Loading...
IP #740�R ENTERED Doc No 8298194 02123/200402-41 PM a€b�tkRiN EDLINTV TAXPAYER SERVICES Certified filed and or recorded on above date: EB 3 2 04 pup�ticate Office of the County Recorder �}1,ng Hennepin County, Minnesota O661tic5te Michael H. CunnifP, County Recorder PSN a rY Deputy 5 TranSID 6572 sv DEPUTY Fees $17.00 DOC $5.00 SUR DECLARATION $1.00 COPY OF $23.00 Total ENVIRONMENTAL RESTRICTIVE COVENANTS THIS DECLARATION is made this day of j0 V , 2003, by the Economic Development Authority of the City of New Hope, a Minnesota municipal corporation. DEFINITIONS For the purpose of this Declaration, the following terms shall have the following meanings: 1. Building. `Building" means that building that was formerly present on the Property and was formerly used by Electronic Industries, Inc. as its place of business. The Building has since been demolished. 2. Commissioner. "Commissioner" means the Commissioner of the MPCA or the head of any successor entity. Nothing herein shall be construed to prohibit the Commissioner from delegating the Commissioner's obligations or duties under this Declaration to the employees, agents, contractors or subcontractors of the MPCA. 3. Covenants. "Covenants" mean all of the agreements, covenants, restrictions and easements contained in this instrument. 4. Declaration. "Declaration" means this instrument, including the definitions and recitals contained herein and the Exhibits attached hereto. 5. EI. "EI" means Electronic Industries, Inc. 6. Exhibits. `Exhibits" mean the exhibits to this Declaration and are as follows: a. Exhibit 1: 118 Section Map of Project Site C. Exhibit 2: 118 Section Map of Project Site showing Restricted Area d. Exhibit 3: Table of Contaminants Page 1 of 17 ll. Address. 7500 42"d Avenue North, New Hope, MN. iii. Property Identification Number. 17-118-21-22-0006. b. Parcel 7. i. Legal Description. The West 95 feet of the East 195 feet of the South 350 feet of Lot 5, Auditor's Subdivision No. 324, Hennepin County, Minnesota. ii. Address. 7516 42"d Avenue North, New Hope, MN. Iii. Property Identification Number. 17-118-21.22-0007. C. Parcel 8. i. Legal Description. That part of Lot 5, "Auditor's Subdivision Number 324, Hennepin County, Minnesota" described as follows: Commencing at a point on the North line of Rockford Road distant 195.0 feet Westerly of the East line of said Lot 5; thence North parallel with the East line of said Lot 5 a distance of 350.0 feet; thence West parallel with the North line of Rockford Road a distance of 125.4 feet, more or less, to a point 48.95 feet East of the West line of said Lot 5, as measured at right angles thereto; thence South parallel with the West line of said Lot 5 a distance of 350.0 feet to the North line of Rockford Road; thence Easterly along the North line of Rockford Road a distance of 125.4 feet, more or less to the point of beginning. ii. Address. 7528 42"d Avenue North, New Hope, MN. iii. Property Identification Number. 17-118-21-22-0008. It is specifically noted that the entire Restricted Area is contained within the Property. Therefore, all references to the Property include the Restricted Area. 11. Restricted Area. "Restricted Area" means that part of the Property legally described as follows: That part of Lot 5, "Auditor's Subdivision Number 324, Hennepin County, Minnesota" described as follows: Commencing at the point of intersection of the North line of Rockford Road and the East line of said Lot 5; thence North along said East line a distance of 250 feet; thence Page 3 of 17 12/12/2003 at 11:16 AM installation of monitoring wells, a soil vapor extraction system, an air sparge system, and a groundwater extraction and treatment system, including the following: 1. The groundwater extraction system was installed in 1987. 2. The soil vapor extraction system was installed in 1992. 3. The air sparge system was installed in 1994. These efforts produced the following information: 4. Observed TCB levels have ranged from 5 ppm to 290,000 ppm. 5. Monitoring wells downgradient show ranges of near zero to 41 ppm. 6. An estimated total of 7,000 pounds of TCE has been removed to date through the combination of these remediation systems. H. Lower Aquifer Investigation. In 1998, the MPCA required that the aquifer beneath the clay layer be investigated. Subsurface drilling and sampling of this aquifer was performed in 1998. Lower aquifer monitoring wells were also installed in 1998. Initial results from this sampling showed TCE concentrations up to 124,000 ug/l. This data suggested that the TCE accumulating on the top of the clay layer had migrated through the clay layer into the lower aquifer. T. Amounts of Contaminates Present. TCE, tetrachloroethylene (PCE), dichloroethylene (DCE), trans-DCE, cis-DCE, vinyl chloride, toluene, and methylene chloride are all historically documented to be present on the Property, in the amounts shown on the Exhibit 3 tables. J. Location of Contaminates Present. Residual contamination, primarily TCE exist in subsurface soil as well as groundwater in both the "perched" water table aquifer and the lower aquifer. K. Reports. Many investigative reports have been completed since 1983, the results of which are summarized in the Resource Conservation and Recovery Act Facility Investigation and Corrective Measures Study (February 2001 and revised January, 2002), Results from May .2001 Push Probe Investigation of the Clay (June 2001), Remediation Alternatives Report (August 2001), and the Corrective Measures Implementation Work Plan (October, 200 1) prepared by Frontline Environmental, LLC, an environmental consulting firm currently located at 17450 Juneberry Court, Lakeville, Minnesota, 55044. The location of near surface contaminants at the Property is shown in Figure 1 of the Corrective Measures Implementation Work Plan. L. City's Agreement with the MPGA. The Economic Development Authority of the City of New Hope has agreed with the MPCA to place the following restrictive Covenants on the Property. Page 5 of 17 e. Permanent facilities (e.g. buildings, parking surfaces, etc.) shall be designed to minimize infiltration of precipitation runoff (rainwater, snow melt) by routing all such precipitation runoff to storm sewers that carry the runoff off-site. This shall be done to minimize recharge of subsurface ground water so as to prevent mobilization of existing subsurface contaminants. L New monitoring wells installed in areas of vehicle or pedestrian traffic shall be constructed as flush -mount monitoring wells. 2. Use Restrictions for the Restricted Area. In addition to the Covenants restricting the use of the entire Property, the Economic Development Authority of the City of New Hope hereby imposes the following Covenant on the Restricted Area: a. Prior to the commencement of any subgrade construction activities or other disturbances to subsurface soil in the Restricted Area (e.g. utility installation, excavation, grading cuts, soil corrections, borings, drilling, etc.), a soil contamination monitoring plan must be prepared and submitted to and approved by MPCA and the City of New Hope. The soil contamination monitoring plan must describe: i. The methods to be used and actions to taken to monitor the disturbance and/or removal of contaminated soil. ii. Plans for proper containment and disposal of any contaminated soil removed as part of the construction activities. W. Schedule for submitting a final report to the MPCA describing volume of soil removed, how it was disposed, and associated analytical data. 3. Commissioner Approval. Any action prohibited by the Covenants shall not occur without the prior approval of the Commissioner. a. Requests for the Commissioner's approval must be made in writing to the Commissioner. b. The Commissioner shall have 60 days after the receipt of a request to mail a response thereto. C. The Commissioner's response shall be in writing and shall approve or disapprove the request or require additional information be provided. d. A lack of response from the Commissioner shall not constitute approval by default or authorization to proceed with the requested activity. Page 7 of 17 6. Reservation. Nothing contained in this Declaration shall in any way prohibit, restrict, or limit the Economic Development Authority of the City of New Hope, its successors or assigns, from fully conveying, transferring, occupying, or using the Property for all purposes not inconsistent with the Covenants. 7. Duration of Declaration, This Declaration and the Covenants herein shall continue in perpetuity until terminated, modified, released and/or amended with the written consent of the Commissioner, such consent not to be unreasonably withheld. S. Amendment of Declaration, by Owners. This Declaration and the Covenants herein shall only be modified, altered, supplemented or amended with the written consent of the Commissioner, such consent not to be unreasonably withheld. 9. Amendment of Declaration by MPCA. This Declaration and the Covenants herein may be modified, altered, supplemented or amended by the MPCA upon the occurrence of the following: a. The MPCA finds that this Declaration is inadequate to protect the public health or welfare, or the environment; b. The MPCA gives notice (written or oral) of such finding to the then current Owner; and C. The MPCA .and the Owner enter into a document so modifying, altering, supplementing or amending this Declaration. 10. Termination of Declaration. This Declaration and the Covenants herein may be terminated upon the occurrence and satisfaction of all of the following conditions: a. Soil and ground water sampling is conducted on the Property with prior written notice to and in accordance with a plan approved by the MPCA, such approval not to be unreasonably withheld; and b. Based on such samples, the MPCA certifies that the soil and ground water located within the Restricted Area no longer poses an unacceptable risk to public health and the environment. 11. Recording of Owner Terminations and Amendments. In the event this Declaration is terminated, modified, altered, supplemented or amended by the Owner, the Owner shall submit an original document already signed by Owner to the MPCA with a self addressed return envelope. a. The MPCA shall have 60 days after the receipt of such document and envelope to execute and mail the original document back to the Owner. Page 9 of 17 12115l2003 at 1 O AM 14. Disclosures. The Covenants shall be incorporated in full or by reference into all instruments conveying an interest in and/or right to use the Property (e.g. easements, mortgages, leases). GENERAL PROVISIONS 1. Duration. This Declaration shall run with the land in perpetuity and shall inure to the benefit of and be enforceable by each Owner and the MPCA. 2. Amendments. This Declaration may be amended by the unanimous agreement of all Owners and the MPCA. Amendments shall not be effective until recorded. 3. Enforcement. Enforcement of these Covenants shall be by any proceeding at law or in equity against any person(s) or entity(ies) violating or attempting to violate any of the Covenants. Such proceedings may seek to enforce compliance, to restrain violations or to recover damages. The Covenants may be enforced by the MPCA, the City of New Hope or any other Interested Parties. 4. Waiver. Failure to enforce any Covenant shall not be deemed a waiver of the right to do so thereafter. 5. Severability. Invalidation of any one Covenant by judgment or court order shall in no way affect any other provisions, which shall remain in full force and effect. Whenever possible, each provision of this Declaration will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Declaration is held to be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality, unenforceability in such jurisdiction, without invalidating the remainder of this Declaration in such jurisdiction, and without effecting the enforceability of any such provision hereof in any other jurisdiction. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Declaration a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid and enforceable. 6. Mechanic's Lien. Each Owner agrees to indemnify and hold harmless all other Owners from all Mechanic's Liens arising from work for which the Owner is responsible. 7. Assignment. The Economic Development Authority of the City of New Hope may assign any and all of its rights, powers, obligations and privileges hereunder to any other corporation, association, person or entity. Such assignment or assignments are effective upon the recording of the instrument making the assignment. Page 11 of 17 CITY OF NEW HOPE B W. Peter Enck Its: Mayor By: A V�. I ]Wo"_ aniel J. DinlKe Its: City Manager STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this !�y day of L/• , 2003, by W. Peter Enck and Daniel J. Donahue, the Mayor and City Manager, respectively, of the City of New Hope, a Minnesota municipal corporation, on behalf of said municipal corporation. (Notary Public Seal) 22ce�22 "..'*�. VALERIE J. LEONE NOTARY PUBLIC -MINNESOTA My Commission Expires Jan, 31, 2005 Notary Public Page 13 of 14 iFP NO 1606 (5) W4 .1 WR W z_ I ALLEY DEED 2532 PC 333 O V) 1 � 1 � 7528 7516 7500 I ' 1 ' 1 ' 1 ' 1 ' 1 ' 1 ' 1 ' t ' PART OF LOT 5 i k I I 1 I � I 1 (8) (7) c,fU U .8 101.66 L $ 37'&W — _ N88 2829'E 252.47 J -i 304.8fi Ne$ 2829E t 21:121.1 981.39 N88.29'46'E N44.15' 546.13'03'E —( + fl 546'08'56'E14.05 209.41; 488.3T'16'EI50------------------- E 296.7OT .7-h-88 y 8'07' I PART OF LOT E%H-1 IT 1 V = 100' Page 15 of 17 1 (90) 9 I � ' ' y 0 130 30 1 I -------125.4-------_.� ' OT 7-i1-88 T 7'II-88 4�§' DOC NO 4492681 1 6 10 ---- ---r- ------------s;�------ .01 -L_ -L-- ------ ------------•--�-__ _ c,fU U .8 101.66 L $ 37'&W — _ N88 2829'E 252.47 J -i 304.8fi Ne$ 2829E t 21:121.1 981.39 N88.29'46'E N44.15' 546.13'03'E —( + fl 546'08'56'E14.05 209.41; 488.3T'16'EI50------------------- E 296.7OT .7-h-88 y 8'07' I PART OF LOT E%H-1 IT 1 V = 100' Page 15 of 17 1 (90) 9 EXHIBIT 3 Table of Contaminants General Total volume of Total volume of Remedy RAP Cleanup Goal contaminant type identified identified VOCs, metals, etc, (i.e., residential (i.e., DRO, VOCs, contaminated soil contaminated soil 72 mg/kg SRVs, industrial metals, etc.) (cyds) to be remediated 3,200 sq. ft. SRVs, etc.) Cis-DCE 70 ug/L (cyds) injection and ex -situ soil Vinyl chloride VOCs 13,000 0 1 NIA NIA General contaminant Affected aquifer Approximate dimensions Remedy type (i.e., DRO, (i.e., water table, of contaminant plume 1,900 mg/kg VOCs, metals, etc, deeper aquifers) on-site. Specify if the 5 mg/kg PCE 72 mg/kg plume extends off-site. 80 mg/kg VOCs Water table aquifer 3,200 sq. ft. Potassium permanganate Cis-DCE 70 ug/L Plume extends off-site injection and ex -situ soil Vinyl chloride 0.2 ug/L <1 ug/L vapor and groundwater Methylene Chloride 50 ug/L <2 ug/L treatment VOCs Lower aquifer 48,000 sq. ft. Potassium permanganate Plume extends off-site injection and ex -situ soil vapor and groundwater treatment Compound Tier I SRVresidential Average Concentration Maximum Concentration TCE 29 mg/kg . 100.mg/kg 1,900 mg/kg DCE 0.6 mg/kg <0.5 mg/kg 5 mg/kg PCE 72 mg/kg 5 mg/kg 80 mg/kg Toluene 107 mg/kg <0.3 mg/kg 0.5 mg/kg Compound ffitL Average Concentration Maximum Concentration TCE 30 ug/L 5,000 ug/L 350,000 ug/L DCE 6 ug/L 1 ug/L 33 ug/L PCE 7 ug/L <1 ug/L 5 ug/L Trans-DCE 100 ug/L <1 ug/L 18 ug/L Cis-DCE 70 ug/L <1 ug/L 640 ug/L Vinyl chloride 0.2 ug/L <1 ug/L 10 ug/L Methylene Chloride 50 ug/L <2 ug/L 900 ug/L Toluene 1000 ug/L <1 ug/L. 18 ug/L Page 17 of 17 EDA } REQUEST FOR ACTION A Originating Department Approved for Agenda Agenda Section Community Development 4-11-05 EDA Item No. By: Kirk McDonald, Director of CD B y Shawn Siders, CDSpecialist 4 RESOLUTION AtiTHORIZING APPROVAL OF A TERM SHEET BETWEEN THE NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY AND FREY DEVELOPMENT AND MANLEY LAND DEVELOPMENT, INC. FOR THE REDEVELOPMENT OF 7500-7528 42ND AVENUE NORTH THE FORMER ELECTRONIC INDUSTRIES SITE (IMPROVEMENT PROJECT NO. 740). REQUESTED ACTION Staff is requesting EDA consideration of the enclosed resolution prepared by the City Attorney approving a term sheet between the EDA and Frey Development and Manley Land Development, Inc. The proposed development would construct eight owner occupied office condominiums on the eastern half of the property and 8,500-9,000 square feet of retail space on the western half of the property. Approximately 5,500-6,000 square feet of the retail space will be occupied by Viva Italia, a full service Italian restaurant. POLICYfPAST PRACTICE City goal #2 is to emphasize the maintenance and redevelopment of commercial and residential properties within the city. The EDA has been addressing the commercial portion of this goal through the city's many development activities, including coordinating with potential developers for the sale and development of city owned property. BACKGROUND On January 3, 2005, Frey Development and Manley Land Development submitted a redevelopment proposal for the entire site in conformance with previous discussions. The concept plan outlines the proposed development of this site. Frey Development has agreed to purchase the site from the city for $510,000. The developer will have to pay all customary fees for the development of this parcel which include but not limited to stormwater fees, building permit fees and SAC charges as they may apply. Frey Development has also agreed to provide the city with an indemnification agreement regarding brokerage fees. On March 28, 2005, city staff presented the proposed redevelopment plans to the EDA for its discussion and direction. At that meeting, the EDA indicated their support of the proposed project and directed staff to work with the developer to finalize the terms of the sale and proceed with the potential redevelopment. MOTION BYjatmjx", SECOND BY � r TO: I: \ RFA \ PLANNING \ Electronic Industries \ R -Term Sheet Frey & Manle .doc Request for Action Page 2 April 11, 2005 City staff and the City Attorney have developed the enclosed term sheet which outlines the terms of the sale and redevelopment of the city owned property at 7500-7528 42nd Avenue North. Staff is recommending that the terms of the sale be the same as what was originally negotiated with Frey Development and JCS Development. Those terms are as follows: o Land Acquisition Price - $510,000; o Brokerage Fees - To be paid by Frey Development and Manley Land Development, Inc. Developers to provide city with indemnification agreement against brokerage fees; o Property is being transferred in an "as is" condition, o Buyer must receive all planning approvals prior to closing, o Buyer will obtain necessary approvals from the '_Minnesota Pollution Control Agency (MPCA) prior to closing; o Buyer will provide cross easements for shared access and parking for all tenants on the entire site; o Buyer agrees to pay all fees associated with the redevelopment of this site; RECOMMENDATION Staff supports the terms and conditions as outlined above. The proposed terms of sale are the same as what was previously approved with JCS Development, Inc. and Frey Development. ATTACHMENTS o Resolution o Term Sheet EDA RESOLUTION NO. 05- 01 RESOLUTION APPROVING TERM SHEET ON PROPOSED SALE OF PROPERTY TO FREY DEVELOPMENT, INC. AND MANLEY DEVELOPMENT (7500-7528 42"d AVENUE NORTH — Project No. 740) BE IT RESOLVED by the Economic Development Authority in and for the City of New Hope, Minnesota as follows: WHEREAS, the Economic Development Authority of the City ofNew Hope (hereafter "EDA") is the fee owner of three (3) parcels of real property more commonly known as 7500, 7516 and 7528 42nd Avenue North, City of New Hope, which real property is legally described on Exhibit A.attached hereto and made a part hereof (collectively, the "Property"). WHEREAS, it has been proposed that the EDA enter into a purchase agreement whereby it would sell the Property to FREY DEVELOPMENT, INC. and NLkNLEY LAND DEVELOPMENT (collectively, the "Redeveloper") for redevelopment; and WHEREAS, the EDA has determined that such transfer, if made pursuant to terms substantially similar to those outlined in Exhibit B attached hereto and made a part hereof, would serve the goals and mission of the EDA and would be beneficial to the citizens of the City of New Hope. NOW, THEREFORE, BE IT RESOLVED by the EDA as follows: 1. That the above recitals are incorporated herein by reference. 2. That the Term Sheet attached hereto as Exhibit B is hereby approved. 3. That the Executive Director and EDA staff are authorized and directed to enter into negotiations for a purchase agreement to govern sale of the Property to the Redeveloper, with the terms of such agreement to be substantially similar to those enumerated in the attached Exhibit B. 4. That, in the event mutually -agreeable sale terms can be negotiated, the Executive Director and EDA staff are directed to present a final draft purchase agreement to the EDA Commissioners for review and approval. This resolution is hereby adopted by the EDA this 11th day of April, 2005. •.WIN MR, Attest: 'e"ID�on�ahue-, Director P:IAttomeylCmklClientslCNM99-11293199-11293-002-res approving term sheet.doc EXHIBIT A LEGAL DESCRIPTIONS Real property situated in the County Hennepin, State of Minnesota, described as follows: That part of Lot 5, "Auditor's Subdivision Number 324, Hennepin County, Minnesota" described as follows: Commencing at the point of intersection of the North line of Rockford Road and the East line of said Lot 5; thence North along said East line a distance of 350 feet; thence West parallel with the North line of Rockford Road a distance of 100 feet; thence South a distance of 350 feet to a point on the North line of Rockford Road which is distant 100 feet West of the point of beginning; thence East along said North line a distance of 100 feet to the point of beginning. Address. 7500 42nd Avenue North, New Hope, MN. Property Identification Number. 17-118-21-22-006. Together with The West 95 feet of the East 195 feet of the South 350 feet of Lot 5, Auditor's Subdivision No. 324, Hennepin County, Minnesota. Address. 7516 42'd Avenue North, New Hope, MN. Property Identification Number. 17-118-21-22-0007. And further together with That part of Lot 5, "Auditor's Subdivision Number 324, Hennepin County, Minnesota" described as follows: Commencing at a point on the North line of Rockford Road distant 195.0 feet Westerly of the East line of said Lot 5; thence North parallel with the East line of said Lot 5 a distance of 350.0 feet; thence West parallel with the North line ofRockford Road a distance of 125.4 feet, more or less, to a point 48.95 feet East of the West line of said Lot 5, as measured at right angles thereto; thence South parallel with the West line of said Lot 5 a distance of 350.0 feet to the North line of Rockford Road; thence Easterly along the North line of Rockford Road a distance of 125.4 feet, more or less to the point of beginning. Address. 7528 42nd Avenue North, New Hope, MN. Property Identification Number. 17-118-21-22-0008. EXHIBIT B TERM SHEET -4- TERM SHEET New Hope EDA/Frey Development, Inc. & Manley Land Development Sale of Land at 7500, 7516 and 7528 42"d Avenue North (Former Electronic Industries Site) Seller: The Economic Development Authority in and for the City of New Hope, Minnesota Redeveloper: Frey Development, Inc. & Manley Land Development, collectively the "Redeveloper". The Redeveloper's rights and obligations under the purchase agreement cannot be assigned without prior consent of the EDA. Redevelopment Property: 3 parcels of land at the intersection of 42 d and Quebec Avenues, City of New Hope, currently identified in the County tax records as: 17-118-21-22-0006 17-118-21-22-0007 17-118-21-22-0008 Collectively, the "Redevelopment Property" Purchase Price: $510,000 Earnest Money: $2,000 Title Review: EDA to pay for and provide a title insurance commitment within ten (10) days of final execution of the purchase agreement. Redeveloper will examine commitment and either make or waive any title objections within ten (10) days of receipt. Due Diligence Period: 120 days from final execution of Purchase Agreement Closing: Within 15 calendar days after Redeveloper Contingencies have been satisfied, but in no event later that 150 days from final execution of the Purchase Agreement "As Is" Condition: Title to be conveyed by quitclaim deed in "as is" condition. Survey: EDA to provide to Redeveloper, to be prepared in accordance with minimum standard detail requirements for ALTA/ASCM and to include information items as reasonably requested by Redeveloper Redeveloper Contingencies: Redeveloper's obligation to purchase the Redevelopment Property to be contingent upon: a. Marketable title (subject to the attached list of Permitted Encumbrances) b. Approval for ingress and egress & direct access to a public street c. Approval of any zoning, variance, special use permit, subdivision or other governmental approvals reasonably required for the above -referenced structures d. Corporate approval from Viva Italia, if not already obtained e. Financing pursuant to terms reasonably acceptable to Redeveloper Construction: Redeveloper to begin construction of an 8 -unit office -condo building on the eastern portion of the site no later than October 1, 2005 and to begin construction of a multi -tenant retail building (approximately 8,500 to 9,000 square feet in size), on the western portion of the site by this same date. Both structures to be completed no later than January 31, 2006. Occupancy: Approximately 5,000 to 6,000 square feet of the multi -tenant retail building to be occupied by a Viva Italia restaurant. Redeveloper to allow EDA input as to remainder of tenant mix. Access & Parking: Prior to closing the Redeveloper will provide cross easements in a form reasonably acceptable to the EDA in order to facilitate user/tenant access and parking throughout the Redevelopment Property Development Costs: Redeveloper to pay all redevelopment costs associated with the Redevelopment Property and to cooperate with EDA as to any necessary State or federal approvals. All redevelopment costs imposed by EDA and/or City of New Hope to be at customary rates. Broker Fees: Redeveloper to warrant that it will pay all brokerage fees due to Retail Site Development Services (RSDS) with respect to the Redevelopment Property and further that Redeveloper will indemnify the EDA from claims by any other broker for activities relating to the Redevelopment Property. Effect of Term Sheet: This Term Sheet outlines the terms under which the parties are willing to enter into a purchase agreement and does not constitute an offer or acceptance on the part of either party. All rights and obligations with respect to the Redevelopment Property shall be only as provided for in a signed purchase agreement with terms approved by the EDA's Board of Commissioners and by appropriate representatives of the entities that comprise the Redeveloper. P:IATTORNEY\CMKICLIENTS\CNH\99-11293\99-11293-001-TERM SHEB73.DOC 2 PERMITTED ENCUMBRANCES 1. Any real estate taxes not yet due and payable 2. Rights-of-way (if any) reasonably necessary for drainage ditches, drain tiles, feeders, laterals and underground pipes 3. All dedicated rights -of way 4. All easements, restrictions, covenants and agreements which are currently included in the public records, so long as the Buyer's intended use of the Property is not materially impaired by such matters of record, provided that the Declaration of Covenants dated November 23, 2003 and entered into by the EDA and the Minnesota Pollution Control Agency shall not be considered to `materially impair" the Redeveloper's intended use of the Property. 