HomeMy WebLinkAboutContract 1923
CONTRACT
FOR
PRlV ATE REDEVELOPMENT
By and Between
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY
COLUMBIA HEIGHTS, MINNESOTA
and
SARNA'S,INC.
Dated as of: '7/je)- 12006
TIlls document was drafted by:
KENNEDY & ORA VEN, Chmiered (MTN)
470 US Bmlie Plaza
200 South Sixth Street
Mi1ll1eapolis, Minnesota 55402
Telephone: (612) 337-9300
274817vlO MTN CL205-26
PREAMBLE
Section 1.1.
Section 2.1.
Section 2.2.
Section 3.1.
Section 3.2.
Section 3.3.
Section 3.4.
Section 3.5.
Section 3.6.
Section 3.7.
Section 3.8.
Section 3.9.
Section 3.10.
Section 4.1.
Section 4.2.
Section 4.3.
Section 4.4.
Section 5.1.
Section 5.2.
Section 5.3.
274817vl0 MTN CL205-26
TABLE OF CONTENTS
........................................................................................................................... .1
ARTICLE I
Definitions
Definitions......................................................................................................... .2
ARTICLE II
Representations and Warranties
Representations by the Authority.......................................................................4
Representations and Warranties by the Redeveloper............. ............................4
ARTICLE III
Property Conditions, Acquisition, Conveyance and Financing
Condition, Acquisition and Conveyance of the Redevelopment Propeliy ........6
Conditions of Conveyance; Purchase Price.................... ................................... 7
Place of Document Execution, Delivery and Recording ...................................8
Title................................................................................................................... .8
Soil Conditions; Other Representations.............................................................9
No Business Subsidy........................................................................................ ..9
Environmental Conditions...... .........................................................................10
Environmental Remediation/Soils Correction; Grants; Disbursements ..........10
Payment of Administrative Costs................................................................ ....13
Records......................................................................... .................................. .13
ARTICLE IV
Construction of Minimum Improvements and Public Improvements
Construction of Minimum Improvements and Public Improvements .............14
Construction Plans........... ................................................... ............................ .14
Completion of Construction.................................... ....................................... ..15
Certificate of Completion............................................................................... .16
ARTICLE V
Insurance
Insurance..........................................................................................................l 7
Subordination.................................................................................................. .18
Qualifications.................................................................................................. .18
Section 6.1.
Section 6.2.
Section 7.1.
Section 8.1.
Section 8.2.
Section 8.3.
Section 9.1.
Section 9.2.
Section 9.3.
Section 9.4.
Section 9.5.
Section 9.6
Section 9.7
Section 10.1.
Section 10.2.
Section 10.3.
Section 10.4.
Section 10.5.
Section 10.6.
Section 10.7.
Section 10.8.
Section 10.9.
Section 10.10.
Section 10.11.
274817vlO MTN CL205-26
ARTICLE VI
Taxes
Right to Collect Delinquent Taxes.................................... ...... ......... ... .............19
Review of Taxes.......................................................... ................................... .19
ARTICLE VII
Financing
MOligage Financing..;.................................................... ................................. .20
AR TI CLE VIII
Prohibitions Against Assigmnent and Transfer;
Indenmification
Representation as to Redevelopment .................................. .... ................. ..... ...21
Prohibition Against Redeveloper's Transfer of Property and
Assignment of Agreement............................................. .............................. ....21
Release and Indemnification Covenants... ...... .... ........ .......... .... .... .... .... ...........23
ARTICLE IX
Events of Default
Events of Default Defined ................... ........... .................. .............. .................24
Relnedies on Default....................................................................................... .24
Revesting Title in Authority Upon Happening of Event Subsequent
To Conveyance to Redeveloper .............. ........ ......... ......... ...... .........................25
Resale of Reacquired Property; Disposition of Proceeds ................................26
No Remedy Exclusive..................................................................................... .27
No Additional Waiver Implied by One Waiver...............................................27
A..tton1ey Fees.............................. .................................................................... .27
ARTICLE X
Additional Provisions
Conflict ofInterests; Authority Representatives Not Individually Liable.......28
Equal Employment Opportunity.......... ... ........ ...... ....... ..... .......................... .....28
Restrictions on Use....................................................................................... ...28
Provisions Not Merged With Deed......... ...... ........ ....... ................... .................28
Titles of Articles and Sections .......... ...... ............ ... ........... ...... .... ..... ................28
Notices and Den1ands .................................................................................... ..28
Counterpalis .................................................................................................... .29
Recording........................................................................................................ .29
Alnendlnent..................................................................................................... .29
Authority or City Approvals ......... ............ ...... .... ... ...... ........ ............... ........ .....29
Tennination..................................................................................................... .29
11
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
274817vlO MTN CL205-26
Description of Redevelopment Property
Gondek Agreement
Certification of Completion
Environmental Remediation Costs
Escrow Calculation
Fonn of Quit Claim Deed
111
CONTRACT FOR PRIVATE REDEVELOPMENT
THIS AGREEMENT, made on or as of the 1 st day of 2006, by and between
COLUMBIA HEIGHTS ECONOMIC DEVELOPMENT AUTHORITY, COLUMBIA
HEIGHTS, MINNESOTA, a public body corporate and politic (the "Authority"), established
pursuant to Minnesota Statutes, Sections 469.090 to 469.1081 (hereinafter referred to as the
"Act"), and SARNA'S, INe., a Minnesota corporation (the "Redeveloper").
WITNESSETH:
WHEREAS, the Authority was created pursuant to the Act and was authorized to transact
business and exercise its pO\vers by a resolution of the City Council of the City of Columbia
Heights ("City"); and
WHEREAS, the City and the Authority (as successor to the Housing and Redevelopment
Authority in and for the City of Columbia Heights) have undertaken a program to promote
redevelopment of land which that is characterized by blight and blighting factors within the City
pursuant to Minnesota Statutes, Sections 469.001 to 469.047 (the "HRA Act"); and
WHEREAS, pursuant to the Act and the HRA Act, the Authority is authorized to acquire
real property, or interests therein, and to undertake certain activities to facilitate the
redevelopment of real property by private enterprise; and
WHEREAS, the Authority and Redeveloper have previously entered into a Preliminary
Development Agreement dated as of June 17, 2005 regarding proposed redevelopment of the
property described in Exhibit A hereto, designated as the Redevelopment Property; and
WHEREAS, this Agreement is intended to supersede and replace the Preliminary
Agreement in all respects; and
WHEREAS, the Authority believes that the redevelopment of the Redevelopment
Property pursuant to this Agreement, and fulfillment generally of this Agreement, are in the vital
and best interests of the City and the health, safety, morals, and welfare of its residents, and in
accord with the public purposes and provisions of the applicable State and local laws and
requirements under which the Project has been undertaken and is being assisted.
NOW, THEREFORE, in consideration of the premises and the mutual obligations of the
parties hereto, each of them does hereby covenant and agree with the other as follows:
ARTICLE I
Definitions
Section 1.1. Definitions. In this Agreement, unless a different meaning clearly appears
from the context:
"Act" means the Economic Development Authority Act, MiImesota Statutes, Sections
469.090 to 469.108, as amended.
"Agreement" means this Agreement, as the same may be from time to time modified,
amended, or supplemented.
"Authority" means the Columbia Heights Economic Development Authority, or any
successor or aSSIgn.
"Authority Representative" means the Executive Director of the Authority, or any person
designated by the Executive Director to act as the Authority Representative for the purposes of
this Agreement.
"Business Day" means any day except a Saturday, Sunday, legal holiday, a day on which
the City is closed for business, or a day on which banking institutions in the City are authorized
by law or executive order to close.
"Business Subsidy Act" means Minnesota Statues, Sections 116J.993 to 116J.995, as
amended.
"Certificate of Completion" means the certification provided to the Redeveloper, or the
purchaser of any part, parcel or unit of the Redevelopment Property, pursuant to Section 4.4 of
this Agreement.
"City" means the City of Columbia Heights, Mim1esota.
"Construction Plans" means the plans, specifications, drawings and related documents on
the construction work to be performed by the Redeveloper on the Redevelopment Property
which a) shall be as detailed as the plans, specifications, drawings and related documents which
are submitted to the appropriate building officials of the City, and (b) shall include at least the
following for each building: (1) site plan; (2) foundation plan; (3) basement plans; (4) floor plan
for each floor; (5) cross sections of each (length and width); (6) elevations (all sides); (7)
landscape plan; and (8) such other plans or supplements to the foregoing plans as the Authority
may reasonably request to allow it to ascertain the nature and quality of the proposed
construction work.
"County" means the County of Anoka, Minnesota.
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"Event of Default" means an action by the Redeveloper listed in Aliicle IX of this
Agreement.
"Holder" means the owner of a Mortgage.
"Minimum Improvements" means the construction of at least a 6,000 square foot
restaurant, associated parking, and related improvements.
"Mortgage" means any mOligage made by the Redeveloper which is secured, in whole or
in part, with the Redevelopment Propeliy and which is a permitted encumbrance pursuant to the
provisions of Article VIII of this Agreement.
"Preliminary Development Agreement" means the Preliminary Development Agreement
between the Authority and the Redeveloper dated as of June 17,2005.
"Public Improvements" has the meaning provided in Section 4.1 (b) hereof.
"Redeveloper" means Sama's, Inc. or its pennitted successors and assigns.
"Redevelopment Propeliy" means the property so described on Exhibit A.
"State" means the State of Minnesota.
"Tax Official" means any County assessor; County auditor; County or State board of
equalization, the commissioner of revenue of the State, or any State or federal district court, the
tax court of the State, or the State Supreme Corui.
"Termination Date" means the date the Authority issues the Certificate of Completion.
"Transfer" has the meaning set forth in Section 8.2(a) hereof.
"Unavoidable Delays" means delays beyond the reasonable control of the pmiy seeking
to be excused as a result thereof which are the direct result of war, significm1t weather conditions
such as floods, tomadoes, or the like, terrorism, strikes, other labor troubles, fire or other
casualty to the Minimum Improvements, litigation commenced by third pmiies 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 Authority in exercising its rights under this
Agreement) which directly result in delays. Unavoidable Delays shall not include delays in the
Redeveloper's obtaining of pern1its or governmental approvals necessary to enable construction
of the Minimum Improvements by the dates such construction is required under Section 4.3 of
this Agreement.
274817v10 MTN CL205-26
,.,
.)
ARTICLE II
Representations and Warranties
Section 2.1. Representations by the Authority. The Authority makes the following
representations as the basis for the undertaking on its part herein contained:
(a) The Authority is an economic development authority duly organized and existing
under the laws of the State. Under the provisions of the Act, the Authority has the power to enter
into this Agreement and carry out its obligations hereunder.
(b) The activities of the Authority are undertaken to foster the redevelopment of
certain real propeliy which for a variety of reasons is presently underutilized, to eliminate current
blighting factors and prevent the emergence of fUliher blight at a critical location in the City, to
create increased tax base in the City, to stimulate further development in the City as a whole.
Section 2.2. Representations and Warranties bv the Redeveloper. The Redeveloper
represents and warrants that:
(a) The Redeveloper is a corporation duly organized and in good standing under the
laws of the State of Milmesota, is not in violation of any provisions of its article of organization
or the laws of the State, is duly authorized to transact business within the State, has power to
enter into this Agreement and has duly authorized the execution, delivery and performance of
this Agreement by proper action of its members.
(b) Upon acquisition of the Redevelopment Propeliy, the Redeveloper wil1 construct,
operate and maintain the Minimum Improvements in accordance with the terms of this
Agreement and al1 applicable local, state and federal laws and regulations (including, but not
limited to, environmental, zoning, building code and public health laws and regulations).
(c) The Redeveloper has received no notice or communication from any local, state
or federal official that the activities of the Redeveloper or the Authority may be or will be in
violation of any environmental law or regulation (other than those notices or communications of
which the Authority is aware). The Redeveloper is aware of no facts the existence of which
would cause it to be in violation of or give any person a valid claim under any local, state or
federal environmental law, regulation or review procedure.
(d) The Redeveloper will construct the Minimum Improvements in accordance with
all local, state or federal energy-conservation laws or regulations.
(e) The Redeveloper wil1 obtain, in a timely manner, all required permits, licenses
and approvals, and wil1 meet, in a timely marmer, al1 requirements of al1 applicable local, state
and federal laws and regulations which must be obtained or met before the Minimum
Improvements may be lawfully constructed.
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(f) Neither the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with the tenns and
conditions of this Agreement is prevented, limited by or conflicts with or results in a breach of,
the tel111S, conditions or provisions of any corporate restriction or any evidences of indebtedness,
agreement or instrument of whatever nature to which the Redeveloper is now a party or by which
it is bound, or constitutes a default under any of the foregoing.
(g) The Redeveloper shall promptly advise City in \\<Titing of all litigation or claims
affecting any part of the Minimum Improvements and all written complaints and charges made
by any govel11mental authority materially affecting the Minimum Improvements or materially
affecting Redeveloper or its business which may delay or require changes in construction of the
Minimum Improvements.
(h) The proposed redevelopment by the Redeveloper hereunder would not occur but
for the public assistance in the f0l111 of a land value write-down and enviromnental remediation
grants being provided by the Authority hereunder.
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5
ARTICLE III
Property Condition, Acquisition, Conveyance and Financing
Section 3.1. Condition. Acquisition and Conveyance of the Redevelopment Property.
(a) As of the date of this Agreement, the City or the Authority owns five (5) parcels of land
comprising a part of the Redevelopment Property and is in the process of assembling certain
parcels or land, University Avenue right-of-way and Lookout Place, owned by the City. The
Authority believes that the building located on the Redevelopment Property is obsolete, the site
contains levels of polluted soils and geo-technically-unsound soils which require remediation
with the result that the Redeveloper will incur significant costs to address these substandard
conditions in order to redevelop the property. In order to assist the Redeveloper in making
development of the Minimum Improvements economically feasible, and in consideration of the
environmental condition of the Redevelopment Propeliy, the Authority will assemble all parcels
and land comprising the Redevelopment Property and convey title to and possession of the
Redevelopment Property to the Redeveloper at a reduced cost, and provide grant funds to
address environmental and soils conditions thereon, subject to all the tem1S and conditions of this
Agreement.
