction," 2005 Edition (Mn DOT Spec.) 1. 2130 — Application of Water. 2. 2573 — Storm Water Management. 3. 2575 — Controlling Erosion and Establishing Vegetation. B. MPCA's NPDES General Stormwater Permit for Construction Activity. 1.04 SUBMITTALS A. Completed application form for the MPC4's NPDES General Stormwater Permit for Construction Activity (MN R100001) conforming to Section 0133 00 1. NPDES permit inspection log resulting from weekly Site inspections. TEMPORARY EROSION AND SEDIMENT CONTROL © 2012 Stantec 1 193801635 015713-1 2. Amendments to the Stormwater Pollution Prevention Plan (SWPPP) for the Project. 3. Completed form for MPCA's Notice of Termination. B. Contractor Prepared Schedules and Plans 1. Erosion Control Schedule: Conforming to MnDOT Spec. 1717.2D and submitted each week that construction is active. 2. Site plans in conformance with MnDOT Spec. 1717.2E a. Submitted when requested by the Engineer. b. Site plans prepared by Contractor will indicate Contractor operations, erosion and sediment control measures, and a schedule of starting and completion times. C. Certification and Sampling 1. Furnish a manufacturer's certification stating that the material supplied conforms to the requirements of this Section. The certification shall include or have attached typical results of tests for the specified properties, representative of the materials supplied. 1.05 QUALITY ASSURANCE A. Erosion Control Supervisor: Provide an Erosion Control Supervisor to direct the erosion control operations and insure compliance with Federal, State, and Local ordinances and regulations. B. Certified Installers: Provide a certified installer to install or direct installation of erosion or sediment control practices. Certification shall be obtained through the University of Minn_ esota. Erosion Control Inspector/Installer Certification program, or approved equal. 1,06 PERMITS A. Project disturbs 1 or more acres of total land area. Co -submittal with the Owner of a completed NPDES application form for the MPCA's General Stormwater Permit for Construction Activity and the appropriate fees to the MPCA is required. Submit a copy of the completed, signed, and dated application form to Owner. B. Permit coverage will become effective 7 days after the postmarked date of the completed application form. Or Permit coverage is anticipated to become effective 30 days after the postmarked date of a completed application form and SWPPP submittal to the MPCA. 1.07 SEQUENCING AND SCHEDULING A. Install sediment control measures prior to grading activities. B. Schedule and coordinate the Work so that permanent erosion and sediment control BMPs, such as basin construction, rip rap placement, and permanent seeding, are directly incorporated into the supplement permanent erosion and sediment control BMPs with temporary BMPs. Place temporary BMPs when permanent erosion control cannot be achieved. Coordinate construction operations so that erosion and sediment control measures (permanent or temporary) are installed and maintained concurrently with the rest of the Work of the Project. C. Coordinate and schedule the Work of subcontractors such that erosion and sediment control measures are fully executed for each operation and in a timely manner over the duration of the Project. Develop a chain of responsibility for all subcontractors and operators on the Project to ensure that permit provisions are adhered to. D. Stabilization timeframes shall conform to the NPDES General Stormwater Permit for Construction Activity. TEMPORARY EROSION AND SEDIMENT CONTROL © 2012 Stantec 1193801635 015713-2 E. Prior to Project shutdown for periods of a week or more, the Site shall be adequately protected from erosion and off Site damage by covering exposed soils with mulch and establishing perimeter controls. F. If the Contractor fails to install erosion or sediment measures, the Engineer may withhold payment from related work until the control measures are undertaken by the Contractor 1. When the Contractor fails to conduct the quality control program, does not conduct the Inspection required in the NPDES permit, or fails to take action ordered by the Engineer to remedy erosion or sediment control problems, the Engineer shall issue a Written Order to the Contractor. 2. The Contractor shall respond within 24 hours with sufficient personnel, equipment, materials, and conduct the required Work or be subject to a [$2,000] per calendar day deduction for noncompliance. G. Establish permanent turf in accordance with Section 32 92 00 to prevent excessive soil erosion. PART 2 PRODUCTS 2.01 SILT FENCE: Conform to MnDOT Spec. 3886. A. Machine sliced. 1. Posts; Steel T -post with welded plate, 1.26 lbs per lineal foot and 5 feet long. Post spacing shall not exceed 6 feet by 24 inch embedment. 2. Geotextile: Monofilament, 36 inches minimum width, UV stabilized, with apparent opening size 20 to 70 sieve, and 100 lbs minimum grab tensile strength. 3. Fasten geotextile to the posts with a minimum of 3 plastic zip ties of 50 -lbs tensile strength. 2.02 TEMPORARY CONSTRUCTION ENTRANCE A. Rock Construction Entrance: Conform to the Drawings and the following:2 inches minimum washed rock:Undedying Geotextiie: Conform to MnDOT Spec. 3733, Type 4.Minimum Thickness of Rock Placed: 6 inches. 2.03 STORM DRAIN INLET PROTECTION A. Inlet protection for paved streets with concrete curb and gutter: The following methods are acceptable: 1. Conform to the details on the Drawings. 2. Catch Basin Inserts: a. Road Drain by Wimco, LLC (www.roaddrain.com). b. Lange Industries (www.langeindustries.com), or approved equal. 3. Rock Log: a. Conform to MnDOT Spec. 3897. b. Rock 3/4 to 1-1/2 inches crushed or natural rounded aggregate. B. Inlet protection for non -paved surfaces without curb or areas where vegetation will be established. The following methods are acceptable: 1. Conform to the details on the Drawings. 2. Silt fence ring, or approved equal: a. Place wire mesh cage in a circular or square confirmation to form a minimum 5 foot diameter zone of protection. b. Geotextlle shall be monofilament/monofilament meeting the requirements of MnDOT Spec. Heavy Duty. c. Loose aggregate or a rock log(s) around perimeter of ring to anchor geotextile. TEMPORARY EROSION AND SEDIMENT CONTROL © 2012 Stantec 193801635 015713-3 3. Sediment control inlet hat conforming to MnDOT Spec. 3891.3C: a. InfraSafe Sediment Control Barrier by Royal Enterprises (http://wwvv.royalenterprises.net/). 4. Pop-up head conforming to MnDOT Spec. 3891.3E. 5. Rock filter as shown on the Drawings. 2.04 FILTER LOGS: Conform to MnDOT Spec. 3897. A. Straw or wood fiber biorolls, 6 to 7 inches in diameter. B. Compost or rock logs, 6 to 8 inches in diameter. 2.05 DUST CONTROL A. Water clear and free from suspended fine sediment. B. The Owner may elect to have the Contractor apply a chloride solution for dust control 1. Calcium Chloride: Conform to MnDOT Spec. 3911. 2. Magnesium Chloride Solution: Conform to MnDOT Spec. 3912. PART 3 EXECUTION 3.01 GENERAL A. Comply with all applicable laws, ordinances, regulations, permit requirements, orders and decrees pertaining to erosion/sediment control and stormwater discharge during the conduct of the Work. B: Take necessary precautions against damage to the Project by action of the elements. C. Implement the Project's NPDES Stormwater Pollution Prevention Plan (SWPPP) and take necessary actions to prevent off Site damage resulting from Work conducted on the Project or Project related stormwater runoff. D. Minimize the amount of disturbed land that is susceptible to erosion at any time. Delineate areas not to be disturbed. 1. Exclude vehicles and construction equipment from area not to be disturbed to preserve natural vegetation. 2. Maintain and preserve riparian and naturally vegetated buffer strips (10 feet minimum distance) along water courses. 3.02 INSTALLATION A. General: Install temporary stormwater management and sediment control devices in conformance with the details, typical sections, and elevations shown on the Drawings. B. The location of temporary stormwater and sediment control devices may be adjusted from that shown on the Drawings to accommodate actual field conditions and increase the effectiveness of the installation. C. Silt Fence: Conform to MnDOT Spec. 2573.3C. 1. Install in the locations shown on the Drawings using the machine sliced installation method, unless directed otherwise by the Engineer. 2. Use additional measures, such as rock aggregate, placed along the base of the silt fence where the silt fence geotextile cannot be trenched in, i.e. tree roots, frost, bedrock. TEMPORARY EROSION AND SEDIMENT CONTROL 0 2012 Stantec 1 193801635 015713-4 3. Use short sections of silt fence placed in J -hook patterns to: a. Supplement the perimeter silt fence at corner locations and areas where sediment deposition will occur. No more than 100 feet of silt fence shall be installed per 1/4 acre of drainage. b. Break up flow path along silt fence running across contours to be no more than 100 feet between hooks or as directed by the Engineer. 4. Silt fence longer than 600 feet shall be constructed in separate independent units with each unit having a length less than 600 feet. Avoid splices whenever possible. If necessary, make splices at an opposing fence post and according to the manufacturer's specifications. D. Temporary Construction Entrance 1. Install at locations shown on the Drawings. 2. Construct construction entrance before grading begins on the Site. 3. Inspect construction entrance daily for mud accumulation to minimize vehicle tracking of sediment onto public roadways. Remove fugitive rock or wood mulch from adjacent roadways daily. E. Storm Drain Inlet Protection 1. Provide effective storm drain inlet protection over the life of the Project until all sources with potential for discharging to inlets have been paved or stabilized. 2. Place devices so that driving hazards or obstructions are not created. The devices must be cleaned out regularly and all devices must have an emergency overflow to reduce flooding potential. 3.03 MAINTENANCE A. Conform to MnDOT Spec. 2573.3M, NPDES permit, and as follows: 1. Inspect, maintain, and repair any washouts or accumulations of sediment that occur as -i result of the grading or construction. Restoration consists of grade repair, turf re-establishment, and street sweeping of mud and debris tracked from the Site. 2. Inspection of all erosion and sediment control items will take place immediately after each runoff event and at least daily during prolonged rainfall. Any required repairs shall be made immediately. 3. The Contractor shall maintain the temporary sediment control devices until they are no longer necessary and are removed: a. Maintenance consists of keeping the devices functioning properly. b. The Contractor shall repair or replace plugged, torn, displaced, damaged, or non- functioning devices. 4. Upon final acceptance of the Project and establishment of permanent erosion control measures, the Contractor shall remove all temporary erosion control measures. 5. Temporary mulching and temporary seeding/mulching are very effective at controlling erosion. However, these are considered temporary measures. These measures may need to be re- established several times throughout the duration of the Work. E. Sediment Removal: Conform to MnDOT Spec. 2573.3N 1. If an erosion control device has been reduced in capacity by 30 percent or more, the Contractor shall restore such features to their original condition. C. Control dust blowing and movement on Site and roads as directed by Engineer to prevent exposure of soil surfaces, to reduce on and off Site damage, to prevent health hazards, and to improve traffic safety. END OF SECTION TEMPORARY EROSION AND SEDIMENT CONTROL © 2012 Stantec 1 193801635 015713-5 SECTION 01 70 00 EXECUTION REQUIREMENTS PART 1 GENERAL 1.01 SUMMARY A. Section Includes 1. Requirements for overall execution of the Work and closeout of the Contract for Final Payment. 1.02 PRICE AND PAYMENT PROCEDURES A. Measurement and Payment 1. A Bid Item has been provided for Street Sweeper with Power Broom. Measurement will be by the units of hours. 2. All other Work and costs of this Section shall be incidental to the Project and included in the Total Base Bid. 1.03 SUBMITTALS A. Submit the following items consistent with the Conditions of the Contract and Division 01 Sections: 1. Record Documents. 2. Written Notification of Substantial Completion. 3. Executed Certificate of Substantial Completion. 4. Written Notification of Final Completion. 5. Schedules, warranties, guarantees, Bonds, certificates, certificates of inspection, and other documents. 6. Final Application for Payment, including accompanying documentation. 7. IC -134 Form. PART 2 PRODUCTS Not Used. PART 3 EXECUTION 3.01 EXAMINATION A. Acceptance of Conditions: By commencing Work, Contractor construes acceptance of the adjacent work as satisfactory to receive subsequent work. B. Existing Conditions: Before commencing Work, inspect work completed by others that is adjacent to Work. If adjacent conditions prevent completion of Work, Contractor will not commence Work until the conditions are corrected. C. Inspect each product immediately prior to installation. Remove damaged products from Site. OO 2012 Stantec 1193801635 EXECUTION REQUIREMENTS 017000-1 3.02 GENERAL INSTALLATION REQUIREMENTS A. Comply with the manufacturer's instructions for installation of manufactured products to the extent that these instructions are applicable and more explicit or more stringent than requirements indicated in the Contract Documents. B. Complete each element of work during weather conditions and Project status to ensure coordination of the Work. C. Record installation details and prepare Record Documents consistent with the General Conditions. 3.03 SITE MAINTENANCE A. Maintain stockpiles, excavations, access roads, and all other work areas free from dust. Employ dust abatement techniques whenever a dust nuisance or hazard occurs, or as directed by Engineer. Comply with local ordinances. B. Protect hazardous work areas and hazardous material storage areas. C. Protect trees, unless specifically indicated on Drawings. D. Clean access roads and haul routes with mechanical street sweeper. E. If Contractor falls to maintain Site, Engineer will provide Written Notice of Contractor's defective Work. Contractor will be given 12 hours from the Notice to clean Site. After the 12 -hour period, Owner may correct the defective Work consistent with Article 13.09 of the Conditions of the Contract. 3.04 CLEANING AND PROTECTION A. Clean and protect Work in progress and adjoining Work during handling and installation. Apply protective covering on installed Work where it is required to ensure freedom from damage or deterioration. B. Clean and perform maintenance as frequently as necessary throughout construction period. Adjust and lubricate operable components to ensure operability without damage effects. 3.05 CUTTING AND PATCHING A. Complete all cutting, fitting, and patching as necessary to join the new Work to existing conditions. B. Remove or cut existing work only as necessary to join the new work to the existing construction or as required by the Contract Documents. C. Patch defective and incomplete surfaces caused or exposed by Work of the Project. D. Repair any damage to existing conditions and patch to match. E. Existing construction designated by the Contract Documents to remain that is loosened, cracked, or otherwise damaged or defaced beyond repair as a result of Work by the Contractor will be considered unsuitable for the use intended and shall be removed and replaced by the Contractor. EXECUTION REQUIREMENTS © 2012 Stantec 193801535 017000-2 3.06 CERTIFICATE OF COMPLIANCE WITH MINNESOTA STATUTES 290.92 AND 290.97 A. Upon completion of the Project and prior to Final Payment, the Contractor and all subcontractors shall complete Minnesota Department of Revenue Revised Form IC -134. This form, Affidavit for Obtaining Final Settlement of Contract with the State of Minnesota and any of its Political or Governmental Subdivisions, is to be signed by a Department of Revenue representative and forwarded to the Owner. Copies of this form can be obtained by writing to the Minnesota Department of Revenue, Mail Station 6610, St. Paul, MN 55146-6610 or by calling (651) 282-9999 or 1 (800) 657-3594. They are also available on their website: www. revenue. state.m n. us, or via email at withhold ing.taxOstate.mn.us. END OF SECTION EXECUTION REQUIREMENTS © 2012 Stantec 1 193801635 017000-3 SECTION 02 41 13 SELECTIVE SITE DEMOLITION PART 1 GENERAL 1.01 SUMMARY A. Section Includes 1. Complete or partial removal and disposal or salvage of at grade, above grade, and below grade structures and miscellaneous items. B. Related Sections 1. Section 02 4116 — Structure Demolition. 2. Section 3123 00 — Excavation and t=ill. 1.02 PRICE AND PAYMENT PROCEDURES A. Measurement and Payment 1. Bid Items have been provided for removal items. Payment at the Bid Unit Price will be considered compensation in full for all Work necessary to complete the Bid Item in full, including removal, salvage, storage, disposal, and reinstallation. 2. Measurement will be based upon the unfts as listed below for items removed, abandoned, or salvaged complete as specified. No measurement will be made of any removals that are not required. The actual quantity removed multiplied by the appropriate Bid Unit Price will be compensation in full for all Work and costs of the following Bid Items: a. Remove Curb and Gutter: Per Lineal Foot. b. Remove Concrete Sidewalk: Per Square Foot. c. Remove Bituminous Surfacing: Per Square Yard. d. Remove Retaining Wall: Per Lineal Foot. e. Remove Light Standard and Footing: Per Each. f. Bulkhead Sanitary Sewer Pipe: Per Each. g. Plug Water Main Service: Per Each. h. Bulkhead Storm Sewer Pipe: Per Each. i. Oil Storage Tank Removal: Per Each. J. 011/Water Separator and Sand and Oil Trap Removal: Per Each. k. Remove Kmart Sign: Per Each. 1. Remove Electrical Transformer: Per Each. m. Remove Ash Trees: Lump Sum. n. Remove Concrete Bollards: Lump Sum. o. Salvage Fence with Slats: Lump Sum. p. Salvage and reinstall signs and mailboxes shall be considered incidental. q. Sawing of bituminous or concrete shall be considered Incidental. r. Seeding of disturbed areas shall be considered incidental. All removal areas within the site shall be restored with onsite aggregate backfill material. 3. All other Work and costs of this Section shall be incidental to the Project and included in the Total Base Bid. 1.03 REFERENCES A. Minnesota Department of Transportation "Standard Specifications for Construction," 2005 Edition (MnDOT Spec.). 1. 2104 — Removing Pavement and Miscellaneous Structures. © 2012 Stantec 1 193801635 SELECTIVE SITE DEMOLMON 024113-1 1.04 DEFINITIONS A. Remove: To take away or eliminate from the Site by any method selected by the Contractor, including disposal of material. B. Salvage: To dismantle, disassemble, or remove carefully without damage so the item can be re- assembled, replaced, or reused in a workable condition equal to that existing before removal. C. Abandon: To FII, bulkhead, or close off pipes and structures so that no settlement or flow can occur. 1.05 REGULATORY REQUIREMENTS A. Conform to MnDOT Spec. 2104.3C, with the following modifications: 1. Dispose of all materials designated for removal outside the Site at locations selected by Contractor. 2. Stockpile or temporarily store materials designated for salvage at locations provided by Contractor. 1.06 SCHEDULING A. Prior to starting Work, submit for review by the Engineer and approval by the Owner, a schedule showing the commencement, order, and completion dates of the various parts of this Work. B. Fill holes or depressions resulting from removal or salvage immediately. C. Provide temporary surface restoration for traffic continuity where removal or salvage operations are completed within streets, driveways, or parking lots. PART 2 PRODUCTS 2.01 SEED: Conform to MnDOT Spec. 3876. A. Lawns: MnDOT Mixture 270. 2.02 MULCH: Conform to Section 0157 13. 2.03 DUCTILE IRON PIPE AND FITTINGS (DIP) A. General Requirement: AWWA C151/A21.51. B. Cement -mortar lining conforming to AWWA C104/A21.4. C. Special Thickness Class 52 for diameters less than 20 inches. 2.04 WATER MAIN PLUG JOINT RESTRAINT A. Mechanical Joint Restraint: Not allowed on existing cast iron pipe 1. Ductile iron conforming to ASTM A536. 2. Working Pressure: Minimum 250 psi. 3. EBAA Iron, Inc. Megalug, Star Pipe Stargrip, or approved equal. 4. Casting body and wedge assemblies coating a. Fusion bonded epoxy per ANSI/AWWA C116/A2. SELECTIVE SITE DEMOLMON © 2012 Stantec 1 193801635 0241 13-2 3.01 GENERAL A. Dispose of all items removed, except for those items identified to be salvaged or recycled. Said disposal shall be in accordance with all laws, regulations, statutes, etc. B. Perform removal work without damage to adjacent retained work. Where such Work is damaged, the Contractor shall patch, repair, or otherwise restore same to its original condition at no expense to the Owner. C. Remove debris from the work area as often as necessary, but not less than at least once at the end of each workday. Debris shall be placed in approved pontainers to prevent the spread of dust and dirt. D. Execute the Work In a careful and orderly manner with the least possible disturbance to the public and occupants of buildings. E. Fill holes resulting from removals consistent with Section 3123 00. 3.02 DISPOSAL A. Dispose of all cleared and grubbed material and debris off site at a location selected by the Contractor, except for salvaged materials. B. Disposal site should be a properly designated landfill area as determined by appropriate governmental agencies or lands under direct control of the Contractor. C. On site burial of any debris is not permitted. D. Burning of any materials is not allowed onsite. 3.03 PROTECTION A. Conduct operations so as not to damage surrounding private property. B. Protect trees intended to be saved from injury or defacement during operations. C. Exercise care to keep salvaged material as clean as possible during operations. D. Install temporary fencing at the construction limits and drip lines of trees to be protected prior to any construction activities in order to protect vegetation. E. Take all necessary precautions to adequately protect personnel and public and private property in the areas of Work. All Site fencing shall be In place prior to the start of any removal work. F. All street signs, traffic control signs, guy wires, mailboxes, posts, wood fence, etc. which may interfere with construction shall be removed, stored safely, and replaced. G. Approved barriers or warning signs shall be provided as necessary. H. Provide and maintain temporary protection of existing structures designated to remain where removal work is being done, connections made, materials handled, or equipment moved. Qc 2012 Stantec 1193801635 SELECTIVE SITE DEMOLITION 024113-3 I. Do not close or obstruct walkways or roadways. Do not store or place materials in passageways or other means of egress. Conduct operations with minimum traffic interference. J. Take reasonable precautions to limit damage to existing parking lot. K. Holes or depressions created by removals shall not be left open for more than 1 day. Any hole within 10 feet of sidewalks shall be filled, suitably marked, or covered immediately. L. Avoid disturbance to any material beyond the project limits. 3.04 SAWING PAVEMENT A. Concrete Pavement: Saw along the removal line full depth of the existing concrete. B. Bituminous Pavement: Saw along the removal line full depth of the existing bituminous. 3.05 REMOVE CURB AND GUTTER A. Saw cut at removal limits. B. Concrete Curb and Concrete Curb and Gutter: Do not disturb any material beyond the limits shown in the Drawings, unless directed by the Engineer. 3.06 REMOVE CONCRETE SURFACING A. Work includes sidewalks, parking areas, pedestrian ramps, medians, and driveways. B. Saw cut concrete surfacing prior to removal. C. Remove concrete in such a manner that the remaining surfacing is not damaged. D. When removing existing concrete surfacing, the Contractor shall not disturb any material beyond the limits shown in the Drawings, unless directed by the Engineer. 3.07 REMOVE BITUMINOUS SURFACING A. Work includes parking areas, pathways and driveways. B. Saw cut bituminous surfacing to full depth at the limits of partial removal prior to that removal, unless otherwise approved by the Engineer. C. Remove bituminous in such a manner that the remaining surfacing is not damaged. D. When removing existing bituminous surfacing, the Contractor shall not disturb any material beyond the limits shown in the Drawings, unless directed by the Engineer. 3.08 BULKHEAD PIPE A. Pipes to be abandoned shall be bulkheaded with non -shrink concrete grout 8 inches thick at locations indicated on the Drawings and as determined by the Engineer. 3.09 PLUG WATER MAIN SERVICE A. Existing water service shall be plugged east of sidewalk as shown on the Drawings. © 2012 Stantec 1 193801635 B. End of plug shall be marked with 4" by 4" wood post for locating purposes in the future. Wood post shall be installed 0.5 feet below finish grade. 3.10 REMOVE RETAINING WALL A. Dispose of materials off Site at a predetermined location. B. Remove wall In its entirety, including footings and tiebacks. C. Following removal, complete grading as needed to create 5:1 maximum slopes. 3.11 REMOVE LIGHT STANDARD AND FOOTING A. Existing concrete footing shall be removed entirely. B. Grade and backfill with existing onsite aggregate material in layers not exceeding one -foot and compact to 95 -Percent Standard Proctor Density. 3.12 REMOVE OIL STORAGE TANK A. Conformed to MnDOT Spec. 2104.3. B. Removal all contents in the storage tank prior to removal. Store removed oil in MPCA approved containers and dispose in accordance with all federal, state and local laws, regulations, statues, etc. 3.13 REMOVE OIL/WATER SEPARATOR AND SAND AND OIL TRAP A. Remove as shown on Drawings. B. Notify Engineer a minimum of 48 hours prior to removal to allow for scheduled observation. Engineer must observe removal. C. Removal all contaminated contents in the oil/water separator and sand and oil trap. Store contaminants in MPCA approved containers and dispose in accordance with all federal, state and local laws, regulations, statues, etc. 3.14 REMOVE KMART SIGN A. Remove sign and entire footing. B. Protect adjacent trees and bushes. C. Seed and mulch disturbed area following removal. 3.15 REMOVE ELECTRICAL TRANSFORMER A. Coordinate disconnects with utility provider. Contractor is responsible for any costs associated with disconnects. B. Remove transformer In a manner acceptable to MPCA. 3.16 REMOVE ASH TREES A. Engineer will mark trees for removal. SELECTIVE SITE DEMOLMON © 2012 Stantec 1193801635 024113-5 B. Remove trees and backfill within 24 hours of removal. C. Seed and mulch disturbed areas. 3.17 SALVAGE FENCE WITH SLATS A. Remove and salvage fence with slats as indicated on the Drawings. B. Concrete footings, if any, shall be removed from posts and the concrete disposed. Contractor shall take care not to damage posts. C. Load and haul materials to a city owned site for storage. Contractor is responsible for all loading, hauling, and unloading of salvaged materials. 3.18 SALVAGE AND REINSTALL A. Signs 1. In no case shall a traffic sign or street sign be removed or disturbed by Contractor without prior notification being given to Engineer and then only after satisfactory arrangements have been made for a temporary installation or its disposition. a. Street identification signage shall be maintained at all times due to its importance to the 911 Emergency Response Systems. b. Remove and salvage all posts, A -frame angle brackets, stringers, as well as the nuts, bolts, and washers. c. Exercise reasonable care against damage to in-place signs during storage and installation. d. Remove signs damaged during construction and replace with new signs. B. Mailboxes 1. Remove and salvage existing mailboxes that interfere with the Work or whose access is restricted by the construction activities. 2. Place at temporary locations as directed by Engineer or as shown on Drawings. 3. Removal, temporary re -installation, and replacement shall occur such that mail delivery is not interrupted. 4. Mailboxes, posts, and appurtenances damaged during construction shall be replaced with new at no charge to Owner. C. Fences 1. Protect existing perimeter fencing. 2. Salvage and store fence and post material where they are in conflict with the Work. 3. After completion of Work, reinstall fence to the condition existing prior to removal. 4. Install temporary snow fence or similar barrier at the end of the working day while the permanent fence is removed. 3.19 FIELD QUALITY CONTROL A. Items damaged during removal or salvaging operations shall be replaced with new material of equal type and quality of the damaged item when it was new. 3.20 DISPOSING OF MATERIAL A. Dispose of all materials outside of the Site at disposal iocation selected by Contractor in compliance with state and local regulations. Burying of material and debris is not allowed within the Site. END OF SECTION @ 2012 Stantec 1 193801635 SECTION 02 41 16 STRUCTURE DEMOLITION PART 1 GENERAL 1.01 SUMMARY A. Demolish, remove, and dispose or salvage designated buildings and structures, including stairs, ramps, floor slabs, aprons, foundation walls and footings, and other structure components, appurtenances and contents associated with that structure, within the construction limits, unless noted otherwise. B. Related Sections 1. Section 02 41 13 Selective Site Demolition, 2. Section 3123 00 — Excavation and Fill. 1.02 PRICE AND PAYMENT PROCEDURES A. Measurement and Payment 1. Bid Items have been provided for Structure Demolition for each structure to be removed. Payment at the Bid Unit Price will be considered compensation in full for all Work and costs necessary to complete the Bid Item in full, including materials, labor, tools, equipment, and other incidentals necessary to complete the specified operation, including removal, salvage, storage or disposal of materials and Site restoration. 2. Measurement will be based upon the units as listed below for items removed, abandoned, or salvaged complete as specified. No measurement will be made of any removals that are not required, The actual quantity removed multiplied by the appropriate Bid Unit Price will be compensation in full for all Work and costs of the following Bid Items: Bid Item: Unit: 4200 Xylon Avenue North Building Demolition LS 4200 Xylon Avenue North Hazardous Material Abatement LS 4300 Xylon Avenue North Building Demolition LS 4300 Xylon Avenue North Hazardous Material Abatement LS Aggregate Backfill (Crushed Onsite) LS 3. All other Work and costs of this Section shall be incidental to the Project and included in the Total Base Bid. 1.03 REFERENCES A. Minnesota Department of Transportation "Standard Specifications for Construction," 2005 Edition (MnDOT Spec.). 1. 2103 — Building Removal. 2. 2104 — Removing Pavement and Miscellaneous Structures. B. Minnesota State Rules, Chapter 7001: Permits and Certifications — General Requirements. C. Minnesota State Rules, Chapter 7035: Solid Waste. D. Minnesota State Rules, Chapter 7045: Hazardous Waste Rules. E. Minnesota Department of Transportation: Motor Carrier Regulations. STRUMRE DEM " . O © 2012 Stantec 193801635 024116-1 F. Federal Department of Transportation: 49 CFR — Hazardous Materials Regulations. G. Environmental Protection Agency: 40 CFR - Solid Wastes. 1.04 DEFINITIONS A. Beneficial Use of Solid Waste: Beneficial use of Solid Waste refers to the applicability, standards, and determinations under Minnesota Rules, Part 7035.2860, Subparts 1 to 10. Solid waste includes demolition materials, substrates, debris, waste, and other materials. Contaminated: Contaminated or contamination means demolition materials, substrates, debris, waste, and other materials containing a chemical or petroleum-based substance of aau level or concentration. In some cases, the level or concentration of contaminants may render the demolition materials, substrates, debris, waste, and other materials a hazardous waste as defined in Minnesota Rules, Chapter 7045. Examples of contamination include demolition materials or substrates containing paints, oils, greases, transformer and hydraulic fluids, leaking and broken fluorescent light ballasts or light tubes, etc. Contamination may be by a single substance or multiple substances. C. Disposal: For the purposes of this Specification, disposal means to deposit or place demolition materials, substrates, debris, waste, and other materials for permanent disposition with an approved, licensed, or permitted facility in accordance with applicable federal, state, and local ordinances, rules, and regulations, and in good standing with the State. Disposal at a Permit -by - Rule landfill will not be allowed. Disposal DOES NOT include stockpiling, short-term, or long-term temporary storage of said materials for reuse, recycling, reclamation, or storage for speculative markets. Disposal does not include elimination or disposition of said materials via reuse, recycling, or reclamation at any time, unless specified in this document. D. Removal: To take away, transport, eliminate, or remove from the Site by the Contractor, and to appropriately dispose of demolition material, substrates, debris, waste, and other materials according to Minnesota Rules, Chapters 7001, 7035, and 7045. E. Salvage: To dismantle, disassemble, or remove carefully and without damage so the item or materials can be re -assemble, replaced, or reused in a workable condition equal to that existing before removal. This includes items that may be used by Contractor or sold to another party. In this Specification, salvage shall also include the terms: reuse, recycling, and reclamation. F. Transportation of demolition materials, substrates, debris, waste, and other materials: Refers to the off Site transportation of any said materials. Transportation of said materials shall conform and comply with Minnesota Department of Transportation: Motor Carrier Regulations and other applicable rules and regulations. G. Good Standing With the State: To not have any significant current enforcement actions being taken against the facility by the MPCA. H. State: Refers to the Sate of Minnesota. I. Owner: Refers to City of New Hope, Minnesota. © 2012 Stantec 1 143801635 024116-2 1.05 REGULATORY REQUIREMENTS A. Building demolition and waste storage, both contaminated and uncontaminated, shall be conducted in accordance with applicable federal, state, and local ordinances, rules, and regulations. Definitions in Article 1.04 apply to this Section and all Sections of this document: 1. Disposal operations shall be conducted in accordance with Minnesota Rules, Chapters 7001, 7035, and 7045. 2. Any demolition material, substrates, debris, waste, or other materials determined to be or characterized as a hazardous waste according to Minnesota Rules, Chapter 7045 shall be disposed at an EPA licensed -permitted facility in good standing with the State. 3. All stockpiled demolition materials, substrates, debris, waste, or other materials shall be stored, handled, and managed according to Minnesota Rules, Chapters 7001, 7035, and 7045 to prevent environmental contamination. B. The Minnesota Pollution Control Agency (MPCA) has rules relating to beneficial use of solid waste. These rules are contained in Minnesota Rules, Chapters 7001 and 7035. Beneficial use of solid waste meeting applicability, standards, and determinations under part Minnesota Rules, Part 7035.2860, Subparts 1 to 10 will be allowed provided that the demolition materials substrates. debm waste, and other materials are not contaminated with any level or concentration of d7emical or petroleum-based substances. regardless if ft►ey are considered or found to be non -hazardous waste under Minnesota Rules; Chapters 7035 and 7045. Beneficial use of solid waste not meetiing applicability, standards, and determinations under Minnesota Rules, Part 7035.2860, Subparts 1 to 10 will not be allowed under any circumstance. C. Transportation of demolition material, substrates, debris, waste, or other materials off Site shall conform and comply with Minnesota Department of Transportation: Motor Carrier Regulations. Further transportation of any demolition material, substrates, debris, waste, or other materials off Site meeting the definition of a hazardous waste shall be conducted in accordance with federal and state Department of Transportation Hazardous Materials Rules and Regulations, EPA 40 CFR, and Minnesota Rules, Chapter 7045. D. Specific Project requirements shall indude but not be limited to the following: 1. Contaminated demolition materials, substrates, debris, waste, or other materials meeting the definition of a hazardous waste as defined in Minnesota Rules, Chapter 7045 shall be managed according to this Section. 2. Contaminated demolition materials, substrates, debris, waste, or other materials containing my level or concentration of chemical or petroleum-based substances, regardless if they meet the definition of "beneficial use," shall NOT BE reused, recycled, or reclaimed in any manner either on or off Site. Said demolition materials, substrates, debris, waste, or other materials shall be disposed at an approved, licensed, or permitted facility in accordance with applicable federal, state, and local ordinances, rules, and regulations, and in good standing with the State. Disposal at a Permit -By -Rule landfill will not be allowed. Disposal of said materials and substrates shall be in accordance with this Section. 3. Any uncontaminated, recognizable concrete, concrete products, or brick may be eligible for "beneficial use," provided it is in accordance with this Article. 4. Any contaminated recognizable concrete, concrete products, or brick, regardless if they are non -hazardous according to Minnesota Rules, Chapters 7035 and 7045, shall not be reused, recycled, or reclaimed in any manner either on or off Site. Said materials or substrates shall be disposed at an approved, licensed, or permitted landfill in accordance with applicable federal, state, and local ordinances, rules, and regulations, and in good standing with the State. Disposal of said materials and substrates shall be in accordance with this Section. pO 2012 Stantec 1193801635 4A 16 31 Any contaminated recognizable concrete, concrete products, or brick meeting the definition of a hazardous waste according to Minnesota Rules, Chapter 7045 shall be disposed according to this Section. 1.06 SITE CONDITIONS A. All structures to be demolished will be vacant. Demolition contractor shall be responsible for verifying that each and every utility to and within each and every individual building or other structure has been de -activated and is safe for demolition and removal. B. Unknown hazardous materials may be present. Contractor shall, upon encountering suspected or potential hazardous materials, including soils contaminated by hydrocarbons, stop work immediately in the vicinity of the encounter and notify Engineer. Owner will coordinate sampling and testing of materials for determination of status. Work shall commence in other areas of the Project until such determination. C. Hazardous materials are expected in the Kmart building. Refer to reference documents described in Section 00 3100. Hazardous materials must be removed on.ly by a licensed hazardous abatement contractor. 1.07 DISPOSAL OF MATERIALS AND DEBRIS A. All demolition materials, substrates, debris, waste, or other materials shall be collected, stored, handled, managed, and disposed in accordance with currently accepted practices at an approved, licensed, or permitted facility in accordance with applicable federal, state, and local ordinances, rules, and regulations. Management, transportation, and disposal of demolition materials, substrates, debris, waste, or other materials shall be in accordance with Article 1.05 of this document. B. Beneficial use of demolition material, substrates, debris, waste, or other materials shall be in accordance with Article 1.05 of this document, C. Prior to shipment, stockpiling of demolition materials, substrates, debris, waste, or other materials shall be stored, handled, and managed according to Minnesota Rules, Chapters 7001, 7035, and 7045 to prevent environmental contamination. D. Any items salvaged by the Contractor are in an "as -is" condition. Items salvaged may contain internal hazardous materials, such as gaskets, linings, etc. Contractor or buyer of salvaged materials shall acknowledge receipt of items in an "as -is" condition, that the item may contain hazardous materials and accepts responsibility for any and all hazardous materials that are contained in the item. E. Any items or materials found or discovered in the course of demolition, removal, or disposal that are not anticipated or otherwise considered to be conventional building or structure components, and may have unique commercial or historical value shall be salvaged and brought to the attention of the Owner. The Owner reserves the right to retain ownership of the items or materials, unless it is determined that no unique value exists. The items or materials with no unique value shall then become the property of the Demolition Contractor and disposed. F. Crushed concrete materials suitable for use as recycled aggregate, conforming to MnDOT Spec. 3138, Class 5. Excess material becomes the property of the Contractor and shall be removed from the site. STRUCTURE DEMOLITION © 2012 Stantec 1 193801635 0241 16-4 G. Concrete materials not crushed shall be removed from the Site for proper disposal at the Contractor's discretion. 1.08 PERMITS A. At a minimum, a Building Demolition Permit shall be obtained from the City of New Hope, Minnesota. Individual permits will be required for each structure. B. Complete and submit "Notification of Intent to Perform a Demolition" Form to the MPCA. C. All inspections required by the permits will be the responsibility of the Contractor. D. Any demolition material, substrates, debris, waste, or other materials meeting the definition of a hazardous waste shall be disposed under the facility's EPA identification number. A licensed hazardous waste transporter shall transport said waste. 1.09 SUBMITTALS A. The Contractor shall provide the Owner's Representative with copies of receipts, manifests, shipping papers, scale or tipping tickets, record of disposal/destruction, and any other documentation regarding disposal of demolition materials, substrates, debris, waste, or other materials from the Site whether hazardous or not. Submittals shall be made weekly and no later than the Friday of the following week. B. Within 14 days of demolition completion, submit Certificate of Disposal/Destruction for all materials removed from the Site. Certificates shall state. 1. Disposal site or location taken for beneficial use. 2. Dates and quantity of material that material was transported to said site. 3. Type of material and whether it was contaminated or not contaminated. C. The Contractor shall provide the Owner's Representative with copies of licenses, training certificates, or suitable documentation for contractors and personnel providing hazardous material or hazardous waste removal. Submittals shall be made prior to Site activities. D. The Contractor shall provide the Owner's Representative with copies of disposition documents for all salvaged items. This includes items that are sold or given away by the Contractor and items that the Contractor keeps for his own use. For items sold or given away, documentation shall include a "Bill of Sale" that describes the item, who received the item, brand name, model number, serial number, etc. where applicable, acceptance of responsibility for the item, including hazardous materials that the item may contain, printed name and address of recipient, signature of recipient and date. 1.10 SCHEDULING A. Prior to starting worK, submit for review by the Engineer and approval by the Owner, a schedule showing the commencement, order, and completion dates of the various parts of this Work. B. FII holes or depressions resulting from structure removal immediately. PART 2 PRODUCTS Not Used. STRUCTURE DEMOLITION © 2012 Stanbec 1 193801635 024116-5 SECTION 31 23 00 EXCAVATION AND FILL PART 1 GENERAL 1.01 SUMMARY A. Section Includes 1. Excavation and fill for roadways, foundations, channels, ponds, and other areas. B. Related Sections 1. Section 0157 13 - Temporary Erosion and Sediment Control. 1.02 PRICE AND PAYMENT PROCEDURES A. Measurement and Payment 1. A Bid Item has been provided for Common Fill (LV). Measurement will be by loose volume of material placed in cubic yards. All hauling, placement, blading, grading, shaping, and compacting of Common Fill shall be incidental to this Bid Item. 2. All other Work and costs of this Section shall be incidental to the Project and included in the Total Base Bid. 1.03 REFERENCES A. Minnesota Department of Transportation "Standard Specifications for Construction," 2005 Edition (MnDOT Spec.) 1. 2105 - Excavation and Embankment. 1.04 SUBMITTALS A. Submit the following items consistent with Section 0133 00: 1. Gradation tests for borrow materials. 1.05 QUALITY ASSURANCE A. Assist testing laboratory by excavating for density tests. Assist testing laboratory with obtaining material samples. 1.06 SEQUENCING AND SCHEDULING A. Following removal of existing truck docks, use excess crushed onsite aggregate backfill material to fill and finish to grade. Only install common fill material as needed and directed by Engineer, if onsite aggregate backfill is not in excess. PART 2 PRODUCTS 2.01 MATERIALS A. Common Fill: Conform to MnDOT Spec. 2105.2132 1. The material shall be a soil which is capable of attaining specified compaction levels, excluding soils which contain organics, contain debris or are potentially expansive (CH or MH per the Unified Soil Classification System). EXCAVATION AND FILL © 2012 Stantec ' 193801635 312300-1 250 Third Avenue North Minneapolis, Minnesota 55401 612.338.2029 Fax 612.338.2088 www.LBBeorp.com December 14, 2012 Jeff Sargent Planning and Development City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 PROPOSAL FOR INVESTIGATIVE SERVICES NEW HOPE KMART AREA REDEVELOPMENT TIF ANALYSIS Thank you for the opportunity to submit a proposal for a Redevelopment TIF analysis in New Hope, Minnesota. LHB is a full-service architecture, planning and engineering firm with 200 employees in our Minneapolis and Duluth offices. Our Government studio has extensive experience working with local governments on their planning, design, architectural and engineering needs. Having been personally involved as a City Council President, I understand how cities function and the importance of maintaining the support of the city council and community throughout the process. PREVIOUS EXPERIENCE LHB has significant experience with a variety of inspection and facility assessment projects, including the analysis of over 100 TIF Districts in the past seven years_ Examples include: • City of Columbia Heights TIF inspection services • City of St. Paul TIF inspection services • City of St. Anthony Village, NW Quadrant TIF inspection services • City of St. Louis Park TIF District inspection services • City of Mound TIF District "1 -2" inspection services • City of Osseo TIF inspection services • City of New Richmond, WI TIF inspection services • Minnesota State Colleges and Universities system facility assessments • State of Minnesota Facility Assessments • Property Condition Assessments for the St. Paul Department of Planning and Economic Development (Franklin/Emerald Neighborhood) • Condition survey of every property along the I-394 corridor for the Minnesota Department of Transportation, prior to and during the construction of 1-394 • ADA Compliance Assessments for the State of Minnesota (82 buildings in 1992) Proposal for Investigative Services December 14, 2012 Page 2 TEAM CREDENTIALS Michael A. Fischer, AIA LEED AP —Project PrincipaUTIF Analyst Michael has twenty-four years of architectural experience as project principal, project manager, project designer and project architect on municipal planning, educational, commercial and governmental projects. He is an expert in Tax Increment Finance, having analyzed more than 100 TIF Districts in the past seven years. Michael is a Senior Vice President at LHB and currently leads the Minneapolis office. He completed a two-year Bush Fellowship at the Massachusetts Institute of Technology in 1999, earning Masters Degrees in City Planning and Real Estate Development. Michael has served on over 35 committees, boards and community task forces, including a term as City Council President and Chair of the Duluth/Superior Metropolitan Planning organization. He is cturently a member of the Edina Planning Commission. He was one of four architects in the country to receive the National "Young Architects Citation" from the American Institute of Architects in 1997. Ben Trousdale, ALI — Project Manager/Inspector Ben is a project architect in LHB's Minneapolis office with 20 years of experience working on a variety of multi -family housing and commercial projects. He has extensive skills in creating quality construction documents that convey a building's fundamentals and unique design details. His responsibilities include project management, code analysis, and overseeing document production. Ben is a licensed architect in Minnesota and is involved with AIA activities including Search for Shelter charrettes. Lydia Major, MLA, ASLA — GIS/Mapping Lydia recently joined LHB's Urban Design and Planning group, bringing with her a passion for design that benefits the client, the community, and the environment. Her experience includes designing and drafting commercial and residential properties at a variety of scales. Lydia integrates her skills with AutoCAD, ArcGIS, and the Adobe Creative Suite to produce plans, color renderings, booklets, and other presentation materiais. Communication is a critical component in all projects, and Lydia's uses her education as a writer to create compelling project documents, including proposals, requests for variance, and other public -relations materials. SCOPE OF SERVICES LHB will provide the following services based upon the terms and conditions described below. 1. Survey the TJF District to determine if it meets applicable coverage test. A. To meet the coverage test, parcels consisting of 70 percent of the area of the district must be "occupied" by buildings, streets, utilities, or paved or gravel parking lots. B. A parcel is not considered "occupied" unless at least 15% of its total area contains improvements. Proposal for Investigative Services December 14, 2012 Page 3 2. Conduct a visual review of building(s) interior and exterior: A. Obtain property owner's consent for inspection. B. Document property conditions relative to Minnesota Statutes Section 469.174 Subdivision 10. 3. Estimate building(s) replacement cost: A. Replacement cost is the cost of constructing a new structure of the same square footage and type on the site. B. A base cost will be calculated by establishing the building class, type and construction quality. C. Identify amenities, which increase the value of the building over the standard construction quality level. D. Review building permits for each parcel. E. The base cost and cost of amenities will be totaled to determine the replacement cost for the property. 4. Evaluate building(s) existing condition: A. "Structurally substandard shall mean containing defects in structural elements or a combination of deficiencies in essential utilities and facilities, light and ventilation, fire protection including adequate egress, layout and condition of interior partitions, or similar factors, which defects or deficiencies are of sufficient total significance to justify substantial renovation or clearance." �. Determine Building(s) Cade Deficiencies: A. Determine technical conditions, which are not in compliance with current building code applicable to new buildings. B. Provide opinion of probable cost to correct identified deficiencies. C. Compare cost of deficiency corrections to replacement value of building. 6. Prepare and deliver report: A. Prepare a written narrative analysis of the District describing why the property within the District does or does not meet the criteria as "structurally substandard" as established in Minnesota Statutes Section 469.174, subdivision 10. B. Deliver final reports via email FDF ASSUMPTIONS 1. Preliminary boundaries of the prospective district include Wo (2) parcels with two (2) commercial buildings that will require interior inspections. The Client will provide the following: Proposal for Investigative Services December 14, 2012 Page 4 • A scalable parcel map and/or aerial photo of the area to be inspected, including GIS information with specific parcel data, including parcel area measured in square feet. • A list of all parcels affected including name of owner, current known business or resident name and address. Available information regarding the condition of the structures, including past building permit information. STANDARD OF CARE LHB shall perform services consistent with the professional skill and care ordinarily provided by other professionals practicing in the same or similar locality under the same or similar circumstances. Any report prepared by LHB represents a professional opinion based upon information available and arrived at in accordance with generally accepted professional standards. Other than as contained in the report, LHB makes no express or implied warranty. Short of complete deconstruction to examine every element at every location, no assessment can reveal all conditions which may exist. Additional testing, assessment, or demolition, may uncover conditions which would make it necessary to modify LHB's conclusions or recommendations. Any report prepared for the purpose described in this Agreement is for the exclusive use by those to whom the report is addressed. LHB will not acid cannot be held liable for the tinairthorized reliance upon this report by any third party. COMPENSATION We propose to work on an hourly basis with the following key staff: Project Principal, Michael Fischer (TIF analysis) $231/bour Project Manager/Architect/Inspector, Ben Trousdale $107/hour Project Administrator $77/hour We will work on an hourly basis not to exceed $4,000 plus reimbursable expenses for a letter of finding determining whether or not the two buildings are substandard. Payments are due and payable upon receipt of our invoice. Unpaid balances 60 -days after invoice date shall bear interest at the rate of 8% annually. Failure to make timely payment to LHB is a material breach of this Agreement and may, at LHB's sole discretion, result in a suspension or termination of services, and may, at LHB's sole discretion, result in the termination of the Client's limited license authorization to use LHB's copyrighted Instruments of Service. Proposal for Investigative Services December 14, 2012 Page 5 ADDITIONAL SERVICES If there is a material change in the circumstances or conditions that affect the scope of work, schedule, allocation of risks or other material terms, LHB shall notify the Client. The Client and LHB shall promptly and in good faith enter into negotiation to address the changed conditions including equitable adjustment to compensation. The fees and costs for any additional services will be based upon LHB's Standard Hourly Rates and Standard Reimbursable Schedule. SCHEDULE LHB is able to proceed with the work within five days of acceptance of this agreement and will complete the work for a mid-January deadline. CONSEQUENTIAL DAMAGES LHB and Client waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. LIMIT OF LIABILITY To the maximum extent permitted by law, the Client agrees to limit LHB's liability for the Client's damages to the sura of Ten Thousand Dollars ($10,000) or the amount of fee paid to LHB, whichever is greater. This limitation shall apply regardless of the cause of action or legal theory pled or asserted. USE OF LHB'S DOCUMENTS The documents prepared by LHB are solely for use with respect to this project. All documents prepared by LHB pursuant to this Agreement are the instruments of services to the Project and LHB shall retain all common law, statutory and other reserved rights, including copyright. LHB grants to Client a nonexclusive limited license solely for the purposes of evaluating and executing the Project. The Client shall not assign, delegate, sublicense, or otherwise transfer any license granted herein to another party. To the extent the documents are transferred or are modified, supplemented or otherwise altered by the Client, subsequent design professional, or any other party, the Client agrees to indemnify, defend and hold LHB harmless for any claims, demands, damages or causes of action arising out of such transfer or modification, supplementation or alteration. OTHER CONDITIONS The laws of the State of Minnesota shall govern this Agreement. Any provision of this agreement later held to violate a law or regulation shall be deemed void. All remaining provisions shall continue in force. Proposal for Investigative Services December 14, 2012 Page 6 The Client recognizes that materials prepared by others may be subject to copyright protection and warrants to LHB that any documents provided by the Client do not infringe upon the copyright held by another. Unless the parties mutually agree otherwise, the parties shall endeavor to settle disputes by mediation. A demand for mediation shall be filed, in writing, within a reasonable period of time after a claim, dispute or other matter in question has arisen. LHB and the City, acting through the City's legal representative, will, to the fullest reasonable extent, cooperate and coordinate efforts in preparing necessary responses to any third party challenges to the inspections. The City agrees to pay LHB its regular hourly rates for time spent as a result of a third party legal challenge If the terms and conditions of this Agreement are acceptable, please sign and return a copy to L•HB. CLIENT NAME LHB, INC. B � �— B Y- Y• (Signature) (Signature) Its: Name. (Printed Name) Its: Senior Vice President (Title) Name: Michael A. Fischer-. AIA (Printed Name) CACommunity Design Group 2008-201 Mome worWroposal LetteislNew Hope TIF District 12-14-12.doc J The City purchased the Kmart and bank building site back in July 2012, and is in the process of determining what type of development will be placed on the sites in the future. These two (2) parcels are not currently located within a TIF district. Prior actions by the City Council earlier this year were to expand the Project Area (area you can create TIF districts within the City) to be coterminous with the City's boundaries and to allow the use of TIF funds from other existing districts to acquire these parcels. These actions do not preclude the City from creating a new TIF district for these two (2) parcels sometime in the future. In order to preserve the City's ability to repay itself for its investment in the property (from the older TIF districts), we want to make sure the City has the ability to create a redevelopment TIF district on those two parcels, if it so choses. In order to create this type of TIF district, the parcels to be included have to meet a two -fold test: 1. 70% of the parcels have to be covered (this test is met if 15% of the area of the parcel is covered by buildings, parking, sidewalks, utilities, etc.); and 2. More than 50% of the structures have to be considered substandard (this test is met if the cost to bring the building up to current code requirements is more than 15% of the cost to construct the facility today) It is recommended that the City hire LHB to complete this analysis for the City. They are well versed in completing the necessary coverage and blight analysis and providing a detailed report that is necessary for a City Council to make the required findings. While we can assume that there is no issue in meeting the coverage test the real analysis will come into play regarding meeting the blight test. Once the report is finalized and if the two parcels are determined to be substandard, the City and/or EDA will need to pass a resolution prior to demolition of the buildings stating that the parcels were occupied by structurally substandard buildings and that after demolition the City and/or EDA intends to include the parcels within a district. The City and/or EDA will have three (3) years from the date of the resolution to create a TIF district on those two (2) parcels. EHLERS :SII!! 5u` `,_.;10- LEADERS IN PUBLIC FINANCE NEwr:: G31-�S7-:.Clti Ff;; 651-697-84��5 fc�i9uun�'!���t�l�•rv-i�?:.�3!~I Kirk McDonald Ew'-�'�`+: Stacie Kvilvang l: a u: December 14, 2012 Kmart Blight Analysis For TIF District Purposes The City purchased the Kmart and bank building site back in July 2012, and is in the process of determining what type of development will be placed on the sites in the future. These two (2) parcels are not currently located within a TIF district. Prior actions by the City Council earlier this year were to expand the Project Area (area you can create TIF districts within the City) to be coterminous with the City's boundaries and to allow the use of TIF funds from other existing districts to acquire these parcels. These actions do not preclude the City from creating a new TIF district for these two (2) parcels sometime in the future. In order to preserve the City's ability to repay itself for its investment in the property (from the older TIF districts), we want to make sure the City has the ability to create a redevelopment TIF district on those two parcels, if it so choses. In order to create this type of TIF district, the parcels to be included have to meet a two -fold test: 1. 70% of the parcels have to be covered (this test is met if 15% of the area of the parcel is covered by buildings, parking, sidewalks, utilities, etc.); and 2. More than 50% of the structures have to be considered substandard (this test is met if the cost to bring the building up to current code requirements is more than 15% of the cost to construct the facility today) It is recommended that the City hire LHB to complete this analysis for the City. They are well versed in completing the necessary coverage and blight analysis and providing a detailed report that is necessary for a City Council to make the required findings. While we can assume that there is no issue in meeting the coverage test the real analysis will come into play regarding meeting the blight test. Once the report is finalized and if the two parcels are determined to be substandard, the City and/or EDA will need to pass a resolution prior to demolition of the buildings stating that the parcels were occupied by structurally substandard buildings and that after demolition the City and/or EDA intends to include the parcels within a district. The City and/or EDA will have three (3) years from the date of the resolution to create a TIF district on those two (2) parcels. EHLERS :SII!! 5u` `,_.;10- LEADERS IN PUBLIC FINANCE NEwr:: G31-�S7-:.Clti Ff;; 651-697-84��5 fc�i9uun�'!���t�l�•rv-i�?:.�3!~I Kirk McDonald Kmart Blight Analysis For TIF District Purposes December 14, 2012 Page 2 It is anticipated that the demolition resolution would be brought forward at the City's and/or FDA's January 14, 2013, meeting(s) so demolition can begin later that week. In addition, it is anticipated that the City and/or EDA will also pass an interfund loan resolution that evening for the costs of the demolition of the structures. State Statute requires that the City and/or EDA approve a resolution authorizing an internal (interfund) loan to a future TIF District and set the terms for reimbursement of the qualified TIF costs to be repaid with tax in..aements from the newly created TIS' District (since funds won't be available until sometime in the near future if and when a new district is created). The source of funding for the demolition will be identified in the resolution, as well as other required terms. Please contact me at 651-697-8506 with any questions. Council Request for Action Originating Department Approved for Agenda Agenda Section Community Development January 14, 2013 Development & PIMEL Item No. By: Curtis Jacobsen, Director of CD Jeff Sargent, CDSpecialist By: Kirk McDonald, City Manager 8.4 Approve resolutions authorizing internal (interfund) loans to a future TIF District for the properties located at 4200 and 4300 Xylon Avenue N. (improvement project 893) Requested Action Staff requests that the City approve resolutions authorizing an internal (interfund) loans to a future TIF District for the properties located at 4200 and 4300 Xylon Avenue N. Policy/Past Practice It is the practice of the Council to require the approval of resolutions authorizing interfund loans. Background Ehlers is recommending that the City should approve interfund loan resolutions to cover the costs of the demolition of the Kmart building and the Wells Fargo drive-through building located on the subject parcels. State Statute requires that the City approve a resolution authorizing an internal (interfund) loan to a future TIF district and set the terms for reimbursement of the qualified TIF costs to be repaid with tax increments from the newly created TIF district. The source of funding for the demolition will be identified in the resolution, as well as other required terms. Recommendation Staff recommends approval of the Resolutions. Attachments • Resolution Interfund Loan for Demo + Resolution Interfund Loan for Admin Costs Seeon4-by J2 AAMA al,l, ff 9, L& YA To: 3--� 013 I:\RPA\COMMDEV1Develo ment\Q R-InterfmdLoan Resolution 1-14-13.doc CITY OF NEW HOPE HENNEPIN COUNTY STATE OF MINNESOTA Council member Stauner introduced the following resolution and moved its adoption: RESOLUTION NO. 2013-19 RESOLUTION AUTHORIZING AN INTERFUND LOAN UP TO $200,000 FOR ADVANCE OF CERTAIN COSTS IN CONNECTION WITH A TAX INCREMENT FINANCING DISTRICT THAT MAY BE CREATED BY THE CITY OF NEW HOPE AND THE NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY. BE IT RESOLVED by the City Council (the "Council") of the City of New Hope, Minnesota (the "City"), as follows: Section 1. Background 1.01. The City and the New Hope Economic Development Authority (the "Authority") intend to create in the future a tax increment financing district (the "TIF District") in order to provide a funding source to assist in the redevelopment of certain real property in the City (the "Property"), which Property has been acquired by the Authority. 1.02. The Authority has determined to pay for certain costs identified in the TIF Plan consisting of demolition of buildings located on the Property, remediation of environmental conditions, other qualifying improvements and interest (collectively, the "Qualified Costs"), which costs may be financed on a temporary basis from City funds available for such purposes. 1.03. Under Minnesota Statutes, Section 469.178, Subd. 7, the City is authorized to advance money to the Authority from the City's general fund or any other fund from which such advances may be legally authorized, in order to finance the Qualified Costs. 1.04. The City intends to reimburse itself for the funds advanced to the Authority for Qualified Costs from tax increments derived from the TIF District in accordance with the terms of this resolution (which terms are referred to collectively as the "Interfund Loan"). Section 2. Terms of Interfund Loan. 2.01. The City hereby authorizes the advance of up to $200,000 from TIF District No. 86-1 or so much thereof as may be paid as Qualified Costs. The City shall be reimbursed for such advances together with interest at the rate stated below. Interest accrues on the principal amount from the date of each advance. The maximum rate of interest permitted to be charged is limited to the greater of the rates specified under Minnesota Statutes, Section 270C.40 or Section 549.09 as of the date the loan or advance is authorized, unless the written agreement states that the maximum interest rate will fluctuate as the interest rates specified under Minnesota Statutes, Section 270C.40 or Section 549.09 are from time to time adjusted. The interest rate shall be 4% and will not fluctuate. 2.02. Principal and interest ("Payments") on the Interfund Loan shall be paid semi-annually on each August 1 and February 1 (each a "Payment Date"), commencing on the first Payment Date on which the Authority has Available Tax Increment (defined below), or on any other dates determined by the City Administrator, through the date of last receipt of tax increment from the TIF District. 2.03. Payments on this intertund Loan are payable solely trom "Available 'i ax Increment," wnich shall mean, on each Payment Date, tax increment available after other obligations have been paid, or as determined by the City Administrator, generated in the preceding six (6) months with respect to the property within the TIF District and remitted to the Authority by Hennepin County, all in accordance with Minnesota Statutes, Sections 469.174 to 469.1799, all inclusive, as amended. Payments on this Interfund Loan may be subordinated to any outstanding or future bonds, notes or contracts secured in whole or in part with Available Tax Increment, and are on parity with any other outstanding or future interfund loans secured in whole or in part with Available Tax Increment. 2.04. The principal sum and all accrued interest payable under this interfund Loan are pre -payable in whole or in part at any time without premium or penalty. No partial prepayment shall affect the amount or timing of any other regular payment otherwise required to be made under this Interfund Loan. 2.05. This interfund Loan is evidence of an internal borrowing by the City in accordance with Minnesota Statutes, Section 469.178, Subd. 7, and is a limited obligation payable solely from Available Tax Increment pledged to the payment hereof under this resolution. This Interfund Loan and the interest hereon shall not be deemed to constitute a general obligation of the State of Minnesota or any political subdivision thereof, including, without limitation, the City. Neither the State of Minnesota, nor any political subdivision thereof shall be obligated to pay the principal of or interest on this Interfund Loan or other costs incident hereto except out of Available Tax Increment, and neither the full faith and credit nor the taxing power of the State of Minnesota or any political subdivision thereof is pledged to the payment of the principal of or interest on this Interfund Loan or other costs incident hereto. The City shall have no obligation to pay any principal amount of the Interfund Loan or accrued interest thereon, which may remain unpaid after the final Payment Date. 2.06. The City may amend the terms of this Interfund Loan at any time by resolution of the City Council, including a determination to forgive the outstanding principal amount and accrued interest to the extent permissible under law. Section 3. Effective Date. This resolution is effective upon the date of its approval. The motion for the adoption of the foregoing resolution was duly seconded by Council member Hoffe, and upon a vote being taken thereon, the following voted in favor thereof: Hemken, Elder, Hoffe, Lammle, Stauner. and the following voted against the same: None Dated: January 14, 2013 ATTEST: z LL Mayor City Clerk CITY OF NEW HOPE HENNEPIN COUNTY STATE OF MINNESOTA Council member Elder introduced the following resolution and moved its adoption: RESOLUTION NO. 2013-20 RESOLUTION AUTHORIZING AN INTERFUND LOAN UP TO $100,000FOR ADVANCE OF CERTAIN COSTS IN CONNECTION WITH A TAX INCREMENT FINANCING DISTRICT THAT MAY BE CREATED BY THE CITY OF NEW HOPE AND THE NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY. BE IT RESOLVED by the City Council (the "Council") of the City of New Hope, Minnesota (the "City"), as follows: Section 1. Background. 1.01 The City and the New Hope Economic Development Authority (the "Authority") intend to create in the future a tax increment financing district (the "TIF District") in order to provide a funding source to assist in the redevelopment of certain real property in the City (the "Property"), which Property has been acquired by the Authority. 1.02. The Authority has determined to pay for certain costs identified in the TIF Plan consisting of administrative expenses, including but not limited to fees of attorney and financial advisors, and interest (collectively, the "Qualified Costs"), which costs may be financed on a temporary basis from City funds available for such purposes. 1.03. Under Minnesota Statutes, Section 469.178, Subd. 7, the City is authorized to advance money to the Authority from the City's general fund or any other fund from which such advances may be legally authorized, in order to finance the Qualified Costs. 1.04. The City intends to reimburse itself for the funds advanced to the Authority for Qualified Costs from tax increments derived from the TIF District in accordance with the terms of this resolution (which terms are referred to collectively as the "Interfund Loan"). Section 2. Terms of Interfund Loan. 2.01. The City hereby authorizes the advance of up to $100,UU0 from the EDA Fund or so much thereof as may be paid as Qualified Costs. The City shall be reimbursed for such advances together with interest at the rate stated below. Interest accrues on the principal amount from the date of each advance. The maximum rate of interest permitted to be charged is limited to the greater of the rates specified under Minnesota Statutes, Section 270C.40 or Section 549.09 as of the date the loan or advance is authorized, unless the written agreement states that the maximum interest rate will fluctuate as the interest rates specified under Minnesota Statutes, Section 270C.40 or Section 549.09 are from time to time adjusted. The interest rate shall be 4% and will not fluctuate. 2.02. Principal and interest ("Payments") on the Interfund Loan shall be paid semi-annually on each August 1 and February 1 (each a "Payment Date"), commencing on the first Payment Date on which the Authority has Available Tax Increment (defined below), or on any other dates determined by the City Administrator, through the date of last receipt of tax increment from the TIF District. 2.03. Payments on this Interfund Loan are payable solely from "Available Tax Increment," which shall mean, on each Payment Date, tax increment available after other obligations have been paid, or as "determined by the City Administrator, generated in the preceding six (6) months with respect to the property within the TIF District and remitted to the Authority by Hennepin County, all in accordance with Minnesota Statutes, Sections 459.174 to 469.1799, all inclusive, as amended. Payments on this Interfund Loan may be subordinated to any outstanding or future bonds, notes or contracts secured in whole or in part with Available Tax Increment, and are on parity with any other outstanding or future interfund loans secured in whole or in part with Available Tax Increment. 2.04. The principal sum and all accrued interest payable under this Interfund Loan are pre -payable in whole or in part at any time without premium or penalty. No partial prepayment shall affect the amount or timing of any other regular payment otherwise required to be made under this Interfund Loan. 2.05. This Interfund Loan is evidence of an internal borrowing by the City in accordance with Minnesota Statutes, Section 469.178, Subd. 7, and is a limited obligation payable solely from Available Tax Increment pledged to the payment hereof under this resolution. This Interfund Loan and the interest hereon shall not be deemed to constitute a general obligation of the State of Minnesota or any political subdivision thereof, including, without limitation, the City. Neither the State of Minnesota, nor any political subdivision thereof shall be obligated to pay the principal of or interest on this Interfund Loan or other costs incident hereto except out of Available Tax Increment, and neither the full faith and credit nor the taxing power of the State of Minnesota or any political subdivision thereof is pledged to the payment of the principal of or interest on this Interfund Loan or other costs incident hereto. The City shall have no obligation to pay any principal amount of the Interfund Loan or accrued interest thereon, which may remain unpaid after the final Payment Date. 2.06. The City may amend the terms of this Interfund Loan at any time by resolution of the City Council, including a determination to forgive the outstanding principal amount and accrued interest to the extent permissible under law. Section 3. Effective Date. This resolution is effective upon the date of its approval. The motion for the adoption of the foregoing resolution was duly seconded by Council member Lammle, and upon a vote being taken thereon, the following voted in favor thereof: Hemken, Elder, Hoffe, Lammle, Stauner. and the following voted against the same: None Dated: January 14, 2013 ATTEST - z I �le' " �' t -40 Mayor City Clerk EDA Request for Action Originating Department Approved for Agenda Agenda Section Community Development January 14, 2013 EDA Item No. By: Curtis Jacobsen, Director of CD Jeff Sargent, CD S ecialist By: Kirk McDonald, C!11 Manager 4 Approval of a blight resolution for the properties located at 4200 and 4300 Xylon Avenue North; and approval of resolutions authorizing internal (interfund) loans to a future TIF District for the properties located at 4200 and 4300 Xylon Avenue N. (improvement project no. 893) Requested Action Staff requests that the EDA approve a resolution establishing that the properties and buildings located at 4200 Xylon Avenue North and 4300 Xylon Avenue North meet the blight test criteria, and have ample structural deficiencies to create a TIF district on these two properties in the future. Policy/Past Practice It is the practice of the EDA to require the approval of resolutions establishing blight on a property in order to create TIF districts. Background LHB has been hired in order to complete a blight analysis of the two redevelopment properties at 4200 and 4300 Xylon Avenue North. In order to preserve the EDA's ability to repay itself for its investment in the property, staff wants to make sure the EDA has the ability to create a redevelopment TIF district on these two parcels, if it so chooses. In order to create this type of TIF district, the parcels to be included have to meet a two -fold test: 1. 70% of the parcels have to be covered. (This test is met if 15% of the area of the parcel is covered by buildings, parking, sidewalks, utilities, etc.); and f %C M61 To: ice- Mo. /3-0-'k -Ato 13-63 I:\RFA\COMMDEV\Develo ment\Q R-KmartBlight Resolution1-14-13.doc Request for Action January 14, 2013 Page 2 2. More than 50% of the structures have to be considered substandard. (This test is met if the cost to bring the building up to current code requirements is more than 15% of the cost to construct the facility today.) The report from LHB has been finalized and it has been determined that the two parcels meet the two -fold test for blight. For this reason, staff is recommending the EDA pass a resolution stating that the parcels were occupied by structurally substandard buildings and that after demolition the EDA intends to include the parcels within a redevelopment TIF district. The EDA will have three (3) years from the date of the resolution to create a redevelopment TIF district on these two parcels. In addition, it is recommended that the EDA should approve an interfund loan resolution to cover the costs of the demolition of the Kmart building and the Wells Fargo drive-through building located on the subject parcels. State Statute requires that the EDA approve a resolution authorizing an internal (interfund) loan to a future TIF district and set the terms for reimbursement of the qualified TIF costs to be repaid with tax increments from the newly created TIF district. The source of funding for the demolition will be identified in the resolution, as well as other required terms. Recommendation Staff recommends approval of the Resolutions Attachments • Ehlers Blight memo • LHB Blight Report • Resolution approving Blight Report • Ehlers memo • Resolution Interfund Loan for Demo Ehlers memo • Resolution Interfund Loan for Admin Costs NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY CITY OF NEW HOPE COUNTY OF HENNEPIN STATE OF MINNESOTA EDA Resolution No. 2013- 01 A RESOLUTION FINDING THE EXISTENCE OF IMPROVEMENTS AND STRUCTURALLY SUBSTANDARD BUILDINGS ON REAL PROPERTY THAT MAY BE INCLUDED IN A TAX INCREMENT DISTRICT, PURSUANT TO MINNESOTA STATUTES, SECTION 469.174, SUBDIVISION 10(d) (project 893) WHEREAS, the New Hope Economic Development Authority (the "Authority") has acquired certain real property located within the City of New Hope (the "City"), which real property is referred to herein as the "Property" and is legally described on the attached Exhibit A; and WHEREAS, the Property contains buildings that the Authority believes qualify as "structurally substandard" within the meaning of Minnesota Statutes, section 469.174, subd. 10, of the Minnesota tax increment financing laws; and WHEREAS, the Authority intends to undertake or assist in the redevelopment of the Property and, in this regard, has determined that it may create a new tax increment financing district to encompass the Property and to provide a funding source for the redevelopment of the Property; and WHEREAS, the Authority desires to demolish or cause to be demolished certain buildings and improvements located on the Property prior to the time that a new tax increment district can be created; and WHEREAS, Minnesota Statutes, section 469.174, subd. 10(d), provides that a parcel of property on which a structurally substandard building has been demolished by an authority or by a developer under a development agreement with the authority may still be treated as if occupied by such building for purposes of creating a tax increment financing district if prior to the demolition the authority finds by resolution that the parcel was occupied by a structurally substandard building and that the authority intends to include the parcel in a tax increment district, and WHEREAS, the Authority by this resolution intends to preserve its ability to deem the Property as occupied by structurally substandard buildings for purposes of including the Property in a future tax increment financing district. NOW, THEREFORE, be it hereby resolved by the Board of Commissioners of the Authority as follows: 1. Based upon all of the information available to the Authority, including reports of the Authority's staff, including City building officials and the report dated as of January 9, 2013 prepared by LHB, Inc., on behalf of the City and Authority, the Authority hereby finds that each parcel of the Property is occupied by a structurally substandard building for the following reasons: a. At least 15% of the area of each parcel comprising the Property is occupied by buildings, streets, utilities, paved or gravel parking lots or other similar structures; b. Each building located on the Property contains defects in structural elements or a combination of deficiencies in essential utilities and facilities, light and ventilation, fire protection including adequate egress, layout and condition of interior partitions, or similar factors, which defects or deficiencies are of sufficient total significance to justify substantial renovation or clearance; and C. The buildings are not in compliance with the building code applicable to new buildings and could not be modified to satisfy the building code at a cost of less than 15% of the cost of constructing a new structure of the same square footage and type on the site. 2. The demolition of the buildings on the Property will be undertaken by the Authority or financed by the Authority or by a developer under a development agreement with the Authority. 3. After demolition of the buildings the Authority intends to include the Property in a new tax increment district if such district is created. 4. Supporting data for the Board of Commissioner's findings in this Resolution will be maintained in the offices of the Authority for the duration of the tax increment district to be created. Adopted by the Board of Commissioners of the New Hope Economic Development Authority this 14th day of January, 2013. President ATTESTED: ' l Ex- ecuti a Director EXHIBIT A Description of Property ADDRESS: 4200 Xylon Avenue North PID: #18-118-21-11-0012 ADDITION NAME: Unplatted 18 118 21 South 223.58 feet of West 190 feet of Northeast Quarter of Northeast Quarter, except roads. ADDRESS; 4300 Xylon Avenue North PID; #18-118-21-11-0013 ADDITION NAME: Unplatted 18 118 21 That part of the West Half of Northeast Quarter of Northeast Quarter lying South of North 350.98 feet thereof; except South 223.58 feet of West 190 feet thereof; and except South 165 feet of East 82.5 feet thereof; and except roads. EDA RESOLUTION NO. 2013-02 NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY CITY OF NEW HOPE HENNEPIN COUNTY STATE OF MINNESOTA Commissioner Elder introduced the following resolution and moved its adoption: RESOLUTION NO. 2013- 02 RESOLUTION AUTHORIZING AN INTERFUND LOAN UP TO $200,000 FOR ADVANCE OF CERTAIN COSTS IN CONNECTION WITH A TAX INCREMENT FINANCING DISTRICT THAT MAY BE CREATED BY THE CITY OF NEW HOPE AND THE NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY. BE IT RESOLVED by the Board of Commissioners (the "Board") of the New Hope Economic Development Authority (the "Authority"), as follows: Section 1. Background. 1.01. The Authority and the City of New Hope (the "City") intend to create in the future a tax increment financing district (the "TIF District") in order to provide a funding source to assist in the redevelopment of certain real property in the City (the "Property"), which Property has been acquired by the Authority. 1.02. The Authority has determined to pay for certain costs identified in the TIF Plan consisting of demolition of buildings located on the Property, remediation of environmental conditions, other qualifying improvements and interest (collectively, the "Qualified Costs"), which costs may be financed on a temporary basis from Authority funds available for such purposes. 1.03. Under Minnesota Statutes, Section 469.178, Subd. 7, the Authority is authorized to advance money from the Authority's general fund or any other fund from which such advances may be legally authorized, in order to finance the Qualified Costs. 1.04. The Authority intends to reimburse itself for the funds advanced for Qualified Costs from tax increments derived from the TIF District in accordance with the terms of this resolution (which terms are referred to collectively as the "Interfund Loan"). Section 2. Terms of Interfund Loan. 2,01. The Authority hereby authorizes the advance of up to $200,000 from TIF District No. 86-1 or so much thereof as may be paid as Qualified Costs. The Authority shall be reimbursed for such advances together with interest at the rate stated below. Interest accrues on the principal amount from the date of each advance. The maximum rate of interest permitted to be charged is limited to the greater of the rates specified under Minnesota Statutes, Section 270C.40 or Section 549.09 as of the date the loan or advance is authorized, unless the written agreement states that the maximum interest rate will fluctuate as the interest rates specified under Minnesota Statutes, Section 270C.40 or Section 549.09 are from time to time adjusted. The interest rate shall be 4% and will not fluctuate. 2,02. Principal and interest ("Payments") on the Interfund Loan shall be paid semi-annually on each August 1 and February 1 (each a "Payment Date"), commencing on the first Payment Date on which the Authority has Available Tax Increment (defined below), or on any other dates determined by the Authority's Executive Director, through the date of last receipt of tax increment from the TIF District. 2.03. Payments on this Intertund Loan are payable solely trom "Available Tax Increment," which shall mean, on each Payment Date, tax increment available after other obligations have been paid, or as determined by the Executive Director, generated in the preceding six (6) months with respect to the property within the TIF District and remitted to the Authority by Hennepin County, all in accordance with Minnesota Statutes, Sections 469.174 to 469.1799, all inclusive, as amended. Payments on this Interfund Loan may be subordinated to any outstanding or future bonds, notes or contracts secured in whole or in part with Available Tax Increment, and are on parity with any other outstanding or future interfund loans secured in whole or in part with Available Tax Increment. 2.04. The principal sum and all accrued interest payable under this Interfund Loan are pre -payable in whole or in part at any time without premium or penalty. No partial prepayment shall affect the amount or timing of any other regular payment otherwise required to be made under this Interfund Loan. 2.05. This Interfund Loan is evidence of an internal borrowing by the Authority in accordance with Minnesota Statutes, Section 469.178, Subd. 7, and is a limited obligation payable solely from Available Tax Increment pledged to the payment hereof under this resolution. This Interfund Loan and the interest hereon shall not be deemed to constitute a general obligation of the State of Minnesota or any political subdivision thereof, including, without limitation, the City and Authority. Neither the State of Minnesota, nor any political subdivision thereof shall be obligated to pay the principal of or interest on this Interfund Loan or other costs incident hereto except out of Available Tax Increment, and neither the full faith and credit nor the taxing power of the State of Minnesota or any political subdivision thereof is pledged to the payment of the principal of or interest on this Interfund Loan or other costs incident hereto. The Authority shall have no obligation to pay any principal amount of the Interfund Loan or accrued interest thereon, which may remain unpaid after the final Payment Date. 2.06. The Authority may amend the terms of this Interfund Loan at any time by resolution of the Board of Commissioners, including a determination to forgive the outstanding principal amount and accrued interest to the extent permissible under law. Section 3. Effective Date. This resolution is effective upon the date of its approval. The motion for the adoption of the foregoing resolution was duly seconded by Commissioner Stauner , and upon a vote being taken thereon, the following voted in favor thereof: Hemken, Elder, Hoffe, Lammle, Stauner and the fallowing voted against the same:. Hone Dated; January 14, 2013 F.IU65619 Executive Director 4- �_ .t, ILt tiiV"{�- President EDA RESOLUTION NO. 2013-03 NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY CITY OF NEW HOPE HENNEPIN COUNTY STATE OF MINNESOTA Commissioner Stauner introduced the following resolution and moved its adoption: RESOLUTION NO. 2013- 03 RESOLUTION AUTHORIZING AN INTERFUND LOAN UP TO $100,000 FOR ADVANCE OF CERTAIN COSTS IN CONNECTION WITH A TAX INCREMENT FINANCING DISTRICT THAT MAY BE CREATED BY THE CITY OF NEW HOPE AND THE NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY. BE IT RESOLVED by the Board of Commissioners (the "Board") of the New Hope Economic Development Authority (the "Authority"), as follows: Section 1. 13ackground. 1.01. The Authority and the City of New Hope (the "City") intend to create in the future :7 tax increment financing district (the "TIF District") in order to provide a funding source to assist in the redevelopment of certain real property in the City (the "Property"), which Property has been acquired by the Authority. 1..02. The Authority has determined to pay for certain costs identified in the TIF Plan consisting of demolition of buildings located on the Property, administrative expenses, including but not limited to fees of attorney and financial advisors, and interest (collectively, the "Qualified Costs"), which costs may be financed on a temporary basis from Authority funds available for such purposes. 1.03. Under Minnesota Statutes, Section 469.178, Subd. 7, the Authority is authorized to advance money from the Authority's general fund or any other fund from which such advances may be legally authorized, in order to finance the Qualified Costs. 1.04. The Authority intends to reimburse itself for the funds advanced for Qualified Costs from tax increments derived from the TIF District in accordance with the terms of this resolution (which terms are referred to collectively as the "Interfund Loan"). Section 2. Terms of Interfund Loan. 2.01. The Authority hereby authorizes the advance of up to $100,000 from funds of the Authority or so much thereof as may be paid as Qualified Costs. The Authority shall be reimbursed for such advances together with interest at the rate stated below. Interest accrues on the principal amount from the date of each advance. The maximum rate of interest permitted to be charged is limited to the greater of the rates specified under Minnesota Statutes, Section 270C.40 or Section 549.09 as of the date the loan or advance is authorized, unless the written agreement states that the maximum interest rate will fluctuate as the interest rates specified under Minnesota Statutes, Section 270C.40 or Section 549.09 are from time to time adjusted. The interest rate shall be 4% and will not fluctuate. 2.02. Principal and interest ("Payments") on the Interfund Loan shall be paid semi-annually on each August 1 and February 1 (each a "Payment Date"), commencing on the first Payment Date on which the Authority has Available Tax Increment (defined below), or on any other dates determined by the Authority's Executive Director, through the date of last receipt of tax increment from the TIF District. 2.03. Payments on this Interfund Loan are payable solely from "Available `fax increment," which shall mean, on each Payment Date, tax increment available after other obligations have been paid, or as determined by the Executive Director, generated in the preceding six (6) months with respect to the property within the TIF District and remitted to the Authority by Hennepin County, all in accordance with Minnesota Statutes, Sections 469.174 to 469.1799, all inclusive, as amended. Payments on this Interfund Loan may be subordinated to any outstanding or future bonds, notes or contracts secured in whole or in part with Available Tax Increment, and are on parity with any other outstanding, or future interfund loans secured in whole or in part with Available Tax Increment. 