3 COUNCIL REQUEST FOR ACTION Originating Department Approved for Agenda Agenda Section Community Development 4-25-05 Consent Item No. By: Kirk McDonald, Director of CD By: Shawn Siders, CD Specialist 6.4 RESOLUTION AUTHORIZING ENVIRONMENTAL RESPONSE FUND GRANT APPLICATION TO HENNEPIN COUNTY FOR THE REDEVELOPMENT OF THE CITY OWNED PROPERTY LOCATED AT 7500, 7516 AND 7528 4211D AVENUE NORTH (IMPROVEMENT PROJECT NO. 740) REQUESTED ACTION Staff is requesting that the City Council approve a resolution authorizing an application to be filed with Hennepin County for an Environmental Response Fund (ERF) grant for the relocation of the above ground groundwater monitoring devices and the potential removal of any contaminated soils that may be encountered on the city owned property at 750-7528 42nd Avenue North. POLICYIPAST PRACTICE The city has previously applied for grants from Hennepin County to assist with environmental cleanup issues related to redevelopment. BACKGROUND In accordance with the approved term sheet that was approved by the EDA on April 11, 2005, the developer will be responsible for the costs associated with the removal of any contaminated soil that is encountered on the site. The developer is also responsible for the relocation of the groundwater monitoring devices on the site. The developer has been advised and has agreed that the city is selling this property in an "as is" condition and has made no representations regarding financial commitments to relocate any above ground groundwater monitoring wells or the disposal of any contaminated soils. The developer understands that those expenses are their sole responsibility and the city will provide no financial assistance for any environmental remediation efforts. This resolution and grant application is being proposed to assist the developer with reducing the expenses associated with the relocation of the above ground groundwater monitoring devices that are on site. The newly constructed surface mounted groundwater monitoring devices will be surface mounted so that the more of the site can be utilized. The grant application is also seeking funding to cover some of the expense associated with the removal of any contaminated soils encountered during the redevelopment of the site. City staff is recommending the approval of this resolution as a "good faith" attempt by the city to assist a private redevelo went without incurring any expense other than staff time. City staff has discussed this MOTION BY SECOND BY f'y TO: IA RFA\ PLANNING\ Electronic Industries\ Q &R - Hen Cty ERF grant resolution.doc Request for Action Page 2 April 25, 2005 potential application with Hennepin County staff and it meets the criteria for consideration. If the city is successful in obtaining grant funds, the developer will be responsible for the required 25% match by the city. In that regard, the city will not incur any expense other than staff time to assist this redevelopment project. FUNDING Matching funds are a requirement for the award of an ERF grant. City staff anticipates making an application to Hennepin County for up to $37,500. If approved at that level, the city will be required to provide a local match of $12,500. The developer will be responsible for covering the matching fund requirement. Staff recommends approval of the resolution and authorization to execute the necessary agreements with the developer to ensure the matching funds are provided by the developer. Staff does not recommend drafting such agreements until Hennepin County has selected which projects will be funded. ATTACHMENTS • Resolution • Project Site Map CITY OF NEW HOPE RESOLUTION NO. 20o5- 6 2 RESOLUTION AUTHORIZING ENVIRONMENTAL RESPONSE FUND GRANT APPLICATION TO HENNEPIN COUNTY FOR THE REDEVELOPMENT OF THE CITY OWNED PROPERTY LOCATED AT 7500, 7516 AND 7528 42"m AVENUE NORTH (IMPROVEMENT PROJECT NO. 740) WHEREAS, the City of New Hope supports the redevelopment of the city owned property at 7500, 7516 and 7528 42-1 Avenue North; and, WHEREAS, the city of New Hope supports the environmental financial grant application submitted to the Hennepin County Department of Environmental Services on May 2, 2005, by the city of New Hope; and, WHEREAS, the Frey Development and Manley Land Development, LLC has agreed to cover the city's cost share portion of the grant application if it is favorably acted upon by the Board of County Commissioners of Hennepin County; and, WHEREAS, the city of New Hope act as the legal sponsor for project(s) contained in the Environmental Response Fund Grant Program to be submitted on May 2, 2005 and that the Mayor and city manager are hereby authorized to apply to Hennepin County for funding of this project on behalf of the city of New Hope; and, WHEREAS, the City of New Hope has the legal authority to apply for financial assistance, and the institutional, managerial, and financial capability to ensure adequate project administration; and, NOW, THEREFORE, BE IT RESOLVED, that the Mayor and city manager are hereby authorized to execute such agreements as are necessary for the Environmental Response Fund Grant Application available from the Hennepin County Department of Environmental Services on behalf of the city of New Hope. Adopted by the City Council of the City of New Hope, Hennepin County, Minnesota, this 25fl, day of April, 2005. r Alxgn7 E. Opera Sr., ayor Attest: ' .. Valerie Leone, City Clerk 1=' = 20011 Project Site (to scale) 7500, 7516, & 7528 42"d -Avenue EDA L REQUEST FOR ACTION Ill Originating Department Approved for Agenda Agenda Section Community Development 6-27-05 EDA Item No. By: Kirk McDonald, Director of CD By: Shawn Siders, CDSpecialist 4 RESOLUTION APPROVING A PURCHA5f AGREEMENT TO SELL THE CITY OWNED PROPERTY AT 7500, 7516 AND 7528 42ND AVENUE NORTH TO FREY DEVELOPMENT AND MANLEY LAND DEVELOPMENT, LLC (IMPROVEMENT PROJECT NO. 740) REQUESTED ACTION City staff requests that the EDA approve the enclosed resolution approving the sale of the city owned property at 7500, 7516 and 7528 42nd Avenue North to Frey Development and Manley Land Development. Staff will give a short summary of the proposed terms and request that the EDA approve the enclosed purchase agreement which authorizes the Mayor and City Manager to execute the purchase agreement. POLICY/PAST PRACTICE City goal #2 is to emphasize the maintenance and redevelopment of commercial and residential properties within the city. BACKGROUND At its meeting of June 13, 2005, the Economic Development Authority conducted a public hearing regarding the proposed transfer of the city owned property at 7500-7528 42nd Avenue North to Frey Development and Manley Land Development. The proposed terms of the sale are as follows: o Land Acquisition Price - $510,000; o Brokerage Fees — To be paid by Frey Development and Manley Land Development, Inc. Developers to provide city with indemnification agreement against brokerage fees; o Property is being transferred in an "as is" condition; o Buyer must receive all planning approvals prior to closing; o Buyer will obtain necessary approvals from the :Minnesota Pollution Control Agency (MPGA) prior to closing; o Buyer will provide cross easements for shared access and parking for all tenants on the entire site; o Buyer agrees to pay all fees associated with the redevelopment of this site. MOTION BY SECOND BY TO: j I-.\RFAIPLANNING\Electronic Industries\ Public Hearing Frey& Manle .doc Request for Action Page 2 June 27, 2005 On June 10, 2005, Frey Development and Manley Land Development submitted redevelopment plans which propose the redevelopment of the site. The proposal includes the construction of 8 office condominiums on the eastern one-half of the property and a 9,500 square foot restaurant/retail use on the western one-half of the property. Viva Italia, a full service Italian restaurant will anchor the retail building. The Planning Commission will review the plans and make a recommendation to the City Council at its meeting of July 12, 2005. The plans will be presented to the City Council for its consideration on July 25, 2005. RECOMMENDATION Staff recommends that the EDA approve the enclosed resolution authorizing the Mayor and City Manager to execute the purchase agreement. ATTACHMENT o Resolution o Purchase and Redevelopment Agreement EDA RESOLUTION NO. 05 - 05 RESOLUTION AUTHORIZING NEGOTIATION, EXECUTION AND DELIVERY OF A PURCHASE AGREEMENT BETWEEN THE ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF NEW HOPE, FREY DEVELOPMENT, INC. AND MANLEY LAND DEVELOMENT, INC. FOR PROPETY LOCATED AT 7500, 7516 AND 7528 42nd AVENUE NORTH BE IT RESOLVED by the Economic Development Authority in and for the City of New Hope (the "Authority") as follows: WHEREAS, the Authority is the owner of certain real estate within Auditor's Subdivision Number 324, Hennepin County, Minnesota, which real estate is more commonly known as 7500 42"d Avenue, 7516 42nd Avenue and 7528 42nd Avenue (collectively, the "Property"); and WHEREAS, it has been proposed that it is in the best interests of.the City ofNew Hope and its people if the Property is sold to Frey Development, Inc. and Manley Land Development, Inc. (collectively, the "Redeveloper") to facilitate construction of (i) an 8 -unit office -condo building and (ii) a multi -tenant retail building approximately 8,500 to 9,000 square feet in size, with 5,000 to 6,000 square feet of that building to be occupied by a "Viva Italia" restaurant and with the remaining tenants chosen after consideration of input by the Authority. WHEREAS, it has further been proposed that the above -outlined sale would fiu-ther the Authority's general plan of economic development; and WHEREAS, the Authority has pursuant to Minnesota Statutes Section 469.105 and other applicable laws and regulations called for and held a public hearing regarding such sale of the Property and has accepted public comments, if any, made at the hearing session(s); and WHEREAS, the Authority has determined that it is in the best interests of the City of New Hope and its people if the Property is sold to the Redeveloper, and that such sale would further the Authority's general plan of economic development. NOW, THEREFORE, BE IT RESOLVED by the Economic Development Authority in and for the City of New Hope as follows: 1. That sale of the Property is hereby approved and authorized. 2. That the President and the Executive Director (the "Officers") are hereby authorized to execute and deliver a purchase agreement for sale of the Property when the following condition is met: Substantial conformance of the purchase agreement to the form of agreement presented to the Authority as of this date, with such additions and/or modifications as the Officers may deem necessary or desirable as evidenced by their execution thereof. Dated the 27th day of June, 2005. lllic&-Ako'� Martin E. Opem., President Attest - Daniel J. Donahue, Executive Director P: SArMRNEYICMKSCLMMS'ZW99-11293199-11293-006 VIVA rrAUA RESOLUTION AUTHDRU NIG FURCEASE AGPJM4ENT.DGC PURCHASE AND DEVELOPMENT AGREEMENT This Purchase and Development Agreement ("Agreement") is made by and between FREY DEVELOPMENT, INC. a Minnesota Corporation and MANLEY LAND DEVELOPMENT, INC. a Minnesota corporation (collectively, "Buyer") and the ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF NEW HOPE, MINNESOTA, ("Seller"). In consideration of the covenants and agreements of the respective parties as hereinafter set forth, Seller shall sell and Buyer shall purchase those certain parcels of real estate located in the City of New Hope and more commonly known as 7500 - 42nd Avenue North, 7516 - 42nd Avenue North and 7528 - 42nd Avenue North, which parcels are legally described on Exhibit A attached hereto and made a part hereof (the "Property"). 1. Purchase Price. The purchase price for the Property shall be Five Hundred Ten Thousand and No/100 Dollars ($510,000.00) (the "Purchase Price"), which the Buyer shall pay as follows: an initial payment of Two Thousand Dollars ($2,000.00) (the "Earnest Money"), which sum shall be deposited with Old Republic Title Insurance Company (the "Escrow Agent", also referred to hereafter as the "Title Company"), and Five Hundred Eight Thousand Dollars ($508,000.00) payable by wire, cashier's check or cash on the on the "Date of Closing", as that term is defined below. 2. Title Conveyed. On the Date of Closing, the Seller shall deliver a Quit Claim Deed (the "Deed") to the Buyer conveying marketable title of record, free and clear of liens, encumbrances, assessments restrictions, except for the "Permitted Exceptions", as that term is defined below. 3. Representations and Warranties by Seller. The Seller represents to the Buyer that: a) The Seller owns the Property and has the right to sell the same, and that there are no unrecorded contracts, leases, easements or other agreements or claims of any third party affecting the use, title, occupancy or development of the Property, and no person, firm or entity has any right of refusal, option or other right to acquire all or any part of the Property except as follows: A Purchase and Sale Agreement executed by Frey Development, Inc. on November 5, 2003, and by the Seller on November 24, 2003, which Agreement relates only to the portion of the Property legally described as "All of the following described parcel except for the West 163 feet thereof: That part of Lot 5, Auditor's Subdivision Number 324, Hennepin County, Minnesota described as follows: Commencing at the point of intersection of the North line of Rockford Road and the East line of said Lot 5; thence North along said East line a distance of 350 feet; thence West parallel with the North line of Rockford Road a distance of 320.4 feet more or less, to a point 48.95 feet East of the West line of said Lot 5, as measured at right angles thereto thence South parallel with the West line of said Lot 5 a distance of 350.0 feet to the North line of Rockford Road; thence Easterly along the North line of Rockford Road a distance of 320.4 feet, more or less to the point of beginning." b) The Seller shall cooperate with the Buyer in the Buyer's efforts to obtain the approval of all public or governmental authorities as to all matters relating to zoning, subdivision, lot splits, special use permits, access, or similar requirements for an eight unit town -office project on the eastern portion of the site and a multi - tenant retail building (approximately 8,500 to 9,000 square feet in size) on the western portion of the site, which retail building will include a Viva Italia restaurant (collectively, the `Buyer's Intended Use"). For the purposes of this Agreement "town -office" shall mean a common ownership interest community with commercial office units constructed on individually -owned lots and common areas owned and maintained by a non-profit owners' association. Seller shall join in such applications and other documents, including access and parking easements, as may be necessary or required by governmental or regulatory bodies to develop the Property for the Buyer's Intended Use. c) The Seller's warranties and representations contained in this Section 3 shall survive the delivery of the Deed. d) The Property is subject to a Declaration of Environmental Restrictive Covenants dated November 24, 2003, which Declaration is recorded with the Office of the Hennepin County Recorder as Document Number 8298194 and is attached hereto as Exhibit B (the "Environmental Restrictive Covenants"). The Seller has not received any notice from any person or entity as to a breach of the terms contained in the Environmental Restrictive Covenants. e) The Seller has not received any notice from any govermnental authority concerning any eminent domain, condemnation, special taxing district, or rezoning proceedings. f) The Property is not subject to any assessment or valuation agreement that is not listed as one of the Permitted Exceptions, and the Seller has not received any notice of actual or threatened special assessments or reassessments of the Property. g) To the best of the Seller's knowledge there are no wells or septic systems on the Property. The Seller agrees that any breach of the forgoing representations shall be grounds for Buyer to terminate this Agreement. In the event of such termination, the Earnest Money shall be returned. NOTWITHSTANDING THE FOREGOING REPRESENTATIONS BY THE SELLER, THE BUYER HEREBY ACKNOWLEDGES THAT THE BUYER IS PURCHASING THE PROPERTY IN "AS IS" CONDITION. 2 4. Conditions of Offer. The Buyer's obligation to close the transaction contemplated by this Agreement is subject to the satisfaction of the following conditions on or before July 15, 2005: a) The Buyer shall, pursuant to the terms of Section 7 below, have reasonably determined that the Property is marketable. In making such determination the Buyer specifically agrees and acknowledges that title to the Property is currently, and if the Buyer proceeds with closing will be, subject to the following title matters the "Permitted Exceptions (i) any lien of real estate taxes not yet due and payable in 2005; (ii) rights-of-way for drainage ditches, drain tiles, feeders, laterals and underground pipes, if any; (iii) all dedicated rights -of way; (iv) the Environmental Restrictive Covenants; and (v) all other easements, restrictions, covenants and agreements which are depicted by the public records, so long as the Buyer's Intended Use is not materially impaired by such matters of record. The Buyer agrees and acknowledges that for the purposes of this Agreement the Environmental Restrictive Covenants shall not be considered to "materially impair" the Buyer's Intended Use. b) Obtaining approval for ingress and egress to the Property and all zoning changes, including rezoning, variances, special use permits, subdivisions and any other governmental permits, consents and authorizations, which are necessary or desirable for Buyer's Intended Use, including, without limitation, final building permits. c) Obtaining financing under terms and conditions reasonably acceptable to the Buyer. d) The Buyer and the Seller agreeing to reasonable terms and provisions for cross easements in favor of the Buyer for construction and maintenance of access and parking. e) Reasonably acceptable direct access to and from the Property via publicly dedicated streets. If any condition of this Section 4 remains unsatisfied or has not been waived by the Buyer on or before July 15, 2005, this Agreement shall become null and void, neither party shall have any fin Cher obligation to the other under this Agreement (other than rights or obligations under this Agreement which provide for continued exercise following the cancellation or other termination of this Agreement), and the Earnest Money shall be refunded. With respect to the above-described conditions in favor of the Buyer, the Buyer shall give notice of its desire to terminate this Agreement for failure to satisfy or fulfill any of said conditions on or before July 15, 2005, but if no notice of 3 termination is given within the specified time period with respect to any of the conditions listed above, such condition shall be deemed to be waived by the Buyer and the Buyer shall proceed to close this transaction in accordance with the other terms and conditions of this Agreement. The Buyer hereby acknowledges that the Buyer has been fully informed of the ground water and soil contamination existing on the Property and has had ample opportunity to investigate and inform itself regarding these circumstances. The Buyer further acknowledges that this contamination does not render the Property unsuitable for development in connection with the Buyer's Intended Use. 5. Survey. The Seller has previously delivered to the Buyer a survey of the Property (the "Survey"). The Buyer acknowledges receipt of the survey and agrees and acknowledges that the same was prepared by a duly licensed surveyor in accordance with the current minimum standard detail requirements for ALTA/ASCM land title surveys. 6. Access Prior to Closing. The Buyer and its employees, agents, and contractors shall have the right to enter upon the Property for the purpose of conducting examinations, making measurements, and performing such tests or surveys thereon (including soil borings) as the Buyer desires. The Buyer's access to the Property and actions thereon shall be subject to Seller's approval, the approval of the Minnesota Pollution Control Agency and, if requested by the Seller, a written access agreement. The Buyer agrees to promptly repair or restore any damages caused by the Buyer or its employees, agents, or contractors during the course of making such examination, measurements or tests, with repairs to be performed in any reasonable manner specified by the Seller or the Minnesota Pollution Control Agency and the Buyer further agrees to indemnify and hold the Seller (and the Seller's employees, agents, consultants and officers) harmless from and against any lien, claim, loss, liability, cost, damage or injury asserted against or suffered by the Seller or the Property, including but not limited to attorneys' fees, related to any entry by the Buyer, its assigns or any of its agents, representatives, contractors or employees, as related to this Agreement. The repair and indemnification obligations recited in this Section 6 shall survive closing or the cancellation or other termination of this Agreement. 7. Title Commitment and Policy. a) The Seller shall deliver to the Buyer a Commitment for an ALTA Form B owner's policy of title insurance (the "Commitment") issued by the Title Company and covering title to the Property, in the amount of the Purchase Price. The Seller agrees to pay the costs associated with the preparation and issuance of the Commitment; the Buyer shall pay the premium for the owner's policy, if any, and the lender's policy, if any, along with the price for any endorsements requested by the Buyer or the Buyer's lender. b) The Buyer shall have ten (10) days after receipt of the Commitment to review and approve the title to the Property and to object to any exception to title that is disclosed in the Commitment and Survey or which is otherwise discovered by the Buyer. In the event that the Buyer does not within such ten (10) day period give notice to the Seller objecting to any such exceptions, then all such exceptions shall be deemed approved and shall be considered a part of the Permitted Exceptions. 4 If the Buyer timely objects to an exception to title, then on or before the tenth (10) day following the Buyer's notice of exception, the Seller shall remove the exception or notify the Buyer that the Seller is unwilling or unable to remove the exception. Within five (5) days of any notice by the Seller that the Seller it is unwilling or unable to remove an exception to title, the Buyer may elect by notice to the Seiler to either: (i) terminate this Agreement, whereupon the Earnest Money shall be returned to the Buyer and the parties shall be released from all further obligations hereunder except obligations under this Agreement which provide for continued exercise following the cancellation or other termination of this Agreement; or (ii) elect to have this Agreement remain in effect, in which event the Buyer will be deemed to have approved the previously -cited exception and the same shall be considered part of the Permitted Exceptions. 