(b)
actions:
The Authority obligates itself to undertake and complete by Closing the following
(i) Work with the City to complete the University Avenue tum back process
with the Minnesota Department of Transportation ("MnDOT") and accept its tum back of the
identified pOliions of University A venue; vacate or convey such land to Redeveloper as
detennined by the Authority;
(ii) Provide approval of the Gondek Property Abrreement ("Gondek
Agreement") (attached as Exhibit B) and related plans involving alley, bollards, and timing for
mass grading impact on access during construetion;
(iii) Convey vacated Lookout Place ("Lookout Vacation");
(iv) Detennine timing for removal of University Avenue Frontage Road (at no
cost to the City or the Authority) including stonn water utility relocation timing and financial
responsibility therefore;
(v) Aequire from MnDOT and convey to Redeveloper the twenty-five foot
(25') piece ofMnDOT propeliy at the northwest comer of the Redevelopment Propeliy adjacent
to 40th Avenue and University Avenue (the "Corner"), with the Redeveloper eompensating
MnDOT for its public interests in the Comer.
(c) The Redeveloper obligates itself to undertake and eomplete by Closing the
following aetions:
274817vlO MTN CL205-26
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(i) Seek approval of MnDOT, if it so desires, for a license agreement to
utilize a five foot (5') strip ofland for landscaping in the vacated portion of University Avenue
retained by MnDOT;
(ii) Enter into an agreement with Schaefer Richardson in connection with
sharing of the prorated cost of the removal of University Avenue Frontage Road adjacent to ME
Global and the Redevelopment Property based upon front footage of the respective property on
University Avenue or as otherwise agreed to by and between Schaefer Richardson and the
Developer.
(iii) Pay to the City its cost incuned to provide an alternate access point onto
Lookout Place for ME Global property and the additional construction activities for ME Global,
including the provision of required utilities, as determined by the Authority. The Developer's
share of the cost will be based upon an agreement to be entered into by and between Schaefer
Richardson and the City and/or Authority, which amount shall not exceed eighteen point four
percent (18.4%) of the Total Project Cost.
(iv) Provide security to the Authority in the fom} of a letter of credit (LOC) (or
other security satisfactory to the Authority in its reasonable discretion) in the amount of 125% of
the verified costs for the removal by the Redeveloper of the MGS Building located at 322 - 40th
Avenue and all associated costs of site preparation as determined by the Authority.
(v) Provide security to the Authority in the form of a letter of credit (LOC) (or
other security satisfactory to the Authority in its reasonable discretion) in the amount of 125% of
the verified costs of the Redeveloper to construct a 14- foot alley to tie into the existing alley to
the most easterly portion of the Redevelopment Propeliy.
(vi) Secure decision of MnDOT concerning landscaping and fencing of the
retained University Avenue.
(vii) Pay at Closing $3890 to the Authority for the costs of the Authority
having relocated the City's fire siren on the Redevelopment Property.
Section 3.2. Conditions of Convevance; Purchase Price. (a) The Authority shall convey
title to and possession of the Redevelopment Property to the Redeveloper by a quit claim deed in
the fonn contained in Exhibit F. The Authority's obligation to convey the Redevelopment
Property to the Redeveloper is subject to satisfaction ofthe following terms and conditions:
(i) the Redeveloper having submitted and the Authority having approved
evidence of financing as required under Article VII;
(ii) the Redeveloper having submitted and the Authority having approved
Construction Plans for the Minimum Improvements as required by Aliicle IV, which include the
actions described in subparagraphs 3 .1 (c) (iii) - (vii) above;
(iii) the Redeveloper having reviewed and approved title to the Redevelopment
Property as set forth in Section 3.4;
274817vlO MTN CL205-26
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(iv) the Redeveloper not being in default under this Agreement;
(v) the Redeveloper paying the fee in lieu of providing on-site storm water
ponding, not to exceed $37,400 as identified by the City Engineer;
(vi) the City having approved and granted all Redeveloper required vacations,
variances, land use and plat approvals (the "Land Use Approvals").
(b) The closing on conveyance of the Redevelopment Property from the Authority to
the Redeveloper shall occm on or before December 31, 2006 (the "Closing"), or such other date
as the Authority and Redeveloper agree in writing.
(c) The purchase price of the conveyance of the Redevelopment PropCliy shall be
Seventy-Five Thousand Dollars ($75,000.00), which represents a vvrite-down of the value of the
Redevelopment Propeliy in recognition of the Redeveloper's costs of environmental remediation
and related soil cOlTections and site preparation activities and costs as described in Section 3.6.
Section 3.3. Place of Document Execution, Delivery and Recording. (a) Unless
otherwise mutually agreed by the Authority and the Redeveloper, the execution and delivery of
all deeds, documents and the payment of any purchase price shall be made at the offices of the
Authority.
(b) The deed shall be in recordable form and shall be promptly recorded in the proper
office for the recordation of deeds and other instruments pertaining to the Redevelopment
Property. At closing, the Redeveloper shall pay, or has previously paid: title insurance
conmlitment fees up to $800.00 and all required premiums, if any, and title company closing
fees, if any; the Authority shall pay all recording costs for recording the deed, including the cost
of recording any instruments used to clear title encumbrances, including State deed tax, in
connection with the conveyance of the Redevelopment Property, including title costs relating to
conveyance of the Comer.
(c) The parties understand and acknowledge that the Redevelopment Propeliy is non-
taxable for tax payments due and payable in the year 2006. The parties fmiher understand and
acknowledge that there are no outstanding levied special assessments against the Redevelopment
Property.
Section 3.4. Title. (a) Redeveloper has obtained a commitment for the issuance of a
policy of title insurance for the Redevelopment Property and delivered the same to the Authority.
The Redeveloper has reviewed the state of title to the Redevelopment Propeliy and provided the
Authority with a list of written objections to such title. Authority shall proceed in good faith and
with all due diligence to attempt to cure the objections made by the Redeveloper. Not earlier
than eleven days following the date the Redeveloper shall have received a commitment for the
issuance of a policy of title insurance for the Redevelopment Property from the Authority or, in
the event the Redeveloper shall have provided the Authority with a list of written objections,
within ten (10) days after the date that all such objections have been cured to the reasonable
2748] 7vlO MTN CL205-26
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satisfaction of the Redeveloper, the Authority and Redeveloper shall proceed with the acquisition
and conveyance of the Redevelopment Property pursuant to Sections 3.1 and 3.2 of this
Agreement. In the event that the Authority has failed to cure objections within sixty (60) days
after its receipt of the Redeveloper's list of such objections, either the Redeveloper or the
Authority may by the giving of written notice to the other, temlinate this Agreement, upon the
receipt of which this Agreement shall be null and void and neither party shall have any liability
hereunder. The Authority shall have no obligation to take any action to clear defects in the title
to the Redevelopment Property, other than the good faith efforts described above.
(b) The Authority shall take no actions to encumber title to the Redevelopment
Property between the date of this Agreement and the time which the Deed is delivered to the
Redeveloper.
Section 3.5. Soil Conditions: Other Representations. (a) The Redeveloper acknowledges
that the Authority makes no representations or walTanties as to the condition of the soils on the
Redevelopment Property or its fitness for construction of the Minimum Improvements or any
other purpose for which the Redeveloper may make use of such property. The Parties
acknowledge that pollution caused by hazardous materials or substances is located on the
Redevelopment Property and that all reports relating to such pollution have been provided to
Redeveloper. The Redeveloper acquires the Redevelopment Property" as is."
(b) Any time and from time to time prior to the date of closing, Redeveloper, and
person or persons selected by Redeveloper shall be permitted access to the Redevelopment
Propeliy for the purpose of conducting such studies and investigations of the Redevelopment
Property as Redeveloper deems appropriate, which studies and investigations shall be conducted
at Redeveloper's sole expense and pursuant to any other temlS and conditions of this Agreement.
Redeveloper agrees to indemnify the Authority against any liability, cost or expense inculTed by
the Authority as a result of Redeveloper's actions, including but not limited to fines, court costs,
reasonable attomeys' fees and remedial costs. Such studies may include without limitation,
physically inspecting the Redevelopment Property and reviewing the Authority's records
concerning the Redevelopment Property which records shall be made reasonably available to
Redeveloper.
(c) The Authority discloses that there is not an individual sewage treatment system on
or serving the Redevelopment Property.
(d) The Authority does not know of any wells on the Redevelopment Property, and
will so ce11iry in the deed conveying the Redevelopment Property to the Redeveloper.
Section 3.6. No Business Subsidy. The parties understand that the Authority is
transfelTing the Redevelopment Property to the Redeveloper by means of a write-down of the
fair-market value of the Redevelopment Propeliy to $75,000. The Authority recognizes
identified Environmental/Soils Remediation cOlTections issues as defined in Section 3.7 and
described on Exhibit F of at least $120,350. Such costs will be credited up to $56,000 against
the Purchase Price upon verification by Redeveloper. The Authority in addition will provide
available funds from a grant to the Authority, to the Redeveloper for hazardous soils cOlTection
274817vlO MTN CL205-26
9
up to $64,000 (the "Enviromllental Grant"). This write-down and grant do not constitute a
business subsidy because the Redeveloper's investment in site acquisition and preparation is at
least $195,000, which is 70 percent or more of the assessor's current year's estimated market
value of $248,500. Therefore, no business subsidy is being provided to the Redeveloper
pursuant to Minnesota Statutes, Section 116].993 to 116J.995, as amended.
Section 3.7. Environmental Conditions. (a) The Redeveloper acknowledges, as
disclosed in Section 3.5, that the Authority makes no representations or warranties as to the
condition of the soils on the Redevelopment Property or the fitness of such propeliy for
construction of the Minimum Improvements or any other purpose for which the Redeveloper
may make use of such property, and that the assistance provided to the Redeveloper under this
Agreement neither implies any responsibility by the Authority or the City for any contamination
of the Redevelopment Property nor imposes any obligation on such parties to participate in any
cleanup of such propeliy. The Authority has provided all envirolUllental reports (the
"Environmental Reports") in its possession concerning the Redevelopment Property to the
Redeveloper, and represents that that it knows of no other environmental conditions relating to
the Redevelopment Property, except as disclosed in the Enviromllental Reports.
(b) Redeveloper is responsible for preparing, submitting and receiving approval of a
development response action plan (DRAP) for the Redevelopment Property from the Milmesota
Pollution Control Agency (MPCA) for the remediation of contaminated soil conditions on the
Redevelopment Property ("Environmental Remediation").
(c) Without limiting its obligations under Article VIII of this Agreement the
Redeveloper further agrees that it will indelmufy, defend, and hold harmless the Authority, the
City, and their govenung body members, officers, and employees (the "Indemnitees"), from any
claims or actions arising out of the presence, if any, of hazardous wastes or pollutants existing on
or in the Redevelopment Propeliy, unless and to the extent that such hazardous wastes or
pollutants are present as a result of the actions or omissions of the Indemnitees. Nothing in this
section will be construed to limit or affect any limitations on liability of the City or Authority
under State or federal law, including without limitation Milmesota Statutes Sections 466.04 and
604.02.
(d) The Redeveloper shall demolish all eXlstmg buildings on the Redevelopment
Property and undertake all Enviromllental Remediation including soil corrections, remediation of
any hazardous materials located on the Redevelopment Property consistent with applicable State
and Federal requirements, and deliver proof of approval of (i) the DRAP, (ii) utility relocation,
and (iii) grading and excavation needed to construct the Minimum Improvements.
Section 3.8. Environmental Remediation/Soils Correction; Grants; Disbursement. (a) In
order to construct the Minimum Improvements, the Redeveloper will complete the
Environmental Remediation as well as required soils corrections (collectively,
"Environmental/Soils Remediation") pursuant to a schedule to be developed by agreement with
the Authority and the Redeveloper, and will incur the "Environmental/Soils Remediation Costs"
described in Exhibit D. To finance potentially all or a pOliion of such costs, the Authority has
obtained a grant of community development block grant (CDBG) funds from Anoka County
(Grantor Agency) and will provide up to $64,000 of grant funds for Environmental
274817vl0 MTN CL205-26i
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Remediation/Soils Remediation pursuant to the requirements of this Section 3.8 (the
"Environmental Grant"). Redeveloper shall be responsible for securing a contractor or
contractors experienced in and licensed to conduct its Environmental Remediation
("Remediation Contractor"). Redeveloper shall also be required to follow the requirements of
Minn. Stat. 9 471.345, the Unif01111 Municipal Contracting Law, to select and hire the
Remediation Contractor for the prosecution of all remediation activities eligible for
reimbursement from the Environmental Grant.. The Authority staff shall cooperate with
Redeveloper to implement this requirement.
(b) The Authority will pay or reimburse the Redeveloper for Environmental/Soils
Remediation Costs, from and to the extent of the grant proceeds from the Grantor Agency.
Further, to the extent the Enviromnental/Soils Remediation Costs do not exceed the amount of
the Enviromnental Grant received, the Authority shall pay such verified costs up to $64,000 as
provided in sections (c) and (d) below. Notwithstanding anything to the contrary herein, if
Enviromllental/Soils Remediation Costs exceed the amount to be reimbursed under this Section,
such excess costs shall be the sole responsibility of the Redeveloper, subject only to credits to the
Purchase Price as defined in Section 3.6 herein.
