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121195 EDA Official File Copy CITY OF NEW HOPE EDA AGENDA EDA Regular Meeting #19 December 11, 1995 Agenda #20 Pres/dent Edward J. Er/ck$on Comm/ss/oner W. Peter Enck Comm/ss/oner Pat La V/ne Norb¥ Comm/$s/oner Gerald Otten Commis$/oner Terr/ Wehling 1. Call to Order 2. Roll Call 3. Approval of Minutes of November 27, 1995 4. Update on Autohaus Site Improvements, 7709 42nd Avenue North (Improvement Project No. 467) 5. Resolution Approving Right of First Refusal for Acquisition of Homeward Bound Property at 4741 Zealand Avenue North (Improvement Project No. 533) 6. Discussion Regarding Lease Between Phoenix Manufacturing Corporation and the EDA for City-Owned Building at 7528 42nd Avenue (Improvement Project No. 474) 7. Adjournment CITY 'OF NEW HOPE 4401 XYLON AVENUE NORTH HENNEPIN COUNTY, MINNESOTA 55428 Approved EDA Minutes November 27, 1995 Meeting #17 CALL TO ORDER President Erickson called the meeting of the Economic Development Authority to order at 9:26 p.m. ROLL CALL Present: Erickson, Enck, Wehling Absent: Norby, Otten Staff Present: Sondrall, Hanson, Donahue, Leone, McDonald, Bellefuil APPROVE MINUTES Motion was made by Commissioner Wehling, seconded by Commissioner Enck, to approve the EDA minutes of November 13, 1995. All present voted in favor. Motion carried. AUTOIIAUS UPDATE President Erickson introduced for discussion Item 4, Update on Autohaus Site Item 4 Improvements, 7709 42nd Avenue North (Improvement Project No. 467). Mr. Donahue stated Autohaus did not deliver the revised plans in sufficient time for staff to analyze them. It was the consensus of the EDA to postpone discussion until a future meeting. ADJOURNMENT Motion was made by Commissioner Enck, seconded by Commissioner Wehling, to adjourn the meeting. All present voted in favor. The New Hope EDA adjourned at 9:27 p.m. Respectfully submitted, Valerie Leone City Clerk New Hope EDA November 27, 1995 Page 1 EDA Orlgtnatlng Department Approved for Agenda Agenda Sectlon City Manager EDA 12-11-95 Kirk McDonald '--"% Item No. By: Management Assistant By:~/~/fi UPDATE ON AUTOHAUS SITE IM/pROVEMENTS, 7709 42ND AVENUE NORTH (IMPROVEMENT PROJECT NO. 467) Thomas Boettcher from Autohaus will be present at the December 1 lth EDA meeting to present an update on the Autohaus site improvements. The EDA has previously requested an update on the progress of the improvements, particularly since Universal Color, Inc. has vacated the front portion of the Autohaus building. Boettcher will be presenting a revised site plan to the EDA and a large copy of the revised plan is enclosed in your Council packet if you want to review it prior to the meeting. On April 4, 1991, Autohaus, Inc. and the City of New Hope executed a Development Contract regarding specific improvements to be made to the Autohaus property, such as the installation of concrete curb, landscaping improvements, storm drainage improvements, paving and lighting improvements and the demolition of the Animal Hospital building. The contract called for the improvements to be made to the property by April 14, 1992. Autohaus subsequently requested several time extensions to complete the improvements. The most current agreement states that all improvements will be completed by October 31, 1994. While some of the work has recently been completed (such as striping of the lot), several items have not yet been completed (landscaping on east and west sides of property, trash enclosure, etc.). Also, in July, 1994, Autohaus submitted a request to the EDA to allow the retaining wall they constructed five feet from the property line to remain in place. The EDA declined to consider the request until an update on all outstanding issues on the plan was presented. In 1991, the EDA also made a low interest loan to Autohaus in the amount of $187,500 to assist with the acquisition of the former Animal Hospital site and for development improvements to the site. The loan was paid back in full this past summer, several years in advance of when it was dUe. MOTION BY ,~/¢D r' ~' SECOND BY Review: Administration: Finance: RFA-O01 Request for Action 2 12-11-95 Staff hope to meet with Autohaus prior to the EDA meeting to discuss the following staff comments on the plan and the EDA will also want to discuss these issues with Boettcher. Comments include: 1. The original plan showed that the space occupied by Universal Color Lab was to be used in the future for display area and the revised plan shows that the front portion of the space will be used for showroom and rear portion of the space will be used for a Service Department. A new overhead door into the Service Department will be installed on the west side of the building. 2. The original landScaping plan included: 29 Austrian Pines to be planted on the west property line between Autohaus and Country Kitchen 16 Isanti Dogwood to be planted on the south side of the building 156 Andorra Junipers to be planted along 42nd Avenue 33 Pfitzer Junipers to be planted along east property line between Autohaus and YMCA property 18 Teclmy Arborvitae to be planted on rear/west property line between Autohaus and Country Kitchen While some landscaping has been completed at the front of the site, the majority of the plantings included on the original plan have not been completed. The revised plan does not include a landscape schedule with plant name or quantity. The revised plan shows coniferous trees (6) along the west property line, deciduous trees (4) along the east property line and shrub plantings along 42nd Avenue. The landscaping portion of the revised plan needs to be more specific, and staff is concerned that the landscaping has been reduced from the original plan. 3. The original plan showed a 10-foot setback between the sidewalk and the front display area for plantings. A retaining wall was installed 5 feet from the sidewalk and this is shown on the revised plan. Autohaus desires to keep the retaining wall in place. 4. The original plan showed an outdoor trash enclosure to be installed on south side of the building, as does the revised plan; but the enclosure has not been completed. 5. Autohaus has made application for a sign variance for new canopy wall signs which will be considered in January. They will also be making improvements to the existing center ground sign and have indicated that the second ground sign on the northeast side of the property will be removed. 6. The revised plan shows A. one 48" elevated auto display at the northeast corner of the property, B. one 48" (to be changed to a 24") elevated auto turntable display in front of the property, and C. one 24" elevated auto display at the northwest corner of the property. The elevated auto displays were not included on the original plan. Request for Action 3 12-11-95 The parking lot was recently striped and Autohaus has indicated that the lot will be sealcoated and re- striped in 1996. They. also have plans to repaint the building. The major issues that need to be discussed/resolved are the landscaping, retaining .wall/setback and the auto display turntables. After these items have been resolved, staff recommends that the agreed upon changes be incorporated into the site plan and that a revised Addendum be prepared/executed to define the timetable for completion. ADDENDUM TO CITY OF NEW HOPE DEVELOPMENT CONTRACT 1. Parties. T,.h.e parties to this Addendum are the City of New Hope (hereafter City), Autohaus of. Mtnneapo11 s, Inc. (hereafter Autohaus) and Thomas W. Bosttcher, individually (hereafter Boettcher). 2. Pronerty. The real property (hereafter Property) to which the this Addendum applies is owned in fee by Boettcher and is .. !ocated tn Henneptn County, Minnesota, legally described as: (See attached Exhibit A) 3. Purooae. This Addendum shall modify the that certain Development Contract dated April 4, 1991 (hereafter Contract) entered into by the parties. Autoheus and Boettcher acknowledge and agree that they are in breach of the performance conditions of the. Contract and in consideration 'for the City's agreement not to immediately pursue its remedies under the terms o.f the COntract Boettcher and Autohaua have agreed to enter into this Addendum. 