8. Buyer Obligations Joint and Several. Frey Development, Inc. and Manley Development, Inc. each acknowledge joint and several liability for the Buyer representations and obligations under this Agreement, and each further acknowledges that the Seller may pursue one or both of them as the "Buyer" in connection with enforcement of any Seller rights pursuant to this Agreement. 9. Closing. a) Closing shall occur within ten (10) business days after all the conditions of the Agreement have been satisfied, and in no event later than August 1, 2005 (the "Date of Closing"), unless both parties agree, in writing, to an earlier or later time. b) Closing shall, at the Seller's sole option, occur at the Escrow Agent's office, the Seller's office, or the office of the Seller's attorney. C) The Seller shall deliver at closing the following executed and acknowledged documents: (i) the Deed; (ii) affidavit(s) in industry -standard form(s) stating that possession of the Property is being delivered free of any mechanic's or statutory liens in connection with work performed prior to closing; the Seller is not a foreign person or entity; and addressing such other matters as the Buyer may reasonably require; and (iii) a Cancellation of Purchase Agreement, in form reasonably acceptable to the Buyer, terminating the agreement between the Seller and Frey Development, Inc. cited in Subsection 3(a) above with respect to a portion of the Property; 5 (iv) easement or easement agreements as outlined in Section 4(d) above; (v) an Assignment of the Environmental Restrictive Covenants. d) The Buyer shall deliver at closing the following executed and acknowledged documents: (i) a Cancellation of Purchase Agreement, in form reasonably acceptable to the Buyer, terminating the agreement between the Seller and Frey Development, Inc. cited in Subsection 3(a) above with respect to a portion of the Property; (ii) easement or easement agreements as outlined in Section 4(d) above; and (iii) an Assignment of the Environmental Restrictive Covenants. 10. Payments/Prorations. The Seller shall, on or before the Date of Closing, pay for the costs relating to the Commitment. At closing, the Seller shall pay the cost of recording any instrument (other than the Deed) necessary to place title in the condition required under this Agreement, State deed tax, and all special assessments levied, pending or constituting a lien against the Property as of the Date of Closing, including without limitation any installments of special assessments and interest payable with general real estate taxes in the year of closing. The Seller will pay general real estate taxes payable in the year prior to the year of closing and all prior years. The Buyer shall pay at closing the cost of any owner policy or lender policy of title insurance, sales tax, if any, and fees required for recording the Deed. The Seller and the Buyer each will pay one-half of customary closing fees. General real estate taxes payable in the year of closing shall be prorated by the Seller and the Buyer as of the closing date based upon a calendar year. 11. Condemnation. If, prior to the Date of Closing, all or any part of the Property shall be condemned by governmental or other lawful authority, the Buyer shall have the option of (a) completing the purchase contemplated by this Agreement, in which event all condemnation proceeds or claims thereof shall be assigned to the Buyer, or (b) canceling this Agreement, in which event the Earnest Money shall be refunded and this Agreement shall be terminated with neither party having any rights against or obligations to the other except rights or obligations under this Agreement which provide for continued exercise following closing or cancellation or other termination of this Agreement, and the Seller shall be entitled to any and all condemnation proceeds. 12. Notices. All notices required hereunder shall be in writing and shall be deemed to have been duly given and received (a) two (2) business days after depositing of the same in the mail if sent by regular, registered or certified mail, postage prepaid, to the party to whom directed, at such party's address herein set forth; (b) upon delivery, or attempted delivery if delivered by overnight courier service or hand delivery; (c) or upon transmission if successfully transmitted by facsimile. Any party shall have the right to designate any other address or facsimile number for 6 notice purposes by written notice to the other party in the manner aforesaid. The addresses of the parties are as follows: SELLER: City of New Hope Dan Donahue, City Manager 4401 Xylon Avenue North New Hope, MN 55428-4898 Facsimile No.: 309-688-9099 with copy to: Clarissa M. Klug Jensen & Sondrall, P.A. 8525 Edinbrook Crossing, Suite 201 Brooklyn Park, MN 55443 Facsimile No.: 763-493-5193 BUYER: Bernie R. Frey Frey Development, Inc. 4801 '/z Nicollet Avenue South Minneapolis, MN 55409 Facsimile No.: 612-827-4331 and Manley Land Development, Inc. 243 Cliff Drive Eagan, MN 55122 Facsimile No.: 13. Broker. The Buyer represents and warrants that it will pay all brokerage charges incurred in connection with this transaction in connection with activities authorized by the Buyer, along with any brokerage charges incurred in connection with prior marketing of the Property or a portion thereof. The Buyer obligations recited in this Section 13 shall survive the closing or the cancellation or other termination of this Agreement. 14. Remedies. If the Buyer defaults under this Agreement, the Seller shall have the right to terminate this Agreement by giving written notice to the Buyer as provided by law. If the Buyer fails to cure such default as provided by law, this Agreement will terminate, and upon such termination the Seller will retain the Earnest Money and neither party shall have any rights or obligations against the other except rights or obligations under this Agreement which provide for continued exercise following the cancellation or other termination of this Agreement. If the Seller defaults under this Agreement, the Buyer shall have the right to seek specific performance and recover as damages from the Seller all of the Buyer's reasonable out-of-pocket costs and fees. 7 15. MPCA VIC Application and Letter. The Seller shall apply for and obtain written assurance from the MPCA that the Buyer is not responsible for cleanup of the hazardous materials that remain in the undisturbed soil and water of the Property (a "No Association" assurance letter). This letter is to be obtained through application to the Minnesota Pollution Control Agency ("MPCA") Voluntary Investigation and Cleanup ("VIC") program. Notwithstanding the foregoing language, the Seller shall have no responsibility for applying for a "No Association" assurance letter in the event that the Buyer fails to provide the Seller, a sufficient period before the Date of Closing, with the "Required Information" (as that term is defined below). The Seller's failure to provide a "No Association" assurance letter in accordance with the provisions of this Section 15 shall be grounds for the Buyer to terminate this Agreement. In the event of such termination, the Earnest Money shall be returned and neither party shall have any rights against or obligations to the other except those rights or obligations under this Agreement which provide for continued exercise following the cancellation or other termination of this Agreement. 16. Required Information. The Buyer is required to provide the Seller, consistent with Section 15 above, with the following information at the Buyer's sole expense so that the Seller can complete the VIC application (the "Required Information"): a) Site plan and associated text describing the nature of business activities anticipated after redevelopment; b) Grading plan; C) Geotechnical drilling and/or soil testing plan; d) Subsurface utilities plan; e) Vapor collection system design drawings; f) Construction time line; and g) Any other information required for the completion of the VIC application that the Buyer otherwise needs to prepare in connection with its development of the Property. The Buyer's failure to provide the Required Information in accordance with the provisions of this Agreement shall be grounds for the Seller to terminate this Agreement. In the event of such termination the Seller shall be allowed to retain the Earnest Money and neither party shall have any rights against or obligations to the other except those rights under this Agreement which provide for continued exercise following the cancellation or other termination of this Agreement. 17. Monitoring During Construction. The parties acknowledge that on-site monitoring of certain construction activities by an environmental professional will be required after closing. The Seller agrees, consistent with the requirements of this Agreement, to be responsible for providing a field technician to be on-site during: 8 a) Grading activities near the Restricted Area (as defined in the Environmental Restrictive Covenants); b) Subsurface excavation of utilities; C) Installation and startup of vapor collection system; and d) Geotechnical drilling and/or soil testing activities. The field technician will monitor excavated soils for the presence of contaminants. If contaminated soils are detected, they will be stockpiled by the Buyer separately from clean soils for later disposal. At the conclusion of on-site monitoring activities, the field technician will provide a letter report to both the Seller and the Buyer summarizing the field technician's activities and observations. The Buyer and Seller obligations under this Section 17 shall survive delivery of the Deed. 18. Monitoring Costs and Responsibilities. The Buyer shall be responsible for providing the Seller with reasonable notice of the activities outlined in Section 17 so that the Seller will be able to provide an appropriate field technician. If the Buyer fails to provide the Seiler with such reasonable notice than the Buyer shall be responsible for providing the required field technician (approved in writing by the Seller prior to technician work beginning, with approval not to be unreasonably withheld or delayed) and shall bear all costs and liabilities associated with provision of an appropriate field technician. Regardless of which party bears the cost the field technician, the Buyer shall be solely responsible for the proper disposal of any contaminated materials. The Buyer and Seller obligations under this Section 18 shall survive delivery of the Deed. 19. Future Access and Utility Easements. The Buyer hereby represents and warrants that the Buyer will, if requested by the City of New Hope, provide the City with access and utility easements in connection with the Buyer's future development of the Property and as provided for by New Hope's City Code, regulations and past practices. The Buyer further represents and warrants that any such easements shall be provided at no cost to the City. The Buyer representations and warranties contained in this Section 19 shall survive delivery of the Deed. 20. Assignment. The Buyer may assign its rights and obligations hereunder only with the prior written consent of the Seller, which consent may be granted or withheld by the Seller in its sole discretion. 21. Post -Closing Construction/Revesting of Title, The Buyer agrees and covenants that the Buyer will construct, or cause to be constructed, on the Property all structures necessary for the Buyer's Intended Use, with materials and plans to coincide with those approved by the City of New Hope as part of the governmental approval process cited in Subsection 4(b) above (collectively, the Minimum Improvements"). This covenant shall survive the delivery of the Deed. Construction of the Minimum Improvements must be substantially completed by January 31, 2006. Construction will be considered substantially complete when a final certificate of occupancy has been issued for each building of the Minimum Improvements. Promptly after 9 substantial completion of the Minimum Improvements the Seller will at the request of the Buyer provide the Buyer with a certificate of completion in form and substance reasonably acceptable to the Buyer. Said certificate shall be (and it shall be so provided in the Deed and in the certificate itself) a conclusive determination of satisfaction and termination of the agreements and covenants of the Buyer (and its successors and assigns) to construct the Minimum Improvements and satisfaction of the date(s) for completion thereof. If the Seller shall refuse or fail to provide a certificate as required by this Section 21 then the Seller must, within thirty (30) days after written request by the Buyer, provide the Buyer with a written statement outlining in reasonably adequate detail the reasons that the Seller is of the opinion that the Buyer has failed to complete the Minimum Improvements in accordance with the provisions in this Agreement, or the reasons the Seller is of the opinion that the Buyer is otherwise in default. A writing required of the Seller under this Section 21 must additionally outline the measures or acts that will be necessary, in the opinion of the Seller, for the Buyer to take or perform in order to obtain a certificate of completion. The Buyer agrees and acknowledges that in the event of an uncured default with respect to the Buyer's obligations to construct the Minimum Improvements the Seller may, pursuant to the terms outlined in Exhibit C attached hereto and made a part hereof), declare that all rights and interests in and to the Property (including an improvements or rights subsequently added to the Property after closing of the transaction contemplated by this Agreement) shall revert to the Seller. 22. Miscellaneous. This Agreement shall be governed by the laws of the State of Minnesota. No amendment of this Agreement shall be valid or binding unless executed by authorized representatives of both the Seller and the Buyer. The headings and captions of this Agreement are for the convenience of the parties only and shall not be looked to in the interpretation or enforcement of this Agreement. The Seller and the Buyer acknowledge and agree that each has had opportunity to participate in the drafting of this Agreement and accordingly acknowledge and agree that this Agreement as a whole and each of is clauses are not to be interpreted in favor of or against either party. This Agreement may be signed in counterpart, with each copy of the Agreement binding upon the signing party at the time of signing and together which shall constitute a single document. [The Remainder of this Page is intentionally Left Blank; Signature Page(s) Follow] 10 IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the latest date indicated below ("Effective Date"). SELLER: BUYER: ECONOMIC DEVELOPMENT AUTHORITY FREY DEVELOPMENT, INC. IN AND FOR THE CITY OF NEW HOPE By: _ By: Its: Martin E. Opem Sr. Its: President Dated: , 2005. Dated: 2005. MANTEY LAND DEVELOPMENT, INC. By: _ By: Daniel J. Donahue Its: Its: Executive Director Dated: 32005. Dated: 22005. P:SAttomeylCmklClients\CNHU9-11293199-11297-006-Purchase Agrec=t Dl.doc 11 EXHIBIT A Legal Description That part of Lot 5, Auditor's Subdivision Number 324, Hennepin County, Minnesota described as follows: Commencing at the point of intersection of the North line of Rockford Road and the East line of said Lot 5; thence North along said East line a distance of 350 feet; thence West parallel with the North line of Rockford Road a distance of 320.4 feet more or less, to a point 48.95 feet East of the West line of said Lot 5, as measured at right angles thereto thence South parallel with the West line of said Lot 5 a distance of 350.0 feet to the North line of Rockford Road; thence Easterly along the North line of Rockford Road a distance of 320.4 feet, more or less to the point of beginning. 12 EXHIBIT B November 24, 2003 Declaration of Environmental Restrictive Covenants (Attached) 13 06/23/2005 09:54 FAX 763 493 5193 • � i AN S ENTERED b��Splpl BOUNTY TAXPAYER SERVICES FEB 2 3 2004 PtN TY BY • pEpljlY JENSEN & SQNDRALL, P.A. IM002 V� Doc No 82198194 02/23/2004 02:41 PM Certified filed and or recorded an above date: Duplic"" Office of the County Recorder ow4 Hennepin County, Minnesota G6008W Michael H. Cunni#, County Recorder Deputy 5 TransiD 8572 Fees $17.00 DOC $5.00 SUR DECLARATION $1 .00 COPY OF $23.00 Total ENVIRONMENTAL RESTRICTIVE COVENANTS THIS DECLARATION is made this -')d day of Afa V. , 2003, by the Economic Development Authority of the City of New Hope, a Minnesota municipal corporation, DEFINITIONS For the purpose of this Declaration, the following terms shall have the following meanings: 1. BuildfinQ, "Building" means that building that was formerly present on the Properly and was formerly used by Electronic Industries, Inc. as its place of business. The Building has since been demolished. 2. ComnVs�sioner. "Commissioner" means the Commissioner of the MPCA or the head of any successor entity. Nothing herein shall be construed to prohibit the Commissioner from delegating the Commissioner's obligations or duties under this Declaration to the employees, agents, contractors or subcontractors of the MPCA. 3. Covenacts, "Covenants" mean all of the agreements, covenants, restrictions and easements contained in this instrument. 4. Deck_ aration. "Declaration!' means this instrument, including the definitions and recitals contained herein and the Exhibits attached hereto. 5. EI. "Er' means Electronic Industries, Inc. 6,xhibi . "Exhibits" mean the exhibits to this Declaration and are as follows; a. Exhibit 1: 118 Section Map of Project Site c. Exhibit 2: 1/8 Section Map of Project Site showing Restricted Area d. Exhibit 3: Table of Contaminants Page Iof17 06/23/2005 09:54 FAX 763 493 5193 JENSEN & SONDRALL, P.A_ ii. Address. 7500 42nd Avenue North, New Hope, MN. iii. Property Identification Number. 17-118-21-22-0006. b. Parcel 7. i. Leval Description The West 95 feet of the East 195 feet of the South 350 feet of Lot 5, Auditor's Subdivision No. 324, Hennepin County, Minnesota. if. Address. 7516 42nd Avenue North, New Hope, MN. iif. Property Identification Number. 17-118-21-22-0607. C. Parcel B. i. Legal Description. That part of Lot 5, "Auditor's Subdivision Number 324, Hennepin County, Minnesota" described as follows: Commencing at a point on the North line of Rockford Road distant 195.0 feet Westerly of the East line of said Lot 5; thence North parallel with the East line of said Lot 5 a distance of 350.0 feet; thence West parallel with the North line of Rockford Road a distance of 125.4 feet, more or less, to a point 48.95 feet East of the West line of said Lot 5, as measured at right angles thereto; thence South parallel with the West line of said Lot 5 a distance of 350.0 feet to the North line of Rockford Road; thence Easterly along the North line of Rockford Road a distance of 125.4 feet, more or. less to the point of beginning. LL Address. 7528 424d Avenue North, New Hope, MN. iii. P. ronerty Identification Number. 17-118-21-22-0008, 9 003 It is specifically noted that the entire Restricted Area is contained within the Property. Therefore, all references to the Property include the Restricted Area. 11. Restricted Area, "Restricted Area" means that part of the Property legally described as follows: That part of Lot 5, "Auditor's Subdivision Number 324, Hennepin County, Minnesota" described as follows: Commencing at the point of intersection of the North line of Rockford Road and the East line of said Lot 5; thence North along said East line a distance of 250 feet; thence Page 3 of 17 12112 003 A 11:16 AM 06/23/2005 09:54 FAX 763 493 5193 JENSEN & SQNDRALL. P.A. IM004 r installation of monitoring wells, a soil vapor extraction system, an air sparge system, and a groundwater extraction and treatment system, including the following: 1. The groundwater extraction system was installed in 1987. 2. The soil vapor extraction system was installed in 1992. 3. The air sparge system was installed in 1994. These efforts produced the following information: 4. Observed TCE levels have ranged from 5 ppm to 290,000 ppm. S. Monitoring wells downgradient show ranges of near zero to 41 ppm. 6. An estimated total of 7,000 pounds of TCE has been removed to date through the combination of these remediation systems. H. Lower_Aguifer Inves#j tion. In 1998, the WCA required that the aquifer beneath the clay layer be investigated. Subsurface drilling and sampling of this aquifer was performed in 1998. Lower aquifer monitoring wells were also installed in 1998. Initial results from this sampling showed TCE concentrations up to 124,000 ug/1. This data suggested that the TCE accumulating on the top of the clay layer had migrated through the clay layer into the lower aquifer. I. Amounts of Contaminates Present. TCE, tetrachloroethylene (PCE), dichloroethylene (DCE), trans-DCE, cis-DCE, vinyl chloride, toluene, and methylene chloride are all historically documented to be present on the Properly, in the amounts shown on the Exhibit 3 tables. J. Location of Contaminates Present. Residual contamination, primarily TCE exist in subsurface soil as well as groundwater in both the "perched" water table aquifer and the lower aquifer. K. Reyor s. Many investigative reports have been completed since 1983, the results of which are summarized in the Resource Conservation and Recovery Act Facility Investigation, and Corrective Measures Study (February 2001 and revised January, 2002), Results from May 2001 Push Probe Investigation of the Clay.(June 2001), Remediation Alternatives Report (August 2001), and the Corrective Measures Implementation Work Plan (October, 2001) prepared by Frontline Environmental, LLC, an environmental consulting firm currently located at 17450 Juneberry Court, Lakeville, Minnesota, 55044. The location of near surface contaminants at the Property is shown in Figure 1 of the Corrective Measures Implementation Work Plan. L. Ci 's A reement with the MPCA. The Economic Development Authority of the City of New Hope has agreed with the MPCA to place the following restrictive Covenants on the Property. Page 5 of 17 06/23/2005 09:54 FAI 763 493 5193 JENSEN & SONDRALL, P.A. IA005 e. Permanent facilities (e.g. buildings, parking surfaces, etc.) shall be designed to minimize infiltration of precipitation runoff (rainwater, snow melt) by routing all such precipitation runoff to storm sewers that carry the runoff off-site. This shall be done to minimize recharge of subsurface ground water so as to prevent mobilization of existing subsurface contaminants. £ New monitoring wells installed in areas of vehicle or pedestrian traffic shall be constructed as flush -mount monitoring wells. 2. Use RestriclWas for The Restricted Area. In addition to the Covenants restricting the use of the entire Property, the Economic Development Authority of the City of New Hope hereby imposes the following Covenant on the Restricted Area: a. Prior to the commencement of any subgrade - construction activities or other disturbances to subsurface soil in the Restricted Area (e.g. utility installation, excavation, grading cuts, soil corrections, borings, drilling, etc.), a soil contamination monitoring plan must be prepared and submitted to and approved by MPCA and the City of New Hope. The soil contamination monitoring plan must describe: L The methods to be used and actions to taken to monitor the disturbance and/or removal of contaminated soil_ ii. Pians for proper containment and disposal of any contaminated soil removed as part of the construction activities. iii. Schedule for submitting a final report to the hIPCA describing volume of soil removed, how it was disposed, and associated analytical data. 3. Commissioner Anuroyal. Any action prohibited by the Covenants shall not occur without the prior approval of the Commissioner. a. Requests for the Commissioner's approval must be made in writing to the Commissioner. b. The Commissioner shall have SO days after the receipt of a request to mail a response thereto, C. The Commissioner's response shall be in writing and shall approve or disapprove the request or require additional information be provided. d. A lack of response from the Commissioner shall not constitute approval by default or authorization to proceed with the requested activity. Page 7 of 17 06/23/2005 49:55 FAX 763 493 5193 JENSEN & SONDRALL, P.A. 1910o6 6. Reservation. Nothing contained in this Declaration shall in any way prohibit, restrict, or limit the Economic Development Authority of the City of New Hope, its successors or assigns, from fully conveying, transferring,, occupying, or using the Property for all purposes not inconsistent with the Covenants. 7. Duration of Declaration, This Declaration and the Covenants herein shall continue in perpetuity until terminated, modified, released and/or amended with the written .consent of the Commissioner, such consent not to be unreasonably withheld. 8. Amendment of Declaration by Owners. This Declaration and the Covenants herein shall only be modified, altered, supplemented or amended with the written consent of the Commissioner, such consent not to be unreasonably withheld. 9. Amendment of Declaration bj MPCA. This Declaration and the Covenants herein may be modified, altered, supplemented or amended by the MPCA upon the occurrence of the following: a. The MPCA finds that this Declaration is inadequate to protect the public health or welfare, or the environment, b. The MPCA gives notice (written or oral) of such finding to the then current Owner; and C. The MPCA and the Owner enter into a document so modifying, altering, supplementing or amending this Declaration. 