(c) Upon request of Redeveloper from time to time, the Authority will disburse to or
on behalf of the Redeveloper, from the grant source described in Section 3.8(a), and subject to
the requirements in sections 3.8(e) and (f), up to $64,000, the maximum amount of the
Environmental Grant, for payment of the Environmental/Soils Remediation Costs, subject to the
condition precedent that on the date of such disbursement:
(i) No Event of Default under this Agreement or event which would
constitute such an Event of Default but for the requirement that notice be given or that a
period of grace or time elapse, shall have occurred and be continuing;
(ii) The Redeveloper has provided to the Authority a verified statement of the
portion of EnvirOlIDlental/Soils Remediation Costs, as reflected in Schedule D, as to
which a disbursement is being requested.
(d) All disbursements made under clause (c) of this Section will be made subject to
the conditions precedent that on the date of such disbursement:
(i) The Authority has received a Wl"itten statement from the Redeveloper's
authorized representative certifying with respect to each payment: (A) that none of the
items for which the payment is proposed to be made has formed the basis for any
payment theretofore made under this section; (B) that each item for which the payment is
proposed is a Environmental/Soils Remediation Costs as described in Schedule D, and
(C) the Redeveloper reasonably anticipates completion of the Environmental/Soils
Remediation and the Minimum Improvements in accordance with the terms of this
Agreement.
(ii) No Event of Default under this Agreement or event which would
constitute such an Event of Default but for the requirement that notice be given or that a
period of grace or time elapse, shall have occurred and be continuing.
274817vlO MTN CL205-26
11
(iii) No license or pem1it necessary for undertaking the Environmental
Remediation or constructing the Minimum Improvements shall have been revoked or the
issuance thereof subjected to challenge before any court or other govemmental authority
having or asserting jurisdiction there over.
(iv) Redeveloper has acquired fee title to the Redevelopment Property, or has
received a right of access to the Redevelopment Property from the Authority to
accomplish Environmental Remediation.
(v) Redeveloper has submitted, and the Authority has approved, Construction
Plans for the Minimum Improvements in accordance with AIiicle IV hereof, and
financing commitment in accordance with Article VII hereof.
(vi) Redeveloper has provided to the Authority a contingent or collateral
assignment, in the form on file with the Authority as of the date of this Agreement, of all
the Redeveloper's contracts for undertaking the Envir01ID1ental Remediation, allowing
the Authority to enforce such contracts and to complete the work in the event
Redeveloper fails to do so.
(vii) Redeveloper has provided the Authority with rights of access, in the fom1
on file with the Authority as of the date of tins Agreement, granting the Authority, its
agents and contractors the right to enter the Redevelopment Propeliy and to complete the
Environmental Remediation if Redeveloper fails to do so in accordance with this
Agreement.
(e) Whenever the Redeveloper desires a disbursement to be made hereunder, which
shall be no more often than monthly, the Redeveloper shall submit to the Authority a letter duly
executed on behalf of the Redeveloper accompanied by paid invoices or other comparable
evidence that the cost has been incurred and invoices paid by Redeveloper. Each request shall
constitute a representation and warranty by the Redeveloper that all representations and
warranties set f01ih in this Agreement are true and correct as of the date of such draw request.
(f) If the Redeveloper has performed all of its agreements and complied with all
requirements theretofore to be perfonned or complied with hereunder, including satisfaction of
all applicable conditions precedent contained in Article III hereof, the Authority shall request
reimbursement from the Grantor Agency as soon as reasonably possible, and upon receipt of
requested funds, the Authority shall make a disbursement to the Redeveloper in the amount of
the requested disbursement. Each disbursement shall be paid as follows: Within thiIiy (30)
business days of receipt of a request for disbursement, the Authority shall disburse the approved
amount of the requested disbursement to the Redeveloper.
(g) The making of the final disbursement by the Authority under this Section shall be
subject to the condition precedent that the Redeveloper shall be in compliance with all conditions
set f01ih in this Section and further, that the following conditions shall have been satisfied:
274817vlO MTN CL205-26
12
(1) The Redeveloper shall have received, or applied for and is awaiting, a
certificate of completion from the Minnesota Pollution Control Agency pursuant to
Minnesota Statutes, Section 115B.l 75; and
(2) The Authority shall have received a lien waiver from each contractor for
all work done and for all materials furnished by it for the Environmental Remediation.
(h) The Authority may, in its sole discretion, without notice to or consent from any
other party, waive any or all conditions for disbursement set forth in this Article. However, the
making of any disbursement prior to fulfillment of any condition therefor shall not be construed
as a waiver of such condition, and the Authority shall have the right to require fulfillment of any
and all such conditions prior to authorizing any subsequent disbursement.
(i) Notwithstanding anyihing to the contrary in this Agreement. if Redeveloper
should default by failing to complete the Environmental Remediation by the date provided for in
a schedule to be developed pursuant to Section 3.8(a), or fail to complete the Minimum
Improvements by the dates specified in Section 4.3(a), the Redeveloper shall promptly repay to
the Authority the amount disbursed to Redeveloper under clauses (d)-(g). Further, the Authority
may, in addition to any remedies it has under this Agreement, exercise its rights to enter the
Redevelopment Property and complete the Environmental Remediation under the right of access
referenced in Section 3.8(d)(vii).
Section 3.9. Payment of Administrative Costs. The Redeveloper is responsible for the
Authority's "Administrative Costs," which means out-of-pocket costs incurred by the Authority
attributable to or incurred in connection with the negotiation and preparation of this Agreement,
the Preliminary Development Agreement, and other documents and agreements in cOlli1ection
with the Redevelopment Property. In order to secure partial payment of the Administrative
Costs, the Redeveloper delivered to the Authority $3,000 upon execution of the Prelimin3lY
Development Agreement. The Authority will utilize such funds to payor reimburse itself for
Administrative Costs. If at anyone or more times during the tenn of this Agreement, the
Authority determines that Administrative Costs will exceed $3,000 and that additional security is
required, the Authority shall notify the Redeveloper of the amount of such additional security.
Within ten calendar days of receipt of such notice, the Redeveloper shall deliver to the Authority
the required additional security. Failure of the Redeveloper to deliver the requested additional
security will result in the Authority suspending its obligations under this Agreement until the
security is provided.
Section 3.1 O. Records. The Authority or its representatives shall have the right at all
reasonable times after reasonable notice to inspect, examine and copy all books and records of
Redeveloper relating to the Minimum Improvements.
274817v] 0 MTN CL205-26
13
ARTICLE IV
Construction of Minimum Improvements and Public Improvements
Section4.1. Construction of Minimum Improvements and Public Improvements. (a) The
Redeveloper agrees that, upon acquisition of the Redevelopment Property, it will construct or
cause construction of the Minimum Improvements on the Redevelopment Property, in substantial
compliance with approved Construction Plans and at all times while Redeveloper owns the
Redevelopment Property, all as determined by the City Engineer in his reasonable discretion,
will operate and maintain, preserve and keep the respective components of the Minimum
Improvements or cause such components be maintained, preserved and kept with the
appUlienances and every part and parcel thereof, in good repair and condition.
(b) The Redeveloper must prepare plans and specifications pursuant to the
Construction Plans, and construct all improvements consistent therewith, all in accordance with
the requirements of the City Engineer in his reasonable discretion. Before commencing such
construction, the Redeveloper must submit plans and specifications regarding the Public
Improvements for approval by the City substantially in accordance with procedures for
Construction Plans described in Section 4.2. All plans and specifications shall in addition
comply with all conditions imposed on Redeveloper by the City or its Planning Commission in
approving the requested zoning approvals, variance, vacation and preliminary and final plat (the
"Land Use Approvals") for the Redevelopment Propeliy. Redeveloper understands that there
remains pending City approval of the final plat, vacation of Lookout Place, the two (2) foot
parking variance and other set back and parking variances required by Redeveloper. All work on
the Public Improvements shall be in accordance with the approved construction plans and shall
comply with all City requirements regarding such improvements. The paliies agree and
understalld that the City will accept the improvements in accordance with City procedures.
Section 4.2. Construction Plans. (a) Before commencement of construction of the
Minimum Improvements, the Redeveloper shall submit to the Authority Construction Plans. The
Construction PlallS shall provide for the construction of the Minimum Improvements and shall bc
in conformity with this Agreement and all applicable State and local laws and regulations. The
Authority Representative will approve the Construction Plans in writing if: (i) the Construction
Plans conform to the terms and conditions of this Agreement; (ii) the Construction Plans
conform to the goals and objectives of the Redevelopment Plan; (iii) the Construction Plans
confonn to all applicable federal, state and local laws, ordinallces, rules alld regulations; (iv) the
Construction Plans are adequate to provide for construction of the Minimum Improvements; (v)
the Construction Plans do not provide for expenditures in excess of the funds available to the
Redeveloper from all sources (including Redeveloper's equ;ty) for construction of the Minimum
Improvements; and (vi) no Event of Default has occurred. Approval may be based upon a
review by the City's Engineer and Building Official of the Construction Plans. No approval by
the Authority Representative shall relieve the Redeveloper of the obligation to comply with the
terms of this Agreement or of the Redevelopment Plan, applicable federal, state and local laws,
ordinances, rules and regulations, or to construct the Minimum Improvements in accordance
therewith. No approval by the Authority Representative shall constitute a waiver of an Event of
274817vlO MTN CL205-26
14
Default. If approval of the Construction Plans is requested by the Redeveloper in writing at the
time of submission, such Construction Plans shall be deemed approved unless rejected in writing
by the Authority Representative, in whole or in part. Such rejections shall set forth in detail the
reasons therefore, and shall be made within 15 days after the date of their receipt by the
Authority. If the Authority Representative rejects any Construction Plans in whole or in part, the
Redeveloper shall submit new or corrected Construction Plans within 15 days after written
notification to the Redeveloper of the rejection. The provisions of this Section relating to
approval, rejection and resubmission of corrected Construction Plans shall continue to apply
until the Construction Plans have been approved by the Authority. The Authority
Representative's approval shall not be unreasonably withheld, delayed or conditioned. Said
approval shall constitute a conclusive determination that the Construction Plans (and the
Minimum Improvements to be constructed in accordance with said plans) comply to the
Authority's satisfaction with the provisions of this Agreement relating thereto.
(b) If the Redeveloper desires to make any material change in the Construction Plans
after their approval by the Authority, the Redeveloper shall submit the proposed change to the
Authority for its approval. If the Construction Plans, as modified by the proposed change,
conform to the requirements of Section 4.2 of this Agreement with respect to such previously
approved Construction Plans, the Authority shall approve the proposed change and notify the
Redeveloper in writing of its approval. Such change in the Construction Plans shall, in any
event, be deemed approved by the Authority unless rejected, in whole or in part, by written
notice by the Authority to the Redeveloper, setting forth in detail the reasons therefor. Such
rejection shall be made within 15 days after receipt of the notice of such change. The
Authority's approval of any such change in the Construction Plans will not be unreasonably
withheld.
Section 4.3. Completion of Construction. (a) Subject to Unavoidable Delays, the
Redeveloper must commence construction of the Minimum Improvements by July 15,2006, and
must substantially complete construction of the Minimum Improvements by December 31, 2006.
All work with respect to the Minimum Improvements to be constructed or provided by the
Redeveloper on the Redevelopment Property shall be in substantial confOlmity with the
Construction Plans as submitted by the Redeveloper and approved by the Authority and the City.
If the Redeveloper is making substantial progress with respect to the redevelopment project, and
is unable to meet one or more of the above-referenced deadlines, the Authority and the
Redeveloper shall negotiate in good faith for a reasonable period to extend the time in which
necessary action(s) must be taken or occur, the lapse of which time would otherwise constitute a
default under tIns Agreement.
(b) The Redeveloper agrees for itself, its successors and assigns, and every successor in
interest to the Redevelopment Property, or any part thereof, that the Redeveloper, and such
successors and assigns, shall promptly begin and diligently prosecute to completion the
redevelopment of the Redevelopment Property through the construction of the Minimum
Improvements thereon, and that such construction shall in any event be commenced and
completed subject to Unavoidable Delay within the period specified in this Section 4.3 of tills
Agreement. Subsequent to conveyance of the Redevelopment Property, or any part thereof, to
the Redeveloper, and until construction of the Minimum Improvements has been completed, the
2748] 7v]O MTN CL205-26
15
Redeveloper shall make reports, in such detail and at such times as may reasonably be requested
by the Authority, as to the actual progress of the Redeveloper with respect to such construction.
Section 4.4. Certificate of Completion. (a) Promptly after substantial completion of the
Minimum Improvements in accordance with those provisions of the Agreement relating solely to
the obligations of the Redeveloper to construct the Minimum Improvements (including the dates
for completion thereof), the Authority will furnish the relevant Redeveloper with a Certificate of
Completion in substantially the fonn attached as Schedule C. Such certification by the Authority
shall be (and it shall be so provided in the Deed and in the certification itself) a conclusive
determination of satisfaction and termination of the agreements and covenants in the Agreement
and in the Deed with respect to the obligations of the Redeveloper, and its successors and
assigns, to construct the relevant component of the Minimum Improvements and the dates for the
completion thereof. Such certification and such detennination shall not constitute evidence of
compliance with or satisfaction of any obligation of the Redeveloper to any Holder of a
Mortgage, or any insurer of a Mortgage, securing money loaned to finance the Minimum
Improvements, or any part thereof.
(b) The Certificate of Completion provided for in this Section 4.4 of this Agreement
shall be in such fonn as will enable it to be recorded in the proper office for the recordation of
deeds and other instruments pertaining to the Redevelopment Property. If the Authority shall
refuse or fail to provide any certification in accordance with the provisions of this Section 4.4 of
this Agreement, the Authority shall, within thirty (30) days after written request by the
Redeveloper, provide the Redeveloper with a written statement, indicating in adequate detail in
what respects the Redeveloper has failed to complete the Minimum Improvements in accordance
with the provisions of the Agreement, or is otherwise in default, and what measures or acts it will
be necessary, in the opinion of the Authority, for the Redeveloper to take or perfonn in order to
obtain such certification.
(c) The construction of the Minimum Improvements shall be deemed to be
substantially completed when the Redeveloper has received a certificate of occupancy from the
City, and all site improvements have been substantially completed as reasonably detelmined by
the Authority Representative.