2.04. The principal sum and all accrued interest payable under this Interfund Loan are pre -payable in whole or in part at any time without premium or penalty. No partial prepayment shall affect the amount or timing of any other regular payment otherwise required to be made under this Interfund Loan. 2.05. This Interfund Loan is evidence of an internal borrowing by the Authority in accordance with Minnesota Statutes, Section 469.178, Subd. 7, and is a limited obligation payable solely from Available Tax Increment pledged to the payment hereof under this resolution. This Interfund Loan and the interest hereon shall not be deemed to constitute a general obligation of the State of Minnesota or any political subdivision thereof, including, without limitation, the City and Authority. Neither the State of Minnesota, nor any political subdivision thereof shall be obligated to pay the principal of or interest on this Interfund Loan or other costs incident hereto except out of Available Tax Increment, and neither the full faith and credit nor the taxing power of the State of Minnesota or any political subdivision thereof is pledged to the payment of the principal of or interest on this Interfund Loan or other costs incident hereto. The Authority shall have no obligation to pay any principal amount of the Interfund Loan or accrued interest thereon, which may remain unpaid after the final Payment Date. 2.06. The Authority may amend the terms of this Interfund Loan at any time by resolution of the Board of Commissioners, including a determination to forgive the outstanding principal amount and accrued interest to the extent permissible under law. Section 3. Effective Date. This resolution is effective upon the date of its approval. The motion for the adoption of the foregoing resolution was duly seconded by Commissioner Lammle , and upon a vote being taken thereon, the following voted in favor thereof: Hemken, Elder, Hoffe, Lammle, Stauner and the following voted against the same: None Dated: January 14, 2013 ATTEST: Executive Director President Memo To: Kirk McDonald — EDA Executive Director From. Stacie Kvilvang D'��fe: January 9, 2013 Sul• *&,- Interfund Loan Resolution Administrative Costs I: : The City and EDA will be expending funds for various administrative costs associated with the redevelopment of the Kmart and Bank Building site (blight analysis, Financial, legal and planning consultants, etc.). Since it may be a year or two before a TIF district is created for the redevelopment, the City and EDA will need to "front" these costs. If the City and EDA want to be reimbursed for these costs at a future date from TIF administrative funds, then an interfund loan is required before the expenditures are made. Attached is a "blanket" resolution authorizing an interfund loan of up to $100,000 from the City's1EDA's EDA Fund to the future TIF District. The reason for this blanket interfund loan resolution is so the City and EDA will not have to complete an interfund loan every time it is going to expend administrative costs for this project. The City and EDA will reimburse the EDA Fund for the above referenced costs (as they are advanced) in the current principal amount, together with interest at the rate of 4% per annum, when TIF funds become available, The interest rate is set at the statutory maximum and will not be adjusted annually. Completing this action provides the City and EDA with the most flexibility to reimburse itself in the future if and when a TIF district is created. Please contact me at 651-697-8506 with any questions. , E H L RS LEAVERS IN PUH LIC FINANCE Minnesota Offices also in Wisconsin and Illinois phone 661-697-8500 fax 651-697-8555 toll free 800-552-1171 w�wwv,ehl�rs-ir�;�.cc�m 3060 Centre Pointe Drive Roseville, MN 55113-1122 INA Kirk McDonald — EDA Executive Director :tea �^rr:: Stacie Kvilvang ai.e: January 9, 2013 S;: ;jjec 1: Blight Analysis and Demolition of Kmart and Bank Building iii` 11�0: The City/EDA hired LHB to complete the required inspection of the above referenced properties to determine if they would meet the substandard/blight test for inclusion in a future redevelopment district. As you recall, in order for a building to be considered substandard, the cost to bring the building up to current code requirements must be more than 15% of the cost to construct the same building today. LHB completed the inspections of the buildings on December 27, 2012 and found both structures to be substandard. The percentage replacement cost for the Kmart building was 16.5% and the bank building was 19.2% (see attached report). Since the City/EDA would like to tear these buildings down prior to creation of the TIF district, the EDA must pass a resolution stating that the two parcels are occupied by substandard buildings and that after demolition the EDA intends to include the parcels within a TIF district. The EDA will have three (3) years from the date of the resolution to create a TIF district on those two (2) parcels and an additional outlot parcel (total of 3 parcels). Please contact me at 651-697-8506 with any questions. EHLERS LEADERS IN PUBLIC FINANCE Minnesota phony 651-697-8500 Offices also in Wisconsin and Illinois fm 551-697-8555 toll tree 800-552-1171 www,chlors- inc. com 3060 Centre Pointe Drive Roseville, MN 55113-1122 250 Third Avenue North, Suite 450 Minneapolis, Minnesota 55401 612.338.2029 Fax 612.338.2088 www.LHBcorp.com January 9, 2013 Jeff Sargent Planning and Development City of New Hope 4401 Xylon Avenue Forth New Hope, MIN55428 TIF ANALYSIS FOR THE KMART SITE LHB was hired to inspect the tormer Kmart store and bank building at 4200 and 4300 Xylon Avenue North in New Hope, MN in order to determine if they meet the definition of "Substandard" as defined by Minnesota Statutes, Section 469.174, subdivision 10. The buildings could potentially be included in a future Redevelopment TIF District, so will need to be compliant with all of the statutes pertaining to a Redevelopment District. CONCLUSION After inspecting and evaluating the buildings within the potential TIF District on December 27, 2012, and applying current statutory criteria for a Redevelopment District under Minnesota Statutes, ,section 469.174, Subdivision 10, it is our professional opinion that both buildings qualify as substandard. The remainder of this letter and attachments describe our process and findings in detail. PART 2 — MINNESOTA _STATUTE 469.174, SUBDIVISION 10 REQUIREMENTS The properties were inspected in accordance with the following requirements under Minnesota Statutes, Section 469.174, Subdivision 10(c), which states: Interior Inspection "The municipality may not make such determination [that the building is structurally substandard] without an interior inspection of the property..." Exterior Inspection and Other Means "An interior inspection of the property is not required, if the municipality finds that (1) the municipality or authority is unable to gain access to the property after using its best efforts to obtain permission from the party that owns or controls the property; and (2) the evidence otherwise supports a reasonable conclusion that the building is structurally substandard." Documentation "Written documentation of the findings and reasons why an interior inspection was not conducted must be made and retained under section 469.175, subdivision 3(1)." Duluth, MN Minneapolis, MN Kmart site TIF Arialysis Page 2 of 5 January 9, 2013 Qualification Requirements Minnesota Statutes, Section 469.174, Subdivision 10 (a) (1) requires two tests for occupied parcels: A. Coverage Test ...°°parcels consisting of 70 percent of the area of the district are occupied by buildings, streets, utilities, or paved or gravel parking lots" The coverage required by the parcel to be considered occupied is defined under Minnesota Statutes, Section 469.174, Subdivision 10(e), which states: "For purposes of this subdivision, a parcel is not occupied by buildings, streets, utilities, or paved or gravel parking lots unless 15 percent of the area of the parcel contains building, streets, utilities, or paved or gravel parking lots." The Kmart property includes three parcels, (labeled A, B and C on the site diagram below). Parcel A is 545,415 sf with approximately 98 percent of the square footage occupied by buildings, and parking lots. Parcel B is 27,143 sf and is 97 percent covered. Parcel C is 11,600 sf and 99 percent covered. Findings: More than 15 percent of parcel A, B and C is occupied by buildings, streets, utilities, or paved or gravel parking lots (see attached site diagram). Site Diagram Kmart site TJF Analysis Page 3 of 5 January 9, 2013 B. Condition of Buildings Test ..."and more than 50 percent of the buildings, not including outbuildings, are structurally substandard to a degree requiring substantial renovation or clearance;" 1. Structurally substandard is defined under Minnesota Statutes, Section 469.174, Subdivision 10(b), which states: "For purposes of this subdivision, `structurally substandard' shall mean containing defects in structural elements or a combination of deficiencies in essential utilities and facilities, light and ventilation, fire protection including adequate egress, layout and condition of interior partitions, or similar factors, which defects or deficiencies are of sufficient total significance to justify substantial renovation or clearance." a. We do not count energy code deficiencies toward the thresholds required by Minnesota Statutes, Section 469.174, Subdivision 10(b)) defined as "structurally substandard", due to concerns expressed by the State of Minnesota Court of Appeals in the Walser Auto Sales, Inc. vs. City of Richfield case filed November 13, 2001. Findings: Both buildings exceed the criteria required to be determined a substandard building. 2. Buildings are not eligible to be considered structurally substandard unless they meet certain additional criteria, as set forth in Subdivision 10(c) which states: "A building is not structurally substandard if it is in compliance with the building code applicable to new buildings or could be modified to satisfy the building code at a cost of less than 15 percent of the cost of constructing a new structure of the same square footage and type on the site. The municipality may find that a building is not disqualified as structurally substandard under the preceding sentence on the basis of reasonably available evidence, such as the size, type, and age of the building, the average cost of plumbing, electrical, or structural repairs, or other similar reliable evidence." "Items of evidence that support such a conclusion [that the building is not disqualified] include recent fire or police inspections, on-site property appraisals or housing inspections, exterior evidence of deterioration, or other similar reliable evidence." LHB counts energy code deficiencies toward the 15 percent code threshold required by Minnesota Statutes, Section 469.174, Subdivision 10(c)) for the following reasons: The Minnesota energy code is one of ten building code areas highlighted by the Minnesota Department of Labor and Industry website where minimum construction standards are required by law. The index page of the 2007 Minnesota Building Code lists the Minnesota Energy Code as a "Required Enforcement" area compared to an additional list of "Optional Enforcement" chapters. • The Senior Building Code Representative for the Construction Codes and Licensing Division of the Minnesota Department of Labor and Industry Kmart site TIF Analysis Page 4 of 5 January 9, 2013 confirmed that the Minnesota Energy Code is being enforced throughout the State of Minnesota. In a January 2002 report to the Minnesota Legislature, the Management Analysis Division of the Minnesota Department of Administration confirmed that the construction cost of new buildings complying with the Minnesota Energy Code is higher than buildings built prior to the enactment of the code. Proper TIF analysis requires a comparison between the replacement value of a new building built under current code standards with the repairs that would be necessary to bring the existing building up to current code standards. In order for an equal comparison to be made, all applicable code chapters should be applied to both scenarios. Since current construction estimating software automatically applies the construction cost of complying with the Minnesota Energy Code, energy code deficiencies should also be identified in the existing structures. Findings: Both buildings exceed the building code deficiency criteria required to be determined substandard, with over 15 percent of the replacement value required to modify building code deficiencies. TEAM CREDENTIALS Michael A. Fischer, AIA LEED AP- Project Principal/TIFAnalyst Michael has twenty-four years of architectural experience as project principal, project manager, project designer and project architect on municipal planning, educational, commercial and governmental projects. He is a Senior Vice President at LHB and currently leads the Minneapolis office. Michael completed a two-year Bush Fellowship at the Massachusetts Institute of Technology in 1999, earning Masters Degrees in City Planning and Real Estate Development. Michael has served on over 35 committees, boards and community task forces, including a term as City Council President and Chair of the Duluth/Superior Metropolitan Planning organization. He is currently a Planning Commisioner in Edina, Minnesota. Michael was one of four architects in the country to receive the National "Young Architects Citation" from the American Institute of Architects in 1997. Ben Trousdale, AIA -Project Manager/Inspector Ben is a project architect in LHB's Minneapolis office with 20 years of experience working on a variety of multi -family housing and commercial projects. He has extensive skills in creating quality construction documents that convey a building's fundamentals and unique design details. His responsibilities include project management, code analysis, and overseeing document production. Ben is a licensed architect in Minnesota and is involved with AIA activities including Search for Shelter charrettes, Kmart site TIF Analysis Page 5 of 5 January 9, 2013 We have attached building codelcondition deficiency reports, Replacement Cost worksheets, Code -related repair cost worksheets, and thumbnail photo sheets for each building, for inclusion in your council resolution. Please contact me at (612) 752-6920 if you have any questions. LHB INC. _VIICHAEL A. FISCHER, AIA, LEED AP SENIOR VICE PRESIDENT MAI 2P:o;1120684\400 Design1406 Reports\TERF A ReportlNew Hope Kmart and Bank Building lztter of Finding 01-09- i ldoc NEW HOPE, MNNESOTA TIF ANALYSIS CODEXONDITION DEFICIENCY REPORT January 9, 2013 Building Name & Address: Parcel A - Former Kmart, 4300 Xylon Av N Inspection Date(s) & Time(s): December 27, 2012; 2:30pm Inspection Type: Interior/Exterior Summary of Deficiencies: It is our professional opinion that this building is Substandard because: Building Code deficiencies total more than 15% of replacement cost. Substantial renovation is required to correct Conditions found. Estimated Replacement Cost: $10,216,191 Estimated Cost to Correct Building Code Deficiencies: $1,680,898 Percentage of Replacement Cost: 16.5% Description of Condition Deficiencies Minnesota Statutes, Section 469.174, Subdivision 10, states that building is Structurally Substandard if it contains "defects in structural elements or a combination of deficiencies in essential utilities and facilities, light and ventilation, fire protection including adequate egress, layout and condition of interior partitions, or similar factors, which defects or deficiencies are of sufficient total significance to justify substantial renovation or clearance." A. Defects in Structural Elements 1. The existing gutters and downspouts need to be replaced. 2. The building is experiencing water intrusion in multiple locations causing damage to walls. B. Combination of Deficiencies 1. Essential Utilities and Facilities a. Mechanical system is inadequate. b. Freeze damage to hydronic heat pipes in storage area of smaller retail area. c. The existing bathrooms are too small to meet ADA requirements. 2. Light and Ventilation a. Install a new ventilation system. b. Replace T-8 light fixtures. c. Light fixtures are dated, in some disrepair and unsightly. 3. Fire Protection/Adequate Egress a Stairs to second floor office areas in both retail spaces do not meet code. Risers exceed maximum height allowed and treads are less than minimum depth allowed. b. Three exterior doors require stoops so that landings on both sides of the door are at the same elevation. 4. Layout and Condition of Interior Partitions/Materials a. VCT floor is dirty, worn, scratched and cracked throughout and heaving in a few places. b. Water damaged ceiling tile in employee women's locker room. c. Vandalized or damaged walls in former in-store fast food and snack area. d. Ceiling tile in retail area a patch work of various replacement styles and textures. e. Water damage to ceiling tiles in smaller retail area. f. Ad hoc expanding foam insulation repair at perimeter of secondary retail area. Exterior Construction a. Gutters and downspouts are damaged and need replacement. b. Concrete masonry badly water damaged. c. Broken windows in former garden sales area. d. Storefront windows are not thermally broken/ e. Storefront window seals are failing. f. Hollow metal door and door frames rusting away. g. Horizontal and vertical cracks in concrete masonry throughout. h. Sealant at control joints in concrete masonry has failed in most places. L Sealant at joints between building and windows and doors has failed. j. Sealant at joints between building and adjacent pavement has failed. k. One of the spandrel panels in the storefront has been punctured. 1. Two aluminum covers are missing from storefront vertical members. m. Roofing pitch from ad hoc repair is dripping down the sides of the walls. n. Steel construction components are rusting. Overview of Condition Deficiencies The former Kmart has defects in structural elements including most of the exterior envelope, allowing water intrusion into the building. In addition, the building has deficiencies in all five categories listed above, including serious deficiencies in the mechanical system and accessibility. The building is currently vacant and suffers from a severe lack of routine maintenance, modernization and is victim of general neglect inside and out that are emblematic of a failing and cash-strapped business. In total, the defects and deficiencies in this building are of sufficient total significance to justify substantial renovation or clearance. Description of Code Deficiencies 1. Door thresholds at smaller retail space are not accessible. 2. Roof edge and gutters are leaking causing water and freeze -thaw damage to concrete masonry walls. 3. Bathrooms do not meet accessibility requirements (IBC Chapter 11). Replace existing bathrooms with new accessible bathrooms. 4. Storage mezzanines constructed out of combustible material where not allowed in a building required to have non-combustible construction. 5. Mezzanine storage stairs and guards do not meet building code. 6. Stairs to second floor office areas do not meet building code. 7. Second floor office areas of both retail spaces are not accessible. 8. Doors in employee locker rooms, bathrooms and other spaces are too narrow for accessible routes to these areas. 9. Mechanical system is none functional, old and energy inefficient. 10. No ships ladder or stair to roof top mechanical equipment. Square Foot Cost Estimate Report Estimate Name Kmart M New Hope City of New Hope 4300 Xylon Ave North, New Hope, MN Store, Department,) Story with Decorative Building Type: Concrete Block / Steel Joists Location: MINNEAPOLIS, MN :- Story Count: 1 Story Height (LF.): i6 Floor Area (S.F.): 115,492 *` .- Labor Typc: OPN --.. B;Sement included: No DataR4_easc: Year 2012 Quarter L+:tsare didndfromabulld.sgmcc:t51•i:bas's comprnrrits. Cost Per Square Foot: $88.46 Scora :•`fer«rresand marketen•tilt" a: is can c.3umL: stovarys;ynY.iltly. Buildin^ Cost: $10,216,191 %�of!T�ot�al Cost Per S.F. Cost A1010 Standard Foundations $0.94 $108,562 KSF,12" deep x 24" wide 5' - 6" square x 13" deep A1030 Slab on Grade $5.41 $624,812 Slab on grade, 4" thick, non industrial, reinforced A2010 Basement Excavation $0.32 $36,957 site storage A2020 Basement Walls $0.99 $114,337 thick 81010 Floor Construction $0.45 $51,971 column, 2 hour rating, 18 PLF 83020 Roof Construction $10.96 $1,265,792 28" deep, 40 PSF superimposed load, 62 PSF total load 28" deep, 40 PSF superimposed load, 62 PSF total load, add for column B2010 Exterior Walls $3.34 $385,743 8x8x16, reinforced, vertical #5@16", grouted B2020 Exterior Windows $1.36 $157,069 1 intermediate horizontal Glazing panel, plate glass, 3/8" thick, tinted B2030 Exterior Doors - $0.42 $48,507 opening 0" opening B3010 Roof Coverings $5.52 $637,516 mopped Insulation, rigid, roof deck, composite with 2" EPS, 1" perlite Roof edges, aluminum, duranodic, .050" thick, 6" face Gravel stop, aluminum, extruded, 4", mill finish, .050" thick B3020 Roof Openings $0.06 $6,930 steel, 165 lbs operator C1010 Partitions $1.94 $224,054 gypsum board, 2-1/2" @ 24", same opposite face, no insulation 1/2" fire ratedgypsum board, taped & finished, painted on metal furring C1020 Interior Doors $2.10 $242,533 3'-0" x 7'-0" x 1-3/8" C3010 Wall Finishes $0.30 $34,648 primer & 2 coats C3020 Floor Finishes $14.27 $1,648,071 Carpet tile, nylon, fusion bonded, 18" x 18" or 24" x 24", 35 oz Tile, ceramic natural clay, marble, synthetic 12" x 12" x 5/8" C3030 Ceiling Finishes $4.44 $512,784 channel grid, adhesive back support D2010 Plumbing Fixtures $1.57 $181,322 Water closet, vitreous china, bowl only with flush valve, wall hung Urinal, vitreous china, wall hung Lavatory w/trlm, vanity top, PE on Cl, 20" x 18" Service sink w/trim, PE on Cl,wall hung w/rim guard, 24" x 20" Water cooler, electric, wall hung, dual height, 14.3 GPH 132020 Domestic Water Distribution $0.36 $41,577 Gas fired water heater, commercial, 100< F rise, 500 MBH input, 480 GPH D2040 Rain Water Drainage $0.73 $84,309 Roof drain, Cl, soil,single hub, 6" diam, 10' high Roof drain, Cl, soll,single hub, 6" diam, for each additional foot add Roof drain, Cl, soil,single hub, 8" diam, for each additional foot add D3050 Terminal & Package Units $7.50 $866,190 ton D4010 Sprinklers $3.11 $359,180 Wet pipe sprinkler systems, steel, light hazard, 1 floor, 50,000 SF 135010 Electrical Service/Distribution $0.89 $102,788 phase, 4 wire, 120/208 V, 1200 A Feeder installation 600 V, including RGS conduit and XHHW wire, 1200 A Switchgear installation, incl switchboard, panels & circuit breaker, 1200 A D5020 Lighting and Branch Wiring $8.68 $1,002,471 with transformer Miscellaneous power, to .5 watts Central air conditioning power, 3 watts fixtures @32watt per 1000 SF D5030 Communications and Security $1.22 $140,900 detectors, includes outlets, boxes, conduit and wire Fire alarm command center, addressable with voice, excl. wire & conduit Internet wiring, 2 data/volce outlets per 1000 S.F. D5090 Other Electrical Systems $0.04 $4,620 gas/gasoline operated, 3 phase, 4 wire, 277/480 V, 7.5 kW E x,090 Other Equlpmebt $1100 .;0 low.'-- SubTotal 100% $76.92 $8,883,645 Contractor Fees (General Conditlons,Overhead,Profit) 10% $7.69 $888,364 Architectural Fees 5% $3.85 $444,182 User Fees 0.00% $0.00 $0 New Hope, Minnesota Proposed TIF Project No. 120684 Former Kmart Department Store Site PID 18-118-21-11-0013, 4300 Xylon Av. N. Unit Code Related Cost Items Unit Cost Units Quantity Total Handicap Items Replace toFe53 to provide handicap access for each sex Build (2) new acccessib;e toilet rooms Wl compliant, number of accessories and fixtures Part?al removal exis!tng toilet roams $ 500.00 Lump 8 $ 4,000.00 6 water closets $ 2,500.00 each 8 $ 20,000.00 8 !ays $ 1,750.00 each 2 $ 3,500.00 4 Unna! $ 1,750.00 each 1 $ 1,750.00 6 sets of grab bars $ 4CC.00 each 2 $ 800.00 8 sets to!!et .room accessories $ 500.00 each 2 $ 1,000.00 Irteror room reconstruction (doors, partitions,finishes) $ 60.00 SF 960 $ 57,600.00 Provide 1 handicapped parking space Add striping at main entry door and existing bituminous parking area $ 50.00 lump 10.00 $ 500.00 Park'ng requires signage MN 1341.0428 $ 150.00 lump 10.00 $ 1,500.00 Interior con5guration does not provide for accessible route. Interor handicap access route not provided through out building. MN 1345.0405, Item E Add Elevator to 2nd floor office area both stores 2 - Elevator Pit and footings $ 8,000.00 Lump 2 $ 16,000.00 2 - 12" CMU Elevator Shaft walls $ 13.00 SF 2,432 $ 31,616.00 2 - Elevator Equipment (2 stop) $ 44,575.00 Lump 2 $ 89,150.00 2 - E!evator Equipment Room (Assume 64 SF) $ 30.00 SF 128 $ 3,840.00 2 - Power 100 amp 3 phase Safety Switch $ 520.00 Lump 2 $ 1,040.00 Circus: Breaker $ 795.00 Lump 2 $ 1,590.00 Motor Starter $ 450.00 Lump 2 $ 900.00 Wire and Conduit Feeder (150 feet assumed) $ 31.00 LF 300 $ 9,300.00 Fire Alarm Connections $ 1,300.00 lump 2 $ 2,000.00 Emergency Phone Connection $ 12.00 LF 300 $ 3,600.00 Interior doors to employee work areas, employee locker rooms, employee restrooms are not accessible. Demo existing doors and frames $ 100.00 Each 8 $ 800.00 Enlarge wall openings and install new doors and frames $ ',800.00 Each 8 $ 14,400.00 Patch and pant $ 80.00 Each 6 $ 64D.00 Provide access;ble entrances at main store entrances - threshed no greater than 112" high Remove existing aluminum entrance doors $ 250.00 Each 4.00 $ 1,000.00 Install new pairs of aluminum entrance doors $ 2,450.00 Each 4.00 $ 9,800.00 Fire Separation Items IBC 2406.2 - Provide fire rated safety glazing at storage areas and retail store. Fire rated hollow metal assembly with W.ra glass $ 80.00 SF 60.00 $ 5,050.00 Exiting Non-compliant exit stairs to storage mezzanines (12 thus) Stair riser exceeds maximum rise of 7'. IBC1009.3 Stair tread less than minimum 11". IBC 1CC9.3 Stairs do not provide for proper handrail extension at top and bottom of stair. ISC 1003.3.3.3.11.5. Remove existing wood stairs. $ 150-00 Each 14 $ 2,100.00 Flight of metal stairs constructed sor use in commercia; application $ 450.00 Riser 224 $ 100,800.00 Provide new railings at each location 32 feet per stalr $ 50.00 Foot 448 $ 22,400.130 Provide new stair tread coverings $ 56.00 Riser 224 $ 12,544.130 Non-compliant guards at mezzanine storage New Hope TIF Page 1 of 2 LHB Protect # 120684 New Hope, Minnesota Proposed TIF Project No. 120684 Former Kmart Department Store Site PID 18-118-21-11-0013, 4300 Xylon Av. N. Exterior Envelope Construction Repair holes in CMU walls and heavily damaged CMU block Demo and replace CMU block $ 85.00 SF 1,920.00 $ 163,200.00 Replace broken glass in former garden shop area $ 50.00 SF 115.00 $ 5,750.00 Repair cracks in CMU and failed sealant at CMU expansion joints, Voids in walls penetrate directly into the interior of the building Remove existing sealant and install new sealant $ 19.20 LF 30.00 $ 576.00 Install sealant it cracks $ 17.80 LF 150.00 $ 2,670.00 Exterior insulation Mechanlcal- Electrical Rep:ace ron-functioning, dated and norr-core compliant HVAC HVAC cost from replacement cost estimate $ 866,190.00 Lump 1 $ 866,190.00 Provide oil separator in garage spaces greater than 1,000 sf. MN 4715.1120 01! separator $ 4,000.00 Each 4 $ 16,000.00 Install 153 feet of 4" piping, out and patch slab $ 35.00 LF 150 $ 5,250.00 Total Code Improvements $ 1,680,898.00 New Hope TIF Page 2 of 2 LHB Project # 120684 Unit Code Related Cost items Unit Cost Units Quantity Total Demolish existrig guards $ 2.00 Foot 600 $ 1,200.00 Install new metal guards $ 50.00 Foot 600 $ 30,000.00 'Jon -compliant landings at exterior doors. Larding on exterior side is ;ower than door threshold and floor ins'de. Install stoop. Concrete stoop foundations 5' x 4' Excavation/Backfill $ 80.00 LF 30.00 $ 2,400.00 Strip Footings 12" x 18" $ 400.00 CY 2.00 $ 80C.00 8'° CMU foundation wal!s grout so:id $ 7.00 SF 12C.00 $ 840.00 Reinforced Concrete stoop on metai form deck $ 40C.00 CY 2.00 $ 800.00 Fire Protection IBC Chapter 6 - Type of Construction and Occupancy Building area and occupancy require non-combustible construction - storage mezzanines are constructed of wood Demo and replace storage mezzan'nes with steel or other non-combustible construction Demo wood mezzanines $ 0.95 SF 1.6,000 $ 15,200.00 Rebuild mezzanines of light gauge stee! framing, metal $ 8.80 SF '6,000 $ 140,800.00 & ourcrete deck Roof Construction Remove existing gutters and downspouts and replace with new. Existing are leaking a causing water and freeze -thaw damage on CMU exteriors Demolish existing gutters and downspouts $1,650.00 Allow 1 $ 1,650.00 Instaii new gutters and downspouts $2.30 LF 960 $ 2,208.00 Re -flash roof edge to gutters $6.40 LF 960 $ 6,144.00 Exterior Envelope Construction Repair holes in CMU walls and heavily damaged CMU block Demo and replace CMU block $ 85.00 SF 1,920.00 $ 163,200.00 Replace broken glass in former garden shop area $ 50.00 SF 115.00 $ 5,750.00 Repair cracks in CMU and failed sealant at CMU expansion joints, Voids in walls penetrate directly into the interior of the building Remove existing sealant and install new sealant $ 19.20 LF 30.00 $ 576.00 Install sealant it cracks $ 17.80 LF 150.00 $ 2,670.00 Exterior insulation Mechanlcal- Electrical Rep:ace ron-functioning, dated and norr-core compliant HVAC HVAC cost from replacement cost estimate $ 866,190.00 Lump 1 $ 866,190.00 Provide oil separator in garage spaces greater than 1,000 sf. MN 4715.1120 01! separator $ 4,000.00 Each 4 $ 16,000.00 Install 153 feet of 4" piping, out and patch slab $ 35.00 LF 150 $ 5,250.00 Total Code Improvements $ 1,680,898.00 New Hope TIF Page 2 of 2 LHB Project # 120684 f A IM7a'P27:4..IPG IMGP2725JPG � 1141�,P2725,JPG IMGP2727.JPG IMGP2712RJPG IMGP272Ci JPO IM+",yP2730 JPG IMGP2731.JP[3 lMGP2732 JPG IMGP2733.JPG IMGP2.734.JPG IMGP2735.JPG IMGP273$ .IPO IMGP2737.JPG IMGP2738.JPG Ih1GP2739 JPG IMGP2740.JPG IMGP2T41 JPG [MGP27$2.JPG lMGP2743,JPG II41GP2744 JPG IMGP278&JP G IMGPV4$ JPG IMGP.2747.-IPG IMGP274$.JPG IMfiP2749 JPG IMGP2751.JPG IMGP2752.JPG OEM IMGP2754.JPG IMGP2755.JPG IMGP2756.JPG IMGP2757 JPG I M GP2753.JPG IMGP2758.JPG IMGP2759.JPG PMGP27ijA JPG IMGP2760:JPG IMOP2761 JPG okAGP2752.JPG IMGP2765JPG IMGP2768 JPG IMGP2767.JPG IMGP2763.JPG i IMG7327a9.JPG IM P27 '9.JPG imGP2774-JPG IMGP2779.JPG IMGP2770.JPG 1MGP2771.JPGa imGPM5Irpo O MOR2770.JPG IMGP2772 JPG IMGP2777.JPG r• 4 QG[pg7ap JPG IIS GP77.Rt .;", i1„ L :3-�2.JPf IMGP2784.JPG = m. l MGP2789.JPG IMGP2785-JPC, IMGP2790 JPG IMGP2786 JPf] A&, t 7� IMGP2791.JPG I'MGP27a7 JPQ IMGP2792.JPG IMGP2773.JPG fMGP277&JPG IMGP2?83.JPi 1 IMGP270#3.,IPG I LI I MGP2793.JPG IMGP2794.JPG IMGP27'99.JPC3 IMGP.>.804.JPG IMGP27%.JPG WAGP2800.043 IMG P27 96-J P+G IMGP2797.JPG I MGF2801. 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JPG l Nl GP2926.JPG lMQP2927.J PG WrIP 9f9 JPC, IMGPZ9 Q.JPG A�1;P29 1.J� IMGP 932 1PG 1f I�aP"d9�3.,IPfi I*,dC,P293A J'!�C IMGP29J� JF'Q IMGP293G.JPG IMGP2 7.JFG lMG?.29a9,SPG IMGP2941.JPG IMGP2942.JPG I MGP2944.JPG IMGP2945,JPG IMGP294UPG IMr,,P2S47,JPC3 lM%P`1.951 JPG IdNG 2 9.JF'G IMGP255O.JPG IMGP2951.JPG IMGP2952 JPG V IMGP2A56. IhfGIa20.JPQIMGP,2ft7.JPG IMGP29W.JPG<. I MGP2968.JPG IMGP2960.JPG [MGP2961.JPG IMGP2962.JPG IMGP2963.JPG NEW HOPE, NUNNESOTA TIF ANALYSIS CODE/CONDITION DEFICIENCY REPORT January 9, 2013 Building Name & Address: Parcel B - Former Auto Bank, 4200 Xylon Av N Inspection Date(s) & Time(s): December 27,2012; 1:30pm Inspection Type: Interior/Exterior Summary of Deficiencies: It is our professional opinion that this building is Substandard because: Building Code deficiencies total more than 15% of replacement cost. Substantial renovation is required to correct Conditions found. Estimated Replacement Cost: $315,745 Estimated Cost to Correct Building Code Deficiencies: $60,611 Percentage of Replacement Cost: 19.2% Description of Condition Deficiencies Minnesota Statutes, Section 469.174, Subdivision 10, states that a building is Structurally Substandard if it contains "defects in structural elements or a combination of deficiencies in essential utilities and facilities, light and ventilation, fire protection including adequate egress, layout and condition of interior partitions, or similar factors, which defects or deficiencies are of sufficient total significance to ,justify substantial renovation or clearance." A. Defects in Structural Elements 1. Gypsum board behind vinyl wall covering of exterior walls is infested with mold. B. Combination of Deficiencies 1. Essential Utilities and Facilities a. Mechanical system ducts run underground and are not adequately protected from moisture intrusion. b. The existing bathrooms are too small to meet ADA requirements. c. Water service is disconnected. 2. Light and Ventilation a. Install a new ventilation system. b. Crack diffuser in ceiling light in lobby. 3. La out and Condition of Interior ParkitionsMaterials a. Carpet is somewhat worn and rather dirty. b. Some ceiling tiles are missing and/or misplaced. c. Mold behind vinyl wall covering of exterior walls. d. Broken teller window at walk-up lobby. 4. Exterior Construction a. Brick repair required at columns supporting drive-through canopy. b. Fascia and soffits in need of repair, paint. c. Aluminum entrance door finish is scratched and worn at bottom rail. d. Aluminum entrance door closer arm is disconnected. Overview of Condition Deficiencies The primary deficiencies of this former auto bank are accessibility and moisture related. Work areas and customer service areas in the walk-up lobby are not accessible and do not meet ADA. The HVAC air distribution is through underground ducts. Construction methodology for a building of this nature at the time of construction did not include adequate protection of the ducts from ground moisture intrusion leading to mold growth in the dust and dirt that accumulates there, The building exterior walls are finished with vinyl wall covering. A pealed back section of wall covering reveals extensive mold over the entire area. Vinyl wall covering has a well-deserved reputation for trapping moisture in the wall that leads to mold growth on the paper surface of the gypsum board. In total, the defects and deficiencies in this building are of sufficient total significance to justify substantial renovation or clearance. Description of Code Deficiencies 1. Underground ducts not built to resist moisture intrusion. Install a new ventilation system. 2. Bathrooms do not meet accessibility requirements (IBC Chapter 11). Replace existing bathrooms with new accessible bathrooms. 3. Employee kitchen is not accessible. 4. Service window and counter are not at an accessible height. 5. Lobby door threshold greater than %". 6. There is no water service to the building. Square Foot Cost Estimate Report Estimate Name- New Hope Auto Bank City of New Hope 4300 Xylon Avenue, New Hope, MN Bank with Face Brick with Concrete Block Back- Buildin ; Tyra; up / Steel Frame Loc-:ic y: MINNEAPOLIS, MN Story Count: 1::� Stork." I'ai„hc (L.F.): 12 � —�— x_ _•:�= FIoc-Ar,a (S. F.): 1,203LA . LaaorType: OPN "+`O r Basem=nt Included: No Data Release: Year 2012 Quarter x:sarL. ed;.,:aBE- %ins, ,: ea,:.rc•.,rvanur•s. Cast Per Square Fo:)t: $262.46 n, r_ d'c•_ nc: >and m: k :_ �M lonsG n c•usn i :r l i vary signitk.. rt'j. Building Cost: $315,745 % of Total Cost Per S.F. Cost A1010 Standard Foundations $5.88 $7,074 KSF, 12" deep x 24" wide 4'- 6" square'x 15" deep 5'- 6" square x 18" deep A1030 Slab on Grade $5.00 $6,015 Slab on grade, 4" thick, non industrial, reinforced A2010 Basement Excavation $0.29 $349 site storage A2020 Basement Walls $9.71 $11,681 thick B1020 Roof Construction $9.71 $11,681 20" deep, 40 PSF superimposed load, 60 PSF total load 20" deep, 40 PSF superimposed load, 60 PSF total load, add for column B2010 Exterior Walls $34.12 $41,046 perlite core fill 82020 Exterior Windows $9.71 $11,681 Windows, aluminum, sliding, insulated glass, Tx 3' 82030 Exterior Doors $1.47 $1,768 hardware, 6'-0" x 7'-0" opening 0" opening B3010 Roof Coverings $9.41 $11,320 mopped Insulation, rigid, roof deck, composite with 2" EPS, 1" perlite Roof edges, aluminum, duranodic, .050" thick, 6" face Flashing, aluminum, no backing sides, .019" Gravel stop, aluminum, extruded, 4", mill finish, .050" thick C1010 Partitions $6.76 $8,132 OC framing, same opposite face, no insulation 5/8" gypsum board, taped & finished, painted on metal furring C2020 Interior Doors $5.88 $7,074 3'-0" x 7'-0" x 1-3/8" C3010 Wall Finishes' $1.47 $1,768 primer & 2 coats Vinyl wall covering, fabric back, medium weight C3020 Floor Finishes $5.29 $6,364 Carpet tile, nylon, fusion bonded, 18" x 18" or 24" x 24", 35 oz Vinyl, composition tile, maximum Tile, quarry tile, mud set, maximum C3030 Ceiling Finishes $7.06 $8,493 channel grid, suspended support D2010 Plumbing Fixtures $8.82 $10,610 Water closet, vitreous china, bowl only with flush valve, wall hung Urinal, vitreous china, stall type Lavatory w/trim, wall hung, PE on Cl, 18" x 15" Service sink w/trim, PE on Cl, corner floor, 28" x 28", w/rim guard Water cooler, electric, wail hung, wheelchair type, 7.5 GPH D2020 Domestic Water Distribution $1.18 $1,420 Gas fired water heater, residential, 100a F rise, 30 gal tank, 32 GPH D2040 Rain Water Drainage $1.47 $1,768 Roof drain, DWV PVC, 4" diam, diam, 10' high Roof drain, DWV PVC, 4" diam, for each additional foot add D3050 Terminal & Package Units $11.76 $14,147 ton D5010 Electrical Service/Distribution $6.18 $7,435 phase, 4 wire, 120/208 V, 200 A Feeder installation 600 V, including RGS conduit and XHHW wire, 200 A Switchgear installation, incl switchboard, panels & circuit breaker, 400 A D5020 Lighting and Branch Wiring $9.41 $11,320 Receptacles incl plate, box, conduit, wire, 5 per 1000 SF, .6 watts per SF Wall switches, 2.0 per 1000 SF Miscellaneous power, 1 watt Central air conditioning power, 6 watts fixtures @32watt per 1000 SF D5030 Communications and Security $12.65 $15,218 Telephone wiring for offices & laboratories, 8 jacks/MSF detectors, includes outlets, boxes, conduit and wire conduit wire, master TV antenna systems, 32 outlets Internet wiring, 8 data/voice outlets per 1000 S.F. E1010 Commercial Equipment $7.65 $9,203 mike, no glazing, deluxe Architectural equipment, bank equipment, night depository, deluxe glazing, 44" x 60" E1020 Institutional Equipment $2.94 Patient monitoring closed circuit TV E1090 Other Equipment $41.47 weighs 750 Ib 1.00 -Bank equipment, pneumatic tube systems, complete, 2 lane drive -up 1.00 -Sank equipment, night depository, with chest, min excl. glass, min 1.00 -Counters, for banks, frontal only, complete with steel undercounter camera stations, add (camera & monitor) 2,00 -Teller window, bank equipment, bullet resistant, 44" x 60" Al F1040 Special FaciEities ?t door, Chars ,1I, 91:1, X wlde,.10" thick, rninlmljrn SubTotal Contractor Fees (General Conditions,Overhea d,Profit) Architectural Fees User Fees $3,537 $49,888 512.91+ >;15,567 11. 71 100% $228.23 $274,561 10% $22.82 $27,456 5% $11.41 $13,728 0% $0.00 $0 New Hope, Minnesota Proposed TIF Project No. 120684 Former Auto Bank PID 18-118-21-11-0012, 4200 Xylon Av. N. Unit Code Related Cost Items Unit Cost Units Quantity Total Handicap items Replace toilets to provide handicap access for each sex Build (2) new acccess;b[e toilet rooms WI compliant number of accessories and fodtures Remove exisitng toilet rooms $ 1,750.00 Lump 1 $ 1,750.00 2 water closets $ 2,50C.00 each 2 $ 5,000.00 2lays $ 1,750.00 each 2 $ 3,500.00 1 Urinal $ 1,750.00 each 1 $ 1,750.00 2 sets of grab bars $ 400.00 each 2 $ 800.00 2 sets toilet room accessories $ 500.00 each 2 $ 1,000.00 Interior room reconstruction. (doors, partitions,f'.nishes) $ 60.00 SF 120 $ 7,200.00 Reirstall toilet Room Vent!ation System $ 500.00 each 2 $ 1,000.00 Walk-in lobby teller window not at accessible height Demolish 1 teiler window & service counter $ 300.00 Allow 1 $ 300.00 Reconfigure brick wall for adjusted `.el'er window height $ 80.00 HR 16 $ 1,280.00 Install new teller window aeon $ 7,200.00 Each 11 $ 7,200.00 Install new se vice counter at accessible height $ 64.00 LF 10 5 640.00 Lower transfer door $ 500.00 Allow 1 $ 500.00 Employee kitchen not accessible Demolish existing base cabinets, counter and sink $ 200.00 Allow 1 $ 200.00 Install new base cabinets, counter and sink $ 240.00 LF 6 $ 1,440.00 Wall Construction Gypsum board behind vinyl covering and back of vinyl wall covering saturated with mold. Demo;sh gypsum board and replace with new Demolish and dispose of gypsum board & Insulation $ 0.65 SF 1,260 $ 819.00 Remove suspended ceiling $ 1.00 Lump 800 $ 800.00 Install new fiberglass insulation $ 1.65 SF 1,260 $ 2,079.00 Install new vapor barrier $ 0.28 SF 1,260 $ 352.80 Install new gypsum board $ 2.05 SF 1,260 $ 2,583.00 Paint $ C.65 SF 1,260 $ 819.00 Reinstallsuspended ceiling $ 1.35 SF 1,000 $ 1,350.00 Mechanical- Electrical Building does not have water service Install water meter $ 750.00 Lump 1 $ 750.00 Test water lines $ 450.00 Lump 1 $ 450.00 Sanitize water lines $ 450.00 Lump 1 $ 450.00 Underground HVAC distribution system not adequately protected from ground moisture Demo, abandon and cap underground ducts $ 1,200.00 Lump 1 $ 1,200.00 Install new HVAC and air distribution in ceiling $ 12.80 SF 1,203 $ 15,398.40 Total Code Improvements 60,611.20 New Hope TIF Page 1 of 1 LHB Project # 120684 I MGP2672.JPG IMGP2677,JPG IMGP2684.JPG ItAGP2691 JPG S AW �< IMGP2668.JPG ki bit IMGP2673,JPG IMGP2678.JPG IMGP2685.JPG IMGP21;92.JPG p" IMGP2697.JPG IMGP27.02.JPG IMGP2704.JPG IMGP2669.JPG i y. 11 IMGP2674 JPG IMGP2679.JPG IMGP2687.JPG IRMG P2$83.JPG IMGP2705.JPG IMGP2670.JPG 1 - IMGP2676,jPG .µf IMGP2681.JPG w=ry-».•, - S + IMO 2M.JPG IMOM9I:JPG IMGP27.00,JPG IMGP2706.JPG Yh1dP28�'6:?Psr, ILV �li+k�ily2Fi$3.Jf�G IMfiP7605.JPG IMGP2701.JPG IMGP2707.JPG IMGP2708,,IPG IMGP2714 JPG T !y ' t 1 P IMGP2718.JPG IMGP2709,JPG IMGNc715.JPG IMGP2720,JPG o'ft-12711,JPG 1MGP2712.JPG IMGP27i6.JPG IMGP2721.JPG IMGP2713.JPG IMGP2717,JPG IMGP2718.JPG b6i IMGP2722.JPG IMGP2723.JPG -r,�: Kirk McDonald -- EDA Executive Director 7; o -fa. Stacie Kvilvang ;ate: January 9, 2013 5::ibj :c'C Interfund Loan Resolution Demolition of Kmart and Bank Building The City and EDA will be expending funds for the demolition of the above referenced properties. Since it may be a year or two before a TIF district is created for the redevelopment, the City -and EDA will need to "front" these costs. If the City and EDA want to be reimbursed for these costs at a future date from TIF funds, then an interfund loan is required before the expenditure is made. Attached is a resolution authorizing an interfund loan of up to $200,000 from the City's1EDA's TIF District #86-1 to the future TIF District (contract is for approximately $198,000). The City and EDA will reimburse TIF District #86-1 for the above referenced costs (as they are advanced) in the current principal amount, together with interest at the rate of 4% per annum, when TIF funds become available. The interest rate is set at the statutory maximum and will not be adjusted annually. Completing this action provides the City and EDA with the most flexibility to reimburse itself in the future if and when a TIF district is created. Please contact me at 651-697-8506 with any questions. w\mv,ehlers-inc.norin H L , , Minnesota phono 651-697-5500 3060 Centre Pointe Drive LEADERS IN PUBLIC FINANCE Offices also in Wisconsin and Illinois frX 651-697-6555 Roseville, MN 55113-1122 toll from 800-552-1171 GORDON L. JENSFN` MELANIE P. PERSELLIN" STEVEN A.SONDRALL STAGY A. WOODS' 'Real Property Law Specialist Certified By The Minnesota State Bar Association Iiemsed in Illinois/Colorado 3Qualified Neutral Mediator under Rule 114 JENSEN SONDRALL & PERSELLIN, P.A. Attorneys At Law 8525 1✓' DINBROOK CROSSING, STE. 201 BROOKLYN PARK, MINNESOTA 55443-1968 TELEPHONE (763) 424-8811 • TELEFAX (763) 493-5193 e-mail law@jspattorneys.com Writer's Direct Dial No.: (763) 201-0210 e-mail glj@ispattorneys.com January 17, 2013 Curtis Jacobsen Community Development Director City of New Hope 4401 Xylon Avenue forth New Hope, NIN 55428 Re: Kmart Property Dear Curtis: Enclosed for the City records are the following: • Owner's Title Insurance Policy • Recorded Warranty Deed -Gator New Hope, LLC/New Hope EDA • Recorded Deed -Gator New Hope Two, LLC/New Hope EDA • Termination of Memorandum of Lease • UCC Termination Statement • Satisfaction of Underlying Mortgage If you have any questions in regard to the title insurance policy and the coverage afforded thereunder please contact me. Thank you. Sincerely, Gordon L. Jensen Enclosure(s) cc: Steven A. Sondrall, Esq. Policy Issuer: COMMERCIAL PARTNERS TITLE, LLC 200 SOUTH SIXTH STREET SUITE 1300 MINNEAPOLIS, MN 55402 F PHONE: 512-337-2470 OX -08773301 File Number: 35270 n Policy Number Issued by Old Republic National Title Insurance Company r * , Any notice of claim and any other notice or statement in writing required to he given to the Company under this Policy must be given to the Company at the address shown in Section 18 of the Conditions, COVERED RIM SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B, AND THE CONDITIONS, OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, a Minnesota corporation (the "Company") insures, as of Date of Policy and, to the extentstated in Covered Risks 9 and 10, after Date of Policy, against loss or damage, not exceeding the Amount of Insurance, sustained or incurred by the Insured by reason of; 1. Title being vested other than as stated in Schedule A. 2. Any defect in or lien or encumbrance on the Title. This Covered Risk includes but is not limited to insurance against loss from: (a) A defect in the Title caused by (i) forgery, fraud, undue influence, duress, incompetency, incapacity, or impersonation; (ii) failure of any person or Entity to have authorized a transfer or conveyance; (iii) a document affecting Title not properly created, executed, witnessed, sealed, acknowledged, notarized, or delivered; (iv) failure to perform those acts necessary to create a document by electronic means authorized by law; (v) a document executed under a falsified, expired, or otherwise invalid power of attorney; (vi) a document not properly filed, recorded, or indexed in the Public Records including failure to perform those acts by electronic means authorized by law, or (vii) a defective judicial or administrative proceeding. (b) The lien of real estate taxes or assessments imposed on the Title by a governmental authority due or payable, but unpaid. (c) Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land. The term "encroachment' includes encroachments of existing improvements located on the Land onto adjoining land, and encroachments onto the Land of existing improvements located on adjoining land. 3. Unmarketable Title. 4. No right of access to and from the Land. 5. The violation or enforcement of any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to (a) the occupancy, use, or enjoyment of the Land; (b) the character, dimensions, or location of any improvement erected on the Land; (c) the subdivision of land; or [d) environmental protection if a notice, describing any part of the Land, is recorded in the Public Records setting forth the violation or intention to enforce, but only to the extent of the violation or enforcement referred to in that notice. Countersigned. Authorized Officer or Licensed Agent ORT Form 9309 ALTA Owners Pollry at Title Insurance 6.17-06 OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY A Stock Company 400 Second Avenue South, Minneapolis, Minnesota 55401 (612) 371-1111 BY President Attest Secretary 6. An enforcement action based on the exercise of a governmental police power not covered by Covered Risk 5 if a notice of the enforcement action, describing any part of the Land, is recorded in the Public Records, but only to the extent of the enforcement referred to in that notice. 7. The exercise of the rights of eminent domain if a notice of the exercise, describing any part of the Land, is recorded in the Public Records. 8. Any taking by a governmental body that has occurred and is binding on the rights of a purchaser for value without Knowledge. 9. Title being vested other than as stated in Schedule A or being defective (al as a result of the avoidance in whole or in part, or from a court order providing an alternative remedy, of a transfer of all or any part of the title to or any interest in the Land occurring prior to the transaction vesting Title as shown in Schedule A because that prior transfer constituted a fraudulent or preferential transfer under federal bankruptcy, state insolvency, or similar creditors' rights laws; or (b) because the instrument of transfer vesting Title as shown in Schedule A constitutes a preferential transfer under federal bankruptcy, state insolvency, or similar creditors' rights laws by reason of the failure of its recording in the Public Records (i) to be timely, or (ii) to impart notice of its existence to a purchaser for value or to a judgment or lien creditor. 10. Any defect in or lien or encumbrance on the Title or other matter included in Covered Risks 1 through 9 that has been created or attached or has been filed or recorded in the Public Records subsequent to Date of Policy and prior to the recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A. The Company will also pay the costs, attorneys' fees, and expenses incurred in defense of any matter insured against by this Policy, but only to the extent provided in the Conditions. 4-ACLUSIO'NIS FRUA COVEALRE The following matters are expressly excluded from the coverage of this policy, and the Company will not pay loss or damage, costs, attorneys' fees, or expenses that arise by reason of: (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting, or relating to (i) the occupancy, use, or enjoyment of the Land; (ii) the character, dimensions, or location of any improvement erected on the Land: (iii) the subdivision of land; or (iv) environmental protection; or the effect of any violation of these laws, ordinances, or govem- mental regulations. This Exclusion 1(a) does not modify or limit the coverage provided under Covered Risk 5. (b) Any governmental police power. This Exclusion 1(b) does not modify or limit the coverage provided under Covered Risk 6. 2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8. 3. Dofects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed, or agreed to by the Insured Claimant; (b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the Insured Claimant prior to the date the Insured Claimant became an Insured under this policy; (c) resulting in no loss or damage to the Insured Claimant; (d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 9 and 10); or (e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Title. 4. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction vesting the Title as shown in Schedule A, is (a) a fraudulent conveyance or fraudulent transfer; or (b) a preferential transfer for any reason not stated in Covered Risk 9 of this policy. 5. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between pate of Policy and the date of recording of the deed or other instrument of transfer in the Public Records that vests Title as shown in Schedule A. P4P 2 COXMIT10011S AWID SVPULURONS 1. DEFINITION OF TERMS The following terms when used in this policy mean: (al "Amount of insurance": The amount stated in Schedule A, as may be increased or decreased by endorsement to this policy, increased by Section 8(b), or decreased by Sections 11 and 12 of these Conditions. (bl "Date of Policy": The date designated as "Date of Policy" in Schedule A. (c) "Entity": A corporation, partnership, trust, limited liability company, or other similar legal entity. (dl "Insured": The insured named in Schedule A. (i) The term "Insured" also includes (A) successors to the Title of the Insured by operation of law as distinguished from purchase, including heirs, devisees, survivors, personal representatives, or next of kin: (B) successors to an Insured by dissolution, merger, consolidation, distribution, or reorganization; (C) successors to an Insured by its conversion to another kind of Entity: (D) a grantee of an Insured under a deed delivered without payment of actual valuable consideration conveying the Title (1) if the stock, shares, memberships, or other equity interests of the grantee are wholly-owned by the named Insured, (2) if the grantee wholly ovens the named Insured, (3) if the grantee is wholly-owned by an affiliated Entity of the named Insured, provided the affiliated Entity and the named Insured are both wholly -awned by the same person or Entity, or (4) if the grantee is a trustee or beneficiary of a trust created by a written instrument established by the Insured named in Schedule A for estate planning purposes. (ii) With regard to (A), (B), JC), and (D) reserving, however, all rights and defenses as to any successor that the Company would have had against any predecessor Insured. (e) 'Insured Claimant": An Insured claiming loss or damage. (fJ "Knowledge" or "Known": Actual knowledge, not constructive knowledge or notice that may be imputed to an Insured by reason of the Public Records or any other records that impart constructive notice of matters affecting the Title. (g) "Land": The land described in Schedule A, and affixed improvements that by law constitute real property. The term "Land" does not include any property beyond the lines of the area described in Schedule A, nor any right, title, interest, estate, or easement in abutting streets, roads, avenues, alleys, lanes, ways, or waterways, but this does not modify or limit the extent that a right of access to and from the Land is insured by this policy. (h) "Mortgage": Mortgage, deed of trust, trust deed, or other security instrument, including one evidenced by electronic means authorized by law. (1) "Public Records': Records established under state statutes at Date of Policy for the purpose of imparting constructive notice of matters relating to real property to purchasers for value and without Knowledge. With respect to Covered Risk 5(d), "Public Records' shall also include environmental protection liens filed in the records of the clerk of the United States District Court for the district where the Land is located. (j) "Title": The estate or interest described in Schedule A. (k) "Unmarketable Title": Title affected by an alleged or apparent matter that would permit a prospective purchaser or lessee of the Title or lender on the Title to be released from the obligation to purchase, lease, or lend if there is a contractual condition requiring the delivery of marketable title. 2. CONTINUATION OF INSURANCE The coverage of this policy shall continue in force as of Date of Policy in favor of an Insured, but only so long as the Insured retains an estate or interest in the Land, or holds an obligation secured by a purchase money Mortgage given by a purchaser from the Insured, or only so long as the Insured shall have liability by reason of warranties in any transfer or conveyance of the Title. This policy shall not continue in force in favor of any purchaser from the Insured of either (i) an estate or interest in the Land, or(iij an obligation secured by a purchase money Mortgage given to the Insured. 3. NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT The Insured shall notify the Company promptly in writing (i) in case of any litigation as set forth in Section 5(a) of these Conditions, (ii) in case Knowledge shall come to an Insured hereunder of any claim of title or interest that is adverse to the Title, as insured, and that might cause loss or damage for which the Company may be liable by virtue of this policy, or (iii) if the Title, as insured, is rejected as Unmarketable Title. If the Company is prejudiced by the failure of the Insured Claimant to provide prompt notice, the Company's liability to the Insured Claimant under the policy shall be reduced to the extent of the prejudice. 4. PROOF OF LOSS In the event the Company is unable to determine the amount of loss or damage, the Company may, at its option, require as a condition of payment that the Insured Claimant furnish a signed proof of loss. The proof of loss must describe the defect, lien, encumbrance, or other matter insured against by this policy that constitutes the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage. 5. DEFENSE AND PROSECUTION OF ACTIONS (a) Upon written request by the Insured, and subject to the options contained in Section 7 of these Conditions, the Company, at its own cost and without unreasonable delay, shall provide for the defense of an Insured in litigation in which any third party asserts a claim covered by this policy adverse to the Insured. This obligation is limited to only those stated causes of action alleging matters insured against by this policy. The Company shall have the right to select counsel of its choice (subject to the right of the Insured to object for reasonable cause) to represent the Insured as to those stated causes of action. It shall not be liable for and will not pay the fees of any other counsel. The Company will not pay any fees, costs, or expenses incurred by the Insured in the defense of those causes of action that allege matters not insured against by this policy. (b) The Company shall have the right, in addition to the options contained in Section 7 of these Conditions, at its own cost, to institute and prosecute any action or proceeding or to do any other act that in its opinion may be necessary or desirable to establish the Title, as insured, or to prevent or reduce loss or damage to the Insured„ The Company may take any appropriate action under the terms of this policy, whether or not it shall be liable to the Insured. The exercise of these rights shall not be an admission of liability or waiver of any provision of this policy. If the Company exercises its rights under this subsection, it must do so diligently, lc) Whenever the Company brings an action or asserts a defense as required or permitted by this policy, the Company may pursue the litigation to a final determination by a court of competent jurisdiction, and it expressly reserves the right, in its sole discretion, to appeal any adverse judgment or order. Page 2 CONDITIONS AND STIPULATIONS 1con't) 6. DUTY OF INSURED CLAIMANT TO COOPERATE (a) In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding and any appeals, the Insured shall secure to the Company the right to so prosecute or provide defense in the action or proceeding, including the right to use, at its option, the name of the Insured for this purpose. Whenever requested by the Company, the Insured,. at the Company's expense, shall give the Company all reasonable aid (i) in securing evidence, obtaining witnesses, prosecuting or defending the action or proceeding, or effecting settlement, and (ii) in any other lawful act that in the opinion of the Company may be necessary or desirable to establish the Title or any other matter as insured, If the Company is prejudiced by the failure of the Insured to furnish the required cooperation, the Company's obligations to the Insured under the policy shall terminate, including any liability or obligation to defend, prosecute, orcontinuo any litigation, with regard to the matter or matters requiring such cooperation. {b) The Company may reasonably require the Insured Claimant to submit to examination under oath by any authorized representative of the Company and to produce for examination, inspection, and copying, at such reasonable times and places as may be designated by the authorized representative of the Company, all records, in whatever medium maintained, including books, ledgers, checks, memoranda, correspondence, reports, e-mails, disks, tapes, and videos whether bearing a date before or after pate of Policy, that reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the Insured Claimant shall grant its permission, in writing, for any authorized representative of the Company to examine, inspect, and copy all of these records in the custody or control of a third party that reasonably pertain to the loss or damage. All information designated as confidential by the Insured Claimant provided to the Company pursuant to this Section shall not be disclosed to others unless, in the reasonable judgment of the Company, it is necessary in the administration of the claim. Failure of the Insured Claimant to submit for examination under oath, produce any reasonably requested information, or grant permission to secure reasonably necessary information from third parties as required in this subsection, unless prohibited by law or governmental regulation, shall terminate any liability of the Company underthis policy as to that claim. 7. OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION OF LIABILITY In case of a claim under this policy, the Company shall have the following additional options: (a) To Pay or Tender Payment of the Amount of Insurance. To pay or tender payment of the Amount of Insurance under this policy together with any costs, attorneys' fees, and expenses incurred by the Insured Claimant that were authorized by the Company up to the time of payment or tender of payment and that the Company is obligated to pay. Upon the exercise by the Company of this option, all liability and obligations of the Company to the Insured under this policy, other than to make the payment required in this subsection, shall terminate, including any liability or obligation to defend, prosecute, or contin- ue any litigation. (b) To Pay or Otherwise Settle With Parties Other Than the insured or With the Insured Claimant. (i) To pay or otherwise settle with other parties for or in the name of an Insured Claimant any claim insured against under this policy. In addition, the Company will pay any costs, attorneys' fees, and expenses incurred by the Insured Claimant that were authorized by the Company up to the time of payment and that the Company is obligated to pay; or (ii) To pay or otherwise settle with the Insured Claimant the loss or damage provided for under this policy, together with any costs, attorneys' fees, and expenses incurred by the Insured Claimant that were authorized by the Company up to the time of payment and that the Company is obligated to pay. Upon the exercise by the Company of either of the options provided for in subsections (b)(1) or (ii), the Company's obligations to the Insured under this policy for the claimed loss or damage, other than the payments required to be made, shall terminate, including any liability or obligation to defend, prosecute, or continue any litigation. 8. DETERMINATION AND EXTENT OF LIABILITY This policy is a contract of indemnity against actual monetary loss or damage sustained or incurred by the Insured Claimant who has suffered loss or damage by reason of matters insured against by this policy. (a) The extent of liability of the Company for loss or damage under this policy shall not exceed the lesser of (0 the Amount of Insurance; or (ii) the difference between the value of the Title as insured and the value of the Title subject to the risk insured against by this policy. (b) If the Company pursues its rights under Section 5 of these Conditions and is unsuccessful in establishing the Title, as insured, (i) the Amount of Insurance shall be increased by 10%, and (ii) the Insured Claimant shall have the right to have the loss or damage determined either as of the date the claim was made by the Insured Claimant or as of the date it is settled and paid. (c) In addition to the extent of liability under (a) and (b), the Company will also pay those costs, attorneys" fees, and expenses incurred in accordance with Sections 5 and 7 of these Conditions. LIMITATION OF LIABILITY (al If the Company establishes the Title, or removes the alleged defect, lien, or encumbrance, or cures the lack of a right of access to or from the Land, or cures the claim of Unmarketable Title, all as insured, in a reasonably diligent manner by any method, including litigation and the completion of any appeals, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused to the Insured. (b) In the event of any litigation, including litigation by the Company or with the Company's consent, the Company shall have no liability for loss or damage until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals, adverse to the Title, as insured. Ic) The Company shall not be liable for loss or damage to the Insured for liability voluntarily assumed by the Insured in settling any claim or suit without the prior written consent of the Company. 10. REDUCTION OF INSURARE; REDUCTION OR TERMINATION OF LIABILITY All payments under this policy, except payments made for costs, attorneys' fees, and expenses, shall reduce the Amount of Insurance by the amount of the payment. Fuge 4 CONDITIONS AND STIPULATIONS (con't) 11. LIABILITY NONCUMULATIVE The Amount of Insurance shall be reduced by any amount the Company pays under any policy insuring a Mortgage to which exception is taken in Schedule B or to which the Insured has agreed, assumed, or taken subject, or which is executed by an Insured after Date of Policy and which is a charge or lien on the Title, and the amount so paid shall be deemed a payment to the Insured under this policy. 12. PAYMENT OF LOSS When liability and the extent of loss or damage have been -definitely fixed in accordance with these Conditions, the payment shall be made within 30 days. 13. RIGHTS OF RECOVERY UPON PAYMENT OR SETTLEMENT (a) Whenever the Company shall have settled and paid a claim under this policy, it shall be subrogated and entitled to the rights of the Insured Claimant in the Title and all other rights and remedies in respect to the claim that the Insured Claimant has against any person or property, to the extent of the amount of any loss, costs, attorneys' fees, and expenses paid by the Company. If requested by the Company, the Insured Claimant shall execute documents to evidence the transfer to the Company of these rights and remedies. The Insured Claimant shall permit the Company to sue, compromise, or settle in the name of the Insured Claimant and to use the name of the Insured Claimant in any transaction or litigation involving these rights and remedies. If a payment on account of a claim does not fully cover the loss of the Insured Claimant, the Company shall defer the exercise of its right to recover until after the Insured Claimant shall have recovered its loss. (b) The Company's right of subrogation includes the rights of the Insured to indemnities, guaranties, other policies of insurance, or bonds, notwithstanding any terms or conditions contained in those instruments that address subrogation rights. 14. ARBITRATION Either the Company or the Insured may demand that the claim or controversy shall be submitted to arbitration pursuant to the Title Insurance Arbitration Rules of the American Land Title Association ("Rules"). Except as provided in the Rules, there shall be no joinder or consolidation with claims or controversies of other persons. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Insured arising out of or relating to this policy, any service in connection with its issuance or the breach of a policy provision, or to any other controversy or claim arising out of the transaction giving rise to this policy. All arbitrable matters when the Amount of Insurance is $2,000,000 or less shall be arbitrated at the option of either the Company or the Insured. All arbitrable matters when the Amount of Insurance is in excess of $2,000,000 shall be arbitrated only when agreed to by both the Company and the Insured. Arbitration pursuant to this policy and under the Rules shall be binding upon the parties. Judgment upon the award rendered by the Arbitrators) may be entered in any court of competent jurisdiction. 15. LIABILITY LIMITED TO THIS POLICY; POLICY ENTIRE CON- TRACT (a) This policy together with all endorsements, if any, attached to it by the Company is the entire policy and contract between the Insured and the Company. In interpreting any provision of this policy, this policy shall be construed as a whole. (b) Any claim of loss or damage that arises out of the status of the Title or by any action asserting such claim shall be restricted to this policy. (c) Any amendment of or endorsement to this policy must be in writing and authenticated by an authorized person, or expressly incorporated by Schedule A of this policy. (d) Each endorsement to this policy issued at any time is made a part of this policy and is subject to all of its terms and provisions. Except as the endorsement expressly states, it does not (i) modify any of the terms and provisions of the policy, (ii) modify any prior endorsement, (iii) extend the Date of Policy, or (iv) increase the Amount of Insurance. 16. SEVERABILITY In the event any provision of this policy, in whole or in part, is held invalid or unenforceable under applicable law, the policy shall be deemed not to include that provision or such part held to be invalid, but all other provisions shall remain in full force and effect. 17. CHOICE OF LAW, FORUM (ai Choice of Law: The Insured acknowledges the Company has underwritten the risks covered by this policy and determined the premium charged therefor in reliance upon the law affecting interests in real property and applicable to the interpretation, rights, remedies, or enforcement of policies of title insurance of the jurisdiction where the Land is located. Therefore, the court or an arbitrator shall apply the law of the jurisdiction where the Land is located to determine the validity of claims against the Title that are adverse to the Insured and to interpret and enforce the terms of this policy. In neither case shall the court or arbitrator apply its conflicts of law principles to deter- mine the applicable law, (b) Choice of Forum: Any litigation or other proceeding brought by the Insured against the Company must be filed only in a state or federal court within the United States of America or its territories having appropriate jurisdiction. 18. NOTICES, WHERE SENT Any notice of claim and any other notice or statement in writing required to be given to the Company under this policy must be given to the Company at 400 Second Avenue South, Minneapolis, Minnesota 55401-2499. �� yp` [��''c*-app 4,fS,.{r�R['!' O M1! 9. 'x I 5L E 7 i , i = a 4 &,u1Ti Sixth Street - Sutte 1 3[20 r amaze Ilm Mkt r. 55402 Asn �612b 337 2A70 prige 5 SEND CLAIMS TO: 400 Second Avenue South Minneapolis, MN 55401 OFFICE FILE NUMBER Old Republic National Title Insurance Company OWNERS POLICY SCHEDULE A POLICY NUMBER DATE OF POLICY AMOUNT OF INSURANCE $ 4,625,000.00 35270 OX -08773301 July 26th, 2012 at 03:15 PM 1. Name of Insured: Economic Development Authority in and for the City of New Hope 2. The estate or interest in the land which is covered by this policy is: Fee Simple 3. Title to the estate or interest in the land is vested in: Economic Development Authority in and for the City of New Hope 4. The land referred to in this policy is described as follows: SEE EXHIBIT ATTACHED HERETO ALTA Owner's Schedule (6-17-06) This Policy valid only I Schedule B is attached. (35270.PFDI35270I94) OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY Office File No.: 35270 Owners Policy No.: OX -08773301 EXHIBIT A PROPERTY DESCRIPTION The land referred to in this Policy is described as follows: Parcel 1: That part of the West Half of the Northeast Quarter of the Northeast Quarter of Section 18, Township 118, Range 21, Hennepin County, Minnesota, described as: Commencing on the East line of said subdivision at a point on said line 165.00 feet North measured along said line from the Southeast corner of said subdivision; thence West parallel to the South line of said subdivision, 82.5 feet; thence South, parallel to the East line of said subdivision, 165.00 feet to the South line thereof; thence West along said South line to the Southwest corner of said subdivision; thence North along the West line thereof to the Northwest corner of said subdivision; thence East along the North line thereof to the Northeast corner of said subdivision; thence South along the East line thereof to the point of beginning; excepting therefrom the North 350.98 feet; also excepting therefrom the South 223.58 feet to the West 190 feet. Hennepin County, Minnesota Torrens Property Torrens Certificate No. 1353772 Parcel 1A Easement for storm sewer purposes as contained in Quit Claim Deed for Conveyance and Reconveyance of Storm Sewer Easements dated September 27, 1983, filed January 17, 1984, as Document No. 1558036. Parcel 2: The South 223.58 feet of the West 190 feet of the West Half of the Northeast Quarter of the Northeast Quarter of Section 18, Township 118, Range 21 West, Hennepin County, Minnesota. Torrens Property Torrens Certificate No. 1353772 ALTA ExhibitA ( 35 2 7 0. P F DI3527019 8) Old Republic National Title Insurance Company OWNERS POLICY SCHEDULE B EXCEPTIONS FROM COVERAGE Office File No, 35270 Policy Number: OX -08773301 This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of: A. The second installment of real estate taxes and special assessments payable in 2012 and thereafter. Property identification No. 18-118-21-11-0013 (Parcel 1) Property Identification No. 18-118-21-11-0012 (Parcel 2) B. Levied Assessments for: PROJECT CERTIFIED TO 2012 TAXES PRINCIPAL BALANCE DUE 1. 14568 Street $1,272.28 $2,153.91 (18-118-21-11-0012) 2. 14568 Street $ 3,080.90 $5,219.42 (18-118-21-11-0013) 2. Easement for public street purposes in favor of the City, of New Hope, a Minnesota municipal corporation, as created in Quit Claim Deed dated June 15, 1965, filed May 7, 1971, as Document No. 995954. (Affects Parcels 1 and 2) 3. Terms and conditions of and easement for highway purposes, including the right to construct and maintain portable snow fences on adjacent land, in favor of the County of Hennepin, as created in Highway Easement dated May 26, 1972, filed October 20, 1972, as Document No. 1049810. (Affects Parcels 1 and 2) 4. Terms and conditions of and easement for ingress and egress, together with the right of use of the drainage system and sanitary sewer facilities, in favor of New Hope State Bank, a Minnesota corporation, as created in Permanent and Perpetual Easement dated November 6, 1976, filed January 17, 1977, as Document No. 1206360. (Affects Parcel 1) 5. Covenants, conditions, restrictions, easements and liens contained in Reciprocal Easement Agreement dated January 1, 1977, filed November 29, 1978, as Document No. 1306061. (Affects Parcel 1) 6. Subject to the right of way of Hennepin County State Aid Highway No. 9 as depicted on Hennepin County State Aid Highway No. 9, Plat 58, filed November 26, 1979, as Document No. 1359773. (Affects Parcels 1 and 2) Terms and conditions of Conditional Use Permit granted by the City of New Hope on December 10, 1990, described in Certificate dated January 30, 1991, filed January 31, 1991, as Document No. 2152119. (Affects Parcel 1) 8. Terms and conditions of Resolution No. 99-159 granting a conditional use permit, adopted October 11, 1999, filed September 26, 2000, as Document No. 3318388. (Affects Parcel 1) OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY OWNERS POLICY SCHEDULE B (continued) Office File No. 35270 Policy Number: OX -08773301 9. Terms and conditions of and easement for traffic signal purposes in favor of the County of Hennepin as created in Highway Easement dated June 2, 1978, filed October 16, 1978, as Document No. 1298621, as amended by Highway Easement dated May 27, 1982, filed September 22, 1982, as Document No. 1482551. (Affects Parcel 2) Issuing Agent: Commercial Partners Title, LLC 200 South 6th Street, Suite 1300 Minneapolis, MN 55402 (612)337-2470 Countersigned ALTA Owner's(Leasehold Owner's Schedule B (6-17-D6) (35270.PFDI35270194) ENDORSEMENT No. 1 Attached to and forming a part of Owners Policy No. OX -08773301 Issued by Old Republic National Title Insurance Company File Number:35270 COMPREHENSIVE ENDORSEMENT (OWNERS POLICY IMPROVED LAND) (ALTA 9.2-06) The Company insures against loss or damage sustained by the Insured by reason of. 1. The existence, at Date of Policy, of any of the following unless expressly excepted in Schedule B a. Present violations on the Land of any enforceable covenants, conditions, or restrictions, or any existing improvements on the Land that violate any building setback lines shown on a plat of subdivision recorded or filed in the Public Records. b. Any instrument referred to in Schedule B as containing covenants, conditions, or restrictions on the Land that, in addition, (i) establishes an easement on the Land; (ii) provides for an option to purchase, a right of first refusal, or the prior approval of a future purchaser or occupant; or (iii) provides a right of reentry, possibility of reverter, or right of forfeiture because of violations on the Land of any enforceable covenants, conditions, or restrictions. C. Any encroachment of existing improvements located on the Land onto adjoining land, or any encroachment onto the Land of existing improvements located on adjoining land. d. Any encroachment of existing improvements located on the Land onto that portion of the Land subject to any easement excepted in Schedule B. e. Any notices of violation of covenants, conditions, or restrictions relating to environmental protection recorded or filed in the Public Records. 2. Damage to existing buildings a. That are located on or encroach upon that portion of the Land subject to any easement excepted in Schedule B, which damage results from the exercise of the right to maintain the easement for the purpose for which it was granted or reserved; b. Resulting from the future exercise of any right existing at Date of Policy to use the surface of the Land for the extraction or development of minerals excepted from the description of the Land or excepted in Schedule B. 3. Any final court order or judgment requiring the removal from any land adjoining the Land of any encroachment, other than fences, landscaping, or driveways, excepted in Schedule B. 4. Any final court order or judgment denying the right to maintain any existing building on the Land because of any violation of covenants, conditions, or restrictions, or building setback lines shown on a plat of subdivision recorded or filed in the Public Records. Wherever in this endorsement the words "covenants, conditions, or restrictions" appear, they shall not be deemed to refer to or include the terms, covenants, conditions, or limitations contained in an instrument creating a lease. ENDORSEMENT No. 1 Attached to and forming a part of Owner's Policy No. OX -08773301 Issued by Old Republic National Title Insurance Company (continued) As used in paragraphs 1.a. and 4, the words "covenants, conditions, or restrictions" do not include any covenants, conditions, or restrictions (a) relating to obligations of any type to perform maintenance, repair, or remediation on the Land, or (b) pertaining to environmental protection of any kind or nature, including hazardous or toxic matters, conditions, or substances, except to the extent that a notice of a violation or alleged violation affecting the Land has been recorded or filed in the Public Records at Date of Policy and is not excepted in Schedule B. This endorsement is made a part of the commitment or policy. It is subject to all of the terms of the commitment or policy and prior endorsements. Except as expressly stated on this endorsement, the terms, dates and amounts of the commitment or policy and prior endorsements are not changed. Issuing Agent: Commercial Partners Title, LLC 200 South 6th Street, Suite 1300 Minneapolis, MN 55402 (612)337-2470 Countersigned: — A�n - Authorized Signatory A, This endorsement shall not be valid or bindaig until signed by an authored signatory. (35270. PF D135270i94) C.V. filed--C.V. not req., No delinquent taxes Transfer Entered 7/26/2012 3:15:00 PM Hennepin County, Minnesota Mark V. Chapin County Auditor and Treasurer Doc No T4976841 Certified, filed and/or recorded on 7126112 3:15 PM Office of the Registrar of Titles Hennepin County, Minnesota Rachel Smith, Acting Registrar of Titles Mark V. Chapin, County Auditor and Treasurer Deputy 40 Pkg ID 831646C Doc Name: Warranty Deed Document Recording Fee $46.00 State Deed Tax (.0033 rate) $7,631.25 Conservation Fee $5.00 Environmental Response Fund $231.25 (SDT .0001) Document Total $7,913.50 Existing Certs New Certs 1190631 1353772 This cover sheet is now a permanent part of the recorded document. (Top 3 inches reserved for recording data) WARRANTY DEED Business Entity to Business Entity DEED TAX DUE: $ 1 -904914 in, DATE: !7 Z , 2012 FOR VALUABLE CONSIDERATION, GATOR NEW HOPE, LLC, a Florida limited liability company ("Granton, hereby grants, bargains, sells, aliens, remises, releases, conveys and confirms unto ECONOMIC DEVELOPMENT AUTHORITY in and for the CITY OF NEW HOPE, a public body corporate and political and political subdivision of the State of Minnesota ("Grantee"), and Grantee's successors and assigns forever, fee simple title to that certain real property being in Hennepin County, Minnesota, legally described as follows: See Exhibit A attached hereto and made a part hereof ("Property") Check here if all orpart of the described real property is Registered (Torrens) X to have and to hold the same, together with all hereditaments and appurtenances belonging thereto, forever, and the Grantor does hereby fully warrant the title to said land, and will defend the same against the lawful claims of all persons whomsoever subject only to the following exceptions: See Exhibit B attached hereto and made a part hereof Check applicable box. XX The Seller certifies that the Seller does not know of any wells on the described real property. ❑ A well disclosure certificate accompanies this document or has been electronically filed. (If electronically filed, insert WDC number: [... 1,) ❑ I am familiar with the property described in this instrument and I certify that the status and number of wells on the described real property have not changed since the last previously filed well disclosure certificate. e+LA rn 4Z Commercial Partners Title, LLO 200 South Sixth Street Suite 1300 35a-77 O q of Lf DH ECB -1019 Grantor: GATOR NEW HOPE, LLC, a Florida limited liability company By: By: Gator East Wind Partners, LLLP, a Florida limited liability limited partnership, sole member By: Gator Easffind Investors, Inc., a Florida James A. GoldslaW President Page i of 4 0 Page 2 of 4 STATE OF FLORIDA } } ss: COUNTY OF MIAMI -DARE ) WARRANTY DEED The foregoing instrument was acknowledged before me this oZc? day of TINE , 2012 by James A. Goldsmith, the President of Gator East Wind Investors, Inc., a Florida corporation, the general partner of Gator East Wind Partners, LLLP, a Florida limited liability limited partnership, the sole member of Gator New Hope, LLC, a Florida limited liability company, on behalf of the company, who is`psonall� known to me or has produced (state) driver's license or as identification. (stamp) •� NOTARY PUBLIC, State �of�Florida L I.<;04 &! lei r G Ge -K Print Name THIS INSTRUMENT WAS DRAFTED BY: Peter L. Tunis, Esq. Uo Gator Investments 1595 NE 1631d Street North Miami Beach, FL 33162 New Hope 1 Deed Commission No. My Commissi irC K_ MILER NOTARY ISI BUG STATE OR FLORID Carer TW DDOW429 ExPnret 6/5M14 TAX STATEMENTS FOR THE REAL PROPERTY DESCRIBED IN THIS INSTRUMENT SHOULD BE SENT TO: of VOW t4� yfb1 X y /o,, Av&4tmt AJ, ,:New r�� mAl sry2,f Page 3 of 4 WARRANTY DEED EXHIBITA Legal Description All that certain real property in Hennepin County. Minnesota, described as follows: That part of the West 1/2 of the Northeast 1/4 of the Northeast 1/4 of Section 18, Township 118, Range 21, Hennepin County, Minnesota, described as commencing on the East line of said subdivision at a point on said line 165.00 feet North measured along said line from the Southeast corner of said subdivision; thence West parallel to the South line of said subdivision, 82.5 feet; thence South parallel to the east line of said subdivision, 165.00 feet to the South line thereof; thence West along said south line to the southwest corner of said subdivision; thence North along the West line thereof to the northwest corner of said subdivision; thence East along the north line thereof to the northeast corner of said subdivision; thence South along the east line thereof to the point of beginning; excepting therefrom the North 350.98 feet; also excepting therefrom the South 223.58 feet of the West 190 feet. New Hope 1 Deed ZEM Exhibit B Permitted Encumbrances (a) Reservation of mineral or mineral rights by the State of Minnesota; (b) Building, zoning and subdivision laws and regulations; (c) The lien of real estate taxes and special assessments for 2012 and subsequent years; (d) Easements, conditions, restrictions, reservations, limitations, easements and covenants of record; and (e) Matters that would be disclosed by an accurate and complete survey of the Property. New Hope I Deed WARRANTY DEED C.V. filed_X_C.V. not req. No delinquent taxes Transfer Entered 7/26/2012 3:15:00 PM Hennepin County, Minnesota Mark V. Chapin County Auditor and Treasurer Doc No T4976842 Certified, filed and/or recorded on 7126112 3:15 PM Office of the Registrar of Titles Hennepin County, Minnesota Rachel Smith, Acting Registrar of Titles Mark V. Chapin, County Auditor and Treasurer Deputy 40 Pkg I D 831646C Doc Name: Warranty Deed Document Recording Fee $46.00 State Deed Tax (.0033 rate) $7,631.25 Conservation Fee $5.00 Environmental Response Fund $231.25 (SDT .0001) Document Total $7,913.50 Existing Certs New Certs 1347449 1353772 This cover sheet is now a permanent part of the recorded document. (Top 3 inches reserved for recording data) WARRANTY DEED Business Entity to Business Entity DEED TAX DUE: $ DATE: IWIA Z 2012 FOR VALUABLE CONSIDERATION, GATOR NEW HOPE TWO, LLC a Florida limited liability company and (`Grantor"), hereby grants, bargains, sells, aliens, remises, releases, conveys and confirms unto ECONOMIC DEVELOPMENT AUTHORITY in and for the CITY OF NEW NOPE, a public body corporate and political and political subdivision of the State of Minnesota ("Grantee'), and Grantee's successors and assigns forever, fee simple title to that certain real property being in Hennepin County, Minnesota, legally described as follows: See Exhibit A attached hereto and made a part hereof ("Property") Check here if all or part of the described real property is Registered (Torrens) X to have and to hold the same, together with all hereditaments and appurtenances belonging thereto, forever, and the Grantor does hereby fully warrant the title to said land, and will defend the same against the lawful claims of all persons whomsoever subject only to the following exceptions: See Exhibit B attached hereto and made a part hereof Check applicable box. XX The Seller certifies that the Seller does not know of any wells on the described real property. ❑ A well disclosure certificate accompanies this document or has been electronically filed. (If electronically filed, insert WDC number: [... ]. ❑ i am familiar with the property described in this instrument and I certify that the status and number of wells on the described real property have not changed since the last previously filed well disclosure certificate. Plz�+Um t6: Commercial partners Title, LL C 200 South Sjxth Scree( Suite 1 300 �� ML nneapolis, ltiFE\ 55601 1 35-1-770 34 z1,DH Grantor: GATOR NEW HOPE TWO, LLC, a Florida limited liability company By: By: Gator East Wind Partners, LLLP, a Florida limited liability limited partnership, sole member By: Gator EAs4Wind Investors, Inc., a Florida ,lames A. Gglli ith, President ECB -1019 Page 1 of 4 Page 2 of 4 STATE OF FLORIDA ) )ss: COUNTY OF MIAMI-DADE ) WARRANTY DEED The foregoing instrument was acknowledged before me this day of , 2012 by James A. Goldsmith, the President of Gator East Wind Investors, Inc., a Florida corporation, the general partner of Gator East Wind Partners, LLLP, a Florida limited liability limited partnership, the sole member of Gator New Hope Two, LLC, a Florida limited liability company, on behalf of the company, who is personally known to me or has produced (state) driver's license or as identification. (Stamp) NOTARY PUBLIG, State of Florida /-Is" 4", fmrtLtsle, Print Name THIS INSTRUMENTWAS DRAFTED BY: Peter L. Tunis, Esq. do Gator Investments 1595 NE 163rd Street North Miami Beach, FL 33162 New Hope Deed 2 Commission No. My Commission Expires: NOTARY PUBLIC STATE OF FLORIDA Carom# DD992429 ExPims 6/5/2094 TAX STATEMENTS FOR THE REAL PROPERTY DESCRIBED IN THIS INSTRUMENT SHOULD BE SENT TO: f G d 64Y Aq&t jp4wtiw,, A'A Clt V-� X/Aw A/w, qqo r kytwk t4t,e N. Alt -w &VZ F Page 3 of 4 EXHIBIT A Legal Description WARRANTY DEED The South 223.58 feet of the West 190 feet of the West half of the Northeast Quarter of the Northeast Quarter of Section 18, Township 118, Range 21,Hennepin County, Minnesota. New Hope Deed 2 Page 4 of'4 Exhibit B Permitted Encumbrances (a) Reservation of mineral or mineral rights by the State of Minnesota; (b) Building, zoning and subdivision laws and regulations; (c) The lien of real estate taxes and special assessments for 2012 and subsequent years; (d) Easements, conditions, restrictions, reservations, limitations, easements and covenants of record; and (e) Matters that would be disclosed by an accurate and complete survey of the Property. New Hope Deed 2 WARRANTY DEED Doc No T4976839 Certified, filed and/or recorded on 7/26/12 3:15 PM Office of the Registrar of Titles Hennepin County, Minnesota Rachel Smith, Acting Registrar of Titles Mark V. Chapin, County Auditor and Treasurer Deputy 40 Pkg ID 831646C Doc Name: Termination Document Recording Fee $46.00 Document Total $46.00 Existing Certs New Certs 1190631 This cover sheet is now a permanent part of the recorded document. 193( d Prepared by and after recording return to: Peter L. Tunis, Esq. Gator Investments 1595 N.E. 163rd Street North Miami Beach, FL 33162 TERMINATION OF MEMORANDUM OF LEASE THIS TERMINATION OF MEMORANDUM OF LEASE ("Termination") is made and entered into as this day of , 2012, by and between GATOR NEW HOPE, LLC, a Florida limited liability company ("Landlord") and K MART CORPORATION, a Michigan corporation ("Tenant"). RECITALS WHEREAS, Landlord's predecessor, New Hope Properties, Inc., a Minnesota corporation, and S.S. Kresge Company, a Michigan corporation (now known as K Mart Corporation, a Michigan corporation, as shown by Certificate of Amendment to Article of Incorporation filed March 29, 1978 as Document No. 1266293 in the Office of the County Recorder of Hennepin County, Minnesota) entered into a Lease dated as of December 8, 1971, as amended (the "Lease"); and WHEREAS, to evidence the Lease, a Memorandum of. se dated December 8, 1971 was recorded on March 14, 1972 as Document N `' 1025148 in a Office of the County Recorder of Hennepin County, Minnesota (the "Memd of Lease") with respect to the property described on Exhibit A attached hereto (the "Leased Premises"), as modified by Amendment to Lease dated March 5, 1974, recorded on February 20, 1975 as Document No. 1132984 in the Office of the County Recorder of Hennepin County, Minnesota (the "Amendment to Memorandum of Lease"); and WHEREAS, the term of the Lease expires at midnight on June 30, 2012 and Landlord and Tenant desire to terminate the recorded Memorandum of Lease and the recorded Amendment to Memorandum of Lease effective as of midnight on June 30, 2012. NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows: Cornmercia? Partners Title, LLC 200 South 'Sixth Street � Suite 1300 Minneapolis, MN 55402 351-:1-770 1 -or 0— DSI I . Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. 2. Lease Term. The term of the Lease expires at midnight on June 30, 2012. 3. Termination of Memorandum of Lease and Amendment to Memorandum of Lease. Effective as of midnight on June 30, 2012, the recorded Memorandum of Lease and the recorded Amendment to Lease are hereby terminated. 4. Successors and Assigns. This Termination shall be binding upon and shall inure to the benefit of the parties hereto and to their respective successors and assigns. IN WITNESS WHEREOF, the parties hereto have duly executed this Termination as of the day and year first above written. WITNESS: M4 ff�10am 2 TENANT: K MART CORPORATION, a Michigan corporation By: Print game: Jan Title: Vice GATOR NEW HOPE, LLC, a Florida limited liability company By: Gator East Wind Partners, LLLP, a Florida limited liability partnership, its sole member By: Gator East Wind Investors, Inc., a Florida corporation, its sole general partner By: James A. Goldsmith, President STATE OF FLORIDA ) ) ss: COUNTY OF MIAMI-DADE ) The foregoing instrument was acknowledged before me this day of , 2012 by James A. Goldsmith, the President of Gator East Wind Investors, Inc., a Florida corporation, the general partner of Gator East Wind Partners, LLLP, a Florida limited liability limited partnership, the sole member of Gator New Hope, LLC, a Florida limited liability company, on behalf of the company, who is paragIlsIV known to me or has produced (state) driver's license or as identification. (Stamp) NOTARY PUBLIC, State of Florida �• MRAM MLLER /Y� � 44 A My CDMM8901 # DD 960010 E7iPIRES:Febrwy9,2014 Print Name �F39 Banded Thio NDWV RftUnderwd M Commission No. My Commission Expires : - - o STATE OF (2) ss: COUNTY OF ) The foregoing,; strument was/acknowledged b - or thi qday of 2012 by the a =A of K Mart Corporation, a Michig corporation, who is personally known to me or has produced (state) driver's license or as identification. (Stamp) NOTkYPUBLIC'.,*Srate f tNFichjge ��t��� -------------- OFFICIAL 5tlAI. MARY J COX Al:OTARY PUBLIC - STATE OF ILLII' M AOY CONN EiiPIRES�IIl16 3 Print &A Pr - Commission No. My Commission Expires, 1_1)11111 r EXHIBIT "A" LEASED PREMISES LEGAL DESCRIPTION All that certain real properly in Hennepin County. Minnesota, described as follows: That part of the West 112 of the Northeast 114 of the Northeast 114 of Section 18, Township 118, Range 21, Hennepin County, Minnesota, described as commencing on the East line of said subdivision at a point on said line 165.00 feet North measured along said line from the Southeast corner of said subdivision; thence West parallel to the South line of said subdivision, 82.5 feet; thence South parallel to the east line of said subdivision, 165.00 feet to the South line thereof; thence West along said south line to the southwest corner of said subdivision; thence North along the West line thereof to the northwest corner of said subdivision; thence East along the north line thereof to the northeast corner of said subdivision; thence South along the east line thereof to the point of beginning; excepting therefrom the North 350.98 feet; also excepting therefrom the South 223.58 feet of the West 190 feet. 12 Doc No T4970840 Certified, filed andlor recorded on 7126112 3:15 PM Office of the Registrar of Titles Nenneptn County, Minnesota Rachel Smith, Acting Registrar of Titles Mark V. Chapin, County Auditor and Treasurer Deputy 40 Pkg ID 8316460 Doc Name; Termination Document Recording Fee $46.00 Document Total $46.00 Existing Certs New Certs 1190631 This cover sheet is now a permanent part of the recorded document. UCC FINANCING STATEMENT AMENDMENT FOLLOW INSTRUCTIONS (front and bsokl CAREFULLY David Hillert 612-643-1444 3. SEND ACKNOWLEDGMENT TO. (Name l Coniniercial Partners Title, LLC 200 S, Sixth Street, Suite 1300 Minneapolis, MN 55402 L THE ABOVV SPACE 18 FOR FILUM OFFIC E USE ONLY 1,,�.lNA7A U+taSTATEMENTFILE0 TbleFINANCING STATF_MENTAMEI�tENTIs 44$29Ti reco ed March 31, 2008 Ll - � STATE lad � record] � f ecordad) In rte 81- : dlec Wnes . of the Finansirrg Statement klantlrted above em is thineted wn respect to sccs* lutuni(s) or the Secured PsrgraiAv*rWnq this TerrnWtioo Sbdement a. CONTNUATION: E oollmness of the Rtnandng Shtsment kfeatiflad above wth respeol to secufrty IMewdW of the Secured Party suthorfxing thisCoMlwatbn Siatoment Is continued iorthe additiosi peifod provided by applicable law. 4. U ASSIGNMENT i1 arpartial): Gire rums ofasslanae In item 7a or 7b and addressaasalynes In hem 7C; and Ww Oka name vfsaelgaor In hams. 6. AMENDMENT (PARTY INFORMATION)! This Amendment effecls Deblor g Lj Secured Party of record. Check only 2ne of these two bores. Also cheek @malft Bosom" three boxes Zgd provideoppmhpnate Infarrnalton In items Qandtot 7. C}lNlflErnrssoet4faraddrosofsWmtwrertoft*%Udl=kum&w% oELETEaeme.ON* Fecoidname ADDur ComplateRem7aor7bendslwbm7a tlrenemda to be deWwd In 1mgm ft w Sh. Lle R. r-uRRENT RMM3INFORMAnou: IL AMENDMENT (COLLATERAL CHANGE): cheakonly =box. N-Abewtrataml❑dehtted aDaddad, or gneanlire❑restated collateral deswiptlon,a describeWintersl11 assigned. commeraal Partners Title, LLC 200 South Sixth Street Suite 1300 Minneapolis, MN 55402 S. NAME oF SECURED PARTY or- RECORD AUTHORIZING THIS AMENDMENT (name of asslgwr. It IhIs Is on "rimenj. V#dslsenAmmdmentau%Wimdby*DWay*kft adds collateral or adds Ow avibor alrg Debtor, or d ids iu s Termination au tweaed by a Debtor, check hers n end enter name of DEBTOR sulhoNv tibia Amendment ORI KeyBankNational Association 35270 FLING OFFICE COPY — UCC FINANCING STATEMENT AMENDMENT (FORM U=) (REV. 05122102) Doc No T4982711 Certified, filed and/or recorded on 818112 10: 00 AM Office of the Registrar of Titles Hennepin County, Minnesota Rachel Smith, Acting Registrar of Titles Mark V, Chapin, County Auditor and Treasurer Deputy 40 Pkg ID 839587D Doc Name: Satisfaction of Mortgage Document Recording Fee $46.00 Document Tota! $48.00 Existing Certs New Certs 9353772 This cover sheet is now a permanent part of the recorded document, 13�3779- (Top 3 Inches reserved forrouording data) MORTGAGE SATISFACTION by Business Entity DATE_ August 6, 2012 THAT CERTAIN MORTGAGE owned by the undersigned, a national banking association under the laws of the United stales of America, dated September 15, 2006, executed by Gator New Hope, LLC, a Florida limited liability co ortgagor, to KeyBanK tVatfonal Associallon, as mor%agee, and recorded on September 28, 2006, as Document Numr 39155 o Book _ of _ Page .