10. Termination of Declaration. This Declaration and the Covenants herein may be terminated upon the occurrence and satisfaction of all of the following conditions: a. Soil and ground water sampling is conducted on the Property with prior written notice to and in accordance with a plan approved by -the MPCA, such approval not to be unreasonably withheld; and b. Based on such samples, the MPCA certifies that the soil and ground water located within the Restricted Area no longer poses an unacceptable risk to public health and the environment. 11. Recording of Owner Terminations and Amendments. In the event this Declaration is terminated, modified, altered, supplemented or amended by the Owner, the Owner shall submit an original document already signed by Owner to the MPCA with a self addressed return envelope. a, The MPCA shall have 60 days after the receipt of such document and envelope to execute and mail the original document back to the Owner. Page 9 of 17 IV] 5=21 Basi AM 06/23/2005 09:55 FAX 763 493 5193 JENSEN & SONDRALL, P.A. 007 14. Disclosures. The Covenants shall be incorporated in full or by reference into all instruments conveying an interest in and/or right to use the Property (e.g. easements, mortgagee, leases). GENERAL PROVISIONS 1. Duration. This Declaration shall run with the land in perpetuity and shall inure to the benefit of and be enforceable by each Owner and the MPCA. a. Amendment. This Declaration maybe amended by the unanimous agreement of all Owners and the MPCA. Amendments shall not be effective until recorded. 3. Enforcement. Enforcement of these Covenants shall be by any proceeding at law or in equity against any person(s) or entity(ies) violating or attempting to violate any of the Covenants. Such proceedings may seek to enforce compliance, to restrain violations or to recover damages. The Covenants may be enforced by the MPCA, the City of New Hope or any other Interested Parties. 4. Waiver. Failure to enforce any Covenant shall not be deemed a waiver of the right to do so thereafter. 5. Severability, Invalidation of any one Covenant by judgment or court order shall in no way affect any other provisions, which shall remain in full force and effect. Whenever possible, each provision of this Declaration will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Declaration is held to be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the extent of such invalidity, illegality, unenforceability in such jurisdiction, without invalidating the remainder of this Declaration in such jurisdiction, and without effecting the enforceability of any such provision hereof in any other jurisdiction. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Declaration a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid and enforceable. G. Mechanic's Lien. Each Owner agrees to indemnify and hold harmless all other Owners from all Mechanic's Liens arising from work for which the Owner is responsible. 7. Assignment, The Economic Development Authority of the City of New Hope may assign any and all of its rights, powers, obligations and privileges hereunder to any other corporation, association, person or entity. Such assignment or assignments are effective upon the recording of the instrument making the assignment. Page 11 of 17 06/23/2005 09:55 FAX 763 493 5193 JENSEN & SONDRALL, P.A. 1a008 STATE OF MINNESOTA COUNTY OF HENNEPIN CITY OF NEW HOPE Its: Mayor The foregoing instrument was acknowledged before me this �- Y day of U. , 2003, by W. Peter Enck and Daniel J. Donahue, the Mayor and City Manager, respectively, of the City of New Hope, a Minnesota municipal corporation, on behalf of said municipal corporation. (Notary Public Seal) 111961889 [EMY VALERIEJ. LEONE NOTARY PUBLIC -MINNESOTA Commission Expires Jan. 3i, 2005 Notary Public Page 13 of 14 06/23/2005 09:55 FAX 763 493 5193 JENSEN & SONDRALL, P.A. IM009 ■ C 11 r z 981.39 NBS' 29 OE ' N44• 21i , °�1 546.13'039E 4 19 S46.08'56 -E '12ND AVE • _ _ _ t4.05• 1 ' Z09.41 `leaf 3776'E - - - - - - - - - -,IL — " - 292+ — — — 0T 7-1-09e-ee'Nee*�8 I sr N "s PART OF LOT 2 EMBIT 1 1"-100' Page 15 of 17 I01 I } I e 1 1 r W Z r , , 1 1 I 30 �aaa�.�aaa�.ww�awr.aeaa.��+• IFP N0 1606 1 •� ; • • , O o ALLEY OEM 2532 PG 333 7528 1 7516 ; 7500 r � PART OF LOT 5 ; z (8) (7) ; (6) � I ry ' I � I � i 7 -e -BB a r' r30 ]0 -••----125.4 -------- *� OT 7-f1-88 r OQC NO 4442681 95+ - 10� _ r- - - - - - --- 304:86 N86'?8:29'E---___- 981.39 NBS' 29 OE ' N44• 21i , °�1 546.13'039E 4 19 S46.08'56 -E '12ND AVE • _ _ _ t4.05• 1 ' Z09.41 `leaf 3776'E - - - - - - - - - -,IL — " - 292+ — — — 0T 7-1-09e-ee'Nee*�8 I sr N "s PART OF LOT 2 EMBIT 1 1"-100' Page 15 of 17 I01 I 06/23/2005 09:55 FAX 763 493 5193 JENSEN & SONDRALL, P.A. IM010 EXHIBIT 3 Table of Contaminants General Total volume of Total volume of Remedy RAP Cleanup Goal contaminant type identified identified VOCs, metals, etc. (i.e., residential (i.e., DRO, VOCs, contaminated soil contaminated soil 72 mg/kg ,SRVs, industrial metals, etc.) (cyds) to be remediated 3,200 sq. ft. SRVs, etc.) Cis-DCE 70 ug/L ds injection and ex -situ soil Vinyl chloride VOCs 13,000 0 NIA N/A General contaminant Affected aquifer Approximate dimensions Remedy type (i.e., DRO, (i.e., water table, of contaminant plume 1,900 mg/kg VOCs, metals, etc. deeper aquifers) on-site. Specify if the 5 mg/kg PCE 72 mg/kg plume extends off-site. 80 mglkg VOCs Water table aquifer 3,200 sq. ft. Potassium permanganate Cis-DCE 70 ug/L Plume extends off-site injection and ex -situ soil Vinyl chloride 0.2 ug/L <1 ug/L vapor and groundwater Methylene Chloride 50 ug/L <2 ug/L treatment VOCs Lower aquifer 48,000 sq. ft. Potassium permanganate Plume extends off-site injection and ex -situ soil vapor and groundwater treatment Compound Tier I SRV residential Average Concentration Maximum Concentration TCE 29 mg/kg 100 mg/kg 1,900 mg/kg DCE 0.6 mg/kg <0.5 mg/kg 5 mg/kg PCE 72 mg/kg 5 mg/kg 80 mglkg Toluene 107 mglkg <03 mg/kg 0.5 mg/kg Compound ERL Average Concentration Maximum Concentration TCE 30 ug/L 5,000 ug/L 350,000 ug/L DCE ir6 ug/L 1 UeL 33 ug/L PCE 7 ug/L <1 ug/L 5 ug/L Trans-DCE 100 ug/L <1 ug/L 18 ug/L Cis-DCE 70 ug/L <1 ug/L 640 ug/L Vinyl chloride 0.2 ug/L <1 ug/L 10 ug/L Methylene Chloride 50 ug/L <2 ug/L 900 ug/L Toluene 1000 ug/L <1 uglL 18 uWL Page 17 of 17 EXHIBIT C Buyer and Seller Agreement Regarding Post -closing Default as to Construction of Minimum Improvements. Note: Capitalized terms appearing below are to be interpreted as defined in the Agreement to which this Exhibit is attached. Post -Closing Default as to Construction of Minimum Improvements. In the event that after conveyance of the Property (or any part thereof) to the Buyer and before receipt by the Buyer of a certificate of completion from the Seller there is a failure on the part of the Buyer, subject to "Unavoidable Delays" (as that term is defined below), to carry out any obligation with respect to construction of the Minimum Improvements (including but not limited to the nature of the improvements and the date for the completion thereof), or if the Buyer abandons or substantially suspends construction work then the Seller shall have the right to re-enter and take possession of the Property unless such failure, abandonment, or suspension is cured, ended, or remedied within thirty (30) days after written demand from the Seller with respect to the failure, abandonment or suspension. Upon such re-entry and re -taking of possession the Seller may terminate (and revest in the Seller) the estate previously conveyed by the Deed, it being the intent of this provision together with other provisions of the Agreement to which this Exhibit C is attached that the conveyance of the Property to the Buyer shall be made upon (and that the Deed shall contain a condition subsequent to the effect that) the understanding that in the event of any default on the part of the Buyer with respect to the Minimum Improvements and failure on the part of the Buyer to remedy, end, or abrogate such default within the period and in the manner stated herein then the Seller at its sole option may declare a termination in favor of the Seller of the title and additionally of all rights and interests of the Buyer (and the Buyer's successors or assigns), and that the Seller may further declare that all of the rights and interests in and to the Property (including any improvements or rights subsequently added to the Property) shall revert to the Seller, but only if the events stated in this paragraph have not been cured within the time periods provided above. Notwithstanding anything to the contrary contained in this paragraph, the Seller shall have no right to reenter or retake title to and possession of a portion of the Property for which a certificate of completion has been issued. For the purposes of this Agreement, the term "Unavoidable Delays" means delays beyond the reasonable control of the Buyer and which are the direct result of strikes or other labor troubles; damage to the Minimum Improvements due to prolonged adverse weather, acts of God, fire or other casualty; litigation commenced by third parties which, by injunction or other similar judicial action, directly results in delays; or acts of any federal, state or local governmental unit (other than the Seller in exercising its rights under this Agreement) which directly result in delays. The term "Unavoidable Delays" shall not include delays in the Buyer's efforts to obtain permits or governmental approvals necessary to enable construction of the Minimum Improvements by the dates such construction is required under this Agreement. Resale of Reacquired Property; Disposition of Proceeds. Upon the revesting in the Seller of title to and/or possession of the Property (or any part thereof) as provided above, the Seller shall apply the Purchase Price as follows: A. First, to reimburse the Seller for all costs and expenses (including but not limited to proportionate salaries of personnel) incurred by the Seller in connection with the recapture, management, and resale of the Property or any part thereof (but less any income derived by the Seller from the Property or part thereof in connection with such management); all taxes, assessments, and water and sewer charges with respect to the Property or part thereof (or, in the event the Property is exempt from taxation or assessment or such charge during the period of ownership thereof by the Seller, an amount, equal to such taxes, assessments, or charges [as determined by the Seller's assessing official] as would have been payable if the Property were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the Property or any part thereof at the time of revesting of title thereto in the Seller or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Buyer, its successors or assigns; any expenditures made or obligations incurred with respect to the making or completion of the Minimum Improvements or any part thereof on the Property or any part thereof; and any amounts otherwise owing the Seller by the Buyer or its successors or assigns; and B. Second, to reimburse the Buyer for the balance of the Purchase Price remaining after the reimbursements to the Seller specified above. Such reimbursement shall be paid to the Buyer upon delivery of an executed, recordable warranty deed to the Property (or, if applicable, part thereof) by the Buyer to the Seller. COUNCIL aim'� REQUEST FOR ACTION Originating Department Approved for Agenda Agenda Section Community Development 9-12-05 Consent Item No. By: Kirk McDonald, Director of CD B y. Shawn Siders, CD Specialist . 6 $ Resolution approving Environmental Response Fund Grant Agreement between the city of New Hope and Hennepin County Department of Environmental Services - 7500-7528 42nd Avenue North (Improvement Project No. 740) Requested Action Staff is requesting that the City Council approve a resolution authorizing the city manager to execute a grant agreement with Hennepin County to receive $18,750 from the Environmental Response Fund. These funds will be used to relocate the on-site monitoring wells and cover some of the city's fees related to on-site monitoring of the construction activities during the redevelopment of the city owned property at 7500-7528 42nd Avenue North. The 25% local match requirement in the amount of $6,250 will be covered by the developer of the property and is included as a provision in the purchase agreement. Policy/Past Practice The city has previously applied for grants from Hennepin County to assist with environmental cleanup issues related to redevelopment. Background On April 25, 2005, the City Council approved a motion authorizing staff to make an application in the amount of $18,750 to Hennepin County to assist with the costs to relocate the on-site "stick up" monitoring wells at 7500-7528 42nd Avenue North. Some of these proceeds will cover the city's expenses for the required on-site field technician which will be present during the excavation of the site. The monitoring wells must be relocated as a result of the pending redevelopment activities that will take begin during fall 2005. The Board of County Commissioners of Hennepin County awarded the city a grant for these purposes in August 2005. Because Hennepin County requires a 25% local match as a condition of awarding this grant, city staff included a provision in the purchase agreement stipulating that the developer will be responsible for reimbursing the city for its matching portion if the grant was awarded by Hennepin County. As a result, the developer has agreed to cover the city's cost sharing provision. MOTION BY Ate& SECOND BY TO: d&Lkto5 I I [I-.\ RFAkPLANNING\ Electronic Industries\Q & R - Hen Cty ERF grant accept resolution.doc Request for Action Page 2 September 12, 2005 Recommendation City staff recommends that the City Council approve the attached resolution. By accepting this resolution, the city can provide limited financial assistance to a private redeveloper without expending any city funds. Attachments • Resolution • Grant Agreement City of New Hope Resolution No. 2005-111 Resolution approving Environmental Response Fund Grant Agreement between the city of New Hope and Hennepin County Department of Environmental Services — 7500-7528 42nd Avenue Forth (Improvement Project No. 740) WHEREAS, the City of New Hope supports the redevelopment of the city owned property at 7500, 7516 and 7528 42nd Avenue North; and, WHEREAS, the city of New Hope supports the environmental financial grant application submitted to the Hennepin County Department of Environmental Services on May 2, 2005, by the city of New Hope; and, WHEREAS, the Frey Development and Manley Land Development, LLC has agreed to cover the city's cost share portion of the grant application if it is favorably acted upon by the Board of County Commissioners of Hennepin County; and, WHEREAS, the city of New Hope has the legal authority to apply for financial assistance, and the institutional, managerial, and financial capability to ensure adequate project administration; and, WHEREAS, the Board of County Commissioners of Hennepin County awarded the city of New Hope a grant in the amount of $18,750 on August 8, 2005 to support the redevelopment of the city owned property at 7500-7528 42nd Avenue North; and, NOW, THEREFORE, BE IT RESOLVED, that the city manager is hereby authorized to execute such agreements as are necessary for the Environmental Response Fund Grant Agreement available from the Hennepin County Department of Environmental Services on behalf of the city of New Hope. Adopted by the City Council of the City of New Hope, Hennepin County, Minnesota, this 12th day of September, 2005. Attest: Valerie Leone, City Clerk Hennepin County Department of EnAronmental Services 417 North Fifth Street Minneapolis, Minnesota 55401 August 17, 2005 Mr. Shawn Siders City of New Hope 4401 Xylon Avenue N. New Hope, MN 55428 RE: ERF Grant — Electronic Industries Dear Mr. Siders: Recycled Paper Phone: 612-348-3777 Facility INFO Line: 612-348-3777 Fax: 612-348-8532 www.hennepin.us I have enclosed two original copies of the ERF grant contract for the Electronic Industries project. Please have the contracts signed and return them to me, together with the applicable documentation of authority. I will then get the necessary signatures for contract execution and return one fully executed copy to you. Costs eligible for reimbursement may not be incurred until after the contract has been fully signed and executed by the Clerk of the County Board. In the past it has taken up to four weeks from the time we receive the signed contract from the Grantee until the contract has been fully executed. If you have any questions, please contact me at (612) 348-8993. S .1 ce ly Andrew Leith, Ph.D., P.G., CHMM Senior Environmentalist Enc. September 13, 2005 Dr. Andrew Leith, P.G., CHMM Senior Environmentalist Hennepin County Department of Environmental Services 417 North Fifth Street Minneapolis, MN 55401 RE: ERF Grant - Electronic Industries Dear Dr. Leith: Please find enclosed two (2) original copies of the ERF grant contract for the Electronic Industries project. The Mayor has executed both copies. Once you have had the opportunity to have the documents executed by the appropriate Hennepin County officials, please forward one (1) original copy to the city for its records. Thank you for your continued cooperation on this project and we look forward to a successful project that will benefit the residents of New Hope and all of Hennepin County. If you have any questions, please do not hesitate to contact me at 763-531-5137, Very truly yours, s ehPSidle s Community Development Specialist Kirk McDonald Director of Community Development Enclosure(s) cc: Daryl Sulander, Director of Finance Steven A. Sondrall, City Attorney Clarissa Klug, Assistant City Attorney Valerie Leone, City Cleric 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 Contract No. A051168 ENVIROXINrIENTAL RESPONSE FUND GRANT AGREEMENT BETWEEN THE CITY OF NEW HOPE AND HENNEPIN COUNTY DEPARTMENT OF ENVIRONMENTAL SERVICES This Agreement is made on q /;?—ds by and between the County of Hennepin, State of Minnesota ("County" or "Grantor" at A2300 Government Center, Mpls, MN 55487) by and through its Department of Environmental Services ("Department") and the City of New Hope, 4401 Xylon Avenue North, New Hope, Minnesota 55428 ("Grantee"). Grantee has made application to the County for a grant to be used for environmental monitoring and monitoring well relocation at the Electronic Industries property, located at 7500 — 7528 42nd Avenue, in New Hope, which application is incorporated into this Agreement by reference. In consideration of the mutual promises set forth below, the parties agree as follows: 1. GRANT AMOUNT AND COMPLETION The County shall grant to the Grantee a sum not to exceed Eighteen Thousand Seven Hundred and Fifty Dollars ($ 18,750.00) which funds shall be only for expenses incurred in performing activities specified in the Application and as may be further described in Exhibit A to this Agreement or as approved by County staff. Approved assessment and/or clean-up activities as may be described in the application and Exhibit A are referred to herein as the "Project". Administrative costs incurred by the Grantee are not eligible for reimbursement via this Agreement. Grantee agrees to complete the Project within two (2) years of execution of this Agreement and within the terms stated herein. Any material change in the scope of the Project, including time schedule and budget, must be approved in writing by the County. Funds made available pursuant to this Agreement shall be used only for expenses incurred in performing such purposes and activities described in the Application and this Agreement. 2. ACCOUNTING AND RECORD KEEPING For all expenditures of funds made pursuant to this Agreement, the urantee shall keep rinanciai records including properly executed contracts, invoices, and other documents sufficient to evidence in proper detail the nature and propriety of the expenditures. Accounting methods shall be in accordance with generally accepted accounting principles. Grantee agrees that the County, the State Auditor, or any of their duly authorized representatives at any time during normal business hours, and as often as they may reasonably deem necessary, shall have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records, etc., which are pertinent to the accounting practices and procedures of the Grantee and involve transactions relating to this Agreement. Such materials shall be maintained and such access and rights shall be in force and effect during the period of the Agreement and for six (6) years after its termination or cancellation. 3. PAYMENT/DISBURSMENT SCHEDULE Grantor will disburse funds to Grantee pursuant to this Agreement, based on a payment request form provided by the Grantor, submitted by the Grantee and approved by the Grantor. Payment requests can be submitted once per month and must be accompanied by supporting invoices that relate to activities in the approved Project budget. Subject to verification of adequacy of a written disbursement request and approval of consistency with this Agreement, the Grantor will disburse the requested amount to the Grantee within four (4) weeks after receipt of a written disbursement request. 8. INDEMNIFICATION The Grantee agrees to defend, indemnify and hold harmless, the County, its officials, officers, agents and employees from any liability, claims, causes of action, judgments, damages, losses, costs, or expenses, including reasonable attorney's fees, resulting directly or indirectly from any act or omission of the Grantee, its contractors or subcontractors or anyone directly or indirectly employed by them, and/or any party that directly or indirectly benefits from the activities specified in this Agreement, and/or anyone for whose acts and/or omissions they may be liable in the performance of the activities specified in this Agreement and against all loss by reason of the failure of the Grantee to perform fully, in any respect, all obligations under this Agreement. 9. INSURANCE In order to protect the County and those listed above under the indemnification provision, the Grantee agrees at all times during the term of this Agreement and beyond such term when so required, to have and keep or cause to have and be kept in force, and to cause all contractors to do likewise, the following insurance coverages under either a purchased insurance or self-insurance program: 1. Commercial General Liability on an occurrence basis with Contractual Liability Coverage: Limits General Aggregate $1,000,000 Products -Completed Operations Aggregate 1,000,000 Personal and Advertising Injury 1,000,000 Each Occurrence — Combined Bodily Injury and Property Damage 1,000,000 Automobile Liability — Combined single limit each occurrence for 1,000,000 bodily injury and property damage covering owned, non -owned, and hired automobiles. Workers' Compensation and Employer's Liability: a. Workers' Compensation Statutory If the contractor is based outside the State of Minnesota, coverage must apply to Minnesota laws. b. EmpIoyer's Liability. Bodily Injury by: Accident — Each accident Disease — Policy Limit Disease — Each Employee 100,000 500,000 100,000 Professional Liability — Per Claim and Aggregate 1,000,000 The insurance must be maintained continuously for a period of two years after the termination of this Agreement. The Grantee shall require that any independent contractors rendering assessment and/or clean-up activities under this Agreement furnish certificates of insurance to the Grantee of the insurance coverages listed above, and provide updated certificates as coverages expire. An umbrella or excess policy over primary liability coverages is an acceptable method to provide the required insurance limits. The above establishes minimum insurance requirements. It is the sole responsibility of the Grantee to determine the need for and to procure additional insurance which may be needed in connection with this Agreement. Copies of policies shall be submitted to the County upon written request. The Grantee shall not commence work until it and any contractors have obtained the required proof of insurance which clearly evidences required insurance coverages. COUNTY BOARD APPROVAL GRANTEE, having signed this agreement, and the Hennepin County Board of Commissioners having duly approved this agreement on the 3 0 of AV b 0-IM05, and pursuant to such approval , the proper County officials having signed this agreement, the parties hereto agree to be bound by the provisions herein set forth. Reviewed by the County Attorney's Office Assistant County Attorney Date: COUNTY OF HE1N'NEPIN S A OF 'NE By. V i Lu Chair of Its County Board Date: ATTEST:' A BY: Assistant County Admimstrator, Public Works Date: 9 %Q dd Recommended ar App" (�:e I . A r ,I f By: -,L -P4— DWctor-, Detent of Environmental Services Date: '' GRANTEE The Grantee certifies that the person who executed this Agreement is authorized to do so on behalf of the Grantee as required by applicable articles, bylaws, resolutions or ordinances.