274817vlO MTN CL205-26
16
ARTICLE V
Insurance
Section 5.1. Insurance. (a) The Redeveloper will provide and maintain at all times
during the process of constructing the Minimum Improvements an All Risk Broad Form Basis
Insurance Policy and, from time to time during that period, at the request of the Authority,
furnish the Authority with proof of payment of premiums on policies covering the following:
(i) Builder's risk insurance, written on the so-called "Builder's Risk
Completed Value Basis," in an amount equal to one hundred percent (100%) of the
insurable value of the Minimum Improvements at the date of completion, and with
coverage available in non-reporting form on the so-called "all risk" form of policy. The
interest of the Authority shall be protected in accordance with a clause in form and
content satisfactory to the Authority;
(ii) Comprehensive general liability insurance (including operations,
contingent liability, operations of subcontractors, completed operations and contractual
liability insurance) together with an Owner's Contractor's Policy with limits against
bodily injury and property damage of not less than $1,000,000 for each occurrence (to
accomplish the above-required limits, an umbrella excess liability policy may be used);
(iii) Automobile liability insurance to cover claims for damages because of
bodily injury or death of any person or property damage arising out of the ownership,
maintenance or use of any motor vehicle of not less than $1,000,000; and
(iv) Workers' compensation insurance, with statutory coverage.
(b) All insurance required in A1iicle V of this Agreement shall be taken out and
maintained in responsible insurance companies selected by the Redeveloper which are
authorized under the laws of the State to assume the risks covered thereby, and shall name the
Authority, the City and any Mortgagee as an additional named insured thereunder. Upon
request, the Redeveloper will deposit annually with the Authority policies evidencing all such
insurance, or a certificate or celiificates or binders of the respective insurers stating that such
insurance is in force and effect. Unless otherwise provided in this Article V of this Agreement
each policy shall contain a provision that the insurer shall not cancel nor modify it in such a way
as to reduce the coverage provided below the amounts required herein without giving written
notice to the Redeveloper and the Authority at least thiliy (30) days before the cancellation or
modification becomes effective. In lieu of separate policies, the Redeveloper may maintain a
single policy, blanket or umbrella policies, or a combination thereof, having the coverage
required herein, in which event the Redeveloper shall deposit with the Authority a certificate or
celiificates of the respective insurers as to the amount of coverage in force upon the Minimum
Improvements.
274817vlO MTN CL205-26
17
(c) The Redeveloper agrees to notify the Authority immediately in the case of
damage exceeding $100,000 in amount to, or destruction of, the Minimum Improvements or any
portion thereof resulting from fire or other casualty. In such event the Redeveloper will
forthwith repair, reconstruct and restore the Minimum Improvements to substantially the san1e or
an improved condition or value as it existed prior to the event causing such damage and, to the
extent necessary to accomplish such repair, reconstruction and restoration, the Redeveloper will
apply the net proceeds of any insurance relating to such damage received by the Redeveloper to
the payment or reimbursement of the costs thereof.
The Redeveloper shall complete the repair, reconstruction and restoration of the
Minimum Improvements, whether or not the net proceeds of insurance received by the
Redeveloper for such purposes are sufficient to pay for the same. Any net proceeds remaining
after completion of such repairs, construction and restoration shall be the property of the
Redeveloper.
(d) The Redeveloper and the Authority agree that all of the insurance provisions set
forth in this Article V shall terminate upon the termination ofthis Agreement, the issuance by the
City of a Certificate of Completion for the Minimum Improvements.
Section 5.2. Subordination. Notwithstanding anything to the contrary contained in this
Article V, the rights of the Authority with respect to the receipt and application of any proceeds
of insurance shall,. in all respects, be subject and subordinate to the rights of any lender under a
Mortgage approved pursuant to Article VII of this Agreement.
Section 5.3. Qualifications. Notwithstanding anything herein to the contrary, the parties
aclmowledge and agree that:
(a) Upon transfer of the Redevelopment Property or portion thereof to another person
or entity, the Redeveloper will remain obligated under Section 5.1 hereof relating to such pOliion
transferred, unless the Redeveloper is released from such obligations in accordance with the
tenns and conditions ofSection8.2(b), (c), or 8.3 hereof.
274817vl0 MTN CL205-26
18
ARTICLE VI
Taxes
Section 6.1. Right to Collect Delinquent Taxes. The Redeveloper acknowledges that the
Authority is providing substantial aid and assistance in furtherance of the redevelopment
described in this Agreement, in part through payment of the Public Redevelopment Costs. The
Redeveloper understands that the real estate taxes on the Minimum Improvements must be
promptly and timely paid. To that end, the Redeveloper agrees for itself, its successors and
assigns, in addition to the obligation pursuant to statute to pay real estate taxes, that it is also
obligated by reason of this Agreement to pay before delinquency all real estate taxes assessed
against the Redevelopment Property and the Minimum Improvements. The Redeveloper
acknowledges that this obligation creates a contractual right prior to the issuance of a Certificate
of Completion on behalf of the Authority to sue the Redeveloper or its successors and assigns to
collect delinquent real estate taxes and any penalty or interest thereon and to pay over the same
as a tax payment to the county auditor. In any such suit, the Authority shall also be entitled to
recover its costs, expenses and reasonable attomey fees.
Section 6.2. Review of Taxes. The Redeveloper agrees that prior to the issuance of the
Certificate of Completion, it will not cause a reduction in the real property taxes paid in respect
of the Redevelopment Property through: (A) willful destruction of the Redevelopment Property
or any pmi thereof; or (B) willful refusal to reconstruct damaged or destroyed property pursuant
to Section 5.1 of tIns Agreement. The Redeveloper also agrees that it will not, prior to the
issuance of the Certificate of Completion, apply for a defelTal of property tax on the
Redevelopment Propeliy pursuant to any law, or trm1sfer or pen11it transfer of the
Redevelopment Property to any entity whose ownership or operation of the propeliy would result
in the Redevelopment Propeliy being exempt from real estate taxes under State law (other than
any portion thereof dedicated or conveyed to the City or Authority in accordance with this
Agreement).
2748] 7v]O MTN CL205-26
19
ARTICLE VII
Financing
Section 7.1. Mortgage Financing. (a) Before the Redeveloper's Closing Date, the
Redeveloper shall submit to the City evidence of one or more commitments for financing which,
together with committed equity for such construction, is sufficient for payment of the
Construction Costs for the Minimum Improvements. Such commitments may be submitted as
short term financing, long tenn mortgage financing, a bridge loan with a long tenn take-out
financing conmlitment, or any combination of the foregoing.
(b) If the financing is sufficiently committed and adequate in amount to pay the costs
specified in paragraph (a) then the Authority staff shall notify the Redeveloper in writing of its
approval. Such approval shall not be unreasonably withheld and either approval or rejection
shall be given within ten (10) days from the date when the Authority is provided the evidence of
financing. A failure by the Authority staff to respond to such evidence of financing shall be
deemed to constitute an approval hereunder. If the Authority staff rejects the evidence of
financing as inadequate, it shall do so in writing specifying the basis for the rejection. In any
event the Redeveloper shall submit adequate evidence of financing within ten (10) days after
such rejection.
(c) In the event that there occurs a default under any Mortgage authorized pursuant to
Section 7.1 of this Agreement, the Redeveloper shall cause the Authority to receive copies of any
notice of default received by the Redeveloper from the holder of such Mortgage. Thereafter, the
Authority shall have the right, but not the obligation, to cure any such default on behalf of the
Redeveloper within such cure periods as are available to the Redeveloper under the Mortgage
documents. In the event there is an event of default under this Agreement, the Authority will
transmit to the Holder of any Mortgage a copy of any notice of default given by the Authority
pursuant to Article IX of this Agreement.
(d) In order to facilitate the securing of other financing, the Authority agrees to
subordinate its rights under this Agreement provided that such subordination shall be subject to
such reasonable terms and conditions as the Authority and Holder mutually agree in writing.
Notwithstanding anything to the contrary herein, any subordination agreement must include the
provision described in Section 7.1 (c).
274817vlO MTN CL205-26
20
ARTICLE VIII
Prohibitions Against Assignment and Transfer~ Indemnification
Section 8.1. Representation as to Redevelopment. The Redeveloper represents and
agrees that its purchase of the Redevelopment Propeliy, and its other undertakings pursuant to
the Agreement, are, and will be used, for the purpose of redevelopment of the Redevelopment
Property and not for speculation in land holding.
Section 8.2. Prohibition A!.minst Redeveloper's Transfer of Property and Assifmment of
Agreement. The Redeveloper represents and agrees that until issuance of the Certificate of
Completion for the Minimum Improvements:
(a) Except as specifically described in this Agreement, the Redeveloper has not made
or created and will not make or create or suffer to be made or created any total or partial sale,
assignment, conveyance, or lease, or any trust or power, or transfer in any other mode or form of
or with respect to tIns Agreement or the Redevelopment Property or any part thereof or any
interest therein, or any contract or agreement to do any of the same, to any person or entity
(collectively, a "Transfer"), without the prior written approval of the Authority's board of
commissioners. The term "Transfer" does not include (i) encumbrances made or granted by way
of security for, and only for, the purpose of obtaining construction, interim or pem1anent
financing necessary to enable the Redeveloper or any successor in interest to the Redevelopment
Property or to construct the Minimum Improvements or component thereof, or (ii) any lease,
license, easement or similar arrangement entered into in the ordinary course of business related
to operation of the Minimum Improvements.
(b) If the Redeveloper seeks to effect a Transfer prior to issuance of the Certificate of
Completion, the Authority shall be entitled to require as conditions to such Transfer that:
(i) any proposed transferee shall have the qualifications and financial
responsibility, in the reasonable judgment of the Authority, necessary and adequate to
fulfill the obligations undeliaken in this Agreement by the Redeveloper as to the poliion
of the Redevelopment Property to be transferred; and
(ii) Any proposed transferee, by instrument in wrltmg satisfactory to the
Authority and in form recordable in the public land records of Anoka County, Minnesota,
shall, for itself and its successors and assigns, and expressly for the benefit of the
Authority, have expressly assumed all of the obligations of the Redeveloper under tills
Agreement as to the poliion of the Redevelopment Propeliy to be transferred and agreed
to be subject to all the conditions and restrictions to which the Redeveloper is subject as
to such pOliion; provided, however, that the fact that any transferee of, or any other
successor in interest whatsoever to, the Redevelopment Propeliy, or any part thereof,
shall not, for whatever reason, have assumed such obligations or so agreed, and shall not
(unless and only to the extent otherwise specifically provided in this Agreement or agreed
to in writing by the Authority) deprive the Authority of any rights or remedies or controls
with respect to the Redevelopment Propeliy, the Minimum Improvements or any part
274817vlO MTN CL205-26
21
thereof or the construction of the Minimum Improvements; it being the intent of the
parties as expressed in this Agreement that (to the fullest extent pennitted at law and in
equity and excepting only in the manner and to the extent specifically provided otherwise
in tlus Agreement) no transfer of, or change with respect to, ownership in the
Redevelopment Property or any part thereof, or any interest therein, however
consummated or occurring, and whether voluntary or involuntary, shall operate, legally,
or practically, to deprive or limit the Authority of or with respect to any rights or
remedies on controls provided in or resulting from this Agreement with respect to the
Redevelopment Property that the Authority would have had, had there been no such
transfer or change. In the absence of specific written agreement by the Authority to the
contrary, no such transfer or approval by the Authority thereof shall be deemed to relieve
the Redeveloper, or any other party bound in any way by this Agreement or otherwise
with respect to the Redevelopment Property, from any of its obligations with respect
thereto; and
(iii) Any and all instruments and other legal documents involved in effecting
the transfer of any interest in this Agreement or the Redevelopment Property governed by
this Article VIII, shall be in a form reasonably satisfactory to the Authority.
(c) If the conditions described in paragraph (b) are satisfied then the Transfer will be
approved and the Redeveloper shall be released from its obligation under this Agreement, as to
the portion of the Redevelopment Property that is transferred, assigned, or otherwise conveyed.
The provisions of this paragraph (c) apply to all subsequent transferors, assuming compliance
with the terms of tills Article.
(d) Upon issuance of the Certificate of Completion, the Redeveloper may transfer or
assign the Minimum Improvements and/or the Redeveloper's rights and obligations under this
Agreement with respect to such property without the prior written consent of the Authority.
Section 8.3. Release and Indenmification Covenants. (a) The Redeveloper releases from
and covenants and agrees that the Authority and the City and the governing body members,
officers, agents, servants and employees thereof shall not be liable for and agrees to indemnify
and hold harmless the Authority and the City and the governing body members, officers, agents,
servants and employees thereof against any loss or damage to property or any injury to or death
of any person occurring at or about or resulting from any defect in the Milumum Improvements
or the Public Improvements, except for any such danlages or injuries directly related to the gross
negligence of the Authority or the City.
(b) Except for any willful or negligent misrepresentation or any willful or wanton
misconduct or negligence of the following nanled parties, the Redeveloper agrees to protect and
defend the Authority and the City and the govenung body members, officers, agents, servants
and employees thereof (the "Indemnified Parties"), now or forever, and fu.rther agrees to hold the
Indemnified Parties hannless from any claim, demand, suit, action or other proceeding
whatsoever by any person or entity whatsoever arising or purportedly arising from this
Agreement, or the transactions contemplated hereby or the acquisition, construction, installation,
ownership, and operation of the Minimum Improvements and Public Improvements.
2748] 7vlO MTN CL205-26
22
(c) Except for any negligence of the Indemnified Parties (as defined in clause (b)
above), and except for any breach by any of the Indemnified Parties of their obligations under
this Agreement, the Indemnified PaIiies shall not be liable for any damage or injury to the
persons or property of the Redeveloper or its officers, agents, servants or employees or any other
person who may be about the Minimum Improvements or Public Improvements due to any act of
negligence of any person.