4. UnPerformed Conditions. Specifically, Autohaus and Boettcher acknowledge and agree that they have failed to Perform all the requirements of paragraphs 2.A) through I) and 3 of the Contract. With respect to. the work required 'by. thos® provisions the 'parttes hereto agree'- that Autohaus~ and. $oettcher wtll perform the work ae folYOws: ' a.) l'~e Installation of concrete curb from the moat southerly ' ' ' wall of the but ldtng northward to County Road No. g shall be completed by October 31, 1993. The rem&tnder of the COMPLETED. curbing aa shown on the site plan shall be installed by · October 31, 1994, except that curbing around the perimeter of the unpaved body shop and repair, storage &re& eh&Il-be Installed if and when said body ~hop and' r~tr storage area ia paved aa met forth below. All cq~t~ng aha11 be of a surmountable type aa approved by tll~TOtty. Autohaue and Boettcher shall submit a diagram of e&1d' curbing for approve1 to the Ctty prtor to i natal 1at ton. b.) ' All planttnge chown' on the site plan north of the butld'tng's moat southerly wall shall be Installed by NOT October 31, 1993. All other plantings shown on the site COMPLETED plan shall be'installed by October 31, lgg4. c.) The six-foot opaque security fence around the perimeter of the body shop and 8Ollision repair storage area shall COMPLETED be installed by October 31, 1994. The existing fencing .shall remain in place until the new security fence' is instal 1 ed. d.) The installation of lighting shown on the site pla..n shall be completed by October 31, 1993. However, the parties COMPLETED agree t'hat the existing lighting for the collision repair area as of the date of this Addendum is adequate and no further lighting is required notwithstanding the lighting required by the site plan. e.) All planted areas completed in 1993 will be sprinkled by PARTIALLY October 31, 1993. All planted areas completed in 1994 COMPLETE will be sprinkled by October 31, 1994. f,) The installation of the outdoor trash enclosures will be NOT DONE completed by October 31, 1994, CDOMPLETEg') The front display area will be completed by October 31, PAVING 1993. However, the parties agree that the front display STRIPING NEEDS TO BE area can be paved with concrete and bituminous. DONE--NO HANDICAPPED SPACES h.) The ielande in the transport lane area will be installed NOT DONE by October 31, 1994. ,. t.) Erosion control measures of grading and seeding in a form and manner approved by the City Engineer shal 1 ' be c~pleted by October 31, 1993. The erosion control meesuree shell apply to all unpaved areal. j.) The City agreem to waive indefinitely ther'equtrement the Contract that Autohau~ and ~ettcher pave'the body · sho~ and repair ~torage area. He. ever, .tf'-Autohaua and Boett.~her elect to p~ve the body shop ~nd 'repair storage Boettcher w411 be r~uired to tn~tA11, prior to ~avtng, the publtG atom water drainage Improvements rmqutred by ~(ra~rm~h 3 of the Contrm~t. And, prior to Installing a~td ,to~ water drainage tmprov~ent,, ~_~aoe ~d-the City must agree on the feasibility ~-paint of the cost of ~ald stem water drainage ITEMS THAT NEED TO BE COMP.LETED: LANDSCAPING .AS. ,C OSU E ~ -- STRIPING TRANSPORT LANES 2 5. Nonmerqer. The parties agree that the terms of the Contract and this Addendum shall survive the satisfaction, re]ease or termination of the April 4, 1991 Mortgage, Security Agreement and Fixture Financing Statement given by Boettcher, and Autohaus and Boettcher shall be required to perform a]] work set forth above even if said Mortgage, Security A9reeme.nt and Fixture Financing Statement is satisfied, released, or terminated. e. ~ecurity. The subdivision bond or other security required of Autohaus and Boettcher to ensure their performance under the Contract shall be reduced to $1,000.00. 7. Effect of Addendum. The parties agree that this Addendum 'shall not change the other provisions of the Contract, which shall remain in full force and effect. This Addendum shall be "construed as supplemental to and not inconst'stent .with the Contract· The parties further agree that .a.breach of this Addindum sh&11 also constitute a breach of .the. April 4, 1991 Mortgage, Security Agreement and Fixture Financing. Statement given by aoettcher.to secure the April 4,-1991 Mortgage Note executed by Boettcher. Autohaus further agrees that the assignment of the Certificate. of Deposit given as financial security to insuri performance of. the-Contract shall subject' to reduction aI set forth ,-above, &1so extend to' secure performance under thtI Addendum. Dated: ~ By D&ted: ~ ltvidually 3 .~401 Xvlcn Avenue NOrtt~ TeleOhone: 6~2-531.5100 Oty Hail ¢ax. =~'2. ~..:' New Ho~e. Minc, esofa 55428.4898 TDO Line: 612-531.5109 Police Fax: :5~2..~j, Put~hc Wor~s Fax: July 27, 1994 Mr. Thomas Boettcher Autohaus of Minneapolis, Inc. 7709 42nd Avenue North New Hope, MN 55427 Subject: REQUEST TO ALLOW FRONT RETAINING WALL TO REMAIN IN PLACE FIVE FEET FROM PROPERTY lINE Dear Mr. Boettcher: ,. At the luly 25th' New Hope Economic Development Authority meeting, the City Manager presented your letter to the EDA requesting to allow the exisfin~ retainin8 wall to remain in place five feet from the pmpert7 line, due to the fact that Universal Colour Lab, Inc. wQl be extending their lease and the plan for the front display area will be delayed. Th~ EDA declined to grant the request until an update ~ all outstanding is,roes on the plan is presented. The ED A indicated that th~ do no~ warn to amend the existin~ Development Agreement for " only the retalnin~ wall hsue if other cha~es also m~d to'be made. As you are aware, all landscaping ami site im?roveme~ (iacludi~ those in the rear of tbe buildi~) are to be completed by thi., fall. Tae EDA wants an update on all oumandi~ issues before it will consider your request to allow the ~ wall to remain in place, and the City cannot proceed 'with any curb i .m!~'ov~ on your property in conjUacfioll with the 42ad Avenue L~da~l~gi~~ Improvement Project until the retalnin~ wall issue is resolved. I have enclose~ · copy of the most recently revised agreement between the City itnd Autohaus. Please review ~ ~ and respond in writin~ re/ardi~ the outstaading improvements to be complet~L Also, ple~e l~ Dan or myself know if you will be able to auend an upcoming' Couacil/EDA meefi~ ~o amwer the EDA's 'questions so tim we can move forward on this matter. Family Styl~l City ~ For Family Livin~ Mr. Thomas Boettcher Suly 27, 1994 Page 2 Sincerely,' " Daniel $. Dormhue City Manager Kirk McDonald Management Assistant/ ~' · .... . Community Development Coordinator .: ..... Enclosure: Development Agreement cc-.'. Dan Donahue, City Manager - Steve 5ondrall, City Attor~y Mark Hanson, City Eng~r Doug Sandstad, B~ilding Official -- Improvement Project #467 COUNTY ROAD "o NO. 9 16' ~ 61' I 12'1 e,..6, i ~6, I ~2' I 16, I 8,.6. I 19' euroeo~v _ / ~ -~---~ J~utohaus 30. ~,~;o~ hauS I ............................ * ~*;:: **:::*=**:: *"******* ~*j I I ,/,..,.,. EDA t REQUEST FOR ACTION Originating Department Approved for Agenda Agenda Section City Manager EDA {11-95 Kirk McDonald ! Item No. By: Management Assistant By: . 5 RESOLUTION APPROVING RIGHT OF FIRST REFUSAL FOR ACQUISITION OF HOMEWARD BOUND PROPERTY AT 4741 ZEALAND AVENUE NORTH (IMPROVEMENT PROJECT NO. 533) The enclosed resolution, which authorizes the Mayor and City Manager to execute a Right of First Refusal Agreement for the acquisition of the Homeward Bound property at 4741 Zealand Avenue North, has been prepared by the City Attorney for consideration by the EDA. The EDA has indicated an interest in the use of the property in the event that it is sold by Homeward Bound and the EDA has been working with representatives from North Ridge/CareBreak for the possible location of an adult day care facility at the site. The enclosed Right of First Refusal permits Homeward Bound to freely market the property, but provides the EDA with the opportunity to match any purchase offer for its acquisition. In other words, the EDA would have to buy the property pursuant to the same terms and conditions being offered by a third party. If the EDA would not meet the offer, then Homeward Bound would be free to sell the property to the third party without any claim of right by the EDA. The terms of the attached agreement are that the EDA would pay $500 in consideration for its right to match any third party offer. Staff recommends approval of the resolution. -! Review: Administration: Finance: RFA-O01 DEO-06-@5 ~ED 13:46 ?,02/09 Com~ICX & SONO~.LL, P,A. Edinburgh E~ O~ce P~ 8525 Edi~b~k Crossing ~uitc Drooklyi~ P~k, ~CSO~ December 6, 1995 Mr, Daniel d. Oonahue City Manager City of New Hope 4401Xylon Avenue North New NoDe, MN 55428 RE: New Hope EDA/RighT Of FirSt Refusal for Homeward Bound Property Our File No: 