* Name: CITY OF NEW HOPE By: Date: *GRANTEE shall submit applicable documentation (articles, bylaws, resolutions or ordinances) that confirms the signatory's delegation of authority. This documentation shall be submitted at the time Grantee returns the Agreement to the County. Documentation is not required for a sole proprietorship. Exhibit A City of New Hope Project Summary: The 0.7 acre project site is vacant former industrial land. Contaminated soil and ground water at the site have been remediated. Eight office condominiums and a restaurant will be constructed on the property. An ERF grant of $18,750 is awarded to the City of New Hope for monitoring well replacement and on- site environmental monitoring during construction. The following costs are based on a budget submitted by the Grantee. Modifications must be approved in writing by the Grantor. Approved Budget for Electronic Industries: Monitoring, Well Abandonment and Relocation 18,750 Total: $ 18,750 Required Documentation to be Submitted to Hennepin County: Consultant/Contractor/MPCA Invoices Copies of Well Logs Annual Project Progress/Summary Report(s). E-1 5 W 0 A I ^ � I � I � ; y v �d a -d ^ 0 � o bA 'O z zo o o U P4 a � m F-+ O I O � � 0 A HENNEPIN COUNTY ENVIRONMENTAL RESPONSE FUND Cumulative Progress Report ❑ Annual Report Due: July 25 ❑ Final Report Section one: Background Information 1. Contract Number 2. Grantee Name 3. Grant Term 4. Project 5. Period covered from Grant Award through 6. Amount of ERF funds received through the end of the period $ 7. Name and title of person completing this report 8. Phone number of person completing this report 9. Signature of person completing report (This signature certifies that the information contained in this report is true and correct). Section two: Financial Report by Budget Item 10. Approved 11. Approved Budget Item Cost 13, Actual Expenditure To Date 12. Percent per Funding Source Complete ERF Other i i I 14. Comments Section three: General Information 15. Has all contracted work that will have received County dollars complied with all applicable state and federal laws and regulations regarding employment and workplace safety, and with Hennepin County's policies against discrimination? Explain 16. When is assessment/cleanup of the site expected to be complete? 17 18 When is the redevelopment of the site expected to be complete? Have there been any changes in the scope of the project (increase/decrease in affordable housing units, change from the original site development plan, etc.) from that specified in the application? If so, please explain. 19. Are there any other comments, problems or changes from the application that you would like to report on? Please explain. Contamination Cleanup Grant Program Progress Report Instructions Please check "Annual Report" or "Final Report' as appropriate Section One: Background Information Item 1: Enter the contract number found on page 1 of the grant agreement. Item 2: Enter the grantee name. Item 3: Enter the month, day and year of the beginning and ending of the grant period as found in the grant agreement. If. this time period has been revised, enter the dates set forth in the grant adjustment notice. Item 4: Enter the project title (site name). Item 5: Enter the month, day and year through which you are reporting. Item 6: Enter the total amount of ERF funds received from Hennepin County from the beginning of the grant through the date indicated on Item 5. Item 7: Enter name and title of person completing report. Item 8: Enter the phone number of the person indicated in Item 7, Item 9: Enter the signature of the person indicated in Item 7. Section Two: Financial Report by Activity Item 10: Enter the approved budget items, which are specified in Exhibit A of the grant agreement. Or, if these items, have been amended, enter the most recently approved items. Item 11. Enter the approved budget for the respective items which are specified in Exhibit A of the grant agreement. Or, if these costs have been amended, enter the most recently approved costs. Item 12: Enter the percentage of the activity listed in Item 10 that is completed as of the date of this report. Item 13: Enter the amount of actual expenditures per funding source (costs incurred and bills paid as of the end of the report period for each activity). If necessary, please state amount and source of other funds used to complete specific task. Item 14: Enter comments on the progress of the project activity. Completing Item 14 is not optional. Section Three: General Information Item 15: Indicate whether the County procurement process has been complied with in the awarding of subcontracts for project activities which use County funds. Briefly explain how you complied. Item 16: State when the entire cleanup of the site is expected to be completed, or when the site assessment will be completed. Item 17: State when the redevelopment is expected to be completed. Item 18: Please state any changes in the scope of the redevelopment. This includes, but is not limited to: affordable housing units, etc. Please note that Item 18 should only include REDEVELOPMENT information. Pursuant to your grant agreement, any material changes in the scope of the assessment/cleanup, its budget or completion date must be approved in writing by the grantor (through a grant adjustment notice). Item 19: Explain any changes in the overall project that differ from the information provided in your application or most recently approved grant adjustment notice. EDA Request for Action Originating Department Approved for Agenda Agenda Section Community Development June 26, 2006 Economic Development Authority Item No. By: Kirk McDonald, Director CID r Curtis Jacobsen, CDSpecialist � y: 4 Resolution approving and authorizing signing of the purchase and development agreement between Q Village, LLC and the Economic Development Authority in and for the City of New Hope, Minnesota. (Improvement Project No. 740) Requested Action Staff requests that the Economic Development Authority review, approve and authorize signing of the purchase and development agreement with Q Village, LLC, for the EDA owned site known as 42nd and Quebec. Policy/Past Practice The EDA has entered into purchase and development agreements for the sale of EDA owned parcels previously following public hearings as required by law. The public hearing for the sale of this piece of property was held on June 13, 2005. Background On May 22, 2006, the New Hope City Council gave site plan and preliminary plat approval to the development proposed for 42nd and Quebec. The city attorney and staff have worked on negotiating the purchase and development agreement based on the original draft of said document from 2005. The document is in its final form and staff recommends approval. Funding No new funding is required from the EDA related to this project. With the completion of this sale the EDA will receive $510,000.00 for the sale of the land. Attachment(s) • Resolution • Purchase and Development Agreement Motion by ,,(jZl'1 /ti Second by To: 04,-0-5 IA RFA\ PLANNING \ PLANNING \ Q & R- Purchase and Development Agreement -42nd and Quebec. doc EDA RESOLUTION NO. 06-05 Resolution approving and authorizing signing of the purchase and development agreement between Q Village, LLC, and the Economic Development Authority in and for the City of New Hope, Minnesota WHEREAS, the Economic Development Authority of and for the city of New Hope, Minnesota, desires to redevelop the property commonly known as 42nd and Quebec; and WHEREAS, the city has through the Planning Commission and the City Council reviewed the development plans and the plat for the redevelopment of said site; and WHEREAS, the plans.and plat for the redevelopment of said site have been found to be acceptable and in compliance with the city's comprehensive plan. NOW, THEREFORE, BE IT RESOLVED, by the Economic Development Authority of and for the city of New Hope, Minnesota, to approve and authorize as follows: 1. Approve the purchase and development agreement for the sale of the property. 2. Authorize the signing of the purchase and development agreement by the President and the Executive Director of the Economic Development Authority. Adopted by the Economic Development Authority of and for the city of New Hope, Minnesota, this 26th day of June, 2006. 1 A'eILA President Pro tem Attest: r ,�Executive Director PURCHASE AND DEVELOPMENT AGREEMENT This Purchase and Development Agreement ("Agreement") is made by and between Quebec Properties, LLC a Minnesota limited liability company (`Buyer") and the ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF NEW HOPE, MINNESOTA, ("Seller"). In consideration of the covenants and agreements of the respective parties as hereinafter set forth, Seller shall sell and Buyer shall purchase those certain parcels of real estate located in the City of New Hope and more commonly known as 7500 - 42°d Avenue North, 7516 - 42"d Avenue North and 7528 - 42nd Avenue Forth, which parcels are legally described on Exhibit A attached hereto and made a part hereof (the "Property"). 1. Purchase Price. The purchase price for the Property shall be Five Hundred Ten Thousand and No/ 100 Dollars ($510,000.00) (the "Purchase Price"), which the Buyer shall pay as follows: an initial payment of Seven Thousand Dollars ($7,000.00) (the "Earnest Money"), which sum shall be deposited with Old Republic Title Insurance Company (the "Escrow Agent", also referred to hereafter as the "Title Company"), and Five Hundred Three Thousand Dollars ($503,000.00) payable by wire, cashier's check or cash on the "Date of Closing", as that term is defined in Section 4 below. The Buyer acknowledges and agrees that, with the exception of termination or cancellation of this Agreement due to breach by the Seller, $5,000.00 of the Earnest 'Money shall be deemed non-refundable. Seller acknowledges receipt of the Earnest Money Payment. 2. Title Conveyed. On the Date of Closing, the Seller shall deliver a Limited Warranty Deed (the "Deed") to the Buyer conveying marketable title of record, free and clear of liens, encumbrances, assessments restrictions, except for the "Permitted Exceptions", as that term is defined below. 3. Representations and Warranties by Seller. The Seller represents to the Buyer that: a) The Seller owns the Property and has the right to sell the same, and that there are no unrecorded contracts, leases, easements or other agreements or claims of any third party affecting the use, title, occupancy or development of the Property, and no person, firm or entity has any right of refusal, option or other right to acquire all or any part of the Property except the following: A Purchase and Sale Agreement executed by Frey Development, Inc. on November 5, 2003, and by the Seller on November 24, 2003, which Agreement relates only to the portion of the Property legally described as "All of the following described parcel except for the West 163 feet thereof. That part of Lot 5, Auditor's Subdivision Number 324, Hennepin County, Minnesota described as follows: Commencing at the point of intersection of the North line of Rockford Road and the East line of said Lot 5; thence North along said East line a distance of 350 feet; thence West parallel with the North line of Rockford Road a distance of 320.4 feet more or less, to a point 48.95 feet East of the West line of said Lot 5, as measured at right angles thereto thence South parallel with the West line of said Lot 5 a distance of 350.0 feet to the North line of Rockford Road; thence Easterly along the North line of Rockford Road a distance of 320.4 feet, more or less to the point of beginning." b) The Seller shall cooperate with the Buyer in the Buyer's efforts to obtain the approval of all public or governmental authorities as to ail matters relating to zoning, subdivision, lot splits, special use permits, access, or similar requirements for an approximately 17,400 square foot office and service retail building on the east half of the Property and an approximately 11,500 square foot retail building on the west half of the Property, together with all necessary site improvements upon the Property (collectively, the "Improvements"). For the purposes of this Agreement the Buyer may sell or lease units or spaces within either building. The Buyer shall provide any necessary common interest community or leasehold management documents required to meet all required regulatory and governmental approvals. Seller shall join in such applications and other documents, including access and parking easements, as may be necessary or required by governmental or regulatory bodies to develop the Property for the Improvements. Notwithstanding any language in this Agreement to the contrary, Seller's obligations under this Section 3(b) shall not be construed to limit in any way the reasonable exercise of the discretion of the City of New Hope in considering any submittal or application relating to development of the Property. C) The Seller's warranties and representations contained in this Subsection 3 shall survive the delivery of the Deed. d) The Property is subject to a Declaration of Environmental Restrictive Covenants dated November 24, 2003, which Declaration is recorded with the Office of the Hennepin County Recorder as Document Number 8298194 (the "Environmental Restrictive Covenants"). The Seller has not received any notice from any person or entity as to a breach of the terms contained in the Environmental Restrictive Covenants. e) The Seller has not received any notice from any governmental authority concerning any eminent domain, condemnation, special taxing district, or rezoning proceedings. f) The Property is not subject to any assessment or valuation agreement that is not listed as one of the Permitted Exceptions, as defined in Section 4 below, and the Seller has not received any notice of actual or threatened special assessments or reassessments of the Property. g) To the best of the Seller's knowledge without inquiry there are no wells or septic systems on the Property, except for such existing environmental monitoring wells installed and maintained by Seller. h) Seller represents that it has the requisite power and authority to enter into and perform this Agreement and those Seller's Closing Documents signed by it; such documents are not in violation of any judgment, order or decree of any Court or arbitrator to which Seller is a party and such documents are and will be valid and binding obligations of Seller, and are enforceable in accordance with their terms. i) Seller is not a "foreign person," "foreign partnership," "foreign trust" or "foreign estate" as those terms are defined in Section 1445 of the Internal Revenue Code. j} Except as previously disclosed to the Buyer, the Seller has not received notice of any action, litigation, investigation, condemnation or proceedings of any kind pending or threatened against Seller or any portion of the Property. k) To the best knowledge of Seller without inquiry, no above ground or underground tanks are located in or about the Property. The Seller agrees that any breach of the forgoing representations shall be grounds for Buyer to terminate this Agreement. In the event of such termination, the Earnest Money shall be returner x Wherever herein a representation is made "to the best knowledge of Seller," such representation is limited to the actual knowledge of the President and/or Executive Director of Seller. SUBJECT TO THE FOREGOING REPRESENTATIONS BY THE SELLER, THE BUYER HEREBY ACKNOWLEDGES THAT THE BUYER IS PURCHASING THE PROPERTY IN "AS IS" CONDITION AS TO THE USE OF THE PROPERTY. 4. Conditions of Offer. The Buyer's obligation to close the transaction contemplated by this Agreement is subject to the satisfaction of the following conditions on or before August 14 , 2006: a) The Buyer shall, pursuant to the terms of Section 7 below, have reasonably determined that the Property is marketable. In making such determination the Buyer specifically agrees and acknowledges that title to the Property is currently, and if the Buyer proceeds with closing will be, subject to the following title matters (collectively, the "Permitted Exceptions"): (i) any lien of real estate taxes not yet due and payable in 2006; (ii) rights-of-way for drainage ditches, drain tiles, feeders, laterals and underground pipes, if any; (iii) all dedicated rights -of way; (iv) the Environmental Restrictive Covenants, and (v) all other casements, restrictions, covenants and agreements which are depicted by the public records, so long as the Buyer's intended use of the Property is not materially impaired by such matters of record as determined by the Buyer in Buyer's reasonable discretion. The Buyer agrees and acknowledges that for the purposes of this Agreement the Environmental Restrictive Covenants shall not be considered to "materially impair" the Buyer's intended use of the Property. b) Obtaining approval for ingress and egress to the Property and all zoning changes, including rezoning, variances, special use permits, subdivisions and any other governmental permits, consents and authorizations, which are necessary or desirable for Buyer's intended use of the Property, including, without limitation, final building permits. e) Obtaining financing under terms and conditions reasonably acceptable to the Buyer. d) The Buyer and the Seller agreeing to reasonable terms and provisions for cross easements in favor of the Buyer for construction and maintenance of access and parking, which easements shall additionally provide for shared access and parking for all owners and tenants of the Property. e) Reasonably acceptable direct access to and from the Property via publicly dedicated streets. If any condition of this Section 4 remains unsatisfied or has not been waived by the Buyer on or before August 14, 2006 or the date of closing, whichever occurs sooner, this Agreement shall become null and void, neither party shall have any further obligation to the other under this Agreement (other than rights or obligations under this Agreement which provide for continued exercise following the cancellation or other termination of this Agreement), and $2,000.00 of the Earnest Money shall be refunded. With respect to the above-described conditions in favor of the Buyer, the Buyer shall give notice of its desire to terminate this Agreement for failure to satisfy or fulfill any of said conditions on or before August 14, 2006, or the date of closing, whichever occurs sooner, but if no notice of termination is given within the specified time period with respect to any of the conditions listed above, such condition shall be deemed to be waived by the Buyer and the Buyer shall proceed to close this transaction in accordance with the other terms and conditions of this Agreement. The Buyer hereby acknowledges that the Buyer has been fully informed of the ground water and soil contamination existing on the Property and has had ample opportunity to investigate and inform itself regarding these circumstances. The Buyer further acknowledges that this contamination does not render the Property unsuitable for development in connection with the Buyer's intended use of the Property. 5. Survey and Plat. The Seller has previously delivered to the Buyer a survey of the Property (the "Survey"). The Buyer acknowledges receipt of the survey and agrees and acknowledges that the same was prepared by a duly licensed surveyor in accordance with the current minimum standard detail requirements for ALTA/ASCM land title surveys. The Buyer agrees that the Survey shall be used for preparation of the final plat of the Property, and agrees to pay all costs related to platting the Property. The Seller agrees, however, to assist with final platting activities as needed. The obligations of the Buyer and Seller regarding platting shall survive the Closing and the delivery of the Deed. b. Access Prior to Closing. The Buyer and its employees, agents, and contractors shall have the right to enter upon the Property for the purpose of conducting examinations, making measurements, and performing such tests or surveys thereon (including soil borings) as the Buyer desires. The Buyer's access to the Property and actions thereon shall be subject to Seller's approval, the approval of the Minnesota Pollution Control Agency and, if requested by the Seller, a written access agreement which will not materially interfere with the Buyer's testing and inspection of the Property. The Seller agrees not to unreasonably withhold its approval for Buyer to have access to the Property. The Buyer agrees to promptly repair or restore any damages caused by the Buyer or its employees, agents, or contractors during the course of making such examination, measurements or tests, with repairs to be performed in any reasonable manner specified by the Seller or the Minnesota Pollution Control Agency and the Buyer further agrees to indemnify and hold the Seller (and the Seller's employees, agents, consultants and officers) harmless from and against any lien, claim, loss, liability, cosi, damage or injury asserted against or suffered by the Seller or the Property, including but not limited to attorneys' fees, related to any entry by the Buyer, its assigns or any of its agents, representatives, contractors or employees, as related to this Agreement. The repair and indemnification obligations recited in this Section 6 shall survive closing or the cancellation or other termination of this Agreement. 7. Title Connnitment and Policy. a) The Seller shall deliver to the Buyer a Commitment for an ALTA Form B owner's policy of title insurance (the "Commitment") issued by the Title Company and covering title to the Property, in the amount of the Purchase Price. The Seller agrees to pay the costs associated with the preparation and issuance of the Commitment; the Buyer shall pay the premium for the owner's policy, if any, and the lender's policy, if any, along with the price for any endorsements requested by the Buyer or the Buyer's lender. b) The Buyer shall have fifteen (15) days after receipt of the Commitment to review and approve the title to the Property and to object to any exception to title that is disclosed in the Commitment and Survey or which is otherwise discovered by the Buyer. In the event that the Buyer does not within such fifteen (15) day period give notice to the Seller objecting to any such exceptions, then all such exceptions shall be deemed approved and shall be considered a part of the Permitted Exceptions. If the Buyer timely objects to an exception to title, then on or before the tenth (10) day following the Buyer's notice of exception, the Seller shall remove the exception or notify the Buyer that the Seller is unwilling or unable to remove the exception. Within five (5) days of any notice by the Seller that the Seller it is unable to remove an exception to title, the Buyer may elect by notice to the Seller to either: (i) terminate this Agreement, whereupon $2,000.00 of the Earnest Money shall be returned to the Buyer and the parties shall be released from all further obligations hereunder except obligations under this Agreement which provide for continued exercise following the cancellation or other termination of this Agreement; or (ii) elect to have this Agreement remain in effect, in which event the Buyer will be deemed to have approved the previously -cited exception and the same shall be considered part of the Permitted Exceptions. 8. Closing. a) CIosing shall occur within ten (10) business days atter all the conditions of the Agreement have been satisfied, and in no event later than Augustl4, 2006 (the "Date of Closing" or "Closing"), unless both parties agree, in writing, to an earlier or later time. b) Closing shall, at the Seller's sole option, occur at the Escrow Agent's office, the Seller's office, or the office of the Seller's attorney. C) The Seller shall deliver at closing the following executed and acknowledged documents: (i) the Deed; (ii) affidavit(s) in industry -standard form(s) stating that possession of the Property is being delivered free of any mechanic's or statutory liens in connection with work performed prior to closing; the Seller is not a foreign person or entity; and addressing such other matters as the Buyer may reasonably require; and (iii) a Cancellation of Purchase Agreement, in form reasonably acceptable to the Buyer, terminating the agreement between the Seller and Frey Development, Inc. cited in Subsection 3(a) above with respect to a portion of the Property; (iv) easement or easement agreements as outlined in Section 4(d) above; (v) an Assignment of the Environmental Restrictive Covenants; and (vi) A "bring down certificate" in a form substantially similar to that attached to this Agreement as Exhibit B. d) The Buyer shall deliver at closing the following executed and acknowledged documents: (i) a Cancellation of Purchase Agreement, in form reasonably acceptable to the Buyer, terminating the agreement between the Seller and Frey 6 Development, Inc. cited in Subsection 3(a) above with respect to a portion of the Property; (ii) easement or easement agreements as outlined in Section 4(d) above; and (iii) an Assignment of the Environmental Restrictive Covenants. 