(d) All covenants, stipulations, promises, agreements and obligations of the Authority
contained herein shall be deemed to be the covenants, stipulations, promises, agreements and
obligations of the Authority and not of aI1Y governing body member, officer, agent, servant or
employee of the Authority in the individual capacity thereof.
274817vlO MTN CL205-26
23
ARTICLE IX
Events of Default
Section 9.1. Events of Default Defined. The following shall be "Events of Default"
under this Agreement and the term "Event of Default" shall mean, whenever it is used in this
Agreement, anyone or more of the following events, after the non-defaulting party provides 30
days written notice to the defaulting party of the event, but only if the event has not been cured
within said 30 days or, if the event is by its nature incurable within 30 days, the defaulting party
does not, within such 30-day period, provide assurances reasonably satisfactory to the party
providing notice of default that the event will be cured and will be cured as soon as reasonably
possible:
(a) Failure by the Redeveloper or the Authority to observe or perform any material
covenant, condition, obligation, or agreement on its part to be observed or perfom1ed under this
Agreement;
(b) The Redeveloper:
(i) files any petition in bankruptcy or for any reorganization, anangement,
composition, readjustment, liquidation, dissolution, or similar relief under the United
States Bankruptcy Act or under any similar federal or State law;
(ii) makes an assignment for benefit of its creditors;
(iii) admits in writing its inability to pay its debts generally as they become
due;
(iv) is adjudicated a banlaupt or insolvent; or
(v) fails to payor escrow for the Authority's Administrative Costs.
Section 9.2. Remedies on Default. Whenever any Event of Default referred to in Section
9.1 of this Agreement occurs, the non-defaulting party may exercise its rights under this Section
9.2 after providing thirty days written notice to the defaulting party of the Event of Default, but
only if the Event of Default has not been cured within said thirty days or, if the Event of Default
is by its nature incurable within thirty days, the defaulting paliy does not provide assurances
reasonably satisfactory to the non-defaulting party that the Event of Default will be cured and
will be cured as soon as reasonably possible:
(a) Take whatever action, including legal, equitable or administrative action, which
may appear necessary or desirable to collect any payments due under this Agreement, or to
enforce performance and observance of any obligation, agreement, or covenant under this
Agreement.
2748] 7vlO MTN CL205-26
24
Section 9.3. Revesting Title in Authority Upon Happening of Event Subsequent to
Conveyance to Redeveloper. In the event that subsequent to conveyance of the Redevelopment
Property to the Redeveloper and prior to receipt by the Redeveloper of the Certificate of
Completion for the Minimum Improvements required to be constructed on that parcel:
(a) the Redeveloper, subject to Unavoidable Delays, shall fail to begin construction
of the Minimum Improvements in confonnity with this AgTeement and such failure to begin
construction is not cured within 90 days after WTitten notice from the Authority to the
Redeveloper to do so; or
(b) subject to Unavoidable Delays, the Redeveloper after commencement of the
construction of the Minimum Improvements, fails to carry out its obligations with respect to the
construction of such improvements (including the nature and the date for the completion
thereof), or abandons or substantially suspends construction work, and any such failure,
abandonment, or suspension shall not be cured, ended, or remedied within 90 days after WTitten
demand from the Authority to the Redeveloper to do so; or
(c) the Redeveloper fails to pay real estate taxes or assessments on the parcel or any
part thereof when due, or creates, suffers, assumes, or agrees to any encumbrance or lien on the
parcel (except to the extent permitted by this Agreement), or shall suffer any levy or attachment
to be made, or any material men's or mechanics' lien, or any other unauthorized encumbrance or
lien to attach, and such taxes or assessments shall not have been paid, or the encumbrance or lien
removed or discharged or provision satisfactory to the Authority made for such payment,
removal, or discharge, within thirty (30) days after written demand by the Authority to do so;
provided, that if the Redeveloper first notifies the Authority of its intention to do so, it may in
good faith contest any mechanics' or other lien filed or established and in such event the
Authority shall permit such mechanics' or other lien to remain undischarged and unsatisfied
during the period of such contest and any appeal and during the course of such contest the
Redeveloper shall keep the Authority informed respecting the status of such defense; or
(d) there is, in violation of the Agreement, any transfer of the parcel or any part
thereof, and such violation is not cured within sixty (60) days after WTitten demand by the
Authority to the Redeveloper, or if the event is by its nature not reasonably susceptible of being
cured within 60 days, the Redeveloper does not, within such 60-day period, provide assurances
reasonably satisfactory to the Authority that the event will be cured as soon as reasonably
possible; or
(e) the Redeveloper fails to comply with any of its other covenants under this
Agreement, including failure to complete Environmental Remediation as provided in Section 3.8
related to the Minimunl Improvements and fails to cure any such noncompliance or breach
within thirty (30) days after WTitten demand from the Authority to the Redeveloper to do so, or if
the event is by its nature incurable within 30 days, the Redeveloper does not, within such 30-day
period, provide assurances reasonably satisfactory to the Authority that the event will be cured as
soon as reasonably possible; or
274817vlO MTN CL205-26
25
Then the Authority shall have the right to re-enter and take possession of the parcel and
to terminate (and revest in the Authority) the estate conveyed by the Deed to the Redeveloper, it
being the intent of this provision, together with other provisions of the Agreement, that the
conveyance of the parcel to the Redeveloper shall be made upon, and that the Deed shall contain
a condition subsequent to the effect that in the event of any default on the part of the
Redeveloper described in this Section 9.3 and failure on the part of the Redeveloper to remedy,
end, or abrogate such default within the period and in the manner stated in such Section, the
Authority at its option may declare a termination in favor of the Authority of the title, and of all
the rights and interests in and to the parcel conveyed to the Redeveloper, and that such title and
all rights and interests of the Redeveloper, and any assigns or successors in interest to and in the
parcel, shall revert to the Authority, but only if the events stated in Section 9.3(a)-(e) have not
been cured within the time periods provided above.
Section 9.4. Resale of Reacquired Property; Disposition of Proceeds. Upon the revesting
in the Authority of title to and/or possession of the Redevelopment Property or any part thereof
as provided in Section 9.3, the Authority shall, pursuant to its responsibilities under law, use its
best efforts to sell the Redevelopment Property or part thereof as soon and in such malmer as the
Authority shall find feasible and consistent with the objectives of such law and of the
Redevelopment Plan to a qualified alld responsible pali)' or parties (as determined by the
Authority) who will assume the obligation of making or completing the Minimum Improvements
or such other improvements in their stead as shall be satisfactory to the Authority in accordance
with the uses specified for such Redevelopment Property or part thereof in the Redevelopment
Plan. Upon resale ofthe parcel, the proceeds thereof shall be applied:
(a) First, to reimburse the Authority for all costs and expenses incurred by them,
including but not limited to salaries of personnel, in connection with the recapture, mallagement,
alld resale of the parcel (but less allY income derived by the Authority from the property or part
thereof in cOlmection with such management); all taxes, assessments, and water and sewer
charges with respect to the parcel or pmi thereof (or, in the event the parcel is exempt from
taxation or assessment or such charge during the period of ownership thereof by the Autllority,
all amount, if paid, equal to such taxes, assessments, or charges (as detennined by the Authority
assessing official) as would have been payable if the parcel were not so exempt); any payments
made or necessary to be made to discharge any encumbrances or liens existing on the parcel or
part thereof at the time of revesting of title thereto in the Authority or to discharge or prevent
from attaching or being made any subsequent encumbrances or liens due to obligations, defaults
or acts of the Redeveloper, its successors or transferees; any expenditures made or obligations
incurred with respect to the making or completion of the subject improvements or any part
thereof on the parcel or part thereof; mld any mnounts otherwise owing the Authority by the
Redeveloper and its successor or transferee; alld
(b) Second, to reimburse the Redeveloper, its successor or transferee, up to the
amount equal to (1) the purchase price paid by Redeveloper under Section 3.2; plus (2) the
alnount actually invested by it in making any of the subject improvements on the parcel or part
thereof.
274817vlO MTN CL205-26
26
Any balance remaining after such reimbursements shall be retained by the Authority as
its property.
Section 9.5. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
Authority or Redeveloper is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement or now or hereafter existing at law or in equity or by statute.
No delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed expedient. In order to entitle
the Authority to exercise any remedy reserved to it, it shall not be necessary to give notice, other
than such notice as may be required in this Article IX.
Section 9.6. No Additional Waiver Implied by One Waiver. In the event any agreement
contained in this Agreement should be breached by either party and thereafter waived by the
other party, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other concurrent, previous or subsequent breach hereunder.
Section 9.7. Attorney Fees. Whenever any Event of Default occurs and if the Authority
or Redeveloper shall employ attorneys or incur other expenses for the collection of payments due
or to become due or for the enforcement of perfonnance or observance of any obligation or
agreement on the pmi of the Redeveloper or Authority under this Agreement, the non-prevailing
party in any such action agrees that it shall, within 10 days of written demand by the prevailing
pmiy, pay to the prevailing party the reasonable fees of such attorneys and such other reasonable
expenses so incurred.
274817vl0 MTN CL205-26
27
ARTICLE X
Additional Provisions
Section 10.1. Conflict of Interest; Authority Representatives Not Individually Liable.
The Authority and the Redeveloper, to the best of their respective knowledge, represent and
agree that no member, official, or employee of the Authority shall have any personal interest,
direct or indirect, in the Agreement, nor shall any such member, official, or employee participate
in any decision relating to the Agreement which affects his personal interests or the interests of
any corporation, partnership, or association in which he is, directly or indirectly, interested. No
member, official, or employee of the Authority shall be personally liable to the Redeveloper, or
any successor in interest, in the event of any default or breach by the Authority or County or for
any amount which may become due to the Redeveloper or successor or on any obligations under
the terms of the Agreement.
Section 10.2. Equal Employment OpPOliunity. The Redeveloper, for itself and its
successors and assigns, agrees that during the construction of the Minimum Improvements
provided for in the Agreement it will comply with all applicable federal, state and local equal
employment and non-discrimination laws and regulations.
Section lO.3. Restrictions on Use. The Redeveloper agrees that until the Tennination
Date, the Redeveloper, and such successors and assigns, shall devote the Redevelopment
Property to, the operation of the Minimum Improvements for uses described in the definition of
such term in this Agreement, and shall not discriminate upon the basis of race, color, creed, sex
or national origin in the sale, lease, or rental or in the use or occupancy of the Redevelopment
Property or any improvements erected or to be erected thereon, or any part thereof.
Section lOA. Provisions Not Merged With Deed. None of the provisions of this
Agreement are intended to or shall be merged by reason of any deed transferring any interest in
the Redevelopment Property and any such deed shall not be deemed to affect or impair the
provisions and covenants of this Agreement.
Section 10.5. Titles of Articles and Sections. Any titles of the several parts, Articles, and
Sections of the Agreement are inselied for convenience of reference only and shall be
disregarded in construing or interpreting any of its provisions.
Section 10.6. Notices and Demands. Except as otherwise expressly provided in this
Agreement, a notice, demand, or other conununication under the Agreement by either party to
the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail,
postage prepaid, return receipt requested, or delivered personally; and
(a) in the case of the Redeveloper, is addressed to or delivered personally to the
Redeveloper at 4329 Central Avenue NE, Columbia Heights, MN 55421; and
274817vlO MTN CL205-26
28
(b) in the case of the Authority, is addressed to or delivered personally to the
Authority at 590 - 40th Avenue NE, Columbia Heights, Minnesota 55421, Attn: Executive
Director; or at such other address with respect to either such party as that party may, from time to
time, designate in writing and forward to the other as provided in this Section.
Section 10.7. Counterparts. This Agreement may be executed 111 any number of
counterparts, each of which shall constitute one and the same instrument.
Section 10.8. Recording. The Authority may record this Agreement and any
amendments thereto with the Anoka County recorder. The Redeveloper shall pay all costs for
recording.
Section 10.9. Amendment. This Agreement may be amended only by written agreement
approved by the Authority and the Redeveloper.
Section 10.10. Authority or City Approvals. Unless otherwise specified, any approval
required by the Authority under this Agreement may be given by the Authority Representative.
Section 10.11. Termination. This Agreement terminates on the date the City issues the
Certificate of Completion, except that tennination of the Agreement does not terminate, limit or
affect the rights of any party that arises before the date the City issues the Certificate of
Completion, or as otherwise provided herein.
274817vlO MTN CL205-26
29
IN WITNESS WHEREOF, the Authority has caused this Agreement to be duly executed
in its name and behalf and its seal to be hereunto duly affixed and the Redeveloper has caused
this Agreement to be duly executed in its name and behalf on or as of the date first above written.
COLUMBIA HEIGHTS ECONOMIC
DEVELOPMENT AUTHORITY
By /
Its Presi nt-Don rz n Jr.
By v<I/-
Its Executive Director- Walter R. Fehst
STATE OF MINNESOTA )
) ss.
COUNTYOFANOKA )
The foregoing instrument was acknowledged before me this day of 7~ ~.. ,
2006, by ";])0 A \\s\\H. <::'1 ~ 1lf. and \;j"...... \~ ~. ~-€ks+ , the President and Executive rector
of the Columbia Heights Economic Development Authority, a public body politic and corporate,
on behalf of the Authority.
.
CHERYl.. A BAKKEN ,
NOTARY PUBUC -MINNESOTA
MYCOMMISSION EXPIRES 1-31-2007
!II
t-~ /I. &_~
Notary Public
274817v8 MTN CL205-26
30
SARN7;Co
~; .. .'d~1r
STATE OF MINNESOTA
ss.