�, in ft Office of fha El County Recorder 0 Registrar of 7lfles of Hennepin County, Minneso the Indebtedness thereby secured, fully paid and satisfied. KeyBank Nallonal Association Tamara Naccarato Its; Assistant Vice President Commercial Partners Title, LLG 200 South Sixth Street Suite 1300 Minneapolis, MIS 55402 ECO -20,52 Page 1 of 2 f Page 2 of 2 MORTGAGE SATISFACTION Skate of Colorado, County of Denver This Instrument was acknowledged before me on August 6, 2092, by Tamara Naccarato as Assistant Vioa President of KeyBank National Association, � (Stamp) r � We (ond Renk]r14 F G 4 My commission expires; WIT" f. � ,��4,nsr� l3DgOtis THIS INSTRUMENT WAS DRAFTE619, Commerda! Partners Title, tLC (DAH) 200 S. Sixth Streel, Suite 1300 Minneapolis, MN 55402 CPT File 35270 COUNCIL Request for Action Originating Department Approved for Agenda Agenda Section Community Development March 11, 2013 Develo ment & Planning Item No. By: Curtis Jacobsen, Director of CD By: Kirk McDonald, City Manager 8.3 Motion accepting the feasibility report and authorizing the preparation of plans and specifications for the proposed improvements necessary for City Center and Winnetka Learning Center sites (improvement project nos. 893 and 911) Requested Action Staff is requesting that the Council receive a presentation by the city engineer for the proposed City Center and Winnetka Learning Center projects. If the Council wishes to proceed after their review, staff recommends that the Council authorize the preparation of plans and specifications for the project. Policy/Past Practice The City Council routinely considers public infrastructure improvement projects to extend the useful life of the infrastructure and/or improve the level of service and make every effort to coordinate the timing on multiple projects to save time and money. Background The Council and staff discussed the proposed City Center project utilities in conjunction with the work that Center Point Energy intends to do this summer. Council suggested that staff investigate possibly expanding the project to include the Winnetka Learning Center site utilities also. A feasibility report was authorized at the February 11 Council meeting. The feasibility report details the proposed improvements at both locations and estimates project costs. The cost of the proposed improvements at City Center is $757,170 for future redevelopment but none of these improvements are in the 42nd and Winnetka Avenue intersection. The cost is $127,305 for the proposed improvements at the Winnetka Learning Center site. Attachments • Feasibility Report Motion by Iy- 1. Second by 'kkA, To: f I: RFA COMM DEV Development City Center Feasibility. doe Feasibility Report For Utility Improvements - Redevelopment of City Center, Former Winnetka Learning Center and Adjacent Ball Fields New Hope, Minnesota City Project No. 893 March 2013 StanteC March 6, 2013 Stantec Consulting Services Inc. 2335 Highway 36 West St. Paul MN 85113 Tel: (651) 636-4600 Fa)c (651) 636-1311 Honorable Mayor and Council City of New Hope 4401 Xylon Avenue North New Hope, MN 55428-4898 Re: Feasibility Report — Utility Improvements for the Redevelopment of City Center, Former Winnetka Learning Center and Adjacent Bali Fields Client Project No.: 893 Stantec Project No.: 193801816 Dear Mayor and Council Members: We are pleased to present our Feasibility Report regarding the utility infrastructure improvements required for the future redevelopment of City Center, and the former Winnetka Learning Center site and adjacent ball fields. Since CenterPoint Energy is completing gas main replacement improvements. along Winnetka Avenue this year, it was necessary to identify the utility improvements needed in preparation for future redevelopment of these sites. Any needed improvements on Winnetka could then be completed in concurrence with CenterPoint Energy's project this year. The scope of the report includes identifying the future water main, sanitary sewer, and storm sewer infrastructure improvements in the surrounding City Center area and former Winnetka Learning Center site. We recommend this report be presented and discussed at the March 11, 2013, Council meeting. Respectfully submitted, STANTEC CONSULTING SERVICES INC. awi� Christopher W. Long, P. E. I hereby certify that this plan, specification, or report was prepared by me or under my direct supervision and that I am a duly Licensed Professional Engineer under the laws of the State of Minnesota. aA400(41 W. Christopher W. Long, P.E. Date: March 6, 2013 Reg. No. 47106 CITY OF NEW HOPE - UTILITY IMPROVEMENTS FOR REDEVELOPMENT SITES Table of Contents Letter of Transmittal Tableof Contents..................................................................................................................................2 Introduction.......................................................................................................................................... 4 Future Infrastructure Analysis................................................................................................................. 4 WaterMain........................................................................................................................................4 SanitarySewer ...... .............. -....... ,...................................................................................... ............... 4 StormSewer......................................................................................................................................4 Figure 1- City Center Redevelopment............................................................................................... 5 Figure 2 - Winnetka Learning Center and Adjacent Ball Field Redevelopment.......................................6 CityCenter Redevelopment ............... .................................................. .................................................... 7 ExistingWater Main............................................................................................................................7 FutureWater Main..............................................................................................................................7 ExistingSanitary Sewer.......................................................................................................................7 Future Sanitary Sewer.......................................................................................... ............................... ExistingStorm Sewer..........................................................................................................................8 FutureStorm Sewer............................................................................................................................8 CostEstimate.....................................................................................................................................9 Table 1 - Utility Cost Estimate.......................................................................................................9 Figure 3 - Water Main Improvements.............................................................................................10 Figure 4 - Sanitary Sewer Improvements........................................................................................11 Figure 5 -- Storm Sewer Improvements...........................................................................................12 Winnetka Learning Center & Adjacent Ball Field Redevelopment..............................................................13 ExistingWater Main..........................................................................................................................13 FutureWater Main ............................................................................................................................13 ExistingSanitary Sewer.....................................................................................................................13 FutureSanitary Sewer.......................................................................................................................13 ExistingStorm Sewer........................................................................................................................13 FutureStorm Sewer..........................................................................................................................14 CostEstimate................................................................................................................................... 14 Table 2 - Utility Cost Estimate.....................................................................................................14 Figure 6 Water Main Improvements................................................................................................15 Figure 7 - Sanitary Sewer Improvements............................................................. ...16 ........................ Figure8 - Storm Sewer Improvements...........................................................................................17 Conclusions and Recommendations.......................................................................................................18 City of New Hope� � Stantec Project No: 193801816 2 New Hope City Center �.i', Appendix Appendix A-1 Preliminary Cost Estimate — City Center Redevelopment, Utility Improvements Appendix A-2 Preliminary Cost Estimate — Winnetka Learning Center & Adjacent Bail Fields Redevelopment, Utility Improvements City of New Hope Stantec Project No: 193801816 New Hope City Center O=MK Page 3 CITY OF NEW NOPE - UTILITY IMPROVEMENTS FOR REDEVELOPMENT SITES Introduction The City of New Hope has chosen to investigate the feasibility of necessary utility improvements for the redevelopment of the City Center site area (Figure 1), and the Winnetka Learning Center site and adjacent ball fields (Figure 2). With the potential for upcoming redevelopment, and with the CenterPoint Energy project this year, the City is being proactive in completing a feasibility study investigating future utility infrastructure needs. Any needed improvements can be completed on Winnetka Avenue in concurrence with the CenterPoint Energy project this year. The report includes Identifying the future water main, sanitary sewer, and storm sewer infrastructure improvements required for both redevelopment sites. Future Infrastructure Analysis WATER MAIN The Joint Water Commission (JWC) water system hydraulic modes was evawateb to determine appropriate, water main improvements to serve the proposed redevelopment areas. An evaluation of the trunk water main system in the City of New Hope and local fire flow availability was conducted at the former Kmart and Winnetka Learning Center sites. Due to the history of water main breaks with the existing cast iron pipes in the City, rather than installing additional smaller pipes, it is most beneficial to replace the old pipes for the areas requiring upsizing with redevelopment. 9,1D1f5X&*x1147 The sanitary sewer system was analyzed to determine appropriate sanitary sewer improvements to serve the proposed redevelopment areas. An evaluation of the trunk sanitary sewer system was conducted at both redevelopment sites. The ultimate flows, capacity, and depth needed for redevelopment were considered in the evaluation. Existing conditions of the sanitary sewer were also evaluated when considering if improvements were warranted. STORM SEWER The storm sewer system was analyzed to determine appropriate storm sewer improvements to serve the proposed redevelopment areas. An evaluation of the storm sewer system was Conducted at both redevelopment sites. The ultimate flows and capacity required for redevelopment were considered in the evaluation. City of New Hope� Stantec Project No; 193801816 4 NRatocew Hope City Center �.i+ .42nd AVG !w 4 103 M W 5 Y,1Y,yd W i 0 50 100 200 ... Feet�Y s,P,-Pwr WIN 9�e`? a$1, V 4V412, LO[. ,n0lipp Stan2335 cConsultingighwa The City Center Redevelopment by.9tate—tanon thiss... maphaebeen compd la 2335 West Highway 36 by Stantec ha ge with ut rwyaF sources and k St Paul, MN 55113 .ehjecrwchangewithoet,reirce.smnlanmakae ho inplied, 651-604-4600 Figure 1 as to accuracy, oompleteneae.Bmelineac, or righte m the use of •uch Wonnetlen. RlcilenMnunicipegnew_hope_ch34hlapmlSDATA1Pmjenre�2013_FfgureaVFtgarea_FinaMlty_Center_Fioure 1 SISPA13 [ A!+'e N a tib. Stantec Consulting 2335 West Highway 35 St Paul, MN 55113 651-604-4600 Y� I' 7901 Winnetka Learning Center and Adjacent Ball Field Redevelopment Figure 2 n.teeennmummiparnnew nope_cnaareapwibt iAwrotaet5uuia_rigurcairigraeavmateueammg_usnrer_rigure-.4 s ZU14 The information on thle map has been compiled by Slantee staff from a vane" aauroes and is subject to change without w6ca. Stanisc makes no representations or we" Wes, express or in plied, as m accuracy. ccmpleteneea.imeti.". or rights to the we of such infarmekon. CITY OF NEW HOPE — UTILITY IMPROVEMENTS FOR REDEVELOPMENT SITES City Center Redevelopment EXISTING WATER MAIN The former Kmart site is supplied through existing cast iron, 8 inch water mains on 42nd Avenue, Xylon Avenue, and 45th Avenue as depicted by Figure 3. Existing 12 inch water mains on Winnetka Avenue and Boone Avenue provide trunk water mains in the vicinity. The City of New Hope north water tower is located northwest of the Kmart site at 47th Avenue and Aquila Avenue. Static water system pressures along Xylon Avenue and 45th Avenue range from roughly 58 — 67 pounds per square inch (psi) depending on the operating and demand conditions. Depending on the operating conditions, the existing system produces less than 3,000 gpm while maintaining 20 psi in the distribution system. The existing fire flow evaluation was conducted with ]WC water towers operating 10 feet below overflow and the Golden Valley pump station supplying approximately 4,000 gpm. These design conditions provide a reasonable, conservative maximum day demand evaluation. FUTURE WATER MAIN It is recommended the City of New Hope plan to provide 3,500 gpm minimum fire flow to the Kmart redevelopment site to prevent limiting future development. A typical, industry standard recommended fire flow for commercial or multifamily purposes is 2,500 gpm while industrial and institutional Is 3,500 gpm while maintaining 20 psi throughout the water system. To provide 3,500 gpm, it is recommended that 12 inch water main be constructed from the existing 12 inch on Winnetka Avenue, west along 45th Avenue and south along Xylon Avenue. Proposed water main should be connected to the existing system at 42nd Avenue, Xylon Avenue, and Winnetka Avenue as shown on Figure 3. The 12 inch stub to the west Winnetka Avenue, at 45th Avenue, must be completed in concurrence with the CenterPoint Energy project. At the intersection of Xylon Avenue and 45th Avenue it is recommended a 12 Inch by 8 inch tee be Installed to provide for future upsizing of the existing 6 inch water main to the north. No additional water main improvements are needed to provide 3,500 gpm to the site under a variety of operating and demand conditions. No trunk water main improvements are recommended at the intersection of Wlnnetka Avenue and 42nd Avenue. It is noted that the existing 16 inch water main on 42nd Avenue reduces to a 12 inch water main before connection to the parallel 8 inch water main and before the intersection at Winnetka. Due to the short distances involved and the age of recent modifications it is recommended to maintain the existing water main layout at Winnetka Avenue and 42nd Avenue. Although no modifications are recommended due to the City Center redevelopment, it is recommended to replace the existing cast iron pipe at this intersection in concurrence with the CenthrPoint Energy project in 2013. EXISTING SANITARY SEWER This site is currently served by an 8 inch VCP sewer located on the east side of Xylon Ave. This existing sewer is not at low enough elevation that would allow redevelopment to occur that would utilize any type of basement. From MH #434 the exiting sewer conveys flow to the east along 45th Avenue. This sewer is a 9 Inch VSP sewer with an approximate capacity of 400 gpm. This 9 inch sewer in 45th Ave. flows to a 24 inch trunk sewer located approximately 0.5 miles to the east. City of New Hope �� Stantec Project No: 193801816 New Hope City Center �.aR't' MUMIK Page 7 FUTURE SANITARY SEWER In order to provide service flexibility for any type of future development, it is recommended that the existing 8 inch VCP be replaced with a new 10 inch PVC sewer located at a lower elevation in order to support a future development that could include basements. It is recommended that this new sewer be connected to MH #434 as shown on Figure 4 at an invert elevation of 898.60. It is also recommended to replace the existing 9 inch VSP with 10 inch PVC beginning at MH #434 and to the east to Winnetka Avenue. Similar to other clay pipe within the City, infiltration Is identified in the televising reporting and the existing clay pipe would either need to be lined or replaced in the near future disregarding the potential for future redevelopment, Since redevelopment may occur, it is recommended to replace the sanitary sewer on 45th Avenue with 10 inch PVC in concurrence with the water main replacement. The 10 inch PVC within the Winnetka Avenue right of way should be in concurrence with the CenterPoint Energy project. Upon the understanding the specific type of redevelopment and ultimate sewer flows, the 9 Inch sanitary sewer east of Winnetka Avenue can be analyzed to determine if upsizing will be required. Fallowing the redevelopment, it may be necessary to monitor the flows east of Winnetka Avenue. A flow meter may need to be installed in the existing 9 inch VSP at a point east of Quebec Avenue North to determine if additional upsizing is warranted. EXISTING STORM SEWER The majority of the City Center redevelopment area drains north via storm sewer into the 45th Avenue pond located northwest of the intersection of 45th Avenue and Winnetka Avenue (see Figure 5). The existing 45th Avenue pond has capacity to accommodate the existing tributary drainage area. Recently constructed improvements to the 45th Avenue pond improved the water quality treatment performance of this pond. A smaller area at the southern end of the City Center redevelopment area drains south via two storm sewer connections into the existing trunk storm sewer in 42nd Avenue. The 42nd Avenue storm sewer south of the City Center redevelopment area will not be upsized, therefore the future City Center redevelopment should not increase existing flow rates to the south. FUTURE STORM SEWER The City's Local Water Management Pian identifles trunk storm sewer upgrades In 45th Avenue, between Xylon Avenue and the recently constructed outlet of this trunk storm sewer into the 45th Avenue Pond (see Figure 5). The storm sewer upgrades increase the existing 30 -inch trunk storm sewer to a 42 -inch trunk storm sewer to provide additional capacity in this trunk system. Future improvements to Xylon Avenue north of 45th Avenue should evaluate the need to upsize the Xylon Avenue trunk storm sewer, from 45th Avenue to the low point in Xylon Avenue. As shown on Figure 5, a 24 -inch storm sewer stub should be provided from the proposed 42 -inch trunk in 45th Avenue to the south in line with the east property line of 815145th Avenue N. This will be the future storm sewer connection from the City Center redevelopment area to the 45th Avenue trunk storm sewer system. This storm connection will require obtaining an easement from the adjacent property owners. Once this future storm sewer connection is made, the existing 24 -inch storm sewer running around the building and under the parking lot at 8201 45th Avenue N should be bulk headed and abandoned. Existing storm sewer segments within the City Center redevelopment area should be reconfigured to fit proposed redevelopment scenarios. This would Include aligning future storm sewer to connect to the proposed 24 -inch storm sewer stub running along the east property line of 815145th Avenue N. It will be City of New Hope Stantec Project No: 19380e18166 New Hope City Center 49 -Kantec necessary to analyze the water quantity and water quality performance of the 45th Avenue pond with any future City Center redevelopment scenarios to determine pond performance. The City's current redevelopment standard states: "For redevelopment projects located within the jurisdiction of the [Shingle Creek Watershed Management Commission (SCWMC)] that meet the SCWMC project review thresholds and involve more than 50% of the site, the SCWMC requires that their water quality and volume control rules apply to the entire site and not just the new Impervious." City Center redevelopment activities will need to meet the water quality and volume control rules in place at the time of redevelopment project review. COST ESTIMATE The recommended utility improvements include replacement and upsizing of water main, sanitary sewer, and storm sewer. The following are the approximate quantities for the improvements: ■ Water Main — 2,500 feet of 12 Inch DIP ■ Sanitary Sewer — 2,400 feet of 10 inch PVC ■ Storm Sewer — 660 feet of 42 inch RCP, 450 feet of 24 inch RCP The total utility costs for the proposed improvements are shown in the table below: Table 1 — Utility Cost Estimate Improvement Type Utility Cost Water $348,705 Sanitary $217,215 Storm $209,250 Total Utility Costs $775,170 City of New Hope� � Stantec Project No: 193801816 9 New Hope City Center R*id -OV !!Vtte,W * o pr PNOWR'etl 64100 -fn nt 1-4300 i ft9h, in nn �M in X nnaln 42nd Ave N ~ Existing Watermain Redevelopment Area 41-40 Existing Water Service =] Parcels ##Future Watermain AoNfiwWatermaln 0 50 100 200 Feet lli�qjp W" Stant9c Consulting 2335 West Highway 36 City Center Redevelopment St. Paul, IVIN 65113 651-6044600 Water Main Improvements - Figure 3 Anntec One Team, hifinile Solutions- nacnerromunicipaiinew mope Wrrulu az � 6 Cor ra Th. inlo -.0o. on thbo —p has been e.mpli.d by Stnt— alaff from a varletyal 3ources and 1. subi—1, t chanes without notice. Stentac make no repromnt on o or m rantles. eY4,raaa or implied. = , —"O'Y, complWen"'Imalinmn. or righla k. lh. .. of@ ..h Informalion- I Ah AYe W z3 A��u1Oro - -0 Q Future San Structures Sanitary Pipe Lift Station Redevelopment Area 0 Mahhole Parcels Sanitary Flow Now Sanitary Pipe Replaced Sanitary Pipe 0 50 100 200 Feet 1a p� Data. etaky Vf.� )� ';? ' rs1 .ii —j r jr , rotStant; !� 2335 cConighwg City Center Redevelopment by SUM- We r.My bWencoendIs C 2335 West Highway 36 try alanlec elafl from a vat sly of saurma end b C\ St. Paul, MN 55113 -ect to change without -[Ms. St-le.makes bj presentations orwavaAltes, express or knplied. 651-W4-000 Sanitary Sewer Improvements - Figure 4 S.rotsec.—y.—pietenesa•fimeib—,orrighte ryrontK to IM use of such [.for.... Orte Team. Infinite SGItitions. K.I onmunlalpaRnew hope_c}34Map1615WaTA1PMj6OtS12013_FlgursaVIguraa_FiiaLUity_canMr_Fipufe_4 3fr12u13 F®rArTriF Tru n k -Storm "M-7 mp ro ve _N rM SiffWar Ira UPOU, to,,AVI� RoVP id _2 F54 if -we N ti r4 Pi n Sioymr 'h 4 A Re6 Area Qn Stor r m I., Sp&,e, r, I q . b,* R e- & I ' I - 7�17 t if' P. _b � F. it Prop6ie:',d":.R_#'dW, I 0—' up, moeuv 4300 rt BH A, Storm Flo. 1 Catch Basin New Storm Pipe Catch Basin MH Replace Storm Pipe , FES Storm Pipe FES -inlet SOrm Pipe Abandoned & FES -Outlet Redevelopment Area O MH Parcels Stantac Consulting 2335 West Highway 36 St Paul, MN 55113 65"04-4600 SbrAK P_ Futum0phogtflon, tb z id 6 e'. A d 42ftal Ava, N 0 50 100 200 1 et 4M City Center Redevelopment Storm Sewer Improvements - Figure 5 The Information 1h"m.ph-h piled y S b tontecolefffrome d =. otyaf M Is subject to change wMaut notice. Stantc makes representations Plied. as .; W..-rooy,. oto— .11melinese, or right. to OW We of such Information, CITY OF NEW NOPE - UTILITY IMPROVEMENTS FOR REDEVELOPMENT SITES Winnetka Learning Center & Adjacent Ball Field Redevelopment EXISTING WATER MAIN As shown on Figure 6, the existing water main at the Winnetka Learning Center is a cast Iron, 6 inch water main supplied from the existing 18 inch water main on Winnetka Avenue and 54th Avenue. FUTURE WATER MAIN Available fire flow was calculated under several different water system operating and demand conditions at the intersection of 55th Avenue and Utah Avenue served through existing 6 inch water mains. Static water system pressures range from roughly 58 — 67 pounds per square inch (psi) depending on the operating and demand conditions. Available maximum day demand fire flow was below 2,500 gallons per minute (gpm) while maintaining 20 psi in the distribution system with existing water mains. The existing fire flow evaluation was conducted with 1WC water towers operating 10 feet below overflow and the Golden Valley pump station supplying approximately 4,000 gpm. These design conditions provide a reasonable, conservative maximum day demand evaluation. The hydraulic model was also used to evaluate fire flow in the event that the north water tower drained during a fire flow event A typical, industry standard recommended fire flow for commercial or multifamily purposes is 2,500 gpm while industrial and institutional is 3,500 gpm while maintaining 20 psi throughout the water system. To provide a minimum of 2,500 gpm at 55th Avenue and Utah Avenue, an 8 inch water main is recommended from the existing 18 inch water main on Winnetka. Approximately 300 feet of 8 inch water main on 55th Avenue would increase the available maximum day demand fire flow to greater than 3,500 gpm while maintaining 20 psi In the distribution system. EXISTING SANITARY SEWER This site is currently served by a 9 inch VSP sewer located to the east, south, and west of the redevelopment (see Figure 7). The sanitary sewer on 55th Avenue North flows to the west and then north through the ball fields and ultimately to the existing 12 inch RCP sewer on Bass Lake Road. There is also 9 inch VSP sanitary sewer along the west side of Winnetka Avenue which flows to the south, then to the east. FUTURE SANITARY SEWER The redevelopment site does not require additional main line sanitary sewer or pipe upsizing. The redevelopment shall utilize the existing mains. New interior laterals within the redevelopment site will be required upon understanding the proposed redevelopment scenarios. EXISTING STORM SEWER The existing Winnetka Learning Center facility drains primarily south to the existing storm sewer infrastructure in 55th Avenue N, as shown on Figure 8. During large rainfall events when the storm sewer capacity is exceeded, the eastern half of the site flows overland to the low point in Winnetka Avenue. The existing ball field area drains north to an existing storm sewer system that runs east, then north under Bass Lake Road into the pond In the northwest corner of the Wlnnetka Avenue and Bass Lake Road. City of New Hope � Project Stantec Pt N193P ge 13 New Hope City Center sunLec FUTURE STORM SEWER With the redevelopment of this site, it is desirable to minimize the amount of overflow to the low point on Winnetka Avenue. Therefore, additional flood storage on the east half of this site is recommended. The City's current redevelopment standard states: "For redevelopment projects located within the jurisdiction of the [Shingle Creek Watershed Management Commission (SCWMC)] that meet the SCWMC project review thresholds and involve more than 50% of the site, the SCWMC requires that their water quality and volume control rules apply to the entire site and not just the new impervious. Where less than 50% of the site Is involved, then the applicant must meet SCWMC rules on the newly developed areas and must make a good faith effort to provide water quality treatment and volume control for the existing development on site." Redevelopment activities at this location will need to meet the appropriate water quality and volume control rules in place at the time of redevelopment project review. The downstream stone sewer and ponding system has a very limited capacity to accommodate increased flow from any redevelopment on this site. Therefore, existing flow rates should be maintained or reduced. The City has discussed developing the existing ball field area west of the Winnetka Leaming Center (see Figure 8). The City's new development storm water requirements would be applied to development in this location. In a March 2004 report for the Livable Communities Redevelopment Area (which includes the ball field area), this storm sewer system was analyzed. The report identified a lack of storm sewer capacity contributing to recurring local flooding Issues In the apartments north of the ball field area. The report identifled various improvements including a 100 -year storm rate control restriction of 2 ds for new development in the ball field area with potentially rerouting storm sewer from the Wisconsin Avenue low point into the proposed development pond. Given the recent changes in the watershed with the redevelopment of the Hosterman Junior High site, the storm water requirements for development of the ball field area should be reevaluated. However, given the lack of downstream storm sewer capacity, it is likely that a significant ponding component on the ball field site will be necessary. COST ESTIMATE The recommended utility improvements include replacement and upsizing of water main. Sanitary sewer and storm sewer improvements are only required on the internal sites at the time of redevelopment. The following are the approximate quantities for the improvements: ■ Water Main —1,000 feet of 8 inch DIP The total utility costs for the proposed improvements are shown in the table below: Table 2 — Utility Cost Estimate Improvement Type utiliq Cost Water $127,305 Sanity N/A Storm N/A Total Utilliq Costs 127 305 City of New HopeQ � Stantec Project No: 193801816 e14 New Hope City Center �j+ R 0 r .Av-p 0 8001 7940 N Future Watermain Watermain Now Watermaln Water Service Replace watermain Redevelopment Area = Parcels Stantec Consulting 2335 West Highway 36 St. Paul, MIN 55113 Ok 651-6044600 'Maniac Winnetka Learning Center and Adjacent Ball Field Redevelopment Water Main Improvements - Figure 6 m:wii.nranurimpm%ne%k_nopo_niwqmaPWI3LMrAlYrojomvuiu wrrzoi 3 The information on this map hens been compiled by Stantao ataff from p wriaty ofaets— and is = reJ�to k change notice. Ststntsar ' eke prazent or w,— — rW. )we" or implied, as to accuracy, aomplelonew,limeiinaas, —ight. W the worsoftruth ifffainalfam. BARAN* A 8000 20 E With)"ri Lai P, 0 8001 7940 N Future Watermain Watermain Now Watermaln Water Service Replace watermain Redevelopment Area = Parcels Stantec Consulting 2335 West Highway 36 St. Paul, MIN 55113 Ok 651-6044600 'Maniac Winnetka Learning Center and Adjacent Ball Field Redevelopment Water Main Improvements - Figure 6 m:wii.nranurimpm%ne%k_nopo_niwqmaPWI3LMrAlYrojomvuiu wrrzoi 3 The information on this map hens been compiled by Stantao ataff from p wriaty ofaets— and is = reJ�to k change notice. Ststntsar ' eke prazent or w,— — rW. )we" or implied, as to accuracy, aomplelonew,limeiinaas, —ight. W the worsoftruth ifffainalfam. E E Wh Ate N "121 A- 0 9 BAffidIds; 81000 'J s Ia. 7001 794.0 r Uft Station 0" Sanitary Pipe 0 Mahhole Rechweloprnent Area Sanitary Flow Q Parcels 0 .5.0 100 200Feet Stantec Consulting 2335 West Highway 36 Winnetka Learning Center and St. Paul,MN 55113 651-6044600 Adjacent Ball Field Redevelopment 51 10 Sanitary Sewer Improvements - Figure 7 One Teann. Inrinite Solutions, A---Ppan 3fff2ula � arp The information an 1hia map has been ""pood by Stentec, Mafffrorn a variety ofsoursee and is :bjeoL ID change without nDt— Stan[sc Ms. as reprosenUAlons or mrranUes, s!Vrews or implied, [- -...racy, complateresaMsials—, — !,W to the use of such Informala& 4 007 -�4Lin 5ftAte N - a' EMAting-St'orm Sepw,q s tI�"! W S; Il B 4 R iaew�ed w a;? �t4I:�'t,r� iklpi�:Felprni_Ient 8000 ftllfWds i� -r r n '. , 790'1 Z 7940 'Wir�r�etkA�ire: i -II l Q Future Flood Storage Storm Flow BH ., Local Flooding Catch Basin Storm Pipe Catch Basin MH Storm Pipe Abandoned A FES Redevelopment Area FES -Inlet Parcels FES -Outlet U MH Stantec sulting 2336 Weanighwa Winnetka Learning Center and 2335 West Highway 36 N 55113 651-604-4Bt7O Adjacent Bail Field Redevelopment 65-604-A SUMMIC Storm Sewer Improvements - Figure 8 R3efenemunielpa4 now hope_ oh34MapalSDATA,Projeote12013_FigurealFpure3_Fnels)L aming_eenter_Figure_e 3,712013 J. - , The Information on the map hem been compiled by Stantec staff from a variety of- and is eublwl to change without notice. etarasc makes no mpreaentagans or wernmUt., express or in plied, as m eccura:y, compla%naaa,Gmmlinew, or right. lothe use Mauch Intormallen. CITY OF NEW HOPE - UTILITY IMPROVEMENTS FOR REDEVELOPMENT SITES Conclusions and Recommendations It is the finding of this study that the proposed improvements are necessary, feasible and cost effective. The following steps are recommended: ➢ Complete water main stubs outside of winnetka Avenue right of way in concurrence with CenterPoint Energy project o 45th Avenue & Winnetka Avenue —12 inch stub to the west o 55th Avenue & Winnetka Avenue — 8 inch stub to the west ➢ Complete sanitary sewer upsizing within Winnetka Avenue right of way in concurrence with CenterPoint Energy project o 451n Avenue & Winnetka Avenue — Upsize to 10" PVC ➢ Complete utility improvements within 45th Avenue, Xylon Avenue, and 551h Avenue In concurrence with redevelopment or City street improvement work ➢ Determine internal utilities and storm water features required within the redevelopment areas at the time of redevelopment ➢ Reevaluate sizing of sanitary sewer east of Winnetka Avenue at 45th Avenue when the specific type of redevelopment is known ➢ Adopt this report as the guide for the proposed improvements with redevelopment areas City of New Hope� � Stantec Project No: 193P ge 18 New Hope City Center APPENDIX Appendix A-1 Preliminary Cost Estimate City Center Redevelopment Utility Improvements March 2013 I No. Item Units Qty Unit Price Total Price I Water Sanitary Storm Total Construction Cost $258,300.00 $160,900.00 $155,000.00 $574,200.00 Contingencies (10%) $25,83x.00 $16,090.00 $15,500.00 $57,420.00 Indirect (25%) $64,575.00 IdO,225.00 1389750.00 1143,550.00 Total Utilities ��, �N IMAROA_-W&_ ,ice I No. Item Units Qty Unit Price Total Price I 1 MOBILIZATION LS 1 $25,000.00 $25,000.00 2 TRAFFIC CONTROL LS 1 $12,500.00 $12,500.00 3 REMOVE WATER MAIN LF 2,600 $7.00 $18,200.00 4 REMOVE HYDRANT EA 2 $350.00 $700.00 5 TEMPORARY WATER SERVICE EA 5 $3,000.00 $15,000.00 6 CONNECT TO EXISTING WM EA g $1,000.00 $3,000.00 7 6" DIP WATER MAIN LF 120 $30.00 $3,600.00 8 8" DIP WATER MAIN LF 20 $35.00 $700.00 9 12" DIP WATER MAIN LF 2,500 $50.00 $125,000.00 10 6" GATE VALVE AND BOX EA 6 $1,600.00 $9,600.00 11 8" GATE VALVE AND BOX EA 1 $1,800.00 $1,800.00 12 12" BUTTERFLY VALVE AND BOX EA 4 $3,000.00 $12,000.00 13 HYDRANT EA 6 $3,200.00 $19,200.00 14 DUCTILE IRON FITTINGS LB 2,000 $6.00 $12,000.00 Subtotal $258,300.00 Contingencies (10%) $25,830.00 Indirect (25°/x) $64.575.00 Total Cost $348,705.00 No. Item Units Qty Unit Price Total Price 1 MOBILIZATION LS 1 $7,000.00 $7,000.00 2 TRAFFIC CONTROL LS 1 $3,500.00 $3,500.00 3 REMOVE SANITARY SEWER MAIN LF 440 $80.00 $35,200.00 5 10" PVC SANITARY SEWER LF 2420 $35.00 $84,700.00 6 SANITARY SEWER WYE EA 5 $300.00 $1,500.00 7 REMOVE AND REPLACE SEWER SERVICE LF 250 $30.00 $7,500.00 8 CONNECT TO EX. SANITARY SEWER SERVICE EA 5 $300.00 $1,500.00 9 4' DIAMETER SANITARY SEWER MH EA 8 $2,500.00 $20,000.00 Subtotal $160,900.00 Contingencies (10%) $16,090.00 Indirect (25%) 140.225.00 Total Cost $217,215.00 C. STORM SEWER No. Item Units Qty Unit Price Total Price 1 MOBILIZATION LS 1 $20,000.00 $20,000.00 2 TRAFFIC CONTROL LS 1 $10,000.00 $10,000.00 3 ABANDON EX. STORM SEWER LS 1 $5,000.00 $5,000.00 4 REMOVE 30" RCP STORM SEWER LF 660 $15.00 $9,900.00 5 REMOVE MH OR CATCH BASIIN EA 2 $800.00 $1,600.00 6 24" RCP STORM SEWER LF 450 $50.00 $22,500.00 7 42" RCP STORM SEINER LF 660 $100.00 $66,000.00 8 V DIA STORM SEWER MH EA 4_ _ $5,000.00 $20,000.00 Subtotal $155,000.00 Contingencies (10%) $15,500.00 Indirect (25%) $38.750.00 Toil Cost $209,250.00 Appendix A-2 Preliminary Cost Estimate Winnetka Learning Center & Adjacent Ball Fields Redevelopment Utility Improvements March 2013 1 MOBILIZATION 2 TRAFFIC CONTROL 3 REMOVE/ABANDON WATER MAIN 4 REMOVE HYDRANT 5 TEMPORARY WATER SERVICE 6 CONNECT TO EXISTING WM 7 6" DIP WATER MAIN 8 8" DIP WATER MAIN 9 6" GATE VALVE AND BOX 10 8" GATE VALVE AND BOX 11 HYDRANT 12 DUCTILE IRON FITTINGS LS 1 $4,000.00 $4,000.00 LS 1 $2,000.00 $2,000.00 LF 650 $7.00 $4,550.00 EA 1 $350.00 $350.00 LS 1 $10,000.00 $10,000.00 EA 5 $1,000.00 $5,000.00 LF 100 $30.00 $3,000.00 LF 1,000 $35.00 $35,000.00 EA 4 $1,600.00 $6,400.00 EA 4 $1,800.00 $7,200.00 EA 3 $3,200.00 $9,600.00 LB 1,200 $6.00 $7,200.00 Subtotal $94,300.00 Contingencies (10%) $9,430.00 Indirect (25%) $23,575.00 Tota! Cost $127,305.00 We] IDORW Request for Action Originating Department Approved for Agenda Agenda Section Community Development November 12, 2013 Development and Plannin Item No. By: Jeff Sargent, CD Specialist By: Kirk McDonald, City Manager 8.2 Curtis Jacobsen, Director of CD Resolution accepting the low quote for the Limited Site Investigation at 4300 Xylon Avenue, from Nova Consulting Group, Inc. at $7,707.25 (project 893) Requested Action Staff requests the Council approve the resolution approving the limited site investigation per the low quote from Nova Consulting Group, Inc. Policy/Fast Practice It is a practice of the city to get Council approval prior entering into an agreement with any outside contractor. Background On July 24, 2012, the city purchased the Kmart shopping center and the Wells Fargo Bank drive-thru at the City Council's discretion. On December 12, 2012, the Council awarded the contract for demolition of these buildings to Landwehr Construction, Inc. During the removal of the 20,000 gallon underground storage tank, some contamination was uncovered that could not be addressed under the demolition contract. Staff has been working with the city engineer to solicit quotes for a Limited Site Investigation at 4300 Xylon Avenue to determine the extent of the contamination and to determine the ultimate method for its remediation. The purpose of the solicitation is to assure that the city follows the correct process to be eligible for Minnesota Department of Commerce Petrofund funding. Three firms were requested to submit proposals to conduct the Limited Site Investigation with all three of the firms responding with proposals. Limited Site Investigation - Proposals Nova Consulting $ 7,707.25 American Engineering Testing, Inc. $ 8,793.00 Braun Intertec $ 14,620.30 Motion by Second by To: /Ulo r7j �3 I:\RFA\ COMM DEV \Develo ment\Q & R -City Center LimitedSitelnvestiation 11-12-2013.doc Request for Action November 12, 2013 Page 2 Funding Funding for this portion of the site investigation can be made from EDA funds if necessary prior to the receipt of Petrofunds from the Minnesota Department of Commerce. Recommendation Staff recommends the Council approve the resolution accepting the low quote for the Limited Site Investigation from Nova Consulting Group, Inc. at $7,707.25. Attachments Resolution Solicitation letter • Proposals City of New Hope Resolution No. 2013 - Resolution accepting the low quote for the Limited Site Investigation at 4300 Xylon Avenue North, from Nova Consulting Group, Inc. at $7,707.25 (project 893) WHEREAS, the City owns 4300 Xylon Avenue and intends to pursue cleanup of the site with Petrofund funding from the Minnesota Department of Commerce; and WHEREAS, staff solicited written quotes for this work from a total of three firms that are certified to do this work by the Minnesota Pollution Control Agency; and WHEREAS, staff received three proposals to complete this work on the city's behalf; and WHEREAS, Nova Consulting Group, Inc. submitted the low quote for the work. NOW, THEREFORE, BE IT RESOLVED that the City Council accepts the low quote for the provision of a Limited Site Investigation at 4300 Xylon Avenue North from Nova Consulting Group, Inc. at $7,707.25. Adopted by the City Council of the city of New Hope, Hennepin County, Minnesota, this 121h day of November, 2013. Mayor ftemken ATTEST: 1� City Clerk October 11, 2013 RE: Request for Proposal — Limited Site Investigation Former Kmart Shopping Center — 4300 Xylon Avenue North New Hope, Minnesota 55428 Submittal Due Date: November 1, 2013 @ 1:00 p.m. Dear Petrofund Consultant: The City of New Hope is requesting a proposal to conduct a Limited Site Investigation (LSI) following Minnesota Pollution Control Agency (MPCA) guidance at the Former Kmart Shopping Center, located at 4300 Xylon Avenue North, New Hope, Minnesota 55428 (the Site). A 20,000 gallon heating oil Underground Storage Tank was removed from the property during the demolition phase of the project. An LSI following MPCA guidance needs to be performed to further define the potential horizontal and vertical extent of petroleum impacts. The City will be pursuing reimbursement through the Minnesota Department of Commerce Petrofund to assist with the costs of this investigation. As a result, it is essential that all Site investigation activities and reporting adhere to the Petrofund requirements for reimbursement. Site investigation activities with regard to the Request for Proposal for a Limited Site Investigation — Standard Scope of Work shall be completed by January 15, 2014. The Standard Scope Invoice Form can be found at: ht mn. ov commerce to ics etrofund Standardized-Pra osal- Invoiae-osis.": . It is the City's expectation that the selected consultant will administer the Petrofund process for the City and prepare all necessary documents, forms, and reports necessary for the City to participate in the program and receive reimbursement. Consultants shall include administration of the Petrofund program in their proposals. The selected Consultant will need to enter into a standard contract with the City of New Hope and provide proof of acceptable insurance. Thank you for your consideration of this request. The City Council will award the project at the November 12, 2013, City Council Meeting. Please contact the undersigned if there are any questions or additional information required for this proposal. Cost submittals can be returned via email or to the address listed below. Sincerely, Curtis Jacobsen Director of Community Development cj acobsen@ci.new-hope.mn.us October 21, 2013 Mr. Curtis Jacobsen City of New Hope 4401 Xylon Avenue North New Hope, Minnesota 55428 Subject: Limited Site Investigation — Standard Scope Former Kmart Shopping Center 4300 Xylon Avenue North New Hope, Minnesota 55428 MPCA Leak No.: 19123 Dear Mr. Jacobsen: CORPORATE HE.1DO( ARTERS Minneapons, MN Serving our clients Nationwide Nova Consulting Group, Inc. (Nova) is pleased to submit this proposal for conducting environmental services associated with the Limited Site Investigation (LSI) activities at the subject site. Attached to this proposal is the Minnesota Department of Commerce (MDC) Petrofund spreadsheet for the standard work scope activities. The completion of activities associated with the LSI may be eligible for up to 90 percent reimbursement by the MDC Petrofund. SCOPE OF WORK Nova proposes the following scope of work at the subject site: • Prepare a site specific Health and Safety Plan; • Contact Gopher -One to locate public subsurface utilities; • Complete a water well receptor survey; • Complete a vapor receptor survey; 0 Complete a surface water receptor survey; • Advance four test borings up to 25 feet below grade (bg) with a Geoprobe . Advance one test boring up to 40 feet bg to define vertical impacts and lithology. Advance up to five test borings up to ten feet bg for the collection of soil gas samples; Former Kmart Shopping Center LSI Proposal October 21, 2013 Page 2 • Collect and screen soil samples on site for organic vapors with a photoionization detector (PID) and complete classification of subsurface lithology; • Collect up to seven soil samples from the five test borings for analysis of diesel range organics (DRO), benzene, toluene, ethylbenzene, and total xylenes (BTEX), and methyl-tert-butyl-ether (MTBE); + Collect three soil samples for grain size analysis (Method ASTM D422 with hydrometer) from transmissive zones below the water table; * Obtain depth to groundwater (if encountered) in each boring; CP Collect up to five groundwater samples and one duplicate sample from the test borings for analysis of volatile organic compounds (VOCs) and DRO; • Collect up to five soil gas samples for analysis of EPA method TO -15; • Submit soil, groundwater, and gas samples to an independent laboratory; o Survey ground surface elevations at the soil boring locations; and, • Complete a LSI Report summarizing the results of the investigation and providing a recommendation for further work or file closure. Former Kmart Shopping Center - LSI Proposal October 21, 2013 Page 3 COST ESTIMATE The following is the estimated costs associated with the LS1 activities. The costs have been provided in accordance with our general conditions. We estimate the cost for the proposed scope of work associated with the LSI tasks to be approximately $7,707.25. This cost estimate assumes that the subcontracted analytical costs will be passed through to you for direct payment. If desired, Nova can pay the subcontractor invoice for a non -reimbursable 10% processing fee. Additional work will be completed under a change order on a time and material basis. Nova will not exceed the proposed work scope without authorization from you. Nova would prepare the initial Petrofund reimbursement application for $320.00. This is not a reimbursable task so has not been included in the attached spreadsheets. If this proposal meets with your satisfaction, please place your notarized signature on the enclosed Petroboard Bid Form entitled Limited Site Investigation Standard Scope of Work and return it to us so we may commence project activities. If you have questions regarding the contents of this work plan or the proposed project, please contact me at (612) 670-4658. Sincerely, Nova Consulting Group, Inc. Michael D. Hayes, PG Phase II Leader / Hydrogeologist Petroleum Tank Release Cleanup Fund Standardized Proposal and Invoice Form Limited Site Investigation (LSI) Standard Scope O1lAl1YdT W MPCA Leak # 19123 Applicant Name City of New Hope Leaksite Name Former Kmart Shopping Center Address 4401 Xylon Avenue North Now Hone, MN 55428 Site Address 4300 Xyion Avenue North New Hope, MN 55428 Task Description Amount Proposed Amount invoiced for Proposed Tasks ministrative Tasks $39 per sampling point/see rule Agency status update $105 per field work event Applicant status update [drilling] $572 per drilling event/see rUe Background review $616 per leak site Field work notification and scheduling $209 per fie;d work event(see rule Health and safety plan $275 per leak site Nonspecific administration $220 per step of services Sample shipping and transportation $99 per shipping event nsultarrt Drilling and Excavation Activities $23.00 Drilling oversight, field log prep, & soil samp!!ng [25' or. shallower boring] $165 per boring Drilling oversight. field log prep, .& soil sampling [boring deeper than 251, $7 per foot Surveying & surveying equipment $209 per surveying even: Utility clearance $220 per utility clearance event :Id and Receptor Surveys 1 day field supplies at $251day Surface water receptor survey and risk evaluation $154 per leak s!te Vapor receptor survey and risk evali:ation $770 per leaksitelsee rule Water well receptor survey and risk evaluation $828 per leaksitelsee rule Groundwater samp:ing (other than permanent monitoring well) $39 per sampling point/see rule 1$ Submissions to Agency Investigation report preparation (LSI only) $3,825/see rule $2,215.00 Travel and Per Diem Travel time $77 per hour $140.00 Vehicle mileage $0.715 a m -e $23.00 Perdiem $149 per day per pe. $ Equipment and Field Supplies Charges (list items included in proposal below) 112 day PID at $1001day $50.D0 1 day field supplies at $251day Disposable items =Cost to buy the $25.00 items Reusable items = Lesser of purchase $ or rents; cost Contractor Services Included in this Proposal Analytical Services Analysis Type 7 soii samples TEXIMTBE $350.00 6 groundwater samples _ DRO - EASTM See Minn. Rule 2890.2900 — -- $498.00 Y—. 3 grain size anal sis 1)422 with H dromater see Minn. Ruse 2890.3000 $315.00 5 soil gas samples ethod TO -15, full acan $900.00 Drilling, Direct Push Technology 4 push probes to 25', 1 push probe to 40', 5 Dush probes to 10' $1491 hr. < 15,000: bs. Retraction Force = < 15,000 lbs, or > 15,000 lbs. (circle one) $2201 hr. > 15,000 Pa.. $1,371.25 Push probe sealing $1.10 per ft. $ Mobilization/demobilization (drilling) (0 - 50 miles one way) _. $275 $55.00 Mobilizationldemob'lizatior (drilling) (51- 500 miles one way) $275 plus $6 per mile over 50 Mobillzationldemobilization (drilling) (over 500 miles one way) $2,420 $ Per diem $149 per day I per person $ $7,7D7.25$ Amount Invoiced for Total Proposed I Proposed Tasks Page 1 of 2 7/2008 Petroleum Tank Release Cleanup Fund Standardized Proposal and Invoice Form Limited Site Investigation (LSI) Standard Scope INVOICE SUMMARY (to be completed by consultant after the work has been oerformed) Total amount invoiced for proposed tasks $ (enter amount from page 1) Total amount invoiced for tasks not proposed is (enter amount associated with column A of the Change Order form) GRAND TOTAL AMOUNT INVOICED FOR WORK PERFORMED $ CONSULTANT Consultant Providing Above Proposal Nova Consult QMijp. Inc. Contact Person Mike Haves Phone 952-361-8674 Fax 952-448-9572 E-mail Address mike.hay2RQ a onsultlnn.cnm I hereby certify that this document accurately reflects the details specified in the RFP dated _10121113 and the anticipated costs for a limited site investigation, which total $_7.707.25. i further certify that the hourly rates to be charged for consultant services WILL _X WILL NOT exceed the maximum hourly labor rates for consultant services listed in Minn. Rule 2890.1400 [maximum hourly rates are as follows: Si = $143, MLP = $105, ELP = $77, FT = $72, DP = $61, WP = $441. If line is not marked, it is assumed to be 'grill not." '218 Petrofund Registration Number APPLICANT 1012112013 proposal must be signed and dated by the consultant. NOTARIZATION (of applicant signature) To accept this proposal, sign and date it in front of a notary public. acceptance Signed or attested before me this _ day Notary Public My Commission Expires Page 2 of 2 712008 COST ESTIMA'T'E Former Kmart Shopping Center New Hope, Minnesota MPCA Leak Number: 19123 Limited Site Investigation- Standard Scope 10/21/2013 NOVA COSTS Units Quantity hate Cost PERSONNEL Project Mana eg ment Applicant Updates hour 3 $80.00 $240.00 Field Work Scheduling hour 1 $80.00 $80.00 Health and Safety Plan hour 0.75 $80.00 $60.00 Utility Clearance hour 0.75 $80.00 $60.00 Sample Shipping hour 1 $70.00 $70.00 Nonspecific Administration hour 1.5 $80.00 $120.00 Field Work Mobilization (1 Hr. RT) - PM hour 2 $70.00 $140.00 Drilling Oversight (Test probes) hour 7 $70.00 $490.00 Vapor Intrusion Assessment Test probes hour 2 $70.00 $140.00 Survey Test Borings hour 1 $70.00 $70.00 Survey Equipment day 0.5 $40.00 $20.00 Vapor Survey (FW) hour 0.5 $70.00 $35.00 Well Receptor Survey - Office hour 3 $80.00 $240.00 500 -foot Walking Well Receptor Survey hour 2 $70.00 $140.00 Geoprobe Costs Mobilization (1 Hrs. RT) - Geoprobe Operator hour 1 $55.00 $55.00 Geoprobe Operator (Test Probes) hour 7 $55.00 $385.00 Vapor Intrusion Assessment Test probes hour 2 $55.00 $110.00 Geoprobe Rental hour 7 $85.00 $595.00 Geoprobe Supplies day 1 $175.00 $175.00 MDH Permit day t $106.25 $106.25 Data Analysis/Reoort Preparation - LSI Project Manager hour 22 $80.00 $1,760.00 Scientist hour 6 $70.00 $420.00 MTECH Boring Log Rental hour 3.5 $10.00 $35.00 EXPENSES Mileage (46 miles RT) mile 46 $0.50 $23.00 Field Supplies day 1 $25.00 $25.00 PID day 0.5 $100.00 $50.00 NOVA Subtotal $5,644.25 SUBCONTRACTOR_ _COSTS Units Quantity Unit Cost Cost Analytical Laboratory DRO - Water per sample 6 $28.00 $168.00 VOCs - Water per sample 6 $55.00 $330.00 DRO - Soil per sample 7 $28.00 $196.00 BTFX/MTBF - Soil per sample 7 $22.00 $154.00 Sieve Analysis - Soil (ASTM:D422) With Hydrometer per sample 3 $105.00 $315.00 Method TO -15 - Soil Gas per sample 5 $180.00 $900.00 Non -Reimbursable IO% Subcontractor Processing Fee LS 0 $206.30 $0.00 Subcontractor Subtotal $2,063.00 TOTAL $7,707.25 AMENDMENT TO GENERAL CONDITIONS (As agreed fo by Michael D. Fayes, PG, Phase II Leader, Nova Consulting Group, L -Ir. and Curtis;acobsen, Director of Community Development, city of New Hope, Minnesota) SECTION 5 REPORTS 5.2 Deleted SECTION 9 DISPUTES. 9.1 Deleted 9.2 Delete all but the line: Any lawsuit arising out of this agreement will be held in the state of Minnesota. SECTION 10 INDEMNIFICATIONS 10.1 Add: Hazardous materials shall be placed in barrels and removed from the site. 10.1(iii) Shall be amended to read: the presence, discharge, release or escape of hazardous substances of any kind unless the discharge, release or escape is caused by the willful or negligent acts or omissions of NOVA in the performance of this Agreement, SECTION 11 LIMITATION OF LIABILITY u.1 Deleted "004kh, 14 Nova*14rr COnsulting Grnup, Inc. NOVA CONSULTING GROUP, INC, AGREEMENT OF GENERAL CONDITIONS SECTION 1. SERVICES AND COMPENSATION. 1.1 Nova Consulting Group, Inc., a Minnesota corporation (NOVA), shall provide CLIENT the services described in the NOVA Proposal or Authorization Agreement attached hereto (the "Services") in accordance with the terms thereof and hereof: In the event that these General Conditions aro inconsistent with the terms of the attached Proposal or Authorization Agreement, the terms of such Proposal or Authorization Agreement shall govern. CLIENT shall pay for the Services as agreed, and a statement of probable cost made to CLIENT shall not be binding on NOVA unless stated as a "not -to -exceed cost." NOVA shall provide additional services as requested by CLIENT or as required due to a material increase In the scope of the Services, and CLIENT will pay for those additional services at the rate shown on the attached Proposal, Authorization Agreement or Schedule of Charges. SECTION 2. GENERAL RESPONSIBILITIES. 2.1 NOVA will test samples submitted by CLIENT, or will obtain and test samples as agreed upon by die parties, CLIENT acknowledges tinct NOVA will not sample each increment or the area or object to be tested. CLIENT aclotowledges dint cite results of such testing will indicate actual conditions only or the specific increments sampled from which NOVA can make certain inferences, but that NOVA cannot and does not guarantee that its procedures will produce results representative of the entire area or object from which the incremental sample was taken. 2.2 NOVA shall not be responsible for the performance of any activity or obligation other than the Services. The performance of the Services by NOVA shall not be construed to relieve any third party of their responsibilities. For mold and other environmental issues, if the original conditions that created the issues are not corrected, mold and other environmental concerns may return. NOVA does not guarantee that mold and environmental concerns have been completely mmedlated. 2.3 NOVA shall be responsible only for the supervision of Its employees in the performanoe of die Services, and NOVA shall not be responsible for superintending, supervising or directing the work ofany third parry or for job site safety. 2.4 Nothing in this agreement shall be construed to require NOVA to assume the status ofa generator, starer, treater, hauler or disposal facility within the scope of the Resource Conservation Recovery Act, 42 USC Chapter 82, or within any state law regarding the handling, treatment, storage or disposal of water or hazardous materials. 2.5 CLIENT shall provide NOVA, in writing if requested, all information known to CLIENT regarding existing and proposed conditions of the site relevant to the Services. 2.4 CLIENT shall immediately notify NOVA if any new information or data of which CLIENT becomes aware that materially differs from information previously provided to NOVA. CLIENT warrants the completeness and accuracy of information supplied by it to NOVA and acknowledges that NOVA is relying upon, such information without verification by NOVA of its completeness and accuracy. 2.7 CLIENT shall, at its expense, be responsible for obtaining all necessary permits and approvals relating to the Services. NOVA will provide reasonable assistance to CLIENT for that purpose. SECTION 3. ACCESS AND RESTORATION. 3.1 CLIENT shall provide NOVA access to the site related to the Services, and NOVA agrees to take reasonable precautions to minimize damage to the site. However, CLIENT acknowledges that some damage may occur to the site or sampled materials during the normal course of the Services. The correction or any such damage stall be the responsibility of CLIENT or, at CLIENT'S option, NOVA will correct the damage fora charge based upon NOVA'S then current rate. SECTION 4. SAMPLES, 4.1 All test samples remaining after the Services have been performed shall be discarded by NOVA at NOVA'S expense, unless CLIENT requests, in writing, within thirty days of receipt of the written report relating to those samples, that NOVA stone or ship those samples at cost, plus 15 percent. Nova Consulting Group, Inc. - An equat opportunity employer 1107 Hazeltine Blvd., Suite 400 Chaska, MN 55398 (952) 448-9393 FAX: (952) 448-9572 SECTION 5 REPORTS. 5.1 As part of the Services, NOVA will provide CLIENT with written reports containing test results and, when appropriate, recommendatioms and suggestions relating to compliance with established criteria for remedial action. 5.2 — All-Fapetys; netEs eleulations and ether{feta-prepared-c+r-celleeted by-,VEliisl�; in perfe anee of a Se ees; �hsll be-canslderet#anstrutnentS-eF- --setwicc at:d-shsil-rettteirt grope crF OVA_-' 5.3 if CLIENT does not pay for lire Services as agreed, CLIENT shall return to NOVA, upon demand, all reports and other work finished by NOVA to CLIENT or CLIENT'S agents and such reports and work shall not be used by CLIENT for any purpose. 5.4 NOVA shall retain all material documents relating to the Services for five years following rhe submission of the report relating to the Services. SECTION 6. PAYMENT, INTEREST, AND BREACH. 6.1 Unless otherwise agreed, invoices for the Services shall be issued monthly and shall be payable in full upon receipt. Invoices issued will be NOVA'S standard invoice. If another invoice format is required, NOVA reserves the right to charge CLIENT for the sum required to prepare CLIENT'S invoice in its own format. Invoices not paid when due are subject to interest from the 3 V day at the rate of 1 �4_ percent per month, or the maximum rate allowed by law, whichever is less, for any unpaid portion thereof. 6.2 CLIENT acknowledges and agrees that NOVA may, at Its option, increase its billing rates on each anniversary of the date of this Agreement. NOVA shall promptly notify CLIENT of any such increases. 6.3 If CLIENT fails to pay in full any invoice within 60 days of the date thereof, NOVA may, at its option, declare this Agreement to be in default and terminate all of its duties hereunder without liability to CLIENT or otd:ers. Upon termination hereof, CLIENT shall pay NOVA for services rendered, plus reasonable termination expenses. SECTION 7. INSURANCE. 7.1 Upon request, NOVA will furnish CLIENT a Certificate of Insurance. if CLIENT requests additional or increased insurance coverage, NOVA ,viii, if possible, purchase such, insurance at CLIENT'S expense in accordance with the Schedule of Chergcs. NOVA shall not be liable to anyone for claims covered by such policies beyond the limits and conditions of those policies. AZASE SECTION 8. STANDARD OF CARE. 8.1 NOVA shall perforce the Services using that degree of cane and shill ordinarily exercised under similar circumstances by reputable members of its profession practicing in the saline locality. NO OTHER WARRANTY, EMIRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCRANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IS MADE OR INTENDED RESPECTING THE SERVICES, SECTION 9. DISPUTES. 9.1 -i rseeit�geir►st tri '",,,-.-ta cailemp-; t=,en ell eolleeEien expense ineiudino-;;;+�+evt-lintilaFiereasoaal�ie atte�nay�s'- -�'� fees, frill be paid-by-GLIENT: - 9.2 if C-bi&ff-bris-dismissed; x-0840whieh a :::diHs-mdered-fe rin-wlieie r4fi-iia.: _ EmN gill --pit) NOVA ils litttita4ienr�tttsanablo-at neya-leasr- Any lawsuit arising out of this agreement will be held in the state of Minnesota SECTION 10. INDEMNIFICATION. 10.1 CLIENT understands that by engaging NOVA to perform the Services, NOVA is relying on CLIENT'S performance of its obligations hereunder and CLIENT is requesting NOVA, for CLIENT'S benefit, to undertake what may be uninsurable obligations. Therefore, CLIENT shall indemnify, defend and hold harmless NOVA, its affiliates, and their respective directors, officers, employees, agents and subcontractors, from and against all claims, damages, losses, and related expenses (including, without limitation, reasonable attlorreys' fees), arising out or or in any way connected with: (1) the breach of CLIENT'S duties under Section 2.5, including without limitation, damage to subterranean structures and utili'3es that are not properly identified by CLIENT to NOVA; (ii) the termination of this Agreement pursuant to Section 6.3; (til) the presence, discharge, release or escape of hazardous substances of tun kind; (iv) service for the investigation of remedW work related to asbestos, hazardous waste, air, soil or ground water contamination, or other hazardous materials, vapors or substances; and (v) the interpretation of the results of the Services other than for the purposes disclosed by CLIENT to NOVA ir. writing. #Af I42L ALIS St1a3S7ArtaLCS s14ALL dE rP i�a_.Rc:ED f�'<! 13A99CLS A 15 I' EA4,0006 ..F RdrtR Str6 V' SECTION 11. LIMITATION OF LIABILITY. / 11.1 " r^" .=_ etsoas-cloitning dtreugir$L-IEN F; far�dnmage9-a9-ko-wltieh-the-inekmrrificakion-set forth-hr6ccftrr-+6-- (p Nova Consulting Group, Inc. - An equal Opportunity employer 1107 Hazeltine Blvd., Suite 400 Chaska, MN 55318 (852) 448-5393 FAX: (952) 448-8572 SECTION 12. MISCELLANEOUS 12.1 This Agreement is the entire Agreement between NOVA and CLIENT and it supersedes all prior written or oral agreements with respect to the subject matter hereof, Including CLIENT'S additional or different terms and conditiors that may be contained in any purchase order, work order, acknowledgement form, or othcr document forwarded by CLIENT to NOVA and to which notice of objection is hereby given. No amendment or assignment of this Agreement shall be effective unless agreed to in writing and signed by authorized representatives of bath parties. 12.2 NOVA'S services are perrormed as an independent eantraetorand not as the CLIENT'S employee, agent, partnerorjoint venturer. 12.3 NOVA shall have no liability for any `ailure to perform or delay in performance due to any circumstances beyond its reasonable control. 12.4 The terms orchis Agreement shall be governed by the substantive laws (and not the laws of conflicts of) the State of Minnesota. Nova Consulting Group, Ire. - An equal opportunity employer 1107 Hazeltine Blvd., Suite 400 Chaska, MN 55318 (952) 448-9303 FAX: (952) 448-9572 AMERICAN ENGINEERING TESTING, INC. October 21, 2013 Attn: Mr- Curtis Jacobsen City of New Hope 4401 Xylon Avenue North New Hope, Minnesota 55428-4898 CONSULTANTS ENVIRONMENTAL GEOTECHNICAL MATERIALS FORENSICS Subject: Proposal and Cost Estimate for Limited Site Investigation (LSI) — Standard Scope Former Kmart Shopping Center — 4300 Xylon Avenue North New Hope, Minnesota MPCA LEAK ID No. 19123 AET Proposal No. 03-04981 Dear Mr. Jacobsen: American Engineering Testing, Inc. (AET) is pleased to provide this proposal for conducting LSI services for the above -subject site. This proposal describes the scope, schedule, fees, and other information regarding our services. Background On Mwl 1, 2013, a petroleum release ,Am discovered on the site in thy; vicinity. of a former underground storage tank (UST) basin. The release vras reported to the Minnesota Pollution Control Agency (MPCA) on May 30, 2013, according to the NTC'A website. The MPCA website also lists the product tipe as fuel oil, which is consistent wraith your RYP characterization of a 20,000 lon heating oil tank. The MPGA has request A that you investigate this release in accordance with the requirements and guidelines of its Petroleum Remediation Program (PRP). Scope of Services We propose the follow}in; services based on the Minneso;la Depsr�ment of Comn-herce. Request j`ar PF'®F'o3a1 foa� o Larraa?ed t"aae Ir�veWS>i;;[�gi01t -� �FratrdSCope oj"Fork and your RFP quest: 1. Prepare a site-specific health and safety plan. 2. Hotix; the FAKA of field work. 3. Perform a risk assessinent for petroleum vapor, groundwater, and surface grater in accordance with MPCA guidelines. 550 Cleveland Avenue North I St. Paul, MN 55114 4M Phone 651-659-90011 Toll Free 800-972-63641 Fax 651-659-13791 www.amengtestcom I AAIEEO This document shall not be reproduced, except in full, without written approval from American Engineering Testing, Inc. City of New Hope AET Proposal No. 03-04981 October 21, 2013 Page 2 of 4 4. Obtain public utility clearance through Gopher State One Call; you will be responsible for access to sampling areas and clearance of private utilities. If site conditions necessitate additional utility clearance through a private contractor, the associated fees will be included in a Petrofund Change Order form. 5. Use a Geoprobe40 subsurface sampling system to collect five soil gas samples from approximately 8 to 10 feet below ground surface (bgs) for laboratory analysis of volatile organic compounds (VOCs) by the prescribed EPA Method TO -15. 6. Advance four Geoprobe® soil borings to approximately 25 feet bgs and advance one Geoprobes soil boring to approximately 40 feet bgs. 7. Log and screen the soil samples recovered from the soil borings for the presence of organic vapors or obvious visual/odor indications of petroleum contamination. 8. Select three soil samples from the saturated zone for grain -size distribution testing using sieves and a hydrometer. 9. Collect seven soil samples for analytical testing of: a. Benzene, Toluene, Ethylbenzene, and Xylenes (BTEX) b. Diesel Range Organics (DRO) c. Eight RCRA Metals* d. Polychlorinated Biphenyls (PCBs)* e. Polynuclear Aromatic Hydrocarbons (PAHs)* *These samples will be placed on hold in case the MPCA requests this analysis based on BTEX/DRO detections. 10. Collect five groundwater samples from the soil borings for analytical testing of: a. Volatile Organic Compounds (VOCs) b. DRO c. Eight RCRA Metals* d. PCBs* e. PAHs* *These samples will be placed on hold in case the MPCA requests this analysis based on VOC/DRO detections. 11. Prepare and submit a LSI report, provided the results indicate that further investigation is not warranted. If additional investigation is necessary, AET will submit. a Petrofimd Change City of New Hope AET Proposal No. 03-04981 October 21, 2013 Page 3 of 4 Order form outlining the additional work scope we recommend. 12. Prepare and submit a Petrofund application . for reimbursement and accompanying documentation for your review, execution, and submittal to Petrofund. Performance Schedule We will schedule the field work after we receive your written authorization. Based on our current commitments, we anticipate drilling could begin within approximately three weeks of your approval. Analytical results should be available within approximately two weeks of sample collection, and we can provide you verbal report shortly thereafter. The written report should be available about three weeks after we receive the final analytical results. Provided this proposal is authorized by November 15, AET can complete the LSI report by January 15, 2014, as described in your RFP. Please contact us if you need expedited schedules, which will affect our rates. This proposal shall be valid for a period of 90 days from the date issued. Terms Our services will be performed per the attached Service Agreement. Cost Estimate Our fees for services will be charged on a time and materials basis in accordance with Petrofund requirements and the attached Service Agreement. For this project we estimate fees totaling $9,703 as detailed below. LSI: A cost breakdown for the above scope of services- is shown on the attached LSI Standard Scope Proposal and Invoice Form. The total estimated cost for 'the LSI scope of services is $8,793. This estimate does not include analytical costs for samples placed on hold at the laboratory for possible testing. Petrofund Application: We estimate additional costs of $920 to prepare the Petrofund application. City of New Hope AET Proposal No. 03-04981 October 21, 2013 Page 4 of 4 AET recommends that you solicit a minimum of one competing bid to be eligible to qualify for full Petrofund reimbursement (up to 90%). This competitive bid should be for a Standard Scope for a tank with a fuel oil product type. Although we endeavor to adhere to established Petrofund guidelines, we do not guarantee full reimbursement. Acceptance Please indicate your acceptance of this proposal by signing the Proposal Acceptance, signing and notarizing the LSI Standard Scope Proposal and Invoice Form, and returning copies of them to AET. The original proposal is intended for your records. The original signature/notarization will be required when applying for Petrofund reimbursement. We are pleased to have the opportunity to submit this proposal and are looking forward to working with you on this project. If you have any questions regarding our services or need additional information, please contact me at 651-659-1302. Sincerely, American Engineering Testing, Inc. Charles C. Tiller, .G. Senior Geologist Attachments: LSI Standard Scope Proposal and Invoice Form AET Service Agreement PROPOSAL ACCEPTANCE Signature Date Typed/Printed Name Company Petroleum Tank Release Cleanup Fund Standardized Proposal and Invoice Form Limited Site investigation (LSI) Standard Scope l)W"TMENT nr Coa MEIIGI„- Leaky 19123 Applicant Name City of New Hope Address 4401 X Ion Avenue North New Hope, MN 55428 Task Description Agency status update Applicant status updete [drilling] Eaftnund review Heid work notification and scheduling Heakh and saf ly plan Monspecific administrEtion Sample shipping and transportation raul!Wnt Drilling and Exeavedon !�'JYltlssg Grilling oversight, field log prop, 8: soil sampling RV or shallower boring] Grilling oversight, field log prep, &: soil sampling [boring deeper than 251 Surveying & surveying equipment Utifty rleararnos lid end Receptor Surma eivasce water receptor survwy and risk evaluation rFyprmrrr:spic+rLLmmfsandria',I,comWi-n ��,',�':ra�:R'I�.les ;;;;hili:iirr• :ant+y. i'ri�:i�,!-"-r3:irira.,i _e�r��,l:r,y�ra._�tt,rry:li Jr�� a lastirl�. , P�+old f l•ar ,it:+n Of only) anDirifm Leakelte Name Former Kmart Shopping Ctr. Site Address 4300 X Iran Avenue North $116 per field wort: event $629 per drilling eventlsee rule 9676 per leak site $230 per field work event/see rule $303 per leek site $242 per step of services $109 per shipping event $182 per boring $8 per frot $230 per surveying event $242 per utility clearance event M9 per 6aF site ..a�•- RreF I12�eftliirakrioe PAR F.xF i -ver :Gaal �� r?6- Per :]ism per i*= per perzon uIpTent and Flsid Supplice Chargea (flat Wine Included In proposal below) Dtoionization Detector(PID) Pontel Gas Services Includad In this Proposal Analytical Services Anal Is Type 7 soil samples BTEY,/MTBE/GROIDP.O 5 groundwater samples VOCIGRG/GRO 3 grain size analysis Slaves + Hydrometer 5 soil gas samples EPA Method TO -15, full scan Drilling, Direct mush, TechnekV 4 push probes to 251, 1 push probe to 40', 5 push probes to 10' F•etraction Fore: = < 15,000 lbs. or> 15,000• lbs. (circle ane) Push probe sealing 'MobiiiaalloWdernobilizailun (uvilling) (0 - oil miles ogle;ri W) Mobillzation/demobilization (drilling) (51 -500 miles one way) Mobilizstlonldemobilizetion (drilling) (over 500 miles one way) Per diem (5lsp03901e hams - Cast to buy the Items Reusable Items = Lessor of purchase or rental cost see Minn. Rule 2890,2900 see Minn. Rule 2890.3000 $164 / hr. < 16,000 lbs. $242 I hr. a 15,000 lbs. $1.2p1 per R. $303 $303 plus $7 per mile over 50 $2,662 $164 per day I per person New Hope, WW 55428 Amount Proposed Amourtlmva'k:ed for Proposed Tasks 942.50 $ $85.00 $ $85.00 $85.00 2.50 $85-00is 80.00 $ k74.00 $ $158.00 $ 79.00 $ 79.00 $8,793.001 Amount Invoiced for wesed Proposed Tasks Page 1 of 2 712013 VOTTOleum I aAK IteleaSe unanup I-una Standardized Proposal and Involve Form Limited Site Investigation (LSIP Standard Scope 1i11111'Q1ICE SUMMARY JIM be completed by consultant after the work has been notal amount Involved for proposed Caslbs ,Gntsr amount from page 1) t'of,al amount Invoiced for tcake not propmed (order ma rmtont sesecleM wltl► aoft mru A+ CC the Change Order form) TOTAL AMOUNT INVOICED FOR WORK PERFORMED CONSULTANT ConsuMnt Providing Above Proposal American Engineering Teson , Inc. Contact Person Cherlev C. Tiller, P.O. Phone 651-659-1302 Fax 851-059-1379 E-mail Address ctillerCa�amengtest.com �I hereby certify that this document accurately reflects the details specified in the RFP dated October 15 2013 and the anticipated goats for a limited site investigation, which total $8,793.1 further certify that the hourly rates to be charged for consultant services WILL _X_ WILL NOT exceed the maximum hourly labor rates for consultant services listed in Minn. Rule 2890.1400 [maximum hourly rates are as follows: SLP = $157r MLP = $116, ELP = $85, FT = $79, DP = $67, WP a $4,01. If line is not marked, it Is assumed to be "will not." Charles C. Tiller, P.G. ssultant Name (please print)"Consultant Signature pate American Engineering Testing, Inc. •1026 onsultent Company Petrofund Registration Number APPLICANT proposal must be signed and dated by the consultant. acospt this proposal, sign and dote I In front of a notery public. applicant indietting acceptance NOTARIZATION (of applicant signature) Signed or attested belbre me this — day Of _ 20� Flotary Public My Commission Er Ares Page 2 of 2 712013 ENVIRONMENTAL/ GEOTECHNICAL SERVICE AGREEMENT - TERMS AND CONDITIONS Page 1 of 3 SECTION 1 - RESPONSIBILITIES 1`1 - The party to whom the proposal/contract is addressed is considered the Client of American Engineering Testing, Inc. (AET). The terms and conditions stated are binding, upon acceptance, on the Client, its successors, assignees, joint ventures and third -party beneficiaries. Verbal proposal acceptance or authorizing purchase orders from the Client are considered formal acceptance of AET's terms and conditions. By slgning the proposal or verbally authorizing the services,.the authorizing party attests that they have the authority to legally bind the Client to agreement. 2_2 - Prior to AET performing services, Client will provide AET with all information that may affect the cost, progress, safety and performance of the services. This includes, but is not limited to, information on proposed and existing construction, all pertinent sections of contracts between Client and property owner, site safety plans or other documents which may controi or affect AEi's services. If new information becomes available during AET's services, Client will provide such information to AET in a timely manner. failure of client to timely notify AET of changes to the project including, but not limited to, location, elevation, loading, or configuration of the structure or improvement will constitute a release of any liability of AET. Client will provide a represent'ative.fortimely answers to project -related questions by AET. 1_3 - Services performed by AET will not relieve other persons of their responsibilities according to the contract documents or specifications, and AET will not be held responsible for work or omissions by Client or other persons. AET does not perform construction management, general contracting or surveying services and our involvement with the project does not constitute any assumption of those responsibilities. AET will not be responsible for directing or supervising the work of others, unless specifically agreed to in writing. 1_4 - Unavoidable risks are present when attempting to characterize buried subsurface conditions. Variations in soil conditions usually occur between and beyond sampled/tested locations. Even a comprehensive sampling and testing program performed in accordance with a professional standard of care may fail to detect certain conditions, because the variability of conditions cannot be seen. For similar reasons, actual environmental, geologic, and geotechnical conditions that AET characterizes to exist between sampling points may differ'significantly from those that actually exist. The passage of time also must be considered, and Client recognizes that, due to natural occurrences or direct or indirect human activities at the site or distant from it, actual conditions discovered may change. The Client must recognize and accept that nothing can be done to eliminate the risks associated with these inherent limitations. 1_S - AET is not responsible for interpretations or modifications of AET's recommendations by other persons - 1_5 - Should changed conditions be alleged, Client agrees to notify AET before evidence of alleged change is no longer accessible for evaluation. 1_7 - AET reserves the right to charge for time to negotiate new terms and conditions from those portrayed in our proposal or should the Client require the use of their contract format. If mutually acceptable terms cannot be established, AET shall have the right to withdraw their proposal without any liability to the Client, Owner or other parties and assigns associated with the project. If Client requests use of their contract format after the services have already been authorized, AET will be compensated for services rendered prior to approval of the Client's contract by both parties according to the AET Terms. and Conditions. 1_8 - The AET proposal accompanying these terms and conditions is valid for sixty (60) days after the proposal issuance date to the Client. If Client authorizes the services after the expiration date, AET reserves the right to review and revise the proposal as necessa ry. SECTION 2 - SITE ACCESS AND RESTORATION 2.1 - Client will furnish AET safe and legal site access. 222 - Client accepts that in the normal course of field -exploration uwckrcertain types of damage to the site may occur which are inherent with this type of work, such as tire indentations to lawns and landscape areas.'It is the responsibility of AET to take reasonable precautions to minimize such damage. It is also AET's responsibility to patch boreholes placed through pavement or slab areas after performance of borings. Otherwise, restoration of the site is the responsibility of the Client. SECTION 3 - UNDERGROUND UTILITY AND STRUCTURE CLEARANCE 3_1 - It is necessary that borings, excavations and other penetrations be located such that they maintain a minimum safe distance from underground utilities or other man-made objects. Client shall advise AET of all utilities that service or are located on the site, as.well as any underground improvements located on the site. AET will contact state notification centers, where available, or individual utility owners where a state notification center is not available prior to: drilling. In an effort to conform to reasonable standards of care, AET is entitled to rely on the location information provided by locating vendors. 3_2 - Public utility owners may not provide the locating service on private property or the property owner may have private underground improvements which cannot be cleared through the state notification center or public utility owners. In such situations, the Client is responsible for location of such utilities prior to drilling, or for payment of a private utility clearance subcontractor. 333 - AET will not be responsible for any damages to "non -located" or incorrectly located underground utilities/improvements. SECTION 4 - CONTAMINATION 4.1 - Client acknowledges and accepts that unavoidable contamination risks may be associated with AET's subsurface drilling, sampling and installation of monitoring devices. Risks include, but are not limited to, cross contamination created by linking contaminated zones to uncontaminated zones during the drilling process; containment and proper disposal of known or suspected hazardous materials, drill cuttings and drill fluids; and decontamination of equipment and disposal and replacement of contaminated consumables. Client and AET agree that the discovery o/ unanticipated actual or suspected hazardous materials may make it necessary for AET to take immediate measures, including regulatory notification, to ,protect human health and safety, and/or the environment. Client and AET also agree that the discovery of such materials constitutes a changed condition which_ may result in added costs to the Client, and may require a renegotiation of work scope or termination of services. 4„42 - Pursuant to risks set forth in Section 4.1, which are inherent with AET's work performed on the Client's behalf, Client agrees to hold harmless and indemnify AET from and against liability associated with contamination resulting therefrom. ENVIRONMENTAL/ GEOTECHNICAL SERVICE AGREEMENT -TERMS AND CONDITIONS - Page 2 of 3 SECTION 5 - SAFETY 5_1 - Client shall inform AET of any known or suspected hazardous materials or unsafe conditions at the site. If, during the course of AET's services, such materials or conditions are discovered, AET reserves the right to take measures to protect AET personnel and equipment or to immediately terminate services. Client shall be responsible for payment of such additional pratection costs. 5_2 - AET shall only be responsible for safety of AET employees at the site. The Client or other persons shall be responsible for the safety of all other persons at the site. SECTION 6 - SAMPLES 6,.1- Client is responsible for informing AET of any known or suspected hazardous materials prior to submittal to AET. All samples obtained by or submitted to AET remain the property of the Client during and after the services. Any known or suspected hazardous material samples will be returned to the Client at AET's discretion. 66.2 - Non -hazardous samples will be held for 30 days and then discarded unless, within 30 days of the report date, the Client provides a written request that AET store or ship the samples, at the Client's expense. SECTION 7 - PROJECT RECORDS The original project records prepared by AET will remain the property of AET. AET shall retain these original records for a period of three years following submission of the report, during which period the project records can be made available to Client at AET's office at reasonable times. SECTION 8 - STANDARD OF CARE AET performs its services consistent with the level of care and skill normally performed by other firms in the profession at the time of this service and in this geographic area, under similar budgetary constraints. SECTION 9 - INSURANCE AET maintains Worker's Compensation, Comprehensive General Liability, Automobile Liability and Professional Liability insurance, as described below. Upon request, prior to commencing the Services, AET can furnish Client with Certificates of Insurance evidencing that the insurance is in effect and in full force. 9_3 - Commercial General Liability insurance will include coverage for Products/Completed Operations (extending two (2)' years after final acceptance of the Project by Owner or such longer period as the Contract Documents may require), Broad Form Property Damage including Completed Operations, Personal Injury,. and Blanket Contractual Liability insurance applicable to AET's indemnity obligations under this Agreement. 992 - Automobile Liability insurance shall include coverage for all owned, hired and non -owned automobiles. 9_3 - Professional Liability Insurance is written on a claims -made basis and coverage will be maintained for two years after final acceptance of the Project by -Owner or such longer period as the Contract Documents may require. Renewal policies during this period shall maintain the same retroactive date. 9_4 - AET can, if requested by Client and permitted by AET's insurer, endorse its Commercial General Liability (including Products/Completed Operations coverage) to add Client and/or Owner as an "additional insured" with respect to liability arising out of the -Ser -vices performed for Client or Owner by AET. Such insurance afforded to Client and Owner as an additional insured under AET's policies shall be primary insurance and not contributory with, any insurance purchased or maintained by Client or Owner. 4_5 - AET will maintain in effect all insurance coverage required by this Agreement at its sole expense, provided such insurance is reasonably available, and with insurance carriers licensed to do business in the state in which the Project'is located and having a current A.M. Best rating of no less than A minus (A-). 9.6- AET reserves the right to charge Client for additional coverage, coverage limits or policy modification including waiver of subrogation and other project specific requirements not known at the time of our proposal, subject to approval by AET's insurance providers. SECTION 10 - DELAYS If delays to AET's services are caused by Client or Owner, work of others, strikes, natural causes, weather, or other items beyond AET's control, a reasonable time extension for performance of work shall be granted, and AET shall receive an equitable fee adjustment. SECTION 11- PAYMENT INTEREST AND BREACH 11.1 - Invoices are due on receipt. Client will inform AET of invoice questions or disagreements within 15 days of invoice date; unless so informed, invoices are deemed correct. In any case, Client shall pay for services of AET within 30 days of invoice. 11.2 - Client agrees to pay interest on unpaid invoice balances at a rate of 1.5% per month, or the maximum allowed by law, whichever is less, beginning 30 days after invoice date. 11.3 - If any invoice remains unpaid for 60 days, such non-payment shall be a material breach of this agreement. As a result of such material breach, AET may, at its sole option, terminate all duties to the Client or other persons, without liability as well as withhold any and all data from Client until syich invoice payments are restored to a current status. 21A - Client will pay all AET collection expenses and attorney fees relating to past due fees which the Client owes under this agreement. SECTION 12 - MEDIATION 12.1 - Except for enforcement of AET's rights to payment for services rendered or to assert and/or enforce its lien rights, including without limitation assertion and enforcement of mechanic's lien rights and foreclosure of the same, Client and AET agree that any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party; provided however that if either party.should fail to respond to a request for mediation within 60 days after the request, this requirement for mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings shall be of no force and effect. ENVIRONMENTAL/ GEOTECHNICAL SERVICE AGREEMENT -TERMS AND CONDITIONS Page 3 of 3 12.2 - Unless Client and AET mutually agree otherwise, mediation shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association. Request for mediation shall be in writing and the parties shall share the mediator's fee and any filing fees equally.The mediator shall be acceptable to both parties and shall have experience in commercial construction matters. SECTION 13 - LITIGATION REIMBURSEMENT Payment of AET costs for Client lawsuits against AET which are dismissed or are judged substantially in AET's favor will be the Client's responsibility. Applicable costs include, but are not limited to, attorney and expert witness fees, court costs, and AET costs. SECTION 14 - MUTUAL INDEMNIFICATION 14.1 - AET agrees to indemnify Client from and against liability arising out of AET's negligent performance,of the services, subject to Section 15 and any other limitations, other indemnifications or other provisions Client and AET have agreed to in writing: 14.2 - Client agrees to indemnify AET from and against liability arising from the negligent conduct of the Client, Owner, Client's Contractors/Subcontractors or other third parties, subject to any limitations, other indemnifications or other provisions Client and AET have agreed to in writing. 14.3 - If Client has indemnity agreement with other persons, the Client shall include AET as a beneficiary. 14.4 — AET's indemnification to the Client is limited solely to losses or damages caused by its failure to meet the standard of care and only to the extent of its negligence. 14.5 - AET will not accept any obligation to indemnify Client other than to meet the standard of care. If a court of competent jurisdiction rules that indemnity is implied or if required by law, AEI's obligation for the costs of indemnity is only to the extent due to AET's negligent acts, errors or omissions. SECTION 15 - LIMITATION Of LIABILITY Client agrees to limit AET's liability to Client arising from AEI's negligent acts, errors or omissions,.such that the total liability of AET shall not exceed $25,000. SECTION 15 — UNIONIZATION AET,reserves the right to renegotiate an appropriate fee increase or to terminate its contract on three (3) days written notice to Client and will not accept any liability for any penalties or costs from Client, Owner and. their successors, assignees, joint -venturers, Contractors and Subcontractors, or any other parties involved with the project for claims, liabilities, damages or consequential damages directly or indirectly related to AET being required to provide unionized personnel on the project. Reservation of this right on the part of AET represents neither approval nor disapproval of unions in general or the use of collective bargaining agreements. SECTION 17 - POSTING OF NOTICES ON EMPLOYEE RIGHTS Effective June 21, 2010, prime contracts with a value of $100,000 or more and signed by federal contractors on projects with any agency of the United States government must comply with 29 CFR Part 471, which requires physical posting of a notice to employees of their rights under Federal labor laws. The required notice may be found at 29 Code of Federal Reaulations Part 471. AppendixA to-SuLport A. The regulation also has a "flow -down" requirement for subcontractors under the prime agreement for subcontracts with a value of $10,000 or more. AET requires strict compliance of its subcontractors working on federal contracts subject to this regulation. The regulation has specific requirements for location of pasting and language(s) for the poster. SECTION 18 - TERMINATION After 7 days written notice, either party may elect to terminate work for justifiable reasons. In this event, the Client shall pay AET for all work performed, including demobilization and reporting costs to complete the file. SECTION 19 - SEVERABILITY Any provisions of this agreement later held to violate a law or regulation shall be deemed void, and all remaining provisions shall continue in force. However, Client and AET will in good faith attempt to replace an invalid or unenforceable provision with one that is valid and enforceable, and which comes as close as possible to expressing the intent of the original provision. SECTION 20 - GOVERNING LAW This Agreement shall be construed, and the rights of the parties shall be determined, in accordance with the Laws of the State of Minnesota. SECTION 21- ENTIRE AGREEMENT This agreement, including attached appendices, is the entire agreement between AET and Client. Regardless of method of acceptance of AET's proposal and general conditions by the Client, this agreement nullifies any previous written or oral agreements, including purchase/work orders. Any modifications to this agreement must be mutually acceptable to both parties and accepted in writing. No considerations will be given to revisions to AET's general conditions or alternate contract format submitted by the Client as a condition for payment of AET's accrued services. n, r r — 1. � . Braun Intertee Corporation Phone: 952.998.2000 iiow Hampshire Avenue S Fax: 952.995.2020 Minneapolis, MN 55435 1 Web: braunintertec.com November 1, 2013 Mr. Curtis Jacobson City of New Hope Director of Community Development 4401 Xylon Avenue North New Hope, MN 55428 Re: Proposal for Standard Scope Limited Site. Investigation Former Kmart Shopping Center #3045 4300 Xylon Avenue North New Hope, Minnesota 55428 MPCA Leak #19123 Dear Mr. Jacobson: Proposal BL -13-07317 Per your request, Braun Intertec Corporation prepared this proposal to complete a Standard Scope Limited Site investigation (LSI) at the referenced property (Site). It is our understanding that the former Kmart Shopping Center contained one approximately 20,000 -gallon fuel -oil underground storage tank (UST). The UST was removed during the demolition phase for Site redevelopment and a Leaking Underground Storage Tank (LUST) file (#19123) was opened by the Minnesota Pollution Control Agency (MPCA). To evaluate the extent and magnitude of potential impacts as required by the MPCA, we are proposing the following scope of services based on the requirements of a Standard Scope Limited Site Investigation. Scope of Services We have based our cost estimate on the following scope of work: • Prepare a site-specific Health & Safety Plan. ■ Conduct a vapor risk assessment. ■ Conduct a water well receptor survey. • Conduct a surface water receptor survey. ■ Advance four soil borings to a depth of 25 feet below ground surface (bgs) at the Site. ■ Advance one soil boring to a depth of 40 feet bgs at the Site. • Advance five soil -gas borings to a depth of 10 feet bgs at the Site. • Collect and screen soil samples from the soil borings for the presence of organic vapors using r, photoionization detector (PID). City of New Hope Proposal BL -13-07317 November 1, 2013 Page 2 ■ Collect one soil sample from each of the shallow soil boring and two soil samples from the deep boring to be analyzed for the presence and concentration of diesel range organics (DRO), benzene, toluene, ethylbenzene, xylene (BTEX), and methyl tertiary -butyl ether (MBTE). In addition, one trip blank sample will accompany the cooler and be submitted for VOC analysis. The trip blank sample will be analyzed at no additional charge. ■ Collect five groundwater samples from the soil borings to be analyzed for the presence and concentration of DRO and volatile organic compounds (VOCs). In addition, one trip blank sample will accompany the cooler and be submitted for VOC analysis, and one duplicate sample will be collected for analysis for DRO and VOCs. The trip blank sample will be analyzed at no additional charge. N Collect five soil -gas samples to be analyzed for the presence and concentration of VOCs using United States Environmental Protection Agency (EPA) Method TO -15. ■ Collect three soil samples from below the water table for grain size analysis (sieve analysis only). ■ Prepare an LSI Report as required by the MPCA. Cost Estimate Braun Intertec will invoice you for the services described above on an hourly and unit cost basis in accordance with the attached General Conditions. Although the actual cost associated with the above - listed service descriptions may be more or less than the estimated cost, the estimated cost will not be exceeded without additional authorization from you. We have prepared a cost estimate for consulting, drilling, and laboratory services on the attached Petrofund contractor's bid document. The cost estimate for these services is based on the scope of work outlined below. We have summarized the cost estimates below for the LSI: Service Description Consulting and Field Services Drilling Services/well permits Laboratory Services Report Preparation Cost Estimate $ 4,497.30 $ 3,545.00 $ 3,125.00 $ 3,450.00 Estimated Total $ 14,620.30 The project is eligible for potentially up to 90 percent reimbursement trom the Minnesota Department of Commerce Petrofund. The cost to prepare a Petrofund Reimbursement application is not included in this proposal. The cost to prepare the Petrofund application is not eligible for reimbursement through the Department of Commerce Petrofund and is not included on the attached Petrofund bid forms. We can prepare the application for reimbursement for an additional $2,000. City of New Hope Proposal BL -13-07317 November 1, 2013 Page 3 Project Schedule We will begin work on this project upon receipt of your written authorization. Based on our current schedule, we anticipate that we could mobilize to the Site within two weeks after receiving authorization. Approximately two days will be required to complete the drilling and sampling activities. Standard turnaround for laboratory analysis is approximately eight working days. Upon review of the analytical results, approximately three weeks will be required to prepare the LSI report. A draft LSI report will be forwarded to you for review. The LSI report will remain in draft status until we are notified by you to proceed with issuance of the final report. The final LSI report will be submitted to the MPCA for review and approval. Utility Clearance Braun Intertec or our subcontractor will contact Gopher State One -Call to request that they make arrangements for public utility representatives to determine the locations of public underground utilities, Braun Intertec requests that you or your authorized representative notify the Braun Intertec project manager immediately of the presence and location of any underground objects, which are not the responsibility of public utilities. In authorizing this proposed contract, you agree to waive any claim against Braun Intertec and will indemnify and hold Braun Intertec harmless from any claim of liability, injury or loss allegedly arising from the damaging of underground objects not called to our attention prior to beginning the work. City of New Hope Proposal BL -13-07317 November 1, 2013 Page 4 Accep&'ance of Pfoposa Braun Intertec appreciates the opportunity to present this proposal to you. It is being presented in duplicate so If it is acceptable, the original can be retained for your records and the copy can be signed and returned to us electronically, by fax, or U.S. MaWn Its entirety, as written authorization to proceed. We will begin the project upon receipt of your authorization. The estimated cost of $16,620.30 presented in this proposal is based on the scope Qf services described and the assumption that the proposal will be authorized within 30 days and that the project will be completed within the proposed schedule. If the project is not authorized within 30 days, we may need to modify the proposal. If the project cannot be completed within the proposed schedule due to circumstances beyond our control, revising the proposal may be required for completion of the remaining tasks. The project will be conducted in accordance with the General Conditions, which are part of this contrail, If you have questions concerning the contents of this proposal or the project in general, please call Sara Holter at 952.995.2494. Sincerely, BRAUN INTERTEC CORPORATION ' I r. a3" ra 7,. Ho �"'� Je i . Force, PG Staff Scientist late Principal Attachment: Limited Site Investigation Standard Scope Proposal and Invoice Form General Conditions (9/1/2013) Acceptance of Nroposal Please proceed according to the described scope of services; Authorizer's Firm Authorizer's Signature Authorizer's Name (please print or type) Authorizer's ,title Date - - Petroleum Tank Release Cleanup Fund Standardized Proposal and Invoice Form Limited Site Investigation (LSI) Standard Scope NIPCA Leak # 19123 Applicant Name cn, e, N.w H.P. Address 4401 X,.Io,.A..... Nn -:h N.w Hop.. Minn-- 55428 Leakslte Name Former K— S.