9. Payments/Prorations. The Seller shall, on or before the Date of Closing, pay for the costs relating to the Commitment. At closing, the Seller shall pay the cost of recording any instrument (other than the Deed) necessary to place title in the condition required under this Agreement, State deed tax, and all special assessments levied, pending or constituting a lien against the Property as of the Date of Closing, including without limitation any installments of special assessments and interest payable with general real estate taxes in the year of closing. The Seller will pay general real estate taxes payable in the year prior to the year of closing and all prior years. The Buyer shall pay at closing the cost of the owner policy or lender policy of title insurance (if any), sales tax (if any) resulting from the Closing, and the fees required for recording the Deed. The Seller and the Buyer each will pay one-half of customary closing fees. General real estate taxes payable in the year of closing shall be prorated by the Seller and the Buyer as of the closing date based upon a calendar year. 10. Condemnation. If, prior to the Date of Closing, all or any part of the Property shall be condemned by governmental or other lawful authority, the Buyer shall have the option of (a) completing the purchase contemplated by this Agreement, in which event all condemnation proceeds or claims thereof shall be assigned to the Buyer, or (b) canceling this Agreement, in which event the Earnest Money shall be refunded and this Agreement shall be terminated with neither party having any rights against or obligations to the other except rights or obligations under this Agreement which provide for continued exercise following closing or cancellation or other termination of this Agreement, and the Seller shall be entitled to any and all condemnation proceeds. 11. Notices. All notices required hereunder shall be in writing and shall be deemed to have been duly given and received (a) two (2) business days after depositing of the same in the mail if sent by regular, registered or certified mail, postage prepaid, to the party to whom directed, at such party's address herein set forth; (b) upon delivery, or attempted delivery if delivered by overnight courier service or hand delivery; (c) or upon transmission if successfully transmitted by facsimile. Any party shall have the right to designate any other address or facsimile number for notice purposes by written notice to the other party in the manner aforesaid. The addresses of the parties are as follows: SELLER: City of New Hope Dan Donahue, City Manager 4401 Xylon Avenue North New Hope, MN 55428-4898 Facsimile No.: 309-688-9699 with copy to: Steven Sondrall, New Hope City Attorney Jensen & Sondrall, P.A. 8525 Edinbrook Crossing, Suite 201 Brooklyn Park, MN 55443 Facsimile No.: 763-493-5193 BUYER: Brad Nordgaard Quebec Properties, LLC 1915 Plaza Drive, Suite 201 Eagan, MN 55122 Facsimile No.: (651) 289-5531 with copy to: Richard A. GIassman Glassman Law Firm 701 Fourth Ave. S., Suite 500 Minneapolis, MN 55415 Facsimile No.: 763-5446427 12. Broker. The Buyer represents and warrants that it will pay all brokerage charges incurred in connection with this transaction as a result of activities authorized by the Buyer, with all such charges that have been invoiced as of the Date of Closing to be paid at Closing. In addition, Buyer will pay at Closing a special one-time consulting fee of $30,000.00 to the consultant(s) named by the Seller as performing prior retail analyses and tenant marketing. The fees and commissions required by this Section 12 shall be paid at the Closing, and not sooner. The Buyer obligations recited in this Section 12 shall survive the Closing or the cancellation or other termination of this Agreement. Buyer represents that the principal of Buyer is a licensed real estate broker. 13. Remedies. If the Buyer defaults under this Agreement, the Seller shall have the right to terminate this Agreement by giving written notice to the Buyer as provided by law. If the Buyer fails to cure such default as provided by law, this Agreement will terminate, and upon such termination the Seller will retain the Earnest Money and neither party shall have any rights or obligations against the other except rights or obligations under this Agreement which provide for continued exercise following the cancellation or other termination of this Agreement. If the Seller defaults under this Agreement, the Buyer shall have the right to seek specific performance and recover as damages from the Seller all of the Buyer's reasonable out-of-pocket costs and fees or terminate the Agreement and receive the Earnest Money paid to the Escrow Agent. 14. MPCA VIC Application and Letter. The Seller shall apply for and obtain written assurance from the MPCA that the Buyer is not responsible for cleanup of the hazardous materials that remain in the undisturbed soil and water of the Property (a "No Association" assurance letter). This letter is to be obtained through application to the Minnesota Pollution Control Agency ("MPCA") Voluntary Investigation and Cleanup ("VIC") program. Notwithstanding the foregoing language, the Seller shall have no responsibility for applying for a "No Association" assurance letter in the event that the Buyer fails to provide the Seller, a sufficient period before the Date of Closing, with the "Required Information" (as that term is defined below). The Seller's failure to provide a "No Association" assurance letter in accordance with the provisions of this Section 14 shall be grounds for the Buyer to terminate this Agreement. In the event of such termination, the Earnest Money shall be returned and neither party shall have any rights against or obligations to the other except those rights or obligations under this Agreement which provide for continued exercise following the cancellation or other termination of this Agreement. 15. Required Information. The Buyer is required to provide the Seller, consistent with Section 14 above, with the following information at the Buyer's sole expense so that the Seller can complete the VIC application (the "Required Information"): a) Site plan and associated text describing the nature of business activities anticipated after redevelopment, including activities from which Buyer wishes to obtain MPCA "No Association" letter(s); b) Grading plan; c) Geotechnical drilling and/or soil testing plan; d) Subsurface utilities plan; e) Monitoring and Maintenance Plan: f) Restoration Plan; g) Vapor collection system design drawings; h) Construction time line; and i) Any other information required for the completion of the VIC application that the Buyer otherwise needs to prepare in connection with its development of the Property. The Buyer's failure to provide the Required Information in accordance with the provisions of this Agreement shall be grounds for the Seller to terminate this Agreement. In the event of such tennination the Seller shall be allowed to retain the Earnest Money and neither party shall have any rights against or obligations to the other except those rights under this Agreement which provide for continued exercise following the cancellation or other termination of this Agreement. Prior to initiating any earth -moving activities, Buyer shall provide Seller a copy of the MPCA- required Storm Water Pollution Prevention Plan (SWPPP) for City review and approval. Buyer shall be responsible for compliance with all federal, state and local regulations regarding construction storm water, including obtaining a MPGA Construction Storm Water permit. All on-site work performed by Buyer or its employees, agents or contractors shall be performed in accordance with 24 CFR 1410.120. Buyer shall be responsible for all site safety programs for Buyer or its employees, agents or contractors. 16. Environmental Monitoring During Construction. The parties acknowledge that on- site monitoring of certain construction activities by an environmental professional designated by Seller (the "EP") will be required after closing. Seller shall be responsible for the cost of the EP. Both parties agree, consistent with the requirements of this Agreement, to provide and pay for their own field environmental technician (the FET") prior to the start of earth -moving activities at the site. Both FET's must be on-site during: a) Grading activities near the Restricted Area (as defined in the Environmental Restrictive Covenants); b) Subsurface excavation of utilities; c) Dewatering of excavated areas due to the presence of subsurface water or as a result of unusual rainfalls during construction that inundate the area; d) Installation and startup of vapor collection system; and C) Geotechnical drilling and/or soil testing activities. Both FET's will monitor excavated soils and accumulated waters for the presence of contaminants. If contaminated soils are detected, and the Buyer's FET determines that the soils cannot reasonably be reused within the excavated area, the contaminated soil will be stockpiled by the Buyer separately from clean soils, and the contaminated soils will be removed from the Property for disposal at a facility reasonably agreeable to the Seller's EP. If Buyer's FET determines accumulated waters are contaminated, the Buyer will arrange adequate means and methods of cleanup or disposal, reasonably agreeable to the Seller's EP, which may include discharge of such waters into Seller's storm water or sanitary sewer systems. At the conclusion of on-site monitoring activities, the Seller's FET will provide a letter report to both the Seller and the Buyer summarizing the Seller FET's activities and observations. The Buyer acknowledges and agrees it has sole responsibility for all decisions relating to the reuse or disposal of contaminated soils and water at the Property in compliance with the NTCA's restrictive covenants and all other MPCA regulations. Seller's obligations under this Section shall be limited to monitoring and reporting as referenced above. Both parties' obligations under this Section 16 shall survive delivery of the Deed. 17. Environmental Monitoring Costs and Responsibilities. The Buyer shall be responsible for providing the Seller with reasonable notice of the activities outlined in Section 16 so that the Seller will be able to provide an appropriate FET. Buyer shall be responsible for all costs associated with the stockpiling, remediation, removal, and/or eventual off-site disposal of contaminated soils and waters at the Property in compliance with the MPCA's restrictive covenants and all other MPCA regulations. The Buyer's obligations under this Section 17 shall survive delivery of the Deed. 18. Permanent Environmental Monitoring and Maintenance. Any permanent structures erected at the Property that will be occupied by workers of any kind must have a subsurface vapor collection system designed and installed beneath the structure to collect potential organic 10 vapors and prevent such vapors from accumulating in the structure. The vapor collection systems must be "active' vapor collection systems (i.e. electrical fans will continuously draw air from the collection system and discharge the air through roof vents). A vapor collection system implementation work plan shall be developed by the Buyer in conjunction with the EP, and then reviewed and approved by the MPCA prior to installation of the system. The work plan shall include a detailed system design, and a monitoring and maintenance plan for the system. Buyer shall be required to monitor and maintain the system on an ongoing basis and shall be designated as the party responsible for said obligations in the monitoring and maintenance plan. All monitoring wells within the Property shall be continuously maintained by Seller before construction activities and Buyer shall have, no responsibility or costs associated with such permanent monitoring well systems other than damage to, relocation of or abandonment of monitoring wells during and after construction activities. However, Seller agrees to provide Buyer with any of Seller's unused grant money from its Hennepin County Environmental Response Fund (EFP) grant for qualifying expenses of Buyer relating to well abandonment and/or relocation. The Buyer and Seller obligations under this Section 18 shall survive delivery of the Deed and shall be included in the Deed. 19. Future Access and Utility Easements. The Buyer hereby represents and warrants that the Buyer will, if requested by the City of New Hope, provide the City with access and utility easements in connection with the Buyer's future development of the Property and as provided for by New Hope's City Code, regulations and past practices. The Buyer further represents and warrants that any such easements shall be provided at no cost to the City. The Buyer representations and warranties contained in this Section 19 shall survive delivery of the Deed. 20. Assignment. The Buyer may assign its rights and obligations hereunder only with the prior written consent of the Seller, which consent may be granted or withheld by the Seller in its sole discretion. 21. Post -Closing Construction/Revesting of Title. The Buyer agrees and covenants that the Buyer will construct, or cause to be constructed, on the Property all structures necessary for the Improvements, with materials and plans to coincide with those approved by the City of New Hope as part of the governmental approval process cited in Subsection 3(b) above. This covenant shall survive the delivery of the Deed. Construction of the Improvements must be substantially completed within 180 days after construction is commenced on either of the buildings that comprise the Improvements. Buyer shall continence construction on each building and the entire site improvements when 50% of either building is either pre -leased or pre -sold, but in no case later than '20 — . If the Improvements are constructed in two phases, the covenant contained herein shall applseparately to each building. Construction will be considered substantially complete when a final certificate of completion has been issued for each building of the Improvements. Promptly after substantial completion of the Improvements the Seller will at the request of the Buyer provide the Buyer with a certificate of completion in form and substance reasonably acceptable to the Buyer. Said certificate shall be (and it shall be so provided in the Deed and in the certificate itself) a conclusive determination of satisfaction and termination of the agreements and covenants of the Buyer (and its successors and assigns) to construct the Improvements and satisfaction of the date(s) for completion thereof. If the Seller shall refuse or fail to provide a certificate as required by this Section 21 then the Seller must, m within thirty (30) days after written request by the Buyer, provide the Buyer with a written statement outlining in reasonably adequate detail the reasons that the Seller is of the opinion that the Buyer has failed to complete the Improvements in accordance with the provisions in this Agreement, or the reasons the Seller is of the opinion that the Buyer is otherwise in default. A writing required of the Seller under this Section 21 must additionally outline the measures or acts that will be necessary, in the opinion of the Seller, for the Buyer to take or perform in order to obtain a certificate of completion. The Buyer agrees and acknowledges that in the event of an uncured default with respect to the Buyer's obligations to construct the Improvements the Seller may, pursuant to the terms outlined in Exhibit C attached hereto and made a part hereof, declare that all rights and interests in and to the Property (including to improvements or rights subsequently added to the Property after closing of the transaction contemplated by this Agreement) shall revert to the Seller. No reversion shall take place until notice is sent after the default and the default remains uncured for 30 days or more. 22. Miscellaneous. This Agreement shall be governed by the laws of the State of Minnesota. No amendment of this Agreement shall be valid or binding unless executed by authorized representatives of both the Seller and the Buyer. The headings and captions of this Agreement are for the convenience of the parties only and shall not be looked to in the interpretation or enforcement of this Agreement. The Seller and the Buyer acknowledge and agree that each has had opportunity to participate in the drafting of this Agreement and accordingly acknowledge and agree that this Agreement as a whole and each of is clauses are not to be interpreted in favor of or against either party. This Agreement may be signed in counterpart, with each copy of the Agreement binding upon the signing party at the time of signing and together which shall constitute a single document. 23. Restaurant within Improvements. Notwithstanding anything herein to the contrary, Buyer agrees to use reasonable commercial efforts to locate a casual dining restaurant, reasonably acceptable to the New Hope City Council in its sole discretion, to be contained within 2,000 or more square feet of either building for a period of one (1) year after the closing. At anytime thereafter, the Buyer shall not be obligated to place a restaurant in the Property. in the event Buyer cannot locate an acceptable restaurant at the Property, Buyer shall pay to the Seller an additional $15,000.00 for purchase of the Property. For purposes of this section, locate shall mean Buyer has entered into a written lease with a restaurant for a period exceeding one year or sold a portion of the Property pursuant to a purchase agreement entered into within one year to a restaurant. Buyer agrees to provide Seller with a copy of the lease or purchase agreement. Buyer agrees to provide Seller with an irrevocable one year letter of credit or some other form of financial guarantee reasonably acceptable to Seller on or before the date of closing in support of its agreement to locate an acceptable restaurant at the property in compliance with this section. This section shall also survive the delivery of the deed. 24. Whenever a period of time is herein provided for either party to do or perform any act or thing, that party shall not be liable or responsible for any delays due to strikes, riots, acts of God, shortages of labor or materials, national emergency, acts of a public enemy, governmental restrictions, laws or regulations, or any other cause or causes, whether similar or dissimilar to those enumerated, beyond its reasonable control and the time to do or perform such act or thing shall be extended for the period of delay. 12 [The Remainder of this Page is intentionally Left Blank; Signature Page(s) Follow] l3 IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the latest date indicated below ("Effective Date"). SELLER: BUYER: ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF NEW HOPE Quebec Properties, LL�C\ By: w _ -L..,`�,� M �n E. Opem Sr. By: I& /� Its: President Its: CA.} 1GF oes afY�A"a Dated: 12006. Dated: (—J x 2006. By �, aniel J. Do ue Its: Executive Director Dated: 2006. 14 EXHIBIT A Legal Description That part of Lot 5, Auditor's Subdivision Number 324, Hennepin County, Minnesota described as follows: Commencing at the point of intersection of the North line of Rockford Road and the East line of said Lot 5; thence North along said East line a distance of 350 feet; thence West parallel with the North line of Rockford Road a distance of 320.4 feet more or less, to a point 48.95 feet East of the West line of said Lot 5, as measured at right angles thereto thence South parallel with the West line of said Lot 5 a distance of 350.0 feet to the North line of Rockford Road; thence Easterly along the North line of Rockford Road a distance of 320.4 feet, more or less to the point of beginning. 15 EXHIBIT B Insert form of Bring Down Certificate 16 EXHIBIT C [insert EDA's standard right of reversion language] P: 1AttorneylSAS11 Client Filesl2 City of New HopeM-20509(42nd and Quebec)1Purchase Agreement D6- clean.doe 17 December 20, 2006 Mr. Andy Leith Hennepin County Environmental Services Department 417 North 5th Street, Suite 200 Minneapolis, MN 55401-3206 RE: Contract Number A051168 Dear Mr. Leith: The City of New Hope is proud to report that the environmental work at the Electronic industries site covered by C,. -)retract Number A051166 is complete. All underground work, monitoring, well relocation work on site has been completed. Above ground construction 'of the two buildings on the redevelopment site continues and should be completed by July of 2007. Enclosed please find our first and only Disbursement Request Form for $18,750.00. Also enclosed is the Cumulative Progress Report - Final Report for the project. if you have any questions or need any additional information, l can be reached at (763) 531-5137 or cjacobsen@ci.new-hope.mn.us. Thank you. Sincerely, Curtis Jacobsen Con+,u unity Development Spedialsst Kirk McDonald Director of Community Development Enclosures CC: 'Valerie L.eorte Daryl Sulander Cm of N'Ew HoPE 4401 Xylon Avenue North • New Hope, Minnesota 55428-4898 • www. ci.new-hope.rrm-us City Hall! 763-531-5100 ® Police (non -emergency): 763-531-5170 e Public Works: 763-592-6777 o� TDD: 763-531-5109 City Hall Fax: 763-531-5136 6 Police Fax: 763-531-5174 4 Public Works Fax: 763-592-6776 Lll Zi t+D r- I a 0 N O N N r -I O N 0 a Gt .7 0 ? Ln O 0 z y .,a - v gv� O A co C1� CG O O O uZ r co a O O Ln n co 1-4 -GR- W O G3 GA Do U C., v r• •n m o , m Z N d Q7 a N = 9 c c ro a = a, 'ol � �I O m1 co, ml n tp � 0 Zak o C 7 ui rp u7 LD �_ O G v I M m N w L a o LJ D } e h 4 � N V, Jra z O N Q OI Q Lo Z Ci N F �I d X d m = O w m CLO uj W3 W I rn Z Z R cl C `a a v CD, m O z a m :moi 4 [V v? m O :V .7 N O Lu a L C t T U T m N M m � L7 O m $ ° 7 �I C W' � n a c �l 0 H : O U O � ° �I �l U o. �I O m °. ep o m �m VVV m a� UJ X D 'p z D W m ^R 2 m� m1 n z z _ Z 9 o 0u 7 0 r � o c Q � O `n 0 N D O m CO D C7 io ff fti 0 v' a� YF U o� z ZC 0 O u 4 0 a ryZ Q G OI V T a o � CL z Z < 1 w{ im CI El c ¢f � +o D5 E O " 0 F / }� J; � t� \� )i ) UJ ; \ \ 6 $ E CL \ 0 C) { � 2 LLJ ry � z z � \ co jf ƒ k )�S $ ��\ \ kl � �§ O @ i � § m � N M :J eo C i N � Z N C v � 4 L] c j 4f o U Q O a` ® m � 0 7 �I a L] c j 4f o U Q a` ® N m �Iw � 0 N O LU c ro p u u T C m � 3 Q Q N f 1 a.N t 4 mCL �I RN z 90 L o m N m UN o Z � a Lij z of UJ z P X zO � to u 1 � m c G � Q a u1 Q O CL z co� z `a ,y a O � W p � O Cj C10 m. m O E, 6 4 N _N � O O N L a a r y Lu LM Y ,`y U P m P 0 QG T'T O Ff O � N Q ® Z T W m 0, LO y N 7 � a r° N N y: v U Y � ' O W .I � L L1 Ls m y a 0 QG T'T O Ff O � O N U 0 U LO i N � a r° 0 U Y � W � L L1 m 9 W � m � � r 5 In z G r o u O a- C 0 9 N U d Lu O z � o LL o O a ry a � A' N r N m O 7 u�i Z go � O C) in w N c Lit LU Q O mCL C z � J � G o EL Yi .� Q v Q O m r LU Z m Z LL �I C 7 � CI n n 7o 9 ul Ls m 0 QG T'T O Ff O � O N J u LO N a r° U Y � ;ri u u• � L L1 1+ 4 0 W W LL'f z v C z $ p U Q 0 OLo Z a Oc z , r L) a LW a l ne" O UJ z z ml a w m m i ri O i P N 5 n m m� Q C Z{ a` w z $ p U Q 0 OLo Z a Oc z , r L) a LW a l ne" O UJ z z ml a w m m i ri O i P N 5 n n a O N n � Z N 7 n N u c c N� O m n W- C N CL o - O N = C tdtVV W E Z a u N LL o C) } d i - U A M u m W k $ � \ = 3 G )� \ k � \ = 3 G )� \ k ƒ � LL) 6 § 0 - § k �. = B q LL - ! 2 (CC EL ! � I� ! LLJ © § [ [ � ) � � G z { 2 � 7§ ID 13 2 } e ƒ ( ! ;I§ / 3 222 0 _ / 2 � 7 g� � HEN -�71RONr�vMNTAL REQPOTNTSE FUND cumuItive 3"roress -e art M � Anue Report Due: July 2.5 jk Final Report Section one. Backgr'onnd Information I. Contrast Number �0 116 �' 2. aaz].tee Name City of New Hope 3 Grant Term September 12, 2005 to September 11, 2007 4. Project Title Electronic Industries 5. Period covered from Grant Award through 9/ 12/05 to 12/20/2006 6. /daunt of ERP funds received through th, end of the petiad $ 18 , 750.00 7. Name and title of person completing this report Curtis Jacobsen, Community Development Specialist 8. phone number of person completing this report 763-531-5137 9. signature of person completing report certifies that `tee information co'ntazned this report is tz�:e and correct , (This signature Section two: uncial Report by Budget Ttem 14, Comments Project is complete. section three: General Information Hass all con acted �rork tliat v,�i11 have reoeived County dallars ccmphed v+n-IL' all applicable state and federal laws and feb ]aeons regarding ernployrnet and workplace safety, and vi�ith Hennepin County's policies against discrimination? Yes Explain All parties to the project are fully aware of appropriate process and the expenditure of funds has complied with re ulations. 16. When is a.ssessmenticleanuP of the site etipected to be complete? 