COUNTY OF
1 The foregoing inst..rument was." ackn~wledged before me
\.LlJ.A-~ ' 2006 by \Jit'w.-t.:c- A:~SJLiif"'/-' ,the
Inc., aMi esota limited liability company, on behalf ofthe company.
day of
Sarna's,
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274817vlO MTN CL205-26
31
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SCHEDULE B
GONDEK AGREEMENT
274817vlO MTN CL205-26
B-1
AGREEMENT OF EASEMENTS AND COVENANTS
THIS AGREEMENT OF EASEMENTS AND COVENANTS ("Agreement") is made as
of thej~ day of May, 2006, by and between Michael Gondek, single ("Gondek") and Sarna's,
Inc., a Minnesota corporation ("Sarna") for the purposes stated below.
WITNESSETH
WHEREAS, Sarna is the owner of real property described on Exhibit A attached hereto
("Sarna Property"). Sarna intends to construct a bar/restaurant on the Sarna Property ("ProjecC);
and
WHEREAS, Gondek is the owner of real property described on Exhibit B attached
hereto, which is adjacent to and contiguous to the Sarna Property ("Gondek Property"); and
WHEREAS, Sarna has agreed to provide an egress easement through a portion of the
Sarna Property for the benefit of the Gondek Property and Gondek has agreed to provide an
egress easement through a portion of the Gondek Property for the benefit of the Sarna Property;
and
WHEREAS, as part of the proposed development of the Project on the Sarna Property,
the City of Columbia Heights ("City") has agreed to vacate Lookout Place Street ("Lookout")
and all that portion of the vacated Lookout is included within the Sarna Property; and
WHEREAS, in consideration of the Reciprocal Easement Grant as contained in this
document and other good and valuable consideration, Gondek has agreed to convey to Sarna any
rights to that portion of Lookout which shall be vacated and which accrues to the Gondek
Property, and agrees to convey to Sarna by quit claim deed, that portion of vacated Lookout
which accrues to the Gondek Property as a result of the vacation of Lookout.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby
acknowledged, Sarna and Gondek agree as follows:
A. Egress Over Sarna Property.
1. Grant of Egress Easement / Access Drive / Sarna. Sarna hereby grants and
conveys for the benefit of the Gondek Property and for the use of the tenants, occupants,
contractors, licensees and business invitees of the Gondek Property, in common with others
entitled to use the same, and subject to the reservations set forth in this Article, a non-exclusive,
perpetual egress easement for the passage and accommodation of pedestrians and vehicles (but
not for parking purposes) upon, over and across that portion of the Sarna Property identified as
"Gondek Property's Egress" in the location shown on Exhibit C attached hereto (the "Gondek
Egress Access Drive") which easement shall run with and bind the Sarna Property. The
easement herein established shall be appurtenant to and for the benefit of the Gondek Property,
and shall be binding on, enforceable against and burden the Sarna Property. The easement
created herein shall commence upon the completion of the construction of the Gondek Egress
Access Drive and shall continue thereafter and run with and benefit the Gondek Property.
Regardless of any provision to the contrary contained in this Paragraph 1, the easement grant by
Sarna for the benefit of the Gondek Property shall only be used for egress purposes from the
Gondek Property through the Gondek Egress Access Drive.
2. Prescriptive Rights. Sarna hereby reserves the right to close-off any portion of the
Gondek Egress Access Drive for such reasonable period of time as may be legally necessary to
prevent the acquisition of prescriptive rights by anyone; provided, however, that the owner of the
Sarna Property shall attempt to coordinate such closing-off so that no unreasonable interference
with the passage of pedestrians or vehicles through the Gondek Egress Access Drive shall occur
to and from the Gondek Property during normal business hours.
3. Points of Access. Points of access b~tween the Gondek Property and the Sarna
Property shall be limited to the area shown on Exhibit C, and in no event shall a curb cut or
point of access from the Sarna Property to the Gondek Property be allowed other than in the
location shown on Exhibit C.
4. Reservation of Rights. Sarna hereby reserves and retains all of the property rights
in and to the Gondek Egress Access Drive, including without limitation, the right to use the
Gondek Egress Access Drive for any purpose whatsoever so long as such use does not
unreasonably interfere with Gondek's rights hereunder, it being expressly understood that the use
of the surface of the Gondek Egress Access Drive by Sarna for vehicular traffic or pedestrian
traffic would not be deemed to substantially interfere with Gondek's. rights hereunder and that
Sarna may locate electric, gas and water lines and other utilities within the Gondek Egress
Access Drive so long as such improvements do not unreasonably interfere with Gondek's
permitted use of the Gondek Egress Access Drive.
B. Egress Over Gondek Property.
1. Grant of Egress Easement / Access Drive / Gondek. Gondek hereby grants and
conveys for the benefit of the Sarna Property and for the use of the tenants, occupants,
2
contractors, licensees and business invitees of the Sarna Property, in common with others entitled
to use the same, and subj~ct to the reservations set forth in this Article, a non-exclusive,
perpetual egress easement for the passage and accommodation of pedestrians and vehicles (but
not for parking purposes) upon, over and across that portion of the Gondek Property identified as
"Sarna Property's Egress" in the location shown on Exhibit C attached hereto (the "Sarna Egress
Access Drive") which easement shall run with and bind the Gondek Property. The easement
herein established shall be appurtenant to and for the benefit of the Sarna Property, and shall be
binding on, enforceable against and burden the Gondek Property. The easement created herein
shall commence upon the completion of the construction of the Gondek Egress Access Drive by
Sarna and shall continue thereafter and run with and benefit the Sarna Property. Regardless of
any provision to the contrary contained in this Paragraph 1, the easement grant by Gondek for the
benefit of the Sarna Property shall only be used for egress purposes from the Sarna Property
through the Sarna Egress Access Drive.
2. Prescriptive Rights. Gondek hereby reserves the right to close-off any portion of
the Sarna Egress Access Drive for such reasonable period of time as may be legally necessary to
prevent the acquisition of prescriptive rights by anyone; provided, however, that the owner of the
Gondek Property shall attempt to coordinate such closing-off so that no unreasonable
interference with the passage of pedestrians or vehicles through the Sarna Egress Access Drive
shall occur to and from the Sarna Property during normal business hours.
3. Points of Access. Points of access between the Sarna Property and the Gondek
Property shall be limited to the area shown on Exhibit C, and in no event shall a curb cut or
point of access from the Gondek Property to the Sarna Property be allowed other than in the
location shown on Exhibit C.
4. Reservation of Rights. Gondek hereIly reserves and retains all of the property
rights in and to the Sarna Egress Access Drive, including without limitation, the right to use the
Sarna Egress Access Drive for any purpose whatsoever so long as such use does not
unreasonably interfere with Sarna's rights hereunder, it being expressly understood that the use
of the surface of the Sarna Egress Access Drive by Gondek for vehicular traffic or pedestrian
traffic would not be deemed to substantially interfere with Sarna's rights hereunder and that
Gondek may locate electric, gas and water lines and other utilities within the Sarna Egress
Access Drive so long as such improvements do not unreasonably interfere with Sarna's pennitted
use of the Sarna Egress Access Drive.
C. Gondek Easement / Sarna Easement / Time Limit Restrictions /..Gate.
1. Construction of a Gate. Sarna shall construct and install a gate separating the
Sarna Property and Gondek Property and restricting access to the Gondek Egress Access Dri ve
and Sarna Egress Access Drive as shown on Exhibit C attached hereto ("Gate").
2. Operation of Gate. The Gate as constructed shall be opened to allow egress to and
from the Sarna Property and Gondek Property pursuant to the Easement grants. as contained
herein between the hours of 8:00 a.m. and 5:30 p.m., Monday through Saturday only. Either.
'1
.)
Gondek or Sarna will be responsible for opening the Gate at 8:00 a.m. on Monday through
Saturday. Sarna will be responsible for locking the Gate at the close of business at 5:30 p.m. or
later on Monday through Saturday. Gondek and Sarna agree to use all reasonable efforts to
ensure the closure of the Gate after 5:30 p.m. and before 8:00 a.m. as provided above. The Gate
shall have a padlock on the same and Gondek, Sarna and the City will be provided a key for the
lock on the Gate.
D. Maintenance / Sarna Egress Access Drive / Gondek Egress Access Drive. Both Sarna
and Gondek shall be required to maintain the egress area located on its Property, including any
replacement due to ordinary wear and tear, all at it sole cost and expense, including, but not
limited to, parking lot overlays. In no event shall either Gondek or Sarna modify the Easement
Area on each parties Property so as to in anyway restrict the use of the Easement Area by the
other party as provided in this Agreement.
E. Indemnification.
1. Sarna. Sarna for itself and its successors and assigns, and all of its licensees.
concessionaires, agents, servants or employees or the agents, servants or employees of any
licensee or concessionaire agrees to and hereby does, defend, protect, indemnify and hold
harmless Gondek from and against all claims or demands, including any action or proceeding
brought thereon, and all costs, losses, expenses and liabilities of any kind relating thereto,
including reasonable attorneys' fees and cost of suit, arising out of or resulting from the exercise
of the right to use the Gondek Egress Access Drive; provided, however, the foregoing obligation
shall not apply to claims or demands based on the negligence or the willful act or omission of
Gondek, its licensees, concessionaires, agents, servants, or employees or the agents, servants, or
employees of any licensee or concessionaires.
2. Gondek. Gondek for itself and its successors and assigns, and all of its licensees,
concessionaires, agents, servants or employees or the agents, servants or employees of any
licensee or concessionaire agrees to and hereby does, defend, protect, indemnify and hold
harmless Sarna from and against all claims or demands, including any action or proceeding
brought thereon, and all costs, losses, expenses and liabilities of any kind relating thereto,
including reasonable attorneys' fees and cost of suit, arising out of or resulting from the exercise
of the right to use the Sarna Egress Access Drive; pro'vided, however, the foregoing obligation
shall not apply to claims or demands based on the negligence or the willful act or omission of
Sarna, its licensees, concessionaires, agents, servants, or employees or the agents, servants, or
employees of any licensee or concessionaires.
C/f-~
F. Insurance. During the term of this Agreement, each party, for itself and its successors and
assigns, agrees to and shall maintain or cause to be maintained in full force and etIect at least the
minimum insurance requirements with respect to each Egress Drive in the amount of Five
Hundred Thousand Dollars ($500,000.00) in commercial general liability insurance. bodily
injury, personal injury and property damage, arising out of anyone occurrence. Gondek and
Sarna llnd thcir respective successors and assigns shall be named "additional insureds" under
~cP otherli policy a~ it applie~ to /';, cce~); Dri"e on e;;lch p:.lrties Property. All insurance required
4
shall be written on an occurrence basis and procured from companies rated by Best's Rating
Guide not less than A-fX, 3l!d which are authorized to do business in the State of Minnesota. In
no event shall any deductible exceed $15,000.00. Gondek and Sarna agree to supply each other,
and its successors and assigns in interest in their Property, a certificate(s) of insurance,
evidencing that the insurance required to be carried by such parties is in full force and effect and
that the insured party is an additional insured under such insurance pursuant to the requirements
of this Agreement. Each insurance policy shall provide that the policy shall not be canceled or
reduced in amount or coverage required above, nor be allowed to expire without at least thirty
(30) days prior written notice by the insurer to each one of the additional insureds.
G. Convevance of Vacated LookouUGondek. Gondek, in consideration of Sarna's grant of
the easement and upon request by Sarna, shall provide a quit claim deed to that portion of
vacated Lookout which accrues to the Gondek Property. Gondek shall provide to Sarna a fully
executed and recordable quit claim deed within ten (10) days after Sarna's request of the same
from Gondek.
H. Contin?encies. This Agreement and all obligations of Sarna and Gondek are contingent
upon Sarna successful purchase of the Sarna Property. In the event Sarna is unable to successful
complete the acquisition of the Sarna Property from the City, then in such event, all obligations
of Sarna and Gondek shall hereby terminate and Gondek and Sarna shall no further rights or
obligations under the terms and conditions of this Agreement.
1. Construction License. Gondek hereby grants to Sarna a construction license to enter that
portion of the Gondek Property reasonably required by Sarna to accommodate the construction of
the Gate as contemplated by this Agreement. The construction easement shall terminate upon the
completion of all construction work on the Sarna Property.
..
J. Successors and Assi?ns. Sarna and Gondek, wherever used in this instrument, are
intended in any instance to include the successors and assigns of said Gondek and Sarna, as the
owners of the Gondek Egress Access Drive and Sarna Egress Access Drive.
K. Miscellaneous. This Agreement shall be governed by and construed in accordance with
the laws of the State of Minnesota. This Agreement shall not be construed for or against Sama
and Gondek. The captions are inserted in this Agreement only for convenience of reference and
do not define, limit or describe the scope or intent of any provisions of this Agreement. This
Agreement may be signed in counterparts, each of which shall be deemed to be an original and
all of which when take together shall constitute on instrument.
[Signatures will appear on the following page]
5
asslgnSThiS Agreement shall bind and apply to the Part~Luccessors and
GONDEK: ---c .~.
Michae Gondek
SARNA:
Sarna's, Inc.,
a Minnesota corporation
By:
(b;l~
J es A. Sarna
Its: President
STATE OF MINNESOTA )
) ss.
COUNTYOFANOKA )
r~
The foregoing instrument was acknowledged before me this ~ day of May, 2006. by
Michael Gondek, single. ~ . ~
e GORDON e. SOLZ (l .
Notary Public-State of Minnesota ~
. My CommiS$ion ElCpires Notary' Pub l'C
January31,2010
STATE OF MINNESOTA )
) ss.
COUNTYOFANOKA )
The foregoing instrument was acknowledged before me this 5 ~ day of May, 2006. by
James A. Sarna, the President of Sarna's, Inc., a Minnesota corporation, on behalf of the
corporation. ,!I ~,
GORCON 8. SOLl I.~~ -
Notary Public.St31e of Minnesota Not!r-y Public
My Commission Expires
January 31 . 2010
"
THIS INSTRUMENT WAS DRAFTED BY:
Barna, Guzy & Steffen, Ltd.