—a... C.—,#3045 Site Address 4300 xylan A..r,.. N.— .—NN. w .w H. Pa. Ml....... 55428 I Task Description 11=mromdil iAPlAm untinvolced rorl i maur.t ro poo ed Popo ed leek. r{d m,n,stretive :ee tee Agency statue uptlete Applicant iitetu. uptlete ldrllllnq] _ l].ck�ru antl r.vlaw Field work natirlcetien arta achedallnq Health and -ar.ty plan N.r.p—mi asmini.tr.tlan Sample shipping antl va ..p.ree tion ConsultentDrilling ane E ... vati.hActivities Drllling ov ar.lpht. field log prep, & soil sem piing [25',r .hiiii—ar boring Drilling—ralght, held Ioq prep, & .oil dam pling (boring deeper than 251 Surveying & .0V eying eq.1pmart Ud1ity cle are nce Field and Race pt., Survey. S—f.ca water scepter survey no rI-k — 1 -1 -Vapor receptor survey and risk a aluatl.n Water wag r.aeptar survey and Ask ...watlen 5.m pl,np Groundwater an mpiing (other the nperm1111[monl-1—wall) 5ubmi9a,cna to Agency In—dgatian report praparatl.n {LSI nriy) Travel end Per Di— q$116 per IR.Id wnrk '1cusps $629 per drilling a..ntl... ule $678 per leak it. $230 per rield work ....Jae. rule $303 per I..k It. $242 per step cr .ervic.. $109 per shipping .vent $182 per boring $8 per rpet $230 par.urveying .vent $242 par amity char.....vare $169 per leek .It. $847 per I.ek.ltii/a.. rule $911 par Ise kaltal.ee r41e $43 per as m piing pciri ... rul. $4,2081... rul. Travel tim. $85 per hour V.h,cl. mu..g. $0.79._ mu. P.r diem $164 par day par p-- Equlpm.nt.nd Field Sv pll.. Charge. lietltere, Innludad on pr. .1 below} PhatelttN..tlan IPID) Contrector Services Included In this Prop o s el L.poraeor 'Services - 5.11 Sea Attached Labor.tor Sar,.ic.. - Water Lab ... t.ry S.rvlcu. ' G,.ln Si.. Laboratory Sarvla.. - Air DRILLING SERVICES Pr.h..aarng, perms[ M.bw:atlon, 0 - 50 mil.. 01. way (.1t.r ental # or mance) Mapulaeticl. 51 - 500 mus. a1. way (anter total mile.) Me bu It a tie 1, a r 500 mils. a sy (. nt.r to tel mu. e� Tot11W.11 P -1,C.— Intwda. ParmmAdmini.tratmn Dlepo.a ble item. = C.osttc buy the lte m a R....w. item. = Leaser .r purch a.. or rental coat ... Minn. Rai. 2890.3000 See MN Rviee 2890.3100-3700 Sea Attech.a $225.00 iRD1101 $140.00 $94.80 $0.00 .00 .00 $14,620.301 $0,001 Amount Invoiced for Proposed Teak. Page 1 of 2 Petroleum Tank Release Cleanup bund Standardized Proposal and invoice Form ,limited Site Znvest!gation ("ai) Standard Scups t,14,VO1C5 5UWHA0MZ:' (o b2 comp=eted by con$0ar. ae z.- e6va worts hr-si boer. 7.3:formed) T1Total amount invoiced for proposed tasks $0.00 (enter amount from page 1) Total amount invoiced for tasks not proposed $0.00 (enter amount associated with column A of the Change Order form) GRAND TOTAL AMOUNT INVOICED FOR WORK PERFORMED 1$0.00 CON,CL k£..+LH't' Consultant Providing Above Proposal Braun Intettec Corporation Contact Person Sara Hotter I Phone 952.9953000 I Fax 952.995.2020 E-mail Address «:.; Ar�ir hereby certify that this document accurately reflects the details specified in the RFP dated November 1, 2013 and the anticlpated costs for consultant services to be performed for a limited site investigation, which total $14,620.30. 1 further certify that the hourly rates to be charged for consultant services _ WILL WILL NOT exceed the maximum hourly labor rates for consultant services listed in Minn. Rule 2890.1400 [maximum hourly rates are as follows: SLP $143, MLP $105, ,ELP = $77, FT = $72, BP = $69, WP = $44]. If line is not marked, it is assumed to be "will not." ._ r ---^------ XSara A. Holter Consultant Name (please print) Date Braun Intertee Corporation #1252 Consultant Company Petrofund Registration Dumber he proposal must be signed and dated by the consultant. NOTARIZATION (of applicant signature) chose this consultant proposal, you must sign and date the proposal that you accept in front of Notary Public. of applicant Indicating acceptance Name (please Page 2 of 2 7120111 Signed or attested before me this _ day of . 200 NotaryPublic My Commission Expires Laboratory and Drilling Services Cost Worksheet Laborato Services - Soil Units Rate Cost Gasoline Range Or anics (GRO) with BETXIMTBE 6 $ 44.00 $264.00 Diesel Range Organists (DRO) 6 $ 50.00 $300.00 BETXIMTBE $300 $ 44.00 $0.00 Volatile Organic Compounds (VOCs) MDH 465A $0.00 $ 127.00 $0.00 RCRA Metals (As, Ba, Cd, Cr, Pb, Hg, Se, A) Total Direct Push Costs $ 138.00 $0.00 Lead (Pb) $ 28.00 $0.00 Polychlorinated Biphenyls PCBs $ 121.00 $O.CO Po] aromatic Hydrocarbons PAHs by HPLC $ 149.00 $0.00 Subtotal, Soil $564.00 Laboratory services - Water Units Rate Cost Gasoline Range Organics (GRO) with BETXIMTBE $ 44.00 $0.00 Diesel Range Or anics DRO 6 $ 50.00 $300.00 BETXIMTBE $ 44,00 $0.00 Volatile Organic Compounds (VOCs) MDH 465A 6 $ 127.00 $762.00 RCRA Metals (As, Ba, Cd, Cr, Pb, Hg, Se, Ag) $ 138.00 $0.00 Lead Pb $ 28.00 $0.00 Polychlorinated Biphenyls (PCBs) $ 121.00 $0.00 Pelyaromatic Hydrocarbons (PAHs) by HPLC $ 149.00 $0.00 Subtotal, Waterl 1 $1,062.00 Laboratory Services - Grain Size Units Rate Cost Grain Size Analysis - sieve only 3 $ 83.00 $249.00 Grain Size Analysis - sieve and hydrometer $ 165.00 $0.00 Subtotal, Grain Size $249.00 Laboratory Services - Air Units Rate Cost TO -15 VOCs Standard Listing including Summa Cannister 5 $ 250.001 $1,250.00 Subtotal, Air $1,260.00 Total Laboratory Costs 53125.00 Equipment Costs UnKs Rate Cost PID, per day 2 $70.00 $140.00 Total Equipment Costs $140.00 DRILLING SERVICES DIRECT PUSH Units Rate Cost Retraction force up to 15,000 lbs, per hour $149 $0.00 Retraction force greater than 15,000 Ibs, per hour 16 $180 $2,880.00 Probe seal ing, per foot 190 $1.20 $228.00 Mobilization, 0 - 50 miles one way enter total # of mobes) 1 $300 $300.00 Mobilization, 51 - 500 miles one way enter total miles $7 $0.00 Mobilization, over 500 miles one way (enter total miles) $3,751.00 $0.00 Total Direct Push Costs $3,408,00 Permit Administration General Conditions Section is Our Agreement 1.1 Our agreement ("Agreement") with you consists of these General Conditions and the accompanying written proposal or authorization. T".is Agreement is our entire agreement. it supersedes prior agreements. It may be modiFred only In a writing signed by us, raking specific reference to the provision modified. 1.2 The words "you," "we," "us," and 'bur" include off.cers, employees, and subcontractors. 1.3 :n the event you use a purchase order or other form to authorize our services, any conflicting or addTona! terms are not part of our Agreement. Directing us to start work prior to execution of this Agreement constitutes your acceptance. !f, however, mutually acceptable terms cannot be established, we have the right to withdraw our proposal without liability to you or ot? ers, and you will compensate us for services already rendered. Section 2: our Responsibilities 2.1 We will provide the services specifically described in our Agreement with you. You agree that we are not responsible for services that are not fairly included In our specific undertaking. Unless otherwise agreed In writing, our findings, opinions, and recommendations will be provided to you In writing. You agree not to rely on oral findings, opinions, or recommendations without our written approval. 2.2 In performing our professional services, we will use that degree of care and skill ordinarily exercised under similar c!rcumstances by reputable members of our profession practicing in the some locality. €fyou direct us to devlate from our recommended procedures, you agree to hold us harmless from claims, damages, and expenses arising out of your direction. 2.3 We w!Il reference our field observations and sampling to available reference points, but we will not survey, set, or check the accuracy of those points unless we accept that duty in writing. Locations of geld observations or sampHrig described In our report or shown on our sketches are based on information provided by others or estimates made by our personnel. You agree that such dimensions, depths, or elevations are approximations unless specifically stated otherwise in the report. You accept the inherent riskthat sarr.pies or observations may not be representative of things not sampled or seen and, further, that sate conditions may change over time. 2.4 Our duties do not include supervising your contractors or commenting on, overseeing, or providing the means and methods of their work, unless we accept such duties In writing. We wl:l not be responsible for the faI'ure of your contractors to perform in accordance with their undertakings, and the providing of our services w€il not relieve others of their responsibilities to you or to others. 2.5 We will provide a health and safety prograrn for our employees, but we will not be responsible for contractor, ;ob, or site health or safety unless we accept that duty In writing. 2.6 You will provide, at no cost to us, appropriate site safety measures as to work areas to be observed or Inspected by us, our employees are authorized by you to refuse to work under conditions that may be unsafe. 2.7 Estimates of our fees or other project costs will be based on information available to us and on our experience and knowledge. Such estimates are an exercise of our professional J udgment and are not guaranteed or warranted. Actual costs may vary. You should allow a contingency In add:tion to estimated costs. Section 3: Your Responsibilities 3.1 You will provide us with prior geotechnical and other reports, specifications, plans, and information to which you have access about the site. You agree to provide us with al; plans, changes in plans, and new information as to site conditions until we have completed our work. 3.2 You will provide access to the site. In the course of our work some site damage is normal even when due care is exercised. We will use reasonable care to minimize damage to the site. We have not included the cost of restoration of normal damage !n the esCmated charges. 3.3 You agree to provide us, Ina timely manner, with information that you have regarding buried objects at the site. We will not be responsible for locating buried objects at the site unless we accept that duty in writing. You agree to hold us harmless from claims, damages, losses, and related expenses Invo:ving buried objects that were not properly marked or identified or of which you had knowledge but did not timely call to our attention or correctly show on the plans you or others on your behalf furnished to us. 3.4 You will notify us of any knowledge or suspicion of the presence of hazardous or dangerous materials In a sample provided to us. You agree to provide us with Information. In your possession or control relating to contamination at the work site. If we observe or suspect the presence of contaminants not anticipated in our Agreement, we may terminate our work without Habllrty to you or to others, and we will be paid for the services we have provided. 81*1AU l4 FEC 3.5 Neither this Agreement nor the providing of services wilt operate to make us an owner, operator, generator, transporter, treater, storer, or a disposal facility within the meaning of the Resource Conservation Recovery Act, as amended, or within the meaning of any other law governing the handiing, treatment, storage, or disposal of hazardous materials. You agree to hold us harmless anal indemnify us from any such daim. or loss. 3.6 Morltor ing wells are your property, and you are respons!ble For their permitting, maintenance, and abandonment unless we accept that duty in wrung. 3.7 You agree to make disclosures required by law. In the event you do not own the site, you acknowledge that it is your duty to inform the owner of the discovery or release of contaminants at the site. You agree to hold us harmless and indemr!fy us from claims related to disclosures made by us that are required by law and from claims related to the Informing or failure to inform the site owner of the discovery of Contaminants. Section 4: Reports and Records 4.1 unless you request otherwise, we will provide our report in an electronic format. 4.2 Our reports, notes, calculations, and other documents and our computer software and data are Instruments of our service to you, and they remain our property but are subject to a license to you for your use In the related project for the purposes disclosed to us. You may not transfer our reports to others or use them for a purpose for which they were not prepared without our written approval. You agree to Indemnify and hold us harmless from claims, damages, losses, and expenses, Including attorney fees, arising out of such a transfer or use. At your request, we will provide endorsements of our reports or letters of reliance, but only if the recipients agree to be bound by the terms of our agreement with you and only if we are pard the administrative fee stated in our then current Schedule of Charges. 4.3 Because electronic documents may be modified intentionally or inadvertently, you agree that we will not be liable for damages resultingfrom change in an electronlc document occurring after we transmit It to you. 4.4 If you do not pay for our services in full as agreed, we may retain work not yet del'vered to you and you agree to return to us all of our work that !s In your possession or under your control. 4.5 Samples and field data remaining after tests are conducted and field and `laboratory equipment that cannot be adequately cleansed of contaminants are and continue to be your property. They may be discarded or returned to GC Page 1 of 2 COUNCIL Request for Action Originating Department Approved for Agenda Agenda Section Development & Community Development January 27, 2014 Planning Item No. By: Jeff Sargent, CD Specialist g ,1 Curtis Jacobsen, Director of CD By: Kirk McDonald, City Manager Resolution approving change order No. 1 in the amount of $84,089.50 in relation to the demolition of the former Kmart building located at 4300 Xylon Avenue N. (Project No. 893). Requested Action Staff is recommending that the Council approve a change order in the amount of $84,089.50 to the contract with Landwehr Construction, Inc., for additional work that was necessary to complete the demolition of the former Kmart building located at 4300 Xylon Avenue N. Policy/Past Practice It is the practice of the city to require the approval of resolutions approving change orders for contracted services employed by the city. Background On December 12, 2012, the City Council accepted the low bid for demolition of 4200 and 4300 Xylon Avenue North from Landwehr Construction, Inc. at the bid price of $198,815. The demolition included the removal of the former Kmart and the Wells Fargo drive-thru buildings on the properties. Landwehr Construction, Inc. is citing three items in their change order request. The first is compensation in the amount of $31,439.93 for additional work needed for the removal and disposal of oversized footings and column pads used for the Kmart building, along with the expense for additional materials required to fill the excavated areas. The second item is compensation in the amount of $46,249.57 for additional work to excavate, haul and dispose of contaminated soils found onsite. This item also includes compensation for additional materials required to fill the contaminated soil excavation areas. The third item is compensation in the amount of $6,400.00 for the removal of nine additional underground hoists found underneath the auto Motion by Second by LVJJ9 To: IARFA\COMM DEV1Develo ment\Q & RDemo Change Order 1 Kmart.doc Request for Action January 27, 2014 Page 2 body component of the Kmart building. The total change order provides compensation in full for labor, materials, and transportation of the three aforementioned items. Funding The funding for this demolition will come from the Economic Development Authority funds and payments from past Tax Increment Financing (TIF) districts. A new TIF district will be established for this project in order to refund the city for these expenses. Recommendation Staff recommends approval of the attached resolution, approving change order No. 1 in the amount of $84,089.50 in relation to the demolition of the former Kmart building located at 4300 Xylon Avenue N. The oversized footings and column pads used for the Kmart building were not shown on the as -built plans or the demolition bid specifications presented to the demolition contractors when they bid the project. It was not until demolition of the building occurred that the oversized footings were noted. The contamination clean-up was necessary for the completion of the demolition. Although it was speculated that some soil contamination may be present, it was not known to what extent the contamination clean-up would be (if any) until testing of the soils were completed. It should also be noted that the contamination clean-up did not qualify for any Petro -Fund Reimbursement from the state. The original demolition contract amount was $198,815. The proposed revision to the contract would be for a total amount of $280,545.50, should change order No. 1 be approved. Attachments • Construction Change Order No. 1 • Resolution CITY OF NEW HOPE Resolution No. 14-21 Resolution approving change order No. l For the demolition of the buildings located at 4200 and 4300 Xylon Avenue N. (Project No. 893) WHEREAS, the city has entered into a contract with Landwehr Construction, Inc., for the demolition of the buildings located at 4200 and 4300 Xylon Avenue North; and, WHEREAS, during the course of demolition, modifications to the approved plans and specifications were needed to address unforeseen issues dealing with the oversized footings and column pads, the clean-up of contaminated soils, and the removal of underground hoists; and, WHEREAS, the city engineer and staff have reviewed the costs submitted by Landwehr Construciton, Inc., and find the costs for the additional work to be appropriate. NOW, THEREFORE, BE IT RESOLVED by the City Council of the city of New Hope, Hennepin County, Minnesota: That the City Council hereby approves change order No. 1 in the amount of $84,089.50. Adopted by the City Council of the city of New Hope, Hennepin County, Minnesota, this 27th day of January, 2014. Mayor �y 7 Attest: GC��C.E City Clerk Q�- February 4, 2014 City of New Hope Attn: Mr. Curtis Jacobsen 4401 Xylon Ave. N. New Hope, MN 55428 Stantec Consulting Services Inc. 2335 Highway 36 West St. Paul MN 55113 Tel: (651 ) 636-4600 Fax: ( 651 ) 636-1311 Re: 4200 & 4300 Xylon Avenue North Building Demolition City of New Hope City Project No. 893 Stantec Project No. 193801635 Dear Mr. Jacobsen, Transmitted herewith are four (4) copies of Change Order No. 1 and three (3) copies of Request for Payment No. 4 & Final and IC -134 for the above-mentioned project. The work on this project has been satisfactorily completed and we recommend payment at this time. Should you have any questions regarding this project, please feel free to call Chris Long at 651- 604-4808. Regards, STANTEC CONSULTING SERVICES INC. Shirley L vell Administrative Assistant Attachment: Change Order No. 1 Pay Request No. 4/Final Design with community In mind (joV Stantec Owner City of New Hope, 4401 Xylon Ave., New dope, MN 55428 Date January 21, 2014 Contractor: Landweh► Construction, Inc., 846 S. 33rd St., St. Cloud, MN 56301 Bond Co: Western Surety Co., 33 S. Wabash Ave., Chicago, IL 60604 Bond No: 929564498 CONSTRUCTION CHANGE ORDER NO. 1 4200 & 4300 XYLON AVENUE NORTH BUILDING DEMOLITION STANTEC PROJECT NO, 193801635 CITY'S CITY PROJECT NO. 893 Copy Description of Work This Change Order provides for the following. Item no. 1 provides for compensation to the Contractor for the additional work for removal and disposal of oversized footings and column pads, and additional materials required to fill excavation areas. Item No. 2 provides for compensation to the Contractor for additional work to excavate, haul, and dispose of contaminated soils onsite. This also Includes compensation for additional materials required to fill the contaminated soil excavation areas. Item No. 3 provides for compensation to the Contractor for removal of nine additional underground hoists. This Change Order provides compensation in full for labor, materials and transportation of these items. No additional compensation will be provided for this work. Contract Unlit Total No. _ Item Unit Quantity Price Amount CHANGE ORDER NO. 1 1 FOOTING REMOVAL LS 1 $31,439.93 $31,439.93 2 CONTAMINATED SOIL REMOVAL AND BACKFILL TN 1125.02 $41.11 $46,249.57 3 REMOVAL OF ADDITIONAL UNDERGROUND LS HOISTS TOTAL CHANGE ORDER NO. 1; 193801635CHOl.xbm $6,400.00 $6,400.00 $8d,©89.50 Original Contract Amount Previous Change Orders This Change Order Revised Contract Amount (Including this change order) CHANGE IN CONTRACT TIMES Original Contract Times: Substantial Completion (days or date): Ready for final Payment (days or date): Increase of this Change Order: Substantial Completion (days or date): Ready for final Payment (days or date): Contract Time with all approved Change Orders: Substantial Completion (days or date): Ready for final Payment (days or date): Recommended for Approval by: STANTEt, Approved by Contractor: cc Owner Contractor Bonding Company Stantec 193801635CHOl.xkm Date: Approved by Owner: $19&815.00 $0.00 $84,089.50 $282,904.50 Date February 6, 2014 Landwehr Construction, Inc. 846 S. 33rd Street St. Cloud, MINT 56301 Subject: Change Order No. l for Project No. 893 At its meeting of January 27, 2014, the New Hope City Council authorized change order no.1 for $84,089.50. Enclosed are signed change order documents. Please forward one copy to your bonding company. Sincerely, Valerie Leone, CMC City Clerk Enc. cc: Chris Long, Stantec Curtis Jacobsen, director of community development CITY OF NEW HOPE 4401 Xylon Avenue North + New Hope, Minnesota 55428-4898 • www. ci.new hope.mn.us City Hall: 763-531-5100 • Police (non -emergency): 763-531-5170 + Public Works: 763-592-6777 • TDD: 763-531-5109 City Hall Fax: 763-531-5136 • Police Fax: 763-531-5174 + Public Works Fax: 763-592-6776 COUNCIL Request for Action Originating Department Approved for Agenda Agenda Section Development & Community Development January 27, 2014 Planning Item No. By: Jeff Sargent, CD Specialist Curtis Jacobsen, Director of CD By: Kirk McDonald, City Manager 8.2 Motion approving the final pay request to Landwehr Construction, Inc. for the demolition of the buildings located at 4200 and 4300 Xylon Avenue North (Project No. 893), in the amount of $93,912.30 Requested Action Staff requests that the City Council approve a Motion authorizing the final payment to Landwehr Construction, Inc. in the amount of $93,912.30. The final payment will conclude the demolition process for the former Kmart and Wells Fargo drive-thru buildings located at 4300 and 4200 Xylon Avenue N. Policy/Past Practice It is the practice of the city to require the approval of Motions authoring the final payment for contracted services employed by the city. Background On December 12, 2012, the City Council accepted the low bid for demolition of 4200 and 4300 Xylon Avenue North from Landwehr Construction, Inc. at the bid price of $198,815. The demolition included the removal of the former Kmart and the Wells Fargo drive-thru buildings on the properties, as well as the removal of an underground storage tank (UST), and the remediation of contaminated soils due to leakage from the UST. At this time, Landwehr Construction, Inc. is requesting the fourth and final payment for the work they've performed on the property. The Final Construction Amount of the demolition is $280,545.50, which includes a change order in the amount of $84,089.50. Thus far, the city has paid Landwehr Construction $186,633.20. Therefore, the final payment amount requested is $93,912.30. As a reminder, the change order was requested to address three items not originally accounted for in the Motion by w Second byre'; Z If f L To: & 3 I:IRFAICOMM DEV\Develo mentlQ & R Demo Final Payment Kmart.doc Request for Action January 27, 2014 Page 2 original bid amount. Those items included: 1. $31,439.93 for the removal and disposal of oversized footings and column pads. 2. $46,249.57 for the excavation, hauling and disposing of contamination soils on the property. 3. $6,400.00 for the removal of nine additional underground hoists found under the auto body component of the Kmart building. To date, the buildings located at 4200 and 4300 Xylon Avenue, have been completely demolished, and all contaminated soils have been cleaned to meet the minimum Minnesota Pollution Control Agency standards. The properties have been properly prepared for redevelopment. For this reason, staff recommends approval of the motion. Recommendation Staff recommends approval of the motion. Attachments • Contractor's Request for Final Payment 1.01 Stntec Owner: City of New Hope, 4401 Xylan Ave. N. New Hoe MN 55428 Date: January 22 2014 For Period: 9/25/2013 to 122/2014 Request No 4/FINAL Contractor: Landwehr Construction Inc., 846 S. 33rd St., St. Cloud, MN 56301 CONTRACTOR'S REQUEST FOR PAYMENT 4200 & 4300 XYLON AVENUE NORTH BUILDING DEMOLITION STANTEC PROJECT NO. 193801635 CITY PROJECT NO. 893 SUMMARY 1 Original Contract Amount 2 Change Order - Addition 3 Change Order - Deduction 4 Revised Contract Amount 5 Value Completed to Date 6 Material on Hand 7 Amount Earned 8 Less Retainage 0% 9 Subtotal 10 Less Amount Paid Previously 11 Liquidated damages - 12 AMOUNT DUE THIS REQUEST FOR PAYMENT NO. Recommended for Approval by: STANTEC Approved by Contractor: LAN DWEHR CONSTRUCTION, INC. Specified Contract Completion Date: 193801 B35R E WI NA LA e m 4 FINAL $ 84,089.50 $ 0.00 $ 198,815.00 $ 282,904.50 $ 280,545.50 $ 0.00 $ 280,545.50 $ 0.00 $ 280,545.550 $ 186,633.20 $ 0.00 $ 93.912.30 Appfoyed by Owner: �C7rTYO W HOPE Date: 7 PRO3ECT PAYMENT STATUS OWNER CITY OF NEW HOPE CITY PROJECT NO. 893 STANTEC PROJECT NO. 193801635 CONTRACTOR LANDWEHR CONSTRUCTION, INC. CHANGE ORDERS No. Date Description Amount Total Change Orders PAYMENT SUMMARY Nn_ From Tn Pavenant Patminana i mmnlatael 1 01/08/2013 03/22/2013 40 745.50 2,144.50 42 890.00 2 0/23/2013 05/08/2013 64 182.00 5,522.50 110 450.00 3 05/09/2013 09/24/2013 81705.70 9,822.80 196 456.00 4 FINAL 09/25/2013 1 01/22/2014 93,912 .30 280,545-50 Materia[ on Hand Total Payment W Date $280,545.50 Original Contract $198,815.OC :?,etaina a Pay No. 4/FINAL Change Orders Total Amount Earned $280,545.50 Revised Contract $198,815.00 183801635RE04FINAL,xlsm 103601686REQ4fl4AL.*m Contract Unit Current Quantity Amount No. Item Unit Quantity Price Quantity to Date to Date BASE BID: 1 MOBILIZATION LS 1 5800.00 1 $5,800.00 2 TRAFFIC CONTROL LS 1 350.00 1 $350.00 3 TEMPORARY JERSEY BARRIER (ACCESS CLOSURE) LF 50 20.00 30 $600.00 4 SECURITY FENCING INSTALLATION AND REMOVAL LS 1 5000.00 1 $5,000.00 5 4200 XYLON AVENUE NORTH BUILDING DEMOLITION LS 1 78000.00 1 $78,000.00 6 4200 XYLON AVENUE NORTH HAZARDOUS MATERIAL ABATEMENT LS 1 6500.00 1 $6,500.00 7 4300 XYLON AVENUE NORTH BUILDING DEMOLITION LS 1 17000.00 1 $17,000.00 8 4300 XYLON AVENUE NORTH HAZARDOUS MATERIAL ABATEMENT LS 1 1700.00 1 $1,700.00 9 AGGREGATE BACKFILL (CRUSHED ONSITE) LS 1 40200.00 1 $40,200.00 10 COMMON FILL (LV) CY 400 8.00 $0.00 11 REMOVE CURB AND GUTTER LF 850 2,00 90.00 12 REMOVE CURB AND GUTTER W/YELLOW LEAD PAINT LF 650 4.00 578 $2,312.00 13 REMOVE TRANSITE PIPE LF 250 15.00 740 $11,100.00 14 REMOVE CONCRETE SIDEWALK SF 8200 0.45 8200 $3,690.00 15 REMOVE BITUMINOUS SURFACING SY 3000 2.00 2250 $4,500.00 16 REMOVE RETAINING WALL LF 175 5.00 $0.00 17 REMOVE LIGHT STANDARD AND FOOTING EA 15 300.00 15 $4,500.00 18 REMOVE CONCRETE BOLLARDS LS 1 300.00 1 $300.00 19 BULKHEAD SANITARY SEWER PIPE EA 1 600.00 1 $600.00 20 PLUG WATER MAIN SERVICE EA 1 600.00 1 $600.00 21 BULKHEAD STORM SEWER PIPE EA 12 100.00 12 $1,200.00 22 OIL STORAGE TANK REMOVAL EA 1 1600.00 1 $1,600.00 23 OIL/WATER SEPARATOR AND SAND AND OIL TRAP REMOVAL EA 1 900.00 1 $900.00 24 TRANSPORTATION AND DISPOSAL OF RESIDUAL FUEL AND PETROLEUM SLUDGE GAL 500 1.00 4629 $4,629.00 25 REMOVE KMART SIGN EA 1 1500.00 1 $1,500.00 26 REMOVE ELECTRICAL TRANSFORMER EA 1 100.00 1 $100.00 27 REMOVE ASH TREES LS 1 750.00 1 $750.00 28 SALVAGE FENCE WITH SLATS LS 1 1500.00 1 $1,500.00 29 SILT FENCE LF 500 2.00 $0.00 30 INLET PROTECTION EA 15 85.00 15 $1,275.00 31 TEMPORARY CONSTRUCTION ENTRANCE TN 80 25.00 $0.00 32 STREET SWEEPER WITH POWER BROOM HR 25 125.00 2 $250.00 TOTAL BASE BID: $196,456.00 CHANGE ORDER NO. 1 1 FOOTING REMOVAL LS 1 31439.93 1 1 $31,439.93 2 CONTAMINATED SOIL REMOVAL AND BACKFILL TN 1125.02 41.11 1125.02 1125.02 $46,249.57 3 REMOVAL OF ADDITIONAL UNDERGROUND HOISTS LS 1 6400.00 1 1 $6,400.00 TOTAL CHANGE ORDER NO. 1 $84,089.50 TOTAL BASE BID: $196,456.00 TOTAL CHANGE ORDER NO. 1 $84,089.50 TOTAL WORK COMPLETED TO DATE $280,545.50 103601686REQ4fl4AL.*m Page 1 of 1 MINNESOTA- REVENUE Contractor Affidavit Submitted Thank you, your Contractor Affidavit has been approved. Confirmation Summary Confirmation Number: 0-889-518-208 Submitted Date and Time: 3 -Feb -2014 2:17:33 PM Legal Name: LANDWEHR CONSTRUCTION INC Federal Employer ID: 41-0810481 User Who Submitted: LCII494 Type of Request Submitted: Contractor Affidavit Affidavit Summary Affidavit Number: 748191744 Account Number: 8661717 Project Owner: CITY OF NEW HOPE Project Number: CITY NO 893 Project Begin Date: 26 -Jan -2013 Project End Date: 21 -Dec -2013 Project Location: 4200 & 4300 XYLON AVE NO, NEW HOPE MN Project Amount: $280,545.50 Subcontractors: No Subcontractors Important Messages A copy of this page must be provided to the contractor or government agency that hired you. Contact Us If you need further assistance, contact our Withholding Tax Division at (Metro Area) 651-282-9999, (Greater Minnesota) 800-657-3594, (TTY Users) Call 711 for Minnesota Relay, or (email) Withholding.tax@state.mn.us. Business hours are 8:00 a.m. - 4:30 p.m. Monday - Friday. How to View and Print this Request You can see copies of your requests by going to the History Tab. Please print this confirmation page for your records using the print or save functionality built into your browser. https://www.mndor.state.mn.us4/eservices/ (Retrieve/O/DTItz62?FILE =Print2 2/3/2014 0-5 COUNCIL n Request for Action Originating Department Approved for Agenda Agenda Section Community Development March 24, 2014 EDA Item No. By: Jeff Sargent, CD Specialist Curtis Jacobsen, Director of CD By: Kirk McDonald, City Manager 4 Resolution approving the preliminary development agreement with Anderson Companies, LLC Requested Action Staff requests the Economic Development Authority (EDA) to authorize the EDA President and Executive Director to execute the preliminary development agreement between the EDA and Anderson Companies. Policy/Past Practice It is the practice of the staff to obtain EDA approval for a preliminary development agreement for the purposes of potential redevelopment in the city. Background On January 22, the Council heard for the first time that Hy -Vee, a large grocery store chain, was looking to expand into the Twin Cities market and was potentially looking at New Hope. The Council had the opportunity on February 24 to meet with representatives of Hy -Vee and the developer, Anderson Companies. The developer and grocery representative discussed in some details their site plan concept and what they would bring to the community with their operation. Before either the developer or the grocer is willing to expend large sums of money putting together plans for the city's consideration they would request that the EDA enter into a preliminary development agreement. This would assure both the developer and the grocer that they would not be in competition with another potential project during this process. It would allow exclusive negotiation with the developer until October 1, 2014. If an agreement is not reached by that time, the agreement would terminate. The developer would be required to deposit $10,000 with the city to cover the city's costs during the negotiation process. The city's development attorney, Robert Deike, has put together a draft preliminary development agreement for the Council's consideration. Motion by Second by To: X I:\RFAICOMM DEV\Develo ment\Q & R PDA Anderson Companies 3-24-2014.doc Request for Action, Page 2 March 24, 2014 Attachments • Resolution • Elhers & Associates Memo Preliminary Development Agreement NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY CITY OF NEW HOPE HENNEPIN COUNTY STATE OF MINNESOTA RESOLUTION NO. 2014-05 RESOLUTION APPROVING A PRELIMINARY DEVELOPMENT AGREEMENT WITH ANDERSON -KM BUILDERS, LLC RELATING TO THE REDEVELOPMENT OF CERTAIN REAL PROPERTY LOCATED IN THE CITY OF NEW HOPE. WHEREAS, the New Hope Economic Development Authority ("EDA") is the owner of certain real property (the "Redevelopment Property") located in the City of New Hope (the "City"); and WHEREAS, Anderson -KM Builders LLC (the "Developer") has presented to the EDA'S Board of Commissioners (the "Board") a concept for the development of the Authority Property and certain other real property located adjacent to or near the Redevelopment Property that may be acquired by the Developer (the "Additional Property") through construction of a grocery store and ancillary uses together with related improvements (the "Development"), which proposal contemplates the Authority's conveyance of the Redevelopment Property to the Developer; and WHEREAS, the Board has reviewed the Developer's development concept and desires to enter into a preliminary development agreement to allow the Developer to further refine its development concept and to negotiate with the EDA concerning acquisition of the Redevelopment Property and approval of the proposed development; and WHEREAS, there has been prepared and presented to the Board a Preliminary Development Agreement (the "Preliminary Agreement") that allows the Developer a period of time within which it may refine its development proposal and undertake certain other actions to determine whether the development is economically feasible. NOW, THEREFORE, BE IT RESOLVED by the Board that execution of the Preliminary Agreement is in the EDA'S best interest and that the President and Executive Director are hereby authorized to execute the Preliminary Agreement in the form presented to the Board, subject to such modifications as may be approved by the EDA'S legal counsel and Executive Director, which modifications, in the opinion of legal counsel and the Executive Director, do not constitute substantive changes to the Preliminary Agreement presented to the Board for approval. Approved by the Board on March 24, 2014. Daniel Stauner, President Pro Tem ATT Kirk McDonald, Executive Director Memo To: Kirk McDonald -- Executive Director Flom: Stacie Kvilvang z.,,a: March 17, 2014 5" l).eal: Preliminary Development Agreement (PDA) For Kmart Site At the February 24, 2-g14 City Council work session, the City Council directed staff to work with the EDA Attorney to draft a PDA by and between Anderson KM -Builders LLC. (developer on behalf of Hy -Vee) for review and consideration at their March 24, 2014, EDA meeting. The intent of the PDA is to provide the developer exclusive development rights to the property for a defined term (approximately 6 months). During this time, the EDA and the developer will negotiate a Redevelopment Agreement which will include terms for the sale of the property, what is to be constructed and when and all public improvements required for the development. In addition, the City, EDA and the developer will be completing all actions necessary to approve final site plans for the development. Following are the proposed terms of the PDA: 1. Term a. PDA expires on October 1, 2014, unless otherwise extended by agreement of both parties i. EDA can terminate and give notice if they deem the developer is not diligently pursuing its required activities under the PDA and the developer has 30 days to cure the default, otherwise the PDA is terminated b. EDA will not negotiate the sale of the property to any other party during the term of the PDA c. During the term of the PDA, the EDA and the developer shall proceed with the negotiation of a Redevelopment Contract i. The decision to enter into a Redevelopment Contract shall be in the sole discretion of each of the parties EwLS LEADERS IN PUBLIC FINANCE \AIINW.oh' rs-inc.com Minnesota phone 651-697-8500 3060 Centra Pointe Drive Offices also in Wisconsin and Illinois fax 661-697-8555 Roseville, MN 65113-1122 toll free 800-552-1171 Kirk McDonald Preliminary Development Agreement For Kmart Site March 17, 2014 Page 2 2. City responsibilities a. Assist in identifying public improvements necessary to be constructed in connection with the development b. Identify type and amount of development fees that the developer will be required to pay c. Identify the approval process and timeframes for development approvals that may be expected for the development d. Provide the developer title information, surveys and environmental reports related to the property e. Draft Redevelopment Agreement f. Provide the developer surveys and environmental reports it has for the property g. Provide developer access to the property to complete necessary testing 3. Develo er res ponsibillities a. Continue to refine its site and building plans for the development b. Submit a proposed schedule for the development, including without limitation, the timing of the closing on financing c. Update evidence of title to the property and provide to the EDA any objections to title d. Submit to staff a project pro forma detailing all costs of the development and the sources and uses of all funds to finance the development, including justification for the amount proposed to be paid by the developer to acquire the property e. Undertake preliminary engineering and soil testing of the property, indemnify the EDA from any claims or damage due to entry onto the property and repair any damage made to the property f. Determine the acceptability of the environmental condition of the property g. Identify public improvements expected or required to be completed as part of the development h. Conduct a community open house to solicit public input regarding the proposed development concept and such other neighborhood meetings as may reasonably be requested by the City i. Make all required presentations to the City Council, the EDA and Planning Commission. Kirk McDonald Preliminary Development Agreement For Kmart Site March 17, 2014 Page 3 4. Payment of EDA Costs a. Developer will pay 100% of the EDA's costs for consultants in connection with the redevelopment including but not limited to Ehlers, EDA attorney, etc. Developer is required to make a $10,000 deposit at the time the PDA is signed into an escrow account and will continue to make deposits as required over time. 5. Land Acquisition and Purchase Price a. Terms of acquisition (price) have to be acceptable to the both the EDA and the developer b. Acceptance by the developer of a Phase I and, if requested, Phase II environmental assessment and all other environmental and wetland reports and surveys certified to the developer and its lender c. Title to the property needs to be acceptable to the developer in its sole discretion d. The EDA and the developer need to obtain all necessary approvals from any participating governmental authority e, Developer needs to obtain from the City all planning, zoning and permit approvals f. Developer needs to obtain financing for the development acceptable to them The developer has reviewed the attached PDA and is agreeable to the terms outlined. Please contact me at 651-697-8506 with any questions. PRELIMINARY DEVELOPMENT AGREEMENT THIS AGREEMENT is made and entered into this 24th day of March , 2014, by and between the New Hope Economic Development Authority (the "Authority") with its principal office at 4401 Xylon Avenue North, New Hope, 'Minnesota 55428, and Anderson -KM Builders, LLC, a Minnesota limited liability company (the "Developer") with its principal office at 4220 Park Glen Road, St. Louis Park, Minnesota 55416, Attention: Kent Carlson, President. WITNESSETH: WHEREAS, the Authority is the owner of certain real property .(the "Redevelopment Property") located in the City of New Hope (the "City"); and WHEREAS, the Developer has presented to the Authority a concept for the development of the Redevelopment Property through the construction of a grocery store and ancillary uses together with related improvements (the "Development"), which proposal contemplates the Authority's conveyance of the Redevelopment Property to the Developer; and WHEREAS, the Authority's Board of Commissioners has reviewed the Developer's development concept and desires to enter into this Preliminary Development Agreement to allow the Developer to further refine its development concept and to negotiate with the Authority the terms of a sale of the Redevelopment Property to the Developer; and WHEREAS, the Authority and Developer intend to proceed with the Development if: (i) a design for the Development can be agreed upon by the Authority and the Developer; (ii) a satisfactory agreement can be reached regarding the purchase price to be paid by the Developer for the Redevelopment Property; (iii) the economic feasibility and soundness of the Development and other necessary preconditions have been determined to the satisfaction of the parties. NOW, THEREFORE, in consideration of the covenants and obligations of the parties hereto, the Authority and the Developer hereby agree as follows: Section 1. Preliminary Nature of Agreement. The Authority and Developer agree that this Agreement is intended to be preliminary in nature. Before the Authority and Developer can make a decision on whether to proceed with the implementation of the Developer's development concept, it will be necessary to assemble and consider information relative to the uses, design, economics and other aspects of the Development. The purpose of this Agreement is to allow the Developer an opportunity to assemble such necessary information, to refine the above referenced development concept, and to negotiate with the Authority concerning the execution of a purchase and development agreement (the "Contract") which, if executed, will set forth the rights and responsibilities of the Authority and the Developer with respect to the Development. During the term of this Agreement, the Authority agrees that it will not enter into or negotiate a similar agreement with any party other than the Developer for a project on the Redevelopment Property. Section 2. Present Intent of Parties. it is the intention of the parties that this Agreement document their present understanding and commitments and that if the following conditions can be fulfilled to the satisfaction of the Authority and Developer that the parties will proceed in an attempt to formulate a mutually satisfactory Contract: (a) the Developer demonstrates the feasibility of the Development as refined pursuant to this Agreement; (b) the completion of all undertakings required by this Agreement in a satisfactory and timely manner; and (c) the satisfaction of such other conditions as are determined to be appropriate by either party. The Contract (together with any other agreements entered into between the parties hereto contemporaneously therewith) when executed will supersede all understandings and obligations of the parties hereunder. Section 3. Development Design. The Developer's concept for the Development on the Redevelopment Property is preliminary in nature and must be refined before implementation. The concept as proposed involves the construction of a grocery store and ancillary uses together with related improvements. Section 4. Developer Undertakings. During the term of this Agreement the Developer shall do the following: (a) Continue to refine its site and building plans for the Development. (b) Submit to the Authority a proposed schedule for the undertaking of the Development including the timing of the closing on financing. (c) Using title information and a survey provided by the Authority, update evidence of title to the Redevelopment Property and provide to the Authority any objections to title. (d) Submit to the Authority a project pro forma detailing all costs of the Development and the sources and uses of all funds to be raised to finance the Development, including justification for the amount proposed to be paid by the Developer to acquire the Redevelopment Property. (e) Undertake preliminary engineering and soil testing of the Redevelopment Property. For this purpose and for the purpose of environmental testing described in Section 2 4(f) below, the Developer and its contractors shall have the right to enter upon the Redevelopment Property at reasonable times and after notice to the Authority. The Developer shall indemnify, defend and hold the Authority harmless from and against any claims or damage, of whatsoever nature, arising out of the entry onto the Redevelopment Property and shall repair any damage caused to the Redevelopment Property. (f) Using environmental reports and studies provided by the Authority and such other studies and testing deemed necessary, determine the acceptability of the environmental condition of the Redevelopment Property. (g) Identify public improvements expected or required to be completed as part of the Development. (h) Conduct community open house(s) to solicit public input regarding the proposed development concepts and such other neighborhood meetings as may reasonably be requested by the Authority. (i) Make all required presentations to the City Council of the City, the Authority's Board of Commissioners and the City Planning Commission in connection with approvals of the Development. All of the information described above shall be prepared or collected at the sole expense of the Developer. The Developer agrees that it will provide the Authority with monthly status reports on progress made with respect to its activities under this Agreement. Section 5. Authority Undertakings. During the term of this Agreement, the Authority will undertake the following: (a) Assist in identifying public improvements necessary to be constructed in connection with the Development. (b) Identify construction, permit, application, utility and any other fees and the amount of such fees that the Developer may be expected to pay in connection with the Development. (c) Identify the approval process and timeframes for development approvals that may be expected for the Development. (d) Provide to the Developer title information based on which the Developer can update evidence of title to the Redevelopment Property. (e) Cause to be prepared drafts of the Contract. (f) Provide to the Developer any surveys and environmental reports related to the Redevelopment Property that are in the possession of the Authority. Section G. Contingencies. The parties acknowledge and agree that proceeding with the Development is subject to a number of contingencies, including, but not limited to, the following: (a) The acquisition of all or part of the Redevelopment Property by the Developer from the Authority by direct purchase, on such terms and conditions as are mutually acceptable to the Authority and the Developer. (b) The acceptance by the Developer of a Phase I and, if deemed necessary by Developer, Phase II environmental assessment and all other environmental and wetland reports and surveys certified to the Developer and its lender, deemed necessary by the Authority and the Developer for all of the property to be encompassed by the Development, which reports and surveys must be satisfactory to the Authority and the Developer. (c) The Authority and the Developer having obtained all necessary approvals for the Development from any participating governmental authority. (d) The Developer having obtained such zoning modifications, rezoning, planned unit development approvals, conditional use permits and such other approvals as are necessary to allow the Development to move forward. (e) Title to the Redevelopment Property having been found acceptable to the Developer in its sole discretion. (f) The Developer having conducted such soils, well, engineering, hazardous waste, environmental and other testing as it determines necessary. (g) The Developer having obtained financing for the Development acceptable to Developer. Section 7. Negotiation of Contract. During the term of this Agreement, the Authority and the Developer shall proceed with the negotiation of a Contract relative to the Development. The decision to enter into a Contract shall be in the sole discretion of each of the parties. If prior to execution of the Contract either party determines in its sole discretion that it is not in its best interest, for whatever reason, to proceed with the Development, it shall so notify the other party, whereupon this Agreement shall terminate and neither party shall have any rights or obligations to the other or to any third party under or with respect to this Agreement, except as provided in Section 9 regarding Authority costs incurred prior to such termination. If the Developer determines during the term of this Agreement that undertaking the Development is not financially feasible, it will promptly notify the Authority of such determination and the parties will terminate this Agreement. Section 8. Effect of Approvals. No approval given by the Authority hereunder or in connection herewith shall be deemed to constitute an approval of the Development for any purpose other than as stated herein and the process outlined in this Agreement shall not be 4 deemed to supersede any concept review, conditional use permit, vacation, subdivision, or other zoning or planning approval process of the Authority or the City relative to the development of real estate. Section 9. Payment of Authorily Costs. In consideration of the Authority's covenants and agreements set forth herein, the Developer agrees that it will pay costs incurred by the Authority in connection with the preparation of this Agreement, financial analysis, development assistance, and the negotiation, preparation and implementation of the Contract. The Developer has deposited $10,000 with the Authority upon execution of this Agreement. The Authority shall have the right to draw upon such amounts to pay its costs. If the amount on deposit becomes depleted, the Authority shall have the right to request that the Developer replenish such funds upon which the Developer shall remit to the Authority additional funds to be held on deposit and used to pay costs. If on termination of this Agreement, the amounts held by the Authority are insufficient to pay the Authority's costs, the Developer shall be liable for any deficiency. If this Agreement is terminated in accordance with the terms hereof, any sums remaining on deposit with the Authority, after the Authority pays or reimburses itself for costs incurred to the date of termination, shall be returned to the Developer. No other financial obligations shall exist between the parties, other than those that may be negotiated and contained in the Contract. Section 10. Modifications. This Agreement may be modified and the term hereof may be extended only through written amendments hereto signed by both of the parties to this Agreement. Section 11. Exclusive Right In consideration of the time, effort and expenses to be incurred by Developer in pursuing the undertakings set forth herein and in further consideration of the funds paid to the Authority, the receipt of which is hereby acknowledged, the Authority hereby agrees that for the term of this agreement it will not provide or enter into an agreement with any third party in connection with any proposed development within the area covered by this agreement. During such period the Developer shall have the exclusive right to work with the Authority in establishing a definitive Contract for the Redevelopment Property. Said exclusive rights shall continue, unless earlier terminated as provided herein, for the period described within Section 12 of this agreement. Section 12. Termination. This Agreement shall be effective until October 1, 2014. If for any reason a Contract has not been entered into by the parties by such date or any mutually approved extension thereof, this Agreement shall be null and void and neither party shall have any liability or obligations to the other, except as provided in Section 9 regarding Authority costs incurred prior to the termination of this Agreement. This agreement may be terminated by the Authority as to all or a portion of the Redevelopment Property upon the giving of written notice to the Developer that the Developer is not diligently pursuing its required activities under this Agreement. Developer shall have a reasonable time, but in no event less than 30 days to effect a cure of such default, or to demonstrate that it is diligently pursuing such cure. The Authority may also terminate this agreement for the failure of the Developer to make any payment due in accordance with Section 9. 5 Section 12. Severability. If any portion of this Agreement is held invalid by a court of competent jurisdiction, such decision shall not affect the validity of any remaining portion of this Agreement. Section 13, Notices. Notice, demand, or other communication from one party to the other shall be deemed effective if sent by certified mail, postage prepaid, return receipt requested or delivered personally to a party at its address in the first paragraph of this Agreement, or at such other address as such party may designate in writing to the other party. ro IN WITNESS WHEREOF, the Authority has caused this Agreement to be duly executed in its name and behalf and the Developer has caused this Agreement to be duly executed in its name and behalf on or as of the date first above written NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY By. Its Pre ' nt Pro Tern Its Executive Director ANDE ;ON-K"UILDERS, LLC By Its EXHIBIT A Redevelopment Property A-1 Memo To: Kirk McDonald — City Manager From: Stacie Kvilvang Date: April 28, 2014 Subject: Summary of Community Open House Survey On April 17, 2014 the City hosted a community open house to provide the residents an opportunity to review the proposed site plan for a HyVee Grocery store and ancillary uses on the former Kmart site. Approximately 125 attendees signed in, but when taking into consideration single sign -in for couples, we estimate that approximately 200 people attended. We received written surveys from 101 persons and one (1) email with comments (this was received prior to the open house and included in the survey results). Of the 102 responses received, 7 of them were from non -New Hope residents (determined by addresses provided and/or noted in their comments). We had inquired as to how people wanted to stay informed on the progress of the plans/process in the future. Following is a breakdown of the preferred form of communication: Websit Email Newsletter Other Total It should be noted that "Other" category included local newspaper, phone, twitter, the Pipeline, face-to-face communication and future open houses/public meetings. In addition, the total number of responses is higher than the number of surveys received. This is due to some people wanting to be informed in multiple ways. Attached you will find a copy of all the survey results (actual surveys with names and addresses removed) and a document summarizing the survey results and quantifying the number of persons that made the same/similar comment. As noted, following are the top five (5) common themes from each category and the number of similar comments received: 1. What do you like about the concept plan for the potential uses: a. Having a grocery store in the City - 32 b. Good company and opportunity for the City - 25 c. Like full-service aspect of the store - 21 d. Location - 13 e. Good plan/use of space - 6 EHLERS LEADERS IN PUBLIC FINANCE former Kmart site and the www.ehlers-inacom Minnesota phone 651-697-8500 3064 Centre Pointe Drive Offices also In Wisconsin and Illinois fax 651-697-8555 Roseville, MN 55113-1122 toll free 800-552-1171 Kirk McDonald Summary of Community Open House Survey April 28, 2014 Page 2 2. What things would you like to see changed or added: a. No gas station - 5 b. Smaller store - 4 c. More/enhanced landscaping - 4 d. Adequate pedestrian and bike access - 4 e. Car wash - 2 3. What questions or concerns do you have? a. Traffic flow along 42"d Avenue - 13 b. Where the Farmers Market will go - 9 c. Having adequate pedestrian and bike access - 8 d. Delivery truck noise and effect on residential property behind store - 7 e. That it is a non-union store - 6 4. What additional Information would you like to see? a. Periodic project updates - 4 b. Construction start date - 3 c. Tax impact (+/-) - 3 d. Wages and job numbers - 3 e. More public information sessions - 3 As noted, question #1 and #3 had the largest number of similar comments in the top 5 responses (what they like and what the concerns are), which is pretty typical of responses we see from this type of open Douse. Overall there are some useful/constructive comments and feedback that the City Council and staff can utilize and incorporate into the plan as the City continues to move forward with the project. Please contact me at 651-697-8506. ILOMMunity Upen Aouse 5ummiary OT 5urvey He5ponses Having a- grocery store in the Oty 32. =x No gas station 5 Traffic along 42nd Avemw - ' 13 Periodic Project updates 4 Good/great company & opproWriiLy 25 ,, Smaller store 4 Farrier s market •; t.u, . 9 Project Start 3 FiuIFst+rvice aspect ofstore 21 More/enhancedlandsca 1 4 Adequate,pedestnen)bikeabess $ Tax Impact (+or-) 3 Location - ... 13 : , Adequate pedestrian access 4 Noise concerns for residential properl+r behind �. .:- 2 Wages & job numbers 3 - the store (truck traffl Non-union store stealing jobs Toomanygrocery More public inputinformatian Good use of space 6 ' CarWash Z stores lob Ionlowwages, employee benefits, 6 3 nori.MN comeany. - sessions Great 6_Apartment access 2 small business im eti-on 5 Park or mu rd 1 EcorkxnidDevelopment ; - ` 6 "=: Senior housing 2 Tpo many gas stations - . a •.:. , ;:; ; ;", q ;: Ho> will work with so 1 ._-� much pavement Appearance/aesthetics :., 5 -.i . ` Kosher section & Include Sprouts 1 _ Organicfoodavailableg - .'i ! '.°: Z a', Opening date 1 Program Landscapingti S Restaurant instead of gas station (but 1 Development start' ' 2 G - Traffic 1 understand why ifs the way it is) ' •? : , . ;. r Gas station a a 3 :, Multi-purpose housing, parking ramp, 1 tine of Cityrponey to finance 2 Access from apartments 1 other retail, farmer's market ! , ,- Everytlimg ;: - Z Hot Dog or Ice Cream Stand In 1 ;, Run-off &fu tanotbefblg tix •E ... ... X Which coffee shop is moving In 1 summer Organics 2 Another store on the site 1 Too much eavemerit 1 Hours of operation 1 Waterfeature 1 Less asphalt 1 Too upscale. 1 Surface water management 1 Stormwffier plan 1 Remote Post Office inside store 1 Union ruinln ;the plan - 1 Other development ideas 1 Traffic -. 1 ' More green space 1 Retaining wall behind stone Traffic patterns. Pedestrian 1 routing. PoerFect 4 1 '. •,' Add fitness center i Dumber & quality ofjotts Detailed informatlon about the 1 , _ , farmer's market s future NerghWhood revitalization ` `:" 1 ,• More Integration with other 1 No more housing. Green spaxe - _ 1 Video walkthrough of a similar 1 rorties Hy -Vee Prices F: = 1 = No coffeeshop. Add movie theater in 1Safely & access to aparunerts Liquor Stare 1 Phase Ii 8etterlthan . nothing 1 Eliminate additional retail space 1 INMes.Dandtionstocoiflinun:, ro nifi 1 multi -use 1 Em on local �: r ,_ phase g t ss •. union store 1 Would Itkt mgre retail -'- ` ' 1 Marketing survey showing 1 demand R Will help improve image of New Rope: 1 1Accessibility 1 1 1 Sprouts Program 1. Wlll bringrevenue to the City r� wtalrW to an'underutilized,area 2 tandseaping&'drainage ai ti No car wash 1 Commundy'atmosphere 1 Dental/Medical or daycare 1Parking t Pm% staying In Minnesota 1 Will it be successful whgn-others have Wed Would rather have highe-end single- family housing1Hope plan is approved Residential options 1 When will Phase El hap en' Better traffic planning1 Sidewalk along 42nd nerds tube far away.from e`. r i y More retail & separate restaurant 1 Moresmall retail 1 [ F Draina e h.' Non -retail & no grocerystore. Small business or Sports complex Bike trails Smaller grocery store, more retail Too much conflict with local business Union option or employee -owned Farmer's Markets ace Institutional sized products for church cooking1 1 1Accessibility 1 1 1 Im ct on: ooh' • 1 Union members " , `- , 1 Cleanliness I#oads'and parking.lot entry 1 Doesn't match City's vision More updates as to future development 1 tandseaping&'drainage ai ti No car wash 1 Commundy'atmosphere 1 Dental/Medical or daycare 1Parking t Pm% staying In Minnesota 1 Will it be successful whgn-others have Wed Would rather have highe-end single- family housing1Hope plan is approved Residential options 1 When will Phase El hap en' Better traffic planning1 Sidewalk along 42nd nerds tube far away.from sheet 1 More retail & separate restaurant 1 Moresmall retail 1 [ F Draina e h.' Non -retail & no grocerystore. Small business or Sports complex = } Use of east end 1 R Semi -traffic addressed 1 Future redevelopment in area Outdoor seating 1 r } No Caribou Coffee No car wash Micro -brewery 1 " { �; • 4 ` ` i' r F Future plans to Improve looks of �� • ' .. surrounding butidings to i 1 EDA . 4 Request for Action Originating Department Approved for Agenda Agenda Section Community Development June 23, 2014 EDA Item No. By: Jeff Sargent, Director of CD By: Kirk McDonald, Ci Mana er 4 Resolution approving the term sheet and authorizing the preparation of a purchase and development agreement with Anderson -KM Builders, LLC, and Hy -Vee, Inc, for the sale of real property (improvement project no. 893) Requested Action Staff requests the Economic Development Authority (EDA) to approve the term sheet and authorize the preparation of a purchase and development agreement with Anderson -KM Builders, LLC, and Hy -Vee, Inc. for the sale of the properties located at 4200 and 4300 Xylon Avenue North. Policy/Past Practice It is a practice of the City Council to authorize the preparation of a purchase and development agreement prior to the sale of real property. Background The last executive session on this matter was held on May 12, 2014, when the Economic Development Authority (EDA) considered an offer on the property and directed staff to issue a counter offer. On May 28, the City Manager forwarded information from the redevelopment consultant to the City Council indicating that Hy -Vee has essentially accepted the City terms. The City Council met on June 16 at a work session to discuss the preliminary term sheet addressing the sale of the former Kmart property to Hy -Vee in anticipation of the redevelopment of the property into a grocery store. The City Council understood the content of the term sheet and directed staff to place the term sheet on the agenda and continue preparations of the purchase and development agreement. Attachments • Resolution • Cover Memorandum from Ehlers • Term Sheet * Preliminary Plat Motion by d f VVL4�� w Second by /fes To: kJlv� —1,2 I;\RFA\COMM DEV\Develo ment\Q & R EDA Approve HV -Vee Term Sheet 6-23-14.doc NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY CITY OF NEW HOPE HENNEPIN COUNTY STATE OF MINNESOTA RESOLU'T'ION NO. 2014-12 RESOLUTION APPROVING THE TERM SHEET AND AUTHORIZING THE PREPARATION OF A PURCHASE AND DEVELOPMENT AGREEMENT WITH ANDERSON -KM BUILDERS, LLC, AND HY-VEE, INC., FOR THE SALE OF REAL PROPERTY WHEREAS, the New Hope Economic Development Authority (the "Authority") has acquired certain real property (the "Property) located within the City of New Hope (the "City"); and WHEREAS, the Authority has received an offer to purchase the Property from Hy -Vee, Inc., ("Hy - Vee") and Hy -Vee has engaged Anderson -KM Builders, LLC (the "Developer") as its developer to construct certain improvements on the Property; and WHEREAS, there has been prepared a preliminary term sheet outlining the terms of a proposed purchase and development agreement that will set forth the responsibilities of the parties thereto as to the purchase and sale of the Property and the construction of the proposed improvements on the Property; and WHEREAS, the Authority desires to authorize and direct its staff, consultants and legal counsel to proceed with the negotiation and preparation of a purchase and development agreement based on the terms outlined in the preliminary term sheet. NOW, THEREFORE, BE IT RESOLVED, by the Board of Commissioners of the Authority as follows: 1. Authority staff, consultants and legal counsel are hereby authorized and directed to prepare a purchase and development agreement between the Authority, Hy -Vee and the Developer incorporating the terms set forth in the term sheet presented to the Board of Commissioners and such other terms as the Authority's staff, consultants and legal counsel deem necessary or desirable. 2. The Authority shall not be obligated to convey the Property to Hy -Vee unless and until the final purchase and development agreement has been approve4 and executed by all of the parties thereto. Dated: June 23, 2014 ATT!! . r s � Kirk McDonald, Executive Director Adopted: Kathi Hemken, President Memo To: Kirk McDonald — Executive Director From: Stacie Kvilvang Date: June 23, 2014 Subject: Term Sheet for Purchase and Development Agreement — Kmart Site At the May 19, 2014 EDA executive session, the EDA provided staff direction to counter Hy- Vee's purchase offer at $3,725,000 for the above referenced site. On May 27, 2014 Hy -Vee accepted this counter offer. Since that time, staff and the EDA Attorney worked with Hy - Vee and Anderson Companies to draft a term sheet that would outline the details for a Purchase and Development Agreement for the project for review and consideration by the EDA. At the June 16, 2014 work session, the City Council reviewed the preliminary term sheet for the project (see attached term sheet). The City Council requested that it be brought back to the EDA on June 23, 2014 for formal approval and authorization to proceed with the drafting of the Purchase and Development Agreement and other appropriate documents. Following are the main points of the Agreement for review and comment by the EDA: 1. General a. Agreement will be replace the existing preliminary development agreement with Anderson Companies and will become a three -party Purchase and Development Agreement between the EDA, Anderson Companies (the Redeveloper) and Hy -Vee Inc. (Hy -Vee) 2. Acquisition a. Hy -Vee will purchase the Kmart Site, Wells Fargo Bank site and EDA parking lot site for $3,725,000 and are responsible to pay all broker commissions. i. Earnest money of $1, with balance paid at closing ii. Land they are acquiring is approximately 13.30 acres iii. There will be a small outlot that they will not purchase on the corner of Xylon Avenue and 42nd Avenues (approximately .052 acres) 1. To be utilized by City as public plaza space which elements to be placed in the Plaza will be determined by the EDA b. Closing will happen on or before September 30, 2014 and EDA will provide "clean" title to the property wwvv. ehlers-ina com E H L E RS Minnesota phone 661-697-8500 3060 centre Pointe Drive LEADERS IN PUBLIC FINANCE offi06s also in Wisconsin and Illinois fax 651-097-8555 Roseville, MLN 55113-1122 toll free 80052-1171 Kirk McDonald Term Sheet For Purchase and Development Agreement - Kmart Site June 23, 2014 Page 2 3. Platting and Zoning a. Hy -Vee will plat the property into four (4) separate parcels i. Lot 1 - grocery store ii. Lot 2- convenience store/gas iii. Lot 3- future office/retail iv. Outlot A — City Plaza b. Hy -Vee must dedicate to the City all public rights of way and utility easements and provide for all cross access agreements between Lots 1 through 3. c. Hy -Vee will prepare and obtain City approval of a planned unit development ("PUD") and Plat of the Property at their cost and subject to all City ordinances and procedures. 4. Repurchase Option for Office/Retail Parcel - Lot 3 a. Hy -Vee has three (3) years from the date of closing on the property to commence construction of a retail/office development acceptable to the EDA b. Hy -Vee can request a one (1) year extension on timing of development and EDA can provide if Hy -Vee is showing progress towards development of the site L Approval can't be reasonably withheld c. After 4 years, EDA has option to repurchase Lot 3 for $470,000 i. Original sq/ft purchase price of the land by Hy -Vee (approximately $6.40 sq/ft) 5. Phases and Timina of Construction a. Must commence construction on Phase 1A by June 1, 2015 and complete by May 31, 2016 i. 80,000 to 90,000 sq/ft grocery store b. Must commence construction on Phase IB by June 1, 2015 and complete by May 31, 2016 i. 3,000 sq/ft convenience/gas c. Must commence construction on Phase II by October 1, 2017 and complete by October 30, 2018 i. Up to 12,000 sq/ft retailloffice ii. 3 years after closing on property 6. Public Improvements a. City will prepare all plans, pay for and construct the necessary utility extensions to the site to accommodate development of the property. b. City will prepare all plans, pay for and reconstruct, Xylon Avenue between 42"d Avenue and 45th Avenue, including required upgrades to underground utilities. Kirk McDonald Term Sheet For Purchase and Development Agreement - Kmart Site June 23, 2014 Page 3 Intent is to complete the improvements on or before September 30, 2015 which will be prior to the grand opening of Phase I. c. The City will construct the streetscape improvements on the west side of Xylon Avenue. d. Anderson Companies will prepare plans and specifications in consultation with the City for the Public Plaza. Anderson Companies will construct the Public Plaza improvements at the City's cost and in accordance with public bidding requirements. e. Hy -Vee will prepare plans and specifications for, and construct, all roads, sidewalks, sewer, water, utility and traffic improvements located within the Redevelopment Property. L Including road alignment for future road to Winnetka Avenue. f. Hy -Vee shall pay for and construct all streetscape improvements located within the following rights of way: L The east side of Xylon Avenue between 42nd Avenue and the north end of the Redevelopment Property. ii. The south side of the Redevelopment Property along 42nd Avenue g. City shall be responsible for maintenance and plowing of Public streets, and maintenance of lighting. h. Hy -Vee will be responsible for maintenance and plowing of private roads, sidewalks and for maintenance of the grass and landscaping from the curb line into their property along Xylon Avenue and 42nd Avenues. 7. TIF District a. Anderson Companies will pay 100% of the EDA's costs for consultants in connection with the creation of a TIF district. i. TIF district boundaries will include this property as well as the Winnetka Mall site. 8. Deed Restrictions for Lot 3 a. City will work with Hy -Vee on acceptable deed restrictions for use of this lot. Anderson Companies and Hy -Vee have reviewed the attached Term Sheet and are agreeable to the terms outlined. Please contact me at 651-697-8506 with any questions. Draft b/11/14 SUMMARY OF THE PURCHASE AGREEMENT AND CONTRACT FOR PRIVATE REDEVELOPMENT AMONG EDA, ANDERSON -K -M BUILDERS LLC., AND HY-VEE, INC. The following is summary of the Contract for Private Redevelopment ("Contract") among the City of New Hope ("City"), the New Hope Economic Development Authority ("EDA"), Anderson -KM Builders LLC., a Minnesota limited liability company ("Redeveloper") and Hy - Vee, Inc., an Iowa Corporation ("Hy -Vee"). The Contract, if approved by the EDA, will supersede the Preliminary Devclopment Agreement between the Redeveloper and the EDA dated March 24, 2014. I. STATUS OF LAND AND PLATTING. A. Defined Areas. "Redevelopment Property," which consists of three parcels owned by EDA and City and consist of approximately 13.40 acres. B. Survey. Hy -Vee at its own expense may order an updated survey. C. Platting. Hy -Vee will replat the property into four parcels consisting of the grocery store (lot 1), convenience store/gas (lot 2), future office/retail (lot 3) and City outlot A. The Redeveloper or Hy -Vee will prepare and obtain City approval of a planned unit development ("PUD") and Plat of the Redevelopment Property at their cost and subject to all City ordinances and procedures. In the Plat, the Redeveloper or Hy -Vee must dedicate to the City all public rights of way and utility easements and provide for all cross access agreements between Lots 1 through 3. D. Sale of EDA/City Property. Hy -Vee will purchase the Redevelopment property from the EDA for $3,725,000 and be responsible for all applicable Buyer Broker Commissions. Closing on the Redevelopment Property shall occur on or before September 30, 2014 (the "Hy -Vee Closing"). Both parties acknowledge that there are no taxes or special assessments due or pending on the Redevelopment Property due to the tax exemption status of City/EDA owned property. Ernest money in the amount of $1 will be paid upon approval of the Agreement and the balance on the Closing Date. E. Title. The EDA will provide Hy -Vee with clean and marketable title to the Redevelopment property by quit claim deed. F. Repurchase Option for Office/Retail Parcel - Lot 3 Commencing on the first day of the fourth (4t`) year following the Hy -Vee Closing, the EDA shall have the right to repurchase Lot 3 if, after three (3) years following the Hy -Vee Closing, the then -current owner of Lot 3 has not commenced construction on Lot 3 in accordance with the master site plan and PUD (the "EDA Repurchase Right"). In order to exercise the EDA Repurchase Right, the EDA must notify Hy -Vee in writing of its election to exercise the EDA Repurchase Right. Notwithstanding the foregoing, in the event Hy -Vee has either (i) submitted a site plan to the City of New Hope in furtherance of the development of Lot 3, or (ii) in the reasonable opinion of the EDA, is actively and in good faith marketing the property to third party developers or end users for the development of Lot 3 in accordance with the master site plan and PUD, the then -current owner of Lot 3 may notify the EDA of the same in writing within twenty (20) business days following receipt of the EDA repurchase election notification and (i) the EDA repurchase election notification received by the then -current owner of Lot 3 shall be of no further force and/or effect, and (ii) the EDA Repurchase Right shall be extended by one (1) year to the first day of the fifth (5"') year following the Hy -Vee Closing. The repurchase price to be paid by the EDA will be $470,000. Lot 3 will be conveyed back to the EDA free from all title defects, lien and encumbrances except for those to which Lot 3 was subject at the time that Lot 3 was deeded to Hy -Vee. In the event construction on the redevelopment of Lot 3 has not commenced by the expiration of the fifth (5b) year following the Hy -Vee Closing and the EDA has not notified the then -current owner of Lot 3 of its intent to repurchase Lot 3, then the EDA Repurchase Right shall lapse and be of no fin-ther force and/or effect. Notwithstanding the foregoing, in the event during the four (4) year period following the Hy -Vee Closing, the then -current owner of Lot 3 notifies the EDA that it is unable to construct the Phase II improvements on Lot 3, upon which notification the then -current owner will convey Lot 3 to the EDA for the purchase price stated above. Prior to the approval by the City and the EDA of a site plan for Phase II, Hy -Vee shall not be entitled to transfer Lot 3 without the prior written consent of the EDA. H. CONSTRUCTION OF MINIMUM IMPROVEMENTS A. Phases Defined. The Minimum Improvements consist of the following development constructed in phases, located as shown on the Master Site Plan: Phase IA: Approximately 80,000 - 90,000 square feet of grocery/retail. Private and public utility relocation and construction work; earthwork for the entire Redevelopment Property; grading necessary for future roadway access to Winnetka Avenue and all storm water ponding, public and private utility construction, and site improvements for Phase I (except for Phase IC site improvements). Phase IB: Approximately 3,000 square feet of convenience retail and gas canopy. Phase IC: Public plaza on northeast corner of Xylon Avenue and 42"d Avenue. All costs associated with the development of the public plaza will be the responsibility of the EDA/City. Phase II: Approximately 12,000 square feet of class A office space, retail or restaurant space to be located on Lot 3 of the Redevelopment Property along with site improvements and surface parking as required. B. Additional Covenants. • Redeveloper or Hy -Vee will provide pedestrian connections, accommodate public transit, and provide necessary public easements for utilities and access to all future lots. C. Construction Plans and Schedule. The Contract shall include a current Master Site Plan, which wilt be refined as part of the review and approval process for the plat and PUD. Before commencement of each Phase, Redeveloper or Hy -Vee must submit construction plans for review by the EDA for conformity with the Redevelopment Plan, the PUD, the Master Site Plan, and the Contract. The Phases must be constructed in accordance with the following schedule: Re q ulrcd Ph: s, I C:on u:.on;:z:nent Phase I On or Before June 1. 2015 -� - On or Before mirc �:onips�ti ori Mav 31.2016 Phase II I On or Before October 1, 2017 ; On or Before October 30, 2018 Failure to commence or complete a Phase in accordance with this schedule will be an event of default, except as follows: (a) the Redeveloper or Hy -Vee agrees to use its commercially reasonable efforts to commence and complete construction of Phase II by the specified Commencement and Completion Dates, but failure to commence or complete construction of Phase II by those dates is not an Event of Default under the Contract (provided that Redeveloper or Hy -Vee is required to submit reports explaining reason for failure to comply). D. Public Improvements. The responsibility for Public Improvements is divided between the City and Hy -Vee as follows: City -Public Impirovements. The City will undertake the following, at the City's cost: Xylan Avenue Improvements. City will prepare all plans for, and reconstruct, Xylon Avenue between 42°d Avenue and 45th Avenue, including required upgrades to underground utilities. Streetscape Improvements. The City will construct the streetscape improvements on the west side of Xylon Avenue; Hy -Vee will construct the balance of such streetscape improvements as described under Hy -Vee Public Improvements. Utility Extensions to Site. City will prepare all plans for and construct the necessary utility extensions to the site to accommodate development of the Redevelopment Property. It is the intent of the City to complete, subject to unavoidable delays, the public improvements on or before September 30, 2015 which will be prior to the grand opening of Phase 1. The City is responsible for the cost of all City Public Improvements. Hy -Vee Public Improvements. Hy -Vee will undertake the following Public Improvements at its cost (except as noted under Public Plaza): Public Plaza. The Redeveloper will prepare plans and specifications in consultation with the City and in accordance with public bidding requirements to construct the Public Plaza. All costs associated with the design and construction will be paid by the City. Streets and Utilities. Hy -Vee will prepare plans and specifications for, and construct, all roads, sidewalks, sewer, water, utility and traffic improvements located within the Redevelopment Property. Streetscape Improvement. using concept and construction plans provided by the City as described above, Hy -Vee shall construct all streetscape improvements located within the following rights of way: o The east side of Xylon Avenue between 42"d Avenue and the north end of the Redevelopment Property. o The south side of the Redevelopment Property along 42nd Avenue. Hy -Vee is responsible for the cost of all Hy -Vee Public Improvements. E. Maintenance Requirements. The responsibility for ongoing maintenance of Public Improvements is divided between the City and Hy -Vee as follows: The City will have primary responsibility for: • Customary maintenance, repair and replacement up to the curb line of all public streets within and adjacent to the Redevelopment Property • Customary maintenance, repair and replacement of standard street lighting located in the public right of way within and adjacent to the Redevelopment Property. • Customary maintenance, repair and replacement of public plaza area. Hy -Vee will have primary responsibility for: • Customary maintenance, repair and replacement of all private streets and alleys within the Redevelopment Property. • Customary repair and replacement of landscaping elements between the property line of the Redevelopment Property (which for purposes of this term sheet is intended to refer to the property line of the Redevelopment Property following the replat thereof and to exclude public right-of-way areas) and the curb line of any public street within the right of way bordering the post -plat property line of the Redevelopment Property, III. TAX INCREMENT. A. Creation of a TIF District. Redeveloper and Hy -Vee acknowledges that the EDA will be creating a Redevelopment TIF district that will encompass the Redevelopment Property and adjoining property to the northeast. All tax increment generated from the projects will be utilized to repay the EDA for its investment in the land and reimbursement for any City Public Improvements. Redeveloper agrees that it will pay the costs of consultants and attorneys retained by the EDA in connection with the creation of the TIF Plan for the TIF District, and the negotiation and preparation of the Redevelopment Contract and other incidental agreements and documents. There shall be no minimum assessment agreement associated with the Redevelopment Property. IV. MISCELLANEOUS A. Insurance. Hy -Vee is required to maintain commercially standard casualty and liability insurance related to the Minimum Improvements. B. Restrictions on Use. Hy -Vee shall not discriminate upon the basis of race, color, creed, sex or national origin in the sale, lease, or rental or in the use or occupancy of the Redevelopment Property. Hy -Vee agrees that no portion of the Redevelopment Property will be used for a sexually - oriented business, a pawnshop, a check -cashing business (provided, however, a bank or credit union, or grocery store shall not be restricted hereby), a tattoo business, or a gun business (provided, however, a sporting goods store that sells, as part of its sporting goods inventory, guns and ammunition shall not be restricted hereby), and that such prohibitions shall be imposed via a Declaration of Use Restriction prior to the transfer of any portion of the Minimum Improvements to any subsequent purchaser, such Declaration of Use Restriction providing that the City of New Hope is the benefited party with respect to the above noted restrictions. The form of Declaration of Use Restrictions will also include uses competitive to Hy-Vee's planned use. =gg� Request for Action Originating Department Approved for Agenda Agenda Section Community Development June 23, 2014 Development & Planning Item No. By: Jeff Sargent, Director of CD By: Kirk McDonald, City Manager 8.4 Resolution supporting the convenience store and gas station use in conjunction with the development of the Hy -Vee grocery store in the City Center area. (improvement project 893) Requested Action Staff requests the City Council to approve a resolution supporting the convenience store and gas station use in conjunction with the development of the Hy -Vee grocery store in the City Center area. This matter was discussed at the June 16 work session and the Council decided that a formal vote on this issue be taken for the record. Policy/Past Practice It is the practice of the staff to obtain the City Council's approval for specific uses in key redevelopment areas. Background On March 24, 2014, the BDA entered into a Preliminary Development Agreement with Anderson Companies to consider the potential redevelopment of the former Kmart and Wells Fargo Bank drive-thru properties into a Hy -Vee grocery store. Initially, the Hy -Vee grocery store concept plan included a 90,000 square foot store, a convenience store with a gas station, and a car wash. The current City Center Zoning District does not permit gas stations or car washes. During preliminary meetings with representatives from Hy -Vee, the City Council made it clear that the gas station and car wash uses were not permitted and requested that those components be eliminated from the plan. Hy -Vee reluctantly removed the car wash from the plan, but indicated that removing the gas station would significantly alter their business model because of the large percentage of customers that participate in the fuel saver program offered by the company. Hy -Vee representatives stated that the gas sales are so significant to the success of the store that they would not be able to locate in New Hope if the gas station was eliminated from the plan. They did re -orient the gas station to a north/south Motion by _ Second by To: 7 FI ' I \ RFAI CONM DEVIDevelo meat\ Q & R EDA Hy -Vee Gas Station Support 6-23-14.doc Request for Action June 23, 2014 Page 2 direction so the canopy did not totally front on 42nd Avenue. Staff understood the importance of the gas station component to the operations of the store and relayed this information to the City Council during a work session meeting. At various work session meetings, the Council was generally supportive of finding a way to allow the gas station as part of the plan. At this time, staff requests that the City Council formally support the inclusion of the gas station and convenience store as part of the Hy -Vee master plan so that staff can take the necessary steps needed to allow the use in the City Center Zoning District. Attachments • Resolution • Concept Site Plan CITY OF NEW HOPE RESOLUTION NO. 14-. 97 RESOLUTION SUPPORTING THE CONVENIENCE STORE AND GAS STATION USE IN CONJUNCTION WITH THE DEVELOPMENT OF THE HY-VEE GROCERY STORE IN THE CITY CENTER AREA BE IT RESOLVED, by the City Council for the City of New Hope as follows: WHEREAS, the City of New Hope (City) has solicited proposals for the City Center redevelopment; and WHEREAS, Anderson Companies, Inc. (Developer) has submitted a proposal including a 90,000 square foot grocery store, a convenience store with a gas station, and a car wash; and WHEREAS, the current City Center Zoning District does not allow the gas station or car wash use; and WHEREAS, the City Council requested the elimination of the car wash use and reconsideration of the gas station; and WHEREAS, Hy -Vee agreed to eliminate the car wash use from the plan but stated that the gas station use was a critical operational component due to their fuel saver program; and WHEREAS, the City Council feels that the new grocery store development is an important component for the Phase I City Center development and agrees they will support the gas station/convenience stare use in conjunction with the development of the new grocery store and will make the necessary zoning code changes in the future to accommodate the gas station use. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of New Hope as follows: 1. That the City Council supports the gas station/convenience store use in conjunction with the development of the new grocery store and will make the necessary zoning code changes in the future to accommodate the gas station use. Adopted by the City Council of the city of New Hope, Hennepin County, Minnesota this 23rd day of June, 2014. Kathi 14emken, Mayor Attest: Valerie Leone, City Clerk IMIDWIdAXIM Ai'. %Wiv 9"F#" %F ni- i vy4araae %fore: Lw SF PYLACW'k OR LL teb] numt Win- 110._7 %F F of (haal #Aing Pufix 14411M SF ows� k 7 LI oft - vi� 41 ov* New Hope Kman North 42nd Aw—"us, i AL e �k Redevelopment Plan Sale: I "-z;;60' N OR T H COUNCIL - Request for Action Originating Department Approved for Agenda Agenda Section Community Development August 18, 2014 Work Session Item No. By: Jeff Sargent, Director of CD By: Kirk McDonald, City Manager 11.2 Update on the City Center Redevelopment Activities (project 893 ) Requested Action Staff would like to provide the Council with an update on the current redevelopment activities for the City Center area and the Hy -Vee Grocery Store. Policy/Past Practice It is a past practice of the staff to provide periodic updates to the Council on development/redevelopment projects. Background At the August 6 Planning Commission meeting, the Planning Commission recommended approval of the Preliminary and Final Plats, the rezoning of property from CC, City Center District to PUD, Planned Unit Development, and the Site Plan Review for the Hy -Vee Grocery Store proposal for the redevelopment of the Kmart Shopping Center site. Being that this is the first development to occur since the establishment of the New Hope City Center Vision and the creation of the City Center District, there are several other activities that need to occur in conjunction with the Hy -Vee plan to help solidify the vision of the area that staff would like to review with the City Council. Those activities include: Liquor Licenses The City Code currently allows six (6) on -sale liquor licenses, and all six are accounted for: Applebee's, Pub 42, New Hope Bowl, New Hope Cinema Grill, Frankie's Pizza, and Sol Azteca. The City Code also currently allows seven (7) off -sale liquor licenses, and all seven are accounted for: New Hope Liquors, Coborn's Inc, TC Craft Beer, Winnetka Liquors, Liquor and Tobacco World, Quebec Liquor, and Viking Liquor. City staff has recently received information that TC Craft Beer will be going out of business by the end of August, which would free up one of the seven off -sale liquor licenses offered by the city. Second by To: IARFA\COMM DEVIDevelo ment\Q - Update on City Center Redevelopment 8-18-14.doc Request for Action Page 2 August 18, 2014 The Hy -Vee development will include a full-service restaurant and an attached wine and spirits store. For this reason, they will need both an on -sale and off -sale liquor license from the city. Given that the City Code restricts the number of liquor licenses available, and because the city cannot guarantee that any liquor licenses will be available to Hy -Vee by the time construction is complete, the City has the ability to contractually agree with the developer in conjunction with its plan approval for the project to amend the City Code to create licenses for the premises. This contractual agreement can be set forth as part of the purchase and development agreements with the developer. Please review the attached memorandum from Steve Sondrall for more details. Xylon Avenue and 45th Avenue Street Infrastructure Improvements As the Council is aware, there are needed utility improvements along Xylon Avenue and 45th Avenue that will help support future redevelopment in the City Center area. Some of those future improvements include: Sanitary Sewer Replace existing sanitary sewer and install approximately 2,400 feet of 10 inch PVC • Complete the lowering of the sanitary sewer, approximately 1,200 feet on Xylon Avenue, in the Fall of 2014 • Complete 45th Avenue upsizing and replacement in 2015 Water Main • Replace existing water main and upsize with approximately 2,500 feet of 12 -inch PVC (plastic) water main • Improvements will provide appropriate fire flows (3,500 gpm) Storm Sewer Upsize approximately 660 feet to 42 -inch RCP (concrete) pipe Provide an approximate 24 -inch RCP stub on 45th Avenue for future Hy -Vee connection Replace storm sewer on Xylon Avenue as needed to replace failing pipe or structures, and to conform to the future street improvements The attached memorandum from Stantec provides more detail and cost estimates for these proposed projects and also provides figure drawings from the utility improvement feasibility report for more clarification. Xylon Avenue and 42-1 Avenue Streetsca pe Improvements City staff has been working with Stantec on designing new streetscape improvements along Xylon Avenue and 42nd Avenue. The main focus of the streetscaping improvements is to enhance the appearance of the corridor and create a gateway to City Center. Such improvements include: A slight narrowing of Xylon Avenue to act as a traffic calming device • The incorporation of an LED digital reader board sign on the Public Plaza portion of the site The use of energy-efficient LED pedestrian -scale public lighting along Xylon Avenue Widening the sidewalk along the west side of Xylon Avenue to serve as a multi -modal function for both walkers and bikers Request for Action Page 3 August 18, 2014 • The incorporation of decorative fencing along Xylon Avenue and 42nd Avenue to help screen parked cars in the Hy -Vee parking lot • The use of tree trenches for the added landscaping along Xylon Avenue • The use of permanent canopies along Xylon Avenue to be used for the Farmer's Market. • Different colored concrete and/or brick pavers to add aesthetic value to crosswalks, sidewalks, etc. Stantec will be providing a more detailed overview of the plans and options but overall, staff needs direction from the City Council on the following: 1. Consensus on implementing the proposed new street section 2. Design aesthetic for the hard elements (lighting, gateway sign, arbors, fencing, etc.) a. Is the design/visual preference traditional and/or modern/contemporary or something else? 3. Selection of lighting option (assumed lighting will be LED with standard pole for maintenance purposes, ability to have electrical on pole and ability to hang banners, potted plants, etc) a. Acorn style or shepherd hook style L Decorative elements of preferred style can be brought back at future work session for Council review and selection 4. Direction on design for gateway sign a. Style b. Visual preference (i.e. traditional, contemporary, etc.) S. Direction on tree trenches a. Incorporate and if so, style (i.e. below ground and unseen or above ground and plantings) Staff has been holding weekly meetings with Ehlers, Stantec and Anderson Companies to work on incorporating some of the streetscaping elements into the Hy -Vee landscaping and lighting plans. The Planning Commission recommended approval of the landscaping and lighting plan with the understanding that changes may be made in order to accommodate some additions. LED Pedestrian -scale Lighting One of the key streetscape elements along Xylon Avenue will be the use of new pedestrian -scale lighting. Staff would like to utilize LED lights, as they are more energy efficient, last longer than traditional sodium vapor lights and can be programmable to give off specific amounts of light depending on the time of day. If amenable to the use of LED lighting, the Council needs to decide on the specific style of light to be used. In making this decision, the Council should keep in mind some factors such as aesthetic appeal of the light standard, maintenance ability of different styles of lights, and cost. To keep in line with the branding that these lights will give for the City, it should be noted that whatever light standard chosen for the Xylon Avenue streetscape improvements will most likely be used throughout the remainder of the city when it comes time to replace existing street light poles. Request for Action Page 4 August 18, 2014 Overhead Utilities Currently there are power lines that run along the east side of Xylon Avenue from 42nd to 45th Avenues. As part of the Xylon Avenue streetscaping project, these utility lines will be buried. Staff has been in contact with Xcel Energy to get a cost estimate for the burial of these lines and will forward these costs estimates to the City Council once they are obtained. Potential Costs and Funding The potential costs to the city for this project are broken down in the attached Ehlers Memo. It should be noted that are specific necessary costs to the city for improving the basic road reconstruction to meet the future needs of the city and redevelopment efforts for City Center. Added costs are associated with improvements to the streetscape designs and the City Plaza that would enhance the character of the area dramatically. It is anticipated that funding would come from utility funds, EDA funds, existing TIF funds and/or land sale proceeds, potential GO TIF bonds or any other funds the Council deems appropriate. Attachments • Liquor License Memo - Steve Sondrall Ehlers Cover Memorandum with Cost Estimates • Stantec Memorandum Re: Utility Improvements • Stantec Streetscape Design Steve Sondrall Liquor License Memo SONDMLL PERSELLIN&WOODS P.A., ATTORNEYS AT LAW 85253 EOINBROOK CROSSING, STE. 201 BROOKLYN PARK, MINNESOTA 55443-1968 TELEPHONE (763) 424-8811 ■ TELEFAX (763) 493-5193 www, SPWaw.com MEMORANDUM Date: August 14, 2014 To: Kirk McDonald From: Steve Sondrall Re: l Liquor License for City Center Development This memo is in follow up to my conversation with the City Clerk regarding the issuance of liquor licenses (both on -sale and off -sale) for the City Center development contemplated for the Hy -Vee project. It is my understanding the proposed development includes both a restaurant and off -sale liquor store adjacent to the Hy -Vee supermarket development. Currently, there are two reasons which make it problematic for the developer to apply for either an on -sale or off -sale license. First, there are no on -sale or off -sale licenses available to issue (see New Hope Code §§10-40(a)(1) and (2). The code provides for 6 on -sale licenses and 7 off -sale licenses. It is my understanding all licenses have been issued. Second, there is no building or buildings to which the licenses could be issued if available (see New Hope Code § 10-43 (6) and §10-48(c)). Basically, these problem can be resolved as part of our purchase agreement and development agreement with the developer. The City can contractually agree with the developer in conjunction with its plan approval for the project to amend our code to create licenses for the premises. Certainly, if the developer wanted to pay the fees for back ground checks in advance of the license issuance that would be acceptable. The only liability the city would have as part of this process is we could not change our minds about a liquor license use as part of the supermarket development. The developer would clearly have relied to its detriment on our contractual promise to allow for liquor as part of the development. A court would certainly find in favor of the developer and enforce against us our contractual promise to issue a license if all other conditions of our code have been met by the developer to obtain a license. Therefore, the Council should be in agreement and comfortable with a liquor use as part of the City Center development. Also, our recent denial of an off -sale license at 36th and Winnetka is distinguishable from the City Center development. Despite the tact we are allowing gas sales as part of the City Center development, said gas sales will be occurring on a different lot. Further, the liquor sales will not be in a building immediately adjacent to and sharing a common wall with the convenience store associated with the gas sales. Finally, the parking arrangement for the liquor sales can be designed to be completely separate from the convenience store with gas sales. Basically, I don't see any legal issues with our license denial at 36th and Winnetka and a proposal to allow liquor in the City Center development. P:1AtlorncylSASkl Client FilmQ City of New Hope199-11358 (K-Mart)1Memo K McDonald allowing liquor licenses for CC.doc Ehlers Memo with Cost Estimates To, Kirk McDonald City Manager Stacie Kvilvang & Jason Aarsvold Ehlers August 18, 2014 Streetscape Elements — Xylon and 45th Avenue Reconstruction The HyVee development will be the first phase of the City Center redevelopment efforts. As part of this development, the City will be reconstructing both Xylon and 45th Avenues to be completed contemporaneously with the opening of the new HyVee in the fall of 2015. Although the actual reconstruction of these streets may not commence until spring/summer of 2015, there are elements of the streetscape that need to be determined as soon as possible so HyVee can incorporate them into their site plans for bidding purposes this fall (i.e. lighting, fencing, landscaping, etc.). The guiding principle of the City Center vision was to have this area function and look like the heart of the community and have a "downtown" character. As such it envisioned capitalizing on the existing City facilities (City Hall, Pool, Park, etc.), addition of place making elements, signature landscapinglstreetscaping and an overall design that would reinforce a cohesive identity for the area. Staff and consultants have been meeting over the past month to develop concepts for the City Center Area that encapsulate the above referenced elements. Included in the City Council's packet are some renderings of how the newly reconstructed Xylon Avenue can incorporate the above referenced elements and lay the ground work for the future use and incorporation of the various elements in the rest of the City Center area. The packet includes: Existing and new streetscape sections of Xylon Avenue a. Maintaining existing ROW and utilizing it more efficiently by narrowing vehicle travel lanes. This will still permit safe traffic flow while creating space for the addition of enhanced pedestrian elements, streetscape, and public space where none existed before i. Doesn't take away from the developable area b. Increasing the distance from back of curb to the sidewalk from 6' to 10' to allow for additional planting area and adequate setback to enhance ability for survival of the landscaping c. Increasing the sidewalk width from 5' on either side to 10' on the west side and 6' on the east side to allow for multi -modal pedestrian traffic EHLERS LEADERS IN PUBLIC FINANCE wvwv.ohlers-inc.com Minnesota phone 651-697-8500 3060 Centre Pointe Drive Offices also in Wisconsin and Illinois fax 651-697-8555 Roseville, MN 55113-1122 tall free 800-552-1171 Kirk McDonald Streetscape Elements Xylon and 45th Avenue Reconstruction August 18 Page 2 2. Streetscape concept of Xylon incorporating the HyVee development, enhancements to the pool area, new City Hall and public plaza area a. Shows gateway entrance/place making feature that lets you know you have arrived at the City Center Area b. Provides streetscaping elements that continue to the north and draw you into the other spaces along Xylon Avenue c. Aligns HyVee and Wells Fargo parking lot entrances for increased vehicle and pedestrian safety d. Provides screening from the HyVee parking lot, while maintaining an urban edge e. Incorporates signature roadway elements and crossings at main entrance to HyVee f. Provides for the opportunity to close a portion of Xylon Avenue, creating an exciting and active public space for various events (such as the farmers market) g. Overall shows how Xylon Avenue can evolve into a linear place making element that ties the public facilities to the rest of the City Center Area and truly make it a public gathering area 3. Gateway elements at the corner of 42nd and Xylon Avenues a. Signature signage/arbors to define both sides of Xylon Avenue b. Monumentlreader board options c. Visuals to show how the lighting, fencing and signage elements tie into the streetscape 4. Detail on lighting options 5. Streetscape elements such as fencing, arbors and signage a. Shows how Xylon Avenue from main entrance to HyVee to the north can be closed to allow public events 6. Tree trench options Stantec has prepared two (2) preliminary estimates to reconstruct the road and utilities, both of which assume at a minimum the street section would be modified as noted in #1 (with the exception of additional landscaping and streetscape elements) and that existing power lines would be buried underground. The first option incorporates the above referenced streetscape and gateway elements along Xylon and 45th Avenues and the second option assumes the road would just be reconstructed without the streetscape and gateway elements (minimum to prepare the area for redevelopment). As noted in the chart on the following page, the estimated cost for option 1 is approximately $6.8 million and the cost for option 2 is approximately $3.2 million. To add just the streetscape element (not the corner "City Plaza and related elements") costs approximately Kirk McDonald Streetscape Elements Xylon and 45th Avenue Reconstruction August 18 Page 3 $2.5 million more. If you add in the City Plaza and gateway elements, this cost increases by a total of approximately $1 million (to total of approximately $3.56 million in increased costs). 5treetscape HyVee's responsible 2,548,732 50 50.00 $2,548,732.50 City Plaza for approximately $1,012,500.00 $0.00 $1,012,500.00 Sanitary Sewer $290,000 of this $400,000.00 $400,000.00 $0.00 Water Main $350,000.00 $350,000.00 $0.00 Storm Sewer $300,000.00 $300,000.00 $0.00 Total Street (includes sidewalk, driveway aprons) $1,750,000 $1,750,000.00 $0.00 Underground Power Lines $400,000 $400,000.00 $0.00 Total Project Costs (incl. Indirect, contingencies) $6,761,232.50 $3,200,000.00 $3,561,232.50 Note: Attached to this memo Is a more detailed breakdown of the costs for each element As noted in the redevelopment discussion we had with the Council on July 14, 2014, it is anticipated that the funding would come from utility funds, EDA fund, existing TIF funds and/or land sale proceeds, potential GO TIF bonds or any other funds the Council deems appropriate. Stantec will be providing a more detailed overview of the plans and options but overall, staff needs direction from the City Council on the following: 1. Consensus on implementing the proposed new street section 2. Design aesthetic for the hard elements (lighting, gateway sign, arbors, fencing, etc.) a. Is the design/visual preference traditional and/or modem/contemporary or something else 3. Selection of lighting option (assumed lighting will be LED with standard pole for maintenance purposes, ability to have electrical on pole and ability to hang banners) a. Acorn style or shepherd hook style i. Decorative elements of preferred style can be brought back at future work session for Council review and selection 4. Direction on design for gateway sign a. Style and visual preference (i.e. traditional, contemporary, etc.) 5. Direction on tree trenches a. Incorporate and if so, style (i.e. below ground and unseen or above ground and plantings) Staff will incorporate the comments from the Council and update the concept plans accordingly to bring back for review at a future work session or Council meeting. Please contact either of us at 651-697-8500 with any questions. Preliminary Cost Estimate Xylon Ave & 45th Ave Reconstruction and 5treetscaping 8/132014 Boulevard Walk/Pavers/Bollards $ 2,295,540 miiiiiagifi $ 513,000 $ 4 2,808,540 Streetscape City Plaza $ 1,012,500 $ $ 1,012,500 Sanitary5ewer $ 400,000 $ $ 400,000 ? Water Main $ 350,000 $ $ 350,DDD Storm Sewer $ 300,000 $ $ 300,000 ' Total Street (Includes sidewalk, driveway aprons) $ 1,750,000 $ $ 1,750,000 Underground Power lines $ 400,000 $ $ 400,000 Total Project Costs (incl indirect, contingencies) $ 6,508,040 $ 513,000 $ 7,021,040 Boulevard Walk/Pavers/Bollards N/A N/A 75u,uuu Contingency (10%) $ Trees w/storm trench 40 $1,500 $ 30,000 $ 30,000 $ 60,000 Ornamental Fencing N/A N/A $ 58,500 $ - $ 58,500 Lighting 32 $10,000 $ 160,000 $ 160,000 $ 320,000 Farmer Market Awnings 10 $50,000 $ 500,000 $ $ 500,000 Concrete Intersection N/A N/A $ 200,000 $ $ 200,000 Total Construction Cost Total Construction Cost $ 1,023,500 $ 215,000 $ 1,238,500 Contingency (10%) Contingency (10%) $ 102,350 $ 21,500 $ 123,850 Indirect (25%) Indirect (25%) $ 255,875 $ 53,750 $ 309,625 Total Cost Total Cost $ 1,381,725 $ 290,250 $ 1,671,975 Plaza Area 121x] Ft l i 75u,uuu Contingency (10%) $ 75,000 Boulevard Walk/Pavers/Bollards N/A R/:, $ 187,50D $ $ 187,500 Trees w/storm trench 20 $1,500 $ 30,000 $ $ 30,000 Ornamental Fencing N/A N/A $ 54,450 $ $ 54,450 Lighting 30 $10,000 $ 300,000 $ $ 300,000 Concrete Intersection N/A N/A $ 200,000 $ $ 200,000 Total Construction Cost $ 649,450 $ - $ 649,450 Contingency (10%) $ 64,945 $ $ 64,945 Indirect (25%) $ 162,363 $ $ 162,363 Total Cost $ B76,758 $ - $ 876,758 Plaza Area NJ.A NIA 75u,uuu Contingency (10%) $ 75,000 $ $ 75,000 Indirect (25%) $ 187,50D $ $ 187,500 Total Cost $ 1,012,500 $ - S 1,012,500 total Project coats ude appradmately %000 in coats for etscape along 42nd nue, which were not uded in the casts In Council Nemo oi6 M I Boulevard Walk/Pavers/Bollards N/A N/A 5 S 0 v Trees w/storm trench N/A N/A $ $ 30,000 $ 30,000 Ornamental Fencing N/A N/A $ 27,450 $ S. 27,450 Lighting N/A N/A $ - $ 120,000 $ 120,000 Total Construction Cost $ 27,450 $ 165,000 $ 192,450 Contingency (10%) $ 2,745 $ 16,500 $ 19,245 Indirect (25%) $ 6,863 $ 41,250 $ 48,113 Total Cost $ 37,058 $ 222,750 $ 259,808 total Project coats ude appradmately %000 in coats for etscape along 42nd nue, which were not uded in the casts In Council Nemo Stantec Memo: Utility Improvements August 14, 2014 File: 193802810 Stantec Consulting Services Inc. 2335 Highway 36 West St. Paul MN 55113 Tel: (651 ) 636-4600 'rax: (651) 636-1311 Attention: Jeff Sargent Community Development Director City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 Reference: Xylon Avenue & 45th Avenue Infrastructure Improvements Summary Dear Jeff, As requested, we are providing an update on the future utility and street improvements required on Xylon Avenue and 451h Avenue, between 42nd Avenue and Winnetka Avenue. Excerpts of the figure drawings from the utility improvement feasibility report are attached. UTILITY IMPROVEMENTS Sanitary Sewer: Existing Sanitary Sewer: 0 8 inch and 9 inch VCP (clay pipe) o not low enough or sized for future redevelopment o flows to 24 inch trunk sewer located approximately 0.5 miles to the east 0 10 inch PVC (plastic) pipe stubs were extended outside of Winnetka Avenue right of way on 45th Avenue in 2013 • Proposed Improvements: • replace existing sanitary sewer and install approximately 2,400 feet of 10 inch PVC o completing the lowering of the sanitary sewer, approximately 1,200 feet on Xylon Avenue, in the fall of 2014 • complete 45th Avenue upsizing and replacement in 2015 o Estimated Total Cost $400,000 Design with commun.,, August 14, 2014 Mr. Jeff Sargent Page 2 of 3 Reference: Xylon Avenue & 451h Avenue Infrastructure Improvements Summary Water Main: • Existing Water Main: 0 8 inch CIP (cast iron pipe) 0 connects loop of water main to trunk pipes on Winnetka Avenue and 42nd Avenue o no water main is located on 42nd Avenue between Xylon Avenue and Winnetka Avenue 0 12 inch DIP (ductile iron) pipe stubs were extended outside of Winnetka Avenue right of way on 45tH Avenue in 2013 • Proposed Improvements o replace existing water main and upsize with approximately 2,500 feet of 12 inch PVC (plastic) water main o improvements will provide appropriate fire flows (3,500 gpm) Estimated Total Cost $350,000 Storm Sewer: !Existing Storm Sewer: 0 45t6 Avenue Storm Sewer ■ smaller diameter pipes require upsizing and replacement ■ drains to the east to 451h Avenue Pond Xylon Avenue Storm Sewer - ■ north side of Xylon Avenue drains to the east to 45th Avenue Pond ■ south of City Hall, the storm sewer drains to the south to 42nd Avenue, and then to the east • Proposed Improvements c upsize approximately 660 feet to 42 inch RCP (concrete) pipe Design with community in mind August 14, 2014 Mr. Jeff Sargent Page 3 of 3 Reference: Xylon Avenue & 451h Avenue Infrastructure Improvements Summary o provide approximately 24 inch RCP stub on 45th Avenue for future Hy -Vee connection o replace storm sewer on Xylon Avenue as needed to replace failing pipe or structures, and to conform to the future street improvements o Estimated Total Cost = $300,000 STREET IMPROVEMENTS The existing street sections on Xylon Avenue and 45th Avenue consist of 45' wide streets, with 5' sidewalks. The current proposed street widths are 30' wide with a 10' sidewalk proposed on the west side of Xylon Avenue, and 6' wide sidewalk on the east side of Xylon Avenue. The proposed streets will include B618 or high back curb and gutter and will be designed and constructed to Minnesota State Aid (MSA) Standards, as both Xylon Avenue and 45th Avenue are designated at MSA roadways. If you have any questions or require further information please call me at (651)604-4808. Sincerely, STANTEC Go' Christopher W. Long, P.E. Attachments: Excerpts from the Feasibility Report for Utility Improvements - Figures 3,4,5 Cc: Bob Paschke, Bernie Weber, Shawn Markham, John Blasiak - New Hope; Stacie Kvilvang - Ehlers; Adam Martinson, Ann Dienhart, Jeremy Hauser, Brad Schleeter - Stantec. 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Streetsca a Enhancement Pro'ect 08.13.2014 Stantec COUNCIL Request for Action Originating Department Approved for Agenda Agenda Section Community Development Development & Planning August 25, 2014 Item No. By: Jeff Sargent, Director of CD By: Kirk McDonald, City Manager 8.1 Resolution Approving Preliminary and Final Plat for Hy -Vee Development and Resolution Approving Rezoning as Planned Unit Development and Development Stage Approval for "New Hope Hy -Vee" Development - 4200-4300 Xylon Avenue North, improvement project 893. Requested Action Staff requests the City Council approve a resolution approving Planning Case 14-09 for a preliminary and final plat approval, the rezoning of property from CC, City Center District to PUD, Planned Unit Development and a Site Plan Review for the construction of a Hy -Vee grocery store, convenience store and gas station located at 4300 Xylon Avenue, Anderson Companies, petitioner, improvement project 893. The City Attorney has prepared the attached resolutions. Policy and Past Practice The City Council has approved preliminary and final plats, rezoning of parcels and site plans in the past if the proposals comply with the requirements of the Zoning Code. Background The Hy -Vee proposal is the first development in the City Center area. The following describes the specific land use proposals in order for the development to occur: A. Preliminary/Final Plat The subject property currently consists of three lots. The first is 4200 Xylon Avenue, which was the location of the former Wells Fargo drive-through building. The second is 4300 Xylon Avenue, which was the location of the former Kmart Shopping Center building, and the third lot is a small lot owned by the EDA and was once used for overflow parking for Applebee's Restaurant. MoxroN BY sgy TO: 144015t /Cee - 113 AJ -0 1001-11V- ,if 0/ 1-1l7f &-d amend 42u. c" - dHJe,,r_L /lA&Uzi I:\RFA\COMM DEV1Plazuwl \Q & R - PC 14-09 Hy -Vee 8-25-14,doc nY&n — d4 -),? o&&)1 d Request for Action August 25, 2014 Page 2 Hy -Vee proposes to create four lots. Lot 1 will contain the 90,000 square foot grocery store. Lot 2 will be the site for a 4,500 square foot convenience store and gas station. Lot 3 will be platted for future development. The site plan indicates that this lot could accommodate a future 12,600 square foot retail/office/restaurant building. The fourth lot will be platted as an outlot and will be dedicated to the City as a City Plaza area. B. Rezoning The property is currently zoned CC, City Center District, which was newly created to establish performance standards consistent with the adopted New Hope City Center Vision. Throughout the proposal process, Hy -Vee indicated that along with the grocery store, they would like a gas station with a convenience store and a separate car wash. The City Center District supports the grocery store use, but specifically does not allow for a gas station use or a car wash use within the district. Staff negotiated with Hy -Vee to remove the car wash from the plans, but Hy -Vee indicated that the gas station was an integral component to their business model because of a "Fuel Savers Program" that they offer to their customers. Hy -Vee stated that without the gas station, they would likely not be able to locate in New Hope. After much consideration and discussion, the City Council agreed to show their support of the gas station use by approving a resolution of support at the June 23, 2014 City Council meeting. The specific need of the PUD zoning district is to allow the convenience store/gas station use and still retain the specific design standards as outlined in the CC, City Center District. The PUD district will also give needed flexibility to the Zoning Code in relation to setbacks, parking arrangements, signage, and design elements throughout the development. A memorandum that justifies the rezoning of the property to PUD has been submitted by City Planner Al Brixius in response to concerns from a councilmember. It should be noted that Section 4-34 of the New Hope zoning code outlines the PUD process which includes concept stage, development stage, and final stage. The applicant submitted a conceptual redevelopment plan in response to the city's request for proposal. Through City Council review and negotiations, the Hy -Vee concept plan was selected to proceed to development stage. With the this application, the city is reviewing the development stage PUD, which includes all the site planning, grading, utilities and preliminary/final plat. This stage is a review of all the various design details and recommendations that must be resolved for the final stage. The final stage will include the final development plans, the final plat, all association documents, easements and a development agreement that will be recorded with the final plat. The final stage does not include planning commission review, rather the plan submissions are checked by staff against approval conditions and code standards and are approved with a development agreement and PUD agreement by the City Council. C. Site Plan Review Although the property will be rezoned to PUD, the Site Plan review will utilize the CC, City Center District as the basis for regulating all site planning standards. It should be noted that the PUD District allows for flexibility within the code in relation to setbacks, densities, and design elements throughout the development. Request for Action August 25, 2014 Page 3 During the planning process, staff indicated that the nine parking stalls located in front of the building would have to be removed. Condition. 51. for the Planned Unit Development Rezoning and Development Stage Approval states: The applicant must remove the nine parking stalls adjacent to the south side of the building and located in front of the restaurant entrance. West Metro Fire and Rescue Department will designate the area in front of the restaurant as afire lane to ensure adequate access to the restaurant in case of afire. Since the Planning Commission meeting, staff has had conversations with Anderson Companies about this condition and has further discussed the matter with West Metro Fire and Rescue (WMFRD). Fire Chief Larson indicated WMFRD would be willing to work with Anderson Companies and Hy -Vee to see if a compromise could be worked out to allow the nine parking stalls. Chief Larson will be attend the City Council meeting if further clarification is needed. Recommendation The proposed approvals include a resolution supporting the rezoning of the property from CC, City Center District to PUD, Planned Unit Development. Once these approvals are complete, and once the City has drafted a Development Agreement, staff will bring forward the proposed Ordinance for the zoning amendment to the September 8 City Council meeting. The Planning Commission considered the preliminary and final plat, rezoning and site plan review request at its August b, 2014, meeting and recommended approval with a 7-0 vote, as the proposal meets the requirements of the PUD District and Chapter 13 of the New Hope city code. The recommended approval was given with the following conditions of approval: PreliminarylFinal Plat 1. Hennepin County approval of the preliminary and final plat. 2. The City Engineer approval of the width and location of all drainage and utility easements. 3. The preliminary and final plat provides a drainage and utility easement over the underground storm water retention system. The applicant shall provide for city approval a maintenance plan for the long term maintenance and upkeep of the underground storm water retention system. 4. The site grading, drainage and utility plans are subject to review and approval by the City Engineer. Planned Unit Development Rezoning and Development Stage Approval: 1. The City approves the land uses identified in the site plan. Any additional future land uses must be allowed under the CC, City Center Zoning District. 2. The City approves the building setbacks as shown in the approved site plan. Request for Action August 25, 2014 Page 4 3. Site Access: The applicant shall address the following access issues in a revised site plan or other document as part of the final stage submission for city review and approval: a. Submission of cross access easements between the three lots in the subdivision. b. The right turn lane design from 42nd Avenue shall be subject to the review and approval of Hennepin County and the City Engineer. c. The applicant must provide a cross easement in favor of the city to allow the extension of private streets through the properties to the east. This must preserve the opportunity to extend the main driveway at the front of the grocery store east to Winnetka Avenue. d. The site plan shall be revised to improve semi -truck access and egress through Lot 2, utilizing recommendations as outlined in the Northwest Associated Consultants staff report. 4. The city approves the curb cut locations and widths as shown on the site plan. 5. Parking: The applicant shall address the following parking issues through a revised site plan or other documents: a. Applicant must provide a comprehensive snow plowing, snow storage and/or snow removal plan for the entire PUD area to qualify for the reduced parking shall dimensions. b. Drive aisle serving 90 degree parking stalls must be a minimum of 24 feet in width. c. The city approves the parking lot lengths abutting public streets as shown on the site plan. d. All parking lots throughout the PUD shall maintain a minimum 10 -foot setback from all street rights-of-way. e. Parking lots abutting public streets shall be screened with landscaping approved by the city. The city will work with the applicant to incorporate streetscape elements from Xylon Avenue that may include such features such as wrought iron fencing along the Xylon Avenue and 42nd Avenue rights-of-way. Corresponding easements will be negotiated for the placement of these elements. f. The applicant must remove the nine parking stalls adjacent to the south side of the building and located in front of the restaurant entrance. West :Metro Fire and Rescue Department will designate the area in front of the restaurant as a fire lane to ensure adequate access to the restaurant in case of a fire. b. Bicycle parking shall be provided on Lot 2. The convenience store entry and sidewalk detail must show the location and number of bicycle spaces. 7. Gas Sales: The plan set addressing the gas sale operation must meet the following conditions: a. The fuel pumps and canopy must be shifted to the northeast of the current location to improve truck access and egress through Lot 2. b. The facade of the gas canopy is limited to 3 feet in height. c. All canopy lighting must be recessed into the canopy. No light source may extend below the canopy ceiling. Request for Action August 25, 2014 Page 5 8. Outdoor sales displays: The applicant shall revise the site plan to illustrate locations and sizes of anticipated outdoor sales displays. Said areas must meet city zoning standards. Sales displays shall be limited to approved locations. 9. The lighting plan and landscape plan shall be approved with the understanding that changes to both plans may occur given the final approval of the Xylon Avenue streetscape design. 10. Additional lighting shall be provided along the internal sidewalk to provide a minimum 2.0 foot candle light level. 11. Landscape plans: The landscape plans must be revised to address the following: a. Landscaping along both 42nd Avenue and Xylon Avenue must be coordinated with the city streetscape designs. A wrought iron/decorative metal fence may be an additional element included in these plans that would require easements from the applicant. b. The L2 and L3 landscape details must identify the plant species and numbers by location. c. The landscape plan must provide additional landscape screening along the drive-through service lane on Lot 2. 12. Building Design: The city approves the building designs based on the building elevations with the following flexibilities and conditions: a. The city approves the side wall window coverage of less than 20 percent based on the approved building elevations. b. The applicant provides details for screening of rooftop equipment from adjoining properties and public streets. c. In addition to screening, the rooftop equipment shall be painted to match the building. d. The applicant shall address the back of the convenience store facing Xylon Avenue by screening the drive service lane, increasing the parapet height to match the front fagade, consider tenant wall signs on the west side of the building. 13. Sign Plan: The city approves the comprehensive sign plan as shown on the building elevation, canopy elevation and the monument sign details as part of the PUD with the following conditions: a. The city approves the wall sign, locations, numbers and sizes as illustrated on the building elevations for the grocery store. b. The city approves the wall sign, locations, numbers and sizes as illustrated on the building elevations for the convenience store. c. The city approves flexibility to allow wall signs on the west side of the convenience store. d. The city approves the flexibility for the number and location of the gas canopy signs as illustrated on the canopy elevations. Request for Action August 25, 2014 Page 6 e. The applicant must provide additional information on the size and location of the proposed monument sign to ensure the sign can be located to meet the required setbacks, will not obstruct traffic sight lines and will be coordinated with the streetscape landscaping. 14. As this PUD proceeds to Final Stage, the applicant will be required to provide a final plat and final development plans that incorporate the conditions of approval tied to the development stage. Additionally, the applicant must provide for city review and approval all cross access easements, association documents that outline the maintenance and shared costs for shard private streets, utilities and storm water facilities. The city will also require development and PUD agreements that will be recorded against the property along with the final plat. All elements related to the Final Stage PUD, and all required easements and documents shall be submitted and approved prior to the issuance of a building permit. 15. The applicant will comply with all requirements as outlined in the West Metro Fire and Rescue memorandum dated July 30, 2014. 16. The applicant will comply with all requirements as outline in the Stantec memorandum dated July 31, 2014. Attachments • Resolutions • Final Plat • Al Brixius Memo related to the PUD process (8/20/2014) • Planning Commission Minutes of August 6, 2014 RESOLUTION NO. 2014-113 RESOLUTION APPROVING PRELIMINARY AND FINAL PLAT FOR HY-VEE DEVELOPMENT — 4200-4300 XYLON AVENUE NORTH (New Hope Planning Case 14-09) BE IT RESOLVED by the City Council of the City of New Hope as follows: WHEREAS, HY-VEE, INC., an Iowa corporation and a foreign corporation under the laws of the State of Minnesota (hereafter Developer) has submitted development plans for the construction of a retail grocery store, convenience store/gas station and future retail/office building to be known as "New Hope Hy -Vee" located at 4200-4300 Xylon Avenue North (hereafter Project) in the City of New Hope, and WHEREAS, Developer has petitioned the City as part ofNew Hope Planning Case 14-09 for preliminary and final plat approval in order to combine the three parcels of real property located at 4200-4300 Xylon Avenue North in the City of New Hope ("Property"), and create four newly platted lots to facilitate the construction of the Project, and WHEREAS, the preliminary and final plat of "New Hope Hy -Vee" has been submitted to the City in the manner required for platting of land under the New Hope City Code and under Chapter 462 of the Minnesota Statutes and all proceedings have been duly had thereunder, and WHEREAS, the Property is currently zoned CC, City Center District but the City intends to amend the City Ordinance zoning code and rezone the Property as PUD, Planned Unit Development District, and WHEREAS, upon the Property being rezoned as a PUD, Planned Unit Development District, said plat will be in all respects consistent with the City's Comprehensive PIan, zoning and platting code and the regulations and laws of the State of Minnesota; and WHEREAS, the PIanning Commission held a public hearing and considered the matter at its meeting on August 6, 2014; and WHEREAS, the Planning Commission, after a complete review of the issues involved, recommended the City Council approve the request with conditions. WHEREAS, the City Council has considered Planning Case 14-09 for the Project at its meeting of August 25, 2014. —1— NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of New Hope that the preliminary plat is hereby approved and final plat request for "New Hope Hy -Vee" as identified in New Hope Planning Case 14-09 shall be approved subject to the following conditions: 1. The City rezoning the Property from CC, City Center District to PUD, Planned Unit Development District which will allow for convenience store/gas station use. 2. The plat and title are subject to review by the City Attorney and shall be in compliance with all conditions for the final plat required therein. Easement, drainage and utility plan review by the City Engineer and compliance with all conditions for the final plat required therein, including approval of the width and location of all drainage and utility easements. 4. The preliminary and final plat shall provide a drainagc and utility casement ovcr the underground storm water retention system. Developer shall provide for City approval of a maintenance plan for the long term maintenance and upkeep of the underground storm water retention, system. 5. The site grading, drainage and utility plans are subject to review and approval by the City Engineer. 6. Hennepin County's approval of the preliminary and final plat. 7. Compliance with all requirements set forth in Resolution No. 2014-111 or as subsequently amended by motion, approving the rezoning to Planned Unit Development District and Development Stage approval for the Project which shall be part of this resolution by the herein reference and which shall be on file for examination in the office of the City CIerk. S. Submission of a CAD copy of the plat. Dated the 25 day of August, 2014. ' Kathi Heniken, Mayor Attest: k4—a 642ic-- Valerie Leone, City Clerk PAAttomey%As11 Client Filesl2 City of New Hope199-15075 (Hy -Vee Plat)IResolution approving final plat. doo —2— RESOLUTION NO. 2014-114 RESOLUTION APPROVING REZONING AS PLANNED UNIT DEVELOPMENT AND DEVELOPMENT STAGE APPROVAL FOR "NEW HOPE HY-VEE" DEVELOPMENT — 4200-4300 XYLON AVENUE NORTH (New Hope Planning Case 14-09) BE IT RESOLVED by the City Council of the City of New Hope as follows: WHEREAS, Hy -Vee, Inc., an Iowa corporation, and Anderson Companies 0 ointly referred to herein as the "Developer") has submitted development plans for the construction of a retail grocery store, convenience store/gas station and future retail/office building to be known as "New Hope Hy -Vee" located at 4200-4300 Xylon Avenue North, also referred to as "City Center" redevelopment site (the "Property") in the City of New Hope (the "Project"), and WHEREAS, Developer has petitioned the City as part ofNew Hope Planning Case 14-09 for (1) approval of rezoning of the Property from CC, City Center District to PUD, Planned Unit Development; and (2) Site Plan and Development Stage approval, and WHEREAS, the City community development staff and City Planner have studied the matter, made reports and provided other information to the Planning Commission and City Council, and WHEREAS, in examination and selection of Developer's concept plan, the City community development staff and City Planner were seeking the following components pursuant to Section 4-34 of the City Code regarding Administration -PUD Planned Unit Development: A master development plan for the entire Property with an integrated design among the newly created lots, integration with future redevelopment with lots to the east, and coordination with the City streetscape efforts along 42nd Avenue and Xylon Avenue. Developer's concept plans have accomplished this master plan objective. 2. The PUD is intended to introduce flexibility of site design and architecture that promotes and fulfills the goals outlined in the Comprehensive Plan. With the conclusion of the City Center Vision Study, the City adopted Comprehensive PIan amendments that identified the following goals for the Property: a. The land use plan was amended to identify the Property as mixed use. The land use description of mixed use of the Comprehensive Plan (page 217) states "...within the City Center area, the promotion of commercial land —1-- uses is the City's first priority. However, the City may also consider the introduction of complementary, alternative land uses that will enhance the areas and provide support for commercial land use ..." In selecting Developer's concept, the City Council chose a commercial land use option over the mixed use predominantly residential plans. This is consistent with land use goals of the Comprehensive Plan. b. The general intent of the redevelopment of the Property is to strengthen its role as a vibrant year round destination that includes retail, commercial, and residential uses (page 218 of the Comprehensive Plan). In selecting Developer's concept, the City is establishing a retail anchor for the Property that will provide a year round customer draw to the area. C. The City Center will be a hub of commercial activity in New Hope, offering a unique mix of retail, commercial, service, food, office, and recreational needs (page 218 of the Comprehensive Plan). Developer's concept provides the following goods and services: grocery, restaurant, pharmacy, liquor, gas sales, and coffee shop. WHEREAS, in selecting the Developer's redevelopment concept plan, the City found that it achieved the aforementioned Comprehensive Plan goals. The PUD zoning is the implementation tool to facilitate the proposed concept plan, and WHEREAS, the PUD is intended to be characterized by central management, integrated planning and architecture, joint and common use and maintenance of parking, open space, and other similar facilities. Developer's concept is reliant on shared access, parking, sidewalks, utilities and stormwater management. In this light, the concept plan is consistent with the intent and purpose of the PUD Zoning District, and WHEREAS, the PUD process allows deviation from the strict provisions of the New Hope Zoning Code related to setbacks, heights, lot area, width depth, yards, etc. In examining Developer's concept plan, it was recognized that the proposed uses and the design elements did not fully comply with the City Center District land use and performance standards as follows: I . The gas sales and outdoor sales display are uses not allowed in the City Center District. Through a PUD Zoning District, Section 4-24, all permitted, accessory or conditional uses from any of the City's other zoning districts may be permitted through the PUD District. 2. Developer's site design requested design flexibilities for the following items: a. Exception to the City Center District street side setbacks (build to range). b. Exception to the length of parking lots abutting a public street. —2— C. Exception to the curb cut width. d. Shared parking and access. e. Comprehensive sign plan flexibility. WHEREAS, in zoning the site to PUD District, the City is creating a new zoning district that is unique to this master pian with regard to range of uses and design performance standards. The PUD District is one of the City's zoning tools available to the City in implementing its Comprehensive Plan goals and policies, and WHEREAS, in review of the proposed redevelopment plan and requested rezoning against the recommendations of the Comprehensive Plan, it is found to be consistent as follows: 1. Priority to the promotion of commercial land uses. 2. Create a year round destination for the City Center. 3. Mix of retail land uses. 4. Application of the New Hope Design Guidelines. 5. Pedestrian, bicycle, and transit opportunities. the proposed PUD rezoning is in keeping with the Comprehensive Plan and the zoning opportunities offered within the New Hope Zoning Ordinance. WHEREAS, based on the City Staff Planning report dated July 25, 2014, this Resolution incorporates the findings set forth therein, and WHEREAS, the Property is currently zoned CC, City Center District but the City intends to amend the City Ordinance zoning code and rezone the Property as PUD, Planned Unit Development District, and WHEREAS, upon the Property being rezoned as a PUD, Planned Unit Development District, said application for PUD, Planning Unit Development and development stage approval will be in all respects consistent with the City's Comprehensive Plan, zoning and platting code and the regulations and laws of the State of Minnesota, and WHEREAS, the Planning Commission held a public hearing and considered Planning Case 14-09 for this Project at its meeting on August 6, 2014, and WHEREAS, the City Council has considered Planning Case 14-09 for the Project at its meeting of August 25, 2014. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of New Hope that rezoning to Planned Unit Development district and development stage approval for the Project identified in Planning Case 14-09 and known as the "New Hope Hy -Vee" development are hereby approved subject to the following conditions: —3— I . The City rezoning the Property from CC, City Center District to PUD, Planned Unit Development District which will allow for convenience store/gas station use but all fixture uses of the Property shall be limited to the uses permitted in the CC, City Center District. 2. Developer shall enter into a recordable Site Development PUD Agreement (hereafter Agreement) prepared by the City Attorney which shall set forth all public site improvements and Developer responsibilities. The Agreement shall run with the land and shall bind all successors in title to the Property and Project. 3. The City approves the land uses identified in the Site Plan. Any additional future land uses must be allowed under the CC, City Center Zoning District. 4. The City approves the building setbacks as shown in the approved Site Plan. 5. Site Access: Developer shall address the following access issues in a revised Site Plan or other document as part of the final stage submission for City review and approval: a. Submission of cross access easements between the three lots in the subdivision. b. The right turn lane design from 42nd Avenue shall be subject to the review and approval of Hennepin County and the City Engineer. C. Developer must provide a cross easement in favor of the City to allow the extension of private streets through the properties to the east. This must preserve the opportunity to extend the main driveway at the front of the grocery store east to Winnetka Avenue. I The Site Plan shall be revised to improve semi -truck access and egress through Lot 2, utilizing recommendations as outlined in the Northwest Associated Consultants staff report. 6. The City approves the curb cut locations and widths as shown on the site plan. 7. Parking: Developer shall address the following parking issues through a revised site plan or other documents: —4— a. Developer must provide a comprehensive snow plowing, snow storage and/or snow removal plan for the entire PUD area to qualify for the reduced parking stall dimensions. b. Drive aisle serving 90 degree parking stalls must be a minimum of 24 feet in width. C. The City approves the parking lot lengths abutting public streets as shown on the Site Plan. d. All parking lots throughout the PUD shall maintain a minimum 10 -foot setback from all street rights-of-way. e. Parking lots abutting public streets shall be screened with landscaping approved by the City. The City will work with Developer to incorporate streetscape elements from Xylon Avenue North that may include such features such as wrought iron fencing along the Xylon Avenue North and 42nd Avenue rights-of-way. Corresponding easements will be negotiated for the placement of these elements. 8. Bicycle parking shall be provided on the property to be replatted as Lot 2. The convenience store entry and sidewalk detail must show the location and number of bicycle spaces. 9. Gas Sales: The Site Plan addressing the gas We operation must meet the following conditions: a. The fuel pumps and canopy must be shifted to the northeast of the current location to improve truck access and egress through Lot 2. b. The fagade of the gas canopy is limited to 3 feet in height. C. All canopy lighting must be recessed into the canopy. No light source may extend below the canopy ceiling. 10. Outdoor sales displays: Developer shall revise the Site Plan to illustrate locations and sizes of anticipated outdoor sales displays. Said areas must meet City zoning standards. Sales displays shall be limited to approved locations. 11. The lighting plan and landscape plan shall be approved with the understanding that changes to both plans may occur given the final approval of the Xylon Avenue streetscape design. —5— 12. Additional lighting shall be provided along the internal sidewalk to provide a minimum 2.0 foot candle light level. 13. Landscape plans: The landscape plans must be revised to address the following: a. Landscaping along both 42nd Avenue and Xylon Avenue must be coordinated with the city streetscape designs. A wrought iron/decorative metal fence may be an additional element included in these plans that would require easements from Developer. b. The L2 and L3 landscape details must identify the plant species and numbers by location. C. The landscape plan must provide additional landscape screening along the drive-through service lane on Lot 2. 14. Building Design: The City approves the building designs based on the building elevations with the following flexibilities and conditions: a. The City approves the side wall window coverage of less than 20 percent based on the approved building elevations. b. Developer provides details for screening of rooftop equipment from adjoining properties and public streets. C. In addition to screening, the rooftop equipment shall be painted to match the building. d. Developer shall address the back of the convenience store facing Xylon Avenue by screening the drive service lane, increasing the parapet height to match the front fagade, consider tenant wall signs on the west side of the building. 15. Sign Plan: The City agrees to take action on the comprehensive sign plan at a future date. 16. As this PUD proceeds to Final Stage, Developer will be required to provide a final plat and final development plans that incorporate the conditions of approval tied to the development stage. Additionally, Developer must provide for City review and approval all cross access easements, association documents that outline the maintenance and shared costs for shared private streets, utilities and storm water facilities. The City will also require development and PUD agreements that will be recorded against the property along with the final plat. All elements related to the Final Stage PUD, and all required easements and documents shall be submitted and approved prior to the issuance of a building permit. 17. Developer will comply with all requirements as outlined in the West Metro Fire and Rescue memorandum dated August 26, 2014. 18. Developer will comply with all requirements as outline in the City Engineer's memorandum dated July 31, 2014. Dated the 25th day of August, 2014. J Attest: Valerie Leone, City Clerk NO Kathi Hemken, Mayor 1.. r1 rfe1 •iY.J.. August 26, 2014 ..: M Re: Revised 1Iy Vee plan review for a P.U.D. Application dated 07/11/2014. West Metro Fire -Rescue conducted a plan review on plans for new buildings) at G' F` .: T the above mentioned address, which will. be located at 8200 42"d Ave North, New Mr -JR -0 Nope. The following iterns that are listed below are vithcr comments or requirements per West Metro Fire -Rescue Districts Policies, .City Ordinances and C.)lS FIS Cµ -R Cm �:L T the 2007 Minnesota Fire Code and N1dPA Standards: I . Street C2: 5:rvixQ the G'iM, of AAef f6i:dwf-�ng ovff itwas Fieted EheA theF,.:. T-C:'-Vstad sopafat E aced. Otte it 2. Sheet C5: The hydrant(s) located on the back side (Northside) of the building, drive are too far away from the fire department connection. Per West Metro Fire - Rescue District policy at minimum one hydrant shall be located within 100 feet of the fire department connection. At mininiurn one hydrant shall be moved closer to the fire department connection. 3. Sheet (7Lan4 1.1.01: '11here are a few hydrants that will be obstructed by bushes at the north end of the side behind the fly Vee building and'the south side of the Ily Vee building close to main door. At minimum at 5 toot clearance shall be Ne gbho►s around a hydrant at all times. S rrving Nergbbors 4. Sheet CC6.0: It appears that the patio seating area has over 50 people. Currently there is only one exit. You will be required to add another exit gate in the patio area. 5. Provide two fire department lock boxes one at the front main entrance, and the other box back b} the fire department connection, If there is any question you can contact me at (763) 230-7006 S cen.ly, '- $25 [ i ion \jtL N. �A- N,v. llopz, AIN 55429 Shelby Wulf � Voic,: 76 3.2' Dalt) Deputy Fire Marshal Fax 763-23VT9 wv. w.westr ietrof re.com F NEW HOPE HY- VEE wow A11 seRsays ar 3esE f1�IR rM1 ,.,,,,.tr,4 w. a.e� .f M. 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M°0•""""°'•'° ` 15a°rYs,t– 1` l NOQ°fTOJ"M' i7B.�t kIr f ` I l`1+ --------— — — — — — — — — — r ;' ue •e•xmiw��ur. I � f � af�s :a Westwood PrefaWwal Savlm Ing s 11 of 2-1. j 7 r' ;14 ©fCONSUL #riTANTS, 3h+iC. 4800 Olson Memorial Highway, Suite 202, Golden Valley, MN 55422 Telephone: 763.231.2555 Facsimile: 763.231.2581 plan ners(gvnacplanning.com MEMORANDUM TO: Jeff Sargent FROM: Alan Brixius DATE: August 20, 2014 RE: New Hope — Hy -Vee PUD FILE NO: 131.01 — 14.05 Council Member Stauner has requested additional justification for the PUD zoning. The following memorandum attempts to provide the additional support for the Planning Commission recommendation. Section 4-34, Administration -PUD Planned Unit Development. The intent and purpose of this section is as follows: a) Purpose and intent. The purpose of this section of the zoning code is to provide for the grouping of lots or buildings for development as an integrated, coordinated unit as opposed to traditional parcel by parcel, piecemeal, sporadic and unplanned approach to development. This section is intended to introduce flexibility of site design and architecture for the conservation of land and open space through clustering of lots, buildings and activities, which promote the goals outlined in the comprehensive plan or serve another public purpose. it is further intended that planned unit developments are to be characterized by central management, integrated planning and architecture, joint and common use and maintenance of parking, open space and other similar facilities, and harmonious selection and efficient distribution of uses. The pud process, by allowing deviation from the strict provisions of this Code related to setbacks, heights, lot area, width and depth, yards, etc., by either conditional use permit or rezoning to a PUD district, is intended to encourage: (1) A development pattern in harmony with the objectives of the comprehensive plan. (PUD is not intended as a means to vary applicable planning and zoning principles.) (2) Innovations in development to the end that the growing demands for all styles of economic expansion may be met by greater variety in type, design, and siting of structures and by the conservation and more efficient use of land in such developments. (3) The preservation and enhancement of desirable site characteristics such as existing vegetation, natural topography and geologic features and the prevention of soil erosion. (4) A creative use of land and related physical development which allows a phased and orderly transition of varying land uses in close proximity to each other. (5) An efficient use of land resulting in smaller networks of utilities and streets thereby lowering development costs and public investments. (6) Promotion of a desirable and creative environment that might be prevented through the strict application on zoning and subdivision regulations of the city. In examination and selection of the Hy -Vee Andersen concept plan, the City was seeking the following components: 1. A master development plan for the entire redevelopment site with an integrated design among the newly created lots, integration with future redevelopment with lots to the east, and coordination with the City streetscape efforts along 42nd Avenue and Xylon Avenue. The Hy -Vee Andersen concept plans have accomplished this master plan objective. 2. The PUD is intended to introduce flexibility of site design and architecture that promotes and fulfills the goals outlined in the Comprehensive Plan. With the conclusion of the City Center Vision Study, the City adopted Comprehensive Plan amendments that identified the following goals for the City Center: a. The land use plan was amended to identify the redevelopment site as mixed use. The land use description of mixed use of the Comprehensive Plan (page 217) states "...within the City Center area, the promotion of commercial land uses is the City's first priority. However, the City may also consider the introduction of complementary, alternative land uses that will enhance the areas and provide support for commercial land use..." In selecting the Hy -Vee Andersen concept, the City Council chose a commercial land use option over the mixed use predominantly residential plans. This is consistent with land use goals of the Comprehensive Plan. b. The general intent of the redevelopment of the City Center is to strengthen its role as a vibrant year round destination that includes retail, commercial, and residential uses (page 218 of the Comprehensive Plan). In selecting the Hy -Vee Andersen concept, the City is establishing a retail anchor for the larger City Center area that will provide a year round customer draw to the area. C. The City Center will be a nub of commercial activity in New Hope, offering a unique mix of retail, commercial, service, food, office, and recreational needs (page 218 of the Comprehensive Plan). The Hy -Vee Anderson concept provides the following goods and services: grocery, restaurant, pharmacy, liquor, gas sales, and coffee shop. In selecting the Hy -Vee Andersen redevelopment concept plan, the City found that it achieved the aforementioned Comprehensive Plan goals. The PUD zoning is the implementation tool to facilitate the proposed concept plan. 3. The PUD is intended to be characterized by central management, integrated planning and architecture, joint and common use and maintenance of parking, open space, and other similar facilities. The Hy -Vee Andersen concept is reliant on shared access, parking, sidewalks, utilities and stormwater management. In 0 this light, the concept plan is consistent with the intent and purpose of the PUD Zoning District. 4. The PUD process allows deviation from the strict provisions of the New Hope Zoning Code related to setbacks, heights, lot area, width depth, yards, etc. In examining the Hy -Vee Andersen concept plan, it was recognized that the proposed uses and the design elements did not fully comply with the City Center District land use and performance standards as follows: a. The gas sales and outdoor sales display are uses not allowed in the City Center District. Through a PUD Zoning District, Section 4-24, all permitted, accessory or conditional uses from any of the City's other zoning districts may be permitted through the PUD District. b. The Hy -Vee Andersen site design requested design flexibilities for the following items: Exception to the City Center District street side setbacks (build to range). Exception to the length of parking lots abutting a public street. • Exception to the curb cut width. • Shared parking and access. Comprehensive sign plan flexibility. In zoning the site to PUD District, the City is creating a new zoning district that is unique to this master plan with regard to range of uses and design performance standards. The PUD District is one of the City's zoning tools available to the City in implementing its Comprehensive Plan goals and policies. In considering the rezoning, Section 4-32 offers the following criteria to be considered: (1) The character of the area has changed to warrant consideration of an amendment. (2) The proposed action has been considered in relation to the specific policies and provisions of and has been found to be consistent with the official city comprehensive plan. In review of the proposed redevelopment plan and requested rezoning against the recommendations of the Comprehensive Plan, it is found to be consistent. 1. Priority to the promotion of commercial land uses. 2. Create a year round destination for the City Center. 3. Mix of retail land uses. 4. Application of the New Hope Design Guidelines. 5. Pedestrian, bicycle, and transit opportunities. The City's RFP process attracted a range of redevelopment proposals from which the Hy -Vee Andersen concept plan was selected as the preferred development option. This concept plan does not fit the current City Center District and as such, the rezoning is being pursued. The PUD Zoning District is the zoning mechanism that will implement the Council's choice of development options. We hope that these additional findings demonstrate that the proposed PUD rezoning is in keeping with the Comprehensive Plan and the zoning opportunities offered within the New Hope Zoning Ordinance. Signage — Hy -Vee Grocery Store. Within the City's commercial zoning districts, the total of all signs on a lot shall not exceed 15% total building facade fronting not more than two public streets. The proposed signage on the face of the grocery store consists of six signs with a total area of 623 square feet or 6.5% of the building face. The west building facade is the only side fronting on a public right-of-way. This facade has approximately 6,125 square feet of wall face. The total wall signage applied to this facade is 10.1 %, still less than the commercial district standard. The applicant is not requesting wall signs larger than what is allowed in the district, rather they wish to distribute this sign area to six signs to identify the various components of the building. Signage —Back of Convenience Store. The City Center District's focus is to establish store fronts along the street. The signs fronting on Xylon Avenue offer an opportunity for business identification for east bound traffic on 42nd Avenue. This sign treatment has been previously offered to Village on Quebec Avenue. This was a staff recommendation. Council may exclude this condition from any Council action. Signage — Gas Canopy. With regarding to the gas canopy signs, they exceed the City standards of 16 square feet. The Council may wish to require the applicant to reduce the canopy signs to the 16 square foot standard. 4 CITY OF NEW HOPE 4401 XYLON AVENUE NORTH NEW HOPE, MINNESOTA 55428 PLANNING COMMISSION MINUTES August 6, 2014 City Hall, 7:00 p.m. CALL TO ORDER The New Hope Planning Commission met in regular session pursuant to due call and notice thereof; Chair Svendsen called the meeting to order at 7:00 p.m. ROLL CALL Present: Jim Brinkman, Wade English, Greg Gehring, Roger Landy, Christopher McKenzie, Tom Schmidt, Steve Svendsen Absent: Jeff Houle, Ranjan Nirgude Also Present, Jeff Sargent, Director of Community Development; Stacy Woods, Assistant City Attorney; Alan Brixius, Planning Consultant; Chris Long, City Engineer; Debra Somers, Recording Secretary There was no Consent Business on the agenda. PIBLIC Hj14-09 Chair Svendsen introduced Item 4.1, Planning Case 14-09, request for a Planning CPreliminary and Final Plat, rezoning of certain property from CC, City Center Item 4.1 District to Planned Unit Development (PUD), and a Site Plan Review, to allow the construction of a retail grocery store, convenience store/gas station, and future retail/office building, known as Hy -Vee, Inc., 4300 Xylon Avenue North, Anderson Companies, Inc., petitioner Director Sargent stated that the applicant was requesting a Preliminary/Final Plat. The applicant will be creating three lots and an outlot during the platting process as follows: s Lot 1: 90,000 sq. ft. for the grocery store • Lot 2: 4,500 sq. ft. for the gas station/convenience store • Lot 3: Future office/retail building site • Outlot: City Plaza Director Sargent indicated the applicant proposed to rezone the parcels from City Center (CC), City Center District to a PUD in order to have flexibility in site design and layout. The applicant is also requesting a Site Plan Review which is required when modifications, additions or enlargements to a building occur. Director Sargent reviewed some background information. He informed the Commissioners that the property is the City Center and the visioning process began in early 2010. The New Hope City Center vision was adopted on June 13, 2011. Kmart Shopping Center was purchased by the Economic Development Authority (EDA) in July 2012, and the City Center Zoning District was created in November 2012. Director Sargent noted that Kmart and the Wells Fargo Bank drive-through buildings were demolished in 2013. Director Sargent continued by stating that in December 2013, City Council reviewed proposals from three master developers for possible uses on the Kmart site. He further stated that after deliberation and discussion, the City Council entered into a Preliminary Development Agreement with Hy -Vee in March 2014. The EDA approved the term sheet and authorized preparation of the purchase and development agreement with Hy -Vee on June 23, 2014. He noted that on June 23, 2014, the City Council approved supporting the convenience store and gas station use in conjunction with the development of the Hy -Vee grocery store. City staff worked with Stantec, the city's engineering consultant, on the design of new streetscape improvements along Xylon Avenue. Staff would like to see some of the streetscape elements incorporated into the Hy -Vee design. Director Sargent informed the Planning Commission there were no park dedication fees collected because the applicant is not creating any more lots than what already existed. Director Sargent explained the applicant proposed to rezone the property from CC, City Center district to PUD, Planned Unit Development. Originally the gas station uses were not specifically allowed in the City Center District. City Council gave support of the gas station use on June 23, 2014. He added that the PUD District would give flexibility on specific uses and overall site design. Director Sargent stated that a Site Plan Review was needed to ensure the proposed development met the intent of the zoning code in relation to the placement of the building, landscaping, parking, the design guidelines, etc. He reported that when considering the zoning analysis, staff took the underlying City Center Zoning District and applied it to the Hy -Vee parcel so staff could use it as a basis of regulating some of the proposed zoning elements, such as the number of parking stalls needed, setback of buildings, landscaping, densities, etc. Director Sargent stated that the future pad would not be discussed at this time as the city has not received a proposed use for the site yet. Once a use comes to staff it will be brought back to the Planning Commission for consideration. Regarding PUD flexibility, Director Sargent pointed out that the City Center District required buildings to be placed 10-25 feet from the street in order to achieve a downtown feeling. Staff approves of the proposed location of the Hy - Vee grocery store, which would be contingent on PUD flexibility. Director Sargent indicated that PUD flexibility was encouraged to allow for the proposed placement of the convenience store as well. Director Sargent indicated the City Center District was very specific on the types Planning Commission Meeting 2 August 6, 2014 of the regulations for parking. He explained that a :rotor fuel station or gas station was not part of the City Center district, thus staff took that regulation from the zoning code and applied it to the property. The number of stalls Hy - Vee would be required to have is between 322-602 stalls. Staff can give credit for elements such as an adequate snow removal plan and things of that nature in proximity to public transit to justify lowering the parking requirement need. Director Sargent indicated that the applicant proposed 565 on-site parking stalls, which falls within the parking ratio range. In order to be granted the reduction in required parking, the applicant would have to demonstrate adequate snow removal by providing a detail snow removal plan. Concerning circulation, access, traffic, emergency vehicle access, Director Sargent stated there were 3 access points off of Xylon Avenue. He explained that the northern -most access point would be used for deliveries and would run along the backside of the property. The turnaround area was designed to accommodate large semi -trucks or any type of delivery vehicles. The PUD flexibility allowed driveway opening to be increased to 37 ft. in width to accommodate larger vehicles accessing the site, Director Sargent commented that the second of the three access points along Xylon Avenue would be used for main east/west access corridor along the front of the store. Future City Center plans call for this "street" to extend further east to gain access onto Winnetka Avenue. Director Sargent continued by stating the nine parking spaces in front of the restaurant would have to be removed because of the need of a fixe lane. He further stated that staff felt this is in the best interest of the city and with the recommendations from the West Metro Fire Department that there needs to be a fire lane in this area. The driveway opening being increased to 40 feet in width was the best use of PUD flexibility to accommodate traffic turning/access into the site from one of the major entry points into this property. Director Sargent reported that the southern access point, closest to Xylon and 42nd Avenues, would be used for an ancillary east/west access corridor for the gas station and future office/retail building. The driveway lines up with the northern Wells Fargo Bank driveway per recommendations of the traffic study. He further reported that staff had concerns regarding the turning radii used for large trucks accessing the gas station property, especially tight turns with snow. Staff did get an amended version of turning radii detail plan, which will be reviewed. Currently, there is one access point off of 42nd Avenue. That access point would serve as the main north/south corridor through the Hy -Vee site and has a right - in, right -out turning configuration onto 42nd Avenue or into this property. Director Sargent stated the main sidewalk would connect pedestrians from 42nd Avenue to the front entrance of the store. Ancillary sidewalks will help with Planning Commission Meeting 3 August 6, 2014 connections from Xylon Avenue to the front of the grocery store and from Xylon Avenue to the gas station/convenience store. He added that this configuration had sidewalks on both sides of a landscaped median. Director Sargent described the extensive landscape and screening plan around Hy -Vee which meets all the minimum requirements. There was excessive screening along north property line to help buffer the back of the building from the residential property. Staff spoke with one of the managers of the complexes to the north and he/she liked the idea of a buffer there. Director Sargent mentioned that staff would like to see the types of shrubs and the number of shrubs Hy -Vee would use and incorporate these into this plan as part of the conditions of approval. Director Sargent explained the lighting plan. He further explained there were acceptable light levels throughout the development, although light levels were a little short along the sidewalks. Director Sargent mentioned that staff would continue to work with Hy -Vee to incorporate some of the landscape elements as well as the pedestrian -scale lighting elements into the plan that would be consistent with the Xylon Avenue streetscape improvements. Director Sargent mentioned the applicant would need some PUD flexibility with the proposed signage. Staff encouraged the allowance of additional signage on the back of the convenience store to help make the rear of the building more aesthetically appealing, Staff, after review of the elevations on the front of the building, agreed it had a proportional use of signage for the building, especially for the types of uses in the building. Director Sargent stated the applicant has proposed the use of monument signs on Lots 2 and 3. These monument signs must meet the minimum setback requirements, which is a condition of approval. There is some PUD flexibility for all signs and sing plans will be reviewed and considered through the PUD process. Regarding the grading, drainage, and erosion control, Director Sargent reported the applicant is proposing an underground storm water retention facility located in the northeastern corner of the lot. A maintenance agreement will be needed for this facility. Director Sargent reviewed the design guidelines. The building materials meet intent of the design guidelines. The applicant will use of precast exposed aggregate, brick, EIFS, metal and glass. Differing articulations and parapet heights throughout and this give the grocery store the appearance of a multi - tenant building. Director Sargent pointed out the snow removal area located on the western parking lot. A comprehensive snow removal and management plan would need Planning Commission Meeting 4 August b, 2014 to be submitted in order to Justify the reduction of parking spaces for the property. Staff recommended that the Planning Commission recommend approval of the proposed Preliminary and Final Plat approvals with the following conditions: 1. Hennepin County approval of the Preliminary and Final Plat, 2. The City Engineer approval of the width and location of all drainage and utility easements. 3. The Preliminary and Final Plat provides a drainage and utility easement over the underground storm water retention system. The applicant shall provide for city approval a maintenance plan for the long term maintenance and upkeep of the underground storm water retention system. 4. The site grading, drainage and utility plans are subject to review and approval by the City Engineer. 5. The Planning Commission waives the requirement for their review of the Final Plat. Staff recommends that the Planning Commission recommend approval of the rezoning of the property from CC, City Center District to PUD District with the following conditions: 1. The city approves the land uses identified in the site plan. Any additional future land uses must be allowed under the CC, City Center Zoning District. 2. The city approves the building setbacks as shown in the approved site plan. 3. Site Access. The applicant shall address the following site access issues in a revised site plan, or other document as part of the final stage submission for city review and approval: a. Submission of cross access easements between the three lots in the subdivision. b. The right turn lane design from 42nd Avenue shall be subject to the review and approval of Hennepin County and the city engineer. c. The applicant must provide a cross easement in favor of the city to allow the extension of private streets through the properties to the east. This must preserve the opportunity to extend the main driveway at the front of the grocery store east to Winnetka Avenue. d. The site plan shall be revised to improve semi -truck access and egress through Lot 2, utilizing recommendations as outlined in the Northwest Associated Consultants staff report. 4. The city approves the curb cut locations and widths as shown on the site plan. 5. Parking. The applicant shall address the following parking issues through a revised site plan or other documents: a. Applicant must provide a comprehensive snow plowing, snow storage and/or snow removal plan for the entire PUD area to qualify for the reduced number of parking stalls. b. Drive aisles serving 90 degree parking stalls must be a minimum of Planning Commission Meeting 5 August 6, 2014 24 feet in width. c. The city approves the parking lot lengths abutting the public streets as shown on the site plan. d. All parking lots throughout the PUD shall maintain a minimum 10 - foot setback from all street rights-of-way. e. Parking lots abutting public streets shall be screened with landscaping approved by the city. The city will work with the applicant to incorporate streetscape elements from Xylon Avenue that may include such features as wrought iron fencing along Xylon and 42rd Avenues rights-of-way. Corresponding easements will be negotiated for the placements of these elements. f. The applicant must remove the nine parking stalls adjacent to the south side of the building and located in front of the restaurant entrance. West Metro Fire and Rescue Department will designate the area in front of the restaurant as a fire lane to ensure adequate access to the restaurant in case of a fire. 6. Bicycle parking shall be provided on Lot 2. The convenience store entry and sidewalk detail must show the location and number of bicycle spaces. 7. Gas Sales: The plan set addressing the gas sales operation must meet the following conditions: a. The fuel pumps and canopy must be shifted to the northeast of the current location to improve truck access and egress through Lot 2. b. The fagade of the gas canopy is limited to 3 feet in height. c. All canopy lighting must be recessed into the canopy. No light source may extend below the canopy ceiling. 8. Outdoor sales displays: The applicant shall revise the site plan to illustrate locations and sizes of anticipated outdoor sales displays. Said areas must meet city zoning standards. Sales displays shall be limited to approved locations. 9. The lighting plan and landscape plan shall be approved with the understanding that changes to both plans may occur given the final approval of the Xylon Avenue streetscape design. 10. Additional lighting shall be provided along the internal sidewalk to provide a minimum 2.0 foot candle light level. 11. Landscape Plan: The landscape plans must be revised to address the following: a. Landscaping along both 42nd Avenue and Xylon Avenue must be coordinated with the city streetscape designs. A wrought iron fence/decorative fence may be an additional element included in these plans that would require easements from the applicant. b. The L2 and L3 landscape details must identify the plant species and numbers by location. c. The landscape plan must provide additional landscape screening along the drive-through service lane on Lot 2. 12. Building Design; The city approves the building designs based on the building elevations with the following flexibilities and conditions: a. The city approves the side window coverage of less than 20 percent Planning Commission Meeting 6 August 6, 2014 based on the approved building elevations. b. The applicant provides details of screening of rooftop equipment from adjoining properties and public streets. c. In addition to screening, the rooftop equipment shall be painted to match the building. d. The applicant shall address the back of the convenience store facing Xylon Avenue by screening the drive service lane, increasing the parapet height to match the front facade, consider tenant wall signs on the west side of the building. 13. Sign Plan: The city approves the comprehensive sign plan as shown on the building elevation, canopy elevation, and the monuments sign details as part of the PUD with the following conditions: a. The city approves the wall sign, locations, numbers and sizes as illustrated on the building elevations for the grocery store. b. The city approves the wall sign, locations, numbers and sizes as illustrated on the building elevations for the convenience store. c. The city approves flexibility to allow wall signs on the west side of the convenience store. d. The city approves flexibility for the number and location of the gas canopy signs as illustrated on the canopy elevations. e. The applicant must provide additional information on the size and location of the proposed monument signs to ensure the sign can be located to meet the required setbacks, will not obstruct traffic sight lines and will be coordinated with the streetscape landscaping. 14. As this PUD proceeds to the Final Stage, the applicant will be required to provide a final plat and final development plans that incorporate the conditions of approval tied to the development stage. Additionally, the applicant must provide for city review and approval all cross access easements, association documents that outline maintenance and shared costs for shared private streets, utilities, and storm water facilities. The city will also require development and PUD agreements that will be recorded against the property along with the final plat, All elements related to the Final Stage PUD, and all required easements and documents shall be submitted and approved prior to the issuance of a building permit. 15. The applicant shall comply with all requirements as outlined in the West Metro Fire and Rescue memorandum dated July 20, 2014. 16. The applicant shall comply with all requirements as outlined in the Stantec memorandum dated July 31, 2014. Staff and representatives for the applicant were present to answer any questions. Chair Svendsen asked Director Sargent if he had spoken to Fire Inspector Shelby Wolf, with the West Metro Fire and Rescue about her reasons for requiring a fire lane in front of the restaurant area, Director Sargent replied that, in speaking with Fire Inspector Wolf she stated Planning Commission Meeting 7 August 6, 2014 that anytime there is a brand new building and the department can pick the easiest access into that building they want to take advantage of that opportunity. She further stated that it is consistent with big box retailers to have a fire Iane across the full front of the store. Chair Svendsen questioned whether the fire lane was necessary even though the Commission has another case coming up that does not have that capability. Director Sargent stated it could be the fact that the next case is a smaller building that has three separate tenants rather than a big box retail site that is more consistent with how those areas are addressed for fire lanes. Chair Svendsen clarified that the final stage of the PUD may not be approved tonight by this Commission but would go to the City Council for its final approval. Director Sargent confirmed that was correct. The Planning Commission will approve the development stage with the understanding that the final stage will ultimately be approved by the City Council and staff. Commissioner Brinkman asked who would make the decision when someone wants information about Lot 3, the proposed office/retail space. Director Sargent reported it was being taken care of through the development agreement with Anderson Companies or Hy -Vee to develop that site within three years. If it is not developed in that time frame there are contingencies in that development agreement that allows the city to step in and repurchase the property. Commissioner Brinkman asked if a person wanted to inquire about putting a restaurant in the Lot 3 area. Director Sargent replied that ultimately the development agreement would have some contingencies to direct what types of uses everybody agrees could be allowed on that site. For the actual construction of the site, Anderson Companies would be required to come back to the Planning Commission for a site plan review. Commissioner Brinkman questioned the two areas going east -west from Xylon to Winnetka Avenues and asked where these go through near Applebees. Director Sargent clarified there is only one access point coming through the middle to Winnetka Avenue. The city essentially does not know where that road will be located until the City hears from the next developer for the next phase of City Center. The second east -west access point would truncate at the access point that is currently near Applebees. Planning Commission Meeting 8 August 6, 2014 Commissioner Brinkman wondered there would be bicycle parking. Director Sargent noted that the plans do not show any bicycle parking at the convenience store and staff would like to see additional installed there. Al Brixius, City Planner, mentioned the city asked Anderson Companies to spread the bicycle parking around so it was available at each site. Commissioner Brinkman questioned whether or not the lighting on the sidewalk from 42-d Avenue to the grocery store was correct. Director Sargent mentioned that staff has minimum requirements specifically for the amount of illumination that should be cast on the sidewalk and there are some areas on this plan that do not meet that minimum requirement. Staff would like more lighting added so there is at least 2.0 foot candles on the sidewalk. Commissioner Brinkman stated that to get to the sidewalk from 42nd Avenue, there would be a lot of walking traffic on 42nd Avenue; would there be lighting out there as well. Director Sargent stated that staff is working on the pedestrian -scale lighting along with the Xylon Avenue streetscape and would incorporate those elements on 42nd Avenue. Mr. Brixius had one other lighting request on the east side of restaurant in the outside dining area. Additional Iandscaping to screen the back of Winnetka Center was also requested. Phil Hoey, 2005 East Main, St Charles, Iowa was recognized. Mr. Hoey introduced the Hy -Vee team. Chair Svendsen noted there appeared to be a tree in the proposed road that goes through to the east towards Winnetka Avenue North ("Winnetka Avenue") and asked Mr. Hoey to work with their landscape designer to save the tree. Chair Svendsen pointed out that the elevations noted for the grocery store were wrong compass orientation on the plan. Mr. Hoey will have this corrected. Chair Svendsen asked Mr. Hoey's opinion/comments on the nine parking stalls in front of the restaurant. Mr. Hoey explained that the restaurant is a newer concept for Hy -Vee. Market Grill would be full service restaurant that will be competing with Applebees, Granite City and other sit down, high quality restaurants. Those same restaurants have "to go" service, pickup service, up front parking and other elements. It becomes a critical component for Hy -Vee competing in that arena Planning Commission Meeting 9 August 6, 2014 to have that parking up in front of our building. Mr. Hoey continued by stating the nine stalls would be used for people to come in to pick up products and/or pick up their food to go, Hy -Vee would like to be able to serve those customers. Mr. Hoey understands the concern about the safety from the fire department. He thinks there is an adequate fire lane that has been provided in front of the building. Mr. Hoey would like fire trucks to get to their building in an emergency and Hy -Vee wants to make sure to accommodate that service. The Hy -Vee team believes there is plenty of room to accommodate that service. Commissioner Landy asked what time of day the trucks arrive to unload and if the trucks shut their engines off during deliveries. Mr. Hoey stated that trucks arrive at different times throughout the day and night. Where the store director can he will work with the community to make sure he is a good neighbor. Commissioner Landy commented that the city and planning commission have been looking at the Hy -Vee property for a long time and have had various ideas of what the property should look like. One of the main ideas was to include some sort of pedestrian mall coming from Winnetka Avenue all the way through to Xylon Avenue. Commissioner Landy noticed this type of walk was not in the final plan but he asked if Hy -Vee would be amicable to something similar. Mr. Hoey responded by stating that a pedestrian mall connection was planned for and is a part of the city requirements were that Hy -Vee provide an easement for that connection. Mr. Hoey thinks it is important for their business as well. Commission McKenzie noted there was a plan for future expansion of the main building and asked Mr. Hoey to speak to that. Mr. Hoey replied that Hy -Vee is a 90,000 sq. ft. store. Hy -Vee would like to think and plan ahead for future expansion. The Market Grill is a newer concept and Hy -Vee would like to leave themselves open for whatever the next new concept may be.'Mr. Hoey continued by explaining that the store will operate as four separate businesses with the Market Grill, the food store, the pharmacy, and the Hy -Vee wine and spirits. He wants to be prepared for whatever the next great thing may be and put it in New Hope. Commissioner McKenzie, referring to the contention with West Metro Fire and Rescue concerning the nine parking stalls asked if Hy -Vee had an altered plan or could the nine parking stalls be placed elsewhere and still have the same function. Mr. Hoey stated his team looked at alternatives. Hy -Vee understands both the Planning Commission Meeting 10 August 6, 2014 staff's position and the fire chief's position. Hy -Vee team has looked for other alternatives but has not been able to come up with any other ideas thus far. They did look at space on the east side of the building but felt it would be too far from the restaurant. Mr. Hoey believes that the present location of the nine stalls is the best location. Commission McKenzie asked Mr. Parks what he anticipates the maintenance of the underground retention system to be, and will the system design work as well in twenty years as it does today. Mr. Parks from Westwood Engineering explained the system is a low ground vault which is kind of a half moon shaped pipe. It is a StormTech product and ranges in size between 2V2 feet to 4% feet. Hy -Vee is looking at the larger chambers but is has not been entirely engineered, so it may end up being a Iarge diameter, perforated pipe such as a 4-5 foot diameter circular pipe. The system is imbedded in rock with a couple of feet of rock below it. Within the sand is a perforated drain tile pipe that provides some storage and additional storm water treatment as the water goes through the sand. The system Westwood has monitored the longest is at the Cub Foods in Lakeville, Minnesota. Westwood has a video camera that is used to monitor the system once a year. Commissioner McKenzie asked if there were long term examples of the half- moon system and was there long-term silting of the drain tile and Iosing infiltration. Mr. Parks stated that the long-term operation of the system becomes simply a maintenance clearing issue. He could not point to any Iong-term examples of the StormTech system that he has designed that was for more than 5-6 years old. Director Sargent added the city has requested an easement over the system so if maintenance is not performed by Hy -Vee, the city could step in and do the maintenance for them. Commissioner McKenzie highly encouraged staff and the city engineer to consider the long term and ease of maintenance on these systems. It may not be as easy other systems on the market. Commissioner McKenzie inquired about Hy-Vee's sweeping maintenance plan. -Mr. Hoey indicated the store manager is responsible for the keeping up the maintenance. If the manager is not properly maintaining this lot he will have to pay to have it repaired and he is very incentivized so that those costs stay low. Planning Commission Meeting 11 August 6, 2014 Chair Svendsen invited the public to come forward and address the Commission. The following persons addressed the Planning Commission: • Mark Jennings, 6020 Virginia Avenue North; ■ Robert Durand, Plymouth Minnesota; • Susan Beaubaire, 4617 Ensign Avenue North; • Rick Riley, 8001 37th Avenue North. Concerns included the following: L Is the drainage system designed to withstand a 100 -year flood event? If it does not hold up, who would be liable for the damage? 2. How does the sign request compare to what Kmart had for their signs? 3. Screening of Hy -Vee property versus existing mall (behind Hy -Vee) with landscaping. 4. City staff said surveys done; has not seen public results of those surveys. 5. What are the proposed hours of operation for the store? 6. Proposed estimated customer count per day. 7. City's survey results concerning Hy -Vee. 8. When considering the landscaping, would be feasible to incorporate native Minnesota plantings or edible plants? 9. Has the applicant considered moving the restaurant to the west side to help with the nine stall parking question and the views are nicer. 10. Future parking to the west, what is it, why is it and whether or not the restaurant nine parking stalls could be put there. 11. Concerning city ideas and the past vision from the old commissions, how many Planning Commission member were around then (yes Chair S & Landy and around when did first go)? Chair Svendsen wrote down all questions from public. He called the petitioner forward and addressed each question as follows: Chair Svendsen read Mark Jennings first question asking if the drainage design was adequate for a 100 -year floods. Mr. Parks indicated that a significant 100 -year flood event could be 6-7 inches of rainfall within 24 hours. If this were to happen the water would puddle in the Kmart side then overflow to the south to 42nd Avenue. The proposed site has similar characteristics with the water standing in the parking lot and when the level rises to a certain height, the water still goes to 42n1 Avenue. However, the site will discharge a significant less volume and discharge rate than presently occurring due to the storm water vault and the additional green surface. Mr. Parks pointed out that the storm water management design meets all rules from the city and the watershed in terms of how Hy -Vee will handle storm Planning Commission Meeting 12 August 6, 2014 water discharges. Director Sargent spoke to Mr. Jennings question concerning the amount of signage. He has no data as to what the percentage it was to the Kmart building. Staff looked at the amount of Hy-Vee's signage and felt the signage is adequate and adequately proportioned. Mr. Brixius mentioned that by the city's ordinance the applicant would be entitled to up to 15% of the building face for signage. For the grocery store it is at 6.5% based on 623 sq. ft. of combined signage. The flexibility Hy -Vee is asking for is the multiple signs. Mr. Jennings question concerning the possible screening the back of the Hy - Vee property at the existing mall was addressed by Director Sargent. There is some concern with the back of store on the property to the east. Director Sargent stated that staff would be speaking with the owner of the existing mall to find out what considerations he can make to the back of the existing mall to dress it up. There are no requirements from staff to screen buildings adjacent to Hy -Vee. Staff feels Hy-Vee's landscape plan for screening from adjacent residential zoned property is adequate. Chair Svendsen stated that Mr. Jennings next question concerned survey responses are not a part of this commission's responsibility. Director Sargent responded and explained that there were two surveys; one survey was through the open house. Director Sargent believes the response from that survey was around 80% in favor of Hy -Vee and the remainder either did not want to see Hy -Vee built or had some indifference of opinion on it. Director Sargent stated that the results of online survey showed 75% of the respondents being for the project, and the remaining 25% being either in the middle or did not want the project to proceed. The number of results the city received for the open house survey was approximately 100; and close to 200 surveys were received from the online survey. Chair Svendsen read Mr. Jennings question concerning the hours of operation for the grocery store and different elements. Mr. Hoey replied that Hy -Vee is basically a 24-hour operation, with the exception of the liquor store. Chair Svendsen asked Mr. Hoey if Hy -Vee has done any customer count projections. Mr. Hoey did not want to share that information as it is proprietary. Chair Svendsen explained to Robert Durant, that his questions were mostly business orientated questions rather than design related and referred Mr. Planning Commission Meeting 13 August 6, 2014 Durant to the City Council to answer his questions. Chair Svendsen stated that Ms. Beaubaire's question concerned landscaping and the inclusion of native Minnesota plantings and possible edible plantings. Mr. Hoey indicated their landscape engineer was not present tonight. Mr. Parks indicated that Hy -Vee would like to use native plantings. All of the trees Hy -Vee plans to use, such as boulevard trees, ornamental trees, a variety of pines trees, spruces, and conifers are all native to Minnesota; however, it does not include native grasses. Chair Svendsen referred Ms. Beaubaire to the city forester who has a list of acceptable plantings that all applicants will work towards. Chair Svendsen continued to address questions from the public specifically Mr, Riley who asked if it was feasible to move the restaurant to the west side of the building where there are better views. Mr. Hoey addressed Mr. Riley's question by stating Hy -Vee tried to design their building in a way to fit into whatever is going to happen in the future. Hy-Vee's hope is that in Phase 11 or the next redeveloper beyond Hy -Vee would develop project that would tie in nicely with what is going to happen. Chair Svendsen asked if Mr. Hoey had any comments about the future expansion to the west. Mr. Hoey could not answer cannot answer questions about the future expansion to the west because he does not know. Mr. Hoey indicated he would like to have the flexibility for the future. Chair Svendsen indicated that the last question goes to the Commission regarding the past commissions that worked on the vision ideas and all the time and effort put into that project. Commissioner Landy stated that the city had to switch its thinking to something other than an Excelsior and Grand concept because that concept no longer works. Commissioner Landy feels that Hy -Vee is probably the best concept for the property. Hopefully the city can redevelop the other two parcels with something similar to what commissioners previously wanted. Commissioner Landy believes Hy -Vee will draw a lot of people. Chair Svendsen asked if there was anybody else in the audience that would like to come forward for the public hearing, he asked for a motion to close the public hearing. Chair Svendsen asked if there were any further discussion from the Commission or other questions to staff. There was none. Planning Commission Meeting 14 August 6, 2014 Motion Motion by Commissioner McKenzie, seconded by Commissioner Landy, to close the public hearing. All voted in favor. Motion carried. 