99,11101 Dear Dan: Please find enclosed a Resolution AUThOrizing Execution of the Right of First Re¢usa] for the Homeward Bound property by the Mayor and City Manager for consideration at the December 11~ 1995 Counctl meet ing. [ took the liberty of making a $600' offer to Homeward Bound for the execution of th~s document. It is my op~nton $500 ~s ~easonable oonsiderat~on for the EDA'S right To match any third ~arty offers for the Homeward Bound DroperTy. If we exercise our right to acquire the property pursuant to this document, the $500 payment will be applied to the purchase price of the property. Please contact me if you have any ~uestions about the contents of this document. Very truly yours, Steven A. Sondrall EnclOsure ~ co: Va~erie Leone (w/eno) , DE0-06-86 WED 1S:4¥ P, 03/09 December 8, ~. Donna Noverman Executive 4741 Zealand Avenue North New Hope, MN 5542S RE; New Hope EDA/Rigr~t O~ FirSt Refusal to Acquire Property Please find enclosed a proposed Right of First ~efusa3 you have discussed with both the N~w Nope'M~yor a~d City ~&nager. This ~ocument ~s submitted ~n connection with your org~nlz~tion's ~n New Hope, As you are aware, the New Nope ~¢onomtc Developmen~ Authority is very interested in ~he use of your property in t~e event your organization decides ~o sell it. AS you are aware, we are ~orklng With the peo01e ~t North Ridge for the possible tocatio~ ~dult da~ care ?~cility in the City, ~nd your proper'ty ~ouiQ be very suitable ~or such ~ The enclosed Righ~ of First Refusal permits you to freely market your pFoperty but ~mply provide~ t~e New HOpe EDA w~th the opportunity to match any purchase offer for ~ts acquisition. In other words, we woutd have to buy the property pursuant to the same terms and conditions being offered by s third party, if the New Hops EOA ~OeS not meet the offer, then ~ou are ~rae to ~e~ the third party wlth~ut ~ny claiffi o~ right by th~ New Hop~ The New Hope EPA woutd p~y ~500 in con$iQer~t~o~ for ~ts match ~n¥ third p~rty offer pursuant ~o this ~ight of DEC-Q6-95 ~ED 13:4'~ P, 04/09. . Ms. Donn~ Hover~an December 6, 1995 P~ga 2 p rope rt y, P~aa~e do not he~t~t~ to co¢~t~ct me wi~h ~ny Questions yoa m~ght have About the enclosed docu¢lent. Very truly yours, [ BY ST~EN A. SONDR~L .~' co: D~n{el d. Oon~hue, C~ty M~n~ge~~ EPA RESOLUTION NO. ,. RESOLUTION APPROVING RIGHT OF FIRST REFUSAL FOR ACQUISITION OF HOMEWARD BOUND PROPERTY AT 4741 ZEALAND AVENUE NORTH WHEREAS, the Economic .Development Authority in and for the Oity o~ New Hope hereby determines it is in the best interest of the city of New Hope to cbntrol the use of the property at 4741 Zealand Avenue North, and WHEREA~, the Economic Bevelooment Authority in and for the City of New Hope is specifically working with Senior Outreach Services, Ino., e non-profit corporation to establish an adult day care facility within the City, and WHEREAS, it is hereby determined that the property at 4741 Zealand Avenue NOrth m&y be s suitable property for an adult day care facility usa. NOW, THEREFORE~ BE IT RESOLVED by the Economic Development Authority in and for the City of New Hope as follows: 1. The Preslaent and EXeCUtive Director of the Economic Development Authority (n and for the City of New Hope are hereby authorized to sign the attached Right of First Refusal providing the Economic Development Authority in and for the City of New Hope an option to match, any offer submitted to Homeward Bound~ Inc. for the acquisition o~ the property at 4741 Zealana Avenue NOrth. Adopted by the Economic Development AUthOrity in and for the Ctty o( New Hope this 11th day of Becember, lgg~. Edw. d, Erlckson~ President Attest: Daniel d · Donahue, Execut i~,ve Dtrector DE0-06-95 13:48 P, 06/09 , RIGHT OF FTRST REFUSAL WHEREAS, Homeward Bound, [nc., a Minnesota non-profit corporation (the Owner) is the fee owner of certain real estate located in Hennepin County, Minnesota, leg&lly described as= The South 332.43 feet of the West I/2 of the Northwest Quarter the Southeast Quarter of Section 7, Township 118, Range 21, except the East 360 feet of the South I80 feet thereof, according to the Government Survey thereof; (the Property), and WHEREAS, the Economic Development Authority in and for the City of New Hope (the EDA) wishes to obtain a right of first refusal for Durchase of the Property. NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the Owner mhd the EDA ~gree as follows: 1. N_O. tiqe of ProposeU Sale. The Owner shall give the EDA written notice by certified mail or person&l service of any signed purchase mgreement for all or ~ part of the Owner's interest in the Property, including the terms and conditions of said proposed The Owner shall include a contingency clause referring to this right of first refusal in any purchase agreement involving the P rope r t y, 2. Exercise of..Omt.~on. The ED^ shall hsYe 30 days from date of re~elpt of s~id notice within whic~ to exercise the option to purchase the ~nterest of the Owner in t/he Property upon the same terms and conditions a~ contained in sai~ Purchase Agreement. The EDA shall exercise the option by delivering to t~e Owner, or by re~ording with t~e Registrar of Titles, notice that the EDA wil~ purchase the Owner's interest in the Property. A closlng of the sa~e/purchase shall then take pl~e within a reasonable time after the exercise of this Option, I ' 3. Non~E~erci..~e of Optio~, [f the EDA fails tO exercise said right to ~pur~hase the property by COmDlyi~g with the terms above, the EDA'S right of first refusal shall become null and vo~, and the EDA shall provide to the Owner reasonable documentation recordable form, such as, but not limited to, a Waiver of Right of First Refusal, whtch evidences the waiver of the EDA's rights under t~is ~greement. 4. Payment for Option. In consideration for this ri9ht of first refusal, the EDA will pay the Owner the sum of $500.00 within 20 days of final execution of this agreement. In the event the EDA exercises its Right of First Refusal, the Owner agrees the $500,00 payment mede hereunder will be applied to the EDA's purchase of the property and will be considered an earnest money paid by the EDA to the Owner for the acquisition of said property. 5. Termination ...Dat~. If not otherwise terminated or modified, this agreement shall terminate and become null and void on a eats five years from the date of execution of this agreement, 6. Notice. Any NotiCe required by this Agreements if mailed, shall be mailed to the following address; FOR THE OWNERS: Attn: Donna Hoverman Homeward Bounds Inc. 4741 Zealand Avenue North New Hope, MN 56428 Attn: Donna Hoverman FOR THE EDA: Attn: Daniel d. D0nahue New Hope EDA 4401Xylon Avenue North New Hope~ MN 55428 Attn: &raven A. Sondr~11 Cor~i~k & Sonars11, P.A. 8525 Edinbrook Cro~sing, ate. 20~ Brooklyn Parks MN 55443 7. ~u.ccession. Thte agreement shell be btndlng upon and inure to the benefit of the ~eirs~ administrators, executors an~ successors of the respective parties. Dated this _ day of , 199 HOMEWARD BOUND, INC~, a ~innesota non-profit corDorat~on Its ?,08/0@ ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE-CITY OF NEW HOPE, a Minnesota munici0al corporation By Its President By Its Executive Director STATE OF MINNESOTA ) ) S~, COUNTY OF HENNEP[N ) The foregoing was acknow]edged before me this day of , 199~, by ., the and , reape~t~vely, of Homeward Bou~ Inc., a M~nneaota non-profit corporation, on .behalf of sa~d corporation, Notary Publlo STATE OF MINNESOTA ) ~ COUNTY OF HENNEP[N ) The foregoing was acknowledged before me this day ot ,'199 , by Edw, d. ErtGEson and Oan~el J. Donahue, the chairman an~ exeou~ive director, respectively, of the Economic Development Authority in and for the C~ty of New Hope, a Minnesota mun~c~p&l corporation, on behalf of said corpora:io~, Notary Publlc 3 DEC-06-95 N~D 13:49 P, 09/09 DRAFTED BY: CORRICK & SONDRALL, P.A. 8525 Ed~nbrook Crose~n9, #~03 ~rook]yn Park, MN 55443 (012) 425-5671 4 EDA ) REQUEST FOR ACTION Originating Depmtment Approved for Agenda Agenda Section City Manager EDA  1-95 Kirk McDonald Item No. By: Management Assistant By: 6 DISCUSSION REGARDING LEASE BETWEI~N PHOENIX MANUFACTURING CORPORATION AND THE EDA FOR CITY-OWNED BUILDING AT 7528 42ND AVENUE (IMPROVEMENT PROJECT NO. 474) The existing lease between the EDA and Phoenix Manufacturing Corporation for the City-owned building at 7528 42nd Avenue expires on 12/31/95 and staff requests to discuss with the EDA if you are interested in extending the lease into 1996. The City has no immediate