400 Northtown Financial Plaza
200 Coon Rapids Boulevard
Minneapolis, Minnesota 55433
(763) 780-8500 (MFH)
325800 4
6
EXHIBIT A
SARNA PROPERTY
Lot 1, Block 1, Sarna's Addition, Anoka County, Minnesota.
II
7
EXHIBIT B
GONDEK PROPERTY
Lots 13 and 14, Block 68, Columbia Heights Annex to Minneapolis, Anoka County, Minnesota.
"
8
EXHIBIT C
ACCESS DRIVES / GATE DEPICTION
..
9
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EXHIBIT C
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iSARNA
. PABKING:
REGULAR: 85
05--01'''06
H'CAP: 4
TOTAL: 89 SPACES
SCHEDULE C
CERTIFICATE OF COMPLETION
WHEREAS, the Columbia Heights Economic Development Authority, Columbia
Heights, Minnesota, a public body, corporate and politic (the "Grantor"), by a Deed recorded in
the Office of the County Recorder or the Registrar of Titles in and for the County of Anoka and
State of Minnesota, as Deed Document Number(s) and , respectively,
has conveyed to , a Minnesota (the "Grantee"), the
following described land in County of Anoka and State of Minnesota, to-wit:
(the "Property")
and
WHEREAS, said Deed contained certain covenants and restrictions set forth in Sections
1 and 2 of said Deed; and
WHEREAS, said Grantee has perfonned said covenants and conditions with respect to
the Property insofar as it is able in a manner deemed sufficient by the Grantor to permit the
execution and recording of this certification;
NOW, THEREFORE, this is to certify that all building construction and other physical
improvements specified to be done and made by the Grantee on the Property have been
completed and the above covenants and conditions in said Deed and the agreements and
covenants in Article IV of the Agreement (as described in said Deed) with respect to the Property
have been performed by the Grantee therein, and the County Recorder or the Registrar of Titles
in and for the County of Anoka and State of Milmesota is hereby authorized to accept for
recording and to record, the filing of this instrument, to be a conclusive detemlination of the
satisfactory termination of the covenants and conditions of Article IV of the Agreement with
respect to the Property,
Dated:
,20_
COLUMBIA HEIGHTS ECONOMIC
DEVELOPMENT AUTHORITY
Bv
.;
Its President
By
Its Executive Director
274817vlO MTN CL205-26
C-I
STATE OF MINNESOTA )
) ss.
COUNTYOFANOKA )
On this _ day of ,20_, before me, a Notary Public within and for said
County, personally appeared to me personally known, who, being
by me duly sworn, did say that (s)he is the President the Authority named in the foregoing
instrument; that the seal affixed to said instrument is the seal of said Authority; that said
instrument was signed and sealed in behalf of said Authority by authority of its governing body;
and said acknowledged said instrument to be the free act and deed of said
Authority.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTYOFANOKA )
On this _ day of , 20_, before me, a Notary Public within and for said
County, personally appeared , to me personally known, who, being
by me duly sworn, did say that (s)he is the Executive Director of the Authority named in the
foregoing instrument; that the seal affixed to said instrument is the seal of said Authority; that
said instrument was signed and sealed in behalf of said Authority by authority of its governing
body; and said acknowledged said instrument to be the free act and deed of said
Authority.
Notary Public
274817vlO MTN CL205-26
C-l
274817vlO MTN CL205-26
SCHEDULE D
ENVIRONMENTAL REMEDIATION COSTS
D-l
SOIL CORRECTION COSTS
SARNA RESTAURANT
Below is a list of costs to be incurred by developer for soil correction to correct existing site soil
conditions prior to incurring any of the other predevelopment costs. Please note that these
revised numbers are based upon Developer agreeing to revise all plans to delete the proposed
basement on the property and construct a slab-on grade restaurant. Based upon previous bids, if
a basement is constructed, additional soil correction costs would exceed $300,000.00. Below is
an estimate of additional soil correction costs which would be incurred by Developer related
directly to soil correction only based upon bids and re-bids by Frattalone Companies and Atlas
Foundation Co.
1. Additional costs for subsurface exploration required
By geotechnical engineer for entire site $5,000.00
2. Cost of 74 concrete filled pipe piles 30 feet deep
(bid by Atlas) $59,950.00
3. Estimate for grade beam and structural floor suppOlis
in cOlmection with installation of concrete filled pipe piles $30,000.00
4. Additional value engineering for concrete filled piles for
The foundation of the building $5,000.00
5. Removal and disposal of contaminated soils on site $5,000.00
6. Enviromnental Audit (old gas station site), including
Minnesota Pollution Control Application, Phase T, Phase II,
drilling of enviromnental contaminated area, costs for soil
and groundwater testing, pre-demolition inspection in prepara-
tion for Development Response Action Plan from the MPCA
(Bid from ProSource Technologies) $10,400.00
7. Costs to install a vapor barrier for building required as a result
Of contaminated soil located at the old gas station site $5,000.00
TOTAL
$120,350
274817vlO MTN CL205-26
D-1
EXHIBIT E
ESCROW CALCULATIONS
DEVELOPER IMPROVEMENTS
l. Erosion Control/Restoration (1 acre) $ 10.000
2. Public Improvements (alley, sidewalk, $ 30.000
utility disconnects, and street removals
and restoration)
3. Street Lighting / CD Siren $ 3.800
4. ME Global Drive Access and utility $ 9.500
relocation
5.
MGS Bldg. Demo
$ 12.000
$ 10.000
6.
Administration (legal)
MUL TIPLIED BY:
1.25
EQUALS
$ 94,125
For the above work, DEVELOPER shall post a Letter of Credit for $ 94,125.
In addition to the letter of credit required above, the DEVELOPER shall also deposit
$2,500 in cash with the CITY contemporaneously with execution of this DEVELOPMENT
CONTRACT. This $2,500 shall be to pay the CITY for engineering plan review and
inspection fees at the CITY's standard rates charged for such tasks. Upon acceptance of
the DEVELOPER PUBLIC IMPROVEMENTS, the CITY shall return to the
DEVELOPER any remaining portion of the $2,500 not otherwise charged against the
DEVELOPOER for engineering inspection performed by the CITY. To the extent the
engineering inspection fees, calculated according to the CITY's standard rates, exceed the
$2,500 deposit, the DEVELOPER is responsible for payment of such excess within thirty
(30) days after billing by the CITY.
274817vlO MTN CL205-26
E-l
In addition to the Letter of Credit required above, the DEVELOPER shall pay to the CITY
the amount of $ 37,400 as a STORM WATER MANAGEMENT FEE in lieu of
constructing on-site storm water facilities as required in City Code Section 9.609.
4/21/06
CONSIDER OTHER ADDITIONS:
ESCROW REQUIREMENT. Contemporaneously herewith, the DEVELOPER shall deposit with
the CITY an irrevocable letter of credit, or cash deposit for the amounts set forth on Exhibit F.
All cost estimates shall be acceptable to the DIRECTOR OF PWD. The total
escrow amount was calculated as shown on the attached Exhibit F. The bank and
form of the irrevocable letter of credit, or cash deposit shall be subject to approval
by the City Finance Director and City Attorney and shall continue to be in full
force and effect until released by the CITY. The irrevocable letter of credit shall
be for a tenn ending December 31, 2006. In the alternative, the letter of credit
may be for a one year term provided it is automatically renewable for successive
one year periods from the present or any future expiration dates with a final
expiration date of December 31, 2006, and further provided that the irrevocable
letter of credit states that at least sixty (60) days prior to the expiration date the
bank will notify the City that if the bank elects not to renew for an additional
period. The irrevocable letter of credit shall secure compliance by the
DEVELOPER with the terms of this DEVELOPMENT CONTRACT. The CITY
may draw down on the irrevocable letter of credit or cash deposit, with written
notice relating to a DEVELOPER DEF AUL T, for any of the following reasons:
a) a DEVELOPER DEF AUL T; or
b) upon the CITY receiving notice that the irrevocable letter of credit will be allowed to
lapse before December 31, 2006.
With CITY approval, the irrevocable letter of credit or cash deposit may be reduced from
time to time as financial obligations are paid.
ESCROW RELEASE AND ESCROW INCREASE; DEVELOPER IMPROVEMENTS. Periodically,
upon the DEVELOPER's written request and upon completion by the DEVELOPER and
acceptance by the CITY of any specific DEVELOPER IMPROVEMENTS, ninety percent
(90%) of that portion of the irrevocable letter of credit, or cash deposit covering those specific
completed improvements only shall be released. The final ten percent (l 0%) of that portion of
the ilTevocable letter of credit, or cash deposit, for those specific completed improvements shall
be held until acceptance by the CITY and expiration of the one year walTanty period under
Section 1.15 hereof; in the alternative, the DEVELOPER may post a bond satisfactory to the
CITY with respect to the final ten percent (10%).
If it is determined by the CITY that the DEVELOPMENT PLANS were not strictly
adhered to, or that work was done without CITY inspection, the CITY may require, as a
274817vlO MTN CL205-26
E-2
condition of acceptance, that the DEVELOPER post a irrevocable letter of credit, or cash deposit
equal to 125% of the estimated amount necessary to correct the deficiency or to protect against
deficiencies arising there from. Said additional irrevocable letter of credit, or cash deposit, shall
remain in force for such time as the CITY deems necessary, not to exceed two (2) years. In the
event that work, which is concealed, was done without pennitting CITY inspection, then the
CITY may, in the alternative, require the concealed condition to be exposed for inspection
purposes.
The OWNER and the CITY hereby agree that the removal of the University Service Drive shall
require the relocation of the driveway(s) serving the property at 3901 University Avenue NE
(also referred to as ME GLOBAL). The design and construction ofthe driveway relocations shall
be the responsibility of the CITY. The cost for such relocation shall be based upon a prorated
share of the University Frontage Road from 37th to 40th Avenues to abutting properties,
excluding the frontage of 3901 University Avenue. The new Driveway Relocation shall be
constructed and accessible prior to the removal of the University Service Drive from 37th to 40th
Avenues, as required by the CITY. The cost for the Proj ect is estimated to be
and Developer shall be responsible to pay no more than eighteen point four percent (18.4%) of
the Project Cost.
RELEASE OF DEVELOPMENT CONTRACT. Upon completion of all DEVELOPER
IMPROVEMENTS and all DEVELOPER PUBLIC IMPROVEMENTS, and upon the expiration
of the TWO YEAR WARRANTY ON PROPER WORK AND MATERIALS, the
DEVELOPER may submit to the CITY a draft release of this DEVELOPMENT CONTRACT
for review and approval by the CITY's attorney. The CITY agrees to cooperate with the
DEVELOPER to process a recordable release of this DEVELOPMENT CONTRACT for title
purposes provided that said improvements have been completed and said warranties have
expired.
LANDSCAPING. Installation and Maintenance. The following regulations shall govern the
installation and maintenance of landscaping and screening materials.
All landscaping materials and screening materials shall be installed in conjunction with site
development and prior to issuance of a final certificate of occupancy.
A letter of credit or other security as acceptable to the CITY shall be deposited with the Zoning
Administrator, in an amount equal to ten percent (10%) of the estimated cost of landscaping
and/or screening. The letter of credit or other security as acceptable to the CITY, or portions
thereof, shall be forfeited to maintain and/or replace materials for a period of time to include at
least two (2) growing seasons. A portion of the letter of credit or other security as acceptable to
the CITY may be released after one growing season as detennined by the Zoning Administrator.
The property owner shall be responsible for continued maintenance of landscaping and screening
materials to remain in compliance with the requirements of this Section. Plant materials that
show signs of disease or damage shall be promptly removed and replaced within the next
planting season.
274817vlO MTN CL205-26
E-3
EXHIBIT F
State Deed Tax Due Hereon: $
QUIT CLAIM DEED
THIS INDENTURE, between the Columbia Heights Economic Development Authority, a
public body corporate and politic (the "Grantor"), and Sarna's, Inc., a Minnesota corporation (the
"Grantee").
WITNESSETH, that Grantor, in consideration of the sum of $1.00 and other good and
valuable consideration the receipt whereof is hereby acknowledged, does hereby grant, bargain,
quitclaim and convey to the Grantee, its successors and assigns forever, all the tract or parcel of land
lying and being in the County of Anoka and State of Minnesota described on "Exhibit A" attached
hereto, to-wit (such tract or parcel ofland is hereinafter referred to as the "Property"):
To have and to hold the same, together with all the hereditaments and appurtenances
thereunto belonging, subject to: See attached "Exhibit B"
SECTION 1.
It is understood and agreed that this Deed is subject to the covenants, conditions, restrictions
and provisions of an agreement recorded herewith entered into between the Grantor and Grantee on
the day of , 2006, identified as "Contract for Private Redevelopment," as
amended (hereafter referred to as the "Agreement"), that the Grantee shall not convey this Property,
or any part thereof, except as permitted by the Agreement until a certificate of completion releasing
the Grantee from certain obligations of said Agreement as to this Property or such part thereof then
to be conveyed, has been placed of record. This provision, however, shall in no way prevent the
Grantee from mortgaging this Property in order to obtain funds for the purchase of the Property
hereby conveyed or for erecting the Minimum Improvements thereon (as defined in the Agreement)
in conformity with the Agreement, any applicable development program and applicable provisions
of the zoning ordinance of the City of Columbia Heights, Minnesota, or for the refinancing of the
same.
293598vl CBR CL205-26
SJB-274389v I
SA285-40
It is specifically agreed that the Grantee shall promptly begin and diligently prosecute to
completion the redevelopment of the Property through the construction of the Minimum
Improvements thereon, as provided in the Agreement.
Promptly after completion of the Minimum Improvements in accordance with the provisions
of the Agreement, the Grantor will furnish the Grantee with an appropriate instrument so certifYing.