8-0 Motion Motion by Commissioner Landy, seconded by Commissioner Brinkman to Item 4.1 make approval of Planning Case 14-09, request preliminary and final plat, rezoning of certain property from CC, City Center District to PUD and a site plan review to allow construction of a retail grocery store, convenience store, gas station, and future office/retail building known as Hy -Vee, Inc., 4300 Xylon Avenue North, is subject to everything that was put in our packet and staff's additions. Voting in favor: Brinkman, English, Gehring, Houle, Landy, McKenzie, Schmidt, Svendsen Voting against: None Absent: Houle, _Nirgude Motion approved. Chair Svendsen stated this Planning Case would go forward to the City Council on Monday, August 25, 2014 at 7 p.m Planning Case 14-07 Chair Svendsen introduced Item 4.2, Planning Case 14-07, Request for Item 4.2 Preliminary and Final Plat, Conditional Use Permit for a Planned Unit Development and Site Plan Review to allow the construction of a 4,600 square foot multi -tenant retail building with drive-through and outdoor patio, known as Winnetka Commons, 3540 Winnetka Avenue North, Aric Lasky, petitioner. Mr, Aaron Chirpich, community development specialist, stated that the applicant is proposing to add a 4,656 sq. ft. multi -tenant retail building at the existing Winnetka Commons shopping center. The applicant would subdivide the current lot to create this new lot for the purposed development. The requested Planned Unit Development (PUD) would allow for flexibility and shared parking, storm water, and access arrangements. The proposal includes filling in an existing storm water retention pond to make room for this new building. The types of requests for this development include Preliminary and Final Plat, Site Plan Review, and the Conditional Use Permit (CUP) for the PUD. Mr. Chirpich explained that the applicant proposed to subdivide the existing parcel to create two new lots. The new parcel would be located in the northwest corner and cover approximately .83 acres. The new parcel will share existing access and parking with the Winnetka Commons shopping center. Mr. Chirpich stated the new parcel would require cross access and parking easements, which would have to be recorded with the county. Mr. Chirpich continued that by stating the proposed building would be partially positioned over an existing drainage pond. This pond and Planning Commission Meeting 15 August 6, 2014 Community Development Jeff Sargent, Director of CD COUNCIL Request for Action Approved for Agenda I Agenda Section September 8, 2014 Public Hear Item No. Kirk McDonald, City Manager 73 Public hearing and a resolution adopting a modification to the redevelopment plan for Redevelopment Project No. 1; and establishing the City Center Tax Increment Financing District therein and adopting a tax increment financing plan therefor (project no. 593) Requested Action The Council is requested to conduct the Public Hearing in order to adopt a modification to the redevelopment plan for Redevelopment Project No. 1, establish the City Center Tax Increment Financing District and adopt the tax increment plan. Policy/Past Practice It is a past practice of the City Council to consider/approve providing financial assistance such as Tax Increment Finance (TIF) Districts for redevelopment projects in the city. Background It has been found necessary to create a TIF District in order to accommodate the redevelopment of the Kmart Shopping Center and adjoining property as defined in the TIF plan.- In order to create a TIF District, the City Council must approve the findings as outlined in the attached resolution. The TIF District will facilitate the redevelopment of the Phase I property into a new grocery store, convenience store with gas, and a commercial building. Phase II is anticipated to be developed into a mixed-use development consisting of commercial space, retail, office and restaurants, and multi -family housing in the City. The necessity of the TIF District will authorize the expenditures for land/building acquisition, site improvements and preparation, utilities, administrative costs and other qualifying improvements. Stacie I:\RFA\ COMM DEV 1 Public Hearings \ Q & R -'IIF District City- Center public hearing 9-8-2014.doc EDA Request for Action Originating Department Approved for Agenda Agenda Section Community Development September 8, 2014 EDA Item No. By: Jeff Sargent, Director of CD By: Kirk McDonald, City Manager 4 Resolution adopting a modification to the redevelopment plan for Redevelopment Project No. 1, establishing the City Center Redevelopment Tax Increment Financing District therein and adopting a tax increment financing plan therefor (project no. 893) a/9- 9- T `r TY -6,i L Requested Action A public hearing was held at the City Council meeting relating to this item. The EDA is also requested to pass a resolution adopting the modification and establishing the TIF district. Policy/Past Practice It is a past practice of the City Council to consider/approve providing financial assistance such as Tax Increment Finance (TIF) Districts for redevelopment projects in the city. Background It has been found necessary to create a TIF District in order to accommodate the redevelopment of the Kmart Shopping Center and adjoining property as defined in the TIF plan. In order to create a TIF District, the City Council must approve the findings as outlined in the attached resolution. The TIF District will facilitate the redevelopment of the Phase I property into a new grocery store, convenience store with gas, and a commercial building. Phase II is anticipated to be developed into a mixed-use development consisting of commercial space, retail, office and restaurants, and multi -family housing in the City. The necessity of the TIF District will authorize the expenditures for land/building acquisition, site improvements and preparation, utilities, administrative costs and other qualifying improvements. Stacie Kvilvang from Ehlers & Associates will be in attendance to answer any questions regarding the creation of this district. Motion by al yyYLLt . Second by To: I \RFA\COMM DEV\Public Hearin s\Q & R -TIF District City Center public hearing EDA 9-8-2014.doc EDA Request for Action Originating Department Approved for Agenda Agenda Section Community Development September 8, 2014 EDA Item No. By: Jeff Sargent, Director of CD By: Kirk McDonald, City Manager 5 A Public Hearing and Resolution Authorizing the Execution of a Purchase and Development Agreement with Hy -Vee, Inc. project no. 893 Requested Action Staff requests the Council approve a motion authorizing the execution of a Purchase and Development Agreement with Hy -Vee, Inc. Minnesota State Statutes require that when an Economic Development Authority (EDA) is going to sell land it owns, it must conduct a public hearing and make available to the public the terms and conditions of the sale. Policy/Past Practice It is a past practice of the staff to get Council approval/authorization prior to executing a purchase and development agreement for the sale of city -owned property. Background On June 23, 2014, the EDA authorized the drafting of the Purchase and Development Agreement with Hy - Vee, Inc., based upon terms agreed to by the EDA and the developer. The attached memo from Ehlers & Associates, Inc. outlines the specific terms of the Purchase and Development Agreement, as well as changes that have been made since the original draft. Hy -Vee has reviewed the attached Purchase and Development Agreement and is agreeable to the terms outlined. Stacie Kvilvang from Ehlers will be in attendance to answer any questions by the EDA. AT THE TIME THE PACKET WAS DISTRIBUTED THE FINAL DOCUMENT HAD NOT BEEN RECVEIVED, AS FINAL NEGOTIATIONS WERE CONTINUING. THE AGREEMENT WILL BE FORWARDED TO THE COUNCIL AS SOON AS IT IS RECEIVED BY THE CITY Motion by "lilt— Second by To: G bw e: I \RFA\COMM DEV \Develo ment\ Q & R- Purchase and Dev agreement for Hy -Vee 9-5-14.doc Request for Action September 8, 2014 Page 2 Recommendation Staff recommends the Council approve a motion authorizing the execution of a Purchase and Development Agreement with Hy -Vee, Inc. Attachments 0 Resolution EDA Request for Action Originating Department Approved for Agenda Agenda Section Community Development September 8, 2014 EDA Item No. By: Jeff Sargent, Director of CD By: Kirk McDonald, City Mana er 6 Resolution Authorizing and Ratifying an Interfund Loan for Advance of Certain Costs in Connection With the City Center Redevelopment Tax Increment Financing District (improvement project no. 893) Requested Action Staff requests that the EDA approve a resolution authorizing an internal (interfund) loan to the City Center TIF District for the properties located at 4200-4300 Xylon Avenue North. Policy/Past Practice It is the practice of the EDA to require the approval of resolutions authorizing internal loans. Background Ehlers is recommending that the City should approve an interfund loan resolution to cover the costs of the redevelopment associated with the former Kmart Shopping Center. The EDA has been expending funds for property acquisition, demolition, remediation and administration for the Kmart and surrounding sites. State Statute requires that the City approve a resolution authorizing an internal (interfund) loan to a TIF district and set the terms for reimbursement of the qualified TIF costs to be repaid with tax increments from the newly created TIF district. The costs associated with the Xylon Avenue sanitary sewer improvements are eligible for repayment with tax increments from the newly created TIF district. Recommendation Staff recommends approval of the Resolution. Attachments • Resolution for Interfund Loan • Ehlers Memo AY/,4- Second by ell— To: � h\RFA\COMM DEV\Develo ment\Q R - Interfund Loan Resolution -Ci Center 9-8-2014.doc To: Kirk McDonald — EDA Executive Director From: Stacie Kvilvang & Jason Aarsvold Date: Septmber 9, 2014 Subject: Interfund Loan Resolution — Site Assembly and Future Public Improvements for City Center TIF District Over the past two (2) years the EDA has been expending funds for property acquisition, demolition, remediation and administration for the Kmart and surrounding sites it acquired in 2012. These funds have been advanced from the EDA Fund and TIF Districts 85-1, 85-2, and 86-1 in the amount of approximately $5.4 million. In addition, the City and EDA expect to make future investments in the newly created City Center TIF District and advance dollars for the required public improvements to Xylon and 45th Avenues in the amount of approximately $6.4 million. In order to reimburse the EDA for any advances it has made to date or will make in the future, an interfund loan is required. Attached is a resolution ratifying previous interfund loans approved by the EDA in 2013 and authorizing a new interfund loan for up to $8,000,000 from EDA Funds including its Development Fund and existing TIF Districts 85-1, 85-2 & 86-1. The EDA will reimburse these Funds for the above referenced costs as they are advanced, from land sale proceeds and future TIF generated from the developments within the City Center TIF District. Completing this action provides the EDA with the most flexibility to reimburse itself in the future if and when TIF funds are available from the newly created City Center TIF District. Please contact either of us at 651-697-8500 with any questions. EHLERS LEADERS IN PU9LIC FINANCE www,ehlers-inc,com Minnesota phone 651-697-8500 3060 Cerdm Pointe Drive Offices also in Wisconsin and Illinois fax 651-697-8555 Roseville, Mid 55113-1122 toll free 800-552-1171 NEW HOPE ECONONONIIC DEVELOPMENT AUTHORITY CITY OF NEW HOPE HENNEPIN COUNTY STATE OF MINNESOTA Commissioner Elder introduced the following resolution and moved its adoption: RESOLUTION NO. 2014-15 RESOLUTION AUTHORIZING AND RATIFYING AN INTERFUND LOAN FOR ADVANCE OF CERTAIN COSTS IN CONNECTION WITH THE CITY CENTER REDEVELOPMENT TAX INCREMENT FINANCING DISTRICT. BE IT RESOLVED by the Board of Commissioners (the 'Board") of the New Hope Economic Development Authority (the "Authority"), as follows: Section 1. Background. 1.01. The Authority and the City of New Hope (the "City") have created the City Center Redevelopment Tax Increment Financing District (the "TIF District") in order to provide a funding source to assist in the redevelopment of certain real property in the City (the "Property"), which Property has been acquired by the Authority. 1.02. The Authority previously adopted resolutions authorizing interfund loans using other funds of the Authority to pay for certain costs related to the Property consisting of demolition of buildings located on the Property, administrative expenses, including but not limited to fees of attorney and financial advisors, and interest, which costs were financed on a temporary basis from Authority funds available for such purposes. 1.03. The Authority intends to enter into a Purchase and Development Agreement with Hy - Vee, Inc., to purchase the Property under which the purchase price to be paid by Hy -Vee to acquire the Property is less than the amount paid by the Authority. 1.04. Under Minnesota Statutes, Section 469.178, Subd. 7, the Authority is authorized to advance money from the Authority's general fund or any other fund from which such advances may be legally authorized, in order to finance the Qualified Costs. 1.04. The Authority intends to establish a new interfund loan combining the interfund loans previously authorized by the Authority and advances made by the Authority to acquire and prepare the Property for redevelopment to the extent that such advances exceed the purchase price to be paid to the Authority for the Property and for expected future public improvements required to allow redevelopment to commence (all of which costs are collectively referred to herein as the "Qualified Costs"). Section 2. Terms of Interfund Loan. 2.01. The Authority hereby establishes an interfund loan in the amount of up to $8,000,000 from funds of the Authority or so much thereof as may be paid as Qualified Costs. The Authority shall be reimbursed for such advances together without interest. 2.02. Principal ("Payments") on the Interfund Loan shall be paid semi-annually on each August 1 and February I (each a "Payment Date"), commencing on the first Payment Date on which the Authority has Available Tax Increment (defined below), or on any other dates determined by the Authority's Executive Director, through the date of last receipt of tax increment from the TIF District. 2.03. Payments on this Interfund Loan are payable solely from "Available Tax Increment," which shall mean, on each Payment Date, tax increment available after other obligations have been paid, or as determined by the Executive Director, generated in the preceding six (6) months with respect to the property within the TIF District and remitted to the Authority by Hennepin County, all in accordance with Minnesota Statutes, Sections 469.174 to 469.1799, all inclusive, as amended. Payments on this Interfund Loan may be subordinated to any outstanding or future bonds, notes or contracts secured in whole or in part with Available Tax Increment, and are on parity with any other outstanding or future interfund loans secured in whole or in part with Available Tax Increment. 2.04. The principal sum payable under this Interfund Loan are pre -payable in whole or in part at any time without premium or penalty. No partial prepayment shall affect the amount or timing of any other regular payment otherwise required to be made under this Interfund Loan, 2.05. This Interfund Loan is evidence of an internal borrowing by the Authority in accordance with Minnesota Statutes, Section 469.178, Subd. 7, and is a limited obligation payable solely from Available Tax Increment pledged to the payment hereof under this resolution. This Interfund Loan shall not be deemed to constitute a general obligation of the State of Minnesota or any political subdivision thereof, including, without limitation, the City and Authority. Neither the State of Minnesota, nor any political subdivision thereof shall be obligated to pay the principal on this Interfund Loan or other costs incident hereto except out of Available Tax Increment, and neither the full faith and credit nor the taxing power of the State of Minnesota or any political subdivision thereof is pledged to the payment of the principal on this Interfund Loan or other costs incident hereto. The Authority shall have no obligation to pay any principal amount of the Interfund Loan, which may remain unpaid after the final Payment Date. 2.06. The Authority may amend the terms of this Interfund Loan at any time by resolution of the Board of Commissioners, including a determination to forgive the outstanding principal amount to the extent permissible under law. 2.07. The Interfund Loan established by this Resolution is intended to replace the interfund loans established by any prior Resolutions of the Authority establishing interfund loans with respect to expenditures made in connection with the acquisition and preparation of the Property and administrative costs related thereto. Section 3. Effective Date. This resolution is effective upon the date of its approval. The motion for the adoption of the foregoing resolution was duly seconded by Commissioner Hof , and upon a vote being taken thereon, the following voted in favor thereof: Hemken, Elder, Hoffe, Lamle, Stauner and the following voted against the same: None Approved by the Board on September 8, 2014. President, Kathi Hemken ATTEST: Executive Director, Kirk McDonald U C -V. filedK C.V. not req. No delinquent taxes 11111111111111111111111111111111111111111111111 i1n 1111 Transfer Entered Doc No T05212939 Certified, filed and/or recorded on Nov 7, 2014 1:00 PM Nov 7, 2014 1:00 PM Hennepin County, Minnesota Office of the Registrar of Titles Mark Chapin Hennepin County, Minnesota County Auditor and Treasurer Martin McCormick, Registrar of Titles Mark Chapin, County Auditor and Treasurer Deputy 84 Pkg ID 1172458C CRV# 283814 DOG Name: Quit Claim Deed Conservation Fee $5.00 Document Recording Fee $46.00 Environmental Response Fund (SDT.0001) $372.50 Residue Certificate Fee $40.00 State Deed Tax (.0033 rate) $12,292,50 Document Total $12,758.00 PID(s) 18-118-21-11-0005, 18-118-21-11-0012, 18-118-21-11-0013 Existing Certs 1395517 New Certs 1395518, 1395519 This cover sheet is now a permanent part of the recorded document. QUIT CLAIM DEED THIS INDENTURE, between the New Hope Economic Development Authority, a public body corporate and politic created pursuant to the Laws of Minnesota (the "Grantor"), and Hy - Vee, Inc., an Iowa corporation (the "Grantee") is made as of November 6, 2014. WITNESSETH, that Grantor, in consideration of the sum of Three Million Seven Hundred Twenty Five Thousand Dollars ($3,725,000.00) and other good and valuable consideration the receipt whereof is hereby acknowledged, does hereby grant, bargain, quitclaim and convey to the Grantee, its successors and assigns forever, all the tract or parcel of land lying and being in the County of Hennepin and State of Minnesota described as follows, to -wit (such tract or parcel of land is hereinafter referred to as the "Property"): Lots 1, 2 and 3, Block 1, NEW HOPE HY-VEE, New Hope, Hennepin County, Minnesota, To have and to hold the same, together with all the hereditaments and appurtenances thereunto belonging in any wise appertaining, to the said Grantee, its successors and assigns, forever, subject to: (a) covenants, conditions, restrictions and provisions of that certain unrecorded Purchase and Development Agreement dated October 4, 2014 by and between the Grantor and Grantee, (the "Development Agreement"] which in all events terminates upon the earlier to occur of the issuance of a Certificate of Completion for the Improvements for Phase 2 (as each such term is defined in the Development Agreement), or the fifth (5`a) year following the date of execution of this Quit Claim Deed; and (b) Provision of the ordinances, building and zoning laws of the City of New Hope, state and federal laws and regulations in so for as they affect this real estate; and (c) casements, covenants and restrictions of record; and (d) Taxes payable subsequent to the date of this conveyance. The Grantor certifies that the Grantor does not know of any wells on the subject property. [SIGNATURES ON FOLLOWING PAGE] fici , Yb. 3"1005 I-V a d "" Commerd W Partners Title, LLG 200 South Sixth Street Shite 1300 Mtnneapolla, MN $5402 9 IN WITNESS WHEREOF, the Grantor has caused this Deed to be duly executed in its behalf by its President and Executive Director this 6th day of November, 2014. NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY By: �.r '4r Its: President By: Nv Its: Executive Director STATE OF MINNESOTA) )ss. COUNTY OF HENNEPIN) The for going instrument was acknowledge before me this .J day of l 201 by acid „�� the President and Executive Director of the New Hope Economic Development Authority, a public body politic and corporate, on behalf of the Authority. Notary Public WNotary RAAINE HELEN KLOSS This instrument was drafted by: Public -Minnesota comms iww frog Jan 31, 2018 BRADLEY & DEIKE, P.A. 4018 West 65th Street, Suite 100 Edina, Minnesota 55435. Tax statements for the real property described herein should he sent to: Ry—Vee, Inc. ATT; Real Estate Dept:. 5820 Westown Parkway West Des Moines, IA 50266 Existing Certs 1395518 Doc No 705212841 Certified, filed and/or recorded on Nov 7, 2014 1:00 PM Office of the Registrar of Titles Hennepin County, Minnesota Martin McCormick, Registrar of Titles Mark Chapin, County Auditor and Treasurer Deputy 84 Pkg ID 1172458C Doc Name: Agreement Document Recording Fee $46.00 Document Total $466.00 This cover sheet is now a permanent part of the recorded document. /' i CITY OF NEW HOPE PLANNED UNIT DEVELOPMENT SITE IMPROVEMENT AGREEMENT (PUD Development District 14.09) THIS AGREEMENT is entered into by HY-VEE, INC., an Iowa corporation ("Hy -Vee"), and Anderson -KM Builders, LLC, a Minnesota limited liability company ("Anderson -KM") (Hy -Vee and Anderson -KM are sometimes jointly referred to herein as the "Developer"', and the City of New Hope, a Minnesota municipal corporation ("City"), this day of r :� /, f}`,l , 2014. WHEREAS, Hy -Vee is the fee owner of real property located in the City of New Hope, Hennepin County, Minnesota legally described as follows CTioperty"): Lots 1, 2 and 3, Block 1, New Hope Hy -Vee, Hennepin County, Minnesota Stmt Address PID. Numbers 4200-4300 Xylon Avenue North 18-118-21-11-0012 18-118-21-11-0013 WHEREAS, the Property has been rezoned from CC, City Center District to PUD, Planned Unit Development District 14-09 pursuant to Ordinance No. 14-12 adopted by the City Council at its regular meeting on September S, 2014, which will allow for convenience store/gas station use but all future uses of the Property shall be Iiinited to the uses permitted in the CC, City Center District, and WHEREAS, Developer has submittcd development plans and specifications identified as New Hope Planning Case 14-09 for the construction of a retail grocery store, convenience store/gas station to be known as "New Hope Hy -Vee" and future retail/office building located at the Property (hereafter Project) in the City of New Hope, and �ctvrn 39av5 3oFs (b MM Commercial Partners Title, t.t.0 200 South Sixth Sheet suite 1300 Minneapolis, MN 65402 WHEREAS, Developer's development plans for development and final stage Planned Unit Development approval, and for preliminary and final Plat approval for construction of the Project on the Property were adopted by the City Council. at. its. regulars meeting on August 25, 20.14 pursuant to Resolution Nos. 2014-114 and 2014-113 respectively, and WHEREAS, the City will amend the ordinance regarding sale of intoxicating liquor to allow for an on -sale and off -sale license for Hy -Vee for sales at the Property, and WHEREAS, the PUD Site Plan was approved for development of the Project subject to the following conditions; A. Developer shall, at its cost, provide title evidence for the Property to the City Attorney and enter into this written and recordable PUD Site Development Agreement (hereafter "Agreement") incorporating the conditions of approval set out in Resolution Nos. 2014-114 and 2014-113. Developer agrees it will construct and maintain the Project and Property in accordance with the plans and specifications it has submitted for approval in Planning Case No. 14-09. Developer acknowledges and agrees this Agreement shall run with the land and shall be binding on Developer and all successors in title to the Property and Project. B. Developer shall provide a financial guarantee as provided in Paragraphs 3 and 10 of this Agreement in order to insure construction of the secured work and proposed improvements described in paragraph 3. Said financial guarantee shall be in the amount of $62,250.00 and shall also guarantee the payment of all administrative staff costs and planning, engineering and legal costs incurred by the City in connection with Developer's request for approval of this Agreement for construction of the Project at the Property. Developer specifically agrees to pay these costs as a condition of the herein approval. C. The parties have entered into this Agreement which Developer agrees shall only be effective subsequent to the recording of the Plat of New Hope Hy -Vee with the Office of the Registrar of Titles for Hennepin County Minnesota. D. Developer agrees approval of this Agreement is also subject to Hennepin County's approval of the Plat of New Hope Hy -Vee and that any alterations to the Plat required by Hennepin County shall be incorporated into Developer's site plan and this agreement by this reference subject to compliance with the City's zoning code and regulations. E. The required public improvements for the Project shall include but not be limited to the following as set forth in the plans and specifications submitted by Developer in Planning Case 14-09: L Demolition; N ii. Landscaping Restoration iii, Streets (including driveways) iv. Developer shall provide an irrevocable letter of credit in an amount of $62,250.00 per the City Engineer's October 13, 2014 letter attached hereto as Exhibit A to financially guarantee construction and installation of the public improvements for the Project. F. The City approves the land uses which are consistent with PUD, Planned Unit Development District 14-09 and applicable to this Project. G. The City approves the building setbacks as shown in the approved Site Plan. H. Site Access: Developer shall address the following access issues in a revised Site Plan or other document as part of the final stage submission for City review and approval: i. Submission of cross access easements between the three lots in the subdivision. The parties agree that the city has previously agreed that the Easements with Covenants and Restrictions Affecting Land ("ECR") previously agreed upon by and between Developer and the New Hope Economic Development Authority, and which shall be recorded at the closing of Hy-Vee's purchase of the land, shall satisfy this requirement. ii. The right turn lane design from 42nd Avenue shall be subject to the review and approval of Hennepin County and the City Engineer. iii. Developer shall provide a cross easement in favor of and at no cost to the City to allow the extension of private streets through the properties to the east. This must preserve the opportunity to extend the main driveway at the front of the grocery store east to 'Winnetka Avenue. The parties agree that the city has previously agreed that the ECR previously agreed upon by and between Developer and the New Hope Economic Development Authority, and which shall be recorded at the closing of Hy-Vee's purchase of the land, shall satisfy this requirement. Y. The City approves the curb cut locations and widths as shown on the Site Plan. J. Parking: Developer shall address the following parking issues through a revised Site Plan or other documents: i. Developer must provide a comprehensive snow plowing, snow storage and/or snow removal plan for the entire PUD area to qualify for the reduced parking stall dimensions. 3 ii. Drive aisle serving 90 degree parking stalls must be a minimum of 24 feet in width, iii. The. City approves the parking lot lengths abutting public streets as shown on the Site Plan. iv. All parking lots throughout the PUD shall maintain a minimum 10 -foot setback from all street rights-of-way. v. Parking lots abutting public streets shall be screened with landscaping approved by the City. The City will work with Developer to incorporate streetscape elements from Xylon Avenue North that may include such features such as wrought iron fencing along the Xylon Avenue North and 42nd Avenue rights-of-way. Corresponding easements will be negotiated for the placement of these elements. K. Bicycle parking shall be provided on the property to be replatted as Lot 2. The convenience store entry and sidewalk detail must show the location and number of bicycle spaces. L. Gas Sales: The Site Plan addressing the gas sale operation must meet the following conditions: L The fagade of the gas canopy is limited to 3 feet in height. ii. All canopy lighting must be recessed into the canopy. No light source may extend below the canopy ceiling. M. Outdoor sales displays: Developer shall revise the Site Plan to illustrate locations and sizes of anticipated outdoor sales displays. Said areas must meet City zoning standards. Sales displays shall be limited to approved locations. N. The lighting plan and landscape plan shall be approved with the understanding that changes to both plans that are mutually acceptable to the City and Hy -Vee may occur given the final approval of the Xylon Avenue streetscape design. 0. Additional lighting shall be provided along the internal sidewalk to provide a minimum 2.0 foot candle light level. P. Landscape plans: The landscape plans must be revised to address the following: i. Landscaping along both 42nd Avenue and Xylon Avenue must be coordinated with the city streetscape designs. A wrought iron/decorative metal fence may be an additional element included in these plans that would require easements from Developer. 4 ii. The L2 and L3 Iandscape details must identify the plant species and numbers by location. iii. The landscape plan must provide additional landscape screening along the drive-through service lane on Lot 2. Q. Building Design; The City approves the building designs based on the building elevations with the following flexibilities and conditions: i. The City approves the side wallwindow coverage of less than 20 percent based on the approved building elevations. ii. Developer provides details for screening of rooftop equipment fiom adjoining properties and public streets. M. In addition to screening, the rooftop equipment shall be painted to match the building, iv. Developer shall address the back of the convenience store facing Xylon Avenue by screening the drive service lane, increasing the parapet height to match the front fagade, consider tenant wall signs on the west side of the building. R. Sign Plan: The City approves the comprehensive sign plan as shown on the building elevation, canopy elevation and the monument sign details as part of the PUD with the following conditions: L The City approves the wall sign, locations, numbers and sizes as illustrated on the building elevations for the grocery store. ii. The City approves the wall sign, locations, numbers and sizes as illustrated on the building elevations for the convenience store. iii. The City approves flexibility to allow wall signs on the west side of the convenience store. iv. The City approves the flexibility for the number and location of the gas canopy signs as illustrated on the canopy elevations. V. Developer must provide additional information on the size and location of the proposed monument sign to ensure the sign can be located to meet the required setbacks, will not obstruct traffic sight lines and will be coordinated with the streetscape landscaping. S. Developer must provide for City review and approval all cross access easements, association documents that outline the maintenance and shared costs for shared M private streets, utilities and storm water facilities. The City will also require development and PUD agreements that will be recorded against the property along with the. final Plat. All elements related to the Final Stage PUD, and all required easements and documents shall be submitted and approved prior to the issuance of a building permit. The parties agree that the city has previously agreed that the ECR previously agreed upon by and between Developer and the New Hope Economic Development Authority, and which shall be recorded at the closing of Hy-Vee's purchase of the land, shall satisfy this requirement. T. Developer will comply with all requirements as outlined in the West Metro Fire and Rescue memorandum dated July 30, 2014, as amended. U. Developer will comply with all requirements as outlined in the City Engineer's memorandum dated July 31, 2014. V. Development and final stage building plans shall detail a storm water management system that satisfies the watershed requirements. W. Any development or redevelopment plans for the Property including, but not limited to the Final Plans, that fail to meet the design and performance standards set forth herein shall require a PUD amendment approved by the City. WHEREAS, the Plat of New Hope Hy -Vee was approved subject to the following conditions: A. The Plat and title are subject to review by the City Attorney and shall be in compliance with all conditions for the final Plat required therein. B. Easement, drainage and utility plan review by the City Engineer and compliance with all conditions for the final Plat required therein, including approval of the width and location of all drainage and utility easements. C. The preliminary and final Plat shall provide a drainage and utility easement over the underground storm water retention system. Developer shall provide for City approval of a maintenance plan for the long term maintenance and upkeep of the underground storm water retention system. D. The site grading, drainage and utility plans are subject to review and approval by the City Engineer. E. Hennepin County's approval of the preliminary and final Plat. F. Compliance with all requirements set forth in Resolution No. 2014-114, or as subsequently amended by motion, approving the rezoning to Planned Unit Development District and Development Stage approval for the Project which shall be part of this resolution by the herein reference and which shall be on file for examination in the office of the City Clerk. G. Submission of a CAD copy of the Plat. NOW, THEREFORE, IT IS HEREBY AGREED as follows: 1. INCORPORATION OF RECITALS. The recitals above are incorporated herein by reference, specifically including the conditions for the PUD Site improvement Agreement and the agreement by the City to amend the ordinance regarding sale of intoxicating liquor to allow for an on -sale and off -sale license for Hy -Vee for on -sale and off -sale alcohol sales at and fi-om the Property. 21 THE WORK. The Work shall consist of the site improvements described in the Plans, including the Secured Work as described below, and including any amendments to the Plans which are approved by the City Council. The Work shall be performed by Developer to the City's satisfaction and in compliance with all applicable codes, ordinances, standards, and policies of the City. 3. THE SECURED WORK. The Secured Work includes all on-site exterior amenities shown on the Site Plan as described by the City Engineer's October 13, 2014 Memorandum that is listed below: Improvement - Estimated cost a. Demolition $4,500.00 b. Landscaping Restoration $1,500.00 c. Streets (including driveways) $35,500.00 Subtotal $41,500.00 + 50% contingency $20,750.00 Letter of Credit amount required $62,250.00 Developer shall maintain all Secured Work for as long as the Property is zoned PUD District 14-09. 4. COMPLETION. Developer agrees that the Work shall be completed in its entirety on or before the 31st day of May, 2016 (the Completion Date), except as this period of time is extended by resolution of the Council, or by the City tatting no action to require completion hereunder on a timely basis. It is understood and agreed that failure of the City to promptly take action to draw upon the bond or other security to enforce this Agreement after the expiration of the time in which the Work is to be completed hereunder will not waive, estop or release any rights of the City and the City can take action at any time thereafter to require completion of the Work, and payment for same. Furthermore, the term of this Agreement shall be deemed to be automatically extended until such time as the City Council declares 7 Developer in default hereunder, and the statute of limitations shall not be deemed to commence running until the City Council has been notified in writing by Developer that Developer has either complied with this Agreement, or that it refuses to for any reason, These provisions shall be applicable to any person who shall give a financial guarantee to the City as required below. S. COST OF WORK. Developer shall pay for all costs of persons doing work or furnishing skill, tools, machinery or materials, or insurance premiums or equipment or supplies and all just claims for the same, and the City shall be under no obligation to pay Developer or any subcontractor any sum whatsoever on account thereof, whether or not the City shall have approved the subcontract or subcontractor, and Developer and its surety shall hold the City harmless against any such claims, and provide the City with all necessary lien waivers. d. DEFAULT, in the event of default by Developer as to any of the Secured Work to be performed hereunder, the City may, at its option, perform the Secured Work and Developer shall promptly reimburse the City for any expense incurred therein by the City, provided Developer is first given written notice by United States Mail of the Secured Work in default and required to be done by Developer, not less than thirty (30) days being given thereby to Developer to remove the default status, said notice being addressed to Developer at the address set forth below, Notice given in this manner being sufficient as described, by agreement of the parties hereto. Notice to Developer shall also constitute, without further action, notice to any contractor or subcontractor, whether they are approved and accepted by the City or not. In the event of emergency, as determined by the City Engineer, the thirty (30) day notice requirement to Developer shall be and hereby is waived in its entirety by Developer, and Developer shall reimburse the City for any expense so incurred by the City in the same manner as if mailed notice as described above had been given, It is understood by the parties, however, that the responsibility of Developer is limited by strikes and force majeure. 7, ADMINISTRATION COSTS. Developer agrees to reimburse the City for the actual costs to the City associated with Planning Case 14-09 and this Agreement, including but not limited to, planning consultant, engineering and attorney's fees. Developer agrees that the financial guarantee shall not be released until all such costs have been paid to the City. City hereby acknowledges and agrees that Developer has previously paid $25,000.00 of these costs. 8. HOLD HARMLESS. Developer agrees to indemnify and hold harmless the City and its agents, employees, and representatives against any and all claims, demands, losses, damages and expenses (including attorney fees) arising out of or resulting from Developer's negligent or intentional acts, or any violation of any safety law, regulation or code in the performance of this Agreement, without regard to any inspection or review made or not made by the City, its agents, employees, or representatives, or failure by the City, its agents, employees, or representatives to take any other prudent precaution. In the event any City employee, agent or representative shall come under the direct or indirect control of Developer, or the City upon the failure of Developer to comply with any conditions of this Agreement, performs said conditions pursuant to the financial guarantee, Developer shall indemnify and hold harmless the City, its employees, agents and representatives for its own negligent or intentional acts in 0 the performance of Developer's required work under this Agreement. 9. COST OF ENFORCEMENT. in the event the City is successful in any litigation to enfoice the terms of this Agreement, the Developer agrees that Developer shall .be liable for the reasonable expenses associated with such enforcement, including court costs and reasonable engineering and attorney's fees. 10. FINANCIAL GUARANTEE. Developer shall furnish the City with a financial guarantee acceptable to the City in one of the following forms: a) cash escrow-, b) an irrevocable letter of credit; c) an automatically renewing certificate of deposit in Developers name but irrevocably assigned to the City; or d) other financial instruments which provide equivalent assurance to the City. Said financial guarantee shall be furnished to the City as security to assure completion of the items of Secured Work as set forth above, and payment of the costs of administration as set forth above. The financial guarantee shall be in an amount of $62,250.00. The financial guarantee provided shall continue in full force and effect until the City Council approves and accepts all of the Secured Work undertaken and releases the surety and/or Developer from any further Iiability, and until all administrative costs are paid in full. The City Council may reduce the amount of the financial guarantee upon partial completion of the Secured Work and payment of al outstanding administrative costs. 11. NOTICE. The address of Property Owner and Tenant, for purposes of this Agreement is as follows, and any notice mailed by the City to these addresses shall be deemed sufficient notice to Property Owner and Tenant under this Agreement, until notice of a change of address is given to the City in writing: DEVELOPER: Hy -Vee, Inc. 5820 Westown Parkway West Des Moines, Iowa 50265 Attn: Legal Dept, And: Anderson -KM Builders, LLC 4220 Park Glen Road St. Louis Park, MN 55416 12. SEVERABILITY. If any portion, section, subsection, paragraph, sentence, clause or phrase of this Agreement is for any reason held to be invalid, such decision shall not affect the validity of the remaining portion of this Agreement. 13. SUCCESSION. This Agreement shall be binding upon the parties, their hens, successors or assigns, as the case maybe. 01 A Separation of Developer Obligations. Notwithstanding the definition of Developer herein which includes both Hy -Vee and Anderson -KM, the City hereby acknowledges and agrees that Hy-Vee's and Anderson-KM's obligations set forth in the Purchase and Development Agreement (the "PADA") relative to the Property are separate and distinct, and not joint and several. The City further acknowledges and agrees that an event of default hereunder by Anderson -KM of its obligations pursuant to the PADA, that is capable of being construed as an obligation of Developer herein, shall not be construed to bind Hy -Vee, nor affect Hy-Vee's rights and/or obligations under this Agreement, nor entitle the City to pursue any remedies against Hy -Vee. Further, the City acknowledges and agrees that an event of default hereunder by Hy -Vee of its obligations pursuant to the PADA, that is capable of being construed as an obligation of Developer herein, shall not be construed to bind Anderson -KM, nor affect Anderson-KM's rights and/or obligations under this Agreement, nor entitle the City to pursue any remedies against Anderson -KM. 10 SIGNATURE AND NOTARY PAGES FOR PLANNED UNIT DEVELOPMENT SITE IMPROVEMENT AGRI±,EEMENT (PUD DEVELOPMENT DISTRICT 14-09) IN WITNESS WHEREOF, we have Hereunto set our hands and seals. CITY OF NEW HOPE By: Its Mayor Its City Manager HY-VEE, INC., an Iowa corporation 0 Jeffrey Markey, Vice President Nathan Alleva, Assistant Secretary ANDERSON -KM BUILDERS, LLC, a Minnesota limited liability company By: Its: By: Its: 11 SIGNATURE AND NOTARY PAGES FOR PLANNED UNIT DEVELOPMENT SITE IMPROVEMENT AGREEEMENT (PUD DEVELOPMENT DISTRICT 14-09) IN WITNESS WHEREOF, we have hereunto set our hands and seals. CITY OF NEW HOPE By: Its Mayor By: Its City Manager HY-VEE, INC., an Iowa corporation........., Je�key, 'Vice President By: —' -- �— dl� Pathan Allen, Assistant Secretary ANDERSON -KM BUILDERS, LLC, a Minnesota limited liability company By: 11 Its: Its: SIGNATURE AND NOTARY PAGES FOR PLANNED UNIT DEVELOPMENT SITE Il14PROVEMENT AGREEEMENT (PUD DEVELOPMENT DISTRICT 14-09) IN WITNESS WHEREOF, we have hereunto set our hands and seals. CITY OF NEW HOPE By: Its Mayor By: Its City Manager HY-VEE, INC., an Iowa. corporation By: Jeffrey Markey, Vice President By: Nathan Allen, Assistant Secretary ANDERSON -KM BUILDERS, LLC, a Minnesota 1' ited 1' ' Sty company r By: By: I �13a 11 STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this,.., day of 2014, by Kathi Heinken and Kirk McDonald, the Mayor and Manager, respectively, of the City of New Hope, a Minnesota municipal corporation, on behalf of said municipal corporation. _-LA Notary Pub 'c STATE OF IOWA LORRAINE HELEN KLOSS Notary PublEo-Minnesoia S5. My t;emmlkicn moiree Jan 91.201 B COUNTY OF POLK ) The foregoing instrument was acknowledged before ane this _ day of , 2014, by Jeffrey Markey and Nathan Allen, the Vice President and Assistant Secretary, respectively, of HY- VEE, INC., an Iowa corporation, on behalf of said corporation. Notary Public STATE OF MINNESOTA ) } ss. COUNTY OF ) The foregoing instrument was acknowledged before me this ____ day of , 2014, by and the and , respectively, of ANDERSON -KM BUILDERS, LLC, a Minnesota limited liability company, on behalf of said limited liability company. DRAFTED BY. - Jensen SondralI Persellin & Woods, P.A. 8525 Edinbrook Crossing, #201 Brooklyn Park, MN 55443 (763)424-8811 City Notary Public JD)IHy-Yee PUD Site Improwment Agreement ♦loos 12 STATE OF MINNESOTA ) } ss. COUNTY OF HENNEPIN } The foregoing instrument was . acknowledged before me this day of , 2014, by Kathi Hemken and Kirk McDonald, the Mayor and Manager, respectively, of the City of New Hope, a Minnesota municipal corporation, on behalf of said municipal corporation. Notary Public STATE OF IOWA ) } ss. COUNTY OF POLK ) The foregoing instrument was acknowledged before me this 5f'day of b&VtP-.W , 2014, by Jeffrey Markey and Nathan Allen, the Vice President and Assistant Secretary, respectively, of HY- VEE, INC., an Iowa corporation, on behalf of said corporation. Not4,jy Public "L JULIE L. JENSEN STATE OF MINNESOTA ) T. CAMMIssioN No. 123588 ) SS. WCOMM)SSfOJVMRES COUNTY OF } rows 5 , The foregoing instrument was acknowledged before me this _ ___ day of and the respectively, of ANDERSON -KM BUILDERS, LLC, a Minnesota behalf of said limited liability company. DRAFTED BY- Jensen Y Jensen Sondrall Persellin & Woods, P.A, 8525 Edinbmok Crossing, #201 Brooklyn Park, MN 55443 763) 424-5811 Notaq Public 2014, by and , Iimited liability company, on F:1Attorney\SAS11 Clie+rt HeQ City ofNew Hope199 21409 (Hy -Vee PW)11iy Vee FUD site improvement AgreemenLdom 12 STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this day of 2014, by Kathi Hemken and Kirk McDonald, the Mayor and Manager, respectively, of the City of New Hope, a Minnesota municipal corporation, on behalf of said municipal corporation. Notary Public STATE OF IOWA } ) ss. COUNTY OF POLK ) The foregoing instrument was acknowledged before me this _ day of — ! 2014, by Jeffrey Markey and Nathan Allen., the Vice President and Assistant Secretary, respectively, of HY- VEE, INC., an Iowa corporation, on behalf of said corporation, Notary Public STATE OF MINNESOTA ) )ss. COUNTY OF The foregoing instrument was acknowledged before me this v;.", day of /''. z'' 2014, by �r 'vi,i tf and ( -I .'€tV .. r'1 the �..�t� and respectively, of ANDERSON -KM BUILDERS, LLC, a Minnesota limited liability company, on behalf of said limited liability company, r r '- --- a1y Pub ib --J DRAFTED BY: Jensen Sondrall Persellin & Woods, P.A. 8525 Edinbrook Crossing, #201 Brooklyn Park, MN 55443 (763) 424-8811 Londa J. Moen rlowy pro, state a t my conk" e046 drnvary 31, 2019 City of New 1100\99 -21409 (Hy -Vee PUD)" -Vee PUB Site Improvement Agreement v2Aocx 12 Existing Certs 1395518,1395519 Doc No T05212940 Certified, filed and/or recorded on Nov 7, 2014 1:00 PM Office of the Registrar of Titles Hennepin County, Minnesota Martin McCormick, Registrar of Titles Mark Chapin, County Auditor and Treasurer Deputy 84 Doc Name: Easement Pkg ID 1172458C Document Recording Fee $46.00 Document Total $46.00 Thls cover sheet is now a permanent part of the recorded document. EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND VIECI THIS EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND ("ECR") is made as of the 6th day of November, 2014, by and between HY-VEE, INC,, an Iowa corporation, of 5820 Westown Parkway, West Des Moines, Iowa 50266 ( "Hy -Vee"), and NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY, a public body politic and corporate (the "Authority"). WITNESSETH: WHEREAS, Hy -Vee is the owner of real estate situated in New Hope, Hennepin County, Minnesota, legally described on Exhibit "A" attached hereto and incorporated herein (the "Hy -Vee Tract"), and visually depicted on the "Site Plan" on Exhibit "C" attached hereto and incorporated herein; and WHEREAS, Authority is the owner of meal estate situated in New Hope, Hennepin County, Minnesota, legally described on Exhibit "B" attached hereto and incorporated herein ("Outlot A"), and visually depicted on the Site Plan; and WHEREAS, Hy -Vee and Authority desire that the Hy -Vee Tract and Outlot A be developed pursuant to a general plan of improvement to form a retail and office commercial development, and further desire that said tracts be subject to the easements and the covenants, conditions and restrictions hereinafter set forth. NOW, THEREFORE, for and in consideration of the premises, easements, covenants, conditions, restrictions, and encumbrances contained herein, the sufficiency of which is hereby acknowledged, Hy -Vee hereby declares as follows: 1, BuildingjCommon Areas 1". (a) "Lot" means either Lot 1, Lot 2, -or Lot 3. (b) "Lot 1" means that portion of the Hy -Vee Tract identified on the Site Plan as "Lot (c) "Lot 2" means that portion of the Hy -Vee Tract identified on the Site Plan as "Lot A'ausn 40'. 3C MB a 043 (D s oM Ganmercia! Partnere title, LLC goo South Sixth Street suite 1300 MEaneapofls, MN 55409 0 3". (d) "Lot 3" means that portion of the Hy -Vee Tract identified on the Site Flan as "Lot (e) "Shopping Center" means the entirety of the Hy -Vee Tract and Outlot A. 2. Use. (a) Building(s) in the Shopping Center shall be used by owners, tenants, licensees and other occupants, whether by ownership, lease, license or other occupancy right (hereinafter individually referred to as an "Occupant," and collectively referred to as "Occupants") for commercial purposes of the type normally found in a retail shopping center including, without limitation, service shops, offices, retail stores and banking facilities. No auto dealer (new or used); manufacturing, distribution, wholesale or industrial use; coin operated laundry; dry cleaning plant; billiard parlor; skating rink; dance hall; night club; flea market; banquet hall; funeral parlor; off-track betting establishment; pornographic or "triple -x" video/book store; sexually oriented business; pawnshop; spay or neuter clinic (not including a veterinary clinic); abortion service provider; any business selling or serving alcoholic beverages for on premises consumption (except on Lot 1 and/or Lot 2); check cashing business (provided, however, a bank or credit union, or grocery store shall not be restricted hereby), a tattoo business, or a gun business (provided, however, a sporting goods store that sells, as a part of its sporting goods inventory, guns and ammunition shall not be restricted hereby), shall occupy space within the Shopping Center. In the event of a breach of this covenant, Hy -Vee and/or the Authority (regardless of whether the Authority still owns any portion of the Shopping Center) and/or any owner of any lot or tract within the Shopping Center shall have the right, without limitation, and in addition to any other remedy available to such party at law or in equity, to seek temporary or permanent injunctive relief. (b) Competing Businfss. Except by Hy -Vee, no portion of Lot 3 shall be used for any of the following, to -wit: see Exhibit "D" attached hereto and incorporated herein. In the event of a breach of this covenant, Hy -Vee and/or the owner of Lot 1 and/or the owner of Lot 2 shall have the right, without limitation, and in addition to any other remedy available to Hy -Vee and/or the owner of Lot 1 and/or the owner of Lot 2 at law or in equity, to seek temporary or permanent injunctive relief. (c) Tax Increment District. The Authority and City will be creating the Center City Redevelopment Tax Increment Financing District (the "TIF District") that will encompass the Shopping Center and certain adjoining property to the northeast. All tax increment generated from the TIF District will be utilized to repay the Authority for its investment prior to the date hereof in acquiring and preparing the Shopping Center for redevelopment and to reimburse the Authority and the City for the cost of the public improvements upon Outlot A and upon other property in the � ill Usstrict. Because the Authority and City will be relying on such tax increment as the source of reimbursement for such costs, the owner of Lot 1, Lot 2 and Lot 3, or any of such Lots, agrees that prior to the date of termination of the TIF District (and if extended, only to the date such district would have initially expired if not extended): (i) it will not seek administrative or judicial review of the constitutionality of any tax statute determined by any tax official to be applicable to the improvements initially constructed upon any lot or tract within the Shopping Center or raise the unconstitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings; and (ii) it will not cause a reduction in the assessed value of the improvements initially constructed upon any lot or tract within the Shopping Center through: (A) willful destruction of such improvements or any part thereof, except as a part of a renovation of such improvements in the ordinary course of business of such owner; (B) willful refusal to reconstruct damaged or destroyed property following any casualty loss or event; (C) an application to the commissioner of revenue of the State or to any local taxing jurisdiction requesting an abatement of real property taxes regarding such improvements, unless applicable to subsequent renovations or additions made to such improvements, and then only for the additional incremental value associated therewith; and/or (D) a transfer of the Shopping Center or improvements thereon, or any part thereof, to an entity exempt from the payment of real property taxes under State law. In the event of a breach of this covenant, Hy -Vee and/or the Authority (regardless of whether the Authority still owns any portion of the Shopping Center) shall have the right, without limitation, and in addition to any other remedy available to Hy -Vee and/or Authority at law or in equity, to seek temporary or permanent injunctive relief, The owner'of Lot 1, Lot 2, and Lot 3 or any of such Lots, agrees to use its best efforts to provide notice to the Authority of its intention to seek a reduction in the assessed market value of Lot 1 or Lot 1 for tax purposes prior to initiating that proceeding, provided, that a failure to give such notice shall not invalidate such proceedings and will not constitute a default under this Declaration. 3. Buildings, Lot 3 Parking Ratio. (a) Design and Construction. Any building constructed within the Shopping Center shall be designed so that the exterior elevation of each shall be architecturally and aesthetically compatible with the then -existing or planned (as is applicable) building located on Lot 1, and so that building wall footings shall not encroach from one lot or Tract onto another Tract. The design and construction shall be of high quality. Only one building may be constructed upon Lot 3. No building constructed on Lot 3 shall (i) be of more than two -stories, (ii) exceed thirty-five (35) feet in height above finished grade, or (iii) have a metal exterior without the prior written approval of the owner of Lot 1; provided, however metal may be used as a building material of an architectural feature. No building may be constructed upon Outlot A; provided that signage may be constructed on Outlot A. (b) Fire Protection. Any building constructed upon Lot 3 shall be constructed and operated in such a manner which will preserve the sprinklered rate on the other buildings in the Shopping Center. (c) Design and Plans Appmyal. Except by Hy -Vee, no improvements shall be constructed, erected, expanded, or altered within the Shopping Center until the plans and specifications for same (including site layout, exterior building materials and colors, landscaping and parking layouts) have been provided to Hy -Vee and Hy -Vee shall have been given a reasonable opportunity to review and comment on such plans and specifications. Except as detailed in this Agreement, the buildings shall be designed so that the exterior elevation of each shall be architecturally and aesthetically compatible with each other and with buildings on Lots 1 and 2. The design and construction on improvements shall be first quality and in accordance with the plans submitted to and reviewed by Hy -Vee as described herein and in complete and full compliance with (i) any and all governmental requirements and all city zoning and other ordinances. The owner of any portion of the Shopping Center that desires to construct improvements therein agrees to cause its respective architect to work in good faith with Hy -Vee, and its architects, so that the building(s) and other improvements to be erected and constructed will have an overall cohesive and related architectural continuity and will be in harmony with the remainder of the Shopping Center. Hy-Vee's review shall be limited to site plans, elevations and material lists and shall not extend to fall construction plans. (d) Lot 3 Parking Ratio. Unless the owner of Lot 1 consents in writing to a lower parking ratio requirement, Lot 3 shall at all times independently maintain a parking ratio that satisfies, without a variance or conditional use permit, the City of New Hope then -current zoning code for non -planned unit development districts. 4. Grant of Easements. Hy Vee and Authority hereby declare the creation and existence of the following nonexclusive easements: (a) A vehicular ingress and egress easement over, through and upon the driveway areas of the Shopping Center (but excluding the loading dock areas upon Lot I and Lot 2 as they exist from time -to -titre, for the mutual benefit of the Hy -Vee Tract and Outlot A, for vehicular ingress and egress of customers, invitees, licensees, tenants, suppliers and employees of all Occupants of the buildings within. the Shopping Center, and the Authority and City of New Hope for the public feature installed upon Outlot A. (b) A pedestrian ingress and egress easement over, through and upon the sidewalks, driveways and parking areas of the Shopping Center (but excluding the loading dock areas upon Lot 1 and Lot 2 as they exist from time -to -time, for the mutual benefit of the Hy -Vee Tract and Outlot A, for pedestrian ingress and egress of customers, invitees, licensees, tenants, suppliers and employees of all Occupants of the buildings within the Shopping Center, and the public with respect to the public feature installed upon Outlot A. (c) A vehicular parking easement over, through and upon the parking areas of the Shopping Center as they exist from time -to -time, for the mutual benefit of Lots within the Hy - Vice Tract, for the customers, invitees, licensees, tenants, suppliers and employees of all of the Occupants of the buildings within the Shopping Center; provided, however, the Occupant of each Lot shall take reasonable efforts to prevent the parking of their employees upon any other Lot within the Shopping Center. (d) Future Development. In the event the Authority or a third party developer closes on the purchase of land immediately adjacent to the Hy -Vee Tract to the East during the term of this ECR, the Authority shall be entitled to connect a future roadway connecting Winnetka Avenue N. to the driveway areas located within the Shopping Center at the Authority's (or its successor in interest with respect to ownership of such property) sole cost and expense and thereafter, there shall be deemed a non-exclusive ingress and egress easement over and upon the driveway areas of the Shopping Center, as they may exist from time -to -time, for the mutual benefit of the owners of property within tho Shopping Center and the owner(s) of property immediately adjacent to the Shopping Center to the East that become owned by the Authority or a third party developer. The Authority shall cause any third party developer working in cooperation with the Authority with respect to the redevelopment of such land immediately adjacent to the Hy -Vee Tract to the East to provide the ingress and egress easement over such tract at the time such tract is developed. 5. Maintenance. The respective owners and Occupants of the tracts and lots within the Shopping Center, shall at their sole cost and expense, maintain their respective tracts in good condition and repair. This maintenance is to include, without limitation, the following: (a) Maintaining all buildings in good condition and repair, including (without limitation) exterior walls, signage, lighting, windows and doors, entryways and service areas; (b) Maintaining the parking, driveway and sidewalk surfaces in a level, smooth and evenly -covered condition with the type of surfacing material originally installed or such substitute as shall in all respects be equal in quality, use, and durability; (c) Removing all papers, ice and snow, mud and sand, debris, filth and refuse and thoroughly sweeping the area to the extent reasonably necessary to keep the area in a clean and orderly condition; (d) Placing, keeping in repair and replacing any necessary appropriate directional signs, markers and lines; (e) Operating, keeping in repair and replacing, where necessary, such artificial lighting facilities as shall be reasonably required; (f) Maintaining all perimeter and exterior building walls including but not limited to all retaining walls in a good condition and state of repair; (g) Maintaining, mowing, weeding, trimming and making such replacements of shrubs and other landscaping as is necessary; (h) Maintaining the stounwater facilities; and (i) Maintaining the irrigation system. 6. Indemnification/Insurance. (a) Indemnification. The owners of Lot 1, Trot 2, Lot 3 and Outlot A shall each indemnify and save each other harmless from any and all liability, damage, expense, causes of action, suits, claims, or judgments arising from personal injury, death, or property damage and occurring on or £iom its own tract, except and to the extent caused by the act or negligence of the owner or Occupant of another lot or tract. (b) Insurance. (i) The owner(s) or Occupant(s) of Lot 1, Lot 2, Lot 3 and Outlot A, shall each procure and maintain in full force and effect throughout the term of this Declaration general public liability insurance and property damage insurance against claims for personal injury, death or property damage occurring upon, in or about its property, each party's insurance to afford protection to the limit of not less than $2,000,000.00 for injury or death of a single person, and to the limit of not less than $2,000,000.00 for any one occurrence, and to the limit of not less than $500,000.00 for property damage. The owner or Occupant of each such lot or tract shall provide the other owner(s) with certificates of such insurance from time to time upon written request to evidence that such insurance is in force. Such insurance may be written by additional .premises endorsement on any master policy of insurance carried by the party which -may cover other property in addition to the property covered by this Declaration. (ii) Insurance against loss and/or damage to improvements under a policy or policies covering such risks as are ordinarily insured against by similar businesses, including (without limiting the generality of the foregoing) fire, extended coverage, all risk vandalism and malicious mischief, boiler explosion, water damage, demolition cost, debris removal, and collapse in an amount not less than the full insurable replacement value of the improvements. The term "full insurable replacement value" shall mean the actual replacement cost of the Improvements (excluding foundation and excavation costs and costs of underground flues, pipes, drains and other uninsurable items) and equipment. (iii) Notwithstanding anything to the contrary contained in this Section, so long as the net worth of the owner, tenant or Occupant of any lot or tract shall exceed One Hundred Million Dollars ($100,000,000.00), and/or so long as Hy -Vee, the City of New Hope, or the Authority is owner, lessee or Occupant of any lot or tract, such owner, 6 tenant or Occupant, or Hy -Vee, the City of New Hope or the Authority, as is applicable, shall have the right to retain the financial risk for any claim. (c) Nothing in this document shall be construed to limit or affect any limitations on liability of the Authority or the City of New Hope under State or federal law, including without limitation, Minnesota Statutes Sections 466.04 and 604.02. 7. Eminent Domain. (a) Owners -Right to _Award. Nothing herein shall be construed to give the owner of any lot or tract in the Shopping Center any interest in any award or payment made to any other lot or tract owner in connection with any exercise of eminent domain or transfer in lieu thereof affecting said other owner's tract or giving the public or any government any rights in said tract. (b) Tenant's Claim. Nothing in this Section shall prevent a tenant from making a claim against an owner pursuant to the provisions of any lease between tenant and owner for all or a portion of any such award or payment. 8. Rights and Obligations of Lenders. If by virtue of any right or obligation set forth herein a lien shall be placed upon any lot or tract within the Shopping Center, such lien shall expressly be subordinate and inferior to the lien of any first lienholder now or hereafter placed on such lot or tract. Except as set forth in the preceding sentence, however, any holder of a first lien on Lot 3, and any assignee or successor in interest of such first lienholder, shall be subject to the terms and conditions of this Declaration. 4. Expansion of Shopping Center. The parties agree that in the event the Shopping Center is expanded by ownership or control of any tract within the Shopping Center, or agreement with a third party, all of the provisions of this Declaration shall apply to the expanded area including (without limitation) restrictions on use and maintenance requirements. 10. Self -Help. In the event Hy -Vee or the owner of Lot 1 andlor Lot 2 and/or Lot 3 reasonably determines that the owner of another Lot, or any portion thereof, is insufficiently maintaining all or a portion of such owner's Lot, then Hy -Vee or the owner of a Lot may take any steps reasonably necessary, in the reasonable opinion of such owner to bring the Lot into compliance with the maintenance obligations thereof set forth herein, including paying the costs thereof. The owner taking such steps shall bill the owner of Lot that is not in compliance for such actual reasonable costs to the owner for bringing the Lot into compliance with such maintenance obligations, and the same shall be due within fifteen days of the date of such invoice. Such reimbursement obligation shall be secured by a lien in favor of the owner taking the steps to bring the Lot into compliance, but such Iien shall only be perfected upon the date of filing or recording of an instrument describing the nature of such lien, and upon such recordation or filing shall accrue interest on the outstanding amount of said lien at the lower of (i) twelve percent (120K) per annum, or (ii) the highest amount allowed by law, until satisfied. 11. Breach. In the event of breach or threatened breach of this Declaration, the owner of any Lot or tract in the Shopping Center, or Hy-Vec so long as it or any affiliate has an interest as 7 owner, lessee or Occupant of any portion of the Shopping Center, shall be entitled to institute proceedings for full and adequate relief from the consequences of said breach or threatened breach. The unsuccessful party in any action shall pay to the prevailing party a reasonable sun for litigation expenses and attorney's fees, which shall be deemed to have accrued on the date such action was filed. 12. Rightsof Successors. The easements, restrictions, benefits and obligations hereunder shall create mutual benefits and servitudes running with the land. This Declaration shall bind and inure to the benefit of the parties hereto, their respective heirs, representatives, lessees, successors and assigns. The singular number includes the plural and the masculine gender includes the feminine and neuter. 13. Modification and Cancellation. This Declaration (including exhibits) may be modified, amended or canceled only by the mutual agreement of all of the record titleholders of the Shopping Center, 14. Non -Merger. This Declaration shall not be subject to the doctrine of merger. 15. Duration. Unless otherwise canceled or terminated, this Declaration and all the easements, covenants, rights, restrictions, and provisions in this Declaration create an equitable servitude upon the respective tracts, constitute covenants running with the land, shall bind every person or entity having any fee, lcasehold, or other interest in or encumbrance on any portion of either property at any time, and shall continue in full force and effect perpetually. Notwithstanding the foregoing, the provisions of Section 2(b) of this Declaration shall terminate if Lot 1 ceases being used for any of the uses set forth in Subsections (b), (c), and (e) of Exhibit "D" for a consecutive period of twelve (12) months. 16. Headings. The headings herein are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of this document nor in any way affect the terms and provisions hereof. 17. Choice of Law. This Declaration shall be construed and enforced in accordance with the laws of the State of Minnesota, without regard to conflicts of laws principles. [SIGNATURES ON FOLLOWING PAGE] IN WITNESS WHEREOF, Hy -Vee and Authority have executed this ECR on or as of the day and year first written above. HY-VEE: HY-VEE, INC. an Iowa corporation Jeffivy'Markey, ice President LN STATE OF IOWA ) SS. POLK COUNTY ) A-- -'�--4- �(14� Nathan Allen, Assistant Secretary On this 'St" day of o v, -�- kv , 2614, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Jeffrey Markey and Nathan Allen to me personally known, who being by me duly sworn, did say that they are the Vice President and Assistant Secretary, respectively, of Hy -Vee, Inc., an Iowa corporation, that said instrument was signed on behalf of said corporation by authority of its Board of Directors; and that the said Jeffrey Markey and Nathan Allen as such officers acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. Nom Public in and for. t e State of Iowa JULIE t„ JENSEN COMMISSION NO. 123588 W.CQW EXPIRES IOWA �• 9 NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY its: President By: Its: Executive Director STATE OF MINNESOTA ) )5$. COUNTY OF HENNEPIN ) Thefor going ' strument was acknowledge efore me tlris�day of 2414 by f and the President and Executive Director of the New Hope Economic Development Authority, a public body politic and corporate, on behalf of the Authority. __44_ 1 t Notary Public ,ORMINE HELEN KLOSE Notary Publlo-Minnesota u n"m aim EX0149 Jen 31, 2010 THIS INSTRUNICN'i' WAS DRAFTEE) gY Zobe-r� ;jce. (naroo and address) 10 EXHIBIT "A" LEGAL DESCRIPTION OF HY-VEE TRACT Lots I, 2 and 3, Block 1, NEW HOPE HY-VEE, New Hope, Heiuie}yin County, :Minnesota 11 EXHIBIT "B" LEGAL DESCRIPTION OF OUTLOT A Outlot ALBlock I)NEW HOPE HY-VEE, Hennepin County, Minnesota k�"arc, 12 W� m r, NO delinquent taxes Current year taxes for whole parcel are paid Transfer Entered Nov 7, 2014 1:00 PM Hennepin County, Minnesota Mark Chapin County Auditor and Treasurer Doc No T05212938 Certified, filed andlor recorded on Nov 7, 2014 1:40 PM Office of the Registrar of Titles Hennepin County, Minnesota Martin McCormick, Registrar of Titles Mark Chapin, County Auditor and Treasurer Deputy 84 Pkg ID 1172458C Doc Name: Plat Exchange Certificate Pee $40.00 Plat Fee $56.00 Document Total - $95.00 PID(s) 18-118-21-11-4005, 18-118-21-11-0012, 18-118-21-11-0013 Existing Certs 1385516 New Certs 1395517 This cover sheet Is now a permanent part of the recorded document. Plat New Hope Hy Vee Addn No. 10072 Ctf Number: 733877 & 1353772 Owner: The Economic Development Authority In and for the City of New Hope Date of plat: 1117114 Plat embraces all of above land. Above land now described as: Lots 1, 2 and 3, Block 1, and Outlot A, New Hope Hy Vee EDA Request for Action R Originating Department Approved for Agenda Agenda Section Community Development November 24, 2014 EDA Item No. 4 By: Jeff Sargent, Director of CD By: Kirk McDonald, City Manager A Resolution Authorizing an Amendment to the Purchase and Development Agreement with Hy -Vee, Inc. project no. 893. Requested Action Staff requests the Economic Development Authority (EDA) approve a motion authorizing an amendment to the Purchase and Development Agreement with Hy -Vee, Inc. The City Council discussed this matter at the November 17 work session and was in agreement with the proposed amendment. Policy/Past Practice It is a past practice of the staff to get EDA approval/authorization prior to amending a purchase and development agreement. Background On September 22, the City Council approved the Purchase and Development Agreement for Hy -Vee. Schedule "E" of the agreement outlines the public improvements that Hy -Vee needs to complete in order to fulfill the agreement. Under "Streetscape' Impzo'verhents", the agreement states that Hy -Vee shall construct all streetscape improvements located within the :following rights=of-way: • The east side of Xylon Avenue between 42nd Avenue and the north end of the Redevelopment Property • The south side of the Redevelopment Property along 42nd Avenue. Hy -Vee is responsible for the cost of all of the Hy -Vee Public Improvements. As the Council is aware, staff has been working on the streetscape design along Xylon Avenue for the past several months. When the first iteration of the plan was presented to Hy -Vee, they indicated that they would Motion by J Second by To: lq— ly LARWCOMM DEV\Deve10 ment\Q & R- Amendment to Dev agreement for Hy -Vee 11-24-14.doc iiequ�0 fvr i i.�iOn November 24, 2014 Page 2 not agree to pay for the costs associated with creating anything other than a basic streetscape design. Since the current Development Agreement does not specify any costs or specific improvement elements, staff and Hy -Vee felt that it would be prudent to amend the Development Agreement to incorporate costs and the specific improvements Hy -Vee would be responsible for. City Staff worked closely with Stantec and Hy -Vee to ensure that the proposed improvements made sense and that the costs of said improvements were in-line with construction costs realized by Stantec. The Amendment The proposed amendment requires that Hy -Vee would pay an amount not to exceed $314,771.76 for their portion of the streetscape improvements. This number includes a donation of $50,400 towards street lights, $13,600 towards overstory trees, and $14,240 towards shrubs and other landscaping. The costs for the remainder of the improvement elements figured into the $314,771.76 will be tracked to ensure that Hy -Vee will not pay more than the agreed upon amount. City Staff and Hy -Vee also agreed that it would make more sense for the City to construct all of the streetscape improvements along Xylon Avenue, instead of two separate contractors bidding out the project and constructing it separately. For this reason, an additional amendment to the original Development Agreement would require the City to construct all the streetscape improvements along Xylon Avenue, but would still require Hy -Vee to construct the streetscape improvements along 42nd Avenue. The City's EDA attorney, Bob Deike, drafted the proposed amendment and the City Attorney also reviewed the document. The proposal was forwarded on to Hy-Vee's attorney and he also agreed to the language in the amendment. Recommendation Staff recommends approving the resolution amending the purchase and development agreement with Hy - Vee, Inc. Attachments • Resolution • Amendment to the Purchase and Development Agreement NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY RESOLUTION NO. 14- 18 RESOLUTION AUTHORIZING THE EXECUTION OF A FIRST AMENDMENT TO A PURCHASE AND DEVELOPMENT AGREEMENT WITH HY-VEE, INC. BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY (the "Authority") AS FOLLOWS: WHEREAS, the Authority and the City of New Hope, Minnesota (the "City") have created Redevelopment Project No. 1(the "Project") within the City in order to facilitate the redevelopment of the real property located within the Project; and WHEREAS, the Authority acquired certain real property (the "Property") located within the Project; and WHEREAS, the Authority and Hy -Vee, Inc., (the "Developer") entered into a Purchase and Development Agreement (the "Development Agreement") pursuant to which the Developer purchased the Property from the Authority for the purpose of constructing a commercial development on the Property; and WHEREAS, in connection with the Developer's redevelopment of the Property there will be constructed certain public improvements by the Authority and/or the City of New Hope (the "City") and the Developer; and WHEREAS, the Development Agreement describes the responsibilities of the parties with respect to the construction of such public improvements and the payment of the costs thereof; and WHEREAS, there has been presented to the Authority's Board of Commissioners a proposed First Amendment to Purchase and Development Agreement (the "Amendment") between the Authority and the Developer clarifying the responsibilities of the Authority and/or the City and the Developer regarding the construction of the public improvements and the payment of the cost of such construction. NOW, THEREFORE, be it hereby resolved by the Board of Commissioner of the Authority that the appropriate officers of the Authority are hereby authorized to execute the Amendment in substantially the form presented to the Board of Commissioners, subject to such non -substantive changes as may be approved by the Executive Director and the Authority's legal counsel, and to take all appropriate and additional actions which are necessary to implement the terms of the Amendment. Adopted this 24th day of November, 2014. Kathi Her ken, President Attest: Kirk McDonald, Executive Director Redline version illustrating changes made following November 17, 2014, work session FIRST AMENDMENT TO PURCHASE AND DEVELOPMENT AGREEMENT THIS AGREEMENT, made on or as of the day of , 2014, by and between the New Hope Economic Development Authority, a public body corporate and politic (hereinafter referred to as the "Authority"), and Hy -Vee, Inc., an Iowa corporation (hereinafter referred to as "Hy -Vee"), , and amends that certain Purchase and Development Agreement dated as of October 9, 2014 (the "Agreement"). WHEREAS, the Agreement provides that the Authority, will convey to Hy -Vee certain real property in the City of New Hope (the "Property") and that Hy -Vee will construct a commercial development on the Property; and WHEREAS, the Property has been conveyed to Hy -Vee; WHEREAS, in connection with the Hy-Vee's proposed development certain public improvements will need to be constructed and the Agreement sets forth the responsibilities of the parties with respect to such public improvements; and WHEREAS, the Authority and Hy -Vee desire to amend the Agreement to clarify their respective responsibilities in connection with the construction of the public improvements and the payment of the costs thereof. NOW, THEREFORE, the parties do hereby agree as follows: Section 1. Schedule E of the Agreement is amended to add the following clarification: A portion of the Hy -Vee Public Improvements consist of streetscape improvements for the east side of Xylon Avenue between 42nd Avenue and the north end of the Redevelopment Property, and the south side of the Redevelopment Property along 42"d Avenue (collectively, the "Streetscape Improvements"). The Streetscape Improvements are separate from the improvements to 42nd avenue that are already part of Hy-Vee's plans and budget, which improvements will be paid for by Hy -Vee in accordance with the Agreement. With respect to the Streetscape Improvements: 1. The City will construct the Streetscape Improvements along the east side of Xylon Avenue between 42"d Avenue and the north end of the Redevelopment Property. Hy -Vee will construct the Streetscape Improvements along the south side of the Redevelopment Property along 42nd Avenue. 2. Hy -Vee shall be responsible for contributing (a) $50,400 towards the Street and Parking Lot Lights as shown on the Site Costs schedule attached to the First Amendment as Exhibit "A" (the Site Costs Schedule), (b) $13,600.00 towards Overstory Trees as shown on the Site Costs Schedule, and (c) $14,240.00 towards Shrubs as shown on the Site Costs Schedule; 3. Hy -Vee shall be responsible for contributing up to the amounts shown in the column entitled "Total" on the Site Costs Schedule. In the event the actual cost of any element is less than the amount reflected on the Site Costs Schedule attributable to the same, Hy -Vee shall pay only the actual cost therefor. 1R Su to the clar —')n c- in the following —inter - the event the actual cost of any such element is greater than the amount reflected on the Site Cost Schedule attributable to the same, Hy -Vee shall pay only the amount shown on the Site Cost Schedule associated therewith. Hy Vee's financial obligations shall include the amount designated "Contingency" which is intended to cover cost overruns attributable to individual elements of the Streetscape Improvements. Section 2. All other provisions of the Agreement shall remain in force and effect. 2 FIRST AMENDMENT TO PURCHASE AND DEVELOPMENT AGREEMENT THIS AGREEMENT, made on or as of the 2_ th day of November , 2014, by and between the New Hope Economic Development Authority, a public body corporate and politic (hereinafter referred to as the "Authority"), and Hy -Vee, Inc., an Iowa corporation (hereinafter referred to as "Hy -Vee"), , and amends that certain Purchase and Development Agreement dated as of October 9, 2014 (the "Agreement"). WHEREAS, the Agreement provides that the Authority, will convey to Hy -Vee certain real property in the City of New Hope (the "Property") and - that Hy -Vee will construct a commercial development on the Property; and WHEREAS, the Property has been conveyed to Hy -Vee; WHEREAS, in connection with the Hy-Vee's proposed development certain public improvements will need to be constructed and the Agreement sets forth the responsibilities of the parties with respect to such public improvements; and WHEREAS, the Authority and Hy -Vee desire to amend the Agreement to clarify their respective responsibilities in connection with the construction of the public improvements and the payment of the costs thereof. NOW, THEREFORE, the parties do hereby agree as follows: Section 1. Schedule E of the Agreement is amended to add the following clarification: A portion of the Hy -Vee Public Improvements consist of streetscape improvements for the east side of Xylon Avenue between 42nd Avenue and the north end of the Redevelopment Property, and the south side of the Redevelopment Property along 42nd Avenue (collectively, the "Streetscape Improvements"). The Streetscape Improvements are separate from the improvements to 42nd avenue that are already part of Hy-Vee's plans and budget, which improvements will be paid for by Hy -Vee in accordance with the Agreement. With respect to the Streetscape Improvements: 1. The City will construct the Streetscape Improvements along the east side of Xylon Avenue between 42nd Avenue and the north end of the Redevelopment Property. Hy -Vee will construct the Streetscape Improvements along the south side of the Redevelopment Property along 42nd Avenue. 2. Hy -Vee shall be responsible for contributing (a) $50,400 towards the Street and Parking Lot Lights as shown on the Site Costs schedule attached to the First Amendment as Exhibit "A" (the Site Costs Schedule), (b) $13,600.00 towards Overstory Trees as shown on the Site Costs Schedule, and (c) $14,240.00 towards Shrubs as shown on the Site Costs Schedule; 3. Hy -Vee shall be responsible for contributing up to the amounts shown in the column entitled "Total" on the Site Costs Schedule. In the event the actual cost of any element is less than the amount reflected on the Site Costs Schedule attributable to the same. Hy -Vee shall pay only the actual cost therefor. Subject to the clarification contained in the following sentence, in the event the actual cost of any such element is greater than the amount reflected on the Site Cost Schedule attributable to the same, Hy -Vee shall pay only the amount shown on the Site Cost Schedule associated • therewith. Hy-Vee's financial obligations shall include the amount designated "Contingency" which is intended to cover cost overruns attributable to individual elements of the Streetscape Improvements. Section 2. All other provisions of the Agreement shall remain in force and effect. F; IN WITNESS WHEREOF, Hy -Vee and Authority have executed this First Amendment on or as of the day and year first written above. HY-VEE: HY-VEE, INC. an Iowa corporation By: effr i esident By: (/W' Nathan Allen, Assistant Secretary STATE OF IOWA } } ss. POLK COUNTY ) On this day of b -c aer-6L, , 2014, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Jeffrey Markey and Nathan Allen to me personally known, who being by me duly sworn, did say that they are the Vice President and Assistant Secretary, respectively, of Hy -Vee, Inc., an Iowa corporation, that said instrument was signed on behalf of said corporation by authority of its Board of Directors; and that the said Jeffrey Markey and Nathan Allen as such officers acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. JENNIFER & Eus Notary Public in and for the emmisal NOL 775224 State of Iowa Aff co �ISS10W 1RES �ow1, jol�a/doI NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY By: ay6u i e�' Its: President �L ` Its: Executive Director STATE OF MINNESOTA ) )SS. COUNTY OF HENNEPIN ) The fore oing instrument was acknowledge before me this :q day of 1 VdV , 2014, by E'®,1., and knt hkf )jwad the President and Executive Director of the New Hope Economic Development Authority, a public body politic and corporate, on behalf of the Authority. Notary Public ;' VALERIE LEONE NOTARY PUBLIC - MINNESOTA ..... My Canmisslon Expires dam. 31, 2016 4 EXHIBIT "A" — SITE COSTS SCHDULE (Page 1 of 2) 1013112014 Now Hope Streetscape improvement cost SITE COSTS Now Hope Hy -Vee: Xylon SidewalkoStreetsc®pe improvernents - Proposed Item No_ DescHpt+on Estimated Unit Unit Price Total 1 Mobgmsboe & Genend ConAms - L5 Si. 9,434.77 2 Construction Staid LS 12 500.00 3 lAsbastos Abatement(Old) - SF Is 1.Do $ - 4 UST Removal - LS $ 75,GDO.QD $ - 5 Dema 4Jtiims LS $ 12 G00.00 $ 6 Demo PavemerA and Haul - SF $ 3.50 $ - 7 Demo Building and Haut - SF $ 7.00 $ - a Corn Excavation 20,741 SF $ US $ 35 926.25 9 T l3dripteiockpikfftz read 258 CY ; 25.06 ; 6 SDAD 10 Hauling - CY $ 12.D0 $ - 11 Site Clearing fila moving any vegetation - AC $ 2,600.00 $ - 12 Emslon Control 28,741 SF $ &25 $ 7,185.25 13 Buiklinq Pad Pre SF $ 0.45 S 14 Heavy Duty PMACC and Subgrade Prep - SF $ 5.00 $ - 15 Light Duty PCC/ACC and Subgrade Prep - SF $ 5.00 $ - 16 PCC Curb and Gutter LF $ 17.00 $ 17 ACC MIA and avert - SF $ 3.00 $ - 18 Modular Bock Walls - SFF $ 20.00 $ - 19 Cast In Place Walls - SFF $ 30.00 $ - 2D PCC Sidewalks t .: 10, 0 . SF ' $ 7.00 $ 12,848110 21 Pavers SF $ am $ - 22 r Waiter Main - LF $ 43.00 S - 23 2' Water Main LF S 3Q_00 24 Underground Detention+ - SF $ 6.50 $ - 25 Hydrant Assembly - EA $ 3,500.00 $ - 26 Storm Sewer -All typesftbms LF $ 80.00 $ 27 Curb Intake - EA $ 1,7$0.00 S - 28 Slrorm Manhole - EA $ 2,000-00 $ - 29 Drain Tile - LF $ 40.00 $ - 30 Sanitary Sewer - LF $ 70.QD $ - 31 Grease Traps - FA $ 3,85D.00 $ - 32CPar;k!ncEt'pjng aUAL' 9 EA $ 5,600.W $ 50 0D.GD 33 Per SWI Markin EA $ 14.00$34 i - LF $ 7.50 $ - 102 EXHIBIT "A" — SITE COSTS SCHDULE (Page 1 of 2) 1i;i131=4 Now Nope StreetscaM improvement cools Item ©eamptiion No. Estimated Emit Guantityr Unit Price Total 35 Gas LF $ 7.50 $ 35 Telephone - LF $ 7.50 $ - 37 lCmWe - LF $ 7.50 $ - 36 Monument Sign - EA $ 10,000.00 3 - 39 Security Sollards - EA $ 1,600.00 $ - 40 Wood Privacy Fence - LF $ 40.00 $ - 41 Trus 34 EA $ 400.00 $ 13,600.00 42 Understo Trees - EA 3 250,00 43 178 44 PerennialslGroundcover - SF 5 2AG 45 Sad 18576 S1' $ 0.50 29,78B�MW 46 Seedin SF 0.25 47 Bioswale InstallationliNantin lintrastructure - EA $ 20,000.00 48 i 19 76 SF 0.4D ON-SITE SUBTOTAL $ 233,164.27 Project Subtotal $ 233,164,27 10% Contigency $ 23,316.43 25% indirect $ 5%291.07 PROJECT BUDGET $ 314 771,75 2012 ` EDA Request for Action Originating Department Approved for Agenda Agenda Section Community Development June 8, 2015 EDA Item No. By: Jeff Sar ent, Director of CD By: Kirk McDonald, Ci Manager 3 Resolution Authorizing the Execution of a First Amendment to Easements with Covenants and Restrictions Affecting Land Requested Action The Economic Development Authority (EDA) is requested to review the documents attached and approve the resolution authorizing the execution of a First Amendment to Easements With Covenants and Restrictions Affecting Land (ECR), between the City of New Hope Economic Development Authority and Hy -Vee, Inc. Policy/Past Practice The EDA has conducted approved amendments to Development Agreements as necessary and beneficial to the redevelopment plans of the city. Background The ECR is labeled as "Schedule F" of the Development Agreement between the EDA and Hy -Vee, Inc. The ECR outlines specific performance standards and uses throughout the development, which includes Lot 1 (Hy -Vee grocery store), Lot 2 (Hy -Vee convenience store and gas) and Lot 3 (a potential user of the land). North Memorial Clinic has submitted a Site Plan Approval application that was considered at the June 2 Planning Commission meeting, as a potential user for Lot 3. The proposed amendment to the ECR outlines maintenance and snow removal responsibilities for Lot 3 (North Memorial) as they relate to the operations of Hy -Vee. The proposed amendment does not directly involve the City in any capacity, as it focuses solely on maintenance relationships between Lots 3 and 1. The EDA is charged with approving this amendment because the ECR is a Schedule to the Development Agreement between the EDA and Hy -Vee, Inc. It should be noted that this amendment has been reviewed and recommended for approval by Ehlers and the City's redevelopment attorney, Bob Deike. Attachments • Resolution • Amendment to the ECR Motion by 6�� - , Second by To: FA A 15- 0 7 I:\RFA�COMM DEVIDevelo menti Q & R -EDA H -Vee ECR Amendment 6-8-15.doc NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY RESOLUTION NO.: v - C< RESOLUTION AUTHORIZING THE EXECUTION OF A FIRST AMENDMENT TO EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY (the "Authority") AS FOLLOWS: WHEREAS, the Authority and the City of New Hope, Minnesota (the "City") have created Redevelopment Project No. 1 (the "Project") within the City in order to facilitate the redevelopment of the real property located within the Project; and WHEREAS, the Authority acquired certain real property (the "Property") located within the Project; and WHEREAS, the Authority and Hy -Vee, Inc., (the "Developer") entered into a Purchase and Development Agreement (the "Development Agreement") pursuant to which the Developer purchased the Property from the Authority for the purpose of constructing a commercial development on the Property; and WHEREAS, pursuant to the Development Agreement, the Developer and the Authority entered into that certain Easements with Covenants and Restrictions Affecting Land dated November 6, 2014 (the "ECR") which created certain easements and imposed certain restrictions on the land that is the subject of the Development Agreement; and WHEREAS, there has been prepared and presented to the Authority's Board of Commissioners for its consideration a First Amendment to Easements with Covenants and Restrictions Affecting Land (the "First ECR Amendment") which modifies the terms of the ECR. NOW, THEREFORE, be it hereby resolved by the Board of Commissioner of the Authority that the appropriate officers of the Authority are hereby authorized to execute the First Amendment to ECR in substantially the form presented to the Board of Commissioners, subject to such non -substantive changes as may be approved by the Executive Director and the Authority's legal counsel, and to take all appropriate and additional actions which are necessary to implement the terms of the First Amendment to ECR. Adopted this 8th day of June, 2015. r Attest: -kmk�r Kirk McDonald, Executive Director Kathi Ilernken, President Pre aced by, return to: Nathan Allen, 5820 Westown Pkwy, West Des Moines lA 50266 (515)267-2870 FIRST AMENDMENT TO EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND THIS FIRST AMENDMENT TO EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND (hereinafter, the "Amendment") is made and entered into this 8th day of June, 2015, by and between HY-VEE, INC., an Iowa corporation (hereinafter referred to as "Hy -Vee"), and NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY, a public body politic and corporate (hereinafter referred to as "Authority"); WITNESSETH: WHEREAS, Hy -Vee is the owner of certain real estate situated in New Hope, Hennepin County, Minnesota, legally described on Exhibit "A" attached hereto and incorporated herein by this reference (the "Hy -Vee Tract"); and WHEREAS, Authority is the owner of certain real estate situated in New Hope, Hennepin County, Minnesota, legally described on Exhibit "B" attached hereto and incorporated herein by this reference (the "Authority Tract"); and WHEREAS, Hy -Vee and Authority have entered into that certain Easements with Covenants and Restrictions Affecting Land dated November 6, 2014, and filed November 7, 2015, as Document #T05212940 in the office of the Registrar of Titles of Hennepin County, Minnesota (the "ECR") wherein Hy -Vee and Authority made certain agreements related to the Hy -Vee Tract; and WHEREAS, Hy -Vee and Authority desire to amend said ECR as set forth herein. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows: 1. Recitals. The recitals are hereby incorporated herein by this reference. 2. Defined Terms. Unless defined herein, capitalized terms herein shall have the meaning set forth in the ECR. New Hope MN 1 ECR I st Amendment r2 CLEAN 6.3.15 3. Site Plan. The Site Plan set forth in Exhibit "C" of the ECR is hereby deleted and the Site Plan attached hereto in Exhibit "C" is hereby inserted in lieu thereof. 4. CAM Reimbursement Area. (a) The parties hereby agree that, subsequent to the initial installation thereof, the owner(s), from time -to -time, of Lot 1 shall keep and preserve the paved driveway improvements within the Shopping Center located upon the area visually depicted as "hatched" on Exhibit "D" attached hereto and incorporated herein by this reference (the "CAM Reimbursement Area") in good condition and repair, and shall not allow any hazardous condition to arise or persist therein. The owner of Lot 3 shall be required to reimburse the owner of Lot 1 for fifty percent (501/o) of the owner of Lot 1's actual cost for the maintenance, repair and replacement (but not the initial installation or snow removal) of a the paved driveway within the CAM Reimbursement Area. The owner of Lot 3 shall reimburse the owner of Lot l for amounts invoiced or requested in accordance with the foregoing within fifteen (15) days of receipt of an invoice for the same. Such reimbursement shall be secured by a lien upon Lot 3 in favor of the owner of Lot 1, but such lien shall only be perfected upon the date of filing or recording of an instrument describing the nature of such lien, and upon such recordation or filing shall accrue interest on the outstanding amount of said lien at the rate of the lower of 10% per year, or the highest rate allowed by applicable law, until satisfied. (b) The owner of the Lot 1 shall remove snow from the CAM Reimbursement Area at commercially reasonable intervals at the owner of the Lot 1's initial cost and expense; provided, however, the owner of Lot 3 shall reimburse the owner of Lot 1 for a portion of the snow removal cost. The parties hereby agree that it may be difficult to identify the actual cost to the owner of the Lot 1 to routinely remove snow from the CAM Reimbursement Area, so therefore it is hereby agreed that following the completion of installation of the paved driveway within the CAM Reimbursement Area the owner of Lot 3 shall pay to the owner of Lot 1 $3,000.00 per year, no later than January 10 of each year, which shall automatically increase by four percent (4%) per year, such reimbursement being agreed upon as an approximation of such owner's pro -rata share of the cost of snow removal for the CAM Reimbursement Area. The reimbursement obligation set forth herein shall be secured by a lien in favor of Lot 1, but such lien shall only be perfected upon the date of filing or recording of an instrument describing the nature of such lien, and upon such recordation or filing shall accrue interest on the outstanding amount of said lien at the lower of 10% per year, or the highest amount allowed by applicable law, until satisfied. (c) The CAM reimbursement obligations set forth in Sections 4(a) and 4(b) herein shall be suspended and abated in the event, and only for such period(s) of time that the City of New Hope, Minnesota becomes the owner of Lot 3; provided, however, in the event of such occurrence if the City of New Hope, Minnesota thereafter conducts business upon Lot 3 in any meaningful way such that employees, licensees, invitees, service providers and/or tenants commence ingress and egress to and from Lot 3, the City 2 of New Hope, Minnesota shall once again be obligated to make the CAM reimbursement payments described in Sections 4(a) and 4(b) once again. 5. Storm Water Detention Reimbursement. If at any point the surface and storm water generated upon Lot 3 is detained in the storm water detention facility located upon Lot 1, then the owner of Lot 3 shall be required to reimburse the owner of Lot I for the owner of Lot 3's pro rata share (determined by a fraction, the numerator of which is the square footage of Lot 3, and the denominator of which is the aggregate square footage of Lot 1 and Lot 3) of the owner of Lot I's actual cost of the maintenance, inspection, repair and replacement of a the storm water detention facility upon Lot 1. The owner of Lot 3 shall reimburse the owner of Lot 1 for amounts invoiced or requested in accordance with the foregoing within fifteen (15) days of receipt of an invoice for the same. Such reimbursement shall be secured by a lien upon Lot 3 in favor of the owner of Lot 1, but such lien shall only be perfected upon the date of filing or recording of an instrument describing the nature of such lien, and upon such recordation or filing shall accrue interest on the outstanding amount of said lien at the rate of the lower of 10% per year, or the highest rate allowed by applicable law, until satisfied. 6. Site Line Easement. No permanent building improvements other than paved driveway(s) and/or paved parking lot(s) shall be constructed upon the West 175 feet of Lot 3 without the prior written consent of the owner of Lot 1 in order to preserve sight lines for the building improvements located on Lot 1 and the business conducted thereupon. 7. Ratification. Except as modified by this Amendment, the ECR is ratified and confirmed by the parties. 8. Counte arts Facsimile. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same agreement. For purposes of executing this Amendment, a facsimile signature shall be as effective as an actual signature. [SIGNATURES ON FOLLOWING PAGES] IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed all on or as of the day and year first above written. HY-VEE: HY-VEE, INC. By: Jeffrey ey, 9i..JVice President By: "q,&/,- Nathan Allen, Assistant Secretary Date of Execution:-s_3ll.n �ap1J STATE OF IOWA, COUNTY OF POLK, ss On this 94-13 day of {, , 20 )6 before me, the undersigned, a Notary Public in and for the state of Iowa, personally appeared Jeffrey Markey and Nathan Allen, to me personally known, who being by me duly sworn did say that they are the Sr. Vice President and Assistant Secretary, respectively, of Hy -Vee, Inc., an Iowa corporation, that the instrument to which this is attached was signed on behalf of said corporation by authority of its Board of Directors; and that the said Jeffrey Markey�nd Nathan Allen as suck officers acknowledged the execution of said instrument to be the them voluntarily executed. MAtiNA D. MASS" �; � Ma 18ri1R act and deed of State of 4 in and for \qaVoration, by it and by NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY By:�- Kathi Hemken (print name) Its: President B y, Kirk McDonald (print name) Its: Executive Director STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledge before me this 8th day of June 2015, by Kathi Hemken and Kirk McDonald the President and Executive Director of the New Hope Economic Development Authority, a public body politic and corporate, on behalf of the Authority. r VALERIELEONE 90tary Public NOTARYPUBLIC • MINNESOTA MYCammisdo&*eskn.3i,zrn �1 EXHIBIT "A" LEGAL DESCRIPTION OF HY-VEE TRACT Lots 1, 2 and 3, Block 1, NEW HOPE HY-VEE, New Hope, Hennepin County, Minnesota EXHIBIT "B" LEGAL DESCRIPTION OF AUTHORITY TRACT Outlot A, NEW HOPE HY-VEE, New Hope, Hennepin County, Minnesota EXHIBIT "C" SITE PLAN 8 EXHIBIT "D" LOT 3 MAINTENANCE AREA ® = CAMS Reirsement Area *Improvements depicted within Lot 3 are for example purposes only 1 Ir ! 61=,y R M/M � Y4wnn • ��iww���sRs.w h`rlfW' X fRR�W['0� RIM. nLR1 "!X Ak G�4R'ii � RyrRR>r KYi MN1r. h �{ SIM Sapi I EDA Request for Action Originating Department Approved for Agenda Agenda Section Community Development September 28, 2015 EDA Item No. By: Jeff Sargent, Director of CD I By: Kirk McDonald, City Manager 5 Resolution Authorizing the Execution of a Second Amendment to Easements with Covenants and Restrictions Affecting Land between the EDA and Hy-Vee (Project No. 893) Requested Action The Economic Development Authority (EDA) is requested to review the documents attached and approve the resolution authorizing the execution of a Second Amendment to Easements With Covenants and Restrictions Affecting Land (ECR), between the City of New Hope Economic Development Authority and Hy-Vee, Inc. Policy/Past Practice The EDA has conducted approved amendments to Development Agreements as necessary and beneficial to the redevelopment plans of the city. Background The ECR is labeled as "Schedule F" of the Development Agreement between the EDA and Hy-Vee, Inc. The ECR outlines specific performance standards and uses throughout the development, which includes Lot 1 (Hy-Vee grocery store), Lot 2 (Hy-Vee convenience store and gas) and Lot 3 (North Memorial Clinic), On June 8, 2015, the EDA approved an amendment to the original ECR that outlined maintenance and snow removal responsibilities for Lot 3 (North Memorial) as they relate to the operations of Hy-Vee. The amendment did not directly involve the City in any capacity, as it focused solely on maintenance relationships between Lots 3 and 1. The EDA was charged with approving this amendment because the ECR is a Schedule to the Development Agreement between the EDA and Hy-Vee, Inc. Currently, the owner of the New Hope Mall is negotiating to purchase the North Memorial Clinic from Hy-Vee, and would like a second amendment to the ECR, as some of the requirements would not be applicable if Hy-Vee no longer retained ownership of Lot 3. The proposed second amendment essentially relieves North Memorial from any obligation set forth in the original ECR, including use and maintenance requirements. The amendment also clarifies that the New Hope Mall would not be obligated to provide the EDA an easement to connect Winnetka Avenue to the Hy-Vee shopping center as a result of the purchase of Lot 3. The EDA is charged with approving this amendment because the ECR is a Schedule to the Development Agreement between the EDA and Hy-Vee, Inc. It should be noted that this amendment has been reviewed and recommended for approval by Ehlers and the City's redevelopment attorne , Bob Deike. Motion by L2Second by To: ahte I:IRFAICOMM DEV\Develo mentlQ & R -EDA h-Vee 2^e ECR Amendment 9-28-15.doc Request for Action September 28, 2015 Page 2 Attachments • Resolution • Second Amendment to the ECR • Original ECR • First Amendment to the ECR NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY RESOLUTION NO, 15- 15 RESOLUTION AUTHORIZING THE EXECUTION OF A SECOND AMENDMENT TO EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF THE NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY (the "Authority") AS FOLLOWS: WHEREAS, the Authority and the City of New Hope, Minnesota (the "City") have created Redevelopment Project No. 1 (the "Project") within the City in order to facilitate the redevelopment of the real property located within the Project; and WHEREAS, the Authority acquired certain real property (the "Property") located within the Project; and WHEREAS, the Authority and Hy -Vee, Inc., (the "Developer") entered into a Purchase and Development Agreement (the "Development Agreement") pursuant to which the Developer purchased the Property from the Authority for the purpose of constructing a commercial development on the Property; and WHEREAS, pursuant to the Development Agreement, the Developer and the Authority entered into that certain Easements with Covenants and Restrictions Affecting Land dated November 6, 2014 and filed November 7, 2014, as Document #T05212940 in the office of the Registrar of Titles of Hennepin County, Minnesota, as amended by First Amendment to Easements with Covenants and Restrictions Affecting Land, dated June 8, 2015, and filed June 24, 2015, as Document #T05267859 in the office of the Registrar of Titles of Hennepin County, Minnesota (collectively, the "ECR") which created certain easements and imposed certain restrictions on the land that is the subject of the Development Agreement; and WHEREAS, there has been prepared and presented to the Authority's Board of Commissioners for its consideration a Second Amendment to Easements with Covenants and Restrictions Affecting Land (the "Second ECR Amendment") which modifies the terms of the ECR. NOW, THEREFORE, be it hereby resolved by the Board of Commissioner of the Authority that the appropriate officers of the Authority are hereby authorized to execute the Second ECR Amendment in substantially the form presented to the Board of Commissioners, subject to such non -substantive changes as may be approved by the Executive Director and the Authority's Iegal counsel, and to take all appropriate and additional actions which are necessary to implement the terms of the Second Amendment to ECR. Adopted this 28th day of September, 2015. W Kathi Hemken, President Att AJOINN t Kirk McDonald, Executive Director Second Amendment to the ECR Prepared by and when recorded return to: Nathan Allen, 5820 Westown Parkway, West Des Moines, IA, 50266 (515) 267-2870 SECOND AMENDMENT TO EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND THIS SECOND AMENDMENT TO EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFEECTING LAND (hereinafter, the "Amendment") is made and entered into this 28 day of sept , 2015, by and between HY-VEE, INC., an Iowa corporation (hereinafter referred to as "Hy -Vee"), and NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY, a public body politic and corporate (hereinafter referred to as the "Authority"): WITNESSETH: WHEREAS, Hy -Vee is the owner of the real estate legally described as Lots 1, 2, and 3, Block 1, NEW HOPE HY-VEE, Hennepin County, Minnesota (the "Hy -Vee Tract"); and WHEREAS, Authority is the owner of the real estate legally described as Outlot A, Block 1, NEW HOPE HY-VEE, Hennepin County, Minnesota (the "Authority Tract"); and WHEREAS, adjacent to the Hy -Vee Tract is Lot 1, Block 1, NEW HOPE MALL, Hennepin County, Minnesota (the New Hope Mall"); and WHEREAS, Hy -Vee and Authority have entered into that certain Easements with Covenants and Restrictions Affecting Land, dated November 6, 2014, and filed November 7, 2014, as Document #T05212940 in the office of the Registrar of Titles of Hennepin County, Minnesota, as amended by First Amendment to Easements with Covenants and Restrictions Affecting Land, dated June 8, 2015, and filed June 24, 2015, as Document #705267859 in the office of the Registrar of Titles of Hennepin County, Minnesota (collectively, the "ECR"); WHEREAS, Hy -Vee and the Authority desire to clarify certain provisions of and amend the ECR. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficient of which are hereby acknowledged, it is agreed as follows: 4677430 LMW AKlo5-35 1. Recitals. The recitals are hereby incorporated herein by this reference. 2. Defined Terms. Unless defined herein, capitalized terms herein shall have the meaning set forth in the ECR. 3. New Hope Mall. Neither Section 4(d) of the Ec& dealing with Future Development nor Section 9 of the ECR dealing with Expansion of the Shopping Center shall apply to the New Hope Mall. Without limiting the foregoing, no acquisition of any portion of the Hy -Vee Tract by (a) the owner of the New Hope Mall, or (b) an entity owned or controlled by or under common ownership or control with the owner of the New Hope Mall shall subject the New Hope Mall to any provisions of the ECR or impose any obligations on the New Hope Mall. This Amendment is for the benefit of the New Hope Mall and may be enforced by the owner of the New Hope Mall. 4. Correction. The reference to the recording of the ECR on "November 7, 2015" in First Amendment to the ECR is hereby amended to refer to recording on "November 7, 2014." 5. No Other Changes. Except as modified by this Amendment, the ECR is ratified and confirmed by the panties and shall remain unchanged and in full force and effect. 6. Termination. Notwithstanding any contrary provision contained in this Amendment, in the event that the owner of the New Hope Mall or an entity owned or controlled by or under common ownership or control with the owner of the New Hope Mall fails to close on the purchase of that portion of the Hy -Vee Tract consisting of Lot 3, Block 1, NEW HOPE HY- VEE, Hennepin County, Minnesota on or before December 31, 2016 (the "Condition Subsequent"), this Amendment shall automatically be terminated and become null and void and Hy -Vee and the Authority shall execute a fizrther amendment to the ECR memorializing such termination. Failure of Hy -Vee and the Authority to executed such farther amendment to the ECR shall constitute prima facie evidence the Condition Subsequent has been satisfied. [SIGNATURES ON FOLLOWING PAGES] 2 4677430 LMW AK! 05-35 IN WITNESS WHEREOF, Hy -Vee and the Authority have executed this Amendment on the date first above written. AUTHORITY: NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY By. (Print name) Kathi Hemken Its: President By:� (Print name) Kirk McDonald Its: Executive Director STATE OF MINNESOTA, COUNTY OF HENNEPIN, ss This instrument was acknowledged before me this _September 29 `2015, by Kathi Hemken and Kirk McDonald , the President and Executive Director of the New Hope Economic Development Authority, a public body politic and corporate, by and on behalf of the Authority. Notary Public in and for the State of Minnesota VALERIE LEONE WTAW PUBI.IG • WMEWTA ' My woe Expires Jan. 31, 23^3 3 467743v3 LMW AK105-35 HY-VEE: HY-VEE, INC., an Iowa corporation By: Je ey Markey Sr. Vi a President By: Nathan Allen Assistant Secretary STATE OF IOWA, COUNTY OF POLK, ss On this , day of 2015, before me, the undersigned, a Notary Public in and for the state of Iowa, personally appeared Jeffrey Markey and Nathan Allen, to me personally known, who being by me duly sworn did say that they are the Sr. Vice President and Assistant Secretary, respectively, of Hy -Vee, Inc., an Iowa corporation, that the instrument to which this is attached was signed on behalf of said corporation by authority of its Board of Directors; and that the said Jeffrey Markey and Nathan Allen as such officers acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. Notg Public in and for#e State of Iowa "; J�JL.IE L. JENSEN COMMISSION Na 123588 M A(Y 2 EXPIRES 4 4677430 LMW AK105-35 Original ECR Existing Certs 1395518,1395519 Doc No T05212940 Certified, filed and/or recorded on Nov 7, 2014 I= PM Office of the Registrar of Titles Hennepin County, Minnesota Martin McCormick, Registrar of Titles Marie Chapin, County Auditor and Treasurer Deputy 84 Pkg ID 1172458C Doc Name; Easement Document Recording Fee $46.00 Document Total $46.00 This cover sheet Is now a permanent part of the recorded document. EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND C`ECR" 1 THIS EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND ("ECR") is made as of the 6th day of November, 2014, by and between HY-VEE, INC., an Iowa corporation, of 5820 Westown Parkway, West Des Moines, Iowa 50266 ( "Hy -Vee"), and NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY, a public body politic and corporate (the "Authority"). WITNESSETH: WHEREAS, Hy -Vee is the owner of real estate situated in New Hope, Hennepin County, Minnesota, legally described on Exhibit "A" attached hereto and incorporated herein (the "Hy -Vee Tract"), and visually depicted on the "Site Plan" on Exhibit "C" attached hereto and incorporated herein; and WHEREAS, Authority is the owner of real estate situated in New Hope, Hennepin County, Minnesota, legally described on Exhibit "B" attached hereto and incorporated herein ("Outlot A"), and visually depicted on the Site Plan; and WHEREAS, Hy-Vec and Authority desire that the Hy -Vee Tract and Outlot .A be developed pursuant to a general plan of improvement to form a retail and office commercial development, and further desire that said tracts be subject to the easements and the covenants, conditions and restrictions hereinafter set forth. NOW, THEREFORE, for and in consideration of the premises, easements, covenants, conditions, restrictions, and encumbrances contained herein, the sufficiency of which is hereby acknowledged, Hy -Vee hereby declares as follows: 1 ". Building(Common Areas (a) "Lot" means either Lot 1, Lot 2; or Lot 3. (b) "Lot 1" means that portion of the Hy -Vee Tract identified on the Site Plan as "Lot (c) "Lot 2" means that portion of the Hy -Vee Tract identified on the Site Plan as "Lot Ac}w� —%.' 3aa5 a o93 1) MM Commsr1W partners 111e, LLC 200 South Sixth Street Suft 1800 Mlnrewpolls, MN 56402 2". 309 (d) "Lot 3" means that portion of the fly -Vee Tract identified on the Site Plan as "Lot (e) "Shopping Center" means the entirety of the Hy -Vee Tract -and -Gu lot A, -- - - 2. Use. (a) Building(s) in the Shopping Center shall be used by owners, tenants, licensees and other occupants, whether by ownership, lease, license or other occupancy right (hereinafter individually referred to as an "Occup an ," and collectively referred to as "Occupants") for commercial purposes of the type normally found in a retail shopping center including, without limitation, service shops, offices, retail stores and banking facilities. No auto dealer (new or used); manufacturing, distribution, wholesale or industrial use; coin operated laundry; dry cleaning plant; billiard parlor; skating rink; dance hall; night club; flea market; banquet hall; funeral parlor; off-track betting establishment; pornographic or "triple -x" video/book store; sexually oriented business; pawnshop; spay or neuter clinic (not including a veterinary clinic); abortion service provider; any business selling or serving alcoholic beverages for on premises consumption (except on Lot 1 and/or Lot 2); check cashing business (provided, however, a bank or credit union, or grocery store shall not be restricted hereby), a tattoo business, or a gun business (provided, however, a sporting goods store that sells, as a part of its sporting goods inventory, guns and ammunition shall not be restricted hereby), shall occupy space within the Shopping Center. In the event of a breach of this covenant, Hy -Vee and/or the Authority (regardless of whether the Authority still owns any portion of the Shopping Center) and/or any owner of any lot or tract within the Shopping Center shall have the right, without limitation, and in addition to any other remedy available to such party at law or in equity, to seek temporary or permanent injunctive relief. (b) Competing. Business. Except by Hy -Vee, no portion of Lot 3 shall be used for any of the following, to -wit: see Exhibit "D" attached hereto and incorporated herein. In the event of a breach of this covenant, Hy -Vee and/or the owner of Lot 1 and/or the owner of Lot 2 shall have the right, without Ifinitation, and in addition to any other remedy available to Hy -Vee and/or the owner of Lot 1 and/or the owner of Lot 2 at law or in equity, to seek temporary or permanent injunctive relief. (c) Tax Increment District. The Authority and City will be creating the Center City Redevelopment Tax Increment Financing District (the "TIF District") that will encompass the Shopping Center and certain adjoining property to the northeast. All tax increment generated from the TIF District will be utilized to repay the Authority for its investment prior to the date hereof in acquiring and preparing the Shopping Center for redevelopment and to reimburse the Authority and the City for the cost of the public improvements upon Outlot A and upon other property in the TIF District. Because the Authority and City will be relying on such tax increment as the source of reimbursement for such costs, the owner of Lot 1, Lot 2 and Lot 3, or any of such Lots, agrees that prior to the date of termination of the TIF District (and if extended, only to the date such district would have initially expired if not extended): (i) it will not seek administrative or judicial review of the constitutionality of any tax statute determined by any tax official to be applicable to the improvements initially constructed upon any lot or tract within the Shopping Center or raise the unconstitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings; and (ii) it will not cause a reduction in the assessed value of the improvements initially constructed upon any lot or tract within the Shopping Center through: (A) willful destruction of such improvements or any part thereof, except as a part of a renovation of such improvements in the ordinary course of business of such owner; (B) willful refusal to reconstruct damaged or destroyed property following any casualty loss or event; (C) an application to the commissioner of revenue of the State or to any local taxing jurisdiction requesting an abatement of real property taxes regarding such improvements, unless applicable to subsequent renovations or additions made to such improvements, and then only for the additional incremental value associated therewith; and/or (D) a transfer of the Shopping Center or improvements thereon, or any part thereof, to an entity exempt from the payment of real property taxes under State law. In the event of a breach of this covenant, Hy -Vee and/or the Authority (regardless of whether the Authority still owns any portion of the Shopping Center) shall have the right, without limitation, and in addition to any other remedy available to Hy -Vee and/or Authority at law or in equity, to seek temporary or permanent injunctive relief. The owner of Lot 1, Lot 2, and Lot 3 or any of such Lots, agrees to use its best efforts to provide notice to the Authority of its intention to seek a reduction in the, assessed market value of Lot 1 or Lot 1 for tax purposes prior to initiating that proceeding, provided, that a failure to give such notice shall not invalidate such proceedings and will not constitute a default under this Declaration. 3. Buildings, Lot 3 Parking Ratio. (a) Desigg and Construction. Any building constructed wxttun the Shopping Center shall be designedso'that the exterior elevation of each shall be architecturally and aesthetically compatible with the then -existing or planned (as is applicable) building located on Lot 1, and so that building wail footings shall not encroach from one lot or Tract onto another Tract. The design and construction shall be of high quality. Only one building may be constructed upon Lot 3. No building constructed on Lot 3 shall (i) be of more than two -stories, (ii) exceed thirty-five (35) feet in height above finished grade, or (iii) have a metal exterior without the prior written approval of the owner of Lot 1; provided, however metal may be used as a building material of an architectural feature. No building may be constructed upon Outlot A; provided that signage may be constructed on Outlot A. (b) Fire Protection. Any building constructed upon Lot 3 shall be constructed and operated in such a manner which will preserve the sprinklered rate on the other buildings in the Shopping Center. (c) Design and Plans Approval. Except by Hy -Vee, no improvements shall be constructed, erected, expanded, or altered within the Shopping Center until the plans and specifications for same (including site layout, exterior building materials and colors, landscaping and parking layouts) have been provided to Hy -Vee and Hy -Vee shall have been given a reasonable opportunity to review and comment on such plans and specifications. Except as detailed in this Agreement, the buildings shall be designed so that the exterior elevation of each shall be architecturally and aesthetically compatible with each other and with buildings on Lots 1 and 2. The design and construction on improvements shall be first quality and in accordance with the plans submitted to and reviewed by Hy -Vee as described herein and in complete and full compliance with (i) any and all governmental requirements and all city zoning and other ordinances. The owner of any portion of the Shopping Center that desires to construct improvements therein agrees to cause its respective architect to work in good faith with Hy -Vee, and its architects, so that the building(s) and other improvements to be erected and constructed will have an overall cohesive and related architectural continuity and will be in harmony with the remainder of the Shopping Center. Hy-Vee's review shall be limited to site plans, elevations and material lists and shall not extend to full construction plans. (d) Lot 3 Parking Ratio. Unless the owner of Lot 1 consents in writing to a lower parking ratio requirement, Lot 3 shall at all times independently maintain a parking ratio that satisfies, without a variance or conditional use permit, the City of New Hope then -current zoning code for non -planned unit development districts. 4. Grant of Easements. Hy -Vee and Authority hereby declare the creation and existence of the following nonexclusive easements: (a) A vehicular ingress and egress easement over, through and upon the driveway areas of the Shopping Center (but excluding the loading dock areas upon Lot 1 and Lot 2 as they exist from time -to -time, for the mutual benefit of the Hy -Vee Tract and Outlot A, for vehicular ingress and egress of customers, invitees, licensees, tenants, suppliers and employees of all Occupants of the buildings within the Shopping Center, and the Authority and City of New Hope for the public feature installed upon Outlot A. (b) A pedestrian ingress and egress easement over, through and upon the sidewalks, driveways and parking areas of the Shopping Center (but excluding the loading dock areas upon Lot 1 and Lot 2 as they exist from time -to -time, for the mutual benefit of the Hy -Vee Tract and 4 Outlot A, for pedestrian ingress and egress of customers, invitees, licensees, tenants, suppliers and employees of all Occupants of the buildings within the Shopping Center, and the public with respect to the public feature installed upon Outlot A. (c) A vehicular parking easement over, through and upon the parking areas of the Shopping Center as they exist from time -to -time, for the mutual benefit of Lots within the Hy - Vee Tract, for the customers, invitees, licensees, tenants, suppliers- and employees of all of the Occupants of the buildings within the Shopping Center; provided, however, the Occupant of each Lot shall take reasonable efforts to prevent the parking of their employees upon any other Lot within the Shopping Center. (d) Future Development. In the event the Authority or a third parry developer closes on the purchase of land immediately adjacent to the Hy -Vee Tract to the East during the term of this ECR, the Authority shall be entitled to connect a future roadway connecting Winnetka Avenue N. to the driveway areas located within the Shopping Center at the Authority's (or its successor in interest with respect to ownership of such property) sole cost and expense and thereafter, there shall be deemed a non-exclusive ingress and egress easement over and upon the driveway areas of the Shopping Center, as they may exist from time -to -time, for the mutual benefit of the owners of property within the Shopping Center and the owner(s) of property immediately adjacent to the Shopping Center to the East that become owned by the Authority or a third party developer. The Authority shall cause any third party developer working in cooperation with the Authority with respect to the redevelopment of such- land immediately adjacent to the Hy -Vee Tract to the East to provide the ingress and egress easement over such tract at the time such tract is developed, 5, Maintenance. The respective owners and Occupants of the tracts and Iots within the Shopping Center, shall at their sole cost and expense, maintain their respective tracts in good condition and repair. This maintenance is to include, without limitation, the following; (a) Maintaining all buildings in good condition and repair, including (without limitation) exterior walls, signage, lighting, windows and doors, entryways and service areas; (b) Maintaining the parking, driveway and sidewalk surfaces in a level, smooth and evenly -covered condition with the type of surfacing material originally installed or such substitute as shall in all respects be equal in quality, use, and durability; (c) Removing all papers, ice and snow, mud and sand, debris, filth and refuse and thoroughly sweeping the area to the extent reasonably necessary to keep the area in a clean and orderly condition; (d) Placing, keeping in repair and replacing any necessary appropriate directional signs, markers and lines; (e) Operating, keeping in repair and replacing, where necessary, such artificial lighting facilities as shall be reasonably required; (f) Maintaining all perimeter and exterior building walls including but not limited to all retaining wails in a good condition and state of repair; (g) Maintaining, mowing, weeding, trimming and making such replacements of shrubs and other landscaping as is necessary; (h) Maintaining the storxnwater facilities; and (i) -Maintaining the irrigation system. 6. Indemnification/Insurance. (a) Indemnification. The owners of Lot 1, Lot 2, Lot 3 and Outlot A shall each indemnify and save each other harmless from any and all liability, damage, expense, causes of action, suits, claims, or judgments arising from personal injury, death, or property damage and occurring on or from its own tract, except and to the extent caused by the act or negligence of the owner or Occupant of another lot or tract, (b) Insurance. (i) The owner(s) or Occupant(s) of Lot 1, Lot 2, Lot 3 and Outlot A, shall each procure and maintain in full force and effect throughout the term of this Declaration general public liability insurance and property damage insurance against claims for personal injury, death or property damage occurring upon, in or about its property, each party's insurance to afford protection to the limit of not less than $2,000,000.00 for injury or death of a single person, and to the limit of not less than $2,000,000.00 for any one occurrence, and to the limit of not less than $500,000.00 for property damage. The owner or Occupant of each such lot or tract shall provide the other owner(s) with certificates of such insurance from time to time upon written request to evidence that such insurance is in force. Such insurance may be written by additional °premises endorsement on any master policy of insurance carried by the party which may cover other property in addition to the property covered by this Declaration. (ii) Insurance against loss and/or damage to improvements under a policy or policies covering such risks as axe ordinarily insured against by similar businesses, including (without limiting the generality of the foregoing) fire, extended coverage, all risk vandalism and malicious mischief, boiler explosion, water damage, demolition cost, debris removal, and collapse in an amount not less than the full insurable replacement value of the improvements. The term "full insurable replacement value" shall mean the actual replacement cost of the Improvements (excluding foundation and excavation costs and costs of underground flues, pipes, drains and other uninsurable items) and equipment. (iii) Notwithstanding anything to the contrary contained in this Section, so long as the net worth of the owner, tenant or Occupant of any lot or tract shall exceed One Hundred Million Dollars ($100,000,000.00), and/or so long as Hy -Vee, the City of New Hope, or the Authority is owner, lessee or Occupant of any lot or tract, such owner, tenant or Occupant, or Hy -Vee, the City of New Hope or the Authority, as is applicable, shall have the right to retain the financial risk for any claim. (c) Nothing in this document shall be construed to limit or affect any limitations on liability of the Authority or the City of New Hope under State or federal law, including without limitation, Minnesota Statutes Sections 466.04 and 604.02. 7. Eminent Domain. (a) Owners Right to Award. Nothing herein shall be construed to give the owner of any lot or tract in the Shopping Center any interest in any award or payment made to any other lot or tract owner in connection with any exercise of eminent domain or transfer in lieu thereof affecting said other owner's tract or giving the public or any government any rights in said tract. (b) Tenant's Claim. Nothing in this Section shall prevent a tenant from making a claim against an owner pursuant to the provisions of any lease between tenant and owner for all or a portion of any such award or payment. 8. Rijzhts and Obligations of Lenders. If by virtue of any right or obligation set forth herein a lien shall be placed upon any lot or tract within the Shopping Center, such lien shall expressly be subordinate and inferior to the lien of any first lienholder now or hereafter placed on such lot or tract. Except as set forth in the preceding sentence, however, any holder of a first lien on Lot 3, and any assignee or successor in interest of such first lienholder, shall be subject to the terms and conditions of this Declaration. 9. Expansion of Shopping Center. The parties agree that in the event the Shopping Center is expanded by ownership or control of any tract within the Shopping Center, or agreement with a third party, all of the provisions of this Declaration shall apply to the expanded area including (without limitation) restrictions on use and maintenance requirements. 10, Self-Helu. In the event Hy -Vee or the owner of Lot 1 and/or Lot 2 and/or Lot 3 reasonably determines that the owner of another Lot, or any portion thereof, is insufficiently maintaining all or a portion of such owner's Lot, then Hy -Vee or the owner of a Lot may take any steps reasonably necessary, in the reasonable opinion of such owner to bring the Lot into compliance with the maintenance obligations thereof set forth herein, including paying the costs thereof. The owner taking such steps shall bill the owner of Lot that is not in compliance for such actual reasonable costs to the owner for bringing the Lot into compliance with such maintenance obligations, and the same shall be due within fifteen days of the date of such invoice. Such reimbursement obligation shall be secured by a lien in favor of the owner taking the steps to bring the Lot into compliance, but such lien shall only be perfected upon the date of filing or recording of an instrument describing the nature of such lien, and upon such recordation or filing shall accrue interest on the outstanding amount of said lien at the lower of (i) twelve percent (12%) per annum, or (ii) the highest amount allowed by law, until satisfied. 11. Breach. In the event of breach or threatened breach of this Declaration, the owner of any Lot or tract in the Shopping Center, or Hy -Vee so long as it or any affiliate has an interest as owner, lessee or Occupant of any portion of the Shopping Center, shall be entitled to institute proceedings for full and adequate relief from the consequences of said breach or threatened breach. The unsuccessful party in any action shall pay to the prevailing party a reasonable sum for litigation expenses and attorney's fees, which shall be deemed to have accrued on the date such action was filed. 12. Rights of Successors. The easements, restrictions, benefits and obligations hereunder shall create mutual benefits and servitudes running with the land. This Declaration shall bind and inure to the benefit of the parties hereto, their respective heirs, representatives, lessees, successors and assigns. The singular number includes the plural and the masculine gender includes the feminine and neuter. 13. Modification and Cancellation. This Declaration (including exhibits) may be modified; amended or canceled only by the mutual agreement of all of the record titleholders of the Shopping Center. 14. :Von -Merger. This Declaration shall not be subject to the doctrine of merger. 15. Duration. Unless otherwise canceled or terminated, this Declaration and all the easements, covenants, rights, restrictions, and provisions in this Declaration create an equitable servitude upon the respective tracts, constitute covenants running with the land, shall bind every person or entity having any fee, leasehold, or other interest in or encumbrance on any portion of either property at any time, and shall continue in full force and effect perpetually. Notwithstanding the foregoing, the provisions of Section 2(b) of this Declaration shall terminate if Lot 1 ceases being used for any of the uses set forth in Subsections (b), (c), and (e) of Exhibit "D" for a consecutive period of twelve (12) months. 16. Headings. The headings herein are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of this document nor in any way affect the terms and provisions hereof. 17. Choice of Law. This Declaration shall be construed and enforced in accordance with the laws of the State of Minnesota, without regard to conflicts of laws principles. [SIGNATURES ON FOLLOWING PAGE] IN WITNESS VYWR.EOF, Hy -Vee and Authority have executed this ECR on or as of the day and year first written above, I: IA " AY -VEE, INC. an Iowan 0"'M ' n Y: Je arkey, ice President By; ,fir" (,— , 4-(, Nathan Allen, Assistant Secretary STATE OF IOWA ) ss, POLK COUNTY ) On this 5t`' day of a ve (,.kv , 2014, before me, the undersigned, a Notary Public in. and for the State of Iowa, personally appeared Jeffrey Markey and Nathan Allen to me personally known, who being by me duly sworn, did say that they are the Vice President and Assistant Secretary, respectively, of Hy -Vee, Inc,, an Iowa corporation, that said instrument was signed on behalf of said corporation by authority of its Board of Directors; and that the said Jeffrey Markey and Nathan Allen as such officers acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed, No • Public in and foethe State of Iowa JULIE L. JENSEN COMMISSION NO, 123888 , ' MY COMMIS EXPIRES +owe NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY B 4its:sident 1 By: Its: Executive Director STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The fdr going i truinent was acknowledge efore me this day of / 201s by / and the President and Executive Director of the New Hope Economic Development Authority, a public body politic and corporate, on behalf of the Authority. `4— , Notary Public pRRAINE HELEN KLOSS Dote Cy PubgaMinnesota " F.—.110wan 20*68 Jan 91, 201 a THIS INSTRUMENT WAS DRAFTED SY ;name and address) 10 EXHIBIT "A" LEGAL DESCRIPTION OF HY-VEE TRACT Lots 1, 2 and 3, Block 1, NEW HOPE HY-VEE, New Hope, Hennepin County, Minnesota 11 EXHIBIT "B" LEGAL DESCRIPTION OF OUTLOT A Outlot ALBlock 1)NEW HOPE HY-VEE, Hennepin County, Minnesota %INOTV. 12 M EXHIBIT °'D" RESTRICTED USES a. the sale of (i) edible perishable products, including, but not limited to fruits, vegetables, meat and seafood; (ii) pre-packaged food and/or pre-packaged beverages, provided, however that the same may be sold on the Restricted Parcel so long as the sale of such products does not exceed one percent (1%) of the gross sales of such business; (iii) alcoholic beverages for off premises consumption (for purposes of clarification of the foregoing only, and not in limitation, the restriction contained in this Section 3(a) is not intended to prohibit restaurant uses); and/or (iv) prescription and/or over-the-counter pharmaceuticals; b. a grocery store, supermarket, or specialty food store (by way of example only, and not limitation: Fareway, Albertson's, Kroger, Safeway, Publix, Price Chopper, Meijer, Dillons, Giant Eagle, Schnucks, The Fresh Market, Woodman's, WinCo, Wal-Mart Express, Aldi, Trader Joes, Whole Foods Market, Campbell's Nutrition, Gateway Market); c. a pharmacy and/or drug store (by way of example only, and not in limitation: CVS, Walgreens, Rite Aid, Medicap, Health Mart, The Medicine Shoppe); d. a retail store marketed as any form of "dollar store," or derivation thereof (by way of example only, and not in limitation: Dollar General, Family Dollar, Dollar Tree, 99 Cents Only); el a retail and/or club and/or wholesale store that sells non-food merchandise that includes a grocery section or department (by way of example only, and not in limitation: Wal-Mart, Wal-Mart Supercenter, Target, Super Target, Costco, Sam's Club); £ a convenience store (with or without gas) and/or gasoline station, including any type of business that sells diesel fuel, ethanol fuel, bio -fuel or any other type of fuel used to power motorized vehicles designed primarily for use on public streets and highways; 9. a Caribou or Starbucks branded coffee shop; h. a retail store marketed as any type of bakery; i, a restaurant; j. any supporting element (by way of example only, and not in limitation: parking lot, storm water detention facility, green -space) of any property not located within the Restricted Parcel that is used for any of the restricted uses set forth in Section (a) — (i) herein. 14 First Amendment to the ECR Transfer Entered Jun 24, 2015 3:14 PM Hennepin County, Minnesota Mark Chapin County Auditor and Treasurer Doc No T06267869 Certified, filed andlor recorded on Jun 24, 2015 3:14 PM Office of the Registrar of Titles Hennepin County, Minnesota Martin McCormick, Registrar of Titles Mark Chapin, County Auditor and Treasurer Deputy 98 Document Recording l=ee Multiple Certificates Affected Fee Document notal PID(s) 18-118-21-11-0019,16-118-21-11-0020, 18-118-21-11-0021 Existing Certs 1395519, 1395520, 1395521, 1395522 This cover sheet Is now a permanent part of the recorded document, Pkg 1D 1258388E $46.00 $20.00 $66.00 .r. �. 7 LCIti 7'?1r R:"• . � .. • •1q:r41S. 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'.. � .f•,•X•`N!".'� My=: Nat= Mem 5820 Westown Pk► m EgnDes Moines JA 50266 (515)267 287Q 0T AMENDMENT LO- EA62M-F,NTS WITH COVENANTS AND STRICTIOANS AFFECTING L THIS FMST AMENDMENT TO EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND (hereinafter, the "Amendment") is made and entered into this lith day of June, 2015, by and between HY-VEB, INC., an Iowa corporation (hereinafter referred to as "Hy -Vee"), and NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY, a public body politic and corporate (hereinafter referred to as "Authority"); WITNESSETH; WHEREAS, Hy -Vee is the owner of certain real estate situated in New Hope, Hennepin County, Minnesota, legally described on Exhibit "A" attached hereto and incorporated herein by this reference (the "Hy -Vee Tract"); and WHEREAS, Authority is the owner of certain real estate situated in New Hope, Hennepin County, Minnesota, legally described on Exhibit "B" attached hereto and incorporated herein by this reference (the "Authority Tract % and WHEREAS, Hy -Vee and Authority have entered into that certain Basements with Covenants and Restrictions Affecting Land dated November 6, 2014, and filed November 7, 2015, as Document #T05212940 In the office of the Registrar of Titles of Hennepin County, Minnesota (the "ECR") wherein Hy -Vee and Authority made certain agreements related to the Hy -Vee Tract; and WHEREAS, Hy -Vee and Authority desire #o amend said ECR as set forth herein, NOW, THEREFORE, in consideration of the mutual prornmes and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is agreed as follows; 1. Recitals, The recitals are hereby incorporated herein by this reference, 2. Ddwd Terms. Unless defued herein, oapitn zod terms herein shall have the meaning set forth in the ECR. New ftc MN I ECR 1st Amandme d v2 CLEAN 6,3• l5 �f 5 + 4 f .:.iii-* '.r ":.�Ys.'r'R"'•.. •••. . .' ,Ci" [ai:i.-"�sica:.Gi .SiW, k.i •. ..�y�. 146 '�i_, �=+[„.Z�...i 1 ori 3. Site P The Site Plan set forth in Exhibit "C” of the ECR is hereby deleted and the Site Plan attached hereto in Exhibit "C" is hereby inserted in lieu thereof. 4. SAM Reimbursement Areg (a) The parties hereby agree that, subsequent to the initial installation thereof; the owner(s), from time -to -time, of Lot 1 shall keep and preserve the paved driveway improvements within the Shopping Center located upon the area visually depicted as `hatched" on Exhibit 'V' attached hereto and incorporated herein by this reference (the "CAM Reimbursement Area') in good condition and repair, and shall not allow any hazardous condition to arise or persist therein. The owner of Lot 3 shall be required to reimburse the owner of Lot 1 for fifty percent (5091;) of the owner of Lot 1's actual cost for the maintenance, repair and replacement (but not the initial installation or snow removal) of a the paved driveway within the CAM Reimbursement Area. The owner of Lot 3 shall reimburse the owner of Lot 1 for amounts invoiced or requested in accordance with the foregoing within fifteen (15) days of receipt of an invoice for the same. Such reimbursement shall be secured by a lieu upon Lot 3 in favor of the owner of Lot 1, but such lien shall only be perfected upon the date of filing or recording of an instrument describing the nature of such lien, and upon such recordation or filing shall accrue interest on the outstanding amount of said lien at the rate of the lower of 10% per year, or the highest rate allowed by applicable luw, until satisfied. (b) The owner of the Lot 1 shall remove snow from the CAM Reimbursement Area at commercially reasonable inbeavals at the owner of the Lot 1's initial cost and expense; provided, however, the owner of Lot 3 shall reimburse the owner of Lot 1 for a portion of the snow removal cost. The parties hereby agree that it may be difficult to identify the actual cost to the owner of the Lot 1 to routinely remove snow from the CAM Reimbursement Area, so therefore it is hereby agreed that fallowing the completion of installation of the paved driveway within the CAM Reimbursement Area the owner of Lot 3 shall pay to the owner of Lot 1 $3,000.00 per year, no later than January 10 of each your, which shall automatically increase by four pmwm (41/6) per year, such reimbursement being agreed upon as an approximation of such owner's pro -rata share of the cost of snow removal for the CAM Reimbursement Area. The reimbursement obligation set forth herein shall be secured by a lien in favor of Lot 1, but such lien shall only be perfected upon the date of filing or recording of an instrument describing the nature of such lien, and upon such recordation or filing shall accrue interest on the outstanding amount of said lien at the lower of 10% per year, or the highest amount allowed by applicable law, until satisfied. (c) The CAM reimbursement obligations set forth in Sections 4(a) and 4(b) herein shall be suspended and abated in the event; and only for such period(s) of time that the City of New Hope, Minnesota becomes the owner of Lot 3; provided, however, in the event of such occurrence if the City of New Hope, Minnesota thereafter conducts business upon Lot 3 in any meaningfl way such that employees, licensees, i ' "1" 1L:^:�.li i'•a':Y:"+s•.." . 5YS:1:i:xSt t'F.+r,',r +. ;'tY`.:?Y+::-1 +,l.r�... ti �. - .. :r�.- t�fi+' _�: s%s.S�:J ��!�! ... of New Hope, Minnesota shall once again be obligated to make the CAM reimbursement payments described in Sections d(a) and 4(b) once again. 5. Storm Water Detention_ Reimbursemgnt. If at any point the surface and storm water generated upon Lot 3 is detained in the storm water delent3on facility located upon Lot 1, then the owner of Lot 3 shall be required to reimburse the owner of Lot 1 far the owner of Lot 3's pro rata share (determined by a fraction, the ,numerator of which is the square footage of Lot 3, and the denominator of which is the aggregate square footage of Lot 1 and Lot 3) of the owner of Lot 1's actual cost of the mainUumcc, inspection, repair and replacement of a the storm water detention facility upon Lot 1. The owner of Lot 3 shall reimburse the owner of Lot I for amounts invoiced or requested in accordance with the foregoing within fifteen (1 S) days of receipt of an invoice for the same. Such reimbursement shall be secured by a lien upon Lot 3 in favor of the owner of Lot 1, but such lien shall only be perfected upon the date of filing or recording of an instrument describing the nature of such lien, and upon such recordation or filing shall accrue interest on the outstanding amount of said lien at the rate of the lower of 10% per year, or the highest rate allowed by applicable law, until satisfied. 6. Site Line EaaseoM No permanent building improvements other than paved driveway(s) and/or paved parking lot(s) shall be constructed upon the West 175 feet of Lot 3 without the prior written consent of the owner of Lot 1 in order to preserve sight lines for the building improvements located on Lot 1 and the business conducted thereupon. 7. Rgagation. Except as modified by this Amendment, the ECR is ratified and confirmed by the parties. S. - Counters Facsimile. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the some agreement. For purposes of executing this Amendment, a facsimile signature shall be as effeotive as an actual signature. [SIGNATURES ON FOLLOWING PAGES] iI 51hir=-. _ {•i'+�ti �. "l�i^Y"'.�:d �•.,. .. ?. 7•f-Tix:w�v��L'.•'-�uk•q'! +t�S'i��vu {•y�-•t.... ..r;Ti�'::.w.l � .�.}•. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed all on or as of the day and year first above written. Hy -VER: HY-VEE, INC. B e ice President By: / v" Nathan Allen, Assistant Secretary Date of Execution: eCi. A01 STATE OF IOWA, COUNTY OF POLK, ss On this 1 6 -day of 201:�befare me, the undersigned, a Notary Public in and for the state of Iowa, personally appeared Jeffrey Markey and Nathan Allen, to me personally known, who being by me duly swum did say that they are the Sr. Vice President and Assistant Secretary, respectively, of Hy -Vee, Inc., an Iowa corporation, that the instrument to which this is attached was signed on behalf of said corporation by authority of its Board of Directors; and that the said Jeffrey Markey 4nd Nathan Allen as such officers acknowledged the execution of said instrument to be the vol act and deed of said rporadon, by it and by them voluntaay execut3ed. � =PuPic in MV n� D. MASS". I wa A 4 J i .• f .. ... , ! '. 7�1'- 7in:,'d"r -;;n E's.-. ?� . .t3'�K'" gar NEW HOPE ECONOMIC DEVELOPMENT A.UTHORPI" Y By: KatIA Hanken (print name) Its; President By; r (print Heine) Its; Executive Director STATE OF MINNESOTA ) )ss. COUNTY OF EIENNEM ) I i�......+..� : f:"K!"r:�l r ",' _. SFr. ��"J.�'�=�ir`t•Yi7r�e}�.11 . The foregoing instrument was acknowledge before me this sth day of I= 2015, by Kathi Hemmen and Kirk McDonald the President and Executive Director of the Naw Hope Economic Development Authority, a public body politic and corporate, on behalf of the Authority, VALEMELEM Notary Public NOTARYPiJl W-UNNWA tdy sdMe*MjMsI.M 5 71 is EnIT "A" LEGAL DESCRIPTION OF HY.vEE TRACT Lots 1, 2 and 3, Block 1, NEW HOPE HY-VEF, Now Hope, Hemwpin County, Mi mota CI X17AMOS, Jim .1. rr 04BIP LEGAL DESCRIPTION OF AUTHORITY TRACT Outlot A. NEW HOPE HYNBH, Now Hope, Hennepin County, Mmmotm 7 o0 prri�� t l i E io• 1 E} � c. 1A iI p V 91 Lp i r r � rr ..---.-.--.------------------- i + ,r L-jo o x ae '1 � I r AYA+Aff MON ALMV K r Y. l :,. ... . ••nl�i°'�5;z.,, I . , •. YY.. 7��!�'�r+'Lr'.s-lSur,.r,}' i dYfN:y':$'.' . I'}, ,. c. • .•".4: ?»:: Y k �'•` FJ=IT "D" LOT 3 MAINTENANCE AREA ® = Cann RaImburaem m urea *Improvements depicted within Lot 3 are for cm=pie purposes only 9 Leone Valerie From: Sargent Jeff Sent: Wednesday, September 30, 2015 10:07 AM To: Leone Valerie Subject: FW: ECR Looks like we can sign the amendment first, and then send to the other parties. Jeff Sargent Director of Community Dvveloprneni: I City of Haw Hope 4401 Xylan Ave N I New Hope, 1% 55428 Office: 763-531-5196 i Fax: 763-531-5136 jsargent@ci.new-hoM.mn.us I ci.new-ho e.mn.us From: Robert Deike [mailto:rjd@bradleydeike.com] Sent: Wednesday, September 30, 2015 10:03 AM To: Sargent Jeff Subject: Fwd: ECR Jeff, see the correspondence below. Can you get the amendment signed and send one to Larry? Keep an original for the EDA. We should be getting a signed page from HyVee. Sent from my iPad Begin forwarded message: From: "Allen, Nate" <NAllen@hv-vee.com> Date: September 29, 2015 at 10:05:37 AM MDT To: "Wertheim, Larry M." <Iwertheim Kennedy-Grayen.com>, "Bob Deike (rjd2bradleydeike.com)" <rid2bradleydeike.com> Cc: "Hoey, Phil" <PHoey@hy-vee.com>, "Mark Zaebst (markzaebst@gma,il.com)" <markzaebst@gmail.com> Subject: RE: ECR I'll get the Hy -Vee signed copy out to you today. I'll include 2 in case the EDA wants to keep an original. Na' -L,2 Allen Assistant General Counsel Hy -Vee, Inc. ( 515) 267-2870 Confidentiality Notice: The information in this e-mail and any attachments is legally privileged and confidential. It is intended solely for the adaressee. If you are not the intended recipient, any disclosure, copying, distribution or any action taken or omitted to be taken in reliance on it, is prohibited and may be unlz;wful. If you have received this e-mail in error, please notify the sender and If you would send an original of the ECR amendment executed by the EDA to me, i will get Hy-Ve,,-'s signatures and get the amendment recorded. Thanks, Nate Pat':. Allen Assistant General Counsel Hy -Vee, Inc. (515) 267-2870 Confidentiality Notice: The information in this e-mail and any attachments is legally privileged and confidential. It is intended solely for the addressee. If you are not the intended recipient, any disclosure, copying, distribution or any action taken or omitted to be taken in reliance on it, is prohibited and may be unlawful. If you have received this e-mail in error, please notify the sender and permanently delete this e-mail and any attachments immediately. You should not retain, copy or use this e-mail or any attachment for any purpose, nor disclose all or any part of the contents to any person. From: Wertheim, Larry M. [maiito:lwertheim@Ken nedy-G raven.com] Sent: Tuesday, September 29, 2015 9:59 AM To: Bob Deike (rjd2brad leydeike.com) Cc: Hoey, Phil; Mark Zaebst (markzaebstftmail.com); Allen, Nate Subject: ECR Now that the EDA has approved the amendment, can you folks get the signatures of the EDA and Hy - Vee on the document and for recording? Larry M. Wertheim KENNEDY & GRAVEN, Chartered 470 US Bank Plaza 200 So. 6th Street Minneapolis, MN 55402 Direct: (612) 337-9216 Fax: (612) 337-9310 Iwertheim@kennedy-graven.com Offices in 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis Minneapolis, MN 55402 (612) 337-9300 telephone Salm Paul (612) 337-9310 fax { St. Cloud www.kennednraven.com C ri w R T E n E u Affirmative Action, Equal Opportunity Employer Email: October 8, 2015 Jeff Sargent Director of Community Development City of new Hope 4401 Xylon Avenue North New Hope, MN 55428 NANCY K. ENGLAND Paralegal Direct Dial (612) 337-9279 RE: Second Amendment to Easements with Covenants and Restrictions Affecting Land Dear Mr. Sargent: Enclosed please find an original document as referenced above containing original signatures of Hy -Vee, Inc. Please combine the attached document with the EDA's original signature page. Previously, an email was sent to you with a copy of the recorded document. Feel free to contact me with any questions. Thank you for your assistance. Regards, Nancy K. ngland Paralegal to Larry Wertheim :nke Enclosure cc: Larry Wertheim 469300v1 AK105-35 :Leone Valerie From: Sargent Jeff Sent: Friday, October 09, 2015 8:44 AM To: Leone Valerie Subject: FW: Record 2nd Amendment - Hy -vee and New Hope EDA Attachments: DOCSOPEN 4469252 -v1 -Recorded Second Amendment to ECR.PDF Val, See a.tached. I also requested that they send back an original executed copy to us. J�G Sarwent Director of Community Development I City of HIew Hope 4401 Xylan Ave N 1 New Dope, MN 55428 Office: 763-531-5196 1 Fax: 763-531-5136 jsargent@ci.new-ho.pe.mn.us I ci.new-hope.n-imus From: England, Nancy K [mailto_nengland@Kennedy-Graven.com] Sent: Thursday, October 08, 2015 4:14 PM To: Sargent Jeff; 'dd@bradleydeike.com' Cc: Wertheim, Larry M.; England, Nancy K Subject: Record 2nd Amendment - Hy -vee and New Hope EDA Larry Wertheim requested that a copy of the recorded Second Amendment to Easements with Covenants and Restrictions Affecting Land be emailed to you. It has been recorded on October 7, 2015 as Document # T05296051 with the Hennepin County Registrar of Titles. Nancy K. England Paralegal Kennedy & Graven, Chartered 470 US Bank Plaza 200 South Sixth St. Minneapolis, MN 55402 (612) 337-9279 Fax: (612) 337-9310 E -Mail: nenalandakennedy--graven.com Request for Action February 22, 2016 Approved by: Kirk McDonald, City Manager Originating Department: Community Development By: Jeff Sargent, Director Agenda Section Consent Item Number 6.6 Agenda Title el Resolution approving permanent easement agreement for landscape and fence purposes over Hy -Vee property. R Requested Action�CAP- ermanent easement as eeeemgnt for landscaping Staff recommends approving the resolution approving the p gr p g and fence purposes between the City of New Hope and Hy -Vee, Inc. (Hy -Vee). Policy/Past Practice It is common practice for the City Council to approve needed permanent easements when applicable. Background During the design of the Xylon Avenue streetscape improvements project, it was determined that a 10 -foot easement would be needed along the west and south property lines of the Hy -Vee project in order to accommodate decorative fences and other landscaping. The easements are necessary because portions of a decorative fence will be located inside Hy-Vee's property due to the lack of city right-of-way needed to accommodate all of the landscape elements originally designed for the streetscape project. Hy -Vee has reviewed the proposed easement agreement and agrees to sell the easement to the city for $1.00. The City Attorney drafted the proposed easement, which has been attached for the Council's review. Recommendation Staff recommends that the Council approve the attached resolution. Attachments • Resolution • Permanent Easement agreement • Easement Description Sketch • Memo from City Attorney L\ DEV\Development\Q & R Fence Easement Agreement with Hy -Vee 2-22-16.docx JENSEN, SONDRALL PERSELLIN&WOODS P.A., ATTORNEYS AT LAW 8525 EDINBROOK CROSSING, STE. 201 BROOKLYN PARK, MINNESOTA 55443-1968 T ELEPHONE (763) 424-8811 ■ TELEFAX (763) 493-5193 www.jspwaw.com MEMORANDUM Date: February 17, 2016 To: Jeff Sargent From: Stacy Woods Re: Permanent Easement for Landscape and Fence Purposes over Hy -Vee Property As a part of the City Center redevelopment, certain streetscape and landscape improvements along 42nd and Xylon Avenues are taking place. A fence and landscaping are being constructed along a 10 foot strip of property owned by Hy -Vee. A permanent easement is necessary to enable the City to construct and maintain the fence and landscaping ("Easement"). Hy -Vee and the City Attorney have been negotiating the terms of the Easement. Hy -Vee is insisting on certain indemnification and hold harmless language. The provision has been modified to provide that the City will indemnify, defend and hold harmless the owner of the Easement Area from and against any and all losses arising out of any injury or death of any person, or damage to any property, arising out of any exercise by the City of its rights and obligations pursuant to the Easement. In other words, the City is only agreeing to indemnify and hold harmless Hy -Vee arising from acts of the City. While the City normally does not provide such indemnities, in this case it is reasonable. The following phrase provides the City some protection: Nothing herein shall however be deemed as a waiver of claims against Hy -Vee for intentional tortuous acts by Hy -Vee. In addition, the following language requires Hy -Vee to be responsible for damage it causes to the fence: Additionally, Hy -Vee shall, at its sole cost and expense, be responsible for the cost required for the City to repair and restore any damage caused to the fence located in the easement Area arising out of any actions taken by Hy -Vee. The City is of course insured as a member of the League of Minnesota Cities Insurance Trust (LMCIT) in the event of a loss, however unlikely it may be. Having reviewed the proposed language, this appears to be a reasonable request by Hy -Vee. In summary, the request is not objectionable and we recommend that the City sign the Easement. I C.V. flied C.V. not ro._X No delinquent taxes Transfer Entered Doc No T05339069 Apr 11, 2016 3:58 PM Certified, filed and/or recorded on Apr 11, 2016 3:58 PM Hennepin County, Minnesota Mark Chapin Office of the Registrar of Titles Gounty Auditor and Treasurer Hennepin County, Minnesota Martin McCormick, Registrar of Titles Mark Chapin, County Auditor and Treasurer Deputy 117 Pkg ID 1374943D Document Recording Fee $46.00 Document Total $46.00 PID(s) 18-118-21-11-0019, 18-118-21-11-0020 Existing Certs 1416277, 1416278 This cover sheet is now a permanent part of the recorded document. ( q 1p1..-�p,� PERMANENT EASEMENT AGREEMENT FOR LANDSCAPE AND FENCE PURPOSES THIS PERMANENT EASEMENT AGREEMENT FOR LANDSCAPE AND FENCE PURPOSES ("Easement"), is dated effective the �Q' `day of f60b'uar r , 2016, by and between HY-VEE, INC., an Iowa corporation ("Hy -Vee"), and the City of New Hope, a Minnesota municipal corporation ("City'°). WHEREAS, Hy -Vee is the fee owner of certain real property located at 8200 42nd Avenue North, New Hope, Hennepin County, Minnesota, and legally described as follows: Lots I and 2, Block 1, New Hope Hy -Vee, Hennepin County, Minnesota ........P.ID:.....1.8-.L18-21-.1.1-O.O.L9..-......... . 18-118-21-11-0020 (the "Property"); and WIIEREAS, the City is desirous of .obtaining. a permanent casement over, under and across a portion of said Property for landscape and fence purposes. NOW, THEREFORE, in consideration of the sum of One Dollar (SI.00) and other good and valuable consideration to it in hand paid by the City, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Hy -Vee does hereby grant, bargain and convey unto the City, its successors and assigns, forever, a permanent casement including full and free right and authority to enter upon that portion of the Property legally described and graphically depicted on the attached Exhibit A ("Easement Area"), and to construct and thereafter maintain, repair and replace landscape improvements and a fence ("Easement"). The City shall beep and maintain the landscape improvements and fence within the Easement Area in good condition and repair. 2. The City shall indemnify, defend and hold harmless the owner(s) from time -to - time of the Easement Area from and against any and all losses, costs, claims, demands, allegations, liabilities, judgments and expenses, including without limitation, attorneys' fees, arising out of any injury or death of any person, or damage to any property, arising out of any exercise by the City of its rights and obligations pursuant to this Easement upon the Property. Nothing herein shall however be deemed as a waiver of claims against Hy -Vee for intentional tortuous acts by Hy -Vee. 3. The City shall, at its sole cost and expense, timely repair and restore any damage caused to the Property arising out of the installation, maintenance, repair and/or replacement of landscaping and fence improvements. 4. Hy -Vee shall, at its sole cost and expense, be responsible for the cost required for the City to repair and restore any damage caused to the fence located in tine Easement Area arising out of any actions taken by Hy -Vee. 4. . The Easement herein described shall continue forever as a perpetual easement over, under and across said Easement Area and shall run with the land and shall be binding upon the owner(s) from time -to -time of the Easement Area. HY-VEE, INC., an Iowa corporation Sr. Vice President By. ICA T. Nathan Allen, Assistant Secretary STATE OF IOWA ) )Ss. COUNTY OF POLK ) The foregoing instrument was acknowledged before me this�� t of 4LCGt�yc. 2016, by Jeffrey Markey and Nathan Allen, the Sr. Vice President and Assistant Secretary, respectively, of HY-VEE, INC., an Iowa corporation, on behalf of said corporation. Not Public f JULIE L. JENSEN COMMISSION NO. 123588 UY � ON EXPIRES raw 2 CITY OF NEW HOPE B Y� 1� Its Mayor By: Its City Manager STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) AThe foregoing instrument was acknowledged before me this day of aA , 2016, by Kathi Hemken and Kirk McDonald, the Mayor and City Manager, respectively, of the City of New Hope, a Minnesota municipal corporation, on behalf of said municipal corporation. Notary Public Drafted By: Jensen Sondrall Persellin & Woods, P.A. 8525.Edinbrook Crossing,.Suite.20.1.................. . Brooklyn Park, MN 5 5443 (763)424-8811 Exhibit A (Page 1 of 2) Legal Description and Graphic Depiction of Easement Area Legal Description of Easement Area: A, permanent easement far landscape and fe.n.ce purposes ewer, finder, and acruass the Weat 10.00 feet of Lots 1 zmd .r, Block 1, NEW HOPE HY--VEE, according to the recorded plat thereof, Hennepin County, Minnesota and the most southerly 10,00 feet of said .Lot 2, Black 1, there 11 M ='i I •'t Exhibit A (Page 2 of 2) Legal Description and Graphic Depiction of Easement Area Graphic Depiction of Easement Area: CITY OF NEW HOPE, MINNESOTA EASEMENT DESCRIP CIN SKETCH PE'RNMEFff LANDSCAPE & FENCE EASEMENT A paernanent Palet fcs lands-spe and fence purpom tw' under, and aatss the Wast 16,44 kat of tats 1 and I BID& 1, NEW HORE HY-VE6, according w the recorded plat tharaof, Hennepin County, Wgnpasora.and the. most wu_ilarly 10.46 fait of said Lot 2, BI«k 1. therea. ND LEGE +�y & Fence Eas$nent M;SID: DECEMBER 6, 201S I HEREBY CERr.FY TXKrTM.. PL4M, 3PEC---r—ATZ.-i Ce %5?=�¢. INAS PREPARED W ME OR €3RKVING R ME UNC AAT ENRM=.. SUPE9VISION AJAD THAT I ^M A OLly UCS PROFEMNAL L 14D SURI&MOR UNDER IhE LAWS OFTHE s*ATE Of MMEMA. ju "-- -. ' PRW I,IA%I--: LiAML J. POEBM . St. Paul offiC!L1 DRAWN 23M Wwt f1loway36 Dip 5oint Pmil. MN 55113 MNATURE:Phwo'iffl- �A31 t6OW RROdNO. DATE SVTfM3M 16, 2n95 43 no. WobMaxwovskoFSAC 36-1311ine—imrn 17-35=10 . 1 P:1AttorneylSAS11 Client Filesl2 City of New I•lope199-21409 (Hy -Vee PUD)INew Hope MN 1 Easement - Landscape and .pence v5 final - 2-15- 16.docx 5 RESOLUTION NO. 16- 32 RESOLUTION APPROVING PERMANENT EASEMENT FOR LANDSCAPE AND FENCE PURPOSES OVER HY-VEE PROPERTY BE IT RESOLVED by the City Council of the City of New Hope as follows: WHEREAS, the City is in the process of installing various streetscape and landscape improvements along 42nd and Xylon Avenues as part of the City Center redevelopment; and WHEREAS, the improvements include the installation of a fence and landscaping adjacent to the real property owned by Hy -Vee located at 8200 42nd Ave. N., New Hope, Minnesota legally described as follows: Lots 1 and 2. Block 1, New Hope Hy -Vee, Hennepin County, Minnesota ("Hy -Vee Property"); and WHEREAS, the City is desirous of obtaining a permanent easement over, under and across a portion of the Hy -Vee Property depicted on Exhibit A of the Permanent Easement Agreement for Landscape and Fence Purposes ("Easement Area") for the construction, maintenance, repair and replacement of landscape improvements and a fence; and WHEREAS, the City Attorney has drafted a Permanent Easement Agreement for Landscape and Fence Purposes, and has presented it to Hy -Vee which has approved said Easement, a copy of which is attached hereto as Exhibit A; and WHEREAS, it is in the best interests of the City to obtain these permanent easement rights over Hy -Vee Property to allow for the City's construction and maintenance of the landscape and fence improvements; WHEREAS, City staff is hereby seeking approval from the City Council to accept the Permanent Easement Agreement for Landscape and Fence Purposes. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of New Hope as follows: 1. That the above recitals are incorporated herein by reference. 2. That the Permanent Easement Agreement for Landscape and Fence Purposes over a 10 -foot strip the Hy -Vee Property is hereby approved, it being in the best interest of the City to have access for construction and maintenance of landscaping and fence improvements. 3. The Mayor and City Clerk are authorized and directed to sign all appropriate documents, and to take whatever additional actions are necessary or desirable, to execute the Permanent Easement Agreement for Landscape and Fence Purposes as drafted by the City Attorney. Dated the 22nd day of February, 2016. Kathi ffemken, Mayor Attest. /u� Valerie Leone,(Sty Clerk PERMANENT EASEMENT AGREEMENT FOR LANDSCAPE AND FENCE PURPOSES -TMS PERMANENT EASEMENT AGREEMENT FOR LANDSCAPE AND FENCE PURPOSES ("Easement"), is dated effective the day of 2016, by and between HY VEE, INC., an Iowa, corporation ("Hy -Vee"), and the City of New Hope, a Minnesota municipal corporation ("City"). WHEREAS, Hy -Vee is the fee owner of certain real property located at 8200 42nd Avenue North, New Hope, Hennepin County, Minnesota, and legally described as follows: Lots 1 and 2, Block 1, New Hope Hy -Vee, Hennepin County, Minnesota PID: 18-118-21-11-0019 18-118-21-11-0020 (the "Property" ), and 'WHEREAS, the City is desirous of obtaining a permanent easement over, under and across a portion of. said Property for landscape and fence purposes. NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration to it in hand paid by the City, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Hy -Vee does hereby grant, bargain and convey unto the City, its successors and assigns, forever, a pern3anent easement including full' and free right and authority to enter upon that portion of the Property legally described and graphically depicted on the attached Exhibit A {"Easement Area"), and to constrict and thereafter maintain, repair and replace landscape ., improvements and a fence ("Easement"). The City shall keep and maintain tain the landscape improvements and fence within the Easement Area in good condition and repair. 2.' The City shall indemnify, defend and hold harmless the owner(s) from time -to - time of the Easement Area from and against any and all losses, costs, claims, demands, allegations, liabilities, judgments and expenses, including without ]imitation, allomeys' fees, arising out of any injury or death of any person, or damage to any properly, arising out of any exercise by the City of its rights and obligations pursuant to this Easement upon the Property. Nothing herein shall however be deemed as a waiver of claims against Hy -Vee for intentional tortuous acts by Hy -Vee. 3. The City shall, at its sole cost and expense, timely repair and restore any damage caused to the Property arising out of the installation, maintenance, repair and/or replacement of landscaping and fence 'improvements. 4. Hy -Vee shall, at its sole cost and expense, be responsible for the cost required for the City to repair and restore any damage caused to the fence located in the Easement Area arising out of any actions taken by Hy -Vee. 4. The Easement herein described shall continue forever as a perpetual easement over, under and across said Easement Area and shall run with the land and shall be binding upon the owner(s) from time -to -time of the Easement Area - BY -VEE, INC., an Iowa corporation Jeffrey Markey, Sr, Vice President Nathan Allen, Assistant Secretary STATE OF IOWA ) ss. COUNTY OF POLK } The foregoing instrument was acknowledged before me this _ day of _ , 2016, by Jeffrey Markey and Nathan Allen, the .Sr. Vice President and Assistant Secretary, respectively, of HY-VEE, INC., an Iowa corporation, on behalf of said corporation. 2 CITY OF NEW HOPE Lm Its Mayor By: Its City Manager STATE OF MINNESOTA ) )SS. COUNTY OF HENNEPIN ) The foregoing inst mnent was aclmowledged before me this day of 2016, by Kathi Hemken and. Dirk McDonald, the Mayor and City Manager, respectNely, of the City of New Hope, a Minnesota mamicipal corporation, on behalf of said municipal corporation. Jensen Sondrall Persellin. & Woods, P -A- 8525 Edinbrook Crossing, Suite 201 Brooklyn Park, MN 55443 (753) 424-8811 w P, 29 61 v VA ► . Exhibit A (Page I of 2) Legal Description and Graphic Depiction of Easement Area Legal Description of Easement Area: A permanaritna9mmtfor [ani and fiffilm purposes ovw, under, and agwthe weit, 10. W fact of t t I and 2, Block 1, NEIN NOPE Wf VEF, a=rdbV bo #tie recorded plat ftruaf, ftrft4in CDiiiO, Mkw4 and the aMSt, souk y MOD That of saw Fiat 7, S lxk 1, Exhibit A (Page 2 of 2) Legal Description and Graphic Depiction of Easement Area Graphic Depiction of Easement Area: CITY OF NEW I--IOPEj MINNESOTA EASEMENT DESCRIPTION SKETCH C & "WARM A pe msmieytm 1 for Jaedsc�p�e eed � pwpmces ower. m1m. aW u=w*m W%w lumfed ofICsiow$Bb& F tv tW rxmded Oftfbwed, �teee do CnFsa� 61MM a and xhs mou nead+wiy 10" Tom Cf . �d lit 2, e8adc 3, ku LVTIPSCI LEGEND LO z a.f�w"�i I AIG RAY NO, 9 PAT M B, MIS f ti��rc�7+�.7trex�i#t, PrP, ares wAs PoPARD 6Y9Y4@AR4t1a M NAY 09=5UPaZwE=u r7Rprfar:C6tfA,aaE �` c 1"Mmui�mulog ANDI Pr7[AMADfia711G6At3aMP }bkLUMD� _ I*M!IR LAMS up111M warW44 Orf writeDiRhYN# EL ftmd Pima M&FAM— tra. DOE= '� 4�d9FF iqp dyt �6 cut �CiFaw Pf10111G in du idol N¢ lEe OM40 5391 �a sms c.ren° a vo P_1Attomey1SAS\1 Client TilcsU City of New Hope199-21404 (Hy-VeePUD)\New Hope MN 1 Ease mmi - Landscape and FGaae v5 final - 2-7 5- I &docx 5 11qV@@ February 26, 2016 Jeff Sargent City of New Hope 4401 Xylon Ave N. New Hope, MN 55428 RE: Hy -Vee Landscape and Fence Easement Dear Jeff: Enclosed herewith, please find 1 original of the Permanent Easement Agreement for Landscape and Fence Purposes executed by Hy -Vee. Please obtain the signature of the mayor and city manager, then record the easement. Once recorded, please send me a scanned copy of the fully executed and recorded easement for our files. If you have any questions, please give me a call at 515-267-2870. / NSA -Vee, nc. Nathan Allen, Assistant General Counsel ./,dig*0 Hy -Vee, Inc. — Employee -Owned 5820 Westown Parkway, West Des Moines, Iowa 50266 Phone: (515) 267-2800 EDA ^� Request for Action Originating Department Approved for Agenda Agenda Section EDA Community Development November 23, 2015 Item No. By: Jeff Sargent, Director of CD By: Kirk McDonald, City Manager 5 y Resolution approving termination of easement over property platted as "New Hope Hy-Vee' �� J Requested Action Staff requests the Economic Development Authority (EDA) to consider the approval of a resolution terminating an existing and unnecessary easement related to the Hy-Vee development. Policy and Past Practice The EDA has vacated easements in the past in order to accommodate new developments. Background The easement in question burdens the entirety of the Hy-Vee property and went unnoticed during the platting process. Through title work for the property, it was discovered that the easement exists, serves no purpose, and needs to be terminated in order to have a clean title. Being that Hy-Vee is in possible negotiations for the sale of the North Memorial parcel, a request has been made to the EDA to approve the termination of the easement. The easement benefitted the old State Bank of New Hope land, which later was purchase by Wells Fargo, but the easement document does not describe the land which was intended to be served by the easement. The easement appears on all of the Certificates of Title for the Hy-Vee tracts and also appears on the Certificate of Title of the Civic Plaza parcel, which is currently owned by the EDA. Once again, the easement is not specific in nature, but rather encumbers the entire area (outlined in blue in the attached document) for a variety of purposes. Since New Hope State Bank is no longer in existence, and the new owners of the land, namely Hy- Vee and the EDA, have no need for the easement, the two parties can terminate the easement. It should be noted that this is not a public easement needed for public use. For this reason, there is no need for a public hearing in order to terminate this easement. SECOND BY TO: KLa S L\RFA\COMM DEV\Plarmin \Q&R-Termination ofFly-Vee Easement 11-23-15.doc Request for Action November 23, 2015 Page 2 The City Attorney reviewed the proposal and prepared the attached resolution and is in favor of terminating the easement. Staff Recommendation Staff recommends that the EDA approve resolution terminating the aforementioned easement. Attachments • Resolution • Affidavit • Termination of Easement Agreement • Graphic depiction of affected easement areas • Certificate of Title EDA RESOLUTION NO. 15- 23 RESOLUTION APPROVING TERMINATION OF EASEMENT OVER PROPERTY PLATTED AS "NEW HOPE HY-VEE" BE IT RESOLVED by the Economic Development Authority, in and for the City of New Hope ("EDA"), as follows: WHEREAS, Hy -Vee, Inc., an Iowa corporation, is the owner of certain real property legally described as Lots 1, 2 and 3, Block 1, New Hope Hy -Vee ("Hy -Vee Property"); and WHEREAS, the EDA is the owner of certain real property adjacent to the Hy -Vee Property and legally described as Outlot A, New Hope Hy -Vee, Hennepin County, Minnesota; and WHEREAS, Hy -Vee has discovered that there exists a Permanent and Perpetual Easement dated November 6, 1976, entered into by its predecessors in interest, on the title to the Hy -Vee Property ("Easement"); and WHEREAS, Hy -Vee has requested the EDA to give its consent to the termination of the Easement by entering into that certain Termination of Easement to clear the title to the Hy -Vee Property of the Easement; and WHEREAS, EDA has no use for the Easement; and WHEREAS, it is in the best interests of the EDA to cooperate with Hy-Vee's request and enter into the Termination of Easement; and WHEREAS, City staff is hereby seeking approval from the EDA to authorize the execution of the Termination of Easement. NOW, THEREFORE, BE IT RESOLVED by the EDA in and for the City of New Hope as follows: 1. That the above recitals are incorporated herein by reference. 2. The President, Executive Director and New Hope City staff are authorized and directed to sign all appropriate documents, and to take whatever additional actions are necessary or desirable, to execute the Termination of Easement as set forth on the attached Exhibit "A". Dated the 23 day of November, 2015. Attest: kmmlm��46 . Kirk McDonald, Executive Director Kathi Hemken, President Doc No T05316041 Certified, filed and/or recorded on Dec 17, 2015 8:00 AM Office of the Registrar of Titles Hennepin County, Minnesota Martin McCormick, Registrar of Titles Mark Chapin, County Auditor and Treasurer Deputy 84 Attested Copy or Duplicate Original Document Recording Fee Multiple Certificates Affected Fee Document Total Existing Certs 1395519,1395520,1395521,1395522 This cover sheet is now a permanent part of the recorded document. Pkg ID 1335971C $2.00 $46.00 $60.00 $108.00 TERMINATION OF EASEMENT THIS AGREEMENT with an effective date of / OV 32015 is made and entered into by and between Hy -Vee, Inc., an Iowa corporation ("Hy -Vee"), New Hope Economic Development Authority, a public body corporate and politic created pursuant to the laws of the State of Minnesota, ("NHEDA"), and Wells Fargo Bank, National Association a national banking association, ("Wells Fargo"); WHEREAS, pursuant to a Permanent and Perpetual Easement ("Easement Agreement") dated November 6, 1976, and recorded January 17, 1977 in the office of the Hennepin County Registrar of Titles as Document No. 1206360, Developers Diversified, Ltd, an Ohio limited partnership, granted to New Hope State Bank its successors and assigns, a non-exclusive permanent and perpetual easement for purposes of ingress, egress, parking aisles, driveways, sidewalks, parking spaces and service drives, together with the right to tie into and make use of the drainage system and sanitary sewer facilities, all located in over and across the tract of land described on Exhibit A, attached hereto. WHEREAS, From January 17, 1977 until March 1, 2012, New Hope State Bank and/or its successor, was the owner of the tract of land described on Exhibit B attached hereto. WHEREAS, the tracts of land so described on Exhibits A and B, have now been platted as NEW HOPE HY VEE, and consist of Lots 1, 2, and 3, Block 1, and Outlot A, NEW HOPE HY VEE. WHEREAS, Hy -Vee is the record owner of Lots 1, 2 and 3, Block 1, New Hope Hy Vee, as evidenced by Certificates of Title Nos. 1395520, 1395521 and 1395522; WHEREAS, NHEDA is the record owner of Outlot A, New Hope Hy Vee, as is evidenced by Certificate of Title No. 1395519; WHEREAS, Wells Fargo is the successor by merger to New Hope State Bank; WHEREAS, Hy -Vee and NHEDA agree that the Easement Agreement referred to herein is no longer necessary for the benefit of either of them, their successors or assigns, or for the benefit of the lands described herein. NOW THEREFORE, Hy -Vee and NHEDA hereby mutually agree that said Easement Agreement is hereby terminated by each of them as record owners of the land which is burdened by, and the land intended to be benefitted by the easement; and Wells Fargo hereby affirms that it has no interest in the continuation of the Easement Agreement for its benefit and consents to the termination of said Easement Agreement. MINNESOTA/2064779.0003/12936588.1 IN WITNESS WHEREOF, HY-VEE, INC. has caused this Agreement to be executed on the PCnpprr a-2 `day of C,nbCt -, 2015. HY-VEE, ZNC. By -.P 4 3- f ey Vice President y Ey:A.,^7 e^y *11 Nathan Allen, Assistant Secretary STATE OF IOWA COUNTY OF POLK The foregoing instrument was acknowledged before me this /1p _'day of 2015, by Jeffrey Markey as the Sr. Vice President, an4 Nathan Allen as the Assistant Secretary, of Hy - Vee, Inc., an Iowa corporation, on behalf of the corpora`oon. MATINA D. MASStAAN COMMISSION NO. 154M Uy C(M SIO one rMF J MINNESOTA/2064779.0003!12936588.1 IN WITNESS WHEREOF, NEW HOPE ECONOMIC /DEVELOPMENT AUTHORITY, has caused this Agreement to be executed on the "? !V 3 day of _ 0 V 2015. NEW HOPE ECONOMIC DEVELOPMENT AU:"m& HO By:/amu Kathi Hemken, Its By. Kirk McDonald Its: Executive Director STATE OF MINNESOTA?/� ) COUNTY OF "4 The foregoing instrument was acknowledged before me this �_ day of Q 2015, by Kathi Hemken, the President, and Kirk McDonald, the Executive Director, of New Hope Economic Development Authority, a public body corporate and politic created pursuant to the laws of the State of Minnesota. 0 if�t o Notary Public f'k MINNESOTA/2064779.0003/12936588.1 IN WITNESS WHEREOF, WELLS FARGO BANK NATIONAL ASSOCIATION has caused this Agreement to be executed on the _ day of 2015. WELLS FARGO BANK NATIONAL ASSOCIATION By: - Its: STATE OF MINNESOTA ) COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2015, by the of Wells Faro B Association, a banking association, on behalf of the association. g National national ba Notary Public MINNESOTA/2064779.0003/12936588. I EXMIT A That part of the West % of the Northeast V4 of Northeast V4 of Section 18, Township 118, Range 21, Henn said line 165 feet North measured along said line from the Southeast comer of said subdivisiepin County, Minnesota described as commencing on the East line of said subdivision at point on on; THENCE West parallel to the South line of said subdivision 82.5 feet; THENCE South parallel to the East line of said subdivision 165 feet to the South line thereof,• THENCE West along said South line to the Southwest corner of said subdivision; THENCE North along the West line thereof to the Northwest corner of said subdivision; THENCE East along the North line thereof to the Northeast corner of said subdivision; THENCE South along the East line thereof to the point of beginning; excepting therefrom the North 350.98 feet. Also excepting therefrom the South 223.58 feet of the West 190 feet. MINNESOTA/2064779.0003/12936588.1 The South 223.58 feet of the West 190 feet of the West % of the Northeast /< of the Northeast''/. of Section 18, Township 118, Range 21, Hennepin County, Minnesota. MIN' NESOTA2064779.0003/12936588.1 T a 0 fit I a+a y jf fa �y 1 :f r� 1pq-t! ?n�g I I 1ll� $ �� �2 �.n } I ��• I I 1 'gn 1 I I yi E!X C E P l 0 N I I "t e I I 71 1 f 1 1 I kae3 r___ , I � 2 $ I I ap F I gg pjg} I 3i 3 i � E I J 1 1 P I li i 1 I _n I o I 1 I j �2 •+I Ilk I f' .1s 5 I I -. d I 1 a5 C�+ SCI II I-'- _ 'f •nl ii I i I ti I i �i� LL �i = I 1I; P I I e' =an + 7+• 1 I � j7tt- j [i(t r'1 v I n .. t Ify. du tis IIS}"lig' fit e.v s t++A I I ti , qr _J wr«tw ---------- - 1 1 —zx :.'y^'ne - ©V�_ yt$ �aw �opn �rilt.M.irr lid✓clapskrMta. `�iUtii4� `: ,'^: --- P7tt� _+�yjnt =a Certificate of Title Certificate Number: 1395519 Created by Document Number: 5212939 Transfer from: 1395517 Originally registered April 11, 1933 Volume: 168, Certificate No: 53544, District Court No: 4028 Also originally registered April 21, 1971, Volume: 1534, Certificate No: 463225, District Court No: 17097 State of Minnesota County of Hennepin S.S. Registration This is to certify that New Hope Economic Development Authority, whose address is 4401 Xylon Avenue North, New Hope, Minnesota is now the owner of an estate in fee simple In the following described land situated in the County of Hennepin and State of Minnesota: Oudot A, New Hope Hy Vee Subject to the interests shown by the following memorials and to the following rights or encumbrances set forth in Minnesota statutes chapter 508, namely: 1. Liens, claims, or rights arising under the laws or the Constitution of the United States, which the statutes of this state cannot require to appear of record; 2. Any real property tax or special assessment; 3. Any lease for a period not exceeding three years, when there is actual occupation of the premises under the lease; 4. All rights in public highways upon the land; 5. Such right of appeal or right to appear and contest the application as is allowed by law; 6. The rights of any person in possession under deed or contract for deed from the owner of the certificate of title; 7. Any outstanding mechanics lien rights which may exist under sections 514.01 to 514.17. Memorials Document Date of FilingMonth Day, Number Document Type Year Time Amount Running in Favor Of T995954 OUR Claim Deed May 7, 1971 2:55 PM City of New Hope. Granting an easement for public street purposes over pt of above land (See Inct) T1049810 Easement Oct 20, 1972 10:45 AM County of Hennepin. Granting an easement for highway purposes over pt of above land (See Inst) Between Developers Diversified (an OH LP), S.S. Kresge Company & T1132984 Amendment Feb 20, 1975 9:45 AM American National Insurance Company (See Inst) Reentered Dec 1, 1997 at 9:00 AM New Hope State Bank. Granting a non-exclusive permanent and T1206360 Easement Jan 17, 1977 3:30 PM perpetual easement for purposes of ingress & egress over above land. Subordinating Mtge Doc No 1025149 to this easement T1298621 Easement Oct 16, 1978 8:00 AM County of Hennepin. Granting a permanent easement for installation & maintenance of traffic signals over pt of above land. (See Inst) Between Kenneth Young & W & Z Properties, Ltd. T1306061 Easement Nov 29, 1978 12:00 PM Creating certain easements, rights, obligation and restrictions (See Inst) T1359773 Highway Plat Nov 28, 1979 8:00 AM County of Hennepin. Hennepin County State Aid Highway Number 9, Plat 58. As directed be Resolution Doc No 979240 County of Hennepin. Granting a permanent easement for the T1482551 Easement Sep 22, 1982 9:00 AM installation and maintenance of traffic signals over pt of above land. (See Inst) Given to correct Doc. No, 1296621 Certificate Number: 1395519 This is a non -certified copy Page 1 of 2 Indexes Verified through 10/212015 cffi In Witness Whereof, I have hereunto subscribed my name and axed the seal of my office this 7th day of November, 2014. Martin McCormick Registrar of Titles, In and for the County of Hennepin and State of Minnesota. Certificate Number: 1395519 This is a non -certified copy Page 2 of 2 New Hope Volunteers of America Elderly Housing, Inc. (an LA corp) from O'Fallon Associates, a NY limited partnership, American 71558035 Quit Claim Deed Jan 17, 1984 5:00 PM National Insurance Company (a Tex corp) Kmart Corporation (a Mich corp) E & H Properties, Inc (a PA corp) Michael H. Goodman,Trustee & Continental Bank. Creating an easement for storm sewer purposes over other land for the benefit of above land. Reentered April 20, 2012 @ 4:OOPM 72152119 Resolution Jan 31, 1991 9:00 AM By the City Council of the City of New Hope. Granting a conditional use permit (See Inst) Resolution No 90-224 73318388 Resolution Sep 26, 2000 4:00 PM Resolution No. 99-159 By the City Council of the City of New Hope. Granting a conditional use permit. (See Inst) Between Hy -Vee Inc and New Hope Economic Development T5212940 Easement Nov 7, 2014 1:00 PM Authority. Granting a easement for parking and other purposes together with said easement over other land. T5267859 Amendment Jun 24, 2015 3:14 PM Amending Easement document no(s) 5212940. T5296051 Amendment Oct 7, 2015 3:45 PM Between Hy -Vee, Inc & New Hope Economic Development Authority Amending document no(s) 5212940 Indexes Verified through 10/212015 cffi In Witness Whereof, I have hereunto subscribed my name and axed the seal of my office this 7th day of November, 2014. Martin McCormick Registrar of Titles, In and for the County of Hennepin and State of Minnesota. Certificate Number: 1395519 This is a non -certified copy Page 2 of 2 ' 120060 k is 1CF292irS s^ 'i NO ti ' PP.RMANENT AND PERPETUAL EASEMENT. THIS INDENTURE, Made this W day Of 'a!k!a DEVELOPE DIYERSIFIEB,. ':1976, botwsen DEVELOHERS DIVERSIFIED,, LTD.dan Ohio limited partner- ship, party of the first part, and NEW HOPE SPATE BANK. 'a Minnesotai; corporation, party of the second part, WITNESSETH, That the said party of the first part, :'inconsideration of the sum of One Dollar and other good i and valuable consideration,to it in hand paid by the said.. ',party of the second part, the receipt whereof is hereby,.acknow- ���"`(({�����J ledged, does hereby grant to said party of the second -part, F D its successors and assigns, a non-exclusive . permanent and per - I (\� !�petual easement in, over, across and upon the following '. .r./'described tract of land, for purposes of ingress and egress: That Part of the west 1/2 of the Northeast 1/4 of i Northeast 1/4 of Section 18, Township 118, Range 21,: Hennepin County, Minnesota described as, commencing on the East line of said subdivision at a point on said line 165 feet North measured alongsaid i iinc fr Gin'u•a wGtuaaat CL'i„aY Lf za-P. .^.:a".9.•: _CiCL; - � THENCE west parallel to the South line of said , subdivision 82.5 feet; , 2:1id 1 0'.1 w THENCE South parallel to the East t lie of as H subdivision 165 feet to the South line thereof; • a jtis 4 a THENCE West along said South line to the Southwest corner of said subdivision; THENCE North along the West line thereof to the Northwest corner of said subdivision; THENCE East along the North line thereof to the Northeast corner of said subdivia ion; THENCE South along the East lice thereof to the point of beginning; excepting therefrom the North 350.98 feet.- `•4 Also excepting therefrom the South 223.58 feet of .the West 190 feet. The above described property being subject to the rights of the public in 42nd Avenue North (County .Road No. 91 as iLt same 3s nnw laid out and constructed across said property, also subject to the opening of xylon Avenue Horth by the village of Now Nope according to Document No. 995954 on file in the Office of the Registrar of Titles, Hennepin County, Minnesota- Said party of the first part does hereby grant unto ( the party of the second part, its customera, agents, employees and independent contractors to use in common with the i party of the first part its tenants, invitees, successors and assigns, all parking aisles, driveways, sidewalks, parking spaces and service drives located on the parcel n '+ hereinabove described for purposes of this Easement, excluding ' ` any building areas thereon, together with the right to tie resent at future l lnuo and make use of, if necessary, the drainage system and sanitary sewer facilities currently existing on said property. The acceptance and recording of this indenture by party of the second part shall sarva• as its acknowledgement and accep- tance of the terms hereinabove recited and shall bind the ;. party of the second part, its successors and assigns as though fully executed by said party of the second part. j - The party of the second part hereby agrees to correct or remedy any damage sustained by the occupants of the above 1 captioned property as a direct result of the rights granted I herein and agrees to restore the surface of the Easement j i v area to its condition just prior to the commencenent of its worn, installed in accordance herewith. Party of the 1; second part further agrees in the use of said easement to G`. I: indemnify and save harmless the party of the first part, its successors and/or assigns, from any and all damages occasioned by the original construction, use and exercise o£ i ". such easementsand thereafter from the replacement, reconstruc- tion, operation, repair, maintenance, or use of said easements and appurtenances within the easement area. i. I TO HAVE AND TO HOLD SAID EASENCNT unto said party of the second part, its successors and assigns as appurtenant .i to said land. - _p_ IL12M60 II I. IN WITNESS WHEREOV, Said party Of the first part has caused these presents to be executed in its corporate name by its general partner and its corporate seal to be hexeuntO affixed the day and year first above written. a/k/a DEVELOPERS DIVERSIFIE DEVELOPERS DIVEPSIPTED, LTD.,/an Ohio Limited Parntership By Bert L. Wolstein, General Partner The undersigned consents to the above and joins in the execution hereof to subbrdinate its right, title and interest in.and to a certain lease dated December 8, 1976, a memorandum of which was recorded March. 