plans for demolition of the building/redevelopment of the property and Phoenix Manufacturing has made timely lease payments during the past year. As you will recall, the EDA entered into the lease with Phoenix for the same terms as the EDA had with Foremost, Inc. The current lease rental rate (from 4/24/95 through 12/31/95) is $20,020, which is the amount of the 1995 real estate taxes. Under the existing lease, Phoenix Manufacturing is required to pay all building operating expenses (insurance, maintenance, utilities) and to correct any substandard building conditions. A copy of the current lease is attached for your information. If the EDA is agreeable to extending the lease, staff would request direction from the EDA on the terms and conditions of the extension. Staff recommends that the EDA consider increasing the rental rate to market rate conditions, per the enclosed information. Staff recommends that the EDA authorize the City Manager to negotiate with Phoenix Manufacturing on a lease extension if you are favorable to letting them remain in the bUilding. MOTION BY SECOND BY Review: Administration: Finance: RFA-O01 DATE: March 22, 1995 .. TO: Dan Donahue, City Manager Steve Sondrall, City Attorney FROM: Kirk McDonald, Management Assistant/Community Development Coordinator SUBJECT: Industrial Building Rental Rates In an effort to determine what market rental rates currently are for industrial buildings in the New Hope area, I contacted Thorpe Bros., Inc. (our agent for the vacant property at 42nd/Nevada Avenues). We specifically discussed the Foremost, Inc. building at 7528 42nd Avenue North. Per the attached excerpt from the appraisal, the building contains an area of 20,795 square feet and contains 1,600 square feet of office space, or 8% office area. Thorpe indicated that a Iow rental rate for warehouse space would be $2.50 per square foot on a triple net lease (they pay all utilities and taxes). They said a more reasonable rate would probably be $3.00 - $3.25 per square foot. Thorpe indicated that the office space should rent for $5.00 - $6.00 per square foot. Using these market estimates on the Foremost building, the monthly and annual payments that might be derived from a lease are calculated as follows: Office Space -- 1,600 sq. ft. x 5.00 psf = $ 8,000.00 Warehouse Space = 19,195 sq. ft. x 3.25 psf = 62.383.75 TOTAL PER YEAR = $70,383.75 + 12 months TOTAL PER MONTH $ 5,865.31 6 The lar~ is improved with a one story, concrete block and steel frarr~ ~ial buildin~ with =site Daved parking and landscapirg. 80' X 87.5' = 7,000 17.5' X 66'" 1,155 40' X 76' =' 3,040 120' X 80' =' 9.600 Toe~l 20,795 Sq,,~e feet (1,600 sf office slmace, or 8% office) The buildin~ was ~ to have been originally ]m.ti].t in 1962, with a 1965 addition ar~ the last r~ addition cc~u~xucte~ in 1978. in some floor cracks and in one series of wall cracks r~-,' the midpoint on ~ block sxtarior wall m~ intarior stssl ~xm-t and be~m framing ~. It~ ~ ~av~~~~ti~. ~o~ ~1~ ~gri= ~ ~ ~~ ~~ bl~ ~ ~l ~ ~ ~e offi~ ~ ~ f~~=~ a bri~v~ ~~. ~ior~ls a~ ~ av~e ~~. ~ ~f ~ a ~ ~ jo~ ~ wi~ ~ ~, rigid ~ation ~ ~lay of ~lt-~ ~t ~ ~v~ ~t is ~~ ~ ~ve ~ ~a~ 5 ~ 6y~ ~. ~f 1~~ ~~ ~~ ~f is ~he floors are heavy poured and reinforced concrete. A number of cracks' were observed b~c ~he floor is generally level and fully usable. Floors offices are covered wi~h vinyl tS.le. In,.riot Walls In~erior walls are primarily ~ concre~ blocks wi~/1 average =o fair plywood panelin~ in ~he offices. In~erior v~lls are in average Ceilings are open ~o ~ha ~ fzama in =he shop space and dropped ~o aoous~c ~ile~ wi~h recessed fluorescen~ ligh~ng in ~he offices. There is T~e buildin~ has me~=~ f~--- wirdows wi~h swing~ opening seCcions at office, single pan~ glazed. There is a glass and me~al front e~xy door, me~al service doors and wood ~ overhead doors for loading at ~ bed height. Doors and winda~ are in average condition. A 1,200 amp electric main serves ~ha buAlding. T~ere ara eigh= 2O0 amp circuits and four 100 amp circuits. Perimeter plug-ins ar~ found in ~he shop space and ~he office appears ~0 have av~ c~m ~t~ ~ibu~ion. Hookups ~o Plumbina The office is ~c~1¥ served by t~o, tram fix~t~e washroc~s wi~h ceramic ~ile floor and ~ and ~he shop has a separate five fix~Are washroa~ includin~ a 360° Bradley hand washer. There is a 30 gallon natmral gas fired water hea~_r and cc~0~r piping was observed. Plumbing is average. gas fired ~lower unif.~ in the shop spaoe. A Carrier na~x=-al gas fired fuzna~ and central air conclitionir~ uni~ servee the offices. Su~~ office air conditioning is provided by one wall ~? ~ti°net. 9~e office also has a smokm eater (~' lmrifier). A three ton sir~le z-ail, rail ~ist passes in an east west direction from the ~ l__,3~ng clock across the width of the huildir~:. No other manuf~ir~ and the modest amcalr~ of office ttsage ~h~t t~ually a~es that type of use. The rear sh~ space is divided into three or four general use areas scare of which arm partitioned. There are two se~s of smaller sho~ offices. and is in slightly above average overall cca~ttic~. On-Site Toe b,~nq ~ about rmlf of the site. Scddinq occupies about 10% of the site lyinq -*-~c and scut~ of the b,~nq with the balance of the site occupied by bill,nc,,- paved parkinq lot, drive isle, and lcadirg ar-~-. The bittmtinca~ pav~ is aging, somewhat breakir~ u~ and oonsidered to be in only fair overall ~ticn. I I .... L...L ........ '''ii'T:' 'i: ';.,:il|Itl~i.ltflil~t,:,.I ..... .... ~,~, . , 'Ou. I ..... ~" : ' ~ ...... ~ .~. ,}},:l~ ....... t .... : , · . } ........ : ~. .. · : ...... ~-: ..~. ~..~..~ .;. . ,~ ...' ... :. ~ ~.~ ....... r .......... ~ ~ ........ ~--r · r'-~ I ....... · ~,.~ .~ · *1~ "",''" .... o'~' o ~'~' · [' ':',~' '~: ~'~'d:,~i~l~ *:~'~- I ~...,.~.+..~.~ . :.. ': ':~t:. :~: .... ~' [.~::~1~ ; ::: :'z :::, ~.~ ~]. · · ~ "i';"' ~ .... 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'.i.. ..... ~~_ _~..~ ~ ..... ~ .... ~ ........ . .... ~ .~II ......... ~ .;t.I...;.,. ~ .~,1 ,~ · .~ , : , . ~ . -.L .I ~.: , ~ .... ;O.~l-I Iii i.I .... ..- ~ ..... t ........ i · ~ .,.4.1.~1 .~ .... :,;t.l. il~.,ll :., ...... ~ .... t ...... I ........... ~ ~ ~ "1'1 . , ~ . , ~ . , · ' ........ 1 ' ' .... [ ........... ~--lll~ ,-~*~-~-~-t' '~ol.It-'*,'~ ~" ~It'~ -,:' ..... ..... ~ .... i I ~ : t [ ~[ i-I.l I * i : i I I I i I Iii ........... ~.-?~-~---. [4-t.t.t~I,-~-r~t-;-~ ~lt ~.'tI .... : ', ...... ......... j ...... ' I ..' I l.'l~lll~: ~' '~ ~ 't ~''':'' ' ~:,.I ! ~1 "N.'~I/2 SEC. IZ $C~ .~' ,., ....... , I " Z.;. ~'~'-~" ' ', ' (,~,oi ~, -- I [ Plat Map, 88/15/95 12:38 'LINDQUIST & UENNUM + 8???2959 N0.785 P004 ' LEASE day of f , 1995, by, and between the Economic Development Auth and for the City of New Hope (hereinafter "Lessor"), and Phoenix Manufacturing Corporation, a Minnesota corporation (hereinafter "Lessee"). The Lessor and the Lessee, used collectively herein, may be hereinafter called the "Parties" IT 15 HEREBY AGREED, in consideration of the mutual covenants and pcomises herein: t. Leased Premises. The Lessor, in consideration of the herein rent~', covenants, agreements, and sti~ulations to be pa~d, kept, and performed by the Lessee does hereby lease and rent to the Lessee, and The Lessee hereby ~grees to lease, and to take, u~on the terms, ~nd the conditions, hereinafter set forth, certain rea] property, consisting of a Building, hereinafter called the "Building",.and Land, hereinafter ca~]ed the "Land", known as 7528 42nd Avenue North in the City of New Hope, in the County of Hennepin, in the State of Minnesota, and legally described as follows: Lot 5, Auditor's Subdivision No. 324, the adjacent vacated alley, subject to street and utility easements, Hennepln County, Minnesota. hereinafter called the "Leased Premises" 2. Base Rent, The Lessee agrees to pay the Lessor, beginning on the commencement date of the Term, as hereinafter defined ~n Paragraph ~, entitled "Term", of this Lease, a Base Rent, hereinafter called "Base Rent", of Twenty Thousand and Twenty Dollars ($20,020.00). Said Base Rent sha]~ be paid as follows: (i) Seven Thousand Five Hundred Dollars ($7,500.00) has been paid p?ior to the d~te th~s Lease is executed; (ii) Two Thousand Five Hundred 087t5xg5 12:30 LINDQUIST & UENNUM + 87772059 N0.705 P00~ Ten Dollars ($2,510.00) Will be paid upon execution hereof, and (iii) the remaining amount will be paid in four equal monthly payments of Two Thousand Five Hundred Dollars ($2,500.00) each (the "Monthly Payments") on the first d~y of September, October, November and December, 1995. 