12 / 2012006 17• When is the redevelopment of the site expected to be complete? -7/1/922r' daffordable 18. Have there been any changes in the scope of frit prof ect (increasefrom that specifiedin housing units, change from the original site de-'1eiopment plan, ) the application? If so, please explain, 19. Ase there any other caentsy problemc or changes from the application that you woald mT"like to report on? please explain.. N C, EDA Request for Action Originating Department Approved for Agenda Agenda Section Community Development January 28, 2008 EDA Item No. By: Kirk McDonald, City Manager 6 Curtis Jacobsen, CD Specialist By: Resolution authorizing signatures for Certificate of Completion and Release of Forfeiture and also a Release of Planned Unit Development Conditional Use Permit Site Improvement Agreement related to the Village on Quebec project by Data Sales, Inc. at 7500 - 7562 42nd Avenue North (Improvement Project 740) Requested Action The EDA is requested to approve the resolution authorizing signatures on the Certificate of Completion and Release of Forfeiture and also the Release of Planned Unit Development Conditional Use Permit Site Improvement Agreement related to the Village on Quebec project at 7500-7562 42nd Avenue North a Data Sales, Inc. project. Policy/Past Practice It is the past practice of the EDA to authorize signatures on the Certificate of Completion and Release of Forfeiture when the developer has completed the minimum improvements and has been issued a Certificate of Occupancy for any individual residential unit in that building. This Certificate of Completion and Release of Forfeiture is similar to the one approved by the Council for Emerald Pointe Apartments on June 25, 2007. Background The EDA entered into a Purchase and Development Agreement with Q Village, LLC (Manley Development) on June 26, 2006, for the redevelopment of the site at 7500 42nd Avenue North or commonly referred to as 42nd and Quebec. The project consisted of two buildings with approximately 28,000 square feet. This project brings to a conclusion many years of work to see the clean up and redevelopment of a contaminated site. This redevelopment also returns this parcel of property to the tax rolls after a lengthy absence. The ownership of the pr2Eerty has changed since the original Purchase and Development Agreement was Motion by ��, Second by To: L•\RFA\PLANNING\PLANNING\Plannin \Q & R -Village on Quebec Cert of Completion 1-28-08.doc Request for Action January 28, 2008 Page 2 signed and Data Sales of Eagan has assumed the majority interest in the development. Their banker, Wells Fargo has requested they obtain a Certificate of Compliance. The Contract for Private Redevelopment specifies that the Certificate of Completion is to be issued promptly after substantial completion at the request of the developer, as outlined in the document excerpt below: 21. Fast -Closing Construction/Revesting of'1'~itle. The Buyer agrees and covenants that the Buyer will cor-struct, or cause to be constructed, on the Property all structures necessary for the Improvements, with materials and plans to coincide with those approved by the City of New Hope as part of the governmental approval process cited in Subsection 3(b) above. This covenant shall survive the delivery of the Deed. Construction of the Improvements must be substantially completed �A ithin 180 days after construction is commenced on either of the buildings that comprise the Improvements. Buyer shall commence construction on each building and the entire site improvements when 50i% of either building is either pre -leased or pre -sold, but in no case later than , 20 — . If the Improvements are constructed in two phases; the covenant contained herein shall apply separately to each building. -Construction will be considered substantially complete when a final certificate of occupancy has been issued for each building of the Improvements. Promptly after substantial completion of the Improvements the Seller will at the request of The Buyer prox ide the Buyer with a: -certificate of completion in form and substance reasonably acceptable to tho Buyer. Said certificate shall be {and it shall be so provided in the Deed and in the certificate itself a conclusive determination of satisfaction and termination of the agreements and covenants of the Buyer (anal its successors and assigns) to construct the Improvements and satisfaction of the ate(s) for completion thereof If the Seller shall refuse or fail to provide a certificate as required by this Section 21 thea the Seller .must. within thirty (30) days after written request by the Buyer, provide the Buyer with a written statement outlining in reasonably adequate detail the reasons that the Seller is of the opinion that the Buyer has failed to complete the Improvements in accordance with the provisions in this Agreement, or the reasons the Seller is of the opinion that the Buyer is otherwise in default A writing required of the Seller under this Section 21 must additionally outline the measures or acts that will be necessary, in the opinion of the Seller, for the Buyer to take or perform in order to obtain a certificate of completion. The Buyer agrees and acknowledges that in the event of an uncured default with respect to #.he Buyer's obligations to coaastruct the Improvements the Seller may, pursuant to the terms outlined inExhibit C attached hereto and made a part hereof, declare that all rights and interests in and to the Property (including to improvements or rights subsequently added to the Property after closing of the transaction contemplated by this Agreement) shall revert to the Seller. The city attorney has also determined that this would be the appropriate time to complete the Release of Planned Unit Development Conditional Use Permit Site Improvement Agreement for this project. Recommendation Staff recommends the Council approve the resolution authorizing signatures on the Certificate of Completion and Release of Forfeiture. Request for Action January 28, 2008 Page 3 Attachment(s) ® Resolution Certificate of Completion • Release of Planned Unit Development Conditional Use Permit Site Improvement Agreement City attorney e-mail ® Request from Data Sales • Copy Certificate of Occupancy City of New Hope EDA Resolution No. 2008-.o3 Resolution authorizing signatures for Certificate of Completion and Release of Forfeiture and the Release of Planned Unit Development Conditional Use Permit Site Improvement Agreement related to the Village on Quebec project at 7500 — 7562 42nd Avenue North, by Data Sales, Inc. (Planning Case 06-06) WHEREAS, the EDA has received a request from Village on Quebec, Data Sales, Inc., for the city to provide the Certificate of Completion and Release of Forfeiture as identified in their Purchase and Development Agreement, and; WHEREAS, the Purchase and Development Agreement states that the Economic Development Authority will promptly furnish the Developer a Certificate of Completion after completion of the projects Minimum improvements, and; WHEREAS, the Minimum Improvements are deemed to be completed when the city has issued a certificate of occupancy for any individual unit of that building, and; WHEREAS, a certificate of occupancy for the building at 7530 42nd Avenue North was issued on Wednesday, May 9, 2007. and; WHEREAS, the city attorney has determined that this is also the appropriate time to execute the Release of Planned Unit Development Conditional use Permit Site Improvement Agreement. NOW, THEREFORE, BE IT RESOLVED by the Economic Development Authority of the city of New Hope, Hennepin County, Minnesota: 1. That the President and Executive Director are hereby authorized and directed to sign the Certificate of Completion and Release of Forfeiture for the Village on Quebec, located at 7500 - 7562 42nd Avenue North. 2. That the President and Executive Director are hereby authorized and directed to sign the Release of Planned Unit Development Conditional Use Permit Site Improvement Agreement for Village on Quebec, located at 7500 — 7562 42nd Avenue North. 3. The City Clerk shall provide Data Sale, Inc., with a signed copy of this resolution and the signed Certificate of Completion. Adopted by the Economic Development Authority of the city of New Hope, Hennepin County, Minnesota, this 28th day of January 2008. y Presi ent �. Attest: Executive Director Page 1 of 1 Jacobsen Curtis From: Steven Sondrall [sas@jasattorneys.com] Sent: Wednesday, January 09, 2008 2:54 PM To: Jacobsen Curtis Subject: RE: Village on Quebec Attachments: 99-20509-Release-D1.doe; 99 -20509 -Certificate & Release-D1.doc; 99 -20509 -Collateral Agrmt-D2.doc Curtis Attached are the releases we discussed. Also attached is a copy of the Collateral Agreement I do not recommend we release. As we also discussed, the Purchase And Development Agreement was never recorded, therefore a release for this document is not necessary and would only "muddy up" the title to the property. Contact me if you need anything else or have any questions. Steve Steven A. Sondrall, Esq. Jensen Anderson Sondrall P.A. 8525 Edinbrook Crossing. Suite 201 Brooklyn Park, MN 55443 Direct (7630201-0211 Firm:(763)424-8811 Fax; (763)493-5193 WARNING: Actual receipt of E -Mail communications should not be assumed.E=Mai1 communiocatlons may be intercepted or inadvertently misdirected. The American Bar Association deems E -Mails a valid authorized form of communication between lawyer and client, however security of this E -Mail message and attachments (f 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 an attorney/client relationship. 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. Ifyou received this communication in error; please immediately notify sender via E -Mail reply. From: Jacobsen Curtis [mailto:cjacobsen@ci.new-hope.mn.us] Sent: Monday, January 07, 2008 10:52 AM To: Steven Sondrall Subject: Village on Quebec Steve, Attached is the RFA for Village on Quebec, they have requested the Certificate of Completion. Please provide a certificate. Curtis Jacobsen Community Development Specialist City of New Hope 763-531-5137 763-531-5136 fax cJacobsen@ci.new-hope.mn.us From: Jacobsen Curtis[ma ilto:cjacobsen@d.new- hope. mn.us] Sent: Tuesday, December 11, 2007 2:44 PM To: Brad Nordgaard Subject: RE: Request for more detail regarding latest billings Brad, A certificate of compliance has not been issued, I guess with the high turn over at Manley no one requested one previously. We will have the Council approve a Certificate of Compliance at the January 14 meeting. Curtis Jacobsen Community Development Specialist City of New Hope 763-531-51.37 763-531-5136 fax cJacc,bsen@ci.new-hope.mn.us From: Brad Nordgaard[mailto:bnordgaard@datasales.com] Sent: Tuesday, December 11, 2007 1:45 PM To: Jacobsen Curtis Subject: RE: Request for more detail regarding latest billings Curtis, Do you have or does this exist? I can't locate on file and our lender is requesting. Also to comply with Wells Fargo instructions I need the certificate of compliance from the City of New Hope Do you have that yet? Thanks, Brad Nordgaard Data Sales Co., Inc Phone: 952-895-3350 bnordaaardadatasa les.com CERTIFICATE OF COMPLETION AND RELEASE OF FORFEITURE WHEREAS, the New Hope Economic Development Authority, a public body corporate and politic under the laws of Minnesota (the "Grantor"), by a Limited Warranty Deed recorded in the Office of the County Recorder or the Registrar of Titles in and for the County of Hennepin and State of Minnesota, as Deed Document Number 8827723, has conveyed to Quebec Properties LLC, a Minnesota limited liability company, (the "Grantee"), the following described land in the County of Hennepin, State of Minnesota, to -wit: Lot 1 and 2. Block 1, New Hope Quebec Addition, according to the duly recorded plat on file and of record in the Office of the County Recorder, Hennepin County, Minnesota. WHEREAS, said Deed contained certain covenants and restrictions, the breach of which by Grantee, its successors and assigns, would result in a forfeiture and right of re-entry by Grantor, its successors and assigns, said covenants and restrictions being set forth in said Deed; and WHEREAS, said Grantee has performed said covenants and conditions insofar as it is able in a manner deemed sufficient by the Grantor to permit the execution and recording of this Certificate; NOW, THEREFORE, this is to certify that all building construction and other physical improvements specified to be done and made by the Grantee have been completed and the above covenants and conditions in said Deed have been performed by the Grantee therein -and that the provisions for forfeiture of title and right to reentry for breach of condition subsequent by the Grantor herein is released absolutely and forever insofar as it applies to the land described herein, and the County Recorder or the Register of Titles in and for the County of Hennepin and State of Minnesota is hereby authorized to accept for recording and to record this instrument, and the filing of this instrument shall be a conclusive determination of the satisfactory termination of the covenants and conditions referred to in said Deed, the breach of which would result in a forfeiture and right of re- entry. Dated: .% UGC '4 2008. NEW HOPE ECONOMIC DEVE PMEMem Y E esident By: Kirk McDonald Its Executive Director STATE OF MINNESOTA } ss. COUNTY OF HENNEPIN On this E day ofL 2008, before me, a notary public within and for Hennepin County, pers lly appear Martin E. Opem Sr. and Kirk McDonald, to me personally known, who by me duly sworn did say that they are the President and Executive Director, respectively, of the New Hope Economic Development Authority, a public body corporate and politic under the laws of Minnesota, and acknowledge the foregoing instrument on behalf of said Authority. , VALERIE LEONE Notary Public NOTARY PUBLIC - MINNESOTA My Commission bxpires Jan W 2010 Drafted By: JENSEN ANDERSON SONDRALL, P.A. 8525 Edinbrook Crossing, Suite 201 Brooklyn Park, MN 55443 (763)424-8811 PAAtt0meAAS1r Client Fiies42 City of New Hope199-20509(42nd and Quebm)199 20509-Cw ficaze & Relene-Dl.doe 2 RELEASE OF PLANNED UNIT DEVELOPMENT CONDITIONAL USE PERMIT SITE IMPROVEMENT AGREEMENT THIS RELEASE is made by the City of New Hope, Minnesota, a Minnesota municipal corporation (the "City"): WHEREAS, the City and Quebec Properties LLC, a Minnesota limited liability company, entered into that certain Planned Unit Development Conditional Use Site Improvement Agreement dated as of July 12, 2006 (the "Site Improvement Agreement"), which Site Improvement Agreement was filed in the office of the County Recorder of Hennepin County, Minnesota, on September 26, 2006, as Document No. 8870494. WHEREAS, the Site Improvement Agreement applied to that certain property legally described as follows: Lot 1 and 2, Block 1, New Hope Quebec Addition, according to the duly recorded plat on file and of record in the Office of the County Recorder, Hennepin County, Minnesota. WHEREAS, the terms and conditions of the Site Improvement Agreement have been satisfied and are no longer in effect. NOW, THEREFORE, the City hereby releases and terminates the above- described Site Improvement Agreement of record. IN WITNESS WHEREOF, the undersigned have caused this Release to be executed on its behalf this day of January, 2008. CITY OF NEW HOPE, MINNESOTA By: I I I aa 6 Makin E. Opem tr. a r By: \ Kir McDonald Its City Manager STATE OF MINNESOTA }COUNTY OF HENNEPIN ss. The foregoing instrument was acknowledged before me this_ day of e' 2008, by Martin E. Opem Sr. and Kirk McDonald, theayor and City Manager, respectively, of the City of New Hope, Minnesota, a municipal corp n, ori behalf of City. 1JALERIE LEONE Notary Public NOTARY PUBLIC - MINNESOTA �. My Commission Expires Jan. 31, 2010 Drafted By: JENSEN ANDERSON SONDRALL, P.A. 8525 Edinbrook Crossing, Suite 201 Brooklyn Park, MN 55443 (763) 424-8811 PAAttomcy%SAS\1 Client Files12 City ofNea He pe199-20509(42nd and Quebec)199-20509-Release-Dl.doe 2 RELEASE OF PLANNED UNIT DEVELOPMENT CONDITONAL USE PERMIT SITE IMPROVEMENT AGREEMENT THIS RELEASE is made by the City of New Hope, Minnesota, a Minnesota municipal corporation (the "City"): WHEREAS, the City and Quebec Properties LLC, a Minnesota limited liability company, entered into that certain Planned Unit Development Conditional Use Site Improvement Agreement dated as of July 12, 2006, (the "Site Improvement Agreement"), which Site Improvement Agreement was filed in the office of the County Recorder of Hennepin County, Minnesota, on September 26, 2006, as Document No. 8870494. WHEREAS, the Site Improvement Agreement applied to that certain property legally described as follows: Lot 1 and 2, Block 1, New Hope Quebec Addition, according to the duly recorded plat on file and of record in the Office of the County Recorder, Hennepin County, Minnesota. WHREAS, the terms and conditions of the Site Improvement Agreement have been satisfied and are no longer in effect. NOW, THEREFORE, the City hereby releases and terminates the above-described Site Improvement Agreement of record. IN WITNESS WHEREOF, the undersigned have caused this Release to be executed on its behalf this /L/V day of AW -4( , 2011. CITY OF NEW HOPE, MINNESOTA B:J Y Kathi Hemken Its Mayor 1 M By: Kirk McDonald Its City Manager STATE OF MINNESOTA ) )ss COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this /`l day of 1AIUA - , 2011, by Kathi Hemken and Kirk McDonald, its Mayor and City Manager, respectively, of the City of New Hope, Minnesota, a municipal corporation, on behalf of the city. Drafted by: City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 Notary Public CERTIFICATE OF COMPLETION AND RELEASE OF FORFEITURE WHEREAS, the New Hope Economic Development Authority, a public body corporate and politic under the laws of Minnesota (the "Grantor"), by a Limited Warranty Deed recorded in the Office of the County Recorder or the Registrar of Titles in and for the County of Hennepin and State of Minnesota, as Deed Document Number 8827723, has conveyed to Quebec Properties LLC, a Minnesota limited liability company, (the "Grantee"), the following described land in the County of Hennepin and State of Minnesota, to wit: Lot 1 and 2, Block 1, New Hope Quebec Addition, according to the duly recorded plat on file and of record in the Office of the County Recorder, Hennepin County, Minnesota. WHEREAS, said Deed contained certain covenants and restrictions, the breach of which by Grantee, its successors and assigns, would result in a forfeiture and right of re-entry by Grantor, its successors and assigns, said covenants and restrictions being set forth in said Deed; and WHEREAS, said Grantee has performed said covenants and conditions insofar as it is able in.) manner deemed sufficient by the Grantor to permit the execution and recording of this Certificate; NOW THEREFORE, this is to certify that all building construction and other physical improvements specified to be done and made by the Grantee have been completed and the above covenants and conditions in said Deed have been performed by the Grantee therein and that the provisions for forfeiture of title and right to re-entry for breach of condition subsequent by the Grantor herein is released absolutely and forever insofar as it applies to the land described herein, and the County Recorder or the Registrar of Titles in and for the County of Hennepin and State of Minnesota is hereby authorized to accept for recording and to record this instrument, and the filing of this instrument shall be a conclusive determination of the satisfactory termination of the covenants and conditions referred to in said Deed, the breach of which would result in a forfeiture and right of re-entry. Dated: I -i 41(67 1 , 2011 NEW HOPE ECONOMIC DEVELOPMENT AUTHORITY c By.e4- %0 Kathi Hemken Its President By Kirk McDonald Its Executive Director STATE OF MINNESOTA ) )ss COUNTY OF HENNEPIN ) On this day of `id ,6k, 2011, before me, a notary public within and for Hennepin County, personally appeared Kathi Hernken and Kirk McDonald, to me personally known, who by me duly sworn., did say that they are the President and Executive Director, respectively, of the New Hope Economic Development Authority, a public body corporate and politic under the laws of Minnesota, and acknowledge the foregoing instrument on behalf of said Authority. Drafted by; City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 Notary Public Jacobsen Curtis From: Steven Sondrall [SAS@JSPAttorneys.com] Sent: Monday, March 14, 201110:02 AM To: Wendy Cc: Jacobsen Curtis Subject: FW: Message from KNOT—C652 Attachments: SKM13T_C65211031408260.pdf Wendy Please see the attached documents we provided in January 2008 with regard to the documents now at issue for your closing. The Certificate of Completion And Release of Forfeiture resolves the reversionary interest in the deed. The Release of Planned Unit Development Conditional Use Permit Site Improvement Agreement indicates the structures on the property have been constructed in accordance with the site plan. Why weren't these documents recorded? If they were not recorded, where are they? The best we can do is to resign these for you. We can't release the Collateral Agreement or give you a no action letter on the Agreement. Steve From: Jacobsen Curtis Fmailto:ciacobsen@)ci.new-hope.mn.us Sent; Monday, March 14, 20119:36 AM To: Steven Sondrall Subject: FW: Message from KMBT C652 As discussed. Curtis Jacobsen Director of Community Development 763-531-5119 From., copier ci,new-hope.mn.us[mailto:cop ier@ci.new- hope. mn.us7 Sent: Monday, March 14, 20119:27 AM To: Jacobsen Curtis Subject: Message from KMBT C652 Doc No 8827724 07/14/2006 01:40 PM Certified filed and or recorded on above date: Office of the County Recorder Hennepin County, Minnesota Michael H. Cunniff, County Recorder TransID 237827 Deputy 11 Fees $35.50 DOC $10.50 SUR $46.00 Total COLLATERAL AGREEMENT oQfo39 �6� N THIS COLLATERAL AGREEMENT ("Agreement") is made effective the day of July, 2006, by and between Quebec Properties, LLC, a Minnesota limited liability company ("Buyer") and Economic Development Authority in and for the City of New Hope, Minnesota, a Minnesota municipal corporation ("Seller"). WHEREAS, Seller =LBuyer are parties to a Purchase and Development Agreement effective the g22 _ day of&e;r,* , , 2006 for the sale and purchase of certain real property located in the City of New Hope, County of Hennepin, State of Minnesota (the "Property") legally described as follows: Lot 1, Block 1, New Hope Quebec Addition, according to the duly recorded plat on file and of record in the office of the County Recorder, Hennepin County, Minnesota; and Lot 2, Block 1, New Hope Quebec Addition, according to the duly recorded plat on file and of record in the office of the County Recorder, Hennepin County, Minnesota; Subject to easements, restrictions and covenants of record. WHEREAS, contemporaneous with the execution of this Agreement the Seller has, pursuant to the Purchase Agreement, executed and delivered a Limited Warranty Deed to Buyer conveying title to the Property; and Buyer has paid to Seller the purchase price for the Property recited in the Purchase Agreement; and WHEREAS, the Purchase Agreement provides for certain continuing obligations of Seller and Buyer; and WHEREAS, Seller and Buyer have executed this Agreement for the purpose of perpetuating of record certain continuing obligations of the respective parties, all as more fully set forth herein. NOW, THEREFORE, in consideration of the conveyance of the Property and payment of the Purchase Price, and for other good and valuable consideration, the receipt of which is hereby acknowledged by the respective parties, the parties agree as follows: 1. Non-g±Mer. Seller and Buyer each respectively acknowledge that the terms and conditions as set forth in the Purchase Agreement, and as set forth in this Agreement, shall constitute continuing obligations which survive closing and shall not be deemed extinguished by the Doctrine of Merger, 2. Marketable Title. Notwithstanding the delivery of a Limited Warranty Deed by Seller to Buyer, and the acceptance of the Limited Warranty Deed by Buyer, Seller has agreed to register title to the Property. Seller shall proceed diligently to commence and complete registration of title and Buyer agrees to cooperate and execute upon request such documentation as may reasonably be necessary in order to facilitate the registration of title. Cooperation shall include acting as Applicant in the registration proceeding. 3. Seller's Cooperation in Development Process. The Seller shall cooperate with the Buyer in the Buyer's efforts to obtain the approval of all public or governmental authorities as to all matters relating to zoning, subdivision, lot splits, special use permits, access, or similar requirements for an approximately 17,400 square foot office and service retail building on the east half of the Property and an approximately 11,500 square foot retail building on the west half of the Property, together with all necessary site improvements upon the Property (collectively, the "Improvements"). For the purposes of this Agreement the Buyer may sell or lease units or spaces within either building. The Buyer shall provide any necessary common interest community or leasehold management documents required to meet all required regulatory and governmental approvals. Seller shall join in such applications and other documents, including access and parking easements, as may be necessary or required by governmental or regulatory bodies to develop the Property for the Improvements. Seller's obligations shall not be construed to limit in any -way the reasonable exercise of the discretion of the City of New Hope in considering any submittal or application relating to development of the Property. 