14,972, and known as_r&W.1JXe_nt C41 known A NO. 1025146 to the rights herein granted. Consented to by the S. S. Kresge Company 'vB ts _Wl, .. Val" s8b& Vice President —its Secretary The undersigned consents to the above and joins in the 9 execution hereof to subordinate its right, title and interest it in and to a certain mortgage assigned to /and dated August 23, 1972, kp,4Baik#orded August 25, 1972, and being document Na—LOA3273, herein granted. 61ft .1 5s by h American National to the eric "cc Company its I. and IB'y�I!llaG�__its aLNWR VICE PRS'ilDENT 4 STATE OF OUIO COUNTY OF CUYAHOGA. I do hereby cegify that on this 16th day of Be- 1976, before ae, 'rMppq,.Vf_.M. sb�YS 1 a Notary Public in and for the County and State aforesaid, and duly commissioned, peruaselly_appeared BERT L. HOLSTEIN. know toreto be the General Partner of DEVELOPERS DIVERSIFIED. LTD., an Ohio limited partnersbip, who. being by we duly sworn, did depose and any that be resides in Cleveland. Ohio, that. he is a General Partner of DEVELOPERS DIVERSIFIED, LTD., an Ohio limited partnership, described in and which exacuted the foregoing instrument; that he signed and delivered said iostrimeat for the uses and purposes therein act forth as his free and wlmstary act, and that he signed his same thereto by like order. Said DEVELOPERS DIVERSIFIED. LTD., is Also known aS DEVELOPERS DIVERSIFIED, an Ohio limited partnership. IN WITNESS HNEREDF, I have hereunto set my bard and affixed my official seal the dayandyear in this certificate first above written. EfgtnC a, rastq- . My Commission Expires= Amy wrsrspOw. "o- Ur ' ry,ie SPATE OF MICHIGAN COUNTY OF OAAIM jam' K •ir I do hereby certify that on this 8th day of November ' ,19 76, before me, Damm L. Perkins , a 110ta17 Public in and for the County and State aforesaid, and duly commissioned, personally appeared J. P. Johnson and G: E. Lotzar known to me to be the Vice President and Assistant Secretary of S. S. liresge Company, who, being by ma duly sworn, did depose and say that they reside in Birmingham. Rlchigan and Birmingham, Michigan respectively; that they are the Vice President and Ass;slaot Secretary respectively of S. S. Kmge Company, the corporation described in and which emcuted the foregoing instrument; that they know the seal of slid corporalron; that the seal affixed to said instrument is the corporate seal of mid corpora- tion; thnt, on behalf of said corporation and by order of its (ward of dimatoM they signed, scaled and delivered said instrument for the uses and purposes [heron setforth, as its and their free and voluntary set; and Mat they signed their names thereto by like order. In Witmer; Nbemof, I haw hereunto set my hand and aRrred my official seal the day and year in this certificate Inst above written. l^, 1,,,_ �,//)� My commission crpftm4.>RlyZ a /" ( ••I •d) Notary I'ahhc DONNA L PERKINS Notary NO-- Oadaad Coup/. MddL fir G+mmnvm Expires SspL 5, 1979 ' COUNTY OF ' I shy Ferri on this 13.CX.day ?f "�rn.�-LJ.' 1976, before lam. l/-ztGL. a'Notary Publfelnand for the Co mt ate Fore �saidA d�2liy eonalasioned, personally appoaCCd y Ae t�2,cnL known m'rut to be the -.6 and of American National - rfir Insurance Cnmdnny, who-be.�ug y me duly sworn, di depose n y that they reside in _LL_YY_ a_,,,]( .i ✓ and respectively: tat they are'the� ,C ..�:ds_.L and' respectively of the american National iii. 'Insurance Company. the Corporation described in and which executed the foregoing iasttumeat; that they 'know . the seal of said corporation. that the seal affixedto said inetroment is the corporate seal of said corporation:,, that, on belmlf of said corporation and _ by order of its board of directors. they signed, sealed and delivered said instrument for chi uses and purpose.therein set forth, a,s its and their free and voluntary act; and that they signed their nexes thereto by like order. In Witness whereof, I have hereunto set my hand and affixed by official seal the day and year in this certificate first above written. My Commission expires: �' ,.tGPA'"t[.PA' Notary Public - dli01th C. Ault, NOtRX7 Public in and for Canty of Calvestoa, Taxes. - us Commission exglrie Nino 1. 1912, -3- 120FINuo � } `g2O6366 MICE or my maw ce illus :STAT! OF Maa1C". A ex -m wnEwcwm , 1 hereby Mary flat :ae Tdt%n lmtmmenl. - . . v= filed In this office on the /7 day at JNI A.D,.4m at f,30 o'clock M. liq �rn OF piers® DE REDIIto sneAR n OW a�a� hsfw kd Viol FINANCE DIVISION IEnliF�I/Nyy/Cy�MY, MINI . DYL1 Leone Valerie From: Stacy A. Woods <saw@jspwlaw.com> Sent: Thursday, August 04, 2016 2:05 PM To: Leone Valerie Cc: Sargent Jeff Subject: RE: term of easement HI Val, I contacted the paralegal at Stinson Leonard Street who was involved with this. She said she recorded it and is going to send me a copy. I'll get you a copy too. Stacy Woods Stacv A. Woods* JF,NSF.,N SONDRAIA, PF,RSE.,IAAN & WOODS, P.A. 8525 Fdinbrook Crossing, Ste. 201 Brooklyn Park, MN 55443-1968 Phone(763)424-8811 Fax (763) 493-5193 Direct (763) 201-0265 Cell (612) 501-0494 saw!aispwlaw.com *MSBA Board Certified Real Property Law Specialist JENSENSONDRALE PERSELLIN&WOODS �. P.A., Ar IORNEYS Af€n;Y APlease consider the environment before printing this e-mail. WARNING: Actual receipt of E -Mail communications should not be assumed. E -Mail communications may be intercepted or inadvertently misdirected. The American Bar Association deems E -Mail a valid authorized form of communication between lawyer and client, however security of this E -Mail message and attachments (if any) cannot be assured. Unless the text indicates otherwise, this E -Mail message and attachments (if any) shall not be deemed legal advice, nor does it create the relationship of Attorney/Client. If the reader of this message is not the intended recipient or authorized to deliver it to the intended recipient, dissemination, distribution or copy of this communication is prohibited. If you received this communication in error, please immediately notify sender via E -Mail reply. From: Leone Valerie [mailto:vleone@ci.new-hope.mn.us] Sent: Thursday, August 04, 2016 10:27 AM To: Stacy A. Woods Cc: Sargent Jeff Subject: term of easement Don't believe this has been completed/recorded. Execution Draft i PURCHASE AND DEVELOPMENT AGREEMENT By and Among NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY and HY-VEE, INC. Dated as of: October 9,2014 This document was drafted by: BRADLEY&DEUCE,P,A. 4018 West 65th Street, Suite 100 Edina,MN 55435 Telephone: (952) 926-5337 , PURCHASE AND DEVELOPMENT AGREEMENT THIS AGREEMENT,made on or as of the 9th day of October,2014,by and between the New Hope Economic Development Authority, a public body politic and corporate under the laws of the State of Minnesota (the "Authority"), and having its principal office at City Hall, 4401 Xylon Avenue North, New Hope, Minnesota 55428, and Hy-Vee, Inc., an Iowa corporation ("Hy-Vee") and having its principal office at 5820 Westown Parkway, West Des Moines, Iowa 50266. WITNESSETH: WHEREAS,The Authority is a municipal economic development authority organized and existing pursuant to the Constitution and laws of the State of Minnesota and is governed by its Board of Commissioners (the"Board"); and WHEREAS, the Authority and the City of New Hope, Minnesota (the "City") have established within the City Redevelopment Project No. I pursuant to Minnesota Statutes, Sections 469.001 - 469,047, providing for the development and redevelopment of certain areas located within the City (which redevelopment project is hereinafter referred to as the "Project"); and WHEREAS, the Authority has acquired three parcels of real property (the "Overall Property") located within the Project and has undertaken certain site preparation activities on the Overall Property to prepare the Overall Property for redevelopment; and WHEREAS, Hy-Vee and Anderson KM Builder, LLC, a Minnesota limited liability company (the "Developer")have submitted to the Authority a proposal by which Hy-Vee would purchase a portion of the Overall Property (the "Redevelopment Property") from the Authority and construct a multi-phased commercial development on the Redevelopment Property (the "Improvements");and WHEREAS, IIy-Vee plans to engage the Developer to be its contractor for the construction of the Improvements; and WHEREAS,the Authority has considered Hy-Vee's proposal and has determined that the proposal is in the best interest of the City and its residents and is in accord with the public purposes and provisions of applicable federal, state and local laws under which the Project is being undertaken and assisted; NOW THEREFORE, in consideration of the premises and the mutual obligations of the parties hereto, each of them does hereby covenant and agree with the other as follows: ARTICLE I Definitions ' I Section 1.1. Definitions. In this Agreement,unless a different meaning clearly appears from the context: "Act" means Minnesota Statutes, Sections 469.001-469.047 and 469.090-469,108, as amended. "Agreement" means this Agreement, as the same may be from time to time modified, amended, or supplemented. "Authority" means the New Hope Economic Development Authority, a public body politic and corporate,its successors and assigns, "Board"means the Authority's Board of Commissioners. "Certificate of Completion" means the instrument described in Section 4.4 of this Agreement, "City" means the City of New Hope,Minnesota. t �t "City Public Improvements" means the public improvements to be undertaken by the City in connection with the development of the Improvements, which public improvements are described on Schedule D attached to this Agreement. "Closing"means the date of delivery of the Deed from the Authority to Hy-Vee. "Construction Plans" means the site plan, utility plan, grading and drainage plan, landscape plan, elevations drawings and related documents on the construction work to be performed by Hy-Vee on the Redevelopment Property which have been or will be submitted for approval by the Board, together with the resolution of the Board approving such plans and the plans, specifications, drawings and related documents on the construction work to be performed by Hy-Vee on the Redevelopment Property which are to be submitted to the building inspector of the City. "County"means Hennepin County,Minnesota, "Deed"means the deed in the form of Schedule B attached hereto. "Developer" means Anderson-KM Builders,LLC, a Minnesota limited liability company, its successors and assigns. "Event of Default" means an action by the Authority or Hy-Vee listed in Article IX of this Agreement. 2 is "Hy-Vee Public Improvements"means the public improvements to be undertaken by IIy- Vee in connection with the development of the Improvements, which public improvement are described on Schedule E attached to this Agreement. "Improvements" means the improvements to be constructed by Hy-Vee on the Redevelopment Property, consisting of Phases 1 and 2. "Lot" means a platted lot of the Overall Property following the re-platting of the Overall Property, "Lot 1" means the platted lot of the Overall Property on which Phase 1A will be constructed. "Lot 2" means the platted lot of the Overall Property on which Phase lB will be constructed. "Lot 3" means the platted lot of the Overall Property on which Phase 2 will be constructed. "Master Site Plan" means the site plan that has been presented to the City and the Authority by Hy-Vee,which site plan is attached to this Agreement as Schedule C. "Outlet A" means the platted lot of the Overall Property on which the Outlet Improvements will be constructed. "Oudot Improvements"means the construction on Outlet A of a public plaza with signage and certain other improvements on the northeast corner of Xylon Avenue and 42nd Avenue,the cost of which will be paid by the City or EDA. "Overall Property" means the real property described on the attached Schedule A, which will be replatted into Lots 1,2, 3 and Oudot A, "Permitted Encumbrances" means the provisions of the Deed, this Agreement, reservations of minerals or mineral rights to the State of Minnesota, such utility, roadway and other easements that are required by the City in connection with the platting of the Overall Propertry, and exceptions to title to the Redevelopment Property which are not objected to by Hy-Vee upon examination of the title evidence to be delivered to Hy-Vee pursuant to Section 3.6 of this Agreement; and the provisions of the Act. "Phase"means either Phase 1 or Phase 2. "Phase 1"means that portion of the Improvements that consists of Phases lA and 113, "Phase IA"means the construction on Lot 1 of approximately 80,000 -90,000 square feet of grocery/retail improvements,private and public utility relocation and construction work on Lot 1, earthwork for the entire Redevelopment Property, grading necessary for future roadway access to 3 Winnetka Avenue and all storm water ponding, public and private utility construction, and site improvements for all of Phase 1 (except for the Oudot Improvements). "Phase 1B" means the construction on Lot 2 of between 3,000 and 4,600 square feet of convenience retail and a gas canopy. "Phase 2"means the construction on Lot 3 of approximately 12,000 square feet of Class A office space, retail or restaurant space, along with site improvements and surface parking as required. "Project"means the Authority's Redevelopment Project No, 1. "Project Area" means the real property located within the boundaries of the Project. "Project Plan" means the redevelopment plan adopted in connection with creation of the Project. • "Redevelopment Property" means that portion of the Overall Property consisting of the property that will be re-platted as Lots 1, 2, and 3, "State" means the State of Minnesota. "Termination Date" means the expiration of the earlier to occur of the issuance by the Authority of a Certificate of Completion for Phase 2, or the fifth(5th) year following the closing of the purchase by Hy-Vee of the Redevelopment Property,. "Unavoidable Delays" means delays which are the direct result of acts of God, adverse weather conditions, strikes, other labor troubles, fire or other casualty to the Improvements, litigation commenced by third parties which, by injunction or other similar judicial action, directly results in delays, or acts of any federal, state or local governmental unit which directly result in delays. ARTICLE II Representations Section 2.1. Representations by the Authority. The Authority makes the following representations as the basis for the undertaking on its part herein contained: (a) The Authority is a municipal economic development authority organized and existing under the laws of the State. Under the laws of the State, the Authority has the power to enter into this Agreement and to perform its obligations hereunder. (b) The Authority will cooperate with Hy-Vee with respect to any litigation commenced with respect to the Project Plan, Project, or Improvements, other than litigation in which the Authority and Hy-Vee are adverse parties. 4 (c) The Authority has received no notice or communication from any local, state or federal official that the activities of Hy-Vee, the Developer and/or the Authority in the Project Area may be or will be in violation of any environmental law or regulation. The Authority is aware of no facts the existence of which would cause it to be in violation of any local, state or federal environmental law,regulation or review procedure. Section 2.2. Representations by Hy-Vee. Hy-Vee represents that: (a) Hy-Vee is an Iowa corporation duly organized and authorized to transact business in the State, is not in violation of any provisions of its articles of incorporation, bylaws or the laws of the State,has power to enter into this Agreement and has duly authorized the execution, delivery and performance of this Agreement by proper action of its board of directors. (b) Hy-Vee will construct the Improvements in accordance with the terms of this Agreement and all local, state and federal laws and regulations (including, but not limited to, environmental, zoning, building code and public health laws and regulations), except for variances necessary to construct the improvements contemplated in the Construction Plans approved by the Authority. (c) Hy-Vee has received no notice or communication from any local, state or federal official that the activities of Hy-Vee or the Authority in the Project Area may be or will be in violation of any environmental law or regulation. Hy-Vee is aware of no facts the existence of which would cause it to be in violation of any local, state or federal environmental law, regulation or review procedure. Following Closing, in the event that it is necessary to take any action to obtain any necessary permits or approvals with respect to the Property under any local, state or federal environmental law or regulation, Hy-Vee will be responsible for taking such action. (d) Hy-Vee will obtain, in a timely manner, all required permits, licenses and approvals, and will meet, in a timely manner, all requirements of all applicable local, state and federal laws and regulations which must be obtained or met before the Improvements to be constructed by Hy-Vee may be lawfully constructed. (e) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of, the terms, conditions or provisions of any restriction or any evidences of indebtedness, agreement or instrument of whatever nature to which Hy-Vee is now a party or by which it is bound,or constitutes a default under any of the foregoing. (f) Hy-Vee will cooperate with the Authority with respect to any litigation commenced with respect to the Project Plan, Project, or Improvements, other than litigation in which the Authority and Hy-Vee are adverse parties. 5 ARTICLE III Conveyance of Redevelopment Property Section 3d, Status of Overall Property; Development Proposal. The Overall Property was the location of various blighted and substandard improvements and buildings. The Authority acquired the Overall Property for the purpose of clearing the Overall Property and preparing it for sale for private redevelopment. Hy-Vee has submitted to the Authority and the City a proposal pursuant to which Hy-Vee would purchase a portion of the Overall Property from the Authority and would construct thereon the Improvements. Under such proposal Hy-Vee would replat the Overall Property into four lots, Lot 1, Lot 2, Lot 3, and Outlot A, and the Authority would sell Lots 1, 2, and 3 (the "Redevelopment Property") to Hy-Vee and the Authority would retain Outlot A. Hy-Vee plans to contract with the Developer to be its general contractor for the construction of the Improvements on the Redevelopment Property. In consideration for Hy- Vee's covenants and agreements contained in this Agreement the Authority is willing to sell the Redevelopment Property to Hy-Vee on the terms and conditions contained in this Agreement. Section 3.2. Title; Survey. (a) Within twenty(20)working days after the date hereof,the Authority will furnish to Hy-Vee a commitment for the issuance of an ALTA Owner's policy of title insurance for Redevelopment Property naming Hy-Vee as the proposed insured party. Hy- Vee shall be allowed thirty (30) days after its receipt of the later to be received of the title commitment and the survey referenced in subdivision (b) for examination of said title and the making of any objections thereto, said objections to be made in writing or deemed to be waived. If any objections are so made,the Authority shall be allowed thirty(30)days from notice thereof to cure the title defect or exception, either by the removal thereof, or if acceptable to Hy-Vee by • the procurement of title insurance endorsements satisfactory to Hy-Vee providing coverage against loss or damage as a result of such defect or exception. If the Authority does not cure such title defect or exception to Hy-Vee's satisfaction within said thirty (30) days, Hy-Vee may terminate this Agreement upon written notice to the Authority within ten(10) days following the expiration of the title objection cure period, upon which this Agreement shall be null and void and Hy-Vee, the Developer and the Authority shall execute an instrument in recordable form canceling this Agreement. The cost of obtaining the title insurance commitment and the cost of the title insurance premium shall be paid by Hy-Vee. (b) Hy-Vee shall, at its expense, order an updated survey of the Redevelopment Property within ten(10)days following the date hereof. (c) Hy-Vee may enter upon the Redevelopment Property prior to the Closing to • perform any environmental and/or soils tests thereupon that Hy-Vee desires, at Hy-Vee's sole cost and expense. In the event of any damage caused by Hy-Vee to the Redevelopment Property resulting from any such invasive tests, Hy-Vee shall repair any such damage at Hy-Vee's sole cost and expense and restore the Redevelopment Property to substantially the condition as previously existed. • 6 (d) Hy-Vee may terminate this Agreement at any time prior to the Closing date described in Section 3.3 for any reason without cost or liability to Hy-Vee. In such event, The Authority may retain any earnest money. Section 3.3. Closing; Purchase Price, (a) Closing on the conveyance of the Redevelopment Property to Hy-Vee shall occur on or before the later of(i) September 30, 2014, or (ii) 10 days following the expiration of the title objection cure period, subject to the satisfaction or waiver of all of the conditions precedent contained in Section 3.4. (b) At the closing on the conveyance of the Redevelopment Property the Authority shall deliver to Hy-Vee: (1) the Deed duly executed and acknowledged conveying to Hy-Vee marketable title to the Redevelopment Property; (ii) the ALTA Owner's title insurance policy described in Section 3.2; and (Hi) a Seller's Affidavit, in customary form, affirming that there are no judgments, federal tax liens,mechanic's liens and outstanding interests in the Redevelopment Property. (c) Hy-Vee shall be responsible for the payment of all closing costs associated with the conveyance of the Redevelopment Property, including, but not limited to, State deed tax, the costs of obtaining a title insurance commitment and the title insurance policy,-all-of-Hy-Vee's -- broker's commissions, and the closing agent's reasonable closing fees, (d) The purchase price to be paid by Hy-Vee to acquire the Redevelopment Property shall be $3,725,000 and shall be payable as follows: $1.00 in earnest money paid by Hy-Vee upon the execution of this Agreement;and the balance of$3,724,999 payable at closing. Section 3.4. Conditions Precedent to Conveyance of the Redevelopment Property. The Authority's obligation to sell, and Hy-Vee's obligation to purchase,the Redevelopment Property shall be subject to satisfaction of the following conditions precedent: (a) Hy-Vee having reviewed and approved, or waived any objections to, title to the Redevelopment Property pursuant to Section 3.2 of this Agreement. (a) Hy-Vee having secured the Authority's approval of the Construction Plans and all other governmental approvals, including without limitation, planned unit development approval from the City, necessary to permit the construction and operation of Phase 1 of the Improvements. (b) Hy-Vee having completed the re-platting of the Overall Property. If all of the conditions precedent to the conveyance of the Redevelopment Property have not been satisfied by December 31, 2014, either the Authority or Hy-Vee shall have the right to terminate this Agreement by giving written notice of termination to the other party, upon which this Agreement shall terminate and the Authority, the Developer, and Hy-Vee shall execute an instrument in recordable form evidencing such termination. Section 3.5. Payment of Administrative Costs. The Developer will reimburse the Authority for all out-of-pocket costs incurred by the Authority in connection with review and i analysis of the development proposed under this Agreement, development of the tax increment plan for the tax increment district to be created by the City and the Authority as described in Section 6.2 of this Agreement; and negotiation of this Agreement and any related agreements and documents (collectively, the "Administrative Costs"). The Administrative Costs include fees paid to attorneys and the Authority's financial advisor retained by the Authority or City in connection with the construction of the Improvements. As security for the Administrative Costs, the Developer deposited with the Authority the amount of$10,000, and the Authority shall pay the Administrative Costs from such funds. If the total Administrative Costs exceed$10,000,the Developer remains responsible for such excess costs, and must pay such costs to the Authority within 10 days after receipt of a written invoice from the Authority describing the amount and nature of the costs to be reimbursed. After all of the Administrative Costs related to such actions have been paid, the Authority will refund to the Developer any portion of the balance from the $10,000 deposit (if any) that is not needed to cover the Administrative Costs through such reimbursement date. Notwithstanding anything to the contrary herein, the Developer remains obligated to pay the Administrative Costs after issuance of a certificate of completion for the Improvements, including the costs of any amendments to this Agreement. Section 3.6. Lot 3 Reacquisition Rights; Limitations on Sale Price. (a) Commencing on the first day of the fourth (4th) year following the closing on the conveyance of the Redevelopment Property to Hy-Vee(the"Hy-Vee Closing"),the Authority shall have the right to repurchase Lot 3 as described in this Section 3,6 (the "Authority Repurchase Right"). The Authority may only exercise the Authority Repurchase Right if, after three (3) years following the Hy-Vee Closing, the then-current owner of Lot 3 has not commenced construction on Lot 3 in accordance with the Master Site Plan and the approved planned unit development. In order to exercise the Authority Repurchase Right,the Authority must notify Hy-Vee in writing of its election to exercise the Authority Repurchase Right. In the event Hy-Vee either (i) has submitted a site plan to the City in furtherance of the development of Lot 3, or (ii) in the reasonable opinion of the Authority, is actively and in good faith marketing the property to third party developers or end users for the development of Lot 3 in accordance with the Master Site Plan and PUD,the then-current owner of Lot 3 may notify the Authority of the same in writing, Such notice must be provided within twenty (20) business days following receipt of the Authority repurchase election notification, If the then-current owner of Lot 3 provides such notice, and if the statements therein are accurate, the Authority repurchase election notification received by the then-current owner of Lot 3 shall be of no further force and/or effect. In that event the Authority Repurchase Right shall be extended by one (1) year to the first day of the fifth(5th)year following the Hy-Vee Closing. The repurchase price to be paid by the Authority will be $470,000. Lot 3 will be conveyed back to the Authority by quit claim deed free from all title defects, liens and encumbrances except for those to which Lot 3 was subject at the time that Lot 3 was deeded to Hy-Vee. In the event construction on the redevelopment of Lot 3 has not commenced by the expiration of the fifth(5th)year following the Hy-Vee Closing and the Authority has not notified the then-current owner of Lot 3 of its intent to repurchase Lot 3, then the Authority Repurchase 8 is Right shall lapse and be of no further force and/or effect. Notwithstanding the foregoing, in the event during the four (4) year period following the Hy-Vee Closing, the then-current owner of Lot 3 notifies the Authority that it is unable to construct the Phase 2 improvements on Lot 3, upon which notification the then-current owner will convey Lot 3 to the Authority for the purchase price stated above. Prior to the approval by the City and the Authority of a site plan for Phase 2, Hy-Vee shall not be entitled to transfer Lot 3 without the prior written consent of the Authority. (b) The Authority is conveying Lot 3 to Hy-Vee for the purpose of allowing Hy-Vee to self-develop or to sell Lot 3 to third parties for development and not for the purpose of Hy- Vee making a material profit from a third party sale of the land, Therefore,Hy-Vee agrees that it will not sell the land only of Lot 3 for a purchase price that exceeds the pro rata cost to Hy-Vee of the original purchase of Lot 3 (as defined in the last sentence of this Section 3.6(b), plus any applicable cost or expense incurred by.Hy-Vee in the purchase, development, improvement, marketing, and sale of Lot 3. Such costs and expenses shall include, but not be limited to, a portion of the closing costs, title insurance, broker commissions and other pre-development expenses applicable to Hy-Vac's original purchase of the entire Redevelopment Property, broker commissions applicable to the sale of Lot 3, real estate taxes and special assessments applicable __ to_the_period_o£ITy=V-ee_s_ow.nership_of-Lot-3,-a-portion-of the-expenses-associated-with-the- - -- - - installation of utilities and other infrastructure for the Redevelopment Property, a portion of any off-site improvements associated with the development of the Redevelopment Property,a portion of the landscaping and hardscape expenses associated with the Redevelopment Property, attorneys' fees, travel expenses, and other reasonably documented expenses to Hy-Vee in connection with the development of the Redevelopment Property. For purposes of determining the pro rata cost to Hy-Vee of the original purchase of Lot 3, such pro rata cost shall be determined by multiplying the purchase price of the entire Redevelopment Property($3,725,000) by a fraction, the numerator of which is the square footage of Lot 3 and half the square footage of any common roadways adjacent to Lot 3, and the denominator of which is the total square footage of the Redevelopment Property, Section 3.7. Re-platting of Property. Prior to and as a condition precedent to the conveyance of the Redevelopment Property to Hy-Vee, Hy-Vee shall, at its expense, re-plat the Overall Property into four lots, Lot 1, Lot 2, Lot 3, and Outlot A. The plat shall contain dedications of all public rights of way and utility easements. ARTICLE IV Construction of Improvements Section 4.1. Construction of Improvements. Hy-Vee agrees that it will construct the Improvements on the Redevelopment Property in accordance with the approved Construction Plans and at all times prior to the Termination Date will operate and maintain,preserve and keep the Improvements or cause the Improvements to be maintained, preserved and kept with the appurtenances and every part and parcel thereof,in good repair and condition, 9 s Section 4.2. Construction Plans, (a) Hy-Vee has submitted and the City and the Authority have approved a site plan for the construction of the Improvements (the "Master Site Plan"), which Master Site Plan is attached to this Agreement as Schedule C. The Master Site Plan will be refined as Hy-Vee develops its plans for each Phase of the Improvements. In addition to the Master Site Plan, Hy-Vee shall, at its expense, prepare and submit to the City all documentation and information necessary to obtain City planned unit development approval in connection with the development of the Improvements (the "PUD"). Approval of the PUD will be granted in accordance with applicable City ordinances and procedures. All Construction Plans for the Improvements shall be consistent with the approved Master Site Plan, as it may be amended from time to time, and the PUD. The Construction Plans shall provide for the construction of the Improvements and shall be in conformity with this Agreement, the Site Plan approved by the Authority, and all applicable state and local laws and regulations.The Authority shall approve the Construction Plans in writing if, in the reasonable discretion of the Authority: (i) the Construction Plans conform to the terms and conditions of this Agreement; (ii) the Construction Plans are consistent with the Site Plans previously submitted to the Authority; (iii) the Construction Plans conform,to all applicable federal, State and local law, ordinances, rules and regulations; (iv) the Construction Plans are adequate to provide for the construction of the Improvements; and(v) no Event of Default has occurred and is continuing. No approval by the --Author-ity_under_this-Section 4.2-shall-relieve-HyVee-ofthe-obligation to-comply—with-the-terms of this Agreement or applicable federal,state and local laws, ordinances,rules and regulations,or to construct the Improvements. No approval by the Authority shall constitute a waiver of an Event of Default. Such Construction Plans shall, in any event, be deemed approved unless rejected in writing by the Authority,in whole or in part. Such rejection shall set forth in detail the reasons therefor, and shall be made within fifteen (15) days after the date of their receipt by the Authority, The provisions of this Section relating to approval, rejection and resubmission of corrected Construction Plans shall continue to apply until the Construction Plans have been approved by the Authority or until this Agreement is terminated. The Authority's approval shall not be unreasonably withheld. (b) If Hy-Vee desires to make any change in any Construction Plans after their approval by the Authority, Hy-Vee shall submit the proposed change to the Authority for its approval. If the Construction Plans, as modified by the proposed change, conform to the requirements of this Section 4.2 of this Agreement with respect to such previously approved Construction Plans, the Authority shall approve the proposed change and notify Hy-Vee in writing of its approval, Any requested change in the Construction Plans shall, in any event,be deemed approved by the Authority unless rejected, in whole or in part, by written notice by the Authority to Hy-Vee, setting forth in detail the reasons therefor, Such rejection shall be made within ten(10)days after receipt of the notice of such change, Section 4.3. Commencement and Completion of Construction, (a) Subject to Unavoidable Delays, 1-ly-Vee shall commence construction of Phase 1 of the Improvements by June 1, 2015, and shall complete Phase 1 by May 31, 2016, Subject to Unavoidable Delays,Hy- Vee shall commence construction of Phase 2 of the Improvements by October 1,2017, and shall complete Phase 2 by October 31, 2018. Notwithstanding the foregoing, a failure to commence and complete Phase 2 by the above dates will not constitute an Event of Default under this Agreement, provided, however,Hy-Vee agrees to use commercially reasonable efforts to market 10 Lot 3 for the development of Phase 3 and to submit reports to the Authority explaining the reasons that Phase 2 has not been constructed by such dates. All work with respect to the Improvements to be constructed or provided by Hy-Vee on the Property shall be in conformity with the Construction Plans as submitted by Hy-Vee and approved by the Authority. (b) Until construction of the Improvements has been completed, Hy-Vee shall make construction progress reports, at such times as may reasonably be requested by the Authority,but not more than once a month, as to the actual progress of Hy-Vee with respect to such construction. Section 4.4. Certificate of Completion. (a) Promptly after completion of a Phase of the Improvements in accordance with those provisions of this Agreement relating solely to the obligations of Hy-Vee to construct that Phase of the Improvements, and upon request by Hy- Vee,the Authority will furnish Hy-Vee with a Certificate of Completion for the Phase in a form acceptable for recording in the County Recorder's Office or the Office of the Registrar of Titles, The Certificate of Completion shall be furnished to Hy-Vee within ten (10) business days after request by Hy-Vee,and shall conclusively satisfy and terminate the agreements and covenants in this Agreement, and its successors and assigns, to construct the Phase. Such certification and suclidetermination_shall_no..t constitute_evidence_ofeompliance—with—or—satisfaction—of any obligation of Hy-Vee to any Holder of a Mortgage, or any insurer of a Mortgage, securing money loaned for construction of the Minimum Improvements,or any part thereof. (b) If the Authority shall refuse or fail to provide a Certificate of Completion in accordance with the provisions of this Section 4.4 of this Agreement,the Authority shall, within ten(10)business days after written request by Hy-Vee for the Certificate of Completion,provide Hy-Vee with a written statement, indicating in adequate detail in what respects Hy-Vee has failed to complete the Phase in accordance with the provisions of this Agreement,or is otherwise in default, and what measures or acts will be necessary, in the opinion of the Authority, for Hy- Vee to take or perform in order to obtain the Certificate of Completion. (c) The construction of a Phase shall be deemed to be completed when the City has issued a final certificate of occupancy for the Phase, or when Hy-Vee would be entitled to a certificate of occupancy if it had requested one, and when all conditions imposed in connection with the City's approval of Hy-Vee's development, including the establishment of any completion escrow,if necessary,have been satisfied. Section 4.5, City Public Improvements. (a) In connection with the development of the Improvements the City has agreed to construct certain public improvements (the "City Public Improvements"). The City Public Improvements are described on the attached Schedule D. The Authority agrees that it will cause the City to construct the City Public Improvements and to cause the City Public Improvements to be completed by the date that Hy-Vee opens the Improvements for business, subject to Unavoidable Delays. All costs of the City Public Improvements will be paid by the City or Authority. (b) The Outlot Improvements are part of the City Public Improvements. The Developer will act as the City's construction manager in connection with the construction of the 11 Outlot Improvements. The Developer will, in consultation with the City, prepare plans and specifications for the Outlot Improvements, will solicit bids from contractors in compliance with statutory municipal bidding requirements and will perform normal and customary construction manager services in connection with the construction of the Outlot Improvements. Section 4.6, Hy-Vee Public Improvements. In connection with the development of the Improvements Hy-Vee will be responsible for the construction of certain public improvements (the "Hy-Vee Public Improvements). The IIy-Vee Public Improvements are described on the attached Schedule E. The Hy-Vee Public Improvements will be completed by the times that Phase 1 is required to be completed. All costs of the Hy-Vee Public Improvements shall be paid by Hy-Vee. Section 4.7. Maintenance of Public Improvements. (a) The City and Hy-Vee will each be responsible for a portion of the maintenance of the City Public Improvements and the Hy-Vee Public Improvements. (b) The City will be responsible for: (i) Customary_maintenance,_repair-and-replacement-up tothe-cur-b4.ine-of'all public streets within and adjacent to the Redevelopment Property; (ii) Customary maintenance,repair and replacement of standard street lighting located in the public right of way within and adjacent to the Redevelopment Property; and (iii) Customary maintenance, repair and replacement of the public plaza area on Outlet A, (c) Hy-Vee will be responsible for: (i) Customary maintenance, repair and replacement of all private streets and alleys within the Redevelopment Property. (ii) Customary repair and replacement of landscaping elements between the property line of the Redevelopment Property(which for purposes of this term sheet is intended to refer to the property line of the Redevelopment Property following the replat thereof and to exclude public right-of-way areas) and the curb line of any public street within the right of way bordering the post-plat property line of the Redevelopment Property. ARTICLE V Insurance Section 5.1. Insurance. 12 (a) Hy-Vee will provide and maintain at all times during the process of constructing the Improvements and, from time to time at the request of the Authority, furnish the Authority with certificates of: (i) Builder's risk insurance, written on the so-called "Builder's Risk -- Completed Value Basis," in an amount equal to one hundred percent (100%) of the insurable value of the Improvements at the date of completion, and with coverage available in nonreporling form on the so called "all risk" form of policy; (ii) Comprehensive general liability insurance(including operations, contingent liability, operations of subcontractors, completed operations, Broadening Endorsement including contractual liability insurance)together with an Owner's Contractor's Policy with limits against bodily injury and property damage of not less than $2,000,000 for each occurrence (to accomplish the above-required limits, an umbrella excess liability policy maybe used); and (iii) Worker's compensation insurance, with statutory coverage and employer's liability protection, The policies of insurance required pursuant to clauses (i) and (ii) above shall be in form and content satisfactory to the Authority and shall be placed with financially sound and reputable insurers licensed to transact business in the State, the liability insurer to be rated A- or better by A.M. Best. The parties agree that the insurance certificates described herein may come from Hy- Vee's general contractor for the project. (b) Upon completion of construction of the Improvements and prior to the Termination Date,Hy-Vee shall maintain, or cause to be maintained,at its cost and expense, and from time to time at the request of the Authority shall furnish proof of the payment of premiums on,insurance as follows: (i) Insurance against loss and/or damage to the Improvements under a policy or policies covering such risks as are ordinarily insured against by similar businesses, including(without limiting the generality of the foregoing)fire,extended coverage, all risk vandalism and malicious mischief, boiler explosion, water damage, demolition cost, debris removal, and collapse in an amount not less than the full insurable replacement value of the Improvements. The term "full insurable replacement value" shall mean the actual replacement cost of the Improvements (excluding foundation and excavation costs and costs of underground flues,pipes, drains and other uninsurable items) and equipment. Hy- Vee may self-insure for the insurance coverage described in this Section 5,1(b)(i). (ii) Comprehensive general public liability insurance, including personal injury liability (with employee exclusion deleted), and automobile insurance, including owned, non-owned and hired automobiles, against liability for injuries to persons and/or property, in the minimum amount for each occurrence and for each year of$2,000,000.00. Hy-Vee may self-insure for the insurance coverage described in this Section 5.1(b)(ii) 13 (iii) Worker's compensation insurance respecting all employees of Hy-Vee, in such amount as required by statute; provided that Hy-Vee may be self-insured with respect to all or any part of its liability for worker's compensation. (c) All insurance required in Article V of this Agreement shall be taken out and maintained in responsible insurance companies selected by Hy-Vee which are authorized under the laws of the State to assume the risks covered thereby. (d) Hy-Vee agrees to notify the Authority immediately in the case of damage to the Improvements exceeding $100,000 in amount to, or destruction of, the Improvements or any portion thereof resulting from fire or other casualty. In the event of any such damage, Hy-Vee will forthwith repair, reconstruct and restore the Improvements to substantially the same or an improved condition or value as existed prior to the event causing such damage and,to the extent necessary to accomplish such repair, reconstruction and restoration, I-Iy-Vee will apply the proceeds of any insurance relating to such damage received by Hy-Vee to the payment or reimbursement of the costs thereof, Hy-Vee shall complete the repair, reconstruction and restoration of the Improvements, whether _ o1 not_theNat-Proceeds_of_insurance_receiv-ed-b-y-Hy-V-eefor-such-purposes-are sufficient to-pay- ---- for the same. Any proceeds remaining after completion of such repairs, construction and restoration shall be retained by Hy-Vee. ARTICLE VI Taxes; Tax Increment District Section 6.1. Real Property Taxes. Hy-Vee shall pay or cause to be paid when due and prior to the imposition of penalty all real property taxes and installments of special assessments payable with respect to the Redevelopment Property after Hy-Vee acquires the Redevelopment Property. The parties acknowledge and agree that due to the Authority's ownership of the Redevelopment Property there are no taxes currently due with respect to the Redevelopment Property and that the Authority will pay all special assessments levied against the Redevelopment Property at the time of closing on the conveyance of the Redevelopment Property to Hy-Vee. ARTICLE VII Intentionally Omitted. ARTICLE VIII Prohibitions Against Assignment and Transfer,Indemnification 14 it Section 81 Prohibition Against Transfer of Property and Assignment of Agreement. Hy- Vee represents and agrees that Hy-Vee has not made or created and, prior to the Termination Date, will not make or create, or suffer to be made or created, any total or partial sale, assignment, conveyance, or lease,or any trust or power, or transfer in any other mode or form of or with respect to this Agreement or the Property or any part thereof or any interest herein or therein, or any contract or agreement to do any of the same, without the prior written approval of the Authority, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Hy-Vee may transfer the Property and assign its interest in this Agreement to an entity affiliated with Hy-Vee or Hy-Vee's owners provided that such new entity executes an instrument in a form acceptable to the Authority by which it assumes and agrees to perform Hy- Vee's obligations under this Agreement. No such assignment or transfer shall relieve Hy-Vee of any liability under this Agreement unless the Authority in writing specifically releases Hy-Vee. Notwithstanding anything to the contrary set forth herein, Hy-Vee may lease or license portions of the interior of the grocery store to be constructed upon the Property to any third party for any use consistent with other uses made by Hy-Vee of any portion of any of its other stores. Section 8,2. Release and Indemnification Covenants. (a)______Erom_and_after_Closing,_Hy—Vee_releases_from,-and-covenants-and-agrees-that,-the------ .. . Authority, the City and the governing body members, officers, agents, servants and employees thereof(collectively, the"Authority Parties") shall not be liable for and agrees to indemnify and hold harmless the Authority, the City, and the governing body members, officers, agents, servants and employees thereof against any loss or damage to property or any injury to or death of any person occurring at or about or resulting from any defect in the Improvements. (b) Except with respect to the negligence or willful misconduct or misrepresentation of the Authority Parties,Hy-Vee agrees to protect and defend the Authority Parties,now or forever, and further agrees to hold the aforesaid harmless from any claim, demand, suit, action or other proceeding whatsoever by any person or entity whatsoever arising or purportedly arising from the construction,installation, ownership, and operation of the Improvements by Hy-Vee. (c) The Authority, the City, and the governing body members, officers, agents, servants and employees thereof shall not be liable for any damage or injury to the persons or property of the company or its officers, agents, servants or employees or any other person who may be about the Property or Improvements due to any act of negligence of any person. (d) All covenants, stipulations, promises, agreements and obligations of the Authority contained herein shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the Authority and not of any governing body member, officer, agent, servant or employee of the Authority in the individual capacity thereof. Section 8.3. Environmental Conditions. (a) The Developer and Hy-Vee acknowledge that the Authority and City make no representations or warranties as to the condition of the soils of the Redevelopment Property or the fitness of the Redevelopment Property for construction of the Improvements or any other purpose for which the Developer or Hy-Vee may make use of such property. 15 (b) Without limiting its obligations under Section 8,2 of this Agreement,the Hy-Vee further agrees that, except for any misrepresentation or anymisconduct or affirmative act by the Authority or the City and except for any breach by the Authority of its obligations under this Agreement, from and after Closing and for the duration of the term of this Agreement, Hy-Vee will indemnify, defend, and hold harmless the Authority Parties, from any claims or actions arising out of the presence, if any, of hazardous wastes or pollutants first existing on or in the ! � Property following the Closing Date, unless and to the extent that such hazardous wastes or pollutants are present as a result of the actions or omissions of the Authority Parties. (c) Nothing in this Agreement will be construed to limit or affect any limitations on liability of the City or Authority under State or federal law, including without limitation, Minnesota Statutes Sections 466,04 and 604.02. ARTICLE IX Events of Default Section 9.1. Events of Default Defined, The term "Event of Default" shall mean,whenever it is used in this Agreement(unless the context otherwise provides): (a) any failure by Hy-Vee to observe or perform any covenant, condition, obligation or agreement on their part to be observed or performed hereunder; or (b) if,before issuance of the Certificate of Completion for the Improvements,Hy-Vee shall (i) file any petition in bankruptcy or for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the United States Bankruptcy Act or under any similar federal or State law, which action is not dismissed within sixty(60) days after filing; or (ii) make an assignment for benefit of its creditors; or (iii) admit in writing its inability to pay its debts generally as they become due; or (iv) be adjudicated a bankrupt or insolvent. Section 9.2. Authority's Remedies on Default by Hv-Vee. Whenever any Event of Default by Hy-Vee referred to in Section 9.1 of this Agreement occurs, the Authority may immediately suspend its performance under this Agreement until it receives assurances from Hy-Vee, deemed reasonably adequate by the Authority, that Hy-Vee will cure its default and continue its performance under this Agreement and may tape any one or more of the following actions after 16 providing thirty(30)days written notice to Hy-Vee of the Event of Default, but only if the Event of Default has not been cured within said thirty(30)days: (a) Terminate this Agreement. (b) Exercise its right to reacquire the Redevelopment Property as described in Section 9.7 of this Agreement. (c) Take whatever action, including legal, equitable or administrative action, which may appear necessary or desirable to the Authority to collect any payments due under this Agreement, or to enforce performance and observance of any obligation, agreement, or covenant of Hy-Vee under this Agreement. Section 9.3. Authority's Remedies on Default by Developer. Whenever any Event of Default by the Developer referred to in Section 9.1 of this Agreement occurs,the Authority may take whatever action, including legal, equitable or administrative action, which may appear necessary or desirable to the Authority against Developer,to collect any payments due under this Agreement, or to enforce performance and observance of any obligation,agreement, or covenant _ .. of-the_Developer. under..this Agreement after-providing—thirty—(3.0) days—written--notice--to-the --- -- - Developer of the Event of Default, but only if the Event of Default has not been cured within said thirty (30) days. An Event of Default by the Developer shall not affect any of Hy-Vee's rights under this Agreement or entitle the Authority to pursue any remedies against Hy-Vee. Section 9.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Authority,the Developer or Hy-Vee is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Authority,the Developer, or Hy-Vee to exercise any remedy reserved to it, it shall not be necessary to give notice, other than such notice as may be required in this Article IX. Section 9.5. No Additional Waiver Implied by One Waiver. In the event any agreement contained in this Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other concurrent,previous or subsequent breach hereunder. Section 9.6. Costs of Enforcement. In the event the Authority is successful in any litigation to enforce the terms of this Agreement, the Developer and Hy-Vee agree that whichever of them caused the Event of Default shall be liable for the reasonable fees of such attorneys and such other expenses so incurred by the Authority. Section 9.7. Authority Right to Reacquire Redevelopment Property. In the event Hy-Vee shall, prior to the completion of construction of the Improvements under the Agreement as evidenced by the recording of the Certificate of Completion described in Section 4.4: 17 oma - - (a) Fail to begin construction of the Improvements in conformity with this Agreement and such failure is not due to Unavoidable Delays and such failure is not cured within ninety(90)days after written notice to do so; or (b) Default in or violate its obligations with respect to the construction of the Improvements, or shall abandon or substantially suspend construction work, and such default, violation or failure is not due to Unavoidable Delays, and any such default or violation,abandonment or suspension shall not be cured,ended or remedied within ninety (90)days after written demand by the Grantor so to do;or (c) Cause in violation of this Agreement, any transfer of the Property or any part thereof that is not approved by the Authority in accordance with the terms of this Agreement, and such violation shall not be cured within ninety (90) days after written demand by the Authority to Hy-Vee; then the Authority shall have the right to reacquire the Redevelopment Property as described in this Section, To exercise such right the Authority shall give notice to Hy-Vee of its intent to _ __ .._._reacquire__the__Redevelopment_Property.Within_sixty(G0)-days-of-such-.notice-HyVee-shall-- ---- convey the Redevelopment Property to the Authority using a limited warranty deed. The title to the Redevelopment Property to be conveyed to the Authority shall be subject to no title defects, liens or encumbrances other than those to which the Redevelopment Property was subject when such property was conveyed to Hy-Vee. In addition, the Redevelopment Property shall be restored, at Hy-Vee's cost, to the same physical condition it was in when the Redevelopment Property was conveyed to Hy-Vee. The price to be paid by the Authority for such re-conveyance of the Redevelopment Property shall equal the purchase price paid by Hy-Vee to acquire the Redevelopment Property, minus all reasonable amounts expended by the Authority and City to implement the provisions of this Agreement and all reasonable costs incurred to enforce the terms of this Agreement. ARTICLE X Additional Provisions Section 10.1. Representatives Not Individually Liable. No officer, shareholder, member, official, or employee of either the Authority or Hy-Vee shall be personally liable to the other, or any successor in interest,for any obligations under the terms of the Agreement. Section 10.2. No Discrimination. Hy-Vee agrees that it will not discriminate upon the basis of race, color, creed, sex or national origin in the sale, lease, or rental or in the use or occupancy of the Redevelopment Property. 18 a s , - Section 10.3 ECR. Hy-Vee and the Authority hereby agree that the Easements with Covenants and Restrictions AffectingLand, in the form attached hereto as Exhibit "F" shall be executed and recorded at Closing. Section 10.4, Titles of Articles and Sections. Any titles of the several parts, Articles, and Sections of the Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any of its provisions. Section 10.5. Notices and Demands. Except as otherwise expressly provided in this Agreement, a notice, demand, or other communication under the Agreement by either party to the other shall be sufficiently given or delivered on the date of actual delivery, or the date of refusal to accept delivery by the recipient, if it is dispatched by (a) registered or certified mail, postage prepaid, return receipt requested, (b) nationally recognized overnight courier service, or (c)delivered personally; and (i) in the case of the Developer, is addressed to or delivered personally to the Developer at 4220 Park Glen Road, St. Louis Park,MN 55416;and (ii)_-_._in_the._case_of_HyAee,_is_addressed to_or_delivered-personally-to-Hy V-ee-at 5820------ - Westown Parkway,West Des Moines,IA 50266,Attn: Legal Dept.; and (iii) in the case of the Authority, is addressed to or delivered personally to the Authority at City Hall,4401 Xylon Avenue North,New Hope,Minnesota 55428, Or at such other address with respect to either such party as that party may, from time to time, designate in writing and forward to the other as provided in this Section. Section 10.6. Disclaimer of Relationships. Nothing contained in this Agreement nor any act by the Authority, the Developer or Hy-Vee shall be deemed or construed by any person to create any relationship of third-party beneficiary, principal and agent, limited or general partner, or joint venture among the Authority,the Developer,Hy-Vee and/or any third party. Section 10.7, Modifications, This Agreement may be modified solely through written amendments hereto executed by Hy-Vee and the Authority, The Developer shall be bound only to an amendment duly executed by Developer. Section 10,8. Counterparts, This Agreement may be executed in any number of counterparts,each of which shall constitute one and the same instrument. Section 10,9. Judicial Interpretation. Should any provision of this Agreement require judicial interpretation,the court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that a document is to be construed more strictly against the party who itself or through its agent or attorney prepared the same, it being agreed that the agents and attorneys of both parties have participated in the preparation hereof. 19 Section 10.10. Business Subsidy Act Requirements. Hy-Vee warrants and represents that its investment in the purchase of the Redevelopment Property will equal at least 70% of the County assessor's finalized market value of the Redevelopment Property for the 2012 assessment year, which is the last year in which the Redevelopment Property was assessed, calculated as follows: Aggregate cost of acquisition of Hy-Vee Parcels $3,725,000 Assessor's finalized market value of Redevelopment Property(pay 2013) $3,780,000 $3,725,000 (net acquisition cost) is 98,54% of $3,725,000 (assessor's finalized fair market value of the Redevelopment Property payable in 2013). Accordingly, the parties agree and understand that the financial assistance described in this Agreement does not constitute a business subsidy within the meaning of the Business Subsidy Act. Hy-Vee releases and waives any claim against the Authority and its governing body members, officers, agents, servants and employees thereof arising from application of the Business_Subsidy_Aef to_this_Agreement,—including-without_limitation—an-y—claim that the------ -- Authority Authority failed to comply with the Business Subsidy Act with respect to this Agreement. Section 10.11 Termination. This Agreement shall terminate on the Termination Date. Following the Termination Date, the Authority must execute a termination of this Agreement within 10 days of receipt of request by the owner of any portion of the Redevelopment Property for the same. Section 10/12. Memorandum of Agreement. The Authority and Hy-Vee will at closing execute a mutually acceptable memorandum of agreement identifying the the existence of material development-related terms set forth in this Agreement to be filed of record in the office of the Hennepin County (Recorder's)(Registrar of Deeds) office to provide record notice of the existence of this Agreement. This Agreement shall not be recorded. [SIGNATURES ON FOLLOWING PAGES] II 20 v_ , ., .,,.. -, _ _ _ --- I I I_ Fd: IN WITNESS WHEREOF, the Authority has caused this Agreement to be duly executed in its name and behalf,the Developer has caused this Agreement to be duly executed in its name and behalf on or as of the date first above written, and Hy-Vee has caused this Agreement to be duly executed in its name and behalf on or as of the date first above written. NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY By s A _di" ` y STATE OF MINNESOTA ) ) SS. COUNTY OF 1/40,0f4/1 ) The foregoing instrument was acknowledged before me this gill day of(jk ,Q 2014, by kprill tej and ion " m° , the President and Executive Director of the New Hope Economic Development Authority, a public body politic and corporate,on behalf of the authority. • ija.dti — Notary Public 1 ;,5 aLORRAINE HELEN KLOSS rise i Notary PtMIo-Mlanesota *F.or My commission Fwn 3,n e,.2018 21 -141 BY Randal B, Edeker, President and Chief Exec itive Officer By ✓�� (�4L.u� Nathan Allen,Assistant Secretary STATE OF IOWA,COUNTY OF POLI{,ss On this 6_ day of OcA4t044- , 2014, before me, the undersigned, a Notary Public in and for the state of Iowa, personally appeared Randall B. Edeker and Nathan Allen,to me personally known,who being by me duly sworn did say that they are the President and Chief Executive Officer, and Assistant Secretary, respectively, of Hy-Vee, Inc., an Iowa corporation, that the instrument to which this is attached was signed on behalf of said corporation by authority of its Board of Directors; and that the said Randall B. Edeker and Nathan Allen as such officers _ackno-wledgedthe-execution-of-said-instrument to-be-the voluntary-act-and-deed-of said-- -- corporation,by it and by them voluntarily executed. ite 0<t:Praert--' " .JULIE L. JENSEN COMMISSION N0I Nota ublic in and for th `�O * :.12I State of Iowa j MY�CO^WNSSSIONEXPIRES EXPIRES 1 SOWN J/,5 /a, 22 Developer hereby executes this Agreement solely to acknowledge its agreement to the terms of Sections 3.4,3.5,4.5,4.6,Article IX and Schedule I)herein. ANDERSON-KM BUILDERS,LLC By By STATE OF MINNESOTA ) ) SS. COUNTY OF The foregoing instrument was acknowledged before me this day of , 2014, by and , the and of Anderson-KM Builders, LLC„ a Minnesoffliffilletia5ility company, on bblialforlhe company. Notary Public 23 SCHEDULE A Description of Overall Property Parcel is That part of the West Half of the Northeast Quarter of the Northeast Quarter of Section 18,Township 118, Range 21, Hennepin County, Minnesota,described as: Commencing on the East line of said subdivlslon at a point on said line 165.00 feet North measured along said Ilne from the Southeast corner of said subdivision; thence West parallel to the South line of said subdivision.82.5 feet thence South,parallel to the,East line of said subdivision, 165.00 feet to the South line thereof,thence West along said South line to the Southwest corner of said subdivision;thence North along the West line thereof to the Northwest corner of said subdivision;thence.East along the North line thereof to the Northeast corner of said subdivision;thence South. Wong the East line thereof to the point of beginning;excepting therefrom the North 950.98 feet,,also excepting therefrom the South 223.58 feet to the West 190 feet. Hennepin County,Minnesota Torrens Property Torrens Certificate.No.1190631': Parcel IA: Easement for storm sewer purposes as contained In Quit Claim Deed for Conveyance and Reconveyance of Storm Sewer Easements dated September 27,1983,tiled January 17,1984,as Document No.1558036. '... Parcel 2: The South 223.58 feet of the West 19D-feet of the West Haif of the Northeast Quarter of the Northeast Quarter of Section 18,Township 118, Range 21 West,Hennepin County,Minnesota. Torrens Property Torrens Certificate No_1947449 and The part of the West Half of the Northeast Quarter of the Northeast Quarter Section 18,Township 118, Range 21 described as beginning at the Southeast corner of said West Half of the Northeast Quarter of the Northeast Quarter;thence North along the East nine of said West Half of the Northeast Quarter of the Northeast Quarter a distance of 165 feet;thence West parallel to the South fine of said West Half of the Northeast Quarter of the Northeast Quarter a distance of 82.5 feet;thence South parallel to the East '.. line of said West Half of the Northeast Quarter of the Northeast Quarter a distance of 165 feet le the South tine of said West.Half of the Northeast Quarter of the Northeast Quarter;thence East to the point of beglnnning. Henneptn County,Minnesota Torrens Property Torrens Certi0cate No. 733877 • 24 SCHEDULE B QUIT CLAIM DEED THIS INDENTURE, between the New Hope Economic Development Authority, a public body corporate and politic created pursuant to the Laws of Minnesota (the "Grantor"), and Hy- Vee,Inc.,an Iowa corporation(the "Grantee"). WITNESSETH, that Grantor, in consideration of the sum of Dollars ($ ) and other good and valuable consideration the receipt whereof is hereby acknowledged, does hereby grant, bargain, quitclaim and convey to the Grantee, its successors and assigns forever, all the tract or parcel of land lying and being in the County of Hennepin and State of Minnesota described as follows, to-wit (such tract or parcel of land is hereinafter referred to as the"Property"): To have and to hold the same, together with all the hereditaments and appurtenances thereunto belonging in any wise appertaining, to the said Grantee, its successors and assigns, forever, subject to: (a) covenants, conditions, restrictions and provisions of that certain unrecorded Purchase and Development Agreement dated , 2014 by and between the Grantor and Grantee, (the "Development Agreement") which in all events terminates upon the earlier to occur of the issuance of a Certificate of Completion for the Improvements for Phase 2 (as each such term is defined in the Development Agreement), or the fifth (5th) year following the date of execution of this Quit Claim Deed; and (b) Provision of the ordinances, building and zoning laws of the City of New Hope, state and federal laws and regulations in so far as they affect this real estate; and (c) easements, covenants and restrictions of record; and (d) Taxes payable subsequent to the date of this conveyance. The Grantor certifies that the Grantor does not know of any wells on the subject property. [SIGNATURES ON FOLLOWING PAGE] 25 IN WITNESS WHEREOF, the Grantor has caused this Deed to be duly executed in its behalf by its President and Executive Director this day of ,2014. NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY By: Its: President By: Its: Executive Director STATE OF MINNESOTA) )ss. COUNTY OF HENNEPIN) The foregoing instrument was acknowledge before me this day of 201- ,_by —and _,_the President_and Executive Director of the New Hope Economic Development Authority, a public body politic and corporate, on behalf of the Authority. Notary Public This instrument was drafted by: BRADLEY&DEIKE, P.A. 4018 West 65th Street, Suite 100 Edina,Minnesota 55435. 26 ti s I i SCHEDULE C Master Site Plan 27 SCHEDULED City Public Improvements The City will undertake the following,at the City's cost: Xylon Avenue Improvements. City will prepare all plans for, and reconstruct, Xylon Avenue between 42nd Avenue and 45th Avenue, including required upgrades to underground utilities, Streetscape Improvements. The City will construct the streetscape improvements on the west side of Xylon Avenue; Hy-Vee will construct the balance of such streetscape improvements as described under Hy-Vee Public Improvements, Utility Extensions to Site. City will prepare all plans for and construct the necessary utility extensions to the site to accommodate development of the Redevelopment Property. Oudot Improvements. The Developer will prepare plans and specifications in consultation with the City and in accordance with public bidding requirements will cause to be constructed the Outlot Improvements.on Outlot A, .AlLcosts_associated with thedesign and construction will be paid by the City. 28 • SCHEDULE E Hy-Vee Public Improvements Hy-Vee Public Improvements. Hy-Vee will undertake the following Public Improvements at its cost: Streets and Utilities. Hy-Vee will prepare plans and specifications for and will construct all roads, sidewalks, sewer, water, utility and traffic improvements located within the Redevelopment Property. Streetscape Improvements. Using concept and construction plans provided by the City as described above, Hy-Vee shall construct all strcetscape improvements located within the following rights of way: o The east side of Xylon Avenue between 42nd Avenue and the north end of the Redevelopment Property. o The south side of the Redevelopment Property along 42"d Avenue. Hy-Vee is responsible for the cost of all of the Hy-Vee Public Improvements. • 29 SCHEDULE F Form of Easements with Covenants and Restrictions Affecting Land EASEMENTS WITH COVENANTS AND RESTRICTIONS AFFECTING LAND("ECR") THIS EASEMENTS WITH COVENANTS ANDRESTRICTIONSAFFECTING LAND ("ECR") is made as of the day of , 2014, by and between HY-VEE, INC., an Iowa corporation, of 5820 Westown Parkway, West Des Moines, Iowa 50266 ( "Hy- Vee"), and NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY, a public body politic and corporate(the"Authority"). WITNESSETH: WHEREAS, Hy-Vee is the owner of real estate situated in New Hope, Hennepin County, Minnesota, legally described on Exhibit "A" attached hereto and incorporated herein (the "Hy-Vee Tract"), and visually depicted on the "Site Plan" on Exhibit "C" attached hereto and incorporated herein; and WHEREAS, Authority is the owner of real estate situated in New Hope, Hennepin County, Minnesota, legally described on Exhibit "B" attached hereto and incorporated herein ("Outlot A"), and visually depicted on the Site Plan; and WHEREAS, Hy-Vee and Authority desire that the Hy-Vee Tract and Outlot A be developed pursuant to a general plan of improvement to form a retail and office commercial development, and further desire that said tracts be subject to the easements and the covenants, conditions and restrictions hereinafter set forth. NOW, THEREFORE, for and in consideration of the premises, easements, covenants, conditions, restrictions, and encumbrances contained herein, the sufficiency of which is hereby acknowledged,Hy-Vee hereby declares as follows: 1. Building/Common Areas 30 (a) "Lot"means either Lot 1,Lot 2, or Lot 3. (b) "Lot 1" means that portion of the Hy-Vee Tract identified on the Site Plan as"Lot 1". (c) "Lot 2" means that portion of the Hy-Vee Tract identified on the Site Plan as "Lot 2", (d) "Lot 3" means that portion of the Hy-Vee Tract identified on the Site Plan as "Lot 3", (e) "Shopping Center"means the entirety of the Hy-Vee Tract and Outlot A. 2, Use, (a) Building(s) in the Shopping Center shall be used by owners,tenants, licensees and other occupants, whether by ownership, lease, license or other occupancy right (hereinafter individually referred to as an "Occupant," and collectively referred to as "Occupants") for commercial purposes of the..type..normally found in a.retail shopping-center including, without limitation, service shops, offices, retail stores and banking facilities, No auto dealer (new or used); manufacturing, distribution, wholesale or industrial use; coin operated laundry; dry cleaning plant; billiard parlor; skating rink; dance hall; night club; flea market; banquet hall; funeral parlor; off-track betting establishment; pornographic or "triple-x" video/book store; sexually oriented business; pawnshop; spay or neuter clinic (not including a veterinary clinic); abortion service provider; any business selling or serving alcoholic beverages for on premises consumption (except on Lot 1 and/or Lot 2); check cashing business (provided, however, a bank or credit union, or grocery store shall not be restricted hereby), a tattoo business, ora gun business (provided, however, a sporting goods store that sells, as a part of its sporting goods inventory, guns and ammunition shall not be restricted hereby), shall occupy space within the Shopping Center. In the event of a breach of this covenant, Hy-Vee and/or the Authority(regardless of whether the Authority still owns any portion of the Shopping Center) and/or any owner of any lot or tract within the Shopping Center shall have the right, without limitation, and in addition to any other remedy available to such party at law or in equity, to seek temporary or permanent injunctive relief. (b) Competing Business, Except by Hy-Vee,no portion of Lot 3 shall be used for any of the following,to-wit: see Exhibit"D"attached hereto and incorporated herein, In the event of a breach of this covenant, Hy-Vee and/or the owner of Lot 1 and/or the owner of Lot 2 shall have the right, without limitation, and in addition to any other remedy available to Hy-Vee and/or the owner of Lot 1 and/or the owner of Lot 2 at law or in equity, to seek temporary or permanent injunctive relief. 31 (c) Tax Increment District. The Authority and City will be creating the Center City Redevelopment Tax Increment Financing District (the "TIF District") that will encompass the Shopping Center and certain adjoining property to the northeast. All tax increment generated from the TIF District will be utilized to repay the Authority for its investment prior to the date hereof in acquiring and preparing the Shopping Center for redevelopment and to reimburse the Authority and the City for the cost of the public improvements upon Outlot A and upon other property in the TIF District. Because the Authority and City will be relying on such tax increment as the source of reimbursement for such costs, the owner of Lot 1, Lot 2 and Lot 3, or any of such Lots, agrees that prior to the date of termination of the TIP District (and if extended, only to the date such district would have initially expired if not extended): (i) it will not seek administrative or judicial review of the constitutionality of any tax statute determined by any tax official to be applicable to the improvements initially constructed upon any lot or tract within the Shopping Center or raise the unconstitutionality of any such tax statute as a defense in any proceedings, including delinquent tax proceedings; and (ii) it will not cause a reduction in the assessed value of the improvements initially _..constructed.upon.any lot.or_tract within-the-Shopping-Center-.through; (A) willful destruction of such improvements or any part thereof, except as a part of a renovation of such improvements in the ordinary course of business of such owner; (B) willful refusal to reconstruct damaged or destroyed property following any casualty loss or event; (C) an application to the commissioner of revenue of the State or to any local taxing jurisdiction requesting an abatement of real property taxes regarding such improvements, unless applicable to subsequent renovations or additions made to such improvements, and then only for the additional incremental value associated therewith; and/or (D) a transfer of the Shopping Center or improvements thereon, or any part thereof, to an entity exempt from the payment of real property taxes under State law. In the event of a breach of this covenant,Hy-Vee and/or the Authority(regardless of whether the Authority still owns any portion of the Shopping Center) shall have the right,without limitation, and in addition to any other remedy available to Hy-Vee and/or Authority at law or in equity,to seek temporary or permanent injunctive relief. The owner of Lot 1, Lot 2, and Lot 3 or any of such Lots, agrees to use its best efforts to provide notice to the Authority of its intention to seek a reduction in the assessed market value of Lot 1 or Lot 1 for tax purposes prior to initiating that proceeding, provided,that a failure to give such notice shall not invalidate such proceedings and will not constitute a default under this Declaration. 32 3. Buildings,Lot 3 Parking Ratio. (a) Design and Construction, Any building constructed within the Shopping Center shall be designed so that the exterior elevation of each shall be architecturally and aesthetically compatible with the then-existing or planned (as is applicable) building located on Lot 1, and so that building wall footings shall not encroach from one lot or Tract onto another Tract. The design and construction shall be of high quality. Only one building may be constructed upon Lot 3, No building constructed on Lot 3 shall (i) be of more than two-stories, (ii) exceed thirty-five (35) feet in height above finished grade, or (iii) have a metal exterior without the prior written approval of the owner of Lot 1; provided,however metal may be used as a building material of an architectural feature. No building may be constructed upon Outlot A; provided that signage may be constructed on Outlot A. (b) Fire Protection, Any building constructed upon Lot 3 shall be constructed and operated in such a manner which will preserve the sprinldered rate on the other buildings in the Shopping Center. (c) Design and Plans Approval. Except by Hy-Vee, no improvements shall be constructed,.._erected,_expanded,__or__altered within_the._Shopping._Center--until-.the -_plans and specifications for same (including site layout, exterior building materials and colors, landscaping and parking layouts) have been provided to Hy-Vee and Hy-Vee shall have been given a reasonable opportunity to review and comment on such plans and specifications, Except as detailed in this Agreement, the buildings shall be designed so that the exterior elevation of each shall be architecturally and aesthetically compatible with each other and with buildings on Lots 1 and 2.The design and construction on improvements shall be first quality and in accordance with the plans submitted to and reviewed by Hy-Vee as described herein and in complete and full compliance with (i) any and all governmental requirements and all city zoning and other ordinances. The owner of any portion of the Shopping Center that desires to construct improvements therein agrees to cause its respective architect to work in good faith with Hy-Vee, and its architects, so that the building(s) and other improvements to be erected and constructed will have an overall cohesive and related architectural continuity and will be in harmony with the remainder of the Shopping Center. Hy-Vee's review shall be limited to site plans, elevations and material lists and shall not extend to full construction plans. (d) Lot 3 Parking Ratio. Unless the owner of Lot 1 consents in writing to a lower parking ratio requirement, Lot 3 shall at all times independently maintain a parking ratio that satisfies, without a variance or conditional use permit, the City of New Hope then-current zoning code for non-planned unit development districts, 4. Grant of Easements, Hy-Vee and Authority hereby declare the creation and existence of the following nonexclusive easements; (a) A vehicular ingress and egress easement over, through and upon the driveway areas of the Shopping Center (but excluding the loading dock areas upon Lot 1 and Lot 2 as they exist from time-to-time, for the mutual benefit of the Hy-Vee Tract and Outlot A, for vehicular ingress and egress of customers, invitees, licensees, tenants, suppliers and employees of all 33 Occupants of the buildings within the Shopping Center, and the Authority and City of New Hope for the public feature installed upon Outlot A, (b) A pedestrian ingress and egress easement over, through and upon the sidewalks, driveways and parking areas of the Shopping Center (but excluding the loading dock areas upon Lot 1 and Lot 2 as they exist from time-to-time, for the mutual benefit of the Hy-Vee Tract and Outlot A,for pedestrian ingress and egress of customers,invitees,licensees,tenants, suppliers and employees of all Occupants of the buildings within the Shopping Center, and the public with respect to the public feature installed upon Outlot A. (c) A vehicular parking easement over, through and upon the parking areas of the Shopping Center as they exist from time-to-time, for the mutual benefit of Lots within the Hy- Vee Tract, for the customers, invitees, licensees, tenants, suppliers and employees of all of the Occupants of the buildings within the Shopping Center; provided,however,the Occupant of each Lot shall take reasonable efforts to prevent the parking of their employees upon any other Lot within the Shopping Center, (d) Future Development. In the event the Authority or a third party developer closes . .on._the._purchase.-of--land-immediatel-y--adjacentto-the-Hy—Vee-T-ract--to-the East-during-the term of - this ECR, the Authority shall be entitled to connect a future roadway connecting Winnetka Avenue N. to the driveway areas located within the Shopping Center at the Authority's (or its successor in interest with respect to ownership of such property) sole cost and expense and thereafter,there shall be deemed a non-exclusive ingress and egress easement over and upon the driveway areas of the Shopping Center, as they may exist from time-to-time, for the mutual benefit of the owners of property within the Shopping Center and the owners) of property immediately adjacent to the Shopping Center to the East that become owned by the Authority or a third party developer. The Authority shall cause any third party developer working in cooperation with the Authority with respect to the redevelopment of such land immediately adjacent to the Hy-Vee Tract to the East to provide the ingress and egress easement over such tract at the time such tract is developed. 5. Maintenance, The respective owners and Occupants of the tracts and lots within the Shopping Center, shall at their sole cost and expense, maintain their respective tracts in good condition and repair. This maintenance is to include,without limitation,the following: (a) Maintaining all buildings in good condition and repair, including (without limitation)exterior walls, signage, lighting,windows and doors, entryways and service areas; (b) Maintaining the parking, driveway and sidewalk surfaces in a level, smooth and evenly-covered condition with the type of surfacing material originally installed or such substitute as shall in all respects be equal in quality,use, and durability; (c) Removing all papers, ice and snow, mud and sand, debris, filth and refuse and thoroughly sweeping the area to the extent reasonably necessary to keep the area in a clean and orderly condition; 34 (d) Placing, keeping in repair and replacing any necessary appropriate directional - signs,markers and lines; (e) Operating,keeping in repair and replacing,where necessary, such artificial lighting facilities as shall be reasonably required; (t) Maintaining all perimeter and exterior building walls including but not limited to all retaining walls in a good condition and state of repair; (g) Maintaining,mowing,weeding,trimming and making such replacements of shrubs and other landscaping as is necessary; (h) Maintaining the stormwater facilities; and (i) Maintaining the irrigation system. 6. Indemnification/Insurance. - _ _ __ ._ . -._...._(a)__..-_Indemnification.__The-_owners.-.of_Lot-1,-Lot-2,. Lot--3--and-Outlot-A-shall- each - -- - indemnify and save each other harmless from any and all liability, damage, expense, causes of action, suits, claims, or judgments arising from personal injury, death, or property damage and occurring on or from its own tract, except and to the extent caused by the act or negligence of the owner or Occupant of another lot or tract. (b) Insurance. (i) The owner(s) or Occupant(s) of Lot 1, Lot 2, Lot 3 and Outlot A, shall each procure and maintain in full force and effect throughout the term of this Declaration general public liability insurance and property damage insurance against claims for personal injury, death or property damage occurring upon, in or about its property, each party's insurance to afford protection to the limit of not less than$2,000,000.00 for injury or death of a single person, and to the limit of not less than $2,000,000.00 for any one occurrence, and to the limit of not less than $500,000.00 for property damage. The owner or Occupant of each such lot or tract shall provide the other owner(s) with certificates of such insurance from time to time upon written request to evidence that such insurance is in force. Such insurance may be written by additional premises endorsement on any master policy of insurance carried by the party which may cover other property in addition to the property covered by this Declaration. (ii) Insurance against loss and/or damage to improvements under a policy or policies covering such risks as are ordinarily insured against by similar businesses, including (without limiting the generality of the foregoing) fire, extended coverage, all risk vandalism and malicious mischief, boiler explosion, water damage, demolition cost, debris removal, and collapse in an amount not less than the full insurable replacement value of the improvements. The term "full insurable replacement value" shall mean the actual replacement cost of the Improvements (excluding foundation and excavation costs 35 and costs of underground flues,pipes, drains and other uninsurable items)and equipment. (iii) Notwithstanding anything to the contrary contained in this Section, so long as the net worth of the owner, tenant or Occupant of any lot or tract shall exceed One Hundred Million Dollars ($100,000,000.00), and/or so long as Hy-Vee, the City of New Hope, or the Authority is owner,lessee or Occupant of any lot or tract, such owner, tenant or Occupant, or Hy-Vee, the City of New Hope or the Authority, as is applicable, shall have the right to retain the financial risk for any claim. (c) Nothing in this document shall be construed to limit or affect any limitations on liability of the Authority or the City of New Hope under State or federal law, including without limitation,Minnesota Statutes Sections 466.04 and 604.02, 7. Eminent Domain. (a) Owners Right to Award. Nothing herein shall be construed to give the owner of any lot or tract in the Shopping Center any interest in any award or payment made to any other lot or tract owner in connection with any exercise of eminent domain or transfer in lieu thereof affecting said other owner's.tract.or_giving the_public_or_any government-any_rights-in-said tract (b) Tenant's Claim. Nothing in this Section shall prevent a tenant from making a claim against an owner pursuant to the provisions of any lease between tenant and owner for all or a portion of any such award or payment. 8. Rights and Obligations of Lenders. If by virtue of any right or obligation set forth herein a lien shall be placed upon any lot or tract within the Shopping Center, such lien shall expressly be subordinate and inferior to the lien of any first lienholder now or hereafter placed on such lot or tract. Except as set forth in the preceding sentence,however, any holder of a first lien on Lot 3, and any assignee or successor in interest of such first lienholder, shall be subject to the terms and conditions of this Declaration. 9, Expansion of Shopping Center, The parties agree that in the event the Shopping Center is expanded by ownership or control of any tract within the Shopping Center, or agreement with a third party, all of the provisions of this Declaration shall apply to the expanded area including (without limitation)restrictions on use and maintenance requirements. 10, Self-Help. In the event Hy-Vee or the owner of Lot I and/or Lot 2 and/or Lot 3 reasonably determines that the owner of another Lot, or any portion thereof, is insufficiently maintaining all or a portion of such owner's Lot, then Hy-Vee or the owner of a Lot may take any steps reasonably necessary, in the reasonable opinion of such owner to bring the Lot into compliance with the maintenance obligations thereof set forth herein, including paying the costs thereof, The owner taking such steps shall bill the owner of Lot that is not in compliance for such actual reasonable costs to the owner for bringing the Lot into compliance with such maintenance obligations, and the same shall be due within fifteen days of the date of such invoice. Such reimbursement obligation shall be secured by a lien in favor of the owner taking the steps to bring the Lot into compliance,but such lien shall only be perfected upon the date of 36 • filing or recording of an instrument describing the nature of such lien, and upon such recordation or filing shall accrue interest on the outstanding amount of said lien at the lower of (i) twelve percent(12%)per annum,or(ii)the highest amount allowed by law,until satisfied. 11, Breach. In the event of breach or threatened breach of this Declaration,the owner of any Lot or tract in the Shopping Center, or Hy-Vee so long as it or any affiliate has an interest as owner, lessee or Occupant of any portion of the Shopping Center, shall be entitled to institute proceedings for full and adequate relief from the consequences of said breach or threatened breach. The unsuccessful party in any action shall pay to the prevailing party a reasonable sum for litigation expenses and attorney's fees, which shall be deemed to have accrued on the date such action was filed. 12, Rights of Successors. The easements, restrictions, benefits and obligations hereunder shall create mutual benefits and servitudes running with the land. This Declaration shall bind and inure to the benefit of the parties hereto, their respective heirs, representatives, lessees, successors and assigns. The singular number includes the plural and the masculine gender includes the feminine and neuter. .._13...__._Modification-.and_Cancellation.__This.Declaration_(including-exhibits).may-.be-modified, - - amended or canceled only by the mutual agreement of all of the record titleholders of the Shopping Center. 14. Non-Merger. This Declaration shall not be subject to the doctrine of merger. 15. Duration, Unless otherwise canceled or terminated, this Declaration and all the easements, covenants, rights, restrictions, and provisions in this Declaration create an equitable servitude upon the respective tracts, constitute covenants running with the land, shall bind every person or entity having any fee, leasehold, or other interest in or encumbrance on any portion of either property at any time, and shall continue in full force and effect perpetually. Notwithstanding the foregoing,the provisions of Section 2(b) of this Declaration shall terminate if Lot 1 ceases being used for any of the uses set forth in Subsections (b), (c), and (e) of Exhibit "D"for a consecutive period of twelve(12)months. 16. Headings. The headings herein are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of this document nor in any way affect the terms and provisions hereof. 17. Choice of Law. This Declaration shall be construed and enforced in accordance with the laws of the State of Minnesota,without regard to conflicts of laws principles. [SIGNATURES ON FOLLOWING PAGE] 37 IN WITNESS WHEREOF, Hy-Vee and Authority have executed this ECR on or as of the day and year first written above, HY-VEE: HY-VEE,INC. an Iowa corporation By: Jeffrey Markey,Vice President By: Nathan Allen, Assistant Secretary STATE OF IOWA ) )ss. POLK COUNTY ) On this—day of ,2014, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Jeffrey Markey and Nathan Allen to me personally known, who being by me duly sworn, did say that they are the Vice President and Assistant Secretary, respectively, of Hy-Vee, Inc., an Iowa corporation, that said instrument was signed on behalf of said corporation by authority of its Board of Directors; and that the said Jeffrey Markey and Nathan Allen as such officers acknowledged the execution of said instrument to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. Notary Public in and for the State of Iowa 38 NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY By: Its: President By: Its:Executive Director STATE OF MINNESOTA ) )s$. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledge before me this day of 201by and , the President and Executive Director of the New Hope Economic Development Authority, a public body politic and corporate,on behalf of the Authority. Notary Public II ', 39 I -- - EXHIBIT"A" LEGAL DESCRIPTION OP HY-VEE TRACT Lots 1, 2 and 3,Block 1,NEW HOPE 1-1Y-'VEE,New Hope,Hennepin County,Minnesota • 40 • I EXHIBIT "B" LEGAL DESCRIPTION OF OUTLOT A Outlot A, Block 1,NEW HOPE HY-VEE,Hennepin County,Minnesota 41 fr, ._ EXHIBIT"C" SITE PLAN It : til -No tit 1 . ,r r E torprrobi I J • ..........",...„ Wiril tall 104 Ilig 1 I Ulf 0 , Ithi I if b 10: 4"d i ‘ •'' . ...................__________ . 7 ......................... . __ ._........._ ....._.... _ ___ __ . N., . , • i Lot 1 1 , Id In , ri It 1 I i,, , . t , , .% trI • imic lir 1 tir , 4(4-3/4 . : I I 4:1 letoi . . , ___ ______,.... ,...................... -e _ ..:, 1 i _ ,.....,„„. .„ M , , Lot 2 i•-. Lot 3 PI Outlot A i ' . ' ; Ai. • . b• • • IN ' I ' ylii. P; gin . • , , it ..--,,,.. ,. ..„.„4„. .:,. „..„ ...„.. $ 14„ s OkIglikWOMMIVIC 7 77.7:77.rme_nr. '! RI ..,••••....... ._ , • 1 ,----_______ __ .. _s_ .... ......ria.:== p A ! I e I:t.., I grtt w 1 F I I ( ' 42 EXHIBIT"D" RESTRICTED USES a. the sale of(i) edible perishable products, including, but not limited to fruits, vegetables, meat and seafood; (ii) pre-packaged food and/or pre-packaged beverages, provided, however that the same may be sold on the Restricted Parcel so long as the sale of such products does not exceed one percent (1%) of the gross sales of such business; (iii) alcoholic beverages for off premises consumption (for purposes of clarification of the foregoing only, and not in limitation, the restriction contained in this Section 3(a) is not intended to prohibit restaurant uses); and/or (iv) prescription and/or over-the-counter pharmaceuticals; b. a grocery store, supermarket, or specialty food store (by way of example only, and not limitation: Fareway, Albertson's, Kroger, Safeway, Publix, Price Chopper, Meijer, Dillons, Giant Eagle, Schnucks, The Fresh Market, Woodman's, WinCo, Wal-Mart Express, Aldi, Trader Joes, Whole Foods Market, Campbell's Nutrition, Gateway Market); et__.-_a_pharmacy and/or_drug_store_(by way_of example--only,-and-not-in-limitation: GVS,- - --- - Walgreens,Rite Aid,Medicap,Health Mart,The Medicine Shoppe); d. a retail store marketed as any form of"dollar store," or derivation thereof(by way of example only, and not in limitation:Dollar General,Family Dollar, Dollar Tree, 99 Cents Only); e, a retail and/or club and/or wholesale store that sells non-food merchandise that includes a grocery section or department(by way of example only, and not in limitation: Wal-Mart, Wal-Mart Supercenter,Target, Super Target, Costco, Sam's Club); a convenience store (with or without gas) and/or gasoline station, including any type of business that sells diesel fuel, ethanol fuel, bio-fuel or any other type of fuel used to power motorized vehicles designed primarily for use on public streets and highways; g. a Caribou or Starbucks branded coffee shop; h. a retail store marketed as any type of bakery; a restaurant; j, any supporting element(by way of example only, and not in limitation:parking lot,storm water detention facility, green-space) of any property not located within the Restricted Parcel that is used for any of the restricted uses set forth in Section(a)-(i)herein. 43