3. Additional Rent. Wherever ~t ~s provided ~n th~s Lease that the Lessee ~s required to make payment to the Lessor, such payment shall be deemed to be Additional Rent. All remedies applicable to the nonpayment of rent shall be applicable to nonpayment of additional rent. Notwithstanding the foregoing, such Add~tional Rent shall not be deemed to be Base Rent. 4. Term. The Term of this Lease shall commence April 2~, 1995~ and terminate at midnight, December 31, 199~. It is understood and agreed Lessee shall have no option to renew this lease. 5. Current Condition. The Lessee acknowledges that the Lessee Has had ample opportunity to 4nspect the condition of the Leased Premises. The Lessee ~mkes the same in ~s present condition, "as is". Lessee agrees that Lessor shall not be obligated ~o make any reDaCts to ~he building at mny time during the lease term. 6, [~ture Upkeeo. The Lessor shall have no responsibility for any maintenance, repairs, or replacements to the Leased Premises, except only as specified in Paragraph 12, entitled "Damage or Destruction of Premises", and in Paragraph 21, entitled "Condemnation". 7. Maintenance and Repairs by Lessee. Other than as provided ~n Paragraph 12, entitled "Damage or Destruction of Premises", and in Paragraph 21, entitle~ "Condemnation" the Lessee agrees, at ~ts own expense, to keep and maintain t~e Leased.Prem~ses, Th~s shall include,.without l~mit~ng the generality of the foregoing: foundations, structural components, walls, roofs, HVAC systems, plumbing systems, electrical systems, floors, 08/15/95 12:30 'LINDQUIST & UENNUM a 8?772959 NO.?05 P006 j ~ exterior and interior doors, windows, and glass, all other components of the building, driveways, walkways, and parking areas. It is understodd Lessee is under no obligation to ~ake any repairs but Lessee agrees it is not entitled to any rent abatement for rep&irs made pursuant to this paragraph. 8. Utilities. The Lessee sh~]l pay, and shall hold the Lessor free and harmless from, all bills or assessments for lights, heat, water,, gas, sewer rentals or charges, and any other expenses arising out of, or incidental to, the occupancy of said Leased Premises by Phoenix Manufacturing Corporation through the term of this lease. 9. Taxes and Assessments. The Lessor acknowledges and agrees it shall pay ail real estate taxes and sDecial assessments due against the ~eased premises for the term of the lease. 10. Lessee's Improvements. (a) Lessee's Options. The Lessee, during the fuji Term of this Lease, sha~l have the right, at any time, and from time to time, at its own, and sole, exDense ~nd liability to p~ace, or to insta~], within the Building such leasehold improvements as the Lessee desire. (b) Ownership Upon Termination. All such leasehold improvements made by the Lessee shall be, and shal~ remain, the pro~erty of the Lessee. Such leasehold improvements may be removed by the Lessee, at the Lessee's own 8xpense. (c) Required Approvals. The Lessee shall first obtain the prior written consent of the Lessor for improvements involving structural changes or external appearance changes, including signs, or if the estimated cost of improvements shall exceed Ten Thousand Dollars ($10,000,00). 3 ~8/15/95 12:31 · LINDQUIST g UENNUM 9 8?772959 N0.785 P887 , ? (d) Standards. No such installation or construction shall violate any lawful rule or regulation, plat, or zoning regulation, or other law, ordinance, or regulation appl'icable thereto. All shall be done and performed in a good and workmanlike manner, (e) Costs. Al1 costs of any such improvements shall be paid by the Lessee. The Lessee shall allow no liens for labor or materials to attach to the Leased Premises by'virtue thereof. Insurance. The Lessee agrees to pay all of the premiums required during the Term hereof, to provide, and to keep in force, the following insurance coverage. -. (a) Nature of Coverage. Commercial general liability insurance, providing coverage on an "occurrence" rather than a "claims made" basis, which policy shall include coverage for bodily injury, property damage, persona1 injury, contractual liability and independent contractors, with combined policy limits of not less than Two' Million Dollars ($2,000,000), for injury or death in any one accident or occurrence, including property damage, insuring the Lessor and the Lessee. (b) Cance~atlon and Modification. All such policies shall provide against cancellation or material modification, except after thirty (30) days written notice to the Lessee, and the Lessor. (c) Commencement and Payment. All policies provided hereunder shall be obtained by the Lessee prior to the commencement of the Term hereof. Payments of premiums shall be made by the Lessee. (d) Increased Risk. The Lessee shall not carry any stock of goods, nor do anything in, or about, the Leased Premises which will impair, or invalidate, the obligation of any policy of insurance on, ar in reference to, the Leased Premises. 88/15/95 12:31 -LINDQUIST & UENNUM a 8?972959 NO.?~]5 P~08 12. Damage or Destruction of PremiseR. If the Leased Premises are totally or partially destroyed, by storm, fire, lightning, earthquake, or other casualty, this Lease shall be terminated and Lessee shall have no further rights hereunder. Lessor shall have no obligation to restore the premises. There shall be no rent abatement for any prepaid rent paid by Lessee. 13. Abatement. The Lessee's obligations to pay rent, including Base Rent and Additional Rent, and to perform all of the other covenants and agreements which the Lessee is bound to perform under the terms of this Lease shat1 not terminate, abate, or be diminished during the period that the Leased Premises, or any part thereof, are untenantable, regardless of ~he cause of such untenentability, it being the intent of the Parties that this is a rant insured against by Lessee. If untenantability continues beyond 30 days, Base Rent and Additional Rent shall abate proportionately to the area of the Leased Premises that are untenantab]e. 14. ~ompliance with. Laws. The Lessee, in the use and the occupancy of the Leased Premises, and in the conduct of the Lessee's business and activities, shall, at its own cost and expense, secure and maintain all necessary licenses and permits.reQuired for the conduct of its business and activities. The Lessee shall, at all times, comply with all laws and ordinances, all lawful rules and regulations issued by any legally constituted authority, and with the applicable orders, regulations, and requirements of any board of fire underwriters, making any modifications to the Leased Premises required thereby. 15. Use. Because the Lessor and the Lessee have negotiated a specific rate of Base Rent,'in reliance upon a particular use of the Leased ~remises, the Leased Premises may only be used for sheet metal fabrication or purposes incidental thereto and for no other Purpose. 5 08715/95 12:31 LINDQUIST & UENNUM + 8???2959 NQ.?~5 Pv]09 18. Waste. The Lessee agrees not to do, nor to suffer, any waste to, or upon, the Leased Premises. 17. Liens, (a) Liens. The Lessee agrees not to cause, suffer, nor permit any liens to attach to, or to exist against, the Leased Premises, by reason of any act or omission of the Lessee, or persons claiming through the Lessee, by reason of the Lessee's failure to perform any act required of the Lessee hereunder. (b) Illegal Actions, The Lessee shall not permit the Leased Premises t~ be used for any illegal purpose. (c) Lessee's Release from.Ob!.jgation. However, the Lessee shall not be required to pay, or to discharge, any lien against the Leased Premises, so long as (1) The Lessee has given the Lessor notice of the Lessee's intent to contest such lien, and (2) The Lessee is in good faith in contesting the validity or amount thereof, and (3) The Lessee has given to the Lessor such security as the Lessor has reasonably requested to assure payment of such lien and to prevent the sa]e, foreclosure, or forfeiture of the Leased Premises by reason of nonpayment. (d) Satisfaction and Release. On final determination of the lien, or claim of lien, the Lessee will immediate3y pay any judgment rendered and costs and charges. The Lessee shall cause the ~en to be released or satisfied. (e) Easements and Prescriptive Rights. The Lessee will not use, or permit the use of, the Leased Premises in any manner which wou~d result, or would, with the passage of time, result, ~n the creation of any easement or Prescriptive right. 