4. Buyer Acknosvledmentof Environmental Conditions. As disclosed in the Purchase Agreement and documentation provided by Seller and produced by Buyer in connection with Buyer's evaluation of the Property, Buyer is aware that certain environmental issues involved in the Property and in connection therewith: a. Buyer acknowledges that the Buyer has been fully informed of the ground water and soil contamination existing on the Property and has had ample opportunity to investigate and inform itself regarding the circumstances. b. Buyer represents to Seller that it has determined that the contamination does not render the Property unsuitable for development in connection with Buyer's intended use of the Property. C. The Seller has obtained written assurance from the MPCA that neither the Seller nor the Buyer is responsible for cleanup of the hazardous materials that remain 2 in the undisturbed soil and water of the Property (a "No Association" assurance letter). d. The Buyer shall at its expense upon request of the Seller provide the following (the "Required Information"): L Site plan and associated text describing the nature of business activities anticipated after redevelopment, including activities from which Buyer wishes to obtain MPCA "No Association" letter(s); ii. Grading plan; iii. Geotechnical drilling and/or soil testing plan; iv. Subsurface utilities plan; v. Monitoring and Maintenance Plan: A. Restoration Plan; vii. Vapor collection system design drawings; viii. Construction time line; and Lx. Any other information required for the completion of the VIC application that the Buyer otherwise needs to prepare in connection with its development of the Property. Prior to initiating any earth -moving activities, Buyer shall provide Seller a copy of the MPCA-required Storm Water Pollution Prevention Plan (SWPPP) for City review and approval. Buyer shall be responsible for compliance with all federal, state and local regulations regarding construction storm water, including obtaining a MPCA Construction Storm Water permit. All on-site work performed by Buyer or its employees, agents or contractors shall be performed in accordance with 29 CFR 1910.120. Buyer shall be responsible for all site safety programs for Buyer or its employees, agents or contractors. 5. Environmental Monitoring During Construction. The Buyer agrees that on-site monitoring of certain construction activities by an environmental professional designated by Seller (the "EP") will be required. Seller shall be responsible for the cost of the EP. Both parties agree, consistent with the requirements of this Agreement, to provide and pay for their own field environmental technician (the FET") prior to the start of earth -moving activities at the site. Both FET's must be on-site during: 3 a. Grading activities near the Restricted Area (as defined in the Environmental Restrictive Covenants); b. Subsurface excavation of utilities; C. Dewatering of excavated areas due to the presence of subsurface water or as a result of unusual rainfalls during construction that inundate the area; d. Installation and startup of vapor collection system; and e. Geotechnical drilling and/or soil testing activities. Both FET's will monitor excavated soils and accumulated waters for the presence of contaminants. If contaminated soils are detected, and the Buyer's FET determines that the soils cannot reasonably be reused within the excavated area, the contaminated soil will be stockpiled by the Buyer separately from clean soils, and the contaminated soils will be removed from the Property for disposal at a facility reasonably agreeable to the Seller's EP. If Buyer's FET determines accumulated waters are contaminated, the Buyer will arrange adequate means and methods of cleanup or disposal, reasonably agreeable to the Seller's EP, which may include discharge of such waters into Seller's storm water or sanitary sewer systems. At the conclusion of on-site monitoring activities, the Seller's FET will provide a letter report to both the Seller and the Buyer summarizing the Seller FET's activities and observations. The Buyer acknowledges and agrees it has sole responsibility for all decisions relating to the reuse or disposal of contaminated soils and water at the Property in compliance with the MPCA's restrictive covenants and all other MPCA regulations. Seller's obligations under this Section shall be limited to monitoring and reporting as referenced above. 6. Environmental Monitoring Costs and Reseoonsihilaties. The Buyer shall be responsible for providing the Seller with reasonable notice of Buyer's activities so that the Seller will be able to provide an appropriate FET. Buyer shall be responsible for all costs associated with the stockpiling, remediation, removal, and/or eventual off-site disposal of contaminated soils and waters at the Property in compliance with the MPCA's restrictive covenants and all other MPCA regulations. 7. Permanent Environmental Monitoring and Maintenance. Any permanent structures erected at the Property that will be occupied by workers of any kind must have a subsurface vapor collection system designed and installed beneath the structure to collect potential organic vapors and prevent such vapors from accumulating in the structure. The vapor collection systems must be "active" vapor collection systems (i.e. electrical fans will continuously draw air from the collection system and discharge the air through roof vents). A vapor collection system implementation work plan shall be developed by the Buyer in conjunction with the EP, and then reviewed and approved by the MPCA prior to installation of the system. The work plan shall include a detailed system design, and a monitoring and maintenance plan for the system. Buyer shall be 4 required to monitor and maintain the system on an ongoing basis and shall be designated as the party responsible for said obligations in the monitoring and maintenance plan. All monitoring wells within the Property shall be continuously maintained by Seller before construction activities and Buyer shall have no responsibility or costs associated with such permanent monitoring well systems other than damage to, relocation of or abandonment of monitoring wells during and after construction activities. However, Seller agrees to provide Buyer with any of Seller's unused grant money from its Hennepin County Environmental Response Fund (EFP) grant for qualifying expenses of Buyer relating to well abandonment and/or relocation. S. Future Access and Utility Easements. The Buyer will, if requested by the City of New Hope, provide the City with access and utility easements in connection with the Buyer's development of the Property and as provided for by New Hope's City Code, regulations and past practices. All such easements shall be provided at no cost to the City. 9. Restaurant within Improvements. Notwithstanding anything herein to the contrary, Buyer agrees to use reasonable commercial efforts to locate a casual dining restaurant, reasonably acceptable to the New Hope City Council in its sole discretion, to be contained within 2,000 or more square feet of either building within one (1) year of the date of this Agreement. In the event Buyer cannot locate an acceptable restaurant at the Property, Buyer shall pay to the Seller an additional $15,000.00 for purchase of the Property. For purposes of this section, locate shall mean Buyer has entered into a written lease with a restaurant for a period exceeding one year or sold a portion of the Property pursuant to a purchase agreement entered into within one year to a restaurant. Buyer agrees to provide Seller with a copy of the lease or purchase agreement. Buyer shall provide Seller with an irrevocable one (1) year letter of credit acceptable to Seller as security for its financial obligation to Seller ($15,000,00) in the event Buyer fails to locate an acceptable restaurant. IN WITNESS WHEREOF, the parties have executed the foregoing Agreement, intending to be bound thereby effective the day and year first above written. [Signature Page to Follow] E I Y 6 QUEBEC PROPERTIES, LLC By: &" �— Bradordgaard ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF NEW HOPE, MINNESOTA By: 'a" artin E. Opem Sr. Its P sident By. Daniel J. Donahue Its Executive Director STATE OF MINNESOTA COUNTY OF 'ol 5s. The forego. instrument was acknowledged before me this /5 day of July, 2006, by Brad Nordgaard, the 10OW JY' 6f Quebec Properties, LLC, a Minnesota limited liability company, on behalf of sa d limited lability company. (1`lotar Pyr,:.t, -N D�� Notary Public r =1�;;� ' • ublipMitu�ota . _:.HrpM�sJan3t zotc •r.. r. rrr 4� MM SONDRAU � �eaom �I► �a�Iddon E�ipa Jan 91,2010 r S'T'ATE OF MINNESOTA ss. COUNTY OF HENNEPIN The foregoing instrument was acknowledged before me this %3 day of July, 2006, by Martin E. Opem Sr. and Daniel J. Donahue, the President and Executive Director, respectively, of the Economic Development Authority in and for the City of New Hope, Minnesota, a Minnesota municipal corporation, on behalf of said municipal corporation. SEVEN A. SONDPRAW Notary Public Notary Pubtic-Minnesots f My CartanWW LWM Jan 31 2010 PAAttornty15AS11 Cliem RCM2 City of New Hope199-24549(42nd and Qaebec)199-20549-Collateral Agrmt-r32,doc 8'S1,S` 6�01 al'v r Doc No 8870494 09/29/2008 09:39 AM Certified filed and or recorded on above date: Office of the County Recorder Hennepin County, Minnesota Michael H. Cunniff, County Recorder TranslD 259078 Deputy 3 Fees $35,50 DOC $10.50 SUR $2.00 COPY $48.00 Total CITY OF NEW HOPE PLANNED UNIT DEVELOPMENT CONDITIONAL USE PERMIT SITE IMPROVEMENT AGREEMENT THIS AGREEMENT is entered into by Quebec Properties, LLC, a Minnesota limited liability company (hereinafter "Developer") and the City of New Hope, a Minnesota municipal corporation (hereinafter "City"), this 13' day of July, 2006. WHEREAS, on May 22, 2006, by Resolution No. 06-83, the City Council approved Developer's request for a Planned Unit Development, Conditional Use Permit for shared parking and site access, an administrative permit for outdoor dining, a comprehensive sign plan and plat approval (hereinafter the "PUD/CUP") for certain real property located in the City of New Hope, County of Hennepin, State of Minnesota commonly known as 7500 through 7528 42nd Avenue North and legally described as: Lot 1 and 2, Block 1, New Hope Quebec Addition according to the duly recorded plat on file and of record in the Office of the County Recorder, Hennepin County, Minnesota (hereinafter "Property") to allow for the construction of two retail/office buildings consisting of 16,722 square feet (east building) and 11,489 square feet (west building) located on the property, and WHEREAS, the City Council also approved Developer's site and building development plans for the Property as set forth in Planting Case 06-06 (hereinafter "Plans"); and WHEREAS, the PUD/CUP was granted subject to the following conditions: 1. Developer to enter into the herein PUD/CUP agreement and provide an appropriate construction performance or financial guarantee as provided in Paragraph 11 (amount as determined by the City Engineer and Building Official), 1 2. Developer stud comply with the City Engineer's recommendations as set out in his April 13 and 25, 2006 memoranda (attached hereto as Exhibit A 1 and A2) which shall include the payment of a $47,100.00 storm water fee and a $11,000.00 cost sharing payment for the construction of a right turn lane onto Quebec Avenue. The storm water fee and right turn lame cost sharing payment shall be paid on or before the date of issuance of any building permits in connection with this PUD/CUP, 3. Developer shall comply with the City Attorney's recommendations on the plat set out in his April 24, 2006 letter (full report and summary attached as Exhibit B), 4. Developer shall submit building plans for approval by the City's Building Official, S. Developer shall submit building plans for approval by and comply with the West Metro Fire -Rescue District's recommendations as set out in their April 12, 2006 memo (attached as Exhibit C), 6. Developer shall comply with the City's Planning Consultant's recommendations including but not limited to the following: a. Final plat revised to show a 10 and 12 foot sidewalk easement on the south edge of the property, b. Submit revised and accurate information on lot coverage for lot areas, building, green space and paved areas, c. In the event more than two tenant bays are used for restaurant/cafb uses, Developer must submit a new site and building plan for review to evaluate compliance with parking requirements on site, d. Developer shall show truck circulation to loading area behind building one, if applicable, e, Drive through order board placement and related equipment shall be subject to review of the Building Official, f. ?Monument signage shall not be located in the 10 foot sidewalk easement on the south end of the site and shall conform to 10 foot set back requirement in the New Hope Sign Cade, 7. Developer shall provide a snow removal plan acceptable to the City, S. Developer shall provide a photometric plan in compliance with the City's requirements, 9. Developer agrees all landscape plantings shall be tolerant of the soils on the site, 2 10. Developer agrees it will assume all responsibility for maintenance of the MPCA monitoring system installed as part of this development, 11. Developer will correct all stop sign locations on the signage plans, 12. Developer acknowledges and agrees to comply with and satisfy all provisions of the Collateral Agreement Developer signed as part of the purchase of the subject property from the New Hope EDA, 13. Developer agrees to a waiver of final plat review by the New Hope Planning Commission. NOW, THEREFORE, IT IS HEREBY AGREED as follows: 1. INCORPORATION OF RECITALS. The recitals above are incorporated herein by reference, specifically including the conditions of the PUD/CUP. 2. 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 the 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 Plans that are listed below. Description of work 1. Removals/site grading/erosion control 2. Paving/curb and gutter/sidewalk 3. Storm sewer, water main, sanitary sewer 4. Restoration and Landscaping 5. Monitoring well relocation/soil disposal subtotal 50% contingency Letter of Credit Amount Estimated cost $100,000.00 $144,000.00 $85,000.00 $30,000.00 $80,000.00 $435,000.00 $217,500.00 $552,500.00 The Developer shall maintain all Secured Work for as long as the PUD/CUP is in effect. 4. COMPLETION. The Developer agrees that the Work shall be completed in its entirety on or before December 31, 2007(the Completion Date), except as this period of time is extended by resolution of the Council, or by the City taking 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 3 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 the Developer in default thereunder, and the statute of limitations shall not be deemed to commence running until the City Council has been notified in writing by the Developer that the 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. 5. COST OF WORK. The 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 the Developer or any subcontractor any sum whatsoever on account thereof, whether or not the City shall have approved the subcontract or subcontractor, and the Developer and its surety shall hold the City harmless against any such claims, and provide the City with all necessary lien waivers. 6. DEFAULT. In the event of default by the Developer as to any of the Secured Work to be performed hereunder, the City may, at its option, perform the Secured Work and the Developer shall promptly reimburse the City for any expense incurred therein by the City, provided the Developer is first given written notice by United States Mail of the Secured Work in default and required to be done by the Developer, not less than thirty (30) days being given thereby to the Developer to remove the default status, said notice being addressed to the Developer at the address set forth below. Notice given in this manner being sufficient as described, by agreement of the parties hereto. Notice to the 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 the Developer shall be and hereby is waived in its entirety by the Developer, and the 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 the Developer is limited by strikes and force majeure. 7. REVOCATION OF PUD/CUP. The City C:ouncii approved a PUD/CUP for the Property subject to certain conditions including completion of the Work. As an additional remedy separate and independent from any other remedy available to it, upon failure of the Developer or its successors and assigns to complete the Secured Work or maintain the Secured work for a period of 15 years after Developer executes this agreement , the City may revoke the PUD/CUP for the Property. Prior to revoking the PUD/CUP the City shall provide to the Developer or its successors and assigns at least 30 days written notice and an opportunity to cure any claimed default. 8. ADMINISTRATION COSTS. Developer agrees to reimburse the City for the actual administrative costs to the City associated with Planning Case 06-06, the PUD/CUP, and this Agreement, including but not limited to, outside 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. 9. HOLD HARMLESS. The 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 the 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 comes under the direct control of the Developer, the Developer shall also indemnify and hold harmless the City, its employees, agents and representatives for its own negligent acts in the performance of the Developer's required work under this Agreement or the PUD/CUP. Subject to the foregoing, the Developer's indemnity obligation shall not apply to any damage or claim caused in whole or in part by the City or its agents, employees or representatives. 10. COST OF ENFORCEMENT. The Developer agrees to reimburse the City for all costs incurred by the City in the enforcement of this Agreement, or any portion thereof, including court costs and reasonable planning consultant, engineering and attorney's fees. 11. FINANCIAL GUARANTEE. The Developer shall furnish the City with a financial guarantee acceptable to the City in one of the following forms: a) cash escrow; b) a performance bond issued by an approved corporate surety licensed to do business in the State of Minnesota, and executed by the Developer as the principal; c) an irrevocable letter of credit; d) an automatically renewing certificate of deposit in Developer's name but assigned to the City; e) 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 150% of the cost of the Secured Work as estimated by the City Engineer. 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 the Developer from any further liability, 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 all outstanding administrative costs. The City shall release the financial guarantee upon the full completion of the Secured Work required under paragraph 3 and payment of all administrative costs required by paragraph 8 as reasonably determined by City Staff. 5 12. NOTICE. The address of Developer, for purposes of this Agreement is as follows, and any notice mailed by the City to this address shall be deemed sufficient notice under this Agreement, until notice of a change of address is given to the City in writing: Mr. Brad Nordgaard Quebec Properties LLC 1915 Plaza Drive, suite 201 Egan, MN 55122 13. 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. 14. SUCCESSION. This Agreement shall be binding upon the parties, their heirs, successors or assigns, as the case may be. IN WITNESS WHEREOF, we have hereunto set our hands and seals. CITY OF NEW HOPE l� ��%,% / 1 � its City r. QUEBEC PROPERTIES LLC By: VV, Its-lp� t►y�cs� . a 1.1 itS STATE OF MINNESOTA ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this 2-0 _ day of 2006, by MARTIN E. OPEM SR. and DANIEL J. DONAHUE, the Mayor and Manalpr, respectively, of the City of New Hope, a Minnesota municipal corporation, on behalf of said municipal corporation. STATE OF MINNESOTA ) S ) ss. COUNTY OFj/ } �irf ✓_�._�1ri�� 1�'c�l �lr — rte 1J� A The foregoing instrument wasI a owleriged before me this / day of d 2006, by �vv a d1J'��v� and , the ffAia rm;jogw and , respectively, of Quebec Properties LLC, a MinnFsota limit& liability company, on behalf of said limited liability company. STEVEN A. S NDRALL Notary Public -Minnesota r My Can U=W-. LXP tG- ..a.: 31 2010 DRAFTED BY: JENSEN & SONDRALL, P.A. 8525 Edinbrook Crossing, #201 Brooklyn Park, MN 55443 (763) 424-8811 Notary Public PAAbxneyLSASV Oeu Pfau City of New fitpo W20M42nd and Qwbec}LSim kap marmt Apml PLD -CUP DIAm 7 Doc No 8827723 07/14/2006 01:40 PM Certified filed and or recorded on above date: Office of the County Recorder Hennepin County, Minnesota Michael H. Cunniff, County Recorder TransiD 237827 Deputy 11 Fees $5.00 ConsFee $35.50 DOC $10.50 SUR $51.00 Total s - / NOT RM.— �ND PRIOR TABS PAID TA)WA�ER 8iF111!!E6RNE TRAN8ffR EOD Jul 1 4 2006 HtI PIM COUNTY LIMITED WARRANTY DEED SUBJECT TO RIGHT OF REVERSION Corporation., Partnership or t.imited Liability Company to Corporation, Partnership or Limited Liability Company 012r 0311'?,6c._ STATE DEED TAX DUE HEREON: $ rI 3 • [..O Hann Co ri?T ( Date: July 2006. MG 65126 TA 7t14r406 Paid $1,734.00 ca FOR VALUABLE CONSIDERATION, Economic Development Authority in and for the City of New Hope, Minnesota, a Minnesota municipal corporation, Grantor, hereby conveys and quitclaims to Quebec Properties, LLC, a Minnesota limited liability company, Grantee, real property in Hennepin County, Minnesota, described as follows: N Lot 1, Block 1, New Hope Quebec Addition, according to the duly recorded plat on Arde and of record In the office of the County Recorder, Hennepin County, O Minnesota; N I and - Lot 2, Block 1, New Hope Quebec Addition, according to the duly recorded plat on (�0 file and of record in the office of the County Recorder, Hennepin County, t i Minnesota; ZSubject to easements, restrictions and covenants of record. Conveyance of the real property identified herein is subject to a reservation in favor of the Grantor of a right of reversion for failure of the Grantee to comply with the following obligation: Grantee agrees and covenants that it will construct, or cause to be constructed upon the real property, all structures necessary for completion of an approximately 17,400 square foot office and service retail building on the east one-half of the real property and an approximately 11,500 square foot retail building on the west one-half of the real property, together with all necessary site improvements (collectively the "Improvements"). Improvements must coincide with those approved by the City of New Hope as part of its governmental approval process. The Improvements must be substantially completed within 180 days after construction is commenced on each respective building. Grantee shall commence construction on each building and the entire site improvements necessary for their use when fifty percent (50`15) of the respective building is either preleased or pre -sold, but in no case later than December 31, 2007. If the Improvements are constructed in two phases, the covenant contained herein shall apply separately to each building. Construction will be considered substantially complete when a final Certificate of Completion has been issued for each building of the Improvements. Promptly after substantial completion of the Improvements the Grantor will, at the request of the Grantee, provide the Grantee with a Certificate of Completion in form and substance reasonably acceptable to the Grantee, Said Certificate shall be (and shall be so provided in the Certificate itself) a conclusive determination of satisfaction and termination of the agreements and covenants of the Grantee (and its successors and assigns) to construct the particular Improvements and satisfaction of the date for completion thereof. If the Grantor shall refuse or fail to provide a Certificate as required herein, the Grantor must, within thirty (30) days after written request by the Grantee, provide the Grantee with a written statement outlined in reasonably adequate detail the reasons the Grantor is of the opinion that the Grantee has failed to complete the Improvements as required, or the reason the Seller is of the opinion that the Grantee is otherwise in default. A writing required of the Grantor in support of its refusal or failure to provide a Certificate, must additionally outline the measures or acts that will be necessary in the opinion of the Grantor to be taken or performed in order to obtain a Certificate of Completion. Grantee agrees and acknowledges tnat in the event of an uncured default with respect to the Grantee's obligation to timely construct the Improvements as provided above, the Grantor may declare that all rights and interests conveyed in and to the Property (including to Improvements or rights subsequently added to the Property) shall revert to the Grantor. No reversion shall, however, occur until thirty (30) days have elapsed from the date Grantor has provided written notice to Grantee of the default and the objection notice referenced above. This Deed conveys after-acquired title. Grantor warrants that Grantor has not done or suffered anything to encumber the property. heck box if applicable: The seller certifies that the seller does not know of any wells on the described real property. A well disclosure certificate accompanies this document. 0 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. ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF NEW HOPE, MINNESOTA By: Mfirtk-E. Opem Sr. 21s,,den, C By: Daniel J. Donahue Its Executive Director STATE OF MINNESOTA } COUNTY OF IiENNEPIN ss. The foregoing instrument was acknowledged before me U118 13 day of July, 2006, by Martin E. Opem Sr. and Daniel J. Donahue, the President and Executive Director, respectively, of Economic Development Authority in and for the City of New Hope, Minnesota, a Minnesota municipal corporation, on behalf of the corporation, Grantor. N*UVYP A SONDRIta Notary` Put>tio�linnesofe Apcnmr.nnEng Jon 31,2W f Notary Public THIS INSTRUMENT DRAFTED BY: Jensen & Sondrail, P.A. 8525 Edinbrook Crossing, Suite 201 Brooklyn Park, MN 55443 (763)424-8811 Check here if part or all of the land is Registered (Torrens) ❑ Tax Statements for the real property described in Ns instrument should be sent to: Quebec Properties, LLC 1915 Plaza Drive, Suite 201 Eagan, Minnesota 55122 F;Uwff ry1ZAS1 Clive¢ Rou Cloy orNn Ik9e14A-2QM42WmW QwbsllW20 44d Wvnnq Dwd-001-Dube 2