Such certification by the Grantor shall be (and it shall be so provided in the certification itself) a
conclusive determination of satisfaction and termination of the agreements and covenants of the
Agreement and of this Deed with respect to the obligation of the Grantee, and its successors and
assigns, to construct the Minimum Improvements and the dates for the beginning and completion
thereof. Such certification and such determination shall not constitute evidence of compliance with
or satisfaction of any obligation of the Grantee to any holder of a mortgage, or any insurer of a
mortgage, securing money loaned to finance the purchase of the Property hereby conveyed or the
Minimum Improvements, or any part thereof.
All certifications provided for herein shall be in such form as will enable them to be
recorded with the County Recorder, or Registrar of Titles, Anoka County, Minnesota. If the
Grantor shall refuse or fail to provide any such certification in accordance with the provisions of the
Agreement and this Deed, the Grantor shall, within thirty (30) days after written request by the
Grantee, provide the Grantee with a written statement indicating in adequate detail in what respects
the Grantee has failed to complete the Minimum Improvements in accordance with the provisions
of the Agreement or is otherwise in default, and what measures or acts it will be necessary, in the
opinion of the Grantor, for the Grantee to take or perform in order to obtain such certification.
SECTION 2.
The Grantee's rights and interest in the Property are subject to the terms and conditions of
Section 9.3 of the Agreement relating to the Grantor's right to re-enter and revest in Grantor title to
the Property under conditions specified therein, including but not limited to termination of such
right upon issuance of a Certificate of Completion as defined in the Agreement.
SECTION 3.
The Grantee agrees for itself and its successors and assigns to or of the Property or any part
thereof, hereinbefore described, that the Grantee and such successors and assigns shall comply with
all provisions of the Agreement that relate to the Property or use thereof for the periods specified in
the Agreement.
It is intended and agreed that the above and foregoing agreements and covenants shall be
covenants running with the land for the term of the Agreement, and that they shall, in any event, and
without regard to technical classification or designation, legal or otherwise, and except only as
otherwise specifically provided in this Deed, be binding, to the fullest extent permitted by law and
equity for the benefit and in favor of, and enforceable by, the Grantor against the Grantee, its
successors and assigns, and every successor in interest to the Property, or any part thereof or any
interest therein, and any party in possession or occupancy of the Property or any part thereof.
293598vI CBR CL205-26
2
In amplification, and not in restriction of, the provisions of the preceding section, it is
intended and agreed that the Grantor shall be deemed a beneficiary of the agreements and covenants
provided herein, both for and in its own right, and also for the purposes of protecting the interest of
the community and the other parties, public or private, in whose favor or for whose benefit these
agreements and covenants have been provided. Such agreements and covenants shall run in favor
of the Grantor without regard to whether the Grantor has at any time been, remains, or is an owner
of any land or interest therein to, or in favor of, which such agreements and covenants relate. The
Grantor shall have the right, in the event of any breach of any such agreement or covenant to
exercise all the rights and remedies, and to maintain any actions or suits at law or in equity or other
proper proceedings to enforce the curing of such breach of agreement or covenant, to which it or
any other beneficiaries of such agreement or covenant may be entitled; provided that Grantor shall
not have any right to re-enter the Property or revest in the Grantor the estate conveyed by this Deed
on grounds of Grantee's failure to comply with its obligations under this Section 3.
SECTION 4.
This Deed is also given subject to provision of the ordinances, building and zoning laws of
the City of Columbia Heights, and state and federal laws and regulations in so far as they affect this
real estate.
Grantor certifies that it does not know of any wells on the Property.
IN WITNESS WHEREOF, the Grantor has caused this Deed to be duly executed in its
behalf by its President and Executive Director and has caused its corporate seal to be hereunto
affixed this day of July, 2006.
COLUMBIA HEIGHTS ECONOMIC
DEVELOPMENT AUTHORITY
By 4f~rJ.
ItsPre dent-Don u zyn ~r.
By
293598vl CBR CL205-26
3
STATE OF MINNESOTA )
) ss
COUNTY OF ANOKA )
The foregoing was acknowledged before me this day of ~ 2006, by Don
Murzyn, Jr. and Walter R. Fehst, the President and Executive Director, reipectively, of the
Columbia Heights Economic Development Authority, a public body corporate and politic under the
laws of the State of Minnesota, on behalf of the public body corporate and politic.
I
II
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CHElM. A. BAKKEN I
NOTARY PUIlUC-MINNESOTA
MY COW MISSION EXP1R51-31-2007
.
This instrument was drafted by:
Kennedy & Graven, Chartered
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, Minnesota 55402
Tax Statements should be sent to:
Sarna's, Inc.
2501 University Avenue NE
Minneapolis, MN 55418
293598vl CBR CL205-26
4
EXHIBIT A
Parcell:
Lot 15, Block 68, Columbia Heights Annex to Minneapolis, Anoka County, Minnesota, together
with the Northeasterly 30 feet of vacated Lookout Place accruing thereto.
Abstract Property
Parcel 3:
Lot 16 and that part of Lot Seventeen (17), Block Sixty-eight (68), lying Southwesterly of the
following described "Line I" and Northwesterly of the following described "Line 2."
Line 1:
Beginning at a point on the South line of said Lot Seventeen (17), distant 21.00 feet Westerly of the
Southeast comer; thence Northwesterly to a point on the West line, said point being 100.00 feet
Southerly of the Northwest comer and there terminate.
Line 2:
Beginning at a point on the North line of said Lot Seventeen (17), distant 10.00 feet Easterly of the
Northwest comer; thence Southwesterly to a point on the West line, said point being 10.00 feet
Southerly of the Northwest comer and there terminate.
Together with the Northeasterly 30.00 feet of vacated Lookout Place accruing thereto.
All in Columbia Heights Annex to Minneapolis, Anoka County, Minnesota.
Abstract Property
Parcel 4:
All that part of Lot 1, Rearrangement of Block E, Columbia Heights Annex to Minneapolis, Anoka
County, Minnesota, lying Northerly of the following described line:
Commencing at the Southeast comer of said Lot 1; thence Northwesterly along the Easterly line of
Lot 1, a distance of 90 feet to the actual point of beginning of the line to be described; thence
Westerly to a point on the West line of Lot 1, a distance of 128 feet Southerly ofthe Northwest
comer thereof and there terminating except therefrom that part taken for highway purposes, together
with that part of the vacated University Avenue accruing thereto.
Also together with that part of the Southwesterly 30 feet of vacated Lookout Place accruing thereto.
Abstract Property
293598vl CBR CL205-26
5
Parcel 5:
That part of lot One (1), Rearrangement of Block "E", Columbia Heights Annex to Minneapolis
described as follows:
Commencing at the Southeast Comer of said Lot One (1); thence Northerly along the West line of
Lookout Place a distance of Ninety (90) feet; thence West to a point on the West line of said lot
distant one hundred twenty-eight (128) feet South from the North line of said lot; thence South
along the West line of said lot to the South line thereof; thence East to the point of beginning, except
that part thereoflying West of University Avenue Northeast. Together with that part of the vacated
University A venue accruing thereto.
Also together with that part ofthe Southwesterly 30 feet of vacated Lookout Place accruing thereto.
Abstract Property
Parcel 6:
That part of the North Half, front and rear of Lot Two (2), Rearrangement of Block "E", Columbia
Heights Annex to Minneapolis, that lies East of the East line of University Avenue, as now laid out
and constructed. Together with that part of the vacated University Avenue accruing thereto.
Also together with that part of the Southwesterly 30 feet of vacated Lookout Place accruing thereto.
Abstract Property
293598vl CBR CL205-26
6
EXHIBIT B
1. Real estate taxes and special assessments not yet due, if any.
2. Matters as shown on survey by Kurth Surveying, Inc.
293598v I CBR CL205-26
7
QUIT CLAIM DEED
STATE DEED TAX DUE HEREON: $1.65
Consideration for this transfer is less than $500.00.
Date: July 11,2006
FOR VALUABLE CONSIDERATION, the City of Columbia Heights, a municipal corporation
under the laws of the State of Minnesota, Grantor, hereby conveys and quit claims to Columbia
Heights Economic Development Authority, a public body corporate and politic under the laws of
the State of Minnesota, Grantee, real property in Anoka County, MiImesota, described as
follows:
Those parts of vacated University Avenue accruing to Lot 1, Rearrangement of Block E,
Columbia Heights Annex to Milmeapolis and accruing to that part of the North Half, front and
rear of Lot 2, Rearrangement of Block E, Columbia Heights Almex to MiImeapolis, Anoka
County, MiImesota
together with all hereditaments and appurtenances, subject to easements of record, if any.
The Seller certifies that the Seller does not know of any wells located on the above described real
property.
293596vl CBR CL205-26
Ga ry L. eterson
Its: Ma
By:
via 1 ter
Its: City Manager
STATE OF MINNESOTA )
) ss.
COUNTYOFANOKA )
The foregoing was acknowledged before me on :.'- LJ It: (2, , 2006, by Gary
Peterson and Walter R. Fehst, the Mayor and City Manager of he City of Columbia Heights a
municipal corporation under the laws of the State of Milmesota, on behalf of the corporation.
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.
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0fEIM. A. BAmN I
NOTAAi' PUBUC -MINNESOTA
MY COMMlSSlON EXPIRES 1-31-2IlO7
.
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Signature-()f person taking acknowledgment
This instrument was drafted by:
Commercial Partners Title, LLC
200 South Sixth Street
Suite 1300
Milmeapolis, MN 55402
Tax statements for the real property described
herein should be sent to:
Economic Development Authority of the
City of Columbia Heights
590 40th Avenue NE
Columbia Heights, MN 55421
293596vl CBR CL205-26
Quit Claim Deed
STATE DEED TAX DUE HEREON: $1.65
Consideration for this transfer is less than $500.00
Date:
FOR VALUABLE CONSIDERA nON, City of Columbia Heights, a municipal corporation under the laws
of the State of Minnesota, Grantor, hereby conveys and quitclaims to Sarna's, Inc., a corporation under the
laws of Minnesota, Grantee, real property in Anoka County, Minnesota, described as follows:
The northerly 25 feet of Lot 1, Rearrangement of Block E, Columbia Heights Annex to the City of
Minneapolis, lying easterly of University Avenue, Northeast, according to the plat thereof on file and of
record in the office of the County Recorder in and for Anoka County, Minnesota.
(if more space is needed, continue on back)
together with all hereditaments and appurtenances.
Ga ry L. Peterson
Its Mayor
By k;:,
\~alter R. Fehst
Its City Manager
293738vl CBR CL205-26
STATE OF MINNESOTA )
) ss.
COUNTYOFANOKA )
The foregoing was acknowledged before me on :ju l'-t ( () , 2006, by Gary
Peterson and Walter R. Fehst, the Mayor and City Manager oft e City of Columbia Heights a
municipal corporation under the laws of the State of Minnesota, on behalf of the cOl;poration.
, 6kLL-,
NOTARIAL STAMP OR SEAL (OR OTHER TITLE OR RAK) SIGNATURE 0 ERSON TAKING ACKNOWLEDGMENT
.
CHEIM.. It. BAKKEN I
NOTARYPUBUC-MlNNESOTA
MY COMMIS5ION EXPIRES 1-31-2007
.
I
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Check here ifpart or all of the land is Registered (Torrens) 0
Tax Statements for the real property described in this
instrument should be sent to (include name and address
of Grantee):
Sarna's, Inc.
2501 University Avenue NE
Minneapolis, MN 55418
This instrument drafted by:
Kennedy & Graven, Chartered
470 U. S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
293738vI CBR CL205-26
QUITCLAIM DEED
EASEMENT
C.S. 0205 (47=156-23)
Parcel 17
County of Anoka
The State of Minnesota having heretofore acquired an easement for trunk
highway purposes on the real estate hereinafter described, and the Commissioner of
Transportation of said State having determined that the same is no longer needed;
Now, therefore, upon said determination and pursuant to Minnesota Statutes
Section 161.43, the State of Minnesota, by Carol Molnau, its Commissioner of
Transportation, Grantor, for and in consideration of the sum of One Thousand and No/100
Dollars ($1,000.00) paid to the State for deposit in the trunk highway fund, does hereby
release, quitclaim and convey to the City of Columbia Heights, a municipal corporation under
the laws of the state of Minnesota, Grantee, all its interest in and to the real estate in Anoka
County, Minnesota, described as follows:
All of Tract A described below:
Tract A.
The northerly 25 feet of Lot 1, Rearrangement of Block E, Columbia Heights
Annex to the City of Minneapolis, lying easterly of University Avenue, Northeast,
according to the plat thereof on file and of record in the office of the County
Recorder in and for Anoka County, Minnesota.
THE ABOVE DESCRIBED REAL PROPERTY IS SUBJECT TO THE RIGHTS OF
EXISTING UTILITIES, IF ANY, AS PROVIDED IN MINNESOTA STATUTES 9161.45
SUBDIVISION 3.
Dated this
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day of
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Page 1 of 2
STATE OF MINNESOTA
By
STATE OF MINNESOTA )
) ss.
COUNTY OF RAMSEY )
'C~ . //~7 ~, 2t"~
On this v) ~ day of C ~&L ~~ -0, before me, a Notary
Public within and for said County, personally~ppeared -- e. ' ~G ,to me
personally known to be the person who executed the foregoing instrument ant! ho did say
that he is the (Commissioner of Transportation) (Director- of the Office-of Land MaRagement
-and duly authorized age~oa:u:UcissioJ:l~r of Tranli!lportation) (Assistant Director of the
Office of Land Management and duly authorized agent of the Commissioner of
Transportation} of the State of Minnesota and acknowledged that he executed the foregoing
instrument and caused the seal of the Commissioner of Transportation to be affixed thereto,
by authority of Minnesota Statutes, Section 161.43, and as the free act and deed of said
State.
(~~~
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( I
This instrument was drafted by the
State of Minnesota, Department of
Transportation, Legal and
Real Estate Conveyance Unit,
St. Paul, Minnesota 55155
R7 5170G-07W . doc
MARY LOU JOHNSON
NOTARY PUBlIC. MINNESOTA
MY COMMISSION
EXPIRES JAN. 31, 20 10
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