88715/~5 12:31 .LIND~UiST & ~ENNUM ~ 89772959 N0.705 P810 18. Lessor's Performance of Lessee's Duties, (a) tessee's Performance Oefau]t. If the Lessee should default in the performance of "any covenant on the Lessee's part to be performed by virtue of Any provision of this Lease, the Lessor may, after ten (10)days' notice (or, in the case of emergencies, reasonable attempt at prior notice), perform the same for the account of the Lessee. (b) Lessor's Authority. The Lessee hereby authorizes the Lessor to come upon the Leased Premises for such purposes and, while on the Leased Premises, to do all things reasonably necessary to accomplish the correction of such default. (¢) Lessor's Expenditures. If the Lessor, at any time, is compelled to pay, or elects to pay, any sum of money, by reason of the failure of the Lessee, after ten (10) days' notice, to 6amply with any provision of this Lease, or if the Lessor is compelled to incur any expense, including reasonable attorney's fees, in instituting, prosecuting, or defending any action or proceeding instituted by reason of any default of the Lessee hereunder, the sum or sums so paid by the Lessor with all interest costs and damages, shall be deemed to be Additional Rent hereunder. (d) Lessee's Reimbursement. The total of these, together with interest thereon, at the rate of eight percent (8%) per annum, shall be due from the Lessee to the Lessor on the first day of the month following the incurring of such respective expense, except as otherwise herein provided. 19. Condemnation. (a) Termination of Lease. In the event all of the Leased Premises, or such portion thereof as will make the Leased Premises unusable for the purposes of the Lessee, be condemned by any legally constituted authority, for any public use or purpose, then in either of said events, the Term hereby granted shall cease, at the option of either the Lessor or the Lessee, upon thirty (30) days' written notice, from the time when possession 7 08/15/95 12:~1 ~LINDQUIST & UENNUM a 87772959 NO.?~5 P~ll thereof is taken by said public authorities. Rent shall be due and payable only for the period of the Term prior to said condemnation. (b) Re~pvery. Such termination, however, shall be without prejudice to the rights of either the Lessor or the Lessee, or both, to recover compensation and damage caused by the condemnation from the condemnor, except' (1) Leasehold Value, The Lessee shall have no rights for the value of its leasehold. (2) Other Parties. .. Neither the Lessee nor the Lessor shall have any rights in any separate award made to the other Party by the condemnor. (c) Partial Condemnation, In the event less than all of the Leased Premises are taken or condemned for a public or quasi-public use, and the portion of the Leased Premises not taken may be reasonably suitable for the purposes of the Lessee by repair or restoration, this Lease will not terminate. (d) Lessor's Repair and Restoration. The Lessor shall, in such event, promptly commence, and diligently complete, the repair and restoration of the Leased Premises,.so that, upon completion, the Leased Premises will constitute a complete architectural unit, with an appearance, character, and commercial value as nearly as possible equal to the value of the Leased Premises immediately prior to the taking. However, the Lessor shall have no obligation to make such repair and restoration if the estimated cost of such exceeds the condemnation proceeds received by the Lessor. (el Rent Abatement. There shall be an abatement of annual 8ese Rent and Additional Rent after such taking, which shall be equal to the percentage of total area of Leased Premises after the taking, as relates to the total area of the Leased Premises immediately prior to said taking thereunder, to the termination of this lease. ~8/15/95 12:31 LINDQUIST & UENNUM a 87772959 N0.705 P012 20. Lessor Indemnified, The Lessee agrees to indemnify, and save harmless, the Lessor against, and from any and all, claims including all costs 'and reasonable and ncessary attorney's fees, Lessor incurs defending claims brought by, and on behalf of, any persons, firms, or corporations, arising from the conduct or management of, from any work or thing whatsoever done by, or on behalf of, the Lessee in or about, or from the Lessee's activities upon, or occupancy of, the Leased Premises during the Term of this Lease. This shall include claims or damages arising from any breach or default on the part of the Lessee in the performance of any covenant or agreement of this Lease, or from any act or negligence of the Lessee, or any of its agents, contractors, servants, employees, licensees, or invitees, or arising from any accident, injury, or damage whatsoever caused to any person, firm, or corporation, occurring during the Term of this Lease. This indemnification and hold harmless clause shall not apply to any claims for damages caused by the Lessor's own negligence or by any agent, employee or any other person actinQ either directly or indirectly on the Lessor's behalf. 21. Insmection of Premises. The Lessee agrees to permit the Lessor and the Lessor's agents, to come upon, and to inspect, the Leased Premises, at all reasonable times, The Lessee further agrees to permit the Lessor and the Lessor's agents, to come u~on the Leased Premises if necessary to perform any act which the Lessee has failed to perform, as provided elsewhere in this Lease. 22. Default. {a) Definition. If one or more of the following events, hereinbefore, and hereinafter, called "Default", shall happen, and be continuing for ten days after written notice has been given to Lessee, a condition of Default, herein referred to as "Default", shall exist, namely: (1) Untimely Payment. Default shall be made.in the punctual payment of any rent herein agreed to be paid, and such Default shall continue g 88}15×95 1~:31 'LINDQUIST & ~JENNUM ~ 8???2959 N0.785 P013 ? ~or ~ period of ten (10) days after written notice is given by the Lessor to the Lessee of such Default; (2) Assignment.. " The Lessee makes an assignment for the benefit of creditors; (3) Bankruptcy or Credit Relief. The Lessee files a petition in bankruptcy, prays for relief under the Federal Bankruptcy Law, or makes an assignment for the benefit of creditors; (4) Attachment or Execution. An attachment or execution is levied upon ..~he Lessee's property in, or interest under, this Lease, which is not satisfied or released, nor the enforcement thereof stayed or superseded by an appropriate proceeding within thirty (30) days thereafter; (5) Involuntary Bankruptcy or Reorganization. An involuntary petition in bankruptcy, or for reorganization or arrangement under the Federal Bankruptcy Law is filed against the Lessee, and such involuntary petition is not withdrawn, dismissed, stayed, or discharged within sixty (BO) days from the filing hereof; (5) Receiver or Trustee. A Receiver or a Trustee is appointed for the property of the Lessee, or of the Lessee's business or assets, and the order or decree appointing such Receiver or Trustee shall have remained in force undischarged or unstayed for thirty (30) days after the entry of such order or decree; (7) Abandoned Premises or Failure to. Op~. The Lessee shall abandon the Leased Premises; (8) Continued Failure. The Lessee shall fail to perform or observe any other covenant, agreement, or condition to be performed or kept by the Lessee under the terms and provisions of this 10 88/15/95 12:31 LINDQUIST & UENNUM + 8???2959 N0.785 PSl~ Lease, and such failure shall continue for ten (10) days after written notice thereof has been given to the Lessee by the Lessor unless the Lessee shall have commenced corrective action within such ten (10) days, and thereafter diligently completes the same; (9) Death of Lessee, The death of the Lessee may, at the sole option of the Lessor, be the basis for termination of this Lease (b) Optional Actions. In the event such condition of Default shall exist, then, and in any such event, the Lessor shall have the right, at the option of the Lessor, then, or at any time thereafter, while such Default or Defaults shall continue, to eleot either of the following actions: (1) Cure Default, To cure such Default or Defaults at the Lessor's own expense, without prejudice to any other remedies which the Lessor might otherwise have, any payment made, or expenses incurred by the Lessor in curing such default, with interest thereon at eight percent (8~) Der &nnum to be, and to become, Additional Rent, to be paid by the Lessee, with the next installation of rent falling due thereafter, or (2) Re-entrance. To re-enter the Leased Premises, without notice, dispossess the Lessee, and anyone claiming under the Lessee, by summary proceedings or otherwise, remove their affects, take complete possession of the Leased Premises, and elect to take either of the following actions: (A) Terminate Lease. To declare this Lease forfeited and the Term ended, or (B) Continue Lease with Reservations. To elect to continue this Lease in full force and effect, but with the right, at any time thereafter, to declare this Lease forfeited and the Term ended. 11 08/15/95 12:32 ' LINDQUIST & VENNUM ~ 8???2959 N0.785 P015 ? In such re-entry, the Lessor may remove all persons from the Leased Premises. The Lessee hereby covenants, in such event, for the Lessee, and all others occupying the Leased Premises under the Lessee, to peacefully yiel~ uD and surrender the Leased Premises to the Lessor. (c) Recovery Upon Forfeit. Should the Lessor declare this Lease forfeited, and the Term ended, the Lessor shall be entitled to recover from the Lessee the following amounts' (1) Rent. The rent and all other sums due and owing by the Lessee to the date of such termination; (2) Costs. The costs of curing all of the Lessee's Defaults existing at, or prior to, the date of termination; and (3) Value. The worth as of the termination of the Lease, in an amount equal to the then value of the excess, if any, of the aggregate of rent reserved in this Lease for the balance of the Term, over the then agreed upon value of the Leased Premises for the balance of the Term. (d) Recovery Upon Conditional Continuation. Should the Lessor, fol]owing Default as aforesaid, elect to continue this Lease in full force, the Lessor shall use its best efforts to'rent the Leased Premises on the best terms avail, able for the remainder of the Term hereof, or for such longer or shorter period as the Lessor shall deem advisable. The Lessee shall remain liable for payment of all rentals and other charges and costs imposed on the Lessee herein, in the amounts, at the time, and upon the conditions as herein provided. However, the Lessor shall credit against such liability of the Lessee all amounts received by the Lessor from such reletting, after first reimbursing the Lessor for al] costs incurred in curing the Lessee's Defaults, re-entering, preparing, and refinishing the premises for reletting, and in re~ettin9 the Leased Premises. 12 T8/15/95 12:S2 .LINDQUIST & UENNUM ~ 87772959 N0.705 P016 (e) Written Notice Required. No re-entry by the Lessor, nor any action brought by the Lessor to remove the Lessee from the Leased Premises, shall operate to terminate this Lease, unless the Lessor shall give written notice of termination to the Lessee, in which event the Lessee's liability shall be as above provided. No right or remedy granted to the Lessor herein is intended to be exclusive of any other right or remedy hereunder, or now or hereafter, existing in law or in equity or by statute. (f) Lessee's Waiver. In the event of termination of this Lease, the Lessee waives Any and all rights to redeem the Leased Premises, either 9ivan by any statute now in effect, or hereinafter enacted. (g) Holding Over Any holding over by the Lessee after the termination of this Lease shall create a tenancy from month to month, on the same terms and conditions, and at the same rent as herein provided applicable during the Term hereof. The same rent is defined as $20,020.00 divided by 12 months or $1,868.33 per month. 23. Interest. All payments required to be paid by the Lessee under the provisions of this Lease shall bear interest at a rate of either of the following rates in the following circumstances: (a) Corporate. Twelve percent (12~) per annum, if the Lessee is a corporat ion: or (D) Noncorporate. The highest rate allowed by Minnesota Statutes Section 334.011, if the Lessee is other than a corporation. Interest shall begin to accrue five (5) days after the due date of each payment, and shall continue until the date actually paid by the Lessee Late Fee. The Lessee hereby agrees that, in addition to interest and other amounts due the Lessor hereunder, the Lessee will pay to 13 8S/~5/95 i2:32 .L!ND~UIST & UENNUM + 877?2959 N0.705 P017 ? the Lessor a late fee, herein referred to as a "late fee" equal to five percent (~) of any payment which has not been paid within five (5) days after its due date, without notice or demand. 25. Condition of Premises Upon Termination. Uoon termination of this Lease, for any reason, the Lessee covenants and agrees to remove all of the Lessee's personal property, including, fixtures and equipment installed by the Lessee upon the Leased Premises. The Lessee shall have no obligation to repair any damage caused by the removal hereof if done at or near the expiration of the full term of this Lease, If this Lease termination prior to the expiration of the full term of this Lease, Lessee agrees that it shall leave the Leased Premises in as good and clean condition as at the commencement of this Lease, excepting normal and reasonable wear and tear and usage. 26. Successors and Assi~oA, The obligations and responsibilities shall be binding upon, and the rights and benefits shall inure to, the successors and assigns of the Parties hereto. However, the liabilities of any successor to the interest of the Lessor hereunder shall be limited to the performance of those obligations which arise' and accrue during the period of ownership of the Leased premises by any such successor. 27. Notice. (a) Delivery. Any notices or inquiries regarding this Lease shall be delivered: To the Lessor: Oaniel J. Oonahue Executive Director EPA in and for the City of New Hope &401 Xylon Avenue New Hope, MN 55428 To the Lessee: Thomas Giebe], President Phoenix Manufacturing Corporation 7528 42nd Avenue. North New Hope~ MN 55428 14 08/1~/95 12:3~ LINDQUIST & UENNUM a 8?992959 N0.705 P018 or to such other addresses as the Parties may designate, in writing. (b) ~elivery. Notice may be given by registered or certified mail, return receipt requested. In those circumstances, the date of service shall be the date on which notice is deposited in a United States Post Office, properly stamped and ~ddressed. In all other methods of mailing, notice shall be deemed to be served when received. 28. Oral Aareements. It is expressly agreed between the Lessor and the Lessee that there is no verbal understanding or agreement which in any way changes the terms, covenants, and conditions herein set forth. It is also expressly agreed between the Lessor and the Lessee that no modification of this Lease, and no waiver of any of its terms and conditions, shall be effective unless made in writing and duly executed by the authorized officers of the necessary Party or Parties, 29. Waiver. The failure of the Lessor or of the Lessee to insist, in one or more instances, upon the strict performance of the Lessee or of the Lessor of any of the provisions of this Lease shall not be construed as a waiver of any future breach of such provisions. Receipt by the Lessor of rent, with the knowledge of the breach of any provisions hereof, shall not be deemed a waiver of such breach. 30. Warranties of Lessee. The Lessee warrants to, and for the benefit of, any mortgagee of the Leased Premises that, as of the date of execution of this Lease, it neither has, nor claims, any defense to this Lease, nor any offset against the rentals payable or other obligations required of the Lessee hereunder. The Lessee further warrants that it has not paid any rental in advance for a period of more than one (1) month, and covenants that it will not, without such mortgagee's written consent, at any time during the Term hereof, prepay any rental for a period longer than one (t) month. 15 ~8~5/95 12:32 'LIND~UIST & UENNUM a 8???2959 NO.?~5 POI~ ~ , 31. CardinR. The Lessor may card the Leased Premises "For Rent" or "For Sale" ninety (90) days before the termination of this Lease. The Lessor may enter the Leased Premises at reasonable hours to exhibit same to prospective purchasers, tenants, and mortgagees, to make repairs required of the Lessor under the terms hereof, or to make repairs to the Lessor's adjoining property. 32, Landlord and Tenant. This contract shall create the relationship of landlord and tenant between the Lessor and the Lessee. No estate shall Pass out of the Lessor. 33, Time of Essence. Time is of the essence of this Agreement, 34. Lessor's Consent. [n all matters referred to in this Lease, where the Lessor's consent or approval is required, the Lessor agrees that the Lessor w~ll not unreasonably withhold ~ts consent or approval. 35. Leaa] Expense. The Lessee covenants and agrees to pay~ and to indemnify the Lessor against, all reasonable legal costs and charges, including attorney's fee, lawfully and reasonably incurred obtaining possession of the Leased Premises after Oefau]t by the Lessee, or upon expiration or earlier ~ermination of TeFm of th~s Lease, or ~n enforcing any covenant or agreement of the Lessee here~n contained. The Lessor covenants and agrees to pay a~] reasonable costs and charges, including attorney's fees, 3awfu]ly and reasonably ~ncurred in enforcing any covenant or agreement of the Lessor herein contained, 36. T~tle of Lessor. The Lessor expressly covenants and agrees that, as of the commencement date of the Term of this Lease, the Lessor be the owner of the fee sSm~le title to the Lease Premises. The Lessor further covenants that the Lessee, on paying the rent~ and upon observing and performing all other terms and 16 ~8/15Y95 12:3~ ~LIND~UIST & UENNUM ~ 87772959 NO.?~5 ' conditions contained in this Lease, shall have quiet and peaceful possession thereof, 37. Waiver of Certain Claims. The Lessor and the Lessee hereby waive any claims which may arise in the Lessor's or the Lessee's favor against the other Party hereto during the Term of this Lease, or any renewal or extension thereof, for any loss or damage to any of the Lessor's or' the Lessee's property located within, upon, or constituting a part of the Leased Premises hereunder, which loss or damage is covered by a valid and collectible fire and extended coverage insurance policy or policies, to the extent that such loss or damage is recoverable under said insurance or policies. The Lessor and the Lessee further agree to notify the Lessor's and the Lessee's own insurance company or compaQies, which have issued, or will issue, to the Lessor and to'the Lessee, fire and extended insurance policies for the Leased Premises, or anything located therein, and to have said policies properly endorsed, if necessary, to prevent the invalidation of said insurance coverage by reason of this mutual waiver. The Lessee shall keep in force, at all times, adequate coverage of its fixtures, personal property, and other "contents"' located upon the Leased Premises. 38. Governing Law. This Lease shall be performed, construed,.and enforced in accordance with the laws of the State of Minnesota. 39. Captions. The captions used in this Lease are for convenience only, and shall not have any bearing or meaning with respect to the content or context of this Instrument. 40. Ho.IdahO_Over. If the Lessee remains in possession of the Leased Premises after expiration of the Term hereof, with the Lessor's acquiescence, and- without any express agreement of the Parties, the Lessee shall be a tenant at will at the then rent. There shall be no renewal by operation, or by law, of this Lease. 17 08/1~/95 12:32 LINDQUIST & VENNUM -~ ooo~q=,~ ~, ~ ,=-wi NO.?05 P021 Cumulative Rights. All rights, powers, and privileges conferred hereunder upon the Parties shall be cumulative but not restricted to t'hose given by law. Memorandum 0f Lease The Lessor hereby agrees, at the Lessor's sole cost, to prepare and record a Memorandum of Lease at the location where the deed of title to the Leased Premises is of record. The recording of the Memorandum of Lease shall be done on, or before, the date this Lease commences. Number and Gender, Wherever appropriate to the sense of this Lease, the singular number shall include the Plural, and vice versa.,. Wherever appropriate to the sense of this Lease, the masculine pronoun shall include the feminine and the neuter, the feminine sha~t include the masculine and the neuter, and the neuter shall include the masculine and the feminine. Severability. If any part, or portion, of this Lease shall be adjudicated by a court of competent jurisdiction to be unlawful, this Lease shall remain in effect, and in force, as if that part, or portion, were no longer a part of this Lease. Hazardous Substances, Lessee shall not (either with or without negligence) cause or permit the escape or release of any biologically .or chemically active or other hazardous substances or materials on the Leased Premises.. Lessee shall not allow the storage or use of such substances or materials in any manner not sanctioned by ]aw or by the highest standards prevailing in the industry'for the storage and use of such substances or materials, nor allow to be brought into the Leased Premises any such materials or substances except to use in the ordinary course of Lessee's business. Without ]imitation, hazardous substances and materia]s shall included those described in the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9§01 et. seq., and applicable state or local laws and the regulations adopted under these acts. If any governmental agency shall ever require testing to ascertain whether or not there has been any re~ease or hazardous materi~ls related solely to Lessee's occupancy of and activities on the Le~seQ 18 12:32 .~LINDQUIST & UENNUM ~ 87772959 N0.705 P022 Premises, then the reasonable costs thereof shall be reimbursed by Lessee to Lessor upon demand as additional charges if such requirement applies to the Leased Premises. In all events, Lessee shall indemnify Lessor in the manner provided in paragraph 20 from any release of hazardous materials on the Leased Premises caused or permitted by Lessee and occurring while Lessee is in possession, or elsewhere if caused by Lessee or persons acting under Lessee. The within covenants shall survive the expiration or earlier termination of the Lease term. This provision shall not apply to any release of hazardous substances specifically related to the ground and soil water contamination .already documented at the adjacent property formerly known as Electronic Industries. 45. Lessee's Reclamation Right. Lessee end Lessor agree that upon the satisfaction of the terms of this lease and at the time the facility at 7528 North 42nd Avenue is vacated by the Lessee, the Lessee will be granted reclamation Eights to all fixtures, leasehold improvements and internal structures in the facility, Since the EDA intends to raze the facility upon the expiration of this lease, the EPA also 9rants unto the Lessee the right to reclaim structural materials subject to the following conditions: 1) The Lessee must submit and EPA must accept a written proposal specifying how the site will be modified. The ptan will include a schedule for completion and the name(s) of contractors responsible for performing the work, and 2) how the site will be rendered upon completion of the reclamation process. Lessee agrees its reclamation right will not increase Lessor's cost to raze the building and Lessee further agrees to pay Lessor any additional costs to raze the building occasioned by Lessee's exercise of this reclamation right as mutually determined between the parties. 47. Lessor's Represent.ations Megardin9 Hazardous Substances. Lessor represents to Lessee that Lessor is not aware of any hazardous substances on the Leased Premises. Lessor represents and warrants: (a) That there are no past or present investigations, administrative proceedings, notices of violation or other civil or criminal action threatened or pending alleging non-compliance with or violation of any statutes, regulations or ordinances relating to any environmental permits, release or discharge of any hazardous substances or pollut&nts or contaminants on or related to the Leased Premises. 19 88~15×95 12:33 . 'LINDQUIST & UENNUM + 87772959 N0.785 P023 (b) That Lessor has not violated any statute, regulation or ordinance relating to any environmental permit or the release of any hazardous substance, pollutant . or contaminant on or related to the Leased Premises. " (¢)' That the Leased Premises are not listed in the National Priorities List maintained by the United States Environmental Protection Agency, or any other comparable list maintained by any other federal, state or local agency. IN WITNESS WHEREOF, the Parties hereto have caused this Instrument to be duly executed as of the day and year first above written. LESSEE: ~HOEN!X MANUFACTURING LESSOR: ECONOMIC.. DEVELOPMENT CORPORATION AUTHORITY ~N AND FOR CITY OF by by ~ · ~ /L/~~~ -I /~dw~r~/~-J. Erickson, ' Its Pr'"esident · _, ~/Daniel ~- Oon~hue, ~---- Its Executive Director 2O